01 December 2015
Supreme Court
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POONA EMPLOYEES UNION Vs FORCE MOTORS LIMITED

Bench: V. GOPALA GOWDA,AMITAVA ROY
Case number: C.A. No.-010130-010131 / 2010
Diary number: 3758 / 2009
Advocates: JYOTI MENDIRATTA Vs K J JOHN AND CO


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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NOs. 10130-10131   OF 2010

POONA EMPLOYEES UNION     ....APPELLANT

VERSUS

FORCE MOTORS LIMITED & ANOTHER  …..RESPONDENTS

JUDGMENT

AMITAVA ROY,J.  

Two  employees  unions  of  the  industrial  

establishment, Force Motors Limited (hereinafter to be referred  

to as “the company”) are locked in a legal tussle, the appellant  

for  acquiring  the  status  of  a  recognized  union  under  the  

Maharashtra  Recognition  of  Trade  Unions  and Prevention of  

Unfair Labour Practices Act, 1971 (for short, hereinafter to be  

referred to as “the Act”) and the respondent No. 2  to ward  off  

such an endeavour, it being the recognized union.  The pursuit  

for recognition that had commenced in the year 2003, on an  

application filed by the appellant before the Industrial  Court  

under  Section  11  of  the  Act,  has  witnessed  a  prolonged  

adjudication, however, leaving the issue unresolved.  Though  

the appellant union tasted success before the Industrial Court,

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the fortune reversed before the High Court thus, catapulting it  

before this Court for its pancean intervention.  In challenge, is  

the judgment and order dated 2.2.2009 rendered by the High  

Court of judicature at Bombay in Writ Petition (C) No. 2907 of  

2006 jointly  with W.P.  (C)  No.  2878 of  2006,  lodged by  the  

company and the defender union independently assailing the  

determination of the Industrial Court.

2. We have heard Mr. Colin Gonsalves, learned senior  

counsel for the appellant and Mr. Shyam Divan and Mr. C.U.  

Singh, learned senior counsel for the respondent Nos. 1 and 2  

respectively.

3. The factual backdrop has to be summarily outlined to  

better  comprehend  the  issue  and  the  rival  assertions.   The  

company, Force Motors Limited, earlier named as Bajaj Tempo  

Limited, has its office at Akurdi, Pune.  The respondent No. 2-  

union i.e. Bhartiya Kamgar Sena (for short, hereinafter to be  

referred  to  as  “the  BKS”)    is  the  recognized  union  of  the  

company.  The appellant union in its bid to be adjudged as the  

recognized  union  in  place  of  BKS,  filed  an  application  on  

6.9.2003 before the Industrial Court, Pune, as required under  

the  provision  of  the  Act.   It  insisted  that  almost  all  the  

employees  members  of  BKS  had  meanwhile  tendered  their

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resignation, and had expressed their desire to discontinue their  

membership  therewith.   It  claimed  that  majority  of  the  

employees had become its members, so much so that in the  

month of  January,  2003,  it  had  in  its  fold  1973 employees  

members.  Claiming that it was a union registered under the  

Trade Unions Act, 1926 (for short, hereinafter to be referred to  

as “1926 Act”)   on 20.7.1986 with a valid certificate  to that  

effect,  it  asserted  that  with  the  exodus  of  the  employees  

members from BKS to its ranks, it had the holding of 85% of  

the total employees of the company.  It disclosed, inter alia, as  

well  the  names  and  particulars  of  the  office  bearers  and  

members  of  the  Executive  Committee  as  in  the  month  of  

January,  2003  and  mentioned  as  well  that  its  membership  

subscription was Rs. 2 per month and that the meetings of the  

Executive Committee were being held at regular intervals of not  

more than 3 months.  It maintained as well that the resolutions  

passed  by  the  Executive  Committee  and  the  General  Body  

thereof were recorded in the Minute Book and that its accounts  

were being duly audited by a Chartered Accountant for every  

financial  year  and  that  certificate(s)  to  that  effect  was/were  

issued as well.  Contending that it, in any case, had in its roll  

more than 30% membership of the employees of the company,

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this along with the other factors entitled it to be adjudged as  

the recognized union thereof under the Act.  That it complied  

with the prescription of the statute more particularly as laid  

down in Sections 11 and 19 of the Act, was emphasized.

4. The  company  resisted  the  application  by  pleading,  

amongst  others,  that  the  appellant  union  was  not  duly  

registered under the 1926 Act.   It denied as well that it did  

have, at that point of time, 30% membership of the employees  

of the company and that it did comply with the imperatives of  

Section 19 of the Act.  Dismissing the appellant union’s claim  

of majority membership to be a bogey, it refuted its claim of  

having  larger  membership  of  the  employees  of  the  company  

compared  to  BKS.   The  company  alleged  that  the  appellant  

union had failed to maintain the records as per Section 22 of  

the 1926 Act and that it was, thus not eligible to be conferred  

the status of recognized union of the company.

5. BKS, as well, joined the fray in similar lines with the  

company.  Apart from reiterating that the appellant union was  

not  duly  registered under  the  1926 Act  and thus it  had no  

locus  standi   to  claim  the  status  of  a  recognized  union,  it  

categorically controverted its clam of holding 30% membership  

of the company as compared to it (BKS).   It denied that the

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appellant union had complied with the mandatory provisions of  

Section 19 of the Act pertaining to minimum subscription of  

membership, meetings of the Executive Committee at regular  

intervals, record of resolutions in Minute Book and audit of  its  

accounts.  It  alleged  that  the  appellant  union  had  produced  

false and fabricated records in respect of membership as well  

as the meetings of its Executive Committee.  BKS claimed that  

it had been working efficiently and effectively as the recognized  

union  of  the  company  over  the  years  and  had  zealously  

guarded the interest of the workers by entering into settlements  

with the company from time to time to effectuate the same.  It  

alleged further that the office bearers of  the appellant union  

were  outsiders  and  that  it  (appellant  upon)  had  not  been  

working in the interest of the employees of the company.

6. In the proceedings registered as Application (MRTU)  

No.  3 of  2003 before the Industrial  Court at  Pune,  following  

issues were framed founded on the rival pleadings:   

  “1) Whether  the  Applicant  Union proves  that  it  has membership of not less than 30% of the total  number  of  the  employees,  employed  in  the  undertaking  for  the  whole  of  the  period  of  six  months,  immediately  preceding  the  calendar  month, in which it so applies”? 2) Whether the membership of Applicant Union  was  larger  than  that  of  the  membership  of  the  Non-Applicant  No.  2  (Recognized  Union),  during

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the whole of the period of six months, prior to the  filing of the petition? 3) Whether  the  Applicant  Union  has  made  compliance  of  Section 19 of  MRTU & PULP Act,  1971? 4) Whether  the  Applicant  Union is  entitled  for  the certificate of registration as a recognized union  in  place  of  Non-Applicant  No.  2  Union  as  per  Section 14 (3) of MRTU & PULP Act, 1971? 5)      What order? ”

7. At the outset, the Industrial Court recorded that the  

application  of  the  appellant  union  was  in  keeping  with  the  

requirement that there should be a time lag of two years since  

the  date  of  registration  of  the  recognized  union  and  an  

interregnum  of  one  year  since  the  date  of  disposal  of  the  

previous application for recognition, if any.

