RAJA KULKARNI AND OTHERS versus THE STATE OF BOMBAY.

19S3 _ The result, therefore, is that we affirm the decision The state af West of the High Court and dismiss this appeal with costs.

Bengal v. Shaikh 8erajuddin Batley.

Appeal dismissed.

Agent for the appellant: P. K. Bose. Agent for the respondent: A. N. Mitter. Agent for ~he intervener: G. H. Ra,jadhyak8ha.

RA.TA KULKARNI AND OTHERS

Nov. 24,

THE STATE OF BOMBAY.

[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN, S.R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]

Constitution of India, arts. 19(1)(a.) and (c}-Bombay Indu;-trial Relations Act, 1946, ss. 3(32), 12, 13-Industrial Disputes (Appellate Tribunal) Act, 1950, ss. 24, 27-Strike pending appeal-Illega,lity-Olassification of 'Union as "representative" and ''qual?:. fled'' according to percentage of inernbership-Infringenient of fu.nda. rnenta,l right to frcedoni of speech and to forni a,ssociations.

strike during the pendency of an appeal would be an illegal strike under ss. 24 and 25 of the Industrial Disputes (Appellate Tribunal) Act, 1950, even though the appeal io not valid or competent one.

The Bombay Industrial Relations Act, 1946, provided that union may be registered as a" representative union" if it had membership of not less than 15 per cent. of the total number of employees employed in any industry in any local area and if union had membership of less than rn per cent and not less than 5 per cent. it can be registered only as 'qualified union'' :

Held, that the above provisions did not infringe the fundamen-. tal right of the workers to freedom of speech and expression and to • form associations or unions ·mder article 19(1)(a) and (c) of the Constitution. The classification of unions as" representative" and "qualified" according to the percentage of membership and giving the right to unions with membership of not less than 15 per cent. alone to represent the workers was reason~ble· classification and did not infringe the rule of equality before the law.

CRIMINAL APPELLATE JURISDICTION: Cases Nos. 87, 88 and 89 of 1951. Appeals under article 132(1) of ~he Constitution of India from the Judgment and Order d1J;ted 8th January, 1951, of the High Court of

Judicature at Bombay (Bavdekar and Dixit JJ.) in Criminal Appeals Nos. 675, 676 and 677 of 1950.

Raja Kulkarni and Others v. The State of Bornbay.

N. Bharucha and Dara Vania for the appellants.

111: C. Setalvad, Attorney-General for India (G. N. Joshi and Porus A. Mehta, with him) for the respond-ent.

1953. November 24. The Judgment of the Court was Ghulam Hasa11 J. delivered by

GHULAM HASAN J.-These consolidated appeals by the three appellants arise out of the judgment and order of the High Court of Judicature at Bombay (Bavdekar and Dixit JJ.), whereby the. High Court confirmed the convictions of the appellants recorded by the Presidency Magistrate, Fifth Court, Greater Bombay, under sect.ion 27 of the Industrial Disputes (Appellate Tribunal) Act (No. XLVIII of 1950) but reduced their sentences' from six months' rigorous im~ prisonment to three months' simple imprisonment and set aside against each of the appellants the sentence of fine of Rs. 1,000. The appellants are the President and the Secretaries of the Mill Mazdoor Sabha, union of textile workers in Bombay registered under the Indian Trade Unions Act. It appears that there are about 2,10,000 textile workers working in Bombay and about 35 per cent. of them belong to t):i.ree different labour unions. The first is called "Rashtriya Mill Mazdoor Sangh" which is recognized as "represent-ative union" under the Bombay Industrial Relations Act, 194(), on the ground that it represents not less than 15 per cent. of such textile workers. The second is called "the Mill Mazdoor Sabha", of which the appel-lants are the office bearers, but this union represents less than 15 per cent.; and the third is "Girni Kamgar Union" representing the least percentage of workers. It is common ground that apart from the members of the above three unions, large number of workers repre-senting about 65 per cent. are unorganized and do not belong to any union ..

On December 9, 1949, the representative union

gave notice of change under section 42 of the Bombay Industrial Relations Act, '1946, hereinafter

386 SUPREME COURT REPO.RTS

1953 called the Act, to the Mill Owners Association in Bombay claiming bonus for that year. On December Baja and Kulkarni Others 23 , t di spute was re.erred y the Government of v. Bombay to the Industrial Court under section 23 of The State of the said Act. While this dispute was pending, the Bombay. Industrial Disputes (Appellate Tribunal) Act (No., --XLVIII of 1950) hereinafter called the Appellate Tri-Ghulmn Hasan J. bunal Act, came into force on May 20, 1950. On July 7, the Industrial Court made the award and the same was published on July 13. On August 9, the Mill Owners Association, which was dissatisfied with the award, filed an appeal before the Appellate Tribu-nal and an ad interim order was passed on August 10, directing how the bonus should be paid. The appel-lants made speeches on August 14, 15 and 16, exhorting the workers of the textile industry to go on strike. The Labour Commissioner thereup~n filed complaints be-fore the Presidency Magistrate on August 28, charging the appellants with an offence under section 27 of the Appellate Tribunal Act. The Mill Mazdoor Sabha~ applied to be made party to the appeal, but the application was rejected. As already stated, the appellants were convicted by the Presidency Magis' trate, but their sentences were reduced on appeal by the High Court.

