{"id":178422,"date":"1984-12-21T00:00:00","date_gmt":"1984-12-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balmer-lawrie-workers-union-vs-balmer-lawrie-and-co-ltd-and-ors-on-21-december-1984"},"modified":"2015-09-09T11:15:15","modified_gmt":"2015-09-09T05:45:15","slug":"balmer-lawrie-workers-union-vs-balmer-lawrie-and-co-ltd-and-ors-on-21-december-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balmer-lawrie-workers-union-vs-balmer-lawrie-and-co-ltd-and-ors-on-21-december-1984","title":{"rendered":"Balmer Lawrie Workers’ Union, … vs Balmer Lawrie And Co. Ltd. And Ors on 21 December, 1984"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Balmer Lawrie Workers’ Union, … vs Balmer Lawrie And Co. Ltd. And Ors on 21 December, 1984<\/div>\n
Equivalent citations: 1985 AIR 311, \t\t 1985 SCR (2) 492<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nBALMER LAWRIE WORKERS' UNION, BOMBAY AND ANR\n\n\tVs.\n\nRESPONDENT:\nBALMER LAWRIE AND CO. LTD. AND ORS.\n\nDATE OF JUDGMENT21\/12\/1984\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nKHALID, V. (J)\n\nCITATION:\n 1985 AIR  311\t\t  1985 SCR  (2) 492\n 1984 SCC  Supl.  663\t  1984 SCALE  (2)1000\n CITATOR INFO :\n D\t    1988 SC1829\t (6)\n\n\nACT:\n\t Constitution of India, 1950, Articles 14,19 (1) (a)\nand (c)-Sec.  20 Maharashtra Recognition of Trade Unions and\nPrevention of  Unfair Labour  Practices Act  1971 conferring\nexclusive right\t on recognised union to represent workmen in\ndisputes-Whether ultra vires the Constitution.\n      Maharashtra Recognition of Trade Unions and Prevention\nof Unfair  Practices \"Act  1971,  Sec.\t20(2)  (b)-Exclusive\nRight conferred\t on recognised union to represent workman in\ndisputes   Constitutional validity of Art. 14 and 19 (1) (a)\nand (c) of the Constitution.\n       Industrial  Disputes Act-Settlement  between employer\nand recognised\tunion-Provision for  deduction of  15%\tfrom\ngross arrears  payable Jo  all workmen\tincluding members of\nunrecognised  Union-Amount  to\tbe  credited  to  recognised\nUnion's\t  fund-Constitutional\t validity   of\t -   Whether\nunconstitutional vis-a-vis workmen of unrecognised Union.\n     Payment of\t Wages Act-Deduction  made  from  wages\t and\nsalary payable\tto an employee-Such deduction not authorised\nby the\tAct but by a Settlement- Consent of Parties for such\ndeduction from wages-Validity and effect of.\n\n\n\nHEADNOTE:\n     Section 19\t of the\t Maharashtra  Recognition  of  Trade\nUnions and  Prevention of  Unfair Labour  Practices Act 1971\n(1971 Act, for short) provides for recognition of a union if\nit  complies   with  certain  conditions  specified  in\t the\nsection. Section  20 enumerates\t the rights  of a recognised\nunion. Clause  (b)  of\tsub-sec.  (2)  of  s.20\t confers  an\nexclusive right\t on a  recognised union to represent workmen\nof an undertaking in certain disputes and makes the decision\nor order  made\tin  such  proceedings  binding\ton  all\t the\nemployees while\t it denies such right to a workman to appear\nor act\tor to  be allowed  to represent\t in any\t proceedings\nunder  the   Industrial\t Disputes   Act\t 1947  except  in  a\nproceeding in which the legality or propriety of an order of\ndismissal, discharge,  removal, retrenchment. termination of\nservice or suspension of an employee is under consideration.\n      After a strike, the respondent-employer entered into a\nsettlement in  respect of  a number  of\t pending  industrial\ndisputes with its union, which was recognised under the 1971\nAct. Clause 17 of the Settlement provided that the\n493\ncompany shall  deduct an  amount equivalent  to 15%  of\t the\ngross arrears  payable under the Settlement to each employee\ntowards contribution  to the  fund of  the recognised union-\nThe appellant,\ta non-recognised  union challenged in a writ\npetition before\t the High  Court the constitutional validity\nof Clause  17 of  the Settlement on the grounds, inter alia.\n(i)  that  Clause  17  permits\ta  compulsory  exaction\t not\nparented by  the Payment  of  Wages  Act  from\tthe  arrears\npayable to  the workmen\t who are  not  the  members  of\t the\nrecognised union;  (ii) that  section 20  of the 1971 Act is\nunconstitutional, since\t (a) it\t 1 unquestionably  denies to\nthe workman  who are  not members of a recognised union, the\nfundamental freedom  guaranteed under  Article\t19  (1)\t (a)\nand(e) inasmuch\t as it\tinheres the  pernicious tendency  to\ncompel the  Workmen to join the union which has acquired the\nstatus of  a recognised\t union even  if it followed a socio-\neconomic  or  socio-political  philosophy  contrary  to\t the\nphilosophy of non-members; (b) it denies to the unrecognised\nunion,\tthe   right  to\t  effectively  participate   in\t any\nproceeding  concerning\t the  workmen\tof   an\t  industrial\nundertaking, some of whom have formed a separate trade union\nand (c)\t it does  not treat  all the  unions at\t par as\t the\nmembers of non-recognised union are compelled to be bound by\nthe action  of the recognised union. The Single Judge of the\nHigh Court  dismissed the  writ petition  and the  same\t was\naffirmed in  appeal to the Division Bench of the High Court.\nHence this appeal.\n      Dismissing the appeal by the appellant,\n^\n      HELD:  1.1. In  order to\tappreciate  the\t controversy\nbetween the parties a brief review of the Scheme of the 1971\nAct would  be advantageous.  On\t the  advent  of  industrial\nrevolution which  aimed at  mass production  of commodities,\nlarge scale  industrial units came to be set up resulting in\nconcentration of  workmen at  one place\t under one employer.\nTrade  union  movement\trepresenting  the  organised  labour\ndeveloped as  an adjunct  of political party. The  organised\nLabour as  a vote  banks was  assiduously wooed by political\nparties. Every\tpolitical party\t with a\t view to controlling\nvote  banks  set  up  its  labour  wings.  Combinations\t and\nfragmentations\tof  politics]  parties\thad  the  pernicious\neffect on trade union. Multiplicity of political parties had\nits spill  over in  multiplicity of  trade unions seeking to\nrepresent workmen  in an industrial undertaking or industry,\nas the\tcase may  be. The  fall out  of the  multiplicity of\nunions\twas   inter  union  and\t intra-union  rivalry  which\nthreatened peaceful working of the industrial undertaking or\nthe industry.  Each union,  as\tthe  unfortunate  experience\nshows, tried  to over-reach the rival by making occasionally\nexperience and untenable demands. The emerging situation led\nto conflict  and confrontation\tdisturbing industrial  peace\nand harmony directly affecting production. Therefore, a need\nwas felt  that where  there are\t multiple unions  seeking to\nrepresent workmen  in an  undertaking or  in an\t industry, a\nconcept of  recognised union must be developed In fact, even\namongst trade  union leaders  there was\t near unanimity that\nthe concept of recognised union as the sole bargaining agent\nmust be developed in the larger interest of industrial peace\nand  harmony.  National\t Commission  on\t Labour\t also  after\nunanimously and\t whole-heatedly expressing  itself in favour\nof the concept of recognised union and it being clothed with\npowers of  sole bargaining  agent with exclusive right to r-\npresent workmen,  addressed itself  only to  the question of\nthe method  of\tascertaining  which  amongst  various  rival\nunions must be accorded the status of a recognised union and\nit was agreed that the union which\n494\nrepresents the\tlargest number\tof workmen  working  in\t the\nundertaking must acquire the status as that would be in tune\nwith the concept of industrial democracy. [499H; 501B; 502G-\nH; 503A-B; D-G]\n      1.2.  It is  therefore clear that every one was agreed\nthat where  there  are\tmultiple  unions  in  an  industrial\nundertaking or\tan industry,  the union\t having the  largest\nmembership of the workmen must be clothed with the status of\nrecognised union  and consequently  as the  sole  bargaining\nagent. The  under lining  assumption was that the recognised\nunion  represents   all\t the   workmen\tin   the  industrial\nundertaking or\tin the\tindustry. Thus,\t the  1971  Act\t was\nenacted\t as   its  long\t title\tshows  to  provide  for\t the\nrecognition of\ttrade  unions  for  facilitating  collective\nbargaining for\tcertain undertakings,  to state their rights\nand obligations,  to confer  certain powers  on unrecognised\nunions;\t to   provide  for  declaring  certain\tstrikes\t and\nlockouts as  illegal strikes  and lock-outs;  to define\t and\nprovide\t for   the  prevention\t of  certain  unfair  labour\npractices; to  constitute courts  (as independent machinery)\nfor carrying  out the  purposes of  according recognition to\ntrade unions  and for  enforcing the  provisions relating to\nunfair practices etc. [504A-B; 499E-F]\n      1.3.  