All Marathwada Kamgar Union,At Khokadpura, Aurangabad, Currently operating from v. D. Deshpande Hall, N
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 9808 OF 2021New Panther Kamgar Sena,Forbes Housing Society,Trimurty Chowk, MIDC, Bajaj Nagar,Aurangabad – 431001,Through Its President ...PetitionerVersus1.NRB Bearing Pvt. Ltd.C-6, Additional MIDC Area,Jalna, Dist. Jalna – 431213,Through Its Managing Director.2.All Marathwada Kamgar Union,At Khokadpura, Aurangabad, Currently operating from V. D. Deshpande Hall, N-7,CIDCO, Aurangabad – 431001,Through its General Secretary.3.Panther Power Kamgar SanghatanaMahatma Phule Nagar, Peer Bazar, Usmanpura, Aurangabad – 431001Through its Secretary. …RespondentsMr. T. K. Prabhakaran a/w Mr. A. S. Kulkarni, Advocate for the PetitionerMr. S. V. Dankh, Advocate for Respondent No. 1 (through VC)Mr. A. B. Gaikwad Patil, Advocate for Respondent No. 2CORAM: R. M. JOSHI, J.DATE: 10th DECEMBER, 2024JUDGMENT :-1.By consent of both sides, heard finally at the stage of939-WP- 9808-2021.odt1 of 12 admission.2.This petition takes exception to the order passed belowExhibit C-42 whereby application filed by the petitioner - Trade Union toadd itself as a party to the proceeding bearing application MRTU No.1/2015 for seeking recognition filed by Respondent No. 2, came to berejected by the Industrial Court, Jalna.3.The petitioner claims to be a trade union registered under theTrade Unions Act. It also claims to be representing the employees ofrespondent No. 1 Company. Such claim of membership of theseemployees is from year 2018. It is the case of the petitioner thatrespondent No.3 (Panther Power Kamgar Sanghatana) was existing in theCompany at the relevant time and was representing the workmen of thecompany. It however became defunct and hence the petitioner is entitledto be joined itself as a party to the proceedings filed for recognition filedby the respondent No.2 (All Marathwada Kamgar Union). Therefore, anapplication was filed vide Exhibit C-42 to make petitioner party to thesaid proceedings. The said application came to be rejected on the groundthat the petitioner Union was not in existence at the time of the filing ofthe application which is concerned with the membership of theemployees for the period of six months prior to filing of the same.939-WP- 9808-2021.odt2 of 12
Legal Reasoning
4.Learned counsel appearing on behalf of the petitioner/Unionsubmits that in view of the provisions of Section 12 read with Section 19of the Maharashtra Recognition of Trade Unions and Prevention of UnfairLabour Practices Laws Act, 1971 (for short ‘the Act’), it is not only forthe Trade Union but also even to the employees of the undertaking toraise objection to the grant of recognition to the union. It is hissubmission that it is not necessary that the Trade Union must exist at thetime of filing of the application and any union which gains membership ofthe employees even at a later point of time will have to be permitted toraise objection to the grant of recognition. It is his submission that forthe purpose of recognition, the membership of the applicant Union onlyis not relevant but also compliance of Section 19 of the Act is mandatoryand non-compliance thereof could be established by Petitioner. It is hisfurther submission that in any case, respondent No.3 was a party to thesaid application and as such, there is no justification for denying thepresent petitioner/Union to be join as a party to the said proceedingbeing successor thereof. He further argued that the Respondent No.2/Union is a union sponsored by the employer and it is not in the interestof the employees. He also submitted that if recognition is granted toRespondent No. 2, Petitioner would not be able to seek de-recognition fora period of at least one year. He has placed reliance on the judgment ofHon’ble Supreme Court Vegetable Vitamin Foods Employees Union939-WP- 9808-2021.odt3 of 12 Versus Sarva Shramik Sangh, 2006(9)CPSC781, to seeks directionssimilar to the one issued therein.5.Learned counsel for respondent No.2/Union supported theimpugned order on the ground that unless, the union was in existence atthe time of filing of the application, it is not open for such Union to raiseobjection to the grant of recognition. He also argued that the objectionswhich were not taken pursuant to notice issued by Industrial Court underSection 12, cannot be allowed to be raised now. 6.Before considering the factual matrix, it would be necessaryto appreciate scheme of recognition of a trade union under the provisionsof Act of 1971. Chapter III of the Act deals with the recognition ofunions. Section 10 makes it clear that the said chapter applies to everyundertaking where 50 or more employees are employed or wereemployed on any day preceding 12 months. Thus, if the number ofemployees employed in an undertaking at any time, falls below 50continuously in a period of an year, the provisions of this chapter ceasesto apply to such undertaking. In so far as present case is concerned,admittedly, the employees employed by respondent/employer are morethan 50 at all points of time and as such, the chapter III has applicationto the present case.939-WP- 9808-2021.odt4 of 12 7.Section 11 contemplates and lays down the procedure forrecognition of a union. A union which is desirous of being registered as arecognized union in any undertaking has to make an application to theIndustrial Court for the said purpose. The condition precedent for makingsuch application is that the union may not have less than 30 percent ofthe total number of employees in that undertaking as its numbers for thewhole of the period of six calender months immediately preceding thecalender month in which it makes an application. 