1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3170 OF 1996 PETITIONER: Vyapari Sahakari Bank Maryadit, Chatigalli, Solapur. VERSUS RESPONDENTS: 1) Ambure P.A. 2) Mangrule J.S. 3) Bet P.G. 4) Chandak R.S. 5) Dayama L.S. All respondents residing at Block No. 9, Sanmati Nagar, Near Bharati Vidyapeeth, Vijapur Road, Solapur. 6) Shri R.U. Ingule, Member, Industrial Court, Maharashtra, having his office at Solapur. WITH 2 WRIT PETITION NO. 3173 OF 1996 PETITIONER: Vyapari Sahakari Bank Maryadit, Paschim Mangalwar Peth, Solapur. VERSUS RESPONDENTS: 1) Rajgopal Malmukund Chandak, Age: Adult, Occupation: Service, residing at 11/7, Nilanagar, Solapur. 2) Rajaram Apparao Dasgunde, Age: Adult, Occupation Service, Residing at 406, Paschim Mangalwar Peth, Solapur. 3) Laxminarayan Shrikisan Dayama, At & Post Bale, Near Khandoba Temple, Tal. North Solapur, Dist. Solapur. 4) Shankar Rachappa Motagi, Age: Adult, Occupation : Service, residing at 120, Gold Finch Peth, Solapur. 5) Balkrishna Shantaram Bhasme, Age: Adult, Occupation : Service, residing at 716, Paschim Mangalwar Peth, Solapur. 3 6) Jagannath Sharnappa Mangrule, Age: Adult, Occupation : Service, residing at 4/1, Budhwar Peth, Solapur. 7) Ratilal Kisanlal Bhandari, Age: Adult, Occupation : Service, residing at 194/1, Budhwar Peth, Solapur. 8) Nandkishor Jagannath Jaju, Age: Adult, Occupation : Service, Residing at Chandak Bagicha, Solapur. 9) Ramkrishna Manikchand Pardeshi, Age: Adult, Occupation : Service, residing at 139, South Kasaba, Solapur. 10) Rajgopal Maganlal Mantri, Age: Adult, Occupation : Service, residing at 139, Paschim Mangalwar Peth, Solapur. 11) Prashant Govind Bet, Age: Adult, Occupation : Service, residing at 15, Guruwar Peth, Solapur. 12) Prashantkumar Anant Ambure, Age: Adult, Occupation : Service, residing at 9-A, Sanmant Nagar, Vijapur Road, Solapur. 4 13) Shivaji Kallapa Lohar, Age: Adult, Occupation : Service,, residing at Bhawani Peth, Upase Wada, Solapur. 14) P.S.Rajmane, Age: Adult, Occupation : Service, residing at North Kasaba, Near Kirit Math, Solapur. 15) Shri R.E. Miniyar, First Labour Court, having his office at Solapur. 16) Shri R.U. Ingule, Member, Industrial Court, Maharashtra, having his office at Solapur. Mr.P.K.Rele, Advocate, with Mr. Piyush Shah, Advocate, for the Petitioner, Mr.Neel Helekar, Advocate, with Mr. S.M.Dharap, Advocate, for Respondents CORAM : V.C.Daga, J DATED : 7th June 2006 JUDGMENT : These two writ petitions, filed under Article 226 of the Constitution of India, are directed against two separate orders dated 5 15.1.1996 and 17.1.1996 respectively passed by the Industrial Court, Solapur; one rejecting contention of the employer that the strike resorted to by the respondents-employees of the petitioner Bank was illegal and by another order holding that the petitioner-Employer Bank has committed unfair labour practice under Item 8 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act for short) by recruiting employees during the period of legal strike. 2. These petitions involve common question of law based on identical facts; as such both petitions are being disposed of by this common judgment. Introductory Facts : 3. The petitioner is a Co-operative Society duly registered under the Maharashtra Co-operative Societies Act, 1960, engaged in the business of 6 banking, having its registered office at Solapur. 4. The respondents are the employees of the Bank and claimed to represent all employees-workers working in the Bank. 5. The employees of the Bank submitted their Charter of Demands on 4.3.1989. They claimed to have forwarded copies thereof to the concerned authorities as required by law. According to them, the Bank management did not pay heed to their demands. Consequently, in order to press their demands, the employees-workers on 6.4.1989 served strike notice on the Bank management in consonance with the provisions of the MRTU & PULP Act, 1971. 6. The respondents-employees of the Bank went on strike with the expiry of the notice period since there was no positive response from the Bank management to consider their demands. 7. The employees - workers 7 alleged that the petitioner Bank recruited some of the employees during the period of strike. Consequently, on 24.4.1989 the employees filed complaint under section 28 invoking item 8 of Schedule IV of MRTU & PULP Act, alleging unfair labour practice on the part of petitioner-Bank. 8. The complaint was tried on merits by the Industrial Court, Solapur and vide its judgment & order dated 17.1.1996, the Industrial Court was pleased to hold that the employer-Bank has committed unfair labour practice under Item 8, Schedule IV of MRTU & PULP Act and directed the Bank to cease & desist from continuing to commit unfair labour practice and also awarded the cost of Rs. 5,000/- payable to the complainant-employees. 