Case: Maharashtra General Kamgar Union, Bombay Vs. Solid Containers Limited and Others

and representative union it cannot deprive other Trade Unions from representing the employees who are its members under Act No. 1 of 1972. In this context reliance was heavily placed upon sub-section (2) of section 21 of the Act No. 1 of 1972 and section 27A of the B. I. R. Act. It was urged that the provisions read together the recognised union like respondent No. 2 have a right to represent the employees only to the extent specified therein. In particular it was submitted that the right of a recognised union to represent employees under the B. I. R. Act was unlimited but it is not so under the Act No. 1 of 1972. We will shortly point out that the submissions are devoid of any merits and must be rejected. 13. It is not in dispute that the respondent No. 2 is a recognised and an approved union under the provisions of Chapter IV of the B. I. R. Act and they have been conferred a right to be the representative of employees to appear or act on their behalf, first in the order of preference under section 30 of the B. I. R. Act except for one exception and that is as provided in section 33-A. It deals with the appearance of person in proceedings in which the dispute is between the employees and employees. Therefore, no doubt is left that a recognised and an approved union has every right to appear and act in every proceedings irrespective of the fact whether those employees are members of the Union or not with certain exceptions as carved out also under section 27-A of the B. I. R. Act. That section specifically provides that no employee shall be allowed to appear and act in any proceedings under the B. I. R. Act except through the representative of employees and the representative of employees is provided for in section 30 of the Act. A representative Union is first in the order of preference. No doubt, section 27-A also provides for some exceptions because the section begins by the words Save as provided in sections 32, 33 and 33A with which we are not presently concerned. An unequivocal right is hence established that the representative union has the sole privilege of representing employees in an industry and that right is not taken away or in any manner affected in proceedings under Act No. 1 of 1972. For all purposes a recognised union continues to be a representative union and shall remain as such till the recognition is lost or revoked. 14. Sub-section (2) of section 21 on which reliance is heavily placed on behalf of the appellant is quoted below : 21(1)... ... ... 21(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except though the representative of employees entitled to appear under section 30 of the Bombay Act. A representative union has been given a special right to appear and act on behalf of an employee in proceedings in relation to unfair labour practices specified in items 2 and 6 of Schedule IV of the Act No. 1 of 1972, the reason being that some other employee or employees not appearing in the proceeding can upon adjudication of the complaint be adversely affected. - Item 2 deals with the abolition of work of regular nature being done by the employees and to give such work to contractors as a measure of breaking strike. Similarly Items 6 relates to employment of badlis, casual or temporaries and to continue to employ as such for years together with the object of depriving such employees the status and privileges of permanent employees. It is not necessary to elaborate on these items as either of them are self explanatory. The section authorises only the representative union to appear and act in such proceedings. But simply because such power has been specifically conferred no inference can be drawn that in proceedings other than those relating to unfair labour practices specified in Items 2 and 6 of Schedule IV, the representative union cannot represent the employees. Such an interpretation as sought to be put forth cannot be accepted. The right of the employees working in the industry to which the provisions of B. I. R. Act apply to be represented by the representative Union remains unfettered and it does not change for the reason that the proceedings are under Act No. 1 of 1972. The status and privilege of the representative union remain unchanged. The supremacy of the representative and approved union is well recognised in Balmer Lawrie Workers Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd and Ors. 1985 I CLR 103. The respondent No. 1 Company was hence justified in filing the Complaint (ULP) No. 22 of 1991 against the representative union. It is also made clear that nothing prevented the said Company to file such a complaint even against other Trade Unions provided they are satisfied that those unions were responsible for engaging in or have engaged in such unfair labour practices complained of by them. 15. We may also add that sub-section (2) of section 21 of the Act No. 1 of 1972 curtails not only the right of an employee to appear and act or allowed to be represented in proceeding of unfair labour practices stipulated therein but also prohibits the right of Trade Unions other than the representative Union. It is difficult for us to draw the conclusion that the proceedings other than that stipulated in sub-section (2) of section 21, the representative Union has no legal right to appear and act on behalf of the employees and that right could be exercised by other trade unions in the field.