Raja Kulkarni And Others vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Cases Nos. 87, 88 and 89 of 1951

Decision Date: 24 November 1953

Coram: Ghulam Hasan, M. Patanjali Sastri, Mehr Chand Mahajan, Vivian Bose

In the matter titled Raja Kulkarni and Others versus the State of Bombay, the Supreme Court of India delivered its judgment on 24 November 1953. The opinion was authored by Justice Ghulam Hasan and was decided by a bench composed of Justices Ghulam Hasan, M. Patanjali Sastri, Mehr Chand Mahajan and Vivian Bose. The petitioners were identified as Raja Kulkarni together with several other individuals, while the respondent was the State of Bombay. The case is reported in the Indian law reports as 1954 AIR 73 and 1954 SCR 384, and it has been subsequently cited in later Supreme Court reports including 1956 SC 367 (9), 1982 SC 1397 (4) and 1985 SC 311 (19). The legal issues under consideration involved the Constitution of India, specifically articles 19(1)(a) and 19(1)(c), the Bombay Industrial Relations Act of 1946 (sections 3(32), 12 and 13), and the Industrial Disputes (Appellate Tribunal) Act of 1950 (sections 24 and 27). The central questions were whether a strike that took place while an appeal was pending could be deemed illegal under the Industrial Disputes (Appellate Tribunal) Act, and whether the statutory classification of trade unions as “representative” or “qualified” on the basis of their percentage of membership violated the fundamental rights to freedom of speech, expression and association, or the principle of equality before the law.

The headnote of the judgment explained that a strike occurring during the pendency of an appeal was held to be unlawful under sections 24 and 25 of the Industrial Disputes (Appellate Tribunal) Act, even if the appeal itself was not a valid or competent one. The Bombay Industrial Relations Act, 1946, was interpreted to allow a union to be registered as a “representative union” when its membership comprised at least fifteen per cent of the total workforce employed in a particular industry within a specific locality. Unions whose membership fell between five per cent and less than fifteen per cent could be registered only as “qualified unions.” The Court found that these provisions did not encroach upon the workers’ fundamental rights guaranteed by article 19(1)(a) and 19(1)(c) of the Constitution. It further held that the differentiated classification of unions based on membership percentages was a reasonable measure and did not infringe the doctrine of equality before the law. The judgment arose from criminal appeals numbered 87, 88 and 89 of 1951, filed under article 132(1) of the Constitution against the order dated 8 January 1951 of the High Court of Bombay (judges Bavdekar and Dixit). The High Court had affirmed the convictions recorded by the Presidency Magistrate, Fifth Court, Greater Bombay, under section 27 of the Industrial Disputes (Appellate Tribunal) Act (No. XLVIII of 1950). Counsel for the appellants were N. Bharucha and Dara Vania, while the respondent was represented by M. C. Setalvad, Attorney General for India, assisted by G. N. Joshi and Porus A. Mehta. Justice Ghulam Hasan delivered the Court’s opinion, noting that the appeals were consolidated for consideration of the legal questions presented.

In this matter the appellate court reduced the sentences imposed on the appellants from six months of rigorous imprisonment to three months of simple imprisonment and set aside the fine of one thousand rupees that had been directed against each of them. The appellants were the President and the Secretaries of the Mill Mazdoor Sabha, a trade union of textile workers in Bombay that was registered under the Indian Trade Unions Act. At the time there were approximately two hundred ten thousand textile workers employed in Bombay; about thirty-five percent of those workers were members of three recognised unions. The first union, called Rashtriya Mill Mazdoor Sangh, was recognised as a “representative union” under the Bombay Industrial Relations Act, 1946 because it represented not less than fifteen per cent of the textile workers. The second union, the Mill Mazdoor Sabha, of which the present appellants were the office-bearers, represented less than fifteen per cent of the workers. The third union, the Girni Kamgar Union, represented the smallest proportion of workers. It was also accepted that the remaining sixty-five percent of the textile workforce were unorganised and did not belong to any union. On 9 December 1949 the representative union gave a notice of change under section 442 of the Bombay Industrial Relations Act to the Mill Owners Association in Bombay, claiming a bonus for that year. On 23 December the Government of Bombay referred the dispute to the Industrial Court under section 23 of the same Act. While the dispute was pending, the Industrial Disputes (Appellate Tribunal) Act, No XLVIII of 1950 (hereinafter called the Appellate Tribunal Act) came into force on 20 May 1950. The Industrial Court rendered its award on 7 July 1950, and the award was published on 13 July 1950. Dissatisfied with the award, the Mill Owners Association filed an appeal before the Appellate Tribunal on 9 August 1950, and an interim order was passed on 10 August 1950 directing how the bonus should be paid. The appellants then made speeches on 14, 15 and 16 August urging the textile workers to go on strike. In response, the Labour Commissioner lodged complaints before the Presidency Magistrate on 28 August, charging the appellants with an offence punishable under section 27 of the Appellate Tribunal Act. The Mill Mazdoor Sabha applied to be made a party to the appeal, but that application was rejected. The Presidency Magistrate convicted the appellants, but the High Court, on appeal, reduced the sentences and set aside the fine.

