# [1985] 2 S.C.R. 492

- **Citation:** [1985] 2 S.C.R. 492
- **Court:** Supreme Court of India
- **Decided:** 1984-12-21
- **Bench:** D.A. Desid, V. Khalid
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-2-s-c-r-492-8931
- **Pages:** 24

## Headnote

Constitution of India, 1951, Articles 14, 1' (1) (a) and (c)-Sec. 20,
Mahurashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 conferring exclusive right on recognised union to represent
workmen in disputes-Whttht!r ultra virl!s the Constuution.
Milharashtra Reco:nition of Trade Unions and Prevention of Unfair
Practices A.ct 1J11,-se~. 21(2) (b)-E;xclusive Right conferred on recognised
union to represent worknzen In disputes-Co11stitutional validity of-Art: 14 and
19 (!)(a) and (c) of the Constitution.
Industrial Disputes A.ct-Sel/lement between employer and recognised
uni on· Provision for deduction of 15% from gross arrears payable to all workmen
including members of unrecognised [Jnion-A1nount to be credited t• recognised
Union's fund-Constitutional validity of-Whether unconstitutional
vis-a~vis
workmen of unrecognised Union.
Payment of Wages A.ct-Deduction 11 ade from wages and salary payable
to an employee-Such deduction not authorised by the Act but by a SettlementConsent of Parties for such deduction from wages-Validity and effect of.
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 tbt:
section. Section 20 enumerates the rights of a recognised union. Clause
(b) of sub-sec. (2) of s.20 confefs an exclusive- right on a recognised union
to represent workmen of an undertaking in certain disputes and makes the
decisio~ 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 proceeding under the Industrial Disputes Act 1947 except in a proceeding
in which the legality or propriety of an order of dismissal, discharge, removaJ,
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 disputes with its union, which was
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recognised under the 1971 Act. Clause 17 of the Settlt;ment provided that tlle
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WORKERS UNIOK •. BALMER J.AWRII! CO.
493
company shaII deduct an amount equivalent to 15% of the gross arrears
payable under the Sett1en1ent to each employee towards contribution to the
fund of the recognised union. The appellant. a non.recognised union cballenaed
in a writ petition before the High Court the constitutional validity of Clause 17
of tbe Settlement on the grounds, inter alia, (i) that Clause 17 permits a
cOmpulsory exaction not permitted 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
unquestionably denies to the work.men who are not members of a recognised
union, the fundamental freedom &uaranteed under Article 19 (I) (a) and (c)
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·potitical philosophy contrary to the philosophy
of non-members; (b) it denies to the unrecognised union, the right to effecti.
vely 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 tbc Scbeme of the 1971 Act would be advantageous. On the
advent of industrial revolution which aimed at mass production

## Text

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BALMER LAWRIE WORKERS' UNION, BOMBAY AND ANR.
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BALMER LAWRIE AND CO. LTD. AND ORS.
December 21, 1984
[D.A. DESID AND V. KHALID, JJ.]
Constitution of India, 1951, Articles 14, 1' (1) (a) and (c)-Sec. 20,
Mahurashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 conferring exclusive right on recognised union to represent
workmen in disputes-Whttht!r ultra virl!s the Constuution.
Milharashtra Reco:nition of Trade Unions and Prevention of Unfair
Practices A.ct 1J11,-se~. 21(2) (b)-E;xclusive Right conferred on recognised
union to represent worknzen In disputes-Co11stitutional validity of-Art: 14 and
19 (!)(a) and (c) of the Constitution.
Industrial Disputes A.ct-Sel/lement between employer and recognised
uni on· Provision for deduction of 15% from gross arrears payable to all workmen
including members of unrecognised [Jnion-A1nount to be credited t• recognised
Union's fund-Constitutional validity of-Whether unconstitutional
vis-a~vis
workmen of unrecognised Union.
Payment of Wages A.ct-Deduction 11 ade from wages and salary payable
to an employee-Such deduction not authorised by the Act but by a SettlementConsent of Parties for such deduction from wages-Validity and effect of.
