w w w . L a w y e r S e r v i c e s . i n



Maharashtra General Kamgar Union, Bombay v/s Solid Containers Limited And Others

    Latters Patent Appeal No. 42 of 1991 (Arising from W.P. No. 252 of 1990)

    Decided On, 23 June 1995

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE A.S. VENKATACHALA MOORTHY & THE HONOURABLE MR. JUSTICE ASHOK AGARWAL

    For the Petitioner: S.J. Deshmukh, N.M. Ganguli, Advocates. For the Respondent: K.K. Singhavi with CJ. Sawant with P.P. Chavan and K.K. Thakkar, Advocates.



Judgment Text

Ashok Agarwal, J :-


1. (i) Is the lock-out declared by first respondent company illegal or deemed to be illegal? (ii) Is the first respondent-company justified in insisting upon its worker to execute an undertaking of good behaviour and diligent work by way of condition precedent for lifting the lock-out? and (iii) does the Appellant, which is not a recognised union, have a locus to file a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971? are the questions which are posed for our consideration in the present Letters Patent Appeal.


2. The first respondent is a limited company engaged in manufacture of containers and allied products. The present management has taken over the company sometime in the year 1983. The lis which has led to the filing of the present Letters Patent Appeal commenced sometime in 1985. On 24th of October, 1985 the respondent company filed an application before the Government under Section 25(O) of the Industrial Disputes Act for closure. By an order passed by the Government on the 18th of December, 1985 that application came to be rejected. This was followed by certain notices being issued by the first respondent alleging violence on the part of the workers. On 26th of December, 1985 the respondent issued a notice alleging inter alia that various notices had been issued advising the workmen to maintain discipline and not to indulge in unlawful activities. The workmen have, however, not paid any heed and have continued committing acts of indiscipline and have been intensifying the same day to day. The workers have become more hostile and aggressive and have started humiliating and hurling threats openly on the personnel of the company of dire consequences without any provocation. They are also threatening to damage the company's properties. The notice has further gone on to state that on the date of the notice, workmen gheraoed S/Shri R. K. Barot, the Maintenance Manger and Satyapal Goel, the Store keeper. They declared that they would not lift the Gherao till assurances were given to them as to when they would be paid their wages. The two officers were humiliated, insulted, intimidated and abused in most vulgar and filthy language. The officers were threatened that none of the officers of the company would be allowed to enter the factory premises. If any officer dared to come inside the factory he would have to face dire consequences. By the violent and hostile activities workers have created tension and panic in the minds of officers and all officers are afraid to come inside the factory premises. The workmen are keeping the situation on the factory premises surcharged with tension.


3. A further notice dated the 28th of December, 1985 was issued by the respondent-company alleging that the workmen have taken over the reign of the entire factory. There is no law and order inside the factory premises. They are not obeying the directions of the security personnel. Yet, a further notice dated the 31st of December 1985 is issued alleging violent activities on the part of the workmen on the 25th and 26th December, 1985. It was further alleged that the situation in and around the factory was very tense and that the workers have determined to assault the officers whosoever came in the factory. On 31st December, 1985, some of the officers could enter into the factory premises only in the presence of police. Apprehending grave danger to life and property the Chairman of the company rushed to the factory in the presence of the police. The Chairman tried to pacify the workmen explaining them the financial crisis being faced by the Company and the paucity of funds. The explanations and persuasions of the Chairman, however, have gone in vain. A further notice dated the 2nd January, 1986 containing similar allegations was also issued.


4. On the 7th of January, 1986 the Respondent Company issued a notice of lock-out with effect from the 21st of January, 1986. The notice is accompanied by an annexure containing statement of reasons for effecting the lock-out. The reasons inter alia point out that the present management had taken over the company in October, 1983 with a hope that it would be able to make it economically viable. It has invested a sum of Rs. 1 crore for the purpose. The company, however, continued incurring huge losses. The management, therefore, vide its application dated 24th of October, 1985, applied for closure. The workers instead of extending their hands of co-operation, started indulging in grave and serious acts of misconduct. They did not pay heed to the personal persuasions and explanation and advice but continued to intensify their unlawful activities. A reference is made to the aforesaid notices issued and to the incidents mentioned in the said notices. It further recited that on the 1st of January, 1986 none of the officers could come to the factory because of apprehension of danger to their lives. On that day itself someone put fire inside the mill board division near the Pulper where raw material is stored with an intention to put the entire factory on fire. It was planned that the fire should intensify after the workers had left the factory at about 4.00 p. m. so that nobody should remain present to help in extinguishing the fire. Fortunately, the fire was noticed at about 2.50 p. m. and the same was immediately brought under control and the factory was saved from being engulfed in fire and reduced to ashes. The threats of damages are, thus, executed by the workmen. Not being contained, workers are giving open threats of assault and further damage to company's properties. On 6th of January, 1986 there was internal clashes and fights amongst the workers creating a lot of problems. In the circumstances, it has been decided to effect lock-out with effect from 21st January, 1986. The workers were advised not to return during the notice period as they will be treated as on duty and would be entitled for wages during the notice period.


5. On 18th June, 1986 the appellant union filed a complaint being Complaint (ULP) No. 189 of 1986, in the Industrial Court at Thane alleging that the respondent-company has committed offences under Item 6 of Schedule-II and Items 9 and 10 of Schedule-IV of the M. R. T. U. and P. U. L. P. Act, 1971. The complaint is filed beyond the period of 90 days after closure was effected by the respondent-company. In the complaint, the Appellant alleged that the lock-out was a sequel to the permission for closure having been rejected by the Government. The lock-out is challenged on grounds inter alia that the notice of lock-out was not served on each and every employee. The reasons alleged in the lock-out notice are totally false, baseless and devoid of material particulars and truth. The reasons are not bona fide. The allegations in the notice of lock-out are denied and the respondents are put to the strict proof of the same. As far as the prayer for condonation of delay, in filing the complaint, is concerned, the appellant submitted that since the employees were not given individual lock-out notices they did not know the reasons for the lock-out and, therefore, could not approach the Court in time. The lock-out notice, which was sent to the appellant Union, was unfortunately misplaced in the office and the same mingled in some other files. On a search being made the same was traced on the 6th of May, 1986. A reply to the said notice was sent on the very day calling upon the respondent to lift the lock-out. A further time up to the 18th of June, 1986 was taken in giving instructions to the Advocates.


6. The Respondent Company, on 20th January, 1987, filed its written statement. Pending the complaint, a settlement dated the 15th of April, 1987 was arrived at between substantial number of workers and the respondent company. Under the settlement 190 workers were permitted to rejoin the company after they had given an undertaking of good behaviour. Hence, the aforesaid workers resumed duties and the lock-out in so far as they are concerned, was lifted with effect from the 27th of April, 1987. This has left only 27 workers who have not chosen to sign the undertaking and hence they have not been permitted to join duties. The said 27 workers are represented by the Appellant union who, on the 8th of July, 1987, filed a second complaint being Complaint (ULP) No. 220 of 1987 of the Industrial Court, Thane. The complaint alleges offences under items 1, 4 and 6 of Schedule-II and Items 9 and 10 of Schedule-IV of the M. R. T. U. and P. U. L. P. Act, 1971. In substance the complaint of the Appellant in the second complaint is that the demand by the respondent for the company, of the undertaking, from the workers, by way of a condition precedent for permitting them to join duties, is illegal, improper, bad-in-law and mala fide and in gross violation of various provisions of the Industrial Law and of service conditions of employees as well as of model standing orders etc.


