1. This writ petition is filed by the petitioner-union against the order of the Full Bench of the Industrial Court, Maharashtra dated January 5, 1985 in Application (MRTU) No. 20 of 1983. It appears that the following question was referred to the Full Bench of the Industrial Court, Maharashtra, for consideration :
'Whether the term 'strike' appearing in Ss. 12(6) and 13(1)(v) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, means a strike only in the very undertaking for which the Applicant Union has applied for recognition and/or has obtained recognition under the Act, or
Whether it also means a strike in any undertaking other than the undertaking for which the Applicant Union has applied for recognition and/or has obtained recognition under the Act.'
2. The Full Bench of the Industrial Court held that the term 'strike' appearing in Ss. 12(6) and 13(1)(v) of the Act means a strike only in the very undertaking for which the Applicant-Union has applied for recognition and/or has obtained recognition under the Act. It is this judgment of the Full Bench which is challenged in the present Writ Petition.
Writ Petition No. 595 of 1985 decided on March 21, 1985. (Bombay).
3. Respondent No. 1 - the Maharashtra General Kamgar Union, had filed an application under S. 11 of the Act for being registered as a recognised union for the undertaking of Messrs. Rallis India Ltd. T.C.F. Division at Andheri. There is another registered union in the said undertaking by name Teddington Chemical Kamgar Sangh, the petitioner. The petitioner-union had opposed the applicant made by respondent No. 1, the Maharashtra General Kamgar Union. One of the objections raised was that during the period of six months preceding the date of the application the M.G.K. Union had instigated, aided or assisted commencement or continuation of the strike, which is deemed to be illegal under the Act, in as many as four other undertakings. It was also alleged that M.G.K. Union similarly instigated strikes in a number of other undertakings, some of which have been declared to be illegal by the Labour Court on October 31, 1983 and proceedings in respect of some other strikes are still pending in the Court of Law and, therefore, by virtue of the provisions of S. 12(6) of the Act the M.G.K. Union is not entitled for recognition. It is not necessary to make a detailed reference to any of the averments made in the application or in reply thereto, since in this case we are concerned purely with a legal proposition.
4. Shri Shrikrishna, the learned Counsel appearing for the petitioner-union, contended before us that prior to the enactment of the Act, a committee on 'Unfair Labour Practices' was appointed, to define the term 'unfair labour practice' and to recommend statutory measures for prevention of unfair labour practices. The committee came to the conclusion that the issue of unfair labour practice was inextricably mixed up with the issue of certification of a collective bargaining agent. The Committee, therefore, recommended a detailed procedure for selection of a collective bargaining agent and also defined the expression 'Unfair labour practice' and recommended suitable machinery for dealing with such unfair labour practices.
Thus, the legislative intent behind the Act us two fold : viz., facilitating collective bargaining in certain undertakings and prevention of unfair labour practices. Chapter III of the Act is concerned with the issue of recognition of Unions. Although the recognition of the unions is unitwise or undertaking wise, some of the conditions, subject to which recognition is to be granted or could be cancelled are to some extent general in nature. The conditions referred to in Ss. 12(5), 12(6), 13(1)(i), (iii), (iv), (v), (vi) and 13(2) are not subject to express limitations, but are general in nature. The provisions of Ss. 12 and 13 will have to be interpreted in the light of the legislative policy and the object sought to be achieved by the enactment. The conditions on these sections are intended to ensure that the collective bargaining agent conducts itself in accordance with the policy of the Act. The policy of the Act is to encourage collective bargaining and to confer such a right upon a proper collective bargaining agent selected in accordance with Chapter III of the Act. The legislative policy is to prevent illegal strikes. It is intended to achieve the dual purpose of promoting collective bargaining and discouraging unfair labour practices. Therefore, if the interpretation put up by the Full Bench is accepted, then a trade union would be free to indulge in unfair labour practices, including initial instigation of the illegal strike and other unfair labour practices in other undertakings, which will be contrary to the legislative policy of encouraging responsible trade union movement.
