Thanco Bank Karmachari Sangh Vs. Thane Bharat Sahakari Bank Ltd. and ors. - Court Judgment

Excerpt:
labour and industrial - unfair labour practice - item 5 of schedule 2 to maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 - petitioner which is registered trade union alleged in petition that employer bank had refused to bargain in good faith before signing settlement with respondent which is unregistered - choice before bank was between paper representative union without any demands and without any membership and union representing absolute majority of employees on whose fault there was charter of demands for negotiation and bargain - no fault of bank if it has chosen in its best interest and in interest of customers to avoid industrial unrest - bank has not refused collective bargaining in good faith with petitioner union - petition liable to be dismissed as no unfair labour practice under item 5 on part of bank proved. - - 5 of schedule ii of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 (for short mrtu & pulp act) alleging that the said employer bank has 'refused to bargain collectively, in good faith, with the recognised union' and it did not negotiate and discuss with the petitioner union and has signed a settlement with the respondent no. the bank as well as the said union both very strongly opposed the prayers of the petitioner union for interim orders. according to the bank, the other union was effectively functioning in the bank and was representing all the employees and that not even a single employee was shown to be a member of the petitioner union. he has also considered the interim relief on the touchstone of a strong prima facie case as well as the balance of convenience. according to him, the petitioner union had zero membership and the bank and the other union had very cordial and good relations resulting into maintenance of industrial peace and there were no problems of any nature faced by the management or the employees. 5. to refuse to bargain collectively, in good faith, with the 'recognised union'.(emphasis is given by me) as per section 3(13) of this enactment the recognised union is defined as 'a recognised union which has been issued a certificate of recognition under chapter iii of the act. refusal to bargain collectively, in good faith must be with the recognised union and not with any other union. if the legislature had intended to do so it could have clearly said so for the whole chapter iii or whole of the act. it is not at all necessary for the representative union to invoke the provisions of the mrtu & pulp act as it can very well and very effectively function with the very well defined boundaries of the b. act which has to be satisfied with the status of 'the other union' or 'an unrecognised union''under the act. it however, cannot complain of the unfair labour practice under item 5 of the schedule ii of the mrtu & pulp act it is not a recognised union under this act. in the present case there were no demands from the petitioner union submitted collectively, and therefore, there was no question of 'refusal to bargain collectively with the recognised union'.if the employer refused 'to bargain collectively in good faith, with the recognised union' it will amount to an unfair labour practice. it could have taken the matter in conciliation and for adjudication after failure of conciliation if the petitioner union were to be really interested in the welfare of the employees of the bank. this conduct on the part of the petitioner union also very clearly demonstrates the cavalier attitude towards the employees of the bank whom it is claiming very loudly to represent on the paper strength of its being a representative union for the whole industry. i do not find any fault with the bank if it has chosen in its best interest and in the interest of the customers to avoid industrial unrest and disturbance by bargaining collectively with the union de facto recognised and accepted by the employees who have accepted the benefits under the settlement with the other union with which they are happy. the bank has not refused to bargain collectively, in good faith, with the petitioner union. act to the representative union are well settled. act cannot claim and enjoy per se or automatically the rights and status of a recognised union under the mrtu & pulp act which gets a certificate of recognition under chapter iii of the said act.orderr.j. kochar, j. 1. the petitioner is a trade union, registered under the trade unions act, 1926, and is also registered as the representative union under the bombay industrial relations act, 1946, for the co-operative banking industry in the local area of thane municipal limits. the respondent no. 1 is the concern or the undertaking against which the petitioner has filed the present complaint of unfair labour practice under item no. 5 of schedule ii of the maharashtra recognition of trade unions and prevention of unfair labour practices act, 1971 (for short mrtu & pulp act) alleging that the said employer bank has 'refused to bargain collectively, in good faith, with the recognised union' and it did not negotiate and discuss with the petitioner union and has signed a settlement with the respondent no. 2 which is a union neither registered as a representative union in the local area as contemplated by the bombay industrial relations act, 1946 (for short b.i.r. act) nor as a recognised union under the mrtu and pulp act. the respondent no. 1 bank is governed by the provisions of the b.i.r. act.2. it was the case of the petitioner union, in nutshell, that the petitioner union being a representative union was the exclusive bargaining agent of the employees in the industry under the law, and therefore, the respondent no. 1 bank had no right to bargain, negotiate or discuss with any other union. the petitioner union had sent a letter to the respondent-bank on december 14, 2001 pointing out that the bank was discussing the issue of the charter of demands with the respondent no. 2 union which is not a representative union. the petitioner requested the bank not to discuss the said issue with any other union/individual or group of individuals or office bearers of any other union. it appears that the bank did not heed the request or warning of the petitioner union and continued to bargain or negotiate and discuss with the said other union. according to the petitioner, it was not invited by the respondent bank to discuss the charter of demands of the employees and therefore, the bank had refused to bargain with the representative union which act according to the petitioner union amounted to an unfair labour practice under item 5 of schedule ii of the act. the petitioner union, therefore, filed the complaint of unfair labour practice against th4 bank. though the union had referred to the other items 9 and 10 of the schedule iv of the act there is neither any averment in that respect nor those items have been pressed either before the industrial court or before me. the said complaint was filed on december 24, 2001 along with an application for interim orders under section 30(2) of the act supported by an affidavit. the respondent no. 2 union was initially not impleaded as party but it got itself impleaded in the said proceedings. the bank as well as the said union both very strongly opposed the prayers of the petitioner union for interim orders. it was the case of the bank that the petitioner union had not even a single employee as the member of the petitioner union and the respondent union had 100% membership in the bank. it further stated that there were four long term settlements between them from 1980 onwards. it was also