Force Motors Limited vs Poona Employees Union on 2 February, 2009

Bombay High Court
Force Motors Limited vs Poona Employees Union on 2 February, 2009
Bench: Bilal Nazki, J. H. Bhatia
                                          1




                                                                             
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                     
                         CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.  2907   OF 2006




                                                    
    Force Motors Limited                  )
    (formerly known as Bajaj Tempo        )
    Ltd.), having its office at Akurdi,   )




                                         
    Pune - 411 035.                       ).....      .....    Petitioner.

          Versus            
    1) Poona Employees Union,             )
       through its President Mr.Madhav    )
                           
       Roham, having its registered       )
       Office at H-89, Shastree Nagar,    )
       Yerwada, Pune.                     )
       


    2) Bhartiya Kamgar Sena,             )
       having its office at Sena Bhawan, )
    



       Shivaji Park, Dadar, Mumbai.      )

    3) Shri S. M. Kolhe,                  )
       Member,                            )





       Industrial Court, Pune.            )....       ....     Respondents.

                                  -: ALONG WITH :-

                        WRIT PETITION NO. 2878 OF 2006





    Bharatia Kamgar Sena,                 )
    a trade Union registered under        )
    the Trade Unions Act, 1928,           )
    having its office at Shiv Sena        )
    Bhavan, Shivaji Park, Dadar,          )
    Mumbai - 400 028.                     )....       ....     Petitioner.




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          Versus




                                                         
    1) Poona Employees Union,               )
       having its registered                )
       Office at H-89, Shastri Nagar,       )
       Yerwada, Pune - 411 006.             )




                                                        
    2) Bajaj Tempo Limited                  )
       having its factory at Akurdi,        )
       Pune - 411 035.                      )




                                            
    3) Shri S. M. Kolhe,                    )
       Member, Industrial Court, 
                             ig             )
       Pune, having his office at P.M.T.    )
       Building, Swargate, Pune.            )....         ....     Respondents.
                           
    Mr. K. K. Singhavi, Sr. Counsel with Mr. S. K. Talsania, Ms.Pallavi Dhedia
    i/by M/s. Sanjay Udeshi & Co., for Petitioner in WP 2907/06 and
    for Respondent No.2 in WP 2878/06.
       


    Mr. S. G. Anney, Sr. Counsel with Mr. K. S. Bapat i/by Mr. A. V. 
    Fatangare for the Petitioner in WP 2878/06 and for 
    



    Respondent No.2 in WP 2907/06.
    Ms. Gayatri Singh for Respondent No.1 in both the Petitions.





                              CORAM :                BILAL NAZKI  and
                                                                    
                                                     J. H. BHATIA, JJ.

                       RESERVED ON:                 26TH NOVEMBER, 2008.





                       PRONOUNCED ON :              2ND FEBRUARY, 2009.
                                                    (In Chamber at 5.00 p.m.)

    JUDGMENT (Per Bilal Nazki,J.) :

These two writ petitions have been filed by the petitioners

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challenging the same order, therefore they are being disposed of by the

common judgment and order. The Writ Petition No. 2907 of 2006 is filed

by the Company while Writ Petition No. 2878 of 2006 is filed by the

Union. For the purpose of reference to contesting parties, reference is

made to the Writ Petition No. 2907 of 2006.

2. The order challenged in both the petitions is dated 22nd March, 2006

passed by the Industrial Court, Pune on an application made by

respondent No.1 Union under Section 14 of the Maharashtra Recognition

of Trade Unions & Prevention of Unfair Labour Practices Act, 1971

(hereinafter referred to as “the MRTU & PULP Act”). By the impugned

order, the Industrial Court cancelled the status of recognised Union of

respondent No.2 and granted recognition to respondent No.1 Union in

respect of the Company – Bajaj Tempo Limited, Akurdi, Pune. So the union

which was earlier recognised has filed one petition and the Company has

filed another petition.

