Raja Kulkarni & Ors Vs. The State of
Bombay [1953] INSC 73 (24 November 1953)
GHULAM SASTRI, M. PATANJALI (CJ) MAHAJAN,
MEHR CHAND DAS, S.K.
BOSE, VIVIAN
CITATION: 1954 AIR 73 1954 SCR 384
CITATOR INFO :
R 1956 SC 367 (9) R 1982 SC1397 (4) E 1985 SC
311 (19)
ACT:
Constitution of India, arts. 19(1)(a) and
(c)-Bombay Industrial Relations Act, 1946, ss. 3(32), 12, 13-Industrial
Disputes (Appellate Tribunal) Act, 1950, ss. 24, 27-Strike pending appeal
Illegality-Classification of union as "representative" and
"qualified" "cording to percentage of membershipInfringement of fundamental
right to freedom of speech and to form associations.
HEADNOTE:
A strike during the pendency of an appeal
would be an illegal strike under ss. 24 and 25 of the industrial Disputes
(Appellate Tribunal) Act, 1950, even though the appeal is not a valid or
competent one.
The Bombay Industrial Relations Act, 1946,
provided that a union may be registered as a "representative union"
if it had a membership of not less than 15 per cent. of the total number of
employees employed in any industry in any local area and if a union had a
membership of less than 15 per cent and not less than 5 per cent. it can be
registered only as "qualified union" :
Held, that the above provisions did not
infringe the fundamental right of the workers to freedom of speech and
expression and to form associations or unions under article 19(1) (a) and (c)
of the Constitution. The classification of unions as "representative and
"qualified" according to the percentage of membership and giving the
right to unions with a membership of not, less than 15 per cent. alone to
represent the workers was a reasonable classification, and did not infringe the
rule of equality before the law.
CRIMlNAL APPELATE . JURISDICTION : Cases Nos.
87, 88 and 89 of 1951.
Appeals under article , 132(1) of die
Constitution of India from the judgment and Order dated 8th January, 1951, of the High Court of 385 judicature at Bombay (Bavdekar and Dixit JJ.) in
Criminal Appeals Nos. 675, 676 and 677 of 1950.
N. Bharucha and Dara Vania for the
appellants.
M. C. Setalvad, Attorney General for India (G. N.J.oshi and Porus A. Mehta, with him) for the respondent.
1953. November 24. The judgment of the Court
was delivered by GHULAM HASAN J.-These consolidated appeals by the three
appellants arise out of the judgment and order of the High Court of judicature
at Bombay (Bavdekar and Dixit JJ.), whereby the High Court confirmed the
convictions of the appellants recorded by the Presidency Magistrate, Fifth
Court, Greater Bombay, under section 27 of the Industrial Disputes (Appellate
Tribunal) Act (No. XLVIII of 1950) but reduced their sentences from six months'
rigorous imprisonment to three months' simple imprisonment and set aside
against each of the appellants the sentence of fine of Rs. 1,000. The
appellants are the President and the Secretaries of the Mill Mazdoor Sabha, a
union of textile workers in Bombay registered under, the Indian Trade Unions
Act. It appears that there are about 2,10,000 textile workers working in Bombay
and about 35 per cent. of them belong to three different labour unions. The
first is called "Rashtriya Mill Mazdoor. Sangh" which is recognized
as a "representative union under the Bombay Industrial Relations Act,
1946, on the ground that it represents notless than 15 per cent. of such
textile workers. The second is called"the Mill Mazdoor Sabha", of
which the appellants are the office bearers, but this union represents less
than15 per cent.; and the third is "Girni Kamgar,Union" representing
the least percentage of workers. It is common ground that apart from the
members of the above three unions, a large number of workers representing about
65 per cent. arc unorganized and do not belong to any union.
