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PETITIONER: UNION OF INDIA & ANR. A

       Vs.

RESPONDENT: M.T.S.S.D. WORKERS UNION & ORS.

DATE OF JUDGMENT27/01/1988

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) RAY, B.C. (J)

CITATION:  1988 AIR  633            1988 SCR  (2) 825  1988 SCC  (1) 640        JT 1988 (1)   231  1988 SCALE  (1)208

ACT:      Industrial  Disputes   Act,  1947/lndustrial   Disputes (Central) Rules, 1957:      Section 3/Rules  39 & 41 to 43-Works Committee-Election on basis  of division  of constituencies-Whether  valid  and permissible.

HEADNOTE: %      The respondents filed a writ petition in the High Court for quashing  the order  dated 31.1.1984 of the authorities, informing the  respondent Union about the scheme of election to the  Works Committee  to be  constituted for  the  period 1984-86,   on   the   basis   of   division   in   different constituencies  under   the  Industrial  Disputes  (Central) Rules, 1957, framed under the Industrial Disputes Act, 1947.      The  High  Court  held  that  such  a  distribution  of constituencies was  not permissible in view of the scheme of the Rules, especially Rules 39, 41. 42 and 43.      In the  appeal by  special  leave,  on  behalf  of  the appellants  it   was  contended  that  such  a  division  of constituencies to give appropriate representation to various sections,  groups   and  categories   of  workers,  skilled, unskilled, clerical  and otherwise, was justified under Rule 39 and proviso to Rule 43.      On behalf  of the  respondents, it  was contended  that while  Rule   42   contemplated   only   division   in   two constituencies, that  is, those  who were  members and those were not,  of a  registered trade union, it further provided that where  more than  half  the  workers  belonged  to  one registered trade  union, there  was no need for any division of constituencies, and election will be only by general vote of workers  of the  industry and,  therefore, the High Court was right  in holding that the division of constituencies as contemplated in the aforesaid order was not permissible.      Dismissing the appeal, 826 ^      HELD: The  scheme of  the Industrial Disputes (Control) Rules, 1957  for the constitution of Works Committee clearly provides that  (a) where  there is  a registered trade union

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having more  than SO  per cent  membership of the workers in that establishment, the total number of members of the Works Committee  will  be  elected  without  distribution  of  any constituencies; and  (b) if  in an  industry, no trade union registered under  the Trade  Unions Act represents more than 50 per  cent of  the members, then only the election will be held in  two constituencies,  one from  the members  of  the registered trade  union or  unions and  the other  from non- members  of  the  trade  unions  and  it  is  only  in  this contingency, it  is further  provided that,  if the employer thinks proper,  may further sub divide the constituency into department, section or shed. [832C-E]      When  there   is  a   registered  trade   union  in  an establishment, having  more than 50 per cent membership, the exercise under  Rule 43 of the Industrial Disputes (Control) Rules, 1957 is futile and is not called for. [832F-G]      In  the  instant  case  since  the  respondent  union’s membership is  more than  50 per  cent, the  distribution of constituencies  under  Rule  42  is  not  contemplated  and, therefore, there  is no  occassion for  Rule 43  or  proviso therein to come into operation. [832G ]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 341 of 1988.      From the  Judgment and  order  dated  2.4.1986  of  the Bombay High Court in W.P. No. 1946 of 1984.      D.N. Devedi.  C. Ramesh  and P.  Parmeshwaran  for  the Appellants.      R.K. Garg and D.K. Garg for the Respondents.      The Judgment of the Court was delivered by      OZA, J.  Leave granted.  This appeal  has been filed by the Union  of India  against a judgment passed by High Court of Bombay in Misc. Petition No. 1946/84 decided on 2.4.1986. A  Writ   petition  before  the  High  Court  was  filed  by M.T.S.S.D. Workers’  Union, Pune and two of the employees in the establishment  in which  this union  is functioning.  In this Writ Petition an order was sought quashing the decision of the 827 authorities concerned  of the  petitioner who by their order dated 31.1.1984  informed the  union about the scheme of the election to the Works Committee on the basis of the division in different  constitutencies. This  order of the Commandant was conveyed to the respondent union. These Works Committees were to be constituted for the period 1984-86.      The question  that was considered by the High Court was as to  whether such a distribution was permissible under the Rules framed under Industrial Disputes Act.      The Bombay  High Court by the impugned judgment came to the conclusion that such a distribution of constituencies is not  permissible   in  view  of  the  scheme  of  the  Rules especially Rules 39,41,42 and 43 of the Central Rules framed under the Industrial Disputes Act.      Learned counsel  appearing for the appellants contended that Rule  39 when it talks of representation to the various categories and  groups and  class of workmen it contemplates that  such   constituencies  be   divided  so  that  various sections,  groups   and  categories   of  workers   skilled, unskilled,  clerical   and  otherwise  may  get  appropriate representation. Learned  counsel also  relied on the proviso to Rule  43 to  justify the  division of the constitutencies which was  done by the impugned order which was set aside by

