Sahakari Bank Karmachari Union vs Assistant Registrar Of Unions And ...
2005 Latest Caselaw 986 Bom

JUDGMENT

B.R. Gavai, J.

1. Both these petitions involve a common question as to what is the "local area" for registration as a representative Union for Cooperative Banking Industry (hereinafter referred to as the said Industry) under the provisions of Bombay Industrial Relations Act, 1946 (hereinafter referred to as the said Act) and as such are heard and decided together. The rival Unions who claim to be registered as a representative Union for the local area in question are also common.

2. The facts, in brief, in Writ Petition No. 2201 of 1998 are as under :-

The respondent No. 2, Yavatmal District Central Co-operative Bank Union was registered as a representative Union for the entire Yavatmal district. However, the petitioner, Sahakari Bank Karmachari Union, Yavatmal applied to the respondent No. 1 for registration as a representative Union in the local areas of Umarkhed Taluka, Mahagaon Taluka, Digras Taluka, Ner Taluka, Babhulgaon Taluka, Relegaon Taluka, Kalamb Taluka, Ghatanji Taluka and Maregaon Taluka of Yavatmal District Co-operative Banking Industry. It was the contention of the petitioner, in the said application that the said Union was having larger membership and in any case, it was having not less than 25 per cent of the total member of employees, in the said Industry in the aforesaid local areas, as its members and as such it was entitled for registration as a representative Union in the said Industry. The respondent No. 1, after holding enquiry, vide order dated 11th March, 1994, found that the said Union had more than 25 per cent of the total number of employees in the said industry, in the local areas of Umarkhed Taluka, Mahagaon Taluka, Ner Taluka, Kalamb Taluka, Relegaon Taluka, Ghatanji Taluka, Babhulgaon Taluka and Maregaon Taluka of Yavatmal District, as its members and, therefore, found that the said Union was qualified for registration as representative Union for the aforesaid talukas in Yavatmal district. Being aggrieved thereby, the respondent No. 2 preferred an appeal before the Learned Industrial Court, Amravati being BIR Appeal No. 4/1994. It was the contention of the respondent No. 2 in the said appeal that the Head Office of the Industry was only one i.e. at Akola and that the services of the employees engaged in the industry were transferable from one branch to another and, therefore, the entire Yavatmal district ought to have been taken into consideration as a local area. It was, therefore, contended that the respondent No. 1 ought to have taken consideration the strength of membership in the entire district and as such recognised the respondent No. 2 as representative Union. The learned Industrial Court came to the conclusion that the entire district has to be taken into consideration as the local area for the Co-operative Banking Industry and, therefore, set aside the order of the respondent No. 1 and allowed the appeal filed by the respondent No. 2 thereby setting aside the registration of the petitioner, Union in the aforesaid local areas of Yavatmal district. Being aggrieved thereby, the petitioner has approached this Court.

3. The facts, in brief, in Writ Petition No. 2082 of 2003, are as under :- That, the petitioner applied for registration of its Union as a representative Union for the local areas of Pusad Municipality, Pusad Taluka, Wani Municipality, Wani Taluka and Darwha Taluka for the said industry. The respondent No. 3, after holding due enquiry, found that the petitioner/Union was having more than 25 per cent of employees, employed in the said industry for the local areas of Pusad Municipality, Pusad Taluka, Wani Municipality, Wani Taluka and Darwha Taluka of Yavatmal District, as its members and as such found that the petitioner/Union was qualified for registration as representative Union in place of respondent No. 2, Union. Vide order dated 25th January, 1994, disqualified the respondent No. 2, Union as a representative Union for the aforesaid local areas and held that the petitioner was qualified to be registered as a representative Union for the aforesaid local areas. Being aggrieved thereby, the respondent No. 2 preferred an appeal being BIR Appeal No. 2/1994 before the learned Industrial Court. The grounds raised in earlier round of litigation were also urged by the respondent No. 2 in the present petition. The learned Industrial Court, vide order dated 8th October, 2002 allowed the appeal of the respondent No. 2, the reasoning given by the learned Industrial Court while allowing the appeal was that the respondent No. 3 ought to have taken into consideration the entire strength of the employees serving in the Yavatmal District Central Co-operative Bank throughout the district. The learned Industrial Court held that, if the learned Assistant Registrar would have applied his mind he would have found that the respondent No. 2 was having support of more than 25 per cent of the employees, employed by the Yavatmal District Central Co-operative Bank, in the district and as such was entitled to be recognised as a representative Union. Being aggrieved thereby, the petitioner has approached this Court by way of instant petition.