Two main ·contentions were raised on behalf of the

appellants, firstly that the conviction under section 27 of the Appellate Tribunal Act was illegal, because there was no competent and valid appeal against the award before the Appellate Tribunal and secondly that section 27 of the Act is void as being opposed to the fundamental rights of the appellants under articles 19(1)(a) and (c) and 14 of the Constitution. Both the contentions were repelled by the two learned Judges who delivered separate but concurrent judg. ments. The contentions have been reiterated before us.In order to deal with the first contention, it will be necessary to refer to certain provisions of. the Appel-late Tribunal Act. Section 7 of that Act provides an appeal to the Appellate Tribunal from any award or decision of an Industrial Tribunal: .

(a) if the appeal involves any substantial question

of law; or

Raja Kulkarni and Others v. The State of Bomb"y.

(b) the award or decision is in respect of any of the following matters, namely :-

(i) wages,

(ii) bonus or travelling allowance,

Ghulam Hasan J.

::-lection 24(b) prohibits workman, who is employed

in any industrial establishment, from going on strike during•the peridency of an appeal before the Appellate Tribunal and section 25 renders strike and lock-out as illegal if it is declared, commenced or continued i\1 contravention of the provisions of section 24. Then follows the penalty provided for in section 27 ·which says : "Any person, who instigates or incites others to take part in, or otherwise acts in furtherance of,. strike or lock-out, which is illegal under this Act, shall be punishable with imprisonment for term which may extend .to six months, or with fine which may ex-tend to one. thousand rupees, or with both." The question is whether the appellants rendered them-selves liable to prosecution under section 27, because they instigated the strike while the appeal was pend-ing before the .Appellate Tribunal.

It is contended that section 24 contemplates the pendency of valid and competent appeal, but as no valid or competent appeal under the law was pending, the appellants committed no offence under section 27. We are unable to accept this contention. Section 24 on plain and natural construction requires for its application no more than that an appeal should be pending and there is nothing .in the language to justify the introduc~ion of the qualification that it should be valid or competent. · \iVhether the appeal is valid or competent is question entirely for the appellate c.ourt before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard, but there is nothing to prevent party from filing an appeal which may ultimately be found to be incompetent, e. g., wh!'ln it is held to be barred by limitation or -that it does not lie before that court or

1953 is concluded by finding of fact under section 100 of Ra;'aKulkami the Civil Procedure Code. From the mere fact that and Othus such an appeal is held to be unmaintainable on any v. ground whatsoever, it does not follow that there was The State of no appeal pending before the court. Article 182(2) of Bombay. the Indian Limitation Act prescribes three years• Ghnlmn 80, 0 ,, J. period of limitation for the execution of decree or order to run from the date of the final decree or order of the Appellate Court " when there has been an appeal." The Privy Council construed the latter phrase to mean that any application by party to the appellate court to set aside or revise a' decree or order of court subordinate thereto is an "appeal" within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal, or as to the parties to it. [Nagendra Nath Dey and Another v. Buresh Chandra Dey and Other8 (')]. We consider that the word "appeal" must be construed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the conten-tion raised before us. There is yet another reason for not construing the word "appeal" in the manner sug-gested by the appellants and that is that the legisla-·ture in introducing this provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal, irrespective of the fact whether such an appeal was competent in law. If this were not the case, the parties could easily defeat the object of the legislature by arrogating to themselves the right to decide about the competency of the appeal without reference to the court, commit breach of the peace and escape the penalty imposed by section 27. There was no justification for ·the appellants to instigate the workers in the so,called bona fide belief that section 27 did not apply to an appeal which they thought was incompetent. In this view of the matter it is not necessary to consider

\l) 59 l. A. 283.

S.C.R. SUPREME COURT REPORTS

1953 whether the conferment of right of appeal during the pendericy of proceeding can affect the rights of the Raja Kulkarni parties to those proceedings and make the order in the and Others pending proceeding appealable. v.

and Others v. The State of State of of Bombay.

~The second contention relates to the alleged The State of State of of Bombay. infringement of the rights of the appellants under article 19( 1) (a) and ( c), read with article 14 of the Ghulam. Hasan J. Constitution. In order to understand this contention, reference to the provisions of the Bombay Industrial Relations Act, 1946, will be necessary.

Section 3, sub-section (32), defines "representative of employees " as one entitled to act as such under section 30, and "representative union," is defined as union for the time being registered as representa-tive union under the Act [sub-section (33)].

Seetion 12 enjoins upon the Registrar of Unions appointed under the Act to maintain: •

(a) register of unions registered by him under the provisions of the Act, and ·

(b) list of approved unions.

