JUDGMENT Sinha D.D., J.
1. Rule returnable forthwith. Heard finally by consent of Shri Thakur, learned Counsel for the petitioners, Shri Mandpe, learned Assistant Government Pleader for the respondent Nos. 1 to 4, Shri Puranik, learned Counsel for the respondent No. 5, and Shri Gordey, learned Counsel for the respondent Nos. 6 to 8.
2. The petition is directed against the order dated 29.4.2006 passed by the Labour Officer whereby requisition dated 4.4.2006 moved by 384 employees for recalling the elected representatives came to be rejected on the ground that the reasons given in the requisition were unjustified.
3. Shri Thakur, learned Counsel for the petitioners, submitted that in the instant case, it is not in dispute that there is no representative Union in respect of respondent No. 5 Engineering Industry and, therefore, employees were entitled to elect five persons from amongst themselves to represent them for the purpose of provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the Act') in view of Section 28 of the Act. It was contended that the employees have elected five representatives for the period of two years. However, the employees at the later point of time, developed a feeling that the five elected representatives are not safeguarding their interest and acts of these elected representatives were detrimental to the interest of the employees and, therefore, the employees decided to recall these five elected representatives in view of Section 28(4) of the Act read with Rule 43(2) of the Bombay Industrial Relations Rules, 1947 (hereinafter referred to as "the Rules"). It was submitted that 384 employees submitted requisition dated 4.4.2006 to the Labour Officer for recalling these five elected representatives and in the said requisition, the reasons were also stated why requisition-ists were intending to recall these five elected representatives. Those reasons are:
i) issue about contract labourers and temporary workers is not included in the agreement,
ii) there will be increase in the workload of contract workers and temporary workers due to agreement. This will lead to financial loss to the contract labourers and temporary workers,
iii) elected representatives are acting as per say of the management and are signing agreements against the interest of workers, etc.
4. Learned Counsel Shri Thakur further contended that after receipt of the requisition, Labour Court called for list of employees eligible to vote vide communication dated 18.4.2006 and order-sheet dated 28.4.2006 demonstrates that requisition is as per procedure stipulated under Rule 243(1) and (2) of the Rules. It was submitted that if the requisition is signed by more than 20% of the total employees and reasons are also mentioned therein for recall of the elected representatives, in such situation, as per provisions of Rule 43(2) of the Rules, the Labour Officer is required to hold a meeting of the employees and to explain them the object of the meeting and if the majority of the employees present at the meeting decide to recall the representatives mentioned in the requisition, such representatives shall be deemed to have ceased to represent the concerned employees. It was submitted that the Labour Officer has no jurisdiction, power or authority to reject the requisition on the ground that reasons stated in the requisition are unjustified, hence the impugned order is inconsistent with the procedure stipulated in Rule 43 of the Rules and, therefore, the impugned order is not sustainable in law and is liable to be quashed and set aside.
5. Shri Mandpe, learned Assistant Government Pleader for respondent Nos. 1 to 4, stated that as per provisions of Rule 43(1) of the Rules, duty is cast upon the requisitionists to state reasons for recalling the representatives in the requisition and Sub-rule (2) of Rule 43 empowers the Labour Officer to verify and consider whether reasons mentioned in the requisition are justifiable, proper and genuine. It was contended that if the reasons are not genuine or justifiable, in such situation, the Labour Officer has discretion in view of Sub-rule (2) of Rule 43 to reject such requisition. It was submitted that in the instant case, the Labour Officer found that the reasons given by the requisitionists in the requisition dated 4.4.2006 for recalling five elected representatives are unjustifiable and, therefore, rejected the requisition by passing the impugned order, which is consistent with the provisions of Rule 43 of the Rules.
6. Shri Gordey, learned Counsel for respondent Nos. 6 to 8, submitted that Rule 43(1) of the Rules requires requisitionists to state reasons for recalling the representatives and, therefore, it cannot be said that the Labour Officer does not have jurisdiction or power to consider whether such reasons are adequate, genuine, or justifiable for moving the requisition. It was contended that discretion required to be exercised by the Labour Officer under Rule 43 of the Rules needs to be considered in the light of provisions of Section 34(6) of the Act, which deals with duties required to be discharged by the Labour Court. It was submitted that Clause (a) of Sub-section (6) of Section 34 of the Act contemplates that it shall be the duty of the Labour Officer to watch the interests of employees and promote harmonious relations between employer and employees. It was contended that if the Labour Officer is expected only to hold a meeting after receipt of the requisition and simply put it before the employees to decide the same by majority, there is no necessity for the requisitionists to state reasons in the requisition for recall as required under Sub-rule (1) of Rule 43 of the Rules. It was argued that under the scheme of Rule 43, the Labour Officer is entitled to consider adequacy or inadequacy of the reasons mentioned in the requisition for recall and if Labour Officer is satisfied that reasons stated in the requisition are unjustifiable or inadequate for the purpose of moving requisition for recall, in such situation, the Labour Officer is legally entitled to reject such requisition in order to promote industrial peace and harmonious relations between employer and employees.