7. By a judgment and order passed on the 18th of January, 1988, the aforesaid second complaint being Complaint (ULP) No. 220 of 1987 has come to be dismissed as not being maintainable as the cause of action of the second complaint was the subject matter of the first complaint being Complaint (ULP) No. 189 of 1986. The Appellant has not chosen to challenge the aforesaid Judgment and Order of the 18th of January, 1988 and hence the dismissal of the second complaint has become final.


8. By a Judgment and Order dated the 18th of September, 1989 the first complaint, being Complaint (ULP) No. 189 of 1986, is also dismissed. By the said order, delay in filing the complaint, is condoned. The lock-out imposed by the respondent-company, it is held, cannot be deemed to be illegal and hence no offence can be said to have been made out under Item 6 of Schedule-II and Items 9 and 10 of Schedule-IV of the MRTU and PULP Act, 1971. Taking exception to the aforesaid findings and the consequent dismissal of the complaint, the Appellant preferred, in this Court, a Writ Petition bearing Writ Petition No. 252 of 1990. By an order passed on 24th of April, 1990, by a learned single Judge S. W. Puranik, J. the petition is summarily rejected. The contention put forth on behalf of the appellant that the Tribunal should have assessed the truth or otherwise of the statement of reasons appended to the notice of lock-out, is rejected by observing that, while exercising jurisdiction under the M. R. T. U. and P. U. L. P. Act, 1971 the Court has only to be guided by definition of 'illegal lock-out' as stated in section 24(2) of the Act. In the instant case, the Court found that the Respondent-employer had followed the prescribed form, reasons and procedure within the stipulated time and as such the declaration of lock-out was legal. Having so held, the other alleged unfair labour practices do not survive for consideration inasmuch as those would come up only if the lock-out was held to be illegal, holding that there exist no reason to interfere, the learned single Judge has proceeded to reject the petition. Taking exception to the aforesaid summary rejection of the Writ Petition the Appellant-union has preferred the present Letters Patent Appeal.


9. Shri Deshmukh, the learned counsel appearing on behalf of the Appellant-union has strenuously submitted that the non-existing thing cannot be a reason for doing something. It must factually exist. He is apparently referring to the reasons which are contained in the annexure to the notice of lock-out. According to him a thing cannot be a reason for doing something unless it has come into existence before that something for doing of which the thing is a reason. When a person is under the statutory obligation to give notice of action he proposes to take and to state in the notice the reasons for which he proposes to take the action, the reason must, in fact, exist prior to the giving of the notice. If the reasons stated in the notice are found to be non-existent the notice must be held to be without stating reasons required to be stated by law and to be violative of statutory obligation and, therefore, not a notice as required under the law, in the present case as required under section 24(2) (a) of the M. R. T. U. and P. U. L. P. Act, 1971 and the Rules made thereunder. An inquiry by the Court as to whether the reasons given in the required notice, in fact, exist is essentially an inquiry for determining whether the notice is in conformity with law and only incidentally it happens to be an inquiry into the justification for the action as by definition all reasons are in the nature of justification. Such an inquiry cannot be shut out on the ground that the Court cannot go into justification for the action proposed to be taken or taken, in this case lock-out. When the law requires to state reasons in a notice, what is required is not only that reasons must be stated correctly in form but also that what is stated as reasons is true in substance and is factually existent.


10. Shri Singhavi, the learned counsel appearing on behalf of the respondent, has resisted the above submissions by first contending that the appellant, not being a recognised union, has no right to file a complaint when there is a recognised union for the respondent-undertaking. As far as the contention in regard to the unreasonableness on the part of the respondent company for insisting upon an undertaking as a condition precedent before permitting the workers to rejoin duties and for lifting up the lock-out, the same was a subject matter of the second complaint being Complaint (ULP) No. 220 of 1987. The said issue does not arise in the first complaint being Complaint (ULP) No. 189 of 1986. As far as the second complaint is concerned, the same has been dismissed. Since no challenge is raised to its dismissal the dismissal has become final. The appellant cannot be permitted to raise the said contention in the first complaint in the fact of the dismissal of the second complaint. Even on merits the undertaking demanded by the first respondent for lifting the lock-out and for allowing the workers to resume work, was reasonable in the circumstances of the case and the finding of fact recorded by the Industrial Court requires no interference by this Court under Article 226 of the Constitution. As far as the notice of lock-out is concerned, Shri Singhavi submitted that under Item 6 of Schedule-II it is not permissible for the Industrial Court to go into justification of the lock-out. The lockout becomes illegal only if the employer after declaration of illegality does not, within 48 hours, withdraw the lock-out. The question as to how much wages are to be paid to the workers for the period of lock-out cannot be gone into by the Industrial Court while deciding complaint regarding illegal lock-out. In any case, no wages can be made payable when the lock-out is legal.


11. As far as lock-out and strikes are concerned, lock-out can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock-out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. The main object of notice of 14 days before lock-out or strike is to avoid possible dislocation to the employers and their workmen and give some breathing time to adjust. It is not that the law does not permit the employers to resort to lock-out in the same manner as the workmen are entitled to use the weapon of strike for achieving their objects. The contemplated notice under section 24 firstly operates as a warning to the employees that the employer cannot make any further concession and gives an opportunity to them to reconsider their strategy by weighing the reasonableness of their claim as also their overall strength and capacity to endure suffering involved. Secondly, such notice enables them to make necessary adjustments to face impending unemployment in the event of their determination to fight. Thirdly, it also gives an opportunity to those interested in industrial peace, including the Government machinery in this behalf, to make moves for ironing out some settlement.


