AI Structured Summary
Not yet generated for this judgment
Judgment
This Special Civil Application involves a dispute between the Unions of Silk Textile Industries for Ahmedabad City local area under the Bombay Industrial Relations Act, 1946. The Unions seek registration under the aforesaid Act. There is not much controversy, rather no controversy with regard to the basic facts. The only question is as to whether the petitioner-Union can legitimately claim to get its application decided u/s 13(3) for registration as a Primary Union with regard to the local area, as aforesaid while the applications moved for registration as Representative Union u/s 13(1) by the petitioner-Union, Mill Mazdoor Sabha, Rajpur and Ahmedabad Silk Employees'' Union, on dates earlier to the petitioners'' application u/s 13(3) are pending before the Assistant Registrar for Trade Unions under the B.I.R. Act.
Before I proceed to deal with the question directly, it may be stated that the Mill Mazdoor Sabha, Rajpur was the Union registered as a Representative Union for the local area of Ahmedabad City Taluka. This Ahmedabad City Taluka area was changed and a new local area known as Ahmedabad City local area was notified vide Notification dated August 31, 1995 by including the areas like Naroda, Vatva etc., in the Ahmedabad City local area. This Notification dated August 31, 1995 has been placed on record alongwith the petition as Annexure 2. Before the change in the local area was effected on August 31, 1995, while the Mill Mazdoor Sabha, Rajpur was registered Representative Union u/s 13(1) of B.I.R. Act the registration as Representative Union u/s 13(1) had been denied to the petitioner-Union. The petitioner-Union had moved an application u/s 16(1) for replacing the Mill Mazdoor Sabha, Rajpur, but this application of the petitioner-Union was rejected on July 12, 1995, against which the petitioner-Union had preferred an Appeal being (I.C.) No. 24 of 1995 and that Appeal is pending before the Industrial Court, Ahmedabad.
It may be clarified that this application moved by the petitioner-Union was with regard to the unaltered local area of Ahmedabad City Taluka only and this application has nothing to do with the changed local area of Ahmedabad City. With the change of the local area to Ahmedabad City on August 31, 1995 the petitioner-Union moved an application for registration as a Representative Union u/s 13(1) for the altered area of Ahmedabad City on August 31, 1995 itself. On the very same date, Ahmedabad Silk Employees'' Union had also moved an application for its registration as a Representative Union u/s 13(1) and after about 3 months on December 14, 1995 Mill Mazdoor Sabha, Rajpur also applied for registration as a Representative Union u/s 13(1) for the altered local area of Ahmedabad City. When the petitioners'' application for registration u/s 13(1) moved on August 31, 1995 was taken up by the Asstt. Registrar of Trade Unions under B.I.R. Act at Ahmedabad, the respondent-Mill Majdoor Sabha, Rajpur and Ahmedabad Silk Employees'' Union preferred separate Appeals before the Industrial Court seeking to stay the process of the petitioner''s application dated August 31, 1995 u/s 13 and the Industrial Court at Ahmedabad passed a common order in the 2 Appeals staying the process. The Industrial Court, Gujarat at Ahmedabad passed the order in Appeal Nos. (I.C.) 15 of 1996 and 16 of 1996 on April 18, 1996 accepting the applications for interim orders and the order was passed that till the decision of the Appeals, the ad interim order dated March 30, 1996, which had been passed in yet another Appeal No. (I.C.) 17 of 1996, which had been filed by the Reliance Company itself, shall be operative and no further proceedings will be taken up with regard to the process of registration in respect of the petitioner''s application u/s 13(1) dated August 31, 1995. Thus, the process to deal with the application dated August 31, 1995 for petitioner-Union''s registration u/s 13(1) was stayed and it is stated that even until now on the strength of the Industrial Court''s order dated April 18, 1996 stay order continues although it is given out by the parties that the ad interim order dated March 30, 1996, which had been passed in the Appeal No. 17 of 1996 preferred by the Reliance Company was vacated with the rejection of the application for interim relief in Appeal No. 17 of 1996. Thus, the Appeal a Nos. 15 of 1996 and 17 of 1996 are pending before the Industrial Court, Gujarat at Ahmedabad and the interim application in Appeal No. 17 of 1996 has been rejected, the stay orders against the processing of the petitioner-Union''s application dated August 31, 1995 for registration u/s 13(1) is operative because of the order dated April 18, 1996 making reference to the ad interim order dated March 30, 1996 passed in Appeal No. 17 of 1996 while the application for interim relief in this Appeal No. 17 of 1996 in which the order dated March 30, 1996 had been passed has been rejected. It may also be made clear that the interim application was rejected in the Appeal No. 17 of 1996 preferred by the Reliance Company. The applications for interim relief were heard together in all the 3 Appeals as aforesaid but the interim order is operative in Appeal Nos. 15 of 1995 and 16 of 1996 only. Against the order dated April 18, 1996 passed in Appeal Nos. 15 of 1996 and 16 of 1996 the present petitioner-Union preferred two Special Civil Applications being Special Civil Application Nos. 2997 of 1996 and 2998 of 1996. Both these Special Civil Applications filed by the petitioner-Union against the stay order dated April 18, 1996 passed by the Industrial Court, Gujarat at Ahmedabad were admitted by the High Court. It has also been given out that in these matters, the arguments have already been heard and the cases have been adjourned for verdict. It has been pointed out by Mr. Vasavada that in these 2 Special Civil Applications this Court had also passed an order staying the further proceedings in the pending Appeal Nos. 15 of 1996, 16 of 1996 and 17 of 1996 before the Industrial Court. Thus, the Industrial Court cannot proceed with the Appeals and the process to deal with the petitioner-Union''s application for its registration u/s 13(1) remains stayed. Faced with a situation, while the petitioner-Union''s application for registration as a Representative Union for the altered local area u/s 13(1) remains stayed by the order dated April 18, 1996 passed by the Industrial Court at Ahmedabad and the further proceeding in appeals as aforesaid before Industrial Court have been stayed by the High Court, the petitioner-Union moved an application on April 30, 1996 for its registration as a Primary Union u/s 13(3). This application of the petitioner-Union for registration as a Primary Union u/s 13(3) is not being dealt with or taken up by the Asstt. Registrar of Trade Unions under the B.I.R. Act at Ahmedabad and, therefore, the, present petition has been filed by the petitioner-Union before this Court seeking the following reliefs :
"(a) Directing the Respondent No. 1 to forth-with register the petitioner-Union as the Primary Union for the Ahmedabad City local area for the Silk Industry, under the B.I.R. Act, 1946.
