Bombay High Court
C/O R.K. Mishra vs Member on 23 June, 2009
Author: R.C. Chavan
Bench: R.C. Chavan
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.580 of 1999
Rajya Parivhan Yantrik Kamgar
Sanghatana,
Maharashtra Rajya,
Registered office
C/o R.K. Mishra,
Hansapuri, Bhandara Road,
Nagpur, through
its Regional Secretary. ... Petitioner
Versus
1. Member, Industrial Court,
Jakatdar Bungalow,
Civil Lines,
Nagpur-1.
2. Maharashtra State Road
Transport Corporation,
through its Regional Manager,
Near S.T. Stand,
Ganeshpeth, Nagpur. ... Respondents
Shri M.P. Jaiswal, Advocate for Petitioner.
Shri A.M. Deshpande, Advocate for Respondent No.2.
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2
CORAM : R.C. Chavan, J.
Reserved on : 19-9-2009 Pronounced on : 23-6-2009 Judgment :
1. This petition by an unrecognized union is directed against the orders passed by the learned Member, Industrial Court, Nagpur, below Exhibits 34 and 14 respectively in Complaints No.283 of 1989 and 967 of 1992 on the ground that the petitioners had no locus to file the said complaints.
2. Facts, which are relevant for the decision of this petition, are as under :
On 6-8-1992, the petitioner-Union filed a complaint in respect of discrimination practiced by the respondent- employer amongst employees working in establishment -
administration section, who were not members of complainant-Union on one hand and the mechanical staff, who were members of complainant-Union on the other.
Mechanical staff was required to punch their cards to ensure punctuality. The workers in the establishment and administration section were not required to punch the cards. The complainant, therefore, alleged that the respondent-::: Downloaded on - 09/06/2013 14:42:34 ::: 3
employer indulged in partiality and favouritism by discriminating against its members under Item 2 of Schedule II and Items 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act.
3. A preliminary objection to these complaints was raised by the respondent-employer contending that such complaints by an unrecognized Union were not tenable. This objection itself was raised on 29-3-1996, i.e. almost four years after the complaints were filed. The stand taken by the employer was that only one Union, i.e. S.T. Kamgar Sanghatana is a recognized Union and, therefore, it alone could have represented the cause of the workers.
4. While upholding the objection, the learned Member, Industrial Court noted that S.T. Kamgar Sanghatana had been granted recognition vide order No.8 of 1995 dated 7-3-1995.
After considering several decisions, which had been cited before him, the learned Member, Industrial Court, held the complaints as not maintainable and dismissed them. Aggrieved thereby, the petitioner is before this Court.
5. I have heard the learned counsel for the petitioner as well the learned counsel for respondent No.2.
::: Downloaded on - 09/06/2013 14:42:34 ::: 46. The learned counsel for the petitioner pointed out that it is not disputed that on the date on which the complaint was filed, S.T. Kamgar Sanghatana was not a recognized Union. He pointed out that even the learned Magistrate has noted in his order that the Sanghatana was recognized on 7-3-1995. Thus, according to him, since on the relevant date, there was no recognized Union, there was no bar for the complainant to espouse the cause of its members.
7. The learned counsel for respondent No.2 submitted that the learned Member, Industrial Court, has rightly held that the bar was not just to file the complaint, but was also to prosecute it and, therefore, the moment a Union was recognized, an unrecognized Union would not be entitled to prosecute the complaint. This contention has to be rejected.
Merely because the matters remain pending in the Courts for years together due to heavy backlog, it does not follow that the parties should be non-suited, throwing their legitimate grievances out, on account of subsequent developments of the type referred to by the learned counsel for respondent No.2. The tenability of the complaint would have to be examined with reference to the date on which it was filed.
Therefore, this ground was not available to the learned Member, Industrial Court, for rejecting the complaint.
8. The objection to tenability of complaint was taken ::: Downloaded on - 09/06/2013 14:42:34 ::: 5 presumably under Section 20(2) of MRTU & PULP Act, which reads as under :
"Section 20(2):
Where there is a recognised union for any undertaking,--
(a) that union alone shall have the right to appoint its nominees to represent workmen on the Works Committee constituted under section 3 of the Central Act;
(b) no employee shall be allowed to appear or act or be allowed to be represented in any proceedings under the Central Act (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration), except through the recognised union; and the decision arrived at, or order made, in such proceeding shall be binding on all the employees in such undertaking;
and accordingly, the provisions of the Central Act, that is to say, the Industrial Disputes Act, 1947, (XIV of 1947) shall stand amended in the manner and to the extent specified in Schedule I."
