Calcutta High Court
Hotel Hindusthan International ... vs Hotel Hindusthan International & Ors on 9 September, 2008
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
In Appeal from its Constitutional Writ Jurisdiction
Original Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Tapas Kumar Giri
A.P.O No. 454 of 2006
W.P.No. 2265 of 2005
Hotel Hindusthan International Karmachari Union
-Vs-
Hotel Hindusthan International & Ors.
And
A.P.O No. 469 of 2006
W.P.No. 2250 of 2005
Hotel Hindusthan International Karmachari Union
-Vs-
Hotel Hindusthan International Employees & Workers' Union & Ors.
For the Appellant : Mr. Bikash Ranjan Bhattacharya,Sr.Adv.
Mr. Soumya Majumder
For the Respondent No. 6 }
(In A.P.O.No. 454 of 2006) } Mr. Kalyan Bandyopadhyay,Sr.Adv.
& } Ms. Chaitali Bhattacharya
For the Respondent No. 1 }
(In A.P.O.No. 469 of 2006)
For the Respondents No. 1, 2 &3: Mr. Arunava Ghosh
(In A.P.O.No. 454 of 2006) Mr. Anant Kumar Shaw
Mr. Shaik Taj Mohammad
Mr. Prasun Mukherjee
Mr. Ravi Kumar Dubey
For the Respondents No. 4: Mr. Arunava Ghosh
(In A.P.O.No. 469 of 2006) Mr. Anant Kumar Shaw
Mr. Shaik Taj Mohammad
Mr. Prasun Mukherjee
Mr. Ravi Kumar Dubey
For the State: Mr. Ashis Kumar Das
Heard on : July 16, 2008; August 27,2008 and September 3, 2008 Judgment on : September 9, 2008.
ASHIM KUMAR BANERJEE.J:
Hotel Hindusthan International is a five star hotel situated in the southern part of Calcutta. There were 406 employees at the relevant time. The appellant is a registered trade union being affiliated to Centre of Indian Trade Unions ("CITU") whereas the respondent no. 4 in A.P.O.No. 454 of 2006 is another registered trade union being affiliated to Indian National Trade Union Congress ("INTUC"). Both the unions claimed that they had the majority support of the workers. Disputes arose in September, 2003 when the appellant raised an industrial dispute with regard to payment of bonus. Management did not adhere to their charter of demand as according to the management they had already entered into a bipartite settlement with the other union being the respondent no. 4 and all 406 numbers of employees accepted the benefit derived out of the said bipartite settlement. The appellants resorted to demonstration. The management approached the learned Single Judge by filing a writ petition as against the Police Authority alleging Police inaction. The learned Single Judge by judgment and order dated April 27, 2004 disposed of the writ petition by observing that the agitating employees should resort to raising industrial dispute by referring the matter to the Labour Court. The appellant preferred an appeal. The Division Bench disposed of the appeal vide order dated April 6, 2005. The relevant extract is quoted below :-
"While pressing the appeal the learned Senior Counsel for the appellant Mr. Bhattacharyya says that he would be satisfied if direction is given to the Registrar, Trade Union to consider the application made under Section 28A by the appellants Union. He does not however, press for any other relief excepting this. In that view, a direction is given to the Registrar that if an application is made under Section 28A of the Trade Unions Act, 1926, such application shall be decided in accordance with law treating the hotel as "industry". We hope that if such application is made it shall be disposed of within six months from the making thereof"
In terms of the said order the Registrar of Trade Union convened a meeting of both the rival unions. The Registrar, however, did not invite the management in the said meeting. After hearing the rival contentions of both the unions the Registrar passed a reasoned order appearing at pages 51 to 53 of the Paper Book. The Registrar observed that the appellant did not have the right under Section 28A to apply for being recommended as sole bargaining agent under Section 28A of the Trade Union Act as the concerned hotel was neither an "industrial establishment" nor a "class of industry". After observing as such, the Registrar held that since the Hon'ble High Court directed him to consider an application under Section 28A he would have to comply such order. The Registrar asked the management to recognise appellant as the sole bargaining agent for two years with effect from January 1,2006 vide communication dated December 15, 2005 appearing at page 54 of the Paper book.
