1 Wp194 & 1616-11 dmt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 194 OF 2011 Thai Summit Neet Auto Pvt. Ltd., ... Petitioner. V/s. Hind Kamgar Sanghatana & Anr. ... Respondents. Mr. S.K. Talsania, Sr. Adv., i/by Sanjay Udeshi & Co. for petitioner. Mr. J.S. Deo for Respondent No. 1. WITH WRIT PETITION NO. 1616 OF 2011 Prakash Bhagaji Kotwal & Ors. .... Petitioners. vs. Thai Summit Neet Auto Pvt. Ltd., & Ors. .... Respondents. Mr. K.S. Bapat i/by Desai & Desai Associates for petitioners. Mr. J.S. Deo for Respondent No. 2. CORAM : P.B.MAJMUDAR & A.A.SAYED, JJ. DATE : 28th FEBRUARY, 2011 P.C. Writ petition no. 194 of 2011 is filed by Thai Summit Neel Auto Pvt. Ltd., and Writ Petition No. 1616 of 2011 is filed by nine individual employees 2 Wp194 & 1616-11 along with the union. Both these petitions are directed against the judgment and order dated 7th December, 2010 passed by the Industrial Court, Pune in Application (MRTU) No. 6 of 2008. The respondent Hind Kamgar Sanghatana, a registered trade union applied for registration under Section 11 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as “the MRTU & PULP Act”) for recognizing the said union as a recognized union. The Industrial Court after considering the oral and documentary evidence on record allowed the said application by holding that the said union is a recognized union for the non-applicant undertaking as per the provisions of the MRTU & PULP Act. Being aggrieved by the said decision, the management filed Writ Petition No. 194 of 2011 as also the discontented employees also filed Writ Petition No. 1616 of 2011 and supported the stand of the management that the said union should not be recognized by the Industrial Court. It is required to be noted that before the Industrial Court respondent no.1 Hind Kamgar Sanghatana applied for recognition. There was no other contesting claim of any other union for the purpose of giving recognition on the basis of strength of the members of the union. The Industrial Court, after considering the application of respondent no. 1 union, allowed the same. 2. The learned Senior Counsel, Mr. Talsania appearing for the management as well as Mr. Bapat appearing for some of the employees vehemently argued that the Industrial Court has misread the evidence and the findings of the Industrial Court are perverse. It is submitted that as per the 3 Wp194 & 1616-11 provisions of law last six months membership is required to be considered and it is to be reckoned from a particular date. It is submitted that the said aspect is not properly considered by the Industrial Court. It is further submitted that the concerned employees, i.e. nine in number, in their evidence stated that though they have filed affidavits they do not understand English. It is submitted that therefore from the total membership these nine employees are to be excluded. It is further submitted that the Industrial Court has not appreciated the evidence on record and most of the members of respondent no. 1 Union are not employees and some of them are social workers and the said union should not have been registered under the Trade Unions Act. 3. We have heard the learned counsel for the parties at length. We have gone through the order of the Industrial Court as well as the documents forming part of this petition. As pointed out earlier, the respondent no. 1 is the only union who has applied for recognition under Section 11 of the MRTU & PULP Act. Section 11 of the MRTU & PULP Act provides as under :- 11. APPLICATION FOR RECOGNITION OF UNION. - (1) Any union (hereinafter referred to as the "applicant-union") which has for the whole of the period of six calendar months immediately preceding the calendar month in which it so applies under this section a membership of not less than thirty per cent. of the number of employees employed in any undertaking may apply in the 4 Wp194 & 1616-11 prescribed form to the Industrial Court for being registered as a recognised union for such undertaking. (2) Every such application shall be disposed of by the Industrial Court as far as possible within three months from the date of receipt of the application, where a group of concerns in any industry which is notified to be one undertaking for which recognition is applied for is situated in the same local area; and in any other case, within four months. Explanation : 'Local area' for the purposes of this sub-section means the area which the State Government may, by notification in the Official Gazette, specify in the notification.” 4. Before the Industrial Court the Union has led oral evidence by examining 45 employees. It also relied upon membership register before the Industrial Court. It is required to be noted that the membership is to be considered as per the documentary evidence which was in existence and subsequently even if some of the employees may change their heart and might be owned over by the management, the said factor will not weigh the decision. On the date of the application, the Union was having membership of 45 employees and simply because some of the employees were won over by the management, cannot be a ground for deciding the recognition of a union. It is also required to be noted that in each and every affidavit filed by the union there is an endorsement 5 Wp194 & 1616-11 that the same is explained to the concerned employee in Marathi language. The concerned employees have filed the affidavits after knowing the contents of affidavits and such affidavits have been tendered before the Industrial Court. It is unfortunate that some of the employees have thereafter tried to help the management and even filed subsequent affidavits changing their stand. The Industrial Court after considering the oral and documentary evidence on record has found that the Respondent No. 1 is having 30% of membership. The relevant findings of the Industrial Court in this connection is in paragraph 11 of the Judgment of the Industrial Court, which reads as under :- “I have already pointed out that the applicant has produced document with list Exh. U-6 and Exh. U-9 and these documents have been proved by the witness of the