Case: Santuram Khudai Vs. Kimatrai Printers &amp; Processors (P) Ltd. &amp; Ors

2. The facts and circumstances giving raise to this appeal, in brief. Respondent No.1 herein, viz. The Kimatrai Printers and Processors Pvt. Ltd., Ahmedabad is an undertaking in the Textile Processing Industry which was recognised as such vide Notification No. KH-SMMC/2724/RU, dated September 13, 1974 issued by the Assistant Registrar, Bombay Industrial Relations Act in exercise of the powers conferred on him under S.11(1) of the2, viz., the General Workers Union, Bhadra, Ahmedabad is a representative-union of all the employees of the various undertakings registered by the Registrar as undertaking in the Textile Processing Industry in the local area of Ahmedabad City and city taluka irrespective of the fact that the employees of any of the aforesaid undertakings may or may not be members of the representative-union and is registered and recognised as such under the provision of the Act. In 1975, the said union raised demands regarding wages, dearness allowance, washing allowance, supply of shoes, uniforms and casual holidays. As the demands were not agreed to the dispute was taken in conciliation which culminated in an amicable settlement between the parties on the basis whereof an award was made by the Industrial Court on September 29, 1975. On December 22, 1975, respondent No. 2 gave a notice under sub-s.(2) of S.42 of the Act intimating thereby its desire for a change in respect of classification, pay scales, dearness allowance, casual leave, festival holidays and certain other industrial matters. The notice was followed by two other notice dated March 22, 1976 and March 27, 1976 under the same provision of the Act.The dispute not having been settled by the parties amicably, the same was taken in conciliation which failed. Consequently on July 27, 1976, a reference, being Reference No. 176 of 1976, was made to the Industrial Court at Ahmedabad under S.73A of the Act, wherein as a result of negotiations, an interim settlement appears to have been arrived at on November 17, 1977. Meanwhile, the workers of respondent No. 1 struck work with effect from September 24, 1976 whereupon an application No. 1455 of 1976 was made on the following day by the respondent to the Third Labour Court at Ahmedabad under S.79(1) and (4) read with S.78(1) A (C) and S.97(1) of the Act for a declaration that the aforesaid action of the workers mentioned in Annexures "A" and "B" to the application amounted to an illegal strike. A public notice regarding the filing of the application was given in "Gujarat Samachar" on September 27, 1976 and a copy thereof was also affixed on the notice board of respondent No. 1. In the proceedings taken upon the said application of respondent No. 1, respondent No. 2 appeared as the representative and approved union for the processing industry in the local area where the mills of respondent No. 1 are situate, and filed written statement admitting that the strike restored to by the workmen was illegal. Without meaning to burden the record unnecessarily but with a view to complete the narrative it may be stated that in May, 1976, a new union of workers employed in concern of respondent No. 1 was formed under the name and style of New Labour General" Trade Union Ahmedabad which was registered under the Trade Unions Act, on June 3, 1976. Vide its letter dated June 8, 1976, the new union raised demands regarding issue of permanent entry passes, casual leave, festival holidays, Provident fund, Employees State Insurance, Bonus, Dearness Allowance, etc., which were not heeded to by respondent No. 1 on the ground that the union could not be treated as a representative-union under the Act. The reminders sent by the new union on June 21, 1976, June 29, 1976 and July 2, 1976 were also ignored by respondent No. 1. On July 6, 1976, the new union suggested a few names of its members to respondent No. 1 for the purposes of negotiation and requested it to fix a date for that purpose before July 10, 1976. As the attempt at negotiation also failed to evoke a favourable response from respondent No. 1, the new union made a representation to Labour Commissioner on July 10, 1976. A further representation made by the workman to the management of respondent No. 1 on August 15, 1976 which was followed by representations to the Governor of Gujarat on August 18, 1976 and August 25, 1976 also failed to elicit any response from respondent No. 1. Thereupon, the new union gave a strike notice on September 2, 1976 pursuant whereto 131 employees of respondent No. 1 went on strike on September 24, 1976, as already stated.4. On October 4, 1976, the appellant and five other employees of respondent No. 1 made an application to the Labour Court praying that they may be impleaded as parties to the aforesaid proceedings initiated by respondent No. 1 and allowed to appear and defend the same. By means of another application of the even date the appellant and fifteen other employees of the respondent requested the Labour Court to declare the strike as legal. The former application was rejected by the Labour Court vide order dated October 6, 1976 On October 12, 1976, the Labour Court allowed the aforesaid application of respondent No. 1 under S. 79(1) & (4) read with S.78(1) A (C) and S.97(1) of the Act and declared that the employees mentioned in Annexures "A" and "B" to the application resorted to an illegal strike with effect from September 24, 1976 and the continuation thereof was also illegal as it had been resorted to during the pendency of the aforesaid Reference No. 176 of 1976. Aggrieved by these orders, the appellant and Kamalgiri, two of the aforesaid six employees filed, as already stated, Special Civil Application No. 1845 of 1976 in the High Court of Gujarat at Ahmedabad under Art. 227 of the Constitution praying that the aforesaid orders dated October 6, 12, 1976 passed by the Labour Court be quashed. They also asked for a declaration that the strike resorted to by the employees of respondent No. 1 pursuant to the aforesaid notice of strike given by their new union was just, proper and legal and that the employees who resorted to the strike continued to be in service of respondent No. 1 without any break or interruption. The said employees further prayed that respondent No. 1 be directed to award full wages to the employees who went on strike for the period commencing from September 24, 1976 (when they initially went on strike) to the date of resumption of work by them. Vide its order dated November 16, 1976, the High Court summarily dismissed the petition and declined to give leave to appeal to this Court. The appellant thereupon made an application to this Court for Special Leave which was granted. This is how the matter is before us.

