Gadgil, J.:— This appeal involves the legality and the correctness of certain orders that have been passed by the Industrial Court in a proceeding under S. 13, Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (hereinafter referred to as the Act of 1971).
2. To understand the controversy between the parties, it would be convenient to give the details of the proceedings that are pending under the Act of 1971, and the grounds on which those proceedings have been filed. The Act of 1971, has made provisions for the recognition of trade unions, the cancellation of such recognition, etc. Under S. 11, any union can make an application for its recognition if that union has, for the whole of the period of six calendar months immediately preceding the calendar month in which the application is made, a membership of not less than 30 per cent of the total number of employees employed in any undertaking. The said application is inquired into under S. 12 and for deciding this appeal, it is not necessary to state as to what other conditions the union is required to fulfil before getting recognition. Respondent 4 is an undertaking in whose employment there are at present 1,025 employees. Respondent 1, namely, the Mazdoor Congress, applied for such recognition as a union to respondent 4 under S. 11, and the Industrial Court after making the necessary enquiry granted that recognition in favour of respondent 1. The appellant, Maharashtra General Kamgar Union (hereinafter referred to as Maharashtra Union), made an application to the Industrial Court for cancellation of the recognition of the Mazdoor Congress. Such cancellation is permissible under S. 13 and it would be convenient to reproduce the relevant part of that section. It reads as follows:
“13. (1) The Industrial Court shall cancel the recognition of a union if after giving notice to such union to show cause why its recognition should not be cancelled, and after holding an inquiry, it is satisfied—
(ii) that the membership of the union has, for a continuous period of six calendar months, fallen below the minimum required under S. 11 for its recognition:
Provided further that, the recognition of union shall not be cancelled under the provisions of this sub-clause, unless its membership for the calendar month in which show-cause notice under this section was issued was less than such minimum: or …”
The Maharashtra Union in its application to the Industrial Court made an allegation that from 1 January 1981, the membership of the Mazdoor Congress has fallen below 30 per cent for a continuous period of six months and that on that account the recognition of the said union deserves to be cancelled. There are certain other averments in the application that the majority of the employees of respondent 4 has joined the Maharashtra Union. However, while considering the question of cancellation of recognition, that aspect is really not relevant.
3. In this proceeding the Maharashtra Union filed two applications. The first application was for interim injunction that pending the hearing and final disposal of the main application, the Mazdoor Congress be restrained from negotiating, discussing or settling any dispute whatsoever on behalf of the employees of respondent 4—company. This application was filed on 27 July 1981, that is, the date on which the main application was filed. The Mazdoor Congress opposed the grant of such relief. However, the Industrial Court by its order, dated 16 October 1981, passed the interim injunction as prayed for by the Maharashtra Uaion. It is needless to say that under S. 30(2) of the Act of 1971, such interim orders are permissible.
4. On 22 December 1981, the Maharashtra Union filed another application. It seems that before making such application, the Mazdoor Congress has filed their written statement to the main application. In the application, dated 22 December 1981, the Maharashtra Union made a grievance that the record of the membership of the Mazdoor Congress has been inspected by the Maharashtra Union and that it is not acceptable and admitted by that union. Thereafter, it is prayed that under the circumstance, the Industrial Court should direct the investigating officer to hold enquiry by interrogation and/or secret ballot and submit report within a fortnight and pass any other appropriate order. This application was also opposed by the Mazdoor Congress. However, on 25 January 1982, the Industrial Court passed an order in the following words:
“The investigating officer to hold a secret ballot to find out which of the rival unions has the majority of membership. He shall submit his report oh or before 15 February 1982.”
5. It seems that the Mazdoor Congress attempted to get these two orders reviewed by the Industrial Court. However, that attempt failed. The said Mazdoor Congress filed Writ Petition No. 691 of 1982, in this Court for quashing both these orders with an allegation that they are illegal, erroneous and unwarranted by law.
