Gujarat High Court
Gujarat State Transport Workers ... vs Gujarat State Road Transport ... on 30 June, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/18289/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18289 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13519 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI : Sd/-
==========================================================
1 Whether Reporters of Local Papers may be YES allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made NO thereunder ?
========================================================== GUJARAT STATE TRANSPORT WORKERS FEDERATION THROUGH PRESIDENT INDRASINH PRAVEENSINH JADEJA & 16 other(s) Versus GUJARAT STATE ROAD TRANSPORT CORPORATION THROUGH VICE CHAIRMAN AND MANAGING DIRECTOR SONAL MISHRA, & 1 other(s) ========================================================== Appearance in Special Civil Application No.18289 of 2019 MR AK CLERK(235) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,2,3,4,5,6,7,8,9 for the Respondent(s) No. 1 MR K M PATEL, SENIOR ADVOCATE WITH MR HAMESH C NAIDU(5335) for the Respondent(s) No. 2 Appearance in Special Civil Application No.13519 of 2019 MR TR MISHRA(483) for the Petitioner(s) No. 1,2 for the Respondent(s) No. 2 MR K M PATEL, SENIOR ADVOCATE WITH MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 30/06/2020 COMMON CAV JUDGMENT Page 1 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT
1. Looking to the issue involved in both these petitions, learned advocates appearing for the parties jointly requested that both these petitions be heard together and the same may be disposed of finally at admission stage. Hence, Rule. Learned advocate Mr. Hamesh C. Naidu waives service of notice of Rule qua respondents.
2. Heard learned advocate Mr. A. K. Clerk appearing for the petitioners of Special Civil Application No.18289 of 2019, learned advocate Mr. T.R.Mishra appearing for the petitioners of Special Civil Application No.13519 of 2019 and learned Senior Advocate Mr. K. M. Patel assisted by learned advocate Mr. Hamesh C. Naidu for the respondents in both these petitions.
3. For the sake of convenience, the facts narrated in Special Civil Application No.18289 of 2019 are considered. In this petition, which is filed under Article 226 of the Constitution of India, petitioners have prayed for the following main relief/s:
"(a) Quashing and setting aside the communication dated 27.06.2019 addressed by the respondent No.2 to the petitioner No.1 federation and similar such communications addressed to the divisional unions at Annexure-G coll'ly.
(b) Quashing and setting aside the communication dated 1/2-07-19 addressed by the Chief Labour Officer of the respondent Page 2 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT Corporation to the Divisional Controller of all the divisions cancelling the free passes of certain office bearers.
(c) Directing the respondent Corporation to continue to recognize and negotiate with the office bearers of the petitioner unions who are either retired employees of the corporation or who are persons not working with the corporation/outsiders and to continue their free passes as if the communications dated 27.06.2019 and others at Annexure-G and communication dated 1/2.07.2019 at Annexure-H were not issued at all.
(d) Granting such other and further reliefs and passing such other and further orders as may be necessary in the facts and circumstances of the case."
4. At the outset, it is required to be noted that during the course of hearing, learned Senior Advocate Mr. K. M. Patel appearing for the respondents, under the instructions, submitted that now free passes are provided to the office bearers of the petitioners. In view of the said statement, learned advocate for the petitioners does not press relief prayed for in paragraph 29(b).
5. The factual matrix of the present case is as under:
5.1. Petitioner No.1 is a federation of Trade Unions and is registered as a Trade Union bearing Registration No.G/321 dated 25.05.1965, whereas petitioner Nos. 2 to 17 are the Trade Unions Page 3 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT registered under the Trade Unions Act, 1926 (hereinafter referred to as the 'Act of 1926') and are the members of the petitioner No.1 federation. Petitioner Nos. 2 to 17 have the same constitution. It is stated that petitioner unions are recognized by the respondent Corporation for the purpose of holding negotiations on various demands of the employees of the Corporation and for arriving at settlement under the Industrial Disputes Act, 1947 (hereinafter referred to as the 'I.D.Act').