8.Section 12 requires Industrial Court on such an applicationbeing received under Section 11 of the Act to call upon the employer todisplay on notice board of the undertaking for which recognition issought, stating therein that the Court intends to consider the saidapplication on the date specified in the notice. Said notice also to callupon other union or unions, if any, in the undertaking as well asemployees or employer affected by the proposal of recognition to showcause within a prescribed time as to why recognition ought not to begranted to the applicant union. It is after considering the objections ifany received and after holding such inquiry in the manner as it deems fitthe Industrial Court to come to the conclusion as to whether theapplicant union satisfies the conditions as stipulated in Section 11. TheIndustrial Court is also required to satisfy itself that the conditions939-WP- 9808-2021.odt5 of 12 contemplated by Section 19 of the act are also fulfilled in order to issueCertificate of Recognition to such union.9.The aforestated provisions, therefore, clearly demonstratethat the union which desires to seek recognition must prove that forpreceding six months of making the application for recognition, the unionhas not less than 30 percent of membership amongst employees of theemployer. So also that the union satisfies the condition specified inSection 19 of the Act. Section 12 mandates that an employer, any unionfunctioning in the undertaking or even employees who are affected bythe proposal for recognition are to show cause within a prescribed periodas to why recognition should not be granted to the applicant union.Section 11 also mandates the decision of the application within a periodof three months from the date of receipt of the application if theconcerned undertaking is situated in the same local area and in anyother case within four months.10.These provisions are essentially in order to ensure that theinterest of the industrial establishment as well as the workmen is takencare. The requirement of the decision on such application within a periodof three/four months indicates that the issue of recognition of an unioncannot be deferred for a longer period. There could even be a situation939-WP- 9808-2021.odt6 of 12 that the employer is interested to oppose grant of recognition to a union,as employer is mandatorily required to hold negotiations/settlement etcwith it. Apart from this, office bearers of the recognized union are havingcertain privileges and protections under the law which employer maywant to deny. It is not unknown phenomenon to the trade union fieldthat employer sponsors union of the workmen and, therefore, provisionsis made in the Act to treat such act on part of the employer to be unfairlabour practice. Schedule III of the Act enumerates the acts of employerwhich amounts to unfair labour practices. Items 2 and 3 are relevant forthe purpose of present Petition. The legislature, therefore, has takencare that an employer is not allowed to cause interference in the tradeunion activities in any manner. The time frame provided for decision ofapplication for recognition assumes importance from this angle too. Soalso, shifting of loyalty of workmen is not seldom. Ultimately, bothsituations are not only against the interest of the workmen/union butalso not condusive to the industrial peace.11.These provisions, therefore, underline the intention of thelegislature behind calling upon the parties to raise objection to therecognition within the prescribed period as notified in the notice issuedby the Industrial Court under Section 12 of the Act. The mandate of thelaw for conclusion of the decision on such application within three939-WP- 9808-2021.odt7 of 12 months or four months, as the case may be, further confirms the timeframe required to be adhered by the Court.12.Reverting back to the facts of the present case, it is not indispute that on 09.04.2015 Respondent No. 2 – Union filed Application(MRTU) 1 of 2015 for recognition under Section 11 of the Act.Respondent No. 3 was joined as party to the said application. Pursuant tonotice issued by Industrial Court under Section 12 of the Act, employerand another Trade Union existing in undertaking filed written statements.The employer recorded no objection for grant of recognition. WhereasRespondent No. 3 – Trade Union objected to the same by filing writtenstatement in the form of denial. Pertinently, none of the employees ofRespondent No. 1 – Employer raised objection to the grant of recognitionnor denied membership of the Applicant Union. It is pertinent to notethat Petitioner herein does not claim that there is no membership of theRespondent No. 2 Union (Original Applicant) in the undertaking ofRespondent No.1 – Employer. 