::: Downloaded on - 09/06/2013 14:42:34 ::: 6Under this Section, only recognized Union gets exclusive right to represent workmen in any proceeding under the Industrial Disputes Act.
9. Section 21 of the Act also places an embargo on proceedings relating to unfair labour practices, which reads as under :
"Section 21 - Right to appear or act in proceedings (1) relating to certain unfair labour practices :
No employee in an undertaking to which the provisions of the Central Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceedings relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except through the recognised union :
Provided that, where there is no recognised union to appear, the employee may himself appear or act in any proceedings relating to any such unfair labour practices.
(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act, for the time ::: Downloaded on - 09/06/2013 14:42:34 ::: 7 being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except through the representative of employees entitled to appear under section 30 of the Bombay Act."
10. The learned counsel for the petitioner submitted that the embargo in sub-section (2) of Section 20 or sub-section (1) of Section 21 of the Act could be attracted only if there is a recognized Union for any undertaking. In this case, there was no recognized Union when the complaints were filed. Further, he submitted that embargo in sub-section (2) of Section 20 of the Act would apply to proceedings under the Industrial Disputes Act and not to complaints under the MRTU & PULP Act. He pointed out that the entire complaint nowhere makes any reference to any provision of the Industrial Disputes Act or draws any strength or support from any right recognized in the Industrial Disputes Act. The grievance is entirely and squarely covered by what has been defined as unfair labour practices in Item 2 of Schedule II and Items 5 and 9 of Schedule IV of the MRTU & PULP Act. Therefore, according to the learned counsel for the petitioner, the petitioner could not have been non-suited by relying on sub-section (2) of Section 20 of the MRTU & PULP Act.
::: Downloaded on - 09/06/2013 14:42:34 ::: 811. The learned counsel for respondent No.2 submitted that the question of unrecognized Union representing employees in all complaints under the MRTU & PULP Act had been considered by the Supreme Court in Shramik Uttarsha Sabha v. Raymond Mills Ltd. and others, reported at 1995 I CLR 607. In that case, it was held that it was only recognized Union, which had the exclusive right to file a complaint relating to unfair labour practice under the MRTU & PULP Act even if the complaint is in regard to matters other than those specified in Items 2 and 6 of Schedule IV of the Act. He submitted that this judgment had been noted by a Division Bench of this Court in Maharashtra General Kamgar Union, Ghatkopar (East), Bombay v. Solid Containers Ltd. and others, reported in 1995(2) Mh.L.J. 836. In para 32 of the judgment, the Court dealt with the ratio in Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd. and others in the following words :
"32. The controversy arising out of the various provisions contained in the aforesaid enactment came up for consideration before the Supreme Court in the case of "Shramik Uttarsh Sabha vs. Raymond Woolen Mills Ltd. and others", 1995 (1) SCALE 533. The question arising for consideration in the case is reproduced in paragraph 3, as under :::: Downloaded on - 09/06/2013 14:42:34 ::: 9
"3. The question for consideration in this appeal is : does a representative union under the Bombay Industrial Relations Act, 1946 (BIR Act) have the exclusive right to represent the employees of the concerned industry in complaints relating to unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (M.R.T.U. and P.U.L.P. Act) other than those specified in items 2 and 6 of Schedule IV thereof ?"
The Supreme Court after considering the relevant provisions of the Bombay Industrial Relations Act, Industrial Disputes Act and M.R.T.U. And P.U.L.P. Act has held, as under :
"13. The M.R.T.U. And P.U.L.P. Act takes note of the provisions of the B.I.R. Act. Many of its definitions are stated to be those contained in the B.I.R. Act. Chapter III, which deals with the recognition of Unions, states, in section 10(2), that its provisions do not apply to undertakings in industries to which the provisions of the B.I.R. Act apply. The ::: Downloaded on - 09/06/2013 14:42:34 ::: 10 B.I.R. Act was enacted to provide for the regulation of the relation of employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The M.R.T.U. And P.U.L.P. Act was enacted to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognised unions; and to define and provide for the prevention of unfair labour practices; and to constitute courts in this behalf. It cannot, therefore, be said that the B.I.R. Act and the M.R.T.U. And P.U.L.P. Act operate in different fields. There is commonality in their objects and their provisions. The obvious intent of the legislature which enacted them was that they should operate in tandem and complement each other in respect of industries to which the B.I.R. Act had been made applicable. The statutes must be read together."