Status to  be the  sole bargaining\tagent  as  a\nrecognised union  is a\thard won  battle  and  need  not  be\npermitted to  be frittered  away by  a sentimental  approach\nthat where  trade union\t movement has ideological overtones,\nsuch a\tprovision would\t compel\t workmen  either  to  become\nmembers of  a union, whose socio-political philosophy is not\nin tune\t with his  own or  suffer isolation  as such workman\ncannot forge  a tool  of a trade union or even if they forge\none, the  employer can\tignore it  with impunity. The matter\ncannot be  viewed from the perspective of same ideloguis but\nhas to\tbe examined  in\t the  large  perspective  of  public\ninterest of  peace and\tharmony\t in  the  industry,  healthy\nindustrial  relations  and  large  national  interest  which\neschews strikes,  lock\touts,  conflict\t and  confrontation.\n[504H, 505A-B]\n      2.1.  Sec. 20,  sub-sec. 2  while conferring exclusive\nright on  the recognised  union to  represent workmen in any\nproceeding  under   the\t Industrial   Disputes\t Act,\t1947\nsimultaneously denying\tthe right  to be  represented by any\nindividual workman has taken care to retain the exception as\nenacted in  Sec. 2A  of the  Industrial Disputes  Act, 1947.\nThis  legal  position  is  reiterated  in  Sec.\t 20(2)\t(b).\nTherefore, while  interpreting Sec.  20(2) (b),\t it must  be\nkept in\t view  that  an\t individual  workman,  who  has\t his\nindividual dispute  with the  employer arising\tout  of\t his\ndismissal, discharge, retrenchment or termination of service\nwill not  suffer any  disadvantage if  any recognised  union\nwould not espouse his case and he will be able to pursue his\nremedy under  the Industrial  Disputes Act,  1947. Once this\nprotection is assured, the question is whether the status to\nrepresent workmen  conferred on\t a recognised  union to\t the\nexclusion of  any individual  workman or  one or two workmen\nand who\t are not  members of the recognised onion would deny\nto such\t workmen the  fundamental freedom  guaranteed  under\nArt. 19(1) (a) and 19(1) (c) of the Constitution. [506B-D]\n      2.2.  The restriction  on\t the  right  to\t appear\t and\nparticipate in\ta proceeding  under the\t Industrial Disputes\nAct, 1947 to a workman who is not prepared to be represented\nby the recognised union in respect of a dispute not personal\nto him\talone such  as termination  of his  service does not\ndeny him the freedom\n495\n of  speech  and  expression  or  to  form  an\tassociation.\nConferring the\tstatus of  A recognised\t union on  the union\nsatisfying certain  pre-requisites which  the other union is\nnot in a position to satisfy does not deny the right to form\nassociation [506E.F]\n      2.3.  Forming an\tassociation is\tentirely independent\nand different  from its\t recognition. Recognition of a union\nconfers rights,\t duties and  obligations  Non-conferring  of\nsuch rights,  duties and  obligations on  a union other than\nthe recognised union does not put it on an inferior position\nnor the\t charge of  discrimination can\tbe entertained.\t The\nmembers of  a non-recognised  association  can\tfully  enjoy\ntheir fundamental  freedom of  speech and expression as also\nto form the association. The Legislature has, in fact, taken\nnote of\t the existing phenomenon in trade unions where there\nwould  be   unions  claiming  to  represent  workmen  in  an\nundertaking or\tindustry other than recognised union. Sec.22\nof 1971\t Act confers  some  specific  rights  on  such\tnon-\nrecognised unions,  one such  being the\t right to  meet\t and\ndiscuss with  the  employer  the  grievances  of  individual\nworkman The Legislature has made a clear distinction between\nindividual grievance  of a workman and an industrial dispute\naffecting all  or a  large number  of workmen In the case of\neven an unrecognised union, it enjoys the statutory right to\nmeet and  discuss the  grievance of  individual workman with\nemployer. It  also enjoys  the statutory right to appear and\nparticipate in\ta domestic  or departmental enquiry in which\nitsh member is involved. this is statutory recognition of an\nunrecognised union. The exclusion is partial and the embargo\non  such   unrecognised\t union\t or  individual\t workman  to\nrepresent workmen  is in  the large  interest  of  industry,\npublic interest\t and national  interest.  Such\ta  provision\ncould not  be said  to be  violative of\t fundamental freedom\nguaranteed  under   Art.  19(1)(a)   or\t 19(1)(c)   of\t the\nConstitution. [506H; 507A-D]\n      3.  Where a  representative union\t acts in exercise of\nthe powers  conferred by  Sec 20(2) it is obligatory upon it\nto act\tin a  manner as\t not  to  discriminate\tbetween\t its\nmembers and other workmen of the undertaking who are not its\nmembers.  However   when  a   settlement  is  reached  in  a\nproceeding under  the Industrial  Disputes Act\tin  which  a\nrepresentative union has appeared, the same is to be binding\non all\tthe workmen  of the undertaking This would mean that\nneither\t the  representative  union  nor  the  employer\t can\ndiscriminate between members of the representative union and\nother workmen  who  are\t not  members.\tBoth  the  benefits,\nadvantages, disadvantages  or liabilities  arising out\tof a\nsettlement in  any proceeding  under the Industrial Disputes\nAct to\twhich a\t representative union  is a  party shall  be\nequally applicable  to each workman in the undertaking There\nshall not  be the  slightest trace of discrimination between\nmembers and  non-members both  as regards the advantages and\nalso as\t regards the  obligations and liabilities. Any other\nview of\t Sec. 20(2)(b)\twould render it unconstitutional and\ninvalid as  being violative  of Art.  14. Equal treatment of\nmembers and  non-members is  implicit in  the section and by\nits interpretation this Court only makes it explicit. [511F-\nH; 512A-B]\n      (4)  It is  well known that no deduction could be made\nfrom the  wages and  salary payable to a workmen governed by\nthe Payment  of Wages  Act unless  authorised by that Act. A\nsettlement arrived  at on  consent of  parties\tcan  however\npermit a  deduction as\tit is  the outcome  of understanding\nbetween the  parties even  though such\tdeduction may not be\nauthorised or legally permissible under the Payment of Wages\nAct. [512D-E] H\n496\n      (5)  If under  a settlement  with\t the  representative\nunion some  benefits accrue  to the workmen, and upon a true\ninterpretation of Sec. 20(2)(b), it is held all encompassing\nand therefore binding on all workmen employer alike, all the\nbenefits would\tbe available  to the  workmen  who  are\t not\nmembers of  the representative union and who may have formed\na rival\t union. If these work- i men could not be denied the\nbenefits, they\twould enjoy  an unfair advantage if from the\npackage deal  covered by  the settlement, they draw benefits\nand abjure  liabilities. therefore,  a clause like Clause 17\nof the\tSettlement has\tto be  understood in  the context of\nstrengthening the  trade union\tmovement and to free it from\nfinancial constraints.\tWorkmen who  are members  of a union\nmay pay\t fee for  membership  and  enjoy  the  advantage  or\nmembership put\tif by the action of the representative union\nall workmen  acquire  benefit  or  monetary  advantage,\t the\nmembers and  non-members alike\tcan be\tmade to\t make common\nsacrifice in  the large interest of trade union movement and\nto strengthen  the  trade  union  which\t by  its  activities\nacquired the  benefits for  all workmen.  Payment  to  trade\nunion fund  in these circumstances can be styled as quid pro\nquo for\t benefits acquired.  It can  neither be\t said to  be\ncompulsory exaction  nor a  tax. Therefore, there is nothing\nobjectionable in  Clause 17  of the Settlement which directs\nthe employer  to deduct\t 15% of the gross arrears payable to\neach employee  under the  settlement as\t contribution to the\ntrade union funds. Thereby the workman is not subscribing to\nthe philosophy\tof rival  union but  he is merely paying the\nprice of the advantage obtained. Another view would make the\nunion  members\t suffer\t and   the  non-members\t benefit,  a\nsituation which\t must at  all costs  be\t avoided.  Therefore\nclause 17 of the Settlement would not be invalid despite the\nlack of\t consent of  the workmen  who  are  members  of\t the\nappellant union.  The settlement  having been  made  by\t the\nrepresentative union,  its right  to represent\tall  workmen\nwould imply  the consent  of the members of the rival union.\nThis  is   the\tlegal\tconsequenee  of\t the  right  of\t the\nrepresentative\tunion  to  represent  all  workmen  and\t the\nbinding effect of its action. [513G-H; 514A-E]\n      Reg. v. Duffield, 5, Cox's Criminal Case, 404 referred\nto.\n      Raja  Kulkarni and  Ors. v. State of Bombay<\/a> [1954] SCR\n384, relied upon.\n      Rum  Prasad Vishwakarma  v.  The\tChairman  Industrial\nTribunal,<\/a> [1964] 3 SCR 196, held in-applicable.\n      Girja  Shankar  Kashi  Ram  v.  Gujarat  Spinning\t and\nWeaving Mills  Ltd.<\/a> [1962]  2 Supp.  SCR  890  and  Santuram\nKhudai v.  Kimatrai Printers  & Processors  (P) Ltd. & Ors.,<\/a>\n[1978] 2 SCR 387, distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CIVIL  APPELLATE JURISDICTION:  Civil Appeal No. 3527
\n(NL) of 1984
\n      From the Judgment and Order\/decree dated July 27, 1984
\nof the High Court of Bombay in Appeal No. 660 of 1984.
