M/S. Warden And Company (India) ... vs Akhil Maharashtra Kamgar Union
2001 Latest Caselaw 146 Bom

JUDGMENT

S. A. Bobde. J.

1. These two Letters Patent Appeals arise out of the same complaint i.e. Complaint (U.L.P.) No. 166 of 1993 instituted on behalf of the workmen against their employer M/s. Warden and Co. (I) Ltd., hereinafter referred to as the "employer".

2. The main question in these appeals is whether an unrecognised union is entitled to appear and act on behalf of the workmen of an industry governed by the Industrial Disputes Act, 1947, hereinafter referred to as the "I. D. Act", in a complaint relating to unfair labour practices other than those specified by Items 2 and 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter referred to as the "M.R.T.U. and P.U.L.P. Act".

3. The complainants prayed for a declaration that the employer has engaged in unfair labour practice under Items 9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act. The workmen also, prayed for wages from February 1992 till the date of filing of the complaint. There was also a prayer for bonus for the years 1990-91 and 1991-92; leave travel allowance for the years 1990-91 and 1991-92 and encashment of privilege leave and casual leave for the same years.

4. The complaint was filed originally by one D. R. Jagtap, a workman of the employer on his behalf and on behalf of two other workmen who authorised him to do so.

5. The grievance of the workmen in the complaint filed on 29.3.1993, in brief, was as follows :

That the employer carried on normal production till February 1991 and, thereafter, began tapering off its production. It paid wages to its workmen till September 1991. Then it paid wages for October 1991 in January 1992 and also delayed the payment for subsequent months. Since February 1992, no wages whatsoever have been paid to the workmen who have been reporting for duty.

6. In the complaint, the Industrial Court passed an ex-parte order directing payment of wages to the workmen. The employer did not pay the wages.

7. On 9.6.1993 the employer filed a reply in which it claimed to have arrived at a settlement with one Rashtriya General Kamgar Union, hereinafter referred to as the "R.G.K.U.". According to it, under a settlement dated 15.3.1993, the workmen voluntarily gave up their wages from February 1992 to 15.3.1993 against on ex-gratia, payment of Rs. 4,000/-.

8. It is an admitted position that the industrial establishment of the employer is covered by the provisions of the I. D. Act. It is also undisputed that the only Union recognised under the M.R.T.U. and P.U.L.P. Act operating in the manufacturing unit of the employer was one Bombay Labour Union and this Union has no membership from the employer's industrial establishment since 1992. Clearly, therefore, the settlement claimed by the employer, as a defence fur not paying wages was not with the recognised Union i.e. Bombay Labour Union, but with an unrecognised Union i.e. R.G.K.U.

9. While the application for interim relief was pending, a Union called the Akhil Maharashtra Kamgar Union, hereinafter referred to as the "A.M.K.U.", filed an application dated 19.4.1993 for being impleaded as a party. It appears that the Industrial Court did not merely allow the A.M.K.U. to be joined, but though not prayed for, directed that the workmen D. R. Jagtap and others be deleted by its order dated 19.10.1993.

10. On 23.9.1994 the Industrial Court vacated interim relief granted by it earlier and relieved the employer from the direction to pay wages. The Industrial Court heavily relied on the settlement entered into by the employer with the unrecognised Union i.e. R.G.K.U. and took the view that the said settlement is binding on all the workmen of the employer. 11. The A.M.K.U. which had been substituted for the original workmen-complainants by an order dated 19.10.1993 filed Writ Petition No. 711 of 1995 before the learned single Judge of this Court praying for a direction for payment of wages. Having regard to the contention that the workmen had signed a settlement under which they had voluntarily given up their wages from 1st February 1992 till 15th March 1993, the date of the settlement, the learned single Judge of this Court held by a judgment and order dated 11.8.1995 that the employer was liable to deposit the wages due to the workmen listed at annexure 'A' to the complaint for the period commencing 16.3.1993 and upto 22.12.1993; in other words, for the period commencing from the date of the alleged settlement with R.G.K.U. upto and including the date of the lock-out.

12. By this judgment, the learned single Judge overruled a preliminary objection raised on behalf of the employer that the complaint could not have been filed by the complainants since there was already a recognised Union in existence i.e. Bombay Labour Union. The learned single Judge further held that under section 21(1) of the M.R.T.U. and P.U.L.P. Act, only a complaint under Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act must be filed by a recognised Union in relation to an industry governed by the I. D. Act.

