IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6152 of 2001 with CIVIL APPLICATION NO. 9255 OF 2001 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- INDOCOUNT CHNGANAM EMPLOYEES UNION Versus REGISTRAR BOMBAY INDUSTRIAL RELATIONS -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6152 of 2001 MR. K.S. NANAVATI, SR. COUNSEL WITH MR. K.D. GANDHI, ADVOCATE, for Petitioner No. 1 MS. NANDINI JOSHI, AGP, for respondent No. 1 MR DS VASAVADA for Respondent No. 2 MR RD DAVE for Respondent No. 3 2. Civil Application No. 9255 of 2001 MR. B.T. RAO, Advocate, for the applicant MR. D.S. VASAVADA for respondent No. 2 MS. NANDINI JOSHI, AGP, for respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 14/2/2002 C.A.V. JUDGEMENT 1. Indocount Chuganam Employees' Union-petitioner has filed this petition challenging an interim order dated 23.7.2001 passed by the Industrial Court, Vadodara, in Review (IC) Application No. 6 of 2001. In this case Majur Mahajan Mandal, respondent No. 2, filed a review application and sought review of the interim order dated 18.5.2001 passed by the Industrial Court, Vadodara, dismissing the interim application dated 10.4.2001 below Exh. 2 filed by respondent No. 2. Respondent No. 2 Union had inter alia prayed to restrain the petitioner from entering into or registering any type of settlement till the main Appeal (IC) No. 1 is heard. The main Appeal IC No. 1/2001 is filed by respondent No. 2 Union inter alia challenging the recognition and registration granted to the petitioner Union under the provisions of Bombay Industrial Relations Act, 1946. 2. The Industrial Court by its impugned order dated 23.7.2001 passed the following directions: (i) The review application of respondent No. 2 is allowed. (ii) Till the disposal of the Appeal, the petitioner and respondent No. 2 are restrained from entering into any settlement, agreement or understanding with the management. (iii) The order dated 19.3.2001 passed by respondent No. 1 granting recognition and registration to the petitioner in respect of Karjan Taluka for Textile Industries is stayed. (iv) Directing respondent No. 1 to make an inquiry on an application made by respondent No. 2 and to give a report within 45 days before the Industrial Court in appeal (IC) No. 1 of 2001. (v) The party to the proceedings are directed to cooperate with respondent No. 1 in order to complete spot inquiry and to be ready for hearing after the report is submitted before the Industrial Court. 3. The facts giving rise to this petition are as under: 3.1 The petitioner is a Union having members of the persons working with a Company known as Indocount Chunganam Textile Limited engaged in the activity of processing clothes and yarn at Karjan. Approximately 700 persons are working with the said Company. 3.2 It has been alleged in the petition that in the month of March 2000, April 2000 and May 2000, the petitioner was having membership of more than 25% of the total workers working in Textile Industry situated in Karjan Taluka Area. In view of the said fact the petitioner made an application dated 5/6/2001 before respondent No. 1 in the prescribed form under the provisions of the BIR Act inter alia praying for registration as a representative Union of Textile Industry situated in the said local area i.e. Karjan Taluka area. It is the case of the petitioner that the petitioner Union has fulfilled all the conditions of the provisions of Section 13 of Bombay Industrial Relations Act (hereinafter referred to as `the Act') and was entitled to registration as a representative Union. 3.3 Respondent No. 1 after conducting spot inquiry and taking the statement of the workers at the concerned place as envisaged under Rule 28A of the Rules of the BIR Rules, found that the petitioner Union was having a membership of not less than 25% of the total number of employees employed in Textile Industry situated at Karjan Taluka area. Respondent No. 1 after considering the said aspect has granted registration to the petitioner as a representative Union vide order dated 19.3.2001. 3.4 Being aggrieved against the order dated 19.3.2001 respondent No. 2 filed appeal before the Industrial Court, Vadodara. Respondent No. 2 also filed an application Exh. 2 dated 10.4.2001 inter alia praying for interim relief restraining petitioner as a representative Union from entering into any settlement or agreement. On the said application, the Industrial Court vide order dated 10.4.2001 was pleased to grant interim relief in terms of para 3(A) and (B) of the interim application. Ad-interim order was passed on 10.4.2001. 3.5 On issuance of the notice by the Industrial Court the petitioner filed a detailed reply pointing out that the petitioner has complied with all the conditions under Section 13 of the Act and therefore entitled for registration. Respondent No. 1 filed reply dated 26.4.2001 from which it is evident that respondent No. 1 had conducted on the spot inquiry on 7.3.2001 and 8.3.2001 and had taken statement of the workers from which it was found that the petitioner was having a membership of not less than 25% of a total number of employees employed in the Textile Industry situated at Karjan Taluka area. The petitioner has annexed a copy of the reply dated 26.4.2001 together with list of documents filed by respondent No. 1. 