vil Appeals Nos
1597 98 of 1988
From the Judgment and Order dated 331988 of the Bombay High Court in WP Nos
1409  1776 of 1986
Dr YS Chitaley and Mrs Urmila Sirur for the Appellant
Ahok K Gupta SJ Deshmukh Ms Vrinda Grover and Ms Bina Gupta for Respondent Nos
1 to 4
The Judgment of the Court was delivered by SAWANT J
The present appeals arise out of a battle for recognition between the rival trade unions in proceedings under the Maharashtra Recognition of Trade Union  Preven tion of Unfair Labour Practices Act 1971 hereinafter referred to as the Act 
The fourth respondent Company has two factories one at Bhandup Bombay employing about 1700 workers and the other at Aurangabad employing about 1000 workers
The first respondent Union viz the Association of Engineering Work ers Bombay obtained a certificate of recognition from Industrial Court Thane under Section 12 of the Act on April 7 1977 for the Company s undertaking at Bhandup
While the first respondent Union was acting as such recog nised union many of the workers claimed that they had resigned from the said Union and formed a new union called the Automobile Products of India Employee s Union which is the appellant Union and registered it on January 7 1981 under the 
On October 9 1981 the appellant Union made an application to the Industrial Court Thane under Section 131ii of the Act for cancellation of the recognition of the first respondent Union on the ground that the latter s membership in the Bhandup Undertaking had fallen below 30 per cent of the total strength of workmen in that Undertaking for the preceding six months
In its reply dated November 16 1981 the first respondent Union refuted the allegation in the application and contended that its membership was more than 30 per cent for the relevant peri od
The appellant Union on March 1 1982 submitted yet another application for cancellation of recognition of the first respondent Union this time under Section 131i of the Act alleging that the recognition was obtained by the first respondent Union by misrepresentation andor fraud and that it was granted recognition also by mistake
The Industrial Court rendered the relief in favour of the appel lant Union
However the said decision was set aside by the High Court and the decision of the High Court was upheld by this Court
Here ended the first skirmish
182 3
The appellant Union thereafter started the second battle this time for its own recognition under Section 14 of the Act and the present appeals are an outcome of the said proceedings
On July 29 1982 the appellant Union filed an application under Section 14 of the Act for being registered itself as a recognised union in place of the first respond ent Union on the ground that it had the largest membership of the workers in the Bhandup undertaking viz 1036 out of a total of 1700 workers ie about 69 of the total stength
The first respondent Union in its reply of October 7 1982 contested the appellant Union s claim and pleaded that it had a membership of about 1400 workers
Both the appellant Union and the first respondent Union furnished with their pleadings the details of their membership
On August 19 1985 the appellant Union made an application to the Industrial Court to hold an inquiry under Section 122 of the Act by directing the investigating officer to verify the membership of both the Unions
On September 5 1985 the Industrial Court gave directions to the Investigating Offi cer appointed under the Act to assist the Court to investi gate the membership of both the Unions
While the Investigating Officer was in the process of verifying the memberships of the two Unions suggestions were made for deciding by secret ballot as to which of the Unions commanded the majority
As per the suggestion the first respondent Union on December 19 1985 submitted a draft proposal to the Industrial Court as follows 1
The issue pertaining to recognition of any of the unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot
The Union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any tech nicality or objection
The union which thus fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union
The appellant Union also submitted its draft proposal at the same time in more or less the same terms
On the same day ie December 19 1985 the Industrial Court passed an order directing the Investigating Officer to hold a secret ballot in the premises of the Company within 30 days from the date of the order
The employees who were entitled to vote in the ballot were those who were on the rolls of the 183 Company on July 1 1985 those who joined employment of the Company thereafter being disentitled to do so
According ly a secret ballot was held on January 4 1986
The result of the ballot showed that in all 1585 workers voted but only 1578 ballot papers were valid
The appellant Union secured 798 votes whereas the first respondent Union secured 780 votes
The Investigating Officer submitted his report to the Industrial Court on January 21 1986
On January 30 1986 the first respondent submitted its objections contend ing that the cut off date of July 1 1985 was not correct as the employees who were in employment of the Company and whose services were intermittently interrupted were not given an opportunity to exercise their votes and that there should have been a proper notification with regard to the date of voting so that the employees who were away could have exercised their votes
On February 10 1986 the Indus trial Court passed an order granting recognition to the appellant Union in place of the first respondent Union under Section 14 of the Act after disposing of the objec tions raised by the first respondent Union
The Industrial Court held that since there was an agreement between the two unions the procedure adopted to grant recognition to the union under the Act was a valid one
