Bombay High Court
Madura Coats Employees Union vs Coats India And Another on 1 August, 2024
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2024:BHC-OS:12037 911-WP-2118-2008.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2118 OF 2008
Madura Coats Employees Union ...Petitioner
Versus
Coats India & Anr. ...Respondents
Ms. Suvarna Joshi, Advocate, for the Petitioner.
Ms. Shraddha Naik, Advocate, for the Respondent.
CORAM: MADHAV J. JAMDAR, J.
DATED : 1st AUGUST 2024
JUDGMENT:
1. Heard Ms. Joshi, learned Counsel appearing for the
Petitioner-Union and Ms. Naik, learned Counsel appearing for the
Respondent No.1-Company.
2. By the present Writ Petition preferred under Article 226 of
the Constitution of India, the Petitioner is challenging the legality
and validity of the Order dated 6 th August 2008 passed by the
learned Member, Industrial Court, Mumbai in Complaint (ULP)
No.1415 of 2000.
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3. The factual position involved in the present Writ Petition is
as follows:
(a) The Respondent No.1-Company ("the Company") had
filed an Appeal No.604 of 2000 in this Court and a
notice dated 16th November 2000 was given by the
learned Advocate appearing for the Company to the
learned Advocate appearing for Madura Coats
Employees Union-present Petitioner ("the Union") i.e.
Respondent in said Appeal No.604 of 2000. By the
said notice it was communicated by the learned
Advocate appearing for the Company to the learned
Advocate appearing for the Union that the said Appeal
would be mentioned on 17th November 2000 at 2:45
p.m. for clarification of Order dated 1st August 2000.
(b) Thereafter, on 17th November 2000 at about 2:02
p.m., a fax was sent by the learned Advocate
appearing for the Company to the learned Advocate
appearing for the Union in said Appeal No.604 of
2000 stating that due to certain office objections the
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papers of the said Appeal No.604 of 2000 would not
be produced at 2:45 p.m. before the Court and
therefore, notice dated 16th November 2000 be treated
as cancelled.
(c) It is the case of the Petitioner that the Union
representatives had attended the High Court in view
of said notice dated 16th November 2000 and inspite
of that, the Respondent No.1-Company contrary to
mandate of Section 23 of the Maharashtra Recognition
of Trade Unions and Prevention of Unfair Labour
Practices Act, 1972 ("the said Act") had deducted the
salary of the representatives of the Union equivalent
for the period of absence for that date.
4. Ms. Joshi, learned Counsel appearing for the Petitioner
pointed out the Order dated 15 th October 2008 passed by this
Court while admitting the present Writ Petition. The said Order
reads as under:
".Heard Counsel for the parties. Prima-facie, I find
force in the submission of the petitioners that it was
long standing practice followed by the parties
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permitting the office bearers of the union to attend
the proceedings before the High Court and produce
proof of attendance, failing which it was to be
treated as casual leave.
2. The Court below has completely glossed over the
argument that the said practice was in the nature of
an agreement between the parties and the
allegation in the complaint was one of breach of the
said agreement by the respondent company. This
aspect has not been dealt with by the Court below
at all.
3. In the circumstances, arguable questions are
raised. Hence Rule.
4. As short question is involved, hearing of petition
is expedited. It will be open to the parties to move
for fixed date of hearing if the matter is not notified
for hearing till March 2009."
(Emphasis added)
5. It is the submission of Ms. Joshi, learned Counsel appearing
for the Petitioner that although the present Writ Petition is only
pertaining to deduction of salary of one day i.e. 17 th November
2000, however, the Respondent No.1-Company is not following the
well established long standing practice followed by the parties
permitting office bearers of the Company to attend the proceedings
before the High Court and produce proof of attendance for the
same, failing which the same was to be treated as casual leave.
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6. As regards the controversy involved in the present Writ
Petition i.e. attendance of the representatives of Union on 17 th
November 2000, it is required to be noted that on 16 th November
2000 a notice has been given to the Union that the said Appeal
No.604 of 2000 would be produced before the Division Bench on
17th November 2000 at 2:45 p.m. At about 02:02 p.m., on 17 th
November 2000 a fax was sent by the learned Advocate appearing
for the Company to the learned Advocate appearing for the Union
that due to some technical difficulties papers of said Appeal
No.604 of 2000 would not be produced and therefore, notice dated
16th November 2000 be treated as cancelled. However, it is
required to be noted that the Respondent No.1-Company is at
Goregaon (E), Mumbai-63. To attend the matter at 2:45 p.m. in
the High Court, the representatives have to start very early and
therefore, by no stretch of imagination, a fax notice sent at about
02:02 p.m. on the very day i.e. on 17 th November 2000 can be said
to be an adequate notice of cancellation of notice dated 16 th
November 2000 so that the representatives of the Union need not
attend the High Court.
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7. A learned Single Judge while admitting this Writ Petition has
recorded prima facie opinion that the learned Member, Industrial
Court, Mumbai has not taken into consideration the long standing
practice followed by the parties permitting the office bearers of the
Union to attend the proceedings before the High Court and
produce proof of attendance. It is the case of the Petitioner that
apart from one incident which is mentioned in the Writ Petition,
the Company is not following the long standing practice as noted
in Order dated 15th October 2008.
