AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7296 OF 2007 Sahakari Bank Karmachari Sangh, 11, Kadadi Mangal Karyalaya, Near Railway Station, Solapur – 413 001. ) ) ) ... Petitioner Versus 1. The District Deputy Registrar, Co- operative Societies, Solapur District, Solapur. ) ) ) 2. Ashok Namdeo Kumbar, Asst. Registrar, Co-operative Department & Election Officer, Solapur. ) ) ) ) 3. The Pandharpur Urban Co-op. Bank Ltd., Pandharpur, Navi Peth, Pandharpur, District Solapur. ) ) ) 4. State of Maharashtra through Department of Co-operation. ) ) 5 District Collector, Solapur. ) ... Respondents Mr. S.M. Dharap i/b Ms. Anjali M. Helekar for the petitioner. Mr. P.P. Kakade, AGP for the State. Mr. G.S. Godbole for respondent 3. CORAM : SMT. RANJANA DESAI & AJN 2 SMT. ROSHAN DALVI, JJ. DATE ON WHICH THE JUDGMENT RESERVED : 22ND APRIL, 2008. DATE ON WHICH THE JUDGMENT PRONOUNCED : 3RD JUNE, 2008. JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. Rule. Respondents waive service. By consent of the parties, taken up for hearing forthwith. 2. The petitioner-union is a registered trade union (for convenience, “the petitioner or the petitioner-union”). It claims to be a representative union in the Pandharpur Urban Co-op. Bank Ltd. - respondent 3 herein (for convenience, “the said bank”) for the local areas of Pandharpur Taluka under the Bombay Industrial Relations Act, 1946, (for short, “the Bombay Act”). Respondent 1 is the Deputy Registrar of Co-operative Societies, Solapur District. He is also an Election Officer. His notification is impugned in this petition. Respondent 2 is the Assistant Registrar, Co-operative AJN 3 Societies of Solapur District, who was the Election Officer in the election of the Board of Directors of the said bank held by respondent 1. The said bank is a Co-operative Bank registered under the Maharashtra Co-operative Societies Act, 1960 (for short, “the MCS Act”). 3. The case of the petitioner-union is that a dispute as to the appointment of workers' directors on the Board of Directors of the said bank arose as back as in 2002. After exhausting all available remedies, the petitioner-union had to file a writ petition being Writ Petition No.3466 of 2002 in this court seeking appropriate directions against the respondents directing them to appoint workers directors selected by the petitioner-union on the Board of Directors of the said bank. The said petition was admitted on 12/8/2002. An interim order was passed against respondents 1 and 2 directing them to notify the names of two persons who were nominated and selected by the petitioner-union to be on the Board of Directors as workers directors. Accordingly, they were taken on the Board of Directors for the period between 2002 to 2007. AJN 4 4. It is the case of the petitioner-union that the impugned Notification dated 26/6/2007 is issued by the Election Returning Officer of the said Bank declaring the elections for the Board of Directors and the programme of election under Rule 56-J Form No.M(3) of the Maharashtra Co-operative Societies Rules, 1960 (for short, the said Rules”). By that notification, the concerned authority has declared the programme of election between the period 3/7/2007 to 6/8/2007. 5. According to the petitioner-union, the number of directors on the Board of Directors of the said bank was 19. As per section 73- BB, the petitioner-union was entitled to nominate two employees on the Board of Directors of the said bank as the workers representatives. However, since the employees nominated herein did not fall under the list of the reserved constituency, there was no special column for elections referring to the workers representatives in the impugned notification. The petitioner-union, therefore, addressed a letter dated 3/7/2007 to the Election AJN 5 Decision Authority inviting his attention to the provisions of section 73-BB of the MCS Act. The petitioner-union informed the Election Decision Authority that the petitioner-union being a representative union for the local areas of Pandharpur and Solapur, it was entitled to nominate two employees as workers' directors. The petitioner- union communicated that it had nominated Mr. Anand Pandurang Utpat and Mr. Mohan Shankarrao Kulkarni, who were selected as workers directors and requested that their names be accepted and declared at the time of declaration of election results as the workers representatives. According to the petitioner-union, there was no response to the said letter. The petitioner-union, therefore, addressed letter dated 7/8/2007 to the District Deputy Registrar, Co-operative Societies, Solapur enclosing thereto a copy of the letter dated 3/8/2007 and requesting him to issue instructions to the Election Officer accordingly. 