The Industrial Court also held that there was no substance in the objections of the first respondent Union that by treating July 1 1985 as the cut off date the workers who were otherwise entitled to vote were deprived of their right to vote and also that the notice of the ballot which was given to the workers was proper one
The Industrial Court further granted the request of the appellant Union for cancellation of the recognition of the respondent union
under Section 131vii of the Act as a consequence of the recognition of the appellant Union
On February 11 1986 the Industrial Court granted a certif icate of recognition to the appellant Union under Section 14 of the Act
Against the said decision two writ petitions were filed in the Bombay High Court under Article 227 of the Constitution of India one viz Writ Petition No 1409 of 1986 by two workers who were members of the first respond ent Union and the other viz Writ Petition No 1776 of 1986 by the first respondent Union
In both the petitions it was alleged that the Industrial Court had violated the provisions of the Act relating to the grant of recognition of the Union by adopting a procedure which was not sanc tioned by it and which was therefore illegal and invalid
Reliance was placed for this purpose on a decision of the Bombay High Court in Maharashtra General Karngar Union Bombay vs Mazdoor Congress Bombay  Ors 1983 MLJ 147
The appellant Union contested both the petitions con tending that 184 the petitioners there were estopped from challenging the procedure which was adopted by the Industrial Court by consent of the first respondent Union
The High Court by its impugned decision allowed both the writ petitions and set aside the order of the Industrial Court mainly relying upon its earlier decision in Maharashtra General Kamgar Union Bombay case supra
The present appeals are directed against the impugned decision passed in both the said writ petitions
What therefore fails for our consideration in these appeals is whether the procedure adopted by the the Indus trial Court for granting recognition to the appellant Union was illegal
To appreciate the answer it is necessary first to appreciate the object and the scheme of the Act
As has been stated in the Preamble of the Act the State Government had appointed a committee called the Committee on Unfair Labour Practices for indentifying certain activities of employers and workers and their organisations which should be treated as unfair labour practices and for sug gesting actions to be taken against the employers and employees or their organisations for engaging in such unfair labour practices
The Government after considering the report of the Committee was of the opinion that to deal with the unfair labour practices it was necessary among other things to provide for the recognition of trade unions for facilitating collective bargaining and to state their rights and obligations to confer certain powers on them and to provide for certain consequences for indulging m unfair labour practices
It is further a common knowledge that although since long there was a strong demand from some sections for recog nising the bargaining agent of the workmen by a ballot secret or otherwise the National Labour Commission did not countenance it for certain obvious reasons
It was felt that the elective element would introduce unhealthy trends which would be injurious to the trade union movement to industri al peace and stability endangering the interests of the workers the employers and the society as a whole
It was feared and from what has become almost a normal feature today we can say rightly that the elective element will encourage the growth of mushroom unions just on the eve of election outbidding each other in promising returns to the workers merely to assort supremacy and unmindful of the health of the industry leading eventually to unwarranted industrial strife stoppage of production and even closure of the establishment with a consequent loss of production and employment
It was therefore thought prudent in the interests of stable industrial 185 relations and industrial peace to evolve a mechanism whereby the bargaining agent on behalf of the workers will have a durable stability as such agent with a guarantee of unin terrupted loyalty of its members and an unquestionable representative character over a certain period of time
That is why the concepts such as recognised union or represen tive union emerged and along with it the machinery to determine it
The mechanism necessarily involved a process by which the workers who claimed that they were speaking through their bargaining agent had the responsibility to maintain their support to it over a reasonable period of time
This could be ensured by them by continuing their membership of the union over a specific period
The continu ation of their membership of the union concerned over a period ensured that their association with the bargaining agent was of a steady and durable character and their alle giance and loyalty to it were not of a fleeting moment but were born of a proper evaluation of all facts
It is in the light of this background that we have
to examine the scheme of the Act so far as it relates to the recognition and derecognition of the Unions
Chapter III of the Act deals with the recognition of unions whereas Chapter IV deals with their obligations and rights
Chapter VI deals among other things with unfair labour practices on the part of the recognised unions and Chapter VII gives powers to Courts to declare certain acts of recognised unions as unfair labour practices
Chapter VIII gives to the Courts the power to punish and Chapter IX to impose penalty on the recognised unions
The privileges given to the recognised unions and the obligations and responsibilies cast on them are also considerable