5.2. It is further stated that petitioners send the names of their office bearers and the members of the Executive Committee to the respondent Corporation on or before 15th April every year. In 2019 also all the petitioners have sent names of their office bearers and the members of the Executive Committee to the respondent Corporation. The respondent Corporation publishes the list of office bearers and the members of the Executive Committee of all the petitioners union.
This year also the same has been published.
5.3. It is the grievance of the petitioners that on 24.05.2019, the respondent No.2 wrote a letter to the petitioner No.1 federation and informed that the federation must remove the retired employees from the post of office bearers. Petitioner No.1, therefore, submitted reply to the respondent Corporation on 29.05.2019 and Page 4 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT sought for certain information/particulars. Thereafter, petitioner No.1 wrote a letter dated 31.05.2019 to the respondent Corporation and pointed out the provisions contained in Section 22(2) of the Act of 1926 and stated that constitution of the union permits co-option of four persons, who are not eligible to become members of the union and therefore the appointment of retired employees or persons who are not working with the Corporation have been legally appointed as office bears of the union. Thereafter, on 27.06.2019, a communication was received from respondent No.2, inter alia stating that the Corporation will not negotiate with the office bearers, who are retired employees or persons not working with the Corporation and the appointment of such persons as office bearers of the union is treated as cancelled. Similar letters were issued to the divisional unions also.
5.4. It is also stated that on 01/02.07.2019 another communication was addressed by the concerned respondent, wherein, it is stated that free passes of certain office bearers are cancelled. Petitioners have, therefore, filed these petitions.
6. Learned advocate Mr. A. K. Clerk appearing for the petitioners, at the outset, would contend that the petitioners are the union recognized by Page 5 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT the respondent Corporation for the purpose of negotiation or arriving at settlement under the I.D.Act. The names of office bearers and members of the Executive Committee of the unions are also published for the years 2019-2020. At that time, no objection was raised by the respondent Corporation and therefore the impugned communications addressed by the respondents are required to be quashed and set aside.
7. Learned advocate for the petitioners would further refer the provisions contained in sub- section (2) of Section 22 of the Act of 1926 and thereafter would submit that under the Act of 1926, retired employees are not construed as outsiders and they are entitled to be appointed as office bearers of the union. Further, the union is entitled to appoint outsiders as office bearers to the extent of 1/3rd of the office bearers or five, whichever is less. Thus, when the Act of 1926 permits appointment of retired employees, action of the respondent Corporation is in violation of the provisions of the said Act and therefore the said action is required to be quashed and set aside.
8. Learned advocate Mr. Clerk also contended that the constitution of the petitioner No.1 federation provides for election or co-option of four persons as members of Executive Committee. None of the petitioner unions have more than 1/3rd Page 6 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT or five outsiders as office bearers and therefore it is within the permissible limit provided under Section 22 of the Act of 1926.
9. Learned advocate Mr. Clerk thereafter contended that the decision rendered by the Hon'ble Supreme Court in the case of State Bank of India Staff Association and another v. State Bank of India and others, reported in (1996) 4 SCC 378, upon which the reliance is placed by the respondent Corporation would not be applicable. It is further submitted that the petitioner federation is negotiating with the respondent Corporation since last 50 years and even after the decision is rendered by the Hon'ble Supreme Court in the case of State Bank of India Staff Association and another (supra), for a period of 23 years also, the respondent Corporation has negotiated with the office bearers of the petitioner unions and therefore at this stage it is not open for the respondent Corporation to submit that they will not negotiate with the office bearers who are retired employees or the outsiders.
10. It is further submitted that once the office bearers are appointed in accordance with law, the respondent Corporation cannot refuse to negotiate with them. It is, therefore, urged that the Page 7 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT impugned action of respondent Corporation be quashed and set aside and the relief prayed for in the present petition be granted.
