D.B. Bhosale, J.
1. This writ petition under article 226 and 227 of the Constitution of India impugns the judgment and order dated 3rd March, 1998 rendered by the Industrial Court, Thane granting the Application (MRTU) No. 7 of 1994 filed by respondent no.1 -Union under Section 11 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short 'the Act') for being registered as recognised Union of the workmen in the factory of respondent no.2 company at Thane. The petitioners' and respondent no.1 are trade unions registered under the provisions of the Trade Unions Act, 1926. Both claim that they represent majority of the workmen in the said Undertaking of respondent no.2.
2. The question that falls for our consideration in this writ petition is whether the order of the Industrial Court granting respondent-union's application under Section 11 of the Act, for being registered as recognised Union for the Undertaking of respondent-company at Thane, was legal or calls for interference by this Court.
3. The factual matrix set out in the petition and which is relevant and necessary for considering the question involved reveals that the respondent-union, registered in June, 1971 under the Trade Unions Act, was functioning for more than two decades in the factory of the respondent-company at Thane. It had not applied for grant of registration as recognised union under Section 11 of the Act until January, 1994. The respondent-company at its Thane factory had 234 workmen employed at the relevant time. The respondent-union claims that it had vast majority of workmen as its members when it applied for being recognised union under Section 11 of the Act. The Industrial Court considered the lists of both the Unions and by deleting the common names proceeded to consider the application on the basis that the applicant-union had in all 101 members at the time it applied for recognition. It appears that none of them had paid their subscription for the year 1993 till July. The 20 members paid their subscription for the period from January to December, 1993 on 16.7.1993, 7 paid their subscription on 19.10.1993, 46 paid on 25.10.1993, paid on 28/29.10.1993 and 19 paid their subscriptions on 2.11.1993, which made the total of 101. The Industrial Court while reaching the conclusion that the respondent-union had 30 per cent of the employees as its members, excluded 19 members who paid their subscription on 2.11.1993 and 10 others on some other grounds. The 72 employees were held to be sufficient to comply the requirement of 30 per cent of total number of the employees employed in the Undertaking for the whole of six calendar months under Section 11 of the Act. The petitioners' claim that majority of the employees who were members of the respondent-union, had resigned and joined their union in October 1993 and as a result of which the workmen of the respondent-company were no longer represented by their union.
4. The respondent-union had made an application on 31.1.1994 under Section 11 of the Act bearing Application (MRTU) No. 7 of 1994 before the Industrial Court, Thane claiming that they represented majority of the employees in the Thane factory during the whole of six calendar months i.e. July to December, 1993 immediately preceding the month of January, 1994. They also furnished a list of 101 employees and prayed for their registration as recognised union for the said undertaking.
5. It appears that the respondent-union sought to object to the petitioners' right to file objections and participate in the proceedings under Section 11 of the Act and in view thereof on 7.4.1994, the petitioner-union filed formal application for being impleaded in the proceedings. The Industrial Court vide its order dated 29.4.1997 allowed the petitioners' application for impleadment. The petitioners thereafter filed their written statement on 5.9.1997 and contested the application filed by the respondent-union under Section 11 of the Act.
6. The learned Member of the Industrial Court was pleased to grant recognition to the respondent-union after taking into account all subscriptions received prior to November 1993 and the compliance of all the conditions/requirements under Section 19 of the Act holding that the respondent-union did comply with the requirement of 30 per cent membership for the relevant six months period and was, therefore, entitled to be registered as recognised union for the factory of the respondent-company at Thane.
