Bombay High Court
Maharashtra Electrosmelt Kamgar ... vs Deputy Director (Ir) Ministry Of ... on 20 June, 2016
Bench: B.P. Dharmadhikari
1 wp3632.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3632 OF 2015
Maharashtra Electrosmelt Kamgar
Union, R.O.H. Colony, Maharashtra
Electrosmelt Ltd., Mul Road,
Chandrapur, District Chandrapur,
through its General Secretary
Shri Chandrashekhar Mahadeorao
Pode. ... Petitioner
- Versus -
1) Deputy Director (IR), Ministry
of Labour and Employment,
Shram Shakti Bhawan,
New Delhi.
2) Central Labour Commissioner
(Central), Ministry of Labour
and Employment, Shram
Shakti Bhawan, New Delhi.
3) Deputy Chief Labour
Commissioner (Central),
Govt. of India, Ministry of
Labour and Employment,
C.G.O. Complex, Block `C'
First Floor, Seminary Hills,
Nagpur - 6.
4) Assistant Labour Commissioner
(Central), Chandrapur, Tahsil
and District Chandrapur.
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5) Chandrapur Ferro Alloy Plant
(Sail) Mazdoor Sangh, House
No. 266, Mukti Colony,
Macchinala, near Durga
Temple, Industrial Estate,
Mul Road, Chandrapur, through
its President.
6) Steel Authority of India Ltd.,
Chandrapur Ferro Alloy Plant,
Mul Road, Chandrapur,
through its Executive Director.
ig ... Respondents
-----------------
Shri M.R. Pillai, Advocate for petitioner.
Smt. M. Chandurkar, Advocate for respondent nos.1
to 4.
Shri B.M. Khan, Advocate for respondent no.5.
Shri S.C. Mehadia, Advocate for respondent no.6.
----------------
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 20, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Rule, returnable forthwith. Heard finally by
consent of learned Counsel for the parties.
3 wp3632.15
2) Adv. Pillai for petitioner has pointed out that
respondent no.6 has not filed any reply.
3) The petition has been filed questioning a note
dated 12/5/2015 issued by Deputy Director for conduct
of secret ballot election in the establishment of
respondent no.6
ig at Chandrapur. Further
communication dated 20/5/2015 for said purpose has
also been questioned.
4) Adv. Pillai for petitioner submits that as in
State of Maharashtra, there is a statute, which
regulates recognition of Unions, the Code of Discipline
under which that exercise has been undertaken is not
applicable. He is relying upon an exception provided in
Appendix III of the said Code of Discipline to
substantiate his contention. He further submits that
the petitioner has not given consent to such election by
secret ballot and as per note appearing in first edition
of November 1961, such exercise cannot be
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undertaken. He points out that though Central
Government is appropriate Government for respondent
no.6, as deduction under Bombay Labour Welfare Act
still continues, Bombay Industrial Relations Act, 1946
continues to apply and hence, to that extent, there is
statute, which regulates grant of status as
Representative ig Union in State of Maharashtra.
Therefore also, according to him, provisions of Code of
Discipline do not apply. He is relying upon order dated
2/7/2013 passed by Division Bench of this Court in Writ
Petition No.1429/2012 to which one of us (B.P.
Dharmadhikari, J.) is party.
5) Adv. Khan appearing for rival Union submits
that exercise of statutory function cannot depend upon
volition of petitioner as otherwise there would never be
any election. He further contends that provisions of
Section 2(a) of Industrial Disputes Act, 1947 defining
appropriate Government are very clear and as such,
provisions of Bombay Industrial Disputes Act, 1946 or
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The Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 cannot
apply. He, therefore, submits that exception relied
upon by petitioner itself is not attracted in the present
matter. He relies upon express language of Code of
Discipline to urge that in view of the said provision,
order of Division Bench of this Court in Writ Petition
No.1429/2012 (supra) is not attracted. He also invites
our attention to judgment delivered by the learned
Single Judge of this Court to urge that in somewhat
similar circumstances for a cement industry, Central
Government is found to be appropriate Government.
