Mumbai Mazdoor Sabha Vs. Bennet
Coleman & Company Ltd. & Ors [1986] INSC 108 (6 May 1986)
MISRA, R.B. (J) MISRA, R.B. (J) ERADI, V.
BALAKRISHNA (J) CITATION: 1986 SCR (2)1008 1986 SCC Supl. 171 1986 SCALE
(1)1231
ACT:
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971, sections 3(ii), 11 7 and 19,
scope of construction of labour legislation - Court should adopt a commonsense
construction and where two constructions are possible, the one which is more
rational should be accepted.
Estoppel by conduct - Respondent giving up
the objections before the Investigation Officer appointed by the Tribunal would
be estopped from raising the same before the Tribunal later - New case cannot
be carved out by the Tribunal either.
HEADNOTE:
Section 11 of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Practices Act, 1971 envisages that any
Union which has for the whole of the period of six calendar months immediately
preceding the calendar month in which it so applies under this section a
membership of not less than thirty percent of the total number of employees
employed in any undertaking may apply in the prescribed form to the Industrial
Court for being registered as a recognised union of such undertaking.
Section 3(ii) of the Act defines the term
"member" Section 19 of the Act obligates that the rules of the
Constitution of a union seeking recognition under the Act shall provide for the
following matters and the provision thereof shall be duly observed by the
Union, namely, (i) the membership subscription shall be not less than fifty
paise per month;
(ii) the Executive Committee shall meet at
intervals of not more than three months; (iii) all resolutions passed, whether
by the Executive Committee or the General Body of the union, shall be recorded
in a Minute Book kept for the purpose; and (iv) an Auditor appointed by the
State Government may audit its account at least once in each financial year.
The appellant union moved an application
before the Industrial Court under section 11 of the Act for recognition 1009 Of
its union as a recognised union in respect of the first respondent company
Bennet, Coleman & Company Ltd. and filed its subscription Receipt Books,
Membership Register, Bank Pass Book, Ledger and Minute Book Copy of its
Constitution etc. to prove that the persons claimed by the appellant as its
members (totalling 67 per cent of the total working force) are in fact its
members. In the said application, the appellant impleaded respondent No. 2, the
Times of India and Allied Publications Employees Union operating in the
Respondent No. 1 company and having some membership amongst the workmen
employed therein. The second respondent filed written objections. The
Industrial Court felt that it would be impossible for it to receive evidence of
approximately 1500 workmen and therefore appointed an Investigating Officer
under section 9 of the Act for the purpose of determining the membership of the
rival unions. In the meeting held before the Investigating Officer on
16.10.1981, a unanimous decision was taken by all the parties including the
representaties of the second Respondent union wherein it was expressly agreed
that only one question will be put to all workmen (i.e.) "In the year 1980
you were a member of which union". It was further agreed upon that in case
the workman did not know the name of the union, they would be asked the name of
the union leader or of the Committee Member of the Union to which they belong.
Although the second Respondent had taken a number of pleas both in its
preliminary and subsequent written objections it did not raise any such
objection before the Investigating Officer and rest content by putting one
question to all the workmen as agreed upon between the parties. The respondent union
either gave up other objections or waived the same. After taking the evidence,
the Investigating Officer accepted the claim of the appellant-union and
submitted his report to the Industrial Court on March 12, 1982. The Industrial
Court instead of accepting the report of the Investigating Officer permitted
the respondent union to raise objections to the grant of the application. The
appellant union was refused permission to produce material evidence to meet the
objections raised. However, the Industrial Court overruled most of the
objections raised, but accepting the three objections, namely, (1) that the
Constitution of the appellant union is at variance with the requirement of
clause (i) of section 19 inasmuch as the requirement of Section 19(1) 18 that
the ruler of the union must provide that the membership subscription shall not
be H 1010 less than fifty paise per month. But the Constitution ant the rules
of the appellant union does not satisfy this requirement of section 19(1). (2)
that a fairly large number of workers alleged to be members of the appellant
union were in arrears of the subscription for a period of more than three
calendar months during the period of six months immediately preceding such
time; and (3) that some of the new members included as the workers of the
appellant union had not paid their admission fees, dismissed the application of
the appellant-union. Hence the appeal by special leave.