7. We heard the learned Counsel for the parties at great length and with their assistance perused the impugned judgment and other material placed before us. Mr.C.U.Singh, the learned senior counsel for the petitioners, at the outset, submitted that the impugned order is wholly without jurisdiction, in excess of the learned Judges' powers, without authority of law and it, therefore, deserves to be quashed and set aside in exercise of the jurisdiction under Article 226 of the Constitution of India. He further submitted that the Industrial Court ex-facie erred in overlooking the clear evidence on record which established that the 1st respondent-union had not complied with the provisions of the Constitution and Rules of the respondent-union while purporting to enroll the employees as the members in July, October or November, 1993 and that it had no valid membership for the period in question. He next submitted that under the respondent-union's Constitution and Rules, a member failing to pay his subscriptions for a period of three months without the permission of the Managing Committee ceased to be a member of the Union, and even with the permission of the Managing Committee such member would cease to be a member if he fails to pay his subscriptions for a period of six months. Though the constitution permits such ex-members to rejoin the Union upon clearing the arrears, such rejoining cannot under any circumstances be with retrospective effect, nor can such person be treated as a valid or proper member for the period prior to such rejoining. He then submitted that the relevant provisions of the Act make it abundantly clear that the persons claimed to be members of the respondent-Union could not be treated as valid members for any period prior to respective dates of payment of subscriptions. Merely because the employees in arrears for upto three months do not cease to be members, it does not in any manner imply that a person who has ceased to be a member ten or twelve months prior to the date of payment of subscription would automatically be entitled to three months of the retrospective membership from the date of payment. Such interpretation of Section 3(11) of the Act would lead to the startling and clearly unintended result that any union can collect retrospective membership and thereby claim to enroll the persons as its members with retrospective effect for upto four months. In support of his contentions Mr.Singh placed heavy reliance upon the judgments of the Supreme Court in Maharashtra Grini Kamgar Union v. S. Bhattarcharji and Ors. (1997) 7 S.C.C. 547 and Mumbai Mazdoor Sabha Bennet Coleman Co. Ltd. & Others CIR 1986 S.C. 430. It was also pointed out that the Industrial Court recorded a finding that the petitioner-union had a majority membership when the application for recognition was decided but proceeded to grant recognition to the respondent-union which is contrary to the object of granting recognition and the basic tenets of a democratic society.
8. On the other hand Mr.Deshmukh, the learned counsel for the respondent-union submitted that the respondent-union by producing relevant material on record has established that it had more than 30 per cent members at the relevant time during the period of six months i.e. July to December 1993. He further submitted that even if it is assumed that majority of the employees were not members of the respondent-union at the relevant time still the conditions/requirements in law for recognition contemplated under Section 11 and 19 of the Act had been complied with and, therefore, the registration was rightly granted by the Industrial Court. In any case, according to Mr.Deshmukh, the petitioner-union was admittedly not entitled to be recognised under Section 11 of the Act inasmuch as it was not representing the employees in Thane factory of the respondent-company for the whole period of six calendar months. The Industrial Court was, therefore, obliged to consider only the respondent-union's claim under Section 11 read with Section 19 and since it was found that all the requirements and conditions stipulated thereunder were satisfied/complied with it granted the respondent-union's application. Mr.Deshmukh took us through the findings recorded by the Industrial Court, Constitution and Rules of the respondent-union, the relevant provisions of the Act and more particularly the provisions contained in Chapter III thereof and submitted that the present case is not covered by the ratio laid down by the Supreme Court in the judgments of Maharashtra Grini Kamgar union's case (supra). According to Mr.Deshmukh, admittedly, majority employees were members of their union and, therefore, even if it is assumed that all 101 members had ceased to be members of the respondent-union until they paid their subscriptions in July, October or November in view of Section 3(11) of the Act they were rightly treated as members of the respondent-union for the purposes of deciding the application under Section 11. The definition of 'Member' under Section 3(11) of the Act clearly, according to Mr.Deshmukh, empowers a member of the Union to pay his subscription in arrears in lump sum before the end of third month from the month in which the subscription is in arrears and save his membership for the three preceding months. He then submitted that the members who paid their subscription in October were valid members from July 1993 and in view thereof even if the members who paid their subscriptions in November 1993 are excluded, still total number of members would be 72 which was more than 30 per cent at the relevant time and, therefore, the respondent-union was entitled to be recognised and it was rightly recognised by the Industrial Court. Insofar as the Constitution and Rules of the respondent-Union are concerned, he submitted that Rule 3 entitles an employee to become an ordinary member of the Union on payment of admission fee of 'Nil' and monthly subscription of Rs.2/- provided he agrees to abide by the rules and bye-laws of the Union. Rule 5, according to Mr.Deshmukh, entitles its member to rejoin the Union if he is in arrears and ceased to be member of the Union on paying his arrears. A conjoint reading of these rules and the definition of 'Member' under Section 3(11) of the Act, he submited, clearly show that the respondent-union had 30 per cent of total number of the employees as its members for the whole of the period of six calendar months immediately preceding the calendar month in which they applied for its recognition.
