Skip to content


Maharashtra Girni Kamgar Union Vs. S. Bhattacharji and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberW.P. 805 and 991 of 1983
Judge
Reported in[1984(49)FLR17]; (1984)IILLJ111Bom
ActsBombay Industrial Relations Act, 1946 - Sections 3(25), 13, 13(1), 15, 15(B), 16, 17, 23 and 123; Bombay Industrial Relations Rules, 1947 - Rule 28A; Constitution of India - Article 226
AppellantMaharashtra Girni Kamgar Union
RespondentS. Bhattacharji and Others
Excerpt:
labour and industrial - representative capacity - sections 3 (25), 13, 13 (1), 15, 15 (b), 16, 17, 23 and 123 of bombay industrial relations act, 1946, rule 28 a of bombay industrial relations rules, 1947 and article 226 of constitution of india - whether person could be considered as member within definition of section 3 (25) in spite of subscription remaining in arrears for three months - no specific advantage conferred on person by becoming member of union - proviso to section 3 (25) intended for benefit of representative union - person may not be able to pay his subscription for a particular month or for more than one month for reasons which are beyond his control - it is not permissible for court to legislate and include more categories of classes whereby particular month could be.....1. these two petitions filed under art. 226 of the constitution of india can be conveniently disposed of by common judgment as the petitions are directed against the order dated 17th february, 1983 passed by the industrial court disposing of the three appeals; two preferred by rashtriya mill mazdoor sangh and one by maharashtra girni kamgar union. the question which requires determination in these two petitions is whether a person could be considered as member within the definition of s. 3(25) of the bombay industrial relations act, 1946 (hereinafter referred to as the 'act') in spite of his subscription remaining in arrears for three months - december 1981 and january and february, 1982. the answer to the question would determine the result of the application made under s. 15(b)(ii) and.....
Judgment:

1. These two petitions filed under Art. 226 of the Constitution of India can be conveniently disposed of by common judgment as the petitions are directed against the Order dated 17th February, 1983 passed by the Industrial Court disposing of the three appeals; two preferred by Rashtriya Mill Mazdoor Sangh and one by Maharashtra Girni Kamgar Union. The question which requires determination in these two petitions is whether a person could be considered as member within the definition of S. 3(25) of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the 'Act') in spite of his subscription remaining in arrears for three months - December 1981 and January and February, 1982. The answer to the question would determine the result of the application made under S. 15(b)(ii) and (iv) of the Act by the Maharashtra Girni Kamgar Union for cancellation of the registration of Rashtriya Mill Mazdoor Sangh as the representative Union for Cotton Textile Industry in Greater Bombay. The facts giving rise to the filing of the petitions are required to be stated to appreciate the contentions urged in support of the two petitions.

2. The Government of Maharashtra enacted the Bombay Industrial Relation Act, 1946 to regulate the relations of employers and employees, and to make provision for settlement of industrial disputes and to provide for certain other purposes. Section 13 of the Act provides for an application for registration as a representative Union and in accordance with this provision, Rashtriya Mill Mazdoor Sangh (hereinafter referred to as the 'Sangh') made a requisite application and was registered as the representative Union in August, 1958 for the Cotton Textile Industry in Grater Bombay. The Cotton Textile Industry comprises about 95 Textile Units, of which 60 are big Units, while the remaining are small Units. These Units are spread throughout the Bombay City and the total labour force employed in these Units is about 2,25,000. Maharashtra Girni Kamgar Union (hereinafter referred to as the 'Union') preferred an application dated 24th March, 1982 before the Registrar appointed under the Act, challenging the status of the Sangh as the representative Union for Cotton Textile Industry. Section 15 of the Act enables the Registrar to cancel the registration of the Union if the Registrar is satisfied that the membership of the Union has for a continuous period of three calendar months fallen below the minimum required under S. 13 for its registration. Section 13 of the Act prescribes that a Union desirous of registration as representative Union must establish that it has a membership of not less than 25% of the total number of employees employed in the Industry in the local area. The cancellation of registration was also sought on the ground that the Sangh is not being conducted bona fide in the interest of the employees but in the interest of the employers and to the prejudice of the interest of the employees. The Union claimed that the Mill Workers jointed the Union some time in October 1981. It is necessary to mention at this juncture that the Union resorted to strike in six Mills from October 18, 1981 and the total strike in all the Units from 18th January, 1982. It was the claim of the Union that as the membership of the Sangh had fallen below the minimum required under S. 13 of the Act, it is necessary to cancel the registration of the Sangh as the representative Union. The Union claimed that the activities of the Sangh are not conducted in bonafide manner and in support of the claim, reliance was placed on two grounds. It was claimed that about 90 employees of Kohinoor Mills had consumed the edible oil supplied by the Sangh and became permanently disabled but the Sangh did not give any monetary assistance to these employees. The second allegation was that the Sangh failed to protect the interest of the employees when the employers introduced automation of looms which resulted in the retrenchment of the workers.