8. The Industrial  Court  in  the  course  of  adjudication  

entrusted an exercise to the Investigating Officer contemplated  

by the Act to verify the membership of both the unions and to  

submit a report before it. This was patently in order to satisfy  

itself of the compliance of the prescriptions of Sections 11 and  

12 of  the Act,  by the appellant union seeking the status of  

recognized union.  As the decision eventually rendered by the  

Industrial Court on 22.3.2006 would reveal, both the unions  

were afforded sufficient opportunity by the Investigating Officer  

to adduce evidence on the rival claims of membership.  The

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report  of  the  Investigating  Officer  dated  26.10.2004,  as  is  

available on record, was taken note by the Industrial Court in  

details.

09.  It  took  into  account  the  findings  recorded  in  the  

report that there were 26 and 217 exclusive members of the  

appellant  union  and  BKS  respectively  and  1908  common  

members of both the unions.  This was in the face of the total  

strength of the employees of the company ranging from 2109  

to 2155 during the relevant period i.e. March 2003 to August,  

2003.   That  vis-à-vis,  this  strength,  whereas  the  appellant  

union had claimed its hold over 1973, BKS asserted that it had  

2166 employees as its members.  As a plea was raised before  

the  Industrial  Court  that  the  aspect  of  overlapping  

membership  ought  to  be  excluded  and  that  exclusive  

membership of the unions ought to be determined as a correct  

index of the membership strength of the competing unions, it  

undertook an analysis, inter alia, of the oral evidence adduced  

before  it  as  would  be  adverted  to  hereafter.   The  appellant  

union  had  examined  witnesses  including  its  President  –  

Madhav  and a member–Gugario to prove the issue of majority  

membership of the employees of the company.  The company  

and the BKS produced witnesses as well in support of their

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resistance.   For  BKS,  office  bearers  including  its  General  

Secretary, President of Pune Unit, Executive Member of Pune  

Unit, Secretary and Vice-President of BKS were examined.

10. In  the  process  of  evaluation  of  the  oral  evidence  

adduced, it  transpired that the membership fee of  BKS was  

being deducted from the bonus amount payable to the workers  

every  year.   That  the  act  of  the  company  in  deducting  the  

membership  fee  from  the  bonus  amount  was  the  subject  

matter  of  assailment  in  the  Industrial  Court  in  a  separate  

proceeding was noted.  The Industrial Court recorded that for  

the last five to six years prior to the adjudication, the company  

was collecting Rs. 100 per worker per annum from the bonus  

amount and adjusting the same against the membership fee of  

BKS.  It also noted that such deduction was at the instance of  

BKS, requesting the company to do so from the bonus payable  

to the workers every year.  It was also recorded that there was  

no practice to pay membership fee in cash by the employees of  

the company to BKS for this period.  The endeavour on the  

part  of  the  witnesses  of  the  BKS  in  the  capacity  of  office  

bearers to testify that it used to collect membership fee in cash  

from the workers was not accepted as the same was opposed  

to the contemporaneous records.   To fortify this conclusion,

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the Industrial Court also referred to the documentary evidence  

as available demonstrating that more than 1500 workers of the  

company along with appellant union had raised this issue in  

the  year  2002  and  had  impeached  the  deduction  of  

membership  fee  of  BKS  from  the  bonus  amount  by  filing  

complaints  in  the  year  2003 before  the  same forum.   That  

there  was  no  individual  consent  letter  of  the  workers  

authorizing the company or the BKS to effect deduction used  

for adjustment against membership fee was noted as well.  The  

Industrial  Court returned a finding that such deduction did  

not amount to voluntary subscription of membership fee from  

the workers’ accounts and in fact was an exaction against their  

consent  and  will  since  the  year  2002.   The  oral  evidence  

adduced on behalf of BKS about acceptance of membership fee  

in  cash  for  the  year  2003  was,  thus  discarded  as  

untrustworthy.

11. In arriving at this conclusion, the Industrial Court,  

inter alia, referred to the findings of the Investigating Officer  

pertaining to the anomalies noticed in the cash book of BKS  

maintained  for  the  relevant  period.   To  discard  the  entries  

made therein,  as  proof  of  collection  of  membership  fee,  the  

observation of the Investigating Officer that the cash book was

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not only not in the prescribed proforma  but also not signed by  

any of the office bearers of BKS, was noted.  The oral evidence  

of the witnesses produced by BKS relating to the transactions  

with  the  bank  involving  membership  fee  was  not  accepted,  

being not duly corroborated by the documentary evidence on  

record, besides being inherently untrustworthy.  The Industrial  

Court,  in  particular,  recorded  its  reservation  on  the  

inconsistency  between  the  two  versions,  namely,  deduction  

from the  bonus amount  by  the  company till  the  year  2003  

against membership fee and the claim of the BKS of collection  

of such fees by cash which were mutually mutilative.  Taking  

cognizance  of  the  proceedings  separately  instituted  in  a  

representative  capacity  on  behalf  of  the  members  of  the  

appellant  union  and  other  employees  of  the  Company,  

objecting  to  the  deduction  from  bonus  amount,  for  the  

membership  fee  of  BKS,  its  (BKS)  claim  of  majority  

membership was rejected.

12. In contradistinction, the Industrial Court noted that  

the Investigating Officer had not detected any irregularity or  

mistake with regard to the collection of membership fee for the  

relevant period of six months and that the entries in cash book  

of  the  appellant  union were  correct  and were  in conformity

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with the receipt books maintained therefor.  The finding of the  

Investigating  Officer  that  the  amount  of  membership  fee  

collected, however, was not deposited in the bank, was also  

marked.   This  omission on the part of  the appellant  union,  

according to the Industrial Court, was not a cardinal lapse, as  

it  was  making  its  endeavour  to  acquire  the  status  of  a  

recognized union.  The Industrial Court recorded as well that  

the  appellant  union,  as  per  the  report  of  the  Investigating  

Officer,  could  collect  membership  fee  from 1973  employees  

which amply demonstrated their spontaneous support for it.  It  

was deduced that the objections raised by 1500 employees of  

the company against its action of effecting deductions from the  

bonus  amount  towards  the  membership  fee  of  BKS  also  

evinced that there was no voluntary payment thereof, belying  

thus  its  (BKS)  claim  of  having  a  hold  on  majority  of  the  

employees members of the company.

13. In course  of  the  adjudication before  the  Industrial  

Court,  an  application  was  filed  by  the  appellant  union  to  

produce  affidavits  of  its  members  numbering  1556  to  

consolidate its decision of majority membership. The Industrial  

Court in the proceedings dated 29.11.2004 under Section 11  

of the Act overruled the objection of the respondents that such

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proof  of  affidavits  was  inadmissible  and  allowed  the  prayer  

with the condition that the same would not be used for proving  

the point of membership of the appellant union and would be  

used for other relevant and ancillary purposes.  In granting  

this  permission,  the  Industrial  Court  took  note  of  the  

submission made on behalf of the appellant union that these  

affidavits  would  not  be  used  or  proving  the  issue  of  

membership  but  for  other  relevant  and  ancillary  purposes.  

The non-applicants/respondents were also granted the liberty  

to file counter-affidavits of rebuttal, if so advised. BKS, though  

did challenge this order before the High Court, the petition was  

dismissed on 9.8.2005.  Eventually, BKS,  also filed affidavits  

of 170 employees.