9. For deciding the question that falls for our consideration and to address the arguments advanced by the learned Counsel for the parties it becomes necessary to have a glance and examine the scheme of the Act so far as it relates to recognition and de-recognition of the unions. Chapter III of the Act, with which we are primarily concerned, deals with recognition of the Unions. Section 10 in Chapter III makes it clear that the said Chapter shall apply to every undertaking where 50 or more employees are employed or were employed on any day of the preceding 12 months. If the number of employees employed in the undertaking at any time falls below 50 continuously in a period of one year, the Chapter ceases to apply to such undertaking.
10. In the present case we are mainly concerned with Sections 11 and 12 in Chapter III of the Act. Section 11 provides that a union which is desirous of being registered as a recognised union for any undertaking has to make an application to the Industrial Court for the purpose. However, for making such application, the union must have not less than 30 per cent of the total number of employees in that undertaking as its members for the whole of the period of six calendar months immediately preceding the calendar month in which it makes the application. The Industrial Court then has to dispose of the application as far as possible within three months from the date of the receipt of the application if all the concerns of the undertaking are situated in the same local area; and in any other case, within four months. Section 12 lays down the manner in which the Industrial Court will proceed to enquire into the application and grant recognition.
11. On receipt of the application under Section 11, the Industrial Court under Section 12 is obliged to make a preliminary scrutiny of it to find out that it is in order. The Court then has to cause a notice to be displayed on the notice board of the undertaking for which the recognition is sought, stating therein that the Court intends to consider the said application on a date specified in the notice, and also calling upon the other union or unions, if any, in the undertaking as well as the employers and employees affected by the proposal for recognition to show cause within a prescribed period as to why recognition should not be granted to the applicant-union. If after, considering the objections, if any received, and if after holdings such enquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the applicant-union satisfies the condition stated in Section 11, viz., among other things, that it has a membership of not less than 30 per cent for the relevant period and that it also satisfies the conditions which are specified in Section 19 of the Act, the Court grants recognition to the applicant-union and issues a certificate of such recognition to it. On the other hand, if the Court comes to the conclusion that any of the other unions has the largest membership of employees and the said other union has notified to the Court its claim to be registered as a recognised union and if that other union also satisfies the requisite conditions of Sections 11 and 19 of the Act, the Court has to grant recognition to the said other union.
12. Section 12 then states that at any time there shall not be more than one recognised union in respect of the same undertaking. The section also enjoins upon the Court not to recognise any union, if it is satisfied that the application for its recognition is not made bonafide in the interest of the employees but is made in the interest of the employer and to the prejudice of the interest of the employees. So also the section mandates the Court not to recognise any union if at any time within six months immediately preceding the date of the application for recognition, the applicant-union has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under the Act.
13. At this stage, it may be noticed that in this case the procedure stipulated in Section 11 and 12 of the Act was followed and it was found that, among other things, the respondent-union had a membership of not less than 30 per cent for the relevant period i.e. July to December, 1993 as required under Section 11 and that it also satisfied the conditions specified in Section 19 of the Act and, therefore, the court granted recognition and the certificate to that effect was issued. Though the petitioner-union participated in those proceedings and opposed the application of the respondent-union, no other union, including the petitioner-union, had notified its claim to be registered as a recognised-union and, therefore, the Court had to consider the claims of the respondent-union only for being registered as recognised union for the Undertaking of respondent-company at Thane. Keeping that in view let us proceed to examine the other relevant provisions of the Act.
