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Nagrik Sahakari Rugnalaya Karmachari Union Vs. the Nagrik Sahakari Rugnalaya Maryadit - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case Number Writ Petition No. 179/1983 (Nag)
Judge
Reported in(1983)85BOMLR272
AppellantNagrik Sahakari Rugnalaya Karmachari Union
RespondentThe Nagrik Sahakari Rugnalaya Maryadit
DispositionPetition dismissed
Excerpt:
maharashtra recognition of trade unions and prevention of unfair labour practice act, 1971 (mah. i of 1972), sections 11, 12(6), 25(6), 14(1)(a) - maharashtra recognition of trade union and prevention of unfair labour practices rules, 1971, rule 4--recognition of a union--applicability of section 12(6)--strike should be declared illegal whether requirement to attract section 12(6)--call for strike given by responsible officer of union whether can be construed as call for strike by union--union not putting its responsible officer into witness box--adverse inference whether can be drawn and principle under section 106 of indian evidence act whether can be applied-indian evidence act (i of 1872), sections 114, ill. (g), 106--trade unions act (xvi of 1926), section 13.;it is not at all the..........- the second respondent, for its recognition under section 11 of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 ('act of 1972', for short) read with rule 4 of the maharashtra recognition of trade unions and prevention of unfair labour practices rules, 1971. as required by the relevant rule the union made a statement in para. 9 of the application mentioning: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.2. the respondent no. 1 resisted the application on various grounds including that.....
Judgment:

Mohta, J.

1. The first respondent-Nagpur Sahakari Rugnalaya Maryadit, Nagpur, a duly registered Co-operative Society runs a hospital on North Ambazari Road, Nagpur. I am informed that it is a regular indoor hospital with sixty beds having nearly one hundred employees. Petitioner-Nagrik Sahakari Rugnalaya Karmachari Union is a registered Union of the employees of the first respondent. On February 27, 1980, the Union applied in the prescribed form to the Industrial Court, Nagpur - the second respondent, for its recognition under Section 11 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('Act of 1972', for short) read with Rule 4 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Rules, 1971. As required by the relevant rule the Union made a statement in para. 9 of the application mentioning:

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.

2. The respondent No. 1 resisted the application on various grounds including that the Union contrary to the provisions of the Act of 1972 had instigated, lightening strike without previous notice in the morning of February 25, 1980. In the enquiry before the Industrial Court, none on behalf of the Union entered into the witness box. Employer, however, examined its Secretary Dr. Kashikar. Relying upon his oral evidence and the documentary evidence which consists of exchange of notices, the contents of application filed by the treasurer of the Union, Shri B.A. Borey, under Section <33(c)(2) of the Industrial Disputes Act, 1947 ('Act of 1947' for short), the Industrial Court came to the conclusion that the workers had gone on illegal lightening strike for about 3/4 hours and that it was at the instigation of the Union through its office bearer. Relying on Section 12(6) of the Act of 1972 the Industrial Court rejected the application for recognition. Being aggrieved by this order, the Union has filed the present writ petition.

3. Before noticing the various points urged on behalf of the petitioner it will be worthwhile mentioning few additional facts. On February 25, 1980, itself a notice of strike under Clause 22(1) of the Act of 1947 was given by the Union. Before that, agitation was going on for certain demands which culminated into a hunger strike in front of the hospital. The demands inter alia related to the status and the pay scale of Shri Borey, who was described as the principal adviser and the chief supporter of the Union in the notice of strike. On that day, Dr. Kashikar received a complaint from a nurse Shinde that there was some incident in which relatives of patient Smt. Wakhare had quarrelled with the staff members. Shri Borey approached Dr. Kashikar in connection with the complaint and gave him an ultimatum that in case the said patient was not immediately discharged from the hospital, he would give a call for instant strike. Dr. Kashikar refused to take decision suddenly in this respect without enquiring into it, looking to the condition of the patient. Within 10 minutes thereafter the strike was declared and commenced. Dr. Kashikar persuaded the staff to return to duties. It is only after 3-4 hours that the workers saw reason and resumed duties. However, the relatives of the patient got so frightened by the incident that they removed him to the Medical College Hospital, Nagpur, where it appears that the patient died after 5-6 days;. Charge-sheet was issued to Shri Borey and a domestic enquiry started. The enquiry report was submitted on October 24, 1980, and before any action could be taken Shri Borey tendered resignation. He filed an application under Section 33(C)(2) of the Act, 1947. In the said application, the relevant portion of which is extracted in the impugned order, Shri Borey has made no secret of the fact that the agitation which went on in the month of February and March, 1980, was on behalf of the Union.