(b) Directing the Respondent No. 2 not to register any settlement or agreement under any provisions of B.I.R. Act between the Reliance Industries Ltd. or its manager with any other Union which is not duly registered under the provisions of B.I.R. Act for the altered Ahmedabad City local area after the notification of the Govt. dated August 31, 1995 for the Silk Industry.
(c) Pending admission and final disposal of this writ petition, the Hon''ble Court may be pleased to grant the following interim reliefs :
(i) By way of temporary injunction restrain the Respondent Nos. 1 and 2 from recording or registering any agreements or settlements between the Reliance Industries Ltd., Naroda or its manager or agents with any other Committee or Union, save and except any Committee that is duly selected or registered under any provisions of the B.I.R. Act to represent the employees of Reliance Industries Ltd., Naroda.
(ii) Direct the Respondent No. 1 to register the petitioner-Union as a Primary Union subject to such conditions that the Hon''ble Court may impose in the facts and circumstances of the case.
(d) Any other relief deemed fit to meet the ends of justice".
This Special Civil Application dated December 17, 1996 came up before the Court on December 18, 1996 on which date notice was issued to the Respondent No. 1 only and made returnable on December 23, 1996. Respondent No. 1 was then directed to file the affidavit on or before January 9, 1997 and the matter was made, to stand over to January 9, 1997. In this Special Civil Application originally there were only respondents, namely, Asstt. Registrar of Trade Unions under the B.I.R. Act at Ahmedabad and the Conciliator under the B.I.R. Act, 1946 Ahmedabad City Local Area, but later on Mill Mazdoor Sabha, Rajpur and Ahmedabad Silk Employees'' Union were impleaded as respondents by the Court orders passed on January 7, 1997 in Civil Application No. 23 of 1997 and January 15, 1997 in Civil Application No. 389 of 1997 respectively as Respondents Nos. 3 and 4. Thereafter the matter came up before this Court on April 22, 1997 on which date on the request of the learned Counsel for the petitioner, Respondent No. 2 - the Conciliator under the B.I.R. Act, 1946, Ahmedabad was deleted from the array of respondents as it was considered to be a formal party only. After hearing the petitioner and the remaining respondents, i.e., Respondent No. 1 - The Asstt. Registrar of Trade Unions under the B.I.R. Act at Ahmedabad, Respondent No. 2 Mill Mazdoor Sabha, Rajpur and Respondent No. 3 - Ahmedabad Silk Employees'' Union, Rule was issued.
The service of the Rule was waived by the respective Counsel representing the aforesaid 3 respondents. Whereas the matter was heard at length at the stage of the issue of the Rule itself, on the request of both the sides after the issue of "Rule" the matter was taken up for final hearing and the matter has been heard almost day to day since then.
Before I proceed further to deal with the rival contentions, which have been raised in this case, I deem it appropriate to reproduce the relevant provisions of the Bombay Industrial Relations Act, 1946 with reference to which the arguments have been addressed and which in my opinion are required to be considered. It is an Act to regulate the relations of employers and employees, to make provision for settlement of industrial disputes and to provide for certain other purposes.
Section 3 deals with the definitions of the words and terms used in this Act, which will hereinafter be referred to for short as "B.I.R. Act". Secs. 3(30) 3(31) 3(32) 3(33) are as under :
"3(30) "Registered Union" means a union registered under this Act.
3(31) "Registrar" means a person for the time being appointed to be the Registrar of Unions under this Act; and includes an Additional Registrar, and in respect of such powers and duties of the Registrar as may be conferred and imposed on him, and Assistant Registrar of Unions;
3(32) "Representative of employees" means a representative of employees entitled to appear or act as such u/s 30;
3(33) "Representative Union" means a union for the time being registered as a Representative Union under this Act;"
Sections 13 14 and 31 are as under :
(1) Any union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it so applies under this Section a membership of not less than twenty-five per cent of the total number of employees employed in any industry in any local area may apply in the prescribed form to the Registrar for registration as a Representative Union for such industry in such local area.
(2) If in any local area no Representative Union has been registered in respect of an industry a union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it so applies under this section a membership of not less than five per cent of the total number of employees employed in such industry in the said area may apply in the prescribed form to the Registrar for registration as a Qualified Union for such industry in such local area.
(3) If in any local area, neither a Representative Union nor a Qualified Union has been registered in respect of an industry a union having a membership of not less than fifteen per cent of the total number of employees employed in any undertaking in such industry in the said area and complying with the conditions specified in Section 23 as necessary for its being placed on the approved list may apply in the prescribed form to the Registrar for registration as a Primary Union for such industry in such local area.
(4) Notwithstanding anything contained in this section, if a union makes a fresh application for registration as a Representative Union, Qualified Union or as the case may be, Primary Union, the Registrar shall not entertain such application unless a period of one year has elapsed since the date of disposal by the Registrar of the previous application of that union for such registration.