13. It is against this judgment and order of the learned single Judge of this Court that Letters Patent Appeal No. 120 of 1995 has been preferred by the employer. The main question is primarily the focus standi of an unrecognised Union to represent the workmen in a complaint under the M.R.T.U. and P.U.L.P. Act when the complaint is not under Items No. - 2 and 6 of Schedule IV of that Act. The other issue in this Letters Patent Appeal is whether the complaint on behalf of the workmen alleging nonpayment of their wages and therefore anunfair labour practice under Item No. 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act is barred by limitation. The learned single Judge has answered both the issues in favour of the

workmen holding that an unrecognised Union is not debarred from filing a complaint on behalf of the workmen in respect of any matter under the M.R.T.U. and P.U.L.P. Act except Item Nos. 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act. The learned single Judge has also held that the non-payment of wages constitutes a recurring cause of action and, therefore, the complaint is not barred by limitation.

14. It is of some importance to note that in spite of the judgment of this Court in Writ Petition No. 711 of 1995 and refusal of interim relief to the employer, in the Letters Patent Appeal preferred by it: and the dismissal of the Special Leave Petition filed by the employer, the employer did not pay the wages. Eventually, the A.M.K.U. invoked the contempt jurisdiction of this Court. In Contempt Petition No. 48 of 1996, this Court directed the employer to deposit a sum of Rs. 20.00 lakhs. Against that order, the employer preferred Letters Patent Appeal in which the employer was directed to pay a sum of Rs. 15.00 lakhs which comes to about Rs. 14,563/- per workman, to approximately 105 workmen. This is a small proportion of the wages finally found due to the workmen. It is an undisputed position that since February 1992 till today the employer has not paid any other amount to its workmen, several of whom have died since then.

15. It appears that on or about 1.1.1999 the workmen hitherto represented by A.M.K.U. formed a Union called the Krantikari Kamgar Union (for short the "K.K.U."). This Union was joined as a party to Complaint (U.L.P.) No. 166 of 1993 which was pending adjudication before the Industrial Court.

16. The other Letters Patent Appeal. No. 256 of 2000 arises out of the final adjudication of the said Complaint (U.L.P.) No. 166 of 1993 in this way. After the K.K.U. was substituted by the order of the Industrial Court in place of the A.M.K.U., the Industrial Court finally held by its order dated 13.4.1999 that the workmen are entitled to wages for the period February 1992 to 15th March, 1993. The Industrial Court further held that the workmen are entitled to bonus at the rate of 20% and other claims like L.T.A.. leave encashment, privilege leave and casual leave. The Industrial Court has made the order subject to the result of the decision of this Court in Letters Patent Appeal No. 120 of 1995 which has been admitted against the order of the learned single Judge of this Court overruling the employer's objection to the locus standi of the complainant-Union to maintain the complaint.

17. In this Letters Patent Appeal No. 236 of 2000, the main issue is whether the Industrial Court ought to have in its order dated 13.4.1999 granted certain additional reliefs, some of which are detailed here. The Industrial Court while allowing the complaint held that the workmen are entitled to wages from 1.2.1992 to 15.3.1993. It did not allow wages for the period 15.3.1993 to 22.12.1993. The reason given by the Industrial Court is that this Court had earlier directed payment of wages from 16.3.1993 to 22.12.1993. It also granted limited relief in respect of leave travel assistance and certain other matters.

18. Therefore, the workmen preferred a Misc. Application dated 5.7.1999 seeking a review of the order of the Industrial Court in regard to these matters. However, the Industrial Court held that it had no powers to review

the final order dated 13.4.1999 passed by it and rejected the application. Against that rejection and also against the order dated 13.4.1999, the workmen preferred a Writ Petition, being Writ Petition No. 922 of 1993 before the learned single Judge of this Court. In this Writ Petition, the workmen claimed, inter alia, modification of the final adjudication by the Industrial Court dated 13.4.1999 so that they become entitled to balance of wages for the period 16.3.4993 to 22.12.1993 and other relief such as encashment of leave for the years 1990-91 and 1991-92.

19. This Writ Petition has been dismissed by the learned Single Judge of this Court by judgment and order dated 27.3.2000 primarily on the ground that the Writ Petition preferred by the employer, being Writ Petition No. 2491 of 1999 against the same order came to be dismissed. It is against this order that Letters Patent Appeal No. 256 of 2000 has been preferred by the workmen through the K.K.U.

