# Nov. 24, Agent for ~he intervener: G. H. Ra,jadhyak8ha. RA.TA KULKARNI AND OTHERS v. THE STATE OF BOMBAY

- **Citation:** [1954] 1 S.C.R. 384
- **Court:** Supreme Court of India
- **Decided:** 1951-01-08
- **Case number:** Cases Nos. 87, 88 and 89 of 1951
- **Bench:** Patanjali Sastri C.J, Mehr Chand Mahajan, S.R. DAs, VIVIAN BosE, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nov-24-agent-for-he-intervener-g-h-ra-jadhyak8ha-ra-ta-kulkarni-and-others-v-273
- **Pages:** 8

## Headnote

Constitution of India, arts. 19(1)(a.) and (c}-Bombay Indu;-
1-,"
trial Relations Act, 1946, ss. 3(32), 12, 13-Industrial Disputes
(Appellate Tribunal) Act, 1950, ss. 24, 27-Strike pending appealIllega,lity-Olassification of 'Union as "representative" and ''qual?:.
•
fled'' according to percentage of inernbership-Infringenient of fu.nda.
rnenta,l right to frcedoni of speech and to forni a,ssociations.
A strike during the pendency of an appeal would be an illegal
strike under ss. 24 and 25 of the Industrial Disputes (Appellate
Tribunal) Act, 1950, even though the appeal io not a valid or
competent one.
The Bombay Industrial Relations Act, 1946, provided that a
union may be registered as a" representative union" if it had a
membership of not less than 15 per cent. of the total number of
employees employed in any industry in any local area and if a
union had a membership of less than rn per cent and not less than
5 per cent. it can be registered only as 'qualified union'' :
Held, that the above provisions did not infringe the fundamen-
. tal right of the workers to freedom of speech and expression and to
form associations or unions ·mder article 19(1)(a) and (c) of the
Constitution. The classification of unions as" representative" and
"qualified" according to the percentage of membership and giving
the right to unions with a membership of not less than 15 per cent.
alone to represent the workers was a reason~ble· classification and
did not infringe the rule of equality before the law.

## Text

384
SUPREME COURT REPORTS
[1954]
19S3
_
The result, therefore, is that we affirm the decision
The state af West of the High Court and dismiss this appeal with costs.
Bengal
v.
Appeal dismissed.
Shaikh
Agent for the appellant: P. K. Bose.
8erajuddin
Batley.
Agent for the respondent: A. N. Mitter.
1953
Nov. 24,
Agent for ~he intervener: G. H. Ra,jadhyak8ha.
RA.TA KULKARNI AND OTHERS
v.
THE STATE OF BOMBAY.
[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN,
S.R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]
Constitution of India, arts. 19(1)(a.) and (c}-Bombay Indu;-
1-,"
trial Relations Act, 1946, ss. 3(32), 12, 13-Industrial Disputes
(Appellate Tribunal) Act, 1950, ss. 24, 27-Strike pending appealIllega,lity-Olassification of 'Union as "representative" and ''qual?:.
•
fled'' according to percentage of inernbership-Infringenient of fu.nda.
rnenta,l right to frcedoni of speech and to forni a,ssociations.
A strike during the pendency of an appeal would be an illegal
strike under ss. 24 and 25 of the Industrial Disputes (Appellate
Tribunal) Act, 1950, even though the appeal io not a valid or
competent one.
The Bombay Industrial Relations Act, 1946, provided that a
union may be registered as a" representative union" if it had a
membership of not less than 15 per cent. of the total number of
employees employed in any industry in any local area and if a
union had a membership of less than rn per cent and not less than
5 per cent. it can be registered only as 'qualified union'' :
Held, that the above provisions did not infringe the fundamen-
. tal right of the workers to freedom of speech and expression and to
form associations or unions ·mder article 19(1)(a) and (c) of the
Constitution. The classification of unions as" representative" and
"qualified" according to the percentage of membership and giving
the right to unions with a membership of not less than 15 per cent.
alone to represent the workers was a reason~ble· classification and
did not infringe the rule of equality before the law.
CRIMINAL APPELLATE JURISDICTION: Cases Nos. 87,
88 and 89 of 1951. Appeals under article 132(1) of ~he
Constitution of India from the Judgment and Order
d1J;ted 8th January, 1951, of the High Court of
•
•
S.C.R.
SUPREME COURT REPORTS
385
Judicature at Bombay (Bavdekar and Dixit JJ.) in
Criminal Appeals Nos. 675, 676 and 677 of 1950.
1953
Raja Kulkarni
and Others
v.
N. Bharucha and Dara Vania for the appellants.
111: C. Setalvad, Attorney-General for India (G. N.
