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Maharashtra General Kamgar Union Vs. Mazdoor Congress and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 84 of 1982 in Writ Petition No. 691 of 1982
Judge
Reported in1983(1)BomCR381; 1983MhLJ147
ActsMaharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 13
AppellantMaharashtra General Kamgar Union
RespondentMazdoor Congress and ors.
Appellant AdvocateR.S. Kulkarni, Adv.
Respondent AdvocateF.D. Damania and ;N.D. Buch, Advs. for respondent No. 1, K.K. Singhvi and ;D.C. Shroff, Advs., i/b., Crawford Bayley and Company, for respondent No. 4
DispositionAppeal dismissed
Excerpt:
labour and industrial - interim injunction - section 13 of maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 - appellants filed application in industrial court for cancellation of recognition of defendants union on ground that its membership had fallen below 30% for continuous period of six months - further filed application to restrain defendants from negotiating, discussing or settling any dispute on behalf of employees of respondent no. 4 - industrial court passed interim injunction under section 30 (2) - appellant filed second application to direct investigating officer to hold enquiry by interrogation or secret ballot of record of membership - industrial court granted order - defendants attempted to get these two orders reviewed by industrial.....b.c. gadgil, j.1. this appeal involves the legality and the correctness of certain orders that have been passed by the industrial court in a proceeding under section 13 of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 (hereinafter referred to as 'the act of 1971') 2. to understand the controversy between the parties, it would be convenient to give the details of the proceedings that are pending under the act of 1971 and the grounds on which those proceedings have been filed. the act of 1971 has made provisions for the recognition of trade unions, the cancellation of such recognition etc. under section 11, any union can make an application for its recognition if that union has for the whole of the period of six calendar months immediately.....
Judgment:

B.C. Gadgil, J.

1. This appeal involves the legality and the correctness of certain orders that have been passed by the Industrial Court in a proceeding under section 13 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as 'the Act of 1971')

2. To understand the controversy between the parties, it would be convenient to give the details of the proceedings that are pending under the Act of 1971 and the grounds on which those proceedings have been filed. The Act of 1971 has made provisions for the recognition of trade unions, the cancellation of such recognition etc. Under section 11, any union can make an application for its recognition if that union has for the whole of the period of six calendar months immediately preceding the calendar month in which the application is made, a membership of not less than thirty per cent of the total number of employees employed in any undertaking. The said application is inquired into under section 12 and for deciding this appeal, it is not necessary to state as to what other conditions the union is required to fulfil before getting recognition. Respondent No. 4 is an undertaking in whose employment there are at present 1025 employees. Respondent No. 1. namely, the Mazdoor Congress applied for such recognition as an union for respondent No. 4 under section 1 and the Industrial Court after making the necessary enquiry granted that recognition in favour of respondent No. 1. The appellant Maharashtra General Kamgar Union (hereinafter referred to as 'Maharashtra Union') made an application to the Industrial Court for cancellation of the recognition of the Mazdoor Congress. Such cancellation is permissible under section 13 and it would be convenient to reproduce the relevant part of that section. If reads as follows :---

'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) .........; or

(ii) that the membership of the union has, for a continuous period of six calendar months, fallen below the minimum required under section 11 for its recognition;

Provided.......;

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) ...........; or

(iv) ...........; or

(v) .............; or

(vi) ............; or

(vii) ...........;

(2) ..............;

Provided that...........'

The Maharashtra Union in its application to the Industrial Court made an allegation that from 1st January, 1981 the membership of the Mazdoor Congress has fallen below thirty per cent for a continuous period of six months and on that account the recognition of the said union deserves to be cancelled. There are certain other averments in the application that the majority of the employees of respondent No. 4 has joined the Maharashtra Union. However, while considering the question of cancellation of recognition, that aspect is really not relevant.

3. In this proceeding the Maharashtra Union filed two applications. The first application was for interim injunction that pending the hearing and final disposal of the main application, the Mazdoor Congress be restrained from negotiating, discussing or setting any dispute whatsoever on behalf of the employees of respondent No. 4 Company. This application was filed on 27th July, 1981, that is the date on which the main application was filed. The Mazdoor Congress opposed the grant of such relief. However, the Industrial Court by its order dated 16th October, 1981 passed by its interim injunction as prayed for by the Maharashtra Union. It is needless to say that under section 30(2) of the Act of 1971 such interim orders are permissible.

