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PETITIONER:

SHRAMIK UTTARSH SABHA

Vs.

RESPONDENT:

RAYMOND WOOLEN MILLS LTD. & ORS.

DATE OF JUDGMENT07/02/1995

BENCH:

BHARUCHA S.P. (J)

BENCH:

BHARUCHA S.P. (J)

AHMADI A.M. (CJ)

CITATION:

1995 AIR 1137 1995 SCC (3) 78

JT 1995 (2) 284 1995 SCALE (1)533

ACT:

HEADNOTE:

JUDGMENT:

1. Delay condoned.

2 Leave granted.

3. The question for consideration in this appeal is : does

a representative union under the Bombay Industrial Relations

Act, 1946 (BIR Act) have the exclusive right to represent

the employees of the concerned industry in complaints

relating to unfair labour practices under the Maharashtra

Recognition of Trade Unions And Prevention of Unfair Labour

Practices Act, 1971 (MRTU & PULP Act) other than- those

specified in items 2 and 6 of Schedule IV

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thereof?

4. The question arises in an appeal by special leave

against the judgment and order of the High Court at Bombay

dismissing a writ petition filed by the appellant.

5. The first respondent is a public limited company with

an industrial establishment at Bombay. It is covered by

the provisions of the B.I.R. Act. The second respondent is

a trade union recognised as the representative union for the

concerned industry under the provisions of the BIR Act. The

appellant is a trade union registered under the provisions

of the Trade Unions Act, 1926.

6. The first respondent filed a complaint before the

Industrial Court alleging the unfair labour practices

mentioned in items 5 and 6 of Schedule III of the MRTU &

PULP Act. Item 5 of Schedule III states that it is an

unfair labour practice on the part of a trade union "to

stage, encourage or instigate such forms of coercive actions

as willful 'go slow', squatting on the work premises after

working hours or gherao' of any of the members of the

managerial or other staff". Item 6 of Schedule III states

that it is an unfair labour practice on the part of a trade

union "to stage demonstrations at the residences of the

employers or the managerial staff members". The Industrial

court made an ad-interim order restraining the commission of

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the unfair labour practices. The ad-interim order was made

absolute after the second respondent had been heard. It is

the appellant's case that the first respondent told the

Industrial Court that it had no objection to -such order

being passed, and that this was done because the members of

the first respondent were deserting it in favour of the

appellant. The- appellant moved an application seeking

impleadment in the complaint proceedings on the ground that

employees of the first respondent had sought its membership

and that the complaint had been filed by the first respon-

dent in collusion with the second respondent. The

application was opposed by the first and second respondents.

The Industrial Court rejected the application. the appellant

filed a writ petition impugning the Industrial Court's

order. The High Court held that the only ground for moving

the impleadment application was that several employees of

the first respondent had approached the appellant with the

intention of becoming its members and that there was no

material to support this ground. Upon consideration of the

provisions of the BIR and the MRTU & PUIL Acts, the High

Court concluded that the second respondent, as the

representative union, had the sole privilege of representing

employees in the industry of the first respondent. The writ

petition was, accordingly, dismissed.

7.It is advantageous to consider at the outset the relevant

provisions of the B.I.R. and the MRTU & PULP Acts.

8.The BIR Act, which is the earlier statute, was enacted

because "it was expedient to provide for the regulation of

the relations of employers and employees in certain matters

to consolidate and amend the law relating to the settlement

of industrial disputes and to provide for certain other

purposes". Section 3(2) defines "approved union" to be a

union on the approved list. Section 3(14) states, inter

alia, that an 'employer' includes an association or a group

of employers. Section 3(28) defines "primary union" to mean

a

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union registered as a primary union under the Act. Section

3(29) defines "qualified union" to mean a union registered

as a qualified union under the Act. Section 3(30) defines

"registered union" to mean a union registered under the Act.

Section 3(33) defines "representative union" to mean a union

registered as a representative union under the Act. Section

3(38) defines "union" to mean a trade union of employees

which is registered under the Trade Unions Act, 1926.

Chapter HI of the Act deals with registration of unions.

Section 13 states that any union which has for the period

specified therein that percentage of the total number of

employees employed in any industry in any local area as is

specified therein may apply for registration as a

representative union for such industry in such local area.

