{"id":88716,"date":"2003-11-10T00:00:00","date_gmt":"2003-11-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bokajan-cement-corporation-vs-cement-corporation-of-india-ltd-on-10-november-2003"},"modified":"2017-01-11T20:06:04","modified_gmt":"2017-01-11T14:36:04","slug":"bokajan-cement-corporation-vs-cement-corporation-of-india-ltd-on-10-november-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bokajan-cement-corporation-vs-cement-corporation-of-india-ltd-on-10-november-2003","title":{"rendered":"Bokajan Cement Corporation … vs Cement Corporation Of India Ltd on 10 November, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bokajan Cement Corporation … vs Cement Corporation Of India Ltd on 10 November, 2003<\/div>\n
Bench: Y.K. Sabharwal, B.N. Agrawal<\/div>\n
           CASE NO.:\nAppeal (civil)  2419 of 2001\n\nPETITIONER:\nBOKAJAN CEMENT CORPORATION EMPLOYEES' UNION\n\nRESPONDENT:\nCEMENT CORPORATION OF INDIA LTD.\n\nDATE OF JUDGMENT: 10\/11\/2003\n\nBENCH:\nY.K. SABHARWAL & B.N. AGRAWAL\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(5) SCR 400<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
Y.K. SABHARWAL, J. The short question for determination in this matter is
\nwhether an employee as a result of cessation of employment would lose his
\nright to continue as a member of the trade union. The High Court, by the
\nimpugned judgment, reversing the decision of a single judge, has answered
\nthe question in the affirmative. The union is the appellant.\n<\/p>\n
The High Court has held that the right to continue as a member of the trade
\nunion continues so long as an employee is actually employed. For its
\nconclusion, the reliance has been placed by the High Court on Section 6 of
\nthe Trade Union Act, 1926 (for short, “the Act”) and clause 5 of the
\nConstitution of Bokajan Cement Corporation Employees’ Union. The High Court
\nhas held that the membership of a trade union is not a benefit that accrues
\nto the employee so as to claim its continuance even after he ceases to be
\nin employment; his right continues so long as he remains employed and on
\ncessation of employment, membership of trade union ceases.\n<\/p>\n
There is no specific provision in the Act which provides for automatic
\ncessation of membership of the trade union on an employee on cessation of
\nhis employment. There is also no specific clause in the Constitution of the
\nappellant union which provides for such automatic cessation. Learned
\ncounsel for the respondent, however, places strong reliance on Section 6\n<\/p>\n
(e) of the Act and clause 5 of the Constitution of the trade union to
\nsupport the impugned judgment.\n<\/p>\n
Let us first look at some provisions of the Act.\n<\/p>\n
Section 2(h) defines the expression ‘trade union’. It reads :\n<\/p>\n
‘”Trade union’ means any combination, whether temporary or permanent,
\nformed primarily for the purpose of regulating the relations between
\nworkmen and employers or between workmen and workmen, or between employers
\nand employers, or for imposing restrictive conditions on the conduct of any
\ntrade of business, and includes any federation of two or more Trade Unions:\n<\/p>\n
Provided that this Act shall not affect-\n<\/p>\n
(i) any agreement between partners as to their own business;\n<\/p>\n
(ii) any agreement between an employer and those employed by him as to such
\nemployment; or<\/p>\n
(iii) any agreement in consideration of the sale of the goodwill of a
\nbusiness or of instruction in any profession, trade or handicraft.”\n<\/p>\n
“Registered Trade Union” means a trade union registered under the Act
\n(Section 2(e)). The mode of registration is provided in Section 4. Every
\napplication for registration of a trade union is required to be accompanied
\nby a copy of the rules of the trade union and a statement of the
\nparticulars as provided in Section 5 of the Act. Section 6, inter alia,
\nprovides that a trade union shall not be entitled to registration unless
\nrules thereof provide for the matters enumerated in clauses (a) to (j). For
\npresent purposes clause (e) is levant. Section 6(e) reads as under:\n<\/p>\n
“The admission of ordinary members who shall be persons actually engaged or
\nemployed in an industry with which the Trade Union is connected and also
\nthe admission of the number of honorary or temporary members as (office-
\nbearers) required under section 22 to form the executive of the Trade
\nUnion.”\n<\/p>\n
Section 22, inter alia, provides that not less than one-half of the total
\nnumber of the office-bearers of every registered trade union in an
\nunrecognized sector shall be persons actually engaged or employed in an
\nindustry with which the trade union is connected.\n<\/p>\n
It is, thus, clear that the rules of the trade union have to provide for
\nthe admission of ordinary members who shall be persons actually engaged or
\nemployed in an industry with which the trade union is connected, and also
\nthe admission of the member of honorary or temporary members as office
\nbearers required under Section 22 to form the executive of the trade union.