\nDanial Latifi,\tV.S. Desai  R.S. Sodhi, K.V. Sreekumar, M.N.
\nShroff and Ms. Radha-de’ Souza for the Appellants.\n<\/p>\n
497<\/span><\/p>\n
      M.K.  Ramamurthi, Mrs. Urmila Sirur, F.D Damania, A.M.
\nA Dittia and D.N. Misra or the Respondents.\n<\/p>\n
      M.N. Shroff the State of Maharashtra
\n      The Judgment of the Court was delivered by
\n      DESAI,  J Two  unions of workmen employed in the first
\nrespondent Company  M\/S Balmer\tLawrie & Co. Ltd (’employer’
\nfor short)  are at  logger-heads and  their inter-se rivalry
\nhas thus  landed in  this  Court.  Appellant  Balmer  Lawrie
\nWorkers Union  (‘non-recognised Union’ for short) filed Writ
\nPetition No. 1518 of 1984 in the High Court of Judicature at
\nBombay challenging  the constitutional\tvalidity of  Sec. 20
\n(2) read  with Schedule\t I of the Maharashtra Recognition of
\nTrade Union  & Prevention  of Unfair  Labour Practices\tAct,
\n1971  (‘1971   Act’  for  short).  To  this  petition,\tthey
\nimpleaded  the\t employer  company  and\t the  Balmer  Lawrie
\nEmployees Union (‘Recognised Union’ for short).\n<\/p>\n
      Few  facts giving\t rise to  the writ  petition may  be
\nstated. A settlement was arrived at between the employer and
\nthe  recognised\t Union\tresolving  a  number  of  industrial
\ndisputes pending  between them.\t Clause 17 of the Settlement
\nreads as under:\n<\/p>\n
\t\t “17. Arrears will he paid within two months
\n     from the  date of\tsigning of the. Settlement. Further,
\n     the Company  shall collect\t from each workman an amount
\n     equivalent to  15% of the gross arrears payable to each
\n     employee under  this settlement  as contribution to the
\n     Union Fund\t and this  Amount shall be paid to the Union
\n     within 3 days of the payment of arrears by Payee’s .A\/c
\n     Cheque.”<\/p><\/blockquote>\n
      The  non-recognised union\t -the appellant apprehending
\nthat if\t and when settlement would be arrived at between the
\nemployer and  the recognised union, there would be the usual
\nclause for  deduction from  amounts payable  to the  workmen
\nunder the settlement for the benefit of the recognised union
\nTherefore the non-recognised union informed the employer not
\nto make\t any deduction\tpursuant to  the settlement from the
\narrears payable\t to the\t members of the non-recognised union
\nas and\twhen the  settlement is\t arrived at.  Correspondence
\nensued between\tthe parties  which led\tto the filing of the
\nwrit petition  No. 473 of 1984. This writ petition was moved
\nto forestall  the settlement if any about any deduction from
\nthe payments under the settlement as and when arrived at. An
\nundertaking was given before the
\n498<\/span>
\nHigh Court  that the  employer\twould  give  notice  of\t the
\nsettlement, if\tit is  finally arrived at and will implement
\nthe same  only a  week thereafter.  On this undertaking, the
\nwrit petition  was withdrawn.  Thereafter the settlement was
\narrived at which inter-alia included Clause No. 17 extracted
\nhereinbefore. The  non-recognised union\t filed a  fresh writ
\npetition inter\talia contending\t that  Clause  7  permits  a
\ncompulsory exaction  not permitted  by the  Payment of Wages
\nAct from the arrears payable to the workmen by the employer,
\nwithout the  consent of the workmen, who are not the members
\nof the recognised union. It was alleged in the petition that
\nif upon\t its true  construction Sec.  20 (2) (b) of 1971 Act
\npermits such  compulsory exaction without the consent of the
\nworkmen\t concerned,   the  same\t  will\tbe  unconstitutional
\ninasmuch as  such union\t levy would  force  and\t compel\t the
\nworkmen against\t their will  to join  the  union  which\t has
\nacquired the status of recognised union. Specific allegation
\nwas that  Sec. 20  (2) violates\t the fundamental  freedom to
\nform association  guaranteed by\t Art 19\t (1) (c). There were
\nother incidental  grievances made  in the  petition but\t the
\nmain thrust  of the  petition was against the constitutional
\nvalidity of aforementioned section. The learned Single Judge
\ndismissed the writ petition and after an unsuccessful appeal
\nto the\tDivision Bench\tof the\tHigh Court  this appeal\t was
\nfiled by special leave
\n      Mr. Daniel Latifi learned counsel who appeared for the
\nappellant assisted  by Mrs. Radha D. De’souja, the President
\nof non-recognised  union and  also as  counsel appearing for
\nnon-recognised union  urged  that  if  Sec.  20\t (2)  is  so
\ninterpreted as\tto mean\t that the employer or the recognised
\nunion can discriminate between the members of the recognised
\nunion and  non-members though  workmen of the same employer,
\nthe same  is violative\tof Art.\t 14 and\t if it\tcompels\t the
\nworkmen to  join recognised union it is violative of Art. 19
\n(1) (a) and (c).\n<\/p>\n
     Sec. 20  of the  1971 Act\tenumerates the rights of the
\nrecognised union. Sec. 20 (2) reads as under:\n<\/p>\n
\t      “20 (2): Where there is a recognised union for
\n     any undertaking,-\n<\/p><\/blockquote>\n
     (a)  that union  alone shall  have the right to appoint
\n\t  its nominees\tto represent  workmen on  the  Works
\n\t  Committee  constituted  under\t Section  3  of\t the
\n\t  Central Act:\n<\/p><\/blockquote>\n
     (b)   no  employee shall be allowed to appear or act or
\n\t  be Hallowed  to be  represented in any proceedings
\n\t  under the
\n499<\/span>
\n\t  Central Act  (not being  a proceeding in which the
\n\t  legality or  propriety of  an order  of dismissal,
\n\t  discharge, removal,  retrenchment, termination  of
\n\t  service or  suspension of  an\t employee  is  under
\n\t  consideration),  except   through  the  recognised
\n\t  union; and  the decision arrived at or order made,
\n\t  in such  proceeding shall  be binding\t on all\t the
\n\t  employees in such undertaking;\n<\/p><\/blockquote>\n
\t       and accordingly the provisions of the Central
\n     Act, that is to say, the Industrial Disputes Act, 1947,
\n     shall stand  amended in  the manner  and to  the extent
\n     specified in Schedule I.”<\/p><\/blockquote>\n
      Does  Sec. 20  (2) which confers an exclusive right to
\nrepresent workmen  of  any  undertaking\t on  a\tunion  which
\nacquires the status of a recognised union under 1971 Act and
\nsimultaneously denies  the right  to a\tworkman to appear or
\nact or\tto be  allowed to  represent in any proceeding under
\nthe Industrial\tDisputes Act,  1947  (‘lD  Act’\t for  short)
\nviolate\t the   fundamental  freedom   to  form\t association
\nguaranteed by Art 19 (1) (c).\n<\/p>\n
      The  1971 Act  was enacted  as its long title shows to
\nprovide for the recognition of trade unions for facilitating
\ncollective bargaining  for certain  undertakings,  to  state
\ntheir rights  and obligations,\tto confer  certain powers on
\nunrecognised  unions;\tto  provide  for  declaring  certain
\nstrikes and  lock-outs as  illegal strikes and lock-outs; to
\ndefine and  provide for\t the prevention\t of  certain  unfair
\nlabour\tpractices;   to\t constitute  court  (as\t independent
\nmachinery)  for\t carrying  out\tthe  purposes  of  according
\nrecognition to trade unions and for enforcing the provisions
\nrelating to  unfair practices  etc There  is in force in the
\nState of  Maharashtra a\t comprehensive\tlegislation,  Bombay
\nIndustrial Relations  Act, 1946\t touching almost all aspects
\nof industrial  relations but  it applies  only to  specified
\nindustries. Industries\tother than  specified industries are
\ngoverned by  industrial Disputes  Act, 1947. This latter act
\nis not comprehensive in character There is no provisions for
\nrecognising union vis-a-vis the undertaking or the industry.
\nUnions of  workmen employed  by undertakings not governed by
\nBombay Industrial  Relations Act voiced dissatisfaction over
\nthis discriminatory  treatment and  the lacuna\tin the\t1947
\nAct. To\t bring the  provisions of  both the  acts on  par in
\ncertain specific  areas 1971  Act was  enacted by  the State
\nLegislature.\n<\/p>\n
      A\t brief review of the scheme of the 1971 Act would be
\nadvantageous. It  specifically provides\t for recognition  of
\nunions. A  conspectus of  provisions included in Chapter III
\nheaded recognition of unions
\n500<\/span>
\nprovide that  every undertaking\t wherein 50 or more employes
\nare employed or were employed on any day of the preceding 12
\nmonths will  be governed  by the provisions therein set out.