On receipt of the application from a union for registration u/s 13 and on payment of the fee prescribed, the Registrar, shall, if after holding such inquiry as he deems fit he comes to the conclusion that the conditions requisite for registration specified in the said section are satisfied and that the union is not otherwise disqualified for registration, enter the name of the union in the appropriate register maintained u/s 12 and issue a certificate of registration in such form as may be prescribed :
Provided -
Firstly, that in any local area there shall not at any time be more than one Registered Union in respect of the same industry;
Secondly, that in any local area the Registrar shall in respect of an industry register a union fulfilling the conditions necessary for registration as a Representative Union in preference to one not fulfilling the said conditions and failing such a union, a union fulfilling the conditions necessary for registration as a Qualified Union in preference to one not fulfilling such conditions;
Thirdly, that -
(i) where two or more unions fulfilling the conditions necessary for registration apply in the same calendar month for registration in respect of the same industry, in any local area, subject to the provisions of the second proviso, the union having the largest membership of employees employed in the industry during the whole of the period of three calendar months immediately preceding that in which the applications were made shall be registered and any application made in any subsequent calendar months shall not be considered by the Registrar until the applications made in the earlier calendar months are disposed of by him;
(ii) where a union fulfilling the conditions necessary for registration makes an application during any calendar month for registration in respect of an industry in any local area any application in any subsequent calendar month by any other union registration in respect of the same industry shall not be considered by the Registrar until the former application is disposed of by him;
Fourthly, that the Registrar shall not register any union if he is satisfied that the application for its registration is not made bonafide in the interest of the employees but is made in the interest of the employers to the prejudice of the interest of the employees;
Fifthly, that the Registrar shall not register any union if at any time, within six months immediately preceding the date of the application for registration or thereafter, the union has instigated, aided or assisted the commencement or continuation of a strike or stoppage which has been held or declared to be illegal;
Sixthly, that the Registrar shall not register any union, if the rules of the union relating to its members contain any provision debarring an employee in the industry concerned from being a member of such union on the ground that he is or is not an employee in any particular undertaking in the said industry.
Notwithstanding anything contained in this Act, if there is any alteration in any local area or areas notified for the purposes of this Act, -
(a) a registered or Representative Union entitled under this Act to appear or act as a representative of employees in an industry immediately before the alteration in the local area or areas concerned, or
(b) where more than one registered or Representative Union are entitled to appear or act as representative of employees in an industry under this Section the union having the largest membership of employees employed in the industry, whether by agreement of the other registered or Representative Unions or as determined by the Registrar after such inquiry as he thinks fit
shall be entitled to appear or act for the altered local area or areas, as the case may be, for a period of twelve months from the date on which such alteration is effected, or if an application u/s 13 is made within such period by such union or any other union in the altered local area or areas until the disposal of such application by the Registrar".
The scheme of the B.I.R. Act shows that it is an interwoven scheme to take care of the industrial peace and harmony and the concept and fibre of having only one registered Union at a point of time in an industry for a defined local area is a fibre which runs throughout the Scheme of the interwoven provisions of this Act. The wholesome provisions of this Act were conceived and enacted so as to seek, strive and foster to have only one registered Union at a time and throughout the Scheme of the Act, care has been taken that by no means any party is able to get registration as a registered Union when there is already an existing registered Union. Section 13 provides for three types of Unions, i.e., Representative Union u/s 13(1), Qualified Union u/s 13(2) and a Primary Union u/s 13(3). In each of these sub-sections, the eligibility for registration as Representative, Qualified or Primary Union has been laid down. For seeking registration as a Representative Union, the union must have a membership of not less than 25 % of the total number of employees employed in any local area; for seeking registration as a Qualified Union, the membership of not less than 5 % of the total number of the employees employed in such industry in the said area is required; and for Primary Union a membership of not less than 15 % of the total number of employees employed in any undertaking in such an industry in the said area is required, besides other conditions mentioned therein. One of the important conditions, which is essentially a condition precedent or pre-requisite for registration of any union as a Qualified Union or Primary Union is that for registration of a union as a Qualified Union in an industry for a defined local area there should not be an existing Representative Union and for a Primary Union there should not be any existing registered Representative Union or a Qualified Union.
It has to be remembered that the Representative Union and the Qualified Union are for a defined local area in an industry, but the Primary Union can also be there for any undertaking in such industry in that very local area. Thus, for a defined local area, the requisite membership is mentioned in this section, but the pre-conditions, as aforesaid, are the pivotal points for the purpose of the registration of 3 types of the Union provided in this Act and simultaneously it has been provided in See. 13(4) that even if a union makes a fresh application for registration as a Representative Union, Qualified Union or as the case may be a Primary Union, the Registrar shall not entertain such application unless a period of one year has elapsed since the date of disposal by the Registrar of the previous application of that union for such registration. After providing the eligibility and other conditions including the condition precedent, as stated above, for the registration of any union with the caution that there can be only one registered Union at a time, the procedure for registration has been provided in See. 14 as to how the Registrar shall deal with any application received for registration under any of the sub-secs. (1), (2) and (3) of Section 13. This procedure is coupled with as many as six provisos and sequence of these provisos shows that the Registrar has to keep in mind each and every provision while dealing with any application received by him under any of the three sub-sections of See. 13, as stated above. These provisos take care of several contingencies, which may arise for consideration while dealing with the applications moved by the Union for registration.
And yet, the Registrar is under an obligation to see that the plurality of the registered Unions at a time is avoided in any case, come what may. Section 15 then provides for cancellation of the registration of the union in certain cases. Section 16 provides for registration of any Union in place of existing registered union subject to the conditions mentioned in the section itself and Section 31 deals with the consequences of any alteration in any local area or areas notified for the purpose under this Act and it has been provided that a registered or representative Union entitled under this Act to appear or act as a representative of employees in an industry immediately before the alteration in the local area or areas concerned or where more than one registered or Representative Unions are entitled to appear or act as representative of employees in any industry under this section, the union having the largest membership of employees employed in the industry, whether by agreement of the other registered or Representative Unions or as determined by the Registrar after such inquiry as he thinks fit shall be entitled to appear or act for the altered local area or areas, as the case may be, for a period of twelve months from the date on which such alteration is effected, or if an application u/s 13 is made within such period by such union or any other union in the altered local area or areas until the disposal of such application by the Registrar.
Thus, the union existing at the point of time of the alteration of the local area has been given a right to continue to appear or act as representative of the employees in an industry subject to the condition of its having the largest membership of the employees whether by agreement of the other Registered or Representative Unions or as determined by the Registrar after such inquiry as he thinks fit.