14. Section 13, 14 and 15 in Chapter III of the Act will have to be seen. Section 13 provides for cancellation of the recognition of the union and suspension of its rights as a recognised union. It states that if the Industrial Court is satisfied after holding an enquiry in the matter that: (i) the union was recognised under mistake, misrepresentation or fraud, or, (ii) the membership of the union has for a continuous period of six calendar months fallen below for its recognition, viz. 30 per cent of the total strength of the employees; or (iii) the recognised union has, after its recognition, failed to observe the conditions specified in Section 19; or (iv) the recognised union is not being conducted bona fide and is being conducted in the interest of employer to the prejudice of the interest of the employees; or (v) it has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under the Act; or (vi) its registration under the Trade Unions Act, 1926 is cancelled; or (vii) another union has been recognised in place of the union recognised under the said Chapter, it would cancel its recognition. The Industrial Court is also given the power to suspend the rights of the recognised union for some specified period and it may not proceed to cancel the recognition, if it is satisfied that the former course is in the circumstances, a proper one. Section 14 lays down the procedure for recognition of other union when there is already a recognised union in the field. It states that any union can make an application for being registered as a recognised union in place of a recognised union which is already registered as such for the undertaking. Such other union can make an application on the ground that it has the largest membership of employees employed in the undertaking. The conditions precedent to making such an application, however, are that: (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recognition of such union; (iii) the union must have satisfied the conditions necessary for recognition specified under Section 11; and in addition. (iv) its membership during the whole of the period of six months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recognised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19) are satisfied. If, however, the Court comes to the conclusion that any of the other unions has the largest membership of employees and such other union also satisfies the necessary conditions, the Court will grant recognition to the other union.
15. Section 15 provides for re-recognition of the union whose recognition has been cancelled on the ground that it was recognised under a mistake or on the ground that its membership had for a continuous period of six calendar months fallen below the minimum required under Section 11, viz., below 30%. Such an application can be made by the derecognised union after three months from the date of its deregistration. On such application being made, the provisions of Sections 11 and 12 referred to above would apply to it as they applied to an application made for the union's initial recognition. However, this section also makes it clear that if the recognition of the union had been cancelled on any other ground, it cannot apply for re-recognition within a period of one year from the date of such derecognition save with the permission of the Court. Section 16 states that even if the recognition of union is cancelled, it will not relieve the union or any of its members from any penalty or liability incurred under the Act prior to such cancellation. Section 18 provides for recognition of unions for more than one undertaking.
16. The Chapter IV of the Act, consisting of Section 19 to 23, dealing with the obligations and rights of the recognised Unions, is also relevant. Section 19 lays down the conditions, which are necessary to be complied with by the union seeking recognition under Section 11. It further lays down that the union which seeks recognition under the Act has to provide in its rules the following matters, and those matters have to be duly observed by it, viz. (i) the membership subscription of the union should not be less than fifty paise per month; (ii) the Executive Committee of the union must meet at intervals of not more than three months; (iii) all resolutions passed by the Executive Committee or the general body of the union have to be recorded in a minute book kept for the purpose; and (iv) the union's accounts have to be audited at least once in each financial year by an auditor appointed by the State Government. The compliance of these conditions for recognition is mandatory. Section 20 deals with the rights of a recognised union and of such officers and members of the office-staff and members of the recognised union, as may be authorised by or under rules made by the State Government. It also stipulates the rights conferred on the unions. For deciding the questions raised in this petition it is not necessary to deal with the other provisions of Chapter IV and even the Act except the definition of 'member' under Section 3(11) to which we propose to make reference at appropriate stage.
17. The Supreme Court had an occasion to consider the scheme of the Act, as aforestated, in Automobile Products of India Employees' union v. Association of Engineering Workers, Bombay and Ors. : (1990)IILLJ395SC and while so doing it was observed that 'the recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members. It is a matter of utmost importance to the interest of all the workmen in the undertaking concerned and to the industry and society in general.' The Supreme Court in that case was considering the question whether the procedure adopted by the Industrial Court for granting recognition to the appellant-union was illegal and while addressing the question in paragraph 9 further observed that 'The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(5) and 12(6) or does not satisfy the conditions mentioned in Section 19. A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an application for recognition of a new union is entertained'.