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 tbt:
section. Section 20 enumerates the rights of a recognised union. Clause
(b) of sub-sec. (2) of s.20 confefs an exclusive- right on a recognised union
to represent workmen of an undertaking in certain disputes and makes the
decisio~ 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 proceeding under the Industrial Disputes Act 1947 except in a proceeding
in which the legality or propriety of an order of dismissal, discharge, removaJ,
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 disputes with its union, which was
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recognised under the 1971 Act. Clause 17 of the Settlt;ment provided that tlle
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WORKERS UNIOK •. BALMER J.AWRII! CO.
493
company shaII deduct an amount equivalent to 15% of the gross arrears
payable under the Sett1en1ent to each employee towards contribution to the
fund of the recognised union. The appellant. a non.recognised union cballenaed
in a writ petition before the High Court the constitutional validity of Clause 17
of tbe Settlement on the grounds, inter alia, (i) that Clause 17 permits a
cOmpulsory exaction not permitted 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
unquestionably denies to the work.men who are not members of a recognised
union, the fundamental freedom &uaranteed under Article 19 (I) (a) and (c)
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·potitical philosophy contrary to the philosophy
of non-members; (b) it denies to the unrecognised union, the right to effecti.
vely 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 tbc Scbeme 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 represent·
ing the ora:anised labour developed as an adjunct of political party. The
organised Labour as a vote bank 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 political parties bad the pernicious
effect on trade unions. Multiplicity of political parties had its spill over in
multiplicity of trade unions seek.in1 to represent workmen in an industrial
undertakine 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. 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 develop~d. In fact, even amongst trade
union leaders there was nCar 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-heartedly expressing itself in favour of the concept of recognised
union and it being clothed with powers of sole bargaining asent with exclusive
right to represent workmen, addressed itself only to the question of the
method of ascertaining which amongst various dval unions must be accorded
the status of a recognised union and it was agreed that the union which
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SUPREME COURT REPORTS
(1985) ! S.C.R.
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 ; SOIB ; 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 undcrtaking,or an industry, the union having
the lara:e~t 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 represents alt the workmeQ 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-Fl
1.3. Status to b~ the sole bargaining agent as a recognised union is a
hard \lr'On battle and need not be permitted to be frittered away by a senti·
mental approach that where trade unio.n 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 bis 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 t9 be examined in the large
perspective of public interest of ·peace and harmony in the industry, healthy
industrial relations and lart,e national interest which eschews strikes, lock·
outs, conflict and confrontation. [504H ; SOSA-BJ
2.1. Sec. 20, sub.sec. 2 while conferring exclusive right on the recognised
union to represent wo~kmen in any proceeding under the Industrial Disputes
Act. 1947 simultaneou'Sly 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 leg;;i.l 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, .~ho has bis 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 Disput~s Act, 1917.
Once this protection is assured, the question is whether the status to represent
workmen conferred on a i-ecognised union to the exclusion of any individual
workman or one or two workmen and who are not members of the recognised
union would deny ·10 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 proceed·
ing under the Industrial Disputes 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 bis service does nOt deny him the freedom·
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WORKERS UNION V. BALMER LAWRIE CO.
495
of speech and expression or to form an association. Conferring the itatus or
recognised union on the union satisfying certain pre·requisitcs which the other
union io; not in a position to s<1tisfy doe$ not deny the right to form association
[506E F]
2.3. Forming an assoi..iatici1 is c.:ntin:ly inJ..::pcndcnt and different from
it~ recognition. R~cognidon of a union confers 1igh.s, duties and obligations,
Non-conf~rring of such rirht<>, duties and obligations 0:1 a union other than
the recognised unio:1 dots not rut it on nn inferior position nor the charge of
discrimination can be enfert«ined. The rne'ubcrs of a non·recognised associa·
tion can fully enj 1Jy their fundaroental frecdo<n of speech and expression as
also to form E1e asS'o..:iation. The L:....>gislaturc h<is, in tact,
ta~cn note of the
existing phenomenon in trade unions where there would be unions claiming to
represent workmen in an undertaking or industry other than re<:ognised union.