11. Learned advocate Mr. T.R. Mishra appearing for the petitioners in Special Civil Application No.13519 of 2019 has adopted the submissions canvassed by learned advocate Mr. A. K. Clerk. However, learned advocate Mr. Mishra has further placed reliance upon the provisions contained in Section 21A of the Act of 1926, which provides for disqualification of office bearers of a Trade Union. It is submitted that the office bearers of trade union can be disqualified if they fall under any of the clauses mentioned in Section 21A of the Act of 1926 and not otherwise. Thus, it is not open for the respondent Corporation to add new clause in the provisions of the Act of 1926. Learned advocate Mr. Mishra has also referred to the provisions contained in Section 2(k), sub- section (3) of Section 12 and Section 36 of the I.D.Act read with Schedule V (ii) of the said Act. Learned advocate has also placed reliance upon the decision rendered by the Karnataka High Court in the case of Government Tool Room and Training Cetre's Supervisory and Officers Association and another v. Assistant Labour Commissioner and Deputy Registrar, Trade Unions, Bangalore and others, reported in 2002 (93) FLR Page 8 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT
580. Learned advocate Mr. Mishra, therefore, urged that the impugned action of the respondent Corporation be quashed and set aside and thereby this Court may grant the reliefs prayed for in these petitions.
12. On the other hand, learned Senior Advocate Mr. K. M. Patel appearing for the respondent Corporation has opposed these petitions and submitted that out of approximately 150 office bearers of the petitioners of Special Civil Application No.18289 of 2019, 42 office bearers are outsiders, whereas in another petition, out of 77 office bearers, 16 are outsiders. It is further submitted that as per the decision rendered by the Hon'ble Supreme Court in the case of State Bank of India Staff Association and another (supra), there is no obligation on the part of the respondent Corporation to negotiate with the office bearers who are outsiders and therefore none of the rights of the petitioner unions has been violated and no prejudice is caused to the petitioner unions.
13. Learned counsel Mr. Patel has referred the decision rendered by the Hon'ble Supreme Court in the case of State Bank of India Staff Association (supra) and submitted that the Hon'ble Supreme Court has held that Sections 6 and 22 of the Act of 1926 specify that ordinary or temporary member Page 9 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT may become office bearer but the said Sections do not provide any right to such members of entering into any kind of negotiations/dialogue with the management and management would not be under obligation to negotiate with such office bearers of the union who are no longer in employment. It is further submitted that there are other office bearers who are presently in employment with the respondent Corporation and therefore representation of the petitioners union would not be affected because of the said decision.
14. Learned counsel Mr. Patel further submits that the constitution and the rules of the concerned petitioner unions bind the members of the union and it is a contract between the members of the union, which is not binding to the respondent Corporation.
15. It is further submitted that though the decision rendered by the Hon'ble Supreme Court in the case of State Bank of India Staff Association and another (supra) was prior to the amendment made in Section 22 of the Act of 1926, because of Section 6(e) of the Act of 1926, the said decision would be applicable even after the amendment. It is, therefore, urged that both these petitions be dismissed.
16. Having heard the learned advocates appearing for the parties and having gone through the Page 10 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT material placed on record, it has emerged that petitioners are registered unions and they are having their own constitution and rules. Office bearers of the petitioner unions are appointed as per their constitution and rules.
17. The question which is raised for consideration before this Court in both these petitions is, as to whether the petitioner unions can appoint retired employees and/or outsiders as office bearers of the unions or not? Further, if a retired employee and/or an outsider is elected/ appointed as office bearer of the Union, whether the respondent Corporation is under an obligation to negotiate with such office bearer?
18. For considering the aforesaid questions, relevant provisions of the Act of 1926 are required to be considered.
18.1.Section 2(g) provides the definition of 'trade dispute', which reads as under:
"(g) "trade dispute" means any dispute between employers and workmen or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person, and "workmen" means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises; and"Page 11 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT
18.2.Section 2(h) defines 'Trade Union', which reads as under:
"(h) "Trade Union" means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions:"
18.3.Section 6 of the Act of 1926 provides as under:
"6 Provisions to be contained in the rules of a Trade Union. --A Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following matters, namely:--
(a) the name of the Trade Union;
(b) the whole of the objects for which the Trade Union has been established;
(c) the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are lawfully applicable under this Act;
(d) the maintenance of a list of the members of the Trade Union and adequate facilities for the inspection thereof by the 11 [office-bearers] and members of Trade Union;
(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Page 12 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT Trade Union is connected, and also the admission of the number of honorary or temporary members as 11 [office-bearers] required under section 22 to form the executive of the Trade Union;
2[(ee) the payment of a minimum subscription by members of the Trade Union which shall not be less than--
(i) one rupee per annum for rural workers;
(ii) three rupees per annum for workers in other unorganised sectors; and
(iii) twelve rupees per annum for workers in any other case;]
(f) the conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members;
"(ff) the termination of membership of the Trade Union of persons whose subscription is in arrears for a period exceeding six months or for such lesser period as may be provided in the rules;"
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members of the executive and the other 11 [office- bearers] of the Trade Union shall be 13 [elected] and removed;
4[(hh) the duration of period being not more than three years, for which the members of the executive and other office-bearers of the Trade Union shall be elected;]
(i) the safe custody of the funds of the Trade Union, an annual audit, in such manner as may be prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the 11 [office-bearers] and members of the Trade Union; and
(j) the manner in which the Trade Union may be dissolved.