submitted on behalf of the bank that till the date of filing of the complaint the petitioner union had never raised any demand in respect of the employees of the bank. the petitioner union had never approached the bank for negotiations or discussion of any disputes concerning the employees of the bank. according to the bank, the other union had submitted a charter of demands on august 3, 2001 after expiry of the existing settlement dated march 30, 1999 which expired on march 31, 2001. both of them had negotiation and discussion in respect of the said charter of demands for amicable settlement. it was specifically pointed out by the bank that the petitioner-union as a representative union had never submitted any notice of change desiring change in the service conditions of the employees by submitting a charter of demands for revision of the wages etc. it was further pointed out by the bank that the representative union never exercised its statutory rights under the b. i. r. act, 1946 and also under the maharashtra cooperative societies act, 1960. under the latter act as per section 73-bb the representative union is entitled to depute two of its representatives on the board of directors but the petitioner union never exercised the said valuable right in favour of the employees to depute its representatives which was the exclusive statutory privilege of a representative union under the said provisions of the act. according to the bank, the other union was effectively functioning in the bank and was representing all the employees and that not even a single employee was shown to be a member of the petitioner union. the bank seriously-apprehended that if any interim orders in favour of the petitioner union were passed by the industrial court it would create stalemate in the bank and unrest amongst the employees disturbing the industrial peace. the application filed by the respondent union to be impleaded as a party was opposed by the petitioner union on the ground that once the representative union appears in any proceedings no one else can be allowed to act and appear under the provisions of the law. it appears from the record that the said other union was impleaded as a necessary and proper party in the said complaint and was also heard in the interim relief application. according to the said union, during the period of 26 years the petitioner union had never claimed any right of representing the employees of the bank and had never raised any demand on behalf of the employees, and therefore, it had absolutely no locus standi even to file the complaint on behalf of the employees, as none was its member. further, according to the union, the representative union never bothered about the welfare and interest of the employees of the bank though it might still continue to be a representative union only on paper. according to the union the complainant union neither has a moral right to represent the employees in this bank nor has it ever exercised its so-called legal right which has extinguished by non-exercise for more than a quarter of century.3. the learned member of the industrial court heard the parties at length as is reflected in the impugned order whereby he refused to grant any interim orders in favour of the petitioner union. the learned member of the industrial court has recorded and discussed the pleadings and the submissions of the parties and has given his cogent reasons in detail for its conclusions. the learned member has considered the legal issues posed before him. finally he was pleased to dismiss the application for interim relief by his 20 pages order. he has also considered the interim relief on the touchstone of a strong prima facie case as well as the balance of convenience.4. initially shri chaubal the learned counsel for the petitioner union has made valiant efforts to try to convince me about his point of view in his challenge to the impugned order. on the next date the petitioner union was represented by shri j.p. cama, the senior advocate and he was instructed by shri chaubal. i have heard shri cama for the petitioner union. shri jalisatgi for respondent bank and shri mohite for the other union. all the three learned advocates have repeated and reiterated the submissions made before the learned member of the industrial court. according to shri cama, it was the exclusive right of the petitioner as a representative union to represent the employees of the co-operative banking industry in the local area, irrespective of the fact whether they were its members or not. he admitted that there was not even a single soul from the bank employees as a member of petitioner- representative union. according to shri cama, the fact of membership is irrelevant as it has exclusive right under the provisions of the bir act, 1946 to act and appear in any proceedings to the exclusion of all others. there is no place for any other union and even an individual employee to act and appear in any proceedings where the representative union enters its appearance. shri cama further candidly admitted the fact that in the past it had not submitted any charter of demands or any notice of change and it might not have represented them at any time after its registration as a representative union for the industry in the local area, but according to the learned counsel the said past record of his client was irrelevant. the learned counsel described his filing of the complaint as waking up from the slumber to claim to represent the employees of the bank as a representative union under the b.i.r. act. shri cama strongly canvassed that it continued to be a representative union and it has exclusive statutory right to represent the employees whether they were the members of the union or not. according to the learned counsel, it is a fact that the petitioner union had never submitted any charter of demands before filing of the present complaint and before addressing the letter dated december 19, 2001 requesting the bank not to discuss with the other union as petitioner union was the only sole bargaining agent under the b.i.r. act. it is a fact that there was no charter of demands nor was there any notice of change in respect of the service conditions of the employees of the bank under section 42(2) of the act. according to shri cama, even then the bank and the other union cannot negotiate and discuss the charter of demands submitted by the other union. the bank did not negotiate and bargain with the petitioner union as the representative union. according to the learned counsel, this conduct on the part of the bank squarely attracted item no. 5 of schedule ii of the mrtu & pulp act. according to him, it was an act of unfair labour practice under item 5 refusing to negotiate, discuss, bargain with the representative union.5. on the other hand shri jalisatgi, the learned advocate for the bank has repeated and reiterated his submissions as reflected in the impugned order of the learned member of the industrial court. according to him, the petitioner union had zero membership and the bank and the other union had very cordial and good relations resulting into maintenance of industrial peace and there were no problems of any nature faced by the management or the employees. the petitioner union never submitted any charter of demands and therefore, there was no question of negotiating, discussing or bargaining for any matter with the petitioner union. there are no lack of bona fides on the part of the bank, says the learned advocate. he further points out that the current settlement has already been signed and all the employees have accepted the benefits under the said settlement. any adverse order would disturb