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the High Court of Bombay. Learned counsel for the respondent on the  other hand  contended that  the Works Committees are expected to  go into  day  to  day  problems  and  they  are expected to  be so  constituted that  they bring harmony and better functioning  of the  industry  and  it  is  for  this purpose.  According   to  the   learned  counsel   Rule   42 contemplates only  division in  two constitutencies  that is those who  are members of a registered trade union and those who are  not members  of the registered trade union and even while providing  for such  a distribution  in Rule 42 it has been further  provided that where more than half the workers belong to  one registered  trade union then there is no need for any division of constituencies and election will only be by general  vote of  the workers  in the  industry.  It  was contended by learned counsel that this scheme of these Rules contemplates that  where there  is a  union representing the majority  of   workers  there   is  no   occasion  for   any distribution of  constituencies so  that the  union and  the management with  the help of the Works Committee may resolve day to day problems and the industry may run smoothly in the interest of  production and industrial peace. He, therefore, contended that  the order passed by the Bombay High Court in the scheme of the Rules is justified. 828      The constitution  of  the  Works  Committees  has  been provided for  in Section  3 of  the Industrial Disputes Act, 1947 which reads as under:           "3.  Works   Committee:(1)  In  the  case  of  any           industrial establishment  in which  one hundred or           more workmen are employed or have been employed on           any  day   in  the  preceding  twelve  months  the           appropriate Government  may by  general or special           order require  the employer  to constitute  in the           prescribed manner  a Works Committee consisting of           representatives of  employers and  workmen engaged           in the establishment so however that the number of           representatives of  workmen on the Committee shall           not be  less than the number of representatives of           the employer.  The representatives  of the workmen           shall be  chosen in  the  prescribed  manner  from           among the workmen engaged in the establishment and           in consultation  with their  trade union,  if any,           registered under  the India Trade Unions Act, 1926           (XVI of 1926).           (2) It shall be the duty of the Works Committee to           pro mote  measures  for  securing  and  preserving           amity and  good relations between the employer and           workmen and,  to that end, to comment upon matters           of their  common interest or concern and endeavour           to compose  any material  difference of opinion in           respect of such matters."      It is clear from the language used in this Section that the representatives  of  workmen  shall  be  chosen  in  the prescribed manner  and it  shall be  so done in consultation with their  trade union if there is any registered under the Indian Trade Unions Act.      It is  because of  this that  the Rules have prescribed the  manner   in  which   the  Works   Committees  will   be constituted.  In   Chapter  7  of  the  Rules  framed  under Industrial  Disputes   (Central)  Rules  1957  it  has  been provided for  a constitution of the Works Committee. Rule 39 on which  much emphasis  was laid by learned counsel for the appellants reads:           "Number   of   members-The   number   of   members           constituting the Committee shall be fixed so as to