20. As far as the challenge by the employer to the order of the Industrial Court dated 13.4.1999 is concerned, we are informed that after the dismissal of Writ Petition No. 2491 of 1999, a Letters Patent Appeal preferred by the employer has also been dismissed by this Court.

21. Since the Industrial Court has made its order holding the employer liable to pay wages to its workmen depend upon the decision of this Court on the question whether an unrecognised Union is entitled to espouse the cause of workmen by way of a complaint under the M.R.T.U. and P.U.L.P. Act, the parties before us have been mainly at issue on that question.

Letters Patent Appeal No. 120 of 1995 :

22. The main contention urged by Mr. Kuldeep Singh, learned counsel for the employer, is that a recognised Union has the exclusive right to represent the employees in all or any complaint relating to unfair labour practice under the M.R.T.U. and P.U.L.P. Act.

23. Mr. Kuldeep Singh further submits that this exclusive right is similar to the exclusive right of a representative Union under the Bombay Industrial Relations Act to represent employees in all complaints under the M.R.T.U. and P.U.L.P. Act as held by the Supreme Court in the case of Shramik Utkarsh Sabha v. Raymond Woollen Mills Ltd. and Ors. According to Mr. Kuldeep Singh. that decision, hereinafter referred to as the "Raymond case", clearly bears out this submission, viz., that it is only a recognized Union which has the exclusive right to file a complaint relating to unfair labour practices under the M.R.T.U. and P.U.L.P. Act, even if the complaint is in regard to a matter other than those specified in and 2 and 6 of Schedule IV of that Act. Therefore, according to the learned counsel, since there was a recognised Union in respect of an industry i.e. Bombay Labour Union, the complaint by any one else, whether by the employees themselves or any other recognised Union is wholly untenable. It is, therefore, contended by the learned counsel that the instant complaint under Hems 9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act should be dismissed, since this complaint was originally filed by one D. R. Jagtap acting on his own behalf and two other workmen and subsequently prosecuted by two unrecognised Unions i.e. the A.M.K.U. and the K.K.U.

24. On the other hand, Mr. Singhvi, learned Counsel for the Union, contended that a true construction of the statutory scheme of the M.R.T.U.

and P.U.L.P. Act read with the provisions of the I. D. Act would clearly show that the law requires only a complaint under Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act to be filed by a recognised Union and, therefore, the present complaint is perfectly tenable. Mr. Singhvi points out that the complaint was originally filed by a workman on his own behalf and on behalf of two other workmen. Subsequently, it was prosecuted successively by two unrecognised Unions. According to Mr. Singhvi, the complaint as initiated and also as it has progressed is perfectly tenable.

25. The question therefore is, whether it is the exclusive right of a recognised Union to represent employees in a complaint relating to unfair labour practice other than those mentioned in Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act.

26. In order to appreciate the rival contentions, it is necessary to consider the object of the M.R.T.U. and P.U.L.P. Act and, in particular, certain provisions thereunder. This law was enacted primarily, as the title suggests, for providing recognition of trade unions for facilitating collective bargaining; to state their rights and obligations and to confer certain powers on such unions. The law also provides for declaration of certain strikes and lock-outs as illegal. The other purpose of the law is to define and provide for the prevention of certain unfair labour practices. The law also constitutes Courts for giving effect to both the purposes i.e. according recognition to trade union and for enforcing provisions relating to prevention of unfair labour practices.

27. The provisions which deal with the rights of the Unions, recognised and unrecognized. Including their right to file complaints relating to unfair labour practices are the following :-

Section 28 of the M.R.T.U. and P.U.L.P. Act provides for the procedure for dealing with complaints relating to unfair labour practices. Section 28 sub-section (1) reads as follows :-

"28. Procedure for dealing with complaints relating to unfair labour practices :-

(1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the case may be, under section 7, of this Act :

Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint."

It is clear from this section that a complaint regarding the occurrence of an unfair labour practice can be filed by : (i) any Union: (ii) any employee (iii) any employer: or (iv) any Investigating Officer. There are no qualifications imposed on any of the four categories of persons for filing such complaint. Having regard to the object of the M.R.T.U. and P.U.L.P. Act i.e., to prevent the commission of unfair labour practices, we are of view that placing any artificial restrictions or qualifications on a provision which enables a person aggrieved by an unfair labour practice to approach a Court for relief is not called for, unless it is found to be provided for by the law itself or is impliedly necessary.