\nThe Constitution of trade union has, inter alia, to comply Section 6(e) so
\nas to seek registration under the Act.\n<\/p>\n
Mr. Reddy, learned counsel for the respondent contents that the words
\n‘actually engaged or employed’ would become redundant if an employee can
\ncontinue as a member of a trade union even after cessation of employment.
\nThe contention is that on cessation of employment, it cannot be said that
\nthe employee is actually engaged or employed in the industry and,
\ntherefore, such an employee ceases to be an ordinary member as a result of
\nemployment.\n<\/p>\n
In order to appreciate the contention of Mr. Reddy, it is also necessary to
\nexamine the relevant provisions of the Constitution of the appellant trade
\nunion.\n<\/p>\n
Clause 5 of the Constitution of the trade union reads as under:\n<\/p>\n
“Membership: Any worker employed by the Cement Corporation of India Ltd.,
\ndirectly or indirectly throughout shall be eligible for the membership of
\nthe Union provides he\/she accepts the constitution, Bye-laws and discipline
\nof the Union and pays the stipulated admission fee of Re. 1.00 along with
\nstipulated subscription.”\n<\/p>\n
Clause 9 of the Constitution which provides for the cessation of membership
\nreads as under:\n<\/p>\n
“OBLIGATIONS:\n<\/p>\n
(i) A member, who fails to pay 3 months’ subscription continuously shall
\ncease to be the member of the union.\n<\/p>\n
(ii) The Union shall remove from the Membership Register the names of those
\nwho have died withdrawn from the Union and ceased to be members of the
\nUnion under any provisions of the Constitution.\n<\/p>\n
(iii) A person who ceases to be member of the Union shall forthwith be
\ndisqualified from exercising the right of a member and shall have no claim
\non funds and benefits of the Union.\n<\/p>\n
(iv) Any member losing validity of his\/her membership as per provision vide
\nSub-section (ii) of this Section, shall be readmitted on payment of Rs. 2
\n(Two) only as re-admission fee plus the usual subscription for the month in
\nwhich he is readmitted subject to the approval of the Executive Committee
\nof the Union.”\n<\/p>\n
Relying upon the aforesaid clause 5 and laying great emphasis on the word
\n‘throughout’ therein, it is contended by Mr. Reddy that continuing in
\nemployment all through so as to remain a member of the trade union has been
\nclearly provided in the Constitution and, therefore, on discontinuance of
\nemployment, the membership of trade union would automatically cease.\n<\/p>\n
The Constitution of a trade union is not required to be construed as a
\nstatute. It deserves to be construed broadly and liberally. The Act and the
\nConstitution of the trade union, unless clearly stipulate otherwise,
\ndeserve to be interpreted so as to advance the interest of the trade union
\nand its members. The membership of a trade union is a valuable right which
\ncan be taken away only within clear parameters of the Act and the
\nConstitution of the trade union.\n<\/p>\n
Clause 5 is also not a provision which provides for the circumstances under
\nwhich a member would lose his membership. It provides eligibility\/
\nconditions for becoming member of the union. Regarding Section 6(e) its
\nonly effect is that the rules of a trade union have, inter alia, to provide
\nfor the admission of those who are actually engaged or employed in industry
\nas ordinary members so as to entitle a trade union to seek registration
\nunder the Act. Section 6(e) does not provide that on cessation of
\nemployment, an employee would cease to be a member. On aspect of cessation
\nof membership of the trade union, the trade union can make a provision in
\nits Constitution.\n<\/p>\n
It is one thing to say that the Constitution of trade union shall provide
\nthat those actually engaged or employed would be entitled to be admitted as
\nmembers of the trade union and it is altogether different thing to say that
\nthey would cease to be members once they are not actually engaged or
\nemployed. The latter is not what Section 6(e) contemplates. Likewise,
\nclause 5 of the Constitution of the trade union provides for all workers
\nemployed by the Cement Corporation of India directly or indirectly
\nthroughout to be eligible for the membership of the trade union on
\nacceptance of the other part of the said clause. The expression
\n‘throughout’ in clause 5 only shows that all through the said eligibility
\ncondition will continue. Again clause 5 is not a provision for cessation
\nbut is a provision for eligibility to become a member. As already stated,
\nthese clauses are not required to be construed as a statute. The
\napprehension of Mr. Reddy that non-acceptance of his contention would
\nresult in a situation of ‘once a member-always a member’, is not of any
\nsignificance since that depends upon the Constitution of a trade union. If
\na trade union accepts that once a member would always continue to be a
\nmember, there is nothing in the Act which mitigates against it. A trade
\nunion may provide under which circumstances a member would lose the
\nmembership. Apart from clause 9 reproduced earlier, there is no other
\nclause which provides for cessation of the membership of the trade union.