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         afford representation  to the  various categories,           groups and class of workmen engaged in, and to the           sections,   shops    or   departments    of    the           establishment: 829           Provided that  the total  number of  members shall           not exceed twenty:           Provided    further    that    the    number    of           representatives of  the workmen  shall not be less           than  the   number  of   representatives  of   the           employer."      This Rule  talks of the number of members to constitute a Works  Committee and  it has been provided that the number shall be  so fixed keeping in view that representation could be made  in the  Committee of  workers engaged  in different sections, shops,  departments of  the establishment.  It was contended by  learned counsel  for the appellant that it was because of  this that  the management in this industry chose to distribute the constituencies in such a manner that there may be  representatives in  the Works Committee of different sections and  departments of  the industry.  But it is clear that  Rule   39  does   not  talk  of  any  distribution  of constituencies.      The relevant Rule which provides for group of workmen’s representatives  is   Rule  42   but  Rule  41  contemplates consultation with  the trade  unions and  where there  is  a registered trade union the management is expected to ask the registered trade union to give information as to how many of the  workmen   are  members  of  the  union  and  how  their membership is  distributed among  the  sections,  shops  and departments of the establishment. Rule 41 reads as under:           "Consultation with  trade unions:  (1)  Where  any           workmen of  an  establishment  are  members  of  a           registered trade  union the employer shall ask the           union to inform him in writing           (a) how  many of  the workmen  are members  of the           union; and           (b) how  their membership is distributed among the           sections,   shops    or   departments    of    the           establishment.           (2) Where  an employer  has reason to believe that           the information  furnished to  him under  sub-rule           (1) by  any trade  union is  false, he  may, after           informing the  union,  refer  the  matter  to  the           Assistant Labour  Commissioner (Central) concerned           for  his   decision;  and   the  Assistant  Labour           Commissioner (Central), after hearing the parties,           shall decide 830           the matter and his decision shall be final."            Rule 42 reads thus:           "Group of workmen’s representatives: on receipt of           the information  called for  under  Rule  41,  the           employer  shall   provide  for   the  election  of           workmen’s representative  on the  Committee in two           groups:                (1) those to be elected by the workmen of the                establishment  who   are   members   of   the                registered trade union or unions, and                (2) those to be elected by the workmen of the                establishment who  are  not  members  of  the                registered trade union or unions.           bearing the  same proportion  to each other as the           union members  in the  establishment bear  to  the           non-members:

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              Provided  that   where  more  than  half  the           workmen are members of the union or any one of the           unions, no such division shall be made:                Provided  further  that  where  a  registered           trade union  neglects  or  fails  to  furnish  the           information called  for under sub-rule (1) of Rule           41 within  one month  of the  date of  the  notice           requiring it  to  furnish  such  information  such           union shall  for  the  purpose  of  this  rule  be           treated as if it did not exist:                Provided further that where any reference has           been made  by the  employer under  sub-rule (2) of           Rule 41,  the election shall be held on receipt of           the  decision  of  Assistant  Labour  Commissioner           (Central. )" This Rule clearly provides that the workers’ representatives in the  Committee will  be in  two groups:(1)  those who are elected by  the workmen  who are  members of  the registered trade union  or unions  and (2)  other  those  who  will  be elected by  the workmen  of the  establishment who  are  not members of  the registered  trade union  or unions and it is further provided  that  this  number  would  bear  the  same proportion to  each  other  as  the  union  members  in  the establishment bear 831 to the  non-members.  That  clearly  shows  that  if  in  an industry there  is or  are registered  trade unions and they have their  membership as the management will know under the scheme of  Section 41, the management will fix the number of seats in the Works Committee to be elected by the members of the union  and by those who are not the members of the union and the  ratio between  the members  representing the  union members and the members representing those who are not union members will  be the  same as membership of the union vis-a- vis non members in the establishment.      There is  yet another proviso which provides that where more than  half the  workmen are members of the union or any one of  the unions  no such  division  will  be  made.  This clearly goes  to show  that  where  in  an  industry  or  an establishment the  majority of  the workers are in one union the  distribution  as  provided  in  Rule  42  will  not  be necessary, it  will only be one constituency. This scheme of Rule 42  read with  this proviso  clearly goes  to show that where there  is any  registered trade union representing the majority  of   workers  (more  than  50%)  the  question  of distribution  of  constituencies  does  not  arise.  Learned counsel for  the appellant  also contended  that proviso  to Rule 43  contemplates division  of the  constituencies  into various sheds,  departments and  sections as was done by the management which  was quashed  by the  High Court.  Rule  43 reads as under:           "43. Electoral constituencies: Where under Rule 42           of the workmen’s representatives are to be elected           in two  groups, the workmen entitled to vote shall           be divided  into two electoral constituencies, the           one consisting  of those  who  are  members  of  a           registered trade  union and the other of those who           are not:                Provided that  the employer may, if he thinks           fit,  subdivide   the  Electoral  constituency  or           constituencies, as the case may be and direct that           workmen shall  vote in  either by groups, sections           shops or departments." This Rule  starts with  a situation  where under Rule 42 the workmen’s representatives  are to  be elected  in two groups