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]and strikes are concerned,can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, ais a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. The main object of notice of 14 days beforeor strike is to avoid possible dislocation to the employers and their workmen and give some breathing time to adjust. It is not that the law does not permit the employers to resort toin the same manner as the workmen are entitled to use the weapon of strike for achieving their objects. The contemplated notice under section 24 firstly operates as a warning to the employees that the employer cannot make any further concession and gives an opportunity to them to reconsider their strategy by weighing the reasonableness of their claim as also their overall strength and capacity to endure suffering involved. Secondly, such notice enables them to make necessary adjustments to face impending unemployment in the event of their determination to fight. Thirdly, it also gives an opportunity to those interested in industrial peace, including the Government machinery in this behalf, to make moves for ironing out some settlementUnder Rule 23 of the M. R. T. U. and P. U. L. P. Rules, 1975 the notice ofis required to be given inJ and is required to be sent by registered post. The notice is required to be accompanied by an annexure containing a statement of reasons. Thus, all that a Court is required to determine is as to whether the management has given the requisite notice in the prescribed form accompanied by an annexure containing the reasons for clamping aThe further inquiry which is required to be made, is whether thehas or has not been commenced within the 14 days notice period. These are the parameters of the inquiry. Once it is found that the requisite notice in the prescribed form has been given and that notice is accompanied by an annexure containing the reasons for thehas not been commenced prior the notice period of 14 days, the inquiry is complete. On the aforesaid findings being given the only conclusion that follows is that theis not illegal and hence no offence can be said to have been committed under Item 6 of Schedule II of the Act. The Court, in proceeding under the Act, is, therefore, not required or in other words it is not open to the Court to go into the truth or otherwise or the justification or otherwise of the reasons which have led the management to clamp aThe enquiry is beyond the scope and ambit of the relevant provisions of the Act. If a Court were to find that theis illegal, it will make a declaration not that effect. It is only after the management fails to lift the illegalwithin a period of 48 hours that undern (5) of section 25 thewill be deemed to be an illegalonly in such a case that the provisions of Item 6 of Schedule II will come into operation. The said item provides that proposing or continuing adeemed to be illegal under this Act is made an unfair labour practice on the part of employers. The aforesaid provision, therefore, does not contemplate an inquiry into the justification or otherwise of the reasons which have led to the clamping of aThat does not form part of the inquiry under the M. R. T. U. and P. U. L. P. Act, 197119. Since it has been a consistent endeavour on the part of Shri Deshmukh to contend that the Tribunal ought to have gone into the justification or otherwise of theand that it was not justified in not doing so, we were taken through the relevant material and evidence on record relation to the justification or otherwise of theWe have noticed that after the application of the respondent for closure under Section 25(O) of the Industrial Disputes Act was dismissed, several notices were issued by the respondent alleging serious misconduct on the part of the workers. We have reproduced the gist of some of the notices in the preceding paragraphs. After the notices, the first respondent, on the 7th January, 1986, has issued its notice ofhas given reasons for issuing the notice ofDespite the earlier notices alleging violence on the part of the workers and the notice ofdated 7th of January, 1986, no reply had been sent by the Appellant for a considerable period. It is only on the 6th of May, 1986, which is after a long gap of four months, that a reply denying the allegations is sent. The present complaint is also belatedly filed on the 18th of June, 1986 which is beyond the period of limitation of 90 days. Notices of 26th of December, 1985 and thereafter are not notices of insignificant nature. They contain serious allegations of misconduct and violence. The notices have gone unreplied. Inaction on the part of Appellants can be a factor that can be taken into account for holding that the allegations have been acceded for want of denials. Similar is the case of notice ofdated 7th of January 1986. Though the notice contains serious allegations there is no immediate reply. In fact, the reply which is sent after a lapse of four months, can