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Bombay High CourtIndian Cases

Pune District Central Co-Operative … vs Bank Karmachari Sangh And Anr. on 5 October 2001

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Bombay High Court
Pune District Central Co-Operative … vs Bank Karmachari Sangh And Anr. on 5 October, 2001
Equivalent citations: (2002)IILLJ890BOM
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT

D.Y. Chandrachud, J.

1. In this batch of Petitions, the issue which has been raised relates to the construction to be placed upon the meaning of the expression “protected employee” in the Bombay Industrial Relations Act, 1946 (“the Act”). Where a Union is registered as a representative Union for the entire industry-in the present case, the Co-operative Banking industry – the question for consideration is whether the total number of employees who must be regarded as protected employees, must be taken as a proportion of all the employees engaged in the industry in respect of which the Union is a representative Union or as a proportion of the employees engaged in each concern or undertaking in the industry separately. Under the material provisions of the Act, one per cent of the employees, subject to a minimum of five and a maximum of one hundred can be designated as protected employees in the manner laid down in the Act and the Rules. The Conciliator in the present case has taken the view, which is supported by the Respondent-Union, that each branch of every Co-operative Bank in the local area must be regarded as a separate unit and a minimum of five employees as well as a maximum of one hundred must be construed as an entitlement of the Union in relation to every branch of a Co-operative Bank in the industry in the local area. The correctness of that view is impugned by the Petitioners before this Court, in Writ Petition Nos. 2250 of 1990 and 3893 of 1991.

2. The petitioner in the first petition is a District Central Co-operative Bank which is deemed to have been registered under the Maharashtra Co-operative Societies Act, 1960. The Bank has its registered office at Pune and it had at the material time 174 branches in the District of Pune. The Bombay Industrial Relations Act, 1946, provides in Sub-section (4) of Section 2 that the State Government may apply the provisions of the Act by notification in the Official Gazette to such industries as may be specified generally or in any local area. The relevant notification which has been issued by the State Government extends the provisions of the Act to the Banking industry in the Co-operative Sector. The notification dated November 17, 1960 issued by the Government of Maharashtra under the Act specifies 15 local areas which, it is common ground between the learned counsel, fall within the geographical limits of the District of Pune. In the petition filed by the Bank before the Court, it has been stated that the Bank has about 1354 employees out of which about 112 are in the Managerial, Supervisory or Administrative Cadres. The aforesaid 112 employees are not governed by the provisions of the Act.

3. On September 27, 1989 the First Respondent intimated to the Petitioner, the names of 23 employees for the year 1988-89 as having been approved in the meeting of the Executive Committee of the Union on September 11, 1988 as persons who were regarded as protected employees within the meaning of Section 101 of the Act. The petitioner replied to the aforesaid request on September 29, 1989 adverting to the fact that on September 28, 1988 which was a year earlier, the Union had sought recognition as protected workmen for certain employees. Upon a dispute being raised by the Bank, the matter was decided by the Conciliation Officer on April 5, 1989 and in a Writ Petition challenging the order of the Officer, a Division Bench of this Court has remanded the matter for retrial in accordance with law in respect of 5 employees. In the circumstances, it was stated that for the year 1988-89, only those persons who have been regarded as protected workmen in the earlier order of the Conciliation Officer as modified by this Court on August 8, 1989, would be recognised.

4. Since a dispute arose between the Petitioner and the First Respondent, the matter was taken into conciliation in accordance with the provisions contained in Rule 71-A(4) of the Rules framed under the Bombay Industrial Relations Act, 1946. Sub-rule (4) of Rule 71-A provides that any dispute connected with the recognition of protected employees under that rule which may arise between the employer and the union or elected representatives of the employees shall be referred to the Conciliator concerned, whose decision thereon shall be final.

5. In its written submission filed before the Conciliator on February 9, 1990, the basic point which was raised by the Petitioner was that the protected employees for the purpose of Section 101(2-B) have to be recognized with reference to the industry and the local area concerned. Consequently, it was submitted that in determining the total number of protected employees in an industry for a local area, the total number of employees employed in that particular industry in the local area under consideration has to be the basis of computation. Moreover, a submission was sought to be advanced on who could be regarded as the office bearer of the Union, to which it would be necessary to advert to, subsequently. The position of the First Respondent advanced before the Conciliator and reiterated in the submissions before this Court is that, in determining who should be regarded as protected employees, each branch of the Bank must be taken separately. Consequently, it was urged that in respect of each Branch of a Co-operative Bank, one per cent of the total number of employees engaged therein can be designated as protected employees, subject to a minimum of five and a maximum of one hundred employees. The Conciliator, by his orders dated April 12, 1990 and April 19, 1990 accepted the submission of the Union.