On December 9, 1949, the representative,
union gave a notice of change under section 442 Of the Bombay Industrial
Relations Act, 1946, herein after 386 called the Act, to the Mill Owners
Association in Bombay claiming bonus for that year. On December 23, the dispute
was referred by the Government of Bombay to the Industrial Court under section
23 of the said Act. While this dispute was pending, the Industrial Disputes
(Appellate Tribunal) Act (No. XLVIII of 1950) hereinafter called the Appellate 'Tribunal
Act, came into force on May 20, 1950. On July 7, the Industrial Court made the
award and the same was published on July 13. On August 9, the Mill Owners
Association, which was dissatisfied with the award, filed an appeal before the
Appellate Tribunal and an ad interim order was passed on August 10, directing
how the bonus should be paid. The. appellants made speeches on August 14, 15
and 16, exhorting the workers of the textile industry to go on strike. I The
Labour Commissioner thereupon filed complaints before the Presidency Magistrate
on August 28, charging the appellants with an offence under section 27 of the
Appellate Tribunal Act. The Mill Mazdoor Sabha applied to be made a party to
the appeal, but the application was rejected. As already stated, the appellants
were convicted by the Presidency Magistrate, but their sentences were reduced
on appeal by the High Court.
Two main contentions were raised on behalf of
the appellants, firstly that the conviction under section 27 of the Appellate
Tribunal Act was illegal, because there was no competent and valid appeal
against the award before the Appellate Tribunal and secondly that 'section 27
of the Act is void as being opposed to the fundamental rights of the appellants
under articles 19 (1) (a) and (c) and 14 of the Constitution. Both the
contentions were repelled by the two learned judges who delivered separate but
concurrent judgments. The contentions have been reiterated before us.
In order to deal with the first contention,
it will be, necessary to refer to certain provisions of the Appellate Tribunal
Act. Section 7 of that Act provides an appeal to the Appellate Tribunal from
any award or decision of an Industrial Tribunal 387 (a) if the appeal involves
any substantial question of law;or (b) the award or decision is in respect of
any of the following matters, namely:(i) wages, (i) Wages (ii) bonus or
travelling allowance, * * * * Section 24(b) prohibits a workman, who is
employed in any industrial establishment, from going on strike during the
pendency of an appeal before the Appellate Tribunal and section 25 renders a
strike and a lock-out as illegal if it is declared, commenced or continued in
contravention of the provisions of section 24. Then follows the penalty
provided for in section 27 which says : "Any person, who instigates or
incites others to take part in, or otherwise acts in furtherance of, a strike
or lock-out, which is illegal under this Act, shall be punishable with
imprisonment for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both." The question is whether the
appellants rendered themselves liable to prosecution under section 27, because
they instigated the strike while the appeal was pending before the Appellate
Tribunal.
It is contended that section 24 contemplates
the pendency of a valid and competent appeal, but as no valid or competent
appeal under the law was pending, the appellants committed no offence under
section 27. We are unable to accept this contention. Section 24 on a plain and
natural construction requires for its application no more than that an appeal should
be pending and there is nothing in the language to justify the introduction of
the qualification that it should be valid or competent.
Whether the appeal is valid or competent is a
question entirely for the appellate court before whom the appeal is filed to
determine, and this determination is possible only after the appeal is heard,
but there is nothing to prevent a party from filing an appeal which may ultimately
be found to be, incompetent, e. g., when it is held to be barred by, limitation
or that it does not lie before that court or 388 is concluded by a finding of
fact under section 100 of the Civil Procedure Code. From the mere fact that'
such an appeal is held to be unmaintainable on any ground whatsoever, it does
not follow that there was no appeal pending before the court. Article 182(2) of
the Indian Limitation Act prescribes three years period of limitation for the
execution of a decree or order to run from the date of the final decree or
order of the Appellate Court "when there has been an appeal." The
Privy Council construed the latter phrase to mean that any application by a
party to the appellate court to set aside or revise a decree, or order of a
court subordinate thereto is an "appear, within the meaning of the above
provision, even though it is irregular or incompetent, or the persons affected
by the application to execute were not parties, or it did not imperil the whole
decree or order. They refused, to read into the words any qualification either
as to the character of the appeal, or as to the parties to it. [Nagendra Nath
Dey and Another v. Suresh Chandra Dey and Others (1)]. We consider that the
word "appeal must be construed in its plain and natural sense without the
insertion of any qualifying words' such as are intended to be introduced by
the, contention raised before us. There is yet another reason for not
construing the word "appeal" in the manner suggested by the appellants
and that is that the legislature in introducing this provision contemplated
that industrial peace should not be disturbed so long as, the matter was
pending in the court of appeal, irrespective of the fact whether such an appeal
was competent in: law. If this were not the case, the parties could easily,
defeat the object of the legislature by arrogating to, themselves the right to
decide about' the competency of the appeal without reference to the court,
commit a breach of the peace and escape the penalty imposed by section 27.