The appellants raised two principal contentions before the High Court. First, they argued that the conviction under section 27 of the Appellate Tribunal Act was illegal because there was no competent and valid appeal against the award pending before the Appellate Tribunal at the time the alleged offence was committed. Second, they contended that section 27 of the Act was invalid insofar as it infringed their fundamental rights guaranteed by articles 19 (1)(a) and 19 (1)(c), together with article 14, of the Constitution of India. Both of these contentions were dismissed by the two learned judges who each delivered separate but concurrent judgments. The same contentions have been re-asserted before the Supreme Court, and the Court must now consider whether the earlier findings on the validity of the conviction and the constitutionality of section 27 of the Appellate Tribunal Act are correct.

The two learned judges had rejected both of the appellants' arguments in separate but concurrent judgments, and those arguments have been presented again before this Court. To address the first argument, the Court must examine certain provisions of the Appellate Tribunal Act. Section 7 of that Act authorises an appeal to the Appellate Tribunal from any award or decision of an Industrial Tribunal when (a) the appeal raises a substantial question of law, or (b) the award or decision concerns matters such as wages, bonus, travelling allowance and other enumerated subjects. Section 24(b) forbids a workman employed in any industrial establishment from going on strike while an appeal is pending before the Appellate Tribunal. Section 25 declares that a strike or a lock-out is illegal if it is announced, begun or continued in violation of the prohibition contained in section 24. The penalty for such illegal strike or lock-out is set out in section 27, which provides that any person who instigates, incites or otherwise furthers an illegal strike or lock-out shall be punishable with imprisonment for up to six months, a fine of up to one thousand rupees, or both. The issue before the Court is whether the appellants became liable for prosecution under section 27 because they encouraged the strike while an appeal was pending before the Appellate Tribunal. The appellants contend that section 24 requires the pendency of a valid and competent appeal, and since no such appeal existed, they could not have offended section 27. The Court is unable to accept that contention. A plain and natural reading of section 24 demands only that an appeal be pending, and the language does not incorporate a qualification that the appeal must be valid or competent. Determining the validity or competence of an appeal is a matter for the appellate court hearing that appeal, and such determination can be made only after the appeal is heard. Nothing prevents a party from filing an appeal that may later be found incompetent, for example because it is time-barred, outside the jurisdiction of the court, or based on a factual finding under section 100 of the Civil Procedure Code. The fact that an appeal is later held to be unmaintainable on any ground does not mean that no appeal was pending before the court at the relevant time. Article 182(2) of the Indian Limitation Act provides a three-year limitation period for executing a decree or order, measured from the date of the final decree or order of the Appellate Court when an appeal has been filed.

