Madhya Pradesh High Court
J.K. Industries Ltd Thr vs Representative Union Madhya Pradesh ... on 8 June, 2015
1 WP.3345/2015 & WP. 3351/2015
08.06.2015
Shri Kuldeep Bhargava and Shri B.P.Singh, Advocates for
the petitioners.
Shri M.P.S. Raghuvanshi with Shri Ravi Jain, Advocates
for the respondent - union.
IA Nos. 3677/15 and 3578/2015 for urgent hearing are taken up and allowed.
Heard.
In both the WPs, the impugned orders are same. Issue notice to the respondent No.1 on payment of process fee within seven days, failing which this petition shall stand dismissed without reference to the Court.
Parties are heard on the question of interim relief. Learned counsel for the petitioners submit that respondent union earlier preferred an application seeking recognition on 26.10.2013. The said application was decided on 23.05.2014. This order of Registrar dated 23.05.2014 was put to test before Industrial Court in Appeal No. 10/2014. The Industrial Court by order dated 22.08.2014 set aside the order dated 23.05.2014 with certain directions. The impugned part of such direction was challenged in WP No. 6087/2014 ( decided on 13.11.2014). A fresh application seeking recognition is filed by respondent-union on 02.12.2014. As per second proviso to Section 17 of MPIR Act, 1960, this application could not have been entertained because it 2 WP.3345/2015 & WP. 3351/2015 is filed within one year from the date of decision on earlier application.
Apart from this, it is contended that the respondent union is not registered in Madhya Pradesh and as per Registrar's own order dated 01.10.2011 (page 191 in WP No. 3351/15) the application was not maintainable. It is also argued that the direction for voting through secret ballot is impermissible. Certain judgments are cited in this regard.
Per Contra, Shri Raghuvanshi and Shri Jain contend that earlier application seeking recognition was erroneously filed under section 13 of MPIR Act. Admittedly, under section 13 denovo status of representative union cannot be sought for. Thus, the present application dated 02.12.2014 must be treated as first application under section 17 of the MPIR Act. Putting it differently, it is contended that it cannot be treated as repeat application. Reliance is placed on 1995 SCC (L&S) 656 ( Food Corporation of India Staff Union Vs. Food Corporation of India and others) and SCC-1993-SUPP1-229 (International Airport Authority of India Workers Union Vs. International Airports Authority of India).
I have heard the learned counsel for the parties on the question of interim relief.
In M.P. question of recognition of another union in place of existing representative union is dealt with under Section 17 of 3 WP.3345/2015 & WP. 3351/2015 MPIR Act. Rule 17 of MPIR Rules, 1961 also prescribes the procedure in this regard.
Bombay High Court while considering the parallel provision of the Act in 1983 Lab IC 1034 (Maharashtra General Kamgar Union Vs. Mazdoor Congress) opined as under :-
"The order granting recognition or cancellation of such recognition has a number of effects more particularly pertaining to the rights of the concerned unions. The recognition of a union granted certain privileges while cancellation of that recognition would nullify these priviliges. Thus, an enquiry under section 13 of the Act of 1971 may result in affecting the rights of a recognized Union. Such an enquiry would at least be a quasi-judicial enquiry and it will be necessary to decide as to whether in the absence of any specific provisions of secret ballot, it would be possible for 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, one will have to take into account as to what is the primary use of a secret ballot. In ordinary parlance, a secret ballot is method of voting. This is a process of an election while the enquiry contemplated by Section 13 of the Act, 1971 is a fact finding process. Therefore, a secret ballot cannot be used as a process where a quasi- judicial enquiry regarding the finding of certain facts is contemplated."
Similar view is taken by Bombay High Court in Mazdoor Congress Vs. S.R. Shinde, 1982 (45) 243. The Apex Court in AIR 1990 SC 1159 (Automobile Products of India Employees Union 4 WP.3345/2015 & WP. 3351/2015 Vs. Association of Engineering Workers, Bombay) opined as under :-
"The grant of recognition to a Trade Union by use of secret ballot is alien to the Act. Such method of granting recognition is also violative of Sections 10, 11, 12, 14 and 19 of the Act."
Accordingly, the Industrial Court in 2005 M.P.L.S.R. 300 (Audyogik Shramik Sangh Vs. General Secretary, Charma Udyog Shramik Karamchari Union and Another) ( by Mr. Justice S.P. Khare, President) opined that secret ballot system cannot be permitted.
The judgment of FCI (supra) is of no assistance to the other side because para 2 of the judgment makes it clear that it is passed on consent of the parties. Similarly, judgment of International Airport Authority (supra) has no application in the facts and circumstances of this case. Prima facie, I find force in the argument of petitioners counsel that secret ballot system is impermissible as per MPIR Act and Rules made thereunder.
Considering the aforesaid, till next date of hearing, the impugned order in these petitions shall remain stayed.
Notices be made returnable in the second week of July, 2015.
CC as per rules.
(Sujoy Paul) V.Judge sarathe