3. The application preferred by the Union was summarily rejected by the Additional Registrar of Unions by holding that from the employment and the membership information available under Rules 21 and 22 of the Bombay Industrial Relations Rules, 1947 (hereinafter referred to as the 'Rules'), the membership for a period of three continuous calendar months had not fallen below the minimum. The order of the Additional Registrar was challenged by the Union by filing Writ Petition No. 856 of 1982 in this Court. The Additional Registrar thereupon withdrew the order rejecting the application under S. 15 of Act. The Registrar was then directed by this Court to hold a proper enquiry and after giving opportunity to all the parties concerned, decide the application on merits. The High Court also directed the Union to file an amended application before 5th May, 1982. The Union accordingly, filed the amended application on 6th May, 1982 and claimed that the figures shown by the Sangh to establish the membership in the months of October 1981 to December 1981 were false and fabricated. The Additional Registrar issued show cause notice to the Sangh on 21st May, 1982. The Sangh filed written statement raising several contentions, the principal being that the membership of the Sangh had not fallen below the minimum for a continuous period of three months. The Sangh denied that the activities were not conducted bonafide in the interest of the employees and further specifically denied the two instances given by the Union in this connection. The Additional Registrar, after hearing the parties, by order dated 4th November, 1982 rejected the application for derecognition of the Sangh. The Additional Registrar came to the conclusion that the membership of Sangh for the months of December 1981, January, 1982, February, 1982 and May, 1982 had fallen below the minimum required under S. 13 of the Act. The Additional Registrar considered the figure of membership of the Sangh for the month of May, 1982 in view of the second proviso to S. 15(b)(ii) of the Act which prescribes that the registration of the Union shall not be cancelled unless its membership for the calendar month in which the slow cause notice under S. 15 of the Act was issued was less than the minimum. In other words, two conditions are required to be satisfied before cancellation of the registration of the representative Union and those conditions are :

1) that the membership has fallen below the minimum for a continuous period of three months, and

2) that the membership is also less than the minimum in the calendar month in which show cause notice is issued.

The Additional Registrar in spite of the finding that the membership had fallen below the minimum at both the relevant times, declined to derecognise the Sangh on the grounds that the required membership during the month of May, 1982 had fallen the minimum because of an illegal strike resorted to by the Union from 18th January, 1982. The Additional Registrar recorded a finding that the claim of the Union that the activities of the Sangh were not conducted bonafide and, therefore, the registration should be revoked under S. 15(b)(iv) of the Act was without any merit. On the strength of this finding the Additional Registrar rejected the application for cancellation of the registration.

4. The Union preferred Appeal No. 114 of 1982 before the Industrial Court challenging the correctness of the order of the Additional Registrar, while the Sangh preferred Appeal No. 6 of 1983 to challenge the correctness of the finding that the membership of the Sangh had fallen below the minimum at the two relevant stages. Appeal No. 114 of 1982 was filed on behalf of the Millowners' Association complaining that the Additional Registrar was in error in recording the finding that number of employees working in all the Units was about 2,25,000. It was claimed on behalf of the employers that the Badli employees should not be treated as employees within the meaning of the Act. The three appeals were disposed of by the Industrial Court by common judgment delivered on 17th February, 1983. The Member of the Industrial Court came to the conclusion that the finding recorded by the Additional Registrar that the membership of the Union had fallen below the minimum at two stages was incorrect. The Industrial Court further held that in case the finding was otherwise, then the order of the Additional Registrar refusing to cancel the registration on the ground that the employees were on strike could not be sustained. The Industrial Court further held that the finding recorded by the Additional Registrar that the activities of the Sangh were conducted bonafide in the interest of the employees is just and proper. The Additional Registrar did not accept several technical contentions raised on behalf of the Sangh as well as on behalf of the Millowners' Association and concluded that the Badli employees must be treated as employees within the meaning of the Act and the finding of the Additional Registrar that the total strength of the employees was 2,25,000 deserves acceptance. Against the order of the Industrial Court, the Union has preferred Writ Petition No. 805 of 1983, while the Sangh has preferred Writ Petition No. 991 of 1983.

