1999 Supreme(SC) 957

1999(7) Supreme 647
Supreme Court of India
(From Bombay High Court)
S.B. Majmudar, M. Srinivasan & U.C. Banerjee, JJ.
Maharashtra Girni Kamgar Union -Appellant
versus
S. Bhattacharji & Ors. -Respondents
Civil Appeal No. 2473 of 1987
Decided on 31-8-1999
Counsel for the Parties :
For the Appellant : S.J. Deshmukh, Ashok Kumar Gupta, Farukh Rashid, Advocates.
For the Respondent No. 3 : Ashol H. Desai, Sr. Advocate, Ms. Reena Bagga, Jay Savla, Advocates.
For the Respondent No. 4 : Bhimrao Naik, Sr. Advocate, Kailash Vasdev, Ms. Nayana Buch, S. Varma, Advocates.
For the Respondent No. 5-6 : Mrs. B. Sunita Rao, Advocates.

Headnote:(i) Bombay Industrial Relations Act, 1946 - Section 3(25) r/w 15(b)(ii) - Representative Trade Union- Derecognition/cancellation of-Computation of minimum number (25 ) of membership-Exclu­sion of deemed non-members-It must be shown that a member concerned had been in arrears for more than three calendar months during block period of six months-A member could be deemed to be non-member only if his subscription is in arrears for a period of more than three calendar months within a block period of six earlier calendar months preceding the month which is on anvil of scrutiny-Members who are in arrears for not more than three calendar months cannot be excluded while computing 25 of number of members of union.

       Held : A mere look at Section 3(25) shows that the definition of a ‘mem­ber’ which applied in the relevant time and which is in the same form on the statute book till date clearly indicates that a person can be a member of a union if he satisfies the following two requirements : (i) that he is an ordinary member of a union and (ii) he has paid the subscription of not less than 25 paise per calendar month. Now, the ‘ordinary member of a trade union’ connotes a member employee-workman engaged in the concerned industry and who is other an ex-offico member of the union. An ordinary member of a trade union would be an employee in that industry with which the trade union is concerned and would not include honorary or temporary members, like office bearers. However, the further requirement of Section 3 sub-section 25 is that in order that such an ordinary member can be treated to be a member of the union it has to be shown that he has paid the subscrip­tion of not less than 25 paise per calendar month. Now it becomes at once clear that a small amount of minimum 25 paise is required to be shown to have been paid by such an ordinary member for the given calen­dar month. As the question arises whether a particular member had paid subscription for the relevant three months i.e. December, 1981, Janu­ary, 1982 and February, 1982, it may be found that he might have paid up the subscription for each of these months simultaneously say, in March or April, 1982. Still he could be said to have paid the requi­site subscription per each of these calendar months. It is not as if the subscription must be shown to have been paid by such ordinary member on or before the end of the concerned calendar month. The legislature has advisedly used the terminology “has paid a subscrip­tion of not less than 25 paise per calendar month”. It has obviously not used the phraseology “has paid a subscription of not less than 25 paise before the end of a calendar month”. The phrase “has paid” is very significant. Payment of subscription of such a meagre amount of 25 paise per calendar month at any point of time for any of the past calendar months would entitle such member to continue on the roll of membership of a union. If he pays at a time say Rs. 1.00 covering the subscription for each of the calendar months i.e. December, 1981, January, 1982, February, 1982 and March, 1982 in March, 1982 itself, he can legitimately say that he has paid subscription of not less than 25 paise per each of the aforesaid three calendar months. It is not the requirement of the main part of Section 3(25) that such subscrip­tion should have been paid on or before the expiry of the concerned calendar month. Once we turn to the explanation of the aforesaid section, a different legislative intention becomes at once clear. While considering the question of arrears of subscription per calendar month the requirement of the provision is entirely different. A member would be treated to be in arrears for that calendar month if he has actually not paid such subscription by the end of the concerned calendar month for which it was due. That explanation naturally is a reference to the proviso which precedes it and qualifies the term “arrears of subscription” but it does not travel backward any further so as to qualify entirely a different phraseology found in the main part of Section 3(25) of the BIR Act about the payment of subscription of not less than 25 paise per calendar month. It must, therefore, be held that if on facts it is found that subscription for the relevant three calendar months has already been paid up by the concerned member even in lumpsum at a later point of time after the expiry of the calendar month concerned such payment in lumpsum may enure for his continuance as a member if he so behaved and paid up subscription of not less than 25 paise per calendar month concerned. It may happen that a member may be in arrears for a number of months but once the trade union whose registration is sought to be cancelled gets a hint that an application for cancellation of its registration is in the offing under Section 15(b)(ii) of the Act then lumpsum payments of subscription in arrears by requisite number of members may get ar­ranged at a time so as to frustrate the application under Section 15. This anxiety and apprehension are tried to be met by the legislature itself and, there­fore, it enacted a safety valve and a road block against such activi­ties on the part of the union whose registration was sought to be got cancelled on relevant date by enacting the proviso with the explana­tion of Section 3(25) of the BIR Act. (Para 8)