5. The paramount principal in the sphere of collective bargaining is that collective bargaining should eschew everything which is prejudicial to the interests of the employees. This activity of a trade union cannot be restricted to a particular undertaking for which recognition is sought. For achieving the object of healthy, responsible and strong trade unionism, the applicant trade union should generally behave well and cannot plead that it has misbehaved elsewhere and not in the undertaking in question. Further, in its wisdom the legislature has not used the words 'the undertaking' in S. 12(6) or S. 13(1)(v) of the Act. This omission is not accidental, but is deliberate. When the legislature has omitted to use the said expression, by process of interpretation the said words cannot be read in the said section so as to restrict their import to the undertaking in question. It is well settled that casus omissus cannot be supplied by the Court. Further, it is held that the disability contemplated by Ss. 12(6) or 13(1)(v) is restricted to the under taking for which the recognition is sought, then the same will run counter to the policy of the legislation viz. to foster collective bargaining and encourage healthy and responsible trade unionism with an intention to prevent unfair labour practices. Therefore, according to Shri Shrikrishna, the interpretation put forward by the Full Bench of the Industrial Court is wholly illegal. In support of his contentions, Shri Shrikrishna has placed strong reliance upon the decisions of this Court in Mumbai Mazdoor Sabha v. Bombay Dyeing and Mfg. Co. Ltd. : (1982)84BOMLR161 and Nichani Hotels Corporation v. Bombay Labour Union (1981) M.H.L.J. 711 as well as the decision of the Supreme Court in The Commissioner of Sales Tax U.P. v. M/s. Parson Tools and Plants, Kanpur : 3SCR743 .
6. On the other hand, it is contended by Shri Deshmukh, the learned Counsel appearing for the M.G.K. Union, that collective bargaining is the best method of settling industrial disputes and therefore it needs to be facilitated and fostered. The existence of a strong, well-organised, responsible and independent trade union movement in the shape of a recognised union, which is the sole bargaining agent, will be in the best interest of collective bargaining. Recognition of a sole bargaining agent with statutory obligations and rights facilitates and fosters collective bargaining and encourages responsible trade unionism. The present enactment is also intended to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings. Chapter III of the Act deals with the recognition of unions. The various sections appearing in this Chapter will have to be read harmoniously. If so read, it leads to only one conclusion that the provisions of the various sections therein are with reference to only one and the same undertaking for which recognition is sought or in respect of which recognition is to be cancelled. The provisions of the said Chapter are by necessary implication or intendment, applicable to only one and the same undertaking for which such a recognition is sought or in respect of which recognition is being cancelled. The activities of a trade union in other undertakings are wholly irrelevant. If such an interpretation is not accepted, then the proceedings for granting recognition or cancellation can become an unending process, because in that case that functioning of the union will have to be investigated at random and qua all other undertakings. This will defeat the requirement of quick disposal of his application. S. 11(2) prescribes that such an application has to be disposed of by the Industrial Court, as far as possible, within three months from the date of the receipt of such an application. This will become an impossibility if the interpretation put forward by the petitioner is accepted. Further, the trade union movement will become fragmented and weak, as such interpretation will encourage forming of unions unitwise or undertaking wise and will discourage multi-undertaking large unions from seeking recognition and thus they will not be subject to the duties and obligations of the recognised unions and their members will be deprived of the benefits, which a recognised union enjoys, resulting in industrial discontent and strife. If the provisions of Chapter III are read with the rules and the contents of the prescribed form, the conclusion is inevitable that the provisions of Ss. 12(6) and 13(1)(v) only take in their import the undertaking for which the recognition is sought or with reference to which an application for cancellation is made. Thus, in substance it is contended by Shri Deshmukh that the provisions of Chapter III will have to be understood in the context of, in respect of and in connection with one and the same undertaking for which an application for recognition is made. The words 'concern' and 'undertaking' are defined in the Act. The word 'undertaking' is used in the various sections and sub sections in Chapter III, such as S. 12(2), 12(5) and 12(6) where the said word is not used. In S. 13 as a whole, the word 'undertaking' is not used anywhere. The legislature has not used the said expression or the word since it was not necessary to do so. If the provisions of Ss. 12 and 13 are read together, it is quite clear that the said provisions are restricted to the undertaking in question. Any other interpretation of the said provisions will lead to absurdity and will defeat the very purpose of the Act. In support of his contentions, Shri Deshmukh has placed strong reliance upon the decision of this Court in J. G. Vakharia v. Regional Provident Fund Commissioner, Bombay : (1957)ILLJ448Bom and the decisions of the Supreme Court in Forbes Campell & Co. Ltd. v. Engineering Mazdoor Sabha, : AIR1978SC340 , K. P. Varghese v. Income Tax Officer, Ernakulam : 131ITR597(SC) and Commissioner of Income Tax v. National Taj Traders : 121ITR535(SC) .
