Recognition of Trade Union in Maharashtra

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITYVISAKHAPATNAM, A.P., INDIA

Recognition of Trade Union in Maharashtra

LABOUR LAW

BHARAT KUMAR

AMARENDRA KUMAR2013016 & IVTH SEMESTER CERTIFICATE This is to certify that my Project Work entitled Recognition of Trade Unions in State of Maharashtra Submitted by Amarendra Kumar is the record of work carried out during semester-IV of 2nd Year B.A. LL.B. Course for the academic year 2013-2018 under my Supervision and guidance in conformity with the syllabus prescribed by Damodaram Sanjivayya National Law University.Place: Visakhapatnam

ACKNOWLEDGEMENT

Firstly, I would like to thank my Guide and faculty of labour law, Mr Bharat Kumar for giving an opportunity to undertake this work and successfully accomplishing the same.I would also like to thank him for his valuable guidance and for being a solvency of inspiration and encouragement enabling the work and to complete the work successful.Last but not the least I would like to thank all the background supports who have spent their valuable time to support me throughout my project work.Place: Visakhapatnam

OBJECTIVES/AIMS OF THE STUDY

There are two main objectives/aims of this project are: To examine the history behind the introduction of Recognition of trade union enactment in Maharashtra. Relevant laws that have been laid down through case laws under this act.

RESEARCH METHODOLOGYThis research is mainly library-based, doctrinal. It does require comparative study of position of employers and employees in India, that is, a comparative study material. The evolution of various aspects have been dealt with by having n access to historical materials available in regard of the same. STYLE OF WRITINGThis research work has largely descriptive style of writing.SOURCES OF DATA:Primary sources in the form of law reports and secondary sources in the form of books have been used to answer the various research questions.

LITERATURE REVIEW1. Trade Unions Act,1926.2. Maharashtra Recognition of Trade unions and Prevention of Unfair Labour Practices Act, 1971.3. Prof. Khan Ahmedullah & Khan Amanullah, Commentary on Labour & Industrial Law( 2nd ed, Asia Law House, Hyderabad,2014)4. Mishra S.N., Labour & Industrial Laws(25th ed, Central Law Publication, Allahabad, 2010)

ABSTRACTThe need for recognition of Trade Union by the employer was felt so as to implement proper leverage between the employers and working class. Recognition of Trade Union is important as to state their rights and obligations. It is important to confer certain powers on unrecognised unions to provide for declaring certain strikes and lock-outs as illegal strikes and lock-outs. TheMaharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 defines and provide for the prevention of certain unfair labour practices. This statute provides to constitute courts (an independent machinery) for carrying out the purposes or according recognition to trade unions and for enforcing provisions relating to unfair practices.

TABLE OF CONTENTSRecognition of Trade Union in Maharashtra1LABOUR LAW1BHARAT KUMAR1AMARENDRA KUMAR1OBJECTIVES/AIMS OF THE STUDY4Introduction7Historical Background8Uttam Baban Abhang v Durwani Karmachari Sahakari Patsanstha Maryadit, Ahmednagar and another9Agricultural Produce Market Committee Arjuni Moregaon and others v Ashok S/o Danaji Hatzode10Estate Manager, Maharashtra State Farming Corporation Limited, Ahmednagar v Jagannath Raghoji Sonwane12Reserve Bank of India Employees Association, Nagpur vs Manager, R.B.I.13CIMCO Birla Limtied v Rowena Lewis14Kawadu S/o Paikaji Parke v Deputy Conservator of Forest, Pandharkawada Forest Division, Pandharkawada15Maharashtra State Road Transport Corporation and another vs. Casteribe Rajya Karmachari Sanghatana17Conclusion19Bibliography19