the industrial peace and would create a stalemate and unrest in the bank, says shri jalisatgi. shri mohite, the learned advocate for the other union has also supported the decision of the industrial court on the very same grounds. according to him, the petitioner union did not exist at all in the respondent bank.6. let us examine the grievance of the petitioner union in the present complaint before the industrial court. the petitioner union has invoked item 5 of schedule ii of the mrtu and pulp act. the said item reads as under:5. to refuse to bargain collectively, in good faith, with the 'recognised union'. (emphasis is given by me)as per section 3(13) of this enactment the recognised union is defined as 'a recognised union which has been issued a certificate of recognition under chapter iii of the act.' by section 10(2) chapter iii of the mrtu & pulp act is not made applicable to the undertakings in the industries to which the bir act applies. the mrtu and pulp act is made applicable to all such industries which are governed or not governed by the b.i.r. act, ,1946. the petitioner union has invoked item 5 of schedule ii of the act in its capacity as the representative union under the b.i.r. act. the consequences provided under the mrtu and pulp act are penal and therefore, the provisions are to be construed very strictly, cautiously and carefully. whether the bank has engaged in the alleged unfair labour practice under item 5 of schedule ii of the act is the crucial issue to be answered in this petition. refusal to bargain collectively, in good faith must be with the recognised union and not with any other union. admittedly the co-operative banking industry is governed by the b.i.r. act for which the petitioner is registered as a representative union for the local area of thane. under section 10(2) of the m.r.t.u. and p.u.l.p. act the provisions of the chapter iii, recognition of unions are not made applicable to the industries to which the b.i.r. act applies. the petitioner union has not been and cannot be registered as 'a recognised union' for the undertaking of the bank under the mrtu & pulp act. the petitioner union though it is a representative union under the b.i.r. act, it is obviously and certainly not a recognised union under chapter iii of the mrtu & pulp act which is not applicable to the co-operative banking industry. the petitioner union, therefore, cannot claim the status of the recognised union under the mrtu & pulp act. there is no provision in chapter iii of the act which would automatically accept and treat the representative union under the b.i.r. act to be a recognised union under the mrtu & pulp act. it is significant to note that that appears to have not been the legislative intention to confer on the representative union the status of recognised union. section 23 in chapter iv specifically provides in its explanation that for the purpose of that section 'recognised union' included a representative union under the bir. act. if the legislature had intended to do so it could have clearly said so for the whole chapter iii or whole of the act. but the legislature has not done so as it did not intend to enact or create parallel legislation to the b.i.r. act which is a self contained code providing for every contingency arising in the course of industrial relations between the employer and his employees represented by the representative of employees or the representative union. the legislature did not intend the representative union to act outside the said enactment. it is not at all necessary for the representative union to invoke the provisions of the mrtu & pulp act as it can very well and very effectively function with the very well defined boundaries of the b. i. r. act, that has vested in it all the powers of a sole bargaining agent of the employees. the legislature has amended the industrial disputes act, 1947 by incorporating the provisions of the mrtu & pulp act at the appropriate places as indicated in a special schedule engrafted as schedule-i in the act. no such amendment is incorporated in the b.i.r. act. except under section 23 there is no where in the act the representative union is included within the definition of the recognised union and it is further pertinent to note that it is restricted only for the said section and not for the whole act or even the chapters iii and iv. in the scheme of the mrtu and pulp act, it is the only recognised union which enjoys the status of the sole bargaining agent of the employees in the undertaking and none else including the representative union under the b.i.r. act which has to be satisfied with the status of 'the other union' or 'an unrecognised union'' under the act. it cannot be equated with the position and status of the recognised union certified by the industrial court statutorily under the provisions of the act. the conclusion therefore is inescapable that the bank has not engaged in any unfair labour practice under item 5 of the schedule ii of the act by not bargaining collectively with the petitioner union which is not a recognised union for the undertaking of the respondent bank. the petitioner union, of course, is empowered and entitled to invoke the provisions of the b.i.r. act as a representative union for the co-operative banking industry in the local area of thane. it however, cannot complain of the unfair labour practice under item 5 of the schedule ii of the mrtu & pulp act it is not a recognised union under this act. there is no automatic conferment of the status of recognised union for an undertaking on the representative union of the whole industry. it can no doubt exercise its exclusive rights under the b.i.r. act but it cannot claim to be a recognised union for the undertaking of the respondent bank. it therefore, cannot insist as a matter of right under the mrtu & pulp act as a recognised union that the bank must bargain or negotiate or discuss with it collectively and that the bank does not bargain or refuse to bargain it would be guilty of unfair labour practice under item 5 of schedule ii of the act. it is therefore, crystal clear that in the present case the respondent bank has not engaged in the alleged unfair labour practice under item 5 of the schedule ii of the act as the petitioner union is not registered as the recognised union under chapter iii of the mrtu and pulp act and it does not possess such a certificate issued by the industrial court under the said chapter iii.7. probing further in the matter, the admitted facts are that the petitioner union had not submitted any notice of change under section 42 of the b.i.r. act desiring any change in the items of any schedule of the act relating to the service conditions etc. of the employees. it has not submitted any charter of demands before writing its letter for the first time on december 19, 2001 requesting the bank not to discuss, negotiate with the other union and to negotiate and discuss with the petitioner-union alone. it is elementary to understand that negotiations/discussion are on the demands submitted by the union and not in vacuum. if any change is desired in the service conditions of the employees a notice of change is provided for under section 42 of the act by the employer or the representative union or an employee under certain circumstances. in the present case except sending the aforesaid letter there was no notice of change or no charter of demands submitted by the petitioner union so that the bank could be called upon to negotiate or discuss the said demands with the petitioner union. the tone and tune of the letter was a warning to the bank not to discuss with the other union or to face the risk