\nSec.  I\t  l  provides  for  making  of\tan  application\t for
\nrecognition  of\t  union.  The\teligibility  criterion\t for
\nobtaining the recognition is that the union applying for the
\nstatus of  a recognised union must have for the whole of the
\nperiod of  six calendar\t months\t immediately  preceding\t the
\ncalendar  month\t  in  which  it\t makes\tthe  application,  a
\nmembership of  not less\t than thirty  percent of  the  total
\nnumber\tof   employees\temployed  in  any  undertaking.\t The
\napplication has\t to be\tmade to\t the Industrial Court set up
\nunder the Bombay Industrial Relations Act. On receipt of the
\napplication, the  Industrial Court  has to cause a notice to
\nbe  displaced  on  the\tnotice\tboard  of  the\tundertaking,
\ndeclaring its  intention to consider the said application on
\na date\tto be specified in the notice and calling upon other
\nunion or  unions, if  any, having membership of employees in
\nthat  undertaking   and\t the  employers\t and  the  employees
\naffected by  the proposal  to show cause why the recognition
\nshould\tnot   be  granted.  If\tafter  considering  all\t the
\nobjections that\t may have been lodged pursuant to the notice
\ngiven as  hereinbefore indicated, the industrial Court comes
\nto  the\t  conclusion  that   the  conditions  requisite\t for
\nregistration are  satisfied and\t the union complies with the
\nconditions specified  in Sec  19, the Industrial Court shall
\ngrant recognition  to the  applicant union under the Act and
\nissue a\t certificate in the prescribed form. At any point of
\ntime, there  shall not\tbe more than one recognised union in
\nrespect of  the same  undertaking. Sec.\t 13 confers power on
\nthe Industrial Court to cancel the recognition if any of the
\ncircumstances therein set out is satisfactorily established.
\nSec. 14\t provides for resolving the dispute inter se between
\nthe recognised\tunion and another union seeking recognition.
\nThe obligations\t and rights  of the recognised union are set
\nout in Secs. 19 and 20 in Chapter IV.\n<\/p>\n
      Mr.  Daniel Latifi,  learned counsel  urged  that\t the
\nembargo placed\tby Sec.\t 20 (2) (b) on any workman to appear
\nor to be represented in any proceeding under the ID Act 1947
\nbarring those  which are  specifically excluded\t save by the
\nrecognised  union   contravenes\t the   fundamental   freedom
\nguaranteed to  the citizens  under Art 19 (1) (a) and (c) of
\nthe Constitution  Art. 19 (1) (a) guarantees to the citizens
\nfundamental freedom of speech and expression and Art. 19 (1)\n<\/p>\n
(c) guarantees\tfundamental  freedom  to  form\tassociation.
\nTersely put the question is: if a law relating to regulating
\nindustrial  relations\tbetween\t the  employer\tand  workmen
\nprovides for  a sole bargaining agent such as the recognised
\nunion and  simultaneously denies  to the  individual workman
\nthe right to appear or to be represented in any
\n501<\/span>
\nproceeding under  the ID  Act, 1947, would it contravene the
\nfundamental freedoms  guaranteed by  Art. 19  (1) (a) and 19
\n(1) (c) ?\n<\/p>\n
\t     History  bears a  witness to the long-drawn out
\nunequal fight between the employer and the employed to be on
\nterms of equality. A brief resume would be helpful.\n<\/p>\n
      On  the advent of industrial revolution which aimed at
\nmass production of commodities, large scale industrial units
\ncame to\t be set\t up resulting in concentration of workmen at
\none place  under one  employer. Individual  employer has now
\nbeen replaced  by  corporations\t wielding  immense  economic
\npower. To say that workmen were at the mercy of the employer
\nis to  state the  obvious. It was even sacrilegious to think
\nof a  right of\ta workman  qua the employer Till the laissez
\nfaire ruled  the roost\tthe State would not interpose itself
\nto protect  the under-privileged  and weaker  partner in the
\nindustry and  left the\tworkmen to  fend for themselves, the
\nState concerning  itself only  with the\t problem of  law and
\norder when  a conflict\tarose between  the employer  and the
\nworkmen. This was predicated upon an untenable if not wholly
\nerroneous assumption  that as  the society  has\t moved\tfrom
\nstatus to  contract, the  employer and\tthe workman would by
\nnegotiations churn  out a  contract mutually  beneficial  to
\nboth. That the parties were unevenly placed in the matter of
\ncontracting was\t absolutely over  looked. The liberal albeit
\ncapitalist English society treated united refusal of work on
\nthe part  of workmen as conspiracy and as Jeremy Benthan put
\nit “the\t word conspiracy  served judges\t for an\t excuse\t for
\ninflicting punishment  without stint  on all persons by whom
\nany act\t was committed which did not accord with the Judges’
\nnotion concerning the act in question.” Justice Erle in Reg.
\nv. Duffield(1) summed up to the Jury as under:\n<\/p>\n
\t      “The unlawful combination and conspiracy is to
\n     be inferred from the conduct of the parties. If several
\n     persons take  several steps,  all tending\ttowards\t one
\n     obvious purpose,  it is  for the  jury to\tsay  whether
\n     these persons have not combined together to bring about
\n     that  and\t which\ttheir  conduct\tappears\t adapted  to
\n     effectuate.”<\/p><\/blockquote>\n
\t     English  Common Law frowned upon combination of
\nworkmen to  achieve common  object; Common  Law looked\tupon
\ncombination as\tcriminal in  character. On  the enactment of
\nthe Trade  Unions Act,\t1913 in\t United Kingdom,  registered
\ntrade union acquired corporate
\n\t (1) 5, Cox’s Criminal case. 404.\n<\/p>\n
502<\/span><\/p>\n
capacity, entitled to sue and be sued in its registered name
\nand enter  into contracts  as separate entity, separate from
\nits members. This status acquired by the trade unions, would
\nclothe\ta   collective\tagreement  arrived  at\tbetween\t the
\nemployer and the union with the semblance of legality though
\nCommon Law  for long  refused to recognise it as enforceable
\ncontract. Royal\t Commission on\tTrade Unions  and Employer’s
\nAssociation under the Chairmanship of Lord Donovan (‘Donovan
\nCommission’ for\t short) which  submitted its  report in 1968
\nproceeded on  the basis\t that collective  bargains  are\t not
\nsubject to  legal enforcement  and number  of arguments were
\nput forth  in support  of the  proposition. Even  though the
\nCommission in  concluding portion  of paragraph\t 472 of\t its
\nreport observed\t that “Industrywide bargaining and workshops
\nor plant  bargaining are,  however, closely  intertwined. To
\nenforce one without the other would be to distort the effect
\nof our\tcollective system. That system is today a patch-work
\nof formal  agreements, informal\t agreements and\t custom\t and
\npractice. No  Court, asked to enforce a collective agreement
\ncould  disentangle   the  agreement  from  the\tinarticulate
\npractices which\t are its  background.” Quest  of justice  by
\nlabour, victim\tfor long  of exploitation  of human being by
\nimpersonal juristic  persons such as corporations led to the
\nformation of  industrial norms\tby a  legislative  enactment
\ngenerally styled  as labour  law. The  main object of labour
\nlaw was\t to be\ta countervailing  force to  counter-act\t the
\ninequality of bargaining power which is inherent and must be
\ninherent in  the employment  relations. As  stated by  Otto-
\nKhan-Freund in\this Hamalin  lecture “this was an attempt to
\ninfuse law  into a relationship of command and obedience, in
\nother words  in the  field where  one enjoys  the  power  to
\ncommand and  other suffers  the duty  to obey. To the extent
\nlaw limits  the range  of workers’  duty  of  obedience\t and
\nenlarges the  range of\tits freedom, Labour Law fulfills one
\nof its objects.”(1)
\n\t    In the context of the political society which we
\nresolved to  set up  in the  post-independent India,  on the
\nintroduction of\t universal adult suffrage by Art. 326 of the
\nConstitution trade union movement representing the organised
\nlabour developed  as  an  adjunct  of  political  part.\t The
\norganised labour  as a\tvote bank  was assiduously  wood  by
\npolitical parties.  Every political  party with\t a  view  to
\ncontrolling vote banks set up its labour wings. Combinations
\nand fragmentations  of political  parties had the pernicious
\neffect on trade unions. Multipli-\n<\/p>\n
      (1) See Report the Labour Laws Review Committee, Govt.
\nof Gujarat Publication 1974 Page 5.\n<\/p>\n
503<\/span><\/p>\n
city of political parties had its spill over in multiplicity
\nof trade  unions  A  seeking  to  represent  workmen  in  an
\nindustrial undertaking\tor industry, as the case may be. The
\nfall out  of the  multiplicity of unions was inter-union and
\nintra-union rivalry which threatened peaceful working of the
\nindustrial undertaking\tor the\tindustry. Each union, as the
\nunfortunate experience\tshows, tried to over-reach the rival
\nby making  occasionally exhorbitant  and untenable  demands.