4. On 22nd December, 1981 the Maharashtra Union filed another application. It seems that before making such application, the Mazdoor Congress has filed their written statement to the main application. In the application dated 22nd December, 1981 the Maharashtra Union made a grievance that the record of the membership of the Mazdoor Congress has been inspected by the Maharashtra Union and that it is not acceptable and admitted by that Union. Thereafter, it is prayed that under the circumstances, the Industrial Court should direct the Investigating Officer to hold enquiry by interrogation and/or secret ballot and submit report within a fortnight and pass any other appropriate order. This application was also opposed by the Mazdoor Congress. However, on 25th January, 1982, the Industrial Court passed an order in the following words :---

'The I.O. (Investigating Officer) to hold a secret ballot to find out which of the rival unions has the majority of membership. He shall submit his report on or before 15-2-1982.'

It seems that the Mazdoor Congress attempted to get these two orders reviewed by the Industrial Court. However, that attempt failed. The said Mazdoor Congress filed Writ Petition No. 691 of 1982 in this Court for quashing both these orders with the allegation that they are illegal, erroneous and unwarranted by law.

5. The writ petition was opposed by the Maharashtra Union on various grounds. It is, however, not necessary to give the details of the contentions raised by them. Suffice it to say that the main allegation is that the impugned orders are in consonance with the provisions of law and they are not liable to be quashed. The said writ petition was heard and decided by the Single Judge of this Court (Sawant, J.) on 12th/14th July, 1981. The writ petition was allowed. The temporary injunction granted on 16th October, 1981 was quashed. The order of holding the ballot was not quashed as during the pendency of the writ petition, the ballot was held. However, a direction was given that while deciding the main question about the cancellation of the recognition of the Mazdoor Congress, the result of the said ballot should not be made use of. It is these orders that are being challenged before us in the present appeal. Dr. Kulkarni, the learned Advocate for the appellant (Maharashtra Union) contended that the temporary injunction as was granted by the Industrial Court was absolutely essential and that the Maharashtra Union has made out a prima facie case for relief. The learned Single Judge has come to a conclusion that the said order is based on irrational grounds and that it addition the Maharashtra Union has not made out any prima facie case for issuance of the said order. Before the Industrial Court the Maharashtra Union has produced certain documents. For example, on 20th March, 1981 that Union has written a letter to the Mazdoor Congress. It reads as follows :---

'Majority of the Workmen working in M/s. Bayer (India) Ltd, situated at Kolshet Road, Thane 400 607 are hereby tendering their resignation from your Union, as they have become the members of our union from 27-2-1981.'

The Maharashtra Union has also produced a copy of resignation said to have been given by 727 employees of the company. That resignation is dated 23rd March, 1981 and it reads as follows :---

'We, the undersigned workmen of M/s. Bayer (India) Ltd., Kolshet Road, Thane 400 607 who are the members of your union, hereby tender our resignation from the membership of your union with immediate effect.'

It is alleged that this resignation letter has been signed by 727 workmen. We have already observed that the application for cancellation of recognition has been filed on 27th July, 1981. Section 13 of the Act of 1971 contemplates that the membership should fall below thirty per cent for a continuous period of six months and such a situation should also exist in the month in which the show cause notice is issued to the recognised Union. The registration letter, if it is assumed to be a true registration letter, even would show that 727 employees who were the members of the Mazdoor Congress have resigned with effect from 23rd March, 1981 and the period of six months was not over on 27th July, 1981 when the application for cancellation of recognition was made. The Industrial Court was conscious of this position. However, it recorded a finding that though on the date on which the application was made, the membership of the Mazdoor Congress has not fallen below thirty per cent for a continuous period of six months, still such a situation has arisen, if the period is counted from the date of the order, that is, from 16th October, 1981. It is on this basis that the Industrial Court held that a prima facie case of the membership of the Mazdoor Congress having the Mazdoor Congress having fallen below thirty per cent for a continuous period of six months has occurred. The relevant observation from the order of that Court reads as follows:---

'7. The next question is of the prima facie case. The applicant Union has produced under the signature of its Secretary, Shri R.A. Angne, a copy of the letter dated March 20, 1981 addressed by the applicant Union to the non-applicant Union informing that the majority of the workmen working in the non-applicant Company have tendered their resignations from the non-application Union and have become members of the applicant Union from February 27, 1981. Dr. Kulkarni has pointed out that at present that is on this date, the period of six calendar months referred to in section 13 of the Act has been completed though not at the time of filing of the applications. Section 13 speaks of only a continuous period of six calendar months without specifying any qualification of that period as against section 11 or section 14 which speaks of a period of six calendar months immediately preceding the calendar month in which an application is made under that section.'