14. The  Industrial  Court  took  note  of  the  contents  of  

1556 affidavits filed on behalf of the appellant union to deduce  

that the affiants had resigned from the membership of BKS in  

the  year  2002 and had not  paid  the  membership  fee  since  

December,  2002.   It  was  held  by  the  Industrial  Court  that  

these affidavits did substantiate that these 1556 employees did  

bring an end to their relationship with the BKS and had not  

paid the membership fees to it after December, 2002.  That the  

contents  of  these  affidavits  did  clearly  indicate  that  the

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concerned employees had severed their ties with the BKS and  

had come over to the appellant union was concluded.  On a  

scrutiny of the cross-examination of the 100 affiants, as was  

permitted,  the  Industrial  Court  held  that  there  was  no  

circumstance or ground to disbelieve the deponents on their  

plea that  they had disconnected their  membership with the  

BKS  and  had  stopped  paying  membership  fees  to  it  after  

December,  2002.   The  intention  of  the  affiants  numbering  

1556  to  support  the  appellant  union,  according  to  the  

Industrial Court, was conspicuously established.  It referred to  

as well the 170 affidavits filed by BKS only to return a finding  

that if  its  claim of  common membership of  1908 employees  

was credible, it ought to have been in a position to produce  

more affidavits.  The Industrial Court thus inferred that this  

fact  also  authenticated  that  only  a  small  segment  of  the  

employees of the company was in support of BKS. The claim of  

common  membership  of  1908  employees  advanced  by  BKS  

was thus rejected.  The Industrial  Court,  thus eventually in  

deciding the issue of membership, held thus:

“So, after comparing the entire evidence adduced by  both  unions  on  the  point  of  strength  of  their  membership  read  together  with  report  of  Investigating Officer  as well  1556 affidavits  of  the  employees filed on record by Applicant Union, I am

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of the (Opinion that the Applicant Union was having  more  than  30  %  of  membership  of  the  total  employees  of  the  Company  as  well  as  larger  membership than the membership of B.K.S. during  the period of six months from the month of March  2003  till  August  2003.   In  such  circumstances,  mandatory requirements as given under Section 11  and  Section  14  of  MRTU & PULP Act,  1971,  are  substantially complied by the Applicant Union, and  Applicant  Union  has  succeeded  in  establishing  membership  of  not  less  than  30  %  of  total  employees as well as larger membership of the total  employees of the company with it during the period  of six months prior to filing of the present petition.  So, I answer No. 1 and 2 in affirmative.”  

15. As  would  be  evident  from  the  above  extract,  the  

Industrial  Court  did  take  note  of  the  contents  of  1556  

affidavits of the employees and acted thereon to conclude that  

the appellant union did hold at that point of time more than  

30%  membership  of  the  total  employees  of  the  company  

during the relevant time i.e. March, 2003 to August, 2003 and  

that  it  had  otherwise  satisfied  as  well,  the  mandatory  

requirements of Sections 11 and 14 of the Act.

16.  Referring  to  Section 19 of  the Act,  the  Industrial  

Court next adverted to the constitution of the appellant union  

placed on record and the evidence of its President to the effect  

that  the  membership  fee  of  Rs.  2  per  month  from  each  

member was being collected and that the Minute Book of the  

meetings of the Executive Committee as well as the audit of its

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accounts  was  being  done  regularly  and  further  that  the  

necessary records namely, receipt book, register of members,  

cash book etc. were also being maintained.  It held that the  

prescriptions of Section 19 of the Act had also been complied  

with.   It,  however,  recorded   that  any  irregularity  in  the  

observance  of the enjoinment of Section 19 of the Act, per se  

would  not  debar  a  union  from  claiming  the  status  of  

recognized union as those,  were  to  be necessarily  complied  

with  after  the  said  status  was  conferred.   The  allegation  

leveled  against  the  appellant  union  that  it  had  instigated,  

aided or assisted illegal strikes during the relevant period, was  

also  dismissed  in  absence  of  corroboration  thereof  by  any  

evidence.  The imputation that the appellant union’s request  

for  being  acknowledged  as  the  recognized  union,  lacked  

bonafide, was rejected as well.   In all,  the Industrial  Court,  

thus returned a finding that  having regard to the materials on  

record, the appellant union was entitled to be adjudged eligible  

to be conferred the status of recognized union and did issue a  

direction  to  that  effect.   It  was  directed  that  the  appellant  

union be registered as recognized union in place of BKS for  

the company and also saddled BKS with costs of Rs. 25000/-  

for resisting the process without the support of the majority

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employees’  of the company.

17. The High Court,  as the impugned judgment would  

disclose,  took  note  of  the  order  dated  29.09.2004  of  the  

Industrial Court by which the objection of  BKS to the prayer  

of the appellant union to file affidavits was rejected with the  

observation  that  the  same  would  not  be  taken  into  

consideration  for  the  purpose  of  verification  of  the  

membership. It also took cognizance of the fact that as per the  

report  of  the  investigating  officer  dated  26.10.2004,  the  

appellant union had exclusive membership of 26, and BKS of  

270  and  that  1908  employees  were  common  to  both  the  

unions.  It also marked the finding of the Investigating Officer  

that the appellant union had never deposited any amount in  

its bank account.  Taking note of the order dated 29.9.2004  

whereby the Industrial Court had permitted cross-examination  

of 99 affiants out of 1556 affidavits, the High Court did record  

that 17 of them had admitted that they still continue to be the  

members of the BKS and that 7 had admitted in their cross-

examination  that  they  had  filed  the  affidavits  only  on  the  

assurance  of  the  appellant  union  that  they  would  be  

reimbursed  the  wages  deducted  on  account  of  go-slow  

initiatives resorted to by them.  The fact that the prayer of the

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BKS to cross-examine all the 1556 affiants was rejected by the  

Industrial Court, was minuted.

18. Vis-a-vis the first limb of impugnment registered by  

the respondents, namely, the applicant union had no right to  

represent  the  employees,  the  High  Court  referred  to  its  

constitution and more particularly its object of organizing and  

uniting  the  employees,  and recorded that  though the  same  

was represented to be included in the schedule thereto, the  

same was not discernable therefrom and thus the purpose for  

which  the  applicant  union  had  been  established  was  not  

forthcoming  for  which  it  was  not  eligible  to  be  recognized  

under Section 11 of the Act.

19. On the aspect of the reception of 1556 affidavits, the  

High  Court  was  of  the  view  that  the  liberty  to  cross-

examination  only  99  affiants,  when  the  contents  of  the  

affidavits were the same, was unfair as these documents were  

relied  upon  to  draw  conclusions  about  the  factum  of  

membership of  the unions.   It  referred to the report  of  the  

Investigating  Officer  in  details  pertaining  to  the  facet  of  

membership  and  held  that  the  approach  of  the  Industrial  

Court in dealing with this issue by overlooking the fact that it  

was the onus of the appellant union to prove that the BKS had

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lost its representative character and that it was eligible to be  

recognized under Section 11 of the Act, was defective.  It was  

of the considered view, that the Industrial Court in fact had  

relied  upon the  affidavits  as  a  proof  of  membership  of  the  

applicant union by marking a departure from its order that  

the  same would  not  be  used  for  such  purpose.   The  High  

Court  thus  concluded  that  the  affidavits  filed  by  1556  

employees  did  play  a  decisive  role  to  enable  the  Industrial  

Court  to  reach  the  conclusion  that  the  applicant  union  

commanded majority of membership of the undertaking which  

was unsustainable in law.