Allowing the appeal, the Court, ^
HELD: 1. The Court has to adopt a commonsense
construction of a labour statute ant in any case where two constructions are
possible, the one which is more rational should be accepted. [1019 C]
2.1 Rule 3 of the Constitution of the
appellant union substantially satisfies the requirement of clause (i) of
section 19 of the Maharashtra Recognition of Trade Unions ant Prevention of
Unfair Labour Practices Act, 1971. me Constitution of the union provides for
subscription of a sum of Rs. 24 for twelve months or Rs. 12 for six months
which works out to Rs.2 per month which is obviously more than fifty paise per
month required under clause (i) of section 19 of the Act. [1017 E-F]
2.2 Section 19 toes not talk of payment of
subscription but talks of only four requirements stated therein. Reading
section 3(11) as a whole, it is evident, that while defining "member"
it permits the time for payment of subscription to be extended for a period of
three months beyond the month in respect of which it becomes due. Therefore,
the lumpsum payment of three months will satisfy the requirement of section
3(11) of the Act. [1018 F-G]
2.3 me requirement of section 3(11) of the
Act is only about the payment of subscription ant not about the admission fee.
If there is evidence to show that subscription has been received from the
workmen it pre- supposes hat they were the valid members as no subscription
will be taken from a workman who is not a member of the union and that also
leads to the 1011 conclusion that the workmen were the valid members of the
union according to the rules of the union. In view of the provision in Rule 3
of the Constitution itself exempting any worker or workers from payment of
admission fee of Re.1 even if admission fee had not been paid it cannot affect
the membership of the workman. [1020 D-E; F]
3. No new case which was not pleaded can be
carved out by a Tribunal, as has been made out in this case. Besides both the
parties having entered into an agreement to put only one question to each
worker, the other objection having been either given up or waived respondent No.2
would be estopped from raising objections before the Industrial Court. [1020 B;
1019 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
4519 of 1985.
From the Judgment and Order dated 8.2.1985 of
the Industrial Court at Maharashtra in Appln. (MRTU) No. 22 of 1980.
J.P. Cama and Mukul Mudgal for the Appellant.
P.R. Seetharaman (not present) and M.A.
Krishnamurthy for the Respondents.
The Judgment of the Court was delivered by
R.B. MISRA, J. The present appeal by special leave is directed against the
judgment and order of the Industrial F Court dated February 8, 1985 arising out
of an application under section 11 of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter
referred to as "the Act").
Section 11 of the Act envisages that any
Union which has for the whole of the period of six calendar months immediately
preceding the calendar month in which it so applies under this section a
membership of not less than thirty per cent of the total number of employees
employed in any undertaking may apply in the prescribed form to the Industrial
Court for being registered as a recognised union of such undertaking. The
appellant-Union moved an application before the Industrial 1012 Court for
recognition of its union as a recognised union in respect of the first
respondent, Bennet Coleman & Company Ltd. In the said application the
appellant impleaded besides respondent No.1, respondent No.2, the Times of
India and All{ed Publications Employees' Union operating in the 1st respondent
Company and having some membership amongst the workmen employed therein. The
appellant alleged that its membership for the relevant period of six months
prior to the date of application stood at the rate of 67 per cent of the total
working force. The appellant annexed a list of the workmen whom it claimed as
its members and a copy of the Constitution of the appellant-union.
The Second Respondent on or about the 15th of
December, 1980, filed certain preliminary objections to the application of the
appellant. The principal objection being that the appellant-union had
instigated a strike deemed to be illegal under the Act and was therefore
debarred from obtaining recognition. This objection was specifically overruled
by the Third Respondent. Industrial Court.
On 25th March, 1981, the second respondent
filed its own application under section 11 for being registered as a recognised
union in the said establishment and claimed membership of 46 per cent of the
employees. The appellant- union filed its objections to the said application.
The Second Respondent also filed further written objections to the original
application filed by the appellant-union. Later on, the Second Respondent
withdrew its application for recognition and, therefore, we are not concerned
with the application of the Second Respondent in the present case and the
appeal is confined only to the application filed by the appellant-union.
The appellant union filed before the
Industrial Court its Subscription Receipt Books, Membership Register, Bank Pass
Book, Ledger and Minute Book to prove that the persons claimed by the appellant
as its members are In fact its members. After hearing both the parties, the
Industrial Court felt that it would be impossible for it to receive evidence of
approximately 1500 workmen and therefore decided to appoint an Investigating
Officer under section 9 of the Act for the purpose of determining the
membership of the rival unions and 1013 by its order dated September 11, 1981
appointed an Investigating Officer. The order passed by the Industrial Court is
as under :
"In this matter the applicant union has
produced its documents and the non-applicant union although has not produced
any documentary evidence has claimed a substantial membership of their union.