13.It is not disputed that Petitioner Union was non existent inthe undertaking when application for recognition is filed. It is claimed tohave been formed in 2018. At this stage, it would be relevant to takenote of the order passed by this Court in Writ Petition No. 8583/2019which is relied upon by Petitioner. Perusal of the said judgment shows939-WP- 9808-2021.odt8 of 12 that the Employer entered into settlement with All Marathwada KamgarUnion (Respondent No. 2 herein /Original Applicant) on 13.12.2017. Thesettlement signed by this Union is accepted by all workmen of theundertaking including persons who claimed to be members of PetitionerUnion. Thus, this fact shows that there is no prima facie substance in thecontention of the Petitioner that Respondent No. 2 Union is againstinterest of the workmen. 14.It is sought to be argued on behalf of the petitioner that therespondent No.3 was in existence at the relevant time and, therefore,was made a party to the said proceeding and since it is defunct, thepresent petitioner has a right to represent the employee that thispetitioner is succeeding the said Union. As far as this contention isconcerned, first of all petitioner cannot be said to be the successor of therespondent No.3 for the simple reason that it is independent registeredTrade Union. The membership of the said Union cannot be said to havebeen transferred to Petitioner Union. The Petitioner Union can only claimits membership from year 2018. Thus, question of substitution of oneunion for another does not arise. 15.Similarly, this Court prima facie finds no substance in thecontention of the Petitioner that Respondent No. 2 is not a registeredtrade union. Had it been so an objection would have been raised before939-WP- 9808-2021.odt9 of 12 this Court in Writ Petition No. 8583/2019 in that regard. Perusal of thejudgment passed therein does not show any such issue being raised byPetitioner. 16.Since the relevant provisions require Respondent No. 2(Original Applicant) to prove that it had membership of not less than30% amongst in the employees of undertaking and also to show that itcomplies with requirements of Section 19, the Union which did not existwould not be in a position to stake claim in respect of membershipamongst employees at relevant time nor could raise issue with regard tothe compliance of Section 19 of the Act, which compliances are internalmatters of the Union which seeks recognition. Similarly, because anapplication would be required to be filed for cancellation if recognition isgranted to respondent No.2, can never become ground for impledment ofpetitioner. The provision of Section 13 adequately deal with the situationin which cancellation of recognition of a union is required. So alsoSection 14 of the Act enables any union to get recognition in place ofrecognized union. Thus, having regard to these statutory provisions, thisCourt finds no merit in the contention of petitioner that it would have toinitiate proceeding for cancellation or recognition in place of respondentNo.2, if it is granted to it.17.It is clear from above quoted provisions of the Act that for939-WP- 9808-2021.odt10 of 12 the purpose of grant of recognition, period of six months preceding thedate of filing of application is relevant. It is not open for the IndustrialCourt to consider any other period for grant of recognition. The judgmentin case of Vegetable Vitamin Foods (supra) indicates that the Hon’bleSupreme Court in its discretion has directed Industrial Court to considera particular date, which is not date of filing of application for purpose ofdetermination of membership. In respectful view of this Court, thisjudgment would not apply to present case. In any case, issue before thisCourt in this Petition is as to whether the Petitioner Union which did notexist during relevant period or at the time of filing of application can beallowed to be joined as party Respondent to application for recognition.18.In considered view of this Court and having regard to theprovisions of the Act, it would not be open for a Union to seekimpleadment as party to the application for recognition, in case suchUnion does not exist in the undertaking when notice is issued by theIndustrial Court under Section 12 of the Act seeking show cause fromUnion/Employer/Employees within a prescribed time. Moreover, in thefacts of the present case, the petitioner Union is not entitled to becomeparty to the proceedings of Application (ULP) No. 1/2015. 19.As a result of above discussion, this Court finds no merits inthe Petition. Hence, order impugned stands confirmed and Petition is939-WP- 9808-2021.odt11 of 12 dismissed.20.At this stage, learned counsel for the petitioner seekscontinuation of the order dated 08.09.2021 passed by this Court for aperiod of 8 weeks to take exception to the present judgment before theHon’ble Supreme Court. 21.Learned counsel for the contesting respondent No. 2 opposesthe said prayer.22.Undisputedly, there is relief in favour of the petitioner since08.09.2021. In such circumstances, this Court finds no reason not toextend the said order for a reasonable period from today. Accordingly,this order is extended for the period of six weeks. (R. M. JOSHI, J.)bsj939-WP- 9808-2021.odt12 of 12