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PETITIONER: BALMER LAWRIE WORKERS’ UNION, BOMBAY AND ANR

       Vs.

RESPONDENT: BALMER LAWRIE AND CO. LTD. AND ORS.

DATE OF JUDGMENT21/12/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KHALID, V. (J)

CITATION:  1985 AIR  311            1985 SCR  (2) 492  1984 SCC  Supl.  663     1984 SCALE  (2)1000  CITATOR INFO :  D          1988 SC1829  (6)

ACT:          Constitution of India, 1950, Articles 14,19 (1) (a) and (c)-Sec.  20 Maharashtra Recognition of Trade Unions and Prevention of  Unfair Labour  Practices Act  1971 conferring exclusive right  on recognised union to represent workmen in disputes-Whether ultra vires the Constitution.       Maharashtra Recognition of Trade Unions and Prevention of Unfair  Practices "Act  1971,  Sec.  20(2)  (b)-Exclusive Right conferred  on recognised union to represent workman in disputes   Constitutional validity of Art. 14 and 19 (1) (a) and (c) of the Constitution.        Industrial  Disputes Act-Settlement  between employer and recognised  union-Provision for  deduction of  15%  from gross arrears  payable Jo  all workmen  including members of unrecognised  Union-Amount  to  be  credited  to  recognised Union’s   fund-Constitutional    validity   of   -   Whether unconstitutional vis-a-vis workmen of unrecognised Union.      Payment of  Wages Act-Deduction  made  from  wages  and salary payable  to an employee-Such deduction not authorised by the  Act but by a Settlement- Consent of Parties for such deduction from wages-Validity and effect of.

HEADNOTE:      Section 19  of the  Maharashtra  Recognition  of  Trade Unions and  Prevention of  Unfair Labour  Practices Act 1971 (1971 Act, for short) provides for recognition of a union if it  complies   with  certain  conditions  specified  in  the section. Section  20 enumerates  the rights  of a recognised union. Clause  (b)  of  sub-sec.  (2)  of  s.20  confers  an exclusive right  on a  recognised union to represent workmen of an undertaking in certain disputes and makes the decision or order  made  in  such  proceedings  binding  on  all  the employees while  it denies such right to a workman to appear or act  or to  be allowed  to represent  in any  proceedings under  the   Industrial  Disputes   Act  1947  except  in  a proceeding in which the legality or propriety of an order of dismissal, discharge,  removal, retrenchment. termination of service or suspension of an employee is under consideration.       After a strike, the respondent-employer entered into a settlement in  respect of  a number  of  pending  industrial

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disputes with its union, which was recognised under the 1971 Act. Clause 17 of the Settlement provided that the 493 company shall  deduct an  amount equivalent  to 15%  of  the gross arrears  payable under the Settlement to each employee towards contribution  to the  fund of  the recognised union- The appellant,  a non-recognised  union challenged in a writ petition before  the High  Court the constitutional validity of Clause  17 of  the Settlement on the grounds, inter alia. (i)  that  Clause  17  permits  a  compulsory  exaction  not parented by  the Payment  of  Wages  Act  from  the  arrears payable to  the workmen  who are  not  the  members  of  the recognised union;  (ii) that  section 20  of the 1971 Act is unconstitutional, since  (a) it  1 unquestionably  denies to the workman  who are  not members of a recognised union, the fundamental freedom  guaranteed under  Article  19  (1)  (a) and(e) inasmuch  as it  inheres the  pernicious tendency  to compel the  Workmen to join the union which has acquired the status of  a recognised  union even  if it followed a socio- economic  or  socio-political  philosophy  contrary  to  the philosophy of non-members; (b) it denies to the unrecognised union,  the   right  to   effectively  participate   in  any proceeding  concerning   the  workmen   of   an   industrial undertaking, some of whom have formed a separate trade union and (c)  it does  not treat  all the  unions at  par as  the members of non-recognised union are compelled to be bound by the action  of the recognised union. The Single Judge of the High Court  dismissed the  writ petition  and the  same  was affirmed in  appeal to the Division Bench of the High Court. Hence this appeal.       Dismissing the appeal by the appellant, ^       HELD:  1.1. In  order to  appreciate  the  controversy between the parties a brief review of the Scheme of the 1971 Act would  be advantageous.  On  the  advent  of  industrial revolution which  aimed at  mass production  of commodities, large scale  industrial units came to be set up resulting in concentration of  workmen at  one place  under one employer. Trade  union  movement  representing  the  organised  labour developed as  an adjunct  of political party. The  organised Labour as  a vote  banks was  assiduously wooed by political parties. Every  political party  with a  view to controlling vote  banks  set  up  its  labour  wings.  Combinations  and fragmentations  of  politics]  parties  had  the  pernicious effect on trade union. Multiplicity of political parties had its spill  over in  multiplicity of  trade unions seeking to represent workmen  in an industrial undertaking or industry, as the  case may  be. The  fall out  of the  multiplicity of unions  was   inter  union  and  intra-union  rivalry  which threatened peaceful working of the industrial undertaking or the industry.  Each union,  as  the  unfortunate  experience shows, tried  to over-reach the rival by making occasionally experience and untenable demands. The emerging situation led to conflict  and confrontation  disturbing industrial  peace and harmony directly affecting production. Therefore, a need was felt  that where  there are  multiple unions  seeking to represent workmen  in an  undertaking or  in an  industry, a concept of  recognised union must be developed In fact, even amongst trade  union leaders  there was  near unanimity that the concept of recognised union as the sole bargaining agent must be developed in the larger interest of industrial peace and  harmony.  National  Commission  on  Labour  also  after unanimously and  whole-heatedly expressing  itself in favour of the concept of recognised union and it being clothed with powers of  sole bargaining  agent with exclusive right to r-