20. The  High  Court  also  took  note  of  the  findings  

recorded in the report of  the Investigating Officer about the  

exclusive and dual membership claimed by both the unions as  

per the records as well as the observations on the documents  

produced by them.  Referring to the decision of this court  in  

Automobile Products of India Employees’ Union Vs. Association   

of  Engineering  Workers,  Bombay  and  Others,  (1990)  2  SCC  

444, the High Court returned the finding that the decision of  

the Industrial Court holding the appellant union to be eligible  

under  the Act  to be conferred the status as the recognized  

union was flawed and untenable and thus interfered with the

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same.

21. Mr. Gonsalves has emphatically argued that as the  

appellant union had on the basis of the materials on record  

demonstrated that it had fully complied with the enjoinment of  

Sections 11, 14 and 19 of the Act, the High Court ought not to  

have  reversed  the  finding  of  the  Industrial  Court  that  it  

(appellant union) was entitled to be conferred the distinction of  

recognized  union  under  the  statute.   The  Industrial  Court  

having, on an elaborate analysis of the evidence adduced as  

required  by  law  having  held  that  the  appellant  union  was  

adequately suitable to be adjudged,  the recognized union in  

place of BKS, the High Court had fallen in error in recording a  

conclusion  contrary  thereto,  he  urged.   The  learned  senior  

counsel  insisted,  that  it  being  apparent  on  the  face  of  the  

materials  laid  before  the  Industrial  Court  that  during  the  

relevant  period,  BKS  had  been  reduced  to  a  minority  with  

regard to its membership holding and that in the interest of  

collective bargaining, the appellant union ought to be handed  

over the reins thereof,  the impugned judgment needs to be  

interfered with on the touchstone of welfare of the industrial  

community  as  well.   Mr.  Gonsalves  maintained  that  the  

appellant union had been able to establish its eligibility as well

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as suitability for being adjudged as the recognized union of the  

company as a replacement of BKS  on the basis of the report  

of  the  Investigating  Officer  as  well  as  the  other  evidence  

adduced sans the affidavits on record and thus the High Court  

had erred in returning a finding that the Industrial Court had  

impermissibly taken note of and relied upon the affidavits for a  

decisive finding in its favour.  He urged that the affidavits filed  

on behalf of the appellant union having been referred to by the  

Industrial  Court  principally  to  take  cognizance  of  the  

deduction  by  the  company,  from  the  yearly  bonus,  for  

adjustment  against  the  membership  fee  of  BKS,  the  High  

Court went wrong in deducing that the same had been relied  

upon to decide the issue of membership.  In any view of the  

matter, Mr. Gonsalves argued that not only the 1556 affidavits  

filed  on  behalf  of  the  appellant  union  did  evince  a  mass  

migration of the members of BKS to the appellant union, as  

the  respondents  had  been  accorded  and  had  availed  the  

opportunity of cross-examining 100 affiants, the process by no  

means was repugnant to the one as envisaged by Section 14 of  

the Act and is thus beyond reproach.  Though admitting, that  

reception of affidavits on the aspects of enquiry contemplated  

by  the  Act  qua  the  issue  of  conferment  of  the  status  of

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recognized union is not obligatory, the course adopted by the  

Industrial Court in that regard in the case in hand, thereby  

ipso facto did not vitiate the exercise, he pleaded. Apart from  

referring to the report of the Investigating Officer and the other  

evidence on record as well as the concluded determination of  

impermissible  deduction  from  the  annual  bonus  of  the  

employees  by  the  company  for  payment  of  membership  of  

BKS, the learned senior counsel insisted that the impugned  

judgment  and  order  ought  to  be  interfered  with  to  secure  

industrial  peace,  amity  and  stability.  The  learned  senior  

counsel  took  pains  as  well,  to  take  us  through  the  oral  

evidence  of  the  witnesses  of  the  appellant  union  to  

authenticate  its  claim  of  compliance  of  the  pre-conditions  

embodied in Sections 11, 14 and 19 of the Act.  Mr. Gonsalves  

distinguished  the  decision  of  this  Court  in  Automobile  

Products  of  India  Employees’  Union (supra)  in  its  

application to the facts of the case.  He cited the decision in  

Balmer  Lawrie  Workers’  Union,  Bombay  and  Anr.  Vs.   

Balmer Lawrie & Co. Ltd. and Ors., 1984 Supp. SCC 663  

and   R.G.  D’SOUZA  Vs.  Poona  Employees  Union  and  

Another, (2015) 2 SCC 526 to buttress his contentions.

22. In controversion, the learned senior counsel for the

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respondents have asserted that having regard to the scheme of  

the  Act  and  the  provisions  pertaining  to  the  enquiry  for  

verification  of  membership  for  conferment  of  status  of  a  

recognized union, the Industrial Court ought to have limited  

the adjudication of the issue on a consideration of the report  

of the Investigating Officer and the evidence adduced by the  

parties only and its reliance on the affidavits did vitiate the  

process undertaken by it, as rightly held by the High Court.  

Placing  emphatic  reliance  on  the  decision  of  this  Court  in  

Automobile  Products  of  India  Employees’  Union (supra),  

they have urged that on this count alone the present challenge  

ought to be negated.

23. Without prejudiced to this, they have argued that on  

a cumulative evaluation of the findings recorded in the report  

of the Investigating Officer and the other evidence on record, it  

being apparent that the appellant union had failed to satisfy  

the statutorily prescribed pre-requisites to entitle a union to  

be  acknowledged  as  a  recognized  union  under  the  Act,  no  

interference  in  the  impugned  judgment  and  order  is  

warranted.

24. They contended that, even assuming that the finding  

of  the  Investigating  Officer  of  dual  membership  of  1908

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employees was acceptable,  even then in total,  the appellant  

union could be credited with only 1937 members compared to  

2125 of BKS.  On a comparative assessment of the evidence  

adduced by the rival unions, the Industrial Court could not  

have allowed the application of the appellant union to accept it  

as  a  recognized  union  as  a  substitute  of  BKS,  they  

emphatically urged.  According to them, not only the report of  

the  Investigating  Officer,  but  also  the  testimony  of  the  

witnesses  of  the  appellant  union  did  conspicuously  

demonstrate that the essential  records as prescribed by the  

Act had not been maintained by it, thus belying its claim of a  

deserving union to be conferred the status, it had applied for.  

25. Attention of this Court, in particular was drawn to  

the  finding  of  the  Investigating  Officer  that  the  amount  

collected as membership fees during the relevant period had  

not been deposited by the appellant union in its bank account  

and also  that  its  accounts  were  not  audited  by  an auditor  

appointed by the State Government as required under Section  

19 of the Act.  The learned senior counsel were critical as well  

of the omission on the part of the Industrial Court to take note  

of the version of the affiants of 100 affidavits cross-examined  

which totally  demolished the appellant  union’s claim of  the

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majority membership. The following decision was referred to  

for reinforcement:

Ayaaubkhan  Noorkhan  Pathan  Vs.  State  of  

Maharashtra and Ors., 2013 (4) SCC 465.