There was no justification for the appellants to instigate the, workers in the
so-called bow flde belief that section 27 did not apply to an appeal which they
thought was incompetent. In this, view of the matter it is not necessary to consider
(1) 59 I. A. 283.
389 whether the conferment of a right of
appeal during the pendency of a proceeding can affect the rights of the parties
to those proceedings and make the order in the pending proceeding appealable.
The second contention relates to the alleged
infringement of the rights Of the appellants under article 19(I) (a) and (c),
read with article 14 of the Constitution. In order to understand this
contention, a reference to the provisions of the Bombay Industrial Relations
Act, 1946, will be necessary.
Section 3, sub-section (32), defines
"representative of employees" as one entitled to act as such under
section 30, and "representative union," is defined as a union for the
time being registered as a representative union under the Act [subsection
(33)].
Section 12 enjoins upon the Registrar of
Unions appointed under the Act to maintain :
(a) a register of unions registered by him
under the provisions of the Act, and (b) a list of approved unions.
Section 13 deals with the registration of unions
by the Registrar. By the first sub-section a union can be registered as a
"representative union" for an industry in a local area if it has for
the whole of the period of the three months next preceding the date of its
application, a membership of not less than 15 per cent. of the total number of
employees employed in any industry in any local area. If a union does not
satisfy that condition, and has a membership of not less than 15 per cent., it
can be registered as a "qualified union."If neither of these unions
has been registered in respect of an industry, then a union having a membership
of not less than 15 per cent. of the total number of employees employed in any
undertaking in such industry can by an application to the Registrar be
registered as a "primary union." It is common ground that the
Rashtriya Mill Mazdoor Sangh comes under the first category and the union of
which the appellants are office bearers comes under the second namely that it
is a qualified union. This registration can be cancelled under section 15 if it
has 393 S. C. India/59 390 been procured by mistake, misrepresentation or fraud
or if the membership has fallen below the minimum required under section 13 for
its registration.
It is argued that the right of the appellants
to freedom of speech and expression and to form associations or unions under
article 19(I) (a) and (c), read with article 14, conferring the right of
equality before the law or the equal protection of the laws is infringed by the
Act, inasmuch as it gives preference to a trade union upon the artificial test
of having the greater percentage of membership, namely, not less than 15per
cent. We see little merit in this contention. It is obvious that the Act
imposes no restriction either upon the freedom of speech and expression of the
textile workers or their right to form associations or unions indeed it is not
denied that the workers have already formed as many as three unions, though
they do not exhaust the number of workers in Bombay, for it leaves as many as 65
per cent. of workers unorganized who do not belong to any trade union. The
statute lays down the minimum qualification of 15 per cent of membership to
enable the Union to be called a "representative union" so as to represent
the interests of the entire body of workers in their relations with the
employers. After laying down the test of not less than 15 per cent. it was
perfectly reasonable not to allow any other union such as the appellants to
interpose in a dispute on behalf of the textile workers when they did not
command the minimum percentage or when their membership fell below the
prescribed percentage. It is perfectly open to the appellants to enlist that
percentage or even a higher one and claim precedence over the Rashtriya Mill
Mazdoor Sangh so as to be able to represent the interests of all the workers.
The right to freedom of speech and expression is not denied to the appellants,
nor are they prohibited from forming associations or unions. The Act makes no
discrimination between textile workers as a class but lays down a reasonable'
classification to the effect that a certain percentage of membership possessed
by a union will be allowed to represent the workers as a class to the exclusion
of others, but there is nothing 391 to prevent the other unions or other
workers from forming a fresh union and enrolling a higher percent-age so as to
acquire the sole right of representation. The appellants challenge the validity
of the Act as infringing their fundamental rights and yet they base their case
of discrimination on the provisions of the same Act. This position is not in
accord with reason ,or principle.
We hold, therefore, that the appellants have
made ,out no case for interference with the orders of the courts below.
We uphold the convictions and sentences and
dismiss the appeal.
Appeal dismissed.
Agent for the appellant : Raiinder Narain.
Agent for the respondent: G. H. Rajadhyaksha.
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