9. The petitioner Bank during the pendency of the aforesaid complaint on 28.4.1989 filed before the Labour Court, Solapur, Strike BIR Application No. 1 of 1989 under Section 78, 79, 80A and 97 of the BIR Act, alleging illegal strike and sought declaration of illegality thereof. 8 10. The aforesaid application was tried by the Labour Court on its own merit and after hearing parties to the application, the Labour Court was pleased to reject the said application vide its order dated 5.8.1989 holding that the strike resorted to by the employees of the Bank was not illegal since provisions of the MRTU & PULP Act were followed. 11. Being aggrieved by the aforesaid order of the Labour Court dated 5.8.1989, the revisional jurisdiction of the Industrial Court, Solapur, was invoked by the petitioner-Bank. 12. The Industrial Court vide its judgment and order dated 15.1.1989 was pleased to hold that there was no need for serving approach notice under Section 42 (2) of the BIR Act on employer as it was open for the employees to opt to serve notice of strike under Section 24 of the MRTU & PULP Act. In this view of the matter, the Court held that it was obligatory on the part of petitioner- Bank to make reference to the Labour Court under Section 25 of the MRTU & PULP Act to 9 seek declaration of illegality of the strike, if it so desired. In other words, it was held that it was not open for the petitioner-Bank to resort to the provisions of the BIR Act to get the strike declared as illegal. 13. The petitioner Bank, not satisfied with the aforesaid two separate orders of the Industrial Court, has invoked writ jurisdiction of this Court to challenge the aforesaid orders dated 15th January, 1989 and 17th January, 1989. Rival Submissions : 14. Mr. P.K. Rele, learned senior counsel appearing with Mr. Piyush Shah, Advocate, would submit that it is not in dispute that the provisions of BIR Act and MRTU & PULP Act both are applicable to the industry in question. He, thus, submits that the employees covered under BIR Act cannot resort to a strike without compling with the provisions of the said BIR Act. 15. In the submission of 10 Mr.Rele, it was obligatory on the part of the employees to comply with the provisions of Section 42 of the BIR Act in general and sub-section (2) of Section 42 in particular, which deals with notice of change. According to him, Section 97 of the Act deals with strikes. Sub-Section (1) (b) of Section 97 provides that the strike shall be illegal if it is commenced or continued without giving notice in accordance with the provisions of Section 42 of the BIR Act. Admittedly, according to him, the employees concerned did not give any such notice as required under Section 97(1)(b) of the BIR Act. Mr.Rele, therefore, submits that the strike resorted to by the workers in support of their Charter of Demands was illegal. 16. Mr.Rele would further submit that the BIR Act, being a special Act, provides for the manner of pursuing the demands for revision before proceeding on strike in support thereof. He submits that, the findings recorded by the Courts below that notice under Section 24 of the MRTU & PULP Act was adequate; since the 11 petitioner Bank was also covered under the said Act, is erroneous in law. 17. Mr.Rele submits that the justification sought to be given by the Courts below holding that there was no representative union and since individuals were pursuing their demands, the individuals had no remedy under the BIR Act and, therefore, the finding that the employees were justified in giving notice under Section 24(1) of the MRTU & PULP Act is also erroneous in law. 18. In the submission of Mr.Rele, whether a representative union existed or not is not relevant. Section 28(1) of the BIR Act provides that when there is no representative union in respect of any industry in a local area, the employees in each undertaking in the industry and in each occupation therein may in the prescribed manner elect five persons from, amongst themselves, to represent them for the purposes of the BIR Act. The BIR Act clearly provides for election of five persons to represent workers under the BIR Act. He submits 12 that Section 30 which deals with representative of employees clearly provides that subject to the provisions of Section 33(a), the persons elected by employees in accordance with the provisions of Section 28 or where the proviso to sub-section (1) thereof applies the employees themselves can represent themselves. Mr. Rele, therefore, submits that the finding recorded by the Court that the employees had no remedy and, therefore, they were justified in giving notice of strike under Section 24 of the MRTU & PULP Act is erroneous. 