In view of the rival contentions, it is
necessary that the Investigating Officer holds an inquiry and makes a report as
to the correct claim of membership of each union by interrogating individual
members in the presence of one representative of each union. Liberty is granted
to the non-applicant union to produce their documents on or before the 21st
September, 1981.
However, if the non-applicant union fails to
produce the said documentary evidence, the Investigating Officer may proceed
with the inquiry as directed above and submit his report by the end of this
month." Pursuant to the said order dated September 11, 1981, the
Investigating Officer called a meeting of the representatives of the appellant
and the First and Second Respondents on October 16, 1981 to discuss and decide
all the issues relating to the aforesaid investigation as also the nature of
questions which should be asked to the workmen who would be appearing before
the Investigating Officer. It appears that in the aforesaid meeting a unanimous
decision was taken by all the parties including the representatives of the
Second Respondent Union wherein it was expressly agreed that only one question
will be put to all workmen, i.e., "In the year 1980 you were a member of
which Union?" It was further agreed between the parties that in case the
workmen did not know the name of the union, they would be asked the name of the
union leader or of the Committee Member of the union to which they belong. It
was so agreed because all the parties realised that very often the workmen do
not know the precise name of the union to which they belong and only associate
themselves with the name of the President of the Union or the office bearers
thereof. The said agreement between the parties was reduced to writing by the
Investigating Officer by his order dated October 16, 1981. The agreement also
indicated that the inquiry will be conducted in 1014 Marathi and also if
required, either in Hindi or in English, as the case may be.
The Investigating Officer issued a letter to
the First Respondent Company dated October 30, 1981 calling upon it to publish
a notice on its Notice Board informing the workmen of the aforesaid
investigation proceedings, together with the list of the workmen to be
interrogated on behalf of both the unions. The investigation, however, could
not start on account of some dilatory tactics adopted by the Second Respondent
Union. The Investigating Officer, therefore, moved the Industrial Court on
January 25, 1982 for further directions and the Industrial Court gave the
necessary directions in the following terms :
"Heard both Shri Deo and Shri Bandekar.
The Investigating Officer to continue his investigation. After giving usual
notice to all the parties concerned, he should proceed with the work, whether
any of the parties appeared or not after due service." Pursuant to the
aforesaid order, the Investigating Officer issued notice dated February 3, 1982
to the appellant-union and the Second Respondent intimating that he intends to
start the investigation of membership on and from February 8, 1982. Both the
unions were, therefore, requested to remain present during the course of the
said investigation.
Although the Second Respondent had taken a
number of pleas both in its preliminary and subsequent written objections, it
did not raise any such objection before the Investigating Officer and rest
content by putting one question to all the workmen as agreed upon between the
parties before the Investigating Officer. The respondent union either gave up
other objections or waived the same.
Out of 1478 members claimed by the
appellant-union, 1311 members appeared before the Investigating Officer and
1309 submitted their statements admitting membership of the appellant-union. On
the other hand, out of 1002 members claimed by the respondent-union only 188
appeared before the 1015 Investigating Officer. Out of 188 workmen, only 12
stated that they were members of the respondent-union in 1980. Even out of
those 12 members, two workmen subsequently approached the Investigating Officer
and submitted in writing their revised statements stating that they had made
their statements that they were members of the respondent-union on account of
some misunderstanding and they, therefore, desired to change their statements.
Further, out of the remaining 176 members claimed by the respondent-union, 172
stepped forward to say that they considered themselves as the members of the
appellant-union during the year 1980. The appellant-union, however, disowned
those persons inasmuch as they had not specifically joined the appellant-union
like members specifically referred in its application for recognition. In this
situation, it can be safely inferred that 172 workmen though not members of the
appellant-union, had leaning and sympathy towards that union rather than with
the respondent-union. The Investigating Officer accepted the claim of the
appellant-union and submitted his report to the Industrial Court on March 12,
1982.
In the normal course, the Industrial Court in
the absence of any other objection raised by the respondent- union before the
Investigating Officer should have accepted the conclusions arrived at by the
Investigating Officer. The Industrial Court, however, permitted the
respondent-union to raise objections despite the fact that the respondent-union
had given up or waived other objections before the Investigating Officer.