4. Heard Shri A. C. Dharmadhikari, the learned Counsel appearing on behalf of the petitioner, Shri P. C. Madkholkar, the learned Counsel appearing on behalf of the respondent No. 2 in both the petitions and Shri P. D. Kothari, the learned Assistant Government Pleader appearing on behalf of the learned Assistant Registrar of Unions.

5. Shri A. C. Dharmadhikari, learned Counsel for the petitioner, by placing his reliance on sub-section (23) of Section 3 of the Bombay Industrial Relations Act, 1946 submits that the "local area" would mean any area which is notified as an area for the purposes of this Act by the State Government. He submits that vide notification dated 9th March, 1984, the State Government has notified the local areas. He submits that insofar as the Yavatmal district is concerned, various talukas situated in the said district and the municipal areas of Yavatmal, Pusad and Wani have been notified as local areas for all the industries covered under the Bombay Industrial Relations Act, 1946. He, therefore, submits that the learned Assistant Registrar has rightly taken into consideration the strength of the membership in each of the local areas as notified by the State Government under the said notification and has rightly recognised the petitioner as a representative Union for the local areas, in which it was found that the petitioner is having more than 25 per cent of the employees employed in the said industry as its members. He submits that the learned Industrial Court, has accordingly erred in taking into consideration the entire strength of the employees, working in the Yavatmal District Central Co-operative Bank, in the entire district for determining the strength of the union for recognizing as Representative Union in a local area. He submits that the orders passed by the learned Industrial Court are passed without taking into consideration the provisions of the said Act and as such are liable to be quashed and set aside and the orders passed by the learned Assistant Registrar are liable to be upheld.

6. Shri P. C. Madkholkar, the learned Counsel for the respondent No. 2, on the contrary, submits that the learned Industrial Court has rightly taken into consideration the strength of the employees, working in the Yavatmal District Central Co-operative Bank, in the entire district for being recognised as representative Union. Placing reliance on the said notification, he submits that the said notification notifies local areas by categorising them under the district. He says that entries No. 106 to 122 in the said notification have been categorised under heading Yavatmal. He, therefore, submits that, insofar as the industry like the one with which we are concerned in the present petitions, the entire district will have to be construed as a local area and not the entries mentioned under the heading. Shri Madkholkar further submits that, if every taluka and every municipality is to be considered as a local area, it will create anomalous situation and will create a chaos. He submits that the employees working in the District Central Co-operative Bank, are liable to be transferred throughout the district. He submits that if the employee is transferred from one taluka to another taluka and if in a taluka in which he was working prior to transfer, the respondent No. 2 is a representative Union and in a taluka where he is working after transfer, the petitioner is a representative Union, then the grievance of an employee cannot be properly represented. He, therefore, submits that the said Act, which is a beneficial legislation for protecting the interest of the employees, would itself render unworkable. The learned Counsel, therefore, submits that in a case like the present one, the reasoning as adopted by the learned Industrial Court needs to be upheld and the entire district needs to be considered as local area. The learned Counsel in support of his submissions places reliance on the judgment of the Division Bench of this Court in the case of L.B. Repal v. Nagar District Urban Central Co-operative Bank Limited, Ahmednagar and Ors. reported in 1980 Mh.L.J. 597 : 1979(38) FLR 279 and the judgment of the learned Single.Judge of this Court in the case of Pune Central Co-operative Bank Limited v. Bank Karmachari Sangh and Anr. reported in 2002(1) Bom.L.C. 507.

