Bombay High Court
Association Of Engineering Workers ... vs Automobile Products Of India And Others on 3 March, 1988
Equivalent citations: 1988(2)BOMCR393, (1989)ILLJ390BOM
JUDGMENT Dharmadhikari, J.
1. Writ Petition No. 1776 of 1986 is filed by the Association of Engineering Workers, a trade Union against the order passed by the Industrial Court, Bombay dated 10th of February, 1986 accepting the request of respondent-Automobile Products of India Employees Union for registration as a recognised union under Section 14 of the Mah. Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act). The petitioner-trade union filed an application on 12th January, 1977 under Section 11of the Act for being recognised as a recognised union in the Undertaking of the respondent No. 1-Automobile Products of India. By an order dated 30th of March, 1977 the Industrial Court, Thane granted the said application and ordered that it may be recognised as a recognised union in the said Undertaking. Accordingly a certificate of recognition was also issued in favour of the petitioner-union. It is the case of the petitioner-union that thereafter since 1981 some of the employees resigned from the petitioner-union and formed respondent No. 2-Union. The respondent No. 2-union then filed an application for cancellation of the recognition of the petitioner-union and claiming recognition to itself. This application for recognition was filed on 29th of July, 1982. The Industrial Court issued notice on 13th August, 1982 and it was displayed on the notice boards. After the matter proceeded for some time before the court, it appears that both sides filed an application on 5th September, 1985 stating therein that the problem of recognition of Union having a real majority of workmen, should be disposed of by taking secret ballot, by the Investigating Officer. The Employer Company had no objection for having secret ballot. Therefore, with the consent of the parties, an order was passed by the Industrial Court on 19th of December, 1985 directing the Investigating Officer to hold secret ballot and forward his report to the court on or before 21st of January, 1986. It appears that thereafter a secret ballot was taken and a report was also submitted by the Investigating Officer. On the basis of the said report and in view of the result of the secret ballot, the Automobile Products of India Employees' Union was declared to be a recognised union having majority of workers. On that basis the application filed by the Respondent Union under Section 13 of the Act for cancellation of the recognition of petitioner-union, came to be granted and the respondent-Automobile Products of India Employees' Union came to be registered as a recognised union under Section 14 of the Act, vide order of the Industrial Court dated 10th February, 1986. As already observed it is this order which is challenged in the present petition by the petitioner-union.
2. In Writ Petition No. 1409 of 1986, two individual employees of the said Company have also challenged the said order. As both these matters involve common questions of law and fact, they were heard together and are being disposed of by this common judgment.
3. Shri Ganguli and Shri Deshmukh, learned counsel appearing for the petitioners contended before us that the procedure followed by the Industrial Court for deciding the issues involved by secret ballot was contrary to law, rather it is prohibited by law. Sections 11, 12, 13 and 14 of the Act will have to be read together and the prerequisites for either granting recognition or canceling it, cannot be decided by holding a ballot. A secret ballot cannot be used as a process where quasi-judicial enquiry is contemplated. In support of this contention strong reliance is placed upon the Division Bench decision of this court in Maharashtra General Kamgar Union Bombay v. Mazdoor Congress, Bombay and ors. 1983 Mah. LJ 147. Even by the consent of the parties, procedure of ballot could not have been followed by the Industrial Court, thereby delegating or abdicating its judicial or quasi-judicial functions.
4. On the other hand it is contended by Shri Dharap and Shri Shastri, learned counsel appearing for the respondent No. 2-union and Shri John learned counsel appearing for respondent No. 1-employers, that the petitioners are now estopped from contending that the procedure of ballot could not have been followed for ascertaining the majority, since the said procedure was followed by the consent of the parties. Such an objection was not raised before the trial court, and therefore, the petitioner-Union cannot be permitted to raise it for the first time in this writ petition. It was also contended by Shri Dharap that no particular procedure has been prescribed by Section 11, 12 or 13 of the Act. Sub-section (2) of Section 12 clearly contemplates that the Industrial Court can hold enquiry as it deems fit for deciding the question of recognition of a union. Thus the legislature has not laid down any particular procedure but same is left to the discretion of the court. If the provisions of Sections 11, 12, 13 and 14 are read together with regulation 79, then it cannot be held that the procedure of secret ballot is prohibited. In any case by consent of parties such a procedure could have been followed by the Industrial Court. It was also contended by the learned counsel that as learned counsel that as a matter of fact if the application under Section 14 of the Act is to be disposed of by the Industrial Court as far as possible within a period of 3 months, then the secret ballot is not only permissible, but should normally be adhered to for resolving the dispute. Shri Dharap also contended that the requirement, that the applicant-union has for the whole of the period of six calendar months immediately preceding the calendar month in which it so applies, a membership of not less than thirty percent of the total number of employees employed in any undertaking, as laid down by Section 11(1) of the Act, is merely directory and not mandatory. In support of his contentions he has placed reliance upon the decision of the Supreme Court in Mumbai Mazdoor Sabha v. Benett Coleman and Co. Ltd. and ors, (1986-II-LLJ-130) and Remington Rand of India Ltd. v. Their Workmen (1967-II-LLJ-866).