Sub-sections (3) to (7) of section 28, inter alia, provides that on receipt of a complaint, the Court may first cause an investigation to be made by the Investigating Officer and call for a report. The Investigating Officer may make efforts to promote settlement of the complaint. After investigation into the complaint, the Investigating Officer is required to submit a report to the Court. If on receipt of the report, the Court finds that the complaint has not been filed satisfactorily, sub-section (6) requires that the Court shall proceed to consider the complaint and give its decision.

28. At this juncture, we would like to observe that while any of the four categories of persons mentioned above may file a complaint, section 21, reproduced later, imposes certain restrictions on those who may prosecute such a complaint if it is in respect of Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act. It enables only a recognised Union to do so.

29. Sections 20, 21 and 22 confer certain rights on recognised and unrecognised Unions. Clause (b) of sub-section (2) of section 20 reads as follows :-

"(2) Where there is a recognised union for any undertaking.

(a) .....

(b) no employee shall be allowed to appeal or act or be allowed to he represented in any proceedings under the Central Act (not being a proceeding in which the legality or propriety of an order or dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration), except through recognised union and the decision arrived at, or order made, in such proceeding shall be binding on all the employees in such undertaking;"

A plain reading of this provision makes it clear that this sub-section prohibits an employee from appearing or acting, etc. in any proceedings under the Central Act, which is defined to be the I.D. Act, except through a recognised Union. It does not prohibit an employee, however, from appearing in a proceeding in which the legality or propriety of an order of dismissal, discharge, etc., of an employee is under consideration. This subsection, in effect, amends section 36 of the I. D. Act by inserting a proviso which reads as follows '.-

"Provided that, where there is a recognised union for any undertaking under any law for the time being in force, no workman in such undertaking shall be entitled to be represented as aforesaid in any such proceeding (not being a proceeding in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee is under consideration) except by such recognised union."

30. Section 21(1) of the M.R.T.U. and P.U.L.P Act is directly applicable to the case in hand. Section 21 reads as follows :-

"21. Right to appear or act in proceedings relating to certain unfair labour practices :- (1) No employee in an undertaking to which the provisions of the Central Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of this Act except through the recognised union :

Provided that where there is no recognised union to appear, the employee may himself appear or act in any proceeding relating to any such unfair labour practices.

(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act, for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of this Act except through the representative of employees entitled to appear under section 30 of the Bombay Act."

According to Mr. Kuldeep Singh, learned counsel appearing for the employer, sub-section (1) of section 21 must be read to mean that only a recognised Union can represent workmen in any and all proceedings relating to unfair labour practices. We do not agree with that submission, on a plain reading of that provision. If the learned counsel was right in his submission, the provision need not have referred to Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act at all. The Legislature could have simply enacted this sub-section so that it read : No employee in an undertaking to which the provisions of the Central Act apply shall be allowed to appear or act, etc., in any proceeding relating to unfair labour practices except through the recognised Union.

31. From the provisions considered so far, it is clear that a recognised Union has an exclusive right to represent employees in :

(a) any proceeding under the I. D. Act vide section 20(2) and proviso to section 36 of the I. D. Act. supra;

(b) any complaint relating to unfair labour practices under Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act vide section 21(1), supra: and

(c) that a complaint of an unfair labour practice against an employer may be made by an employee, a Union, irrespective of whether it is recognised or not or an Investigating Officer, vide section 28 of the M.R.T.U. and P.U.L.P. Act, supra.

This is subject to the provisions of section 21(1) that if the complaint is under Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, the employees can be represented only by a recognised Union. In such a case, a complaint may be filed by an employee or employees and the Court may direct steps to be taken as provided by sub-sections (3) to (5). If, however, it becomes necessary for the Court to render a decision, the employee can be represented at the trial of the complaint through a recognised Union, if there be one. If there is no recognised Union, the employee may himself appear, vide the proviso to section 21(1).

32. The next question that is relevant is section 22 which confer-certain rights on an unrecognised Union. This section reads as follows :-

"22. Rights of unrecognised unions :- Such officers, members of the office staff and members of any union (other than a recognised union) as may be authorised by or under the rules made in this behalf by the State Government shall, in such manner and subject to such conditions as may be prescribed, have a right -

(i) to meet and discuss with an employer or any person appointed by him in that behalf, the grievances of any individual member relating to his discharge, removal, retrenchment, termination of service and suspension;

(ii) to appear on behalf of any of its members employed in the undertaking in any domestic or departmental inquiry held by the employer.