       On a conjoint reading of the proviso to Section 3(25) and the expla­nation attached thereto, it becomes at once clear that even if a person may have paid the subscription of not less than 25 paise per calendar month for the relevant three calendar months at a time subse­quently and, therefore, may have remained out of the sweep of the main part of Section 3(25), his membership is liable to be displaced if he is hit by the proviso and the explanation. Meaning thereby, if a member is shown to have paid subscription for December, 1981, January, 1982 and February, 1982 say in March or April, 1982 and who can legit­imately contend that he had paid subscription of not less than 25 paise per each of these calendar months, his membership for each of these calendar months which would remain guaranteed under the first part under Section 3(25) would be deemed to be non-existent once the provisions of the proviso and the explanation hit such membership. The proviso requires such a defaulting member who seeks to pay up sub­scription of requisite calendar months at a time subsequently to satisfy the authorities that during the period of six months immedi­ately preceding the month in question which is on the anvil of the scrutiny, he had so behaved that his subscription was not in arrears for a period of more than three calendar months falling within the aforesaid six months. In other words, for deciding whether a person was an ordinary member of a union in a given month (say the month of December, 1981) which is the first month on the anvil of scrutiny for the purpose of consideration of application under Section 15(b)(ii) of the Act, the period of six months immediately preceding such time, namely, December, 1981, will consist of the block from June, 1981 to November, 1981. It has to be shown by the union that its members concerned had not been in arrears of subscrip­tion for more than three calendar months during the period beginning from June, 1981 and ending by November, 1981. If it is shown that such a person had so behaved and had not attracted the adverse effect laid down in the proviso, then only such member will be treated to have continued as per the main part of Section 3(25) but if it is shown that during the block of June, 1981 to November, 1981 for a period of more than three calendar months he was in arrears, meaning thereby, as seen from the explanation to the proviso, the subscription of such a member for a particular calendar month during this period was not paid up by the end of the calendar month concerned such a member would be treated to be in arrears for that calendar month and even if he had paid such arrears by the next month his subscription for that calendar month would be treated to have remained in arrears. If such arrears cover more than three calendar months then his payment of subscription for December, 1981 will be of no avail. This safety valve has been enacted by the legislature to provide for a contingency in which such chronic defaulters in clearing the arrears of subscrip­tion may not get a locus paenitentiae and may not also afford an equal locus paenitentiae for their union to get subscription paid up in lumpsum subsequently for each of the three calendar months on the anvil of scrutiny in proceedings for cancellation of representative character of such unions. (Para 9)

       In order to be treated to be in arrears for a period of more than three calendar months it has to be shown that he was in such arrears for a period of four calendar months or even more as a period of “more than three calendar months” can not be equated with the phraseology “period of three calendar months”. (Para 10)