8. The learned Member, Industrial Court while dismissing the
complaint has held that the requirements of Section 23 of the the
said Act are not fulfilled. It has been held that Section 23 of the
said Act contemplates that a certificate shall be produced by the
members of the recognized Union issued by the authority or the
Court before which he or they appeared or acted and then only,
they are entitled for the salary and allowances to be paid. It is
required to be noted that in the context of above reasoning
recorded by the learned Member, Industrial Court, Mumbai,
learned Single Judge while admitting the Writ Petition has
observed that the learned Member, Industrial Court has completely
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overlooked the long standing practice followed by the parties
permitting the office bearers of the Union to attend the
proceedings before the High Court and produce proof of
attendance, failing which it was to be treated as casual leave.
9. For the purpose of appreciating the reasoning of the learned
Member, Industrial Court, Mumbai, it is necessary to set out
Section 23 of the said Act, which reads as under:
"23. Employees authorised by recognised union to
appear or act in certain proceedings to be
considered as on duty.-
Not more than two members of a recognised union
duly authorised by it in writing who appear or act
on its behalf in any proceeding under the Central
Act or the Bombay Act or under this Act shall be
deemed to be on duty on the days on which such
proceedings actually take place, and accordingly,
such member or members shall, on production of a
certificate from the authority or the court before
which he or they appeared or acted to the effect
that he or they so appeared or acted on the days
specified in the certificate, be entitled to be paid by
his or their employer his or their salary and
allowances which would have been payable for
those days as if he or they had attended duty on
those days.
Explanation.- For the purpose of this section
"recognised union" includes a representative union
under the Bombay Act."
(Emphasis added)
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10. Ms. Joshi, learned Counsel appearing for the Petitioner has
relied on the decision of a learned Single Judge in the case of
Madura Coats Ltd. vs. S. L. Mehendle, Member, Industrial Court 1
and more particularly on paragraph 7 of the same. The said
paragraph reads as under:
"7. The objects and reasons clause of the M.R.T.U.
and P.U.L.P. Act does not also throw any light on the
expression to 'appear' and 'act'. It may be noted that
the word 'appear' and 'act' is also used under
the Bombay Industrial Relations Act, an Act which
came into force much before the enactment of
the M.R.T.U. and P.U.L.P. Act . Earlier the expression
used was to appear. Thereafter by amendment the
word 'act' has also been included. The only question
is whether the expression 'appear' or 'act' in section
23 of the Act must be so read so as to mean to
plead, argue and/or conduct the proceedings and
excludes assistance by office bearers of a Trade
Union to Legal Practitioners. Section 23 of the
M.R.T.U. and P.U.L.P. Act is nothing but a
recognition of the long standing practice whereby
the employers and Unions either as a matter of
practice or by settlement have been permitting
office bearers to represent the union in various
proceedings wherein disputes of collective nature
and/or disputes connected with the rights of the
members or Unions. Such practice has been existing
for a long time and has been understood as a
necessary part of collective bargaining in as much as
it would be the office bearers of the Union who
would be best equipped to represent the interests of
1 1998 1 CLR 199
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the members of the Union by themselves or instruct
pleaders and Advocates to appear on their behalf.
Section 23 of the Act, therefore, is a statutory
recognition of this prevailing practice whereby the
office bearers used to act for the Union in the
proceedings. "
(Emphasis added)
Thus, the learned Single Judge in Madura Coats Ltd. (supra)
has held that the expression to 'appear' and to 'act' in Section 23 of
the said Act also includes instructing pleaders and Advocates to
appear in their behalf. It has been held that such practice has been
existing for a long time and has been understood as a necessary
part of collective bargaining in as much as it would be the office
bearers of the Union who would be best equipped to represent the
interests of the members of the Union by appearing themselves or
by instructing pleaders and Advocates to appear on their behalf.
11. Thus, the reasoning of the learned Member to the effect that
attending the High Court proceedings will not be covered by the
expression 'appear' or 'act' in Section 23 of the said Act is contrary
to the decision of this Court in Madura Coats Ltd. (supra). Learned
Member in the impugned order has also observed that the Union
has not complied with Section 23 strictly i.e. such proceedings
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actually take place and members of Union shall produce certificate
from the authority or the Court before which they have appeared
or acted to the effect that they have so appeared or acted on the
days specified in the certificate. However, learned Member while
recording the said reasons has completely ignored the long
standing practice followed by the parties permitting the office
bearers of the union to attend the proceedings before the High
Court and produce proof of attendance, failing which it was to be
treated as casual leave. It is required to be noted that on many
occasions, matters are listed on board before the High Court but
could not be taken up for hearing due to paucity of time. Thus, the
reasoning recorded by the learned Member by completely ignoring
the said long standing practice is not proper.
12. In view of the above position, Ms. Naik, learned Counsel
appearing for the Respondent No.1 fairly states that two members
of the Union who had attended the High Court on 17 th November
2000 shall be paid salary and allowances for their attendance. On
instructions, she further states that whenever in future the matter
between Company/Union/Worker will be listed in the High Court,
on production of relevant pages of the High Court Cause List and
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on production of the proof of attendance the two representatives of
the Union will be paid salary and allowances for the said
attendance. The said proof can also include certificate issued by
the learned Advocate appearing for the Union, apart from other
proof of attendance.
13. Accordingly, the impugned Order dated 6 th August 2008
passed by the learned Member, Industrial Court, Mumbai in
Complaint (ULP) No.1415 of 2000 is quashed and set aside and
said Complaint (ULP) No.1415 of 2000 is allowed in terms of the
statement made by the learned Counsel appearing for the
Respondent No.1-Company as noted in paragraph No.12.
14. The Writ Petition is disposed of in above terms with no order
as to costs.
[MADHAV J. JAMDAR, J.]
Digitally
signed by
SONALI
SONALI MILIND
MILIND PATIL
PATIL Date:
2024.08.10
11:29:23
+0530
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