During the course of arguments, arguments were addressed at length with reference to Section 31 by the respondents, particularly by Mr. Barot on behalf of Mill Mazdoor Sabha, Rajpur but at the end Mr. Barot submitted that even if the arguments raised with reference to Section 31 of the Act are not dealt with by the Court while deciding the matter, he would nave no objection to it and the same may be dealt with only if the Court finds it necessary to deal with the same in the facts of this case. I find that the entire controversy in this case arose on account of alteration of the local area because prior to the alteration of the local area there was a registered Representative Union, i.e., Mill Mazdoor Sabha, Rajpur in Ahmedabad City Taluka Local area and Ahmedabad Silk Employees'' Union was a registered Representative Union under the Ahmedabad City area. With the Notification dated August 31, 1995 certain parts of the Ahmedabad City Taluka and whole of the Ahmedabad City area were merged and a new local area came into existence. Section 31 specifically deals with the cases arising out of any alteration in any local area or areas and this Section 31 also begins with a non-obstante clause inasmuch as at the very outset it starts with the words, "Notwithstanding anything contained in this Act". Thus, the whole controversy has arisen because of the alteration in the local area on August 31, 1995 and it is not possible to put the provisions of Section 31 in an oblivion and then consider the arguments, which have been raised. I, therefore, find it necessary to deal with the arguments, which have been raised with reference to See. 31 also.
With the narration of the factual position, as stated above, about which there is no serious dispute between the parties and having referred to the various provisions of the B.I.R. Act,'' the main question which has to be answered in the facts of this case is as to whether on account of the change in the local area vide Notification dated August 31, 1995 (which was published in the Gazette on September 28, 1995) the petitioner - Union gets the right to apply for registration as a Primary Union u/s 13(3) and get its registration as such or not. Whereas the controversy with regard to their applications, which had been moved by the parties before the Registrar as Representative Unions u/s 13(1) are subjudice before the Industrial Court in the Appeals as also in the Special Civil Applications before this Court and whereas the arguments have already been heard in Special Civil Application Nos. 2997 of 1996 and 2998 of 1996 and the judgment is awaited, I do not consider it proper to deal with the rights of registration of the petitioner-Union or other Unions as Representative Unions u/s 13(1) for altered area. The only limited question, which is to be answered in this Special Civil Application, is as to whether the processing and consideration of the application of the petitioner-Union dated April 30, 1996, which was moved by it for the purpose of its registration under Secs. 13(3) as a Primary Union should be forestalled and as to whether the Respondent No. 1 - The Assistant Registrar of Union under the B.I.R. Act is right in putting off the processing and consideration of this application moved by the petitioner-Union on April 30, 1996 u/s 13(3), while it is the common case of the parties that except that of the petitioner-Union, no other union has applied to the Register for its registration as a Primary Union u/s 13(3). In the form of pleading besides the Memo of the Special Civil Application filed by the petitioner-Union, the Court has before it an affidavit-in-reply dated January 16, 1997 filed on behalf of the Ahmedabad Silk Employees'' Union, and the affidavit-in-reply dated February 5, 1997 filed by one Shri Mahesh I, Joshipura, Astt. Labour Commissioner and Astt. Registrar under B.I.R. Act at Ahmedabad, the affidavit-in-reply dated February 4, 1997 filed on behalf of the Mil Mazdoor Sabha, Rajpur, an Affidavit-in-rejoinder dated February 3, 1997 and yet another affidavit-in-rejoinder dated March 11, 1997 filed by the President of the petitioner-Union.
Dr. Sinha has argued that the consideration of the application of petitioner-Union u/s 13(3) dated April 30, 1996 for the purpose of its registration as a Primary Union has nothing to do with the applications, which had been earlier moved for registration as Representative Union u/s 13(1) whether by the petitioner itself or by other Unions. Those applications may be decided by the Registrar in accordance with law u/s 13(1) as and when it may be possible for him subject to the orders, which may be passed by the Industrial Court and this Court in the pending Appeals and Special Civil Application respectively, but the Respondent No. 1has no justification to put off his application u/s 13(3) dated April 30, 1996 from being considered. While referring to the stand taken by Respondent No. 1 in the affidavit-in-reply dated February 5, 1997 Dr. Sinha has submitted that the Respondent No. 1 is not right in contending that the question of Primary Union may arise in case there is no application pending for Representative Union u/s 13(1). His submission is that the pendency of the application u/s 13(1) as such can-not be considered as a bar against the consideration of the petitioner-Union''s application u/s 13(3) and merely because the applications filed u/s 13(1) by the parties are pending as the consideration of the same cannot proceed because they have become a subject-matter of litigation and there are stay orders against the consideration of the petitioner-Union''s application u/s 13(1) and the stay of the proceedings in appeals before the Industrial Court, the fate of the petitioner''s application u/s 13(3) cannot be sealed.
It has been argued by Dr. Sinha that the petitioner-Union simply wants that its application under See. 13(3) may be taken up by the Respondent No. 1 and the same may be decided on its merit and the consideration thereof cannot be deferred on any of the grounds, which have been raised on the affidavit-in-reply dated February 5, 1997 filed by the Assistant Registrar. Dr. Sinha submits that precisely he has to raise two contentions as under :
(1) Irrespective of the fact whether the right of representing and acting of a registered Union of an unaltered area is continued u/s 31 of the B.I.R. Act for the altered area the right of any Union to seek registration either under See. 13(2) or See. 13(3) is wholly open and the continuity of right to act or appear under See. 31 does not act as a bar to any application under See. 13(1) 13(2) and 13(3) for the altered area.
(2) In the instant case even the right to act or appear u/s 31 has not accrued to any of the two respondent-Unions in the altered area.