Introduction

The very purpose of formation of Trade Union is to regulate relation between employer and workmen and for this purpose a Trade Union Collectively bargain, on the behalf of the workmen, with the employer. This function of the trade union is also incorporated by the Trade Unions Act,1926 and Maharashtra Recognition of Trade unions and Prevention of Unfair Labour Practices Act, 1971 in the definition of trade unions definition itself as any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions.In its simple dictionary meaning the word relations means the contract or communication etc between people. Therefore for all practical purposes to regulate relations it is necessary that the Trade Union should be recognized by the employer so that he can communicate with the trade union, discuss, negotiate and settle the matters to their common interest. Historical Background

Maharashtra Recognition of Trade unions and Prevention of Unfair Labour Practices Act, 1971this act was enacted on the similar line of the guidelines provided in the Trade unions Act, 1926. The latter act did not contain any provisions to require the employer to recognize a Trade Union. This is considered as a lacuna in the Trade Unions Act which is silent oon this issue. However realizing the need for the same that the Trade Union Act was a amended in the year 1947 and a new chapter III-A containing Sections from 28-A to 28-I was inserted. But this chapter was never brought into force and it lapsed with the dissolution of the Central Legislative Assembly.However it acquired importance as it gives an ideal scheme for the recognition of Trade Union which serves as a guideline for the relationship on equitable plane[footnoteRef:1]. It also led to the later enactment of various state legislations relating to recognition of Trade Unions by the employers in the states like Kerala, Maharashtra, Karnataka, etc. [1: Prof. Khan Ahmedullah & Khan Amanullah, Commentary on Labour & Industrial Law( 2nd ed, Asia Law House, Hyderabad,2014)]

This Act 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 courts (as independent machinery) for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair practices; and to provide for matters connected with the purposes aforesaid. Uttam Baban Abhang v Durwani Karmachari Sahakari Patsanstha Maryadit, Ahmednagar and another[footnoteRef:2] [2: 2015 Indlaw MUM 282]

Bombay High CourtAURANGABAD BENCHFacts:The complaint for parity in wages and promotional appointment as a Manager were set out. Application for interim relief - Exhibit U/2, u/s. 30(2) of the the Maharashtra Recognition of Trade unions and Prevention of Unfair Labour Practices Act, 1971("the State Act") was rejected by the Industrial Court, refusing protection against apprehended termination, which was then questioned in Writ Petition No.72 of 2014. The Court rejected the said Writ Petition.It was submited that only because the statement was made by the respondent in the Say that the petitioner is getting more than the amount entitled to, the Court has passed the order. The petitioner has demonstrated before the Court the amount to which he is entitled to and the meager amount has been paid to him. 12,946/ [Rupees Twelve Thousand Nine Hundred Forty Six only ] per month pay is much less than the entitlement of the petitioner. The learned counsel further submits that the Court has failed to consider S. 33 of theIndustrial Disputes Act.

Issues:(a) Whether during the pendency of the Complaint before the Industrial Court, S. 33 of theIndustrial Disputes Act, 1947("the Central Act") would be applicable ?(b) Whether during the pendency of the Complaint before the Industrial Court, action of termination / dismissal by the employee would attract Section 33A ofthe Central Act?

Reasoning:The main contention that without the permission of the Court, the petitioner cannot be terminated in view of the provisions of S. 33 of theIndustrial Disputes Act, the petitioner may make an application with the Industrial Court, which application the Industrial Court shall consider on its own merits expeditiously.

S. 32 - Power of Court to decide all connected matters. Notwithstanding anything contained in this Act, the Court shall have the power to decide all matters arising out of any application or a complaint referred to it for the decision under any of the provisions of this Act."The Industrial Court can decide all matters arising out of any application or a complaint referred to it, under any of the provisions of this Act and therefore, empowers it to decide the issue of dismissal for proved mis-conducts, is fallaciousAlso in the case of National General Mazdoor Union, Thane Vs. Nitin Castings Ltd. and others[footnoteRef:3] has held that the jurisdiction of the Industrial Court cannot be enlarged so as to include the issue of dismissal from service and go into the legality of the dismissal. [3: 1990 (2) CLR 641 (Bom)]

