KAMGAR UTKARSHA SABHA Vs. BHARATIYA KAMGAR KARMACHARI MAHASANGH

JUDGEMENT

(1.) RULE. Returnable forthwith. Mr. Aditya Chitale appears for respondent No. 1 and waives service. Mr. S. M. Naik appears for respondent No. 2 and waives service on his behalf. Respondent Nos. 3 and 4 are formal parties and, therefore, service of rule on the said respondents is dispensed with. By consent rule is taken up Board for final hearing immediately.

(2.) THE petitioner, Kamgar Utkarsha Sabha (for the sake of brevity hereinafter referred as "utkarsha Sabha") is a trade union recognised under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "mrtu and PULP Act") and claiming to be operating in the respondent No. 2 M/s. Parle Products Limited (for short "the Company" ). The Utkarsha Sabha was granted statutory recognition in the undertakings of the company in the year 1984. The 1st respondent, Bharatiya Kamgar Karmachari. Mahasangh (hereinafter referred as "karmachari Mahasangh) is a trade union registered under the Trade Unions Act. Karmachari Mahasangh made an application on 26-6-1997 for cancellation of recognition and suspension of rights of the Utkarsha Sabha under section 13 of the MRTU and PULP Act before the Industrial Court at Mumbai. Principally, the cancellation of recognition and suspension of rights of Utkarsha Sabha was sought on the ground that the membership of Utkarsha Sabha has fallen below required strength under section 11 of the MRTU and PULP Act for its recognition for a continuous period of six calendar months. The Karmachari Mahasangh filed a list of its members in alphabetical order and other documents in support of its case. The Utkarsha Sabha filed objection to the written statement contesting the application made by the Karmachari Mahasangh on 17-7-1997 and amongst other grounds set up the defence that the application made by the Karmachari Mahasangh was based on false pleadings and information and that in the absence of the requisite pleadings for cancellation under section 13, the application was not maintainable. It appears that the Karmachari Mahasangh also on 17-7-1997 made an application for appointment of Investigating Officer for the purpose of physical verification of the membership. It was stated in the said application that the Utkarsha Sabha is taking under advantage of its recognition and trying to prolong the decision on one or the other pretext and, therefore, in the interest of the member employees, the application for cancellation made by Karmachari Mahasangh deserves to be heard expeditiously. The Utkarsha Sabha filed reply to the application made by the Karmachari Mahasangh on 28-7-1997 and it was inter alia urged that the main application preferred by Karmachari Mahasangh for cancellation of recognition under section 13 of the MRTU and PULP Act was not maintainable and deserved to be dismissed at this stage and, therefore, the question of appointing an Investigating Officer did not arise. The said application made by the Karmachari Mahasangh for appointment of Investigating Officer was disposed of by the Industrial Court on 17-9-1997. Though the objection was taken by the Utkarsha Sabha before the Industrial Court that the application made by the Karmachari Mahasangh under section 13 of the MRTU and PULP Act was unfair and required to be dismissed, the Counsel for Utkarsha Sabha ultimately stated before the Industrial Court that the Utkarsha Sabha has no objection for the appointment of the Investigating Officer for verification of the membership from the available documents placed before the Court but the Investigating Officer should not be directed to go to the factory to verify the membership of the unions. The Industrial Court ultimately by the order dated 17-9-1997 felt that it was necessary to verify the facts through the Investigating Officer about the majority of the membership from the available documents placed on record by both the parties and, therefore, directed the Investigating Officer to verify the documents filed by the parties before the Court and submit a report that during the relevant period from December 1996 to May 1997 which union was having majority membership and if double membership is found with both the unions the same may be treated as cancelled and submit his report. The said order dated 17-9-1997 has not been challenged by Utkarsha Sabha admittedly and pursuant thereto the Investigating Officer has proceeded verifying the facts of the majority about the membership from the available documents placed on record by both the parties. On 6-10-97, Utkarsha Sabha made an application before the Industrial Court to dismiss the application made by Karmachari Mahasangh under section 13 of the MRTU and PULP Act for cancellation of the recognition of Utkarsha Sabha. The application was based on the same ground which was already set out in the written statement/objections by Utkarsha Sabha and it was stated in the application that the Court has issued show cause notice in the present proceedings on 27-6-1997 and it is necessary that unless and until the membership of the Utkarsha Sabha is shown below minimum as required under section 11 of the Act, in the month of June 1997, the month in which the show cause notice was issued, the application itself was not maintainable and liable to the dismissed. The said application made by Utkarsha Sabha on 6-10-1997 was contested by Karmachari Mahasangh and the industrial Court by the impugned order has disposed of the said application after holding that the application shall be considered after the report is received from the Investigating Officer on verification of the total membership of the rival unions.

(3.) ASSAILING the order passed by the Industrial Court on 25-11-1997, Mr. Bharucha, the learned Senior Counsel, appearing for the petitioner strenuously urged that the conditions precedent for invoking the jurisdiction under section 13 of the MRTU and PULP Act were not satisfied and, therefore, the application made by the Karmachari Mahasangh was liable to be dismissed as not maintainable. The learned Senior Counsel would urge that it was incumbent upon the part of the Karmachari Mahasangh to plead specifically in the application under section 13 that the membership has fallen below 30% for a continuous period of six months preceding the date of the application and also in the month in which the notice was issued and since in the present case there is no pleading that the membership has fallen below 30% in the month of June 1997, the month in which the notice was issued the application was liable to be rejected at the threshold being not maintainable. According to Mr. Bharucha, the learned Senior Counsel, no enquiry by the Investigating Officer as ordered in the order dated 17-9-1997 is required since the jurisdictional fact relating to the maintainability of the application under section 13 was lacking. In support of his contention, the learned Senior Counsel stoutly relied upon the decision of the Division Bench of this Court in (Maharashtra General Kamgar Union v. Mazdoor Congress and others)1983 Lab. I. C. 1034.