5. Shri Damania, learned Counsel appearing on behalf of the Union, submitted that the finding of the Industrial Court that the membership of the Sangh had not fallen below the minimum for a consecutive period of three months and also in the month in which show cause notice was issued is incorrect. It was also urged that the finding recorded by the two authorities below to the effect that the activities of the Sangh are conducted bonafide in the interest of the employees is incorrect. Shri Sawant, learned Counsel appearing on behalf of the Sangh, supported the order passed by the Industrial Court and submitted that in no event, the registration of the Sangh could be cancelled because the Union had resorted to an illegal strike and such an Union cannot be permitted to take advantage of its own wrong. Shri Sawant submitted that the first provision to S. 15(b)(ii) of Act is invalid because it casts an undue burden upon the Sangh for illegal strike resorted to by the Union. Shri Srikrishna, learned Counsel appearing on behalf of the Millowners' Association, and Shri Desai, learned Counsel appearing for the State Government, adopted the submissions urged on behalf of the Sangh. In view of these rival submissions, the first question which requires determination is whether the activities of the Sangh are conducted bonafide in the interest of the employees or otherwise for the interest of the employers. Section 15(b)(iv) of the Act confers power upon the Registrar to cancel the registration if the activities of the registered Union are not conducted bonafide in the interest of the employees, but in the interest of the employers and to the prejudice of the employees. As mentioned herein above, two grounds were set forth in support of the claim but in respect of both the grounds, the Union did not furnish any material to substantiate the claim. Both the allegations were seriously disputed by the Sangh and the Additional Registrar found that there was no data whatsoever in support of the claim. The finding of the Additional Registrar was not seriously assailed by the Union before the Industrial Court and accordingly, the Industrial Court found that the finding was in order. The finding recorded by the two authorities below on this aspect is a pure finding of fact based on appreciation of evidence and cannot be disturbed in exercise of writ jurisdiction. Shri Damania submitted that the Sangh had claimed in the present proceedings that Badli employees should not be considered as employees within the meaning of the Act and 45,000 Badli employees should be excluded while considering the total strength of the employees. Shri Damania urged that this contention urged on behalf of the Sangh would demonstrate that the Sangh is not working for the benefit of the employees but to their detriment. Shri Damania urged that in view of this contention, the registration of the Sangh should be cancelled. It is impossible to accept this submission for more than one reason. In the first instance, such contention was not urged before either of the two authorities. Secondly, the question whether Badli employees should be treated as the employees under the Act and should be included while considering the total number of employees employed in the industry would depend upon the construction of the provision of the Act and raising the contention in that respect cannot be treated as acting prejudicial to the interest of the employees. It must be borne in mind that such a contention was urged by the Sangh before the authorities below with a view to maintain the registration as the representative Union and raising such pleas in the proceedings for defeating the application of the Union cannot be considered as acting prejudicial to the interest of the employees. In my judgment, the claim of Shri Damania that the registration ought to have been cancelled under S. 15(b)(iv) of the Act cannot be accepted on the facts and circumstances of the case.