26. A  few  intervening  events  of  significance  demand  

attention  at  this  stage.  On  10.10.2003,  one  Shri  Rosaria  

D’Souza,  claiming  himself  to  a  permanent  employee  of  the  

company had filed a representative complaint on behalf of the  

members of  the appellant union before the Industrial Court  

under  Section 28 of  the  Act  alleging  unfair  labour  practice  

thereunder  for  causing  deduction  from  the  bonus  amount  

payable to the employees for payment of membership fees of  

BKS for  the  year  2003.   Reference  was also  made of  such  

deduction in the year 2002.  It was averred in the complaint  

that the members  employees of  BKS had by then resigned  

from  its  rolls  and  had  joined  the  appellant  union.  It  was  

alleged that such kind of deduction in absence of any written  

authority of the employees concerned,  did amount to unfair  

labour  practice  and  that  the  company  and  the  BKS   had  

joined together arbitrarily in resorting thereto. This complaint  

was registered as Complaint (ULP) No. 309 of 2003.

27. By  order  dated  16.10.2003,  the  Industrial  Court,

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Pune,  on a proposal  being made on behalf  of  BKS and not  

objected  to  by  the  company  and  the  complainant,  though  

permitted the deduction from the bonus amount, it directed  

that  the  sum collected  be  retained  with  the  company  and  

restrained it from defraying the same to any person or union  

till the complaint was finally decided.

28. It was finally on 28.9.2006 that the Industrial Court  

decided that the respondents herein namely; company and the  

BKS  had jointly committed unfair labour practice under the  

Act by deducting the membership subscription of Rs. 100 per  

employee from the bonus amount payable for the year 2003  

and prohibited them from doing so in future.  The challenge  

thereto laid before the High Court was dismissed in limine on  

24.03.2008.    The  High Court  upheld  the   decision of  the  

Industrial Court to the extent of impermissibility of deduction  

of membership fee but set-aside the finding that the same in  

the facts and circumstances of the case did amount to unfair  

trade practice.

29.  Pursuant  to  the  order  dated  29.09.2004  of  the  

Industrial  Court  causing  an  enquiry  to  be  made  into  the  

aspect  of  membership  strength  of  the  rival  unions,  the  

investigating  officer  initiated an exercise  in  course  whereof,

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both the unions submitted original documents in support of  

their  respective  claims.  The  documents  included  list  of  

members,  membership  books,  receipt  book  of  members,  

minute  book  register,  computerized  cash  book,  bank  pass  

book, audit report etc. for the relevant period and also beyond  

the  same.  Vis-a-vis   the  appellant  union,  the  investigating  

officer  in  his  report  recorded  that  from  the  list  of  1973  

members that it had produced, 39 were ineligible and thus in  

all 1934 could be treated as eligible members. Referring to the  

receipt  books  of  membership,  it  was  recorded  that  every  

worker  was depositing  Rs.  60 per  annum and also  that  in  

several  receipts,  no date  was mentioned.   The investigating  

officer mentioned, that the bank pass book of the appellant  

union was with the Syndicate Bank, Chinchwar Branch, Pune  

and that  the contribution by way of membership fee was not  

being deposited in the account.

30. So far as the documents of the BKS were considered,  

the  Investigating  Officer  on his  inspection thereof,  recorded  

that it had submitted a list of 2166 workers claiming them to  

be its members, out of which 41 were found to be ineligible.  It  

was thus set down that 2125 members could be treated as  

eligible.

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31. On a scrutiny of the receipt books of the members,  

the  Investigating  Officer  opined  that  no  responsible  official  

bearer of the union had signed the same and that it was not  

maintained  as  per  the  provision  of  the  1926  Act.   The  

particulars  of  the  contribution  book  were  elaborately  

examined  and  the  deposit  of  membership  fee  of  2166  

members, was noted.  The Investigating Officer was of the view  

that the cash book of the BKS was not in the prescribed form  

and was not  signed by any responsible  office  bearer  of  the  

union.  That there  were some anomalies with regard to the  

dates of  the deposits and the receipts,  were pointed out as  

well.  It was noted too that out of 2166 members, claimed by  

the BKS to be in its hold, 54 had either retired or resigned or  

expired during the period March 2003 to August 2003.  On a  

comparison of the lists of members submitted by the unions,  

the Investigating Officer noted that 26 and 217 members were  

exclusively  in  the  ranks  of  the  appellant  union  and  BKS,  

whereas 1908 members appeared to be common to both the  

entities, i.e. with dual membership.

32. As mentioned herein above, the parties did adduce  

oral  evidence  as  well.  The  two  witnesses  examined  by  the  

appellant  union  were  Madhav  son  of  Baburao  Roham  and

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Gugario son of  Gabriel  D’Souza.   Whereas the first  witness  

claimed to be the President of the appellant union, the second  

said on oath that he was a member thereof having resigned  

from  BKS  on  12.12.2002.   The  President  of  the  appellant  

union in his deposition stated, inter alia, about the records of  

its  union  including  minute  books,  receipt  books  of  

membership  fees and in general  referred to the lists  of  the  

employees numbering 1973, who had resigned from the BKS  

to  join  his  union  after  01.01.2003.   He  claimed  that  the  

receipts to the members for the fees were  issued and that  

receipts  books  in  that  regard  were  maintained.  He  also  

deposed that the membership fees were being deposited with  

the  bank which,  however  as  the  report  of  the  investigating  

officer would reveal was inconsistent therewith in this regard.  

He admitted that the accounts of his union used to be audited  

by a Chartered Accountant not appointed by the Government.  

He also expressed his inability to produce the minute book of  

the  general  body  meeting  authenticating  the  members  and  

office bearers of the appellant union.

33. In  course  of  cross-examination,  this  witness  

conceded  that  he  had  no  evidence  to  show  that  he  was  a  

honorary  member  of  the  appellant  union  in  the  past.  He

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admitted as well that the account of the appellant union was  

opened  with  the  Syndicate  Bank  in  the  month  of  January  

2003 and though such account previously was with another  

bank, he was not in a position to either name it or to provide  

the account number. When confronted with reference to the  

report of the Investigating Officer that there was a shortfall in  

the amount claimed to be deposited with the bank compared  

to the sum received as membership fees, the witness could not  

provide any explanation therefor.  He also conceded that the  

finding  of  the  Investigating  Officer  that  the  membership  

amount had not been deposited with the bank had remained  

unquestioned.   He  was  confronted  as  well  with  certain  

omissions in the return filed by the appellant union under the  

Bombay Trade Unions Regulation, 1947 for the year 2003.

34. The evidence of the other witness i.e. Gugario was  

essentially  to  the  effect  that  he  had  resigned  from  the  

membership of BKS to join the appellant union as he along  

with others, who had similarly drifted to the appellant union,  

were  not  receiving  any  benefit  from their  parent  union  i.e.  

BKS.  In course of his evidence,  he claimed also to be the Unit  

President of the appellant union and asserted that there were  

1973 members thereof since 2003.  In his cross-examination,

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when asked, this witness could not provide the particulars of  

the general body meetings or managing committee meetings of  

the appellant union required to be held as per its constitution.  

Though he referred to the meeting of the managing committee  

held  on  9.1.2003,  he  could  not  furnish  the  names  of  the  

persons present.  He  also  expressed  his  ignorance  about  

the existence of any consolidated register of all the employees  

who have been members of the appellant union though from  

the different companies.