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present workmen,  addressed itself  only to  the question of the method  of  ascertaining  which  amongst  various  rival unions must be accorded the status of a recognised union and it was agreed that the union which 494 represents the  largest number  of workmen  working  in  the undertaking must acquire the status as that would be in tune with the concept of industrial democracy. [499H; 501B; 502G- H; 503A-B; D-G]       1.2.  It is  therefore clear that every one was agreed that where  there  are  multiple  unions  in  an  industrial undertaking or  an industry,  the union  having the  largest membership of the workmen must be clothed with the status of recognised union  and consequently  as the  sole  bargaining agent. The  under lining  assumption was that the recognised union  represents   all  the   workmen  in   the  industrial undertaking or  in the  industry. Thus,  the  1971  Act  was enacted  as   its  long  title  shows  to  provide  for  the recognition of  trade  unions  for  facilitating  collective bargaining for  certain undertakings,  to state their rights and obligations,  to confer  certain powers  on unrecognised unions;  to   provide  for  declaring  certain  strikes  and lockouts as  illegal strikes  and lock-outs;  to define  and provide  for   the  prevention   of  certain  unfair  labour practices; to  constitute courts  (as independent machinery) for carrying  out the  purposes of  according recognition to trade unions  and for  enforcing the  provisions relating to unfair practices etc. [504A-B; 499E-F]       1.3.  Status to  be the  sole bargaining  agent  as  a recognised union  is a  hard won  battle  and  need  not  be permitted to  be frittered  away by  a sentimental  approach that where  trade union  movement has ideological overtones, such a  provision would  compel  workmen  either  to  become members of  a union, whose socio-political philosophy is not in tune  with his  own or  suffer isolation  as such workman cannot forge  a tool  of a trade union or even if they forge one, the  employer can  ignore it  with impunity. The matter cannot be  viewed from the perspective of same ideloguis but has to  be examined  in  the  large  perspective  of  public interest of  peace and  harmony  in  the  industry,  healthy industrial  relations  and  large  national  interest  which eschews strikes,  lock  outs,  conflict  and  confrontation. [504H, 505A-B]       2.1.  Sec. 20,  sub-sec. 2  while conferring exclusive right on  the recognised  union to  represent workmen in any proceeding  under   the  Industrial   Disputes   Act,   1947 simultaneously denying  the right  to be  represented by any individual workman has taken care to retain the exception as enacted in  Sec. 2A  of the  Industrial Disputes  Act, 1947. This  legal  position  is  reiterated  in  Sec.  20(2)  (b). Therefore, while  interpreting Sec.  20(2) (b),  it must  be kept in  view  that  an  individual  workman,  who  has  his individual dispute  with the  employer arising  out  of  his dismissal, discharge, retrenchment or termination of service will not  suffer any  disadvantage if  any recognised  union would not espouse his case and he will be able to pursue his remedy under  the Industrial  Disputes Act,  1947. Once this protection is assured, the question is whether the status to represent workmen  conferred on  a recognised  union to  the exclusion of  any individual  workman or  one or two workmen and who  are not  members of the recognised onion would deny to such  workmen the  fundamental freedom  guaranteed  under Art. 19(1) (a) and 19(1) (c) of the Constitution. [506B-D]       2.2.  The restriction  on  the  right  to  appear  and participate in  a proceeding  under the  Industrial Disputes

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Act, 1947 to a workman who is not prepared to be represented by the recognised union in respect of a dispute not personal to him  alone such  as termination  of his  service does not deny him the freedom 495  of  speech  and  expression  or  to  form  an  association. Conferring the  status of  A recognised  union on  the union satisfying certain  pre-requisites which  the other union is not in a position to satisfy does not deny the right to form association [506E.F]       2.3.  Forming an  association is  entirely independent and different  from its  recognition. Recognition of a union confers rights,  duties and  obligations  Non-conferring  of such rights,  duties and  obligations on  a union other than the recognised union does not put it on an inferior position nor the  charge of  discrimination can  be entertained.  The members of  a non-recognised  association  can  fully  enjoy their fundamental  freedom of  speech and expression as also to form the association. The Legislature has, in fact, taken note of  the existing phenomenon in trade unions where there would  be   unions  claiming  to  represent  workmen  in  an undertaking or  industry other than recognised union. Sec.22 of 1971  Act confers  some  specific  rights  on  such  non- recognised unions,  one such  being the  right to  meet  and discuss with  the  employer  the  grievances  of  individual workman The Legislature has made a clear distinction between individual grievance  of a workman and an industrial dispute affecting all  or a  large number  of workmen In the case of even an unrecognised union, it enjoys the statutory right to meet and  discuss the  grievance of  individual workman with employer. It  also enjoys  the statutory right to appear and participate in  a domestic  or departmental enquiry in which itsh member is involved. this is statutory recognition of an unrecognised union. The exclusion is partial and the embargo on  such   unrecognised  union   or  individual  workman  to represent workmen  is in  the large  interest  of  industry, public interest  and national  interest.  Such  a  provision could not  be said  to be  violative of  fundamental freedom guaranteed  under   Art.  19(1)(a)   or  19(1)(c)   of   the Constitution. [506H; 507A-D]       3.  Where a  representative union  acts in exercise of the powers  conferred by  Sec 20(2) it is obligatory upon it to act  in a  manner as  not  to  discriminate  between  its members and other workmen of the undertaking who are not its members.  However   when  a   settlement  is  reached  in  a proceeding under  the Industrial  Disputes Act  in  which  a representative union has appeared, the same is to be binding on all  the workmen  of the undertaking This would mean that neither  the  representative  union  nor  the  employer  can discriminate between members of the representative union and other workmen  who  are  not  members.  Both  the  benefits, advantages, disadvantages  or liabilities  arising out  of a settlement in  any proceeding  under the Industrial Disputes Act to  which a  representative union  is a  party shall  be equally applicable  to each workman in the undertaking There shall not  be the  slightest trace of discrimination between members and  non-members both  as regards the advantages and also as  regards the  obligations and liabilities. Any other view of  Sec. 20(2)(b)  would render it unconstitutional and invalid as  being violative  of Art.  14. Equal treatment of members and  non-members is  implicit in  the section and by its interpretation this Court only makes it explicit. [511F- H; 512A-B]       (4)  It is  well known that no deduction could be made from the  wages and  salary payable to a workmen governed by

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the Payment  of Wages  Act unless  authorised by that Act. A settlement arrived  at on  consent of  parties  can  however permit a  deduction as  it is  the outcome  of understanding between the  parties even  though such  deduction may not be authorised or legally permissible under the Payment of Wages Act. [512D-E] H 496       (5)  If under  a settlement  with  the  representative union some  benefits accrue  to the workmen, and upon a true interpretation of Sec. 20(2)(b), it is held all encompassing and therefore binding on all workmen employer alike, all the benefits would  be available  to the  workmen  who  are  not members of  the representative union and who may have formed a rival  union. If these work- i men could not be denied the benefits, they  would enjoy  an unfair advantage if from the package deal  covered by  the settlement, they draw benefits and abjure  liabilities. therefore,  a clause like Clause 17 of the  Settlement has  to be  understood in  the context of strengthening the  trade union  movement and to free it from financial constraints.  Workmen who  are members  of a union may pay  fee for  membership  and  enjoy  the  advantage  or membership put  if by the action of the representative union all workmen  acquire  benefit  or  monetary  advantage,  the members and  non-members alike  can be  made to  make common sacrifice in  the large interest of trade union movement and to strengthen  the  trade  union  which  by  its  activities acquired the  benefits for  all workmen.  Payment  to  trade union fund  in these circumstances can be styled as quid pro quo for  benefits acquired.  It can  neither be  said to  be compulsory exaction  nor a  tax. Therefore, there is nothing objectionable in  Clause 17  of the Settlement which directs the employer  to deduct  15% of the gross arrears payable to each employee  under the  settlement as  contribution to the trade union funds. Thereby the workman is not subscribing to the philosophy  of rival  union but  he is merely paying the price of the advantage obtained. Another view would make the union  members   suffer  and   the  non-members  benefit,  a situation which  must at  all costs  be  avoided.  Therefore clause 17 of the Settlement would not be invalid despite the lack of  consent of  the workmen  who  are  members  of  the appellant union.  The settlement  having been  made  by  the representative union,  its right  to represent  all  workmen would imply  the consent  of the members of the rival union. This  is   the  legal   consequenee  of  the  right  of  the representative  union  to  represent  all  workmen  and  the binding effect of its action. [513G-H; 514A-E]       Reg. v. Duffield, 5, Cox’s Criminal Case, 404 referred to.       Raja  Kulkarni and  Ors. v. State of Bombay [1954] SCR 384, relied upon.       Rum  Prasad Vishwakarma  v.  The  Chairman  Industrial Tribunal, [1964] 3 SCR 196, held in-applicable.       Girja  Shankar  Kashi  Ram  v.  Gujarat  Spinning  and Weaving Mills  Ltd. [1962]  2 Supp.  SCR  890  and  Santuram Khudai v.  Kimatrai Printers  & Processors  (P) Ltd. & Ors., [1978] 2 SCR 387, distinguished.

