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Poona Labour Union (Through Its Secretary) Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 662 of 1966
Judge
Reported in(1969)IILLJ291Bom
ActsIndustrial Disputes Act, 1947 - Sections 10(2), 13, 16, 17, 22(1) and 23
AppellantPoona Labour Union (Through Its Secretary)
RespondentState of Maharashtra and ors.
Excerpt:
.....denied on ground that union does not represent majority of workers - reference can be made only if government satisfied that union represent majority of workers - government entitled to conduct enquiry to make sure that union represent majority of workers - union cannot insist on conducting secret ballot to find out whether union represents majority of workers - spot enquiry permissible for such purpose - employees cannot be personally interviewed without permitting representative of labour union present during such interview. - - 10(2), where an application is made by the parties to an industrial dispute, whether jointly or separately, for a reference of the dispute inter alia to the tribunal, the appropriate government, if satisfied that the person applying represent the majority..........an inquiry for ascertaining such membership and shall give fifteen days' notice thereof to the union or unions concerned. (3) on receipt of such notice each such union may submit its objections, if any, to the registrar in writing in duplicate and shall produce, before the registrar, the following documents : (a) membership register; (b) counterfoils of receipts of subscription for five calendar months immediately preceding the calendar month in which the application is made; (c) minute book; (d) cash book; (e) bank pass book, if any; (f) an audited statement of membership for each of the three calendar months immediately preceding the calendar month in which the application is made; and (g) such other documents as the registrar may from time to time direct during the course of an.....
Judgment:

Madon, J.

1. This is a petition under Art. 227 by the Poona Labour Union, a union registered under the Trade Disputes Act, 1926, for a writ of mandamus directing the State of Maharashtra, respondent 1, to refer to the industrial tribunal for adjudication the dispute submitted jointly on 26 October 1965 by the petitioners and the transport manager, respondent 2, namely, the Poona Municipal Transport, a statutory committees of the Poona Municipal Corporation, running a transport service in the city of Poona.

2. On 25 February 1965 the petitioners submitted a charter of demands on behalf of the workmen of the said transport service. Respondent 2 refused to carry on any negotiations in respect of the said demands and, accordingly, on 2 June 1965 the petitioners served on the said transport manager a notice to go on strike under S. 22(1) of the Industrial Disputes Act, 1947, copies of which were sent to the conciliation officer, Poona Division, the Commissioner of Labour, Bombay, and the Deputy Commissioner of Labour (Administration), Bombay. On receipt of the copy of the said notice, the conciliation officer admitted the said dispute raised by the petitioners in conciliation and stated conciliation proceedings. Several meetings were held, in the course of which one of the contentions raised by respondent 2 was that the dispute raised by the petitioners formed the subject-matter of a settlement which had been arrived at between respondent 2 and the Poona Municipal Transport Kamgar Sangh, respondent 3, which, according to respondent 2 represented the majority of the workmen of the said transport service. Ultimately, by a resolution dated 7 July 1965 the transport committee of respondent 2 resolved to make a joint application with the petitioners for referring the said disputes to the industrial tribunal. It appears that this resolution was modified by another resolution passed on 10 July 1965 under which it was further resolved that the application should be made only when the petitioners withdrew the notice of strike given by them. Accordingly, the petitioners withdrew the said notice.

3. On 27 October 1965 a joint application for referring the disputes raised by the petitioners was made to the Deputy Commissioner of Labour by the petitioners and the transport manager of respondent 2 under S. 10(2) of the Industrial Disputes Act. Under the said S. 10(2), where an application is made by the parties to an industrial dispute, whether jointly or separately, for a reference of the dispute inter alia to the tribunal, the appropriate Government, if satisfied that the person applying represent the majority of each party, is to make the reference accordingly. Accordingly, the Deputy Commissioner by his letter dated 2 November 1965 called upon the petitioners to produce their membership registers along with counterfoils of receipts for the months of July, August and September 1965 of the members of the petitioner-union who were employee of respondent 2. The documents asked for by the Deputy Commissioner were produced by the petitioners. Thereafter by his letter dated 29 December 1965 the Deputy Commissioner of Labour (Administration), Bombay, intimated to the petitioners that he proposed to visit Poona on 7 January 1966 for making a spot-inquiry in respect of the aforesaid dispute and requested the petitioners to produce their said membership registers along with counterfoils of receipts in the office of the Deputy Commissioner of Labour, Poona, before 7 January 1966 for scrutiny by him. By their reply dated 4 January 1966 the petitioners wrote back suggesting that if the authorities had any doubt about the representative character of their union, the only proper course for them would be to hold a secret ballot. By their letter dated 25 January 1966 the petitioners contended that their membership registers should be accepted as correct and on the strength thereof, the demands raised by the petitioners should be referred for adjudication. In the said letter, in the alternative, the petitioners again reiterated that a secret ballot should be conducted to ascertain the wishes of the majority of the workmen. As the petitioners' request to refer the dispute for adjudication to industrial tribunal or in the alternative to hold a secret ballot amongst the employees of the said transport service was not acceded to, the petitioners filed petition on 23 April 1966.