Thus, the finding of a prima facie case in favour of Maharashtra Union has been recorded by the Industrial Court on the basis that the position as was available on 16th October, 1981 was that the membership of the Mazdoor Congress has fallen below thirty per cent for a continuous period of six months prior to 16th October, 1981 and that, therefore, the Maharashtra Union is entitled to have the interim injunction. The learned Single Judge of this Court has come to the conclusion that this reasoning is absolutely irrational and inconsistent with the provisions of section 13. Dr. Kulkarni contended that if section 13 is read as a whole, it would be possible to construe that section to mean that there would be sufficient compliance of the requirement of the fall of membership below thirty per cent even if the six months period is counted prior to the date of the order. Mr. Singhvi, the learned Advocate for respondent No. 4, also supported this contention. According to both of them, the purpose of giving recognition to a union in order to enable it to deal with an employer on various aspects and more particularly with respect to the demands of the employees. They also argued that it is in this background that section 13 should be construed in order to find out as to whether a particular union has incurred a disqualification for non continuance of its recognition. On the other hand, Mr. Damania, the learned Advocate for respondent No. 1 (Mazdoor Congress) contended that the six months period should precede the date of the application and that any subsequent event during the pendency of the application would not be of much use. In our opinion, this contention is well-founded and it can be seen by taking into account the provisions of section 13.

6. Section 13 contemplates:---(1) Fall of membership below thirty per cent for a continuous period of six months and (2) Such a fall should also be available in the month on which the show cause notice is issued to the recognised union. The fact that the show cause notice is required to be issued necessarily connotes that a union to whom such a notice is issued has to be informed that its membership has fallen below the requisite strength and that, therefore, there is a cause for cancellation of its recognition. On a plain reading of section 13, the continuous period of six months must be the one which would precede the issuance of the show cause notice. If such an event of the fall of membership below thirty per cent has not occurred, the Industrial Court would have no authority to initiate any proceeding by issuing the show cause notice. As a matter of fact the said fall below thirty per cent of the membership is a ground which must exist on the date of the application and if that ground is not in existence the Industrial Court would be at a loss to know as to what type of show cause notice could be issued to a recognised union.

7. The contention of Dr. Kulkarni that the six months period contemplated by section 13 can also cover the period during the pendency of an application made by the Maharashtra Union. In our opinion, such a contention is absolutely untenable for more than one reason. In the first place we have already observed that the show cause notice is a must before taking any action. Would it be possible for the applicant to file an application before the Industrial Court that there was no fall of membership below thirty per cent for a continuous period of six months (when the application was filed) and still the application should be entertained as the applicant hopes that during the pendency of the application, there may be such a fall of membership below thirty per cent for a continuous period of six months. Such an application would not be permissible and obviously the Industrial Court would refuse to issue any notice. If at all any notice is issued to the recognition Union on the basis of such an application, that Union can successfully Union on the basis of such an application, that Union can successfully urge that the matter should be thrown out then and there as the condition precedent for the cancellation of its recognition is not in existence.

8. There is another reason as to why the submission of Dr. Kulkarni cannot be accepted. His submission would create an atmosphere of uncertainty as the result of the application would depend upon a number of uncertain events. For example, if the matter is decided expeditiously and without any losses of any time, it would be dismissed as there would not be any contingency of the requisite fall of thirty per cent of the membership for a continuous period of six months during the pendency of the application. In some other matter, the application may not reach the decision for a very long period and if the requisite fall of membership for six months during the pendency of the proceeding occurs, the Industrial Court will have to cancel the recognition on account of such subsequent event. In this latter case, the applicant would succeed. It is material to note that the notice already issued to the recognised union would not call upon the union to meet such a case of the requisite fall of membership for six months during the pendency of the proceeding. Thus, the result of the application would depend upon the vagary about the life of the litigation and we do not think that such eventuality could be or should be allowed to occur. Thus, the learned Single Judge of this Court has rightly come to the instable conclusion that the relevant period of six months must precede the date on which the application is filed. It would, therefore, not be possible to accept the contention of Dr. Kulkarni that the question as to whether a prima facie case exists in favour of the Maharashtra Union can be decided on the basis of six months period inclusive of the period during the pendency of the application. We have already observed that the case of the Maharashtra Union is that 727 members of the Mazdoor Congress have resigned from that Union in March 1981. This would mean that before the resignation, the said Union had at least that much membership of 727 members. By necessary application it would mean that the application along with the documents produced before would mean that the application along with the documents produced before the Industrial Court would show that there is no prima facie case about the fall of membership for a continuous period of six months from January to June 1981. Of course, we are making this observation on the assumption that the resignation is genuine one. Mr. Damania has urged that the Mazdoor Congress does not accept the said resignation. That aspect, however, will have to be decided by the Industrial Court in due course but for the present even accepting the record as it stands in favour of the Maharashtra Union, it will not be possible for that union to contend that a prima facie case has been made out. It is for thus reason that the impugned order for temporary injunction is liable to be quashed and we do not find any reason to disagree with that order.