"14. Section 21 of the M.R.T.U. And P.U.L.P. Act, upon which emphasis was laid on behalf ::: Downloaded on - 09/06/2013 14:42:34 ::: 11 of the appellants, states that no employee in an undertaking to which the provisions of the Industrial Disputes Act apply shall be allowed to appear or act or be allowed to be represented in any proceedings relating to the unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognised union. It is important to note that the reference is to employees in an undertaking to which the Industrial Disputes Act applies and not to employees in an undertaking to which the B.I.R. Act applies.
Apart therefrom the section permits an employee, not an union other than the recognised union, to so appear. The provisions of section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV."
"15. It is true that an order of the Industrial Court in the concerned proceedings would bind all employees of the first respondent even though there may be some among ::: Downloaded on - 09/06/2013 14:42:34 ::: 12 them who owe allegiance not to the representative union but to the appellant.
The objective of the provisions of the B.I.R. Act and the M.R.T.U. And P.U.L.P. Act, read together, and the embargo placed upon representation by anyone other than the representative of the employees, who, for the most part, is the representative union, except in matters pertaining to an individual dispute employer, between is to an employee facilitate and collective the bargaining. The rationale is that it is in the interest of industrial peace and in the public and national interest that the employer should have to deal, in matters which concern all or most of its employees, only with a union which is representative of them.
It may be that a union which was representative of the employees may have in the course of time lost that representative character, it is then open, under the provisions of the B.I.R. Act, for a rival union to seek to replace it."
It then added in para 33 that if the ratio of the above case is applied to the case of Maharashtra General Kamgar Union, ::: Downloaded on - 09/06/2013 14:42:34 ::: 13 only the recognized Union could represent the workers and file and prosecute the complaint under the MRTU & PULP Act.
The Division Bench then proceeded to hold that the petitioner, which was not recognized Union, in the face of existence of recognized Union, had no locus to file and prosecute the complaint.
12. The learned counsel for the petitioner submitted that the judgment in Sharamik Uttarsh Sabha v. Raymond Woolen Mills Ltd. and others had been considered by a Division Bench in Warden and Co. (India) Ltd., Bombay v. Akhil Maharashtra Kamgar Union, Thane, reported at 2001(2) Mh.L.J. 484. The question in that case was whether unrecognized Union is entitled to appear and act on behalf of the workmen of an industry governed by the Industrial Disputes Act, in complaints relating to unfair labour practices other than those specified in Items 2 and 6 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The Court considered the argument that in view of the judgment of the Supreme Court in Sharamik Uttarsh Sabha v. Raymond Woolen Mills Ltd. and others, only a recognized Union would have the right to file such complaint. In para 25 of the judgment in Warden and Co. (India) Ltd., Bombay v. Akhil Maharashtra Kamgar Union, Thane, the Court formulated the question as under :
"25. The question therefore is, whether it is the ::: Downloaded on - 09/06/2013 14:42:34 ::: 14 exclusive right of a recognised Union to represent employees in a complaint relating to unfair labour practice other than those mentioned in items 2 and 6 of Schedule IV of the MRTU & PULP Act."
The Court then considered the object of the MRTU & PULP Act and the procedure prescribed for dealing with complaints in Section 28 of the Act. The Court noted that under Section 28 of the Act, among others, one who could file a complaint was "any Union". The Court noted the provisions of Section 21 of the Act and observed in paras 30 and 31 as under :
"30. ... According to Mr. Kuldeep Singh, learned counsel appearing for the employer, sub-section (1) of section 21 must be read to mean that only a recognised Union can represent workmen in any and all proceedings relating to unfair labour practices. We do not agree with that submission, on a plain reading of that provisions. If the learned counsel was right in his submission, the provision need not have referred to items 2 and 6 of Schedule IV of MRTU & PULP Act at all. The Legislature could have simply enacted this sub-section so that it read:
No employee in an undertaking to which the provisions of the Central Act apply shall be allowed to appear or act, etc., in any proceeding relating to ::: Downloaded on - 09/06/2013 14:42:34 ::: 15 unfair labour practices except through the recognised Union."