4. The contention raised in the petition is that it is mandatory on the State Government to refer an industrial dispute to adjudication as soon as the parties apply jointly or separately in the manner prescribed by S. 10(2) that as respondent 1 have been satisfied that about 950 out of 1,100 workmen of the said transport service are members of the petitioner union, and as the transport committee had resolved to make a joint application under S. 10(2), it was mandatory on the State Government to refer the dispute raised by the petitioners to adjudication and its refusal to do so was mala fide.

5. This contention cannot be supported on a plain reading of the said S. 10(2). For making a reference under S. 10(2) the making of an application in the prescribed manner is not the only thing required. The further condition is that on such application being made, the appropriate Government has to be satisfied that the persons applying represent the majority of each party. It is only when these two conditions are satisfied, namely, an application being made by parties to an industrial dispute, whether jointly or separately, in the prescribed manner, and on such application being made, the appropriate Government being satisfied that the parties applying represent the majority of each party, that the Government would be bound to refer the dispute to adjudication. In the present case, though the first condition is satisfied, it is obvious from the record that the second condition is not satisfied. As the Deputy Commissioner wanted to satisfy himself that the petitioners' membership registers and the counterfoil receipts produced by the petitioner-union reflected the true facts, he wanted to proceed to Poona on 7 January 1966 to hold a spot-inquiry. The Industrial Disputes Act does not specifically require any rules to be made with respect to the manner in which the appropriate Government has to hold an inquiry to satisfy itself that the parties making an application under S. 10(2) represent the majority of each party nor in fact have nay such rules been made. It would, accordingly, be open to the State Government to hold such an inquiry in any manner which is in consonance with the principles of natural justice. It is stated by respondent 1 in their affidavit - in reply that the inquiry which was proposed to be held by the Deputy Commissioner was on the pattern of the industry to be held under rule 28A of the Bombay Industrial Relation Rules, 1947, for the purpose of ascertaining the membership of a union. The said rule 28A provides as follows :

(1) For ascertaining the membership of unions for the purpose of the provisions of Ss. 13, 16, 17 or 23, the Registrar shall hold an inquiry in the manner hereafter provided.

(2) The Registrar shall fix a date for holding an inquiry for ascertaining such membership and shall give fifteen days' notice thereof to the union or unions concerned.

(3) On receipt of such notice each such union may submit its objections, if any, to the Registrar in writing in duplicate and shall produce, before the Registrar, the following documents :

(a) membership register;

(b) counterfoils of receipts of subscription for five calendar months immediately preceding the calendar month in which the application is made;

(c) minute book;

(d) cash book;

(e) bank pass book, if any;

(f) an audited statement of membership for each of the three calendar months immediately preceding the calendar month in which the application is made; and

(g) such other documents as the Registrar may from time to time direct during the course of an inquiry.

(4) Every such objection shall be accompanied by a deposit of Rs. 5.

(5) Where the union to whom notice has been given under sub-rule (2) fails to be present before the Registrar on the date fixed for the inquiry or fails to produce the documents as required by sub-rule (3), then -

(a) if such union is an applicant, the Registrar may dismiss the application; and

(b) if such union is not an applicant, the Registrar may proceed with the inquiry ex parte :

Provided that on sufficient cause being shown by the union whose application has been dismissed, the Registrar may set aside the order of dismissal and fix a date for holding the inquiry. (6) The documents produced at the inquiry by a union shall be opened to inspection to other unions, who may be party to the inquiry, for a period of ten days, from the date of their production or for such further period as the Registrar may allow.