3. The Company’s
case is that it is incorporated under the Companies

Act and is engaged in manufacturing of commercial vehicles. One of the

factories of the Company is located at Akurdi, Pune in which 2100

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employees are employed. Respondent No.1, who claimed to be registered

trade union filed application under Section 14 of the MRTU & PULP Act for

cancellation of the recognition of respondent No.2. Respondent No.1 made

an application under the provisions of the MRTU & PULP Act claiming that

for the period preceding six months of the application it had membership

of 1973 employees out of total number of 2100 employees employed

under the petitioner undertaking. Respondent No.1 Union, therefore,

prayed that the recognition of Bharatiya Kamgar Sena should be cancelled

and in its place respondent No.1 should be granted recognition. The

Company as well as respondent No.2 Union filed written statement

denying respondent No.1 Union’
s membership as claimed. They also

denied that respondent No.1 union was eligible to the grant of recognition

in respect of the undertaking. Respondent No.2 – Bharatiya Kamgar Sena

(hereinafter referred as “BKS”) claimed that it was recognized union since

1998 and it continued to enjoy membership of the employees of the

Company. Even basic registration of respondent No.1 Union was

challenged by the BKS and the Company. The Industrial Court decided this

issue as preliminary issue by an order holding that respondent No.1 was a

registered trade union. Certain other facts have been also mentioned in the

writ petitions which are not necessary for the purpose of deciding these

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writ petitions. But a development which took place during the course of

hearing before the Industrial Court needs to be mentioned as a ground

related to it had been agitated by the petitioner to challenge the order of

the Tribunal. On 16th September, 2004 the BKS filed an application

alleging that respondent No.1 union had directed the employees to attend

the office of the Industrial Court and sign affidavits to the effect that they

were members of respondent No.1 union. The BKS prayed that the

Registry should be asked not to entertain the affidavits as it was a settled

position in law that verification of membership can not be done on the

basis of such affidavits. The respondent No.1 union filed reply submitting

that the affidavits were being filed for some different purpose and the

same shall not be relied upon for the purpose of verification of

membership. The Industrial Court on 29th September, 2004 rejected the

application of BKS making it clear that the affidavits would not be taken

into consideration for the purpose of verification of membership. The

Industrial Court appointed an Investigation Officer and directed him to

verify membership of respondent No.1 union as well as of BKS for the

period of six calendar months, immediately preceding the month of

September, 2003. The Investigation Officer submitted report on 26th

October, 2004. As per the said report, BKS had exclusive membership of

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270, respondent No.1 had exclusive membership of 26, whereas 1908

employees were common members. The Investigation Officer also observed

that respondent No.1 Union had never deposited any amount in the Bank.

Respondent No.1 union also filed an application along with a list and

identical affidavits of 1556 employees on 26th November, 2004 alleging

that they had ceased to be the members of BKS and had become members

of respondent No.1 Union from 12th December, 2002. The objections were

taken to such affidavits. But Industrial Court held that such affidavits shall

not be taken into consideration for the purpose of verification of

membership. The Industrial Court, however, on 29th November, 2004

permitted cross examination of 99 employees out of 1556 employees who

had filed their affidavits. Out of 99 employees 17 employees in their cross-

examination admitted that they still continued to be the members of BKS.

7 employees admitted in their cross-examination that they had filed

affidavits only on an assurance by respondent No.1 union that they would

be reimbursed the wages deducted on account of go-slow resorted to by

them. Having regard to the fact that 17 employees in cross-examination

had stated that they continued to be the members of BKS and 7 employees

had turned hostile, BKS applied that it should be allowed to cross-examine

all 1556 employees. On 30th April, 2005, however, the Industrial Court

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rejected the application.

4. These facts which have been narrated are almost undisputed facts.

The main grounds of attack on the impugned order by the Senior Counsel

appearing for the petitioner are:- Firstly, respondent No.1 union had no

right to represent the automobile union; Secondly, the Industrial Court

could not have relied on affidavits to come to the conclusion as to the

respective number of membership of the union and it had to go by the

report of the Investigation Officer who was appointed in terms of the of

the MRTU & PULP Act, and Thirdly, Section 19 of the of the MRTU & PULP

Act was not complied with. On all three grounds the learned Senior

Counsel appearing for the respondents have submitted that there has been

no violation of any of the statutory provisions and there was nothing to

come to a conclusion that respondent No.1 union should not be treated as

a registered union.