9. Some arguments were advanced before us as to whether this continuous period of six months should immediately precede the making of the application or it can be any period of continuous six months in the past not necessarily preceding the date of the application. In the present case, the allegation of the Maharashtra Union in its application is that the membership of the Mazdoor congress has fallen to less than thirty per cent from January to June 1981, that is, for continuous six months immediately preceding the application which was filed in July 1981. Hence it is not necessary to decide in this appeal as to whether the period of six months should be immediately preceding the filling of the application or that it can be any other period of continuous six months before the filing of the application.

10. There is one more aspect that has to be borne in mind while deciding as to whether the interim injunction should have been granted in the circumstances of the present case. Sections 20 and 21 of the Act of 1971 have bestowed certain rights on recognised unions. Those rights are numerous, it is not necessary to enumerate all of them. However, we would like to refer to a few of them. For example, under section 20(1)(c), the recognised union who has a right to meet and discuss with an employer or any person appointed by him in that behalf, the grievances of employees employed in his undertaking. Under section 20(1)(d), the recognised union has a right to appear in behalf of any employee or employees in any domestic departmental inquiry held by employer. It is the recognised union who has a right to appear in any proceeding related to unfair labour practices. Section 18 of the Industries Disputes Act, 1947 deals with settlement arrived at by agreement between the employer and employees. Proviso to section 18(1) lays down that it is recognised union which should be entitled to arrive at an agreement with the employer and it would be binding on all persons. The question is whether before any decision about the cancellation of the recognition, the temporary injuction restraining the recognised union from meeting, discussing and settling any dispute should be granted. It is not that such a relief cannot be granted in any event, but a very strong and good case is required to be made out for taking away the rights of a recognised union before the actual decision as regards the cancellation of its recognition. As discussed above, there is no prima facie case in favour of the Maharashtra Union for cancellation of the recognition of the Mazdoor Congress and it is in this background also that the grant of interim relief is vitiated.

11. Before concluding the question about the legality of the said injuction, we would also like to mention that reasons that have been given by the Industrial Court for passing orders of the Maharashtra Union. In paragraph 7, the Industrial Court has discussed the exercise of prima facie case and in paragraph 8, there are certain other observations. In our opinion, those observations do not warrant a grant of temporary injuction. We would like to reproduce those observation.

'8. Dr. Kulkarni has also brought to my notice another important ground for making the application for interim relief. That ground is given in a fresh affidavit filed by Shri R.A. Angne on September 14, 1981. In the affidavit, Shri R.A. Angne has stated as follows :--- Both the non-applicants have entered into an agreement on charter of demands on February 23, 1978. The period of this agreement expires on October 31, 1981. As the non-applicant union continues to be a recognised union under the Act, although it has no membership and anything even much less than 30% membership and has lost its right to represent the workmen, the agreement cannot be terminated by the applicant Union or the workmen in view of provision of section 19(7) of the Industrial Disputes Act, 1947. It is now well-settled law that this agreement can be terminated in advanced before October 31,1981. See Shukla Mansatta Industrial Pvt. Ltd. v. Workmen : (1977)IILLJ339SC . Supreme Court. It is also well-settled that unless this agreement is terminated, a new charter of demands cannot be submitted and that no retrospective effect to the demands be given from the date earlier than the date of charter of demands. Under these circumstances, if this settlement is not terminated till the recognition of the non-applicant Union is cancelled, it will amount to complete and irreparable loss of benefits in emoluments and other demands. Therefore, if the interim relief, as prayed for, is no reasons of the applicant fault or the fault of the workmen employed by non-applicant Company. For the aforesaid reasons, I grant.......'

