Bombay High Court
Sunflag Iron & Steel Mazdoor Sabha vs The Member on 10 December, 2008
Author: B.P.Dharmadhikari
Bench: B.P.Dharmadhikari
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3202/2008
Sunflag Iron & Steel Mazdoor Sabha,
Near First Aid Centre (Shish Mahal)
Bhandara Road, Wardhi, Tq. Mohadi,
Distt. Bhandara, through its
General Secretary ...Petitioner
...versus...
1. The Member,
Industrial Court, Nagpur.
2. The Assistant Registrar under
Bombay Industrial Relations Act, 1946,
Bhonsala Chamber, Civil Lines,
Nagpur.
3. Bhartiya Janta Kamgar Mahasangh,
Tilak Putla Karyalaya, Mahal, Nagpur,
Through its General Secretary, ...Respondents
====================================
Shri D.S.Thakur, Adv. for the petitioner
Shri T.R.Kankale, A.G.P. for Respondent Nos. 1 & 2
Shri R.N.Sen, Advocate, for respondent No. 3
====================================
CORAM : B.P.Dharmadhikari, J.
CLOSED FOR JUDGMENT ON : 03.12.2008 JUDGMENT PRONOUNCED ON :10.12.2008 ✁✄✂✆☎✞✝✠✟☛✡☞✟✍✌✏✎✏✑ ::: Downloaded on - 09/06/2013 14:08:07 ::: ✒
1. Petitioner Union before this Court has challenged the order passed by Member, Industrial Court (Respondent no. 1 herein) dated 13th June 2008 in Appeal (BIR) 2/2008 under Section 20 of Bombay Industrial Relations Act,1946( BIR Act-for short); upholding the order dated 9-5-2008 rejecting its application dated 19/3/2008 & passed by the Assistant Registrar i.e. Respondent no. 2. That application was preferred by Petitioner for rejection of the main proceedings i.e. an Application under Section 16 of present Respondent no. 3 Union for its registration in place of petitioner Union as Representative Union. Rejection was sought on the ground that Respondent no. 3 Union has also to show compliance with conditions prescribed under Section 23 of BIR Act in view of Section 13(4) thereof.
2. Main proceedings are still pending before Respondent no. 2 and dispute briefly narrated above does not warrant mentioning of all facts. Petitioner as also ::: Downloaded on - 09/06/2013 14:08:07 ::: ✓ respondent no. 3 are Unions registered under The Trade Union Act,1926. Petitioner is registered as Representative Union under BIR Act since 1998 for local area of Mohadi in Bhandara District in Engineering Industry where plant of M/s Sunflag is situated. On 18/11/2003 the Respondent No. 3 moved application under Section 16 read with Rule 14-A of the BIR Rules in prescribed form "F-A" for registering itself in place of Petitioner as a Representative Union contending that it has more & largest membership during the relevant period. It appears that in W.P. 4802/2007 filed by Respondent no. 3 the Hon'ble Division Bench passed orders on 19/12/2007 for expeditious disposal & then Respondent no. 2 took up the matter.
There after Petitioner procured the copy of the Constitution of Respondent no. 3 and on 19/3/2008 moved an application for dismissal of the proceedings on the ground that it did not contain mandatory provisions as required by Section 23(1)(i) to (viii) of BIR Act on the date of filing of ::: Downloaded on - 09/06/2013 14:08:07 ::: ✔ application for registration i.e. 18/11/2003. These mandatory provisions were incorporated subsequently on 1/1/2004 by amendment in that Constitution and it did not have retrospective effect. On 9/5/2008 Respondent No. 2 rejected this application of Petitioner & then Respondent No. 1 Industrial Court dismissed its Appeal on 13/6/2008.
It is to be noticed that said Appeal was erroneously filed under Section 24A of B.I.R. Act and it ought to have been under Section 20.
3. I have heard Advocate S.D. Thakur for Petitioner, Advocate R.N. Sen for Respondent No. 3, learned A.G.P. T.R. Kankale for Respondent No. 1 & 2.
Learned Counsel invited attention to order dated 24/7/2008 to point out that petition is to be disposed of finally at the stage of admission. Accordingly Rule made returnable forthwith & heard finally by consent.
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4. It is apparent that the proceedings before respondent No. 2 are proceedings for registration under Ss.12 ,13, 14 & Section 16 of B.I.R. Act. Relevant part of said sections read: --
"12. Maintenance of registers and approved list: -- It shall be the duty of the Registrar to maintain in such forms as may be prescribed --
(a) registers of unions registered by him under the provisions of this Act, and
(b) a list of approved unions."
"13. Application for registration.
(1) Any union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it so applies under this section a membership of not less than 25 percent of total number of employees employed in any industry in any local area may apply in the prescribed form to the Registrar for registration as a Representative Union for such industry in such local area.