7. In order to appreciate the rival submissions, it will be necessary to refer to certain provisions of the said Act. Sub-sections (23), (30) and (33) of section 3 read thus :-

"(23) "local area" means any area [(including the entire State)] notified as a local area for the purposes of this Act (or for different industries;) (30) "registered union" means a union registered under this Act; (33) "Representative Union" means a union for the time being registered as a Representative Union under this Act;" Sub-sections (1) and (4) of Section 13 of the said Act read thus :-

"(1) Any union which has for the whole of the period of (three calendar months immediately preceding the calendar month in which it so applies) under this section a membership of (not less than twenty-five per cent) of the total number of employees employed in any industry in any local area may apply in the prescribed form to the Registrar for registration as a Representative Union for such industry in such local area.

(2)...

(3)...

(4) Notwithstanding anything contained in this section, if a union makes a fresh application for registration as a Representative Union, Qualified Union, or as the case may be, Primary Union, before a previous application for such registration has been finally disposed of by the Registrar, the Registrar shall not entertain such application.]

Section 14 of the said Act reads thus :-

"14. Registration of union. - On receipt of an application from a union for registration under Section 13 and on payment of the fee prescribed, the Registrar shall, if after holding such inquiry as he deems fit he comes to the conclusion that the conditions requisite for registration specified in the said section are satisfied and that the union is not otherwise disqualified for registration, enter the name of the union in the appropriate register maintained under Section 12 and issue a certificate of registration in such form as may be prescribed : Provided -

Firstly, that in any local area there shall not at any time be more than one registered union in respect of the same industry :

Secondly, that in any local area the Registrar shall in respect of any industry register a union fulfilling the conditions necessary for registration as a Representative Union in preference to one not fulfilling the said conditions, and failing such a union fulfilling the conditions necessary for registration as a Qualified Union in preference to one not fulfilling such conditions :

Thirdly, that where two or more unions fulfilling the conditions necessary for registration apply for registration in respect of the same industry in any local area (in the same calendar month) subject to the provisions of the second proviso, the union (upon) having the largest membership of employees employed in the Industry (for a period of three months immediately preceding the calendar month in which they apply) shall be registered (and no applications for registration received in any subsequent calendar month shall be considered, until the applications received first in the same calendar month are disposed of by the Registrar):

Fourthly, that the Registrar shall not register any union if he is satisfied that the application for its registration is not made bona fide in the interest of the employees but is made in the interest of the employers to the prejudice of the interest of the employees :

[Fifthly, that the Registrar shall not register any union if at any time, within six months immediately preceding the date of the application for registration or thereafter the union has instigated, aided or assisted the commencement for continuation of a strike or stoppage which has been held or declared to be illegal:

Sixthly, that the Registrar shall not register any union, if the rules of the union relating to the members contain any provision debarring any employee in the industry concerned from being a member of such union on the ground that he is or is not an employee in any particular undertaking in the said industry.]

8. It can thus be seen from sub-section (23) of Section 3 that the local area means any area including the entire State, notified as a local area, for the purposes of this Act or for different industry. It is thus clear that there can be different local areas for different industries. For particular industry, even the entire State may also be a local area. However, in view of provisions of subsection (5) of Section 2 of the said Act, it will be for the State Government, to notify as to what are the local areas for the industries.

9. From the perusal of notification dated 9th March, 1994, it can be seen that the State Government has declared area specified in column No. 1, of the schedule to the said notification as local areas for the industries shown against each of them in column No. 2 of the schedule. Column No. 2 of the schedule shows that the industries to which Bombay Industrial Relations Act, 1946 apply. It is not in dispute that the said Act applies to the Co-operative Banking Industry. It can thus be seen from the said notification that the State Government has notified the areas shown in column No. 1, to be local area for all the industries, to which the said Act applied. It can be seen from the said notification, that the entries at serial Nos. 106 to 122 of the schedule relate to the area in the Yavatmal district. Though the said entries have been shown under the heading of Yavatmal district, the entries are distinct for each of the taluka and each of the municipal areas in the said district.