On the other hand, it is argued by Mr. Barot that the Mill Mazdoor Sabha, Rajpur is holding the field as a registered Representative Union even after the alteration of the area on August 31, 1995 in terms of See. 31 and Mill Majdoor Sabha, Rajpur being a duly registered Representative Union u/s 13(1) continues to be registered, its registration has not been cancelled and that after the alteration of the local area, as aforesaid, this Union, i.e., Mill Mazdoor Sabha is continuing with the agreement of the Ahmedabad Silk Employees'' Union, which was also a registered Union prior to the alteration of the local area. On this premises it has been contended that Mill Majdoor Sabha, Rajpur being already there as an existing registered Union, the application u/s 13(3) moved by the petitioner-Union for registration is misconceived and merely because the area has been altered, the petitioner-Union does not get any right to apply for registration u/s 13(3) because the status of the Mill Mazdoor Sabha, Rajpur as a registered Union does not cease, rather it has been kept intact by virtue of the provisions of See. 31. According to Mr. Barot this status of the Mill Mazdoor Sabha, Rajpur, as a registered Union, has remained untrammeled and the petitioner-Union cannot be allowed to use the alteration of the local area as a basis to clothe the petitioner-Union with a right to seek registration under See. 13(3).
Both the sides, on this aspect of the matter, have raised arguments with reference to Section 31 and the only question is as to what is the correct import of the provisions contained in Section 31 so as to appreciate the argument of the existing status of the registered Unions after the alteration in the area. To meet the aforesaid arguments raised by Mr. Barot, Dr. Sinha has placed heavy reliance on the term, "entitled to appear or act" as has been used in See. 31 and it has been argued that in the Scheme of the Act u/s 3(30), "Registered Union" has been separately defined, "representative of employees" has been separately defined under See. 3(32) and the term "Representative Union'' has been separately defined u/s 3(33) and the entitlement to appear or act as a representative of employees in any industry has to be construed in the light of the meaning given to this term in the definition clause under See. 3(32).
I have considered the submissions made in this regard by both the sides. The reading of the provisions of Section 31 read with See. 3(32) makes it amply clear that the entitlement to appear and act as representative of employees is not the same thing as a registered Union. Apart from the fact that these two terms have been separately defined, it has to be considered that in case of any alteration of any local area, if more than one registered Union are there, the choice has to be made so as to allow one of the registered Unions to continue to appear, act and represent the employees for some time. Ofcourse, it has been provided that this right will continue for a period of 12 months from the date the area is altered or until the disposal of any application u/s 13 moved before the Registrar. It is also clear with reference to Section 31 that the applications may be moved for registration of a Union for the altered or new local area under any of the Sub-sections, i.e., 13(1), 13(2) or 13(3). It is also clear from the analysis of the provisions of See. 31 that in case of alteration in the local area, while the registered status of a Union goes to a stage of suspended animation rather cessation, such Union is given a right to represent and act. If the contention of Mr. Barot that the registered status of a Union continues as such even after the alteration of local area is accepted, it would militate against the basic feature of the Act. Besides this if the Union registered for unaltered local areas carries with it the status of registration even after the alteration of local area, there is no question of registration afresh and the same Union of unaltered area would continue whether it retains its representative character or not and the other Union will have no opportunity to apply for its registration for the altered area, even if it has acquired the representative character so as to be registered as a Representative Union or any other type of Union under See. 13 for the altered area. It is precisely for this reason that it is open for any Union including the already registered Union to apply afresh when there is a change of local area and in fact the Mill Mazdoor Sabha, Rajpur itself has applied for its registration u/s 13(1) on December 14, 1995 for the altered area.
The reasons as aforesaid are sufficient to negative the contention raised by Mr. Barot that the status of registration continues, even after the alteration of the area. Naturally such provisions had to be made as an arrangement for the interim period or to call it a ''make shift'' arrangement. Otherwise, there would be vacuum in the matter of the representation of the employees because no fresh or further application can be filed unless there is a change of the local area and even if any application is filed with the change of the local area, the processing of such application is likely to take some time. With the alteration of a local area a Union may lose or gain the representative character so as to cease to be a Representative Union or to acquire strength to be registered as a Representative Union and, therefore, any Union may apply afresh for registration. It is for this reason that the right ''to represent and act'' of a registered Union has been kept intact for a period of 12 months or till the applications under See. 13 are decided. There is yet another aspect of the matter, which goes in favour of placing the status of the registration of the Union into the stage of suspended animation or cessation and the same lies in the fact that if the status of registration of one Union is not placed in the stage of suspended animation or cessation, it would go against the basic tenets on which the B.I.R. Act has been enacted, viz., only one registered Union at a time. It can be very well conceived that in case of the alteration of the local areas, there may be more than one registered Union and, therefore, if the status of the registered Union as such is not treated to be over, it will gain ground for the existence of more than one registered Union at the same time and that would militate against the basic principle on which this enactment is based and it will run counter to the concept of only one registered Union at a time. Thus, the wholesome provisions of Section 31 seek to strike a balance so that there is not more than one registered Union at a time, but at the same time the employees are not left unrepresented and out of the registered Unions, that registered Union is given right to represent and act, which has the largest membership of the employees employed in the industry and that too with the agreement of the other registered Union and in case there is no agreement between the two Unions, such right to appear or act as representative of the employees has to be determined by the Registrar after such inquiry as he thinks fit. In my opinion, this is the just and correct import of the provisions of Section 31, which goes in harmony with the basic principles and the fibre, which runs throughout the Scheme of this Act.
In this view of the matter, the objection that the petitioner-Union''s application u/s 13(3) after the alteration of the area cannot be considered because there is already one existing registered Union i.e., Mill Mazdoor Sabha, Rajpur, cannot be sustained and this objection based on Section 13 is, therefore, rejected. Hence, the petitioner''s application u/s 13(3) could not be put off by the Assistant Registrar on the basis of the provisions of Section 31 of the Act, though it is held in unequivocal terms that the registered Union, which was there prior to the alteration of the area, may continue to appear or act as the representative of the employees in the industry with the agreement of the other registered Union, after the alteration of local area in case such Union has the largest membership of the employees employed in the industry. This, right to appeal or act as a representative of the employees remains in force for a period of 12 months from the date on which such alteration was effected or if any application u/s 13 is moved after the alteration of the area by any of the Unions, such right continues until the disposal of such application by the Registrar.