be said to be an afterhought. Similar is the case in respect of the complaint, which is filed after over five months from the date of the notice ofBy way of explaining the delay, it is stated that thenotices were not individually served on the workers and hence the employees did not know the reasons of thenotice, which is served upon the, the same, it is alleged, was misplaced as it got mingled with some other files. On search it was found on 6th of May, 1986 and, thereafter, the same was replied. The rest of the time was taken for giving instructions to file the complaint. In our view, though the explanation offered for condonation of delay has found favour with the Tribunal, it is difficult to resist the conclusion that if the allegations contained in the notices were got up and were totally false and baseless, as is sought to be contended before us, the same would not have been treated so callously and casually. In the circumstances, we are inclined to hold that there is a grain of truth in the allegations contained in the notices21. In our view, though it is not necessary or for that matter it is not open to a Court to go into the justification of the reasons for effecting a, even if one were to go into the issue, as Shri Deshmukh wants us to do, there is sufficient material on record to come to a conclusion that there existed sufficient and cogent reasons for effecting aIn the circumstances, we hold that thedeclared by the first respondent company is not illegal. If the same is not illegal the question of its being deemed illegal does not arise. With this finding it would ordinarily have been enough for the disposal of the Letters Patent Appeal. The finding of the Tribunal that no offence is made out under Schedule II, Item 6 and Schedule IV. Items 9 and 10 deserves to be upheld. Similarly, the dismissal of the complaint also deserves to be confirmed. We, however, are dealing with the other two issues as the learned counsel appearing for the contending parties have addressed us on those issues at considerable lengthThe second question, as to whether the firsty was justified in insisting upon its workers to execute an undertaking of god behaviour and diligent work by way of condition precedent for lifting thestrictly speaking, is not an issue which arises in the present complaint bearing Complaint (ULP) No. 189 of 1986. The said issue squarely arose in the second complaint bearing Complaint (ULP) No. 220 of 1987. That, however, came to be dismissed on 18th of January, 1988. The dismissal, no doubt, was not on merits but was on the maintainability of the complaint. May be, the order was not justified, however, appellant has not taken an exception to the dismissal of the complaint and that dismissal has become final. As far as the present complaint (ULP) No. 189 of 1986 is concerned, the same concerns only with the issue regarding the illegality or otherwise of the22. We have already found that the allegations which are contained in the notice ofand the notices that have preceded the same, are wellt on the material on record. If this be the case, in our judgment, the insistence on the part of the management on giving of an undertaking, as has been done in the present case, cannot be said to be unjustified and, therefore, cannot be faulted24. If the ratio of the above case is applied to the facts of the present case, the inference is irresistible that the insistence on the part of the respondent on the workers to sign an undertaking before they are permitted to resume duties, cannot be said to be unjustified. As far as the majority of workers are concerned, they have settled with the respondent and have resumed duty after signing the requisite undertaking. The question that really arises is, whether the denial on the part of 27 workers in executing the undertaking even in the form, which is reproduced above can be said to be justified. If the insistence on the part of the respondent is to be held to be justified, the refusal to give the undertaking by the minority of the workers, who owe allegiance to the, has to be termed as unreasonable26. We have given our anxious consideration to the above decision and we find that the same was a decision based on facts of that particular case. In paragraph 16, it has been emphasised that there is nothing on record and nothing was brought on record by the respondent in this regard to show that act of violence and acts of indiscipline made the respondent company to insist upon the undertaking of the type involved in this case. This however, is not the case in the case at hand. We have, on facts found that the workers have been guilty of acts of violence and indiscipline causing harm to the officers of the first respondent company and causing damage to the property. Hence, on facts of the present case, we have no hesitation in holding that the insistence on the part of the first respondent company, in taking an undertaking is fully justified29. In view of the aforesaid decisions we answer the second question in the affirmative and hold that the first respondent company was justified in insisting upon its workers to execute an undertaking of good behaviour and diligent work by way of condition precedent for lifting the