35. The 1556 affidavits filed on behalf of the appellant  

union were in a particular format, which for ready reference,  

is being quoted hereunder:

“AFFIDAVIT

I,     Shri,…………………………………….. Age ………………

Occupation Service, residing at ………………………………  State on solemn affirmation as follow: I  have  resigned  from  the  recognized  union,  namely,    Bharatiya Kamgar Sena on 12.12.2002.  The said  union  has  never  defended  the  interest  of  the  workers  and  has  worked as per the directions of the Company.  Therefore I  have resigned from the said Union.  I have not paid union  subscription to Bharatiya Kamgar Sena since the last two  years. I  have  accepted  the membership of  the  Applicant  Union,    namely, Poona Employees Union on 12.12.2002 and today I  am a member of Poona Employees Union.  Since I along with  the other workmen are members of Poona Employees Union  and since Bharatiya Kamgar Sena does not have majority of  membership since Ist Jan. 2003.  I am filing this affidavit so

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that the recognition of Bharatiya Kamgar Sena is revoked. All that is stated above is true as per my knowledge and  information and I have put my signature on it at Pune on  29.9.2004.”  

36. We have extended our anxious consideration to the  

rival  pleadings  and  the  arguments  based  thereon.   The  

documents  available  on  record  have  also  received  our  

attention.  It is expedient, having regard to the issues raised,  

to embark on a summary survey of the relevant provisions of  

the Act in quest of the underlying objective thereof, which in  

our comprehension, would define, amongst others, the nature,  

extent  and  essentialities  of  the  enquiry  contemplated  and  

obligated  by  it  in  order  to  determine  the  eligibility-cum-

suitability of a union contending for the status of “recognized  

union” under the statute.

37. As the preamble of the Act would testify, it is one to  

provide  for  the  recognition  of  trade  unions  for  facilitating  

collective  bargaining for  the undertakings visualised therein  

and amongst others,  to define and provide for the prevention  

of certain unfair labour practices and to constitute courts  for  

carrying  out   the  purposes  of  according  recognition  to  the  

trade unions and for enforcing the provisions relating to unfair  

practices.  The  report  of  the  ”Committee  on  Unfair  Labour  

Practices”, appointed  by the State Government to outline the

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activities of employers and workers and their organizations to  

be construed as unfair  labour practices and to suggest  the  

steps  against  the  perpetrators   thereof,  preceded  the  

enactment  which  duly  took  note  of  the  report  of  the  

Committee.

38. The  Act  contemplates,  Industrial  Courts  to  be  

constituted  by  the  State  Government,  duties  whereof  are  

amongst others, to decide an application by a union for grant  

of  recognition  to  it,  in  place  of  a  union  which  has  been  

recognised  thereunder,  as  well  as  to  decide  the  complaints  

relating  to  unfair  labour  practices,  with  the  exceptions  as  

enumerated in Item 1 of Schedule IV to the legislation.  The  

Industrial  Court  under  Section  5  is  empowered  to  assign  

work,  and to  give  direction,  to  the  Investigating  Officers  in  

mattes  of  verification  of  membership  of  unions,  and  

investigation of complaints relating to unfair labour practices.  

Investigating Officers, referred to hereinabove, are appointed  

by the State Government for the area(s), as may be specified  

as necessary to assist the Industrial Courts and the Labour  

Courts in discharge of their duties.  In terms of Section 9, it is  

the  duty  of  an Investigating  Officer  to  assist  the  Industrial  

Court in mattes of verification of membership of unions, and

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assist the Industrial and Labour Courts for investigating into  

complaints relating to unfair labour practices.

39. Chapter  III  devoted  to  recognition  of  unions,  

prescribes that any union seeking to apply for being registered  

as  a  recognised  union  of  any  undertaking  has  to  have  

membership  of  not  less  than  30%  of  the  total  number  of  

employees employed in that undertaking for the whole period  

of  six  calendar  months  immediately  preceding  the  calendar  

month in which it  applies.   In case, such an application is  

made,  it  is  incumbent  on  the  Industrial  Court,  as  far  as  

possible,  to  dispose  of  the  same  within  a  period  of  three  

months therefrom.

40. Section 12 provides the manner of disposal of such  

applications.  On the receipt thereof and on the payment of  

the prescribed fee, as mentioned therein, the Industrial Court,  

if the application on a preliminary scrutiny  is found to be in  

order, would cause notice to be displayed on the notice board  

of the undertaking, declaring its intention to consider  the said  

application on the date specified in the notice and call upon  

the  other  union  or  unions,  if  any,  having  membership  of  

employees   in  that  undertaking  and  the  employers  and  

employees likely to be affected, to show cause as to why the

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recognition,  as  prayed  for,  would  not  be  granted.    The  

Industrial  Court,  thereafter,  on  a  consideration  of  the  

objections,  that  may  be  received  from  any  other  union  or  

employers or employees, as the case may be, and after holding  

such enquiry, in such manner as it deems fit, if it comes to  

the  conclusion that  the  conditions  requisite  for  registration  

specified in Section 11 of the Act are satisfied and that the  

applicant  union  also  complies   with  the  conditions  

enumerated in Section 19 of the Act, would grant recognition  

to  the  applicant  union  and  issue  a  certificate  of  such  

recognition  in  a  form,  as  prescribed.   The  caveat  in  sub-

section (5) of Section 12 is to the effect that Industrial Court  

shall  not  recognize  any  union,  if  it  is  satisfied  that  the  

application  for  recognition  is  not  made  bona  fide  in  the  

interest of the employees, but is made in the interest of the  

employer or to the prejudice of the interest of the employees.  

The Industrial Court is also debarred from recognizing  any  

union if at any time, within six months immediately preceding  

the date of the application, the applicant union had instigated,  

aided  or  assisted  the  commencement  or  continuation  of  a  

strike which is deemed to be illegal under  the Act.

41. Whereas Section 13 delineates the eventualities and

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the procedure for cancellation of recognition and suspension  

of rights of a union, Section 14 predicates the perquisites and  

the  procedure   for  deciding  an  application  laid  before  the  

Industrial  Court  by  any  union  for  being  registered  as  a  

recognised union in place of an existing recognised union  in  

the  undertaking.   In  terms  of  this  provision,  if  such  an  

application is made on the ground that the applicant union  

has the largest  membership  of  employees  employed in that  

undertaking, and if a period of two years has elapsed since the  

date  of  registration  of  the  recognised  union,  it  (Industrial  

Court) would call  upon the recognised union by a notice in  

writing to show cause within thirty days of the receipt thereof,  

as to why the applicant union should not be recognised in its  

place.

42. The proviso to Section 14 ordains that the Industrial  

Court, may not entertain any application for registration of a  

union, unless a period of one year had elapsed  since the date  

of  disposal  of  the  previous  application  by  the  same union.  

Identically, as per the procedure as contemplated in Section  

12 of the Act, the Industrial Court, on the expiry of period of  

notice, if  is of the opinion, on a preliminary scrutiny of the  

application made, that it is in order, it shall cause notice to be

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displayed on the notice board of the undertaking, declaring its  

intention to consider the said application on the date specified  

in the said notice and call upon other union or unions, if any,  

having  membership  of  employees  in  that  undertaking,  

employers and employees  likely to be affected by the proposal  

as to why the recognition as sought for would not be granted.  

The  Industrial  Court,  thereafter,  on  a  consideration  of  the  

objections  that  may  be  received  and  after  holding  such  

enquiry as it may deem fit,  which may include recording of  

evidence of witnesses and hearing of parties, if comes to the  

conclusion that the applicant  union had complied with the  

conditions  necessary  for  recognition specified  in  Section 11  

and that its membership was during the whole of the period of  

six  calendar  months  immediately  preceding  the  calendar  

month in which it had made the application, larger  than the  

membership of the recognised union,  then it would recognise  

the applicant union in place of the recognised union and issue  

a certificate in such form as may be prescribed.   Such an  

application,  as sub-section (5) of Section 14 would denote, is  

to be disposed of within a period of three months as far as  

possible.