6. The principal contention urged by Shri Damania is in respect of the claim of the Union that the membership of the Sangh had fallen below the minimum for a continuous period of three month i.e. December 1981 and January and February, 1982. Before adverting to the relevant provisions of the Act, it is necessary to mention that the finding recorded by the two authorities below that the total strength of the employees in the Cotton Textile Industry was 2,25,000 was not disputed at the hearing of these petitions. This figure includes 45,000 Badli workers employed in the industry. It was also not disputed that on the basis of this figure, the Sangh was expected to have a membership of 56,250 as the minimum qualifying membership for the relevant three months and in the month of May, 1982 when the show cause notice was given. Rule 22 of the Rules requires the registered Union to file a statement before the Registrar and such statement shall, in the case of a representative Union, furnish the total number of members of the Union. The Sangh had filed the return and the membership figures shown for the month of December 1981, January, 1982 and February, 1982 were 1,07,392, 92,011 and 77,809 respectively. The Additional Registrar had appointed an Inspection Team to ascertain the collection of membership fees by the Sangh for the relevant months and on the strength of the material gathered, the Additional Registrar came to the conclusion that the membership figures of the Sangh for the relevant months were 46,488, 30,154 and 1,135 and were obviously below the minimum. The Additional Registrar determined these figures after excluding members who had failed to pay subscription for the relevant three months. The employers are required to file returns with the Registrars, inter alia, stating the number of employees employed on the first working day of every month. From the statements furnished by the employer, the number of employees in the three relevant months where 99,754, 1,19,280 and 5,533. The two authorities below rejected the number ascertained from the statements filed by the employer on the ground that the number given was only of employees who actually worked in the relevant months and that as no bearing to the membership figures of the Sangh for the relevant years. The main controversy arises as to whether the member who had failed to pay membership fees for the relevant three months can be considered as a member to ascertain whether the membership of the Sangh as fallen below the minimum for the relevant months and to resolve this question, it is necessary to make reference to the provision of the Act.

7. Section 3(25) of the Act defines expression 'member' as follows :

'Member' means a person who is an ordinary member of a Union and who has paid a subscription of not less than twenty five paise per calendar month :

Provided that no person shall at anytime be deemed to be a member if his subscription is in arrears for a period of more than three calendar months during the period of six months immediately preceding such time.

Explanation - A subscription for a particular calendar month shall, for the purpose of this clause, be deemed to be in arrears if such subscription is not paid by the end of the calendar month in respect of which it is due.

Sections 13(1) and 15(B)(ii) of the Act read as under :

'13(1) Any Union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it is so applies under this section a membership of not less than twenty five percent of the total number of employees employed on any industries in any local area may apply in the prescribed form to the Registrar for registration as a Representative Union for such industry in such local area'.

'15 The Registrar shall cancel the registration of a Union -

a) - - - - - - - - - - - -

b) if after giving notice to such Union to show cause why its registration should not be cancelled and after holding such inquiry, if any, as he deems fit, he is satisfied -

(i) - - - - - - - - - - - - -

(ii) that the membership of the Union as for a continuous period of three calendar months fallen below the minimum required under S. 13 for its registration :

Provided that where a strike or a closure not being an illegal strike or closure under this Act in an industry involving more than a third of the employees in industry in the area as extended to a period exceeding fourteen days in any calendar month, such month shall be excluded in computing the said period of three months :

Provided that the registration of 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.

Section 123 of the Act enables the State Government to make rules and in exercise of that power, the Government has framed rules known as 'The Bombay Industrial Relations Rules, 1947'. Rule 28A which came into operation from 25th June, 1958 deals with the manner of inquiry to be carried out by the Registrar for ascertaining the membership of the Union for the purpose of provisions of Ss, 13, 16, 17 or 23 of the Act. Sub-rule (3)(b) of Rule 28A requires he applicant for registration to produce before the Registrar counterfoils of receipts of subscription for nine calendar months immediately preceding the calendar month in which the application is made under Ss. 13 and 16 of the Act. With these statutory provisions, it would be now convenient to consider the submission urged by Shri Damania. The learned counsel urged that S. 15(b)(ii) and the second proviso provides satisfaction of two conditions for enabling the Registrar to cancel the registration. The two conditions are that the membership of the Union for a continuous period of three calendar months fallen below the minimum required under S. 13 for its registration and the membership has also fallen below the minimum in the calendar month in which show cause notice was issued. It was urged that for ascertaining compliance with the two requirements, the authorities were required to find out whether in the particular block of three months and in the month of show cause, the membership had fallen below the minimum.