12. Illegal strikes and lock-outs are dealt with in Chapter-V of the Act. Section 24(1) defines 'illegal strike' and section 24(2) defines 'illegal lock-out'. As far as the present inquiry is concerned, the same pertains to illegal lock-out. Section 24(2) in so far as is relevant to the present enquiry provides:


"24(2)" illegal lock-out

"means a lock-out which is commenced or continued, -


(a) without giving to the employees, a notice of lock-out in the prescribed form or within fourteen days of the giving of such notice;"


Under Rule 23 of the M. R. T. U. and P. U. L. P. Rules, 1975 the notice of lock-out is required to be given in Form-J and is required to be sent by registered post. The notice is required to be accompanied by an annexure containing a statement of reasons. Thus, all that a Court is required to determine is as to whether the management has given the requisite notice in the prescribed form accompanied by an annexure containing the reasons for clamping a lock-out. The further inquiry which is required to be made, is whether the lock-out has or has not been commenced within the 14 days' notice period. These are the parameters of the inquiry. Once it is found that the requisite notice in the prescribed form has been given and that notice is accompanied by an annexure containing the reasons for the lock-out and the lock-out has not been commenced prior the notice period of 14 days, the inquiry is complete. On the aforesaid findings being given the only conclusion that follows is that the lock-out is not illegal and hence no offence can be said to have been committed under Item 6 of Schedule II of the Act. The Court, in proceeding under the Act, is, therefore, not required or in other words it is not open to the Court to go into the truth or otherwise or the justification or otherwise of the reasons which have led the management to clamp a lock-out. The enquiry is beyond the scope and ambit of the relevant provisions of the Act. If a Court were to find that the lock-out is illegal, it will make a declaration not that effect. It is only after the management fails to lift the illegal lock-out within a period of 48 hours that under sub-section (5) of section 25 the lock-out will be deemed to be an illegal lock-out. It is only in such a case that the provisions of Item 6 of Schedule II will come into operation. The said item provides that 'proposing or continuing a lock-out deemed to be illegal under this Act' is made an unfair labour practice on the part of employers. The aforesaid provision, therefore, does not contemplate an inquiry into the justification or otherwise of the reasons which have led to the clamping of a lock-out. That does not form part of the inquiry under the M. R. T. U. and P. U. L. P. Act, 1971.


13. As far as the question of illegality or otherwise of the lock-out in the present case is concerned, a reference to the case of The Premier Automobiles Ltd. and others v. G. R. Sapre and others

", 1981 LAB IC 221 can usefully be made. In paras 23 and 24 of the Judgment, this Court has observed as follows :


"23. Section 24(2) so far as relevant reads as follows :


" 24(2) 'illegal lock-out' means a lock-out which is commenced or continued -


(a) without giving to the employees, a notice of lock-out in the prescribed form or within fourteen days of the giving of such notice."


In other words, resorting to 'lock-out' by the employer by itself is not illegal. It is the non-compliance with the requirements of the above clause (a) that makes it illegal. Under the above clause (a) lock-out will be legal, if it is (1) commenced without giving a notice, or (2) commenced within 14 days of the notice, even if notice is given, or (3) continued from day-to-day if commenced without notice, or (4) so continued from day-to-day during the period of 14 days, even if notice is so given. Not mere commencement of lock-out without notice, but even continuance thereof without compliance with section 24(2) (a) appears to have been deliberately rendered illegal, in an anxiety to extend intended relief to the employees and expose the employer to legal consequences for the entire period of illegality."


" 24. But such an illegality can be brought to an end by discontinuing the lock-out, so commenced illegally and resuming the operations. The same result would follow after the expiry of 14 days of the notice, if notice is given, in compliance with section 14(2) (a), either at the commencement of such illegal lock-out, or during the pendency thereof with a view to get rid of such illegality. There is nothing in section 24 or any other provisions militating against this.

"14. In the case of Maharashtra General Kamgar Union and others v. Balkrishan Pen Pvt. Ltd. and others."


1987 II CLR 374, in para 14 of the judgment, this Court has observed, as follows :


"14. .. when the Court records its finding whether the strike or the lock-out is legal or illegal. If it comes to the conclusion that it is legal it will proceed to dispose of the complaints forthwith accordingly. However where the conclusion is that it is illegal, it should make the declaration in the open Court as required by sub-section (3) of section 25 and give 48 hours' time to the party concerned to withdraw it as required by sub-section (5) of the said section. It is only if the strike or the lock-out is not withdrawn during the said period, that it should proceed to decide whether it is "deemed to be illegal under the Act" as required by item I of Schedule III and Item 6 of Schedule II as the case may be. The last stage is the stag where the Court proceeds to find out whether, in the case of strike, there was advice, active support or instigation and by whom, and in the case of lock-out, whether it was proposed or continued. If this procedure is followed, there should ordinarily be no difficulty in trying the complaints."


15. In the case of Syndicate Bank and another v. Shri K. Umesh Nayak" Judgment Today, 1994 II CLR 753 the Supreme Court has observed, as follows :"


29. It has to be remembered in this connection that a strike may be illegal if it contravenes the provisions of Section 22, 23 or 24 of the Act or of any other law or of the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause which led to the strike, the urgency of the cause or the demands of the workmen, the reason for the resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules and regulations etc. An enquiry into these issues is essentially an enquiry into the facts which in some cases may inquire taking of oral and documentary evidence. Hence such an enquiry has to be conducted by the machinery which is primarily invested with the jurisdiction and duty to investigate and resolve the dispute. The machinery has to come to its findings on the said issue by examining all the pros and cons of the dispute as any other dispute between the employer and the employee....


"32. The question whether a strike or lock-out is legal or illegal does not present much difficult for resolution since much difficulty for resolution since all that is required to be examined to answer the question is whether there has been a breach of the relevant provisions. However, whether the action is justified or unjustified has to be examined by taking into consideration various factors some of which are indicated earlier. In almost all such cases, the prominent question that arises is whether the dispute was of such a nature that its solution could not brook delay and await resolution by the mechanism provided under the law or the contract or the service rules..."


16. In the case of Billion Plastics Pvt. Limited v. Dyes and Chemical Workers' Union and Others' 1983 MLJ 572, this Court has observed, thus :


"4. What is covered by Item No. 1 of Schedule III is the strike which is deemed to be illegal under the said Act. If the strike is legal under the Act, then obviously it is not covered by item No. 1 of Schedule III. Even while continuing the strike, if the employees indulged in the acts of force and violence and hold out threats or intimidation in connection with the strike either against non-striking employees or against managerial staff, the same is treated as an unfair labour practice as per Schedule III, entry 2(b). Other items of the Schedule III enumerate the practices which can be treated as unfair labour practices on the part of the trade union. It is need-less to say that when the Schedule describes unfair labour practices on the part of the trade union, it must include in its import members of the trade union. Trade union is after all representative of the employees and therefor the Industrial Court was not wholly right in saying that it had no jurisdiction to restrain workmen from resorting to strike. It only meant that it cannot restrain workmen from resorting to a legal strike. It is not disputed before me even by the learned counsel for the Union that if the workmen or Union resort to an illegal strike then obviously it is covered by item No. 1 Schedule III. But while deciding the question of unfair labour practice, what the Court has to see is whether the strike is deemed to be illegal under the Act or not and the Court cannot adjudicate upon its justifiability or propriety. The said area is not covered by Section 30 of the Act, which confers a limited power upon the Courts to deal with the complaints regarding unfair labour practice. It is needless to say that if a particular controversy is not triable within the purview of the Act, then the jurisdiction of the Courts referred to in Section 59 or Section 60 of the Act is not barred.


