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PETITIONER:

M.R. PATIL & ANR.

Vs.

RESPONDENT:

THE MEMBER, INDUSTRIAL COURT & ANR.

DATE OF JUDGMENT: 01/04/1997

BENCH:

M.K. MUKHERJEE, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

M.K. MUKHERJEE, J.

Leave granted.

This appeal is directed against the judgment and order

dated April 26, 1996 of the Bombay High Court (Nagpur Bench)

in W.P. (Crl.) No. 167 of 1995 whereby it rejected the writ

petition filed by the two appellants before us. Facts

leading to this appeal and relevant for its disposal are as

under.

At all material times the appellant No.1, who is an

Officer of the Indian Administrative Service, was holding

the post of the Vice Chairman-cum-Managing Director of

Maharashtra State Road Transport Corporation ('Corporation'

for short) on deputation and appellant No. 2 was the Manager

of its Nagpur retion. On or about April 1, 1992 two

recognised Workers' Unions of the Corporation gave a joint

notice terminating their earlier settlement with the

Corporation and submitted their fresh charter of demands. On

the failure of the management of the Corporation to attend

to their demands the Unions served a notice upon the former

intimating that the workers would go on strike from the

midnight of April 12/13, 1993. A similar notice was also

given by The Maharashtra S.T. Chalak Wahak Sanghatna, the

respondent No. 2 herein, (hereinafter referred to as the

'Union'). In view of the threatened strike the Chief

Minister of Maharashtra intervened into the matter; and on

April 9, 1993 declared an interim relief of Rs. 25 crores to

the workers and asked the Corporation to work out the

modalities of its payment. Accordingly, the Corporation held

discussions with recognised Unions and decided upon the mode

of payment of the interim relief, pending final settlement.

After obtaining approval of the State Government to the same

the Corporation issued a circular on June 25, 1993 and

started making payments in terms thereof.

Assailing the above circular on the ground that payment

in terms thereof would be unjust and more favorable to the

workers affiliated to the other Unions, the Union filed a

complaint before the Industrial Court, Amaravati nuder

Section 28(1) of the Maharashtra Recognition of Trade Unions

and Prevention of Unfair Labour Practices Act, 1971 ('Act'

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for short) and, along with it, filed a petition seeking

temporary relief. On that complaint, which was registered as

ULP Case No. 397/93 and the petition, the Industrial Court

passed the following order on June 29, 1993 :

"In view of the facts pleaded in

the main complaint and this

petition the effect of the

operation of the impugned circular

No. 3679 dated June 25, 1993 is

hereby stayed until July 15, 1993.

Issue notice to the respondents to

file their reply accordingly by the

said date."

Thereafter, on July 22, 1993, the Union, through its

General Secretary Shri N.M. Verma, filed a complaint before

the Labour Court, Akola under Section 48(1) of the Act

alleging that even after service of the above stay order on

the day it was made, that is, on June 29, 1993, the

Secretary of State Transport Authority, and the who

appellants had made payments in terms of the circular and

sought the following reliefs :

"The Hon'ble Labour Court may

please declare that the accused 1,

2 & 3 have wilfully disobeyed the

order of the Hon'ble Industrial

Court interim order dated 29.6.1993

in the U.L.P. case No. 397/93.

2. The Hon'ble Court may please

order against the accused No. 1, 2

& 3 to issue processs u/s 48(1) of

MRTU and PULP Act and award

punishment under the Act.

3. Any suitable order which the

Court may deem fit be passed in the

interest of justice."

On receipt of the complaint, the Labour Court issued a

notice directing the three accused, including the two

appellants, to show cause why processes should not be issued

against them. In showing cause the appellants did not give

any specific reply to the allegations made against them in

the complaint but raised a preliminary abjection as to its

maintainability on the ground that without a sanction under

Section 197 Cr.P.C. they could not be prosecuted. The other

accused however contended that he was wrongly arraigned in

the proceeding. After hearing the parties the Labour Court

passed an order on February 11, 1994, whereby it discharged

the Secretary with a finding that there was nothing on

record to show that he was in any way responsible for

willful disobedience of the order of the Industrial Court

but, issued processes against the two appellants, after

rejecting their contention based on 197 Cr.P.C..

In the mean time, the Industrial Court had, by its

order dated August 14, 1993, vacated the ex-parte interim

stay granted by it on June 29, 1993 and dismissed the

petition filed by the Union for temporary relief.

The appellants then filed two applications before the

Labor Court praying for their discharge on the grounds, that

they were not party to the proceedings before the Industrial

Court and hence its order dated June 29, 1993 was not

binding upon them and that the interim stay granted thereby

had since been vacated. By its order dated December 17, 1994

the Labour Court rejected those applications and aggrieved

thereby Court rejected those applications and aggrieved

thereby the appellants preferred a revision petition before

the Industrial Court (Amravati Bench) under Section 44 of

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the Act which was dismissed. Thereafter they moved the High

Court in its writ jurisdiction but without success. Hence

this appeal.