8. Section 15(b)(ii) refers to the minimum membership required under S. 13 for registration as the Representative Union and turning to S. 13(i) of the Act, it is clear that an application for registration can be made by the Union provided the applicant has for the whole period of the three calendar months immediately preceding the calendar months in which the application is made, a membership of not less than 25% of the total number of employees. To ascertain the figure of membership, it is necessary to find out who could be a member and S. 3(25) of the Act defines that 'Member' means a person who is an ordinary member of a Union and who has paid a subscription of not less than twenty five paise per calendar month. Shri Damania submitted that a person can be a member provided he pays subscription every month and on failure to pay the subscription, the person would automatically cease to be a member. It was urged that on the finding recorded by the Additional Registrar, and finding recorded by the by the Industrial Court, the number of members who had paid the subscription fees for the three concerned months were only 46,488,30,154 and 1,135 respectively. It was urged that as the number of members who had paid the subscription were far below than the minimum number required for registration under S. 13 of the Act, the Sangh could not successfully resist the application for cancellation of registration. It is not possible to accept the said submission in view of the proviso to S. 3(25) of the Act. A person can be a member on satisfaction of two conditions, viz, being an ordinary member of the Union and payment of subscription every month. The proviso prescribes that no person shall at any time be deemed to be a member if his subscription is in arrears for a period of more than three calendar months during the period of six months immediately preceding such time. The explanation provides that the subscription for a particular calendar month, shall for the purposes of the clause, be deemed to be in arrears, if such subscription is not paid by the end of the calendar month in respect of which it is due. The explanation clearly provides that the subscription if not paid by the end of the particular month, then such subscription would be deemed to be in arrears. It is necessary now to ascertain the ambit and the scope of the proviso. The proviso is couched in negative terms and prescribes that the person can be deemed to be a member if his subscription is not in default for a period of more than three calendar months during the period of six months immediately preceding such time. It is undoubtedly true that the proviso uses the expression 'deemed' and thereby carves out a legal fiction. The normal scope of the proviso is to carve out an exception from the general rule. The general rule here is that the employee can be a member provided he pays the subscription every month. The exception carved out is that even if a person falls in arrears, he would not cease to be a member, if the arrears of subscription is not for more than a period of three calendar months. Shri Damania submitted that the proviso does not create a legal fiction and person who commits default cannot be treated as a member to ascertain the membership of a representative Union. It was urged that S. 15(b)(ii) of the Act provides that the membership of the Union must fall below minimum and while ascertaining whether it is so, in a particular case, it would not be proper to consider the expression 'member' in S. 3 of the Act. The submission being that the expressions 'member' and 'membership' are different and distinct. It is impossible to accede to this submission. The expression 'membership' merely expresses the status and to ascertain whether the membership figures fall below the minimum, it is necessary to determine whether a person has a legal status. The submission of Shri Damania that while ascertaining whether the membership has fallen below the minimum, it is necessary to exclude all persons who had remained in arrears of subscription cannot be accepted in view of the proviso to S. 3(25) of the Act. On the facts of the present case, the relevant period for considering the membership of the Sangh is month of December 1981, and months of January and February, 1982. In view of the specific wording of the proviso, even if a person has not paid the subscription for the relevant three months, such person would not automatically cease to be a member. The person ceases to be a member provided he is in arrears for a period of more than three months, during the spell of six months immediately preceding December 1981, and January and February, 1982. It is not in dispute that applying the test laid down by the proviso, the membership figure of the Sangh would not be below the minimum prescribed under S. 13 of the Act. As mentioned earlier, the Sangh has claimed the membership of 1.07,392 in December 1981 but the Additional Registrar reduced the figure to 49,670 on the ground that the Inspection Team submitted the report stating that 61,509 members had not paid the subscription fees for the month of December 1981. The report of the Inspection Team further recites that 58,852 and 74,904 members had not paid the subscription for the months of January and February, 1982 respectively and on the strength of the report, the Additional Registrar excluded that number from the membership figure of the Sangh. The Additional Registrar held that those members who had not paid the subscription for the relevant months would cease to be members. The finding was reversed by the Industrial Court and, in my judgment, very correctly. Reading the proviso to S. 3(25) of the Act, it is obvious that a person would not cease to be a member merely because he had remained in arrears of subscription for a particular month. A person would cease to be a member provided he is in arrears of subscription for a period exceeding three months preceding six months prior to the month in which membership figure is required to be considered. In case the number of employees excluded for the relevant three months for non-payment of subscription are included, then obviously, the membership figure of the Sangh has not gone below the minimum as contemplated by S. 13 of the Act.

Tuesday, the 24th April, 1984.