6. The writ petition was opposed by the Maharashtra Union on various grounds. It is, however, not necessary to give the details of contentions raised by them. Suffice it to say that the main allegation is that the impugned orders are in consonance with the provisions of law and they are not liable to be quashed. The said writ petition was heard and decided by the single Judge of this Court (Sawant, J.) on 12/14 July 1982, reported in 1982 — II L.L.N 497. The writ petition was allowed.’ The temporary injunction granted on 16 October 1981, was quashed. The order of holding the ballot was not quashed as during the pendency of the writ petition, the ballot was held. However, a direction was given that while deciding the main question about the cancellation of the recognition of the Mazdoor Congress, the result of the said ballot should not be made use of. It is these orders that are being challenged before us in the present appeal. Dr. Kulkarni, the learned advocate for the appellant (Maharashtra Union) contended that the temporary injunction as was granted by the Industrial Court was absolutely essential and that the Maharashtra Union has made out a prima facie case for such relief. The learned single Judge has come to a conclusion that the said order is based on irrational grounds and that in addition the Maharashtra Union has not made out any prima facie case for issuance of the said order. Before the Industrial Court the Maharashtra Union has produced certain documents. For example, on 20 March 1981, that union has written a letter to the Mazdoor Congress. It reads as follows:
“Majority of the workmen working in Bayer (India), Ltd., situated at Kolshet Road, Thane-400 607, are hereby tendering their resignations from your union, as they have become the members of our union from 27 February 1981…”
The Maharashtra Union has also produced a copy of the resignation said to have been given by 727 employees of the company. That resignation is, dated 23 March 1981, and it reads as follows:
“We, the undersigned workmen of Bayer (India), Ltd., Kolshet Road, Thane-400 607, who are the members of your union, hereby tender our resignation from the membership of your union with immediate effect.”
It is alleged that this resignation letter has been signed by 727 workmen. We have already observed that the application for cancellation of recognition has been filed on 27 July 1981. Section 13 of the Act of 1971 contemplates that the membership should fall below 30 per cent for a continuous period of six months and such a situation should also exist in the month in which the show-cause notice is issued to the recognized union. The resignation letter, even if it is assumed to be a true resignation letter, would show that 727 employees who were the members of the Mazdoor Congress have resigned with effect from 23 March 1981 and the period of six months was not over on 27 July 1981, when the application for cancellation of recognition was made. The Industrial Court was conscious of this position. However, it records a finding that though on the date on which the application was made, the membership of the Mazdoor Congress has not fallen below 30 per cent for a continuous period of six months, still such a situation has arisen if the period is counted from the date of the order, that is, from 16 October 1981. It is on this basis that the Industrial Court held that a prima facie case of the membership of the Mazdoor Congress having fallen below 30 per cent for a continuous period of six months has occurred. The relevant observation from the order of that Court reads as follows:
“7. The next question is of the prima facie case. The applicant-union has produced under the signature of its secretary, Sri R.A Angna, a copy of the letter, dated 20 March 1981, addressed by the applicant-union to the non-applicant-union informing that the majority of the workmen working in the non-applicant company have tendered their resignations from the non-applicant-union and have become members of the applicant-union from 27 February 1981. Dr. Kulkarni has pointed out that at present, that is on this date, the period of six calendar months referred to in S. 13 of the Act has been completed though not at the time of filing of the applications. Section 13 speaks of only a continuous period of six calendar months without specifying any qualification of that period as against S. 11 or S. 14 which speaks of a period of six calendar months immediately preceding the calendar month in which an application is made under that section.”
Thus, the finding of a prima facie case in favour of Maharashtra Union has been recorded by the Industrial Court on the basis that the position as was available on 16 October 1981, was that the membership of the Mazdoor Congress has fallen below 30 per cent for a continuous period of six months prior to 16 October 1981, and that, therefore, the Maharashtra Union is entitled to have the interim injunction. The learned single Judge of this Court has come to a conclusion that this reasoning is absolutely irrational and inconsistent with the provisions of S. 13. Dr. Kulkarni contended that if S. 13 is read as a whole, it would be possible to construe that section to mean that there would be sufficient compliance to the requirement of the fall of membership below 30 per cent even if the six months' period is counted prior to the date of the order. Sri Singhvi, the learned advocate for respondent 4, also supported this contention. According to both of them, the purpose of giving recognition to a union is to enable it to deal with an employer on various aspects and more particularly with respect to the demands of the employees. They also argued that it is in this background that S. 13 should be construed in order to find out as to whether a particular union has incurred a disqualification for non-continuance of its recognition. On the other hand, Sri Damania, the learned advocate for respondent 1 (Mazdoor Congress), contended that the six months' period should precede the date of the application and that any subsequent event during the pendency of the application would not be of much use. In our opinion, this contention is well founded and it can be seen by taking into account the provisions of S. 13.