In its earlier decision, the Privy Council interpreted the relevant phrase to mean that any application made by a party to an appellate court seeking to set aside or modify a decree or an order of a lower court constituted an “appeal” within the meaning of the provision, even if such an application was irregular or incompetent, even if the persons affected by the execution of the decree were not parties to the application, and even if the application did not endanger the entire decree or order. The Privy Council declined to read any additional qualification into the words, whether concerning the character of the appeal or the identity of the parties to it, as reflected in the case of Nagendra Nath Dey and Another v. Suresh Chandra Dey and Others. The present Court held that the term “appeal” should be understood in its plain and natural sense without inserting any qualifying language that the appellants attempted to introduce. A further reason for rejecting the appellants’ suggested construction was that the legislature, when enacting the provision, intended to preserve industrial peace for as long as a matter remained pending before the appellate court, regardless of whether the appeal was technically competent in law. If the opposite approach were adopted, the parties could easily frustrate the legislative purpose by assuming the authority to determine the competence of an appeal on their own, thereby risking a breach of peace and evading the penalty imposed by section 27. The Court observed that the appellants had no justification for encouraging the workers to believe that section 27 did not apply to an appeal they deemed incompetent. Consequently, the Court found it unnecessary to consider whether the existence of a right of appeal while a proceeding was pending could affect the parties’ rights in that proceeding or render the pending order appealable, a point raised in 59 I.A. 283. The second contention raised by the appellants concerned an alleged violation of their rights under article 19(I)(a) and (c) read with article 14 of the Constitution. To address this issue, the Court referred to the Bombay Industrial Relations Act, 1946. Under section 3, sub-section (32), a “representative of employees” is defined as a person entitled to act as such under section 30, while “representative union” is defined in sub-section (33) as a union presently registered as a representative union under the Act. Section 12 obliges the Registrar of Unions appointed under the Act to maintain (a) a register of unions registered by him pursuant to the Act and (b) a list of approved unions. Section 13 governs the registration of unions by the Registrar, allowing a union to be registered as a “representative union” for a particular industry in a local area if it satisfies the statutory membership conditions for the entire area.

It was explained that an organisation could be registered as a representative union only if, during the three months immediately preceding the date of its application, it possessed a membership equal to at least fifteen per cent of the total number of employees employed in any industry within the relevant local area. The provision further stated that if a union failed to meet that condition but still maintained a membership of at least fifteen per cent, the union could be registered as a “qualified union.” In the event that neither a representative union nor a qualified union had been registered for a particular industry, the statute allowed any union that commanded at least fifteen per cent of the total workforce employed in an undertaking of that industry to apply to the Registrar for registration as a “primary union.” Both parties accepted that the Rashtriya Mill Mazdoor Sangh fell within the first category of representative union, whereas the union in which the appellants held office-bearer positions fell within the second category and was therefore a qualified union. The law further provided that such registration could be cancelled under section fifteen if the registration had been obtained by mistake, misrepresentation or fraud, or if the union’s membership subsequently fell below the minimum percentage required under section thirteen for continued registration. The appellants contended that their rights under article 19 (I)(a) and article 19 (I)(c), read together with article fourteen of the Constitution – namely the freedoms of speech and expression and of association, together with the guarantee of equality before the law – were infringed by the Act because it gave preference to a trade union that achieved the higher membership percentage of at least fifteen per cent. The Court found little merit in that contention. It observed that the Act did not impose any restriction on the freedom of speech or expression of textile workers, nor did it curb their right to form associations or unions. In fact, the Court noted that the workers had already formed as many as three separate unions, although those unions did not encompass all workers in Bombay; consequently, roughly sixty-five per cent of the workers remained unorganised and unaffiliated with any trade union. The statute merely set a minimum qualification of fifteen per cent membership to permit a union to be designated a “representative union” so that it could speak for the whole body of workers in their dealings with employers. Having established that fifteen per cent threshold, the Court considered it reasonable that a union lacking that percentage – such as the appellants’ union – should not be allowed to intervene in a dispute on behalf of the textile workers when it did not command the requisite percentage or when its membership had fallen below the prescribed level. The Court further held that the appellants were free to increase their membership to meet or exceed the fifteen per cent requirement, and thereby could claim priority over the Rashtriya Mill Mazdoor Sangh in representing the interests of all workers. Accordingly, the right to freedom of speech and expression was not denied to the appellants, nor were they prohibited from forming further associations or unions.

The Court observed that the statute does not discriminate against textile workers as a separate class; instead it establishes a reasonable classification whereby a union possessing a prescribed percentage of membership is authorised to represent the workers of that class to the exclusion of other unions. The judgment noted that the law does not forbid other unions or other workers from creating a new union and attaining a higher percentage of membership, thereby enabling that new organisation to acquire the sole right of representation. The appellants contested the validity of the Act on the ground that it infringed their fundamental rights, yet their claim of discrimination was founded on the very provisions of the same Act. The Court found this position to be inconsistent with reason and legal principle. Consequently, the Court held that the appellants had failed to establish any ground for interfering with the orders of the lower courts. Accordingly, the convictions and sentences were upheld and the appeal was dismissed. The appeal was therefore dismissed. The agent representing the appellant was Raiinder Narain, while the agent for the respondent was G. H. Rajadhyaksha.