Chapter III which deals with the recognition of unions makes it clear in Section 10 that the said Chapter shall apply to every undertaking where fifty or more employees are employed or were employed on any day of the preceding 12 months
If the number of employees employed in the undertak ing at any time falls below 50 continuously in a period of one year the Chapter ceases to apply to such undertaking
Section 11 of the Chapter then states the procedure for recognition of union
A union which is desirous of being registered as a recognised union for any undertaking has to make an application to the Industrial Court for the purpose
However for making such application the Union must have not less than 30 per cent of the total number of employees in that undertaking as its members for the whole of the period of six calendar months immediately preceding the calendar month in which it makes the application
The Indus trial Court then has 186 to dispose of the application as far as possible within three months from the elate of the receipt of the applica tion if all the concerns of the undertaking are situated in the same local area and in any other case within four months
Section 12 then lays down the manner in which the Indus trial Court will proceed to enquire into the application and grant recognition
On receipt of the application the Indus trial Court has to make a preliminary scrutiny of it to find out that it is in order
The Court then has to cause a notice to be displayed on the notice board of the undertak ing for which the recognition is sought stating therein that the Court intends to consider the said application on a date specified in the notice and also calling upon the other union or unions if any in the undertaking as well as the employers and employees affected by the proposal for recognition to show cause within a prescribed period as to why recognition should not be granted to the applicant union
If after considering the objections if any received and if after holding such enquiry in the matter as it deems fit the Industrial Court comes to the conclusion that the applicant union satisfies the condition stated in Section 11 viz among other things that it has a membership of not less than 30 per cent for the relevant period and that it also satisfies the conditions which are specified in Section 19 of the Act the Court grants recognition to the applicant union and issues a certificate of such recognition to it
On the other hand if the Court comes to the conclu sion that any of the other unions has the largest membership of employees and the said other union has notified to the Court its claim to be registered as a recognised union and if that other union also satisfies the requisite conditions of Section 11 and 19 of the Act the Court has to grant recognition to the said other union
It is necessary at this stage to state the conditions laid down in Section 19 which are necessary to be complied with by a union for recognition
Section 19 which appears in Chapter IV dealing with the obligations and rights of recognised unions lays down that the union which seeks recognition under the Act has to provide in its rules the following matters and those matters have to be duly observed by it viz i the mem bership subscription of the union should not be less than fifty paise per month ii the Executive Committee of the union must meet at intervals of not more than three months iii all resolutions passed by the Executive Committee or the general body of the union have to be recorded in a minute book kept for the purpose and iv the union s accounts have to be audited at least once in each financial year by an auditor appointed by the State Government
187 Section 12 then states that at any time there shall not be more than one recognised union in respect of the same undertaking
The section also enjoins upon the Court not to recognise any union if it is not satisfied that the appli cation for its recognition is not made bona fide in the interest of the employees but is made in the interest of the employer and to the prejudice of the interest of the employ ees
So also the section mandates the Court not to recognise any union if at any time within six months immediately preceding the date of the application for recognition the applicant union has instigated aided or assisted the com mencement or continuation of a strike which is deemed to be illegal under the Act Section 13 provides for cancellation of the recognition of the union and suspension of its rights as a recognised union
It states that if the Industrial Court is satisfied after holding an enquiry in the matter that i the union was recognised under mistake misrepresen tation or fraud or ii the membership of the union has for a continuous period of six calendar months fallen below the minimum required under Section 11 for its recognition viz 30 per cent of the total strength of the employees or iii the recognised union has after its recognition failed to observe the conditions specified in Section 19 or iv the recognised union is not being conducted bona fide and is being conducted in the interest of employer to the prejudice of the interest of the employees or v it has instigated aided or assisted the commencement or continuation of a strike which is deemed to be illegal under the Act or vi its registration under the is cancelled or vii another union has been recognised in place of the union recognised under the said Chapter it would cancel its recognition
The Industrial Court is also given the power to suspend the rights of the 188 recognised union for some specified period and it may not proceed to cancel the recognition if it is satisfied that the former course is in the circumstances a proper one
Section 14 with which we are concerned then lays down the procedure for recognition of other union when there is already a recognised union in the field
