IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2894 OF 2009 Shri Ganpati Vithal Sawant ...Petitioner Vs. Shri Dudhganga Vedganga Sahakari Sakhar Karkhana Ltd. .. Respondent --- Shri K.S. Bapat for Petitioner Shri M.S. Topkar for Respondent ---- CORAM: V.M. KANADE J. DATED 6TH MAY, 2009 P.C. 1. The Petitioner herein was working as a welder since 1.3.1972 in the Respondent No.1 Karkhana which is engaged in the business of manufacturing sugar and other allied products. The Petitioner's services were terminated by the Respondent on 20.1.1988. At that time, one Sakhar Kamgar Sabha was registered and approved as a trade union operating in the sugar industries in the concerned area. An approach notice was given by the Union on 7.3.1988. Since no reply was received from the Respondent, the Union filed an application (BIR) No.6 of 1988 before the Labour Court at Kolhapur on behalf of the Petitioner and sought reinstatement of the Petitioner with continuity of service and full back wages. Thereafter, the concerned Union lost its status as a recognized and representative-union in the sugar industries in the concerned area. The Petitioner was constrained to file an application for substituting his name in the place of the said union since it had lost its status of recognized union. The application for amendment was opposed by the Respondent on the ground that the Petitioner had no locus standi to file the application. The Labour Court allowed the application by its order dated 18.12.2007. Being aggrieved by the said order, the Respondent No.1 preferred a revision application before the Industrial Court at Kolhapur being Revision (IC) No.1 of 2008. The Industrial Court allowed the revision application filed by the Respondent and set aside the order of the Labour Court. Being aggrieved by the order passed by the Industrial Court, the Petitioner has filed this petition under Articles 226 and 227 of the Constitution of India. 2. Shri Kiran Bapat, the learned Counsel appearing on behalf of the Petitioner submitted that the Industrial Court had erred in coming to the conclusion that the Petitioner did not have any locus to file an application. He submitted that the Industrial Court had erred in holding that the Petitioner in his application had not given any particulars as to how he was affected or was an aggrieved person or that the revision application was filed for his reinstatement with continuity of service and back wages. Shri Bapat, the learned Counsel for the Petitioner has invited my attention to the complaint, which was filed in the Labour Court, in which, the averments categorically were made about dismissal of the Petitioner from services and a specific prayer was made for his reinstatement with full back wages. 3. Shri Topkar, the learned Counsel appearing on behalf of the Respondent No.1 submitted that in view of the bar imposed by section 27A of the Bombay Industrial Relations Act, 1947, the Petitioner being an employee of Respondent No.1 had no right to file his appearance after the representative-union had filed an application on his behalf. He invited my attention to section 27A and sections 32 and 33 of the said Act. In support of the said submission, he relied upon a judgment of the Apex Court in the case of Girjashankar Kashiram and others vs. Gujarat Spinning and Weaving Co.Ltd., and another reported in 1962, (I) L.L.J. Page 174. He also relied on a judgment of the Apex Court in the case of Santuram Khudai vs Kimatrai Printers, Processors and others reported in 1978(1) L.L.J. Page 174. 4. Shri Bapat, the learned Counsel appearing on behalf of the Petitioner, in rejoinder, however, pointed out that the judgment in the case of Girjashankar Kashiram (supra) had taken into consideration the effect of unamended section 30 of the Act. He submitted that after the judgment in Girjashankar Kashiram (supra), the legislature had amended the said section and had inserted the proviso to section 30. He submitted that the statement of object and reasons in respect of the said amendment clearly indicated that in order to get over the observations made by the Supreme Court in Girjashankar Kashiram's case, it was considered by the legislature that an employee should be permitted to appear in proceeding before the Labour Court or the Industrial Court in which the legality or propriety of an order of dismissal / discharge was under consideration, although representative-union had appeared in such proceedings. He submitted that though in the case of Santuram Khudai v. K.P.P. (supra), the Apex Court had confirmed the observation made by the Apex Court in Girjashankar Kashiram's case, it had relied on the unamended provision of section 30 and, therefore, the ratio of the said judgment also could not apply to the amended provision of section 30 of the BIR Act. He also relied on the judgment of a Learned Single Judge of this Court in the case of Pralhad Atmaram Jadhav v. Managing Dir., Kulkarni Black & Decker Ltd. reported in 1994 II CLR 992. The learned Counsel for the Respondent also relied on a judgment of the Learned Single Judge of this Court in the case of Bank Karmachari Sangh vs. K.R. Pawar, Member, Industrial Court, Pune & Ors. reported in 1996 I.L.L.J. Page 955. 5. In the present case, it is an admitted position that the Respondent did not raise the objection about the ban imposed under sections 27A and 32 of the BIR Act and this legal submission has been made for the first time in this Court. 