Joshi and Porus A. Mehta, with him) for the respondThe State of
Bornbay.
ent.
1953. November 24. The Judgment of the Court was Ghulam Hasa11 J.
delivered by
GHULAM HASAN J.-These consolidated appeals by
the three appellants arise out of the judgment and
order of the High Court of Judicature at Bombay
(Bavdekar and Dixit JJ.), whereby the. High Court
confirmed the convictions of the appellants recorded
by the Presidency Magistrate, Fifth Court, Greater
Bombay, under sect.ion 27 of the Industrial Disputes
(Appellate Tribunal) Act (No. XLVIII of 1950) but
reduced their sentences' from six months' rigorous im~
prisonment to three months' simple imprisonment and
set aside against each of the appellants the sentence of
fine of Rs. 1,000.
The appellants are the President
and the Secretaries of the Mill Mazdoor Sabha, a
union of textile workers in Bombay registered under
the Indian Trade Unions Act. It appears that there
are about 2,10,000 textile workers working in Bombay
and about 35 per cent. of them belong to t):i.ree different
labour unions. The first is called "Rashtriya Mill
Mazdoor Sangh" which is recognized as a "representative union" under the Bombay Industrial Relations
Act, 194(), on the ground that it represents not less
than 15 per cent. of such textile workers. The second
is called "the Mill Mazdoor Sabha", of which the appellants are the office bearers, but this union represents
less than 15 per cent.; and the third is "Girni Kamgar
Union" representing the least percentage of workers. It
is common ground that apart from the members of the
above three unions, a large number of workers representing about 65 per cent. are unorganized and do not
belong to any union ..
On December 9, 1949, the representative union
gave a notice of change under section 42 of the
Bombay Industrial Relations Act, '1946, hereinafter
386
SUPREME COURT REPO.RTS
[1954]
1953
called the Act, to the Mill Owners Association in
Bombay claiming bonus for that year.
On December
Baja Kulkarni 23
h di
c
b
and Others
, t e
spute was re.erred
y the Government of
v.
Bombay to the Industrial Court under section 23 of
The State of
the said Act.
While this dispute was pending, the
Bombay.
Industrial Disputes (Appellate Tribunal) Act (No.,
--
XLVIII of 1950) hereinafter called the Appellate TriGhulmn Hasan J. bunal Act, came into force on May 20, 1950.
On
July 7, the Industrial Court made the award and the
same was published on July 13.
On August 9, the
Mill Owners Association, which was dissatisfied with
the award, filed an appeal before the Appellate Tribunal and an ad interim order was passed on August 10,
directing how the bonus should be paid.
The appellants made speeches on August 14, 15 and 16, exhorting
the workers of the textile industry to go on strike. The
Labour Commissioner thereup~n filed complaints before the Presidency Magistrate on August 28, charging
the appellants with an offence under section 27 of the
Appellate Tribunal Act.
The Mill Mazdoor Sabha~
applied to be made a party to the appeal, but the
application was rejected.
As already stated, the
appellants were convicted by the Presidency Magis'
trate, but their sentences were reduced on appeal by
the High Court.
Two main ·contentions were raised on behalf of the
appellants, firstly that the conviction under section 27
of the Appellate Tribunal Act was illegal, because
there was no competent and valid appeal against the
award before the Appellate Tribunal and secondly
that section 27 of the Act is void as being opposed
to the fundamental rights of the appellants under
articles 19(1)(a) and (c) and 14 of the Constitution.
Both the contentions were repelled by the two learned
Judges who delivered separate but concurrent judg.
ments. The contentions have been reiterated before us.
In order to deal with the first contention, it will be
necessary to refer to certain provisions of. the Appellate Tribunal Act. Section 7 of that Act provides an
appeal to the Appellate Tribunal from any award or
decision of an Industrial Tribunal:
.
,w
4
'
•
S.U:R,.
'\
.
·.·
. -
.
SUPREME COUR'l' REPORTS
387
(a) if the appeal involves any substantial question
of law; or
(b) the award or decision is in respect of any of
the following matters, namely :-
(i) wages,
(ii) bonus or travelling allowance,
1953
Raja Kulkarni
and Others
v.
The State of
Bomb"y.
' *
*
*
Ghulam Hasan J.