Being aggrieved and dissatisfied with the reasoned order of the Registrar the management as well as the Respondent No. 4 filed two different writ petitions being W.P.No. 2250 of 2005 and W.P.No. 2265 of 2005. The learned Single Judge allowed the writ petition of the management by quashing the said order of the Registrar on the ground that the management was not given any hearing. The learned Single Judge rejected the contention of the State that the management did not have any right of audience in connection with the proceeding for selection of the sole bargaining agent under Section 28A. His Lordship also allowed the other writ petition filed by the respondent no. 4 by holding that Section 28A did not any application in the instant case as it was neither an "industrial establishment" nor a "class of industry". Being aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge allowing both the writ petitions the appellants filed the above appeals.
Mr. Bikash Ranjan Bhattacharya, learned senior advocate appearing for the appellants in both the appeals contended that to resolve the controversy once for all the Division Bench directed the Registrar to consider an application, if made by the appellants, under Section 28A. The Registrar was thus lawfully bound to adhere to such direction of the Division Bench. The Registrar undertook such exercise and ultimately recommended the appellant to the management for being recognised as sole bargaining agent. The learned Single Judge should not have set aside such decision of the Registrar which was given in deference to the desire of the Division Bench.
Mr. Bhattacharya further contended that to resolve the controversy we should direct the Registrar or any other competent authority to ascertain the wishes of the workmen to find out which union did enjoy the majority support, either by adopting the check off system or through an election. To support his contention Mr. Bhattacharya relied on three Apex Court decisions reported in All India Reporter, 1995, Supreme Court, Page 1344 (Food Corporation of India Staff Union Vs. Food Corporation of India & Ors.); 2006,Volume-X, Supreme Court Cases, Page - 410 (B.C. Sharma& Anr. Vs. M. L. Bhalla & Ors.) and 2006, Volume-X, Supreme Court Cases, Page - 417 (North Estern Railway Employees Union and Ors. Vs. IIIRD Additional District Judge, Farukhabad and Ors.) Mr. Kalyan Bandopadhyay, learned senior advocate appearing for rival trade union being the respondent no. 4 contended that the concerned hotel did not come within the definition of "industrial establishment" or "class of industry". Hence, Section 28A did not any application. The Registrar rightly held so. The appellants accepted such decision by not challenging the same before any appropriate forum. The Registrar after holding as such, could not have recommended the appellants before the management for being recognised as sole bargaining agent on the plea of the Division Bench decision which was contrary to the provisions of law.
To elaborate his submissions Mr.Bandopadhyay took us to the different provisions of the Trade Union Act, 1926, Industrial Disputes Act, 1947, West Bengal Trade Union Rules 1998 and West Bengal Industrial Disputes Rules1958. Mr. Bandopadhyay also contended that a precedent being contrary to any statutory provision could not have any application to decide and adjudicate a lis .
Mr. Bandopadhyay also relied on the following decisions of the Apex Court:-
(i) 1994, Volume - III (supplementary) Supreme Court Cases, Page 170 (C. Narayanaswamy Vs.C.K.Jaffer Shariff & Ors.)
(ii) 2004, Volume - III, Supreme Court Cases, Page - 297 (National Insurance Company Limited Vs. Swaran Singh & Ors.)
(iii) 2007, All India Reporter, Supreme Court Weekly, Page 1269 (Union of India Vs. S. K. Saigal & Ors.)
(iv) 2007, Volume - V, Supreme Court Cases, Page - 371 (Commissioner of Customs (Port), Chennai Vs. Toyota Kirloskar Motor (P) Ltd.) Mr. Arunava Ghosh, learned counsel appearing for the management adopted the arguments made by Mr. Bandopadhyay. Mr. Ghosh in addition contended that even if Section 28A had application the Registrar could not have recommended the appellants as sole bargaining agent without giving any right of the audience to the management. Admittedly no hearing was given to the management although they had a right of appeal under Section 11 of the said Act of 1926. Mr. Ghosh contended that if an aggrieved party could prefer an appeal from the order of the Registrar it would logically follow that they would also have a right of audience before the Registrar before passing of the order impugned.