To answer the questions raised in this appeal it will

be pertinent to refer, at the outset, to the preamble of the

Act and its material provisions. The Act was brought on the

statute book

"to provide for the recognition of

trade Unions for facilitating

collective bargaining for certain

undertakings, to state their rights

and obligations; to confer certain

powers on unrecognised unions; to

provided for declaring certain

strikers and lock-outs as illegal

strikes and lock-outs; to define

and provide for the prevention of

certain unfair labour practices; to

constitute courts (as independent

machinery) for carrying out the

purposes of according recognition

to trade unions for enforcing the

provisions relating to unfair

practices; and to provide for

matters connected with the purposes

aforesaid."

'Recognised Union' is defined by sub-section (13) of

Section 3 of the Act to mean a Union which has been issued a

certificate of recognition under Chapter III thereof and

'unfair labour practices' by sub-section (16) thereof to

mean unfair labour practices as defined in Section 26.

Chapter II specifies Industrial Courts, Labour Courts and

Investigating Officers as the authorities under the Act and

in its various as the authorities under the Act and in its

various sections details the modes of their constitution and

appointments, and their duties. Chapter III deals with the

recognition of Unions and, while Section 11(1) thereof

specifies the conditions to be complied with by a Union to

gain recognition under the Act, Section 12(3) empowers an

Industrial Court to grant recognition and issue a

certificate of such recognition in the prescribed form.

Unfair labour practices are dealt with by Chapter VI and

Section 26 defines them to mean the practices listed in

Schedules II, III and IV. Section 27 debars employers, Umons

and employees from engaging in any unfair labour practice

and Section 28 of the said Chapter sets out the procedure

the Industrial Court or the Labour Court, has to follow for

dealing with complaints relating to unfair labour practices.

According to the procedure laid down in Section 28, any

Union or any employee or any employer or any Investigating

Officer may file a complaint against a person who has

engaged in or is engaging in any unfair labour practice

before the Court competent to deal with such complaint

either under Section 5, or as the case may be, under Section

7. On such complaint the Court may, of its own take a

decision, which would by in the form pf an order; or if it

so considers necessary, may first cause an investigation

into the said complaint to be made by the Investigating

Officer and direct that a report be submitted by him to

enable it to take such a decision. Sub-section (7) of the

above Section forbids the civil or criminal court from

quashing the order so made. In view of Section 29 the above

order of the Court shall be binding on, inter alia, all

parties to the complaint and those summoned to appear in

Court. Section 30 of the Act formulates the nature of orders

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the Industrial Court and Labour Court can pass pursuant to

their decisions and so far as it is relevant for our

purposes it reads as under :

"(1) Where a Court decides that any

person named in the complaint has

engaged in, or is engaging in, any

unfair labour practice, it may in

its order -

XXX XXX XXX

(b) direct all such persons to

cease and desist from such unfair

labour practice, and take such

affirmative action (including

payment of reasonable compensation

to the employee or employees

afected by the unfair labour

practice, or reinstatement of the

employee or employees with or

without backwages, or the payment

of reasonable compensation), as may

in the opinion of the Court be

necessary to effectuate the policy

of the Act;

XXX XXX XXX

(2) In any proceeding before it

under this Act, the Court may pass

such interim order (including any

temporary relief or restraining

order) as it deems just and proper

(including directions to the person

to withdraw temporarily the

practice complained of, which is an

issue in such proceeding), pending

final decision:

Provided that, the Court may, on an

application in that behalf, review

any interim order passed by it.

Section 48 (1) of the Act, with which we are primarily

concerned in this appeal, provides that any person who fails

to comply with any order of the Court in clause (b) of sub-

section (1) or sub-section (2) of section 30 of the Act

shall, on conviction, be punished with imprisonment which

may extend to three months or with fine which may extend to

five thousand rupees.

Chapter VIII of the Act relates to the powers of

Industrial Court and Labour Court to try offences under the

Act and Section 38 specifically empowers a Labour Court to

try offences punishable under the Act within the limits of

whose jurisdiction it is committed. Section 39 relates to

cognizance of the offences committed under the Act and it

reads as under:

"No Labour Court shall take

cognizance of any offence except on

a complaint of facts constituting

such offence made by the person

affected thereby or a recognised

union or on report in writing by

the Investigating Officer."

The powers of and procedure to be followed by the

Labour Court for trial of such offences is laid down in

Section 40, which is extracted below:

"In respect of offences punishable

under this Act, a Labour Court

shall have all the powers under the

Code of Criminal procedure, 1898, V

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of 1898, of a Presidency Magistrate

in Greater Bombay and a Magistrate

of the First Class elsewhere, and

in the trial of every such offence,

shall follow the procedure laid

down for in Chapter XXII of the

said Code of summary trial in which

an appeal lies; and the rest of the

provisions of the code shall so far

as may be, apply to such trial."