5. Coming to the first ground of attack, elaborating his arguments,

learned Senior Counsel for the petitioner has drawn our attention to the

constitution and rules of respondent No.1 Union. Object 2(a) of the Union

as enumerated is:

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“To organize and unite the persons employed in the Industry,

any Factory, any Section, any shop and any establishment within

the district of Poona as per Schedule in the ___________ and to

regulate their relations with their employers.”

With other objects, for the present, we are not concerned. The argument is

that the object of the Union was to organize and unite the persons

employed in the Industry, any Factory, any Section, any shop and any

establishment within the District of Poona as per Schedule. However, since

no schedule was annexed to the constitution, it was a purposeless Union.

Elaborating further, the learned Senior Counsel submitted that the

recognition of respondent No.1 for its union under Section 11 of the MRTU

& PULP Act was not itself maintainable. Section 11 of the MRTU & PULP

Act lays down:

“Application for recognition of union: (1) Any union
(hereinafter referred to as “applicant-union”) which has for the
whole of the period of six calendar months immediately
preceding the calendar month in which it so applies under this
section a membership of not less than thirty per cent of the total

number of employees employed in any undertaking may apply
in the prescribed form to the Industrial Court for being
registered as a recognised union for such undertaking.

(2) Every such application shall be disposed of by the Industrial
Court as far as possible within three months from the date of
receipt of the application, where a group of concerns in any
industry which is notified to be one undertaking for which

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recognition is applied for is situated in the same local area; and
in any other case, within four months.”

Rule 4 under the Rules famed under the MRTU & PULP Act lays down

that the application by any union for registration under section 11 shall be

in Form A and in Form A one of the columns is Col. 5, which lays down,

“The undertaking for which this trade union seeks recognition as a

recognised union is engaged in ……………… industry/trade. The

undertaking is known as …………… and is located at the following

address.” It is submitted that it was a mandatory requirement to spell out

the industry in which the union was interested. The learned Counsel for

the respondent on the other hand submits that though in the constitution it

has been mentioned that as per schedule, but since no schedule was

attached to the constitution, it should be considered that the union was

interested in organising and uniting persons employed in the industry in

Poona. He also submits that this was the argument which was made for

the first time before this Court. But the learned Counsel on the other hand

submits that since it goes to the root of the matter and no disputed facts

are involved, this argument can be raised before this Court. He also relies

on the judgment of this Court in the case of Indian Express Newspapers

(BOM) Employees
Union v/s K. M. Desai & Ors.,
reported in 1995 I CLR

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677.

6. Before going to the Judgment, it will be necessary to understand the

scheme of recognition of a union and recognition of other union under the

Act. Section 11, which has been quoted above lays down the methodology

by which an application for recognition of the union can be made. Section

14 of the of the MRTU & PULP Act is reproduced below:

“14. Recognition of other union:-

(1) If any union makes an application to the Industrial Court
for being registered as a recognised union in place of a
recognised union already registered as such (hereinafter in this
section referred to as the “recognised union”) for an undertaking,

on the ground that it has the largest membership of employees
employed in such undertaking, the Industrial Court shall, if a

period of two years has elapsed since the date of registration of
the recognised union, call upon the recognised union by a notice
in writing to show cause, within thirty days of the receipt of such
notice, as to why the union now applying should not be

recognised in its place. An application made under this sub-
section shall be accompanied by such fee not exceeding rupees
five as may be prescribed.

Provided that, the Industrial Court may not entertain any

application for registration of a union, unless a period of one year
has elapsed since the date of disposal of the previous application
of that union.

(2) If, on the expiry of the period of notice under sub-section
(1), the Industrial Court finds, on preliminary scrutiny, that the
application made is in order, it shall cause notice to be displayed
on the notice board of the undertaking, declaring its intention to

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consider the said application on the date specified in the notice,
and calling upon other union or unions, if any, having

membership of employees in that undertaking, employer and
employees affected by the proposal to show cause within a
prescribed time as to why recognition should not be granted.