18. Our attention was also drawn specifically to the observations made by the Supreme Court in Automobile Products of India Employees' union's case (supra) in support of the submission that in a democratic society the union which has no support of the majority cannot be allowed to be recognised. The relevant observations read as under: 'the Act enjoins that for being recognised, the applicant-union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months preceding the month in which the application for recognition is made. When the applicant-union has in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately preceding the calendar month in which it made its application but had also a larger membership during the said period than the membership of the recognised union'. The Supreme Court in that case was dealing with the application filed under Section 13(1)(ii) of the Act and was considering the merits and demerits of two unions before it. However, in our opinion, if no other union notifies its claim to be recognised under Section 11 of the Act the Court requires to consider only the claim of a union which has applied for being recognised and see that all the conditions stipulated under that provision and Section 19 stood complied with irrespective of the fact whether or not majority of the employees are members of that union. In this case, it was not under consideration as to which of the two unions is to be registered as a recognised union. Under the circumstances the question of larger membership renders irrelevant and inconsequential.
19. That takes us to consider the judgment of the Supreme Court in Maharashtra Grini Kamgar union (supra) on which a heavy reliance was placed upon by Mr.C.U.Singh, learned senior counsel for the petitioners. In that case the Supreme Court was dealing with the question of correct interpretation of Section 3(25) of the Bombay Industrial Relations Act, 1946 (for short 'the BIR Act'). The said provision defines the term 'Member' of the trade union which is registered under the BIR Act. The appellant-union therein, on 24.3.1982, had moved an application before the Registrar functioning under the BIR Act for cancellation of the registration of respondent no.4-union as the representative union of workmen in the textile industry for the local area of the Bombay as per provisions of Section 15(b)(ii) of the BIR Act. It was urged therein that for the relevant period of continuous three calendar months the membership of respondent no.4-union had fallen below requisite 25% of the workmen in the textile industry in Bombay and hence its recognition was required to be cancelled.
20. The provisions contained in Section 3(25) of the BIR Act are in para materia with the provisions contained in Section 3(11) of the Act. Both define the term 'Member' of the union. It would be advantageous to reproduce both the provisions for better appreciation of the submissions advanced by the learned Counsel for the parties and to address the question involved for our consideration. The provisions of Section 3(25) of the BIR Act reads:
3(25). 'Member' means a person who is an ordinary member of a union and who has paid a subscription of not less than (twenty-five paise) (per calendar month). Provided that no person shall at any time be deemed to be a member if his subscription is in arrears (for a period of more than three calendar months during the period of six months immediately preceding such time).
Explanation:--A subscription for a particular calendar months shall, for the purposes of this clause be deemed to be in arrears if such subscription is not paid by the end of the calendar month in respect of which it is due.'
Section 3(11) of the Act (MRTU & PULP Act) which also defines the term 'Member' reads thus: '3(11). 'Member' means a person who is an ordinary member of a union, and has paid a subscription to the union of not less than 50 paise per calendar month;
Provided that, no person shall at any time be deemed to be a member, if his subscription is in arrears for a period of more than three calendar months during the period of six months immediately preceding such time, and the expression 'membership shall be construed, accordingly. Explanation:--A subscription for a particular calendar month shall, for the purpose of this clause, be deemed to be in arrears, if such subscription is not paid within three months after the end of the calendar month in respect of which it is due.
21. A bare look at both the provisions quoted above would show the only material difference made by the Legislature between Section 3(25) of the BIR Act and Section 3(11) of the Act is that under the explanation to Section 3(25) of the BIR Act, if the subscription is not paid 'by the end of calendar month in respect of which it is due', for the purpose of this clause, it shall be deemed to be in arrears. Whereas the explanation to Section 3(11) of the Act (MRTU & PULP Act) states that if the subscription is not paid 'within three months after the end of the calendar month in respect of which it is due', for the purpose of this clause, it shall be deemed to be in arrears.
22. A plain reading of Section 3(11) of the Act shows that a person can be a 'Member' of union if he satisfies the following two requirements (i) that he is ordinary member of the union, and (ii) he has paid subscription of not less than 50 Ps. per calendar month. The proviso to Section 3(11) provides that if a subscription of such member is in arrears for a period of more than 'three calendar months' during the period of six months immediately preceding such time, he shall not at any time be deemed to be a member and the expression 'member' should be construed, accordingly. The explanation to Section 3(11) explains that a subscription for a particular calendar month shall be deemed to be in arrears, if it is not paid within three months after the end of the calendar month in respect of which it is due. In other words, if a subscription is paid by a member before the end of third calendar month from the month in respect of which it is due, such member shall not be deemed to be in arrears for that calendar month.