(2) If in any local area no Representative Union has been registered in respect of an industry a union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it so applies under this section a membership of not less than 5% of the ::: Downloaded on - 09/06/2013 14:08:07 ::: ✖ total number of employees employed in such industry in the said area may apply in the prescribed form to the Registrar for registration as a Qualified Union for such industry in such local area.
(3) If in any local area, neither a Representative Union nor a Qualified Union has been registered in respect of an industry, a union having the membership of not less than 15 percent of the total number of employees employed in any undertaking in such industry in the said area and complying with the conditions specified in section 23 as necessary for being placed on approved list may apply in prescribed form to the Registrar for registration as a Primary Union for such industry in such local area.
(4) Notwithstanding anything contained in this section, if a union makes a fresh application for registration as a Representative Union, Qualified Union, or as the case may be, Primary Union, before the previous application for such registration has been finally disposed of by the Registrar, the Registrar shall not entertain such application."
"Section 14. Registration of Union.
On receipt of an application for Union for registration under Section 13 and on payment of the free prescribed, the Registrar shall, if after holding such inquiry is reducing he comes to the conclusion that the conditions requisites for registration specified in said section are satisfied ::: Downloaded on - 09/06/2013 14:08:07 ::: ✗ and that the Union is not otherwise disqualified for registration, enter the name of the Union in the appropriate register maintained under Section 12 and issue is certificate of registration in such form and as may be prescribed:".
Though other part of Section 14 are not relevant here, it may be noted that in any local area there cannot be more than one registered Union in respect of the same industry at any time.
ig It also states that Registrar shall register in respect of any industry a union fulfilling the conditions necessary for registration as a Representative Union in preference to one not fulfilling the said conditions and same is extended even to Qualified Union. If there are two or more unions fulfilling the conditions necessary for registration, union having the largest membership of employees employed in the industry is to be registered.
Section 16 is the machinery available for registration of another Union in place of existing registered Union.
Provisions of Section 15 are also essential for proper appreciation of the controversy and same are: --
::: Downloaded on - 09/06/2013 14:08:07 :::✘ "Section 15. Cancellation of registration.
The Registrar shall cancel the registration of a union --
(a) If the Industrial Court directs that registration of such Union shall be cancelled;
(b) if after giving notice to such Union to show cause why its registration should not be cancelled and after holding such inquiry, if any, as he deems fit, he is satisfied --
(i) that it was registered under mistake, misrepresentation or fraud; or
(ii) that the membership of the Union has for continuous period of three calendar months fallen below the minimum required under section 13 for its registrations:
Provided that where a strike or a closure not being an illegal strike or a closure under this Act in an industry involving more than a third of the employees in the industry in the area has extended to a period exceeding 14 days in any calendar month, such month shall be excluded in computing the said period of three months:
Provided further that the registration of a Union shall not be cancelled under the provisions of this sub-clause unless its membership for the calendar month in which the show cause notice under the section was issued was less than such minimum; or
(iii) that the registered Union being a ::: Downloaded on - 09/06/2013 14:08:07 ::: ✙ Primary Union has after registration failed to observe any of the conditions specified in section 23; or
(iv) that the registered Union is not being conducted bonafide in the interest of employees but in the interest of employers to the prejudice of the interest of the employees; or
(v) that it has instigated, aided or assisted the commencement or continuation of a strike or a stoppage which has been held or declared to be illegal;
(c) if its registration under the Indian Trade Unions Act, 1926 (XVI of 1926) is cancelled."
5. Section 13 therefore shows that under Section 12 (a) three types of unions can be registered. The first one is Representative Union, the status that is presently occupied by Petitioner and craved by Respondent No 3.