7. Learned Counsel Shri Gordey further contended that the reasons mentioned in the requisition are unjustifiable since the contract labour agreement dated 24.4.2003 was in existence till 30.5.2006 and the issue of grant of permanency to temporary employees and their entitlement to get wages is subjudice in letters patent appeal before this Court. It was, therefore, contended that the impugned order is just and proper and sustainable in law.
8. Shri Puranik, learned Counsel for the respondent No. 5, more or less adopted the same line of argument as advanced by learned Counsel Shri Gordey. However, he further contended that it is the statutory duty of the Labour Officer to promote industrial peace and harmonious relations between employees and employer. He is expected in law not to permit such requisition, which does not contain adequate reasons for recalling elected representatives. It was submitted that under the scheme of Rule 43 of the Rules, the Labour Officer is entitled to consider adequacy of reasons mentioned in the requisition for recall and if the reasons are unjustifiable, then the Labour Officer is entitled to reject such requisition. It was argued that the Labour Officer was justified in rejecting the requisition dated 4.4.2006 by the impugned order since reasons mentioned therein were unjustifiable. It was, therefore, submitted that the impugned order is just and proper and sustainable in law.
9. We have given our anxious thought to the various contentions canvassed by the learned Counsel for the parties and perused provisions of Sections 28 and 34 of the Act as well as Rules 41 and 43 of the Rules. Before we consider the issue on merits, it will be appropriate to reproduce provisions of the relevant sections and Rules, which read thus:
Section 28 - Election of representatives of employees:
(1) Where there is no Representative Union in respect of any industry in any local area, the employees in each undertaking in the industry and in each occupation therein may, in the prescribed manner, elect five persons from among themselves to represent them for the purposes of this Act:
Provided that no such persons shall be elected for any occupation the number of employees in which does not exceed ten.
(2) The persons, if any, elected under Sub-section (1) shall function in such manner as may be prescribed.
(3) Within two years from the date on which an election under Sub-section (1) is held, and within each succeeding two years thereafter, a fresh election shall be held : Provided that any person may be re-elected at any such election.
(4) The employees may in the prescribed manner recall any or all of the persons elected under Sub-section (1) or (3).
(5) Vacancies in the number of the person elected under Sub-section (1) or (3) shall be filled by election in the prescribed manner.
Section 34. Powers and duties of Labour Officer -
(1) A Labour Officer shall exercise the powers conferred and perform the duties imposed on him by or under this Act.
(6) It shall be the duty of the Labour Officer to -
(a) watch the interests of employees and promote harmonious relations between employers and employees;
(b) investigate the grievances of employees and represent to employers such grievances and make recommendations to them in consultation with the employees concerned for their redress;
(c) report to the State Government the existence of any industrial dispute of which no notice of change has been given, together with the names of the parties thereto:
Provided that the Labour Officer shall not -
(a) appear in any proceeding in which the employees who are parties thereon are represented by a Representative Union,
(b) where there is an approved union for an industry in a local area, except after consultation with the union, act under Clause (b) of Sub-section (6) in respect of the employees.
Rule 41 - Subject to the provisions of Sub-section (4) of Section 28, the persons elected under Rule 40 shall function as the representatives of employees until such time as fresh elections are held by the Labour Officer and the names of the persons so elected are communicated by him to the employer concerned.
Rule 43 -(1) The employees in an occupation or undertaking desiring to recall a representative of employees shall send a requisition in writing to the Labour Officer for the local area. Such requisition shall be signed by at least twenty per cent of the employees in the occupation or undertaking, as the case may be, and shall state the reasons for the recall.
(2) On receipt of such a requisition, the Labour Officer shall, as soon as may be, hold a meeting of the employees Occupation or under-taking, as the case may be, and explain to them the object of the meeting. If the majority of the employees present at the meeting decide to recall the representative or representatives mentioned in the requisition the person or persons so recalled shall be deemed to have ceased to represent the employees concerned.
(3) The Labour Officer shall intimate to the employer concerned, the Chief Controller for the industry in the local area and the Registrar the name or names of the persons, who have been so recalled.
