1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 1974 OF 2008 Bharatiya Kamgar Sena, ) Prafulban Society, R.K. Vaidya Road, ) Dadar (West), Mumbai – 400 028. ).. Petitioner Versus 1. Chefair Employees Guild, ) having its Office at Chefair Flight ) Catering, Sahar Airport, ) Mumbai – 400 099. ) 2. M/s. Chefair Flight Catering, ) office at Sahar Airport, ) Mumbai – 400 099. ).. Respondents Shri M.D. Nagle for the Petitioner. Shri A.V. Bukhari along with Shri B.V. Bukhari for Respondent No.1. Ms Pooja V. Thorat i/by M/s. M.V. Kini & Co. for Respondent No.2. CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J. JUDGMENT RESERVED ON : 10TH JUNE 2009. JUDGMENT PRONOUNCED ON : 25TH JUNE 2009 1. Rule, returnable forthwith. By consent of parties, Rule called out and heard forthwith. 2 2. The Petitioner Union has been functioning as a registered trade Union of M/s. Chefair Flight Catering, Respondent No.2. In the passage of time, they have been signing different settlement with Respondent No.2 relating to the conditions of service matters of member employees and other matters related thereto. Respondent No.1 – Union on 28th October, 2003 filed an application under Section 11 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 ( hereinafter referred to as the “Act”) for the period from April, 2003 to September, 2003, notice of which was displayed on 17th December, 2003. In the proceedings, the Petitioner – Union filed an application for impleadment as a necessary party which was allowed by the Industrial Court, Mumbai. Thereafter, on 5th January, 2004, the Petitioner-Union filed the Written statement opposing the application for recognition filed by Respondent No.1-Union, and on 6th February, 2004 Respondent No.1 filed an application for appointment of Investigating Officer for verification of relevant documents/records of Respondent No.1 – Union which was allowed and the matter was referred for investigation to the Investigating Officer by the Industrial Court. The Investigating Officer submitted his report after verifying the records of the Petitioner Union as well as Respondent No.1 Union on 1st July, 2004 and it recorded 3 the finding that there was 391 total employees, out of which the Petitioner Union had claimed 259 as their members and Respondent No.1 Union had claimed 251 as their members. The Investigating Officer observed that 171 employees were common members of both the Unions and accordingly stated that Respondent No.1 had total membership of 64.19 % and if the common members were excluded, then the membership would be 20.46%. Objection to the report of the Investigating Officer was filed by Respondent No.1. The Petitioner filed an application for rejection of the application of Respondent No.1 Union on the ground that Respondent No.1 Union had got membership of 20.46% which was below 30% and as such the application could not be entertained and decided in terms of the provisions of the Act. 3. The parties led evidence before the Industrial Court. After hearing the parties, the Industrial Court rejected the application of Respondent No.1 Union vide its order dated 16th September, 2005. An application had also been filed on behalf of Respondent No.1 on 28th October, 2005 praying for liberty to file affidavits on record of 112 employees who were common members, which was opposed and this application was disposed of vide order dated 6th October, 2007 by the Industrial Court granting liberty to file affidavit as well as liberty to the 4 Petitioner to lead further evidence, if any. 4. After completion of these proceedings, vide order dated 21st July, 2008, the Industrial Court granted recognition to Respondent No.1- Union as recognized union of Respondent No.2- Company. 5. Aggrieved by this order, the Petitioner has filed the present Petition under Article 226 of the Constitution of India. 6. The learned Industrial Court in the impugned judgment dated 21st July, 2008 has not recorded detailed reasons for coming to the conclusion that Respondent No.1’s application need to be allowed it only referred to the findings recorded by the Investigating Officer as well as to the fact that the Petitioner had submitted that it wanted to file an application for recognition but the same had not been filed by it for a period of four and half years and it neither got registered its claim for recognition nor had it taken any decision to claim any recognition. 7. One of the important aspects in the case in hand is that vide order dated 6th October, 2007, the Industrial Court had allowed the application filed by the Respondent – Union to place on record 112 5 affidavits stated to be of the common members belonging to it specified by Annexure-C to the report of the Investigating Officer. These affidavits were taken on record and right had been granted to the Petitioner Union to cross examine those persons as well as to lead further evidence, if necessary. This order was accepted by the parties and was not questioned before any competent forum. In fact, in furtherance to this order, the parties acted on in the proceedings. In the circumstances, reliance placed by the learned Counsel appearing for Respondent No.2 – Company in the case of Bharatiya Kamgar Sena v. Vishwa Kalyan Kamgar Sanghatana, Pune & Ors., reported in 2007 II CLR 432 is hardly of any consequence as the order appointing Investigating Officer had also been accepted by the parties, so was the order dated 6th October, 2007. 