3.6 After considering the material on record and hearing the parties the Industrial Court, Vadodara, vide order dated 18.5.2001 was pleased to vacate ad-interim relief granted earlier and dismissed application Exh. 2 inter alia praying for interim relief. 3.7 Being aggrieved and dissatisfied with the aforesaid order, respondent No. 2 filed a review application being No. 1/2001 inter alia praying to review the order dated 18.5.2001 on the ground that under Section 14 of the Act, respondent No. 1 will have to decide the majority amongst two unions who have applied for registration as a representative Union. The respondent No. 2 Union filed an application mainly relying on the decision rendered by the Bombay High Court reported in (1959) II LLJ at page 493 in the case of B.E.S.T. WORKERS' UNION VS. STATE OF BOMBAY AND OTHERS. The petitioner as well as respondent No. 1 filed their replies opposing the review application filed by respondent No. 2. 3.8 The Industrial Court, Vadodara, relying upon the aforesaid decision of the Bombay High Court, allowed the Review Application vide order dated 23.7.2001 and gave various directions, which I have set out in the earlier portion of the order. 3.9 Being aggrieved and dissatisfied with the aforesaid order, the petitioner has filed the present petition before this court on 30.7.2001. When the matter was placed for hearing before this court (Coram: R.R. Tripathi, J), the court passed the following order dated 6.8.2001. "Mr. D.S. Vasavada, learned advocate for the respondent No. 2, submits that if the petitioner-union is permitted to sign the agreement, then, it would amount to allowing the petition at the admission stage itself. To see that the workman get the higher payment tomorrow itself, it is directed that respondent No. 3 shall release the higher payment, which is agreed upon under the agreement referred to hereinabove. The same will however be subject to further order/s which may be passed by this court on 9.8.2001. S.O. to 9.8.2001. Direct service is permitted." 4. Mr. K.S. Nanavati, learned Sr. counsel has appeared on behalf of the petitioner Union. On behalf of respondent No. 1 Ms. Nandini Joshi, learned AGP, appeared. For respondent No. 2 Mr. D.S. Vasavada, learned advocate, appeared and on behalf of respondent No. 3 Mr. Rajesh Dave, learned advocate, appeared. 5. The learned counsel for the petitioner has invited my attention to certain provisions of the Bombay Industrial Relations Act. This Act has been passed to regulate the relations of employers and the employees, to make provision for settlement of industrial disputes and to provide for certain other purposes. This Act has also been enacted to provide for the regulation of relations of employers and employees in certain matters, to consolidate and amend the law relating to the settlement of industrial disputes and to provide for certain other purposes. 5.1 Section 3 of the Act provides for definitions. Section 3(2) of the Act provides for definition of `approved union' which means a union on approved list. Section 3(9) of the Act provides for the term `Commissioner of Labour' which means an officer appointed by the State Government for the time being to be the Commissioner of Labour and in respect of any of the powers and duties of the Commissioner of Labour that ay be conferred and imposed on any person. 5.2 Section 3(13) of the Act provides for definition of `employee' which means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual supervisory, technical or clerical work for hire or reward. 5.3 Section 3(14) of the Act provides for the term `employer'. Section 3(25) of the Act provides for the term ``Member' which means a person who is an ordinary member of a union and who has paid a subscription of not less than twenty five paise per calendar month. Section 3(28) defines the term `primary union' as a union for the time being registered as Primary Union under this Act; Section 3(29) provides for `qualified union' which means a union for the time being registered as Qualified Union under this Act; Section 3(30) of the Act provides for `registered Union' which means a union registered under this Act. Section 3(31) of the Act defines the term `Registrar' as 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 may be conferred and imposed on him, an Assistant Registrar of Unions. Section 3(32) of the Act defines `representative of employees' so as to mean a representative of employees entitled to appear or act as such under Section 30; Section 3(33) of the Act provides for `representative union' which means a union for the time being registered as a Representative Union under the Act. 5.4 Section 4 of the Act provides for the term `Commissioner of Labour' which means that the State Government shall by notification in the Official Gazette, appoint a person to be Commissioner of Labour. Section 5 of the Act provides for the Registrar and Assistant Registrars. Section 6 of the Act provides for the term `Conciliator' and Section 7 of the Act provides for Board of Conciliation. Section 8 of the Act provides for Labour Officers and Assistant Labour Officer. Section 9 of the Act provides for Labour court and Section 10 of the Act provides for Industrial Court. 