For properly appreciating the controversy raised before us, it will be worthwhile if a detailed reference is made to the provisions of Ss. 12 and 13 of the Act, which read as under :
'12(1) On receipt of an application from a union for recognition under S. 11 and on payment of the prescribed fees, not exceeding rupees five the Industrial Court shall, if it finds the application on a preliminary scrutiny to be in order, cause notice be displayed on the notice board of the undertaking, declaring its intention to consider the said application on the date specified in the notice, and calling upon the other union or unions if any, having membership of employees in that undertaking and the employees affected by the proposal to show cause, within a prescribed time, as to why recognition should not be granted to the applicant union.
(2) If, after considering the objections, if any that may be received under sub-s. (1) from, any other union (hereinafter referred to as 'other union') or employers or employees, if any, and if after holding such inquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the conditions requisite for registration specified in S. 11 are satisfied, and the applicant-union also complies with the conditions specified in S. 19 of this Act, the Industrial Court shall, subject to the provisions of this section, grant recognition to the applicant-union under this Act, and issue a certificate of such recognition in such form as may be prescribed.
(3) If the Industrial Court comes to the conclusion, that any of the other unions has the largest membership of employees employed in the undertaking, and the said union has notified to the Industrial Court its claim to be registered as a recognition specified in S. 11, and also complies with the conditions specified in S. 19 of this Act, the Industrial Court shall, subject to the provisions of this section grant such recognition to the other union, and issue a certificate of such recognition in such form as may be prescribed.
Explanation - For the purpose of this sub-section, the other union shall be deemed to have applied for recognition in the same calendar month as the applicant-union.
(4) There shall not, at any time, to more than one recognised union in respect of the same undertaking.
(5) The Industrial Court shall not recognise any union, if it is satisfied that the application for its recognition is not made bona fide in the interest of the employees, but is made in the interest of the employer, to the prejudice of the interest of the employees.
(6) The Industrial Court shall not recognise any union, if at any time, within six months immediately preceding the date of the application for recognition, the union has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under this Act.
'13(1) The Industrial Court shall cancel the recognition of a union if after giving notice to such union to show cause why its recognition should not be cancelled, and after holding an inquiry, it is satisfied -
(i) that it was recognised under mistake, misrepresentation or fraud; or
(ii) that the membership of the union has, for a continuous period of six calendar months, fallen below the minimum required under S. 11 for its recognition;
Provided that, where a strike (not being an illegal strike under the Central Act) has extended to a period exceeding fourteen days in any calendar month, such month shall be excluded in computing the said period of six months :
Provided further that, the recognition of a union shall not be cancelled under the provisions of this sub-clause, unless its membership for the calendar month in which show cause notice under this section was issued was less than such minimum, or
(iii) that the recognised union has, after its recognition, failed to observe any of the conditions specified in S. 19 or
(iv) that the recognised union is not being conducted bona fide in the interests of employees, but in the interests of employer to the prejudice of the interest of employees; or
(v) that it has instigated, aided or assisted the commencement or continuation of strike which is deemed to be illegal under this Act; or
(vi) that its registration under the Trade Unions Act, 1926, is cancelled, or
(vii) that another union has been recognised in place of a union recognised under this Chapter.