According to Mr. Kuldeep Singh, since this section does not confer any right on an unrecognised Union to represent an employee in an undertaking to which the provisions of the Central Act apply, an unrecognised Union has no such right to espouse any cause on behalf of its members. We are unable to agree with this submission. Sub-section (2) of section 20, a similar section which confers rights on the other kind of Union i.e. recognised Unions does not confer any right on such Unions to appear or act in any proceeding under the M.R.T.U and P.U.L.P. Act. If the absence of any provision empowering an unrecognised Union in section 22 were to mean that an unrecognised Union has not been conferred any right to so appear, then it would, on a parity of reasoning mean that neither is any such right conferred on a recognised Union because section 20 which confers rights on recognised Union does not confer any such right on a recognised Union to appear or act in any proceeding under the M.R.T.U. and P.U.L.P. Act.

33. Having given our fullest consideration to this submission, we are of view that sections 20 and 22 which confer rights on recognised and unrecognised Union, respectively, are not determinative of the rights of Unions to appear in complaints relating to unfair labour practices. What is determinative as of the right to appear is section 21(1) of the M.R.T.U.

and P.U.L.P. Act read with section 28 of the M.R.T.U. and P.U.L.P. Act, which have the following effect :-

(a) That any Union or any employee or Investigating Officer may file a complaint for any unfair labour practice against an employer by virtue of section 28 of the M.R.T.U. and P.U.L.P. Act.

(b) Where the unfair labour practice complained of is in regard to items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, the same can only be prosecuted by a recognised Union by virtue of section 21(1) of the M.R.T.U. and P.U.L.P. Act.

34. It was next urged on behalf of the employer that it is already concluded by the decision of the Supreme Court in Shramik Utkarsh Sabha v. Raymond Wollen Mills Ltd. and Ors., that in regard to an Industry governed by the provisions of the I. D. Act, only a recognised Union can prosecute a complaint of unfair labour practices under the M.R.T.U. and P.U.L.P. Act. Mr. Singhvi, learned counsel for the Union, submitted that this was not so primarily in view of the fact that the judgment of the Supreme Court was a judgment in which, what fell for consideration was the right of a representative Union under the Bombay Industrial Relations Act to prosecute a complaint under the M.R.T.U. and P.U.L.P. Act. It was further submitted that there is a marked difference between the scheme of the Bombay Industrial Relations Act and the I. D. Act in the matter of representation of workmen in proceedings and the decision in Raymond case is a decision only in regard to the scheme of the Bombay Industrial Relations Act and the M.R.T.U. and P.U.L.P. Act. It is rightly pointed out by the learned counsel that the Supreme Court has, vide para 14, noticed that section 21 of the M.R.T.U. and P.U.L.P. Act applies to both the I. D Act and the Bombay Industrial Relations Act and that Court was deciding a case

under the Bombay Industrial Relations Act. This is obvious from the term "representative union" used in the conclusion stated by Their Lordships. This term does not exist in the I. D. Act and does exist in the Bombay Industrial Relations Act under which the Raymond case arose.

35. Mr. Singhvi further relied on four decisions of this Court rendered by learned single Judges which have held that the ratio in Raymond case does not bar individual employees of an industry to which the Bombay Industrial Relations Act applies from filing complaints under items other than Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act. These decisions are : (i) Rama B. Rate and Ors. v. Walchandnagar Industries Ltd. and Ors., (ii) Bajirao Rajaram Patil v. Maharashtra State Co-operative Bank Ltd. and Anr.; (iii) V.D. Dhekale v. Depot Manager, M.S.R.T.C. Kolhapur and Ors.; and Tata Hydro Electric Power Supply Co. Ltd. and Ors. v. N.L. Mansukhani and Ors.

36. Since the case before us is different in that it concerns the right on an unrecognised Union in an industry to which the I. D. Act applies to file or prosecute a complaint under the M.R.T.U. and P.U.L.P. Act, we have ourselves perused the statutory scheme and we find ourselves in agreement with the submission that the law laid down in Raymond case was not in respect of a matter arising in an industry where the I. D. Act applies, but a matter relating to an industry governed by the Bombay Industrial Relations Act.