23. At this stage it may be necessary to make reference to the constitution and rules (for short 'the Rules') of the respondent-union. In fact we are concerned only with Rule 3 and 5. Rule 3 provides for admission of ordinary members. It entitles the employees to become an ordinary member of the union on admission fee of 'Nil' and a monthly subscription of Rs.2/- provided he agrees to abide by rules and bye-laws that will be made by the union from time to time. Rule 5 provides for fine and forfeitures. It states that a member failing to pay his monthly subscription for six months with the permission of the Managing Committee or three months without permission of the said committee, shall cease to be a member of the union. But he shall be entitle to rejoin the union on paying his arrears. Rule 5 provides for rejoining the union by paying arrears which, in our opinion, means that a member who is in arrears with or without permission for a period more than three or six months as case may be, can rejoin the union without any difficulty since he does not require to pay admission fee. The Rule 3 and 5 clearly provides for any of the employees working in the factory of the respondent-union at Thane to join or rejoin the union for which he requires no formality to comply with except the fact that he is an employee in the respondent-company and is above 15 years of age and pays a monthly subscription of Rs.2/-provided he agrees to abide by rules and bye-laws of the union, that may be made from time to time. It may be noticed that for joining or rejoining the union, the rules did not provide admission fee at all. Even the provisions of Section 3(11) are silent about the admission fee.
24. As the question arises whether a particular 'member' is in arrears for a period more than three calendar months during the six calendar months immediately preceding the calendar month in which the union applies under Section 11 of the Act for its recognition, it will have to be seen whether any of the members was in arrears for a period of three calendar months during the block of six calendar months and, if Yes, such member/s will have to be excluded from the list of the valid members to examine whether a basic condition of 30 per cent of the total employees stands satisfied as required under that section. To consider whether or not a member is in arrears for three months, as observed earlier, the conditions stipulated in the proviso and explanation to Section 3(11) have to be satisfied in respect of all the three months so as to exclude him from the list of members submitted by the Union, which has applied for recognition under Section 3(11) of the Act. A member who has paid the subscription any time before the end of third calendar month after the end of the calendar month in respect of which it is due, would be valid for the purpose of consideration of the Union's application under Section 11 of the Act. However, in this case, the question is if an employee has ceased to be a member prior to the relevant six months period as contemplated in Section 11 of the Act, whether he could be treated as a valid member merely because he pays arrears for the whole year. We may take the following fact situation to highlight the question that really falls for our consideration. The members of the union who paid their subscription for the months of January to December, 1993, say in July and October, 1993, whether they could legitimately claim to be valid members of the union for the purpose of application under Section 11 of the Act. In other words, as urged by Mr.C.U.Singh, the learned senior counsel for the petitioners' that the deeming fiction in the proviso and the explanation to Section 3(11) cannot have application to persons who had ceased to be the members before they paid their subscription in July and October, 1993. It is only a valid member who falls in arrears for one to three months does not cease to be a member in view of the deeming fiction and not those who are chronic defaulters. At the most, the members who remitted the arrears in subscription by rejoining the union in October and November, 1993 may be treated to be valid members in the months of October and November only and not for the whole of six calendar months. There is no dispute that the member who paid their subscription in November, 1993 were not entitled to be included in the list of members to make a total of 30 per cent required under Section 11 of the Act.
25. The Supreme Court in Maharashtra Girni Kamgar Union's case (supra) was considering the provisions contained in Section 3(25) of the BIR Act in the context of the question, as aforestated, fell for its consideration. After considering the provisions contained in Section 3(25) of the BIR Act the Supreme Court in paragraph 9 held thus:
9. 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 the 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 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 Respondent 4 - Union in the month of December 1981 which is the first month on the anvil of scrutiny for the purpose of consideration of the appellant's 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. 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, in our view, to provide for a contingency in which such chronic defaulters in clearing the arrears of subscription may not get a locus poenitentiae and may not also afford an equal locus poenitentiae for their union to get subscription paid up in lump sum subsequently for each of the three calendar months on the anvil of scrutiny in proceedings for cancellation of the representative character of such unions.