\nIt is not the case of the respondent that the member in question ceased to
\nbe member of the trade union having suffered disqualification under clause\n<\/p>\n
9. Clause 9 does not stipulate cessation of memberships on cessation of
\nemployment. Further, Section 15 of the Act permits a trade union to spend
\nits funds on the unemployment of its members. Section 15 of the Act, inter
\nalia, provides that the general funds of a registered trade union shall not
\nbe spent on any other objects than…(f) allowances to members or their
\ndependents on account of death, old age, sickness, accidents or
\nunemployment of such members. Clause 11 of the Constitution of the trade
\nunion in question contemplates the application of the funds of the union
\nfor all or any of the purposes as envisaged in Section 15 of the Act
\nprovided that the total expenditure in any one month shall not exceed 10%
\nof the total gross annual income. Clause 12(iii)(a) of the Constitution of
\nthe trade union provides that a member of the union who is dismissed for
\njoining the union or promoting or actively participating in its activities,
\nshall be entitled to victimization benefits in accordance with the rules
\nlaid down by the Executive Committee of the Union. Clause 12(iii)(b)
\nentitles a member to legal aid in proceedings which arise out of his
\nrelations with the employer. It reads:\n<\/p>\n
“A member of the Union who has paid the subscription of previous one year,
\nshall be entitled to legal aid in all proceedings which arise out of his or
\nher relations with the employer provided that this clause does not apply to
\nthe newly-appointed employee.”\n<\/p>\n
There is no provision in the Act on the Constitution of the trade union
\nproviding for automatic cessation of membership on cessation of employment.\n<\/p>\n
In view of the provisions in the Constitution of the trade union and in
\nabsence of any provision providing for cessation of membership as a result
\nof cessation of employment, it cannot be held that an employee would cease
\nto be a member of the trade union on termination of his employment.\n<\/p>\n
Reliance has, however, been placed on behalf of the respondent upon the
\ndecision of this Court in State Bank of India Staff Association and Anr. v.
\nState Bank of India and Ors., [1996] 4 SCC 378 where it was held that the
\nmanagement was not supposed to negotiate with the employee as General
\nSecretary of the Banks Staff Association since he ceased to be an employee
\nof the Bank after retirement. In the said case, the relevant Rules and
\nConstitution of the State Bank of India Staff Association provided that
\nafter retirement from Bank’s service, ordinary members shall not continue
\nto be such members. Considering the said Rules, it was held that “A cursory
\nlook at Rule 5 will make it clear that to become an ordinary member of the
\nAssociation one has to be a permanent employee of the State Bank of India
\nand at the same time not below the age of 18 years whereas Rule 6 provides
\nthat a person who is not a permanent employee of the Bank as contemplated
\nunder Rule 5 but has some sympathy with the objects and spirits of the
\nUnion he may be elected honorary member at the triennial or special meeting
\nof the General Council etc…. convened for the purpose. Further, according
\nto Rule 9 ordinary members after retirement from the Bank’s service shall
\nnot continue to be such members while clause (a) of Rule 9 provides that an
\nordinary\/ honorary member of the Association will be eligible to occupy or
\ncontinue in any post in the Central Committee\/Central Working
\nCommittee\/Circle Committee\/Unit Committee but such ordinary\/honorary member
\nof the aforesaid committees will forthwith cease to be such member if he
\nceases to be an ordinary\/honorary member, notwithstanding contained to the
\ncontrary in the Rules.”\n<\/p>\n
The State Bank of India Staff Association’s case does not lay down that
\nclause (e) of Section 6 provides for cessation of membership. In our view,
\nit only provides for admission of membership. In the absence of any
\nprovision in the Constitution of the trade union for automatic cessation of
\nmembership as a result of cessation of employment, it cannot be held that
\nan employee would cease to be a member of the trade union in such an
\neventuality.\n<\/p>\n
For the aforesaid reasons, setting aside the impugned judgment, we restore
\nthe judgment of the learned Single judge of the High Court and allow the
\nappeal. The parties, in the facts and circumstances of the case, are left
\nto bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bokajan Cement Corporation … vs Cement Corporation Of India Ltd on 10 November, 2003 Bench: Y.K. Sabharwal, B.N. Agrawal CASE NO.: Appeal (civil) 2419 of 2001 PETITIONER: BOKAJAN CEMENT CORPORATION EMPLOYEES’ UNION RESPONDENT: CEMENT CORPORATION OF INDIA LTD. DATE OF JUDGMENT: 10\/11\/2003 BENCH: Y.K. SABHARWAL & B.N. AGRAWAL JUDGMENT: JUDGMENT 2003 […]<\/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-88716","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBokajan Cement Corporation ... vs Cement Corporation Of India Ltd on 10 November, 2003 - 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\/bokajan-cement-corporation-vs-cement-corporation-of-india-ltd-on-10-november-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bokajan Cement Corporation ... vs Cement Corporation Of India Ltd on 10 November, 2003 - 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