applicant Mr. Sitaram R. Chavan, the General Secretary of the applicant union and these documents are exhibited, and through these documents it is proved on record that the applicant is registered under the Trade Union Act w.e.f. 1/9/07. The applicant union can form its union in engineering industry, pharmaceuticals industry, local body corporation, godowns, hotels, etc. The non applicant undertaking being an engineering industry the applicant union is connected union for the purpose of non applicant undertaking. After perusal of the copy of constitution of the applicant union Exh. U-6/B I am satisfied that constitution of application union provides for 6 Wp194 & 1616-11 membership subscription shal not be less than fifty paise. There is provision that Executive Committee shall meet at intervals of not more than three months, all resolutions passed by the Executive Committee meeting or general body of the union are recorded in the minute book kept for the purpose, the constitution of the union also provides for auditor appointed by State Government may audit atleast once in each financial year and accordingly the certificate issued by the Chartered accountant in respect of audit of the applicant union is also produced on record at Article B, copies of resolutions are at Exh. U-6/C, Exh. U-6/D & Exh. U-6/E. The membership subscription receipts are produced on record (original) with list Exh. U-9 to show that the employees of non applicant undertaking have paid membership subscription for entire period of 12 months to the applicant union commencing from October 2007. It is pertinent to note that non applicant undertaking in their written argument taken the objection that there is no evidence to show that membership subscription for the applicant union was paid by the employee / members for the year 2008. However, it is pertinent to note that the applicant union itself was registered on 1/9/07 and members of the applicant union / employees of the non applicant undertaking have paid subscription @ Rs. 10/- pm in all Rs. 120/- for entire period of one year it means till October 2008 subscription was paid. Under these circumstance I do not find any substance in 7 Wp194 & 1616-11 the objection of the non applicant undertaking that no subscription receipts are produced on record to show that membership subscription was paid by the members of the applicant union as claimed in Exh. U-1 for the relevant period as mentioned in the application Exh. U-1. Thus on the basis of oral evidence led by the applicant union in this matter supported by documentary evidence I have no hesitation to hold in this matter that applicant union has proved proper compliance of Sec-19 of MRTU & PULP Act has been made by the applicant union.” In paragraph 13, it is also observed as under :- “13. After considering the objections of the non applicant undertaking as taken in oral evidence, as taken in written statement, as taken in writing argument, I am of the considered view that the applicant union has proved in this matter that applicant union is having more than 30% membership of the employees during the relevant period to grant recognition to the applicant union under the provisions of MRTU & PULP Act. Apart of these observation it is pertinent to note that no any other union except the applicant union has come forward to claim the membership of the employees in non applicant undertaking. Secondly, the non applicant undertaking through written argument also raised the objection that 8 Wp194 & 1616-11 there is no office bearers in the applicant union working with the non applicant undertaking as such the compliance of Sec-28 of Indian Trade union Act is not made by the applicant union. However in my opinion while examining the application Exh. U-1 this Court is required to see whether due compliance of Sec-11 & 19 is made by the applicant union or not. If at all non applicant undertaking has any objection about violation of provisions of Trade Unions Act by the applicant union, the non applicant undertaking is at liberty to avail the remedies under law.” 5. In our view, the Industrial Court has considered the evidence on record from its proper perspective and has also found that the concerned union was having 30% membership and ultimately, as aforesaid, the ultimate decision is taken by the Industrial Court. It is required to be noted that this Court is not sitting in appeal over the judgment of the Industrial Court. In our view, this is not a fit case to interfere in our extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. It is required to be noted that except respondent no. 1, there is no other rival union pressing their claim for membership and there is no other recognised union in so far the respondent management is concerned. This Court has not considered the entire evidence on record by examining the membership register, receipts of subscription, etc., which exercise has been done by the Industrial Court and has given the aforesaid finding. We are, therefore, not 9 Wp194 & 1616-11 in agreement with the learned Senior Counsel Mr. Talsania that the Industrial Court misread the evidence and the judgment of the Industrial Court is perverse or contrary to law. In so far as the argument that the respondent no. 1 union should not have been registered under the Trade Unions Act is concerned, the Industrial Court was not required to examine the said aspect. It is the question which is to be considered by the registering authority under the Trade Unions Act and that point was not open for consideration before the Industrial Court. 6. The learned counsel for respondent no. 1 submitted that the management has subsequently sought to win over some of the employees and according to him the position at the time of filing of the application is only required to be seen. Considering the matter from that angle, in our view, the Industrial Court has not committed any error which is required to be corrected by this Court in its extra ordinary jurisdiction under Article 226 and 227 of the Constitution of India. 7. In the result, both the writ petitions stand dismissed. (A.A.SAYED, J.) (P.B.MAJMUDAR, J.)