In paragraph 10 the Supreme Court after considering the illustrations mentioned therein further observed thus: .It becomes at once clear that during the relevant period of six months immediately preceding December 1981, the member concerned has so behaved that he is in arrears for a period of three calendar months comprised in this period, namely, June, August and September 1981, though in the succeeding months the subscription for June is already paid up in July. Because of the thrust of the explanation this member will be deemed to be in arrears for June, August and September 1981 as he had not paid subscription for each of these calendar months by the end of the calendar month concerned. However, even if he is deemed to be in arrears for these three relevant calendar months, his case would not be covered by the sweep of the proviso which can make him a deemed non-member for the relevant month of December 1981 if his subscription is found to be in arrears for a period of more than three calendar months.
26. The record reveals that the members of the respondent-union who paid their subscriptions in July and October, 1993 were in arrears from January to December, 1993. The Rules of the respondent-union and in particular Rule 3 and 5 thereof clearly provide for the payment of a membership fee in lump sum and to join or rejoin the union by making the payment of subscription/arrears. Such members do not require to pay the admission fee. Admittedly, in this case, 20 members paid their subscription on 16.7.1993, 7 paid on 19.10.1993, 46 paid on 25.10.1993 and 9 on 28/29.10.1993. Out of these 82 members, 10 members were excluded as not entitled to be members of the respondent-union. That made the total of 72 members. 72 members constitute 30 per cent of the total number of employees in Thane factory of the respondent-company. It is true that even if a member may have paid a subscription, for all the months in the relevant year at a time subsequently, he can legitimately claim to be a member of the union under the first part under Section 3(11). However, his membership is liable to be displaced if he is hit by the proviso and the explanation as settled by the Supreme Court in Maharashtra Grini Kamgar Union's case (supra) while dealing with Section 3(25) of BIR Act which is in para materia with Section 3(11) of the Act. We are of the considered opinion that the judgment of the Apex Court in Maharashtra Grini Kamgar Union's case (supra) squarely applies to the facts of the present case.
27. In this case the members who paid their subscriptions for the whole year of 1993 in July, October and November, 1993, though can legitimately contend that they had paid the subscription to the union of not less than 50 Ps per each of the calendar months, their membership for each of the calendar months which would remain guaranteed under the main part under Section 3(11), would be deemed to be non-existent once the provisions of the proviso and the explanation hit such membership. Therefore, while considering the question of arrears of subscription per calendar month the requirement of the provisions is entirely different. Under Section 3(11), a member would be treated to be in arrears for a calendar month if he has actually not paid his subscription within three months after the end of the calendar month in respect of which the subscription is due. It must, therefore, be held that if on facts it is found that subscription for the relevant calendar month is paid up by the member concerned even in lump sum at a later point of time i.e. after expiry of the third calendar month concerned such payment in lump sum may ensure for his continuance as a member if he so behaved and paid up subscription of not less than 50 Paise per calendar month concerned. Such member would be, however, held to be in arrears for that month. Similarly, if he is found to be in arrears for three calendar months during the concerned six months, he would cease to be a member of the Union.
28. In this case all the members who paid their subscriptions in July, October and November were in arrears not only for three calendar months but from January, 1993, before they paid their subscription and, therefore, they had ceased to be the members as contemplated under the proviso and the explanation to Section 3(11) of the Act. The Rules, do permit such ex-members to rejoin the Union upon clearing the arrears. However, keeping in view the proviso and the explanation to Section 3(11) such rejoining cannot, under any circumstances, be with retrospective effect nor can such person be treated as a valid or proper member for the period prior to such rejoining. Merely because the employees in arrears for upto three months do not cease to be members, it does not in any manner imply that a person who has ceased to be a member much prior to the date of payment of subscription would automatically be entitled to three months of retrospective membership from the date of payment. In our opinion, it is only a valid member who falls in arrears for one or two or maximum three months does not cease to be a member in view of the deeming fiction in the proviso and the explanation to Section 3(11). But this does not mean that any person who pays his subscription after ceasing to be a member, can claim three months of retrospective effect. If that is allowed the very object of the Act would be defeated and it would lead to clearly unintended result that any union can collect retrospective membership and thereby claim to enroll persons as its members with retrospective effect. In our opinion, the union which involves in such activity has no right to be registered as recognised union who is intended to perform a very important responsibility of collective bargaining. The very object of the Act would be defeated if the safety valve and a road block provided for by enacting the proviso with the explanation to Section 3(11) is overlooked or not strictly observed while dealing with the application under Section 11 and even under Sections 13 and 14 of the Act for that matter. In the instant case, those who rejoined the respondent-union in July 1993, could at the most be treated as the members for the whole of six calendar months.