9. Shri Damania submitted that proviso to S. 3(25) of the Act was enacted to confer advantage on the defaulting member and the ambit of proviso should be restricted to confer the benefit upon him. It was urged that it is not open for the Representative Union to take advantage of the proviso and of claim that even a member who had committed default in payment of subscription would continue to be a member. It is not possible to accept this submission of the learned Counsel. Once, the Legislature decided to confer benefit or advantage upon a person to be treated as as a deemed member in spite of failure to pay the subscription, then such benefit cannot be restricted only to that person but would be available to Representative Union also for the purpose of ascertaining the number of members. The Act or the Rules do not prescribe any qualification of become a member, save and except, that the person must be an ordinary member of the Union and pay the subscription. The Act or the Rules do not prescribe for cessation of the membership, not does the Act confer any advantage on a person by becoming a member of any particular Union. It is open for any person to become member of several Unions at the same time. The registration of the Representative Union enables the Union to enter into any settlement with the employers and such settlement is binding no only on the members of the Representative Union but on all other employees in the industry. The Legislature enacted the legislation to give effect to the principle of collective bargaining and that the same is highlighted by the Supreme Court in the case of Santuram Khudal v. Kimatrai Printers & Processors Pvt. Ltd. and others reported in ` in the following words :

'It is necessary to bear in mind that the legislative intent underlying the scheme of the Act being to inculcate and encourage the practice of collective bargaining so that the labour is neither exploited, nor victimised and industrial peace and harmony is ensured, the provisions of the Act are designed to emphasise that if labour in an industry is organised through its own Union which is registered and recognised under the Act, then it is that Union which can appear and do all acts and agitate matters in its representative capacity for the labour and if it does choose to appear or act then no individual employee is competent to appear and present his points of view.'

In my judgment looking to the scheme of the Act and to the fact that there is no specific advantage conferred on a person by becoming a member of the Union, it is obvious that the proviso to S. 3(25) of the Act was intended for the benefit of the Representative Union. The legislature was fully conscious that a person may not be able to pay his subscription for a particular month or for more than one month for reasons which are beyond his control.

In a given case, the person may be lying in the hospital or had gone to native place and in such circumstances it would have been harsh to deprive the person of the membership and the representative Union of its representative character because of the membership figure falling below the minimum. The Legislature was also conscious that there may be a closure or a strike in the industry involving several employees and in such cases also the member may not able to pay his subscription and to prevent a person in such circumstances to lose membership, the first provision to S. 15(b)(ii) of the Act was inserted. In my judgment, the proviso to S. 3(25) of the Act must be so construed as to enable a member to hold his membership even if here is default in payment of subscription for a particular month. The proviso enables a defaulting member to continue his membership provided the default is not for a period of more than three calendar months during the preceding six months. This construction would give effect to the intention of the Legislature and would be to the advantage both of the member and the Union. The submission of Shri Damania that the person would cease to be a member as soon as a default is committed for a particular month would defeat the object of the Legislature and such construction, therefore, should be avoided Shri Damania submitted that S. 18 of the Act prescribes that the cancellation of the registration of a Union shall not relieve the Union or any member thereof from any penalty or liability incurred under this Act prior to such cancellation and, therefore, the construction adopted would foist the liability on the member, even if such member does not desire to continue his member ship. The submission is not accurate because when a particular person specifically inform the Union that he does not desire to continue the membership and thereupon refuses to pay the subscription, then the proviso to S. 3(25) of the Act would not be attracted. A person can always by his overt act inform the Union that he has being the positive intention of his desire on cease to be a member, the deeming provision under S. 3(25) of the Act would not come into play. It is not in dispute in the present case that none of the members of the Sangh had informed in the relevant three months that they do not desire to continue as members. The mere inaction in not paying he subscription for the period of December 1981 and January and February 1982 would not deprive them of the right of the membership in view of the proviso to S. 3(25) of the Act and consequently, it is open for the Sangh to claim that all those members who had committed defaults in payment of subscription should be treated as valid members for the relevant months.

