1 W.P.No.5471.09 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5471 OF 2010 Nashik District Co-operative Bank Employees’ Union, Nashik ... Petitioner v/s 1. The Assistant Registrar under the B.I.R. Act, 1946, Nashik Divn., Nashik 2. Co-operative Bank Employees Union, Nashik. ... Respondents Mr.V.P.Vaidya for the petitioner. Mr.S.D.Rayriikar, A.G.P. for respondent No.1. Mr.M.S.Topkar for respondent No.2. CORAM: SMT.NISHITA MHATRE, J. DATED: 10TH JANUARY, 2011 P.C.: 1. Rule. Rule made returnable forthwith by consent of the parties. 2. The writ petition has been preferred by a union seeking representative status under the Bombay Industrial Relations Act, 1947 (in short, “the B.I.R.Act’’). Respondent No.2 is a 2 W.P.No.5471.09 Co-operative Bank Employees’ Union vying for the same status. Both unions claim to represent an overwhelming majority of the employees of the Co-operative Banks in the Nashik Taluka. 3. The petitioner had been granted status of a representative union under the B.I.R. Act and was functioning as such till the respondent union challenged this status. The respondent union filed an application in the year 1994 under Section 16(1) of the B.I.R. Act claiming that it had a majority of the membership of the employees of the Co- operative Bank in Nashik Taluka. That application was allowed by the Assistant Registrar i.e. respondent No.1 on 4.3.1994. Aggrieved by that order granting the status of a representative union to respondent No.1, the petitioner union preferred an appeal before the Industrial Court immediately thereafter. The Industrial Court took over 13 years to dispose of this appeal being Appeal No.3 of 1994. It allowed the appeal and restored the status of the petitioner as a representative union. During this period, since there was no stay to the order of the Registrar, respondent No.2 enjoyed the status of a representative union for 13 years. 4. The respondent union then filed Writ Petition No.4598 3 W.P.No.5471.09 of 2007 on 17.8.2007 challenging the order passed by the Industrial Court. That petition was admitted on 6.8.2007. Interim relief in terms of prayer clause (b) of the petition was granted on 17.8.2007, as a result of which the order of the Industrial Court was stayed. However, the petitioner union, which was the respondent in the aforesaid writ petition, was granted liberty to file an application under Section 16 for being registered as a representative union in the Nashik Taluka for the employees of the Co-operative Banks, without prejudice to its rights in the writ petition. 5. The petitioner union preferred L.P.A. No.328 of 2007 on 17.9.2007. While this L.P.A. was pending, the petitioner filed a fresh application under Section 16 on 30.10.2007. The membership for the months of July, August and September of 2007 was to be reckoned in respect of the fresh application. The respondent No.2 union challenged the maintainability of the petitioner’s application on two grounds: firstly, that the petitioner union had preferred an L.P.A. and secondly, that such an application was not maintainable in view of the provisions of Section 16 of the B.I.R. Act. 6. The L.P.A. was withdrawn by the petitioner on 4 W.P.No.5471.09 18.6.2008. The Industrial Court by its order dated 4.11.2008 directed respondent No.1 to decide the objection raised by the respondent union as a preliminary issue. Being aggrieved by that order, the petitioner union filed Writ Petition No.1709 of 2009 on 25.7.2009. The order of the Industrial Court was set aside. Aggrieved by that decision, the respondent union preferred L.P.A. No.140 of 2009. By order dated 15.6.2009, the order of the learned Single Judge was set aside by consent of the parties. It was agreed that the Assistant Registrar should decide the proceedings in accordance with the order of the Industrial Court dated 4.11.2008 i.e. it would initially enquire about the maintainability of the application filed by the petitioner union. 7. The Assistant Registrar by his order dated 17.8.2009 held that the application filed by the petitioner union was maintainable. Aggrieved by that decision, the respondent union preferred Appeal (BIR) No.1 of 2009. The appeal was allowed on 14.1.2010 and the order passed by the Assistant Registrar was set aside. The Industrial Court was of the view that since the L.P.A. No.328 of 2007 was pending when the application under Section 16 was filed by the petitioner union, the application was not maintainable. It has 5 W.P.No.5471.09 apparently referred to the provisions of Sections 16(1) and 16(3) but it appears to have restricted its discussion mainly to the fact that the L.P.A. was pending. The appeal has not been disallowed on the ground that the application under Section 16 was not maintainable because the embargo contained in the provision had not been lifted. 8. Mr.Vaidya appearing for the petitioner union submits that the order of the Industrial Court is contrary to the order passed by this Court while granting interim relief to the respondent union on 17.8.2007. He submits that this Court has specifically permitted the petitioner union to file a fresh application for registration as a representative union. That application is for a period subsequent to the period covered in the application filed under Section 16 by the respondent union in the year 1994. He further points out that the remedy available to the petitioner cannot get extinguished merely on account of the L.P.A. having been filed. He points out that the order of the Industrial Court was misconceived as there is absolutely no bar under the provisions of the B.I.R. Act for filing a fresh application for registration so long as it is filed in accordance with Section 16 of the B.I.R. Act. 9. Mr.Topkar appearing for the respondent union 6 W.P.No.5471.09 supports the order passed by the Industrial Court and submits that the petitioner union had elected to file an L.P.A. after being given liberty to prefer an application under Section 16. Having elected to adopt the course of challenging the order passed in the writ petition, the petitioner union could not avail of the liberty granted by this Court by its order dated 17.8.2009 allowing the petitioner union to file a fresh application. He then submits that the order of the Registrar passed in the year 1994 merges with the order of the Industrial Court dated 26.4.2007 and, therefore, the Industrial Court was right in accepting the objection of the respondent union. According to Mr.Topkar, once the order of the Registrar has merged in the order of the Industrial Court, the petitioner union had no right to file a fresh application after the writ petition granting a stay to the order of the Industrial Court i.e. after 17.8.2007. This is because the status of representative union had been conferred on the petitioner by the Industrial Court. He further submits that, if at all the petitioner union wanted to file an application, it could have filed the same in the year 2009 and not in 2007 as has been done in the present case. He points out that under Section 16, there is an embargo for applying for cancellation of the registration of a trade union as a representative union for two years. A trade union is 7 W.P.No.5471.09 expected to function peacefully and without any disturbance regarding its status during this period. 