Hindustan Lever Ltd. Vs. Hindustan Lever Employees Union - Court Judgment

Excerpt:
the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 - section 23 - employees authorised by recognised union to appear in court proceedings - to be considered as on duty - the wording 'not more than two members' in the section means 'not more than two members' per recognised union - it does not mean 'two members per case.';the wording of section 23 is clear 'not more than two members of a recognised union duly authorised by it in writing who appear or act on its behalf in any proceedings. the plain meaning which both the learned counsel have missed is the ceiling on the number of members who would appear or act on its behalf. not more than two members who could appear or act on its behalf in any proceedings, shall be deemed to be on duty on the.....orderr.j. kochar, j. 1. there appears to be a very large number of industrial disputes between the petitioner company and the recognised union, the first respondent which have given rise to equally large number of legal proceedings between both of them before the courts/tribunals under either the industrial disputes act, 1947 or the mrtu & pulp act, 1971. the recognised union has been nominating or deputing a large number of its members (employees) i.e., 2 employees to appear or act in each of the court proceedings before the labour courts, industrial courts/tribunals and the high court. the union claims to exercise its right to do so under section 23 of the mrtu & pulp act (for short pulp act). this appears to have resulted in frequent non-availability of a large number of employees on.....

Judgment:
ORDER

R.J. Kochar, J.

1. There appears to be a very large number of industrial disputes between the petitioner company and the recognised union, the first respondent which have given rise to equally large number of legal proceedings between both of them before the Courts/Tribunals under either the Industrial Disputes Act, 1947 or the MRTU & PULP Act, 1971. The recognised union has been nominating or deputing a large number of its members (employees) i.e., 2 Employees to appear or act in each of the Court proceedings before the labour Courts, Industrial Courts/Tribunals and the High Court. The union claims to exercise its right to do so under Section 23 of the MRTU & PULP Act (for short PULP Act). This appears to have resulted in frequent non-availability of a large number of employees on the shop-floor and in the offices of the petitioner. Many a times abrupt leaving of the employees to attend the Court cases without a reasonable notice or intimation to the superiors appears to have caused disruption in working of the petitioner company at various levels even at crucial periods. The unruly exercise of their right under Section 23 of the PULP Act by the Union appears to have compelled the petitioner company to regulate this right in its own way to be able to manage its routine affairs in the offices and working on the shop floors to smoothen the erratic attendance and to regularise the irregular movements of a large number of their employees. The petitioner company by its notice dated May 11, 1999 framed certain internal rules to be observed by the employees before exercising their right under Section 23 of the PULP Act.

2. Irked by the said notice the union filed a complaint before the Industrial Court, Maharashtra at Mumbai under Section 23 read with Section 30 and Items 5 and 9 of the Schedule IV of the Act, alleging that the petitioner company has engaged in an unfair labour practice by issuing such a notice which is restrictive of free exercise of its right and privilege under Section 23 of the PULP Act. According to the union the notice was a blatant breach of Section 23 of the PULP Act and was motivated to curb and curtail its legitimate trade union activities. The Union also applied for an interim order in the nature of injunction against the company from enforcing the said notice and from preventing its members to attend the Court's proceeding to appear or act under Section 23 of the PULP Act. The industrial Court heard both the parties and passed the impugned order. The industrial Court has recorded its detailed prima facie reasons to grant such an interim order in favour of the recognised union staying the implementation and execution of clause Nos. 1 to 4 of the notice dated May 11, 1999.

