CHALTHAN KAMDAR MANDAL Vs. COMMISSIONER OF LABOUR AHMEDABAD
LAWS(GJH)-1979-12-1
HIGH COURT OF GUJARAT
Decided on December 27,1979

CHALTHAN KAMDAR MANDAL Appellant
VERSUS
COMMISSIONER OF LABOUR,AHMEDABAD Respondents

JUDGEMENT

B.J.DIVAN - (1.) The first petitioner is Chalthan Kamdar Mandal and the second petitioners are the five elected representatives of Magdoot and Unitex Dyeing & Printing Works Kabilpore Navsari. The grievance of the petitioners is that the first respondent herein the Commissioner of Labour for the State of Gujarat is not issuing to them failure certificates on failure of conciliation proceedings before the Conciliator who is the second respondent in this special civil application. The case of the petitioners is that Chalthan Kamdar Mandal the first petitioner is the approved union under the Bombay Industrial Relations 24ct so far as the dyeing and printing works in Navsari Taluka of Valsad District are concerned. In order to expedite solution of labour problems the Mandal applied to Government Labour Office Bulsar to elect five representative under the Bombay Industrial Relations Act sec. 28 so far as Meghdoot Dyeing & Printing Works were concerned. Five representatives were duly elected so far as Meghdoot Dyeing & Printing Works were concerned and these five representatives of Meghdoot Dyeing & Printing Works and the five elected representatives of Unitex Dyeing & Printing Works Kabilpore Navsari the fourth respondent herein applied in Forms L and N regarding notice of change along with the demands of labourers in both these Dyeing & Printing Works. The Conciliator functioning under the Bombay Industrial Relations Act admitted both the L Form and N Form and started conciliation proceedings under the Act. On September 28 1979 the Mandal asked the Conciliator to issue a failure certificate so as to enable the five elected representatives to go to the Industrial CoUrt as there was no further possibility for settlement through conciliation. The Conciliator who is the Assistant Commissioner of Labour Surat refused to give the failure certificate on the ground that he would submit the failure certificate to Government and the Government in its turn would send a notification to the Industrial Court referring the dispute to the Industrial Court.
(2.) It is his refusal to issue a failure certificate to the Mandal and to the elected representatives of the workers that has led to the filing of this special civil application.
(3.) Under sec. 28 of the Bombay Industrial Relations Act where there is no Representative Union in respect of any industry in any local area the employees in each undertaking in the industry and in each occupation therein may in the prescribed manner elect five persons from among themselves to represent them for the purposes of this Act and under sub- sec. (2) The persons if any elected under sub-sec. (1) shall function in such manner as may be prescribed. It is obvious from the scheme of sub-secs. (1) and (2)of sec. 28 that the elected representatives elected in accordance with sec. 28 (1) are to take the place of a representative union for the industry in the particular local area. If there is no represen- tative union elected representatives represent the workers for the purpose of the Act. Under sec. 73-A. Notwithstanding anything contained in this Act a registered union which is a representatives of employees and which is also an approved union may refer any industrial dispute for arbitration to the Industrial Court. The proviso to sec. 73-A is not ma- terial for the purposes of this judgment. It is true that the Chalthan Kambar Mandal is not a representative union but it is an approved union and at the same time the five elected representative who are the second petitioners before us are under sec. 28 entitled to represent the workers of the undertaking for the purposes of the Act. The Mandal is a registered union and through its agency the second petitioners the five elected representatives have been elected and hence under sec. 28 (1) the elected representatives represent the employees for the purposes of the Act. Re- ading sec. 78-A in the light of sec. 28 (1) though there is no representa- tive union on the scene in the instant case still se have got five elected representatives who represent the employees for the purposes of the Act and they are functioning through the approved union namely the Chalt- han Kamdar Mandal. Under these circumstances the requirements of sec. 73 are satisfied when the provisions of sec. 28 are read into and along with the provisions of sec. 73-A. Hence in our opinion it was obligatory on the Commissioner of Labour and the Assistant Commissioner of Labour as the case may be to issue a failure certificate indicating that the conciliation proceedings have failed so that the elected representatives can refer the industrial disputes between the workers and the employers for arbitration to the Industrial Court under sec. 73-A obviating two rounds namely the round of report by the Conciliatory to the Government and the second round where the Government would on its own make a reference to the Industrial Court. The machinery of sec. 73-A is intended to eliminate as far as possible unnecessary procedural hold-ups and it is for this pur- pose that the whole scheme of sec 28 has been evoked by the Legislature to take care of a situation where though there is a registered union which may be regarded as approved union still there is no representative union for the purposes of the Act. Otherwise we fail to understand what function the elected representatives have to perform if they are not to represent the employees for the purposes of the Act;


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