5.5 Chapter III of the Act provides for registration of Unions. Section 11 of the Act provides for recognition of undertakings and occupations. Section 12 of the Act provides for maintenance of registers and approved list. Section 13 of the Act provides for application for registration. Section 13 reads as under: "Section 13(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. Section 13(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 months in which it so applies under this Section a membership of not less than five per cent of the total number of employees 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. Section 13(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 percent 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. Section 13(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." 5.6 Section 14 of the Act provides for registration of Union. Section 14 of the Act which was subject matter of the decision of the Bombay High Court in the case of Best Workers Union (supra) and the third proviso (prior to its amendment) was as under: "Section 14 of the BIR Act reads as under: Registration of Union - On receipt of an application from a union for registration under Section 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 under Section 12 and issue a certificate of registration in such form as may be prescribed. xxxxxxx Third proviso (under the old Act) - Thirdly that where two or more Unions fulfilling the conditions necessary for registration apply for registration in respect of the same industry in any local area, subject to the provisions of proviso 2, the Union having the largest membership of employees employed in the industry shall be registered." 5.6A Even after amendment, main part of Section 14 of the BIR Act remained the same. So I do not quote the same again. However, third proviso to Section 14 of the BIR Act was amended by Guj. Act 8 of 1962 S. 4. The third proviso (after amendment) reads thus: 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 industry in any local area in the same calendar month subject to the provisions of the second proviso the union having the largest membership of employees employed in the industry (for a period of three months immediately preceding the calendar month in which they apply) during the whole of the period of three calendar immediately preceding that in which the application were made shall be registered (and no applications for registration received in any subsequent calendar month are disposed of by the Registrar) and any application made in any subsequent calendar month shall not be considered by the Registrar until the applications made in the earlier calendar month are disposed of by him. (ii) where a union fulfilling the conditions necessary for registration make 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 for registration in respect of the same industry shall not be considered by the Registrar until the former application is disposed of by him." 5.7 Section 119D of the Act provides for power of Industrial Court etc. to pass interim orders. Section 123 of the Act provides for powers to make rules. 5.8 Under the said section the Legislature has enacted Rules which are called as Bombay Industrial Relations (Gujarat) Rules, 1961. In the said Rule, Rules 28A (1) and (2) read as under: "Section 28-A (1) - For ascertaining the membership of unions for the purposes of the provisions of Sections 13, 16, 17 or 23, the Registrar shall hold an inquiry in the manner hereafter provided. (2) - The Registrar shall fix a date for holding an inquiry for ascertaining such membership and shall give fifteen days notice thereof to the union or unions concerned." 5.9 The learned counsel for the petitioner has submitted that in the impugned order the Industrial Court has mainly relied on the Division Bench judgement of the Bombay High Court in the case of B.E.S.T. WORKERS' UNION VS. STATE OF BOMBAY AND OTHERS (supra). The Bombay High Court relying upon the old provision of Section 14 of the Act, has on page No. 499 held thus: "In our opinion, this provision, instead of assisting Mr. Joshi, assists the appellant union. It is evident from this provision that where the legislature thought it fit to require the membership to be determined as it stood on the date of the application for registration, it has done so in clear terms. It was indeed necessary to enact such a provision in Sub-sec. (3), because under this provision a union making an application for being registered in place of an existing union, makes certain claims based on its strength. For considering such a claim, it is but appropriate that its strength as it obtained on the date on which it lodged that claim should be considered in preference to its strength on any other occasion." The Court again held on page 499-500 as under: "Finally, it was said that upon the view which we take as to the point of time with reference to which the relative strength is to be determined, a practical difficulty will be created, and the Registrar would not be able to dispose of the applications for registration expeditiously. It may be that a certain amount of delay would be caused because the Registrar may have to examine the claims of