37. It is clear from a reading of the judgment in Raymond case that it arose as follows. A complaint was made by an employer in an industry to which the B.I.R. Act applied against the representative Union of the industry. In that complaint, an unrecognised Union i.e. Shramik Utkarsh Sabha applied for being impleaded as a party-respondent and the Supreme Court held, having regard to the entire scheme of the Bombay Industrial Relations Act read with relevant provisions of the M.R.T.U. and P.U.L.P. Act, that only a representative Union under the B.I.R. Act has the exclusive right to represent the employees of the concerned industry in complaints relating to unfair labour practices under the M.R.T.U. and P.U.L.P. Act other than those specified in Items 2 and 6 of Schedule IV thereof.

38. The judgment of the Supreme Court clearly sets out the object and purpose of the B.I.R. Act and the various categories of Unions which are permitted to be registered under the Act and which are entitled to represent the employees. In particular, the judgment relies on section 27A of the B.I.R. Act which provides that except as provided in sections 32, 33 and 33A, no employee should be allowed to appear or act in any proceeding under the Act except through the representative of employees. It further refers to section 30 of the B.I.R. Act which states the order of preference as regards the representative of employees; section 32 which permits an individual to appear with a proviso that subject to the provisions of section 33A, no such individual shall be permitted to appear in any proceedings in which a representative Union has appeared as the representative of employees.

39. It is having regard to this elaborate machinery provided for the representation of employees by a representative of employees by the B.I.R. Act that the Supreme Court has come to the conclusion that a Union other than the representative Union cannot appear in proceedings relating to unfair labour practices other than those specified in Items 2 and 6 of Schedule IV. Para 15 of the judgment clearly indicates that Their Lordships have rendered the decision having regard to the provisions of the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act, read together. The relevant observations read as follows :-

"The objective of the provisions of the B.I.R. Act and the M.R.T.U. and P.U.L.P. Act, read together, and the embargo placed upon representation by any one other than the representative of the employees, who, for the most part, is the representative union, except in matters pertaining to an individual dispute between an employee and the employer, is to facilitate collective bargaining. The rationale is that it is the interest of industrial peace and in public and national interest that the employer should have to deal, in matters which concern all or most of its employees, only with a union which is representative of them. It may be that a union which was representative of the employees may have in the course of time lost that representative character, it is then open, under the provisions of the B.I.R. Act, for a rival union to seek to replace it."

40. It is significant to note that under the I. P. Act, there is not corresponding provision for either recognition of a Union or for nominating or selecting a representative of employees as found in the B.I.R. Act. In our opinion, it would be in derogation of the rights of unrecognised Unions to espouse the cause of workmen in relation to complaints of unfair labour practices, to apply the decision in Raymond case to a case of unfair labour practice arising in respect of an industry governed by the I. D. Act.

41. As observed earlier, the proviso added to section 36 of the I. D. Act by the M.R.T.U. and P.U.L.P. Act also does not make any difference to this position. The said proviso only provides that where there is a recognised Union for any undertaking, no workman in such undertaking shall be entitled to be represented in a proceeding under the I. D. Act except by such recognised Union.

42. We, therefore, held that it is not the exclusive right of a recognised Union to institute and prosecute a complaint under the M.R.T.U. and P.U.L.P. Act in respect of an industry governed by the I.D. Act in relation to unfair labour practices other than those specified in Items 2 and 6 of Schedule IV of the M.R.T.U. and P.U.L.P. Act. We, therefore, uphold the judgment of the learned Single Judge in this regard.

43. The next point urged by Mr. Singh is as regards limitation. According to the learned Counsel, the complaint contains an averment that the wages have not been paid since February 1992. According to the learned counsel, since the limitation prescribed by the M.R.T.U. and P.U.L.P. Act for making a complaint of an unfair labour practice is 90 days, the complaint made on 29.3.1993 is barred. Mr. Singh relied on a judgment of the Supreme Court in Balkrishna Savalram Pujari Waghmare and Ors. v. Shree Dhyaneshwar Maharaj Sansthan and Ors. That was a case in which Their Lordships held :-

"If a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong."

This view was taken by the Supreme Court in a case where the appellants before Their Lordships had been evicted from a temple in execution of a decree and the submission advanced on their behalf was that "the continuance of their dispossession" was a continuing wrong. We find that the ratio of the case relied upon by the learned counsel has no application to the present case. In the present case, the claim relating to non-payment of wages has been described as an unfair labour practice under Item 9 of Schedule IV of the Act which reads as follows :-

"9. Failure to implement award, settlement or agreement."

