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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 totalnumber 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::: Downloaded on – 09/06/2013 14:18:01 :::
9recognition 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 aperiod 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 berecognised 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::: Downloaded on – 09/06/2013 14:18:01 :::
11consider the said application on the date specified in the notice,
and calling upon other union or unions, if any, havingmembership 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 tothe 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 sixcalendar 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 Courtshall, 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::: Downloaded on – 09/06/2013 14:18:01 :::
16was obtained in the month of June, 2000. Section 28 read with
S. 3(17) of the said Act clearly requires the Union to beregistered 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. Thedecision 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 inthe 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 areat 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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22membership of not less than 30% of the total number of the
employees, employed in the undertaking for the whole of theperiod 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::: Downloaded on – 09/06/2013 14:18:01 :::
23surprised to see that on 5th February 2003 and 8th February 2003
the amounts shown as collected towards membership fees byB.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 bookmaintained 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 werenot 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 cashbook 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 suchdocuments 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::: Downloaded on – 09/06/2013 14:18:01 :::
26alien to the Act. The Court in effect allowed the parties to
circumvent the provisions of the Act and by adopting a simplisticmethod 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 Sections10, 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 isapart 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 beingignored.
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 laiddown as elaborate procedure with necessary safeguards to do
so. In the circumstances, to permit the parties by consent tosubstitute 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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27
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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