ORDER
N.J. Pandya, J.
1. In all four complaints were filed under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter referred to as the said Act, by individual workmen under section 28 of the said Act alleging that there is unfair labour practice on the part of the company with reference to Item No. 9 of Schedule IV. Coupled with that they have also alleged unfair labour practice in accordance with Item Nos. 5 and 10 also.
2. As per the allegation in the complaints, this related to a settlement between the employer and the representative of the union of the employee as per the provisions of the Bombay Industrial Relations Act. It is an admitted position that it being a textile unit, the employer and the employee are
governed by Bombay Industrial Relations Act, hereinafter referred to as the said Bombay Act.
3. After four complaints were filed by individual workmen, the employer had joined issue with regard to all the question involved and while the matter was pending, the Apex Court delivered the judgment in the matter of Shramik Utkarsha Sabha v. Raymond Woollen Mils Ltd and others, reported in 1995(3) Bom.C.R. 450 : 1995(1) L.L.N. 804 S.C. This was arising out of a decision of this Court rendered by the Division Bench which is also reported in (1992(II) L.L.N. 881).
4. The employer therefore moved the trial Court in each of the four matters seeking that in view of the said Apex Court’s judgment only the recognised union or the representative union can expose the cause of each of them and the complaint initiated by each of the workman on his own individually cannot be entertained. The trial Court did not agree with the proposition and hence the present petition. Though there were four separate complaints, because there is common order, only one petition is filed by the employer which is the present one.
5. It may be noted that on filing of the petition the employer got an interim relief and this resulted into stay of the further proceedings of all the four complaints. Out of the four complainants, two complainants chose to approach the Court through the representative of the union by filing fresh petition. This happened somewhere in March, 1996 during the pendency of the present petition. Those complainants were thus found with a situation that during the pendency of the original complaint initiated by each of them individually they approached the trial Court on the same fact by fresh complaint through the representative of the Union. In this background they approached the Court requesting that stay be vacated in respect of their individual complaint so that they can withdraw the same. The withdrawal was instituted by filing of fresh complaint through the union as stated above.
6. I am not entering into the merits of the case of the rival parties which is pending before the trial Court for being agitated on its own merits in accordance with law. They have yet to lead evidence in support of the rival contentions and they may do so in accordance with law.
7. The question raised by way of this petition is whether the individual workman can be shut out from filing the complaint under the aforesaid clauses of Schedule IV of the said Act or they have to come through the representative of the union.
8. The fact as can be seen from the discussion so far is that the complainants have initiated the complaint individually. Admittedly, therefore is not a union that has initiated the complaint in its representative capacity. In some of the complaints, the union is joined as the respondents. As stated above, out of four complaints, in respect of two complainants the union has come in picture since the month of March, 1996 when fresh complaint came to be filed in respect of the two original complainants. They have, already withdrawn their original complaint after the stay was vacated at their request by this Court in the month of September, 1996 in respect of their original old complaint.
9. The Supreme Court in the Raymond Woollen Mills Limited, if gone into, clearly indicates that so far as facts are concerned that it was the employer who had filed the complaint against the representative union and another unrecognised union wanted to be impleaded as a party. In this background upholding the decision of this Court, the Apex Court held that the
representative union alone can represent the workman. In the aforesaid factual background, therefore, neither this Court in its Division Bench nor the Hon’ble Supreme Court when it dealt with the matter by way of Civil Appeal No. 1408 of 1995 was require dot consider the case where the individual workman wanted to knock at the door under the provisions of section 28 of the said Act by making reference to the aforesaid clauses to Schedule IV and trying to built up a case on it when the union having espoused their cause or initiated the same. Section 28 sub-section (1) reads as under :
“28. Procedure for dealing with complaints relating to unfair labour practices : (1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent-to deal with such complaint either under section 5, or as the case may be under section 7, of this Act:
Provided that the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.”
The aforesaid provision thus confer a right on any employee to file a complaint under the Act.
10. Had it been the case that union had already initiated a complaint, obviously the individual workman could not have filed a complaint on its own and perhaps could not have been permitted to be impleaded as a party either. This would be in keeping with the aforesaid reasoning of the Hon’ble Supreme Court confirming the decision of this Court in Raymond Woollen Mitts Ltd.
11. There also the employer and the employee were governed by the provisions of the Bombay Act as it was a textile union. Reading the relevant provisions of both the Acts, the learned Judge had no difficulty in holding that there is commonality to be found in both the enactments namely that of maintaining industrial peace on one hand and encouraging collective bargaining on the other. They were, therefore, held to be supplementary to each other and neither conflicting nor competing with each other. Respectively agreeing therefore, the said Act and the said Bombay Act both are complementing each other in the field of industrial relations. Coming back to the controversy at hand, in my opinion the submission made on behalf of the petitioners cannot be accepted.
12. While coming to this conclusion I have in mind the fact that two original complainants have chosen to approach the trial Court afresh through the union and have also withdrawn the original complaint subsequent to the filing of the fresh complaint.
13. The respondents, remaining two workmen have chosen to steadfast in their course of pursuing the original complaint.
14. Even in the background of there being an agreement with all the workmen of the petitioner-employer as it has been entered into between the employer, petitioner and the representative union, the fact remains that the workman has come out with a grievance in relation to the aforesaid clauses of Schedule IV of the said Act.
15. In the background of the aforesaid agreement between the employer and the representative of union, he may have a weakest of cases and therefore on merits he may not succeed. However, to shut him out altogether from entering the quota merely because there is a representative union in my opinion would militate against the statutory language of section 28, sub section (1) of the said Act.
