Case: Automobile Products Of India Employees Union Vs. Association Of Engineering Workers, Bombayand Ors

2. Respondent 4-Company has two factories, one at Bhandup, Bombay employing about 1700 workers and the other at Aurangabad employing about 1000 workers. Respondent 1-Union, viz., the Association of Engineering Workers, Bombay obtained a certificate of recognition from Industrial Court, Thane under Section 12 of the Act, on April 7, 1977 for the Companys undertaking at Bhandup. While respondent 1-Union was acting as such recognised union, many of the workers claimed that they had resigned from the said Union and formed a new union called the Automobile Products of India Employees Union which is the appellant-Union and registered it on January 7, 1981 underthe Trade Unions Act, 1926. On October 9, 1981, the appellant-Union made an application to the Industrial Court, Thane under Section 13(1)(ii) of the Act for cancellation of the recognition of respondent 1-Union on the ground that the latters membership in the Bhandup undertaking had fallen below 30 per cent of the total strength of workmen in that undertaking for the preceding six months. In its reply dated November 16, 1981, respondent 1-Union refuted the allegation in the application and contended that its membership was more than 30 per cent for the relevant period. The appellant-Union on March 1, 1982 submitted yet another application for cancellation of recognition of respondent 1-Union - this time under Section 13(1)(i) of the Act alleging that the recognition was obtained by respondent 1-Union by misrepresentation and/or fraud, and that it was granted recognition also by mistake. The Industrial Court rendered the relief in favour of the appellant-Union. However, the said decision was set aside by the High Court and the decision of the High Court was upheld by this Court. Here ended the firstThe appellant-Union thereafter started the second battle - this time for its own recognition under Section 14 of the Act and the present appeals are an outcome of the said proceedings. On July 29, 1982, the appellant-Union filed an application under Section 14 of the Act for being registered itself as a recognised union in place of respondent 1-Union on the ground that it had the largest membership of the workers in the Bhandup undertaking, viz., 1036 out of a total of 1700 workers. i.e., about 69 per cent of the total strength. Respondent 1-Union in its reply of October 7, 1982 contested the appellant-Unions claim and pleaded that it had a membership of about 1400 workers. Both the appellant-Union and respondent 1-Union furnished with their pleadings the details of their membership. On August 19, 1985, the appellant-Union made an application to the Industrial Court to hold an inquiry under Section 12(2) of the Act by directing the investigating officer to verify the membership of both the unions. On September 5, 1985, the Industrial Court gave directions to the Investigating Officer appointed under the Act to assist the court, to investigate the memberships of both theWhile the Investigating Officer was in the process of verifying the memberships of the two unions, suggestions were made for deciding by secret ballot as to which of the Unions commanded the majority. As per the suggestion, respondent 1-Union on December 19, 1985 submitted a draft proposal to the Industrial Court asThe issue pertaining to recognition of any of the unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot2. The union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any technicality or objection3. The union which thus fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognisedappellant-Union also submitted its draft proposal, at the same time, in more or less the same terms. On the same day, i.e., December 19, 1985, the Industrial Court passed an order directing the Investigating Officer to hold a secret ballot in the premises of the Company within 30 days from the date of the order. The employees who were entitled to vote in the ballot were those who were on the rolls of the Company on July 1, 1985, those who joined employment of the Company thereafter being disentitled to do so. Accordingly, a secret ballot was held on January 4, 1986. The result of the ballot showed that in all 1585 workers voted, but only 1578 ballot papers were valid. The appellant-Union secured 798 votes whereas respondent 1-Union secured 780 votes. The Investigating Officer submitted his report to the Industrial Court on January 21, 1986. On January 30, 1986, respondent 1 submitted its objections contending that the cut-off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermittently interrupted were not given an opportunity to exercise their votes, and that there should have been a proper notification with regard to the date of voting so that the employee who were away could have exercised their votes. On February 10, 1986, the Industrial Court passed an order granting the recognition to the appellant-Union in place of respondent 1-Union, under Section 14 of the Act after disposing of the objections raised by the first respondent Union. The Industrial Court held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one. The Industrial Court also held that there was no substance in the objections of the respondent 1-Union that by treating July 1, 1985 as the cut-off date, the workers who were otherwise entitled to vote were deprived of their right to vote and also that the notice of the ballot which was given to the workers was proper one. The Industrial Court further granted the request of the appellant-Union for cancellation of the recognition of the respondent-Union under Section 13(1)(vii) of the Act as a consequence of the recognition of the appellant-Union. On February 11, 1986, the Industrial Court granted a certificate of recognition to the appellant-Union under Section 14 of theAgainst the said decision, two writ petitions were filed in the Bombay High Court under Article 227 of the Constitution of India, one, viz., Writ Petition No. 1409 of 1986 by two workers who are members of the first respondent-Union and the other, viz., Writ Petition No. 1776 of 1986 by respondent 1-Union. In both the petitions, it was alleged that the Industrial Court had violated the provisions of the Act relating to the grant of recognition of the Union by adopting a procedure which was not sanctioned by it and which was, therefore, illegal and invalid. Reliance was placed for this purpose on a decision of the Bombay High Court in Maharashtra General Kamgar Union, Bombay v. Mazdoor Congress, Bombay, 1983 MLJ 147). The appellant-Union contested both the petitions contending that the petitioners there were estopped from challenging the procedure which was adopted by the Industrial Court by consent of the respondent 1-Union. The High Court by its impugned decision allowed both the writ petitions and set aside the order of the Industrial Court mainly relying upon its earlier decision in Maharashtra General Kamgar Union, Bombay case 1983 MLJ 147). The present appeals are directed against the impugned decision passed in both the said writ petitions

Court's reasoning:
18. It is thus clear that the recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members. It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general. No union is entitled to be registered as a recognised union under the Act merely because it satisfies membership qualification. The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(5) and 12(6) or does not satisfy the conditions mentioned in Section 19. A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an application for recognition of a new union is entertained. A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh application for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the court. In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant-Union is not disentitled to recognition or to apply for recognition, under the other provisions of theAs regards the membership qualification itself, the Act enjoins that for being recognised, the applicant-Union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months preceding the month in which the application for recognition is made. When the applicant-Union seeks recognition for itself by displacing the existing recognised union, the applicant-Union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately precediately the calender months in which it made its application but had also a larger membership during the said period than the membership of the recognised union. Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superiority in it over a continuous specified period. What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the union its representative character. It is its representative character determined by such membership that gives a union a right to make the application for recognition. However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act. The recognition by ballot or by any method other than that laid down in the Act is, therefore, alien to theThe facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the Union as a recognised one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. In effect, therefore, the Court ignored in particular the mandatory provisions of Section 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership beingThe consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of theHence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant-Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act. The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union 1983 MLJ 147).