3. The petitioner company is aggrieved by the aforesaid interim order passed by the industrial Court and has filed the present petition to challenge its legality and validity under Article 226 of the Constitution of India. Shri P.K. Rele, the learned Counsel for the petitioner urged that though the impugned order is at interim stage, it has a strong tinge of finality and since the issue of rights under Section 23 of the PULP Act often arises in the industry, it requires to be decided finally by this Court. I do not know about any finality though, however, I agree with Shri Rele that the point in the petition often arises. Shri Naphade, the learned Counsel for the respondent recognised union, also fairly consented for final hearing of the petition at the admission stage with a rider that I should not exercise my jurisdiction under Article 226 of the Constitution at the interlocutory stage and should allow the industrial Court to decide the complaint finally on its merits. I may mention here that both the learned Counsel were equally brief and relevant though both were equally vehement in their submissions. Both have cited some judgments in support of their respective contentions but I am not referring to them in view of my own interpretation of Section 23 of the Act, which I do not find in any of the cited judgments, which were on different points though relating to the same section. I have decided the issue raised before me wholly on the basis of Section 23 of the PULP Act with the able assistance of both the learned Counsel though none had read the provision as have ventured to do. I say so with respect to both of them.

4. At the outset I must say that it is not the privilege of a trade union to organise itself at the cost of the industry. According to me trade unionism does not mean absence of work-culture or lack of work-ethics. It is an incessant fight against the exploitation and injustice with honest means based on self-sacrifice. It cannot be imagined by me how an employee can claim wages without doing his duty work. If he is employed to do certain work and if he fails to discharge his duties he will have no legal or moral right to claim wages as a matter of right within the framework of the existing legal provisions. In this view of mine I have to interpret Section 23 of the PULP Act. An unrestricted and unbridled right to get wages without working for the employer is claimed by the recognised trade union members under this section. By implication what they assert is that when they are working for their union/employees they are deemed to be working for the employer and therefore, they are entitled to claim full wages for all such days when they were not at their work place during the stipulated working hours or working shifts and when they were to attend the Court proceedings where they were 'to appear or act' for themselves or for other employees or for their trade union. It is their case that the right under Section 23 of the PULP Act is as wide or vast as to permit two employees members of the recognised union per case/proceedings in which they are required 'to appear or act' in the Court or before any authority. It means that the recognised union can depute as many as 20 employees members to attend 10 legal proceedings for the whole day and they need not return to work even after the Court work is over. This right is even stretched to the extent of attending their lawyers' office on that day if necessary and even to claim an alternative holiday if he is in the night shift and if he attends the Court proceedings or if he otherwise 'appears or acts' during the day period when he is actually not on duty, he should get a holiday for his next night shift.

5. Shri Naphade, the learned Counsel for the Respondent Union has neatly summarised his case as under :

(i) the impugned order is at an interlocutory stage and, therefore, this Court exercising its extraordinary jurisdiction under Article 226 of the Constitution of India should not interfere with the same at this stage;

(ii) The industrial Court has only taken a possible view of the dispute at an interim stage, and therefore, this Court should not entertain this petition considering the possible view of the industrial Court;

(iii) Factual situations which were pointed out by the learned Counsel for the petitioners should not be considered at this stage as the parties are yet to adduce their oral and documentary evidence;

(iv) Section 23 of the PULP Act would become unworkable if the employees who attend the Court proceedings are required to report for work after the matters are adjourned. There might be several reasons for not being able to attend the work after the Court matters are adjourned. Evidence regarding the availability and mode of transport and distance between the Courts and the factory and time at which the matters were adjourned will have to be adduced;

(v) Section 23 of the PULP Act is a self-contained and complete code and there need not be and there cannot be any other rules or regulations. The employer cannot frame any rules and regulations which would circumvent the provisions as is being done in the present case by the impugned notice dated May 11, 1999;

(vi) If there is any ambiguity in the section in that case interpretation should be to advance the remedy and to suppress the mischief;

(vii) The fact that there are 24 cases pending in different Courts indicates the mala fides of the petitioner company;

(viii) The three learned Judges of this Court have dealt with this section in different cases;

(ix) Legal rights of the employees are not to be mixed up with morality and that there is no absolute morality anywhere. The concept of morality is always to be considered in the context of the situation.