17. In the case of Mazdoor Congress v. Shri S. A. Patil and Others, 1992 (1) CLR 408, to which one of us (Ashok Agarwal, J.) is a party, the aforesaid decision in the case of Billion Plastics Pvt. Ltd. v. Dyes and Chemical Workers Union (supra) is referred and it is further observed, thus :"


8. In my view, the above decision which is binding upon me answers the controversy raised in the petition. Once it is held that the lock-out for the period 19th May 1977 to 3rd August 1977 is not illegal lock-out, there can arise no question of giving a finding in respect of an unfair labour practice in regard to the aforesaid period. If there is no unfair labour practice during that period, there can arise no question of entitlement for wages during the said period under this Act. The jurisdiction under the Act is limited. It is concerned with the finding of unfair labour practices covered by the Act. It concerns the grant of consequential reliefs in respect of the period covered by the unfair labour practice held to have been proved. It is, therefore, , not open to the workers to contend about justifiability or otherwise of the lock-out. Consequently, the workers are not entitled to the wages for a period from 19th May, 1977 to 3rd August, 1977 as claimed.

"18. The aforesaid decisions make it abundantly clear that as far as proceedings under the M. R. T. U. and P. U. L. P. Act, 1971 are concerned, the Court is only required to decide whether the strike or a lock-out is illegal or otherwise as contemplated under the Act. The Court is not called upon to adjudicate upon the justifiability or otherwise of the strike or lock-outs. Hence, we have no hesitation in holding that the Tribunal is justified in arriving at its finding that the lock-out in the instant case is not illegal and hence no offence under the M. R. T. U. and P. U. L. P. Act, 1971 is made out.


19. Since it has been a consistent endeavour on the part of Shri Deshmukh to contend that the Tribunal ought to have gone into the justification or otherwise of the lock-out and that it was not justified in not doing so, we were taken through the relevant material and evidence on record relation to the justification or otherwise of the lock-out. We have noticed that after the application of the respondent for closure under Section 25(O) of the Industrial Disputes Act was dismissed, several notices were issued by the respondent alleging serious misconduct on the part of the workers. We have reproduced the gist of some of the notices in the preceding paragraphs. After the notices, the first respondent, on the 7th January, 1986, has issued its notice of lock-out. It has given reasons for issuing the notice of lock-out. Despite the earlier notices alleging violence on the part of the workers and the notice of lock-out dated 7th of January, 1986, no reply had been sent by the Appellant for a considerable period. It is only on the 6th of May, 1986, which is after a long gap of four months, that a reply denying the allegations is sent. The present complaint is also belatedly filed on the 18th of June, 1986 which is beyond the period of limitation of 90 days. Notices of 26th of December, 1985 and thereafter are not notices of insignificant nature. They contain serious allegations of misconduct and violence. The notices have gone unreplied. Inaction on the part of Appellants can be a factor that can be taken into account for holding that the allegations have been acceded for want of denials. Similar is the case of notice of lock-out dated 7th of January 1986. Though the notice contains serious allegations there is no immediate reply. In fact, the reply which is sent after a lapse of four months, can be said to be an afterhought. Similar is the case in respect of the complaint, which is filed after over five months from the date of the notice of lock-out. By way of explaining the delay, it is stated that the lock-out notices were not individually served on the workers and hence the employees did not know the reasons of the lock-out. In respect of lock-out notice, which is served upon the appellant-union, the same, it is alleged, was misplaced as it got mingled with some other files. On search it was found on 6th of May, 1986 and, thereafter, the same was replied. The rest of the time was taken for giving instructions to file the complaint. In our view, though the explanation offered for condonation of delay has found favour with the Tribunal, it is difficult to resist the conclusion that if the allegations contained in the notices were got up and were totally false and baseless, as is sought to be contended before us, the same would not have been treated so callously and casually. In the circumstances, we are inclined to hold that there is a grain of truth in the allegations contained in the notices.


20. Before the Tribunal, evidence was led by the contending parties. Affidavits of the parties were treated as examination in-chief and witnesses were offered for cross-examination. On behalf of the respondents, Shri Suresh Kumar Suri, Works Manager of the Company, has been examined. In the affidavit, which is treated as examination-in-chief, he has inter alia stated, as under :"


... I say that further workers engaged themselves in violent activities, Gherao, act of intimidation, abuses threatening to the Managerial persons. I say that the Management put up several notices dated 2-12-1985, 26-12-1985. 7-12-1985, 23-12-1985, 31-12-1985 and 2-1-1986 asking the workmen not to take law in their hands and to maintain normalcy. I say that on 26-12-1985 two officers of the Company, namely Mr. R. K. Barot and Mr. Satpal Goel were gheraoed, insulted and abused and manhandled. I say that as the situation was worsening day by day. I say that the some of the miscreant workmen went to the extreme stage and on 1-1-1986 someone put fire inside the Mill Board Division where the raw material is stored. I say that this resulted in the damage to the company. I say that fortunately fire was put off. I say that as the situation worsened to the extreme and therefore the Management put up a notice of lock-out dated 7-1-1986 declaring the lock-out from 21-1-1986. I say that as regards the closure application the High Court admitted the writ petition of the Company. I say that the said notice of lock-out was served upon several employees as soon as they came on duty on 7-1-1986. I say that the said notices were displayed on the notice board at the main gate and the copies were sent to the various authorities. I say that the workmen refused to accept the individual notices of the lock-out. I say that lock-out was declared following provisions of law i.e., giving 14 days' notice pay which the workmen have collected. I say that the copy of the lock-out notice was also sent to the Union.As far as the cross-examination of this witness is concerned, we find that there is no challenge at all to the aforesaid allegations contained in examination-in-chief. As far as the evidence of Eknath Gabaji Shelke, who has been examined on behalf of the Appellant union is concerned, he has not denied the allegations made. All that he has stated is as under :


".... It is true that before effecting lock-out the company had from time to time displayed on the notice board notices. However, contends of the same were false."


21. In our view, though it is not necessary or for that matter it is not open to a Court to go into the justification of the reasons for effecting a lock-out, even if one were to go into the issue, as Shri Deshmukh wants us to do, there is sufficient material on record to come to a conclusion that there existed sufficient and cogent reasons for effecting a lock-out. In the circumstances, we hold that the lock-out declared by the first respondent company is not illegal. If the same is not illegal the question of its being deemed illegal does not arise. With this finding it would ordinarily have been enough for the disposal of the Letters Patent Appeal. The finding of the Tribunal that no offence is made out under Schedule II, Item 6 and Schedule IV. Items 9 and 10 deserves to be upheld. Similarly, the dismissal of the complaint also deserves to be confirmed. We, however, are dealing with the other two issues as the learned counsel appearing for the contending parties have addressed us on those issues at considerable length.