::-lection 24(b) prohibits a workman, who is employed
in any industrial establishment, from going on strike
during•the peridency of an appeal before the Appellate
Tribunal and section 25 renders a strike and a lockout as illegal if it is declared, commenced or continued
i\1 contravention of the provisions of section 24. Then
follows the penalty provided for in section 27 ·which
says : "Any person, who instigates or incites others to
take part in, or otherwise acts in furtherance of,. a
strike or lock-out, which is illegal under this Act, shall
be punishable with imprisonment for a term which
may extend .to six months, or with fine which may extend to one. thousand rupees, or with both." The
question is whether the appellants rendered themselves liable to prosecution under section 27, because
they instigated the strike while the appeal was pending before the .Appellate Tribunal.
It is contended that section 24 contemplates the
pendency of a valid and competent appeal, but as no
valid or competent appeal under the law was pending,
the appellants committed no offence under section 27.
We are unable to accept this contention. Section 24
on a plain and natural construction requires for its
application no more than that an appeal should be
pending and there is nothing .in the language to justify
the introduc~ion of the qualification that it should be
valid or competent. · \iVhether the appeal is valid or
competent is a question entirely for the appellate
c.ourt before whom the appeal is filed to determine,
and this determination is possible only after the appeal
is heard, but there is nothing to prevent a party from
filing an appeal which may ultimately be found to be
incompetent, e. g., wh!'ln it is held to be barred by
limitation or -that it does not lie before that court or
388
SUPREME COGRT REPORTS
[1954]
1953
is concluded by a finding of fact under section 100 of
Ra;'aKulkami the Civil Procedure Code.
From the mere fact that
and Othus
such an appeal is held to be unmaintainable on any
v.
ground whatsoever, it does not follow that there was
The State of
no appeal pending before the court. Article 182(2) of
Bombay.
the Indian Limitation Act prescribes three years•
Ghnlmn 80, 0 ,, J. period of limitation for the execution of a decree or
order to run from the date of the final decree or order
of the Appellate Court " when there has been an
appeal." The Privy Council construed the latter
phrase to mean that any application by a party to the
appellate court to set aside or revise a' decree or order
of a court subordinate thereto is an "appeal" within
the meaning of the above provision, even though it is
irregular or incompetent, or the persons affected by
the application to execute were not parties, or it did
not imperil the whole decree or order. They refused
to read into the words any qualification either as to
the character of the appeal, or as to the parties to it.
[Nagendra Nath Dey and Another v. Buresh Chandra
Dey and Other8 (')].
We consider that the word
"appeal" must be construed in its plain and natural
sense without the insertion of any qualifying words
such as are intended to be introduced by the contention raised before us.
There is yet another reason for
not construing the word "appeal" in the manner suggested by the appellants and that is that the legisla-
·ture in introducing this provision contemplated that
industrial peace should not be disturbed so long as the
matter was pending in the court of appeal, irrespective
of the fact whether such an appeal was competent in
law. If this were not the case, the parties could easily
defeat the object of the legislature by arrogating to
themselves the right to decide about the competency
of the appeal without reference to the court, commit a
breach of the peace and escape the penalty imposed
by section 27.
There was no justification for ·the
appellants to instigate the workers in the so,called
bona fide belief that section 27 did not apply to an
appeal which they thought was incompetent.
In this
view of the matter it is not necessary to consider
\l) 59 l. A. 283.
•
r
...
•
S.C.R.
SUPREME COURT REPORTS
389
whether the conferment of a right of appeal during the
1953
pendericy of a proceeding can affect the rights of the Raja Kulkarni
parties to those proceedings and make the order in the
and Others
pending proceeding appealable.
~The second
contention relates to the alleged
infringement of the rights of the appellants under
v.
The State of
Bombay.
article 19( 1) (a) and ( c), read with article 14 of the Ghulam. Hasan J.
Constitution. In order to understand this contention,
a reference to the provisions of the Bombay Industrial
Relations Act, 1946, will be necessary.
Section 3, sub-section (32), defines "representative
of employees " as one entitled to act as such under
section 30, and "representative union," is defined as
a union for the time being registered as a representative union under the Act [sub-section (33)].
Seetion 12 enjoins upon the Registrar of Unions
appointed under the Act to maintain: •
(a) a register of unions registered by him under
the provisions of the Act, and ·
(b) a list of approved unions.
Section 13 deals with the registration of unions by
the Registrar. By the first sub-section 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 the three months next preceding the date of
its application, a membership of not less than 15 per
cent. of the total number of employees employed in
any industry in any local area. If a union does not,
satisfy that· condition, and has a membership of not
less than five per cent., it can be registered as a "qualified union." If neither of these unions has been
registered in respect of an industry, then a union having a membership of not leSf; than 15 per cerit. of the
total number of employees employed in any undertaking in such industry can by an application to the
Registrar be registered as a" primary union." It is
common ground that the Rashtriya Mill Mazdoor
Sangh comes under the .first category and the union
of which the appellants are office-bearers comes under
the second, namely that it is a qualified union. This
registration c11-n be c1u1celled μnder sectio!1 15 if it 1.ias
,'
1933
, Raja Kidkarn.i
and Ot.\ers ,
...