On the question of interpretation of See. 31, as above, I have also considered the reasoning given in the 1948 Industrial Court Reporter 309, a decision rendered by the Industrial Court in Appeal No. 19 of 1948 - Amalner Girni Kamgar Union, Amalner v. Rashtriya Mill Mazdoor Sangh, Amalner and Ors., wherein the scope of Section 31 was considered and a view was taken that the Union already registered as a Representative Union under Bombay Industrial Disputes Act continues to be entitled to act as a representative of the employees for the prescribed period. It has also been observed by the Industrial Court in this decision rendered by the Industrial Court that the Union, which was already registered was no doubt entitled to continue to act as the representative of the employees, but that is different thing from saying that it continue to remain a Representative Union. The expression "Representative of employees" is not identical in connotation with the expression "Representative Union" as defined in Section 3 of the B.I.R. Act. Therefore, as the old Representative Union cannot be regarded as a Representative Union, there was no bar to its making the application u/s 13.
Mr. Clerk has laid stress on the provisions contained in Section 14 and has submitted that in view of these provisions, the petitioner-Union''s application dated April 30, 1996 cannot be taken up for consideration so long as application, which had been moved earlier on August 31, 1995 filed by Ahmedabad Silk Employees'' Union for registration as Representative Union u/s 13(1) and the application moved on December 14, 1995 by the Mill Mazdoor Sabha, Rajpur, are decided by the Registrar. Mr. Clerk appearing for the Ahmedabad Silk Employees'' Union has submitted that under first proviso to Section 14 in any local area there cannot be more than one registered Union at any time in respect of the same industry. Once it has been held that in the altered local area, the status of registration goes in the stage of suspended animation or cessation, it is no gainsaying that any Union existed as a registered Union after August 31, 1995. All that has been decided is that the Union, which was registered prior to August 31, 1995 has right to appear and act as a representative of the Union and there is no question of taking that Union as registered Union as such for the altered local area also. Even otherwise, the whole orientation of the B.I.R. Act shall stand frustrated if it is assumed that the registration continues even after the alteration of the area because in that case there will be in operation more than one registered Union, namely, Mill Mazdoor Sabha, Rajpur and Ahmedabad Silk Employees'' Union since both the Unions had been enjoying the status of registered Union in their respective local areas prior to August 31, 1995 and if they carry same status of registration even after the alteration of local area, it will precipitate a situation of there being 2 registered Unions at a point of time. It may be reiterated that only to combat this anomaly, the provision had been made in Section 31 and a right has been given to the Union having largest membership to appear and act as a representative of the employees.
Thus, first proviso cannot forestall the consideration of the application dated April 30, 1996 moved by the petitioner-Union for the purpose of its registration as a Primary Union under See. 13(3). It may be made clear that so far as the eligibility for registration is concerned, the same has been provided separately for different types of Unions under Sees. 13(1) 13(2) and 13(3) and See. 14 only provides the procedure for registration. Moment an application from a Union is received for registration under See. 13, if the Registrar comes to the conclusion that such Union fulfills the conditions requisite for registration and that Union is not otherwise disqualified for registration he may enter the name of the Union in the appropriate Register maintained under See. 12 and may issue a certificate of registration in such forms as may be prescribed. I have already discussed the effect of the first proviso. So far as the second proviso is concerned, it simply provides for giving preference to such Union in the matter of registration over other Union, which does not fulfill the conditions. Thus, if there is any Union, which fulfills the conditions of registration as a Representative Union, the preference has to be given to it in comparison to the other Union, which does not fulfil the said qualifications and failing that, such Union, which fulfils the conditions necessary for registration as a Qualified Union in preference to one not fulfilling such conditions. In the case on hand, there is only one application for registration as a Primary Union for the altered area moved by the petitioner-Union and as such there is no question of second proviso coming in the way of the consideration of petitioner-Union''s application dated August 31, 1995. Clause (1) under 3rd proviso says that when two or more Unions fulfilling the conditions necessary for registration apply in the same calendar month for registration in respect of the same industry, in any local area, subject to the provisions of the second proviso, the Union having the largest membership of employees employed in the industry during the whole of the period of three calendar months immediately preceding that in which the applications were made, shall be registered and any application made in any subsequent calendar months shall not be considered by the Registrar until the applications made in the earlier calender month are disposed of by him.
Thus, the disposal of the applications made in the earlier calendar months is a condition precedent. Further, under clause (ii) of the third proviso where a union fulfilling the conditions necessary for registration makes an application during any calendar month for registration in respect of an industry or any local area, any application in any subsequent calendar month by any other union for registration in respect of the same industry shall not be considered by the Registrar until the former application is disposed of by him. Mr. Clerk has submitted that in view of these two clauses, the Registrar cannot consider the application dated dated April 30, 1996 moved by the petitioner-Union so long as the application moved at a point of time earlier than April 30, 1996 are pending. Mr. Clerk has also invited my attention to the Statement of Objects and Reasons of the B.I.R. Act, particularly clauses (7) and (9), which read as under :
"Clauses 7 and 9 :- It is proposed to have transitory provisions in the Act so as to give time to the existing approved, registered and representative unions affected by any alteration in the local areas to submit fresh applications for registration for the altered local areas and to permit them to function as before till their applications are decided by the Registrar of Unions".