The appellant did not produce material
evidence before the Investigating Officer to meet the objections taken in the
written objections as they were given up before the Investigating Officer. The
appellant in this situation sought the permission of the Industrial Court to
adduce evidence to meet the objections sought to be raised before the
Industrial Court. The Court however refused the permission. The appellant,
therefore, had no option but to rely only on the material already on the
record.
The respondent-union raised a number of
objections some based on the written objections and some objections were taken
a fresh before the Industrial Court. The Industrial Court overruled most of the
objections but accepted three objections 1016 raised by the respondent-union.
In the result, the Industrial Court dismissed the application of the appellant-
union for recognition. me three objections which weighed with the Industrial
Court are : (1) that the Constitution of the appellant-union is at variance
with the requirement of clause (i) of section 19 inasmuch as the requirement of
section 19(1) is that the rules of the union must provide that the membership
subscription shall not be less than fifty paise per month. But the Constitution
and the rules of the appellant union does not satisfy this requirement of
section 19; (2) that a fairly large number of workers alleged to be members of
the appellant union were in arrears of the subscription for a period of more
than three calendar months during the period of six months immediately
preceding such time; and (3) that some of the new members included as the
workers of the appellant union had not paid their admission fees.
The appellant has now come by special leave
to this Court to challenge the order of the Industrial Court.
Before dealing with the questions raised in
this appeal, it would be appropriate at this stage to refer to the relevant
provisions of the Act. Section 19 of the act obligates that the rules or the
Constitution of a union seeking recognition under this Act shall provide for
the following matters and the provision thereof shall be duly observed by the
union, namely,- (i) the membership subscription shall be not less than fifty
paise per month;
(ii) the Executive Committee shall meet at
intervals of not more than three months;
(iii) all resolutions passed, whether by the
Executive Committee or the General Body of the union, shall be recorded in a
Minute Book kept for the purpose; and (iv) an Auditor appointed by the State
Government may audit its account at least once in each financial year.
1017 According to Section 19 of the Act, the
rules of a union seeking recognition under this Act shall provide for, inter
alia, that the membership subscription shall not be less than fifty paise per
month. One of the questions for consideration is whether there has been the
compliance of clause (i) of section 19 of the Act. me relevant rule in the
Constitution of the appellant-union is rule 3. In so far as lt is relevant for
the purpose of this case, it reads :
"Any worker aged more than 18 years,
employed in any unit of industries as mentioned in Schedule 'A' ... ... shall
be entitled to become an ordinary member of the Sabha on payment of an
admission fee of Rupee one and annual subscription of Rs. 24 at one time or at
the rate of Rs. 12 for six months.. ... ... The President may exempt any worker
or workers from payment of admission fee of Rupee One at any time. In case any
member joins or forms a rival union or joins or forms a rival union or joins
hands with employer in any manner his membership whether ordinary or life in
the Sabha, stands automatically terminated. Membership fee paid shall not be refunded
to the Member." The only requirement of clause (i) of section 19 is that
the rule or the Constitution of the Union must provide that the membership
subscription shall not be less than fifty paise per month. me Constitution of
the Union provides that a sum of Rs. 24 for twelve months or Rs. 12 for six
months will be the subscription of a member. mis works out to Rs. 2 per month
which is obviously more than fifty paise per month. The Industrial Court,
however, took the view that the appellant ought to have led evidence to show
that its members understood the Constitution to mean that payment of
subscription was at the rate of Rs.2 per month. The reasoning given by the
Industrial Court, in our opinion, is not at all tenable. Rule 3 of the
Constitution of the Union undoubtedly provides for subscription of Rs.2 per
month which is in excess of fifty paise as contemplated by clause (i) of
section 19. Thus, in our opinion, Rule 3 substantially satisfies the
requirement of clause (i) of section 19.
1018 This leads us to the second ground which
prevailed with the Industrial Court, namely, whether the workers alleged to be
the members of the appellant-union were in arrears for a period for more than
three calendar months during the period of six months immediately preceding
such time. The Industrial Court relied on the definition of member as given in
clause (11) of section 3 of the Act, which reads thus :
"3(11) - "Member" means a
person who is an ordinary member of a union, and has paid a subscription to the
union of not less than fifty paise per calendar month :
Provided that, no person shall at any time be
deemed to be a member, if his subscription is in arrears for a period of more
than three calendar months during the period of six months immediately preceding
such time, and the expression "membership" shall be construed,
accordingly.