Page 13 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT18.4.Section 21A reads thus:
"[21A. Disqualification of office- bearers of Trade Unions.- (A) A person shall be disqualified for being chosen as, and for being, a member of the executive or any other office-bearer of a registered Trade Union if-
(i) he has not attained the age of eighteen years;
(ii)he has been convicted by a Court in India of any offence involving moral turpitude and sentenced to imprisonment, unless a period of five years has elapsed since his release.
(2) Any member of the executive or other office-bearer of a registered Trade Union who, before the commencement of the Indian Trade Unions (Amendment) Act, 1964, has been convicted of any offence involving moral turpitude and sentenced to imprisonment, shall on the date of such commencement cease to be such member or office-bearer unless a period of five years has elapsed since his release before that date.] [(3)In its application to the State of Jammu and Kashmir, reference in sub-
section (2) to the commencement of the Indian Trade Unions (Amendment) Act, 1964 (38 of 1964), shall be construed as reference to the commencement of this Act in the said State.]"
18.5.Section 22 provides as under:
"[22. Proportion of office-bearers to be connected with the industry.-- (1) Not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an Page 14 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT industry with which the Trade Union is connected: Provided that the appropriate Government may, by special or general order, declare that the provisions of this section shall not apply to any Trade Union or class of Trade Unions specified in the order. Explanation.--For the purposes of this section, "unorganised sector" means any sector which the appropriate Government may, by notification in the Official Gazette, specify.
(2) Save as otherwise provided in sub-
section (1), all office-bearers of a registered Trade Union, except not more than one-third of the total number of the office-bearers or five, whichever is less, shall be persons acutally engaged or employed in the establishment or industry with which the Trade Union is connected. Explanation.--For the purposes of this sub-section, an employee who has retired or has been retrenched shall not be construed as outsider for the purpose of holding an office in a Trade Union. (3) No member of the Council of Ministers or a person holding an office of profit (not being an engagement or employment in an establishment or industry with which the Trade Union is connected), in the Union or a State, shall be a member of the executive or other office-bearer of a registered Trade Union.]"
19. In the case of State Bank of India Staff Association and another (supra), the Hon'ble Supreme Court has observed and held in paragraphs 8 and 9 as under:
"8. Section 6 with its clause (e) of the Act reads thus:-Page 15 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT
6. Provisions to be contained in the rules of a Trade Union.- A Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act and the rules there of provide for the following matters, namely-
(a) - (d).....
(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the admission of the number of honorary or temporary member as (Office bearers) required under Section 22 to form the executive of the Trade Union.
(f)- (j)............
Relevant part of Section 22 reads as under:-
"22. Proportion of officers to be connected with the industry:- Not less than one-half of the total number of the (office bearer) of every registered Trade Union shall be persons actually engaged or employed in an industry with which the Trade Union is connected."