6. Before taking into consideration the rival submission, it would be fruitful to take into consideration the relevant provisions of the BIR Act. Section 27A rules as under:- “27A. Save as provided in Ss.32 and 33, no employee shall be allowed to appear or not in any proceeding under this Act except through the representative of employees.” The said section imposes a complete ban on the appearance of an employee and only the representative-union can file a complaint before the Labour Court. Section 32, however, is an exception to the said rule. Prior to the amendment of the said section by the Amendment Act of 1964, the section reads as under: “32. A conciliator, a board, an arbitrator, a wage board, a labour court and the industrial court may, if he or it considers it expedient for the ends of justice, permit an individual whether an employee or not, to appear in any proceeding before him or it; Provided that no such individual shall be permitted to appear in any proceedings in which a representative union has appeared as the representative of employees.” The Apex Court in the case of Girjashankar Kashiram (supra), after interpreting sections 27A, 32 and 33 of the BIR Act, held that an employee does not have the right to appear if a representative-union has put its appearance as the representative of the employee and, therefore, it held that whether the representative-union appeared in any proceeding under the Act, no one else can be allowed to appear, not even the employee at whose instance the proceedings might have begun under section 42(4). After the said judgment was delivered by the Apex Court, the said section 32 was amended and the statement of object and reasons of the amended Act clearly state that it was considered that an employee should be permitted to appear in proceedings before the Labour Court or Industrial Court in which the legality and propriety of the order of dismissal / discharge etc. was under consideration and, therefore, section 32 was amended. The amended Act reads as under: “32. Persons who may appear in proceedings-. A Conciliator, a Board, an Arbitrator, a Wage Board, a Labour Court and the Industrial Court may, if he or it considers it expedient for the ends of justice, permit an individual, whether an employee or not, to appear in any proceeding before him or it: Provided that [subject to the provisions of section 33A] no such individual shall be permitted to appear in any proceedings (not being a proceeding before a Labour Court or the Industrial Court in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee is under consideration)] in which a representative-union has appeared as the representative of employees]. 7. Therefore, a departure was made from the earlier position and in case where the employee was dismissed, discharged, suspended etc. he could still have a right of appearance before the Labour Court or the Industrial Court. The Apex Court gave the judgment in Santuram Khudai (supra) in 1978 and confirmed the ratio of the judgment in Girjashankar Kashiram's case. From the perusal of the said judgments, it is apparent that the Apex Court has not taken into consideration the amended provision. In my view, therefore, there is much substance in the submission made by the Learned Counsel for the Petitioner and in the present case since the question involved is regarding the dismissal / discharge of the Petitioner, he also has a right to appear in the said case particularly when the representative-union had lost its status as recognized-union and no application has been made by the new union which was recognized after substituting its name in the place of old recognized union. The Petitioner, therefore, had no option, but to make an application substituting his name in the place of the then recognized union. In the present case, if the interpretation of Mr. Topkar the learned Counsel for the Respondent, is accepted, it would lead to a conclusion that an employee whose services have been dismissed or discharged would have hoped that the recognized union would file an application on his behalf and if no such application is filed, then he would be rendered without remedy. Such an interpretation cannot be given to the aforesaid section. In the present case, the Petitioner filed his application for substituting his name in the place of the representative-union , who lost its status of a recognized union. If the argument advanced by Mr. Topkar is to be accepted, then the complaint filed by the representative-union would have to be dismissed and a fresh application will have to be filed by the Petitioner which would be hopelessly time barred. The Labour Court, therefore, in my view, was justified in granting the amendment application and permitting the Petitioner to pursue the said dispute in his own name. 8. The reliance has also been placed by the Learned Counsel for the Petitioner on the observations made by the Learned Single Judge of this Court in the case of Bank Karmachari Sangh (supra). In the said case, the order passed by the Industrial Court in Revision Application in exercise of its power of superintendence under section 86 (J) was challenged by the Petitioner. The Petitioner in the said case was the representative and approved union for the banking industry and local area of Pune District and Cantonment and the third Respondent was an undertaking in the banking industry in a co-operative sector. The Petitioner Union despite being a representative and approved union, neglected the employees of the 3rd Respondent employer. The employees, therefore, tried