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SUPREME COURT OF INDIA
N.L. UNTWALIA AND JASWANT SINGH, JJ.
Santuram Khudai, Appellant
Versus
Kimatrai Printers and Processors Pvt. Ltd. and others, Respondents.
Civil Appeal No. 2111 of 1977
Decided on 9-12-1977.
Advocates appeared
M/s. B. Datta and K. Kumar, Advocates, for Appellant; Mr. Y. S. Chitaley, Sr. Advocate (M/s. V. N. Ganpule, Mukul Mudgal and M. R. Gehani and Mrs. V. D. Khanna Advocates with him), ( for No. 1) and Mr. V. M. Tarkunde Sr. Advocate (M/s. K. L. Hathi and P. C. Kapur, Advocate with him), (for No. 2), for Respondents.
Constitution of India – Article 227 – Circumstantial evidence – Employment and service - They also asked for a declaration that strike resorted to by the employees of respondent pursuant to aforesaid notice of strike given by their new union was just, proper and legal and that employees who resorted to strike continued to be in service of respondent without any break or interruption - Said employees further prayed that respondent be directed to award full wages to the employees who went on strike for the period commencing date of resumption of work by them - Vide its order High Court summarily dismissed the petition and declined to give leave to appeal to this Court - Appellant thereupon made an application to this Court for Special Leave which was granted - This is how the matter is before us – Held, Court have, therefore, no hesitation in agreeing with the view expressed by Court and High Court and holding that neither the appellant nor his other co-employees had any locus to appear or act as individual employees in the aforesaid proceedings initiated by respondent No. 1 in which respondent which is representative union in industry in local area had the right to appear and act as the representative of the employees in the industry and did appear or act as such – Court may observe here in passing that even the new union to which the appellant and some of his co-employees belonged would have no right to appear or act on behalf of appellant or his co-employees in the aforesaid proceedings initiated by respondent as it had not been registered and recognized as the representative union of employees under the Act - In conclusion, we wish to make it clear that as learned counsel for the parties have abstained from addressing us regarding the legality or otherwise of the aforesaid strike in view of fact that it was not open to the appellant to agitate that question because Court had refused to add him as a party to respondent aforesaid application court have refrained from making any observation in regard to thereto - It may be noticed that there is no exception in S. 27A in favor of the employee, who might have made an application under S. 42 to appear on his own behalf and the ban which is placed by S. 27A will apply equally to such an employee - In order however to soften rigor of provisions of S. 27A, for it may well be that representative of employees may not choose to appear in many proceedings started by an employee under S. 42 exceptions are provided in Ss. 32 and 33 - Scheme of these three provisions clearly is that if the Representative Union appears, no one else can appear and carry on a proceeding even if it be begun on an application under S. 42 (4) but where Representative Union does not choose to appear there are provisions in SS. 32 and 33 which permit others to appear in proceedings under Act - Appeal dismissed
JUDGMENT
JASWANT SINGH J.:— This appeal by special leave which is directed against the order dated November 16, 1976 of the High Court of Gujarat at Ahmedabad summarily dismissing Special Civil Application No. 1845 of 1976 filed by the appellant and another under Art. 227 of the Constitution raises an interesting question regarding the right of individual employees to appear or act in a proceeding under the Bombay Industrial Relations Act, 1946 (Bombay Act No. XI of 1947) (hereinafter referred to as the Act) where a representative union has entered appearance as the representative of the employees.
2. The facts and circumstances giving rise to this appeal, in brief, are:
Respondent No. 1 herein viz. The Kimatrai Printers and Processors Pvt. Ltd. Ahmedabad is an undertaking in the Textile Processing Industry which was recognised as such vide Notification No. KH - SHMC/2724/RU dated September 13, 1974 issued by the Registrar, Bombay Industrial Relations Act in exercise of the powers conferred on him under Section 11 (1) of the Act. Respondent No. 2 viz. the General Workers Union, Bhadra, Ahmedabad is a representative union of all the employees of the various undertakings registered by the Registrar as undertakings in the Textile Processing Industry in the local area of Ahmedabad City and city Taluka irrespective of the fact that the employees of any of the aforesaid undertakings may or may not be members of the representative union and is registered and recognised as such under the provisions of the Act. In 1975, the said union raised demands regarding wages, dearness allowance, washing allowance, supply of shoes, uniforms, and casual holidays. As the demands were not agreed to, the dispute was taken in conciliation which culminated in an amicable settlement between the parties on the basis whereof an award was made by the Industrial Court on September 29, 1975. On December 22, 1975, respondent No. 2 gave a notice under sub-sec. (2) of S. 42 of the Act intimating thereby its desire for a change in respect of classification, pay scales, dearness allowance, casual leave, festival holidays and certain other industrial matters. The notice was followed by two other notices dated March 22, 1976 and March 27, 1976 under the same provision of the Act. The dispute not having been settled by the parties amicably, the same was taken in conciliation which failed. Consequently on July 27, 1976, a reference, being Reference No. 176 of 1976, was made to the Industrial Court at Ahmedabad under S. 73-A of the Act, wherein as a result of negotiations, an interim settlement appears to have been arrived at on November 17, 1977. Meanwhile the workers of respondent No. 1 struck work with effect from September 24, 1976 whereupon an application being application No. 1455 of 1976 was made on the following day by the respondent to the Third Labour Court at Ahmedabad under S. 79 (1) & (4) read with S. 78 (1) A. (c) and S. 97 (1) of the Act for a declaration that the aforesaid action of the workers mentioned in Annexures A and B to the application amounted to an illegal strike. A public notice regarding the filing of this application was given in Gujarat Samachar on September 27, 1976 and a copy thereof was also affixed on the notice board of respondent No. 1. In the proceedings taken upon the said application of respondent No. 1, respondent No. 2 appeared as the representative and approved union for the processing industry in the local area where the mills of respondent No. 1 are situate, and filed written statement admitting that the strike resorted to by the workmen was illegal. Without meaning to burden the record unnecessarily but with a view to complete the narrative, it may be stated that in May, 1976, a new union of workers employed in the concern of respondent No. 1 was formed under the name and style of New Labour General Trade Union Ahmedabad which was registered under the Trade Unions Act on June 3, 1976. Vide its letter dated June 8, 1976, the
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