JUDGMENT:        CIVIL  APPELLATE JURISDICTION:  Civil Appeal No. 3527 (NL) of 1984       From the Judgment and Order/decree dated July 27, 1984 of the High Court of Bombay in Appeal No. 660 of 1984. Danial Latifi,  V.S. Desai  R.S. Sodhi, K.V. Sreekumar, M.N.

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Shroff and Ms. Radha-de’ Souza for the Appellants. 497       M.K.  Ramamurthi, Mrs. Urmila Sirur, F.D Damania, A.M. A Dittia and D.N. Misra or the Respondents.       M.N. Shroff the State of Maharashtra       The Judgment of the Court was delivered by       DESAI,  J Two  unions of workmen employed in the first respondent Company  M/S Balmer  Lawrie & Co. Ltd (’employer’ for short)  are at  logger-heads and  their inter-se rivalry has thus  landed in  this  Court.  Appellant  Balmer  Lawrie Workers Union  (’non-recognised Union’ for short) filed Writ Petition No. 1518 of 1984 in the High Court of Judicature at Bombay challenging  the constitutional  validity of  Sec. 20 (2) read  with Schedule  I of the Maharashtra Recognition of Trade Union  & Prevention  of Unfair  Labour Practices  Act, 1971  (’1971   Act’  for  short).  To  this  petition,  they impleaded  the   employer  company  and  the  Balmer  Lawrie Employees Union (’Recognised Union’ for short).       Few  facts giving  rise to  the writ  petition may  be stated. A settlement was arrived at between the employer and the  recognised  Union  resolving  a  number  of  industrial disputes pending  between them.  Clause 17 of the Settlement reads as under:                  "17. Arrears will he paid within two months      from the  date of  signing of the. Settlement. Further,      the Company  shall collect  from each workman an amount      equivalent to  15% of the gross arrears payable to each      employee under  this settlement  as contribution to the      Union Fund  and this  Amount shall be paid to the Union      within 3 days of the payment of arrears by Payee’s .A/c      Cheque."       The  non-recognised union  -the appellant apprehending that if  and when settlement would be arrived at between the employer and  the recognised union, there would be the usual clause for  deduction from  amounts payable  to the  workmen under the settlement for the benefit of the recognised union Therefore the non-recognised union informed the employer not to make  any deduction  pursuant to  the settlement from the arrears payable  to the  members of the non-recognised union as and  when the  settlement is  arrived at.  Correspondence ensued between  the parties  which led  to the filing of the writ petition  No. 473 of 1984. This writ petition was moved to forestall  the settlement if any about any deduction from the payments under the settlement as and when arrived at. An undertaking was given before the 498 High Court  that the  employer  would  give  notice  of  the settlement, if  it is  finally arrived at and will implement the same  only a  week thereafter.  On this undertaking, the writ petition  was withdrawn.  Thereafter the settlement was arrived at which inter-alia included Clause No. 17 extracted hereinbefore. The  non-recognised union  filed a  fresh writ petition inter  alia contending  that  Clause  7  permits  a compulsory exaction  not permitted  by the  Payment of Wages Act from the arrears payable to the workmen by the employer, without the  consent of the workmen, who are not the members of the recognised union. It was alleged in the petition that if upon  its true  construction Sec.  20 (2) (b) of 1971 Act permits such  compulsory exaction without the consent of the workmen  concerned,   the  same   will  be  unconstitutional inasmuch as  such union  levy would  force  and  compel  the workmen against  their will  to join  the  union  which  has acquired the status of recognised union. Specific allegation was that  Sec. 20  (2) violates  the fundamental  freedom to form association  guaranteed by  Art 19  (1) (c). There were

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other incidental  grievances made  in the  petition but  the main thrust  of the  petition was against the constitutional validity of aforementioned section. The learned Single Judge dismissed the writ petition and after an unsuccessful appeal to the  Division Bench  of the  High Court  this appeal  was filed by special leave       Mr. Daniel Latifi learned counsel who appeared for the appellant assisted  by Mrs. Radha D. De’souja, the President of non-recognised  union and  also as  counsel appearing for non-recognised union  urged  that  if  Sec.  20  (2)  is  so interpreted as  to mean  that the employer or the recognised union can discriminate between the members of the recognised union and  non-members though  workmen of the same employer, the same  is violative  of Art.  14 and  if it  compels  the workmen to  join recognised union it is violative of Art. 19 (1) (a) and (c).      Sec. 20  of the  1971 Act  enumerates the rights of the recognised union. Sec. 20 (2) reads as under:               "20 (2): Where there is a recognised union for      any undertaking,-      (a)  that union  alone shall  have the right to appoint           its nominees  to represent  workmen on  the  Works           Committee  constituted  under  Section  3  of  the           Central Act:      (b)   no  employee shall be allowed to appear or act or           be Hallowed  to be  represented in any proceedings           under the 499           Central Act  (not being  a proceeding in which the           legality or  propriety of  an order  of dismissal,           discharge, removal,  retrenchment, termination  of           service or  suspension of  an  employee  is  under           consideration),  except   through  the  recognised           union; and  the decision arrived at or order made,           in such  proceeding shall  be binding  on all  the           employees in such undertaking;                and accordingly the provisions of the Central      Act, that is to say, the Industrial Disputes Act, 1947,      shall stand  amended in  the manner  and to  the extent      specified in Schedule I."       Does  Sec. 20  (2) which confers an exclusive right to represent workmen  of  any  undertaking  on  a  union  which acquires the status of a recognised union under 1971 Act and simultaneously denies  the right  to a  workman to appear or act or  to be  allowed to  represent in any proceeding under the Industrial  Disputes Act,  1947  (’lD  Act’  for  short) violate  the   fundamental  freedom   to  form   association guaranteed by Art 19 (1) (c).       The  1971 Act  was enacted  as its long title shows to provide for the recognition of trade unions for facilitating collective bargaining  for certain  undertakings,  to  state their rights  and obligations,  to confer  certain powers on unrecognised  unions;   to  provide  for  declaring  certain strikes and  lock-outs as  illegal strikes and lock-outs; to define and  provide for  the prevention  of  certain  unfair labour  practices;   to  constitute  court  (as  independent machinery)  for  carrying  out  the  purposes  of  according recognition to trade unions and for enforcing the provisions relating to  unfair practices  etc There  is in force in the State of  Maharashtra a  comprehensive  legislation,  Bombay Industrial Relations  Act, 1946  touching almost all aspects of industrial  relations but  it applies  only to  specified industries. Industries  other than  specified industries are governed by  industrial Disputes  Act, 1947. This latter act is not comprehensive in character There is no provisions for