to settle their industrial disputes by direct negotiations without interference of the representative-union and, accordingly, a settlement was arrived at between the management of the 3rd Respondent and the individual employees. This settlement was to remain operative from July 1, 1988 to June 31, 1991. Thereafter, on 7th January, 1992, the employees of the 3rd Respondent addressed demand to the Chairman of the 3rd Respondent demanding revision of their wages. The Petitioner Union also took a decision to act in the matter and gave a notice of change in March 4, 1991 under section 42(2) of the Act. The 3rd Respondent employer ignored the said notice of change. Conciliation proceedings were initiated by the Conciliator at the behest of the Petitioner Union and when the conciliation proceedings had ended in a failure, the Petitioner Union made a Reference of the Industrial Disputes arising from its notice of change to the Wage Board under section 86CC. The Wage Board held that the Reference was tenable despite agreement between the 3rd Respondent and its Union and held that the Wage Board has jurisdiction to entertain and adjudicate the Reference on merits. Being aggrieved by the order of the Wage Board, the 3rd Respondent moved the Industrial Court by filing a revision application. The said revision application was allowed and the order of the Wage Board was set aside. That order was challenged in this Court under Articles 226 and 227 of the Constitution of India and it was urged that the Industrial Court had failed to apply its mind to the two judgments of the Apex Court in Santuram Khudai (supra) and Girjashankar Kashiram (supra), and a judgment of the Division Bench of this Court in the case of M.M. Naik vs. Colaba Mills reported in 1960 I MLJ page 448. In the context of this dispute regarding demand of revision of wages, the Learned Single Judge of this Court held that the individual employee did not have a right and observed that the Industrial Court had not taken into consideration the judgments of the Apex Court on which reliance was placed by the Petitioner. In my view, the ratio of these judgments will not apply to the facts of the present case. In the present case, the Petitioner has been dismissed from service and, therefore, squarely falls in the proviso to Section 30 of the BIR Act and, therefore, the ratio of the judgment in Bank Karmachari Sangh's case would not apply to the facts of the present case. In my view, therefore, the Petitioner is entitled to pursue his remedy particularly when the representative-union which had filed the dispute, has lost its status as a representative-union in a concerned area. 9. The Industrial Court, however, in the present case has proceeded on the footing that the Applicant has not mentioned in the application below Exhibit U-18 that he is an aggrieved person or that the application was filed for his reinstatement with continuity of service and back wages. It would be relevant to reproduce the observation made by the Industrial Court in paragraph 8 of its judgment: “The proposed Applicant nowhere made or mention in the application below Exhibit U-18 that he is an aggrieved person or the revision application was filed for his reinstatement with continuity of service and back wages.” Similarly, in the same paragraph, the Learned Member of the Industrial Court has observed as under: “the Proposed Applicant nowhere made or mentioned that he is an aggrieved party and that relief or cause of action in the nature of the application will not be changed because the Original Applicant Union losses its registration” The Learned Industrial Judge has observed that the only cause of action open for the Petitioner was to file a fresh application. In my view, the aforesaid finding is clearly contrary to the record. In the application which was initially filed by the recognized union, it is categorically mentioned that the said application pertains to the matter of reinstatement with full back wages and continuity of service of Shri Ganpati Vithal Sawant i.e. the Petitioner herein. Similarly, in paragraph 3 of the application, the details of appointment of the Petitioner and his dismissal have been given. Similarly, in the prayer clause, a specific prayer has been made for a declaration that the order of dismissal issued to Shri Ganpati Vithal Sawant is illegal, improper and unjust and for a direction to reinstate the Petitioner with continuity of service and full back wages during the intervening period. The finding recorded by the Industrial Court that no particulars had been given about the Petitioner in the application are totally incorrect and the finding, therefore, is not borne out by the record. 10. The proviso to section 30 clearly gives a choice of filing an application in case of dismissal or discharge of an employee to the employee himself or to the representative-union. In the present case, since the union which had filed the application, had lost its status as a recognized union, the Petitioner who is aggrieved by the order of dismissal had no other option but to file an application for substituting his name in the place of the union. The judgment and order passed by the Industrial Court is, therefore, liable to be quashed and set aside and the order passed by the Labour Court, is liable to be recalled. 11. In the result, writ petition is allowed in terms of prayer clause (a). The order of the Labour Court is, accordingly, confirmed. There shall be no order as to costs. V.M. KANADE J.