Section 14 empowers the Registrar to registrar a union which

has made an application under section 13 and issue a

certificate in that behalf Section 15 empowers the Registrar

to cancel the registration of a union on the grounds stated

therein. Section 16 empowers the Registrar to register any

union in place of the existing registered union if at any

time any other union makes an application in this behalf and

meets the conditions therein stated. Chapter V deals with

the representatives of employers and employees and

appearance on their behalf Section 27A therein states that

except as provided in section 32, 33 and 33A no employee

should be allowed to appear or act in any. proceeding under

the Act except through the representative of employees.

Section 30 sets out who the representative of employees is.

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It states the order of preference in this behalf and the

most preferred category is "a representative union for such

industry". Section 32 states that the Industrial court or

other tribunal may, for the ends of justice, permit an

individual to appear before it. Its proviso reads thus:

Provided that subject to the provisions of

section 33A, no such individual shall be

permitted to appear in any proceedings (not.

being a proceeding court or the Industrial

legality or propriety of an order of dismissal

discharge removal, retrenchment termination of

service or suspension of an employee is under

consideration) in which a Representative

Union has appeared as the representative of

employer. Section 33 states that an employee

or a representative union shall be entitled to

appear, inter alia, in all proceedings before

the Industrial Court Section 33A relates to

proceedings where the dispute is between

employees inter se.

9. The MRTU & PULP Act was enacted "to provide for the

recognition of trade unions for facilitating collective bar-

gaining for certain undertaking to state their rights, and

obligations; to confer certain powers on unrecognised

unions; to provide for declaring certain strikes 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

and for enforcing the provisions relating to unfair

practices; and to provide for matters connected with the

purposes aforesaid". Section 3 is the definition section.

Sub-section (1) states that the "Bombay Act" means the BIR

Act and sub-section (2) says that the "Central Act" means

the Industrial Disputes Act, 1947. "'Employee" is defined

by subsection (5) to mean, in relation to an industry to

which the BIR Act applies, an employee as defined in section

3(13)

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thereof Similarly, an "employer" and an "industry" are

defined by sub-sections (6) and (7) respectively, in

relation to an industry to which the BIR Act applies, with

reference to the meanings of these words therein. A

"recognised union" is defined by sub-section (13) to mean a

union which has been issued a certificate of recognition

under Chapter III of the Act. Subsection (16) defines

"unfair labour practices" to mean those defined in section

26. Sub-section 17 says that "union" means a trade union of

employees registered under the Trade Unions Act, 1926. Sub-

section (18) states that words and expressions used in the

Act and not defined therein but defined in the BIR Act,

shall, in relation to an industry to which the BIR Act

applies, have the meanings assigned to them by the BIR Act.

Chapter III deals with the recognition of unions and section

10(2) therein states that the provisions of the Chapter

shall not apply to undertakings and industries to which the

provisions of the BIR Act apply. Chapter IV deals with the

obligations and rights of recognised unions, other unions

and certain employees. Section 20 sets out the rights of

recognised unions. These include the right to collect sums

payable by members to it on the premises where wages are

paid and to hold discussions with the employees and the

employer. It also states that where there is a recognised

union for any undertaking, no employee shall be allowed to

appear or act or be allowed to be represented in any

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proceedings under the Industrial Disputes Act, not being a

proceeding in which the legality or propriety of an order of

dismissal, discharge or the like is under consideration,

except through the recognised union, and the decision ar-

rived at or order made in such proceeding shall be binding

on all the employees in such undertaking and the provisions

of the Industrial Disputes Act shall stand amended in this

behalf, as specified in Schedule 1 to the said Act. Section

21 states that no employee in an undertaking to which the

provisions of the Industrial Disputes Act apply shall be

allowed to appear or act or be represented in any proceeding

relating to unfair labour practices specified in items 2 and

6 of Schedule IV except through the recognised union.