29. We have no doubt that the members who paid their subscriptions in October for the whole year of 1993 had ceased to be the members since they were in arrears for more than three calendar months between January and September, 1993 and, therefore, even if they had paid subscription for the whole year they could at the most claim that they rejoined the union as provided under the Rules. But in any case their membership cannot be taken into consideration for the purpose of deciding the application of the respondent-union under Section 11 of the Act. The members who paid their subscription in October cannot be said to be the members of the respondent-union to constitute 30 per cent of the total number of employees employed in the Undertaking of respondent no.2 - company as provided for under Section 11 of the Act. Rule 3 and Rule 5 would not help the members who paid their subscription in October to legitimately contend that they were not in arrears and their membership had remained intact. In our opinion, their membership was liable to be displaced inasmuch as it was hit by the proviso and the explanation to Section 3(11) of the Act. Under the circumstances the petition succeeds and must be allowed in terms of the prayer Clause (a) of the petition. Order accordingly.
30. Before we conclude it would not be out of place to make reference to Section 13, 14 and 15 of the Act. All the three Sections have created a machinery for cancellation of recognition, suspension of rights, recognition of other union and re-recognition. The provisions contained in these Sections confer rights and opportunities to the union to approach the Industrial Court either for cancellation of recognition or for suspension of the rights or for recognition of other union and even for re-recognition of the union. They also provides the time frame within which such applications, if made, should be disposed of by the Industrial Court. The employees in this case were deprived of their right to have a recognised union in the factory of respondent-company since 1998. Neither the petitioner nor the respondent-union seems to have made any serious efforts to get this petition disposed of expeditiously nor did the petitioner-union made any attempt either independently or by applying to this Court seeking permission, pending this petition, for exercising the rights guaranteed under Sections 13 and 14 of the Act. In the circumstances, we observe, that it is open for the respondent-union and the petitioner-union to apply afresh for recognition. If both or either of them make such an application, the same may be considered on merits in accordance with law. It is needless to express that the claim of either of the unions for being registered as recognised union be considered on the basis of the facts and figures prevailing on the date of such application.
31. Before parting with this case we must note down the preliminary objections taken by Mr.Deshmukh on the maintainability of this petition. He urged that this petition cannot be entertained by us and it ought not to have been admitted at the first place. By referring to the scheme of Section 13 of the Act Mr.Deshmukh submitted that the remedy to challenge the decision of the Industrial Court in allowing the application was before the very same court itself and when such alternative efficacious remedy was available it was not appropriate for this Court to entertain the petition under Article 226 and 227 of the Constitution. We do not agree with this submission. The Industrial Court had taken a view that the members who rejoined in the month of October and November 1993, by paying the contribution for the entire period of one year from 1st January, 1993 could be held to be valid members of the applicant-union from 1st January, 1993 itself and not from the date of their rejoining. This view taken by the Industrial Court could not, per se, make out a case that the recognition was granted under mistake, misrepresentation or fraud. The application under Section 13 of the Act for cancellation of recognition granted to the respondent-union could not have been entertained by the Industrial Court, in the facts of this case. In any case this Court had admitted the petition after hearing Mr.Deshmukh and the issue of maintainability of the petition was not left open. We, therefore, do not agree that the order of granting recognition could be sought to be challenged by filing an application under Section 13 of the Act before the very same forum which granted recognition.
32. In the result, as aforestated this petition succeeds and the Rule is made absolute in the aforesaid terms. No orders as to costs.