Immediately next lower status is as Qualified Union. Both these unions are registered for entire industry in particular area. In absence of these unions only, question of registration of Primary Union arises and such Primary Union ::: Downloaded on - 09/06/2013 14:08:07 ::: ✚✜✛ is also recognised for industry in local area but then it has to have a membership of not less than 15 percent in any undertaking in such industry. It is to be noticed that Qualified Union is expected to have five percent membership in the industry. Representative Union has to have 25 percent membership. This percentage of either 5 percent or 25 percent is in relation to total number of employees in such industry. Section 13 (1) permits a union with membership of not less than 25 percent of total number of employees employed in any industry in any local area for whole period of three calendar months immediately preceding the calendar month in which application is submitted, to be recognised as a "Representative Union" for such industry in such local area. Its subsection (2) permits any union which has during such paid a membership of not less than 5 percent to apply for and to be registered as a "Qualified Union" for such industry in such local area in the absence of a Representative Union. When there is neither a ::: Downloaded on - 09/06/2013 14:08:07 ::: ✢ Representative Union nor a Qualified Union, a union with not less than 15 percent membership of total number of employees employed in any undertaking in such industry in said area and complying with conditions specified in section 23 can be registered as "Primary Union" for such industry in such local area. Section 23 is in chapter IV and the heading of chapter is "Approved Unions". It permits Registrar to hold appropriate inquiry and to accept a union for being entered into the approved list, if he is satisfied that such union has made rules and provisions of said rules are being duly observed by union. The Rules of such union are required to provide for membership subscription of not less than 50 Paisa per month, meeting of its executive committee at intervals of not more than three months, recording of resolutions of executive or general body in minute book, audit by government appointed auditor once in each financial year, submission of industrial dispute not settled in conciliation to arbitration and to not to refuse ::: Downloaded on - 09/06/2013 14:08:07 ::: ✣✥✤ arbitration under Chapter XI, to not to sanction, resort to or support any strike without exhausting all methods for settlement of such industrial dispute or unless circumstances mentioned in Section 79 (1) (h) proviso exist and majority members by ballot vote in favour of strike, to not to sanction, resort to or support illegal stoppage or any go slow. Registrar has been given discretion to refuse to enter union in approved list if satisfied that it is not being conducted bonafide in the interest of its members but to their prejudice. In contrast to Section 13, Section 23 does not prescribed any percentage of minimum membership. If there are more than one claimants for this purpose, union with largest membership is entered as Approved Union and there cannot be more than one approved union in respect of any industry in local area. Section 24 is provision which permits Registrar to remove name of Union from approved list and one of the contingencies therefor is failure to observe conditions specified in Section 23. Section 24A ::: Downloaded on - 09/06/2013 14:08:07 ::: ✦★✧ permits an appeal to Industrial Court in the matter, Section 25 prescribes rights of officers of approved unions and section 26 makes a provision for legal aid to approved unions. One relevant aspect to be noticed is that Section 23 does not contemplate registration of applicant union as approved union and it no where uses the word "registration"
or "register". Subsection (1), first proviso thereto and subclauses (a) to (c) of its second proviso, subsection (4);
all use word "enter". Thus, a trade union as mentioned under section 3 (38) of B.I.R. Act can get its name "entered" by following procedure prescribed under section
23. However, this is not registration of union for the purposes of B.I.R. Act as contemplated by its section 3 (30).
This registration is prescribed for by chapter III which speaks of Registration of Unions. Section 12 reproduced above also strengthens this difference between registered union and approved union. Thus provisions of Chapter III dealing with registration of unions and Chapter IV dealing ::: Downloaded on - 09/06/2013 14:08:07 ::: ✩✫✪ with approved unions are two distinct and separate measures put by legislature in B.I.R. Act.
6. In this situation whether requirements of Section 23 can also be extended to Representative Union or Qualified Union? Section 13 or then entire Chapter III nowhere expresslyig contains any provision for such extension. Even in Chapter IV there is no such indication.
Section 13 (3) also does not require a union applying for registration as Primary Union to be Approved Union. It only states that such a applicant union has to comply with conditions specified in Section 23. If arguments of Petitioner are accepted and need of fulfillment of conditions mentioned in Section 23 is extended to Representative Union or then to Qualified Union, the intention of legislature apparent from other provisions of B.I.R. Act gets defeated. Section 15 specifically provides that a Primary Union failing to observe any of the conditions specified in ::: Downloaded on - 09/06/2013 14:08:07 ::: ✬✮✭ Section 23 after its registration is liable to have its registration cancelled. However that is not the contingency provided for cancellation of registration of either Representative Union or Qualified Union. Thus only because of the fact that Primary Union is at the lowest strata of Registered Unions in scheme of B.I.R. Act and hence, minimum standards expected of it must be fulfilled even by other Registered Unions placed at higher pedestal is not logical as it defeats the scheme of prescribing two separate chapters and distinct status/rights conferred upon Registered Unions and Approved Unions.
7. Another important provision which has bearing on this interpretation is Section 73A.
"73A. Reference to arbitration by unions: -- Notwithstanding anything contained in this Act an employer or a registered union which is a representative of employees and which is also an approved union may refer any industrial dispute for arbitration to the Industrial Court:::: Downloaded on - 09/06/2013 14:08:07 :::
✯✜✰ Provided that no such dispute shall be referred to the Industrial Court: --
(i) after two months from the date of completion of proceedings before the Conciliator,
(ii) where the registered union or the employer, as the case maybe, has offered in writing before the Conciliator to submit the dispute to arbitration under this Act and the employer or the union, as the case maybe, has not agreed to do so;
(iii) unless the dispute is first submitted to the Conciliator and the conciliation proceedings are completed or the Conciliator certifies that dispute is not capable of being settled by conciliation;
Provided further that no such dispute shall be referred to the Industrial Court where under any provision of this Act it is required to be referred to the Labour Court for its decision."