But underthe State Act, would not tantamount to a pending "industrial dispute" before a Conciliation Officer or a court or Tribunal underthe Central Act. As such, the entire S. 33 ofthe Central Act, read with Section 33A would not be applicable to an employee in such pending ULP Complaints. S. 32 ofthe State Ac, read with Ss. 5 and 7 ofthe State Act, would not therefore, enlarge the jurisdiction of the Industrial Court so as to deal with the order of dismissal. The jurisdiction would, therefore, lie with the Labour Court underthe State Act.

Judgment:Petition dismissed

Agricultural Produce Market Committee Arjuni Moregaon and others v Ashok S/o Danaji Hatzode[footnoteRef:4] [4: 2015 Indlaw MUM 214]

Bombay High CourtNAGPUR BENCHFacts: The employee was appointed as a clerk with the Agricultural Produce Market Committee by employer on 13-10-1986.During the course of service, a chargesheet was issued on 5-2-1994 by the employer. The employee was put under suspension and an enquiry officer was appointed to hold the enquiry. The employee came to be dismissed from service.The employee filed the complaint before the Labour Court under Items 1(a)(b)(d) & (f) of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971Prayer for reinstatement with continuity in service was also made.The employer filed his written statement and justified the order of dismissal. It was stated that after giving due opportunity to the employee, a proper enquiry had been conducted after which the punishment of dismissal from service was inflicted. The Labour Court while answering said preliminary issue held that the enquiry as held was not fair and proper and that the same had been held in breach of principles of natural justice. In the complaint, the employee did not adduce any evidence. The Labour Court after considering the material on record held that the allegations of misconduct had not been proved against the employee. It held that the employer had not discharged its burden in that regard. It, therefore, held that the order of dismissal amounted to victimization thereby resulting in an unfair labour practice. Hence, by judgment dated 3-3-2005, the Labour Court partly allowed the complaint and after setting aside the order of dismissal, directed reinstatement of the employee with 50 % back wages. Also a compensation of Rs 1,00,000 was awarded to the employee. The employer went to appeal before Bombay High Court.

Issue:

1) The writ petitions had failed to prove the charges of misconduct that led to the dismissal of the employee, can the employer be permitted to rely upon very same charges to dispense with his services on the ground of loss of confidence?

Reasoning:The employer submitted that the employee was not entitled to any compensation whatsoever in view of the fact that the Industrial Court had found that the employer had lost confidence in the employee. The serious charges of misappropriation had been levelled against the employee and hence, he was not entitled to be awarded any compensation whatsoever. He further submitted that on account of seriousness of said charges, the order of dismissal ought to have been passed by the Industrial Court.

Butthe preliminary issue regarding fairness of inquiry was answered by the Labour Court holding that said inquiry was not fair. Accordingly the employer led evidence before the Labour Court to justify the order of dismissal on the basis of charges levelled against the employee. The Labour Court after considering said evidence, recorded a finding that the employer had failed to prove the misconduct that was alleged against the employee. This finding recorded by the Labour Court has been confirmed by the Industrial Court and it has been specifically observed in the impugned order that the employer had engaged in unfair labour practice by dismissing the employee from service on 10/08/1996.

Judgment:Petition dismissed

Estate Manager, Maharashtra State Farming Corporation Limited, Ahmednagar v Jagannath Raghoji Sonwane[footnoteRef:5] [5: 2014 Indlaw MUM 1694]

Bombay High CourtAURANGABAD BENCH

Facts:It was the claim of the present respondent before the learned Labour Court that he was initially engaged in the employment in the year 1969 as a casual labour and was conferred permanent status w.e.f. 1st April 1980. According to him, in the primary school record, his date of birth is recorded as 1st September 1945. He further claimed that in 1982-1983, he has moved the petitioner - Corporation for correction of his date of birth and on 24th March 1996, by submitting an application to correct his date of birth to 1st September 1945 from 1st September 1941 by carrying out appropriate correction in his service book. According to him, as the petitioner - Corporation had continued with the old incorrect date of birth in the service record has prompted him to file the first complaint before the labour Court.He also filed a second complaint on the ground that he was sought to be superannuated on 1st April 2001 having regard to the incorrect date of birth, which according to him, amounts to victimise him by violating the rights of the employee. The claim put forward by the respondent was after 10 years.