Thi Stalt of_
Bo~o/·
- '
,_,
--
390
- SUPREME COURT REPORTS--;-
[19541
-been -procured by mistake, misrepresentation - or . fraud
or if the, membership has fallen - below, the minimum
required under section 13 for its registration .
It is argued that the right of the appellants to freedom -
of speech and expression and to form
associations or
. Ckulam_HasanJ.- - unions under article 19(1) (a) and (c), read with article 14, conferring the right of equality before _the law or
the equal_ protection of the laws is infringed by the Act,
-inasmuch -as'-it - gives
preference to a
trade
union
upon the -artificial test of having the greater
percentage of membership, namely, not less than· 15 per cent.
\Ve see little
merit in this contention.
It is
obvious
that the
Act imposes no - restriction
either upon the
freedom of__ speech
and expression
of the
textile
workers or their right to form -associations or unions >
indeed it is not denied that the workers have already
formed as many as three unions, though they do not
exhaust the number of workers in
Bombay, - for it
leaves as many as 65 per cent. of workers unorganized
who do not belong to any trade union. - The statute
lays down the minimum qualification of 15 ·per cent of
membership to enable the
Union to be called a "representative union"
so as to represent the interests
of
the entire body of workers in their relations
with the
employers.
After laying down the test of not less than
15 per cent. ·it was perfectly reasonable. not to
allow
any other union such -as the appellants to
interpose
in a dispute on behalf of the textile workers when
they did not command the minimum percentage
or
when their membership fell below the prescribed
percentage.
It
is perfectly open
to the appellants
to
enlist that percentage or even a higher one and claim
- precedence over the Rashtriya Mill Mazdoor Sangh so
as to be able to represent the interests of all_ the workers.
The right to freedom of speech and expression is
not
denied to the appellants, nor are they prohibited from
forming associations or unions.
The
Act makes - no
discrimination between textile workers as a class
but
lays down a reasonable classification to the- effect that -
a certain percentage -of
membership
possessed
by a
union will be allowed to represent the workers as
a
class to the exclusion of others, but there is nothing
• - I 1· .r' ..
, ,,_,,..
:_ ··--
S.C.R.
SUPREME COURT REPORTS -
391
_to prevent the other unions or other -workers
from
forming a fresh' union 'and enrolling a higher - percentage so as to acquire the sole right of representation.
The appellants challenge, the validity of the
Act as
infringing_ their fundamental rights and yet they
base
their case of disc-rimination on the
provisions
of the
same Act. This position is not in accord with reason
or principle.·
\Ve hold, therefore, that the appellants have made
out no case for interference with the orders of the courts
below.
\Ve uphold the convictions and sentences
and
dismiss the appeal.
Appeal dismissed.
Agent for the appellant : Rajinder -Narain. - -
_ Agent for -the respondent : G. H. Rajadhyaksha. -
CENfRAL NATIONAL BANK LTD.
'
v. -
-
- .
UNITED INDUSTRIAL BANK'LTD.
[B. K. MuKHERJEA, BHAGWATI and
JAGANNADHADAS JJ.]
Indian Sale of Goods Act (Ill of 1930), s. 30(2)-,:-lndian Con·
tract Act (IX of 1372), ss. 13, 14--Agreement to sell good1-Buyer
obtaini ig pouession by fraud u•ithout paying price-Rights of bona
fide purchaser from buyer-.. Consenl', meaning of.
The word "consent" in s. 30(2) of the
Indian Sale of Goods
Act means "'agreeing on the same thing in the same sensc
0
as
defined in s. 13 of the Indian Contract Act and does not mean "free
consent" as defined in s. 14. Therefore, possession of goods which
is obtained by a person from another person who has agreed to sdl
them to him, would be possession obtained "with the consent of
the seller''
within the meaning of s. 30(2) of the Sale of Goods
Act, even though it was obtained by fraud, except where the
fraud committed is of such a character
as would prevent there
being consent at all.
The fact that the fraud · or deception practised by the person
obtaining possession is of such a character as to make him guilty
of a criminal offence would_ not make any difference in the appli·
cation of this p~ciple.
A
agreed to sell certain shares to B and sent the ·share
certificates and blank transfer
deeds
to the defendant bank to
deliver them to B on receiving payment of
the price.
The bank
!953
Raja Kulkarni '
and O!hnJ.
v.
TheStauof ·
Bom1'ay.
Ghulam HaJan J.
!953
Nou. 26.