10. There is another aspect of the matter which must be taken notice of while ascertaining the exact scope of the proviso to S. 3(25) of the Act. Section 13 of the Act requires that the Union shall have membership of not less than 25% of the total number of employees in the industry for the whole period of three calendar months immediately preceding the calendar month in which it has applied for registration as a Representative Union. In accordance with the powers conferred under S. 123 of the Act, rules have been framed by the State Government and Rule 28A(3) requires that the Registrar shall fix a date for holding an enquiry for ascertaining the membership of the Union which had applied for registration. The applicant Union is required to submit counter-foil of receipts of subscription for nine calendar months immediately preceding the calendar month in which the application is made. In view of this rule, though the Union is required to establish that it holds membership of not less than 25% of the total number of employees in the industry for the three months prior to the date of application, in addition, it is necessary to establish that the applicant Union was in existence for a period of nine calendar months prior to the date of application. The idea of enacting this rule was that the application for registration should not be made by Union which has not the standing even for a period of nine months before the date of application. The rule also indicates that the applicant Union would be able to establish the requirement of S. 13 of the Act that the membership is not less than 25% in the three consecutive months immediately preceding the date of the application even if some of the members have fallen in arrears of the subscription in those months. The applicant Union would be able to satisfy the requirement of S. 13 of the Act by claiming that a person who has not paid the subscription for the three consecutive months prior to the date of application for registration should be considered as a member by taking recourse to proviso to S. 3(25) of the Act. For an instance, an application for registration is made in the month of April and it is necessary to establish the membership figure for the three preceding months i.e., January, February and March. Now some members may not have paid the subscription for those three months but have paid the subscription for six months prior to January and such a person could by validly treated as a member of the applicant Union and the Union may be able to secure registration as a Representative Union. The reliance placed by the counsel for the Sangh and the Millowners Association on the decision dated 4th April, 1978 of the Division Bench of this Court in Special Civil Application No. 155 of 1977 is very appropriate in this connection.

11. In the case before the Division Bench, an application was made for registration of an Union in Pune Local area in respect of Cotton Textile Industry. The applicant Union was formed some time in August, 1973 and was registered as a Trade Union on 5th December, 1973. On 6th April, 1974, an application was made under S. 16 of the act for being registered as a Representative Union in Place of the existing Representative Union. The application Union claimed that it has a total membership of 74% of the employees in the months of January, February and March, 1974. The Registrar called upon the application Union to produce documents as required by Rule 28A. The applicant Union could not produce counter-foil receipts of subscription for nine calendar months prior to the date of application because it was formed only in August 1973. The Registrar thereupon rejected the application for non-compliance with the requirements of Rule 28A. The appeal carried before the Industrial Court ended in dismissal and that gave rise to the writ petition. The Division bench, after considering the definition of expression 'Member' in S. 3(25) of the Act, held that the Legislature had taken care to see that the Union have existence for reasonable length of time and can be serviceable to the workers before application is made for registration as a Representative Union. The Division Bench held that the Legislature had in mind that the Union which comes up like a mushroom shall not be given any valuable right of becoming a Representative Union of the entire industry. The Division Bench thereafter considered the scope of the proviso and the explanation to S. 3(25) of the Act and observed that as the membership for the period of three months prior to the date of application is relevant for grant of application under S. 13 of the Act, the membership of those three months must be tested with reference to the proviso to S. 3(25) of the Act. It was further held that Rule 28A is consistent with the proviso to S. 3(25) of the Act and if for the purpose of finding out the membership during the last three months prior to the calendar month of the application, the arrears of more than three months in a prior period of six months to a particular time is a relevant factor, then it is clear that the applicant Union must be in existence for six months prior to the period of three months in relation to the first month of that block period of three months. It was further held that normally the current month of the application would be the 10th month so that for considering the arrears of the previous three months, a further block period of six months becomes relevant. It was urged before the Division Bench and so also by Shri Damania in the present proceedings that he provisions of S. 13 of the Act cannot be further enlarged by reference to Rule 28A, and proviso to S. 3(25) of the Act cannot be so read as to whittle down the requirement of S. 13 of the Act. The Division Bench did not accept the submission as it was obvious that it is possible for a trade Union to attract a large number of workers for a temporary period on a particular issue. The workmen would be persuaded for a short while to join a particular Union by raising certain demands. The Legislature did not consider such membership enough for acquisition of status of a Representative Union. The Legislature, therefore, provided that the Union must exist at least for nine months before it applies for representative status. It is obvious from the decision of the Division Bench of this Court that the applicant Union must exist not only for the period of three consecutive months prior to the date of application but at last nine months prior to the date of application. The Division Bench found that the requirement under Rule 28A was perfectly valid and is in consonance with the definition of 'member' under S. 3(25) of the Act. In my judgment, in view of the decision of the Division Bench, the order passed by the Industrial Court is in accordance with law and requires to be upheld.