6. By a communication dated 7/8/2007 addressed by the Election Officer to the District Election Officer, Solapur, the District Election Officer was informed by the Election Officer of the said AJN 6 bank that the petitioner-union had sent two names of employees to be declared as workers directors on the Board of Directors of the said bank for the period 2007 to 2013. The Election Officer further informed the District Election Officer that Pandharpur Urban Co-op. Bank Sevak Sangh, Pandharpur has challenged the recognition and representative character of the petitioner-union before the Labour Commissioner, Pune, by applying for cancellation, of the representative character. By letter dated 16/8/2007, the petitioner requested the District Deputy Registrar, Co-operative Societies that as per section 73-BB of the MCS Act names of Shri Utpat and Shri Kulkarni be declared in the notification and final notification be issued and, only thereafter, the election be held. According to the petitioner, in spite of this correspondence, election was declared by the Election Officer by issuing a notification without incorporating the names of the workers directors nominated by the petitioner- union, which is a representative union and the sole bargaining agent under the Bombay Act. The petitioner-union has, therefore, inter alia, prayed for cancellation of the impugned Notification dated 26/6/2007 issued by the Election Officer and for a direction AJN 7 to issue a fresh notification or an additional notification declaring the reserved posts for workers representatives under section 73- BB of the MCS Act. The petitioner-union has further prayed that Notification dated 25/8/2007 declaring the results of elections of the post of Chairman and Vice Chairman be struck down as being contrary to the provisions of Rule 56-A and 35 of the said Rules. The petitioner-union has further prayed that a writ in the nature of mandamus be issued directing the respondents to take steps to appoint Mr. Anand Pandurang Utpat and Mr. Mohan Shankarrao Kulkarni on the Board of Directors of the said bank. 7. Affidavit in reply is filed by Shri Vidyadhar Mane, Assistant Registrar, Co-operative Societies, Taluka Pandharpur. It is stated in the affidavit that election programme was conducted from 27/6/2007 to 6/8/2007 and the results were declared on 6/8/2007. The District Deputy Registrar, Co-operative Societies, Solapur has notified all the elected members by order dated 13/8/2007. The affidavit further goes on to say that for the purposes of section 73- BB, the members of the Committee shall mean and include AJN 8 elected, appointed, nominated, co-opted as well as ex-officio members of the Committee, but it shall not include the representatives of the employees. It is further stated that therefore the representatives of the employees were not included in the notification. It is further stated that letters have been received from the petitioner-union and from the Pandharpur Urban Co-operative Bank Ltd. Employees Sevak Sangh, which indicate that there is a dispute between the two. The affidavit further states that when there is a dispute between two unions, the seats reserved shall be filled by election by such employees from amongst themselves in the prescribed manner and, therefore, that decision was conveyed to the petitioner-union on 9/8/2007. 8. Affidavit in reply is also filed by Mr. Ashok Kumbhar, Election Officer of the said bank. It is stated in the affidavit that letter dated 3/7/2007 sent by the petitioner-union was forwarded to the District Election Officer for necessary action. It is further stated by Mr. Kumbhar that Pandharpur Urban Co-operative Bank Sevak Sangh, Pandharpur, submitted to him their application addressed to the AJN 9 Commissioner (Labour), Pune, regarding cancellation of representative character of the petitioner-union and he submitted that application also to the District Election Officer. 9. Affidavit in reply is also filed by Mr. Y.K. Kulkarni, General Manager and Authorized Officer of the said bank. It is, inter alia, stated in the affidavit that order dated 12/7/1997 passed by the Assistant Registrar under the Bombay Act registering the petitioner-union as a representative union under the Bombay Act and another order of registration of the petitioner-union as approved union are challenged by the said bank by filing appeal in the Industrial Court at Solapur and, hence, the status of the petitioner-union as the representative union is in dispute and consequently the petitioner-union is not entitled to claim the exclusive right to nominate any two employees of its choice as members of the Managing Committee of the said bank. It is further stated that in such a situation, the law provides for election of two representatives by all the employees of the said bank. It is further stated that the petitioner-union is recognized as