We tried to understand these reasons which compelled the Industrial Court to grant the temporary injunction. The reasons, as mentioned in paragraph 8 above, could not be a ground for granting temporary injuction. As a matter of fact, the grant of such temporary injunction would have the effect creating a sort of stalemate and obviously the creation of such a stalemate should not be allowed. Under these circumstances we are quite satisfied that the learned Single Judge has come to the correct conclusion that interim injuction was not at all permissible. At this stage, we may also observe that the learned Single Judge has made a provision in his judgment to safeguard the interest of the Maharashtra Union by directing that though Mazdoor Congress would be free to act as the recognised Union in all other respects but it will not sign any settlement with the undertaking without the permission of the Industrial Court. Thus, the challenge about the quashing of the interim injuction has been rightly accepted by the learned Single Judge.

12. The next question is as to the legality of the order dated 25th January, 1982. In paragraph 4 above, we have reproduced this order. The learned Single Judge has held that in a dispute under section 13 regarding cancellation of recognition, the ballot is not permissible. Dr. Kulkarni and Mr. Singhvi contended that there is no infirmity in the order of this Industrial Court. According to them, the purpose of the order was to find out as to in whose Union there is a majority of employees and by this ballot the Industrial Court would also be able to know as to whether membership of Mazdoor Congress has fallen below the requisite percentage for the relevant period of six months. Section 13 empowers the Industrial Court to find out appropriate order after holding an enquiry in the matter. Section 5(e) of the Act of 1971 lays down that it shall be the duty of the Industrial Court to assign work and to give directions to the Investigation Officers in matter of verification of membership of Unions, and investigation of complaints relating to unfair labour practice. These investigation Officers are appointed under section 8 for the purpose of assisting the Industrial Court in the discharge of its duties. Section 33 empowers the Industrial Court to make regulations and rules for regulations the procedure before it. Dr. Kulkarni relied upon regulations 65 and 66 which deal with the procedure as to how the Investigating Officers should proceed in matters of verification of membership of unions. Regulation 65 permits Investigating Officers to convene meetings of the employees after following certain procedure. Regulation 66 permits Investigation Officers to call for and inspect any document in possession of the employer of an undertaking or the employees of an undertaking. What is urged is that the provision for appointment of Investigating Officers who are to render assistance to the Industrial Court would mean that the Industrial Court can act through the Investigating Offices. It was also urged that the powers of the Investigating Officers are so wide that they can even convene meetings of the employees. Dr. Kulkarni, therefore, contended that the procedure contemplated by section 13 need not necessarily be a quasi judicial procedure. According to him, the procedure which may suit well in a given contingencies can be adopted by the Industrial Court while deciding the controversy before it. He drew our attention to the fact that in the under-taking of respondent No. 4, there are about 1025 employees and thirty per cent of those employees would come to more than 300. According to him, the enquiry as to whether the Mazdoor Congress had a membership of more than thirty per cent during the relevant period will be a prolonged enquiry if one has to adopt the usual mode to find out the percentage of the membership of Mazdoor Congress. Dr. Kulkarni also took an instance of an undertaking where the employees may be 5,000 and argued that for deciding the fact as to whether thirty per cent membership is commanded by a union, an inquiry will have to be made from about 1,500 members of that union. According to him, the inquiry into this aspect with the help of record and the oral and documentary evidence would be a time consuming task. He argued that the matter about the cancellation of recognition of a union is required to be decided expeditiously and that it is for this reason that an enquiry by ballot is most suitable. It is in this background that Dr. Kulkarni has submitted before the learned Single Judge that the secret ballot was the only method by which the issue of cancellation of the recognition of the Mazdoor Congress should be decided. However, in this appeal, Dr. Kulkarni stated that the secret ballot would be one of the methods for deciding the controversy and not the only method.