(3) If, after considering the objections, if any, that may be
received under sub-section (2) and if, after holding such enquiry
as it deems fit (which may include recording of evidence of
witnesses and hearing of parties), the Industrial Court comes to

the conclusion that the union applying complies with the
conditions necessary for recognition specified in section 11 and
that its membership was, during the whole of the period of six

calendar months immediately preceding the calendar month, in
which it made the application under this section, larger than the
membership of the recognised union, then the Industrial Court

shall, subject to the provisions of section 12 and this section,
recognise the union applying in place of the recognised union,
and issue a certificate of recognition in such form as may be
prescribed.

Explanation:- For the purpose of this sub-section, the other union

shall be deemed to have applied for recognition in the same
calendar month as the applicant-union.

(5) Every application under this section shall be disposed of by

the Industrial Court as far as possible, within three months, from
the date of receipt of the application, where a group of concerns
in any industry which is notified to be one undertaking for which
recognition is applied for is situated in same local area; and in
any other case, within four months.

Explanation: “local area” for the purposes of this sub-section
means the area which the State Government may, by notification
in the Official Gazette, specify in such notification.”

These provisions enable the Industrial Court to replace a recognised union

by another union and if a union is recognised under Section 11, another

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union at its place can be recognised under Section 14 of the MRTU & PULP

Act. The only requirement of the Section is that the new union should have

larger membership of the employees employed in such an undertaking.

Such application can be made only after two years of the recognition of the

first union. Under sub-Section (3) of Section 14, the Industrial Court is

empowered to hold an inquiry, as it deems fit, which may include also the

recording of evidence of the witnesses and hearing of the parties and after

holding inquiry if the court is satisfied that the union satisfies the

conditions necessary for recognition specified in Section 11 the court shall

recognise the union applying in place; of the recognised union. Therefore,

the requirements of section 14 for recognition are necessary to be fulfilled

before an application under Section 14 is allowed. This question was

considered by this Court in Indian Express Newspapers (BOM) Employees

Union (supra).

7. Now coming to the judgment of this Court in Indian Express

Newspapers (BOM) Employees Union (supra), the union had filed an

application under Section 11 of the MRTU & PULP Act which was allowed

by the Industrial Court. The matter pertained to a company which was

publishing several newspapers. The petitioner before the Court was a trade

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union, registered under the Trade Unions Act, 1926, and had been

representing a working journalists and non-journalists employed with the

company from 1953. Another union which was also a trade union,

registered under the Trade Unions Act, filed an application before the

Industrial Court for recognition of itself in place of the recognised union.

So the facts are almost similar to the facts of the present case. The

constitution of the newly formed union laid down that the objects of the

union would be as mentioned in Schedule “A”. Schedule “A” did not bear

an entry of the newspaper establishment or a newspaper industry. The

claim of the applicant was contested on the ground that the constitution of

the applicant did not permit it to enroll employees from the newspaper

industry as its members. Therefore, it could not represent employees of the

company and the application for recognition was not as such maintainable.

Paragraph 6 of the said judgment reads thus:

“6. Taking exception to the said order, the petitioner has
preferred the present petition.

The short question that arises for consideration is whether

respondent No.2 is entitled, under the terms of its Constitution, to
enroll as its members journalists and non-journalists employed by
respondent No.3. A copy of the Constitution of respondent No.2 is
annexed at Exhibit – A to the petition. The objects of respondent
No.3, as is evident from the Constitution, is to organise and unite
the persons employed in the industries mentioned in Schedule
(A) and to regulate their relations with their employers. Then
follows Schedule `A’ which describes the industries whose

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employees respondent No.2 – union can seek to introduce within
itself as its members in order to regulate their relations with their

employers. Amongst the industries mentioned is the industry of
printing press. It is apparent that the industry of newspapers and
journals is conspicuously absent. Hence the short question which
falls for our consideration is whether respondent No.2 can

legitimately enroll the employees of respondent No.3 as its
members on the strength of the entry `printing press’. In this
context it has to be noticed that respondent No.3, which is a
newspaper industry, apart from publishing daily newspapers, it

also publishes weeklies. It, no doubt, uses a printing press for the
purpose of publishing. That, however, is not the entire function of
respondent No.3. It is only one of its functions. Apart from the

printing press, it has journalists as also non-journalists in their
employment. Respondent No.3 is a newspaper industry and it
cannot be termed as part and parcel of printing press. In this

context our attention is drawn to the list of industries appended
to the Bombay Trade Unions Regulations, 1927. At serial No.28,
we have an entry “printing, publishing and allied industries”. It is
next pointed out that as far as the Constitution of Respondent