Explanation - A subscription for a particular
calendar month shall, for the purpose of this clause, be deemed to be in
arrears, if such subscription is not paid within three months after the end of
the calendar month in respect of which it is due;" As a matter of fact,
section 19 does not talk of payment of subscription but talks of only four
requirements as enumerated in section 19. The Industrial Court, however, was of
the view that the appellant union had to establish that the workmen claimed to
be its members had paid the subscription as required by section 3(11) of the
Act and it is on these basis that the Industrial Court imported section 3(11)
while considering the requirements of section 19. It is on the strength of the
explanation added to clause (11) of section 3 that the Industrial Court held
that subscription should have been paid month by month.
Reading section 3(11) as a whole, it is
evident that while defining member it permits the time for payment of
subscription to be extended for a period of three months beyond the month in
respect of which it becomes due.
1019 Therefore, the lump sum payment of three
months will, in our opinion, satisfy the requirement of section 3(11) and the
Industrial Court has taken a hypertechnical view of section 3(11) of the Act.
The real crux of the problem is whether the
appellant- union seeking recognition under this Act provides for the matters
enumerated in the various clauses of section 1 9.
The Court has to adopt a commonsense
construction and in any case where two constructions are possible, the one
which is more rational should be accepted. Since the Constitution of the
appellant-union provides for an annual subscription of Rs.24 at one time or Rs.
12 for every six months, the said amounts are paid in relation to specific
months and are meant to cover each of these months.
There is yet another aspect which cannot be
lost sight of. In the first written objection which was by way of preliminary
one, the plea taken was that the appellant-union had not paid the subscription
at all but in the second written objection, the respondent-union had modified
its earlier stand and took up the stand that there was some discrepancy between
the amount collected under the head subscription and the number of persons in
respect of whom it was so collected. me disparity, if any, was only in respect
of members at serial numbers 2, 3 and 4 of the list and that too, only of a
marginal amount having no real impact on the overall question of payment of
subscription.
Besides, both the parties having entered into
an agreement to put only one question to each worker, as indicated earlier, the
other objection had been either given up or waived and respondent No.2 would be
estopped from raising those objections before the Industrial Court.
Indeed, the Industrial Court itself refused
to accept the respondents' challenge to the identity of the workmen on the
ground that the respondent-union had not raised this point before the
Investigating Officer. m e Industrial Court also refused to accept the
allegation of the respondent- union that the appellant had induced workmen to
give a favourable reply 1020 on the ground that same had not been raised before
the Investigating Officer. We see no reason why it did not apply the same
principle with regard to the other objections which prevailed with it. The
Industrial Court did not choose to rely on the documents produced by the
appellant-union regarding the payment of subscription on the ground that there
is nothing to show that the amount shown therein had not been paid by the
appellant-union itself. The Industrial Court, in our opinion, has carved out a
new case which was not even pleaded in any of the two written objections filed
by the respondent-union.
This leads us to the last ground about the
non-payment of the admission fee. No specific plea to that effect had been
taken in either of the two written objections. me objection taken is that the
admission fee net amount in the Cash Book of the appellant was not shown. The
Industrial Court concluded about the non-payment of the admission fee on the
ground that the counterfoils of the receipts showing collection of admission
fee had not been shown. The requirement of section 3(11) of the Act is only
about the payment of subscription and not about the admission fee. If there is
evidence to show that subscription has been received from the workmen it
pre-supposes that they were the valid members as no subscription will be taken
from a workman who is not a member of the union and that also leads to the
conclusion that the workmen were the valid members of the union according to
the rules of the Union.
Even assuming that admission fee of certain
workmen had not been paid, there is a provision in the Constitution itself for
exempting any worker or workers from payment of admission fee of Re. 1 at any
time as is evident from rule 3 of the Constitution which has been quoted in the
earlier part of the judgment .
Thus, even if admission fee had not been paid
it cannot affect the membership of the workmen in face of the provisions of
exempting the workmen from the payment of membership fee.
The Industrial Court, in our opinion, has
committed a manifest error in assuming that there was no provision in the
Constitution for exempting the admission fee. The Industrial Court has
overlooked the provisions of rule 3 of the Constitution of the Union.
MANOHAR 1021 For the foregoing discussion, we
find considerable force in the contentions raised on behalf of the appellant
and the appeal must succeed. We accordingly allow the appeal and set aside the
order of the Industrial Court with the result that the application for
recognition filed by the appellant union stands allowed. There will be no order
as to costs. B S.R. Appeal allowed.
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