a representative AJN 10 union only for the Pandharpur local area and for the remaining area of Solapur District, Solapur District Central Co-operative Bank Employees Union is the recognized union. The Collector was informed about this and, therefore, he was justified in not notifying the names of two persons nominated by the petitioner-union. It is alleged in the affidavit that majority of the employees of the said bank are not the members of the petitioner-union but are members of the Pandharpur Urban Co-operative Bank Sevak Sangh. As regards the order dated 12/8/2002 passed by this court, it is stated that the said order only governed the election held in the year 2002 for the term 2002-2007. It was an interim order and is not binding on all further elections. 10. Before we note the rival contentions and deal with them, it must be stated that Mr. Godbole learned counsel for the said bank wanted to tender affidavits of employees of the said bank stating that they do not want the two nominees of the petitioner-union to be their representatives. The affidavits were sought to be tendered in support of the submission that if any relief is granted to the AJN 11 petitioner-union that would be contrary to the legislative mandate. We made it clear to Mr. Godbole that we shall not permit any affidavits to be tendered in this court at this belated stage and if affidavits are filed cognizance thereof will not be taken. In fact, on 14/2/2008, we passed an order to that effect. Surprisingly, despite this, the office has permitted the said bank to file affidavits. We make it clear that the said affidavits do not form part of the record. 11. Mr. Dharap, learned counsel for the petitioner-union submitted that the impugned notification must be set aside as being illegal and as it is issued in the teeth of judgment of the Division Bench of this court in Writ Petition No.2833 of 2003 delivered on 20/6/2003. Mr. Dharap contended that similar issue was raised before this court in that case and the State was directed to issue appropriate directions to all District Collectors that while issuing a Notification under Rule 16 of the Election Rules for elections of the members of the Board of specified societies or such societies covered under Rule 16 of the Maharashtra Specified Co-operative Societies Elections to Committees Rules, a separate AJN 12 notification for election of workers representatives' on the Board of Directors of such societies shall be issued in accordance with directions issued in the writ petition. Inasmuch as the impugned notification is issued in breach of the above judgment, according to Mr. Dharap, it must be set aside. Mr. Dharap also relied on order of this court in Writ Petition No.3466 of 2006 filed by the petitioner- union, where same issue was involved and whereby the respondents were directed to notify the names of two persons who were selected by the petitioner-union. 12. Mr. Dharap further submitted that a conjoint reading of both the Acts makes it clear that they complement each other and, hence, the term “representative-union” found in the Bombay Act will have to be understood as a recognized union for all practical purposes. He submitted that the words “union or unions” used in the section are used with a purpose. He submitted that there may be an industry, where part of the industrial activity is governed by the Bombay Act and part of it is governed by the MRTU & PULP Act. In such cases, the local area where the Bombay Act applied AJN 13 would have a representative union and the other part would have a recognised union. Considering this possibility, the legislature has used the words “union or unions”. Mr. Dharap took strong exception to the said said bank' s attempt to tender in this court affidavits of employees who claim to be members of Solapur Zilla Sahakari Bank Karmachari Sanghatana. He submitted that the name of this union does not appear in the affidavits in reply filed by the said bank or filed by the Government. Mr. Dharap submitted that assuming there is such a union, it does not fulfill the requirement of being registered as a representative union under the Bombay Act. Mr. Dharap submitted that the said bank's opposition to the petitioner's stand is malafide. 13. Mr. Dharap further submitted that if any dispute is to be raised about registration of a union as a representative union, the provision of sections 15 and 16 of the Bombay Act will have to be adhered to. The employer has no right to make a grievance. There is no appeal filed by any of the unions under section 20 of the Bombay Act. The appeal is filed by the said bank under AJN 14 sections 20 and 24(A) of the Bombay Act. Such an appeal can be filed only by a party to a proceeding. The said bank was never and can never be a party to the proceedings pertaining to registration of the union as a representative union and, therefore, the appeals which are filed by the said bank are without substance. In fact, no dispute is pending as of today. 