Section 42 provides that notwithstanding anything

contained in Section 40, and appeal shall lie to the

Industrial Court against an order of conviction or acquittal

recorded by the Labour Court as also for enhancement of

sentences awarded by the Labour Court. The other section to

which reference is required to be made is Section 44, which

empowers the Industrial Court to exercise superintendence

over all Labour Courts.

From a conspectus of the provisions of the Act it is

manifest that if on a complaint filed in accordance with

Section 28, the Labour Court or the Industrial Court, as the

case may be, arrives at a decision that a person has engaged

in or is engaging in any unfair labour practice it may issue

a direction in terms of clause (b) of sub-section (1) of

Section 30 and pending final decision grant interim relief

in terms of sub-section (2) thereof. Failure on the part of

a person, who is bound by such order or direction, to comply

with it amounts to an offence for which he is liable to be

convicted and sentenced as envisaged under Section 48(1) by

a Labour Court. Cognizance of such offence, besides other

offences under the Act, cannot however be taken by the

Labour Court unless a complaint disclosing facts

constituting the offence is filed by the person affected

thereby or a recognised Union. (emphasis supplied) The only

other mode left open to the Labour Court to take such

cognizance is on the basis of a report in writing by the

Investigating Officer. Once cognizance of the offence is

taken on such complaint or report, as the case may be, the

Labour Court would have to follow the procedure laid down by

the Code of Criminal Procedure, 1973 (which now replaces the

Code of Criminal procedure, 1898).

That brings us to the merits of the appeal. Mr. Salve,

the learned Counsel appearing for the appellant, contended

that the impugned prosecution was void ab initio as the

Union was not a 'recognised Union' within the meaning of the

Act and hence, was not legally competent to file the

complaint before the Industrial Court under Section 28 of

the Act which ultimately gave rise to the complaint before

the Labour Court under Section 48(1). According to Mr. Salve

the scheme of the Act and its various provisions clearly

envisage that complaints under Section 28 regarding unfair

labour practices can be made only by recognised Unions - or

by an employee individually if he is solely affected thereby

- and since, admittedly, the Union was not a recognised

Union it could not invoke the provisions of Section 28. In

support of his contention he drew our attention to Section

21 of the Act and relied on the judgments of this Court in

Crescent Dyes Chemicals Ltd. vs. Ramnaresh Tripathi (1993) 2

SCC 115 and Sharamik Uttarsh Sabha vs. Raymond Woolen Mills

Ltd. (1995) 3 SCC 78. In repelling the above contention Shri

N.M. Verma, General Secretary of the Union, who argued the

case himself submitted that question whether Union was

recognised or not was not material in view of the limited

scope of Section 21 and of right of 'any Union' as appearing

in section 28 to lodge a complaint of unfair labour

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practice. to buttress his submission Mr. Verma drew our

attention to the judgment of the Bombay High Court in Akhil

Maharashtra Kamgar Union vs. Warden and Co. Ltd. (1996) 1

CLR 212 which has distinghished the judgment of this Court

in Shramik Uttarsh Sabha (supra). We need not however delve

into this aspect of the matter as in our opinion the

prosecution launched against the appellants is liable to be

quashed for the simple reason that the cognizance of the

offence under Section 48(1) allgedly committed by the

appellants was taken by the Labour court in utter breach of

Section 39 of the Act.

As discussed earlier cognizance of an offence

punishable under the Act can be taken on a 'complaint' of

facts constituting such offence only if it is made by a

person affected thereby or a recognised Union. Admittedly,

the complaint in the instant case was filed. by a Union -

and not by an individual with the interim direction/order of

the Industrial Court. Undisputedly again, the Union is not a

recognised Union within the meaning of the Act. Indeed, in

the counter affidavit filed by it before this Court, the

Union has not denied the specific averment made by the

appellants in the Special Leave Petition, out of which the

present appeal arises, that the Union was not a recognised

Union as per the Act {Paragraph 4(b)} and its only reply

thereto was that allegation was mentioned to support its

various contentions and repel those of the appellants, it

has not produced any document - much less a certificate

issued under Section 12 - to indicate that it was granted

recogntion under the Act to entitle it to file a complaint

of facts constituting the offence under Section 48(1) and,

for that matter, to enable to Labour Court to take

cognizance thereupon under Section 39. Since the provisions

of this Section are mandatory and the Labour Court has no

jurisdiction to take cognizance of any of the offences

mentioned in the Act unless there is a complaint/report in

terms theref the cognizance in the instant case on the

complaint of the Union must be said to be without

jurisdiction.

As the above discussion of ours is sufficient to quash

the impugned prosecution we need not discuss the other

patent infirmities relating to the procedure adopted by the

Labour Court in dealing with the complaint and to the

rejection of the indefensible contention raised on behalf of

the appellant No.1 about the maintainability of the

prosecution in view of Section 197 Cr.P.C.

On the conclusion as above, we allow this appeal and

quash the impugned prosecution.