Issue:1. Whether the delay in filing a complaint is a relevant fact?

Reasoning:Though theLimitation Act, 1963is not applicable to the reference made under theI.D. Actbut delay in raising industrial dispute is definitely an important circumstance which the Labour Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Assistant Engineer, Rajasthan Development Corporation v. Gilam Singh[footnoteRef:6], that before exercising its judicial discretion, the Labour Court has to keep in view all relevant facts including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute, must be invariably followed. [6: (2013) 5 SCC 1362013 Indlaw SC 55]

Judgment:Appeal allowed

Reserve Bank of India Employees Association, Nagpur vs Manager, R.B.I[footnoteRef:7]. [7: 1984 (I) LLJ 156 Bom]

It was held that refusal to grant recognition and withdrawal of recognition once granted cannot stand on the same footing. The primary purpose of a Trade Union is Collective Bargaining and a recognized Trade Union alone can discharge this responsibility and exert over the employers to seek redressal of its grievances. Once the recognition is granted it confers a status of sole bargaining agent on the Trade Union which is essential for a trade union to effectively regulate relations with the employer. The refusal to grant recognition amounts to denial of the privilege of a registered Trade Union.

CIMCO Birla Limtied v Rowena Lewis[footnoteRef:8] [8: 2014 Indlaw SC 873]

Supreme Court of IndiaFacts:The workman filed the complaint before the Labour Court, Mumbai under the provisions of theMaharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971questioning the legality of the order of his termination from service and alleging that it amounts to an unfair labour practice by the appellant and prayed for setting aside the same and passing an award of reinstatement and continuity of service with full back wages. The employer appeals to the higher court.

Issues:Whether the removal of workmen is valid under the Unfair Trade Practices?

Reasoning:The appeal was devoid of merit as none of the grounds, urged are tenable in law hence the same is dismissed with costs of Rs.50,000/- payable to the workman.Judgement:Appeal deismissed.

Kawadu S/o Paikaji Parke v Deputy Conservator of Forest, Pandharkawada Forest Division, Pandharkawada[footnoteRef:9] [9: 2014 Indlaw MUM 1116]

Bombay High CourtNAGPUR BENCHFacts:The petitioner has prayed for his reinstatement and continuity of service with full back wages. According to the petitioner/Complainant, he had filed the Complaint under Section 28 of the M.R.T.U. Prevention of Unfair Labour Practices Act, 1971against the respondent for reinstatement with continuity of service and full back wages. The Complainant was working with the respondent with effect from 9.4.1984 at Umari Timber Depot. He was taking measurement of woods, giving numbers and maintaining the record. He was earning Rs.20.90 per day and was given one day break per 29 days by deducting wages of Sunday. The Complainant, however, states that, barring Diwali holidays during the period of 18.10.1990 to 21.10.1990, he was in uninterrupted service from 1.4.1984 till 3.1.1991. On 4.1.1991, petitioner's services were terminated. The respondent, despite written representation, refused to reinstate him. No prior notice was given as provided by S. 25 F of theIndustrial Disputes Act, 1947while the respondent had retained services of Raju Shetty, Ramesh Misal, Sunil Erdele, who were juniors to the petitioner. The respondent, thus, violated the provisions of S. 25 G of theIndustrial Disputes Act.

Issues:!. Whether the service of workmen be terminated without giving prior notice?