21-A. The second question, as to whether the first respondent-company was justified in insisting upon its workers to execute an undertaking of god behaviour and diligent work by way of condition precedent for lifting the lock-out strictly speaking, is not an issue which arises in the present complaint bearing Complaint (ULP) No. 189 of 1986. The said issue squarely arose in the second complaint bearing Complaint (ULP) No. 220 of 1987. That, however, came to be dismissed on 18th of January, 1988. The dismissal, no doubt, was not on merits but was on the maintainability of the complaint. May be, the order was not justified, however, appellant has not taken an exception to the dismissal of the complaint and that dismissal has become final. As far as the present complaint (ULP) No. 189 of 1986 is concerned, the same concerns only with the issue regarding the illegality or otherwise of the lock-out. No issue regarding the undertaking has been raised in the complaint. Despite this, we propose to deal with the submissions, as even at the commencement of the hearing we had suggested to the counsel appearing for the Appellant as to whether these 27 workers, even at this stage, could be persuaded to join on giving an undertaking in an amended form which would not cast any aspersions on their past conduct prior to the issue of the lock-out. The form of undertaking suggested before a Division Bench prior to the appeal being placed before us, reads as under :



"To

The Manager,

Solid Containers Limited

Vedavli, PO Mohane

Kalyan


Dear Sir


Sub : UNDERTAKING


On resumption of duties -


1. I shall maintain proper discipline.


2. I shall work normally.


Thanking you,

Yours faithfully."


Shri Deshmukh, on again taking instructions, has informed us that his clients are unwilling to sign any undertaking as according to them the entire exercise is shrouded with illegality. According to them, what is sought in the undertaking is an implied term of employment and the same is sought by the management merely by way of satisfying their ego.


22. We have already found that the allegations which are contained in the notice of lock-out and the notices that have preceded the same, are well borne-out on the material on record. If this be the case, in our judgment, the insistence on the part of the management on giving of an undertaking, as has been done in the present case, cannot be said to be unjustified and, therefore, cannot be faulted.


23. In this context, reference can be had to the case of Industrial Tubes Manufacturing Co. Ltd. v. S. R. Samant, Judge, Industrial Court and Others, 1980 MLJ 713 = 1980 LLJ 444. The relevant facts of the case are reproduced in para 4 of the judgment, as under :


"4. .. ... ... ... The employers, however, showed reluctance to permit the workmen to join duty unless they executed a bond as a condition precedent, to the following effect:"


I am wiling to terminate the strike and resume duties forthwith. Upon resumption of work I am willing to perform my duties sincerely and diligently and continue give normal output, observe normal discipline whilst on duty. I, therefore, request you to permit me to resume work.


"The workmen refused to execute any such bond and insisted on joining duty unconditionally. The employers refused and the statement continued."


A question that arose for determination in the said case is reproduced in paragraph 8, as under:



"8. The question is, if preventing the workmen from joining duties without executing almost "good conduct bond" amounts to "lock-out".


The Court has answered the question in the following terms :"


16. Thus refusal to employ any number of workmen does not amount to lock-out unless, the coercive process involved therein is aimed at persuading the employees to "see his point of view" and "to accept his demands". As seen earlier, the employers insist on execution of this bond and to ensure avoidance of the "go-slow tactics" and acts of assaults and violence alleged to have been indulged in by the workmen from January, 1979 even as prelude to the commencement of their illegal strike on 13-3-1979 and continued even during the period of the strike. This according to the employer became indispensable due to the attitude of naked displayed by the workmen throughout in addition to resorting to illegal strike. In the events of this being true, the employers cannot but be said to have been justified in insisting on such a bound by way of assurance. By seeking an assurance not to act in defiance of law and the Rules and, to act according to the terms of employment, the employers cannot be said to be making any "demands" on the workmen nor can they be said to have any "point of view" excepting what is implicit in the terms of the employment. It is difficult to conceive of any employee having any different view on this point. Any dispute about demand and need to resort to coercive processaries ordinarily when "the demand" lacks the sanction of contract or law. Insistence on bond as condition, therefore, cannot amount to refusal to employ or lock-out.


". That the Legislature should have restricted the prohibition against such bond to workmen going on "legal strike" under the above Item 4, presupposes its awareness of the needs thereof in different situations and permissibility thereof to meet the same."


24. If the ratio of the above case is applied to the facts of the present case, the inference is irresistible that the insistence on the part of the respondent on the workers to sign an undertaking before they are permitted to resume duties, cannot be said to be unjustified. As far as the majority of workers are concerned, they have settled with the respondent and have resumed duty after signing the requisite undertaking. The question that really arises is, whether the denial on the part of 27 workers in executing the undertaking even in the form, which is reproduced above can be said to be justified. If the insistence on the part of the respondent is to be held to be justified, the refusal to give the undertaking by the minority of the workers, who owe allegiance to the appellant-Union, has to be termed as unreasonable.


25. Shri Deshmukh has placed reliance on the case of Vaman Maruty Gharat and others v. M. S. Apte and others 1994 (28) ATC 784, 1995 (70) FLR 301, 1995 (1) JT 20, 1995 LIC 567, 1995 (1) LLN 188, 1995 (1) SLJ 158, 1995 (1) SLR 21, 1994 (4) Scale 1036, 1995 (1) SCC 184, 1995 (1) MLJ 41, 1995 SCC(L&S) 275, 1995 SCC(L&S) 275, 1995 SCC(L&S) 275, 1995 SCC(L&S) 275, 1995 SCC(L&S) 275, 1995 SCC(L&S) 275

where two Judges of this Court viz. P. B. Sawant and V. V. Vaze, JJ. had given differing views in the matter and the matter was referred to a third Judge R. A. Jahagirdar. J., whose Judgment is reported in 1988 II CLR 222. Jahagirdar, J. in his judgment concurred with Sawant, J. In para 15 of his judgment, Sawant, J. on facts, has observed as under :


"As pointed out above there is no evidence of violence and indiscipline in the present case. Hence the second part of the undertaking is not justified."


" Assuming, however, that the employer has succeeded in proving that there were acts of violence, indiscipline and damage to the property, the question that still falls for consideration is whether insistence on such an undertaking from all workmen, whether they were parties to the said acts or not, is justified. Surely in the last quarter of this century it is not necessary to emphasise that the contract of employment is always bilateral. The employer and employees are equal partners in the enterprise of production. The employees are no longer to be looked upon as bonded slaves. The terms of their relationship with the employer are governed by the contract of employment and/or relevant statutes. The employees therefore cannot be treated as a tribe of delinquents much less can they be humiliated by asking them to sign undertakings which imply that they had indulged in misdeeds which they had not and that they attune for the same. One can understand and the employer will be justified, if such undertaking is taken from those workmen who are guilty of the misdeeds. But to insist on such undertaking from one and all is to subtract from the terms of their employment. It is not suggested that it is one of the terms of employment that whenever there are misdeeds on the part of some workmen, all workmen should enter, so to say the penitentiary, and give such undertaking. To contend that to act in a disciplined manner is an implied condition of service and hence there is nothing wrong in insisting upon such undertaking is to beg the question. If it is an implied condition of service, there is no need of such undertaking. If the undertaking is innocuous, it serves no purpose except satisfying the ego of the employer which is nothing but a display of a feudalistic attitude towards the employees. Such attitude has to be discouraged in any egalitarian society and much more so in a society like ours which has pledged itself to establish a Socialist Republic. Article 43-A of the Constitution, specifically directs the State to take steps to secure participation of workers in the management of the industry. It cannot be argued that the case of these constitutional objectives will be furthered by acquiescing or in conniving at the action of the employers in insisting on such undertakings even from the innocent workmen which has the inevitable effect of demeaning the workmen. I am therefore of the view that to insist upon such undertakings from all workmen, irrespective of their conduct, is to subject them to indignity. The dignity of an individual is the bed rock of all human rights. It is and should be the basis of all human relationships including his contract of employment. To insist upon such undertaking therefore is to affect the terms of his employment. I have therefore my own reservations about the decision of this Court reported in Industrial Tubes Manufacturing Co. Ltd. v. S. R. Samant, Judge, Industrial Court and Others (supra). It is however binding on me as a single Judge. Since I have even otherwise come to the conclusion, as above, that the lock-out was illegal, it does not make any difference to the result of the petition."Jahagirdar, J. in his concurring judgment has observed, as under :