14. Mr. Dharap further submitted that interpretation sought to be put on section 73-BB by the said bank will disturb industrial harmony and peace and, therefore, this court should reject it. In support of his submissions, Mr. Dharap relied on the judgments in Shramik Utkarsh Sabha v. Raymond Wollen Mills Ltd., 1995 1 CLR 607, Bank Karmachari Sangh v. K.R. Pawar, Member, Industrial Court, Pune, 1996 1 CLR 99, Co-operative Bank Employees Union v. The State of Maharashtra, 2004 1 CLR 582, Sahakari Bank Karmachari Union v. Assistant Registrar of Unions, 2005 (4) Mah.L.J. 168, Shri J.S.K. Ltd. v. Rashtriya Sahakar Kamgar Sangh, 1992 (Co-operative Cases), Apex Marketing Corporation v. State of Maharashtra & Ors. 1987 11 AJN 15 CLR 137, Babaji Garad v. Nashik Merchants Cooperative Bank & Ors., (1984) 2 SCC 50, Rajendra Jagtap & Ors. v. Baramati Taluka Sahakari Kamgar Sabha & Ors., 2007 1 CLR 455, Navjagneet Labour Union v. Ahmedabad Electricity Co. Ltd. 2007 III CLR 430 and Fashion Production Mazdoor Sabha v. Smita P. Dalvi & Ors., 1985 11 CLR 314. Mr. Dharap also submitted written submissions. 15. Written submissions have also been filed by the said bank. Drawing our attention to the written submissions, Mr. Godbole, learned counsel for the said bank submitted that the relief of cancellation of the Election Notification dated 26/6/2007 and Notification dated 25/8/2007declaring results to the posts of Chairman, Vice Chairman, cannot be granted because the elected members of the Managing Committee of the said bank who are likely to be affected are not made parties. He submitted that the petitioner has no locus to claim such relief since even if the representatives of the petitioner were to be selected as members of the Managing Committee under section 73-BB, they have no AJN 16 right to vote in the elections of the Chairman and Vice Chairman. 16. Mr. Godbole further submitted that if it is held that the petitioner-union alone has exclusive right to select the two employees, that will defeat provisions of section 73-BB and the constitutional mandate contained in Article 43-A. He submitted that the intention of the legislature behind enacting section 73-BB is to have representatives of the employees in the management of the society. The concept of an industry or an establishment which are relevant and germane only for the purposes of the Bombay Act or MRTU & PULP Act are not relevant here. 17. Mr. Godbole relied on the judgment of the Supreme Court in Saraswat Co-operative Bank Ltd. & Ors. v. P.G. Koranne & Ors., AIR 1983 Bom. 317. He submitted that it is clearly laid down in this judgment that the expression “recognized union” used in section 73-BB cannot be given the meaning as given in the MRTU & PULP Act. Mr. Godbole submitted that MRTU & PULP Act does not apply to Banking industry. The Bombay Act does not have the AJN 17 concept of “recognized union”. It defines primary union, qualified union, registered union and representative union. If the petitioner's argument is accepted, the words “recognized union” used in section 73-BB will have to be read as representative union which cannot be done. 18. Mr. Godbole further submitted that the statutory intention behind section 73-BB is to give expression to the wishes of the majority of employees and, therefore, section 73-BB provides for democratic process of secret ballot in case of any dispute. Mr. Godbole submitted that that dispute would also include the question whether a union is recognized or not. Mr. Godbole further submitted that if it is held that whether the petitioner is a recognized union or not is not a dispute contemplated by section 73-BB that would render section 73-BB meaningless. Mr. Godbole submitted that majority of the employees of the said bank have voluntarily submitted affidavits stating that they do not want the two nominees of the petitioner union to be their representatives and this fact may be taken into consideration. We have at the outset AJN 18 noted that we have refused to take such belated affidavits on record at this stage. We shall deal with this argument at the appropriate stage. 19. Mr. Godbole further submitted that section 73-BB uses the words union or unions. If the interpretation sought to be put on the section by the petitioner-union is accepted, the words “or unions” would become otiose. Similarly, as at least fifty employees are required before a union can be registered as a recognised union under the MRTU & PULP Act, many co-operative banks where number of employees is more than 25 but less than 50 would not have a recognised union. This would result in a very absurd situation and, therefore, the argument of the petitioner-union cannot be accepted. 