Court's reasoning:
9. A plain reading of the above section which was substituted for the original S.80 by the Bombay Act 49 of 1955 makes it clear that the Labour Court can permit the parties affected by the dispute to appear in the manner provided by Ss.80A to 80C of the Act but the discretion conferred on the Labour Court has specifically been made subject to the provisions of Chapter V which deals with "representation of employees and employers and appearance on their behalf" and contains amongst other provisions S.Now a combined reading of Ss. 80, 27A, 30 32, and 33 of the Act leaves no room for doubt that consistent with its avowed policy of preventing the exploitation of the workers and augmenting their bargaining power, the Legislature has clothed the representative-union with lenary power to appear or act on behalf of the employers in any proceedings under the Act and has deprived the individual employees or workmen of the right to appear or act in any proceeding under the Act where the representative-union enters appearance or acts as representative of employees. We are fortified in this view by a decision of this Court in Girja Shankar Kashi Ram v. The Gujarat Spinning and Weaving Co., Ltd., [1962-II L.L.J. 369]; (1962) 2 S.C.R.The first contention advanced by Mr. Dutta is, therefore, overruled.15. The second contention raised by Mr. Dutta is also devoid of substance. Sections 32 and 33 of the Act no doubt engraft exceptions on the aforesaid general rule embodied in S.27A of the Act but they are not helpful to the appellant as the provisos appended thereto specifically preclude individual employees from appearing or acting in any proceeding under the Act where the representative - union enters appearance or acts as the representative of employees.The second contention raised by Mr. Dutta is also, therefore, replied.18. The last contention of Mr. Dutta that in view of the fact that while appearing as the representative-union in respondent No. 1s aforesaid application No. 1455 of 1976, respondent No. 2 was not acting for and on behalf of the employees but was acting mala fide and against their interests, the appellant and his five other co-employees should have been allowed to be added as parties to the application and permitted to appear and act therein has also no force. It has to be remembered that mala fides or bona fides of a representative-union has no relevance while considering the provisions of S.27A and Ss.32 and 33 of the Act which taken together impose an absolute ban on the appearance of any individual employee in any proceeding under the Act where the representative-union chooses to appear or act as representative of the employees. In case, the employees find that the representative-union is acting in a manner which is prejudicial to their interest, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union. The following observations made in Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co. Ltd., (supra) are opposite in this connectionit is clear that bona fides or mala fides of the representative of employees can have nothing to do with the ban placed by S. 27A on the appearance of any one else except the representative of employees as defined in S. 30 and that if anyone else can appear in any proceeding we must find a provision in that behalf in either S. 32 or S. 33, which are the only exceptions to S. 27A. It may be noticed that there is no exceptions in S. 27A. It may be noticed that there is no exception in S. 27A in favour of the employees who might have made an application under S. 42(4), to appear on his own behalf and the ban which is placed by S. 27A will apply equally to such an employee. In order, however, to soften the rigour of the provisions of S. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under S. 42(4), exceptions are provided in Ss. 32 and 33. The scheme of these three provisions clearly is that if the representative-union appears, no one else can appear and carry on a proceeding, even if it be begun on an application under S. 42(4) but where the representative-union does not choose to appear there are provisions in Ss. 32 and 33 which permits others to appear in proceedings under the Act.In view of the above quoted categoric and unequivocal observations, the contrary observations made in N. M. Naik v. Colaba Land Mills, [1960-I L.L.J. 448]; on which strong reliance has been placed by Mr. Dutta must be treated as overruled.20. We have, therefore, no hesitation in agreeing with the view expressed by the Labour Court and the High Court and holding that neither the appellant nor his other co-employees had any locus standi to appear or act as individual employees in the aforesaid proceedings initiated by respondent No. 1 in which respondent No. 2 which the representative-union in the industry in the local area had the right to appear and act as their representative of the employees in the industry and did appear or act as such. We may observe here in passing that even the new union to which the appellant and some of his co-employees belonged would have no right to appear or act on behalf of the appellant or his co-employees in the aforesaid proceedings initiated by respondent No. 1 as it had not been registered and recognised as the representative-union of employees under the Act.21. In conclusion, we wish to make it clear that as learned counsel for the parties have abstained from addressing us regarding the legality or otherwise of the aforesaid strike in view of the fact that it was not open to the appellant to agitate that question because the Labour Court had refused to add him as a party to respondent No. 1s aforesaid application No. 1455 of 1976, we have refrained from making any observation in regard thereto.