No.2 is concerned, it has included the industry of printing press
and has omitted “publishing and allied industries”. In our view,

the omission is significant. What has been included is merely the
business of printing press. It has not included within its compass
the industry of newspaper which could have fallen in the entry
“printing, publishing and allied industries”. The publishing of

newspapers has several functions apart from the function of
printing. Hence merely because the printing press is one of the
components of newspaper industry, it cannot be gainsaid that the
entire newspaper industry is nothing other than a printing press.
A printing press may be included in a newspaper industry. It may

be one of the functions of a newspaper industry. However, a
newspaper industry cannot be equated with the “printing press”
industry as publication of newspaper and periodical involves
many more functions than are involved in printing. A printing
press industry cannot include within its compass all the
employees of respondent No.3 who includes journalists and non-
journalists who may have no role to play in the printing of
newspapers and journals being published by respondent No.3. In

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the circumstances, we are constrained to hold that the
Constitution of respondent No.2 does not permit it to enroll

journalists and non-journalists employed by respondent No.3 as
its members. This being the position, what follows is that the
application of respondent No.2 for recognition of its union under
section 11 of the MRTU & PULP Act is not maintainable. The

impugned order passed by respondent No.1, taking a contrary
view, is thus liable to be set aside. In view of our finding that the
application of respondent No.2, is not maintainable, the
application, being Application (MRTU) No.6 of 1983 is also liable

to be dismissed.”

This was a case where the purpose was the persons were to be organised

and united, mentioned against an entry “printing press” in schedule but

the Court came to the conclusion that a newspaper industry could not be

equated with the printing press industry. We have a case where no purpose

is mentioned in the constitution at all.

There is another judgment of this High Court in the case of

Maharashtra Engg. Plastic & General Kamgar Union v/s Chamundi

Petroleum & Ors., reported in 2007 I CLR 810. In paragraph 2, the Court

held :

“2. It is undisputed fact that on the date of filing of the

complaint under the said Act, the petrol pump was not included
in Schedule-A to the constitution of the appellant and that there
is concurrent finding in that regard by the Labour Court and the
Industrial Court as well as the Learned Single Judge after taking
into consideration all the materials on record. It is also
undisputed fact that the petrol pump industry was sought to be
included as forming part of the constitution of the appellant-
union after filing the complaint and registration in that regard

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was obtained in the month of June, 2000. Section 28 read with
S. 3(17) of the said Act clearly requires the Union to be

registered one to enable such Union to file complaint under the
said Act. Considering the same, the view taken by the learned
Single Judge while confirming the decision of the Labour Court
and the Industrial Court, cannot be found fault with. The

decision of the Apex Court sought to be relied upon by the
learned advocate for the respondents in the matter of Indian
Oxygen Ltd. v. Their Workmen,
reported in AIR 1969 SC 306,
clearly supports the view taken by the learned single Judge in

the facts and circumstances of the case.”

We find ourselves in agreement with the law laid down in the above

referred cases by the two Division Benches of this Court. Since respondent

No.1 Union had not mentioned any purpose for which the Union was being

established in their constitution, they could not have been recognised

under Section 11 of the MRTU & PULP Act and there was no question,

therefore, of an application under Section 14 of the MRTU & PULP Act

being entertained.