"31. From the provisions considered so far, it is clear that a recognised Union has an exclusive right to represent employees in :
(a) any proceeding under the I.D. Act vide section 20(2) and proviso to section 36 of the I.D. Act, supra;
(b) any
igcomplaint relating to unfair
practices under items 2 and 6 of Schedule IV of the labour MRTU & PULP Act vide section 21(1), supra; and
(c) that a complaint of an unfair labour practice against an employer may be made by an employee, a Union, irrespective of whether it is recognised or not or an Investigating Officer, vide section 38 of the MRTU & PULP Act, supra. This is subject to the provisions in section 21(1) that if the complaint is under items 2 and 6 of Schedule IV of the MRTU & PULP Act, the employees can be represented only by a recogniised Union. In such a case, a complaint may be filed by an employee or employees and the Court may direct steps to be taken as provided by sub-sections (3) to (5). If, however, it becomes necessary for the Court to render a decision, the employee can be represented at the trial of the ::: Downloaded on - 09/06/2013 14:42:34 ::: 16 complaint through recognised Union, if there be one. If there is no recognised Union, the employee may himself appear, vide the proviso to section 21(1)."
13. In paras 36, 37, 40 and 42, the Court observed as under :
"36. Since the case before us is different in that it concerns the right on an unrecognised Union in an industry to which the I.D. Act applies to file or prosecute a complaint under the MRTU & PULP Act, we have ourselves perused the statutory scheme and we find ourselves in agreement with the submission that the law laid down in Raymond case was not in respect of a matter arising in an industry where the I.D. Act applies, but a matter relating to an industry governed by the Bombay Industrial Relations Act."
"37. It is clear from a reading of the judgment in Raymond case that it arose as follows. A complaint was made by an employer in an industry to which the B.I.R. Act applied against the representative Union of the industry. In that complaint, an unrecognised Union i.e. Shramik Utkarsh Sabha ::: Downloaded on - 09/06/2013 14:42:34 ::: 17 applied for being impleaded as a party-respondent and the Supreme Court held, having regard to the entire scheme of the Bombay Industrial Relations Act read with relevant provisions of the MRTU & PULP Act, that only a representative Union under the B.I.R. Act has the exclusive right to represent the employees of the concerned industry in complaints relating to unfair labour practices under the MRTU & PULP Act other than those specified in items 2 and 6 of Schedule IV thereof."
"40. It is signiificant to note that under the I.D. Act, there is no corresponding provision for either recognition of a Union or for nominating or selecting a representative of employees as found in the B.I.R. Act. In our opinion, it would be in derogation of the rights of unrecognised Unions to espouse the cause of workmen in relation to complaints of unfair labour practices, to apply the decision in Raymond case to a case of unfair labour practice arising in respect of an industry governed by the I.D. Act."
"42. We, therefore, hold that it is not the exclusive right of a recognised Union to institute and prosecute a complaint under the MRTU & PULP Act in respect of an industry governed by the I.D. Act in ::: Downloaded on - 09/06/2013 14:42:34 ::: 18 relation to unfair labour practices other than those specified in items 2 and 6 of Schedule IV of the MRTU & PULP Act. We, therefore, uphold the judgment of the learned single Judge in this regard."
14. The learned counsel for the respondent submitted that this judgment in Warden and Co. (India) Ltd., Bombay v.
Akhil Maharashtra Kamgar Union, Thane had not taken into consideration Maharashtra an General earlier Kamgar judgment Union, of this Ghatkopar Court (East), in Bombay v. Solid Containers Ltd. and others, reported at 1995(2) Mh.L.J. 836, and, therefore, the judgment would not be binding. He further submitted that in I.T.C. Ltd. Mumbai v. General Labour Union and another, reported at 2001(3) Mh.L.J. 470, a learned Single Judge of this Court has held that an unrecognized Union was not entitled to maintain a complaint of unfair labour practice defined in Item 9 of Schedule IV of the MRTU & PULP Act and had placed reliance on the judgment of the Supreme Court in Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd. The learned counsel for the respondent submitted that another learned Single Judge of this Court in Writ Petition No.1276 of 1995 decided on 22-2-2007 has also held, relying on a judgment in Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd. and others that an unrecognised Union could not have maintained a ::: Downloaded on - 09/06/2013 14:42:34 ::: 19 complaint. He, therefore, submitted that there is no warrant to take a different view.
