SHRAVANKUMAR MAHADEV DEKOTE Vs. ARVIND MILLS LIMITED AHMEDABAD

JUDGEMENT

(1.) In this group of petitions a short but interesting question arises about the right of an individual workman vis a vis trade union and particularly representative union which has been invested. with the right of exclusive representation. The basic question in all these petitions is: Whether an individual workman can be excluded from initiating Industrial Court proceedings or excluded from such proceedings where the order is passed on concession made by the representative union resulting into some evil consequences for a workman or a group of workmen? This question arises in diverse facts and circumstances. In the first group viz. Special Civil Applications Nos. 1747 1023 and 453/79 it relates to the dispute between the petitioners and the respective mill company in the matter of bonus while in Special Civil Applications Nos. 1424/79 and 850/79 it relates to the industrial court proceedings taken for declaration on cessesion of workmen as illegal strike. By way of sample facts from each of the two groups are briefly set out hereinbelow so as to appreciate the precise question in proper perspective.

(2.) In the first group of the aforesaid three special civil applications we have taken the sample facts of first Special Civil Application (No. 1747/80). Respondent No. 1 millcompany made the payment of bonus at the statutory rate in terms of the settlement between the millcompany and the Textile Labour Assciation (hereinafter referred to as the TLA) which is the representative trade union. The petitioners called a meeting of the workmen in the employment of the first respondent millcompany wherein petitioners Nos. 1 to 5 were appointed 3 representatives of the workmen in the employment who attended the said meeting. It is claimed by the petitioners that 80 to 90 of the workmen working in the first respondent millcompany attended the said meeting. The sixth petitioner is a trade union registered under the provisions of the Trade Unions Act 1926 According to the petitioners the respondent millcompany ought to have paid to the workmen bonus at the rate of 20 per cent instead of 8.33 per cent which is the statutory rate under the Payment of Bonus Act 1965 and at which rate the bonus was granted in terms of the settlement with the representative trade union respondent No. 2 herein. The petitioners therefore gave a notice calling upon the first respondent millcompany to make payment at the rate of 20 per cent in the year 1977 and also addressed a letter to the Labour Commissioner of the State Government and requested him to hold conciliation proceedings and to refer the dispute to the competent court for adjudication in case of failure of conciliation proceedings under the Bombay Industrial Relations Act (hereinafter referred to as the BIR Act). The respondent mill company did not respond to the demand made by the petitioners and the Assistant Labour Commissioner respondent No. 3 herein also rejected the request made by the petitioners to hold conciliation proceedings and to refer the matter to the Court by the impugned order of 5/05/1979 on the around that since the Textile Labour Association respondent No. 2 herein was the representative union the petitioners were not competent to raise the dispute particularly because a settlement for the payment of bonus for the year 1971 lead been already effected between the mill company and the said representative trade union. The Assistant Labour Commissioner rested the impugned order on the provisions contained in section 78 of the BIR Act since the right of representation of the workmen was exclusively available to the representative union which has entered into the settlement in the matter of bonus for the said year. The petitioners therefore have moved this Court for challenging the impugned order.

(3.) From the second group of the last two special civil applications we set out the facts from Special Civil Application No. 1424 of 1979. Respondent No. 1 is a textile mill while respondent No. 2 is a recognised representative union the TLA. Petitioner No. 1 is a minority union of which petitioners Nos. 2 to 18 are the workmen members. It appears that a dispute arose between the Mill company and the workmen about the recess period. A settlement was arrived at between the Mill company and the representative trade union respondents Nos. 1 and 2 respectively providing for relay system of recess which was approved by the Chief Inspector of Factories. From 17th to 19/12/1978 some workmen including the petitioners enjoyed recess as was permissible before the agreement. Respondent No. 1 millcompany therefore sought a declaration by making an application to the Labour Court Ahmedabad under the relevant provisions of secs. 78 and 79 of the BIR Act that such an action of the workers of the Ring Frame Department and Doubling Department amounted to illegal strike. A public notice was issued by the respondent mill company in one of the city dailies namely Jansatta of 20/10/1978 calling upon the workers to remain present before the Second Labour Court Ahmedabad on 26/10/1978 Respondent No. 2 Union was arrayed as a partyopponent in the said proceedings. The union filed its appearance. By its written statement placed it was inter alia stated that the said union had not instigated any of the workers to resort to strike nor had it advised to do so. The petitioners along with other workers made an application to the Labour Court praying that they may be joined as opponents in the application. It appears however that that application was not pressed for reasons which are not clear by the Advocate of the petitioners which the petitioners claim was without their knowledge and consent. The petitioners claim that they came to know about the final order made by the Labour Court in those proceedings only when it was notified on the notice board of the mill company. The petitioners contend that the Labour Court would not have granted the application even if it had been pressed for since the Court would have heard the representative trade union only and decided the matter. The petitioners make a grievance that the representative trade unionrespondent No 2 herein expressly declared before the Labour Court that they did not want to lead any oral evidence in the matter nor did they intend to cross examine one Shri Jashbhai Patel who filed an affidavit on behalf of the respondent millcompany since he happened to be the Manager at the relevant time. The respondent union according to the petitioners did not produce any other documentary or oral evidence challenging the version of the respondent millcompany that the objected action of some of the workers did not amount to strike. The Labour Court however; by its impugned order of 6/02/1979 declared that the workers of Ring Frame Department working in the first second and third shifts and those working in the first and second shifts of Doubling Department resorted to illegal strike from 17/10/1978 and continued to do so till 19/10/1978 The respondent millcompany pursuant to this order initiated disciplinary proceedings against the petitioners for participation in the illegal strike by issuing show cause notices on them. The petitioners submitted their replies to the show cause notices contending that there was no strike since they merely enjoyed the recess. They requested for supply of the copy of the order of the Labour Court in Gujarati since they did not understand English. Respondent millcompany however. put up a notice on 27/03/1979 informing the concerned workers including the petitioners that because of the order of the Labour Court there was a break in the continuity of the service of the said employees and therefore their services would be counted from 7-2-1979 as fresh services for purposes of gratuity under the Payment of Gratuity Act 1972 The petitioners have therefore moved this Court for appropriate writ order and direction to quash and set aside the said impugned order.