\nThe emerging  situation led  to conflict  and  confrontation
\ndisturbing industrial  peace and  harmony directly affecting
\nproduction In the first Five Year Plan it was observed:\n<\/p>\n
\t      “Answer to class antagonism and world conflict
\n     will arrive  soon if  we succeed in discovering a sound
\n     basis  for\t human\trelations  in  industry.  Industrial
\n     relations are  there fore,\t not a\tmatter\tbetween\t the
\n     employers and  employees alone  but a  vital concern of
\n     the community  which may  be expressed  in measures for
\n     the protection of its larger interests.”<\/p><\/blockquote>\n
\t     A\tneed was  felt that where there are multiple
\nunions seeking\tto represent workmen in an undertaking or in
\nan  industry,\ta  concept  of\trecognised,  union  must  be
\ndeveloped. Standing  Labour Committee  of the Union of India
\nat its\t29th Session  held in  July 1970 addressed itself to
\nthe question  of recognition of trade union by the employer.
\nIn fact\t even amongst  trade union  leaders there  was\tnear
\nunanimity that\tthe concept  of recognised  unions the\tsole
\nbargaining agent must be developed in the larger interest of
\nindustrial peace  and harmony. National Commission on Labour
\nchaired by  late  Shri\tP.B.  Gajendragadkar,  former  Chief
\nJustice\t of  India,  after  unanimously\t and  wholeheartedly
\nexpressing itself  in favour  of the  concept of  recognised
\nunion and  it being  clothed with  powers of sole bargaining
\nagent with  exclusive right  to represent workmen, addressed
\nitself only  to the  question of  the method of ascertaining
\nwhich amongst  various rival  unions must  be  accorded\t the
\nstatus of  a recognised\t union. Planting  itself  firmly  in
\nfavour of democratic principle, it was agreed that the Union
\nWhich represents  the largest  number of  workmen working in
\nthe undertaking\t must acquire the status as that would be in
\ntune with  the concept of industrial democracy. The fissures
\narose as  to the  method of  finding out the membership. The
\nCommission had\tbefore it  two alternative  suggestions\t for
\nascertaining the  membership (i)  verification of membership
\nby registers and (ii) by secret ballot. As there was a sharp
\ncleavage of  opinion, the  Commission left  the question  of
\nadopting one  or the  other method  in a  given case  to the
\nproposed Indus-\n<\/p>\n
504<\/span><\/p>\n
trial Relations\t Commission which  was recommended to be set
\nup if  the recommendations  of the  Commission\twere  to  be
\naccepted. What\tis of importance to us is that every one was
\nagreed that where there are multiple unions in an industrial
\nundertaking or\tan industry,  the union\t having the  largest
\nmembership of the workmen must be clothed with the status of
\nrecognised union  and consequently  as the  sole  bargaining
\nagent. The  underlining assumption  was that  the recognised
\nunion  represent   all\tthe   workmen  in   the\t  industrial
\nundertaking or in the industry.\n<\/p>\n
      It  may  be  mentioned  in  passing  that\t the  Bombay
\nIndustrial Relations  Act had  incorporated  provisions\t for
\nconferring the\tstatus of  a recognised\t union\tand  despite
\nstrident criticism of the method of ascertaining membership,
\nthe system  seems to  be working  well. The Act went further
\nand developed  the concept of approved union on which powers
\nwere conferred for making reference of an industrial dispute
\nto the\trelevant authority  for adjudication-a\tpower  which
\nunder  the   Central  Act  is  the  close  preserve  of\t the
\nappropriate Government. The oft-repeated grievance voiced by
\nthose opposed to the concept of recognised union entitled to
\nrepresent  all\t workmen  was\tthat  such   a\tstatus\twill
\nconcentrate so\tmuch power  in the  hands of  the recognised
\nunion that  it can  work to  the disadvantage  of those\t not
\nbecoming its  members as also those opposed to the political
\nor social  philosophy of  the  recognised  union  and  would
\ntherefore keep\taway  from  it.\t The  chink  in\t the  armous
\nappeared when it was found that a workman who is questioning
\nhis termination\t of service,  largely a\t personal punishment
\nand therefore  provides a  personal cause  of action but who
\nwas not\t a member  of the  recognised union was sought to be
\nthrown\tout   of  the  court  by  the  representative  union
\nappearing to get the petition dismissed on the specious plea
\nthat  it   alone  is  entitled\tto  represent  workmen.\t The
\nLegislature immediately\t became aware  of  the\tpitfall\t and
\nremedied the  situation by  introducing Sec.  2 (A)  in\t the
\nIndustrial Disputes Act, 1947 which provides that a workman,
\nwho is\tdismissed, discharged  or removed  from\t service  or
\nwhose service  is otherwise  terminated can  espouse his own
\ncause without  the help of a recognised union and yet such a
\ndispute would be an industrial dispute. This very protection
\nis retained  in the  impugned provision\t Sec.  20  (2)\t(b).
\nStatus to be the sole bargaining agent as a recognised union
\nis a  hard won\tbattle and  need  not  be  permitted  to  be
\nfrittered away\tby a  sentimental approach  that where trade
\nunion movement\thas idelogical\tovertones, such\t a provision
\nwould compel  workmen either  to become\t members of a union,
\nwhose socio-political philosophy is not in tune with his own
\nor suffer isolation as such workman can
\n505<\/span>
\nnot forge  a to 1 of A trade union or even if they form one,
\nthe employer  can ignore  it with  impunity.  Is  there\t any
\nsubstance either  in  the  contention  or  the\tapprehension
\nvoiced ? The matter cannot be viewed from the perspective of
\nsame  ideloguis\t  but  has  to\tbe  examined  in  the  large
\nperspective of\tpublic interest\t of peace and harmony in the
\nindustry, healthy  industrial relations\t and large  national
\ninterest which\teschews\t strikes,  lock-outs,  conflict\t and
\nconfrontation.\n<\/p>\n
      Having briefly referred the history of the development
\nof trade  unions, let us turn to the challenge in this case.
\nMr. Daniel  Latifi  contended  that  Sec  20  unquestionably
\ndenies to  the workmen\twho are\t not members of a recognised
\nunion the  fundamental freedom\tguaranteed under Art. 19 (1)\n<\/p>\n
(a) and\t (c). It  was urged  that the  provisions of the Act
\ninheres the  pernicious tendency  to compel  the workmen  to
\njoin the union which has acquired the status of a recognised
\nunion even  if followed\t a socio-economic or socio-political
\nphilosophy contrary  to the  philosophy of  non-members\t and
\nthat  such   compulsion\t denies\t  the  free   dom  to\tform
\nassociation. It\t was also  submitted that  the right to form
\nassociation would  be an  empty formality if the association
\nis not\tin a  position to  effectively\tparticipate  in\t any
\nproceeding  concerning\t the  workmen\tof   an\t  industrial
\nundertaking, some  of whom  have  formed  a  separate  trade
\nunion. It  was stated  that either  all the  unions  of\t the
\nworkmen should\tbe treated on par or at any rate in order to
\nsafe guard  the members\t of non-recognised union against the
\nimposition of  the will\t of recognised\tunion, they  must be
\nfree not  to be bound by the action of the recognised-union.