(2) The Industrial Court may cancel the recognition of a union if, after giving notice to such union to show cause why its recognition should not be cancelled, and after holding an inquiry, it is satisfied, that it has committed any practice which is, or has been declared as, an unfair labour practice under this Act :
Provided that, if having regard to the circumstances in which such practice has been committed, the Industrial Court is of opinion, that instead of cancellationof the recognition of the union, it may suspend all or any of its rights under sub-s. (1) of S. 20 or under S. 23, the Industrial Court may pass an order accordingly, and specify the period for which such suspension may remain in force.'
7. Chapter III of the Act deals with the recognition of unions. S. 10 deals with the application of the provisions of this Chapter to certain undertakings. S. 11 deals with the application for recognition of a union. From the bare reading of S. 12, it is clear that recognition is contemplated qua a particular undertaking. The words and expressions 'the undertaking', 'that undertaking', 'such undertaking', 'same undertaking' appear in the various sub-sections of S. 12. Only in sub-ss. (5) and (6) such words and expression are not used. In S. 13 the word 'undertaking' is not used in any of the sub-sections. S. 12 deals with the recognition of a union and S. 13 deals with the cancellation of recognition of a union and the suspension of its rights. Therefore, the area and field covered by both these sections is one and the same.
8. It is by now a well-settled rule of interpretation that the Court is
'entitled and indeed bound, when construing the terms of any provision found in a stature, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act. The statute must be read as a whole and every provision in the stature must be construed with reference to the context and other clauses in the statute so as, as far as possible, to make a consistent enactment of the whole statute.'
(See Municipal Corporation of the City of Hubli v. Subba Rao) : 3SCR883 . Obviously, therefore, Ss. 12(6) and 13(1)(v) of the Act must be construed so as to harmonise with the other sections of Chapter III. They must be read together so as to form part of a connected whole. This is more so since we are dealing with the sub-sections of sections relating to the recognition of the union or its cancellation. There is, in our opinion, sufficient indication in the various provisions of the Act and particularly in Chapter III itself, to show the provisions of Ss. 12(6) and 13(1)(v) also relate to a particular undertaking, though the word 'undertaking' is not used in the said sections.
9. As a matter of fact, this is a case of harmonious construction of the various sub-sections and is not a case of supplying casus omissus. As observed by the Supreme Court in Commissioner of Income Tax, Central Calcutta v. National Taj Traders (supra).
'Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well-settled.
In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof, so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature.'
In the light of these observations we will have to construe Ss. 12(6) and 13(1)(v) of the Act.
10. As already observed, in S. 13 of the Act, the word 'undertaking' is not used anywhere. Therefore, will it mean that the recognition of a recognised Union could be cancelled for a mistake within the contemplation of S. 13(1)(i), or a fall in membership under sub-s. (ii), or failure to observe the conditions specified in S. 19, under sub-s. (iii), or the union not being conducted bona fide in the interests of employees, but in the interests of the employer and to the prejudice of the interest of employees under sub-s. (iv) qua other undertakings or the activities unconnected with the undertaking in question. In our view, such an interpretation will result in absurdities and unforseen and unintended complications. Similar will be the position qua sub-s. (5) of S. 12 in which also the word 'undertaking' is not used. As to whether an application is made bona fide in the interests of the employees or is made in the interests of the employer to the prejudice of the interest of the employees in the same undertaking and not qua the interests of the employees or employers in other undertakings. To say the least, such an inquiry is wholly irrelevant as under the Act recognition qua a particular undertaking and not for an industry or an area. If this is so, then the whole inquiry must be restricted to the undertaking in question and the said inquiry cannot travel beyond it. Therefore, we generally agree with the view taken by the Full Bench of the industrial Court. This is more so, as the conditions laid down in S. 12(6) or 13(1)(v) are in the nature of disqualifications. The recognition under Chapter III is restricted to a particular undertaking, though under S. 18 a union can be recognised for more than one undertaking. S. 20 of the Act confers rights upon the recognised union. The employees of the undertaking in relation to which recognition is sought cannot be punished for the conduct of the employees in other undertaking or the activities of the union unconnected with the undertaking in question, in the matter of recognition of Union qua their undertaking.