Schedule IV deals with general unfair labour practices on

the part of employers. Item 2 thereof deals with the

abolition of work of a regular nature being done by

employees and the giving of such work to contractors as a

measure of breaking a strike.. Item 6 deals with the

employment of employees as 'badlis', casuals or temporaries

and to continue them as such for years with the object of

depriving them of the status and privileges of permanent em-

ployees. Section 22 sets out the rights of unrecognised

unions and gives them the right to meet and discuss with an

employer the grievance of any individual member relating to

his discharge, removal and the like. It also entitles

unrecognised unions to appear on behalf of their members

employed in the undertaking in any domestic or departmental

inquiry. Unfair labour practices are dealt with by Chapter

IV and section 26 defines them to mean the practices listed

in Schedules II, III and IV, Schedule 11 deals with unfair

labour practices on the part of employers, Schedule III

deals with unfair labour practices on the part of trade

unions and Schedule IV deals with general unfair labour

practices on the part of employers. Section 27 debars

employers, unions and employees from engaging in any unfair

labour practice. Section 28 sets out the procedure for

dealing with complaints relating to unfair

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labour practices. The order of the court thereon is, by

reason of section 29, binding on, inter alia, all parties to

the complaint and those summoned to appear be fore the

court. Where the party to the complaint or summoned to

appear before the court is composed of employees, all

persons who on the date of the complaint were employed in

the undertaking to which the complaint relates and all

persons subsequently employed therein are bound by the order

of the court.

10.Four judgments of this court may now be noted. In Girja

Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co.

Ltd., 1962 Supp. (2) SCR 890, it was held that 'Section 27A

of the B.I.R. Act provides that no employee shall be allowed

to appear or act in any proceeding under the Act except

through the representative of employees, the only exception

being the provisions of sections 32 and 33. Therefore,

section 27A completely bars the appearance of an employee or

any one oh his behalf in any proceeding after it has

commenced except through the representative of employees.

In Santuram Khudai v. Kimatrai Printers & Processors (P)

Ltd. & Ors., 1978 (2) SCR 387, this view was reaffirmed. It

was held that neither the appellant in that matter nor his

co-employees had any locus standi to appear or act in

proceeding initiated by the employer in which the

representative union had the right to appear and act, and

did appear and act. The new union to which the appellant

and some co-employees belonged had no right to appear or act

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on their behalf in these proceedings as it had not been

registered and recognised as the representative union of

employees. In Balmer Lawrie Workers' Union, Bombay and Anr.

v. Balmer Lawrie and Co. Ltd. 7nd ors., 1985 (2) SCR 492.

The judgments aforementioned were relied upon. It was held

that while interpreting section 20(2)(b) of the M.R.T. U. &

P.U.L.P. act it had to be remembered that a workman who had

an individual dispute with his employer arising out of his

dismissal, discharge or the like would not suffer a

disadvantage if the recognised union did not espouse his

cause for he would be able to pursue his remedy under the

Industrial Disputes Act. Once this was assured, it had not

be seen whether the status to represent workmen conferred on

a recognised union to the exclusion of an individual workman

who was not a member of the recognised union would deny to

him a fundamental freedom. Conferring the status of a

recognised union, it was held, on a union satisfying certain

prerequisites, which another union was not in a position to

satisfy, did not deny the right to form an association. The

legislature had made a clear distinction between the

individual grievance of a workman and a dispute affecting

all or a large number of workmen. An un-recognised union

enjoyed the statutory right to meet and discuss the

grievance of an individual workman with his employer. It

also enjoyed the statutory right to appear and participate

in domestic or departmental inquiry in which its member was

involved. This was statutory recognition of an un-

recognised union. Its exclusion was partial and the embargo

placed upon it barring it from representing a workman was in

the larger interest of the industry, the public interest and

the national interest. in Crescent Dyes and Chemicals Ltd.

v. Ram Naresh Tripathi, (1993) 2 SCC 115, the question was

whether a delinquent was entitled to be represented by an

office bearer of another trade union who was not a member

of either the recognised union or an un-

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recognised union functioning within the undertaking in which

the delinquent was employed. This court held that the Act

was enacted to provide for facilitating collective

bargaining for certain undertakings; to confer certain

powers on un-recognised unions; to define and provide for

the prevention of certain unfair labour practices; and to

constitute courts for carrying out the purpose of according

recognition to trade unions and for enforcing the provisions

relating to unfair labour practices. It was made applicable

to industries to which the B.I.R. Act applied. It was clear

from the scheme of the Act that, with a view to facilitating

collective bargaining in certain undertakings, the concept

of recognition of unions was introduced and certain obli-

gations and rights came to be imposed and conferred on

recognised unions.