15. The learned counsel for the petitioner submitted that another Division Bench of this Court in Ceat Ltd.
(Electronics Division), Mumbai v. Anand Aba Saheb Hawaldar and others, reported at 2003(99) FLR 382, had considered the same question and had observed in paras 9, 10 and 11 as under :
"9.
So far as maintainability of complaint is concerned, on three grounds, it was contended that the complaint was not maintainable."
"10. The first ground was that such a complaint could be filed only by a recognised union and not by an individual workman. In our opiniion, the learned Counsel for the respondents is right in submitting that in the instant case, keeping in view the grievance made by the workman and the reliefs prayed, such a complaint was maintainable. The case of the aggrieved workmen was that there was unfair labour practice on the part of the appellant company falling under Items 5, 9 and 10 of Schedule IV of the Act. Items 5, 9 and 10 read as under :::: Downloaded on - 09/06/2013 14:42:34 ::: 20
"5. To show favouritism or partiality to one set of workers, regardless of merits.
9. Failure to implement award, settlement or agreement.
10. To indulge in act of force or violence".
The counsel drew our attention to sections 21 and 29 of the Act. Section 21 confers right on the recognised union to appear or act in proceedings section relating to certain unfair labour practices.
(1) states that no employee in
Sub-
an
undertaking to which the provisions of the Central Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union. Thus, if unfair labour practice specified in and covered by Items 2 or 6 of Schedule IV of the Act is complained, it is only the recognised union which can approach the Court."
"11. It is not in dispute that in the instant case, neither Item No.2 nor Item No.6 of Schedule IV of the Act is alleged to have been violated. The allegation relates to unfair labour practice falling ::: Downloaded on - 09/06/2013 14:42:34 ::: 21 under Items 5, 9 and 10 and particularly Items 5 and 9. The complaint was, therefore, maintainable.
In our considered opinion, as the case is not covered by sub-section (1) of section 21 of the Act, the complaint filed by the workers was maintainable. The first contention, therefore, has no force and is rejected."
16. I have carefully considered the rival contentions. It cannot be overlooked that the adjudication in Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd. and others pertained to the question about a representative Union in an industry governed by the Bombay Industrial Relations Act and not to an industry to which the provisions of the Industrial Disputes Act apply. It is not in dispute that the industry in the present proceedings is governed by the Industrial Disputes Act and not the Bombay Industrial Relations Act. The Division Bench deciding the case of Maharashtra General Kamgar Union, Ghatkopar (East), Bombay v. Solid Containers Ltd. and others had quoted the question raised in Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd. and others, in para 32 of the judgment.
Therefore, it should have been seen that the observations of the Supreme Court pertained only to industries governed by the Bombay Industrial Relations Act and not by the Industrial Disputes Act. Therefore, since the judgment of the Division ::: Downloaded on - 09/06/2013 14:42:34 ::: 22 Bench in Warden and Co. (India) Ltd., Bombay v. Akhil Maharashtra Kamgar Union, Thane squarely considered the question of tenability of complaint by Unions, which are not recognized in industries to which the provisions of the Industrial Disputes Act apply, and lays down the law accurately, it would have to be followed.
17. The applicability of the provisions of the Industrial Disputes Act to an industry need not be confused with a PULP Act.
grievance about unfair labour practice under the MRTU & If the grievance pertained to an unfair labour practice under the Industrial Disputes Act, then the embargo of sub-section (2) of Section 20 of the MRTU & PULP Act may apply. It may be seen that the Fifth Schedule to the Industrial Disputes Act also refers to certain unfair labour practices and if the rights were to be drawn from the said Schedule, possibly the argument that only a recognized Union could approach the Court, could be entertained. However, in this case, the complaint was specifically about unfair labour practice under Item 2 of Schedule II and Items 5 and 9 of Schedule IV of the MRTU & PULP Act In view of the judgments of the Division Benches of this Court in Warden and Co. (India) Ltd., Bombay v. Akhil Maharashtra Kamgar Union, Thane, and Ceat Ltd. (Electronics Division) Mumbai v. Anand Aba Saheb Hawaldar and others, it is clear that the complainant-Union was entitled to raise the grievance in ::: Downloaded on - 09/06/2013 14:42:34 ::: 23 respect of Items, which are not barred under the provisions of Section 21 of the MRTU & PULP Act. The impugned orders, therefore, cannot at all be sustained.
18. The petition is, therefore, allowed. The impugned orders are quashed and set aside. The learned Member, Industrial Court, is directed to decide the complaints on merits.
Lanjewar
ig JUDGE
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