This part of the Statement of Objects and Reasons only enables the existing approved, registered and representative Union after alteration in the local areas to submit fresh applications for registration for the altered local areas and to permit them to function as before till their applications are decided by the Registrar of Unions. On the basis of the provisions as aforesaid, i.e., clauses (i) and (ii) of the third proviso to See. 14 and the part of the Statement of Objects and Reasons as contained in Clauses (7) and (9), it has been sought to be argued that the registered Union, which was functioning as a Representative Union prior to the alteration of the local area, has been permitted to function as before till the application moved after the alteration of the local area is decided by the Registrar of the Trade Unions. Having given my thoughtful consideration to the aforesaid two clauses under third proviso and Clauses (7) and (9) of the Statement of Objects and Reasons, I find that the permission to function as before till the applications are decided by the Registrar, as mentioned in Clauses (7) and (9) is different than to say that it will carry the status of registration also. Particularly because the registered Union is permitted to function as before during a transitory period, for which the transitory provisions have been enacted, it cannot be said that such Union, which has been permitted to function as before, also carries with it the status of registration. Such function can be discharged even if the Union loses the status of registration during the transitory period and it is not necessary that to discharge the functions during transitory period, Union must be registered. The registration has been provided so as to give recognition to one Union at a time so that such registered Union, registered in accordance with the provisions of the Act, has a voice either as a Representative Union or as a Qualified Union or as a Primary Union subject to the provisions of the Act contained in Section 13 and other Sections and it has also been indicated in the earlier part of the Judgment that while such provisions to permit the Union to function as before had to be made in case of the alteration of the local areas so that the employees are not left unrepresented. Clauses (i) and (ii) under third proviso do provide that when two or more Unions apply in the same calendar month or when a Union fulfilling the conditions necessary for registration makes an application during any calendar month for registration in respect of an industry in any local area, the application made in any subsequent calendar month by any other Union for registration shall not be considered by the Registrar. Thus, the Registrar has to follow these provisions u/s 14 and such applications moved in the same calendar months have to be considered in priority and the second proviso do give highest preference to the Representative Union, failing which the Qualified Union also stands incorporated in clause (1) under third proviso because it has been made applicable subject to the provisions of second proviso and, therefore, the Registrar cannot take up any application, which was moved subsequence. This contention raised on behalf of Mr. Clerk and further supported by Mr. Barot on the basis of the Supreme Court decision reported in Automobile Products of India Employees'' Union Vs. Association of Engineering Workers, Bombay and others, , wherein it has been held that the mandatory provisions cannot be flouted even with the consent, is no doubt an argument not without force and in normal course, the applications have to be taken up as per the procedure prescribed for the purpose and the Registrar cannot take up a subsequent application for consideration unless the former application is disposed of.
The Supreme Court in the case of Automobile Products of India Employees Union (supra) considered that the Industrial Court in effect allowed the parties to circumvent the provisions of the Act and by adopting the simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised Union. In effect, therefore, the Industrial Court ignored in particular the mandatory provisions of Secs. 10 11 12 14 and 19 of the Act. Not only that, but by adopting this method, the Industrial Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found is the exclusive membership of the contesting union continuously over the specified period, the overlapping membership being ignored. The Supreme Court has further observed in this context that the consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality for reasons indicated earlier in the very same judgment because the Legislature did not opt for the ballot as a method for determining the representative character of the Union and had laid down an elaborate procedure with necessary safeguards to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act. There cannot be any quarrel with this proposition of law that mandatory provisions had to be followed and no direction can be given against any mandatory provision. Similarly, there cannot be any doubt that the applications, which are moved for registration at earlier point of time, have to be given priority and any application made in any subsequent month shall not be considered by the Registrar until the applications made in the earlier calendar month are disposed of by him and further that applications made during any calendar month for registration in respect of an industry in any local area in any subsequent calender month by any other Union for registration in respect of the same industry shall not be considered by the Registrar until the former application is disposed of by him. However, I find that on the basis of these clauses under proviso Three, it cannot be said that in a given case, when it becomes impossible for the Registrar to go ahead with the applications moved in the same calendar month, he should forestall the consideration of any other application, which is not made for the same purpose and for the registration in the same nature of the Union. In the facts of the present case, applications, which have been moved on August 31, 1995 and thereafter on December 14, 1995 were the applications for registration as a Representative Union whereas the application moved by the petitioner-Union on April 30, 1996 is an application for registration as a Primary Union u/s 13(3). The provisions, as contained in Section 13(1) 13(2) and 13(3) have to be kept in view and in case there is a Representative Union in existence, there is no question of the registration of any other Union for the same industry for the same local areas as a Primary Union. Such is not the case in the face of the controversy, which is sought to be adjudicated. Here is a case in which the consideration of the applications, which had been moved for registration u/s 13(1) at an earlier point of time, i.e., in the same calendar month on August 31, 1995 and, thereafter, on December 14, 1995 have been stayed and, therefore, so far as those applications are concerned, the Registrar cannot act upon and cannot process the applications even if he wanted in view of the stay orders, as have been pointed out in the earlier part of this order.