of legal consequences. the bank has not replied the said letter. the bank has not refused to negotiate or discuss with the petitioner union at any point of time in respect of any notice of change or any charter of demands. it therefore, cannot be accused of engaging in any unfair labour practice as contemplated by item 5 of schedule ii of the said act. the bank has obviously and naturally kept quiet and has not given any reply to the said letter addressed by the petitioner union. such silence on the part of the bank cannot be taken as refusal to negotiate, discuss or bargain with the petitioner union, as there was no specific demand put forward by the petitioner union for which any bargaining point could arise, therefore, there is neither a positive refusal on the part of the bank to bargain collectively with the petitioner union as there was nothing to bargain collectively before the bank. even assuming that silence on the part of the bank amounted to refusal we again come to the same square. had there been a specific demand from the petitioner union and if the bank had kept quiet over such demands in that case it could perhaps be construed as refusal to bargain collectively with the petitioner-representative union. in the present case the petitioner union had merely sounded the bank not to negotiate with any other union and to always negotiate with it as the representative union. in my opinion, therefore, it cannot be said that the bank had ever refused to bargain collectively with the petitioner union as there was no charter of demands nor was there any notice of change under the provisions of the b.i.r. act. in common parlance the bargaining is for the purpose of settling the terms of give and take or perform and receive in any transaction. in the present case there was nothing before the bank to agree to give and take to the petitioner union as there was no specific demand or submission by the petitioner union. in the absence of any demands there is no occasion for the parties to carry on a bargain. the next adverb used by the legislature in the item is 'collectively'. it is, 'to bargain collectively with the recognised union'. to bargain collectively is always understood as to negotiate with the employer for the demands of the employees collectively. in the present case there were no demands from the petitioner union submitted collectively, and therefore, there was no question of 'refusal to bargain collectively with the recognised union'. if the employer refused 'to bargain collectively in good faith, with the recognised union' it will amount to an unfair labour practice. in the present case the bank has not refused to bargain collectively with the recognised union as there was no collective or any demand for negotiations by the petitioner union which is certainly not a recognised union. the bank has also considered that the petitioner had absolutely no membership from amongst its employees, secondly the petitioner union had never acted in the past at any point of time during last 26 years and had never represented the employees of the bank. there was total lull and silence on the part of the petitioner union for such a long period giving a correct impression to any reasonable man that the petitioner union was not at all interested in the affairs of the employees qua the bank. and the petitioner union had not ^submitted any charter of demands before sending the aforesaid letter dated december 19, 2001. it has never submitted any notice of change and has never taken the same to a logical legal consequences as provided under the act. in these circumstances if the bank continued its negotiation with the other union and did not respond to the letter of the petitioner union it cannot be said that it had engaged in any unfair labour practice as contemplated under item 5 of schedule ii of the act. besides, it being an admitted fact that the petitioner union had a zero membership in the undertaking of the bank during the preceding many many years, it cannot be said by any stretch of imagination that it is eligible and qualified to be registered as recognised union under chapter iii of the act. it is neither de jure nor de facto eligible to be a recognised union under the mrtu & pulp act capable to invoke the item 5 of schedule ii of the said act.8. it is further significant to note that the petitioner union has submitted a charter of demands on january 1, 2002 and thereafter also the petitioner union has not taken any steps to pursue its charter of demands in accordance with law. it could have taken the matter in conciliation and for adjudication after failure of conciliation if the petitioner union were to be really interested in the welfare of the employees of the bank. this conduct on the part of the petitioner union also very clearly demonstrates the cavalier attitude towards the employees of the bank whom it is claiming very loudly to represent on the paper strength of its being a representative union for the whole industry. the choice before the bank was between a paper representative union without any demands and without any membership and a union representing the absolute majority of the employees on whose behalf there was a charter of demands for negotiation and bargain. i do not find any fault with the bank if it has chosen in its best interest and in the interest of the customers to avoid industrial unrest and disturbance by bargaining collectively with the union de facto recognised and accepted by the employees who have accepted the benefits under the settlement with the other union with which they are happy. the bank has not refused to bargain collectively, in good faith, with the petitioner union. and hence there is no unfair labour practice under item 5 of schedule ii of the act on the part of the bank. further, it is significant to note that about 12 years back, the president of the petitioner union had given no objection to the bank for signing a settlement with the other union and accordingly both of them continued to negotiate and sign settlements in the interest of the employees and the petitioner union had adopted a pragmatic approach to acquiesce with the situation.9. shri cama has cited the following two judgments in support of his contention on the point of rights of recognised/representative union:1. shramik utkarsha sabha v. raymond woollen mills ltd. and ors., 1995 iii llj (supp) 263. 2. bank karmachari satigh v. k.r. pawar, member, industrial court, puna and ors., : (1996)illj955bom . there is absolutely no quarrel over the legal position settled by the aforesaid judgments. the facts and the legal position that has emerged in the present case is wholly different. i have therefore not burdened this judgment by discussing the said two judgments cited before me. the rights of and the highest status accorded by the b.i.r. act to the representative union are well settled. same is the case in respect of the recognised union under the mrtu & pulp act. however, a representative union under the b.i.r. act cannot claim and enjoy per se or automatically the rights and status of a recognised union under the mrtu & pulp act which gets a certificate of recognition under chapter iii of the said act. both have their own exclusive unique status but within their respective enactments. both must confine their privileges and functioning within their own regulated spheres.10. in the aforesaid circumstances i do not find any fault with the impugned order of the learned member of the industrial court. there is absolutely no illegality and infirmity in the said order. there is absolutely no substance in the petition and the same is dismissed with no order as to costs.