6) Adv. Mehadia for respondent no.6 adopts
arguments of Adv. Khan for respondent no.5. He
submits that as provisions of Industrial Disputes Act,
1947 are attracted, no other law can be extended.
7) Smt. Chandurkar, learned Counsel appearing
for respondent nos.1 to 4, apart from relying upon
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reply-affidavit, adopts arguments advanced by
Adv. Khan and Adv. Mehadia.
8) The exception on which petitioner has placed
reliance appears as part of Appendix III. Appendix III of
Code of Discipline contains procedure for verification of
membership of Unions for the purpose of recognition
under the Code of Discipline. As per this exception,
said procedure is not applicable in the States where
recognition of Unions is regulated by a statute.
Adv. Pillai for petitioner submits that in State of
Maharashtra as also in Gujarat, recognition of trade
Unions is regulated by statutes. He further submits
that The Bombay Industrial Relations Act, 1946 and The
Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 are
such statutes in State of Maharashtra. However, it is
apparent that those statutes do not apply to industries
where appropriate Government is Central Government.
Thus, in State of Maharashtra, there is no statute,
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which regulates recognition of Unions in industries like
respondent no.6. As such, we find that exception on
which Adv. Pillai has placed reliance is not attracted
here.
9) We find it appropriate to reproduce the
relevant provisions
ig containing requirement of
participation on voluntary basis for proper appraisal.
"First Edition :
The Code of Discipline lays down certain
criteria for recognition of unions by the
managements on a voluntary basis. These
criteria have been further clarified by the
Indian Labour Conference. A procedure for
verification of membership of unions, to
determine their representative character, has
also been approved by the Standing Labour
Committee. For the convenience of unions,
managements and verification Officers all the
decisions so far taken on the subject have
been brought together in this brochure in a
classified form. As recognition is governed by
statutes in certain States, the relevant legal
provisions have been given in the appendices
to this brochure, for the benefit of these
concerned."
It is apparent from the note below Second Edition or
Third Edition or Fourth Edition that the contents thereof
8 wp3632.15
may not be laying down substantive legal provision.
However, language employed in First Edition stipulates
that the Code of Discipline lays down certain criteria for
recognition of Unions by the Managements on a
voluntary basis. Whether these are comments of
person, who has put his note to First Edition, or are
substantive legal
ig provisions, therefore, is a
fundamental dispute. From its contents, we find it
difficult to accept it as a substantive legal provision.
Perusal of similar Notes to further editions is also
conducive to same conclusion.
10) In any case it is open to petitioner to
participate in such recognition drive. Nobody compels
petitioner to become part thereof and it is always open
to petitioner to keep out of it. However, benefit of
Code of Discipline and scheme for recognition shall in
that event be not available to petitioner and it will be
extended to some other Union, which participates in
that drive and succeeds. The petitioner cannot by
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withholding its consent prevent the entire exercise of
verification. Such a course would be derogatory of
rights of other Unions.
11) As provisions of Section 2(a) of Industrial
Disputes Act, 1947 are very clear, Central Government
being appropriate Government, provisions of Bombay
Industrial Relations Act, 1946 do not apply to
respondent no.6. Merely because a welfare measure of
deduction towards welfare fund being carried under
Bombay Welfare Labour Act is continuing, that would
not mean that provisions of Bombay Industrial Relations
Act, 1946 apply to respondent no.6.
12) The order dated 2/7/2013 passed by Division
Bench of this Court in Writ Petition No. 1429/2012 takes
a particular view after looking into the language used
there in Code of Discipline. That language has not
been pointed out to us. Here the language in case of
respondent no.6 is unambiguous. The verification of
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membership by secret ballot is not prohibited by said
Code of Discipline.
13) We, therefore, find no case made out by the
petitioner warranting interference. The writ petition is
accordingly dismissed. Rule is discharged. No costs.
14)
At this stage, Adv. Pillai for petitioner seeks
continuation of interim order for further period of eight
weeks. Request is being opposed by other Counsel for
the parties. However, we find that interim order is
operating since 30/6/2015. Hence, we continue it for a
period of eight weeks. It shall cease to operate
automatically thereafter.
JUDGE JUDGE
khj