16. In the course of arguments, I was also taken through section 21 subsection (2) of the said Act which reads as under :
“(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay 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 this Act except through the representative of employees entitled to appear under section 30 of the Bombay Act”
In view of the language starting with non obstante clause, the bar is to be found in respect of Item Nos. 2 and 6 of Schedule IV and they can be agitated only through union. For the rest obviously in respect of what is stated in the said Bombay Act, the workman can agitate the question individually without waiting for the union to espouse his cause under the provisions of the said Act.
17. In my opinion the said Act is a complete Code in itself. If at all the said Bombay Act is to be referred to, it as only to be for the purpose of ascertaining the provisions of section 30 which is clearly incorporating in sub section (2) quoted above. As a result of that exercise, section 32 also will have to be read and if necessary sections 33 and 33-A.
18. However, in my opinion this may be done if necessary but in the instant case in view of clear provisions of section 28, sub section (1) there is no need to undergo this exercise.
19. The learned Advocate appearing for the petitioner had relied on the decision of R.S. Raghunath v. State of Karnataka and another, and with reference to paragraphs 12 and 13 has submitted that non obstante clause has to be read keeping in mind the statute in its entirety and should be given effect only in case where there is conflict. It was further urged on behalf of the petitioner that when there is no conflict and as held by the Hon’ble Supreme Court in Raymond Woollen Mills Limited case and are complementing each other and there is commonality to be found, the non obstante clause should not be given any wider meaning at all. In my opinion, while agreeing with the above proposition if any meaning is to be given to the said non obstante clause appearing in sub-section (2) quoted above, giving its natural meaning it will have to be taken to mean that save and except for Item Nos. 2 and 6 the individual employee can raise question. Of course this has to be the question as per Schedule IV of the Act which exactly is the position in the instant case.
20. On behalf of the respondents two decisions of the learned Single Judge were cited. In the case of Rama Bala Kate and others v. Walchandnagar Industries Ltd. and others, reported in 1995(4) Bom.C.R. 249 : 1995 Lab. I.C. 2282 where the learned Judge was called upon to consider in view of the aforesaid Raymond Woollen Mills Ltd. the allegation of unfair labour practice
under Items Nos. 5 and 9 of the Schedule IV of the said Act. There also individual workman wanted to espouse the cause of their case and making reference to section 28, the learned Judge has come to the conclusion that the complaint is not maintainable at the instance of the individual workman. The second decision relied upon by the respondent is of the learned Single Judge in the case of Bajirao Rajaram Patil v. Maharashtra State Co-operative Bank Ltd. & another, . The question involved in this matter was whether an individual employee who was transferred from one place to another therefore can approach the Court under Item No. 3 of Schedule IV of the said Act. It was urged on behalf of the employer that this complaint has to be filed by the recognised union. The learned Single Judge was called upon to consider the said Raymond Woollen Mills Limited case as dealt with by the Hon’ble Supreme Court. After quoting the relevant paragraphs of the said Supreme Court judgment particularly paragraphs 13 and 14 and distinguishing the fact the present case before the learned Judge being the complaint filed by an employee of the undertaking to which B.I.R. applies, the complaint would be maintainable. Question has been raised in this regard by the learned Judge in the last part of paragraph 10 at page 1141. Thereafter the learned Single Judge has proceeded to refer to the provisions of the said Act as also where necessary the provisions of the said Bombay Act. He has made reference to sections 20 and 21 of the said Act and has discussed the same and thereafter has turned to section 28 in paragraph 15 and has without any difficulty reached the conclusion that in the fact situation before him when no cause was espoused by the union, action of the nature would be initiated by individual workman.
21. I am in respectful agreement with the same. No doubt the Division Bench in Raymond Woollen Mills Limited case of this Court which went to the Supreme Court is very much in the field and therefore on behalf of the petitioner emphasis was laid on paragraphs 14 and 15 of that judgment and it was strenuously urged that even under section 21 sub section (2) the plea of maintainability cannot be sustained. Item Nos. 2 and 6 of Schedule IV as referred to in sub section (2) were thereafter taken into consideration and note that only representative union can appear and act in such proceedings. Thereafter, the learned Judges have noted that merely because Item Nos. 2 and 6 have been mentioned and therefore excluded as per section 21 sub section (2) it cannot be inferred that in other matters the Union cannot represent the workman. This would be the position provided the union has initiated the proceedings on behalf of the workman and thus has esposed his cause. By this very reasoning therefore unnecessarily if the Union has not espoused the cause by that very provision the workman will be permitted to do so more particularly when section 28 sub-section (1) also provides for the same. This, therefore, in my opinion will not help the petitioner in any manner.
22. Essentially the employer is emphasizing the fact that when there is a collective bargaining and the agreement which is admittedly entered into by the representative union is binding on the employees including the applicant workman before the trial Court, allowing him to touch his own complaint in his individual capacity and not insisting upon it being agitated through the
union, would amount to opening the door for lot many action and will give a go by to the principles of collective bargaining.
23. This might be a good argument from the point of view of the merits of the matter before the trial Court but as to the maintainability in view of the said statutory provisions because of the underline principle of collective bargaining to be found in the said Bombay Act under which the parties are governed in place of clear cut provisions the workman cannot be prevented from filing the complaint. As noted above on merits he may loose but when statutory remedy is provided for a right created by the very statute, complaint cannot be shut on the ground that it has to come through the representative union. The Raymond Woollen Mills Limited case in my opinion does not lay down the law to that effect.
24. The petition is therefore rejected. Stay vacated.
25. Petition rejected.