ORDER
1. Whether an employee as defined under Section 3(13) of the Bombay Industrial Relations Act, 1946 (for short BIR Act) alone would be eligible to be selected and nominated as employee-Director under the provisions of Section 73-BB of the Maharashtra Co-operative Societies Act, 1960 (for short 'the Act') is the short question which falls for determination in this petition under Articles 226 and 227 of the Constitution.
2. The first petitioner is a registered trade union. The petitioner Nos. 2 and 3 are employees of respondent No. 4 Sindhudurg District Central Co-operative Bank Ltd. The elections to the Board of Directors of the 4th respondent were held in December 1997 and the newly elected Directors assumed office from January 1, 1998. The petitioner Union nominated petitioner Nos. 2 and 3 as employee Directors on the Board of Directors of the Respondent No. 4 Bank in accordance with the provisions of Section 73-BB of the Act and communicated their names to the Election Officer as well as the Bank. The Bank, however, refused to accept the nomination made by the petitioner Union on the ground that petitioner Nos. 2 and 3 are working in the grade of Junior Officer and they are not employees within the meaning of BIR Act. The petitioners, therefore, filed a complaint of unfair labour practice being Complaint (ULP) No. 40 of 1998 before the Industrial Court, Kolhapur under Section 28 read with Items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short M.R.T.U & P.U.L.P. Act). In the said complaint the Union preferred an application for interim relief which was opposed by respondent No. 4 Bank. The respondent No. 4 Bank, inter alia, contended that petitioner Nos. 2 and 3 are working as branch managers in supervisory and managerial capacity and their basic wages exceed Rs. 1,000/- p.m. Therefore, they are not the employees within the meaning of Section 3(13) of BIR Act and as such they are not entitled to represent the employees on the Board of Directors. The application for interim relief was rejected by the Industrial Court. It is this order which is challenged in this petition.
3. Section 73 has been introduced in the statute book to implement the mandate of the Constitution under Article 43-A which lays down that the legislature shall take steps by suitable legislation or in other ways to have participation of the workers in the management of the undertaking, establishments or other organisations. Section 73-BB of the Act reads as follows:
'73-BB: Reservation of Seats for employees on committees of certain societies.
(1) On the Committee of such society or class of societies as the State Government may by general or special order, direct where the number of permanent salaried employees of the society is 25 or more-
(a) if the number of members of the committee thereof is 11 or less - one seat; and
(b) if the number of such members is 12 or more one additional seat for every 10 members over and above the first 11 members.
shall be reserved for such employees. The seats so reserved shall be filled by selection made by the recognised union or unions and where there is no union at all or where there is a dispute in relation to such issues including whether a union is recognised or not, then the seats so reserved shall be filled by an election by such employees from amongst themselves in the prescribed manner. Any person selected or elected as a member of the committee to any reserved seat shall not be entitled to be elected as an officer of such society or to vote at any election of officers.
(2) No employee who is under suspension shall be eligible for being selected or elected or for being committed as a member under Sub-section (1).
(3) Subject to the provisions of Sub-section (2) the term of a member representing the employees shall be co-terminus with the term of the committee as provided under bye-laws of the society and after every fresh election of the members of the committee a fresh selection or election, as the case may be, of a member under Sub-section (1) shall be necessary.
4. The argument of the Bank is that only employees covered by Section 3(13) of BIR Act are entitled for nomination as nominated directors. The plain language of Section 73-BB does not warrant such an interpretation. Sub-section (1) of Section 73-BB enables the State Government to make reservation for the employees on the Board of Directors where the number of permanent salaried employees of the society is 25 or more. The seats so reserved are required to be filled up by selection made by the recognised union or unions and where there is no union at all or where there is a dispute in relation to such issues including whether a union is recognised or not, then the seats so reserved shall be filled by an election by such employees from amongst themselves in the prescribed manner. Thus, it is exclusive right of the recognised union to select any of its members as approved director to represent the employees on the Board of Directors. The section clearly covers all the permanent salaried employees. If the legislature intended to confine the application of the section only to the employees as defined by BIR Act, the legislature would have made a specific provision for incorporating the definition in the section. If we accept the submission of the Bank we would be in fact rewriting Section 73-BB, altering the tenor and purport of the section, as plain language of the section does not even remotely suggest that only employees defined in Sub-section (3) of Section 13 of the BIR Act would be nominated as nominee director.
5. The interpretation suggested by the Bank would be contrary to the plain language of Section 73-BB, and would make the section totally unworkable. For example even if the establishment has got more than 25 employees, the provisions would not be attracted on the ground that some of the employees are not covered by definition of BIR Act. Again the question would arise as to which definition of the employee would be attracted as different industrial statute would apply to different establishments. If interpretation suggested by the Bank is upheld it would amount to substantially rewriting Section 73-BB. In Union of India v. Hansoli Devi : [2002]SUPP2SCR324 , the Apex Court observed:
'But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature ...'
Section 73-BB in terms provides that there shall be reservation of seats for employees on committees where the number of permanent salaried employees is 25 or more. There is nothing in the scheme of the section to suggest that only employees as defined by Section 3(13) of the BIR Act are covered by the Section. If we were to accept, the contention of the Bank we would be entering the field of legislation which we are clearly not entitled to do.
6. In the result, the impugned order of the Industrial Court dated July 9, 1990 is quashed and set aside.
7. It may be mentioned that term of the present Board of Directors has come to an end and fresh elections have been held in January, 2003. The Union has not yet forwarded the names of the nominated directors to the Bank. The petitioner union is free to nominate any of its employees from amongst the permanent salaried employees of the Bank as nominated directors.
8. Petition stands disposed of.
9. Parties to act on an ordinary copy of this order duly authenticated as true copy by the Sheristedar/P.S. of this Court.