12. The submission of Shri Damania that the rule making authority by enacting Rule 28A has travelled beyond the provisions of the Act and has imposed additional requirement for registration under S. 13 of the Act cannot be accepted. The rule making body was conscious of the scope of the proviso to S. 3(25) of the Act and Rule 28A was enacted to give effect to the same. In my judgment, the Industrial Court was perfectly justified in holding that even though several workers had not paid the subscription for the relevant three months, still they continue to be the members of the Sangh. The finding is in accordance with law and the ultimate conclusion that the membership of the Sangh had not fallen below the minimum as required under S. 13 of the Act is correct. The challenge to the order of the Industrial Court on behalf of the Union, therefore, must fail and Writ Petition No. 805 of 1983 deserves to be dismissed.

13. In cross Writ Petition No. 991 of 1983 filed on behalf of the Sangh, Shri Sawant, learned Counsel, raised only two contentions. It was urged that the two authorities below were in error in holding that the Badli workers employed in the industry are to be included while considering the total number of employees employed in he industry Shri Sawant and Shri Srikrishna argued that the Badli employees were not employees within the meaning of the Act. The argument cannot be entertained because the expression 'employee' denotes the relationship of master and servant and whether a person is employed in a particular capacity or otherwise would not make any difference. Whether an employee is appointed in a permanent post or merely in a temporary vacancy would have no bearing to determine whether such person has been employed by the employer. In my judgment, both the authorities below were perfectly justified in holding that the Badli workers must be treated as employees. The number of Badli workers is over 45,000 and it is impossible to hold that the Badli workers are not employees within the meaning of expression 'employees'. In my judgment, the authorities below were perfectly justified in not excluding this category of workers while ascertaining the strength of the total employees employed in the industry. The finding of the authorities below that the total strength of the employees was 2,25,000 is correct and deserves acceptance.

14. The second submission urged by Shri Sawant is in regard to the effect of the first proviso to S. 15(b)(ii) of the Act. The learned Counsel submitted that fall in the membership for a particular month is to be ignored if the industry remains closed due to the strike or closure and involves more than 1/3rd employees in the industry. The learned Counsel submitted that the proviso comes into play only when the industry is closed due to a legal strike or the closure on the part of the employer and that is unreasonable and arbitrary because an unrecognised Union may well give a call for illegal strike leading to the closure of the industry and thereby preventing the members from payment of subscription. It was urged that the Union, in the present case, has given a call for strike in the month of October 1981 and the entire industry came to standstill from 18th January, 1982. The strike resorted to by the Union was declared illegal and as the employees were compelled to go on strike either by inducement or by show of force, the employees were without any funds and, therefore, were unable to pay subscription. It was submitted that in such circumstances even though the strike is illegal, the relevant months should be excluded while computing the period of three months. It is impossible to accede to this submission. The reason for default in payment of subscription may be due to several circumstances but the Legislature has provided that once the default exists for a period more than three months in the block of six months, then the person ceases to be a member. It is not feasible and indeed impossible to ascertain with respect of each and every employee, as to whether there were circumstances which prevented him from contributing his subscription and, therefore, the Legislature provided that a person would cease to be a member on the happening of certain event and it is not necessary for the Registrar to investigate whether the default was for a cause which was justifiable or otherwise. The proviso to S. 15(b)(ii) of the Act merely excludes a certain category of cases and it is not permissible to extend the application of the proviso to cases which were not contemplated by the Legislature. It is not permissible for the Court to legislate and include more categories of cases whereby a particular month could be excluded while computing the period of three months. In my judgment, the submissions urged in support of the petition filed on behalf of the Sangh are without any merit and deserve to be turned down. In fact, in my judgment, filing of the petition by the Sangh was misconceived as the ultimate order passed by the Industrial Court was entirely in favour of the Sangh. The petition should not have been filed for challenging certain findings of the Industrial Court.

15. Accordingly, the petitions filed by the Union and the Sangh fail and the rule in each of the petitions is discharged. In the circumstances of the case, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //