:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 130 OF 2002 LETTERS PATENT APPEAL NO. 130 OF 2002 LETTERS PATENT APPEAL NO. 130 OF 2002 IN IN IN WRIT PETITION NO. 6154 OF 2001 WRIT PETITION NO. 6154 OF 2001 WRIT PETITION NO. 6154 OF 2001 1. Rajendra Zumber Jagtap ] At and Post Vanewadi ] 2. Chandrakant Sopana Salunkhe ] At and Post Hol, Tal:Baramati] Dist : Pune ] 3. Ravindra Somnath Jamdade, ] At & Post Nimbut ] Tal : Baramati, Dist : Pune ] 4. Sunil Ashokrao Yadav ] At & Post Vanewadi ] Tal : Baramti, Dist: Pune ] 5. Hanumant Krishna Gadadare ] At & Post Khandobachi Wadi ] Tal: Baramati, Dist : Pune ] 6. Balasaheb Chandulal Rane ] Someshwarnagar, Tal: Baramati] Dist : Pune ] 7. Sanjay Shankar Jagdale ] Someshwarnagar, Tal: Baramati] Dist : Pune ] 8. Manoihar Sadashiv Nazirkar ] At & Post Nazare,, Tal: ] Purender, Dist: Pune ] 9. Ganpat Rambhau Pokale ] At & Post Nira, Tal: Purender] Dist: Pune ] 10. Sanjay Gulabrao Gaikwad ] Someshwarnagar, Tal: Baramati] Dist : Pune ] 11. Dnyaneshwar Dagadu Dagade ] At & Post Andori, Tal: ] Khandala, Dist : Satara ] 12. Dilip Shivram Malshikare ] At & Post Korale, Dist: ] Baramati, Dist : Pune ] 13. Kashinath Balasaheb Raut ] At & Post Rautwadi, ] Tal: Purender, Dist : Pune ] 14. Govind Tukaram Suryawanshi ] At & Post Wanewadi, Tal: ] :2: Baramati, Dist : Pune ] 15. Jagannath Bhiku Bansode ] At & Piost Nimbut, Tal : ] Baramati, Dist : Pune ] 16. Sanjay Narayan Pharande ] At & Post Murum, Tal : ] Baramati, Dist : Pune ] 17. Shamkant Baban Wable ] At & Post Nimbut, Tal: ] Baramati, Dist : Pune ] 18. Bagwan Sahebrao Shedge ] At & Post Nimbut, Tal : ] Baramati, Dist: Pune ] 19. Sandip Mohan Lokhade ] At & Post Nimbut, Tal: ] Baramati, Dist : Pune ] 20. Popat Dinkar Khalate ] At & Post Late, Tal : ] Baramati, Dist : Pune ] 21. Appasaheb Rambhau Kale ] Someshwarnagar, Tal : ] Baramati, Dist : Pune ] 22. Sabhaji Nanasaheb Malshikare ] At & Post Korale, Tal : ] Baramati, Dist : Pune ] 23. Sunil Dnyadeo Kshirsagar ] At & Post Nimbut, Tal : ] Baramati, Dist : Pune ] 24. Rahul Jayaram Sorate ] At & Post Karanje, Tal : ] Baramati, Dist : Pune ] 25. Maduker Eknath Hirve ] At & Post Wadgaon, Tal : ] Baramati, Dist : Pune ]..Petitioners versus 1. Baramati Taluka Sakhar ] Kamgar Sabha, Someshwarnagar] Taluka Baramati, Dist : Pune ] Through its General Secretary] 2. The Managing Director, ] Someshwar Sahakari Sakhar ] Karkhana Ltd, Someshwarnagar ] Tal: Baramati, Dist: Pune ] 3. The Industrial Court, ] PMT Commercial Building ] :3: Swargate, Pune 411 042 ]..Respondents Mr. Shekhar Naphade, Counsel, i/b. M/s. Haresh Mehta & Co. for the Petitioners/ Mr. P. M. Patil for the Respondent No.1. Mr. K. S. Bapat for the Respondent No.2. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & Smt. R. S. DALVI, JJ. Smt. R. S. DALVI, JJ. Smt. R. S. DALVI, JJ. DATE : 7TH DECEMBER, 2006 DATE : 7TH DECEMBER, 2006 DATE : 7TH DECEMBER, 2006 ORAL JUDGMENT : (Per : D. G. Deshpande, J.) ORAL JUDGMENT : (Per : D. G. Deshpande, J.) ORAL JUDGMENT : (Per : D. G. Deshpande, J.) 1. Heard Counsel for the Petitioners and the Respondent Nos. 1 and 2. 2. The impugned order of the Single Judge came to be passed in Writ Petition No. 6154 of 2001 on 6.3.2002, by which the Writ Petition was dismissed, and, therefore this Letters Patent Appeal. 3. Respondent No.1 is the Recognized Union, Respondent No.2 is the Managing Director of Someshwar Sahakari Sakhar Karkhana Ltd. and the petitioners who are 25 in number are the employees of the said Sakhar Karkhana. Complaint came to be filed by the respondent No.1 against the management on the ground :4: that management has committed acts of unfair labour practices. Relief that was sought in the complaint was that members, on whose behalf the complaint was filed and who were enlisted in Annexure ’A’ of the complaint, should be made permanent from the date of their appointment and they should be directed to be paid monetary benefits of permanent workmen. 4. In the course of time or proceedings several workmen were made permanent by the management, and therefore, those workmen who were made permanent moved the Industrial Court by an application that their names be deleted from Annexure ’A’ because they did not intend to pursue the complaint. The Industrial Court after hearing the parties dismissed that application on the ground that it was not maintainable. This was done by the Industrial Court after framing for consideration the following point: "Whether individual employee / member of the "Whether individual employee / member of the "Whether individual employee / member of the Complainant Union can be permitted to appear and Complainant Union can be permitted to appear and Complainant Union can be permitted to appear and file affidavit / pursis to withdraw the complaint file affidavit / pursis to withdraw the complaint file affidavit / pursis to withdraw the complaint to his extent?" to his extent?" to his extent?" 5. Against this order of the Industrial Court, the :5: present petitioners, who are 25 in number filed the Writ Petition. It was their contention that even if the petitioners were members of the respondent No.1 Union they cannot be prevented from moving the Industrial Court to get their names deleted from the complaint filed by the Union. The Single Judge after referring to the nature of the complaint observed as under: "The complaint has been filed under the "The complaint has been filed under the "The complaint has been filed under the provisions of the M.R.T.U and P.U.L.P. Act which provisions of the M.R.T.U and P.U.L.P. Act which provisions of the M.R.T.U and P.U.L.P. Act which also provides for recognition of a recognised also provides for recognition of a recognised also provides for recognition of a recognised union. The party before the Industrial Court is union. The party before the Industrial Court is union. The party before the Industrial Court is the recognised Union, which has filed a the recognised Union, which has filed a the recognised Union, which has filed a complaint. The dispute raised is on behalf of a complaint. The dispute raised is on behalf of a complaint. The dispute raised is on behalf of a body of workmen. The dispute raised is an body of workmen. The dispute raised is an body of workmen. The dispute raised is an Industrial Dispute on behalf of the members of Industrial Dispute on behalf of the members of Industrial Dispute on behalf of the members of other workers employed in the Industry. The other workers employed in the Industry. The other workers employed in the Industry. The Industrial Court in such a case will be called Industrial Court in such a case will be called Industrial Court in such a case will be called upon to decide whether there is an act of unfair upon to decide whether there is an act of unfair upon to decide whether there is an act of unfair Labour Practices committed by the Management. Labour Practices committed by the Management. Labour Practices committed by the Management. The settlement between some workers and the The settlement between some workers and the The settlement between some workers and the Management by itself will not result in the Management by itself will not result in the Management by itself will not result in the Unfair Labour Practices ceasing to exist, if on Unfair Labour Practices ceasing to exist, if on Unfair Labour Practices ceasing to exist, if on the date of the complaint there was in fact as the date of the complaint there was in fact as the date of the complaint there was in fact as act committed which amounted to an unfair Labour act committed which amounted to an unfair Labour act committed which amounted to an unfair Labour Practices." Practices." Practices." It is also observed subsequently that : "In a dispute of collective nature individual "In a dispute of collective nature individual "In a dispute of collective nature individual persons have no right to be joined as proper or persons have no right to be joined as proper or persons have no right to be joined as proper or necessary parties. Their presence is not necessary parties. Their presence is not necessary parties. Their presence is not necessary for considering the grant of relief or necessary for considering the grant of relief or necessary for considering the grant of relief or making the order passed effective." making the order passed effective." making the order passed effective." And in this background of the matter, dismissed the writ petition and hence this Letters patent Appeal. :6: 6. Counsel for the petitioners drew our attention to Section 21 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the "Trade Union Act") and Section 33 and 33A of The Bombay Industrial Relations Act, 1946 (hereinafter referred to as the "Act of 1946"). He also contended that what the petitioners wanted that in the complaint lodged by the Respondent No.1 Union they do not want to be a party and their name should be deleted from the Annexure ’A’, referred to above, and, no provision of law could prevent them from doing so. He also contended that this aspect of the matter has not been considered in proper perspective by the Single Judge, and therefore, Letters Patent Appeal was required to be allowed. 7. On the other hand, counsel for the Union - Respondent No.1 urged that Sections 33 and 33-A of the Act of 1946, clearly bar individuals from appearing in all proceedings before the Industrial Court and the right to do so was given to a Recognised Union. He also urged that there was no dispute that the Respondent No.1 was a Recognised :7: Union, and, therefore both the Industrial Court and the Single Judge rightly dismissed the petition. Our attention was drawn by the Counsel for the Respondent No.1 to the following Judgments in support of his contention : 1) Supreme Court Judgment reported in 1971(1) 1) Supreme Court Judgment reported in 1971(1) 1) Supreme Court Judgment reported in 1971(1) L.L.J. 274 Santuram Khudal vs. Kimatrai L.L.J. 274 Santuram Khudal vs. Kimatrai L.L.J. 274 Santuram Khudal vs. Kimatrai Printers, Processors and others. Printers, Processors and others. Printers, Processors and others. 2) Supreme Court Judgtment reported in (1995) 3 2) Supreme Court Judgtment reported in (1995) 3 2) Supreme Court Judgtment reported in (1995) 3 S.C.C. 78 Shramik Uttarsh Sabha vs. Raymond S.C.C. 78 Shramik Uttarsh Sabha vs. Raymond S.C.C. 78 Shramik Uttarsh Sabha vs. Raymond Woollen Mills Ltd. & Others. Woollen Mills Ltd. & Others. Woollen Mills Ltd. & Others. 3) Judgment of Single Bench of this Court 3) Judgment of Single Bench of this Court 3) Judgment of Single Bench of this Court reported in 1996(1) Mh.L.J. 539 Bank Karmachari reported in 1996(1) Mh.L.J. 539 Bank Karmachari reported in 1996(1) Mh.L.J. 539 Bank Karmachari Sangh vs. K. R. Pawar, Member, Industrial Sangh vs. K. R. Pawar, Member, Industrial Sangh vs. K. R. Pawar, Member, Industrial Court, Pune. Court, Pune. Court, Pune. 4) Judgment of Division Bench of this Court 4) Judgment of Division Bench of this Court 4) Judgment of Division Bench of this Court reported in 2006 1 CLR 543 Hindustan Lever reported in 2006 1 CLR 543 Hindustan Lever reported in 2006 1 CLR 543 Hindustan Lever Limited vs. Hindustan Lever Employees Union & Limited vs. Hindustan Lever Employees Union & Limited vs. Hindustan Lever Employees Union & Anr. Anr. Anr. 8. On the basis of the aforesaid four judgments and :8: the provisions of the aforesaid Act, counsel for the Respondent No.1 contended that the Petitioners had no right to appear before the Industrial Court and contend that their names should be deleted. According to him, if this was permitted then every employer will win over, by whatever means available, the individual employee and enter into agreement with them and frustrate the existence of trade unions’ affecting power of collective bargaining which may ultimately affect the welfare of the workmen. 9. In our considered opinion, we do not find any force in the submissions made by the Counsel for the petitioners. Section 33A of the Act of 1946, upon which reliance was placed by him, is of no help to him, because it refers to disputes between employees and employer referred to arbitration of a Labour Court or the Industrial Court under Section 72. Section 72 is reproduced as under: "72. Disputes between employees and employees "72. Disputes between employees and employees "72. Disputes between employees and employees may be referred by [State] Government to may be referred by [State] Government to may be referred by [State] Government to arbitration of Labour Court or Industrial Court.- arbitration of Labour Court or Industrial Court.- arbitration of Labour Court or Industrial Court.- (1) Notwithstanding anything hereinbefore (1) Notwithstanding anything hereinbefore (1) Notwithstanding anything hereinbefore contained the [State] Government may, at any time contained the [State] Government may, at any time contained the [State] Government may, at any time on the report of the Labour officer or on its own on the report of the Labour officer or on its own on the report of the Labour officer or on its own motion, refer any industrial dispute between motion, refer any industrial dispute between motion, refer any industrial dispute between employers and employees to the arbitration of a employers and employees to the arbitration of a employers and employees to the arbitration of a Labour Court or the Industrial Court. Labour Court or the Industrial Court. Labour Court or the Industrial Court. :9: (2) The provisions of this Chapter with such (2) The provisions of this Chapter with such (2) The provisions of this Chapter with such modifications as may be prescribed shall apply to modifications as may be prescribed shall apply to modifications as may be prescribed shall apply to such arbitration. such arbitration. such arbitration. (3) The employers of such employees shall in the (3) The employers of such employees shall in the (3) The employers of such employees shall in the prescribed manner be made parties to such prescribed manner be made parties to such prescribed manner be made parties to such arbitration." arbitration." arbitration." The very wording of Section 72 will show that it covers altogether different area and present dispute did not come before the Industrial Court on a reference by the Government. The initiative came by way of complaint lodged by the Union, therefore, Section 72 has no application in the instant case and consequently the present petitioners cannot bang upon the provisions of Section 33A of the Act of 1946. Section 21 on the other hand of the Trade Unions Act gives right of appearance or right to act only to a recognised union. 10. All the four judgments relied upon by the counsel for the Respondent No.1, clearly laid down that individual workmen has no right of appearance in case of a dispute before the industrial Court and when they are represented by a Recognised Union. In paragraph 13 of Santuram’s case, the Supreme Court has clearly held: " Now a combined reading of Ss.80, 27A, 30, 32 " Now a combined reading of Ss.80, 27A, 30, 32 " Now a combined reading of Ss.80, 27A, 30, 32 :10: and 33 of the Act leaves no room for doubt that and 33 of the Act leaves no room for doubt that and 33 of the Act leaves no room for doubt that consistent with its avowed policy of preventing consistent with its avowed policy of preventing consistent with its avowed policy of preventing the exploitation of the workers and augmenting the exploitation of the workers and augmenting the exploitation of the workers and augmenting their bargaining power, the Legislature has their bargaining power, the Legislature has their bargaining power, the Legislature has clothed the representative-union with plenary clothed the representative-union with plenary clothed the representative-union with plenary power to appear or act on behalf of the employees power to appear or act on behalf of the employees power to appear or act on behalf of the employees in any proceedings under the Act and has deprived in any proceedings under the Act and has deprived in any proceedings under the Act and has deprived the individual employees or workmen of the right the individual employees or workmen of the right the individual employees or workmen of the right to appear or act in any proceedings under the Act to appear or act in any proceedings under the Act to appear or act in any proceedings under the Act where the representative-union enters appearance where the representative-union enters appearance where the representative-union enters appearance or acts as representative of employees...." or acts as representative of employees...." or acts as representative of employees...." The Judgment of the Supreme Court in Girja Shankar Kashi Ram vs.The Gujarat Spinning and Weaving Co. Ltd. (1962) 2 S.C.R. 890, was relied upon in Santuram’s case, wherein it was observed as follows: "The result, therefore, of taking Ss. 27A, 32 "The result, therefore, of taking Ss. 27A, 32 "The result, therefore, of taking Ss. 27A, 32 and 33 together is that S. 27A first places a and 33 together is that S. 27A first places a and 33 together is that S. 27A first places a complete ban on the appearance of an employee in complete ban on the appearance of an employee in complete ban on the appearance of an employee in proceedings under the Act once it has commenced proceedings under the Act once it has commenced proceedings under the Act once it has commenced except through the representative of employees. except through the representative of employees. except through the representative of employees. But there are two exceptions to this ban But there are two exceptions to this ban But there are two exceptions to this ban contained in SS. 32 and 33. Section 32 is contained in SS. 32 and 33. Section 32 is contained in SS. 32 and 33. Section 32 is concerned with all proceedings before the concerned with all proceedings before the concerned with all proceedings before the authorities and gives power to the authorities authorities and gives power to the authorities authorities and gives power to the authorities under the Act to permit an employee himself to under the Act to permit an employee himself to under the Act to permit an employee himself to appear even though a representative of employees appear even though a representative of employees appear even though a representative of employees may have appeared but this permission cannot be may have appeared but this permission cannot be may have appeared but this permission cannot be granted where the representative-union has granted where the representative-union has granted where the