4. Shri Marpakwar, the learned Counsel for the petitioner has fairly not questioned the finding of fact that as a matter of fact on February 25, 1980, in the morning there was a lightening strike without any notice by the workers and that Shri Borey, the office bearer of the Union had given this call. The contention is that the Union always acts through executive and as no proof about the decision of the executive either in the form of resolution or otherwise is tendered by the management, the Union cannot be held responsible for an act of an office bearer. Relying upon Section 25(5) of the Act of 1972, it was further contended that as strike was not declared to be illegal under Section 25 and was withdrawn within 48 hours it could not be 'deemed to be illegal.'

5. I will deal with the second point first. Now Chapter V of the Act of 1972 enumerates what are the illegal strikes and the lockouts. Sub-section l(a) of Section 24 is the provision which is relevant in the present case. It is not disputed that there was no notice of strike as contemplated under this provision. The strike was thus plainly illegal even on admitted facts, thus calling for no elaborate enquiry on the point. Section 25 of the Act of 1972 relates to reference for declaration whether the strike or lockout is illegal. Section 25(5) provides that if within 48 hours of the declaration, strike or lockout is withdrawn it shall not be deemed to be illegal. Shri Patel the learned Counsel for the respondent seems to be on sound footing when he contends that in an enquiry under Section 11 this aspect has no much relevance. Once it is demonstrated that the Union has instigated, aided or assisted the commencement or continuation of an illegal strike that by itself is sufficient to disqualify the Union from the recognition irrespective of the question whether it is subsequently withdrawn. My attention was invited by him to Section 12(6) 'which mandates the Industrial Court to refuse recognition to a Union under such circumstances. It is not at all the requirement of law that the strike must be declared to be illegal to attract the provisions of Section 12(5). . If that was the legislative intention nothing prevented the legislature from saying so clearly. Thus it seems to me that the Industrial Court in an enquiry under Section 11 could certainly decide all the points relevant to the grant or refusal of recognition. The point thus is devoid of any merit.

6. This takes me to first point. I see no merit in this point either. Here the proved facts are that Shri Borey has been described by the Union itself as a 'principal adviser and chief supporter' of the Union. The agitation which had begun two days before was inter alia in respect of the demand of status and pay scale of Shri Borey. Notice of strike was also given for that demand, Shri Borey had made statement that the whole agitation was on behalf of the Union. All these facts were disclosed by the management in its detailed reply. Yet the Union has chosen not to put anybody in the witness box. After all this was a case filed by the Union and it was for the Union to prove that it was not only qualified but also was not disqualified from getting the recognition. This was thus a clear cut case where adverse inference against the Union could be legitimately drawn for not putting some responsible officer in the witness box. What transpires in the Union Office or between various office bearers is a matter entirely within the special knowledge of the Union and no employer can reasonably be expected to lead evidence on that point. No doubt the provisions of the Indian Evidence Act in terms do not apply, but the principle behind Section 106 of the Indian Evidence Act certainly can be pressed into service. If under these circumstances a finding is recorded that the call given by Shri Borey was on behalf of the Union, I do not think any grievance can be genuinely made. In any case it is a finding of fact which is normally binding on writ Court. It is true that the management has not given any notice to the Union about the strike but that is not conclusive of the matter. After all the strike was withdrawn after few hours by the workers on the persuasion of the management. The management running a hospital was not expected to enter into avoidable controversies as it had something better to do. Even otherwise, I see no reason as to why call given by responsible office bearer should normally and in the absence of anything else be not construed as a call by the Union, Invariably this is only a theoretical nicety indulged in only to escape the liability of the consequences of the call to strike.

7. I make no secret of the fact that the nature of the Industry in which this lightening strike was instigated has also weighed with me. A hospital dealing with serious patients is a public utility concern of high priority and a sudden strike even for few hours in such a sensitive industry can endanger human lives. Demand of immediate discharge of a patient only because some of his relatives had a dig with one of the employees, was an act of irresponsibility and inhumanity of high order. None can reasonably question the use of weapon of strike by workers in appropriate cases. But this does not mean that the Union or its office bearers should be totally oblivious to the possible consequences of their action on innocent helpless persons lying on bed. It is true that the Industrial Court has mixed up the two demands, namely, the demand made in the notice of strike dated February 25, 1980 and the demand for discharge of a patient made in the morning of that very day. But even if impugned judgment is trimmed off this wrong mixing up, it has to be said that it has proceeded towards right conclusion.

8. To conclude, the petition is dismissed and the rule is discharged. No costs.


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