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IN THE HIGH COURT OF BOMBAY
G.R. Majithia D.K. Trivedi, JJ.
Blue Star Limited.... Petitioner.
Versus
Blue Star Workers’ Union others.... Respondents.
Writ Petition No. 1411 of 1993, decided on 2-3-1996.
Advocates appeared :
K.K. Singhvi with P.K. Rele i/b S.S. Pakale, for petitioner.
S.J. Deshmukh with Mrs. Pushpa Menon, for respondent No. 1.
Section 28(1), r/w Schedule IV, Item 9 and Schedule II Item 4(a) - Permission by employer to carry on whole-time union activities during working hours-Permission later on withdrawn-Does not amount to unfair labour practice.
Shri Vasudevan was given a concession by the petitioner to carryon union work during company working hours and he was not asked to do companys work for practically 5 years. The withdrawal of the concession will not amount to unfair labour practice. The matter is no more res integra.
Schedule IV, Item 9 and Schedule II, Item 4(a)-Evidence Act, 1872 - Sections 3 and 61-Practice-It does not become a Custom unless consciously accepted.
The Industrial Court referred to the settlements arrived at in 1978, 1981 and 1985 to conclude that the company was aware that some workmen were doing union work during office hours. It also observed that even from the Charter of Demand made by the company it can be inferred that the company was interested in imposing restriction on the activities of certain persons doing union work.
This inference is not deducible from the Minutes of the Settlements referred to in the body of the award. It was never agreed upon that office-bearers of the union or an office-bearer of the union will carry on union work as a matter of right during company working hours. In fact, in some of the settlements it is specifically stated that if an office-bearer of the union wants to do union work during working hours, he or they will seek the permission of the Manager.
The approach of the Industrial Court is not only illegal but perverse too. A practice is a succession of acts of a similar kind or in a like employment (Websters Dictionary).
Practice may be more or less common but it does not become a custom unless it is consciously accepted having force of law. In the present case, Shri Vasudevan has admitted that he has been carrying on the union activities with the permission of the then Chairman and Vice-President of the company. Except this statement no other evidence is led that in the like employment, the employer has permitted his employee to carry on whole-time union activities during working hours and the employee was exempted from doing company work. In other words, there was no other instance where an employer has permitted his employee to carryon union activities at the cost of the employer. A practice can only be deemed to be establishing if similar acts have been followed in succession-This is neither pleaded nor proved.
The demand put by the management was not accepted. Non-acceptance of the demand will not lead to an inference that an implied agreement has resulted between the management and the employee that an employee can carryon whole time union work during working hours.
2. Respondent No. 1, Blue Star Workers' Union, filed a complaint against the petitioner, its Vice-President, Personal, and its Manager AC R Sales, complaining unfair labour practice under section 28(1) read with Item 9 of Schedule IV and Item 4(a) of Schedule II of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short "the Act"), stating therein that the petitioner was not paying salary to Shri N. Vasudevan and that the petitioner violated the existing settlement dated November 1, 1985.
3. The petitioner appointed Shri Vasudevan as a stenographer from October 26, 1964 vide its appointment letter of the same date on the terms and conditions mentioned therein, inter alia, that his appointment was otherwise subject to the standard rules and regulations of the company with regard to leave, Provident Fund, exclusive employment while serving the company. He accepted the same and joined the service. He was elected as General Secretary of the 1st respondent and thereafter he become its Vice-President in the year 1981, after he was elected as General Secretary of the All India Blue Star Employees' Federation. He was allowed to solely do the union work by the company since 1983. Since then he was not assigned any company work. He has been carrying on union activities during office working hours. Shri R.M. Nadkarni, Manager, AC R Sales, of the petitioner company, was arraigned as respondent No. 2 in the original complaint. He issued an official communication dated October 31, 1989 to Shri Vasudevan stating that the latter had refused to take up the company's sales work despite repeated instructions in that behalf and that in case he failed to take up the work, the company will have no alternative but take such action as deemed fit and to stop payment of salary/wages with effect from October 25, 1989. The communication reads thus:-
"On 25-10-89, you had a meeting with the undersigned and Mr. A.K. Nandi and you were instructed to take up the sales work from the undersigned, since there was plenty of backlog of quotations and correspondence. You categorically refused to take up any work from the undersigned and said that you had no time to do anything else other than the union activities.
You are once again instructed to start work of the dept. Please note in case you do not start work immediately, we will have no alternative but to take such action as we deem fit.
In the meantime since you have decided to keep yourself idle, you will not be paid salary/wages from October 25, 1989 onwards, which please note."
This communication furnished the cause of action to the 1st respondent to file the complaint alleging unfair labour practice. The communication is alleged to have been issued in violation of the settlement dated November 1, 1985 under which a practice is alleged to have come into existence, namely that Shri Vasudevan could not be assigned any company work and he has to be allowed to do union work during office working hours.
4. The petitioner denied that the settlement dated November 1, 1985 envisages what is alleged. It also denied that any practice had come into existence under which an employee can engage himself in union activities to the detriment of the company's work.
5. The Industrial Court, on the evidence brought on record, came to the conclusion that the petitioner had committed unfair labour practice under Item 9 of Schedule IV of the Act and it directed the petitioner to withdraw the letter dated October 31, 1989 and to allow Shri Vasudevan to continue to do the union work while on duty and to receive wages/salaries at the rates stipulated under the Agreement dated November 1, 1985.
6. The Industrial Court relied
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