8. Coming to the second ground, that the learned Judge of the

Industrial Court accepted affidavits and decided issue on the basis of an

inquiry conducted through the Investigation Officer, it is contended by the

learned Counsel that the Industrial Court has not only violated the law but

relying on the affidavits without rebuttal as no chance of rebuttal was

given is even against the rules of natural justice. In order to appreciate this

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argument, certain orders of the Tribunal need to be examined. On 29th

September, 2004, when affidavits were sought to be filed by respondent

No.1 union, respondent No.2 union made an application praying that

Investigation Officer be appointed and affidavits be not entertained. The

Court, however, on the question of filing of affidavits noted, “Moreover,

the learned Advocate for the applicant union has made it clear that for

proving the membership, the affidavits of the employees would not be

filed, but for some other relevant purpose, the affidavits may be filed. In

such circumstances, I am of the opinion that the present application, vide

Exh. NAU-14 is premature and filed on hypothetical basis that the

affidavits would be filed to prove the membership of the Union. So such an

application cannot be allowed.” Therefore, it is contended by the learned

Counsel that the Tribunal allowed those affidavits to be filed but not for

the purpose of proving the membership. But ultimately he relied on these

affidavits for proving the membership of the union. This order was also

challenged by way of writ petition being Writ Petition No. 9502 of 2004

but the writ petition was dismissed. The petitioner was granted liberty to

agitate this issue also in case the final order went against him. Again on

29th November, 2004 by an order, the Industrial Court allowed taking on

record 1556 affidavits. This application was made by respondent No.1.

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After discussing the application and objections to it by the petitioner and

referring to its earlier order, the Industrial Court passed the following

order:

“Application for production of the affidavits is allowed with condition
that these affidavits would not be used for proving the point of
membership of the applicant Union and may be used for other
ancillary or relevant aspect. At the same time, the Non-applicants are

at liberty to file counter affidavits or to adduce rebuttal evidence in
respect of alleged ancillary or relevant aspect which emerged from
the affidavits in this proceeding”.

The Industrial Court allowed filing of affidavits with liberty to the other

aside to file counter affidavits or adduce rebuttal evidence. It also allowed

the cross-examination of the persons who filed the said affidavits. By an

order of 30th April, 2005, the Industrial Court rejected the application of

the petitioner to cross-examine the persons who had filed affidavits and

the reasons given in the order are very interesting, namely, “All the

affidavits are similar and identical. In such circumstances, opportunity to

cross-examine 100 affiants, as given to the non-applicants, is quite

sufficient and just. It is not equitable and probable to direct all 1556

affiants to face the cross-examination. It will take years together to decide

the matter. In fact, the non-applicants are also at liberty to file counter

affidavits. Since the original petition is made time bound and non-

applicant union is restrained from signing the settlement with the company

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till decision of this main petition, I am of the opinion that the prayer of

non-applicant union to call remaining affiants for cross-examination

cannot be granted”. If, a person gives an affidavit that he belongs to a

particular union, what type of a counter affidavit can be given. The only

mode to rebut such an affidavit or to demolish the assertion made in such

an affidavit, which appeals to the commons sense, is the cross-examination

of such person. On the one hand the Court allowed 1556 affidavits to be

taken on record. On the other hand, the Court confined cross-examination

only against 99 persons and, therefore, on the basis of these affidavits if

any conclusions were drawn about the membership of respective union

would be clearly faulty and unfair.

9. Therefore, let us now examine as to how far the court has relied on

these affidavits to come to the conclusion that respondent No.1 was

representing the majority of the workers as on the crucial date. Although

in its earlier orders the Industrial Court had said that the affidavits would

be only for the ancillary purposes and not for coming to a conclusion with

regard to the strength of membership of respective union, but the learned

Counsel submits that, this was the sole evidence the Industrial Court relied

upon to come to a conclusion that respondent No.1 was the union

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representing majority of the members.

10. Before going to the findings, it will also be profitable to note some

relevant findings of the Investigation Officer. About applicant union, i.e.

respondent No.1, it is stated that they claimed that 1973 workers were

there members. Out of the list, the names of 12 members were shown

twice in the report. 26 workers in the list of Union were not at all

employees of the company. One more worker was also not found in the

list. Therefore, the Investigation Officer deleted 39 workers as not eligible

members. As such the claim got reduced to 1934 from 1973. In the receipt

with regard to the payment of the Union’s
contribution, no dates were

found by the Investigation Officer on many of the receipts. About the

recognised union i.e. one of the petitioner who claimed that they had

membership of 2166 members, it was found that 41 workers were not seen

in the list. Therefore, they were deleted and the claim was as such reduced

to 2125 from 2166. From January, 2003 to December, 2003, 2166

members were shown as registered in their books but no responsible

officer of the union had signed on the record book. The said recording was

not maintained as per the provisions of the Act. The annual fee of the

union was Rs.60/-. The receipts showing collection from 2166 members

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were submitted. The contribution of workers were reflected in cash book,