6. In order to appreciate the question of law which has been raised in these Writ Petitions, it is necessary to notice at the outset some of the material provisions which have a bearing on the present case. Section 101 of the Act is a part of Chapter XVI which is entitled “Penalties”. Section 101 provides as follows:

“101. Employer not to dismiss, reduce or punish an employee.- (1) No employer shall dismiss, discharge or reduce any employee or punish him in any other manner by reason of the circumstance that the employee –
(a) is an officer or member of a registered union or a union which has applied for being registered under this Act; or
(b) is entitled to the benefit of a registered agreement or a settlement, submission or award; or
(c) has appeared or intends to appear as a witness in, or has given any evidence or intends to give evidence in a proceeding under this Act or any other law for the time being in force or takes part in any capacity in, or in connection with a proceeding under this Act; or
(d) is an officer or member of an organisation the object of which is to secure better industrial conditions; or
(e) is an officer or member of an organisation which is not declared unlawful; or
(f) is representative of employees; or
(g) has gone on or joined or instigated a strike which has not been held by a Labour Court or the Industrial Court to be illegal under the provisions of this Act.
(2) No employer shall prevent any employee from returning to work after a strike, arising out of an industrial dispute which has not been held by a Labour Court or the Industrial Court to be illegal unless –
(i) the employer has offered to refer the issues on which the employee has struck work to arbitration under this Act, and the employee has refused arbitration; or
(ii) the employee not having refused arbitration, has failed to offer to resume work within one month of a declaration by the State Government that the strike has ended.
(2-A) No employer shall dismiss, discharge or reduce any protected employee save with the express permission in writing of the Labour Court.

Explanation.- For the purposes of this sub-section, a “protected employee” in relation to any industry means any employee who being an office-bearer of a union connected with the industry is recognized as such in accordance with the rules made under this Act.

(2-B) In every industry in any local area, the number of officers of any union to be recognized as “protected employee” for the purposes at Sub-section (2-A) shall be one per cent of the total number of employees employed therein, subject to a minimum number of five protected employees and a maximum number of one hundred protected employees; and for the aforesaid purpose, the State Government may make rules providing for the manner in which the employees may be chosen and recognized as protected employees.

(3) Whoever contravenes the provisions of Sub-section (1), (2) or (2-A) shall, on conviction, be punishable with fine which may extend to Rs. 5,000.

(4) The Court trying an offence under this Section may direct that out of fine recovered, such amount as it deems fit shall be paid to the employee concerned as compensation.

(5) In any prosecution under this Section the burden of proving that the dismissal, discharge, reduction or punishment of an employee by an employer was not in contravention of the provisions of this Section shall lie on the employer.”

7. The Court is concerned in these Writ petitions with the interpretation to be placed on sub-sections (2-A) and (2-B) of Section 101. But, before considering those provisions, it would be necessary to note that Sub-section (1) provides that an employer shall not dismiss, discharge or reduce any employee or punish him in any other manner in certain specified circumstances listed in Clauses (a) to (g). Similarly, Sub-section (2) provides that the employer shall not prevent any employee from returning to work after a strike, arising out of an industrial dispute which has not been held by a Labour Court or the Industrial Court to be illegal except in certain specific circumstances. Sub- section (2-A) with which the Court is concerned in these proceedings imposes a prohibition on an employer to dismiss, discharge or reduce in rank any protected employee except with the express permission in writing of the Labour Court. The protection which is provided by Section 101(2-A) is to a protected employee. The expression ‘protected employee’ is defined in the explanation to Sub-section (2-A). The explanation would make it clear that it operates in respect of a protected employee in relation to any industry. The definition provides that the expression “protected employee” in relation to an industry means any employee who, being an office-bearer of a union connected with the industry is recognised as such in accordance with the rules made under the Act. The explanation thus postulates two requirements, the first of these being that the employee must be an office bearer of a Union connected with the industry. The second requirement is that the employee has to be recognised as a protected employee in accordance with the Rules made under the Act. The relevant Rule governing recognition of protected employees is Rule 71-A which provides as follows:

“71-A.(1) Every representative union in respect of any industry in any local area, or where there is no Representative Union, a . Qualified Union, or where there is no Representative or Qualified Union, a Primary Union, shall communicate to the employer before September 30, in every year the names and addresses of such of the office-bearers of the Union who are employed in that industry and who, in the opinion of the union, should be recognized as protected employees.
Any change in the incumbency of any such officer shall be communicated to the employer by the union within 15 days of such change.
(2) The employer shall, subject to the provisions of Sub-section (2-B) of Section 101 recognise such officers to be protected employees for the purposes of Sub-section (2-A) of the said Section and communicate to the union concerned, in writing, within 15 days of the receipt of the names and addresses under Sub-rule (1), the list of employees recognized as protected employees:
Provided that, where there is no Representative Union or a Qualified Union or Primary Union, the persons elected by the employees to represent them in accordance with the provisions of Section 28 shall be recognized by the employer as protected employees subject to Sub-section (2-B) of the said Section 101.
(3) Where-the total number received by the employer under Sub-rule (1) exceeds the maximum number of protected employees admissible for the industry under Sub-section (2-B) of Section 101, the employer shall recognize as protected employees only such maximum number of employees, according to the serial order in the list received by the employer.
(4) Any dispute connected with the recognition of protected employees under this rule that may arise between an employer and the union or elected representatives of employees shall be referred to the Conciliator concerned, whose decision thereon shall be final.”
It would be necessary to advert to the fact that Sub-rule (1) of Rule 71-A refers to three different kinds of unions viz., Representative Unions, Qualified Unions and Primary Unions. Sub- rule (1) of Rule 71-A inter alia provides that every representative union in respect of any industry in any local area, shall communicate to the employer before September 30, in every year the names and addresses of such of the office-bearers of the union who are employed in that industry and who should be recognized in the opinion of the union, as protected employees. A similar right is given to a Qualified Union where there is no Representative Union; and to a Primary Union where there is no Representative or Qualified Union in respect of the Industry in the local area. Sub-rule (2) of Rule 71-A mandates that the employer shall, subject to the provisions of Sub-section (2-B) of Section 101 recognise such officers to be protected employees for the purposes of Sub-section (2-A) of the said Section and communicate to the union concerned, in writing, within 15 days of the receipt of the names and addresses.

8. In the present case, the First Respondent, it is common ground, is a representative Union in the Co-operative Banking Industry in respect of several local areas as of date. Since the First Respondent is a representative Union in respect of the Cooperative Banking Industry in these local areas what it is required to do under Rule 71-A is to communicate to the employer on or before the prescribed date every year, the names and addresses of the office bearers of the Union who are employees in that industry, meaning thereby, the Co-operative Banking Industry for the local area concerned, and who in the opinion of the Union are protected employees.

9. Sub-section (2-B) of Section 101 is the next relevant provision because it lays down the number of employees who must be regarded as “protected employees” for the purposes of Sub-section (2-A). The Section in its opening words gives an indication of the legal position that the number of protected employees is computed with reference to an industry in a local area. The total number of protected employees is to be one per cent of the total number of employees employed therein. The word ‘therein’ refers to the total number of employees employed in that industry in the local area in question. Sub-section (2-B) provides that a minimum number of five protected employees and a maximum number of one hundred protected employees shall be designated for the aforesaid purpose.

10. The position, therefore, in a nutshell is that by virtue of Sub-section (2-A) of Section 101 no employer may dismiss, discharge or reduce a protected employee save with the express permission in writing of the Labour Court. The explanation to Sub-section (2-A) defines who would be regarded as a protected employee and since one of the requirements is that the employee has to be recognized as such in accordance with Rules, it is Rule 71-A which specifies the relevant rules in that regard. Rule 71-A incorporates the concept of a union being a representative, qualified or a primary union, to which it is necessary to advert shortly. When the Union is registered as a representative union for an industry in the local area, that union has to communicate to the employer, a list of office bearers of the union who are employed in that industry in the local area, who are to be designated as protected employees. Sub-section (2-B) of Section 101 specifies the manner in which the number of protected employees is to be computed.