" This undertaking required an employee who wanted to join work to state that he was calling off the illegal strike that he commenced with all other employees with effect from 2nd of April 1978. It also required the employee to assure the respondent that after entering the factory, he would discharge his duties properly and would not cause any damage to the property. After saying this, he must express willingness to resume his normal duties. Was this form of the undertaking justified and was the respondent justified in refusing to give work to those employees who did not sign this undertaking? In my opinion, the answer is 'no' and that is the answer given by Sawant, J. In addition to the reasons which Sawant, J. has already given in his judgment, I wish to say something more on the subject."


In paragraph 15 of the judgment Jahagirdar, J. has emphasised that the management in that case did not care to lead any evidence. In paragraphs 16, 17, 20, and 21 Jahagirdar, J. has observed, as under :


"16. In the first place, there was no issue before the Labour Court in the earlier proceedings as to whether there were acts of violence of whether there were acts of indiscipline on the part of the employees. The only question was whether the strike was legal or illegal. In fact, the question as to whether the employees had indulged in acts of violence or acts of indiscipline was totally irrelevant to the question as to whether the strike was legal or illegal. Therefore, no point was framed for determination by the Labour Court in the earlier proceedings on this aspect. Can it be said that the Labour Court did give a finding that the employees indulged in acts of violence and acts of indiscipline when the Labour Court mentioned that the deposition of Mr. Fotedar on this point was not challenged in the cross-examination? In my opinion, this inference cannot be drawn. Since the Labour Court's attention was necessarily focused on the question as to whether the strike was legal or illegal and the evidence on that question alone was relevant in the proceedings before the Labour Court, the Labour Court could have, at best, accepted the testimony of Mr. Fotedar in so far as it related to the legality or illegality of the strike. To that extent, the Labour Court can be deemed to have accepted the fact that the employees resorted to a strike which in law was illegal. There is nothing on record, and nothing was brought on record by the respondent, in these proceedings to show that there were acts of violence and acts of indiscipline which made the respondent to insist upon the undertaking of the type involved in this case. In the total absence of evidence in this regard, Sawant, J. naturally came to the conclusion, with which conclusion I must respectfully agree, that the Industrial Court has given its finding without any evidence in that regard. It may be true, as Mr. Ramaswami suggested, that the Labour Court in the present proceedings did not apply itself to this aspect of the question, namely the necessity of the undertaking which was prompted by violent activities of the employees. The Industrial Court was justified in analysing this question and give a finding in that regard. If this is so, it can be said reasonably that the Industrial Court did not exceed its jurisdiction."" 17. The fact that the Industrial Court did not exceed the jurisdiction vested in it does not necessarily make the finding given by it legal or valid. If that finding is unsupportable by the evidence on record, then that finding itself becomes vulnerable and can be interfered with in this petition under Articles 226 and 227 of the Constitution of India. That is what has been done by Sawant, J. and with whom, as I have mentioned above, respectfully agree. It was repeatedly suggested by Mr. Ramaswami that the material which was already on the record in Application No. 39 of 1978 could be legitimately looked into and if from the entire material on record an inference is justified, then that inference, if drawn by the Industrial Court should not be interfered with by this Court under Articles 226 and 227 of the Constitution of India."


" 20. That apart, even considering the material which is on record in these proceedings. It is impossible to come to the conclusion that the undertaking insisted upon by the respondent is justified either in law or on the facts and in the circumstances of this case. The undertaking which was insisted upon by the respondent consists of two parts. The first part requires the employee to state that he is calling off the illegal strike that he commenced with all the other employees with effect from 2nd of April 1978. Was this justified on the facts and circumstances of this case?... but to insist on 5th of May 1978 that the employee must confess that the strike was illegal or must acquiesce in the finding given by the Labour Court is wholly unjustified. If the undertaking required the employee to merely say that he was calling off the strike which has been held to be illegal, one would not have complained, but the first part of the undertaking insists upon the confession on two grounds. The first ground is that the strike was an illegal strike and that the concerned employee did commence it with all the other employees with effect from 2nd of April, 1978. In my opinion, by this the employees would have been prevented from agitating about the correctness of the finding given by the Labour Court in Application No. 39 of 1978."" 21. Even if one leaves aside this part of the undertaking, the second part of the undertaking insisted upon by the respondent is also objectionable. In the second part of the undertaking, the employee was required to give an assurance that after entering the factory, he would not cause any damage to the property, machinery and any material in the factory. Was the insistence upon this part of the undertaking justified? The answer, in my opinion, is in the negative because there is, as I have repeatedly pointed out earlier, no evidence on record at all to show that at any time any particular employee or employees have indulged in causing any damage to the property, machinery and any material in the factory. If there was material on record, may be on the basis of the present law, the employer might have been justified in asking for an undertaking of this type. In the instant case, there is no material at all to justify this part of the undertaking."


26. We have given our anxious consideration to the above decision and we find that the same was a decision based on facts of that particular case. In paragraph 16, it has been emphasised that there is nothing on record and nothing was brought on record by the respondent in this regard to show that act of violence and acts of indiscipline made the respondent company to insist upon the undertaking of the type involved in this case. This however, is not the case in the case at hand. We have, on facts found that the workers have been guilty of acts of violence and indiscipline causing harm to the officers of the first respondent company and causing damage to the property. Hence, on facts of the present case, we have no hesitation in holding that the insistence on the part of the first respondent company, in taking an undertaking is fully justified.


27. In this context, a reference to the case of Engineering Mazdoor Sabha, Bombay and Others v. S. Taki Belgrami and another 1970 MLJ 734 = 1970 Lab. I. C. 1373 can usefully be made. This Court, in that case, observed, as under:


"8.... ... ... Now, it is true that, in law, what is illegal can never be held to be justified but it is not true that the consequence of a lock-out being declared illegal must be that, for the period of that illegal lock-out, workmen must be entitled to payment of wages. It is true that, ordinarily, when workmen are, against their consent and desire, not allowed to enter factory premises, it should be held in their favour that, for the period during which, against their consent and desire, they are not allowed to enter the factory they should be entitled to wages. It is the same time permissible for an employer to prove that an illegal lock-out was the result of such misdemeanour and misconduct of the workmen has left no option to the employer but to declare a lockout. It is permissible for an employer in connection with claims made against him for wages for the period of an illegal lock-out, to prove misdemeanour and misconduct of employees sufficient to absolve him from the liability to pay wages for the period of such illegal lock-out. ..."