representative-union has appeared as a representative of employees. appeared as a representative of employees. appeared as a representative of employees. Section 33 which is the other exception allows an Section 33 which is the other exception allows an Section 33 which is the other exception allows an employee to appear through any person in certain employee to appear through any person in certain employee to appear through any person in certain proceedings only even though a representative of proceedings only even though a representative of proceedings only even though a representative of employees might have appeared; but here again it employees might have appeared; but here again it employees might have appeared; but here again it is subject to this that no one else, not even the is subject to this that no one else, not even the is subject to this that no one else, not even the employee who might have made the application, employee who might have made the application, employee who might have made the application, will have the right to appear if a representative will have the right to appear if a representative will have the right to appear if a representative union has put in appearance as the representative union has put in appearance as the representative union has put in appearance as the representative of employees. It is quite clear, therefore, that of employees. It is quite clear, therefore, that of employees. It is quite clear, therefore, that the Scheme of the Act is that where a the Scheme of the Act is that where a the Scheme of the Act is that where a represnetative-union appears in any proceeding represnetative-union appears in any proceeding represnetative-union appears in any proceeding under the Act, no one else can be allowed to under the Act, no one else can be allowed to under the Act, no one else can be allowed to appear not even the employee at whose instance appear not even the employee at whose instance appear not even the employee at whose instance :11: the proceedings might have begun under S. 42(4). the proceedings might have begun under S. 42(4). the proceedings might have begun under S. 42(4). But where the appearance is by any representative But where the appearance is by any representative But where the appearance is by any representative of employees other than a representative-union of employees other than a representative-union of employees other than a representative-union authorities under S. 32 can permit the employee authorities under S. 32 can permit the employee authorities under S. 32 can permit the employee to appear himself in all proceedings before them to appear himself in all proceedings before them to appear himself in all proceedings before them and further the employee is entitled to appear by and further the employee is entitled to appear by and further the employee is entitled to appear by any person in certain proceedings specified in S. any person in certain proceedings specified in S. any person in certain proceedings specified in S. 33. But whenever the representative-union has 33. But whenever the representative-union has 33. But whenever the representative-union has made an appearance, even the employee cannot made an appearance, even the employee cannot made an appearance, even the employee cannot appear in any proceedings under the Act and the appear in any proceedings under the Act and the appear in any proceedings under the Act and the representation must be confined only to the representation must be confined only to the representation must be confined only to the representative-union. The complete ban, representative-union. The complete ban, representative-union. The complete ban, therefore, laid by S. 27A on representation therefore, laid by S. 27A on representation therefore, laid by S. 27A on representation otherwise than through a representative of otherwise than through a representative of otherwise than through a representative of employees remains complete where the employees remains complete where the employees remains complete where the representative of employees is the representative of employees is the representative of employees is the representative-union that has appeared; but if representative-union that has appeared; but if representative-union that has appeared; but if the representative of employees that has appeared the representative of employees that has appeared the representative of employees that has appeared is other than the representative-union then Ss. is other than the representative-union then Ss. is other than the representative-union then Ss. 32 and 33 provide for exceptions with which we 32 and 33 provide for