Judgment:
ORDER

R.J. Kochar, J.

1. The petitioner is a Trade Union, registered under the Trade Unions Act, 1926, and is also registered as the Representative Union under the Bombay Industrial Relations Act, 1946, for the Co-operative Banking Industry in the local area of Thane Municipal limits. The Respondent No. 1 is the concern or the undertaking against which the Petitioner has filed the present Complaint of unfair labour practice under Item No. 5 of Schedule II of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act) alleging that the said employer bank has 'refused to bargain collectively, in good faith, with the recognised union' and it did not negotiate and discuss with the Petitioner Union and has signed a settlement with the Respondent No. 2 which is a Union neither registered as a representative Union in the local area as contemplated by the Bombay Industrial Relations Act, 1946 (for short B.I.R. Act) nor as a Recognised Union under the MRTU and PULP Act. The Respondent No. 1 Bank is governed by the provisions of the B.I.R. Act.

2. It was the case of the Petitioner Union, in nutshell, that the Petitioner Union being a Representative Union was the exclusive bargaining agent of the employees in the industry under the law, and therefore, the Respondent No. 1 Bank had no right to bargain, negotiate or discuss with any other Union. The Petitioner Union had sent a letter to the Respondent-Bank on December 14, 2001 pointing out that the Bank was discussing the issue of the Charter of Demands with the Respondent No. 2 Union which is not a representative Union. The petitioner requested the Bank not to discuss the said issue with any other Union/individual or group of individuals or office bearers of any other union. It appears that the Bank did not heed the request or warning of the Petitioner Union and continued to bargain or negotiate and discuss with the said other Union. According to the Petitioner, it was not invited by the Respondent Bank to discuss the Charter of Demands of the employees and therefore, the Bank had refused to bargain with the representative Union which act according to the Petitioner Union amounted to an unfair labour practice under Item 5 of Schedule II of the Act. The Petitioner Union, therefore, filed the complaint of unfair labour practice against th4 Bank. Though the Union had referred to the other Items 9 and 10 of the Schedule IV of the Act there is neither any averment in that respect nor those items have been pressed either before the Industrial Court or before me. The said complaint was filed on December 24, 2001 along with an application for interim orders under Section 30(2) of the Act supported by an affidavit. The Respondent No. 2 Union was initially not impleaded as party but it got itself impleaded in the said proceedings. The Bank as well as the said Union both very strongly opposed the prayers of the Petitioner Union for interim orders. It was the case of the Bank that the Petitioner Union had not even a single employee as the member of the Petitioner Union and the Respondent Union had 100% membership in the Bank. It further stated that there were four long term settlements between them from 1980 onwards. It was also submitted on behalf of the Bank that till the date of filing of the complaint the Petitioner Union had never raised any demand in respect of the employees of the Bank. The Petitioner Union had never approached the Bank for negotiations or discussion of any disputes concerning the employees of the Bank. According to the Bank, the other Union had submitted a Charter of Demands on August 3, 2001 after expiry of the existing settlement dated March 30, 1999 which expired on March 31, 2001. Both of them had negotiation and discussion in respect of the said Charter of Demands for amicable settlement. It was specifically pointed out by the Bank that the Petitioner-Union as a representative Union had never submitted any notice of change desiring change in the service conditions of the employees by submitting a Charter of Demands for revision of the wages etc. It was further pointed out by the Bank that the representative Union never exercised its statutory rights under the B. I. R. Act, 1946 and also under the Maharashtra Cooperative Societies Act, 1960. Under the latter Act as per Section 73-BB the representative Union is entitled to depute two of its representatives on the Board of Directors but the Petitioner Union never exercised the said valuable right in favour of the employees to depute its representatives which was the exclusive statutory privilege of a representative union under the said provisions of the Act. According to the Bank, the other Union was effectively functioning in the Bank and was representing all the employees and that not even a single employee was shown to be a member of the Petitioner Union. The Bank seriously-apprehended that if any interim orders in favour of the Petitioner Union were passed by the Industrial Court it would create stalemate in the Bank and unrest amongst the employees disturbing the industrial peace. The application filed by the Respondent Union to be impleaded as a party was opposed by the Petitioner Union on the ground that once the representative Union appears in any proceedings no one else can be allowed to act and appear under the provisions of the law. It appears from the record that the said other Union was impleaded as a necessary and proper party in the said complaint and was also heard in the interim relief application. According to the said Union, during the period of 26 years the Petitioner Union had never claimed any right of representing the employees of the Bank and had never raised any demand on behalf of the employees, and therefore, it had absolutely no locus standi even to file the complaint on behalf of the employees, as none was its member. Further, according to the Union, the representative Union never bothered about the welfare and interest of the employees of the Bank though it might still continue to be a representative Union only on paper. According to the Union the Complainant Union neither has a moral right to represent the employees in this Bank nor has it ever exercised its so-called legal right which has extinguished by non-exercise for more than a quarter of century.