19. Mr. Rele further submits that there is absolutely no repugnancy between the MRTU & PULP Act and BIR Act. Both legislations are complementary to each other and therefore, it was necessary on the part of the employees to comply with the provisions of both the legislations. He sought to borrow assistance from the judgment of the learned Single Jude of this Court in the case of Balmer Lawrie & Co. Ltd. vs. Balmer Lawrie Employees' Union, Bombay & others (1989 L.I.C. 88), wherein the 13 question as to the repugnancy between the MRTU & PULP Act and the Industrial Disputes Act was considered and finding was reached that there exist no repugnancy between these two legislation. 20. In the submission of Mr.Rele, the ratio of the aforesaid judgment would apply with equal force to an establishments covered under the BIR Act. He submits that although strike may not be illegal under the MRTU and PULP Act, the very strike could be illegal under the BIR Act. He, thus, submits that the BIR Application filed by the petitioner-Bank needs to be allowed and the judgment of the Industrial Court in Complaint (ULP) No. 45/89 that the strike was not illegal is liable to be set aside. He, thus, prayed that both petitions be allowed with costs. Per Contra : 21. Mr. Helekar, learned counsel appearing for the respondents-employees on the other hand submitted that the writ petition filed by the petitioner-Bank challenging the orders of the Labour Court 14 and Industrial Court in revision is liable to be dismissed; since the view taken by the Courts below is reasonable and possible view. 22. Mr.Helekar submits that there was no representative or qualified or approved or primary union as contemplated under the BIR Act, therefore, the complainants/ respondents were, incapacitated to give a strike notice as required under Section 42(2) of the BIR Act. In his submission, looking to the scheme of BIR Act, except the representatives of employees, no other person or body of persons have any right individually or collectively either to give a notice under sub-section (2) or (4) of Section 42 of the BIR Act. 23. Mr.Helekar placed reliance on the text of Section 30 of the BIR Act to contend that the only persons who are described as “representatives of employees” were entitled to take steps in case of grievances of the employees. He submits that even Section 33 of the BIR Act prohibited any other employee or his 15 representative even to appear in proceedings or represent an employee. The Act was, subsequently, amended by introducing Section 33A. Mr.Helekar, thus, tried to borrow assistance from the amended provision and sought to justify the findings recorded by the Courts below. He placed reliance on the judgment of the Division Bench of this Court in the Case of Nagpur District Central Co-Op. Bank vs. State of Maharashtra & ors. [1987 (II) CLR 283], wherein approach notice under Section 42(2) of the BIR Act by the employees before filing complaint under Section 28 of the MRTU & PULP Act was held not necessary. In the submission of Mr.Helekar, the MRTU & PULP Act is a complete code by itself as such compliance of the provisions of other Act was not necessary. 24. Mr.Helekar further submits that the reliance placed by Mr.Rele on the judgment of this Court in the case of Balmer Lawrie & Co. Ltd. (cited supra) is misplaced. According to him, the said judgment has no application to the facts of the present case. 16 25. Mr. Helekar turning to the another petition challenging the order holding that the unfair labour practice has been committed by the petitioner Bank falling under item 8 of Schedule IV of the MRTU & PULP Act; submits that it is not in dispute that the notice of strike was issued and served on 6.4.1989. Strike commenced after expiry of the notice period. During the continuance of the strike, the employer Bank resorted to employ employees on ad hoc basis. In his submission, these facts constituted an unfair labour practice on the part of the employer covered under Item 8, Schedule IV of the MRTU & PULP Act. 26. Mr.Helekar, lastly, placed reliance on the statutory bar created by section 59 of the MRTU & PULP Act; to contend that it was not open for the petitioner to approach Labour Court; since the proceedings under the MRTU & PULP Act were already instituted. He, thus, submits that the Court below was perfectly justified in holding the petitioner Bank guilty of unfair labour 17 practice and, consequently, directing it to cease & desist from continuing the very unfair labour practice. 