Mr. Ashis Kumar Das, learned advocate appearing for the State contended that the Registrar was asked by this Court to consider an application under Section 28A. The Registrar complied with the direction of the Division Bench and considering the application on merit passed appropriate order. The learned Judge should not have upset the same without considering the earlier direction of the Division Bench.
Mr. Soumya Mazumder, learned counsel also appearing for the appellants in reply contended that whether a particular union did enjoy the support of majority of the workmen could be ascertained either through check off system or through an election. The Apex Court considered such issue in the case of Food Corporation Staff Union (supra) and approved such procedure. Hence, the learned Single Judge should have undertaken such procedure applying the test so laid down by the Apex Court in the case of Food Corporation Staff Union (supra). He further contended that both Mr. Bandopadhyay as well as Mr. Ghosh could not successfully demonstrate as to why the Division Bench order could be ignored by the Registrar before passing the reasoned order.
To approach the problem let us first discuss the law on the subject. The Trade Union Act, 1926 (hereinafter referred to as the "said Act of 1926") is a Central Act with power given to the States to incorporate appropriate amendments. Section 28A was introduced by West Bengal Amendment by the Trade Unions (West Bengal Amendment) Act, 1983 (hereinafter referred to as the "said Act of 1983") vide notification dated November 11,1992. Section 28A provides for recognition of Trade Union as bargaining agent. Under this provision any registered Trade Union may apply in the prescribed manner to the Registrar for recognition as bargaining agent for an "industrial establishment" or a "class of industry" in a local area, as the case may be. It also provides that if there is already a trade union recognised under the said provision no further application would be entertained under the said Act. The Registrar upon receipt of the said application would give notice to other trade union functioning in the said "industrial establishment" or "class of industry" in the concerned local area and would hold an enquiry, as may be, prescribed for determining whether the applicant fulfills conditions laid down in sub-section (2) of Section 28A. It is also provided in Section 28B that in case the Registrar is satisfied that the applicant fulfills all conditions it shall register the said applicant as sole bargaining agent and would recommend as such to the management by granting a certificate in the prescribed manner. If there are more one applicant fulfilling all the conditions they could be appointed as joint bargaining agent. In Sections 28A to 28H the process of recommendation has been detailed. Hence on a combined reading of the said provisions it appears to us that to invoke the said provisions the concerned applicant must relate to an "industrial establishment" or a "class of industry".
Under Section 2(a1) "class of industry" means such group of industries as may be notified by the State Government. "Industrial establishment" is, however, not defined under the said Act of 1926. Under the West Bengal Trade Union Rules, 1998 (hereinafter referred to as the "said Rules of 1998") "industrial establishment" has been defined under Rule 2(g) it means, an "industrial establishment" within the meaning of Section 25A of Industrial Disputes Act, 1947.
Under Section 2(ka) of the said Act of 1947 "industrial establishment" means an establishment in which an industry is carried on. Under Section 25A of the said Act of 1947 "industrial establishment" has been given a specific meaning. Explanation to Section 25A provides that an "industrial establishment" means - (I) a factory as defined in clause (m) of Section 2 of the Factories Act, 1948 or (ii) a mine as defined in clause (i) of Section 2 of the Mines Act, 1952 or (iii) Plantation as defined in clause (f) of Section 2 of the Plantation Labour Act, 1951.
The parties appearing before us agreed in principle that "hotel" is an industry within the meaning of Trade Union Act as well as Industrial Disputes Act. On a combined reading of the aforesaid provisions if we take the definition of Section 2(ka) of the said Act of 1947 "hotel" would certainly come within the meaning of "industrial establishment". We, however, find that Section 28A of the said Act of 1926 clearly stipulates that an "industrial establishment" means an "industrial establishment"
within the meaning of Section 25A of the said Act of 1947. Under Section 25A three categories are prescribed i.e. factory, mines and plantation. "Hotel" is neither a mine nor a plantation. Hence, we can safely ignore the said two provisions. Section 2(m) of the Factories Act, 1948, inter alia, provides that a factory means any premises where ten or more workers are working in manufacturing process with the aid of power or twenty or more workers involved in manufacturing process without the aid of power but does not include a "mine" or "hotel", "restaurant" or "eating place".