       When the definition of ‘member’ under Section 3(25) as existing on the statute book in 1953 is placed in juxtaposition with the definition as available in the present form it becomes at once clear that the earlier proviso tried to treat the member to be a non-member by a deeming provision if he was in arrears of payment of subscription for a period of even three calendar months or more next preceding the month in question. By the deeming provision as per the proviso existing prior to 1965, the legislature treated deemed arrears of subscription for three calendar months or even more to be a sufficient disqualification for a person to be continued on the roll of member­ship of the union for subsequent months. However, the said proviso has undergone a sea-change from 1965 and as per present form in which it exists on the statute book, a person would be deemed to be a non-member only if his subscription is in arrears for a period of more than three calendar months within the block of six earlier calendar months. The legislature in its wisdom removed the fetter of deemed non-membership which earlier existed when even three calendar months arrears of subscription were sufficient to raise the deeming fiction of non-membership of such a person. It, therefore, cannot be said that what is deleted by the legislature from the proviso after 1965 must by a process of interpretation be treated to have existed even after the deletion of the term “arrears for a period of three calendar months.” In other words, after 1965 amendment in the proviso to Section 3(25), it is not enough to raise the deeming fiction for displacing a member for the month in question by only showing that he was in arrears for a period of three calendar months preceding the month in question but on the contrary, the legislature by providing a wider range for deemed non-membership during six preceding months has thought it fit to provide in its wisdom that the deeming fiction of non-membership would arise only when during the immediately preceding six months’ period the concerned member has so behaved as to remain in arrears by not paying subscrip­tion before the end of each of the calendar months which must be more than three such months. Meaning thereby, they may be four, may be five, may be six, as the inquiry about his past conduct has to be spread backwards up to a maximum period of six months immediately preceding the month in question. It is not possible to agree with the contention that period of more than three calendar months as mentioned in the proviso pursuant to the amendment in 1965 can be said to have set in once it is found that for each of the preceding three calendar months subscription was not paid by the end of such month and moment three calendar months are over without payment of the due subscription for each of these months, on the stroke of 12 O’clock midnight of the third calendar month the period of more than three calendar months can be said to have started. It is obvious that the concept of arrear for a calendar month as laid down by the explanation takes in its sweep the conduct of a member who does not pay the subscription for the concerned calendar month by the end of that month. Meaning thereby, he has full play and locus paenitentiae to pay up the subscription for the month concerned at any time from first till the last day of such calendar month. In order that such a member can be said to be in arrears for the next calendar month i.e. the fourth calendar month which obviously would result into his being in arrears for more than three calendar months, on first of October how can he be said to be in arrears for that month i.e. the fourth calendar month when time to pay up subscription for the fourth month is still not over and is available to him as per the explanation till last day of that month? The interpretation canvassed to the contrary would render the phrase “more than three calendar months” totally otiose. It is also necessary to note, in this connection, that legislature has clearly expressed a different legislative intent while substituting the earlier proviso to Section 3(25) which was on the statute book from 1953 by deleting the words `any arrears for a period of three calendar months’ and by substituting the words `arrears for a period of more than three calendar months’. It is axiomatic that `more than three calendar months’ cannot be equated with `three calendar months’. In this connection, it is also interesting to compare the phraseology employed by the legislature in Sections 13 and 16 wherein an applicant union for getting registration as a representative union under Section 13 or the rival union to displace such a representative union by applying under Section 16 has to show its requisite 25 membership of the workmen engaged in that industry for a continuous period of three calendar months immediately preceding such application. Continuous period of three calendar months would naturally start with the first month and end with the third month. Such a phraseology is conspicuous­ly absent in the proviso to Section 3(25) as it stands on the statute book after 1965. (Para 10)