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recognising union vis-a-vis the undertaking or the industry. Unions of  workmen employed  by undertakings not governed by Bombay Industrial  Relations Act voiced dissatisfaction over this discriminatory  treatment and  the lacuna  in the  1947 Act. To  bring the  provisions of  both the  acts on  par in certain specific  areas 1971  Act was  enacted by  the State Legislature.       A  brief review of the scheme of the 1971 Act would be advantageous. It  specifically provides  for recognition  of unions. A  conspectus of  provisions included in Chapter III headed recognition of unions 500 provide that  every undertaking  wherein 50 or more employes are employed or were employed on any day of the preceding 12 months will  be governed  by the provisions therein set out. Sec.  I   l  provides  for  making  of  an  application  for recognition  of   union.  The   eligibility  criterion   for obtaining the recognition is that the union applying for the status of  a recognised union must have for the whole of the period of  six calendar  months  immediately  preceding  the calendar  month   in  which  it  makes  the  application,  a membership of  not less  than thirty  percent of  the  total number  of   employees  employed  in  any  undertaking.  The application has  to be  made to  the Industrial Court set up under the Bombay Industrial Relations Act. On receipt of the application, the  Industrial Court  has to cause a notice to be  displaced  on  the  notice  board  of  the  undertaking, declaring its  intention to consider the said application on a date  to be specified in the notice and calling upon other union or  unions, if  any, having membership of employees in that  undertaking   and  the  employers  and  the  employees affected by  the proposal  to show cause why the recognition should  not   be  granted.  If  after  considering  all  the objections that  may have been lodged pursuant to the notice given as  hereinbefore indicated, the industrial Court comes to  the   conclusion  that   the  conditions  requisite  for registration are  satisfied and  the union complies with the conditions specified  in Sec  19, the Industrial Court shall grant recognition  to the  applicant union under the Act and issue a  certificate in the prescribed form. At any point of time, there  shall not  be more than one recognised union in respect of  the same  undertaking. Sec.  13 confers power on the Industrial Court to cancel the recognition if any of the circumstances therein set out is satisfactorily established. Sec. 14  provides for resolving the dispute inter se between the recognised  union and another union seeking recognition. The obligations  and rights  of the recognised union are set out in Secs. 19 and 20 in Chapter IV.       Mr.  Daniel Latifi,  learned counsel  urged  that  the embargo placed  by Sec.  20 (2) (b) on any workman to appear or to be represented in any proceeding under the ID Act 1947 barring those  which are  specifically excluded  save by the recognised  union   contravenes  the   fundamental   freedom guaranteed to  the citizens  under Art 19 (1) (a) and (c) of the Constitution  Art. 19 (1) (a) guarantees to the citizens fundamental freedom of speech and expression and Art. 19 (1) (c) guarantees  fundamental  freedom  to  form  association. Tersely put the question is: if a law relating to regulating industrial  relations   between  the  employer  and  workmen provides for  a sole bargaining agent such as the recognised union and  simultaneously denies  to the  individual workman the right to appear or to be represented in any 501 proceeding under  the ID  Act, 1947, would it contravene the fundamental freedoms  guaranteed by  Art. 19  (1) (a) and 19

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(1) (c) ?              History  bears a  witness to the long-drawn out unequal fight between the employer and the employed to be on terms of equality. A brief resume would be helpful.       On  the advent of industrial revolution which aimed at mass production of commodities, large scale industrial units came to  be set  up resulting in concentration of workmen at one place  under one  employer. Individual  employer has now been replaced  by  corporations  wielding  immense  economic power. To say that workmen were at the mercy of the employer is to  state the  obvious. It was even sacrilegious to think of a  right of  a workman  qua the employer Till the laissez faire ruled  the roost  the State would not interpose itself to protect  the under-privileged  and weaker  partner in the industry and  left the  workmen to  fend for themselves, the State concerning  itself only  with the  problem of  law and order when  a conflict  arose between  the employer  and the workmen. This was predicated upon an untenable if not wholly erroneous assumption  that as  the society  has  moved  from status to  contract, the  employer and  the workman would by negotiations churn  out a  contract mutually  beneficial  to both. That the parties were unevenly placed in the matter of contracting was  absolutely over  looked. The liberal albeit capitalist English society treated united refusal of work on the part  of workmen as conspiracy and as Jeremy Benthan put it "the  word conspiracy  served judges  for an  excuse  for inflicting punishment  without stint  on all persons by whom any act  was committed which did not accord with the Judges’ notion concerning the act in question." Justice Erle in Reg. v. Duffield(1) summed up to the Jury as under:               "The unlawful combination and conspiracy is to      be inferred from the conduct of the parties. If several      persons take  several steps,  all tending  towards  one      obvious purpose,  it is  for the  jury to  say  whether      these persons have not combined together to bring about      that  and   which  their  conduct  appears  adapted  to      effectuate."              English  Common Law frowned upon combination of workmen to  achieve common  object; Common  Law looked  upon combination as  criminal in  character. On  the enactment of the Trade  Unions Act,  1913 in  United Kingdom,  registered trade union acquired corporate          (1) 5, Cox’s Criminal case. 404. 502 capacity, entitled to sue and be sued in its registered name and enter  into contracts  as separate entity, separate from its members. This status acquired by the trade unions, would clothe  a   collective  agreement  arrived  at  between  the employer and the union with the semblance of legality though Common Law  for long  refused to recognise it as enforceable contract. Royal  Commission on  Trade Unions  and Employer’s Association under the Chairmanship of Lord Donovan (’Donovan Commission’ for  short) which  submitted its  report in 1968 proceeded on  the basis  that collective  bargains  are  not subject to  legal enforcement  and number  of arguments were put forth  in support  of the  proposition. Even  though the Commission in  concluding portion  of paragraph  472 of  its report observed  that "Industrywide bargaining and workshops or plant  bargaining are,  however, closely  intertwined. To enforce one without the other would be to distort the effect of our  collective system. That system is today a patch-work of formal  agreements, informal  agreements and  custom  and practice. No  Court, asked to enforce a collective agreement could  disentangle   the  agreement  from  the  inarticulate practices which  are its  background." Quest  of justice  by

