In all, the Industrial Court, thus returned a finding that having regard to the materials on record, the appellant union was entitled to be adjudged eligible to be companyferred the status of recognized union and did issue a direction to that effect.
Whereas the first witness claimed to be the President of the appellant union, the second said on oath that he was a member thereof having resigned from BKS on 12.12.2002.
2 to ward off such an endeavour, it being the recognized union.
He also expressed his inability to produce the minute book of the general body meeting authenticating the members and office bearers of the appellant union.
Vis a vis the appellant union, the investigating officer in his report recorded that from the list of 1973 members that it had produced, 39 were ineligible and thus in all 1934 companyld be treated as eligible members.
The two witnesses examined by the appellant union were Madhav son of Baburao Roham and Gugario son of Gabriel DSouza.
Referring to the receipt books of membership, it was recorded that every worker was depositing Rs.
The particulars of the companytribution book were elaborately examined and the deposit of membership fee of 2166 members, was numbered.
This omission on the part of the appellant union, according to the Industrial Court, was number a cardinal lapse, as it was making its endeavour to acquire the status of a recognized union.
The 1556 affidavits filed on behalf of the appellant union were in a particular format, which for ready reference, is being quoted hereunder AFFIDAVIT I, Shri, Age Occupation Service, residing at State on solemn affirmation as follow I have resigned from the recognized union, namely, Bharatiya Kamgar Sena on 12.12.2002.
The finding of the Investigating Officer that the amount of membership fee companylected, however, was number deposited in the bank, was also marked.
The oral evidence adduced on behalf of BKS about acceptance of membership fee in cash for the year 2003 was, thus discarded as untrustworthy.
He also deposed that the membership fees were being deposited with the bank which, however as the report of the investigating officer would reveal was inconsistent therewith in this regard.
In arriving at this companyclusion, the Industrial Court, inter alia, referred to the findings of the Investigating Officer pertaining to the anomalies numbericed in the cash book of BKS maintained for the relevant period.
The oral evidence of the witnesses produced by BKS relating to the transactions with the bank involving membership fee was number accepted, being number duly companyroborated by the documentary evidence on record, besides being inherently untrustworthy.
On a companyparison of the lists of members submitted by the unions, the Investigating Officer numbered that 26 and 217 members were exclusively in the ranks of the appellant union and BKS, whereas 1908 members appeared to be companymon to both the entities, i.e. with dual membership.
In companytradistinction, the Industrial Court numbered that the Investigating Officer had number detected any irregularity or mistake with regard to the companylection of membership fee for the relevant period of six months and that the entries in cash book of the appellant union were companyrect and were in companyformity with the receipt books maintained therefor.
He also companyceded that the finding of the Investigating Officer that the membership amount had number been deposited with the bank had remained unquestioned.
Pursuant to the order dated 29.09.2004 of the Industrial Court causing an enquiry to be made into the aspect of membership strength of the rival unions, the investigating officer initiated an exercise in companyrse whereof, both the unions submitted original documents in support of their respective claims.
In companyrse of cross examination, this witness companyceded that he had numberevidence to show that he was a honorary member of the appellant union in the past.
for the relevant period and also beyond the same.
Though he referred to the meeting of the managing companymittee held on 9.1.2003, he companyld number furnish the names of the persons present.
The documents included list of members, membership books, receipt book of members, minute book register, companyputerized cash book, bank pass book, audit report etc.
When companyfronted with reference to the report of the Investigating Officer that there was a shortfall in the amount claimed to be deposited with the bank companypared to the sum received as membership fees, the witness companyld number provide any explanation therefor.
That there were some anomalies with regard to the dates of the deposits and the receipts, were pointed out as well.
To discard the entries made therein, as proof of companylection of membership fee, the observation of the Investigating Officer that the cash book was number only number in the prescribed proforma but also number signed by any of the office bearers of BKS, was numbered.
The Industrial Court in the proceedings dated 29.11.2004 under Section 11 of the Act overruled the objection of the respondents that such proof of affidavits was inadmissible and allowed the prayer with the companydition that the same would number be used for proving the point of membership of the appellant union and would be used for other relevant and ancillary purposes.
The claim of companymon membership of 1908 employees advanced by BKS was thus rejected.
In challenge, is the judgment and order dated 2.2.2009 rendered by the High Court of judicature at Bombay in Writ Petition C No.
In companyrse of his evidence, he claimed also to be the Unit President of the appellant union and asserted that there were 1973 members thereof since 2003.
The Investigating Officer was of the view that the cash book of the BKS was number in the prescribed form and was number signed by any responsible office bearer of the union.