27. In the submission of Mr.Helekar, both petitions are liable to be dismissed with costs. The Issues : 28. The rival contentions give rise to the spinal issue as to whether in an industry covered by Bombay Industrial Relation Act, 1946 (BIR Act for short), the employees can resort to a strike in support of their charter of demand without complying with the provisions of the BIR Act and, whether compliance of the provisions of the MRTU & PULP Act would absolve the employees from giving a notice under BIR Act. Statutory Schemes : 29. Before proceeding to consider the above issues; a glance at the 18 provisions of two legislations; their ambit and ambiance and their longevity, actual and potential may be desirable, after shaking the broad basics of the BIR Act and MRTU & PULP Act and its ends. The BIR Act : 30. The BIR Act, which is the earlier statute, was enacted because “it was expedient to provide for the regulation of the 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”. Now, of course it is a matter of common knowledge - and it need not even be stated - that the object of the Act is to regulate the relations between the employers and the employees and naturally, therefore, principally, the Act deals with what are called “industrial matters”. “Industrial matter” is defied in Section 3(18) in very wide terms as including in its scope – and this say without reproducing the definition – every conceivable matter that would affect the relations between the employers and 19 employees. Thus, the great goal to which the BIR Act is geared is legal mechanism for canalizing conflicts along with conciliatory or adjudicatory processes. Then industrial matters are specified in three schedules to the Act being Schedules I, II and III and they are dealt with as I will presently point out, by the provisions of the Act somewhat separately and differently. 31. Without going into the details, a quick glance at the scheme of the BIR Act will reveal that chapter-I provides for the definitions and the extent and applicability of the Act. Chapter-II provides for the authorities to be constituted or appointed under the Act, whereas Chapter-III deals with the registration of Unions. 32. Chapter-IV provides for approved union. Chapter-V deals with the representatives of employers and employees and appearance on their behalf. Section 27-A therein states that, except as provided in Sections 32, 33 and 33-A, no employees should be allowed to appear or 20 act in any proceeding under the Act except through the representative of employees. Section 30 sets out who the representative of employees is. It states the order of preference in this behalf and the most preferred category is “a representative union for such industry”. Sub-clause (v) of Section 30 refers in specific, provides that the persons elected by the employees in accordance with the provisions of Section 28 or where the proviso to sub- section (1) thereof applies, the employees themselves. Section 28 reads as under; 28. Election of representatives of employees (1) Where there is no Representative Union in respect of any industry in any local area, the employees in each undertaking in the industry and in each occupation therein may, in the prescribed manner, elect five persons from among themselves to represent them for the purposes of this Act. Provided that no such persons shall be elected for any occupation the number of employees in which does not exceed ten. (2) The persons, if any, elected under sub-section (1) shall function in such manner as may be prescribed. 21 (3) Within [two years] from the date on which an election under sub-section (1) is held, and within each succeeding [two years] thereafter, a fresh election shall be held; provided that any person may be re- elected at any such election. (4) The employees may in the prescribed manner recall any or all of the persons elected under sub-section (1) or (3). (5) Vacancies in the number of the persons elected under sub-section (1) or (3) shall be filled by election in the prescribed manner. 33. Chapter-VI provides for powers and duties of labour officers, whereas Chapter-VII deals with such matters and provides that the industrial matters mentioned in Schedule I shall be governed by standing orders to be settled in accordance with the provisions set out in that chapter, and until such standing orders are settled and come into operation, they are to be governed by model standing orders, if any, notified by the State Government in respect of the particular industry or undertaking. 