3. The learned Member of the Industrial Court heard the parties at length as is reflected in the impugned order whereby he refused to grant any interim orders in favour of the Petitioner Union. The learned Member of the Industrial Court has recorded and discussed the pleadings and the submissions of the parties and has given his cogent reasons in detail for its conclusions. The learned Member has considered the legal issues posed before him. Finally he was pleased to dismiss the application for interim relief by his 20 pages order. He has also considered the interim relief on the touchstone of a strong prima facie case as well as the balance of convenience.

4. Initially Shri Chaubal the learned counsel for the Petitioner Union has made valiant efforts to try to convince me about his point of view in his challenge to the impugned order. On the next date the Petitioner Union was represented by Shri J.P. Cama, the senior advocate and he was instructed by Shri Chaubal. I have heard Shri Cama for the Petitioner Union. Shri Jalisatgi for Respondent Bank and Shri Mohite for the other Union. All the three learned advocates have repeated and reiterated the submissions made before the learned Member of the Industrial Court. According to Shri Cama, it was the exclusive right of the Petitioner as a representative Union to represent the employees of the Co-operative Banking Industry in the local area, irrespective of the fact whether they were its members or not. He admitted that there was not even a single soul from the Bank employees as a member of Petitioner- representative Union. According to Shri Cama, the fact of membership is irrelevant as it has exclusive right under the provisions of the BIR Act, 1946 to act and appear in any proceedings to the exclusion of all others. There is no place for any other Union and even an individual employee to act and appear in any proceedings where the representative Union enters its appearance. Shri Cama further candidly admitted the fact that in the past it had not submitted any Charter of Demands or any notice of change and it might not have represented them at any time after its registration as a representative Union for the industry in the local area, but according to the learned counsel the said past record of his client was irrelevant. The learned counsel described his filing of the complaint as waking up from the slumber to claim to represent the employees of the Bank as a representative Union under the B.I.R. Act. Shri Cama strongly canvassed that it continued to be a representative Union and it has exclusive statutory right to represent the employees whether they were the members of the Union or not. According to the learned counsel, it is a fact that the Petitioner Union had never submitted any Charter of Demands before filing of the present complaint and before addressing the letter dated December 19, 2001 requesting the Bank not to discuss with the other Union as Petitioner Union was the only sole bargaining agent under the B.I.R. Act. It is a fact that there was no Charter of Demands nor was there any notice of change in respect of the service conditions of the employees of the Bank under Section 42(2) of the Act. According to Shri Cama, even then the Bank and the other Union cannot negotiate and discuss the Charter of demands submitted by the other Union. The Bank did not negotiate and bargain with the Petitioner Union as the Representative Union. According to the learned counsel, this conduct on the part of the Bank squarely attracted Item No. 5 of Schedule II of the MRTU & PULP Act. According to him, it was an act of unfair labour practice under Item 5 refusing to negotiate, discuss, bargain with the representative Union.

5. On the other hand Shri Jalisatgi, the learned advocate for the Bank has repeated and reiterated his submissions as reflected in the impugned Order of the learned Member of the Industrial Court. According to him, the Petitioner Union had zero membership and the Bank and the other Union had very cordial and good relations resulting into maintenance of industrial peace and there were no problems of any nature faced by the management or the employees. The Petitioner Union never submitted any Charter of Demands and therefore, there was no question of negotiating, discussing or bargaining for any matter with the Petitioner Union. There are no lack of bona fides on the part of the Bank, says the learned advocate. He further points out that the current settlement has already been signed and all the employees have accepted the benefits under the said settlement. Any adverse order would disturb the industrial peace and would create a stalemate and unrest in the Bank, says Shri Jalisatgi. Shri Mohite, the learned advocate for the other Union has also supported the decision of the Industrial Court on the very same grounds. According to him, the Petitioner Union did not exist at all in the Respondent Bank.

6. Let us examine the grievance of the Petitioner Union in the present complaint before the Industrial Court. The petitioner Union has invoked Item 5 of Schedule II of the MRTU and PULP Act. The said Item reads as under:

5. To refuse to bargain collectively, in good faith, with the 'recognised Union'. (emphasis is given by me)

As per Section 3(13) of this enactment the Recognised Union is defined as 'a recognised Union which has been issued a certificate of recognition under Chapter III of the Act.' By Section 10(2) Chapter III of the MRTU & PULP Act is not made applicable to the undertakings in the industries to which the BIR Act applies. The MRTU and PULP Act is made applicable to all such industries which are governed or not governed by the B.I.R. Act, ,1946. The Petitioner Union has invoked Item 5 of Schedule II of the Act in its capacity as the representative Union under the B.I.R. Act. The consequences provided under the MRTU and PULP Act are penal and therefore, the provisions are to be construed very strictly, cautiously and carefully. Whether the Bank has engaged in the alleged unfair labour practice under Item 5 of Schedule II of the Act is the crucial issue to be answered in this Petition. Refusal to bargain collectively, in good faith must be with the recognised union and not with any other union. Admittedly the Co-operative Banking Industry is governed by the B.I.R. Act for which the Petitioner is registered as a Representative Union for the local area of Thane. Under Section 10(2) of the M.R.T.U. and P.U.L.P. Act the provisions of the Chapter III, Recognition of Unions are not made applicable to the industries to which the B.I.R. Act applies. The Petitioner Union has not been and cannot be registered as 'a recognised Union' for the undertaking of the Bank under the MRTU & PULP Act. The Petitioner Union though it is a representative Union under the B.I.R. Act, it is obviously and certainly not a recognised union under Chapter III of the MRTU & PULP Act which is not applicable to the Co-operative Banking Industry. The Petitioner Union, therefore, cannot claim the status of the recognised Union under the MRTU & PULP Act. There is no provision in Chapter III of the Act which would automatically accept and treat the representative Union under the B.I.R. Act to be a Recognised Union under the MRTU & PULP Act. It is significant to note that that appears to have not been the legislative intention to confer on the Representative Union the status of recognised Union. Section 23 in Chapter IV specifically provides in its explanation that for the purpose of that section 'recognised Union' included a representative Union under the BIR. Act. If the legislature had intended to do so it could have clearly said so for the whole Chapter III or whole of the Act. But the Legislature has not done so as it did not intend to enact or create parallel legislation to the B.I.R. Act which is a self contained code providing for every contingency arising in the course of industrial relations between the employer and his employees represented by the representative of employees or the representative Union. The legislature did not intend the representative Union to act outside the said enactment. It is not at all necessary for the representative Union to invoke the provisions of the MRTU & PULP Act as it can very well and very effectively function with the very well defined boundaries of the B. I. R. Act, that has vested in it all the powers of a sole bargaining agent of the employees. The Legislature has amended the Industrial Disputes Act, 1947 by incorporating the provisions of the MRTU & PULP Act at the appropriate places as indicated in a special Schedule engrafted as Schedule-I in the Act. No such amendment is incorporated in the B.I.R. Act. Except under Section 23 there is no where in the Act the representative Union is included within the definition of the recognised Union and it is further pertinent to note that it is restricted only for the said section and not for the whole Act or even the Chapters III and IV. In the scheme of the MRTU and PULP Act, it is the only recognised Union which enjoys the status of the sole bargaining agent of the employees in the undertaking and none else including the representative Union under the B.I.R. Act which has to be satisfied with the status of 'the other Union' or 'an Unrecognised union'' under the Act. It cannot be equated with the position and status of the recognised Union certified by the Industrial Court statutorily under the provisions of the Act. The conclusion therefore is inescapable that the Bank has not engaged in any unfair labour practice under Item 5 of the Schedule II of the Act by not bargaining collectively with the Petitioner Union which is not a recognised union for the undertaking of the Respondent Bank. The Petitioner Union, of course, is empowered and entitled to invoke the provisions of the B.I.R. Act as a representative Union for the Co-operative Banking Industry in the local area of Thane. It however, cannot complain of the unfair labour practice under Item 5 of the Schedule II of the MRTU & PULP Act it is not a recognised Union under this Act. There is no automatic conferment of the status of recognised union for an undertaking on the representative Union of the whole industry. It can no doubt exercise its exclusive rights under the B.I.R. Act but it cannot claim to be a recognised union for the undertaking of the Respondent Bank. It therefore, cannot insist as a matter of right under the MRTU & PULP Act as a recognised union that the Bank must bargain or negotiate or discuss with it collectively and that the Bank does not bargain or refuse to bargain it would be guilty of unfair labour practice under Item 5 of Schedule II of the Act. It is therefore, crystal clear that in the present case the Respondent Bank has not engaged in the alleged unfair labour practice under Item 5 of the Schedule II of the Act as the Petitioner Union is not registered as the recognised Union under Chapter III of the MRTU and PULP Act and it does not possess such a certificate issued by the Industrial Court under the said Chapter III.