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labour, victim  for long  of exploitation  of human being by impersonal juristic  persons such as corporations led to the formation of  industrial norms  by a  legislative  enactment generally styled  as labour  law. The  main object of labour law was  to be  a countervailing  force to  counter-act  the inequality of bargaining power which is inherent and must be inherent in  the employment  relations. As  stated by  Otto- Khan-Freund in  his Hamalin  lecture "this was an attempt to infuse law  into a relationship of command and obedience, in other words  in the  field where  one enjoys  the  power  to command and  other suffers  the duty  to obey. To the extent law limits  the range  of workers’  duty  of  obedience  and enlarges the  range of  its freedom, Labour Law fulfills one of its objects.’’(1)             In the context of the political society which we resolved to  set up  in the  post-independent India,  on the introduction of  universal adult suffrage by Art. 326 of the Constitution trade union movement representing the organised labour developed  as  an  adjunct  of  political  part.  The organised labour  as a  vote bank  was assiduously  wood  by political parties.  Every political  party with  a  view  to controlling vote banks set up its labour wings. Combinations and fragmentations  of political  parties had the pernicious effect on trade unions. Multipli-       (1) See Report the Labour Laws Review Committee, Govt. of Gujarat Publication 1974 Page 5. 503 city of political parties had its spill over in multiplicity of trade  unions  A  seeking  to  represent  workmen  in  an industrial undertaking  or industry, as the case may be. The fall out  of the  multiplicity of unions was inter-union and intra-union rivalry which threatened peaceful working of the industrial undertaking  or the  industry. Each union, as the unfortunate experience  shows, tried to over-reach the rival by making  occasionally exhorbitant  and untenable  demands. The emerging  situation led  to conflict  and  confrontation disturbing industrial  peace and  harmony directly affecting production In the first Five Year Plan it was observed:               "Answer to class antagonism and world conflict      will arrive  soon if  we succeed in discovering a sound      basis  for  human  relations  in  industry.  Industrial      relations are  there fore,  not a  matter  between  the      employers and  employees alone  but a  vital concern of      the community  which may  be expressed  in measures for      the protection of its larger interests."              A  need was  felt that where there are multiple unions seeking  to represent workmen in an undertaking or in an  industry,   a  concept  of  recognised,  union  must  be developed. Standing  Labour Committee  of the Union of India at its  29th Session  held in  July 1970 addressed itself to the question  of recognition of trade union by the employer. In fact  even amongst  trade union  leaders there  was  near unanimity that  the concept  of recognised  unions the  sole bargaining agent must be developed in the larger interest of industrial peace  and harmony. National Commission on Labour chaired by  late  Shri  P.B.  Gajendragadkar,  former  Chief Justice  of  India,  after  unanimously  and  wholeheartedly expressing itself  in favour  of the  concept of  recognised union and  it being  clothed with  powers of sole bargaining agent with  exclusive right  to represent workmen, addressed itself only  to the  question of  the method of ascertaining which amongst  various rival  unions must  be  accorded  the status of  a recognised  union. Planting  itself  firmly  in favour of democratic principle, it was agreed that the Union Which represents  the largest  number of  workmen working in

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the undertaking  must acquire the status as that would be in tune with  the concept of industrial democracy. The fissures arose as  to the  method of  finding out the membership. The Commission had  before it  two alternative  suggestions  for ascertaining the  membership (i)  verification of membership by registers and (ii) by secret ballot. As there was a sharp cleavage of  opinion, the  Commission left  the question  of adopting one  or the  other method  in a  given case  to the proposed Indus- 504 trial Relations  Commission which  was recommended to be set up if  the recommendations  of the  Commission  were  to  be accepted. What  is of importance to us is that every one was agreed that where there are multiple unions in an industrial undertaking or  an industry,  the union  having the  largest membership of the workmen must be clothed with the status of recognised union  and consequently  as the  sole  bargaining agent. The  underlining assumption  was that  the recognised union  represent   all  the   workmen  in   the   industrial undertaking or in the industry.       It  may  be  mentioned  in  passing  that  the  Bombay Industrial Relations  Act had  incorporated  provisions  for conferring the  status of  a recognised  union  and  despite strident criticism of the method of ascertaining membership, the system  seems to  be working  well. The Act went further and developed  the concept of approved union on which powers were conferred for making reference of an industrial dispute to the  relevant authority  for adjudication-a  power  which under  the   Central  Act  is  the  close  preserve  of  the appropriate Government. The oft-repeated grievance voiced by those opposed to the concept of recognised union entitled to represent  all   workmen  was   that  such   a  status  will concentrate so  much power  in the  hands of  the recognised union that  it can  work to  the disadvantage  of those  not becoming its  members as also those opposed to the political or social  philosophy of  the  recognised  union  and  would therefore keep  away  from  it.  The  chink  in  the  armous appeared when it was found that a workman who is questioning his termination  of service,  largely a  personal punishment and therefore  provides a  personal cause  of action but who was not  a member  of the  recognised union was sought to be thrown  out   of  the  court  by  the  representative  union appearing to get the petition dismissed on the specious plea that  it   alone  is  entitled  to  represent  workmen.  The Legislature immediately  became aware  of  the  pitfall  and remedied the  situation by  introducing Sec.  2 (A)  in  the Industrial Disputes Act, 1947 which provides that a workman, who is  dismissed, discharged  or removed  from  service  or whose service  is otherwise  terminated can  espouse his own cause without  the help of a recognised union and yet such a dispute would be an industrial dispute. This very protection is retained  in the  impugned provision  Sec.  20  (2)  (b). Status to be the sole bargaining agent as a recognised union is a  hard won  battle and  need  not  be  permitted  to  be frittered away  by a  sentimental approach  that where trade union movement  has idelogical  overtones, such  a provision would compel  workmen either  to become  members of a union, whose socio-political philosophy is not in tune with his own or suffer isolation as such workman can 505 not forge  a to 1 of A trade union or even if they form one, the employer  can ignore  it with  impunity.  Is  there  any substance either  in  the  contention  or  the  apprehension voiced ? The matter cannot be viewed from the perspective of same  ideloguis   but  has  to  be  examined  in  the  large

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perspective of  public interest  of peace and harmony in the industry, healthy  industrial relations  and large  national interest which  eschews  strikes,  lock-outs,  conflict  and confrontation.       Having briefly referred the history of the development of trade  unions, let us turn to the challenge in this case. Mr. Daniel  Latifi  contended  that  Sec  20  unquestionably denies to  the workmen  who are  not members of a recognised union the  fundamental freedom  guaranteed under Art. 19 (1) (a) and  (c). It  was urged  that the  provisions of the Act inheres the  pernicious tendency  to compel  the workmen  to join the union which has acquired the status of a recognised union even  if followed  a socio-economic or socio-political philosophy contrary  to the  philosophy of  non-members  and that  such   compulsion  denies   the  free   dom  to   form association. It  was also  submitted that  the right to form association would  be an  empty formality if the association is not  in a  position to  effectively  participate  in  any proceeding  concerning   the  workmen   of   an   industrial undertaking, some  of whom  have  formed  a  separate  trade union. It  was stated  that either  all the  unions  of  the workmen should  be treated on par or at any rate in order to safe guard  the members  of non-recognised union against the imposition of  the will  of recognised  union, they  must be free not  to be bound by the action of the recognised-union. It was  stated that  Sec. :0  (2) of the 1971 Act denies all these  safeguards   and  therefore   it  must   be  declared unconstitutional.              Before  the introduction  of Sec.  2-A  in  the Industrial Disputes  Act, 1947 the court leaned in favour of the view  that individual  dispute cannot be comprehended in the  expression  ’industrial  dispute’  as  defined  in  the Industrial Disputes  Act, 1947.  Any dispute not espoused by the union  for the  general benefit  of  all  workmen  or  a sizeable segment  of them  would not  be comprehended in the expression ’industrial  dispute’ was the courts’ view. Often an invidious situation arose out of this legal conundrum. An individual workman if punished by the employer and if he was not a  member of  the recognised  union, the latter was very reluctant to espouse the cause of such stray workman and the individual workman was without a remedy. Cases came to light where the  recognised union  by devious  means compelled the workmen to  be its  member before  it  would  espouse  their causes. The  trade union  tyranny was  taken note  of by the legis- 506 lature  and  Sec.  2-A  was  introduced  in  the  Industrial Disputes Act,  1947 by  which it  was made  distinctly clear that the discharge, dismissal retrenchment or termination of service of  the individual  workman would  be an  industrial dispute notwithstanding  that no  other workman or any union of workman  is a  party to  the dispute. Sec. 20, sub-sec. 2 while conferring  exclusive right on the recognised union to represent workmen  in any  proceeding under  the  Industrial Disputes Act,  1947 simultaneously  denying the  right to be represented by  any individual  workman has  taken  care  to retain the  exception as  enacted in  Sec. 2  A. This  legal position is  reiterated in  Sec. 20 (2) (b). Therefore while interpreting Sec. 20 (2) (b) it must be kept in view that an individual workman,  who has his individual dispute with the employer  arising   out   of   his   dismissal,   discharge, retrenchment or  termination of  service will not suffer any disadvantage if  any recognised  union would not espouse his case and  he will  be able  to pursue  his remedy  under the Industrial Disputes  Act,  1947.  Once  this  protection  is