Section 13 deals with the registration of unions by the Registrar. By the first sub-section union can be registered as "representative union" for an industry in local area if it has for the whole of the period of the three months next preceding the date of its application, membership of not less than 15 per cent. of the total number of employees employed in any industry in any local area. If union does not, satisfy that· condition, and has membership of not less than five per cent., it can be registered as "qua-lified union." If neither of these unions has been registered in respect of an industry, then union hav-ing membership of not leSf; than 15 per cerit. of the total number of employees employed in any under-taking in such industry can by an application to the Registrar be registered as a" primary union." It is common ground that the Rashtriya Mill Mazdoor Sangh comes under the .first category and the union of which the appellants are office-bearers comes under the second, namely that it is qualified union. This registration c11-n be c1u1celled µnder sectio!1 15 if it 1.ias

390 - SUPREME COURT REPORTS--;-[19541

,' 1933

1933 -been -procured by mistake, misrepresentation - or . fraud , Raja Kidkarn.i or if the, membership has fallen - below, the minimum and Ot.\ers ... , required under section 13 for its registration . Thi Stalt of_ It is argued that the right of the appellants to freedom -Bo~o/· of speech and expression and to form associations or . Ckulam_HasanJ.- - unions under article 19(1) (a) and (c), read with arti-cle 14, conferring the right of equality before _the law or the equal_ protection of the laws is infringed by the Act, -inasmuch -as'-it - gives preference to trade union upon the -artificial test of having the greater percent-age of membership, namely, not less than· 15 per cent. \Ve see little merit in this contention. It is obvious that the Act imposes no - restriction either upon the freedom of__ speech and expression of the textile workers or their right to form -associations or unions > indeed it is not denied that the workers have already formed as many as three unions, though they do not exhaust the number of workers in Bombay, - for it leaves as many as 65 per cent. of workers unorganized who do not belong to any trade union. - The statute lays down the minimum qualification of 15 ·per cent of membership to enable the Union to be called "repre-sentative union" so as to represent the interests of the entire body of workers in their relations with the employers. After laying down the test of not less than 15 per cent. ·it was perfectly reasonable. not to allow any other union such -as the appellants to interpose in dispute on behalf of the textile workers when they did not command the minimum percentage or when their membership fell below the prescribed per-centage. It is perfectly open to the appellants to enlist that percentage or even higher one and claim - precedence over the Rashtriya Mill Mazdoor Sangh so as to be able to represent the interests of all_ the workers. The right to freedom of speech and expression is not denied to the appellants, nor are they prohibited from forming associations or unions. The Act makes - no discrimination between textile workers as class but lays down reasonable classification to the- effect that -a certain percentage -of membership possessed by union will be allowed to represent the workers as class to the exclusion of others, but there is nothing

:_ ··--

S.C.R. SUPREME COURT REPORTS -

_to prevent the other unions or other -workers from forming fresh' union 'and enrolling higher - percent-age so as to acquire the sole right of representation. The appellants challenge, the validity of the Act as infringing_ their fundamental rights and yet they base their case of disc-rimination on the provisions of the same Act. This position is not in accord with reason or principle.·

\Ve hold, therefore, that the appellants have made out no case for interference with the orders of the courts below. \Ve uphold the convictions and sentences and dismiss the appeal.

Appeal dismissed.

Agent for the appellant : Rajinder -Narain. - -_ Agent for -the respondent : G. H. Rajadhyaksha. -

CENfRAL NATIONAL BANK LTD. - . ' v. --UNITED INDUSTRIAL BANK'LTD.

-UNITED INDUSTRIAL BANK'LTD. [B. K. MuKHERJEA, BHAGWATI and JAGANNADHADAS JJ.]

Indian Sale of Goods Act (Ill of 1930), s. 30(2)-,:-lndian Con· tract Act (IX of 1372), ss. 13, 14--Agreement to sell good1-Buyer obtaini ig pouession by fraud u•ithout paying price-Rights of bona fide purchaser from buyer-.. Consenl', meaning of.

The word "consent" in s. 30(2) of the Indian Sale of Goods Act means "'agreeing on the same thing in the same sensc0 as defined in s. 13 of the Indian Contract Act and does not mean "free consent" as defined in s. 14. Therefore, possession of goods which is obtained by person from another person who has agreed to sdl them to him, would be possession obtained "with the consent of the seller'' within the meaning of s. 30(2) of the Sale of Goods Act, even though it was obtained by fraud, except where the fraud committed is of such character as would prevent there being consent at all.

The fact that the fraud · or deception practised by the person obtaining possession is of such character as to make him guilty of criminal offence would_ not make any difference in the appli· cation of this p~ciple.

agreed to sell certain shares to and sent the ·share certificates and blank transfer deeds to the defendant bank to deliver them to on receiving payment of the price. The bank

Raja Kulkarni ' and O!hnJ. v. TheStauof · Bom1'ay. Ghulam HaJan J.

!953 Nou. 26.