7. Probing further in the matter, the admitted facts are that the Petitioner Union had not submitted any notice of change under Section 42 of the B.I.R. Act desiring any change in the items of any Schedule of the Act relating to the service conditions etc. of the employees. It has not submitted any Charter of Demands before writing its letter for the first time on December 19, 2001 requesting the Bank not to discuss, negotiate with the other Union and to negotiate and discuss with the Petitioner-Union alone. It is elementary to understand that negotiations/discussion are on the demands submitted by the Union and not in vacuum. If any change is desired in the service conditions of the employees a notice of change is provided for under Section 42 of the Act by the employer or the representative Union or an employee under certain circumstances. In the present case except sending the aforesaid letter there was no notice of change or no Charter of Demands submitted by the Petitioner Union so that the Bank could be called upon to negotiate or discuss the said demands with the Petitioner Union. The tone and tune of the letter was a warning to the Bank not to discuss with the other Union or to face the risk of legal consequences. The Bank has not replied the said letter. The Bank has not refused to negotiate or discuss with the Petitioner Union at any point of time in respect of any notice of change or any Charter of Demands. It therefore, cannot be accused of engaging in any unfair labour practice as contemplated by Item 5 of Schedule II of the said Act. The Bank has obviously and naturally kept quiet and has not given any reply to the said letter addressed by the Petitioner Union. Such silence on the part of the Bank cannot be taken as refusal to negotiate, discuss or bargain with the Petitioner Union, as there was no specific demand put forward by the Petitioner Union for which any bargaining point could arise, therefore, there is neither a positive refusal on the part of the Bank to bargain collectively with the Petitioner Union as there was nothing to bargain collectively before the Bank. Even assuming that silence on the part of the Bank amounted to refusal we again come to the same square. Had there been a specific demand from the Petitioner Union and if the Bank had kept quiet over such demands in that case it could perhaps be construed as refusal to bargain collectively with the Petitioner-representative Union. In the present case the Petitioner Union had merely sounded the Bank not to negotiate with any other Union and to always negotiate with it as the representative Union. In my opinion, therefore, it cannot be said that the Bank had ever refused to bargain collectively with the petitioner Union as there was no Charter of Demands nor was there any notice of change under the provisions of the B.I.R. Act. In common parlance the bargaining is for the purpose of settling the terms of give and take or perform and receive in any transaction. In the present case there was nothing before the Bank to agree to give and take to the Petitioner Union as there was no specific demand or submission by the Petitioner Union. In the absence of any demands there is no occasion for the parties to carry on a bargain. The next adverb used by the Legislature in the Item is 'collectively'. It is, 'to bargain collectively with the recognised union'. To bargain collectively is always understood as to negotiate with the employer for the demands of the employees collectively. In the present case there were no demands from the Petitioner Union submitted collectively, and therefore, there was no question of 'refusal to bargain collectively with the recognised union'. If the employer refused 'to bargain collectively in good faith, with the recognised union' it will amount to an unfair labour practice. In the present case the Bank has not refused to bargain collectively with the recognised Union as there was no collective or any demand for negotiations by the Petitioner Union which is certainly not a recognised union. The Bank has also considered that the petitioner had absolutely no membership from amongst its employees, secondly the Petitioner Union had never acted in the past at any point of time during last 26 years and had never represented the employees of the Bank. There was total lull and silence on the part of the Petitioner Union for such a long period giving a correct impression to any reasonable man that the Petitioner Union was not at all interested in the affairs of the employees qua the Bank. And the Petitioner Union had not ^submitted any Charter of Demands before sending the aforesaid letter dated December 19, 2001. It has never submitted any notice of change and has never taken the same to a logical legal consequences as provided under the Act. In these circumstances if the Bank continued its negotiation with the other Union and did not respond to the letter of the Petitioner Union it cannot be said that it had engaged in any unfair labour practice as contemplated under Item 5 of Schedule II of the Act. Besides, it being an admitted fact that the Petitioner Union had a zero membership in the undertaking of the Bank during the preceding many many years, it cannot be said by any stretch of imagination that it is eligible and qualified to be registered as recognised union under Chapter III of the Act. It is neither de jure nor de facto eligible to be a recognised union under the MRTU & PULP Act capable to invoke the Item 5 of Schedule II of the said Act.

8. It is further significant to note that the petitioner Union has submitted a Charter of Demands on January 1, 2002 and thereafter also the Petitioner Union has not taken any steps to pursue its Charter of Demands in accordance with law. It could have taken the matter in conciliation and for adjudication after failure of conciliation if the Petitioner Union were to be really interested in the welfare of the employees of the Bank. This conduct on the part of the Petitioner Union also very clearly demonstrates the cavalier attitude towards the employees of the Bank whom it is claiming very loudly to represent on the paper strength of its being a representative Union for the whole industry. The choice before the Bank was between a paper representative Union without any demands and without any membership and a union representing the absolute majority of the employees on whose behalf there was a Charter of Demands for negotiation and bargain. I do not find any fault with the Bank if it has chosen in its best interest and in the interest of the customers to avoid industrial unrest and disturbance by bargaining collectively with the Union de facto recognised and accepted by the employees who have accepted the benefits under the settlement with the other Union with which they are happy. The Bank has not refused to bargain collectively, in good faith, with the Petitioner Union. And hence there is no unfair labour practice under Item 5 of Schedule II of the Act on the part of the Bank. Further, it is significant to note that about 12 years back, the President of the Petitioner Union had given no objection to the Bank for signing a settlement with the other Union and accordingly both of them continued to negotiate and sign settlements in the interest of the employees and the Petitioner Union had adopted a pragmatic approach to acquiesce with the situation.

9. Shri Cama has cited the following two judgments in support of his contention on the point of rights of recognised/representative Union:

1. Shramik Utkarsha Sabha v. Raymond Woollen Mills Ltd. and Ors., 1995 III LLJ (Supp) 263.

2. Bank Karmachari Satigh v. K.R. Pawar, Member, Industrial Court, Puna and Ors., : (1996)ILLJ955Bom .

There is absolutely no quarrel over the legal position settled by the aforesaid Judgments. The facts and the legal position that has emerged in the present case is wholly different. I have therefore not burdened this judgment by discussing the said two judgments cited before me. The rights of and the highest status accorded by the B.I.R. Act to the Representative Union are well settled. Same is the case in respect of the Recognised Union under the MRTU & PULP Act. However, a Representative Union under the B.I.R. Act cannot claim and enjoy per se or automatically the rights and status of a Recognised Union under the MRTU & PULP Act which gets a certificate of recognition under Chapter III of the said Act. Both have their own exclusive unique status but within their respective enactments. Both must confine their privileges and functioning within their own regulated spheres.

10. In the aforesaid circumstances I do not find any fault with the impugned order of the learned Member of the Industrial Court. There is absolutely no illegality and infirmity in the said order. There is absolutely no substance in the Petition and the same is dismissed with no order as to costs.