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and where  such a  situation  exists.  The  proviso  further provides that  if the employer thinks fit may sub-divide the electoral constituencies in a manner so that the workers may vote either  by groups or by sections or by departments. But it is  clear from  the language  of this  Rule that this sub division of  constituencies only  could be  done if  Rule 43 comes into 832 operation. Admittedly  in the  present case in this industry the respondent  trade union  represents the  majority of the workers that it has more than SO per cent as its members and the occasion  for distribution  of the  works committee into two constituencies as contemplated in Rule 42 does not arise and if  it is  not so  then  Rule  43  does  not  come  into operation at  all as Rule 43 itself clearly states that this Rule only  comes into  operation "where  under Rule  42  the workers representatives are to be elected in two groups". It is therefore  clear that  this proviso  to Rule 43 is not an independent substantive  provision  and  therefore  on  this basis the  contention advanced  by learned  counsel for  the appellants is of no substance.      It is  therefore clear  that the  scheme of these Rules for constitution  of Works  Committees  clearly  provide:(a) where there  is a registered trade union having more than SO per cent membership of the workers in that establishment the total number  of members  of the  Works  Committee  will  be elected without distribution of any constituencies:(b) if in an industry no trade union registered under the Trade Unions Act represents  more than  50 per  cent of  the members then only the  election will  be held  in two constituencies, one from the members of the registered trade union or unions and the other  from non  members of  the trade  unions and it is only in  this contingency it is further provided that if the employer  thinks   proper  may   further  sub   divide   the constituency into  department, section or shed. This clearly indicates that  there may  be a  situation in  an particular establishment where  some section  may have no membership of any trade  union at  all whereas in other sections there may be membership  of trade  unions then if under Rule 42 it has to divide  in two  constituencies that  is  members  of  the registered trade  union and non members. It may further sub- divide in order to provide for representation to any section of workmen  who have no representation in any trade union at all. It  is therefore  clear that when there is a registered trade union in an establishment having more than SO per cent membership this  exercise under Rule 43 is futile and is not called for  as in  this case  as admittedly  the  respondent unions membership is more than 50 per cent. The distribution of constituencies  under Rule  42 is  not  contemplated  and therefore there  is no  occasion  for  Rule  43  or  proviso therein to  come into operation. In this view of the matter, in our  opinion, the  judgment of  the High Court is correct and we  see no  reason to  interfere with  it. The appeal is therefore dismissed.  In  the  Circumstances  of  the  case, parties are directed to bear their own costs. N. P V.                                    Appeal dismissed. 833