13. As against this, the contention of Mr. Damania is that the determination of a fact with the help of a secret ballot would not be possible that the legislature never intended such a type of procedure. The Act of 1971 was enacted after considering the report of a committed on Unfair Labour Practices. The Committee was constituted by Government Resolution dated 14th February, 1968. Mr. Damania urged that it would be advantageous to considered as to what has been observed by the said committee in its report so far as the question of holding a ballot is concerned. He drew our attention to the following observations on pages 37 and 38 of the report :---

'There is considerable difference of opinion among the parties who gave evidence before us as to the method to be followed for selecting the sole bargaining agent. The Maharashtra units of A.I.T.U. and H.M.S., as also some employees have advocated the method of election by secret ballot, giving the right to vote to all workers whether they are members of nay trade union or not. The American practice endorses the method of election by secret ballot with a right to vote to all workers. The Maharashtra units of the B.M.S. has Advocated the method of election, but they say that the right to vote should be restricted to the members of the Union only. On the other hand, some trade unions, particularly the INTUC have contended that, in the existing conditions, it would be unwise to Advocate the method of election by secret ballot. They have expressed preference for the method of verification of membership of the trade unions, more or less on the lines of the provisions contained in the Bombay Industrial Relations Act. We need not express any opinion on this highly controversial issue. Firstly, for the reason that it is not an issue which directly arises from our terms of reference. Secondly, because much can be said on both sides. We, therefore, feel that it should be left for the consideration of the legislature...........'

There is also another report known as the Report of the National Commission on Labour. On page 330 and 331 of that report, the Commission has discussed the efficacy of the secret ballot as well as the membership verification method. The Commission has considered the advantages and disadvantages of both the methods and in paragraphs 23.56, it has observed as follows :---

'Much of the opposition to membership verification today is the outcome of fears of manipulation and interference by the administrative authority, fears which are not always unfounded. It is reasonable to expect that verification will become more acceptable, if entrusted to an independent quasi judicial authority. Similarly, election by secret ballot may find favour with those who nor oppose it, when an independent authority conducts it, strictly according to accepted regulations. The best course, therefore, seems to be to leave the choice of method, in any particular case, to the discretion of an independent authority. We suggest that this should be entrusted to the Industrial Relations Commissioner (s) proposed by us. The Commissioner will have the power to decide the representative character of unions either by examination of membership records, or if it considers necessary, by holding an election through secret ballot open to all employees........'

As far as this report of the National Commission is concerned, it appears that not action has been taken by the Central Government on it. However, the Act of 1971 seems to be the result of the Committee on Unfair labour Practices. This is clear from the working of the preamble which reads as follows :---

'WHEREAS, by Government Resolution, Industries and Labour Department, No. IDA. 1367-LAB-II dated the 14th February, 1968, the Government of Maharashtra appointed a Committee called 'the Committee of Unfair Labour Practices' for the defining certain activities of employers and workers and their organisations which should be treated as unfair labour practices and for suggesting action which should be taken against employers or workers, or their organisations, for engaging in such unfair labour practices;

'AND WHEREAS, after taking into consideration of the report of the Committee, Government is of opinion that it is expedient to provide for the recognitions of trade union for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognised unions; to provide for declaring certain strikes and lock-outs as illegal strike s 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 provisions relating to unfair practices; and to provide for matters connected with the purposes aforesaid; it is hereby enacted in the Twenty-second Year of the Republic of India as follows :----

...........

Mr. Damania, therefore, contended that the fact that this report left the matter of (i) method of secret ballot, or (ii) verification of membership method to the Legislature should be borne in mind while interpreting the provisions of the Act of 1971. It is true that the preamble of the Act of 1971 has made a mention about this report. In our opinion, it is not necessary to construe the provisions of the Act of 1971 on the basis of certain observations of the Act 1971 and the regulations made thereunder for the purpose of deciding as to what machinery the legislature has evolved for deciding the disputes between the parties.

14. Mr. Damania drew our attention to Regulations Nos. 78, 79 and 82 of the Industrial Court Regulations, 1975. Regulations No. 78 contemplates filing of written statement by the party to whom a notice to show cause is issued. The said written statement is required to be verified in the same manner as a pleading in a civil suit. What is to be done after the said written statement is filed on the first date of hearing is provided by Regulation No. 79. It reads as follows :-

'79 The Court will ascertain the points of dispute between the parties at the first hearing and shall after hearing the parties ascertain whether parties desire to lead oral evidence, if so on what points after considering relevancy of such evidence in view of the rival cases put up by the parties. In case oral evidence is to be recorded, the Court may, if the evidences as likely to be voluminous or on the other grounds deemed fit by the Court, direct that witnesses may be examined on commission by a Commissioner to be appointed by the Court. The Court may appoint any person or an Investigating Officer as the Commissioner for the examination of witnesses with necessary directions to the Commissioner. These directions shall specify the points in dispute on which oral evidence is to be recorded and the time within which it is to be recorded. If it is decided to have the evidence recorded before it, the Court may fix a date for recording evidence.'