10. From the perusal of Section 13, it is clear that the Union which has for the whole of the period of three calendar months, immediately preceding the calendar month in which it so applies for membership, not less than 25 per cent of the total number of employees employed in any industry, in any local area may apply in the prescribed form to the Registrar for registration of employees Union.

11. It can be seen from Section 14 of the said Act, that on receipt of an application from a Union for registration of Union, the Registrar is required to hold an enquiry for coming to a conclusion that the conditions requisite for registration, specified in the said section, are satisfied and that the union is not otherwise disqualified for registration. It is clear from the proviso to the said section that in any local area there shall not be more than one registered union in respect of the same industry. Second proviso to the said section makes it clear that in any local area the Registrar shall in respect of an industry register a union fulfilling the conditions necessary for registration as a Representative Union, in preference to one not fulfilling the said conditions, and failing such a union fulfilling the conditions necessary for registration as a Qualified Union in preference to one not fulfilling such conditions. Third proviso to the said section also makes it clear that when two or more unions fulfilling the conditions necessary for registration, apply for registration in respect of the same industry in any local area, subject to the provisions of second proviso, the union having the largest membership of employees employed in the industry shall be registered.

12. The conjoint reading of the aforesaid provisions make it amply clear that there can be registration of only one Representative Union for any local area. It is also clear from the third proviso to section 14, that in case two or more unions are fulfilling the conditions and claiming for registration, then the Union having the largest membership of the employees employed in the industry is required to be registered. It is also clear that the local area is the one which is notified by the State Government.

13. From the perusal of the provisions of the said Act, it is thus clear that the Representative Union has to be registered as such, for a particular local area, if in that local area it has largest members of the employees employed in the industry. It is further clear that the local area is one which is notified as such by the State Government.

14. From the perusal of the said notification, it is clear that insofar as the Yavatmal district is concerned, the State Government has notified various talukas and the municipal areas in the said district as local areas. It is difficult to accept the contention of the learned Counsel for the petitioner that since all these entries are shown under Yavatmal district, for the industry in question, the entire Yavatmal district has to be considered as a local area. From the perusal of the notification, it is clear that the various local areas are grouped together under the heading of the particular district, under whose jurisdiction these local areas are situated. However, it appears that it is only for the sake of convenience. If the legislature intended to have the entire district as a local area, for the industry like the present one, nothing precluded the State from doing it. As has already been observed, the State can even notify the entire State as local area for a particular type of industry. However, it is for the State Government to decide as to what shall be the local area for a particular type of industry. If the State Government chooses to notify only talukas and municipalities as local areas for any industry, whatever may be the result, this Court cannot sit in an appeal over the wisdom of the State Government. It is pertinent to note that the validity of the said notification is also not under challenge.

15. I, therefore, find that the learned Industrial Court has grossly erred in holding that the employees of the Yavatmal District Central Co-operative Bank, working in the entire district are to be taken into consideration for determining the strength of the union for recognising it as a Representative Union. One more error that appears to have been occurred in the consideration of the learned Industrial Court, is that the Union is only to be recognised for the employees of District Central Co-operative Bank. However, from the perusal of the provisions of the said Act, it is clear that the Union is not to be recognised for a particular enterprise. The Union is to be recognised for a particular industry in a local area. In the present case, in some of the talukas there are more than one Co-operative Banks working in the same local area. For example, in the Pusad Municipal area apart from their being branches of Yavatmal District Central Co-operative Bank, there are branch/branches of Yavatmal Urban Co-operative Bank. It is thus clear that the learned Industrial Court appears to have been swayed with an impression that the Representative Union is to be recognised for the employees of the Yavatmal District Central Co-operative Bank and not for the entire Co-operative Banking Industry.