Hence, reference contemplated by this provision can be made only by a registered union which is representative of employees and also an approved union. Section 3 (30) defines "registered union" as union registered under B.I.R. Act. Section 3 (2) defines "approved union" to mean a union on approved list and subsection (1) defines "approved ::: Downloaded on - 09/06/2013 14:08:07 ::: ✱✳✲ list" to mean list of approved unions maintained by the Registrar under Section 12. Section 3 (32) defines "representative of employees" to mean a representative of employees entitled to appear or Act as such under section 30 which reads as under: --
"30. Representative of employees: -- Subject to the provisions of section 33A, the following shall be entitled to appear or act in the order of preference specified as the representative of employees in an industry in any local area --
(I) a representative union for such industry;
(II) a qualified or primary union of which the the majority of employees directly affected by the change concerned are members;
(III) any qualified or primary union in respect of such industry authorised in the prescribed manner in that behalf by the employees concerned;
(IV) the Labour officer if authorised by the employees concerned;
(V) the persons elected by the employees in accordance with the provisions of section 28 or where the proviso to subsection (1) thereof applies, the employees themselves;
(VI) the Labour officer:::: Downloaded on - 09/06/2013 14:08:07 :::
✴✥✵ Provided --
firstly, that the persons entitled to appear or act under clause (V) may authorise any qualified or primary union in respect of such industry to appear or act instead of them:
secondly, that where the Labour officer is representative of the employees, he shall not enter in to any agreement under section 44 or settlement under section 58 unless the terms of such agreement or settlement, as the case may be, are accepted by them in the prescribed manner:
thirdly, where in any proceedings the person entitled to appear or act under clause (V) are more than 5, the prescribed number elected from amongst them in the prescribed manner shall be entitled to appear or act instead."
Thus Section 30 nowhere uses the phrase "approved union"
and does not accept it to be representative of employees. It is apparent that only particular category of "Representative of employees" is permitted to take recourse to section 73A of B.I.R. Act. Section 73A contemplates a union registered as Representative of employees and at the same time it has also to be an Approved Union. Thus such approved union has also to be a registered union to enable it to have a ::: Downloaded on - 09/06/2013 14:08:07 ::: ✶✜✷ reference made as contemplated by this section. In other words, it must be registered under section 13 above for that purpose. Union on Approved List fulfilling necessary requirements can therefore be registered as Representative Union or Qualified Union as the case may be, or as Primary Union, if there is no Representative Union or Qualified Union for such industry in said local area. It therefore follows that basically a "Union" satisfying certain standards & establishing its wide base amongst employees in entire industry has only been given this privilege. It therefore also implies that Representative Union or Qualified Union or Primary Union can also apply for and get their name entered on Approved List if they fulfil requirements of Section 23 but then, it is not mandatory. Had legislature intended a compulsion for Representative Union or Qualified Union to also fulfill conditions stipulated in Section 23, this provision of Section 73A imposing dual requirement would not have been necessary. In that ::: Downloaded on - 09/06/2013 14:08:07 ::: ✸✺✹ eventuality, there would not have been any rational in asking in Section 73A that such Representative or Qualified or Primary Union must also be an Approved Union.
8. In this view of matter, requirements of Section 23 for entering approved list cannot be extended and are not meant to be complied with by union applying for registration under Section 13 (1) or (2) of B.I.R. Act. No such inference can also be drawn after reading Section 13 (3) or then opening part of Section 14. Arguments on these lines advanced by Petitioner are not supported by language of either Section 13 or Section 14 and the same also militate with other provisions of B.I.R. Act as mentioned above. The argument that amendment incorporating conditions prescribed in Section 23 accepted by authorities comes into force only from 1/1/2004 and does not have retrospective effect from 18/11/2003 is therefore inconsequential.
Respondent No 3 Union cannot be denied consideration of ::: Downloaded on - 09/06/2013 14:08:07 ::: ✤✻✣ its claim under Section 13 (1) even if it does not or did not comply with those requirements. Respondent No 2 Assistant Registrar was clearly in error in holding that Respondent No 3 union has to comply with requirements of Section 23 if it is to be registered as Representative Union. But ultimately, he also dismissed the objection of Petitioner for different reasons. Consideration of this aspect and entire controversy by learned Member of Industrial Court is neither erroneous nor perverse.
9. Therefore, there is no merit in the petition.
Same is dismissed. Rule discharged however without any order as the costs.
JUDGE Rvjalit ::: Downloaded on - 09/06/2013 14:08:07 :::