but the cash book was not maintained in the prescribed specimen and

responsible officer of the union had not signed the cash book. 54 workers

had retired/resigned and some of them had even expired. Thereafter the

Investigation Officer proceeded to verification of members. He found that

both the Unions gave the list of eligible members which was compared

with the list of the workers of the company. Out of 1934 eligible members,

there were only 26 members exclusively with respondent No.1 union. 1908

members, who were shown to be members by respondent No.1 union were

also members of the other union i.e. recognised union. So the Investigation

Officer came to the conclusion that 1908 members had a dual

membership. They were members of both the unions and ultimately he

found that the recognised union had 217 members which was the

exclusive membership of that union and only 26 persons were exclusive

member of respondent No.1 union which claimed recognition.

11. In the impugned Judgment and Order, the learned Industrial Court

had framed Issues. Issue Nos.1 and 2 are important for the present

question, which read as under:

“1. Whether the applicant Union proves that it has

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membership of not less than 30% of the total number of the
employees, employed in the undertaking for the whole of the

period of six months, immediately preceding the calendar
month, in which it so applies?

2. Whether the membership of Applicant Union was larger

than that of the membership of the Non-applicant No.2
(Recognised Union), during the whole of the period of six
months, prior to the filing of the petition?”

Both these Issues were decided in favour of respondent No.1 Union. We

have found that basically the approach of the Industrial Court in

proceeding with the controversy was defective. Respondent No.2 Union –

BKS was recognised union. It had not to prove any case. The onus was on

respondent No.1 union to prove that BKS had lost its representative

character within the meaning of Section 11 of the MRTU & PULP Act and

they were eligible to be recognised under Section 11 of the Act. This

approach can be seen from the observations made by the Industrial Court

in paragraph 21 of the impugned Judgment. The relevant observations are

as under:

“At this juncture, alone, I would like to point out that the entire

record of B.K.S. pertaining to membership fees as produced
before Investigating Officer, is suspicious. I will point out the
remarks of Investigating Officer as given on Page 8 of the report.
Investigating Officer has remarked that whatever membership
fees collected on 7th February, 2003 was shown as received two
days earlier i.e. on 5.2.2003 in the cash book. Similarly, whatever
membership fees collected on 10th February 2003 is shown as
collected two days prior i.e. on 8.2.2003 in cash book. It is very

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surprised to see that on 5th February 2003 and 8th February 2003
the amounts shown as collected towards membership fees by

B.K.S. were not at all collected on those respective days. So, both
entries in cash book pertaining to collection of membership fees
in cash book, are false and incorrect. Investigating Officer has
specifically pointed out on page 8 of his report that cash book

maintained by B.K.S. is not in prescribed proforma and it is not
signed by any of the office bearers of B.K.S. Moreover,
Investigating Officer has also reported on page 5 of his report
that membership registers of B.K.S. for the relevant period were

not signed by any of the office bearers and moreover, said
registers were not in prescribed proforma i.e. in Form J as
prescribed under the Act. Such documentary evidence of cash

book and membership registers without bearing the signature of
any of the office bearers of the Union and without maintaining
those in prescribed proforma, it can be easily said that such

documents are not authentic and authorised and cannot be relied
upon. I would like to point out from oral evidence of responsible
office bearer of B.K.S. i.e. Vice President of B.K.S. namely,
Deoram Bhosale that inspite of holding responsible post of B.K.S.

he has not yet read the constitution of B.K.S.”

