1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2596 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2596 OF 2011 *** 1. The petitioner/ employer has challenged orders dated 13th December, 2010 passed by Respondent No.2 under section 10 (b) of Trade Unions Act, 1926. Contention is, in single day i.e. on 15th November, 2003 Respondent No.2 granted registration to Respondent No.3 trade union and none of the members of the said trade union was actually in employment of petitioners on 15th November, 2003. Attention is being invited to objections as raised particularly in respect of inquiry dated 17th March, 2007 in this respect alleging that at-least 10% or 100 of the workmen must be found to be in actual employment of the petitioner on 15th November, 2003. The declaration in Form-A has to be there and as per section 22 (2) of 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2596 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Trade Unions Act, 1926 the 2/3rd of office bearers of Respondent NO.3 union must be employees actually working in the factory. Learned counsel contends that none of the members were/ are in employment of petitioner either on 15th November, 2003 or thereafter and hence the certificate given on single day without conducting inquiry into this material aspect is vitiated and needs to be cancelled in the light of provisions of section 10 (b) of the Trade Unions Act. 2. Mr. Prabhakaran urges that a reference for voluntary unemployment of the members of the Respondent No.3 union is already made and in that reference thrice preliminary objections in this respect were raised and having failed therein the matter was taken right up to the Honourable Apex Court. It is contended that again the effort is to see that, that reference does not proceed on 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2596 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. merits and hence the objection under section 10 (b) came to be filed. He invites attention to section 2 (s) of Industrial Disputes Act to urge that a terminated employee is also included in that definition and the dispute about his termination can be spoused by Respondent No.3. He argues that at this stage it is not necessary to go into the merits of the controversy as according to Respondent No.3 its members have been victimised deliberately keeping them out of employment and by not providing them work though work was available. 3. The perusal of papers show that workmen claiming to be earlier working with petitioners have come together and formed a union in the shape of Respondent No.3. That union has been registered and is trying to espouse and redress the cause of its members. Question, whether an individual was or was 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2596 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. never in employment of petitioner is a disputed question which can be gone into as and when it crops up in reference proceedings, if occasion therefor arises. Here, only question is, whether a trade union could have been allowed to espouse the cause of its members. Provisions of section 2 (a), 2 (k) and 2 (s) of Industrial Disputes Act permit individual dispute of such nature to be referred and here it is Respondent No.3 trade union which has espoused that cause. The petitioners are the employers and they can meet the challenge on merits. The reliance on provisions of section 22 of Trade Unions Act is misconceived because there is nothing before this Court to show that the establishment of petitioners is notified to be in unorganised sector. Similarly, the perusal of Form-A at page 94 (Exhibit-5) with the petition, does not show that ex employees 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 2596 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. are barred from forming a trade union. 4. I, therefore, find no substance in the grievance made before this Court by the Petitioners. Petition is dismissed. No costs. [B.P.DHARMADHIKARI, J.] Dated:05/04/2011. ans/2596