\nIt was\tstated that  Sec. :0  (2) of the 1971 Act denies all
\nthese  safeguards   and\t therefore   it\t must\tbe  declared
\nunconstitutional.\n<\/p>\n
\t     Before  the introduction  of Sec.\t2-A  in\t the
\nIndustrial Disputes  Act, 1947 the court leaned in favour of
\nthe view  that individual  dispute cannot be comprehended in
\nthe  expression\t ‘industrial  dispute’\tas  defined  in\t the
\nIndustrial Disputes  Act, 1947.\t Any dispute not espoused by
\nthe union  for the  general benefit  of\t all  workmen  or  a
\nsizeable segment  of them  would not  be comprehended in the
\nexpression ‘industrial\tdispute’ was the courts’ view. Often
\nan invidious situation arose out of this legal conundrum. An
\nindividual workman if punished by the employer and if he was
\nnot a  member of  the recognised  union, the latter was very
\nreluctant to espouse the cause of such stray workman and the
\nindividual workman was without a remedy. Cases came to light
\nwhere the  recognised union  by devious\t means compelled the
\nworkmen to  be its  member before  it  would  espouse  their
\ncauses. The  trade union  tyranny was  taken note  of by the
\nlegis-\n<\/p>\n
506<\/span><\/p>\n
lature\tand  Sec.  2-A\twas  introduced\t in  the  Industrial
\nDisputes Act,  1947 by\twhich it  was made  distinctly clear
\nthat the discharge, dismissal retrenchment or termination of
\nservice of  the individual  workman would  be an  industrial
\ndispute notwithstanding\t that no  other workman or any union
\nof workman  is a  party to  the dispute. Sec. 20, sub-sec. 2
\nwhile conferring  exclusive right on the recognised union to
\nrepresent workmen  in any  proceeding under  the  Industrial
\nDisputes Act,  1947 simultaneously  denying the\t right to be
\nrepresented by\tany individual\tworkman has  taken  care  to
\nretain the  exception as  enacted in  Sec. 2  A. This  legal
\nposition is  reiterated in  Sec. 20 (2) (b). Therefore while
\ninterpreting Sec. 20 (2) (b) it must be kept in view that an
\nindividual workman,  who has his individual dispute with the
\nemployer  arising   out\t  of   his   dismissal,\t  discharge,
\nretrenchment or\t termination of\t service will not suffer any
\ndisadvantage if\t any recognised\t union would not espouse his
\ncase and  he will  be able  to pursue  his remedy  under the
\nIndustrial Disputes  Act,  1947.  Once\tthis  protection  is
\nassured, let  us see whether the status to represent workmen
\nconferred on  a recognised  union to  the exclusion  of\t any
\nindividual workman  or one  or two  workmen and\t who are not
\nmembers of  the recognised  union would deny to such workmen
\nthe fundamental freedom guaranteed under Art. 19 (1) (a) and
\n19 (1) (c) of the Constitution.\n<\/p>\n
     We fail  to see  how the  restriction on  the right  to
\nappear and  participate in a proceeding under the Industrial
\nDisputes Act,  1947 to\ta workman  who is not prepared to be
\nrepresented by the recognised union ill respect of a dispute
\nnot personal to him alone such as termination of his service
\ndenies him  the freedom of` speech and expression or to form
\nan association. Conferring the status of recognised union on
\nthe union  satisfying certain pre-requisites which the other
\nunion is  not in  a position  to satisfy  does not  deny the
\nright to  form association.  in fact the appellant union has
\nbeen registered\t under the  Trade Unions Act and the members
\nhave formed  their association\twithout let  or hindrance by
\nanyone. Not  only that\tthe appellant  union can communicate
\nwith the  employer, it\tis  not\t correct  to  say  that\t the
\ndisinclination of  the workmen\tto join the recognised union
\nviolates the  fundamental freedom to form association. It is
\nequally not  correct to\t say that recognition by an employer
\nis  implicit   in  the\t fundamental  freedom\tto  form  an
\nassociation. Forming  an association is entirely independent
\nand different  from its\t recognition. Recognition of a union
\nconfers rights,\t duties and  obligations.  Nonconferring  of
\nsuch rights,  duties and  obligations on  a union other than
\nthe recognised union does not put it on an inferior position
\nnor the\t charge of  discrimination can\tbe entertained.\t The
\nmembers of a
\n507<\/span>
\nnon-recognised association can fully enjoy their fundamental
\nfreedom A  of speech  and expression  as also  to  form\t the
\nassociation.\n<\/p>\n
      The Legislature has in fact taken note of the existing
\nphenomenon in  trade unions  where  there  would  be  unions
\nclaiming to  represent workman in an undertaking or industry
\nother than  recognised union.  Sec. 22\tof 1971\t Act confers
\nsome specific rights on such non- recognised unions, on such
\nbeing the  right to  meet and  discuss with the employer the
\ngrievances of  individual workman The Legislature has made a
\nclear distinction  between individual grievance of a workman
\nand an individual dispute affecting all or a large number of
\nworkmen. In  the case  of even\tan  unrecognised  union,  it
\nenjoys\tthe  statutory\tright  to  appear  and\tdiscuss\t the
\ngrievance of  individual  workmen  with\t employer.  It\talso
\nenjoys the  statutory right  to appear\tand participate in a
\ndomestic or  departmental enquiry  in which  its  member  is
\ninvolved. This\tis statutory  recognition of an unrecognised
\nunion. The  exclusion is  partial and  the embargo  on\tsuch
\nunrecognised  union   or  individual  workman  to  represent
\nworkman\t is  in\t the  large  interest  of  industry,  public
\ninterest and  national interest.  Such a provision could not
\nbe said\t to be\tviolative of  fundamental freedom guaranteed
\nunder Art. 19 (1) (a) or 19 (1) (c) of the Constitution
\n      Having  examined the  contention on  principle, we may
\nnow turn to precedents brought to our notice.\n<\/p>\n
      In  Raja Kulkarni\t and Ors. v. State of Bombay<\/a>(1), one
\nof the\tcontentious canvassed  before the Constitution Bench
\nwas that  Sec. 13  of the  Bombay Industrial  Relations Act,
\n1946  as  it  then  stood  provided  that  a  union  can  be
\nregistered as  a representative\t union for  an industry in a
\nlocal area  if it  has for  the whole of the period of three
\nmonths\tnext  preceding\t the  date  of\tits  application,  a
\nmembership of  not less\t than 15%  of the  total  number  of
\nemployees employed  in any  F industry in any local area. If
\nthe  union  does  not  satisfy\tthat  condition\t and  has  a
\nmembership of  not less than 5%, it could be registered as a
\nqualified union\t Rashtriya Mill Mazdoor Sangh was registered
\nas a  representative union  while the Mill Mazdoor Sabha was
\nregistered as  a qualified union. It was contended on behalf
\nto Mill\t Mazdoor Sabha\tof which  the appellants before this
\nCourt were  the\t office-bearers\t that  the  provisions\tthat
\nconferred an  exclusive right  only  on\t the  representative
\nunion to  represent workmen  was  violative  of\t fundamental
\nfreedoms guaranted to the members of Mill Mazdoor Sabha
\n      .\n<\/p>\n
(1) [1954] SCR 384.\n<\/p>\n
508<\/span><\/p>\n
or  any\t  other\t workman   who\tis   not  a  member  of\t the
\nrepresentative union  under Art.  19 (1) (a) and (c) and was
\nalso  violative\t  of   Art.   14   inasmuch   as   the\t two
\nrepresentatives of  workmen were  denied equality before law
\nor the\tequal protection  of laws.  The\t Constitution  Bench
\nrepelled the contention observing that such a provision does
\nno t  deny either  the fundamental  freedom  of\t speech\t and
\nexpression or  the right to form association. The Court said
\nthat it is always open to the workmen who are not members of
\nthe representative  union to  form their  own association or
\nunion and  to claim higher percentage of membership so as to
\ndethrone the  representative union  and take its place. This
\ndecision  should  have\tconcluded  the\tmatter.\t Mr.  Latifi
\nhowever, urged\tthat  this  decision  is  of  no  assistance
\nbecause it  was rendered at a time when sub-sec. (2) Of Sec.
\n114 of\tthe Bombay  Industrial Relations  Act, 1946 provided
\nthat  where  the  representative  union\t is  a\tparty  to  a
\nregistered agreement  or settlement, submission or award the
\nProvincial Government  may after giving the parties affected
\nan opportunity of being hard by notification in the Official
\nGazette direct\tthat such  agreement, settlement, submission
\nor award  shall be  binding union  such other  employers and
\nemployees in such industry or occupation in that local areas
\nas may be specified in the notification. There was a proviso
\nto  sub-sec.   (2)  which  provided  that  before  giving  a
\ndirection under\t sub-sec. (2)  the Provincial Government may
\nin such\t cases as  it deems  fit, make\ta reference  to\t the
\nIndustrial Court  for its opinion. It was urged that workmen
\nin an  industry or in an undertaking, who are not members of
\nthe representative union would not be bound by a settlement,
\nsub mission  or award to which representative union alone is
\na party,  unless the Provincial Government took action under
\nsub-sec. (2)  of Sec.  114 and there was a further safeguard
\ninasmuch as  before making  such a settlement, submission or
\naward binding  on all workmen, a reference to the Industrial
\nCourt for its opinion could be made. It was urged that these
\nsafeguards are\tmissing inasmuch as Sec. 20 (2) would make a
\nsettlement or  award to\t which a  representative union\tis a
\nparty binding  on all  the workmen  in to undertaking or the
\nindustry as the case may be and therefore the aforementioned
\ndecision can  be distinguished.\t We see\t no  merit  in\tthis
\nsubmission. This  Court did  not uphold\t the  vires  of\t the
\nrelevant provisions on the ground that there were safeguards
\nfor non-members.  The provision\t was held intra-vires on the
\nbroad features of the pro visions that they neither deny the
\nfundamental freedom  guaranteed under Art. 19 (1) (a) nor 19
\n(1) (c).\n<\/p>\n
      In  Ram Prasad Vishwakarma v. The Chairman, Industrial
\nTribu-<\/a>\n<\/p>\n
509<\/span><\/p>\n
nal(1), an industrial dispute arising out of the termination
\nof service  A of  the appellant in that case was espoused by
\nthe union  and which  was referred  for adjudication  to the
\nTribunal. When\tthe matter  was\t before\t the  Tribunal,\t the
\nappellant  workman  made  an  application  that\t he  may  be
\npermitted to represent his case by his two colleagues and at
\nany rate  not by  the Secretary\t of the\t union The  Tribunal
\nrejected the  application and  after  an  unsuccessful\twrit
\npetition the  matter came  to this  Court. It  was contended
\nthat even  though the  case of the appellant was espoused by
\nthe union,  he was  entitled to\t a separate  representation.