22 34. I next come to Chapter-VIII which deals with what are termed in the Act as “changes”. Now, “change” is defined in Section 3(8) as meaning an alteration in an industrial matter. Either an employer or an employee may desire to bring about a change. Where an employer desires to bring about a change, Section 42(1) provides that if the change is in respect of an industrial matter specified in Schedule II, he shall give notice of change in the manner prescribed. It may be noticed at once that if he desires to bring about a change in respect of an industrial matter specified in Schedule III, there is no corresponding obligation on the employer to give notice of change. 35. Coming next to the employee, if he desires a change, then Section 42(2) provides that if the change is in respect of an industrial matter not specified in Schedule I or III, he shall give notice of change in the manner prescribed. The difference between the two sub-sections must be noticed in that although the matters covered by the employee's notice 23 of change necessarily include the matters specified in Schedule II, they are also capable of including any other industrial matters which are not specified in any one of the three schedules. It would appear that if there were any such matters about which the employer wishes to bring about a change, he is under no obligation to give a notice of change, because he is bound to do so only in respect of matters specified in Schedule II and not others. 36. Section 42(4) further empowers the employees desiring the change in respect of matters specified therein to make an application to the labour court and in this case no notice of change is required. The matters referred to in this sub-section are three, the first two of which arise in respect of matters arising out of standing order under Schedule I and third in respect of any industrial matter specified in Schedule III. Then Section 44 (1) provides that an agreement may be arrived at within 7 days of notice of change under Section 42 and if it is so arrived at sub-section (2) makes provision 24 for registration of the agreement. Then Section 44B provides that if a settlement is arrived at within two months from the date of completion of any conciliation proceedings and, of course, this has reference to conciliation proceedings which followed as a matter of course upon notice of change being given such settlement is deemed to be an agreement for the purpose of Section 44 and can similarly be registered and Section 45 provides that a registered agreement which includes a registered settlement shall come into operation on the date specified therein or if no date is so specified on its being recorded by the Registrar. So that in respect of matters which relate to a change and which are initiated by notice of change there may be a registered agreement or a registered settlement, but if none of these things happens, there is yet provision in the Act in Chapter XI for determining the relations between the employer and the employees in respect of the proposed change by arbitration. 37. The arbitration results in an award and Section 75 provides that the 25 award shall come into operation on the date specified in the award or where no such date is specified therein on the date on which it is published. Therefore, in respect of industrial matter where a notice of change has been given, the matter is determined either by registered agreement or a registered settlement or an award which is published, and in respect of the award or rather the effect of the award the position is precisely the same as the position in respect of a registered agreement or a settlement, for Section 114 (1) in terms provides that a registered agreement or a settlement or an award shall be binding upon all persons who are parties thereto. Now, when this situation is brought about, there is another consequence following for the fact that there is a registered agreement or the settlement or an award which is binding on the parties and the provision in that regard is to be found in Section 64 (a) (iii) and that provision is; “No conciliation proceeding in respect of an industrial dispute shall 26 (a) be commenced if - (i) ..... ..... ..... (ii) ..... ..... ..... (iii) by reason of a direction issued under sub- section (2) of Section 114 or by reason of any of the other provisions of this Act the employers and employees concerned are in respect of the dispute bound by a registered agreement, settlement, submission or award.” (b) ..... ..... ..... “ By virtue of Section 114 (1), which is a provision of the Act, the parties are bound by a registered agreement, settlement or an award and, therefore, no conciliation proceeding in respect of any matter determined by such agreement, settlement or award are required to be commenced so long as the agreement, settlement or award remains effective. Now, going back to Section