(7) The Registrar may adopt such sampling method as he may deem fit in verifying the membership register of a union.

(8) Where in respect of objections raised against the membership of a union the number of witnesses to be examined is very large, the Registrar may examine such number of witnesses as he may determine by adopting such sampling method, as the Registrar may deem fit. The Registrar may, with the consent of the parties, examine the witnesses in camera.

(9) If in the course of the inquiry, the Registrar comes to a conclusion that an objection raised against the membership of the union was frivolous or vexatious, he may impose a fine not exceeding Rs. 5 for every such objection.'

6. Now, in the absence of any statutory provision in the Industrial Disputes Act or any statutory rules in that behalf, we see nothing wrong in the Deputy Commissioner holding an inquiry in the manner prescribed by rule 28A, since this form of inquiry has already received statutory recognition in cases which arise under another labour legislation, namely, the Bombay Industrial Relations Act. It is, however, the grievance of the petitioner that the usual practice at such spot-inquiries is for the person holding the inquiry to call a few workmen individually and question them without anybody else being present. That this grievance is justified to a great extent is shown by the affidavit-in-reply filed on behalf of respondents. In the said affidavit it is stated :

'In the spot-enquiry, all the workmen or a percentage thereof are questioned in camera as to whether they had actually paid the membership fees as shown in the said registers and counterfoils. Their replies provide a more reliable proof about the bona fide membership or otherwise of the union.'

7. It is further stated that such an inquiry is in consonance with the Bombay Industrial Relations Act and the Bombay Industrial Rules and is also laid down under the code of discipline and the rules of procedure for verification of membership of unions for the purpose of recognition under the said code. We are informed that the said code of discipline is a code adopted by a tripartite resolution of all central unions, representatives of the employers and of the Government. A copy of the procedure for verification of membership of unions for the purpose of recognition under the said code of discipline is annexed to the affidavit-in reply. Clause (9) thereof provides as follows :

'While conducting personal verification, is mentioned in Para. (7) above, the verification officer will not allow the representatives of any union or management to be present.'

8. We see no justification in the Deputy Commissioners following the procedure laid down in the aforesaid Clause (9) and not allowing the representatives of the union or the management to remain present at the time management to remain present at the time of examination of of the workmen. Admittedly the code of discipline under which this procedure was resolved upon does not apply to the parties before us nor is such a procedure warranted by rule 28A of the Bombay Industrial Relations Rules. What that rule contemplates is the examination of witnesses in camera with the consent of parties. In the present case, what was proposed to be done was to examine the workmen in the absence of the representatives of the parties. If the petitioners had, however, confined their grievances only to this procedure to be adopted, they would have been justified, but what the petitioner did, as mentioned before, was to insist that the said disputes should be referred to adjudication on the basis that the membership of the petitioner's union amongst the workmen of the transport services as shown in the petitioner's membership registers was correct or, in the alternative, that a secret ballot should be held. Since under S. 10(2) it is for the Government to be satisfied that the petitioners represented the majority of it was for the Government to lay down its own procedure and not for the petitioners to insist that it should follow a particular procedure. We, thereof equally see no jurisdiction for this insistence on the part of the petitioners.

9. We are, however, now informed by Sri Andhyarujina, learned counsel for respondent 1, the State of Maharashtra, that in holding the inquiry required to be made under S. 10(2) the State Government is willing to follow the procedure prescribed by the said rule 28A. That procedure to us seems to be in consonance with the principles of natural justice. It leaves no ground for the apprehension expressed by the petitioners inasmuch as a witness cannot be examined in camera under that procedure, except with the consent of parties. The words 'in camera' used in rule 28A(8) do not mean that the representatives of the parties are to excluded at such examination. What they mean is that except the witness under examination and those representing the parties, others are not allowed to remain present.

10. In view of the above statement made on behalf of the State Government, we do not think it is now necessary to give nay directions in this petition and, accordingly, we make nor order thereon and discharge the rule.

11. In the circumstances of this case, there will be no order as to costs of the petition.


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