\nRepelling  the\t contention,  this   Court  held   that\t any
\nindividual grievance  is not  comprehended in the expression
\n‘industrial dispute’  as defined  and the dispute would only
\nacquire the  character of  an industrial dispute if espoused
\nby the\tunion  and  therefore,\tthe  workman  would  not  be
\nentitled to a separate representation. The decision turns on
\nthe interpretation  of expression  ‘industrial\tdispute\t and
\nbefore the  introduction  of  Sec.  2-A\t in  the  Industrial
\nDisputes act,  1947. It does not shed any light on the issue
\nunder discussion.\n<\/p>\n
      In  Girja Shankar\t Kashi Ram  v. Gujarat\tSpinning and
\nWeaving Mills Ltd.,<\/a>(2) the right of the representative union
\nto appear  in  a  proceeding  under  the  Bombay  Industrial
\nRelations Act  to the  execusion of the workmen likely to be
\nadversely affected  by the decision of the court came up for
\nconsideration. The  representative union  and  the  employer
\nentered into  a settlement for grant of bonus to the workmen
\nand in consideration thereof the representative union agreed
\nnot to press for any compensation for the workmen discharged
\nby the\temployer. Subsequently\t376 persons, who had been in
\nthe employment\tof the\tcompany prior-\tto its\tclosure gave
\nnotice under  Sec. 42 (1) of the Bombay Industrial Relations
\nAct and\t claimed compensation  for the period of closure. As
\nthe parties failed to arrive at a settlement, an application
\nunder Sec.  42 (4)  was made to the Labour Court. During the
\npendency of  this application, the representative union made
\nappearance before  the Labour  Court and  contended that the
\napplication should  be dismissed  in view  of the compromise
\nwhich had  been\t arrived  at  before  the  Labour  Appellate
\nTribunal. The  Labour  Court  accepted\tthe  contention\t and
\ndismissed the  application. In\tthe appeal to the Industrial
\nCourt, it  was contended that considering that no individual
\nworkman could be permitted to appear in any proceeding where
\nrepresentative union appears as representative of employees,
\nyet if the action of the representative union was malafide,
\n\t (1) [1961] 3 S.C.R. 196.\n<\/p>\n
\t (2) [1962] 2 Supp. S.C.R. 890.\n<\/p>\n
510<\/span><\/p>\n
the   Labour   Court   should\tnot   have   permitted\t the
\nrepresentative\tunion\tto  appear   and  thereby  deny\t the
\nadversely affected  workmen to\tbe represented and then non-
\nsuited at  the instance\t of  the  representative  union\t The
\nIndustrial Court  dismissed the\t appeal. A  writ petition to
\nthe High  Court failed and thereafter the matter was brought
\nto this\t Court. After  an exhaustive  review of\t the various
\nprovisions of  the Bombay  Industrial  Relations  Act,\tthis
\nCourt held  that  bona\tfides  or  the\tmala  fides  of\t the
\nrepresentative union  can have\tnothing to  do with  the ban
\nimposed\t upon\tappearance  of\t any  one   other   than   a
\nrepresentative union  in any  proceeding  under\t the  Bombay
\nIndustrial Relations  Act The  decision goes  so far  as  to
\nsuggest that  even where  the action  of The  representative
\nunion may  be such  as would appear to be disadvantageous to
\nsome workmen yet its action has to be judged in the light of
\nthe fact  that it  does not  tend to cater to the needs of a
\nsection of  the workmen but the workmen represented by it as
\na whole.  Incidentally it  must\t be  pointed  out  that\t the
\nquestion of vires was not raised in this case.\n<\/p>\n
      The  view taken  in Girja\t Shankar’s case was affirmed
\nand approved  in Santuram  Khudai  v.  Kimatrai\t Printers  &
\nProcessors<\/a> (p)\tLtd.& Ors  (1) wherein\tthis Court  observed
\nthat the  legislature has  clothed the\trepresentative union
\nwith  exclusive\t right\tto  appear  or\tact  behalf  of\t the
\nemployees in  any proceeding  under  the  Bombay  Industrial
\nRelations Act and has simultaneously deprived the individual
\nemployee or  workman of\t the right  to appear  or act in any
\nproceeding under  the Act  where representative union enters
\nappearance or acts as representative union of employees. The
\nquestion of vires was not raised.\n<\/p>\n
      Prima  facie on  the  arguments  urged  and  decisions
\nexamined, we are satisfied that there is no substance in the
\nchallenge that\tSec. 20\t (2) (b)  upon its true construction
\nviolates Art.  19 (1)  (a) and\t(c) of\tthe Constitution. We
\nmust however make it clear that we may keep this question of
\nconstitutionality open\tfor a more detailed argument and in-
\ndepth examination  because in  this case  at the  fag end of
\narguments, the\tparties more  or less buried the hatchet and
\nthere was  the spirit  of give\tand take  to which  we would
\npresently advert.\n<\/p>\n
      The change in the law made by the introduction of Sec.
\n2-A in the Industrial Disputes Act, 1947 has been taken note
\nof by  the State  Legislature in  introducing a safeguard in
\nSec. 20 (2) (b) in that
\n\t (1) [1978] 2 S.C.R. 387.\n<\/p>\n
511<\/span><\/p>\n
an  individual\t workman  who  has  been  either  dismissed,
\ndischarged, A removed, retrenched or whose services has been
\nterminated in any manner or who is suspended would be on his
\nown entitled  to raise\tan industrial dispute concerning the
\ntermination of\this service  in any  manner and\t he would be
\nable to pursue his remedy in a proceeding arising out of the
\nlegality or validity of the order of termination of service.
\nThe representative  union would\t not be able to supplant the
\nworkman by  its appearance  and act  to the detriment of the
\nworkman Cases  are not\tunknown where an individual  workman
\nwhose services\thas been terminated and who wanted his cause
\nto be  espoused by  the union  was not\tonly ignored  by the
\nunion but  occasionally the power of representative union to
\nexclude the workman from the proceeding was exercised to the
\ndisadvantage of\t the workman  by appearing in the proceeding
\nand after  excluding the  workman to  so get the proceedings
\ndisposed of  as to  be wholly disadvantageous to the workman
\nand the\t workman was  left without  a remedy  Care has\tbeen
\ntaken to deny such steam rolling power to the representative
\nunion and  this position  is  further  strengthened  by\t the
\nprovisions contained  in Sec.  22  of  the  1971  Act  which
\nconfers\t certain   rights  on\tunrecognised   unions\tmore
\nespecially right  to meet  and discuss with the employer the
\ngrievances  of\t an  individual\t  member  relating   to\t his
\ndischarge, removal,  retrenchment, termination of service or
\nsuspension as  also to\tappear\ton  behalf  of\tits  members
\nemployed in  the undertaking in any domestic or departmental
\nenquiry held  by the  employer. This is certainly an advance
\non the similar provisions of the Bombay Industrial Relations
\nAct.\n<\/p>\n
      Sec.  20 (2)  (b) is more or less in pari materia with
\nthe provisions of the Bombay Industrial Relations Act, 1946,
\nThe provisions relating to the status, character, powers and
\nobligations of\ta representative  union as  envisaged in the
\nBombay Industrial  Relations Act, 1946 have been extended to
\ncover industries  not  governed\t by  that  Act\tbut  by\t the
\nIndustrial Disputes  Act, 1947. Where a representative union
\nacts in\t exercise of  the powers conferred by Sec. 20 (2) it
\nis obligatory upon it to act in a manner as not discriminate
\nbetween its members and other workmen of the undertaking who
\nare not its members. However when a settlement is reached in
\na proceeding  under the\t Industrial Disputes  act in which a
\nrepresentation union has appeared, the same is to he binding
\non all\tthe workman of the undertaking. This would mean that
\nneither\t the  representative  union  nor  the  employer\t can
\ndiscriminate between members of the representative union and
\nother workmen  who  are\t not  members.\tBoth  the  benefits,
\nadvantages, disadvantages  or liabilities  arising out\tof a
\nsettlement in  any proceeding  under the Industrial Disputes
\nAct to
\n512<\/span>
\nwhich a\t representative union  is a  party shall  be equally
\napplicable to  each workman  in the undertaking. There shall
\nnot be the slightest trace of discrimination between members
\nand non-members\t both as  regards the advantages and also as
\nregards the  obligations and  liabilities. Any other view of
\nSec. 20 (2) (b) would render it unconstitutional and invalid
\nas being violative of Art 14. Equal treatment of members and
\nnon-members  is\t  implicit  in\t the  section\tand  by\t its
\ninterpretation we only make it explicit.\n<\/p>\n
      A\t serious grievance was vioiced by Mr. Latifi that by
\nthe impugned  Clause 17\t of the\t Settlement, the non-members
\nare subjected  to compulsory exaction for the benefit of the
\nrepresentative union  with whose  philosophy the non-members
\nare not\t in agreement  and they are made to pay to advance a
\nrival philosophy.  It was urged that this is some-thing like
\na tax  for the propogation of a philosophy which the members
\nof the\tappellant union\t consider harmful or disadvantageous
\nto the\tworkmen in  general. Clause  17 of the settlement is
\nalready extracted.  After a strike, a settlement was arrived
\nat between  the first  respondent employer  and\t the  second
\nrespondent representative union, Clause 17 of which mandated
\nthe employer  to deduct\t 15% of\t the gross  arrears  payable
\nunder the settlement to each employee as contribution to the
\nunion fund. It is well-known that no deduction could be made
\nfrom the  wages and  salary payable to a workman governed by
\nthe Payment  of Wages  Act unless  authorised by that Act. A
\nsettlement arrived  at on  consent of  parties\tcan  however
\npermit a  deduction as\tit is  the outcome  of understanding
\nbetween the  parties even  though such\tdeduction may not be
\nauthorised or legally permissible under the Payment of Wages
\nAct.\n<\/p>\n
      The  contention is that where members who form a union
\npay  the   membership  fee   and  receive  the\tbenefits  or
\nadvantages of  being members  of the  union yet, persons who
\nare not\t members of  the union\twithout their  consent\twere
\nforced to  part with their earnings as if paying a tax which
\nis compulsory. If the same is held permissible under Sec. 20
\n(2) (b), either the section will be constitutionally invalid
\nor that\t part of  the settlement  being severable  would  be
\nillegal and  invalid qua  non-members On the face of it, the
\ncontention appears to be attractive but anyone who, has some
\nunderstanding and  appreciation of  the working\t of a  trade
\nunion would  be able  to fully appreciate the provision like
\nthe  one   under  discussion.\tThough\tunfortunate,  it  is
\nnotorious that\tin some\t cases resorting  to strike  has  by
\nitself become  an industry  and the  unions  invest  in\t the
\nstrike by sustaining morale of the workmen
\n513<\/span>
\nwhen during  the strike\t the employer would deny wages. In a
\ncase of\t  genuine  grievances and forced strike, the workmen
\nunable to  stand up for want of wherewithal or cushions, the
\ntrade union  may help  them sustain  their  vigour  by\tsome
\nmonetary assistance  during the\t period of  strike. When the
\nstrike ends  in a settlement or where even without a strike.