We do not find from the impugned order that the onus was discharged by

respondent No.1 to prove that it was, at the relevant point of time,

representing majority of the members. In paragraph 25 of the said

judgment, the Industrial Court dealt with the affidavits and noted the

arguments and counter arguments. The learned trial Judge was of the view

that though these affidavits could not be taken as proof of membership but

these affidavits could be taken to be the proof of the Deponent’
s

declaration that he had relinquished his membership from B.K.S. Thus in

effect was an attempt to rely on these affidavits for proving the

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24

membership of respondent No.1 union. The court said, “So, affidavits of

1556 employees of the Company filed on behalf of Applicant Union, can be

accepted to substantiate the point that they brought an end to their

relationship with B.K.S. and had not paid the membership fees to B.K.S.

after December, 2002. Intention of as many as 1556 employees is very

clear from their affidavits that they disconnected their tie as members with

B.K.S. and come forward to file their respective affidavits of and on behalf

of applicant union in this matter for getting the status of recognised union.

“This was not only against the rules of natural justice, as also about the

established law, but against the order passed by the Industrial Court itself

earlier. Even if these affidavits could have been taken into consideration,

none of the affiants, except 100 affiants for which cross-examination was

allowed, could have been taken into consideration. But admittedly the

membership cannot be proved on the basis of the affidavits as it is the

settled law and we will refer to the judgment in this connection shortly.

The conclusion drawn by the learned Judge was, “So, after comparing the

entire evidence adduced by both unions on the point of strength of their

membership read together with report of Investigating Officer as well,

1556 affidavits of the employees filed on record by Applicant Union, I am

of the opinion that the Applicant Union was having more than 30% of

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25

membership of the total employees of the Company as well as larger

membership than the membership of B.K.S. during the period of six

months from the month of March, 2003 till August, 2003.” So the

affidavits filed by 1556 workers plays a decisive role in making the Court

to reach the conclusion that the applicant Union represented more than

1556 of the total number of the workers of the undertaking. Therefore, on

this ground the petitions are required to be allowed.

12. Whether the said affidavits can be taken into consideration or not, is

according to the learned Counsel for the petitioner, concluded by the

judgment of the Supreme Court in the case of Automobile Products of

India Employees’ Union v/s Association of Engineering Workers,

Bombay and others, reported in 1990 F.L.R. Vol.61 page 369. This was a

case where the Industrial Court tried to find out as to who was

representing majority of the members by adopting a method of secret

ballot with the consent of contesting parties. This was also not approved by

the Supreme Court. The Supreme Court dealt with the scheme of the Act

and observed as under:

“The facts in the present case would reveal that what was
done by the Industrial Court was to permit the registration of
the union as a recognised one by a method which was clearly

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26

alien to the Act. The Court in effect allowed the parties to
circumvent the provisions of the Act and by adopting a simplistic

method directed that whoever commanded a majority of votes
of the employees voting on a particular day, would be entitled
to the status of the recognised union. In effect, therefore, the
Court ignored in particular the mandatory provisions of Sections

10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting
this method, the Court also failed to find out whether any of
those workers, who voted, were members of any of the two
unions at any time including on the day of the ballot. This is

apart from the fact that what has to be found out is the
exclusive membership of the contesting unions continuously
over the specified period, the overlapping membership being

ignored.

The consent of the parties to follow a procedure which is

against the mandatory provisions of the Act, cannot cure the
illegality. For reasons which we have indicated earlier the
Legislature did not opt for the ballot as a method for
determining the representative character of the union and laid

down as elaborate procedure with necessary safeguards to do
so. In the circumstances, to permit the parties by consent to

substitute a procedure of their own is in effect to permit them to
substitute the provisions of the Act.”

Following this Judgement of the Supreme Court, the impugned order of

the Industrial Court cannot be sustained.

13. Coming to the third ground, which challenges the order of the

Tribunal on the ground that respondent No.1 union had not complied with

the requirement under Section 19(4) of the MRTU & PULP Act, we feel

that since we are allowing the writ petition on other two grounds, it may

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not be necessary to go into that question.

14. For the reasons aforestated, both the writ petitions are

allowed. The impugned order of the Industrial Court is quashed and set

aside. However, respondent No.1 if, feels, that it deserves to be recognised

in terms of law, it can make a fresh application in accordance with law.

15.

Rule made absolute in terms aforesaid.

16. There shall be no order as to costs.

Sd/-

(BILAL NAZKI, J.)

Sd/-

(J. H. BHATIA,J.)

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