It states that any union can make an application for being registered as a recognised union in place of a recognised union which is already registered as such for the undertaking
Such other union can make an application on the ground that it has the largest membership of employees employed in the undertaking
The conditions precedent to making such application howev er are that i a period of at least two years must have elapsed since the day of the registration of the recognised union ii a period of one year should have elapsed since the date of disposal of the previous application for recognised of such union iii the union must have satisfied the conditions neces sary for recognition specified under Section 11 and in addition iv its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recognised union v the provisions of Section 12 which also include the conditions specified in Section 19 are satisfied
If however the Court comes to the conclusion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary conditions the Court will grant recognition to the other union
Section 15 provides for re recognition of the union whose recognition has been cancelled on the ground that it was recognised under a mistake or on the ground that its membership had for a continuous period of six calendar months fallen below the minimum required under Section 11 viz below 30
Such an application can be made by the derecognised union after three months from the date of its derecogni 189 tion
On such application being made the provisions of Section 11 and 12 referred to above would apply to it as they applied to an application made for the union s initial recognition
However this section also makes it clear that if the recognition of the union had been cancelled on any other ground it cannot apply for re recognition within a period of one year from the date of such derecognition save with the permission of the Court
Section 16 states that even if the recognition of union is cancelled it will not relieve the union or any of its members from any penalty or liability incurred under the Act prior to such cancellation
Section 18 provides for recogni tion of unions for more than one undertaking
Section 20 which appears along with Section 19 21 and 23 in Chapter IV dealing with the obligations and rights of recognised un ions among other things deals with the right of a recog nised union and of such officers and members of the office staff and members of the recognised union as may be autho rised by or under rules made by the State Government
Those rights include the right a to collect sums payable by members to the union on the premises where wages are paid to them b to put up or cause to be put up a notice board on the premises of the undertaking in which its members are em ployed and to affix or cause to be affixed notice thereon c for the purpose of the prevention or settlement of an industrial disputes i to hold discussions on the premises of the undertaking with the employees concerned or its members ii to meet and discuss with the employer or any person appointed by him in that behalf the grievances of employees iii to inspect if necessary any place in the undertaking where any employee is employed d to appear on behalf of any employee or employees in any domestic or departmental enquiry
The section also makes it clear that it is only the recog nised union
190 when there is one which shall have the right to appoint its nominees to represent workmen on the Works Committee consti tuted under Section 3 of the and it is only the recognised union which shall have the right to represent in certain proceedings under the said Act and that the decisions arrived at or order made in such proceedings shall be binding on all the employees in such undertaking and to that extent the provisions of the said Act shall stand amended
Section 21 then states that when there is a recognised union no employee in the undertaking shall be allowed to appear or act or allow to be represented in any proceedings relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union
The only exception to this rule is in the case of the undertakings governed by the Bombay Industrial Relations Act where the representatives of the employees under Section 30 of that Act are given the special privilege
It is not necessary to deal with the other provisions of the Act
It is thus clear that the recognition or derecogni tion of a union under the Act is not a matter which concerns only the contesting unions or its members
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general
No union is entitled to be registered as a recog nised union under the Act merely because it satisfies the membership qualification
The Industrial Court is forbidden from granting recognition to a union whatever its member ship if the Court is satisfied that it is disqualified for reasons mentioned under Section 125 and 126 or does not satisfy the conditions mentioned in Section 19
A period of two years must further have elapsed since the registration of the recognised union if there is one before an applica tion for recognition of a new union is entertained
A union whose recognition is cancelled on the ground specified in clause ii of Section 13 cannot make a fresh application for a period of three months and if its recognition is cancelled on any other ground it cannot make a fresh appli cation for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the Court
In addition to the membership qualification therefore the Court has also to satisfy itself that the applicant union is not disentitled to recog nition or to apply for recognition under the other provi sions of the Act
As regards the membership qualification itself the Act enjoins that for being recognised the applicant union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months 191 preceding the month in which the application for recognition is made