Under Regulation 82, the Court may require any fact to be proved by affidavit and pass order to that effect. The order granting recognition or cancellation of such recognition has a number of effects more particularly pertaining to the rights of the concerned unions. The recognition of a union grant certain privileges while cancellation of that recognition would nullify these privileges. Thus, an enquiry under section 13 of the Act of 1971 may result in affecting the rights of a recognised union. Such an inquiry would at least be a quasi judicial enquiry and it will be necessary to decide as to whether in the absence of any specific provisions for secret ballot, it would be possible for the enquiring authority to decide matters in controversy in such quasi judicial enquiry with the help of a secret ballot. Of course, the position would be different if the legislature makes a specific provisions that a particular controversy can be decided by a secret ballot. But, so long as that provision is not there, we will have to take into account as to what is the primary use of a secret ballot. In ordinary parlance, a secret ballot is a method of voting. This is a process of an election while the enquiry contemplated by section 13 of the Act of 1971 is a fact-finding process. In our opinion, a secret ballot cannot be used as a process where a quasi judicial enquiry regarding the finding of certain facts is contemplated.

15. In the present case what is required to be proved by the Maharashtra Union is that the membership of the Mazdoor Congress has fallen to less than thirty per cent during the requisite six months period and for obvious reasons, that has to be decided on the basis of the evidence that would be led before the Industrial Court. That evidence may be in the shape of the membership record or it can be of any other kind. But, we are not able to accept the contention of Dr. Kulkarni that this controversy can be decided with the help of a secret ballot. Another flaw in adopting secret ballot as a method of proving a particular fact can very well be imagined. Let us take a case where the number of employees in an undertaking is 100, and the Industrial Court holds a secret ballot for the purpose of deciding as to whether the membership of a recognised union has fallen to less than thirty per cent. Let use estimate that the result of such a secret ballot is that 25 employees vote in favour of the recognised union. This would mean that the membership has fallen below the requisite percentage but, as stated earlier, Dr. Kulkarni has contended that the secret ballot would be one of the pieces of evidence. In that contingency, the recognised union could lead other evidences for the purpose of proving that though the result of the secret ballot was as above, still the membership percentage was actually more than thirty per cent. The difficulty would be that as the ballot would be secret, the recognised union would not be able to know as to which of the members has voted against the union ad it will not be possible for the recognised union to lead evidence to contradict those particular voters who have voted against the recognised union. This incapacity would be on account of the absence of identity of such voters.

16. The inherent lacuna in the process of a secret ballot can also be seen from the record of this case. We have already observed that the Maharashtra Union contends that 727 members of the Mazdoor Congress have resigned from that union in March 1981. The secret ballot that was held in pursuance of the order of the Industrial Court shows that 918 employees voted and out of them 904 voted against the Mazdoor Congress. We should not forget that the total employees in the undertaking are 1,025. Thus, in the secret ballot, 904 employees exhibited their mind by saying that they were not the members of the recognised union for six months, namely, from January to June 1981 and also in the month of August 1981. This is obviously inconsistent with the fact that till 20th March, 1981, even as per the case of Maharashtra Union, 727 employees were the members of Mazdoor Congress. Thus, the fact that till March 1981 Mazdoor congress had a membership of 727 persons negatives the efficacy, propriety and the legality of the secret ballot and its result. There is another lacuna which is evident from these figures. In the secret ballot, the voter can say anything because he has the protection of secrecy. The secret ballot is thus held behind the back of the recognised union and it would have no opportunity to cross-examine the persons who have recorded a vote against the union.

17. The learned Single Judge has, therefore, rightly held that the secret ballot could not be a procedure as contemplated by the Act to 1971 and its regulations for the purpose of deciding the facts relevant to an inquiry under section 13 of the Act of 1971. The legislature has not made any express provision that the facts necessary to an inquiry under section 13 can be proved by secret ballot. In our opinion, in the absence of such legislative sanction, it would not be open to substitute a vote in place of proof of a fact. This is more so, when the scheme of the Act and its regulations framed thereunder indicate the determination of disputed facts on the basis of evidence to be led before the Industrial Court. Under these circumstance, it will not be open for the Industrial Court. Under these circumstances, it will not be open for the appellant to successfully challenge the order of the learned Single Judge in this respect. The result, therefore, is that the appeal fails and is dismissed. There will, however, be no order as to costs.


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