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assured, let  us see whether the status to represent workmen conferred on  a recognised  union to  the exclusion  of  any individual workman  or one  or two  workmen and  who are not members of  the recognised  union would deny to such workmen the fundamental freedom guaranteed under Art. 19 (1) (a) and 19 (1) (c) of the Constitution.      We fail  to see  how the  restriction on  the right  to appear and  participate in a proceeding under the Industrial Disputes Act,  1947 to  a workman  who is not prepared to be represented by the recognised union ill respect of a dispute not personal to him alone such as termination of his service denies him  the freedom of‘ speech and expression or to form an association. Conferring the status of recognised union on the union  satisfying certain pre-requisites which the other union is  not in  a position  to satisfy  does not  deny the right to  form association.  in fact the appellant union has been registered  under the  Trade Unions Act and the members have formed  their association  without let  or hindrance by anyone. Not  only that  the appellant  union can communicate with the  employer, it  is  not  correct  to  say  that  the disinclination of  the workmen  to join the recognised union violates the  fundamental freedom to form association. It is equally not  correct to  say that recognition by an employer is  implicit   in  the   fundamental  freedom   to  form  an association. Forming  an association is entirely independent and different  from its  recognition. Recognition of a union confers rights,  duties and  obligations.  Nonconferring  of such rights,  duties and  obligations on  a union other than the recognised union does not put it on an inferior position nor the  charge of  discrimination can  be entertained.  The members of a 507 non-recognised association can fully enjoy their fundamental freedom A  of speech  and expression  as also  to  form  the association.       The Legislature has in fact taken note of the existing phenomenon in  trade unions  where  there  would  be  unions claiming to  represent workman in an undertaking or industry other than  recognised union.  Sec. 22  of 1971  Act confers some specific rights on such non- recognised unions, on such being the  right to  meet and  discuss with the employer the grievances of  individual workman The Legislature has made a clear distinction  between individual grievance of a workman and an individual dispute affecting all or a large number of workmen. In  the case  of even  an  unrecognised  union,  it enjoys  the  statutory  right  to  appear  and  discuss  the grievance of  individual  workmen  with  employer.  It  also enjoys the  statutory right  to appear  and participate in a domestic or  departmental enquiry  in which  its  member  is involved. This  is statutory  recognition of an unrecognised union. The  exclusion is  partial and  the embargo  on  such unrecognised  union   or  individual  workman  to  represent workman  is  in  the  large  interest  of  industry,  public interest and  national interest.  Such a provision could not be said  to be  violative of  fundamental freedom guaranteed under Art. 19 (1) (a) or 19 (1) (c) of the Constitution       Having  examined the  contention on  principle, we may now turn to precedents brought to our notice.       In  Raja Kulkarni  and Ors. v. State of Bombay(1), one of the  contentious canvassed  before the Constitution Bench was that  Sec. 13  of the  Bombay Industrial  Relations Act, 1946  as  it  then  stood  provided  that  a  union  can  be registered as  a representative  union for  an industry in a local area  if it  has for  the whole of the period of three months  next  preceding  the  date  of  its  application,  a

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membership of  not less  than 15%  of the  total  number  of employees employed  in any  F industry in any local area. If the  union  does  not  satisfy  that  condition  and  has  a membership of  not less than 5%, it could be registered as a qualified union  Rashtriya Mill Mazdoor Sangh was registered as a  representative union  while the Mill Mazdoor Sabha was registered as  a qualified union. It was contended on behalf to Mill  Mazdoor Sabha  of which  the appellants before this Court were  the  office-bearers  that  the  provisions  that conferred an  exclusive right  only  on  the  representative union to  represent workmen  was  violative  of  fundamental freedoms guaranted to the members of Mill Mazdoor Sabha       . (1) [1954] SCR 384. 508 or  any   other  workman   who  is   not  a  member  of  the representative union  under Art.  19 (1) (a) and (c) and was also  violative   of   Art.   14   inasmuch   as   the   two representatives of  workmen were  denied equality before law or the  equal protection  of laws.  The  Constitution  Bench repelled the contention observing that such a provision does no t  deny either  the fundamental  freedom  of  speech  and expression or  the right to form association. The Court said that it is always open to the workmen who are not members of the representative  union to  form their  own association or union and  to claim higher percentage of membership so as to dethrone the  representative union  and take its place. This decision  should  have  concluded  the  matter.  Mr.  Latifi however, urged  that  this  decision  is  of  no  assistance because it  was rendered at a time when sub-sec. (2) Of Sec. 114 of  the Bombay  Industrial Relations  Act, 1946 provided that  where  the  representative  union  is  a  party  to  a registered agreement  or settlement, submission or award the Provincial Government  may after giving the parties affected an opportunity of being hard by notification in the Official Gazette direct  that such  agreement, settlement, submission or award  shall be  binding union  such other  employers and employees in such industry or occupation in that local areas as may be specified in the notification. There was a proviso to  sub-sec.   (2)  which  provided  that  before  giving  a direction under  sub-sec. (2)  the Provincial Government may in such  cases as  it deems  fit, make  a reference  to  the Industrial Court  for its opinion. It was urged that workmen in an  industry or in an undertaking, who are not members of the representative union would not be bound by a settlement, sub mission  or award to which representative union alone is a party,  unless the Provincial Government took action under sub-sec. (2)  of Sec.  114 and there was a further safeguard inasmuch as  before making  such a settlement, submission or award binding  on all workmen, a reference to the Industrial Court for its opinion could be made. It was urged that these safeguards are  missing inasmuch as Sec. 20 (2) would make a settlement or  award to  which a  representative union  is a party binding  on all  the workmen  in to undertaking or the industry as the case may be and therefore the aforementioned decision can  be distinguished.  We see  no  merit  in  this submission. This  Court did  not uphold  the  vires  of  the relevant provisions on the ground that there were safeguards for non-members.  The provision  was held intra-vires on the broad features of the pro visions that they neither deny the fundamental freedom  guaranteed under Art. 19 (1) (a) nor 19 (1) (c).       In  Ram Prasad Vishwakarma v. The Chairman, Industrial Tribu- 509