11. In this context, it would be necessary for a proper appreciation of the issues involved to refer to the relevant statutory provisions for the registration of unions contained in Chapter III of the Act. Section 13 of the Act deals with the application for registration and provides as follows:

“13. Application for registration.- (1) Any union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it so applies under this Section a membership of not less than twenty-five per cent of the total number of employees employed in any industry in any local area may apply in the prescribed form to the Registrar for registration as a Representative Union for such industry in such local area.
(2) If in any local area no Representative Union has been registered in respect of an industry a union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it so applies under this Section a membership of not less than five per cent of the total number of employees employed in such industry in the said area may apply in the prescribed form to the Registrar for registration as a Qualified Union for such industry in such local area.
(3) If in any local area, neither a Representative Union nor a Qualified Union has been registered in respect of an industry, a union having a membership of not less than fifteen per cent of the total number of employees employed in any undertaking in such industry in the said area and complying with the conditions specified in Section 23 as necessary for its being placed on the approved list may apply in the prescribed form to the Registrar for registration as a Primary Union for such industry in such local area.
(4) Notwithstanding anything contained in this Section, if a union makes a fresh application for registration as a Representative Union, Qualified Union, or as the case may be, Primary Union, before a previous application for such registration has been finally disposed of by the Registrar, the Registrar shall not entertain such application.”
The aforesaid statutory provision thus shows that three types of unions are contemplated (i) a representative union, (ii) a qualified union and (iii) a primary union. A representative union is one which has membership of not less than 25% of the total number of employees employed in any industry in any local area. Upon being registered, the union becomes a representative union for that industry in the local area. The Bombay Industrial Relations Act, 1946 essentially incorporates the principle of “one industry one union”. The proviso to Section 14 lays down that in any local area there shall not at any time be more than one registered union in respect of the same industry. The question of registering a qualified union arises if no representative union has been registered in respect of an industry. The requirement for the registration of a union as a qualified union is that it should have membership of not less than 5% of the total number of employees employed in the said industry in the local area. Upon registration, the union becomes the qualified union for the industry in the local area. Similarly under Sub-section (3) of Section 13, the question of registering a union as a Primary Union arises where there is neither a Representative Union nor a Qualified Union in respect of an industry for a local area. In such a case, a union having a membership of not less than fifteen per cent of the total number of employees employed in any undertaking in such industry is eligible to apply for registration as a Primary Union. Upon registration being granted, the Union becomes a Primary Union for the industry in the local area. Sub-section (3) of Section 13, in fact, makes a distinction between the undertaking and the industry by requiring that the membership of 15% should be in relation to the employees of an undertaking for registration as a Primary Union. However, upon registration of a union as a Primary Union, the Union becomes a Primary Union for the industry concerned in the local area.

12. The provisions of Section 13 are significant for the purposes of the present case because they emphasise the statutory mandate and policy underlying the provision of the Bombay Industrial Relations Act, 1946. The object of the underlying provisions of Sections 13 and 14 is that there shall not be more than one registered union in respect of the same industry in the local area. It is in that sense, that it is commonly asserted that the Act embodies the concept of “one industry one union”. A representative union as in the present case, is representative of not merely one concern of undertaking, but of the conglomeration of individual undertakings which put together comprise of an industry in respect of the local area in question. As already noted earlier, Rule 71-A stipulates that when there is a representative union in respect of any industry in any local area, it is that representative union which is to communicate the names and addresses of the office bearers of the union who are employed in that industry in the local area in respect of which the Union is registered as a representative union. The union has to intimate the names of the protected employees. The number of employees to be designated as protected employees is enunciated in Sub-section (2-B) of Section 101. The number of protected employees is to be one per cent of the total number of employees employed in the industry in the local area. This is subject to a minimum of five and a maximum of one hundred employees. Consequently, in a case such as the present, where the First Respondent is a Representative Union in respect of seven local areas in the Co-operative Banking Industry, the number of protected employees for the purposes of Sub-section (2-B) of Section 101 has to be deduced on the basis of the total number of employees employed in the Co- operative Banking Industry with reference to the local area. The number of protected employees has to be computed with reference to the employees engaged in the Co-operative Banking Industry in the local area notified as such, subject to the minimum and the maximum prescribed.