6. In the view which I am taking it is not necessary for me to deal with the concept of morality. I am however of the firm opinion that the law is based on morals and there could never be a divorce between the law and the morals. All the problems arise for want of morals and honesty. This point arose as I had expressed my view that when the employees attend the Court proceedings while on duty they should come back on duty if the Court proceedings are adjourned. At this stage itself, Shri Naphade pointed out the several difficulties in the city of Mumbai. He has however, failed to visualise a situation in the smaller cities and towns where the distance would not be a difficulty. In a small city or town if the employer has 50 employees and if there are 10 cases, according to the interpretation placed by Shri Naphade 20 employees out of 50 would leave the factory or the work place to attend the Court proceedings and if that is permitted the whole working of the factory would be paralysed, not for one or two days but for a long period till the proceedings would come to an end. According to me, therefore, the section will have to be reasonably interpreted.

7. It will be appropriate to reproduce Section 23 of the MRTU & PULP Act here:

Section 23: Employees authorized by recognised union to appear or act in certain proceedings to be considered as on duty :-'Not more than two members of a recognised union duly authorised by it in writing who appear or act On its behalf in any proceeding under the Central Act or the Bombay Act or under this Act shall be deemed to be on duty on the days on which such proceedings actually take place, and accordingly, such member or members shall, on production of a certificate from the authority of the Court before which he or they appeared or acted to the effect that he or they so appeared or acted on the days specified in the certificate, be entitled to be paid by his or their employer his or their salary and allowances which would have been payable for those days as if he or they had attended duty on those days'.

8. I agree with Shri Naphade that this section is a complete code in itself and the same is a novel and solitary provision by itself. In addition to the other rights conferred on the recognised union under this Act, Section gives this special and additional right to enable it to effectively prosecute the industrial disputes of any nature before the Courts and to attend any industrial matters before any authority. The recognised trade unions are entitled to nominate maximum two of its members to attend the Court matters and while doing so they are treated to be on duty and to be entitled to their normal wages. Such authorised nominee members have a right 'to appear or act' in any proceedings on the date such proceedings actually take place. According to Shri Naphade the Legislature intended to encourage internal leadership of Unions. He has submitted that the legislature has provided for two members to appear or act in every proceedings before the Court or the authority. According to him if there are ten proceedings the recognised union is entitled to nominate 20 members to attend the Court to appear or act in these proceedings and they are entitled to be deemed to be on duty on all such days of the proceedings and they become entitled to get their full wages for all these days when they did not attend their duty but the Court proceedings: Shri Naphade therefore concluded that the petitioner company has unduly and unreasonably tried to club, restrict and curtail the rights of the recognised union by the impugned notice and that it has no right whatsoever to scuttle their rights in the garb of regulating them by putting conditions such as taking prior permission before leaving to attend the proceedings. According to him no such permission or other conditions are contemplated under Section 23 of the PULP Act.

9. On the contrary Shri Rele, the learned Counsel for the petitioner employer company has tried to place a narrow interpretation to say that the members who attend the proceeding are not given a holiday on that day but they should report for duty after the proceedings get adjourned. According to him the legislature did not intend to give a complete holiday but to give a concession or facility to the members of a recognised union to facilitate its legitimate trade union activities. He gave stress on the fiction used in the section to the effect that such members were deemed to be on duty on the days they appear or act in any proceedings. According to him as soon as the work is over they should come back for work and not fritter away their time as if they were on a holiday. He did not agree with the submissions of Shri Naphade that such insistence would create any dispute or problem.