43. Section 19 appearing under Chapter IV of  the Act

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mandates the obligations of a recognised union, whereunder  

the rules thereof should provide that:

(i)      The membership subscription shall not be less  than fifty paise per month;

(ii)   Executive Committee  shall meet at intervals of  not more than three months; (iii)  All resolutions passed, whether by the Executive  Committee or the general body of the union, shall be  recorded in a minute book kept for the purpose; (iv)   An auditor appointed by the State Government  may audit its account at least once in each financial  year.

44. Section  30  which  defines  the  powers  of  Industrial  

and Labour  Courts,  does  recognise these  fora to  be Courts  

vested with the powers of:

(a)  requiring proof of facts by affidavit; (b)  summoning and enforcing the attendance of  

any person and examining him on oath; (c) compelling the production of documents and; (d) issuing  commissions  for  the  examination  of  

witnesses.

45. The  power  to  call  upon any  of  the  parties  to  the  

proceedings before  them to furnish in writing,  and in such  

forms  as  it  may  think  proper,  any  information  considered  

relevant has also been conferred by this provision.

46. On  a  conjoint  reading  of  the  above  referred  

provisions of the Act, it is abundantly and predominantly clear  

that the exercise of examining an application of a union in an

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undertaking seeking the status of recognized union whether  

by replacing an existing recognized union or not, is neither a  

routine ritual nor an idle formality.  Not only the applicant-

union has to be eligible to apply as per the prescriptions with  

regard to the extent of membership it has to command for the  

relevant  period,  its  application  has  to  be  bona  fide  in  the  

interest of the employees and it must not have indulged in any  

activity of instigating, aiding or assisting, the commencement  

or  continuation  of  a  strike  during  the  said  period.   The  

detailed procedure in both the eventualities, as contemplated  

in  Sections  12  and  14  of  the  Act,  enjoins  a  participating  

enquiry to verily ascertain the membership pattern of the rival  

unions,  and  also  the  existence  or  otherwise  of  the  

disqualifying factors as stipulated by the Act.

47. Section  9(2)  of  the  Act,  to  reiterate,  makes  it  

incumbent on the Investigating Officer to assist the Industrial  

Court in matters of verification of membership of unions and  

also to assist the Industrial and Labour Courts investigating  

into  the  complaints  relating  to  the  unfair  labour  practice.  

Axiomatically,  thus  the  enquiry  to  be  undertaken  by  the  

Industrial Court, has to strictly comport to the prescripts of  

the relevant provisions and cannot be repugnant to the letter

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and spirit thereof.  Indubitably, the burden would be on the  

applicant  union  to  decisively  establish  its  eligibility  and  

suitability for being conferred the status of a recognized union  

to  be  adjudged  by  the  legislatively  enjoined  parameters.  

Though  the  enquiry  envisages  participation  of  the  rival  

union(s),  employers  and  employees,  having  regard  to  the  

ultimate  objective  of  installing  a  representative  union  to  

secure genuine, effective and collective negotiations, catering  

to industrial  cohesion, harmony and growth, no compromise  

or relaxation in the rigours  of the requirements of the enquiry  

can either be contemplated or countenanced.

48. This  Court  in  Automobile  Products  of  India  

Employees’  Union (supra)  was seized with  a  fact  situation  

where in the course of enquiry under Section 14 of the Act,  

the Industrial Court had acceded to the joint request of the  

two contesting unions to verify the membership thereof on the  

basis of the results of a secret ballot.  Both the unions had  

agreed that the issue pertaining to recognition be decided by  

secret ballots and the union which would muster majority of  

the  votes,  should  be  treated  as  the  recognized  union.  

Accordingly, a secret ballot was held,  in which the appellant  

union therein was found to have secured higher number of

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voters.   The  respondent-union  submitted  its  objection  

principally disputing the cut-off date fixed for the purpose of  

determining  the  eligible  voters.   Be  that  as  it  may,  the  

Industrial  Court sustained the claim of the applicant union  

i.e. the appellant.  The High Court on a challenge being laid  

before it by the defeated union as well as two workers thereof,  

upheld  the  same  and  interfered  with  the  order  of  the  

Industrial Court.

49. This  Court  on a  exhaustive  survey of  the relevant  

provisions of the Act and emphatically underlining the avowed  

role  of  a  recognized  union  contemplated  thereby,  in  the  

interest of stability of industrial relations and peace through  

collective bargaining, affirmed the determination made by the  

High  Court.   This  Court  propounded  that  the  procedure  

adopted  by  the  Industrial  Court,  to  grant  recognition  of  a  

union was one which was clearly alien to the Act.  It observed  

that thereby, the parties were allowed not only to circumvent  

the provisions of the statute but also it failed to bring about  

the representative character of the union which was the sine  

qua non for the recognition to be accorded.  That the elective  

element  inherent  in  the  secret  ballot  had  the  potential  of  

encouraging the growth of mushrooming unions on the eve of

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election,  outbidding each other  in  promising  returns to  the  

workers merely to assert supremacy, unmindful of the health  

of  the  industry  leading  to  unwarranted  industrial  strife,  

stoppage  of  production,  closure  of  the  establishment,  was  

underlined as the unhealthy and undesirable consequences of  

such process.

50. The factual conspectus, albeit, not wholly identical  

herein, the fact remains that though it had been undertaken  

by the appellant union that if permitted to file its affidavits,  

the  same  would  not  be  utilized  to  decide  the  issue  of  

membership  and  was  endorsed  as  well  by   the  Industrial  

Court, its decision  would clearly reveal that the contents of  

the affidavits not only had been  taken note of by it but also  

relied  upon along   with  the  other  materials  on  record,   to  

eventually hold that the appellant union held in its ranks, the  

majority membership of the employees of the undertaking.  To  

this extent, we are constrained to hold that the approach of  

the  Industrial  Court  in  deciding  the  issue  of  membership  

cannot be sustained being in derogation of the letter,  spirit  

and  objectives  of  the  procedure  prescribed  by  the  Act  to  

determine   the  issue  of  majority  of  membership  for  the  

purpose of  identifying the recognized union of an industrial

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establishment.

51. To recall, the common averment made in the 1556  

affidavits filed by the appellant union is that the employees  

concerned had resigned from BKS on 12.12.2002 as it did not  

defend the interest of the workers and had functioned as per  

the directions of the company.  It was further affirmed that the  

deponent did not  pay union subscription to BKS since last  

year and that he/she had instead accepted the membership of  

the appellant union i.e. Puna Employees Union on 12.12.2002  

and  that  concludes  to  be  its  member  on  the  date  of  the  

execution of the affidavit. It was stated further that in view of  

the resignation of the deponent and others, BKS did not have  

majority of the membership since 1.1.2003 and that thus its  

recognition be revoked.