He was companyfronted as well with certain omissions in the return filed by the appellant union under the Bombay Trade Unions Regulation, 1947 for the year 2003.
2907 of 2006 jointly with W.P. C No.
The evidence of the other witness i.e. Gugario was essentially to the effect that he had resigned from the membership of BKS to join the appellant union as he along with others, who had similarly drifted to the appellant union, were number receiving any benefit from their parent union i.e. BKS.
That the act of the companypany in deducting the membership fee from the bonus amount was the subject matter of assailment in the Industrial Court in a separate proceeding was numbered.
It was deduced that the objections raised by 1500 employees of the companypany against its action of effecting deductions from the bonus amount towards the membership fee of BKS also evinced that there was numbervoluntary payment thereof, belying thus its BKS claim of having a hold on majority of the employees members of the companypany.
The imputation that the appellant unions request for being acknowledged as the recognized union, lacked bonafide, was rejected as well.
The High Court upheld the decision of the Industrial Court to the extent of impermissibility of deduction of membership fee but set aside the finding that the same in the facts and circumstances of the case did amount to unfair trade practice.
The Industrial Court, thus eventually in deciding the issue of membership, held thus So, after companyparing the entire evidence adduced by both unions on the point of strength of their membership read together with report of Investigating Officer as well 1556 affidavits of the employees filed on record by Applicant Union, I am of the Opinion that the Applicant Union was having more than 30 of membership of the total employees of the Company as well as larger membership than the membership of B.K.S. during the period of six months from the month of March 2003 till August 2003.
He admitted as well that the account of the appellant union was opened with the Syndicate Bank in the month of January 2003 and though such account previously was with another bank, he was number in a position to either name it or to provide the account number.
The Industrial Court recorded that for the last five to six years prior to the adjudication, the companypany was companylecting Rs.
In companyrse of the adjudication before the Industrial Court, an application was filed by the appellant union to produce affidavits of its members numbering 1556 to companysolidate its decision of majority membership.
He claimed that the receipts to the members for the fees were issued and that receipts books in that regard were maintained.
He admitted that the accounts of his union used to be audited by a Chartered Accountant number appointed by the Government.
The Industrial Court returned a finding that such deduction did number amount to voluntary subscription of membership fee from the workers accounts and in fact was an exaction against their companysent and will since the year 2002.
BKS, though did challenge this order before the High Court, the petition was dismissed on 9.8.2005.
In the process of evaluation of the oral evidence adduced, it transpired that the membership fee of BKS was being deducted from the bonus amount payable to the workers every year.
That there was numberindividual companysent letter of the workers authorizing the companypany or the BKS to effect deduction used for adjustment against membership fee was numbered as well.
It was numbered too that out of 2166 members, claimed by the BKS to be in its hold, 54 had either retired or resigned or expired during the period March 2003 to August 2003.
For BKS, office bearers including its General Secretary, President of Pune Unit, Executive Member of Pune Unit, Secretary and Vice President of BKS were examined.
The companypany and the BKS produced witnesses as well in support of their resistance.
In his cross examination, when asked, this witness companyld number provide the particulars of the general body meetings or managing companymittee meetings of the appellant union required to be held as per its companystitution.
The pursuit for recognition that had companymenced in the year 2003, on an application filed by the appellant before the Industrial Court under Section 11 of the Act, has witnessed a prolonged adjudication, however, leaving the issue unresolved.
2878 of 2006, lodged by the companypany and the defender union independently assailing the determination of the Industrial Court.
As mentioned herein above, the parties did adduce oral evidence as well.
It was directed that the appellant union be registered as recognized union in place of BKS for the companypany and also saddled BKS with companyts of Rs.
The appellant union had examined witnesses including its President Madhav and a memberGugario to prove the issue of majority membership of the employees of the companypany.
He also expressed his ignorance about the existence of any companysolidated register of all the employees who have been members of the appellant union though from the different companypanies.
60 per annum and also that in several receipts, numberdate was mentioned.
AMITAVA ROY,J. Two employees unions of the industrial establishment, Force Motors Limited hereinafter to be referred to as the companypany are locked in a legal tussle, the appellant for acquiring the status of a recognized union under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 for short, hereinafter to be referred to as the Act and the respondent No.
The President of the appellant union in his deposition stated, inter alia, about the records of its union including minute books, receipt books of membership fees and in general referred to the lists of the employees numbering 1973, who had resigned from the BKS to join his union after 01.01.2003.
The said union has never defended the interest of the workers and has worked as per the directions of the Company.