It may be noted that Section 6 contemplates two essential requirements. Firstly, the executive of the Trade Union must be constituted in accordance with the provisions of the Act and unless it is so constituted a Trade Union shall not be entitled to the registration under the Act and Secondly, the rules of such a Trade Union should provide for the matters enumerated in clauses (a) to (j) of Section 6. Clause (e) of Section 6 of the Act provides for admission of honorary or temporary members (office bearers) also in accordance with Section 22 of the Act. that being so, the rules of the Trade Page 16 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT Union according to clause (e) of Section 6 should provide for the admission of ordinary members who shall be persons actually engaged or employed in the industry with which the Trade Union is connected and also to provide for the admission of number of honorary or temporary members as office bearers as required by Section 22 of the Act with a view to form the executive of the Trade Union. A reading of Section 22 reproduced above would show that it mandates that at least one half of the total number of office bearers of the Trade Union should be persons actually engaged or employed in a industry with which the Trade Union is connected. That means the number of actually employed office bearers should in no case be less than half of the total number of office bearers. The provisions contained in Section 6 and 22 reproduced above relate to the registration of a Trade Union and constitution of the executive of the said Union. The provisions of Sections 6 and 22 indicate that an ordinary or a temporary member may be an office bearer but they no where provide that such a member shall also have a right to negotiate with the management or the management would be under an obligation to negotiate with an office bearer of the Union who is no longer in the employment of the Industry which the Trade Union is connected.
9. Now coming to the contention that the scheme of Section 6 read with 22 of the Act is similar to that of Section 36 of the Industrial Disputes Act 1947 in terms of which a workman is entitled to be represented in any proceedings under the Act by any member of the executive or other office bearers of a registered Page 17 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT Trade Union , even though he is no longer in the employment of the Industry, it may be pointed but Section 3 is a complete answer to this submission. It may be seen that Section 3 of the Industrial Disputes Act provides for the constitution of Works Committee consisting of the representatives of the employers and workman engaged in the establishment. It is significant to note that it clearly provides that the representatives of workman the workman engaged in the establishment and in consultation with the Trade Union if any, registered under the Indian Trade Unions Act. 1926. under the Industrial Disputes Act, the Works Committee so constituted is enjoined with the duty to promote measure for securing and preserving amity and good relations between the employer and workman and, to that end, to comment upon the matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters. It, therefore, becomes clear that under the Industrial Disputes Act the representatives of the workman have to be chosen only from amongst the workmen already engaged in the establishment and not an outsider or an ex-workman of the establishment concerned or any other person. It would, therefore, not be correct to contend that having regard to the provisions of Section 36 read with Section 3 of the Industrial Disputes Act an honorary/temporary member of a private individual is entitled to represent the workman in the matters aforesaid. While referring to the provisions of Section 36 of the Industrial Disputes Act, the provisions of Section 3 of the said Act can not be Page 18 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT over- looked or ignored. The provisions of the Trade Union Act, 1926 have to be harmonized with the relevant provisions of the Industrial Disputes Act, 1947. It has also to be kept in view that the industrial Disputes Act is a much later Act, which besides other matters, specifically concentrates on harmonious relations between the employer and workmen, the disputes between the two and settlement thereof by negotiations with the assistance of their respective representatives. It is for all these reasons and as stated in their counter- affidavit by the respondents, that a practice and usage is followed by the respondent-Bank since decades whereby only serving employees represent the Union in bilateral discussions with the Bank and that this practice has been recognized by the Staff Federation also which is a body to coordinate the activities of various Unions/Associations of the employees of the State Bank of India and its associate Banks. This stand of the respondents has been fully supported by the Staff Federation - intervener."
20. Thus, from the aforesaid provisions contained in Section 6 of the Act of 1926, it is clear that it contemplates 2 essential requirements; firstly, the executive of the Trade Union must be constituted in accordance with the provisions of the Act and unless it is so constituted, a Trade Union shall not be entitled to the registration under the Act. Secondly, the rules of such a Trade Union should provide for the matters enumerated in Clauses (a) to (j) of Section 6. It Page 19 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT is further clear that Section 6(e) of the Act provides for admission of honorary or temporary members (office bearers) also in accordance with Section 22 of the Act.
20.1.Section 22 of the Act of 1926 stipulates that all office bearers of a registered Trade Union shall be persons actually engaged or employed in the establishment or industry with which the Trade Union is connected except not more than 1/3rd of the total number of office bearers or 5, whichever is less. It is also explained that an employee, who has retired or has been retrenched shall not be construed as outsider for the purpose of holding an office in a Trade Union.
