1. The order passed by the learned single Judge of this Court on March 28, 2007 in Writ Petition No. 79 of 2007 is under challenge in this appeal. By the said order, the learned single Judge has dismissed the writ Petition filed by the Appellant in limine.
2. The Petitioner is a Union registered under the Trade Unions Act. The Respondent No. 1 is an employer dealing in dying and manufacturing of the cotton and is therefore, being textile industries as covered under the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'B.I.R. Act' for short). The Respondent No. 2 namely Rashtriya Mill Mazdoor Sangh is registered representative Union in the Textile Industries and therefore, is entitled to represent and negotiate with the problems of the employees with Respondent No. 1. The Respondent No. 1 was in difficulty. Inspite of the several measures taken by Respondent No. 1 to stand in competition, the Respondent No. 1 has incurred continuous losses and therefore, their activities as of today are not viable. After taking review of the state of affairs of Respondent No. 1. The Respondent No. 1 issued change notice under Section 42(1) of the B.I.R. Act in Form K to Respondent No. 2 namely Rashtriya Mill Mazdoor Sangh being Representative Union in the Textile Industries. After having negotiations with the Representative Union, memorandum of agreement was arrived at on September 3, 2006. The said agreement has been duly signed by the Officers of the Respondent No. 2 Union and the Executive Directors and Vice Chairman of the Respondent No. 1. It was equally signed by the General Manager, Textiles and Chief Manager, New Bleach Works. This was an agreement signed by the parties under Section 44(1) of the B.I.R. Act. It was submitted to the Registrar under the B.I.R. Act for registration. The Registrar has registered the said agreement after passing the order of November 14, 2006. The said order is under challenge in the Writ Petition No. 79 of 2007 which as stated above has been rejected by the single Judge of hits Court in limine.
3. After the agreement was submitted to the Registrar under Section 44(1), it was objected to by the present petitioner. Therefore, an enquiry was conducted by the Registrar in view of the provisions of Section 44(2) of the Act and after hearing the parties, namely the employer and Petitioner Union, the impugned order has been passed by giving reasons for every objection raised therein. Now the learned Counsel while challenging the order of the' learned single Judge for rejecting in limine the writ petition, contended that the agreement should not have been registered by the Registrar under B.I.R. Act because this agreement ultimately leads to closure of Respondent No. 1 and this agreement is capable to by-pass the provisions of the closure which is against the provisions of the law and therefore, should not have been registered. The second ground which was raised to challenge the order namely the ' findings recorded by the single Judge or this Court that once the representative Union is in the proceedings, the other unions of the employees have no locus standi is incorrect observation.
4. We do not find merit in the said submissions for the reasons given below.
Section 42 of the B.I.R. Act deals with the changes to be effected in respect of the matters stated in Schedule (1) to (3) either by the employer or by the employees. So far as present matter is concerned, Section 42 Sub-section (1) of B.I.R. Act is relevant because Respondent No. 1 Management or employer desired to have the change in respect of the matters specified in schedule II of the said Act. If we look to the agreement, the agreement specifically states that Respondent No. 1 desired to restructure, rationalise and reorganize the activities of the textile division intending to curtail and discontinue the uneconomic and unviable operations and with the said object, negotiations were entered into with the representative union. Schedule II, Item (4) provides change to be effected after following procedure under Section 42. The said item is Rationalisation or other efficiency system of work'. Equally item (1) of Schedule II deals with reduction intended to be of permanent or semi permanent character in the number of persons employed or to be employed in any occupation or process or department or departments or in a shift not due to force majeure. Item (2) of Schedule (II) provides for permanent or semi permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments. Item (4) first permits the employer to rationalise or restructure or introduce system of work which will increase efficiency and that such rationalisation etc. as an effect and in consequence of which reduction of the workers follow and therefore, Item No. (1) and (2) and (4) if read together is an aspect to be considered by the employer and representative union when they are considering as to whether the changes to be effected or not. Therefore, if we look to the agreement in question, the same deals with the problems of Item (1), (2) and (4) of schedule II and accordingly the agreement has been arrived at.
5. If as rationalisation or introduction of some other efficient system, there is requirement of the reduction of the staff, the : employer has to take recourse to Section 25(f) namely retrenchment. But as a result of the retrenchment of the workers, many times, the harmonious relations which the employer has developed with the representative union and or workers are disturbed and such disturbance ultimately may disturb the industrial peace for which the intended Act has been passed by the Legislature. Therefore, it appears that while considering this aspect of the agreement having realized that some workers will have to be removed or strength of the workers will have to be reduced, both employer and the employees have considered the scheme for voluntary retirement and has introduced in the same in the said agreement and that said agreement was entered into after hearing the parties and it has been registered by the Registrar.
6. After introduction of the scheme for voluntary retirement no doubt, factually 1835 -workers have voluntarily opted for voluntary retirement and the employer has granted and implemented the scheme in respect of those employees and ultimate result is that only 67 workers from this division have not opted for voluntary retirement scheme. The learned' counsel for the employer Mr. Singh makes a statement that for 67 workers, work will be provided and they will not be forced to opt for voluntary retirement scheme. However, it appears that taking clue from mass voluntary retirement scheme, the learned Counsel tried to develop an argument that the agreement in question has consequence of closure and therefore, the provisions of the closure should have been followed. What important to be noted is that the employer has not desired closure of the industry. The employer and the Union desired to have restructuring or reorganisation of the business of the industry and with that object hoping that some reduction of the staff will be necessary, scheme was introduced. But having found that the scheme was more attractive than to work, the workers have preferred to go for voluntary retirement schemed which was not within the imagination of the employer and employees when they entered into an agreement. Therefore, it cannot be inferred that there was intention at the inception when they entered into an agreement to close down the industry and or division and therefore, we do not find any substance in the contentions raised by the learned Counsel in so far as the first point is concerned. We also find that whatever terms and conditions which are stated in the agreement, they are in respect of the items covered under item No. (1), (2) and (4) of Schedule II and therefore, this agreement can not be said to be an agreement against the law and its registration by the Registrar can not be said to be unjustified one.
7. The second objection is in respect of the status of the appellant. Whether the appellant have right to challenge the agreement entered into by the Representative Union and registered by the Registrar under Section 42 of the Act. Under the scheme which has been provided under B.I.R. Act, it is representative union which has a right to represent the workers in the said industry. Apart from representative union, the Act also makes provision for an approved union as defined under Section 3 of Sub-section (2). It means the Union on the approved list i.e. list to be maintained by the Registrar. The procedure for registration of the Union has been provided in Chapter III. Chapter IV deals with the approved Unions. Section 25 of the said Act provides representatives and the officers of the approved union. However, that provision does not permit them to represent in the legal proceedings. Apart from that these are registered representing Unions and registered approved unions. The present union is not claiming any status either of the representing union and or an approved union. In the textile industry, the Respondent No. 2 is a registered representing Union and in that back drop of the circumstances, the Union which is simplicitor registered cannot have any locus to challenge the agreement which has been entered into with the registered representing union. Had the case being under Industrial Disputes Act, it would have been different consequences probably.
8. Since we find that on both the counts as submitted by the learned Counsel, there is no merit, we reject the appeal in limine.