10. In the instant case, following facts are not in dispute:
In the respondent No. 5 industry, there is no representative Union and, therefore, employees are entitled to elect five persons from amongst themselves to represent them for the purpose of the Act as per provisions of Section 28 of the Act. As per provisions of Sub-section (3) of Section 28, tenure of the elected representatives is of two years and as per Sub-section (4) of Section 28, employees have a statutory right to recall any or all the elected representatives. It is, therefore, evident that in an industry where there is no representative unibn, right is given to the employees of such industry to elect five persons from amongst themselves to represent them. At the same time, these employees also have a statutory right to recall these elected representatives as per procedure prescribed in this regard.
11. The procedure to recall elected representatives is stipulated in Rule 43 of the Rules. Sub-rule (1) of Rule 43 of the Rules contemplates that employees desiring to recall a representative of the employees shall send a requisition in writing to the Labour Officer for the local area and such requisition shall be signed by at least 20% of the employees in the undertaking and reasons are also required to be mentioned in such requisition for recall. In the instant case, it is not in dispute that requisition dated 4.4.2006 is signed by more than 20% of the employees in the respondent No. 5 industry and the said requisition also contains reasons for recall. It is, therefore, evident that requisition moved by the employees for recall is consistent with the provisions of Sub-rule (1) of Rule 43 of the Rules. Sub-rule (2) of Rule 43 of the Rules provides procedure to be undertaken by the Labour Officer on receipt of requisition submitted by the employees for recall and contemplates that on receipt of such requisition, the Labour Officer is required to hold a meeting as soon as possible of the employees of undertaking and explain to them the object of the meeting. While considering scheme of Rule 43, provisions of Sub-rules (1) and (2) thereof are required to be read together in the light of provisions of Section 28 of the Act.
12. As we have already observed hereinabove, right to recall is a statutory right given to the employees, which flows from Sub-section (4) of Section 28 of the Act and, therefore, this substantive right cannot be defeated or taken away by the procedure stipulated in Rules, which are framed under the provisions of the Act. Rule 43 of the Rules merely prescribes procedure and manner in which the requisition is required to be submitted by the employees to the Labour Officer and reasons required to be stated in the requisition ate only for the purpose of enabling the Labour Officer to know the object of the requisition in order to explain it to the employees in the meeting, which is scheduled for considering such requisition. It is pertinent to note that the procedure provided under Rule 43 only entitles the Labour Officer to verify as to whether the requisition which is submitted by the employees to recall their representatives fulfils the requirement mentioned in the said Rule. However, it does not in any manner give jurisdiction/power to the Labour Officer to exercise discretion whether the reasons mentioned in the requisition are adequate, justifiable to place such requisition before the employees in the meeting. Since right to recall under Section 28(4) of the Act is given to all the employees, it is for the employees to consider and decide whether such requisition should be passed by majority or,should be rejected.
13. The language used in Rule 43 does not show that intention of the Legislature is to clothe the Labour Officer with a power to consider adequacy/inadequacy of reasons mentioned in the requisition and decide whether such reason/s is/are justifiable to place the requisition before the employees in the meeting. Even otherwise substantive statutory right of the employees flowing from Section 28-A of the Act cannot be either curtailed or defeated by Rule 43 nor it can override the provisions of the Act.
14. So far as provisions of Section 34(6)(a) of the Act are concerned, these provisions deal with the duties to be performed by the Labour Officer and one of such duties is to safeguard the interest of the employees and to promote harmonious relations between employer and employees. We are unable to appreciate as to how the said provision is relevant for the purpose of controversy in issue. Merely because it is the duty of the Labour Officer to promote harmony and industrial peace, that does not entitle him to assume power, which is not vested in him either under Section 28 of the Act or under Rule 43 of the Rules. In a democratic set up, if a right is given to the employees to elect their representatives and also recall them, such statutory right which flows from the substantive provisions of the section cannot be taken away by Rule 43 which only prescribes manner and procedure for implementation of such right. It is no doubt true that requisitionists are required to state reasons in the requisition, however, this does not clothe the Labour Officer with the power to find out adequacy thereof, but is for enabling him to know the object of requisition for which the meeting is scheduled and in order to explain the same to the employees. The duty and function which the Labour Officer is required to discharge under Rule 43 are not quasi judicial, however, they are more of formal type and do not include power to consider the adequacy thereof.
15. The contentions canvassed by the respective Counsel for the respondents, in our view, are unfounded, misconceived and are rejected.
16. For the reasons stated hereinabove, the impugned order dated 29.4.2006 passed by the Labour Officer is quashed and set aside. Rule is made absolute in the above terms. No order as to costs.