11. We find that the Full Bench of the Industrial Court was also right in relying upon the observations of the Supreme Court in Forbes Forbes Campell & Co. Ltd. v. Engineering Mazdoor Sabha (supra), wherein it is observed by the Supreme Court in para 8 of its judgment (at p. 342) :
'Moreover, the expression 'union which seeks recognition' has also been emphasised before us. Taking an overall view of the provisions of law viz., Ss. 11, 12, 19 and Rule 4 and Form A, which must all be read together, we are satisfied that any union seeks recognition and applies in that behalf must, when it applies, be able to convince the Industrial Court that it is qualified for recognition.'
12. Thus, it is clearly intended by the Supreme Court that these various provisions should be read with Rule 4 and Form A together. Rule 4 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Rules, 1975 lays down that an application by any union for recognition made under S. 11 shall be in Form A. Cl. 9 of Form A reads as under :
'The applicant-union has not instigated, aided or assisted the commencement or continuation of a strike among the employees in the undertaking for which the applicant union seeks recognition which is deemed to be illegal under the Act within six months immediately preceding the date of this application.'
13. It is no doubt true that a rule cannot travel beyond the scope of the Act. Nor can it restrict or expand its import. However, Shri Deshmukh has placed reliance upon these rules and Form A since according to him, it shows as to how the provision was understood by the Government which was authorised to make rules for carrying out the purposes of the Act under S. 61 of the Act. Sub-s. (2) of S. 61 provides that every rule made under this section shall be laid as soon as may be after it is made before each House of the State Legislature. In this context Shri Deshmukh has placed strong reliance upon the decision of the Supreme Court in K. P. Varghese v. Income Tax Officer, Ernakulam (supra), and particularly upon the following observations at p. 1932) :
'The rule of construction by reference to contemporanea expositio is well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly and felicitously expressed in Crawford on Statutory Construction where it is stated in para 219 that....
The validity of this rule was also recognised in Baleshwar Bagarti v. Bhagirathi Dass I.L.R. (1908) 35 Cal 701 where Mookerjee J. stated the rule in these terms :
'It is well-settled principle of interpretation that Court in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those, whose duty it has been to construe, execute and apply it', and this statement of the rule was quoted with approval by this Court in Deshbandhu Gupta & Co. v. Delhi Stock Exchange Association Ltd. : 3SCR373 .
14. It is accepted canon of interpretation of statute that in the case of doubt, and if two interpretations are reasonably possible, the terminology used in the rules and the form prescribed can be looked into for light. In such cases rules are legitimate aid to construction of statute as contemporanea expositio, (see Tata Engineering and Locomotive Co. v. Gram panchayat Pimpri : 1SCR306 and Joshoda v. Judge, Labour Court (1980) Mh. L.J. 453.
15. Therefore, the Full Bench was right in relying upon the interpretation put upon the said provisions in the rules and the form prescribed as it is in consonance with the intention of the legislature and the scheme of the Act.
16. Once it is held that Ss. 12(6) and 13(1)(v), which are sub-sections of Ss. 12 and 13 and part and parcel of Chapter III, will have to be real with the other provisions of the Act and harmoniously, then, the conclusion is inevitable that the provisions of Ss. 12(6) and 13(1)(v) should also be restricted to the undertaking in which recognition is sought or in respect of which an application for cancellation is made. Therefore, we agree with the view taken by the Full Bench of the Industrial Court. in the view which we have taken, it is not necessary to make a detailed reference to the other decision cited at the Bar which are not directly on the point.
17. In the result, therefore the Rule is discharged. However, in the circumstances of the case there will be no order as to costs.
18. Mr. Kochar, the learned Counsel appearing for the petitioner orally craves for leave to appeal to the Supreme Court, Leave refused.