When the applicant union seeks recognition for itself by displacing the existing recognised union the applicant union has in addition to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately preceding the calendar month in which it made its application but had also a larger membership during the said period than the membership of the recognised union
Even with regard to membership therefore what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superi ority in it over a continuous specified period
What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the Union its representative character
It is its representative character determined by such membership that gives a union a right to make the application for recognition
However overwhelming therefore the vote may be in its favour in a ballot it will not entitle a union to recognition under the Act
the recog nition by ballot or by any method other than that laid down in the Act is therefore alien to the Act
The facts in the present case would reveal that what was done by the Industrial Court was to permit the registra tion of the union as a recognised one by a method which was clearly alien to the Act
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a 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 Court ignored in particular the mandatory provisions of Sections 10 11 12 14 and 19 of the Act
Not only that but by adopting this method the 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 out is the exclusive member ship of the contesting unions continuously over the speci fied period the overlapping membership being ignored
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act cannot cure the illegality
For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and 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 192 to substitute the provisions of the Act
Hence we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act
The High Court had therefore rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union supra
In the re sult the appeals fail and are dismissed
The matter is remanded to the Industrial Court for disposal according to law
It is however made clear that if there are any set tlements which have been arrived at between the appellant Union and the respondent Company they will be allowed to run their full course
The appellant Union will not enter into any settlement during the pendency of the present proceedings and if any settlement is to be entered into it should be done only with the consent of the respondent Union which has not lost its recognition as yet
There will be no order as to costs
NVK Appeals dismissed


Summary:
The petitioner was detained under section 33 of the  under an order passed by the detaining authority after consideration of the documents placed before it by the sponsoring authority alleging that the detenu was a hardened criminal and habitual offender against whom many cases were registered
The documents placed before the detaining authority were also served on the detenu along with the ground of detention
The appellant filed a writ of Habeas Corpus in the High Court challenging the validity of the detention which was dismissed
Hence this appeal
The appellant also filed a writ petition in this Court challenging his detention
In this appeal it was contended on behalf of the appellant that the detaining authority had acted on irrelevant and extrane ous matters therefore the detention order is liable to be quashed
On behalf of the respondent it was contended that the order of detention was not invalid merely because some extraneous materials were placed before the detaining au thority since the impugned order could be sustained on the material set out in the grounds of the detention itself
Allowing the appeal and disposing the Writ Petition this Court 213 HELD 1
The averments made in the documents the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal having a gang under his control often committing heinous crimes that many cases are against the detenu are registered in various police stations and that he is in the habit of committing offences
These averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of detenu
Had these extraneous materials not been placed before the detaining authority he might or might not have passed this order
Therefore the detention order is suffer ing from the vice of consideration of extraneous materials vitiating the validity of the order
detention order is therefore quashed
217B E Ram Krishna Paul vs The Government Of West Bengal  Ors   Smt
Pushpa vs Union of India  Ors 1980 Supp
SCC 391 Merugu Satyanarayana vs State of AP  Ors  and Mehboob Khan Nawab Khan Pathan vs Police Commissioner Ahmedabad  Anr  followed
Section 5A provides that where there are two or more grounds covering various activities of the detenu each activity is a separate ground by itself and if one of the grounds is vague non existent not relevant not connected or not proximately connected with such person or invalid for any other reason whatsoever then that will not vitiate the order of detention
In the instant case the impugned order has not been made on two or more grounds covering various activities of the detenu
but has been passed on the sole ground relatable to a single incident
The conclusion ar rived at is only on the basis that the extraneous materials placed before the detaining authority might have influenced the mind of the detaining authority but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5Aa
Therefore the submission that the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the public order is not correct
218B D Prakash Chandra Mehta vs Commissioner and Secretary Government of Kerala  Ors 1985 Supp
SCC 144 distin guished