13. The learned counsel appearing on behalf of the First Respondent, however, sought to submit that the expression “industry” has been defined by Clause (19) of Sections of the Act as follows:

“(19) “industry” means :
(a) any business, trade, manufacture or undertaking or calling of employers;
(b) any calling, service employment, handicraft, or industrial occupation or avocation of employees;
and includes –

(i) agriculture and agricultural operations;

(ii) any branch of an industry or group of industries which the State Government may by notification in the Official Gazette declare to be an industry for the purposes of this Act;”

The expression “undertaking” is defined in Clause (37) of Section 3 as follows:
“(37) “undertaking” means such concern in any industry as is recognized by the Registrar under Section 11;”
Under Section 11 of the Act, the Registrar is empowered after making such inquiry as he deems fit to recognize for the purposes of the Act (i) any concern in an industry to be an undertaking and (ii) any Section of an undertaking to be an occupation. The learned Counsel submitted that in the present case, the Branches of the Co-operative Bank in the Co-operative Banking Industry have individually been designated as undertakings for the purposes of Section 11 of the Act. The submission was that upon the designation of each branch as an undertaking under Section 11 that Branch as an undertaking becomes an industry within the meaning of Clause (19) of Section 3. Consequently, for the purposes of computing the total number of employees for the purposes of Sub-section (2-B) of Section 101, the total number of employees that must be reckoned must be the employees of every Branch separately construed and not the total employees engaged in the industry.

14. Having heard and carefully considered the submission, I am of the view that there is no merit in the submission. Section 11 of the Act which deals with the question of recognising a concern in an industry to be an undertaking forms a part of Chapter III which is entitled “Registration of Unions”. The reason why statutory provision is made in Section 11 for recognizing a concern in an industry to be an undertaking is that where there is neither a representative union nor a qualified union in existence, a union can apply for being registered as a Primary Union. The requirement of membership in the case of a primary union is that it must have membership of at least 15% employees in any undertaking in the industry. But, that apart, the definition contained in Section 3 of the Act specifies that the definition would apply unless there is anything repugnant in the subject or context. The concept of industry for the purposes of Chapter III of the Act postulates industry as a whole meaning, in the present case, the Co-operative Banking Industry. That is the industry which is notified by the State Government as the industry to which the provisions of the Act would apply. The whole concept of the representative union under the Act operates in relation not to an individual undertaking, but the industry as a whole which is a conglomeration of all the businesses or undertakings put together. A representative union, is a union representative for the entire industry for the local area in distinction to the position of a union in relation to each separate undertaking.

15. Upon being registered as a representative union for an industry in a local area, several consequences follow under Chapter V of the Act. For instance, Section 27-A provides that save as provided in Sections 32, 33 and 33-A no employee shall be allowed to appear or act in any proceeding under the Act except through a representative of employees. Under Section 30 an order of preference is specified for entities which can be regarded as representative of employees in an industry in any local area. The first in the order of preference is a representative union for an industry. In the proviso to Section 32 an exception is carved out in the case of a proceeding before a Labour Court or the Industrial Court in which the legality or propriety of an order of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee is under consideration. The Act has detailed provisions in relation to the registration of a union as a representative union and in regard to the consequences which follow therefrom.

16. The learned counsel appearing for the First Respondent sought to urge that the provisions of Chapter III of the Act which include Section 13 cannot be an extrapolated into the provisions of Sub-sections (2-A) and (2-B) of Section 101. The learned counsel submitted that whereas Chapter III deals with the registration of unions, Chapter XVI of which Section 101 is a part is entitled “Penalties”. The submission was that the provisions of Chapter XVI relate to an ’employer’ as defined in Clause (14) of Section 3 and the embargo that is placed by Section 101 is on the employer doing certain acts contrary to the mandate of the said Section. The learned counsel is in my view not correct in asserting that the provisions of Chapter III are alien for the purposes of determining the question as to whether the number of protected employees should be construed in the context of the industry as a whole or in relation to each separate concern when there is a representative union under Act for an industry in a local area. The explanation to Sub-section (2-A) of Section 101 clearly specifies that for being regarded as a protected employee, the employee has to be an office bearer of union and must be recognized as a protected employee as contemplated by the Rules made under the Act. The Rules, as noted earlier, expressly provide in Rule 71-A as to what is to happen in a case when there is a representative union, or if there is none, in case there is a qualified or primary union as the case may be. Rule 71-A which has been framed in pursuance of the power conferred by the explanation to Sub-section (2-A) of Section 101, expressly incorporates the notion of a representative, qualified or primary union. That being the position, and in a case such as the present, when there is a representative union, it would be impossible as well as inappropriate to interpret the provisions of Section 101 without reference to Chapter III of the Act as is sought to be submitted by the learned counsel for the Union. The provisions of the Act contain a harmonious scheme relating to the registration of a representative union, the conditions for the grant of registration and consequences which flow therefrom,