\nbenefits under\ta settlement  are made\tretro-active and the
\narrears are  required  to  be  paid  under  the\t settlement,
\nnaturally the  union in\t order to  vigorously carry  on\t its
\nactivities free\t from financial constraints would expect the
\nworkmen for  whose benefit  the dispute\t was raised which on
\nsettlement may\tbring  in  monetary  benefits  to  reimburse
\nitself. As the members and non-members are entitled to equal
\ntreatment under\t the settlement\t both  can  be\tasked  as  a
\ncondition of  settlement to  part  with\t a  portion  of\t the
\nbenefits  towards  union  activities.  Such  deductions\t can
\nneither be  said  to  be  compulsory  exaction\tnor  a\ttax.
\nTherefore such a provision of deduction at a certain rate as
\nagreed between\tthe parties  for payment  to the  union, the
\nsame  being   with  the\t consent  and  as  part\t of  overall
\nsettlement would  neither be  improper nor impermissible nor
\nillegal.\n<\/p>\n
\t   Mr. Daniel Latifi, however, urged that in case of
\nnon-members, the  deduction would  be without their consent,
\nand therefore  has the\tnefarious tendency  of\tmaking\tnon-
\nmembers pay  for the benefit of a rival union. Expanding the
\nsubmission, he\turged that the trade-union movement has more
\nor less\t developed as  an appendage of the political parties
\nand therefore  each union  is influenced  by its  own parent
\nidentity and  therefore the  rival union  would certainly he
\nexpected to  have a  rival parent identity and yet the rival
\nunion not  having acquired,  the status\t of a representative
\nunion would  be compelled by the settlement to contribute to
\nthe coffers  of the  representative union funds, which would
\nexpended to propogate its own philosophy to the detriment of
\nthe  rival   union.  It\t was  urged  that  this\t amounts  to
\ncompelling an  individual to contribute against his will for
\nthe propogation\t of the cult of an opponent. Maybe there may
\nbe some harsh truth in the submission. It can not however be
\nexamined from  a setarian  point of view. The submission has
\nto be  examined in the proper perspective of the trade union
\nmovement. Shorn of embellishment such a provision would show
\nthat benefits  and liabilities\tboth must be shared equally.
\nIf under  a settlement\twith the  representative union\tsome
\nbenefits  accrue   to  the   workmen,  and   upon   a\ttrue
\ninterpretation\tof   sec.  20\t(2)  (b),  it  is  held\t all
\nencompassing and  therefore binding  on all  workmen and the
\nemployer alike,\t all the  benefits would be available to the
\nworkmen who  are not members of the representative union and
\nwho may have formed a rival union. If these workmen
\n514<\/span>
\ncould not  be denied the benefits they would enjoy an unfair
\nadvantage  if\tfrom  the   package  deal   covered  by\t the
\nsettlement, they draw benefits and abjure liabilities. Heads
\nI win  and tails  you lose  could hardly  be a fair and just
\napproach  in  settling\tinter-union  disputes.\tTherefore  a
\nclause like Clause 17 of the Settlement has to be understood
\nin the context of strengthening the trade union movement and
\nto free\t it from  financial  constraints.  Workmen  who\t are
\nmembers of  a union may pay fee for membership and enjoy the
\nadvantage  of  membership  but\tif  by\tthe  action  of\t the
\nrepresentative union all workmen acquire benefit or monetary
\nadvantage, the\tmembers and non-members alike can be made to
\nmake common  sacrifice in the larger interest of trade union
\nmovement and  to strengthen  the trade\tunion which  by\t its
\nactivities acquired the benefits for all workmen. Payment to
\ntrade union  fund in  these circumstances  can be  styled as
\nquid pro  quo  for  benefits  acquired.\t Therefore,  we\t see
\nnothing objectionable  in Clause  17 of the Settlement which
\ndirects the  employer to  deduct 15%  of the  gross  arrears
\npayable\t to   each  employee   under   the   settlement\t  as
\ncontribution to\t the trade-union  funds. Thereby the workman
\nis not\tsubscribing to\tthe philosophy of rival union but he
\nis merely  paying  the\tprice  of  the\tadvantage  obtained.
\nAnother view  would make  the union  members suffer  and the
\nnon-members benefit,  a situation which must at all costs be
\navoided. Therefore  clause 17 of the Settlement would not be
\ninvalid despite\t the lack  of consent of the workmen who are
\nmembers of  the appellant  union. The settlement having been
\nmade by\t the representative union its right to represent all
\nworkman would  imply the consent of the members of the rival
\nunion. This  is the  legal consequence\tof the\tright of the
\nrepresentative\tunion  to  represent  all  workmen  and\t the
\nbinding effect of its action.\n<\/p>\n
      Mrs.  Radha De ‘souza who also appeared along-with Mr.
\nDaniel Latifi for the appellant-union urged that the refusal
\nof the\trepresentative union  to admit\tall workmen  of\t the
\nfirst respondent  industrial undertaking  had  forced  those
\ndenied membership  to form the appellant union. President of
\nthe second  respondent representative  union was  present in
\nthe Court  and after  consulting him  Mr.  M.K.\t Ramamurthy,
\nlearned counsel\t stated in the Court that all workmen of the
\nfirst respondent  industrial undertaking  are  entitled\t and
\nare, eligible  to be the members of the representative union
\nand they  will be  admitted without  let or  hindrance on  a
\nproper application  being made\tas  members  of\t the  second
\nrespondent representative  union. Mrs. Radha De’souza stated
\nthat all  the members  of the appellant-union would as early
\nas possible make the necessary application and the President
\nof the second respondent representative
\n515<\/span>
\nunion stated  that all\tof them will be admitted without any
\nfurther scrutiny.  On  such  membership\t being\tgranted\t the
\nappellant-union would  stand dissolved. This would certainly
\ngo a long way to strengthen the trade union movement.\n<\/p>\n
      Having  considered all  the aspects  of the matter and
\nkeeping in view the interpretation we have placed on Sec. 20
\n(2) (b)\t and Clause 17 of the settlement dated June 18, 1984
\nthis appeal  must fail\tand is dismissed with no order as to
\ncosts.\n<\/p>\n
      Whatever benefits are yet to be paid to the members of
\nthe  appellant-union  under  the  aforementioned  settlement
\nshall be paid within 2 months from today.\n<\/p>\n
M.L.A.\t\t\t\t\t    Appeal dismissed.\n516<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Balmer Lawrie Workers’ Union, … vs Balmer Lawrie And Co. Ltd. And Ors on 21 December, 1984 Equivalent citations: 1985 AIR 311, 1985 SCR (2) 492 Author: D Desai Bench: Desai, D.A. PETITIONER: BALMER LAWRIE WORKERS’ UNION, BOMBAY AND ANR Vs. RESPONDENT: BALMER LAWRIE AND CO. LTD. AND ORS. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-178422","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBalmer Lawrie Workers' Union, ... vs Balmer Lawrie And Co. Ltd. And Ors on 21 December, 1984 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balmer-lawrie-workers-union-vs-balmer-lawrie-and-co-ltd-and-ors-on-21-december-1984\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balmer Lawrie Workers' Union, ... vs Balmer Lawrie And Co. Ltd. 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