"Hotel" is thus specifically excluded from the definition of factory under Section 2(m) of the said Act of 1948. Hence, in no stretch of imagination the definition of "industrial establishment" with regard to the applicability of Section 28A could include "hotel" unless the State by any notification declares "hotel" as a "class of industry" in respect of any area within its jurisdiction. Hence, "hotel" could not come within the definition of "industrial establishment" to attract Section 28A of the said Act of 1926.
With regard to the "class of industry" State Government has been empowered to notify a "class of industry" in a local area. Admittedly no such notification has been issued by the State. Hence, in the instant case Section 28A has no application. The Registrar, in our view, rightly held so. The learned Single Judge accepted such view and we do not find any scope of interference on that score.
It was argued before us that the "industrial establishment" stipulated under Section 28A had not been defined in the said Act of 1926. Hence, the general meaning of the said word as derived from Section 2(ka) of the said Act of 1947 should be accepted. We are unable to accept such contention. Act of1926 is a Central Act. Section 28A has been introduced by West Bengal Amendment. West Bengal Government framed rules being empowered under the said Act of 1926 Rule 2(g) specifically provides that "industrial establishment" would mean an establishment within the meaning of Section 25A of the said Act of 1947. Hence, the contention made by the appellant on that score is rejected.
Lot of emphasis was put by the appellants on the order of the Division Bench. If we carefully peruse the order of the Division Bench quoted (supra) we would find that the Division Bench did not decide on the subject issue. No law was decided therein. The subject matter of the said appeal also did not relate to interpretation of Section 28A. Appellants therein prayed for liberty to approach the Registrar under Section 28A. The Division Bench asked the Registrar to decide the said application in "accordance with law" treating "hotel" as "industry". As observed by us hereinbefore, "hotel" is admittedly an industry. However, to come within the mischief of Section 28A "industry" is not enough. The concerned trade union being the applicant under Section 28A must relate to "industrial establishment" within the meaning of the Explanation to Section 25A of the said Act of 1947. The Registrar misconstrued the order of the Division Bench and erroneously recognised the appellant as the sole bargaining agent and recommended them to the management for being recognised as sole bargaining agent. The learned Single Judge set aside the order and in our view, rightly. We do not find any scope of interference on that score.
Mr. Bhattacharjee relied upon the Apex Court decision in the case of Food Corporation of India Staff Union (supra), B.C. Sharma& Anr. (supra) and North Eastern Railway Employees Union and Ors. (supra). In the case of Food Corporation of India Staff Union (Supra) the Apex Court observed that check off system once prevailed had lost its appeals and the secret ballot system was being accepted and should be followed as agreed upon by the unions. In the said case it was not called in question as to whether Section 28A had any application or not. The Apex Court considered an inter union rivalry. The Apex Court in paragraph 2 of the said judgment recorded the agreements of the unions and thereafter prescribed the procedure to be followed through secret ballot system. In the case of B. C. Sharma & Anr. (supra) similarly dispute related to holding of election of the union, so was the case of North Eastern Railway Employees Union (Supra). We are unable to appreciate how these three decisions could have application in the instant case until and unless we hold that Section 28A has application herein.
Mr. Bandopadhyay cited the Apex Court decisions principally on two propositions i.e. applicability of a ratio decendi and interpretation of statutory provision. We do not feel it relevant to discuss in detail on that score.
Let us now consider the second order impugned by which the learned Single Judge set aside the self same order relying on the doctrine of audi alterem partem. Section 11 of the said Act of 1926 another West Bengal Amendment, inter alia, provides that any management of "industrial establishment" if aggrieved by the decision of the Registrar under Chapter IIIA in connection with grant or cancellation of any certificate is entitled to prefer an appeal before the Appellate Forum. Once the management has been given the authority to prefer an appeal against any grant of certificate under Section 28A we fail to appreciate how the employer could be refused right of audience before passing of the said order. The learned Single Judge held accordingly. We accord our approval.
The appeals thus fail and are hereby dismissed. There would be no order as to costs.
Urgent xerox certified copy would be given to the parties, if applied for.
TAPAS KUMAR GIRI. J:
I agree.
[ASHIM KUMAR BANERJEE.J] [TAPAS KUMAR GIRI.J]