       Period of more than three calendar months would naturally call for the inquiry whether the arrears for the concerned calendar months have got so accumulated that they represent a period of more than three calen­dar months at a given point of time, out of the relevant period of six months. When subscription for June, 1981 was not paid by the end of June, as per the explanation a member would be treated to be in ar­rears for June, 1981. Even if he paid subscription of June in July, 1981 along with the subscription for July, 1981 he would still be deemed to be in arrears for June, 1981 for the purpose of the proviso read with the explanation. Deemed arrears remain as such even if cleared later on. Once the deeming provision of the explanation operates qua the ar­rears for June, 1981 subsequent payment in July for the month of June cannot whittle down the deeming provision regarding arrears for June, 1981 which would attach to the conduct of such a member moment he has not paid up the subscription by the end of June. That will be the arrear for June, 1981. All such deemed arrears can be added up fur­ther, for the respective succeeding calendar months if he had not paid up subscription by the end of these succeeding calendar months. When such a conduct continues for respective calendar months of August and September, 1981, as per the explanation he will be said to be in arrears for a period of three calendar months but the proviso in the present form requires not only arrears for the period of three calen­dar months but for a period of more than three calendar months. Thus for the fourth calendar month during the relevant period he must be shown to have not paid the subscription for the fourth calendar month before the end of that calendar month. If that happens then only he can be said to be hit by the proviso being in arrears for a period of more than three calendar months. (Para 11)

       The phrase `period of more than three calendar months’ deals with the time span during the relevant period of six calendar months preceding the month in question within which the conduct of the member concerned has to be scrutinised. That would not require a continuous period of more than three calendar months. Period of more than three calendar months encompasses two termini one the beginning of that period and other the end of that period. During this time span the conduct of the concerned member has to be scrutinised. It may be spread over more than three calendar months during the block of six months prior to the month in question. The legislature was dealing with a period of six months immediately preceding the relevant month which is on the anvil of scrutiny in the proceeding under Section 15 of the BIR Act. During this period of six months if a member is in arrears for a period of more than three calendar months he can be in arrears for four or five or for even six calendar months. In order to cover all these contin­gencies the legislature in its wisdom has used the terminology “in arrears for a period of more than three calendar months” instead of the phraseology “for a period of four calendar months”. Whatever that may be, the fact remains that on the express language of the proviso as read with the explanation it has to be held that before a member can be treated to be a deemed non-member for a month in question it has to be-shown that during the six months preceding that month (e.g. December, 1981 i.e. from June, 1981 till the end of November, 1981) he was at any time in ar­rears of subscription for more than three calendar months, meaning thereby for four calendar months or even more. But if it is shown that he was in deemed arrears as provided by the explanation of the proviso for only three calendar months or less and not for a longer period than three calendar months, then he cannot be deemed to be a non-member for December, 1981. (Para 11)

       Subscription if in arrears in respect of only three calendar months can by no stretch of imagination be considered as subscription being in arrears in respect of more than three calendar months. The phrase “period of more than three calendar months” necessarily takes in its fold the conduct of the defaulting member with reference to not only three calendar months but more than three calendar months meaning at least four if not more than four calendar months within the block period of six calendar months immediately preceding the month in question, as seen earlier. (Para 12)

       (ii) Bombay Industrial Relations Act-Section 15-Bombay Industrial Relations Rules-Rule 28A-Representative union-Cancellation of registra­tion - Procedure for-Procedure prescribed under Rule 28A need not be fol­lowed-Regis­trar has discretion to conduct such inquiry as he thinks fit.

       Held : The rule making authority has conspicuously not included Section 15 within the procedural sweep of Rule 28A. Consequently, the procedure to be followed by the Registrar under the BIR Act while considering the application under Section 15 for cancelling the regis­tration of a representative union duly registered under the BIR Act earlier, is the one provided under the Section itself. It leaves to the discretion of the Registrar to conduct such inquiry as he thinks fit in this connection and has to decide the application after issuing show cause notice to the union whose registration is sought to be cancelled. (Para 6)

       (iii) Bombay Industrial Relations Act, 1946-Section 3(25)-Member of trade union-Connotation of- Deemed ceasure of-Membership-Ordinary member of a trade union would be an employee in that industry with which trade union is concerned and would not include honorary or temporary members, like office bearers-Arrears of subscription for continuous three months-It means arrears must be for more than three months in a block period of six months preceding the month which is on anvil of scrutiny-Payment of subscription per calendar month at any point of time for any past calendar month would entitle a member to continue on the rolls-Payment of subscription on or before expiry of each calendar month is not must.