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HIGH COURT OF BOMBAY
CHAGLA, DIXIT, JJ.
Usman Habib
Versus
State of Bombay
Special Civil Applns. Nos.870 to 873 of 1954
Decided On : 30-07-1954
INDUSTRIAL RELATIONS - BOMBAY INDUSTRIAL RELATIONS ACT, 1946 - SECTION 42(2) - CONSTRUCTION - NOTICE OF CHANGE BY EMPLOYEE - ROLE OF REPRESENTATIVE UNION - CONCILIATION PROCEEDINGS - MANDAMUS AGAINST CONCILIATOR AND STATE GOVERNMENT - PUBLIC INTEREST - SECTION 73 - INTERPRETATION.
Fact of the Case:
The petitioner, an employee of a weaving factory, gave a notice of change under Section 42(2) of the Bombay Industrial Relations Act, 1946, to the employer through the Representative Union. The Conciliator refused to initiate conciliation proceedings, and the petitioner filed a petition for a mandamus against the Conciliator and the State Government for a reference under Section 73 of the Act.
Finding of the Court:
The Court held that the notice of change under Section 42(2) of the Act must be given by the Representative Union, and not by the individual employee. The Court also held that the Representative Union has the discretion to decide whether to forward the notice of change to the employer and initiate conciliation proceedings. The Court further held that the State Government erred in refusing to consider the petitioner's application for a reference under Section 73 on the ground that it was not made through the Representative Union.
Issues: 1. Whether the notice of change under Section 42(2) of the Bombay Industrial Relations Act, 1946, must be given by the individual employee or by the Representative Union. 2. Whether the Representative Union has the discretion to decide whether to forward the notice of change to the employer and initiate conciliation proceedings. 3. Whether the State Government can refuse to consider an application for a reference under Section 73 of the Act on the ground that it was not made through the Representative Union.
Ratio Decidendi: 1. The Court interpreted Section 42(2) of the Act in light of the overall scheme of the Act, which emphasizes collective bargaining and representation of employees through their Representative Union. The Court held that the Representative Union is the appropriate body to give notice of change on behalf of the employees, as it is responsible for representing their interests and negotiating with the employer. 2. The Court held that the Representative Union has the discretion to decide whether to forward the notice of change to the employer and initiate conciliation proceedings. This discretion is necessary to ensure that only genuine and meritorious grievances are brought before the Conciliator, and to prevent frivolous or vexatious notices from clogging the conciliation process. 3. The Court held that the State Government cannot refuse to consider an application for a reference under Section 73 of the Act on the ground that it was not made through the Representative Union. Section 73 gives every employee the right to approach the State Government for a reference of an industrial dispute to arbitration, and this right cannot be restricted by requiring the application to be made through the Representative Union.
Final Decision: The Court dismissed the petition, holding that the Conciliator was not obligated to initiate conciliation proceedings in response to the petitioner's notice of change, and that the State Government erred in refusing to consider the petitioner's application for a reference under Section 73.
CHAGLA, C.J.:- A very important question as to the proper construction to be placed upon S.42(2), Bombay Industrial Relations Act, 1946, arises on this petition, and the few facts which are necessary for the decision of that question may be stated.
2. The petitioner is the employee of opponent No.3, which is a weaving factory, and in June 1952 opponent No.3 gave notice of a change under S.42(1). Pursuant to that notice, conciliation proceedings were started and the Conciliator reported the failure of conciliation proceedings on 4-12-1952. An application was made by the petitioner and others to Government for a reference under S.73 and the Government declined to make the reference. A notice of change was then given by the petitioner and others on 2-9-1953, under S.42(2). On 29-9-1953, the petitioner sent a statement of the case as required by the Act to the Conciliator and on 2-10-1953, the Conciliator replied that he could not proceed with the conciliation as the notice was not in the prescribed form.
Thereupon the petitioner sent a second notice of change on 2-11-1953. This notice was addressed to the manager of the employers factory and at the foot of the notice it was stated that a copy had been sent to the Chief Conciliator, Bombay, the Conciliator, Industrial Relations Act, Ahmedabad, the Government Labour Officer, Baroda, the Registrar, Industrial Relations Act, Bombay, and the Textile Labour Union, Bombay, and it was further stated "Submitted to the Secretary, Textile Union, Cambay", which is opponent No.4 and which is the Representative Union of the petitioner and other employees recognised under the Act with a request to forward the above notice to the manager of opponent No.3 at Cambay, under S.42 (2), Industrial Relations Act, "without any delay on his account".
On 16-11-1953, the petitioner submitted a report with regard to the notice of change. On 23-2-1954, the Conciliator informed the petitioner that he refused to initiate the conciliation proceedings. Thereupon the petitioner filed this petition claiming two reliefs: (1) a mandamus against the Conciliator to initiate the conciliation proceedings, and (2) a mandamus against the State of Bombay for a reference under S.73 of the Act.
3. The Bombay Industrial Relations Act, 1946, has often come up for consideration before this Court, and before we turn to consider the various provisions it is necessary to state that the underlying principle of the Act is collective bargaining. The conception upon which this law is based is that redress of grievances should not be individual, but should be collective. Recognition is given to the fact that in most industries labour is organised, and if labour is organised through its own union, then that union acts and appears for labour in its representative capacity. Now, if one were to look at the different sections which fall for consideration, bearing in mind this basic principle, it is easier to come to a conclusion on the question raised in this petition.
4. Section 3, sub-cl. (32), defines a "representative of employees" as meaning "a representative of employees entitled to appear or act as such under S.30"; and S.30 lays down the priority in which representatives of employees are entitled to appear or to act, and at the top of this hierarchy stands "a Representative Union". Then one might also refer to a section which has been recently embodied in the Act, namely, S.27a, which provides that, save as provided in Ss.32 and 33, no employes shall be allowed to appear or act in any proceeding under this Act except through the representative of employees. Section 32 provides for persons who may appear in proceedings and the section lays down that
"A Conciliator, a Board, an Arbitrator, a Wage Board, a Labour Court and the Industrial Court may, if he or it considers it expedient for the ends of justice, permit an individual, whether an employee or not, to appear in any proceeding before him or it."
Therefore, a discretion is co
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