Section 28 of the M.R.T.U. and P.U.L.P. Act enables a complainant to file a complaint where "any person has engaged in or is engaging in any unfair labour practice". It is, therefore, clear that every time wages are not paid when due, it can be averred that the employer is engaging in unfair labour practice under Item No. 9 of Schedule IV. We find no merit in this submission.

44. In the result, we dismiss Letters Patent Appeal No. 120 of 1995 with costs.

Letters Patent Appeal No. 256 of 2000 :

45. Letters Patent Appeal No. 256 of 2000 is preferred by the K.K.U. against the order of the learned single Judge of this Court dismissing Writ Petition No. 922 of 2000 preferred by it in respect of certain findings of the Industrial Court while finally adjudicating the complaint by its order dated 13.4.1999. The said order dated 13.4.1999 is decided in favour of the workmen. However, according to the Union, full relief to which the workmen were entitled to has not been granted by the Industrial Court and, therefore, the order needs to be corrected.

46. The K.K.U., therefore, preferred the aforesaid Writ Petition No. 922 of 1999. The learned single Judge has dismissed this petition by an order dated 27.3.2000. The learned single Judge, as stated earlier, has dismissed this petition mainly on the ground that Writ Petition No. 2491 of 1999 preferred by the employer against the same order has been dismissed by the learned single Judge of this Court.

47. Mr. Singhvi, learned counsel for the K.K.U., submitted that the order of the Industrial Court is erroneous in that it awards wages to the workmen only for the period from February 1992 to December 1993 i.e. the period commencing from the month from which no wages have been paid by the employer till the date of the alleged settlement between the unrecognised Union, the R.G.K.U. It is contended that wages have been denied to the workmen for the period from 16.3.1993 to 22.12.1993 on the ground that wages for the last mentioned period have already been paid to the workmen under an order of this Court dated 11.8.1995 in Writ Petition No. 711 of 1995. Mr. Singhvi points out that the reason given by the Industrial Court in para 23 of its order is not justified since full wages due to the workmen from 16.3.1993 to 22.12.1993 have not yet been paid by the employer. In fact, the order of this Court dated 11.8.1995 in Writ Petition No. 711 of 1995 directing the employer to pay wages for the said period was

not complied with by the employer as a result of which the Union had to resort to proceedings for contempt of Court. It is in those proceedings that a Division Bench of this Court in a Letters Patent Appeal under the contempt jurisdiction directed the employer to pay a sum of Rs. 15.00 lakhs which comes to Rs. 14,563/- per workman for about 105 workmen. According to the learned counsel, this amount of Rs. 14,563/- per workman does not cover the full wages due to the workmen which are reflected in exh. U-77 which shows the full wages to the workmen. The said exh. U-77 is annexed to the Writ Petition as exh. Q. According to the learned counsel, the total amount due to all the workmen is about Rs. 85 lakhs to Rs. 90 lakhs. The workmen accept that the amount due to them should naturally be calculated after deducting the amount already received by them.

48. Mr. Kuldeep Singh, learned counsel for the employer, submitted that the workmen have not proved that the wages are due to them. We are unable to agree with this contention. The entire amount of wages due to the workmen have been stated on oath by the General Secretary of the K.K.U. He has categorically deposed that from amongst the list of 103 workmen, five have settled their claim of wages and some have died. He has further deposed to the calculation at exh. U-77 and stated that full wages due to the workmen which have been brought on record at exh. U-77. There is nothing brought on record by the company to demonstrate that the calculation of wages made by the Union is not correct or is unreliable.

49. Having regard to the calculation of wages at exh. U-77 and on perusal of the order of this Court dated 15.4.1998 by which this Court directed payment of Rs. 15.00 lakhs to the workmen, it is clear that the payment of this amount was not intended to cover the full wages to which the workmen were entitled for the period 16.3.1993 to 22.12.1993. In fact, while passing the said order, the Division Bench of this Court made it clear that if any further amount is required, an appropriate application may be made to this Court. We, therefore, find that the workmen are entitled to full wages for the period from 16.3.1993 to 22.12.1993, less the amount already received by them under the order of this Court dated 15.4.1998 i.e. less Rs. 14,563/- per workman. They would accordingly be entitled to withdraw any amount towards the said dues if lying in the Industrial Court. The employer is directed to make full payment of the wages to the workmen for the entire period from February 1992 to 22nd December 1993, after deducting the amounts already paid to them.