Sec. 21of19il Act confers son1e specific rights on su.:h non-recognised union~,
one such being the rig~t to meet and discuss with the employer the grievances
of individu~l workman
The Legislature has made a clear distinction between
individ11al 3rievance of a workinan and an intlustr.ial dispute aifecting all or a
large number of workmen. In the case of even an unrec(ignised union, it enjoys
the statutory right to n1cet and discuss the grievance of individual workman
with einp-loyer. It clso enj-.•ys tht- statutory right to appear and participate in a
domestic or deparltnental enquiry in which itsh 1nember is involved. This is
statutory recognition or an unrecognised union. The exciusion is partial and
the embargo on such unrecognised union or individual workman to represent
workmen is in the large intt:rc:,l of industry, public jnterc:i,;t <ind national
int~rest. Such ..i. pr,.Jvision could not be said to be violative of fundamental
freedom guaranteed under Art. 19(' \(<i) or 19(1)(c) of the Constitution.
[506H; 507A-D]
3. Where a represent ltive union acts in exercise of the powers conferred
by Sec. 2n(2) it is obligatory upon it to act in a manner as not to discriminate
between it~ men1ber~ :1nd other workmen or the unpertak.ing -who are not its
members. However .. vhen a settlement is roached in a proceeding under the
Industrial Disputes Act in which a representative union has appeared, the same
is to be binding: on all the work1nen of the undertaking
This would mean
that neither the representative union nor the employer can di~crin1inate betwee•
members of the reprcs::ntative union and other work.men who are not members.
Both the benefits, advantage<;, disadvantages or liabilities arising out of a
aettlcment in any proceeding under the Industrial Disputes Act to which a
representative union is a party shall be equally applicable to each work.man iE
the undertakingThere shall not be the slightest trace or discriminatio•
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. [51 lF-H ; 512A-B]
(4) It is well kno\\n that no deduction could be made from the wages and
salary payable to a workn1en governed by the Payment of Wage!! Act unless
authorised by that Act. A settlement arrived at on consent of parties ca!I
however permit a deduction as it is the outcome of understanding between the
parties even though such deduction may not be authorised or legally permissble
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under the Payment of Wages Act. [512D·E]
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(5) If under ·'a settlen1ent 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 wollld be available to the workmen who are not members of the
representative uniOn and who may have formed a rival union. If these workmen 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 of 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 tradeunioti funds. Thereby the workn1an 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 avoidei:i.
Therefore clause 17 of
the Settlement would not be invalid despite the lack of consent of the workmen
who are men1bers,. 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 af Bombay, [1954] SCR 384, relied upon.
Rum Prasad Vishwakarnia v. The Chairman, Industrial Tribunal, [1964] 3
SCR 196, held in-applicable.
Girja Shankdr 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.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3527 (NL) of
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1984.
From the Judgment and Order/decree dated Ju[y 27, 1984 of
the High Court of Bombay in Appeal No. 660 of 1984 .
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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.
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WORKERS UNION '· BALMER LAWRIE co. (Desai, J.)
497
M.K. Ramamurthi, Mrs. Urmila Sirur, F.D
Damania, A.M.
Dittia and D.N. Misra or the Respondents.
M.N. Shroff the State of Maharashtra.
Tbe 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) tiled Writ Petition No. 1518 of 1984 in the High
Court of Judicature at Bom'iay challenging the constitutional validity
of Sec. 20 (2\ read with Schedule I of the Maharashtra Recognition
of Trade Union & Pwcent«rn of Unfair Labour Practices Act, 1971
('1971 Act' for 'hurt). r .. , this petition, they impleaded the employer
company and the Balmer Lawrie fmployees Union ('Recognised
Union' for short) .
