ASHOK VISHNU KATE Vs. M R BHOPE JUDGE LABOUR COURT BOMBAY

JUDGEMENT

(1.) THE question which falls for determination in this appeal is whether the Labour Court can entertain complaint of an employee under Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act") before the employer had discharged or dismissed the employee. The question requires critical evaluation as the issue arises in large number of complaints pending before the Labour Courts. The facts which gave rise to filing of the appeal are required to be briefly stated to appreciate the circumstances in which the issue.

(2.) APPELLANT No. 1 is employed by respondent No. 2 Company and the appellant is a member of the Maharashtra General Kamgar Union. The company served charge-sheet upon appellant No. 1 to show cause why the appellant should not be dismissed from employment for certain misconduct. Appellant No. 1 instituted complaint (UPL) No. 90 of 1989 before the presiding Officer, 1st Labour Court at Bombay alleging that respondent No. 2 is engaged in commission of unfair labour practice under Item No. 1 of Schedule IV of the Act. Appellant No. 1 complained that in pursuance of the show cause notice inquiry is conducted in utter disregard to the principles of natural justice. Appellant No. 1 claimed that the proceedings for dismissal are commenced by the Company not only against appellant No. 1 but against 40 other members of the Union and the action amounts to victimisation. Appellant No. 1 claimed that the company is ought to victimise the employees on account of their loyalty to the Union and for refusal to join another union which is sponsored by the management. Appellant No. 1 apprehended that his service would be terminated and therefore lodged complaint in accordance with section 28 (1) of the Act. Appellant No. 1 also sought interim relief in accordance with sub-section

(3.) BEFORE adverting to the relevant provisions of the Act and the contentions raised during hearing, it is necessary to refer to the circumstances which led to passing of the Act. The Government of Maharashtra recognised that the development of strong, independent and responsible unions and an orderly, rational environment free from unfair labour practices are the two pre-requisites of effective collective bargaining. There was no effective legislation providing for recognition of representative trade unions as exclusive bargaining agent except the Bombay Industrial Relations Act, 1946, which applied only to a few industries. There was also no systematic law to determine and penalise unfair labour practices. The Government of Maharashtra therefore in February 1968 appointed a Tripartite Committee under the Chairmanship of the President, Industrial Court, Bombay, for defining the activities on the part of the employers and workers and their organisations which should be treated as unfair labour practices and for suggesting action which should be taken against employers or workers or, as the case may be, their organisations for engaging in such unfair labour practices. The Committee after detailed deliberations submitted an unanimous report to the State Government. The Committee noticed that the concept of unfair labour practice arose after a long drawn out struggle waged by the trade unions in the west for establishing and stabilising the practice of collective bargaining. The emergence of the practice of collective bargaining marks a distinct mile-stone in the progress of the trade union movement. The rise of the practice of collective bargaining has played an extremely important role in the history of industrial relations. In United State of America after great economic depression of nineteen thirties, the need for specific legislative protection was felt and this need was translated into definite and clear-cut legislative provisions. The provisions intended to remove the hurdles in the way of collective bargaining were summed up in the phrase "unfair labour practices". Unfair labour practices were spot-lighted and the United States Congress proceeded to pass a comprehensive enactment known as National Labour Relations Act, 1935, which is popularly known as "the Wagner Act". Subsequently the Congress passed a legislation known as "labour Management Relations Act, 1947", popularly called the "taft-Hartley Act". This legislation made detailed provisions listing the unfair labour practices. Since independence the Government of India is playing an important role in the shaping of industrial relations in the country. Though several legislation dealing with the industrial disputes were enacted, these legalisation did not deal with the issue of unfair labour practice. Certain general principles of discipline in the industry were agreed upon by the participants at the 15th Indian Labour Conference and a Tripartite sub-committee was created to study additional questions and develop the materials in the form of a Code. This effort also did not succeed because the Code was merely based on moral sanctions and lacked legislative teeth. The committee noticed that in India the system of designating a representative union as a sole bargaining agent has not been legally accepted, excepting in some State legislations, notably the Bombay Industrial Relations Act. The expression unfair labour practice has not been used in this country to mean certain activities connected with collective bargaining and in particular, activities calculated to hinder the smooth passage of discovering the collective bargaining agent. The expression is loosely used in decision of the Industrial Tribunal, Labour Appellate Tribunals, High Courts and the Supreme Court, and refers to unjust dismissals, unmerited promotions, partiality towards one set of workers and every form of victimization. The Committee defined which activities on the part of the employers and the workers and their organisations should be treated as unfair labour practices by furnishing separate lists. The Committee was conscious that it is difficult to define the expression unfair labour practice and the list could not be exhaustive. The law relating to unfair labour practice in India as gathered from the decisions of the tribunals and courts, indicates that it has grown out of the exigencies of the situation and circumstances in specific cases. The Committee felt that to systematise the law relating to unfair labour practice is necessary in the context of the conditions prevailing in this country. Though the expression unfair labour practice could not be defined with logical precision for the simple reason that it covers a large category of cases under its umbrella, the Committee felt that a workable description of the expression is necessary.