Writ Petition No. 1310 of 2012

18th February, 2013

Petitioner Counsel: Ms. Gayatri Singh
Respondent Counsel: Mr. S.K. Talsania,Mr. Shailesh Pathak,,Mr. Gautam Yadav

JUDGMENT

JUDGMENT :- Heard Counsel for the parties.

2. Rule. Mr. S. K. Talsania, Senior Counsel waives service for Respondent No. 2 and Mr. Gautam Yadav waives service for Respondent No. 1. By consent, Rule made returnable forthwith and heard finally.

3. This Petition takes exception to the judgment and order passed by the Industrial Court, Maharashtra, Mumbai, dated 1st February, 2012 on Application (MRTU) No. 20 of 2010. The said application was filed by the Petitioner to cancel the recognition of Respondent No. 1 union i.e. Maharashtra Mazdoor Sabha in the non applicant No. 2 firm M/s. Kanga and Company, forthwith.

4. Ordinarily, prayer for cancellation of recognition may have to be dealt with on the basis of the ground predicated in Section 13 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU-PULP Act). In the present case, the argument, which was canvassed before the Industrial Court and has been reiterated before us, is limited to the efficacy of Section 10 of the Act, which is under Chapter III of the Act, dealing with recognition of Unions. Section 10 of the Act reads thus:

"10. Application of Chapter III :- (1) Subject to the provisions of subsections (2) and (3), the provisions of this Chapter shall apply to every undertaking, wherein fifty or more employees are employed, or were employed on any day of the pre-ceding twelve months;

Provided that, the State Government may, after giving not less than sixty days' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Chapter to any undertaking, employing such number of employees less than fifty as may be specified in the notification.

(2) The provisions of this Chapter shall not apply to undertakings in industries to which the provisions of the Bombay Act for the time being apply.

(3) If the number of employees employed in any undertaking to which the provisions of this Chapter apply at any time falls below fifty continuously for a period of one year, those provisions shall cease to apply to such undertaking."

5. In the context of this provision, the Petitioner applicant asserted before the Industrial Court that the strength of employees employed in Respondent No. 2 firm has fallen below 50 and therefore, provisions of Chapter III of the Act ceased to apply to the non applicant firm. The fact that, the strength of employees employed in the Respondent No. 2 firm was below 50 at the relevant point of time, has been established on the basis of the list of employees, filed by Respondent No. 2, before the Industrial Court. The said document contains details of 46 employees employed by Respondent No. 2, during the relevant period. In the application filed by the Respondent 2 for dismissal of the application filed by Respondent No. 1 union, before the Industrial Court, in no uncertain terms, it is stated that it had engaged only 45 employees during the period from April, 2010 to September, 2010. The Respondent No. 1 union has not disputed the correctness of the stand taken by Respondent No. 2 firm. As a matter of fact, in the reply filed by Respondent No. 1 union, it has been virtually conceded in Paragraph 4 thereof that once the employees' strength had fallen below 50 during any year, the provisions of Chapter III shall cease to apply to the said undertaking. In Paragraph 5 of the said application, it has been admitted that the strength of employees employed by Respondent No. 2 firm had fallen below the requisite strength of 50 employees.

6. The employer's witness was cross examined by Respondent No. 1 union. In the cross examination, the employer's witness was asked, as to whether it is true that only 46 employees were employed with the Respondent No. 2 firm. Notably, the Respondent No. 1 union did not produce any positive evidence nor relied on any documentary evidence to belie the claim of Respondent No. 2 firm that the strength of employees of Respondent No. 2 firm was 45 during April, 2010 to September, 2010. In this backdrop, the question that arises is: whether by virtue of sub Section (3) of Section 10, recognition granted to Respondent No. 1 union, for the purpose of provisions of the MRTU-PULP Act, had ceased to apply, as the provisions of Chapter III would have no application to the undertaking, whose strength of employees, at any time, falls below 50 continuously for a period of one year. The fact that, the strength of employees employed by Respondent No. 2 firm had not exceeded more than 50 for the relevant period, is indisputable. In that case, by virtue of deeming provision, it would necessarily follow that the provisions of Chapter III ceased to apply to such undertaking. Once the said Chapter ceases to apply, the recognition given to any union, under the "provisions of the MRTU-PULP Act", will become nonest in law.

7. The Counsel for the Respondent No. 1 is not in a position to support his argument that the recognition once granted to the union can be undone only by cancellation of recognition and suspension of rights, as predicated in Section 13 of the Act. Further, that argument clearly overlooks that Section 10(3) of the Act operates on its own and being independent provision, will have to be given due effect. The only interpretation that is possible of sub Section (3) of Section 10, is that, Chapter III of the MRTU-PULP Act applies only to undertakings in which the strength of employees does not remain below 50 continuously for a period of one year and the moment it falls below 50 continuously for a period of one year, the provisions ceases to apply to such undertakings.

8. In this view of the matter, the application filed by Petitioner succeeds on this finding. The Industrial Court has discarded the claim of the Petitioner on the reasoning, which, in our opinion, is inappropriate. The fact that, the Petitioner did not produce any proof regarding resignation of employees working in the non applicant No. 2 firm from the non applicant No. 1 union; and that there is no proof of formation of internal union i.e. non applicant No. 3 by the employees working in the non applicant No. 2 firm has no bearing in answering the point in issue. The Industrial Court was swayed by the fact that the Petitioner had merely filed Bank receipt, which was not sufficient to discharge the burden of substantiating its contention. That reasoning may have been useful to consider the application for cancellation of recognition, for the purpose of inquiry under Section 13 of the Act and not in relation to the effect of Section 10(3) of the Act, which is a self operating and deeming provision. The Industrial Court, perhaps, misdirected itself because of the nature of application filed, which was for cancellation of recognition including under Section 13 of the Act.

9. Taking over all view of the matter, therefore, the impugned decision cannot be sustained. The same is quashed and set aside. Instead, it is held that the provisions of Chapter III of the MRTU-PULP Act will have no application to the Respondent No. 2 firm, as it has been noticed that the strength of employees employed by Respondent No. 2 firm had fallen below 50 continuously for a period of one year.

10. Nothing more needs to be done in the present proceedings. If the Petitioner has any other grievance against the activities of Respondent No. 1 union, which are prejudicial or otherwise, may take recourse to such other remedy, as may be permissible in law.

11. At this stage, Counsel for Respondent No. 1 submits that the operation of this order be kept in abeyance, as the Respondent No. 1 may consider of challenging the same by way of Appeal before the Apex Court. We cannot show that indulgence in view of the opinion recorded that Section 10(3) of the Act is a deeming provision and is self operating and if the interim protection, as prayed for, is granted, that would be contrary to the spirit of the said provision. Hence this prayer is rejected.

12. The Petition is disposed of accordingly. Rule made absolute on the above terms.

Ordered accordingly.