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nal(1), an industrial dispute arising out of the termination of service  A of  the appellant in that case was espoused by the union  and which  was referred  for adjudication  to the Tribunal. When  the matter  was  before  the  Tribunal,  the appellant  workman  made  an  application  that  he  may  be permitted to represent his case by his two colleagues and at any rate  not by  the Secretary  of the  union The  Tribunal rejected the  application and  after  an  unsuccessful  writ petition the  matter came  to this  Court. It  was contended that even  though the  case of the appellant was espoused by the union,  he was  entitled to  a separate  representation. Repelling  the   contention,  this   Court  held   that  any individual grievance  is not  comprehended in the expression ’industrial dispute’  as defined  and the dispute would only acquire the  character of  an industrial dispute if espoused by the  union  and  therefore,  the  workman  would  not  be entitled to a separate representation. The decision turns on the interpretation  of expression  ’industrial  dispute  and before the  introduction  of  Sec.  2-A  in  the  Industrial Disputes act,  1947. It does not shed any light on the issue under discussion.       In  Girja Shankar  Kashi Ram  v. Gujarat  Spinning and Weaving Mills Ltd.,(2) the right of the representative union to appear  in  a  proceeding  under  the  Bombay  Industrial Relations Act  to the  execusion of the workmen likely to be adversely affected  by the decision of the court came up for consideration. The  representative union  and  the  employer entered into  a settlement for grant of bonus to the workmen and in consideration thereof the representative union agreed not to press for any compensation for the workmen discharged by the  employer. Subsequently  376 persons, who had been in the employment  of the  company prior-  to its  closure gave notice under  Sec. 42 (1) of the Bombay Industrial Relations Act and  claimed compensation  for the period of closure. As the parties failed to arrive at a settlement, an application under Sec.  42 (4)  was made to the Labour Court. During the pendency of  this application, the representative union made appearance before  the Labour  Court and  contended that the application should  be dismissed  in view  of the compromise which had  been  arrived  at  before  the  Labour  Appellate Tribunal. The  Labour  Court  accepted  the  contention  and dismissed the  application. In  the appeal to the Industrial Court, it  was contended that considering that no individual workman could be permitted to appear in any proceeding where representative union appears as representative of employees, yet if the action of the representative union was malafide,          (1) [1961] 3 S.C.R. 196.          (2) [1962] 2 Supp. S.C.R. 890. 510 the   Labour   Court   should   not   have   permitted   the representative  union   to  appear   and  thereby  deny  the adversely affected  workmen to  be represented and then non- suited at  the instance  of  the  representative  union  The Industrial Court  dismissed the  appeal. A  writ petition to the High  Court failed and thereafter the matter was brought to this  Court. After  an exhaustive  review of  the various provisions of  the Bombay  Industrial  Relations  Act,  this Court held  that  bona  fides  or  the  mala  fides  of  the representative union  can have  nothing to  do with  the ban imposed  upon   appearance  of   any  one   other   than   a representative union  in any  proceeding  under  the  Bombay Industrial Relations  Act The  decision goes  so far  as  to suggest that  even where  the action  of The  representative union may  be such  as would appear to be disadvantageous to some workmen yet its action has to be judged in the light of

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the fact  that it  does not  tend to cater to the needs of a section of  the workmen but the workmen represented by it as a whole.  Incidentally it  must  be  pointed  out  that  the question of vires was not raised in this case.       The  view taken  in Girja  Shankar’s case was affirmed and approved  in Santuram  Khudai  v.  Kimatrai  Printers  & Processors (p)  Ltd.& Ors  (1) wherein  this Court  observed that the  legislature has  clothed the  representative union with  exclusive  right  to  appear  or  act  behalf  of  the employees in  any proceeding  under  the  Bombay  Industrial Relations Act and has simultaneously deprived the individual employee or  workman of  the right  to appear  or act in any proceeding under  the Act  where representative union enters appearance or acts as representative union of employees. The question of vires was not raised.       Prima  facie on  the  arguments  urged  and  decisions examined, we are satisfied that there is no substance in the challenge that  Sec. 20  (2) (b)  upon its true construction violates Art.  19 (1)  (a) and  (c) of  the Constitution. We must however make it clear that we may keep this question of constitutionality open  for a more detailed argument and in- depth examination  because in  this case  at the  fag end of arguments, the  parties more  or less buried the hatchet and there was  the spirit  of give  and take  to which  we would presently advert.       The change in the law made by the introduction of Sec. 2-A in the Industrial Disputes Act, 1947 has been taken note of by  the State  Legislature in  introducing a safeguard in Sec. 20 (2) (b) in that          (1) [1978] 2 S.C.R. 387. 511 an  individual   workman  who  has  been  either  dismissed, discharged, A removed, retrenched or whose services has been terminated in any manner or who is suspended would be on his own entitled  to raise  an industrial dispute concerning the termination of  his service  in any  manner and  he would be able to pursue his remedy in a proceeding arising out of the legality or validity of the order of termination of service. The representative  union would  not be able to supplant the workman by  its appearance  and act  to the detriment of the workman Cases  are not  unknown where an individual  workman whose services  has been terminated and who wanted his cause to be  espoused by  the union  was not  only ignored  by the union but  occasionally the power of representative union to exclude the workman from the proceeding was exercised to the disadvantage of  the workman  by appearing in the proceeding and after  excluding the  workman to  so get the proceedings disposed of  as to  be wholly disadvantageous to the workman and the  workman was  left without  a remedy  Care has  been taken to deny such steam rolling power to the representative union and  this position  is  further  strengthened  by  the provisions contained  in Sec.  22  of  the  1971  Act  which confers  certain   rights  on   unrecognised   unions   more especially right  to meet  and discuss with the employer the grievances  of   an  individual   member  relating   to  his discharge, removal,  retrenchment, termination of service or suspension as  also to  appear  on  behalf  of  its  members employed in  the undertaking in any domestic or departmental enquiry held  by the  employer. This is certainly an advance on the similar provisions of the Bombay Industrial Relations Act.       Sec.  20 (2)  (b) is more or less in pari materia with the provisions of the Bombay Industrial Relations Act, 1946, The provisions relating to the status, character, powers and obligations of  a representative  union as  envisaged in the