20. Mr. Godbole relied on All India Bank Officers Confederation and Ors. v. Union of India & Ors. (1989) 4 SCC 90, where the circular of the Central Government expressing that the Government wishes to appoint any officer of proven ability and character to the AJN 19 Board of Directors of a nationalized bank irrespective of his affiliation with any association, was under challenge as being undemocratic and contrary to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1971. Mr. Godbole pointed out that the Supreme Court struck down the circular observing that in case of employees, election is indeed the most logical, the most appropriate, the most democratic and certainly the most advantageous form of representation. 21. Mr. Godbole also relied on the judgment of the Supreme Court in Babaji Garad's case (supra) where the Supreme Court was considering section 73-B of the MCS Act which provides for reservation of seats on Committees of certain societies for Scheduled Tribes, Other Backward Classes, etc. It was inter alia, urged that section 73-B provides representation to specified classes mentioned therein and that must be held to be mandatory and not the method by which the representation is ensured. It was urged that any one of the three modes can be adopted to comply with the mandatory part of section 73-B and co-option can ensure AJN 20 representation to the qualified persons to fill in reserved seats. The Supreme Court held that the struggle to get direct representation cannot be thwarted in this manner. The Supreme Court observed that the method of co-option denudes the power of the constituency to elect members and is usurped by a small body like the Board of Directors. The Supreme Court observed that co- option could never be equated with election much less accorded precedence over election by the general body of the members that is the constituency. These judgments according to Mr. Godbole emphasise the importance of election. 22. Mr. Godbole also relied on Maheshwari Fish Seed Farm v. T.N. Electricity Board, 2004 (4) SCC 705 in support of his submission that a statute cannot be interpreted in accordance with another statute more so when such statutes are not in pari materia. In that case, the Supreme Court was considering whether pisci culture is agriculture. Attention of the Supreme Court was drawn to the definition of the term “agriculture” as given in the definition sections of several other enactments. In this context, the Supreme AJN 21 Court observed as under : “....... The definition of the term in one statute does not afford a guide to the construction of the same in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally.” The Supreme Court further observed that - “Secondly, it is common knowledge that the definition coined by the legislature for the purpose of a particular enactment is often an extended or artificial meaning so assigned as to fulfill the object of that enactment. Such definitions given in other enactments cannot be freely used for finding out meaning to be assigned to a term of common parlance used in an altogether different setting.” 23. Mr. Godbole relied on the following observations of the Supreme Court in Apex Co-operative Bank of Urban Bank of Maharashtra & Goa Ltd. v. Maharashtra State Co-operative Bank Ltd. & Ors. (2003) 11 SCC 66. “The term 'Co-operative Bank' has been defined in AJN 22 the Banking Regulation Act and only includes a State Co-operative Bank or a Central Co-operative Bank or a primary Co-operative Bank. Reference to the term 'Co-operative Bank' in the Multi-State Act is of no assistance. When a term is specifically defined in a statute then for purposes of that statute that term cannot bear a meaning assigned to it in another statute. One cannot ignore the specific definition given in the Banking Regulation Act and apply some other definition set out in some other statute”. 24. Mr. Godbole also relied on a judgment of this court in Co- operative Bank Employees' Union, Sindhudurg & Ors. v. State of Maharashtra & Ors., 2004 1 CLR 582. In that case, the petitioner-union nominated petitioners 2 and 3 as employee- Directors on the Board of Directors of the respondent-bank. The Bank refused to accept the nomination made by the petitioner- union on the ground that petitioners 2 and 3 are working in the grade of Junior Officer and they are not employees within the meaning of the Bombay Act. This court rejected this submission after observing that if the legislature intended to confine the application of the section only to the employees as defined by the Bombay Act, the legislature would have made a specific provision for incorporating the definition in the section. This court further AJN 23 observed that there is nothing in