11. Ms. Jaisingh, learned counsel for the appellant,

submitted that the B.I.R. Act and the M.R.T.U. and P.U.L.P.

Act operated in different fields. The former did not deal

with the subject of unfair labour practices, which was dealt

with by the latter. Since the object of the latter was to

prevent unfair labour practices, it allowed access to courts

to any union, recognised, representative or otherwise, to

any employee and even to a labour officer to ensure that an

unfair labour practice was prevented. Since an un-

recognised union could file a complaint, there was nothing

incongruous about it being heard as a respondent. Section

21 was emphasised, and it was submitted that exclusivity was

conferred only in regard to items 2 and 6 of Schedule IV of

the M.R.T.U. and P.U.L.P. Act and an un-recognised union

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could appear in complaints in respect of all other unfair

labour practices'. Having regard to the provisions of

section 29 of the M.R.T.U. and P.U.L.P. Act, whereby any

order passed would be binding on the appellant and its

members, they had a right to be heard by the Industrial

Court before any order could be made against them.

12.Mr. A.H. Desai, learned counsel for the first respondent,

submitted that the right to a representative union to

represent the employees in an industry to which the B.I.R.

Act applied remained unfettered and did not change by reason

of the fact that the proceedings had been adopted under the

M.R.T.U. and P.U.L.P. act. Learned counsel for the second

respondent adopted the arguments advanced on behalf of the

first respondent.

13.The M.R.T.U. and P.U.L.P. act takes note of the

provisions of the B.I.R. Act. Many of its definitions are

stated to be those contained in the B.I.R. Act Chapter III,

which deals with the recognition of unions, states, in

section 10(2), that its provisions do not apply to

undertakings in industries to which the provisions of the

B.I.R. Act apply. The B.I.R. Act was enacted to provide for

the regulation of the relation of employers and employees in

certain matters and to consolidate and amend the law in

relation to the settlement of industrial disputes. The

M.R.T.U. and P.U.L.P. Act was enacted 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; and to define and provide for the prevention of

unfair labour practices; and to constitute courts in this

behalf It cannot, therefore, be said that the B.I.R. Act and

M.R.T.U. and P.U.L.P. Act operate in different fields.

There is communality in their objects and their pro-

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visions. the obvious intent of the legislature which enacted

them was that they should operate in tandene and complement

each other in respect of industries to which the B.I.R. Act

had been made applicable. The two statutes must be read

together.

14.Section 21 of the M.R.T.U. and P.U.L.P. Act, upon which

emphasis was laid on behalf of the appellants, states that

no employee in an undertaking to which the provisions of the

Industrial Disputes Act applies shall be allowed to appear

or act or be allowed to be represented in any proceeding

relating to the unfair labour practices specified in items 2

and 6 of Schedule IV except through the recognised union.

It is important to note that the reference is to employees

in an undertaking to which the Industrial Disputes Act ap-

plies and not to employees in an undertaking to which the

B.I.R. Act applies. Apart. therefrom, the section permits

an employee, not an union other than the recognised union,

to so appear. The provisions of section 21 do not,

therefore, lead to the conclusion that an union other than a

representative union can appear in proceedings relating to

all unfair labour practices other than those specified in

items 2 and 6 of Schedule IV.

15. It is true that an order of the Industrial Court in

the concerned proceedings would bind all employees of the

first respondent even though there may be some among them

who owe allegiance not to the representative union but to

the appellant. The objective of the provisions of the B.I.R.

Act and the M.R.T.U. and P.U.L.P. Act, read together and

the embargo placed upon representation by anyone other than

the representative of the employees, who for the most part

is the representative union, except in matters pertaining

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to an individual dispute between an employee and the

employer, is to facilitate collective bargaining. The

rationale is that it is in the interest of industrial peace

and in the public and national interest that the employer

should have to deal, in matters which concern all or most of

its employees, only with a union which is representative of

them. It may be that a union which was representative of

the employees may have in the course of time lost that

representative character, it is then open, under the

provisions of the B.I.R. Act, for a rival union to seek to

replace it.

16. For the reasons aforesaid, the High Court was right

in the view that it took.

17. The appeal is dismissed. There shall be no order as

to costs.

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