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Bombay Industrial  Relations Act, 1946 have been extended to cover industries  not  governed  by  that  Act  but  by  the Industrial Disputes  Act, 1947. Where a representative union acts in  exercise of  the powers conferred by Sec. 20 (2) it is obligatory upon it to act in a manner as not discriminate between its members and other workmen of the undertaking who are not its members. However when a settlement is reached in a proceeding  under the  Industrial Disputes  act in which a representation union has appeared, the same is to he binding on all  the workman of the undertaking. This would mean that neither  the  representative  union  nor  the  employer  can discriminate between members of the representative union and other workmen  who  are  not  members.  Both  the  benefits, advantages, disadvantages  or liabilities  arising out  of a settlement in  any proceeding  under the Industrial Disputes Act to 512 which a  representative union  is a  party shall  be equally applicable to  each workman  in the undertaking. There shall not be the slightest trace of discrimination between members and non-members  both as  regards the advantages and also as regards the  obligations and  liabilities. Any other view of Sec. 20 (2) (b) would render it unconstitutional and invalid as being violative of Art 14. Equal treatment of members and non-members  is   implicit  in   the  section   and  by  its interpretation we only make it explicit.       A  serious grievance was vioiced by Mr. Latifi that by the impugned  Clause 17  of the  Settlement, the non-members are subjected  to compulsory exaction for the benefit of the representative union  with whose  philosophy the non-members are not  in agreement  and they are made to pay to advance a rival philosophy.  It was urged that this is some-thing like a tax  for the propogation of a philosophy which the members of the  appellant union  consider harmful or disadvantageous to the  workmen in  general. Clause  17 of the settlement is already extracted.  After a strike, a settlement was arrived at between  the first  respondent employer  and  the  second respondent representative union, Clause 17 of which mandated the employer  to deduct  15% of  the gross  arrears  payable under the settlement to each employee as contribution to the union fund. It is well-known that no deduction could be made from the  wages and  salary payable to a workman governed by the Payment  of Wages  Act unless  authorised by that Act. A settlement arrived  at on  consent of  parties  can  however permit a  deduction as  it is  the outcome  of understanding between the  parties even  though such  deduction may not be authorised or legally permissible under the Payment of Wages Act.       The  contention is that where members who form a union pay  the   membership  fee   and  receive  the  benefits  or advantages of  being members  of the  union yet, persons who are not  members of  the union  without their  consent  were forced to  part with their earnings as if paying a tax which is compulsory. If the same is held permissible under Sec. 20 (2) (b), either the section will be constitutionally invalid or that  part of  the settlement  being severable  would  be illegal and  invalid qua  non-members On the face of it, the contention appears to be attractive but anyone who, has some understanding and  appreciation of  the working  of a  trade union would  be able  to fully appreciate the provision like the  one   under  discussion.   Though  unfortunate,  it  is notorious that  in some  cases resorting  to strike  has  by itself become  an industry  and the  unions  invest  in  the strike by sustaining morale of the workmen 513

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when during  the strike  the employer would deny wages. In a case of   genuine  grievances and forced strike, the workmen unable to  stand up for want of wherewithal or cushions, the trade union  may help  them sustain  their  vigour  by  some monetary assistance  during the  period of  strike. When the strike ends  in a settlement or where even without a strike. benefits under  a settlement  are made  retro-active and the arrears are  required  to  be  paid  under  the  settlement, naturally the  union in  order to  vigorously carry  on  its activities free  from financial constraints would expect the workmen for  whose benefit  the dispute  was raised which on settlement may  bring  in  monetary  benefits  to  reimburse itself. As the members and non-members are entitled to equal treatment under  the settlement  both  can  be  asked  as  a condition of  settlement to  part  with  a  portion  of  the benefits  towards  union  activities.  Such  deductions  can neither be  said  to  be  compulsory  exaction  nor  a  tax. Therefore such a provision of deduction at a certain rate as agreed between  the parties  for payment  to the  union, the same  being   with  the  consent  and  as  part  of  overall settlement would  neither be  improper nor impermissible nor illegal.            Mr. Daniel Latifi, however, urged that in case of non-members, the  deduction would  be without their consent, and therefore  has the  nefarious tendency  of  making  non- members pay  for the benefit of a rival union. Expanding the submission, he  urged that the trade-union movement has more or less  developed as  an appendage of the political parties and therefore  each union  is influenced  by its  own parent identity and  therefore the  rival union  would certainly he expected to  have a  rival parent identity and yet the rival union not  having acquired,  the status  of a representative union would  be compelled by the settlement to contribute to the coffers  of the  representative union funds, which would expended to propogate its own philosophy to the detriment of the  rival   union.  It  was  urged  that  this  amounts  to compelling an  individual to contribute against his will for the propogation  of the cult of an opponent. Maybe there may be some harsh truth in the submission. It can not however be examined from  a setarian  point of view. The submission has to be  examined in the proper perspective of the trade union movement. Shorn of embellishment such a provision would show that benefits  and liabilities  both must be shared equally. If under  a settlement  with the  representative union  some benefits  accrue   to  the   workmen,  and   upon   a   true interpretation  of   sec.  20   (2)  (b),  it  is  held  all encompassing and  therefore binding  on all  workmen and the employer alike,  all the  benefits would be available to the workmen who  are not members of the representative union and who may have formed a rival union. If these workmen 514 could not  be denied the benefits they would enjoy an unfair advantage  if   from  the   package  deal   covered  by  the settlement, they draw benefits and abjure liabilities. Heads I win  and tails  you lose  could hardly  be a fair and just approach  in  settling  inter-union  disputes.  Therefore  a clause like Clause 17 of the Settlement has to be understood in the context of strengthening the trade union movement and to free  it from  financial  constraints.  Workmen  who  are members of  a union may pay fee for membership and enjoy the advantage  of  membership  but  if  by  the  action  of  the representative union all workmen acquire benefit or monetary advantage, the  members and non-members alike can be made to make common  sacrifice in the larger interest of trade union movement and  to strengthen  the trade  union which  by  its

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activities acquired the benefits for all workmen. Payment to trade union  fund in  these circumstances  can be  styled as quid pro  quo  for  benefits  acquired.  Therefore,  we  see nothing objectionable  in Clause  17 of the Settlement which directs the  employer to  deduct 15%  of the  gross  arrears payable  to   each  employee   under   the   settlement   as contribution to  the trade-union  funds. Thereby the workman is not  subscribing to  the philosophy of rival union but he is merely  paying  the  price  of  the  advantage  obtained. Another view  would make  the union  members suffer  and the non-members benefit,  a situation which must at all costs be avoided. Therefore  clause 17 of the Settlement would not be invalid despite  the lack  of consent of the workmen who are members of  the appellant  union. The settlement having been made by  the representative union its right to represent all workman would  imply the consent of the members of the rival union. This  is the  legal consequence  of the  right of the representative  union  to  represent  all  workmen  and  the binding effect of its action.       Mrs.  Radha De ’souza who also appeared along-with Mr. Daniel Latifi for the appellant-union urged that the refusal of the  representative union  to admit  all workmen  of  the first respondent  industrial undertaking  had  forced  those denied membership  to form the appellant union. President of the second  respondent representative  union was  present in the Court  and after  consulting him  Mr.  M.K.  Ramamurthy, learned counsel  stated in the Court that all workmen of the first respondent  industrial undertaking  are  entitled  and are, eligible  to be the members of the representative union and they  will be  admitted without  let or  hindrance on  a proper application  being made  as  members  of  the  second respondent representative  union. Mrs. Radha De’souza stated that all  the members  of the appellant-union would as early as possible make the necessary application and the President of the second respondent representative 515 union stated  that all  of them will be admitted without any further scrutiny.  On  such  membership  being  granted  the appellant-union would  stand dissolved. This would certainly go a long way to strengthen the trade union movement.       Having  considered all  the aspects  of the matter and keeping in view the interpretation we have placed on Sec. 20 (2) (b)  and Clause 17 of the settlement dated June 18, 1984 this appeal  must fail  and is dismissed with no order as to costs.       Whatever benefits are yet to be paid to the members of the  appellant-union  under  the  aforementioned  settlement shall be paid within 2 months from today. M.L.A.                                      Appeal dismissed. 516