10. Under the B.I.R. Act an application for registration as a representative union can be made by any union when it has membership of not less than 25% of the total number of employees employed in any industry, in any local area, in the three calendar months, immediately preceding the calendar month in which the application is made. Under Section 14, the Registrar is expected to conduct an enquiry and ascertain whether the conditions requisite for registration specified in Section 13 have been complied by the applicant union and certain conditions stipulated in Section 14 are fulfilled. Thereafter the name of the union can be added to the appropriate register maintained under Section 12 of the Act and the certificate of registration as a representative union must be issued. The registration of a union as a representative union can be cancelled by the Registrar under Section 15 of the Act if it disqualifies itself as provided under this section. Under Section 16 of the Act, any other union can file an application before the Registrar for being registered as a representative union in place of the union already so registered, on the ground that it has the largest membership of employees in the industry. The Registrar can 8 W.P.No.5471.09 entertain such an application only if two years have elapsed after the date on which the first union or non-applicant union was registered as a representative union. On receipt of such an application, the Registrar may call upon the non- applicant union to show cause why its registration should not be cancelled. However, the Registrar may also ensure that the applicant union has not filed the application within less than the period of one year after its previous application for de-registration of the other union was dismissed. It is only when, on an enquiry, it is found that the membership for the three calendar months immediately prior to the calendar months in which the application has been made has fallen and the applicant union has larger membership for registration to the applicant union as a representative union can be granted. 11. The right to file an application under Section 16 always exists with a union subject to the stipulation contained in the section. It cannot get extinguished only because the union challenges an order of the Court, granting the status to another union. An application can always be filed for a subsequent period and there would be no embargo for filing such an application as long as the application seeking cancellation of the registration of the existing union and 9 W.P.No.5471.09 seeking registration in its place, has been filed after two years from the date when the other union was registered. The proviso to Section 16 provides that the Registrar cannot entertain an application for registration of a union, unless a period of one year has elapsed since the date of dismissal of the previous application for cancellation. Thus, if a union files an application under Section 16 for being registered in place of a existing representative union before the Registrar and that application is allowed, the same union can file an application again, although it may be for a fresh period, only after the expiry of one year from the date on which its last application was rejected by the Registrar. 12. In the present case, the petitioner union was enjoying the status of a recognized union till 1994. The Registrar allowed the application filed by the respondent union and granted it the status of the representative union by cancelling the status conferred on the petitioner union on 4.3.1994. The respondent union continued to function as a representative union from 4.3.1994 till the Industrial Court restored the status-quo ante by allowing the appeal filed by the petitioner union. Thus, the order of the Registrar merged in the order of the Industrial Court which related back to the date of the application filed by the respondent union for cancellation of the representative status of the petitioner 10 W.P.No.5471.09 union and for being granted that status. Now, although the respondent union was aggrieved by the order passed by the Industrial Court and has obtained a stay of the order, the petitioner union was granted liberty to apply for registration as a representative union. It has done so by taking into consideration the membership that it had for the months of July, August and September, 2007 i.e. for a fresh period. 13. The contention of Mr.Topkar that the application was not maintainable because of the provisions of Section 16 and the embargo envisaged under that provision, is not sustainable. The representative status was granted to the respondent union in the year 1994. Although the Industrial Court had allowed the appeal and restored the status of the petitioner union as a representative union, that order was stayed by this Court. As a result of the stay granted, the order of the Registrar continued to exist despite the order of the Industrial Court. Since the order of the Registrar was passed on 4.3.1994, it was always open for the petitioner union to file an application for being granted the status of a representative union by seeking cancellation of that status conferred on the respondent union by the order of the Registrar dated 4.3.1994. The submission of Mr.Topkar that the petitioner union had to wait for two years from the 11 W.P.No.5471.09 date on which this Court stayed the order of the Industrial Court is without merit. 13. In my opinion, the Industrial Court has committed an error by dismissing the application filed by the petitioner union for being registered as a representative union by reckoning its membership for the months of July, August and September, 2007. The impugned order is set aside. 14. Writ petition allowed. 15. Rule made absolute. No order as to costs. .....