5. The question as to whether the percentage of membership, as contemplated by Section 13 of the Act, could be decided by adopting the procedure of secret ballot, stands concluded by the Division Bench decision of this court reported in Mah. General Kamgar Union, Bombay v. Mazdoor Congress, Bombay and ors (supra). After making a detailed reference to the relevant provisions of the Act, this is what the Division Bench has observed in paras 14 to 17 of the said judgment (1983-Mah. LJ-147) :
"14. ...
Thus an enquiry under Section 13 of the Act of 1971 may result in affecting the rights of a recognised Union. Such an enquiry would atleast be a quasi-judicial enquiry and it will be necessary to decide as to whether in the absence of any specific provisions for secret ballot, it would be possible the enquiring authority to decide matters in controversy in such quasi-judicial enquiry with the help of secret ballot ? Of course, the position would be different if the Legislature makes a specific provision that a particular controversy can be decided by a secret ballot. But so long as that provision is not there, we will have to take into account as to what is the primary use of a secret ballot. In ordinary parlance, a secret ballot is a method of voting. This is a process of an election while the enquiry contemplated by Section 13 of the Act of 1971 is a fact-finding process. In our opinion, a secret ballot cannot be used as a process where a quasi-judicial enquiry regarding the finding of certain facts is contemplated.
15. In the present case what is required to be proved by the Maharashtra Union is that the membership of the Mazdoor Congress has fallen to less than thirty per cent. during the requisite six months' period and for obvious reasons, that has to be decided on the basis of the evidence that would be led before the Industrial Court. That evidence may be in the shape of the membership record or it can be of any other kind. But, we are not able to accept the contention of Dr. Kulkarni that this controversy can be decided with the help of a secret ballot. Another flaw in adopting secret ballot as a method of proving a particular fact can very well be imagined. Let us take a case where the number of employees in an undertaking is 100, and the Industrial Court holds a secret ballot for the purpose of deciding as to whether the membership of a recognised union has fallen to less than thirty per cent. Let us estimate that the result of such a secret ballot is that 25 employees vote in favour of the recognised union. This would mean that the membership has fallen below the requisite percentage but as stated earlier, Dr. Kulkarni has contended that the secret ballot would be one of the pieces of evidence. In that contingency, the recognised Union could lead other evidence for the purpose of proving that though the result of the secret ballot was as above, still the membership percentage was actually more than thirty per cent. The difficulty would be that as the ballot would be secret, the recognised union would not be able to know as to which of the members have voted against the union and it will not be possible for the recognised union to lead evidence to contradict these particular voters who have voted against the recognised Union. This incapacity would be on account of the absence of identity of entity of such voters.
16. The inherent lacuna in the process of a secret ballot can also be seen from the record of this case. We have already observed that the Mah. Union contends that 727 members of the Mazdoor Congress have resigned from that union in March, 1981. The secret ballot that was held in pursuance of the order of the Industrial Court shows that 918 employees voted and out of them 904 voted against the Mazdoor Congress. We should not forget that the total employees in the undertaking are 1,025. Thus, in the secret ballot, 904 employees exhibited their mind by saying that they were not in the members of the recognised union for six months, namely, from January to June 1981 and also in the month of August, 1981. This is obviously inconsistent with the fact that till 20th March, 1981, even as per the case of Mah. Union, 727 employees were the members of Mazdoor Congress. Thus, the fact that till March, 1981 Mazdoor Congress had a membership of 727 persons negatives the efficacy, propriety and the legality of the secret ballot and its result. There is another lacuna which is evident from these figures. In the secret ballot, the voter can say anything because he has the protection of secrecy. The secret ballot is thus held behind the back of the recognised union and it would have no opportunity to cross-examine the persons who have recorded a vote against the union.