Reasoning:

According to section 25F. Conditions precedent to retrenchment of workmen. -No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until -(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. But in the present case is that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Cls. (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month's notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Cl. (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity.The employer cannot be justified to continue to engage the workman for years together by giving one day break in every month intending to avoid liability to pay wages payable according to law by resorting to unlawful termination of services of the workman. The plea of the employer that the workman concerned was frequently absent is not supported by any cogent and substantive evidence. Conclusions in the order by the Labour Court appear well reasoned based upon pros and cons of the facts and evidence led by the parties and in conformity with the legal position stated above.

Judgement:Appeal Allowed

Maharashtra State Road Transport Corporation and another vs. Casteribe Rajya Karmachari Sanghatana[footnoteRef:10] [10: 2009 Indlaw SC 1063]

Facts:The case is related to Unfair Labour Practice. A union was alleged to be employed as cleaners of buses by appellant corporation. However, workmen were denied benefit of permanency Unfair labour practice was alleged. Complaints of workmen were allowed by Industrial Tribunal. Tribunal's order was confirmed by Single Judge. Appellant's Letters Patent appeal dismissed. It was held the posts of cleaners were existed in Corporation. Workmen were recruited not in accordance with Standing Order, itself an unfair labour practice. Workmen were exploited by Corporation for years by engaging them on piece rate basis. The Tribunal has power to direct employer to accord permanency to affected employees. Therefore, direction given by Tribunal to confer permanency to workmen was justifiable. Unrecognized trade union and workmen deprived of benefits of status, wages and permanency applicable to post of cleaners. Similarly situated workmen filed complaint individually would get benefits of permanency applicable to post of cleaners.

Issue:1) Whether a direction to the Maharashtra State Road Transport Corporation the Industrial Court, and confirmed by the High Court of giving status, wages and all other benefits of permanency, applicable to the post of Cleaners to the complainants is justified?

Reasoning:

The concerned employees having been exploited by the Corporation for years together by engaging them on piece rate basis, it is too late in the day for them to urge that procedure laid down in Standing Order No. 503 having not been followed, these employees could not be given status and principles of permanency. The argument of the Corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice.It was strenuously urged by the learned Senior Counsel for the Corporation that industrial court having found that the Corporation indulged in unfair labour practice in employing the complainants as casuals on piece rate basis, the only direction that could have been given to the Corporation was to cease and desist from indulging into such unfair labour practice and no direction of according permanency to these employees could have been given. We are afraid, the argument ignores and overlooks the specific power given to the Industrial/Labour Court u/s. 30(1)(b) to take affirmative action against the erring employer which as noticed above is of wide amplitude and comprehends within its fold a direction to the employer to accord permanency to the employees affected by such unfair labour practice.35. Seen thus, the direction of giving status, wages and all other benefits of permanency applicable to the post of cleaners to the complainants, in the facts and circumstances, is justified and warrants no interference. Although complaints filed by workmen on ground of unfair labour practice were non-maintainable, workmen would be entitled to get status, wages and other benefits of permanency to post of cleaners under special circumstances of present case

JudgementAppeal allowed

Conclusion

Its only after taking into consideration the reports of various Committee, the Government is of opinion that it is expedient to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings. Recognition of Trade Union is important as to state their rights and obligations. It is important to confer certain powers on unrecognised unions to provide for declaring certain strikes and lock-outs as illegal strikes and lock-outs. TheMaharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 defines and provide for the prevention of certain unfair labour practices. This statute provides to constitute courts (an independent machinery) for carrying out the purposes or according recognition to trade unions and for enforcing provisions relating to unfair practices.

BibliographyBooks1. Prof. Khan Ahmedullah & Khan Amanullah, Commentary on Labour & Industrial Law( 2nd ed, Asia Law House, Hyderabad,2014)2. Mishra S.N., Labour & Industrial Laws(25th ed, Central Law Publication, Allahabad, 2010)Websites1. www.manupatra.com2. www.westlaw.com

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