8. But in the present case, there is no clear finding arrived at by the Industrial Court based on the evidence led before it. The judgment under challenge before us appears to be contradictory on facts and conclusions. On the one hand, the Industrial Court has heavily relied upon the report of the Investigating Officer as afore-referred and it was unambiguously held in that report that there were nearly 171 common members. This finding of fact was not held to be erroneous or illegal by the Industrial Court and, if that be so, then either of the parties would 6 have less than the required strength of 30% of membership. In other words, none of the Unions could get recognition and their applications could hardly be allowed in light of the report of the Investigating Officer. On the other hand, the learned Industrial Court referred to the affidavits of 112 workmen which were filed before the Court in order to repel the findings of the Investigating Officer in relation to the common membership. Strangely, the learned Industrial Court did not clearly rely upon all the affidavits as some of them did not inspire confidence. The cross-examination of some of the deponents, according to the Judge, even created doubt on the veracity of the affidavits. It will be useful to refer to the following findings recorded by the learned Judge in the impugned judgment which reads as under :- “12. Having considered all the aspects of the matters find that 171 common members are truly common since they were members of both the union of the relevant time the fact the fact that their names were in the register of the non-applicant Union is indisputable. In fact, this has been admitted by the 112 members examined by the applicant. The admission is in their affidavit itself. The only rider put by them is that their names were shown in the record of the non-applicant union wrongly and mischievously said cross-examination of some of the witness indicate that atleast some of them either do not known what they have stated in the affidavit. One has gone to the extent of admitting the membership of the non-applicant union. Another one admits that his affidavit is false. Apart from that the I.O. report is based on the scrutiny of the original record. I am inclined to 7 accept the I.O. report. I, therefore, find that including the common membership, the membership of the applicant, at the relevant time, was 64.15% and excluding the common members it was 20.45%. Minimum membership required for grant of recognition is 30%. Now the contention of the non-applicant is that the common membership has to be ignored. The contention is rival but in a case where the contesting union is claiming recognition. In the present case, the non-applicant No.2 Union had filed written statement on 5.1.2004 stating therein that the non-applicant No.2 has reserved its right for filing an application for recognition as and when required. Even after lapse of over 4 ½ years the non applicant No.2 has neither Registered its claim for recognition nor has taken any decision to claim recognition. Under circumstances there is no bar for registering the applicant as a recognized union for the non-applicant No.1 undertaking. .....” 9. It is interesting to note the contradictory observations made in the opening paragraph of the reasoning part of the impugned judgment, which reads as under :- “5. Having gone through the entire record, and having considered the submissions made, I find that the applicant may not be having majority of the members on its side, but the total membership exceeds 30%, as required in law, and the applicant has not incurred disqualification.” 10. From the above findings, it is clear that the learned Court has despite above two specific findings and the evidence has allowed the application for recognition filed by Respondent No.1 Union in the Writ 8 Petition. If the above findings are correct, it is more than doubtful as to how the application could be allowed because the number of common members in absence of proper affidavits would be so high that the condition of minimum requisite percentage of membership would not be satisfied. The reasoning given by the learned Judge, therefore, is not in line and conformity with the conclusions arrived at in the impugned judgment. It is a settled principle that for a judgment to be sustained, its reasoning must lead to the conclusions arrived at in the judgment on the basis of the evidence and pleadings of the parties. 11. For these reasons, we are unable to accept the contentions raised on behalf of Respondent No.1 Union and the impugned order in the present Writ Petition is, therefore, liable to be set aside. Consequently, Rule is made absolute. The impugned order dated 21st July 2008 is set aside and the matter is remanded for being decided afresh after hearing the parties in accordance with law. No order as to costs. CHIEF JUSTICE S.C. DHARMADHIKARI, J uday/judgments09/wpl-1974.08final