Few facts giving rise to the writ pelltwn may be stated. A
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settlement was arrived at between the employer and the recognised
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union resolving a number of industrial disputes pending between them.
Clause 17 of the Settlement reads as under :
"17. Arrears will be 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
settleme:Jt 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
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SUPREME COURT REPORTS
(1985] 2 S.C.R.
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 employu, 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
nnconstitutional 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 toform association guaranteed by Art 19 (l) (c ). There were 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
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that if Sec. 20 (2) is so interpereted 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).
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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;
(bl no employee shall be allowed to appear or act or be
· allowed to be represented in any proceedings under the
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WORKERS UNION v. BALl\IER LAWRIE co. (Desai,!.)
499
Central Act (not being a proceeding in which the legality or propriety of an order of dismissal, discharge,
removal, r~trenchment, 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 onion 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 ('ID Act' for
short) viobte the fundamental freedo•n 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 [",1r facilitating collective bargaining
for certain undertakings, to state their rights and obligations, to
confer certain po\vers on unrecognised unions ; to provide for declaring certain 1trikes and lock-outs as illegal strikes and lock-outs ; to
define and peovide for the prevention of certain unfair labour practices ; to constitute c.mrt (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
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
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of provisions included in Chapter Ill headed recognition of unions
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[1985j :i s.c.R..
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. 11 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 under·
taking. 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 employee~
in that undertaking and the emp!Jyers and the employees affected by
the proposal to show cau•e why the recognition should n )t be granted.
If after considering all the objections that may have been lodged
pursuant to the notice given as hereinbefore indicatea, the Industrial
Court comes to the conclushn 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 Co11rt 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 recogni,ed'.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 (I) (a) and
(c) of the Constitution. Art. 19 (l) (a) guarantees to the citizens fundamental freedom of speech and expression and Art. 19 (I) (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
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WORKERS UNION v. BALMER LAWRIE co. (Desai, J.)
501
proceeding under the ID Act, 1947, would it contravene the fundaA
mental freedoms guaranteed by Art. 19 (1) (a) and 19 (I) (c) 1
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
B
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 emrloyer 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.
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i:apacity, entitled to sue and be sue.din its registered name and enter
into contracts as separate entity, separate from its members. This
itatus 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 "lndustrywide
bargaining
and workshops or plant bargaining are,
bow ever,
cloiely 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 arc its background." Quest of justice by labour,
.victim for· long of exploitation of human being by impersonal juristic
persons such as corporation. led to the formation of industrial norms
by a legislative enactment generally styled as labour law The main
object of labour Jaw 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 fulfiJJs one
of its objecll. "('.)
In the context of "the political society which we rdolved to
•et 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. Th: 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 Law! Review Co111mittee, Govt. of Gujarat
Publicatiou 1'974 Page'·
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WORKERS UNION v. BALMER LAWRIE co. (Desai, J.)
503
city 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 exhorbitant and untenable demands. The emerging
situation led to conflict and confrontation disturbing industrial peace
and harmony dir~ctly affecting production. In the first Five Year
Plan it was observed :
"Answer to class antagonism and world conflict will
arrive soon if we succeed iu discovering a sound basis for
human relations in industry. Industrial relations are therefore, 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 intere-
£ts."
A need was felt that where t:1ere 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 29,h Session held in July I 970 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 union ~is the soli.; 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 ihlf 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 among>t vo rious rival unions must
be accorded the status of a recogni,;ed union. Planting itself firmly in
favour of democratic principle, it was agreed that the union which
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. 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 IndusA
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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.
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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 ierminated 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-
WORKERS UNION v. BALMER LAWRIE co. (Desai, J.)
505
not forge a to I of a trade union or even if they form one, the employer can ignore it with impunity. ls there any substance either in the
contention or the apprenension voiced ? 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 relation; 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 (I) (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 bas acquireJ 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 freedom to form associati,111. 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
seperate 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 safeguard 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 rccogni>ed union It was stated that Sec. :o (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 courts 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.