Thus, the consideration of those applications have been stayed. The only application, which is open to be considered, is the application dated April 30, 1996 moved by the petitioner-Union for its registration not as a Representative Union under See. 13(1) but as a Primary Union u/s 13(3). I fail to understand how the consideration of this application u/s 13(3) can be deferred, particularly because the processing of the other applications moved under See. 13(1) had been stayed. Once the embargo of the existence of a Representative Union as such goes, as has already been held as a result of the alteration in the area and as provided in Section 31 and the only right is to appear and act as representative of the Union, it cannot be said that any registered Union is in existence in the industry for the particular local area for which these three Unions are at lis. Even otherwise, it is the settled principle of law that Court cannot do any wrong to any party and in the facts of this case when the stay order had been passed against the consideration of the applications which were moved earlier, such stay order cannot be used for the purpose of forestalling the consideration of the other application moved on April 30, 1996 for seeking registration u/s 13(3) as a Primary Union. It would be an irony of fate if a Union, which is a registered Representative Union in the unaltered area and which has been given a legal sanction to appear and act as representative of the employees for a limited period, i.e., the transitory period, i.e. 12 months, as provided in Section 31 or till the contingency of the disposal of the applications, which are moved after the alteration in the local area, continues to function as such even beyond a period of 12 months because the consideration of the applications moved by the other Union for registration as a Representative Union has been got stayed by such Union itself and thereby it continues to function even beyond the period of 12 months and indefinitely till the applications are decided, the consideration of which had been stayed at the instance of that very Union. The wholesome provisions cannot be made to be defeated in the manner they are sought to be defeated and it would be a plain and simple abuse of the process of Court if the consideration of the application moved by the petitioner-Union u/s 13(3) on April 30, 1996 is also forestalled, leaving the workers in lurch in search for a registered Union. Whether the Union, which was registered for the unaltered area, now has a Representative character or not, whether it has the largest membership or not, irrespective of all such conditions, which form the basic features of the right to form Union, it continues as such on the basis of such orders passed in the cases filed by itself and now resisting the registration of the petitioner-Union also as a Primary Union so that it continues to function as a Representative Union de hors the consideration of the actual representative character. Thus, I find that here is a case in which there is a combination of very peculiar facts and circumstances. On one side, there is a restraint put by the Court against the consideration of the earlier applications and on the other side the consideration of the subsequent application is resisted, while all earlier applications for registration under See. 13(1) are involved in litigation. Such peculiar facts and circumstances giving rise to new problems call for new solutions and, therefore, in order to do justice between the parties, appropriate directions have to be given. Justice is one who has a strength to put an end to injustice, justice is one which transcends all virtues and it is said that even law has to bent before justice. If that be the correct position, I think I will be failing in my duty if the appropriate orders are not passed in this case so as to make an arrangement for the consideration of the application moved by the petitioner-Union till the Registrar is able to take up the earlier application, which had been moved by the parties for registration u/s 13(1). If wholesome provisions are made in the Act taking care of almost all possible contingencies, including the transitory period as a result of the alteration in the areas, such provisions have to be construed harmoniously with the spirit with which the enactment has been created and by no means the effective process of representation of the employees should be throttled. During the course of arguments, I found that the matter was argued from both the sides with vehemence and vigour, with ingenuity and ability, law and logic and illustrative arguments were made including the illustration, which was given by Dr. Sinha, that if there are 10 local areas and there are 10, 000 workers in each of the 101 local areas, the total number of workers would be 1,00,000 (sic.) and if at one point of time there is one Representative Union in each of the areas, there Will be 10 Representative Unions. For the purpose of registration u/s 13(1), not less than 25 % of the total number of employees are required.
If such 10 areas are combined and made one local area, any Union having membership of 251 to 260 will be eligible for being registered as a Representative Union. In such a situation, wherein a Union having a membership of even 260 in an industry having 10, 000 workers shall become a Representative Union while the other Union, even if having the membership of the largest number of employees will not be able to apply for registration and this would militate heavily against the basic values conferring the representative character. As a result of the analysis of the various provisions and the entire Scheme of the Act, I find that 2 Registered Unions cannot co-exist at a given point of time but during the transitory period there cannot be any Union with the status of registration as such, and at present, there is no registered Union and in the eye of law it is only the earlier registered Representative Union under See. 13(1) of the unaltered area which is functioning as the Representative Union and in the facts of the present case, the consideration of the application moved by the petitioner-Union on April 30, 1996 for its registration u/s 13(3) as a Primary Union cannot be forestalled. Thus, the first contention raised by Dr. Sinha is accepted.
The second contention, which was raised by Dr. Sinha was that in the instant case even the right to act or appear u/s 31 has not accrued to any of the two Registered Unions in the altered area. This contention is based on the factual position asserted by Dr. Sinha on the to basis of the document dated February 26, 1997 alongwith the statement enclosed therewith. This document had been issued under the signatures of the Assistant Registrar, i.e., Respondent No. 1. Dr. Sinha has pointed out that in August 1995 Ahmedabad Silk Employees'' Union had a membership of 5,614, i.e., when the Local area was altered and at that point of time the strength of Mill Mazdoor Sabha, Rajpur was 3,150. He has submitted that in view of this factual position even by agreement between the Mill Mazdoor Sabha, Rajpur and Ahmedabad Silk Employees'' Union the right to appear and act as a Representative Union could not be given to Mill Mazdoor Sabha because it was not having the largest membership of the employees employed in the industry. According to this document the largest membership of the employees employed in the industry was that of Ahmedabad Silk Employees'' Union as on August 31, 1995 and, therefore, in view of the mandatory provisions contained in Section 31(b) these two Unions, even with their consent, could not confer the entitlement to appear and act as representative of the employees in the industry upon the Union which was lacking the majority of membership. However, I find that it is not necessary for me to go further into this questions because the first contention has already been accepted and this Special Civil Application can be decided on the basis of the adjudication as aforesaid. There is yet another reason for not taking up this contention for my consideration and the same is that the Mill Mazdoor Sabha, Rajpur is already functioning even after the alteration of the areas and this controversy is already subject-matter of litigation before the Industrial Court and this Court and such question may be pending elsewhere also as was indicated by Dr. Sinha himself. Thus, the second contention is left open without expressing any opinion on that aspect of the matter as the same is not necessary for the decision of this case.
The upshot of the aforesaid adjudication is that this Special Civil Application succeeds in part. The Respondent No. 1 is directed :
(1) to take up the petitioner-Union''s application dated April 30, 1996 u/s 13(3) of the B.I.R. Act for consideration in the light of the observations made in this judgment and the same may be decided in accordance with law, within a period of one month from the certified copy of this order is served upon him;
(2) As a result of the consideration of this application dated April 30, 1996 u/s 13(3), even if the petitioner-Union is registered as a Primary Union u/s 13(3), such registration would remain effective until the earlier application moved by the respective parties on August 31, 1995 and subsequently are considered and decided as and when the Registrar is able to decide those applications;
(3) Even if the petitioner-Union is registered as a Primary Union u/s 13(3) as a result of the consideration of the application dated April 30, 1996, such registration would not come in the way of the registration of any other Union including the petitioner-Union, if they are otherwise entitled to be registered as Representative Union u/s 13(1) and moment any other Union or the petitioner-Union itself is registered as Representative Union under See. 13(1), the registration of the petitioner-Union u/s 13(3) as a Primary Union would come to an end on the principle that there can be only one Registered Union at a time.
Rule is made absolute in the terms as aforesaid with no order as to costs. Direct service is permitted.