" 9.... ... ... The findings of fact made by the Tribunal were to the effect that, because of certain provisions in the Industrial Disputes Act, the lock-out must be held to be illegal but the lockout was the result of misdemeanour and misconduct of the workmen, which went to the length of endangering the lives of loyal workmen and officers of the Company, . It had the effect of destroying the credit of the Company with its customers. It had the effect of heavy financial losses to the Company. If these factors are not sufficient to destroy the claim of the workman for payment of wages, the award of the Tribunal on demand No. 1 can be set aside. In our view, however, the Tribunal was right in coming to these conclusions and negativing the first demand made on behalf of the workmen. The first contention, therefore, fails."


28. In the case of Bombay Dyeing and Manufacturing Company Ltd. and another v. Mumbai Mazdoor Sabha and another 1986 II CLR 242, it is observed, thus :


"4. Sri Srikrishna, learned counsel appearing on behalf of the petitioners, submitted that the impugned order suffers from serious infirmity as by no stretch of imagination, it can be held that the action of the employer in not permitting the employee to enter the place of work when the workmen had no intention whatsoever to carry out their duties would amount to unfair labour practice. Sri Srikrishna submits that to hold that the conduct of the employer in the present case amounts to "lock-out" is entirely erroneous and unsustainable. I find considerable merit in the submission of the learned counsel. It is necessary to bear in mind the background which led the employer to demand an undertaking from the workmen. The workmen employed at Neville House and who are while collared workmen indulged in serious indiscipline and rioting after giving strike notice. The workmen had no intention or desire to carry out their normal duties but insisted on their right to enter the office premises and make use of the premises during the working hours. The Industrial Court has found that the workmen had such a right. It is not possible to accede to the conclusion of the Industrial Court. Even assuming that the workmen have not indulged in violence and indiscipline, still the employer has right to tell the workmen not to enter the premises in case the workmen had made it clear that they had no intention to carry out their duties. The work premises are not to be used by the workmen as a matter of right even through the workmen had no intention to carry out the work. In my judgment, the interim order passed by the Industrial Court is entirely misconceived and is required to be set aside."


29. In view of the aforesaid decisions we answer the second question in the affirmative and hold that the first respondent company was justified in insisting upon its workers to execute an undertaking of good behaviour and diligent work by way of condition precedent for lifting the lock-out.


30. The last question, which now remains for consideration, is whether the appellant which is not a recognised union, have a locus to file a complaint under the M. R. T. U. and P. U. L. P. Act, 1971. We have already found that as far as 190 workers, who owe their allegiance to the recognised union, are concerned, they have signed a settlement with the first respondent company on the 15th of April, 1987 and have resumed duties with effect from 27th of April, 1987 after executing the requisite undertakings. What remained are the minority workers numbering 27, who owe their allegiance to the Appellant Union which, it is common ground is not a recognised union. As far as the rights and obligations of the recognised unions and other unions are concerned, the same are dealt with in Chapter IV of the M. R. T. U. and P. U. L. P. Act, 1971. Rights of recognised union are dealt with under Section 20. Sub-section (2) of Section 20 insofar as is relevant, provides :


"20(2) Where there is a recognised union for any undertaking -


(a) ... ... ...


(b) no employee shall be allowed to appear or act or be allowed to be represented in any proceedings under the Central Act (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration), except through the recognised union : and the decision arrived at, or order made, in such proceeding shall be binding on all the employees in such undertaking;and accordingly, the provisions of the Central Act, that is to say, the Industrial Disputes Act, 1947, shall stand amended in the manner and to the extent specified in Schedule I."


Schedule I of M. R. T. U. and P. U. L. P. Act, 1971 brings about State amendments to the Industrial Disputes Act as permitted by the aforesaid Section 20(2) (b) of the Act. By Item 6 of Schedule I, Section 36 of the Industrial Disputes Act has been amended by addition of a proviso which is as under:


"Provided that, where there is a recognised union for any undertaking under any law for the time being in force, no workman in such undertaking shall be entitled to be represented as aforesaid in any such proceeding (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration) except by such recognised union."


Hence, though section 36, prior to the amendment permitted a workman to be represented by different persons, by the proviso, which is added, he is not entitled to be represented, in case of a recognised union, by union other than the recognised union.


30-A Section 21 of the M. R. T. U. and P. U. L. P. Act 1971 deals with the right to appear or act in proceedings relating to unfair labour practices. Section 21 reads as under :


"21. (1) No employee in an undertaking to which the provisions of the Central Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceedings relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except through the recognised union:


Provided that, where there is no recognised union to appear, the employee may himself appear or act in any proceeding relating to any such unfair labour practices.(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except through the representative of employees entitled to appear under section 30 of the Bombay Act."


Powers of the Industrial and Labour Courts are dealt with in Chapter VII. Section 30(1), provides, as follows:


"30. (1) Where a Court decides that any person named in the complaint has engaged in, or is engaging in any unfair labour practice, it may in its order -


(a) declare that an unfair practice has been engaged in or is being engaged in by that person, and specify any other person who has engaged in, or is engaging in the unfair labour practice;


(b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act;


(c) where a recognised union has engaged in or is engaging in, any unfair labour practice, direct that it recognition shall be cancelled or that all or any of its rights under sub-section (1) of section 20 or its right under section 23 shall be suspended."


31. Reliance is placed by Shri Deshmukh on section 28, which provides:


"28. (1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the case may be, under section 7 of the Act."Emphasis is laid on" any union or any employee or any employer having the right to file a complaint."


It is, therefore, contended that the Appellant Union has an unfettered right to file and prosecute the instant complaint. Section 36 of the Industrial Disputes Act, in so far as relevant, provides:


36. Representation of parties. - (1) A workman who is party to a dispute shall be entitled to be represented in any proceeding under this Act by.


(a) any member of the executive or other office bearer of a registered trade union of which he is a member.


(b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;


(c) where the worker is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed:


Provided that, where there is recognised union for any undertaking under any law for the time being in force, no workman in such undertaking shall be entitled to be represented as aforesaid in any such proceeding (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration) except by such recognised union.


"32. The controversy arising out of the various provisions contained in the aforesaid enactment came up for consideration before the Supreme Court in the case of Shramik Uttkarsh Sabha v. Raymond Woollen Mills Ltd. and others 1995 I CLR 607. The question arising for consideration in the case is reproduced in paragraph 3, as under:"


3. The question for consideration in this appeal is : does a representative union under the Bombay Industrial Relations Act, 1946 (BIR Act) have the exclusive right to represent the employees of the concerned industry in complaints relating to unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (M. R. T. U. and P. U. L. P. Act) other than those specified in items 2 and 6 of Schedule IV thereof?



