M.L.PENDSE,J. - (1.) Respondent 1, Bombay Electric Supply and Transport Undertaking is an industry covered by the provisions of the Bombay Industrial Relations Act, 1946 (hereinafter for brevity's sake referred as B. I. R. Act) and respondents 3 and 4 are registered as representative unions in accordance with the provisions of S. 13 of B. I. R. Act. Petitioner 1 is a union registered under the Indian Trade Unions Act, and is operative in the industry run by respondent 1. Petitioners 2 to 41 are members of petitioner 1 union. The standing orders determinative of the relations between the employer and employees are settled in accordance with Chap. VII of the B.I.R. Act, and the amended standing orders are in operation on and from 1 September 1955. Standing order 23 deals with the mode of conducting departmental inquiry against a worker charged with misconduct of a nature which is likely to lead to imposition of penalties mentioned in standing orders 21 (e) to 21 (h). Standing order 23, inter alia, provides that at the hearing of the case against the employee, he shall be given an opportunity to answer the charge and permitted to be defended by representative under S. 30 of the B. I. R. Act or by an employee of his choice. Section 30 of the B. I. R. Act sets out the list in the order of preference of those who can represent the employee, and the first in order is a representative union for such industry. Petitioners 2 to 41, who are workmen in the industry, were chargesheeted for misconduct and departmental inquiry was commenced against each of them. In these inquirers the workmen requested that they should be allowed to be defended by representative of petitioner I union and who are not employees of the undertaking. The request was turned down by the inquiry officer on the ground that standing order 23 permits the workman to be defended only by a representative of a representative union or by an employee of his choice and the provisions of S. 22 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to for brevity's sake as M.R.T.U. and P.U.L.P Act), are not applicable. The refusal of the inquiry officer to permit the representative of petitioner I union to defend the workmen has given raise to the filing of the present petition under Article 226 of the Constitution of India.
(2.) Sri Desai, learned counsel appearing on behalf of the petitioners, contended that the stand taken by the undertaking deprives petitioner 1 union of a very valuable right conferred by the Legislature under S. 22 of the M.R.T.U. and P.U.L.P. Act. The right conferred under Sub-sec. (ii) of S. 22, says Sri Desai, is an independent and absolute right and it is not permissible to control or circumscribe this right by reference to the standing orders. To appreciate the submission of the learned counsel, it is necessary first to have a look at the provisions of the B.I.R. Act, which was enacted in the year 1947 to regulate the relations of employers and employees to make provisions for settlement of industrial disputes and to provide for certain other purposes. Section 2 (3) provides that the Act shall apply to all the industries to which the Bombay Industrial Disputes Act, 1938, was earlier applicable. It is not in dispute that provisions of B. I. R. Act apply to the industry of respondent 1. Chapter III of this Act enables the Registrar to register any trade union as a representative union on compliance with certain conditions set out in S. 13 of the Act. Section 27A of this Act provides that' save as provided in Sections 32, 33 and 33A, no employee shall be allowed to appear or act in any proceeding under this Act except through the representative of the employees. As mentioned herein above, under S. '30 of. the B.I.R. Act, a representative union for the industry is considered as a representative of the employee. A plain reading of S. 27A makes it clear that it is only a representative union which can represent the workman in any proceedings' under the Act. The proceedings under the Act are the proceedings before a Conciliator, a Board, an Arbitrator, a Wage Board, a Labour Board and the Industrial Court. is obvious that the bar under S. 27A of the Act is applicable only in respect of proceedings taken under the Act and it hardly' requires to be stated that the departmental, inquiry conducted by the employer against the workman is not a proceeding under the Act. Chapter VII of the B. I. R. Act deals with the standing orders and S. 35 provides that within six weeks from the date of the application of the Act to an industry, the, employer should submit for approval to the Commissioner of Labour, draft standing order regulating the relations between him and hit employees, with regard to the industrial matters mentioned in Sch. I to the Act. Commissioner of Labour, has to settle that standing orders after consulting the representatives of the employees and the employer and the standing orders so settled are to forwarded to the Registrar and from them after it can become operative. Sub-section of S. 40 reads as under : "40. (1) Standing orders in respect of an employer and his employees settled under this chapter and in operation, or where there are no such standing order model standing orders, if any applicable under the provisions of Sub-sec. (5) of S. 35 shall be determinative of the relations between the employer and his employees in regard to all industrial matters specified in Sch. I." Standing order 23 providing for holding of a departmental inquiry against the workman charged of misconduct has been duly settled by the Labour Commissioner an was in operation on the date of commencement of the inquiry against the petitioner-workmen.
(3.) The Government of Maharashtra enacted the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practises Act, 1971, and the preamble recites that the Act was passed to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings, to state their rights and obligations and to confer certain powers on unrecognised unions. Sub-section (3) of S. 2 of this Act provides that the Act shall apply to the industries to which the B.I.R. Act applies, except as otherwise specifically provided. Chapter II deals with recognition of unions, and the expression " recognised union" has been defined under S. 3 (13) and it means a union which has been issued a certificate of recognition under. Chap III. Sub-section (2) of S. 10 of Chap. III makes it clear that the provisions of Chap. III shall not apply to undertakings in industries to which the provisions of the B. I. R. Act applies. It is, therefore, obvious that the union operating in an industry to which B. I.R. Act applies cannot seek a recognition under the provisions of Chap. III of this Act. Chapter IV deals with obligation and rights of recognised unions, other unions and certain employees. Section 20 deals with the rights of recognised union, while S. 21 deals with right to appear or act in proceedings relating to certain unfair labour practices. Section 12 deals with rights of unrecognised unions and reads as follows : "22. Such officers, members of the office staff and members of any union (other than a recognised union) as may be authorised by or under the rules made in this behalf by the state Government, shall, in such manner and subject to such conditions as may be prescribed, have a right- (i) to meet and discuss with an employer or any person appointed by him in that behalf, the grievances of any individual member relating to his discharge, removal, retrenchment, termination of service and suspension ; and (ii) to appear on behalf of any of its members employed in the undertaking in any domestic or departmental inquiry held by the employer." ;