50. The next submission of the learned counsel for the K.K.U. is that the Industrial Court was not justified in accepting the contention of the employer that the settlement dated 15.3.1993 between the employer and the unrecognised Union, R.G.K.U., was a settlement, the terms of which were binding on the parties. It is submitted that the Industrial Court could not have accepted the contention pf the respondent to the above effect in view of the judgment of the learned single Judge of this Court in Writ Petition No. 711 of 1995 dated 11.8.1995 wherein this Court has observed as follows :-

"Mr. Singhvi is, therefore, right in his contention that the Industrial Disputes Act does not recognise as binding on workmen any settlement other than a settlement entered into with a recognised Union, if one exists. To that extent the settlement dated 15th March, 1993, on which the First Respondent placed reliance before the Industrial Court, was incapable of binding the

workmen of the First Respondent or of barring adjudication of their claims to wages."

We find that having regard to the observations of the learned single Judge of this Court quoted above, the Industrial Court could not have accepted the submission of the employer that the settlement dated 15.3.1993 is not binding on the parties. We find that the order of the Industrial Court is erroneous to that extent.

51. Mr. Singhvi further submitted that the Industrial Court has misread clause 6 of the settlement dated 27.9.1979 which provides for leave travel assistance. The said clauses read as under :-

"(a) The company shall grant to all the members of staff and to all the permanent workers working at the factory office and head office of the company, Leave Travel Allowance at the rate of one month's revised basic salary/wage in a year.

(b) The above allowance shall be paid provided the workman proceeds on privilege leave for not less than seven days.

(c) In case the workman does not proceed on privilege leave during the year, he will be entitled to encash the leave travel allowance on or before 31st January of the following years."

He contends that the Industrial Court has found that since the workers have not proved that they have proceeded on privilege leave for seven days and, therefore, they are not entitled to leave travel assistance on the ground of non-compliance with the aforesaid clause. He submits that, in fact, the said clause entitles the workmen to encash the privilege leave if he does not proceed on privilege leave during the year. We, accordingly, held that the observations of the Industrial Court in this regard are patently erroneous and the order dated 13.4.1999 is liable to be modified to this extent also.

52. At this juncture, we would like to point out that a Misc. Application for clarification of the final order of the Industrial Court dated 13.4.1999 was preferred by the Union to that Court under section 30 sub-section (2) of the M.R.T.U. and P.U.L.P. Act. This application was dismissed by the Industrial Court on the ground that it had no power to review a final order under section 30(2). We agree that the Industrial Court could not have modified its final order under section 20(2). We are not deciding the question whether the Industrial Court has any inherent power to review its final order under the M.R.T.U. and P.U.L.P. Act.

53. The Industrial Court, however, allowed the Union to add three workmen to the list of workers i.e. R.R. Mein, P.K. Ramesh and Suresh More. The learned counsel for the employer has no objection to the order of the Industrial Court adding the said workmen.

54. While proceedings have been pending, four workmen have died. The K.K.U. has, therefore, applied for permission to have their names substituted with those of their widows. Mr. Kuldeep Singh has no objection to the said substitution. We, accordingly, allow the four widows to be substituted against the names of the deceased workmen as follows :-

   Name of substituted Widows Sr. No. of deceased worker
1. Smt. Jaibai Arjun Lokhande       29
2. Smt. Anusaya Dhondiba PHapale      30
3. Smt. Kusum Baburao Shelar       59
4. Smt. Vijaya Bankim Kurwa       99   
 

 The undisputed position therefore before us is that the dues are payable to 107 workmen whose names are mentioned at exh. 'A' to the petition plus those added by the Industrial Court. 
 

55. We, therefore, find that the order of the learned single Judge of this Court dated 27.3.2000 dismissing Writ Petition No. 922 of 2000 preferred by the Union is liable to be set aside. We are of view that the order of the Industrial Court dated 13.4-1999 deserves modification to the extent indicated by us above. No other point in regard to the order dated 13.4.1999 is urged before us.

56. We, accordingly, allow Letters Patent Appeal No. 256 of 2000 to the extent indicated above.

57. After pronouncement of the judgment, a prayer is made on behalf of the Appellant in Letters Patent Appeal No. 120 of 1995 to stay the operation of this judgment and Order for one month. We are not inclined to grant stay, having regard to the facts and circumstances of the case, and particularly the fact that the workmen have been waiting for payment of their wages for about 7 years. Prayer is, therefore, rejected.

58. Issuance of certified copy of this judgment is expedited.