17. In the circumstances, I am of the view that the Conciliator in the present case was not justified in coming to the conclusion that the total number of protected employees for the purposes of Sub-section (2-B) of Section 101 must be construed not with reference to the industry as a whole, but with reference to each Co-operative Bank or each separate branch of the Bank. In coming to the conclusion, the Conciliator made the following observations:

“Therefore, an industry by itself is not an independent entity, undertaking or establishment carrying out any trade/business. It is a branch of trade or manufacture …. All the trade/business establishment of the co-operative Banks in Pune District and their branches have been recognized individually as undertakings in the Banking Industry local areawise under the Bombay Industrial Relations Act. The minimum and maximum number of employees to be recognized as protected workmen is five and one hundred respectively for each undertaking. The suggestions of the Bank that in a given local area various Co-operative Banks should be considered as one ‘industry’ and the number of protected workmen to be recognized is to be decided taking the total number of employees employed by various Banks in that local area is not a correct proposition. According to the bank various and different Co-operative Banks in Pune city and Pune cantonment local area including the Pune Zilla Madyavarti Sahakari Bank Ltd. should be treated as one Industry. This is not a correct interpretation as each Co-operative Bank has a separate entity and nomenclature independent of each other. Each Bank is registered individually under different laws. And all such Banks are not integrally connected. Each Bank has independent Management, separate accounts separate working conditions, separate Standing Orders and Agreements for their employees. As such various and different Co-operative Banks cannot be grouped together for any purpose and even for recognition of the protected workmen. At the most a particular Co-operative Bank and its Branches in a given local area can be grouped together for purposes of protected workmen.”
The view of the Conciliator is with respect, erroneous. The general consideration that each Co-operative Bank is a separate entity, with independent Management, separate accounts or, for that matter separate agreements with the labour unions is not determinative in so far as the interpretation to be placed on the relevant provisions of B.I.R. Act, 1946 is concerned. The Act has specific provisions and the duty of the Court is to interpret them in a manner consistent with the letter and spirit of the statute. In fact, the Conciliator has in the concluding part of the aforesaid observation held that at the most a Co-operative Bank and its Branches in a given local area can be grouped together for the purposes of determining the total number of protected employees. Submissions similar to the conceding observations of the Conciliator as aforesaid were initially advanced on behalf of the First Respondent. The learned counsel for the First Respondent has, however, ultimately informed the Court that she would prefer to stand by the submission that each branch of every Co-operative Bank in the local area must be regarded as a separate entity. The learned counsel submits that in every branch of each Co-operative Bank, the Union is entitled to designate a minimum of five and a maximum of a hundred employees as protected employees. It is impossible to accept this submission. The Union in the present case is a representative union for the industry – meaning thereby, the co-operative banking industry and for certain specific local areas. The designation of protected employees has to take place in relation to the industry in the local area and the computation of the total strength of protected employees must be deduced on the basis of the total number of employees engaged in the local area in the industry. The minimum and the maximum cannot be with reference to each branch of co-operative bank.

18. The learned counsel appearing on behalf of the Petitioner- Bank adverted to the fact that on September 27, 2000, the First Respondent has furnished an intimation for the year 1999-2000 to the Petitioner in respect of the number and names of the protected employees. The letter of intimation provides that there are about 65 Co-operative Banks in the District of Pune and in the local area of the Pune Municipal Corporation and Cantonment, there are 6500 employees who are engaged in about 25 Co-operative Banks. Having regard to the aforesaid situation, the First Respondent has intimated to the Petitioner, the names of 65 employees who are proposed to be designated as protected employees in the said area. The learned counsel for the First Respondent was right in her submission that this communication cannot be construed to be an act of estoppel against the First Respondent and in any event the aforesaid communication was sent in accordance with the interim order passed in Civil Application No. 1183 of 1997 in Writ Petition No. 5598 of 1996 on February 2, 1998.