several unions. But that is not a ground or reason for refusing to construe the provisions of the Act according to the language used by the legislature. It is not as if it will be impossible for the Registrar to perform his duties. Where a construction placed on a provision were to result in such an impossibility, then, of course, that construction would not be proper, and the Court would be precluded fro putting such construction. Merely because the construction would create difficulties, that construction, if it is otherwise justifiable, cannot be rejected. We accordingly hold that the Registrar is bound to consider the application of the appellant before he makes any final orders disposing of the application made by respondent 3, that is to say, before he decides to register respondent 3 union." 5.10 The learned counsel for the petitioner submitted that it is no doubt true that the above decision has been decided on 5.2.1959 by the Bombay High Court which is binding on me. The learned counsel for the petitioner however stated that proviso to Section 14 of the Act, particularly, third proviso which has been relied upon by the Bombay High Court has been subsequently amended by the Gujarat Act No. VIII of 1962 which I have already quoted when I quoted the main provision of Section 14. I have also referred to the old third proviso to Section 14 of the Act in this behalf. 5.11 In view of the aforesaid submissions, the learned counsel for the petitioner submitted that in view of the amended proviso `thirdly' to Section 14, the judgement of the Bombay High Court relied upon by the Industrial Court loses its effect as binding precedent and hence same cannot be relied upon by the Tribunal. The same is not holding the field and Industrial Court was not justified in relying on the same. 5.12 The learned counsel for the petitioner has stated that in this case the petitioner has made an application on 5.6.2000 whereas respondent No. 2 has not made any application in the same calendar month in which the petitioner Union had made. After a period of six months respondent No. 2 made an application on 29.1.2001 i.e. subsequent to the calendar month in which the petitioner made. Therefore on the undisputed facts of the case application of respondent No. 2 cannot be considered by respondent No. 1. 5.13 The learned counsel for the petitioner submitted that on merits the petitioner Union had for the whole period of three calendar months immediately preceding the calendar month in which it had applied i.e. on 5.6.2000 a membership not less than 25% of the total number of employees employed in Textile Industry situated at Karjan Taluka area. 5.14 The learned counsel for the petitioner submitted that it is an admitted fact that at the time when order dated 19.3.2001 was passed by respondent No. 1, respondent No. 2 was not a party to the proceedings before the Registrar and had, therefore, no right to file an appeal and the order passed in such an appeal is illegal, nullity and without jurisdiction. It was further submitted that the Registrar has passed order under Section 13 of the Act after holding a spot inquiry and after recording the statements of the workers at the concerned place as envisaged under Rule 28A of the Rules and found that the petitioner was having a membership of not less than 25% of the total number of employees employed in the Textile Industry situated at Karjan Taluka area. Therefore, it is incorrect on the part of respondent No. 2 to contend that the Registrar had not followed the procedure. 5.15 The learned counsel for the petitioner further submitted that the Registrar did not issue notice to respondent No. 2 because respondent No. 2 was not a party to the proceedings before the Registrar and has not made application in the same calendar month in which the petitioner made the application and therefore it was not entitled to any notice. 6. On the other hand, Mr. Vasavada learned counsel for respondent No. 2 has raised the following preliminary contentions. 6.1 The learned counsel submitted that in this case the petitioner has challenged the order of the Tribunal dated 23.7.2001 which is the interim order in Review (IC) Application No. 6 of 2001. So the present petition is not maintainable. He has relied on the judgement of the Hon'ble Supreme Court in the case of NATIONAL COUNCIL FOR CEMENT & BUILDING MATERIALS VS. STATE OF HARYANA AND OTHERS reported in (1996) 3 SCC 206 where the Hon'ble Supreme Court at para 16 on page 210 has observed thus: "The facts in the instant case indicate that the appellant adopted the old tactics of raising a preliminary dispute so as to prolong the adjudication of industrial dispute on merits. It raised the question whether its activities constituted an `industry' within the meaning of the Industrial Disputes Act and succeeded in getting a preliminary issue framed on that question. The Tribunal was wiser. It first passed an order that it would be heard as a preliminary issue, but subsequently, by change of mind, and we think rightly, it decided to hear the issue along with other issues on merits at a later stage of the proceedings. It was at this stage that the High Court was approached by the appellant with the grievance that the Industrial Tribunal,