"The Supreme Court after considering the relevant provisions of the Bombay Industrial Relations Act, Industrial Disputes Act and M. R. T. U. and P. U. L. P Act has held, as under:"


13. The M. R. T. U. and P. U. L. P. Act takes note of the provisions of the B. I. R. Act. Many of its definitions are stated to be those contained in the B. I. R. Act. Chapter III, which deals with the recognition of Unions, states, in section 10(2), that its provisions do not apply to undertakings in industries to which the provisions of the B. I. R. Act apply. The B. I. R. Act was enacted to provide for the regulation of the relation of employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The M. R. T. U. and P. U. L. P. Act was enacted to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognised unions; and to define and provide for the prevention of unfair labour practices; and to constitute courts in this behalf. It cannot, therefore, be said that the B. I. R. Act and the M. R. T. U. and P. U. L. P. Act operate in different fields. There is commonality in their objects and their provisions. The obvious intent of the legislature which enacted them was that they should operate in tandem and complement each other in respect of industries to which the B. I. R. Act had been made applicable. The two statutes must be read together."" 14. Section 21 of the M. R. T. U. and P. U. L. P. Act, upon which emphasis was laid on behalf of the appellants, states that of employee in an undertaking to which the provisions of the Industrial Disputes Act apply shall be allowed to appear or act or be allowed to be represented in any proceeding relating to the unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognised union. It is important to note that the reference is to employees in an undertaking to which the Industrial Disputes Act applies and not to employees in an undertaking to which the B. I. R. Act applies. Apart therefrom the section permits an employee, not an union other than the recognised union, to so appear. The provisions of section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV."


"15. It is true that an order of the Industrial Court in the concerned proceedings would bind all employees of the first respondent even though there may be some among them who owe allegiance not to the representative union but to the appellant. The objective of the provisions of the B. I. R. Act and the M. R. T. U. and P. U. L. P. Act, read together, and the embargo placed upon representation by anyone other than the representative of the employees, who, for the most past, is the rep

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resentative union, except in matters pertaining to an individual dispute between an employee and the employer, is to facilitate collective bargaining. The rationale is that it is in the interest of industrial peace and in the public and national interest that the employer should have to deal, in matter which concerned all or most of its employees, only with a union which is representative of them. It may be that a union which was representative of the employees may have in the course of time lost that representative character, it is then open, under the provisions of the B. I. R. Act, for a rival union to seek to replace it. "33. If the ratio of the above case is applied to the present case what follows is that in case there is a recognised union it is only that union who can represent the workers and can file and prosecute complaints under the M. R. T. U. and P. U. L. P. Act, 1971. 34. The aforesaid case arose from a decision of this Court reported in 1992 I CLR 273. In that case, this Court has observed, as under :" 12.... ... ... It was contended that merely because the respondent No. 2 is a recognised and representative union it cannot deprive other Trade Unions from representing the employees who are its members under Act No. 1 of 1972. In this context reliance was heavily placed upon sub-section (2) of section 21 of the Act No. 1 of 1972 and section 27A of the B. I. R. Act. It was urged that the provisions read together the recognised union like respondent No. 2 have a right to represent the employees only to the extent specified therein. In particular it was submitted that the right of a recognised union to represent employees under the B. I. R. Act was unlimited but it is not so under the Act No. 1 of 1972. We will shortly point out that the submissions are devoid of any merits and must be rejected." "13. It is not in dispute that the respondent No. 2 is a recognised and an approved union under the provisions of Chapter IV of the B. I. R. Act and they have been conferred a right to be the representative of employees to appear or act on their behalf, first in the order of preference under section 30 of the B. I. R. Act except for one exception and that is as provided in section 33-A. It deals with the appearance of person in proceedings in which the dispute is between the employees and employees. Therefore, no doubt is left that a recognised and an approved union has every right to appear and act in every proceedings irrespective of the fact whether those employees are members of the Union or not with certain exceptions as carved out also under section 27-A of the B. I. R. Act. That section specifically provides that no employee shall be allowed to appear and act in any proceedings under the B. I. R. Act except through the representative of employees and the representative of employees is provided for in section 30 of the Act. A representative Union is first in the order of preference. No doubt, section 27-A also provides for some exceptions because the section begins by the words "Save as provided in sections 32, 33 and 33A" with which we are not presently concerned. An unequivocal right is hence established that the representative union has the sole privilege of representing employees in an industry and that right is not taken away or in any manner affected in proceedings under Act No. 1 of 1972. For all purposes a recognised union continues to be a representative union and shall remain as such till the recognition is lost or revoked."" 14. Sub-section (2) of section 21 on which reliance is heavily placed on behalf of the appellant is quoted below : "21(1)... ... ... " 21(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except though the representative of employees entitled to appear under section 30 of the Bombay Act." "A representative union has been given a special right to appear and act on behalf of an employee in proceedings in relation to unfair labour practices specified in items 2 and 6 of Schedule IV of the Act No. 1 of 1972, the reason being that some other employee or employees not appearing in the proceeding can upon adjudication of the complaint be adversely affected. - Item 2 deals with the abolition of work of regular nature being done by the employees and to give such work to contractors as a measure of breaking strike. Similarly Items 6 relates to employment of badlis, casual or temporaries and to continue to employ as such for years together with the object of depriving such employees the status and privileges of permanent employees. It is not necessary to elaborate on these items as either of them are self explanatory. The section authorises only the representative union to appear and act in such proceedings. But simply because such power has been specifically conferred no inference can be drawn that in proceedings other than those relating to unfair labour practices specified in Items 2 and 6 of Schedule IV, the representative union cannot represent the employees. Such an interpretation as sought to be put forth cannot be accepted. The right of the employees working in the industry to which the provisions of B. I. R. Act apply to be represented by the representative Union remains unfettered and it does not change for the reason that the proceedings are under Act No. 1 of 1972. The status and privilege of the representative union remain unchanged. The supremacy of the representative and approved union is well recognised in Balmer Lawrie Workers' Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd and Ors. 1985 I CLR 103. The respondent No. 1 Company was hence justified in filing the Complaint (ULP) No. 22 of 1991 against the representative union. It is also made clear that nothing prevented the said Company to file such a complaint even against other Trade Unions provided they are satisfied that those unions were responsible for engaging in or have engaged in such unfair labour practices complained of by them. "15. We may also add that sub-section (2) of section 21 of the Act No. 1 of 1972 curtails not only the right of an employee to appear and act or allowed to be represented in proceeding of unfair labour practices stipulated therein but also prohibits the right of Trade Unions other than the representative Union. It is difficult for us to draw the conclusion that the proceedings other than that stipulated in sub-section (2) of section 21, the representative Union has no legal right to appear and act on behalf of the employees and that right could be exercised by other trade unions in the field." 35. In view of the aforesaid provisions and decisions, we have no hesitation in answering the third question in the negative. We hold that the appellant, which is not a recognised union, in the face of a recognised union, has no locus to file and prosecute the instant complaint. Looked at from any angle, we find that the impugned judgment and order passed by the Industrial Court and affirmed by a Single Judge in Writ Petition deserves to be affirmed. As a consequence of the aforesaid finding, we find that the present Letters Patent Appeal is devoid of merit and the same is dismissed. There will, however, in the facts and circumstances of this case, be no orders as costs.
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