19. Having regard, therefore, to the circumstances, I am of the view that in cases such as the present, when there is a representative union in existence in any specific local areas, the total number of protected employees must be construed as one percent of the total number of employees engaged in the industry as a whole subject to the minimum and the maximum provided by Sub-section (2-B) of Section 101. In other words, it would be impermissible to allow the computation to be made with reference to each branch of each Co-operative Bank. The contention of the learned counsel for the Union that the Union is entitled to designate a minimum of five and a maximum of one hundred employees as protected employees in every branch of a cooperative bank is therefore, rejected.

20. The second point which requires consideration is as to when an employee should be regarded as an office bearer of the Union within the meaning of that expression in the explanation to Sub-section (2-A) of Section 101. The Constitution of the First Respondent has been made available to the Court for perusal.

21. The learned counsel appearing on behalf of the First Respondent-Union stated that there are about 5,000 members of the Union in the local area and in turn there are .149 members of the Executive Committee. Clause 11 of the Constitution of the First Respondent provides as follows:

“No. 11. Office Bearers
(a) The following office bearers and executive committee members shall be elected by the General Council of the Sangh for every three years.
(b) The General Council may elect the following office bearers of the Sangh. The President, twenty two Vice Presidents, General Secretary, Two Joint Secretaries and a Treasurer and Executive Committee members and honorary members.
(c) The General Secretary may appoint one or more Assistant Secretaries from amongst the members of the Executive Committee or the General Council, who will carry on duties, general help to Secretary in his work. When the General Secretary is absent, the Assistant Secretaries will hold their post during the absence of the General Secretary.
(d) The Honorary Members as per clause 4 are eligible to be elected or co-opted as office bearers and/or Members of the Executive Committee for this purpose Clause 12(a) is not attracted.”
Clause 12 of the Constitution similarly provides as follows “12. Management of the Sangh The Management of the affairs of the Sangh shall be in the hands of the Executive Committee consisting of the office-bearers, Honorary members and not less than 10 and not more than 28 members from among the General Council and Honorary Members. The same Managing Committee will continue functioning till, the new one is appointed.

(a) The General Council of the Sangh shall be composed of such representatives who are elected from 20 ordinary members or a larger fraction thereof in each of the local areas in Pune Dist. With this principle in view, the methodology of the elections to the General Council will be decided by the Executive Committee from time to time and the said Committee decision would be final and binding on the ordinary members. The term of the General Council shall be for three years.”

These provisions would make it abundantly clear that the office bearers of the Union are to be elected by the General Council. The office bearers consist of a President, twenty two Vice Presidents, General Secretary, Two Joint Secretaries and a Treasurer. The Executive Committee is also elected by the General Council. The Executive Committee consists of the office bearers and not less than 10 and not more than 28 members elected from amongst the General Council and Honorary Members. The office bearers of the Union are, therefore, members of the Executive Committee though every member of the Executive Committee is not necessarily an office bearer. In fact, Section 2(b) of the Trade Unions Act, 1926 provides that the expression “office bearer” in the case of a Trade Union, includes any member of the executive thereof. The word “executive” is defined by Clause (a) of the said Section to mean the body, to which the management of the affairs of a Trade Union is entrusted. This point need not, however, detain the Court any further since, it is common ground between the learned counsel that this question has not been agitated before the Conciliator, at any rate by providing all the relevant facts and circumstances to the Conciliator. The designation which is to be made of a protected employee under Sub-section (2-A) of Section 101 can only be of an office bearer of the union. In every case where a dispute arises, it is for the Conciliator to determine in accordance with the Constitution of the Union as to whether a person is an office bearer of the union or otherwise. The learned counsel appearing on behalf of the contesting parties have joined in stating that what they would only request the Court to determine in the present case is the question of law which arises in the matter. The question as to whether a particular nomination or designation of a protected employee is correct or otherwise will have to abide by the decision of the Conciliator in the event of any dispute arising in regard thereto. The conciliator would decide the dispute in accordance with law.

22. In the circumstances, Writ Petition Nos. 2250 of 1990 and 3893 of 1990 are made absolute in terms of prayer Clause (a). Writ Petition No. 5598 of 1996 filed by the Union shall stand dismissed. Before concluding it is necessary to note that the learned counsel appearing on behalf of the Union states that in regard to Writ Petition No. 5598 of 1996 filed by the Union, the Union does not press the challenge to the constitutional validity of the statutory provisions which was raised in the petition.

23. These Writ Petitions are accordingly disposed of in the aforesaid terms. There shall be no order as to costs.