52. Vis-à-vis  the  demur  of  the  respondents  that  the  

appellant union lacked in representative capacity,  as it  had  

failed to furnish the schedule to the constitution to disclose its  

object under clause 2(a) thereof as required under Section 6 of  

the Union Act,  it transpires on the perusal of the said charter  

that clause 2(a) thereof reads as hereunder:

“The objects of the Union shall be:

to organise and unite the persons employed in any

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Industry, any Factory, any Section, any shop and any  establishment  within  the  district  of  Poona  as  per  Schedule:  in  the  …….…….  and  to  regulate  their  relations  with their employers. “

53. True  it  is  that  the  extract  of  this  clause  in  the  

impugned  judgment  and  order  wrongly  records  “the”  

preceding the word “industry” instead of “any”.  However, the  

copy of the constitution available on records does not contain  

the schedule as well.  We leave it at that.

54. Adverting  to  the  evidence,  dehors  the  affidavits,  

suffice it to state that the report of the Investigating Officer  

clearly  reveals  that  the  contribution  collected  from  the  

members of the appellant union had not been deposited in its  

bank  account.   This  finding,  to  reiterate,  is  based  on  a  

scrutiny  of  the  original  records  of  the  appellant  union.  

Though  the  then  President  of  the  appellant  union,  in  his  

testimony  claimed that  the  membership  fee  had  been duly  

deposited in the bank,  he conceded that  no complaint  had  

been made against the Investigating Officer for incorporating a  

finding contrary thereto.  No overwhelming evidence was also  

produced to counter this finding.  This witness admitted as  

well that the accounts of the appellant union were not being

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audited  by  a  Chartered  Accountant,  appointed  by  the  

Government  which  per  se  is  also  in  repudiation  of  the  

mandate of Section 19(iv) of the Act.  This witness in course of  

the cross-examination was also confronted with the annual  

return  submitted  by  the  union  for  the  period  January  to  

December, 2003 in which he admitted that the columns No.  

10, 13, 15 and 17 of the prescribed form had been left blank.  

A perusal of Form No. 1 in which annual returns are to be  

submitted by a registered trade union in terms of the Bombay  

Trade Unions Regulations, 1927 framed under Section 29 of  

the 1926 Act  reveals that the blank columns refer to:

(a) Number  and  date  of  receipt  for  payment  of  

application fee;

(b) number of members admitted during the year;

(c) number of  members on books at the end of year  

i.e., on 31st December;

(d) number of members who paid their subscription for  

the whole year.  

These in the contemplation of this Court are vital informations  

pertaining to the claim of membership of appellant union, in

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order to wrest the title of “recognized union” from an existing  

rival union enjoying the said status.

55. Not  only,  in  the  comprehension  of  this  Court,  the  

report of  the Investigating Officer based on a scrutiny of  all  

relevant records of  the appellant  union including the list  of  

employees, membership receipt book, register of membership,  

cash book,  bank pass books etc. does not as such admit of  

any doubt about its credibility, even some of the affiants, in  

their cross-examinations, on their affidavits filed in support of  

the claim of membership of  the appellant union,  had stated  

that they had affirmed the same because they  were promised  

by the appellant union that their deducted wages for the go-

slow tactics would be reimbursed.   Though the respondents  

have nursed a remonstrance that the permission granted by  

the  Industrial   Court   to  cross-examine   only  100  of  the  

affiants  out  of  1556  deponents  did  denude  them  of  a  

valuable right of defence, in our estimate, nothing much turns  

thereon.   No  dilation  on  the  decision  of  this  Court  in  

Ayaaubkhan Noorkhan Pathan (supra) is thus warranted.

56. To reiterate, these affidavits could not have been, in

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the facts and circumstances of the case, and more particularly  

in view of the undertaking given by the appellant union and  

also the order to that effect by the Industrial Court that the  

same would not be used to decide the issue of membership,  

acted upon for this purpose.  It had throughout been in the  

understanding  of  all  concerned  that  the  contents  of  the  

affidavits  would  be  used  only  for  relevant  and  ancillary  

purpose  but  divorced  from  the  issue  of  membership.  The  

Industrial  Court  however,   in  concluding  that  the  appellant  

union did have more than 30% of the membership of the total  

employees, took cognizance of these affidavits and relied on the  

same.  The contents of the affidavits, referred to hereinabove,  

which are identical and in a format are to the effect that the  

deponents had not paid subscription to the BKS for the last  

two  years  and  that  they  had  accepted  the  membership  of  

appellant union on 20.12.2002 and that BKS does not have  

majority of the membership since 1.1.2003.   These affidavits  

taken on  their face value, irrefutably testified  on the aspect of  

membership  of  the  two  unions  and  though  the  Industrial  

Court did endeavour to construe the same for the purpose of  

ascertaining  the  intention  of  the  affiants   to  support  the  

appellant  union,  it  indeed  had  a  decisive  bearing  on  its

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ultimate conclusion of its majority membership.

57. We have perused the materials on record, relevant to  

the  issues  involved  and  are  of  the  considered  opinion  that  

dehors the affidavits, the evidence or the materials laid by the  

appellant  union are  not  overwhelmingly  determinative  of  its  

claim  of  majority  membership  as  required  under  Sections  

11,12, and 14 of the Act.  The adjudication on the issue of  

deduction of  bonus amount by the company for  adjustment  

against  the  membership  fee  of  BKS  in  the  background  

pertaining  thereto  and  narrated  hereinabove  does  not  

conclusively clinch the cause in favour of the appellant union.  

The decision of this Court in Balmer Lawrie Workers’ Union  

(supra) is as such of no avail to it.

58. Having  regard  to  the  judicially  acknowledged  and  

proclaimed contours of the jurisdiction under Article 136 of the  

Constitution of India, we are of the unhesitant opinion that the  

impugned decision does not merit annulment.   As it  is,  the  

extra-ordinary jurisdiction of this Court under Article 136 of  

the Constitution, is to be exercised sparingly and even mere  

errors  in  the  appreciation  of  the  evidence  on  record  are

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insufficient  to  attract  this  Court’s  invigilatory  intervention  

thereunder.   It  is  a  trite  proposition,  that  this  Court  may  

interfere in rare and exceptional cases where manifest illegality  

or  grave  and  serious  miscarriage  of  justice  has  been  

occasioned  by  the  decision  under  scrutiny  as  has  been  

propounded by this Court in Union of India and others Vs.  

Gangadhar Narsingdas Aggarwal (1997) 10 SCC 305. If two  

views  are  possible  and  the  view  taken  in  the  impugned  

decision is a plausible one, it would not warrant intervention of  

this Court under Article 136 of the Constitution of India.

59.    In the facts of the present case, in our estimate, the  

analysis  and  evaluation  of  the  materials  on  record  as  

undertaken  cannot  be  denounced  as  illogical,  irrational  or  

uncalled-for and the view recorded in the impugned judgment  

and order is one permissible on the basis thereof.

60. We have perused the impugned judgment and order.  

In the above presiding backdrop of facts and law, we are of the  

unhesitant  opinion  that  the  view  taken  by  High  Court  is  

plausible and rational being based on a logical analysis of the  

materials on record and the law applicable does not merit any

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interference  at  our  end.   Having  regard  to  the  paramount  

objectives  of  the  Act  and  in  the  interest  of  industrial  

orderliness, stability, peace and overall wellbeing as well, we  

find no persuasive reason to intervene at this distant point of  

time.  The appeals fail  and are, accordingly,  dismissed.  No  

costs.     

       ……..……………………..….J.          (V. GOPALA GOWDA)

       ……..……………………..….J.          (AMITAVA ROY)

NEW DELHI; DECEMBER 1, 2015.