10. In my opinion both the learned Counsel have missed a very critical and significant point in the section. I cannot lose sight of one very important aspect that no labour legislation has ever conferred such an exceptional right to any recognised union either under the code of conduct or under any statute viz., the Industrial Disputes Act or the B.I.R. Act, 1946. It is also pertinent to note that even the committee on U.L.P. did not recommend such right to be provided in the PULP Act. This provision came to be inserted by way of an amendment during the course of the debate in the House. This provision has no sound background of recommendations of the committee and there is no philosophy underlying this Section. I am not able to ignore that the legislature has never contemplated any mandays loss in production by conferring such an extraordinary privilege to the trade unions in the past. It was always left to the trade unions to manage their own affairs at their own costs and sacrifice of the members. It is an accepted principle that a trade union cannot function at the cost of the employer nor at his mercy and also not at the cost of industrial production. At the same time the employees were not to be victimized for their legitimate trade union activities. Both were left unto themselves together and were mandated to follow the principle of coexistence in the interest of the industry and the community at large. It was for the first time such a right is conferred on the recognised unions to nominate its Court's representatives at the cost of the employer or industry. We, therefore, cannot place an extremely wide interpretation on Section 23 of the PULP Act as submitted by Shri Naphade that two members should be allowed to go off their duty to appear or act in each proceedings, i.e., two employees away from work per proceedings, on all such days till the end of the proceedings which may last even for a decade. This is not what is contemplated by Section 23 of the MRTU & PULP Act, to permit the recognised union to nominate maximum two of its members for its Court work to attend all the proceedings and at the rate of two members for every proceedings. The wording is clear 'Not more than two members of a recognised union duly authorised by it in writing who appear or act on its behalf in any proceeding... The plain meaning which both the learned Counsel have missed is the ceiling on the number of members who would appear or act on its behalf. Not more than two members who could appear or act on its behalf in any proceeding... shall be deemed to be on duty on the days... It does not contemplate any where two members for each proceedings but at the most only two members who appear or act.... in any proceeding are permitted to be deemed on duty and not more than two in any case. It does not appeal to my common sense that the Legislature would provide two agents or representatives to attend the Court proceedings per case. The sub-clause, 'Not more than two members... who appear or act...' clearly sets out the meaning that for all its Court/legal proceedings at the most/ maximum two representatives can be allowed. To place any other interpretation on this clause or even the whole section would create havoc on the shop floors of every industry where the privileged recognised union are, functioning. Agents cannot be innumerable but have to be in a very limited number depending on the magnitude of the conditions and other relevant factors. No industry can ever afford to relieve per matter two employees for days, months' or years together. Such an interpretation of Section 23 of the PULP Act would give extremely startling and shocking results. Therefore, only two representatives per union and not per matter of that union would be the reasonable and realistic interpretation which alone stares in my face. The language is very clear to me though it could have been worded in a better manner. To be very precise, the provision is that a general standing resolution is to be passed by the recognised union naming their two members employees of the company authorising them to appear or act in one and all proceedings before the Courts as the standing representatives of the recognised union. No separate or individual case-wise resolution on each occasion is necessary though however prior intimation to the company would be essential.

11. Since the Industrial Court has not interpreted the section correctly its order cannot be sustained. The respondent union is entitled to authorise and nominate only two of its members who would appear or act in all its proceedings on its behalf. It can intimate to the petitioner company any two names of its members who would appear or act on its behalf and who would be treated to be on duty when they would not be on duty but would be attending the proceedings.

12. I further hold that the aforesaid two authorised members may divide their attendance between themselves and both need not be together in one proceedings only. Two may attend separately two separate proceedings as directed by their union. It is also made clear that if they or any one of them is in night shift and if he or they are required to attend the Court proceedings during the day when they are not on duty he/they shall not be entitled to get any overtime wages or any alternative holiday on the ground that he/they attended the Court proceedings during their off hours. They must sacrifice for their trade union work and they cannot call upon their employer to sacrifice for them.

13. In the view which I have taken the impugned order is quashed and set aside. The industrial Court is directed to decide the complaint finally. The petitioner company is hereby directed to treat this order prospectively and for future and it shall not reopen the past account on the basis of this judgment. The respondent union shall also organise its affairs accordingly.

14. In the result, the petition succeeds. Rule is made absolute accordingly. No orders as to costs. Certified copy is expedited.

15. Stay of this order for six weeks is granted.