17. The learned Single Judge has, therefore, rightly held that the secret ballot could not be a procedure as contemplated by the Act of 1971 and is regulations for the purpose of deciding the facts relevant to an inquiry under Section 13 of the Act of 1971. The Legislature has not made any express provision that the facts necessary provision that the 13 can be proved by secret ballot. In our opinion, in the absence of such ballot. In our opinion, in the absence of such legislative sanction, it would not be open to substitute a vote in place of proof of a fact. This is more so, when the scheme of the Act and its regulations framed thereunder indicate the determination of disputed facts on the basis of evidence to be led before the Industrial Court, under these circumstances, it will not be open for the appellant to successfully challenge the order of the learned Single Judge in this respect. The result, therefore, is that the appeal fail and is dismissed. There will, however, be no order as to costs."
Apart from the fact that this decision is binding upon us, we respectfully agree with the view taken by the Division Bench in the said decision. Once it is held that there is no legislative sanction for such a procedure and it would not be open to substitute a vote in place of proof of a fact, then in our view a conclusion is inevitable that such a procedure is prohibited and, therefore, could not have been followed even by the consent of the parties. There cannot be any estoppel against law. Nobody can be permitted to do an act prohibited under law.
6. This court had an occasion to consider the scope of Sections 11, 12 and 13 of the Act in Kamgar Utkarsha Sabha v. M/s Benett Coleman and Co. Ltd., and ors. Writ Petition No. 4524 of 1984 decided on 6th November, 1984 reported in 1985 ICLR 118. Wherein the Division Bench held that the relevant date for considering the membership of a union applying for recognition is the date on which its application is made and not the date on which its application is decided. The object of the scheme for recognition of the union framed under the Act, is to avoid mushroom growth of Union and to secure Industrial peace. A provision has been, therefore, made that in one Undertaking there shall not be more than one recognised union, and once a union is recognised, it alone will have the right to represent the workers in their disputes. Once a union is recognised, it is not to be displaced by temporary or transitory fluctuations in its membership. Neither the recognition nor its cancellation are to be secured lightly. Section 11 lays down condition for recognition, the condition being that the applicant-union must have for the whole of the period of six calendar months immediately preceding the calendar months in which it so applies a membership of not less than thirty per cent. of the total number of employees employed in any undertaking. This is a condition precedent for being registered as a recognised union. To hold that any of these conditions is directory, will run counter to the very object of the legislation. Rather it will frustrate the very intention of the legislature. It is not necessary to probe further into this question in the present writ petitions, since once it is held that the procedure of secret ballot was wholly impermissible, the orders passed by the Industrial Court must get vitiated.
7. It is no doubt true that by consent of parties this procedure was followed by the Industrial Court. However, the doctrine of estoppel or waiver cannot be used to ask a person to carry out a representation or promise which is contrary to law or which was outside the authority or power of the Court. Consent cannot confer jurisdiction upon a forum which has no jurisdiction to decide the point (see 1966 Mah. L.J. 321. Gokikison, v. District Judge, Bhandara), Since the Investigating Officer and the Court had no jurisdiction to determine the point by secret ballot, consent cannot confer such jurisdiction. The order is wholly based on the result of the secret ballot. Hence it is void ab initio and without jurisdiction. As the order passed by the court is without jurisdiction then obviously the doctrine of estoppel or waiver cannot be pleaded, nor the order could be sustained on that count. Exclusive jurisdiction of the Court cannot be waived by an agreement and if the order passed by the court is without jurisdiction, then obviously it could be challenged in the writ jurisdiction. Such a contention goes to the very root of the matter and, therefore, could be raised for the first time in writ petition. Therefore, we do not find any substance in the contentions raised by Shri Dharap in that behalf. Once it is held that the procedure of secret ballot could not have been followed for deciding the conditions prescribed by Section 11 or 13 of the Act, then the order passed by the Industrial Court cannot be sustained.
8. In the result, therefore, rule is partly made absolute. The order passed by the Industrial Court, Bombay dated 10th February, 1986 is set aside and the Industrial Court is directed to hear and decide the matter afresh in accordance with law, after giving an opportunity of being heard to the parties concerned. Since the matter is pending long and relates to the recognition of a union, the Industrial Court is directed to hear and decide the matter as expeditiously as possible, or in any case within a period of four months from the date of receipt of the writ of this Court. However, in the circumstances of the case there will be no order as to costs in both the matters.
9. Shri Dharap, learned counsel for Respondents-Union, prays for leave to file appeal to the Supreme Court. Since we have decided this writ petition on the basis of well established principles of law, we do not think that this is a fit case for granting such a leave. Hence leave refused.