21. Thus, from the aforesaid provisions contained in the Act of 1926, it is amply clear that an ordinary or a temporary member may be an office bearer but it is not provided in the said provisions that such a member shall also have a right to negotiate with the management or the management would be under an obligation to negotiate with an office bearer of the union, who is no longer in the employment of the industry with which the trade union is connected.
22. The Hon'ble Supreme Court in the case of Page 20 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT State Bank of India Staff Association and another (supra), considered the provisions contained in Sections 6 and 22 of the Act of 1926. It is submitted by learned advocates appearing for the petitioners that the said decision was rendered by the Hon'ble Supreme Court prior to the amendment made in Section 22 of the Act. It is contended that explanation, which is now inserted by way of an amendment in the year 2002 was not provided in Section 22 as it stood before the amendment. Thus, it is contended by learned advocates appearing for the petitioner that the decision rendered by the Hon'ble Supreme Court in the aforesaid case would not be applicable in the facts of the present case.
22.1. However, the aforesaid contention taken by the learned advocates appearing for the petitioners is misconceived. If the observation made by the Hon'ble Supreme Court in paragraph 8 of the said decision is carefully seen, it is clear that an ordinary or a temporary member can be appointed as an office bearer of the Trade Union but such a member has no right to negotiate with the management or the management is not under an obligation to negotiate with an office bearer of a Union, who is no longer in the employment of the industry. Thus, the aforesaid observations are applicable to the facts of the Page 21 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT present case also.
23. It is the specific case of the respondent Corporation that in the first petition, out of 150 office bearers of different Trade Unions, 42 office bearers are outsiders, whereas in the second petition, out of 77 office bearers of the concerned Trade Unions, 16 office bearers are outsiders. Thus, the concerned office bearers, who are not the outsiders, can negotiate with the respondent Corporation on behalf of the concerned Trade Unions and therefore no prejudice is caused to the petitioners.
24. It is also contended by learned advocates for the petitioners while placing reliance upon Section 21-A of the Act of 1926 that the said provision provides for disqualification of office bearers of a Trade Union. The office bearers of the Trade Union can be disqualified if he falls under any of the Clauses mentioned in Section 21- A of the Act and not otherwise. Thus, it is not open for the respondent Corporation to add new clause in the provisions of the Act of 1926.
24.1. However, this contention is also misconceived. The respondent Corporation has not added new clause in the aforesaid provisions of the Act as contended by the learned advocates for Page 22 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT the petitioners. It is clear that an outsider within the limites provided under Section 6(e) read with Section 22 of the Act of 1926 can be appointed as an office bearer of the Trade Union. However, such office bearers cannot negotiate with the management as observed by the Hon'ble Supreme Court in the aforesaid decision.
25. The decision rendered by the Karnataka High Court in the case of Government Tool Room and Training Centre's Supervisory and Officers Association and another (supra), would not be applicable to the facts of the present case. In the aforesaid case, the registration was refused on the ground that the supervisors and managers are not 'workman' within the meaning of Section 2(s) of I.D. Act and therefore the Karnataka High Court dealt with the provisions with regard to the registration of the Trade Union.
26. In view of the aforesaid discussions, it can be said that the petitioners Union can appoint retired employees and/or outsider as office bearers of the Trade Union within the limits prescribed under Section 6(e) read with Section 22 of the Act of 1926. However, the respondent Corporation is not under an obligation to negotiate with such office bearers as observed by the Hon'ble Supreme Court in para 8 of the Page 23 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020 C/SCA/18289/2019 CAV JUDGMENT judgment rendered in the case of State Bank of India Staff Association and another (supra).
27. Thus, for the foregoing reasons, the petitions are partly allowed. The impugned communications of the respondent Corporation to the extent of setting aside the appointment of the office bearers of the petitioners Union qua outsiders and/or retired employees are set aside and remaining part of the said communications is not interfered with by this Court. Rule is made absolute to the aforesaid extent. Direct service is permitted.
Sd/-
(VIPUL M. PANCHOLI, J) Caroline/Jani Page 24 of 24 Downloaded on : Tue Jun 30 23:49:05 IST 2020