16. Insofar as the reliance placed by the learned Counsel on the judgment of the Division Bench of this Court in the case of L.B. Repal v. Nagar District Urban Central Co-operative Bank Limited, Ahmednagar and Ors. (cited supra) is concerned, I am of the considered view that the said judgment is not applicable to the facts of the present case. The question before the Division Bench in the aforesaid case was pertaining to the jurisdiction of the labour Court. An employee of the Ahmednagar District Central Co-operative Bank, who was at the relevant time working at Parli branch, was terminated from the services. Being aggrieved thereby, he preferred a complaint before the labour Court. An objection was raised that the services of the petitioner were terminated at Parli, for which area the provisions of BIR Act were not applicable and as such the labour Court has no jurisdiction. This Court found that the provisions of the Act were applicable to Ahmednagar and that the business of the branch of Parli was very much the business of the Head Office at Ahmednagar and, therefore, the labour Court had the jurisdiction. Another issue that was considered by the Court was that while considering the issue of the jurisdiction, the place of the office of the respondent concern is the relevant issue and since the Head Office of the respondent Bank was situated at Ahmednagar to which area the Act was applicable, the labour Court had jurisdiction to entertain the application. The question of interpretation of local area did not arise for consideration before the Division Bench and as such, in my view, the reliance placed by the learned Counsel for the respondent No. 2 on the aforesaid judgment is of no assistance.

17. Insofar as the reliance placed by the learned Counsel for the respondent No. 2 on the judgment of the learned Single Judge of this Court in the case of Pune District Central Co-operative Bank Limited v. Bank Karmachari Sangh and Anr. (cited supra) is concerned, in my considered view, the said judgment instead of supporting the case of the respondent No. 2, supports the case of the petitioner. The question that arose for consideration before the Court, in the aforesaid case, was as to whether the total number of employees who must be regarded as protected employees should be taken from each of the Undertaking in the local area or on the basis of the total number of employees engaged in the local area in the industry. This Court in para 12 of the said judgment observed thus :-

"A representative Union as in the present case, is representative of not merely one concern or undertaking, but of the conglomeration of individual undertakings which put together comprise of an industry in respect of the local area in question."

In the said case, a submission was made on behalf of the employees that the branches of the Co-operative Bank in the Co-operative Banking Industry have individually been designated as Undertakings and as such they become industry within the meaning of clause 19 of Section 3. It was, therefore, contended that the total number of employees entitled for protection to be reckoned must be the employees of every Branch separately construed and not the total employees engaged in the industry. The learned Single Judge rejected the said contention and observed thus :-

"The concept of industry for the purposes of Chapter III of the Act postulates industry as a whole meaning, in the present case, the Cooperative Banking Industry. That is the industry which is notified by the State Government as the industry to which the provisions of the Act would apply. The whole concept of the representative Union under the Act operates in relation not to an individual undertaking, but the industry as a whole which is a conglomeration of all the businesses or undertakings put together. A representative union is a union representative for the entire industry for the local area in distinction to the position of a Union in relation to each separate undertaking."

It can thus be seen that the learned Single Judge in the aforesaid case has also taken a view that the concept of the representative Union under the Act operates in relation not to an individual undertaking, but the industry as a whole which is a conglomeration of all the businesses or undertakings put together.

18. I am, therefore, of the considered view that the respondent No. 1 has rightly taken into consideration the strength of employees working in the various branches of Co-operative Banking Industry in the respective local areas for determining as to which Union is entitled to be recognised as a representative Union. I am, further, of the view that the learned Industrial Court has erred in holding that the strength of the employees working in the entire district in the Yavatmal District Central Co-operative Bank has to be taken into consideration for the purpose of recognising representative Union.

19. In that view of the matter, the present writ petitions are allowed. The impugned order dated 4-5-1998 passed by the learned Industrial Court, Yavatmal is quashed and set aside and the order dated 11-3-1994 passed by the learned Assistant Registrar of Unions is restored.