6. Section 13 contemplates:
(1) Fall of membership below 30 par cent for a continuous period of six months; and
(2) such a fall should also be available in the month on which the show-cause notice is issued to the recognized union.
The fact that the show-cause notice is required to be issued necessarily connotes that a union to whom such a notice is issued has to be informed that its membership has fallen below the requisite strength and that, therefore, there is a cause for cancellation of its recognition. On a plain reading of S. 13, the continuous period of six months must be the one which precede the issuance of the show-cause notice. If such an event of the fall of membership below 30 per cent has not occurred, the Industrial Court would have no authority to initiate any proceeding by issuing the show-cause notice. As a matter of fact the said fall below 30 per cant of the membership is a ground which must exist on the date of the application and if that ground is not in existence the Industrial Court would be at a loss to know as to what type of show-cause notice could be issued to a recognized union.
7. The contention of Dr. Kulkarni is that the six months' period contemplated by S. 13 can also cover the period during the pendency of an application made by the Maharashtra Union. In our opinion, such a contention is absolutely untenable for more than one reason. In the first place, we haves already observed that the show-cause notice is a must before taking any action. Would it be possible for the applicant to file an application before the Industrial Court that there was no fall of membership below 30 per cent for a continuous period of six months (when the application was filed) and still the application should be entertained as the applicant hopes that during the pendency of the application, there may be such a fall of membership below 30 per cent for a continuous period of six months. Such an application would not be permissible and obviously the Industrial Court would refuse to issue any notice. If at all any notice is issued to the recognized union on the basis of such an application, that union can successfully urge that the matter should be thrown out then and there as far as the condition precedent for the cancellation of its recognition is not in existence.
8. There is another reason as to why the submission of Dr. Kulkarni cannot be accepted. His submission would create an atmosphere of uncertainty as the result of the application would depend upon a number of uncertain events. For example, if the matter is decided expeditiously and without any loss of any time, it would be dismissed as there would not be any contingency of the requisite fall of 30 per cent of the membership for a continuous period of six months during pendency of the application. In some other matter, the application may not reach the decision for a very long period and if the requisite fall of membership for six months during the pendency of the proceeding occurs, the Industrial Court will have to cancel the recognition on account of such subsequent event. In this latter case, the applicant would succeed. It is material to note that the notice already issued to the recognized union would not call upon that union to meet such a case of the requisite fall of membership for six months during the pendedency of the proceeding. Thus, the result of the application would depend upon the vagary about the life of the litigation and we do not think that such an eventuality could be or should be allowed to occur. That the learned single Judge of this Court has rightly come to the inescapable conclusion that the relevant period of six months must precede the date on which the application is filed. It would, therefore, not be possible to accept the contention of Sri Kulkarni that the question as to whether a prima facie case exists in favour of the Maharashtra Union can be decided on the basis of six months' period inclusive of the period during the pendency of the application. We have already observed that the case of the Maharashtra Union is that 727 members of the Mazdoor Congress have resigned from that union in March 1981. This would mean that before the resignation, the said union had at least that much membership of 727 members By necessary implication it would mean that the application along with the documents produced before the Industrial Court would show that there is no prima facie case about the fall of membership for a continuous period of six months from January to June 1931. Of course, we are making this observation on the assumption that the resignation is a genuine one. Sri Damania has urged that the mazdoor congress does not accept the said resignation. That aspect, however, will have to be decided by the Industrial Court in due course but for the present even accepting the record as it stands in favour of the Maharashtra Union, it will not be possible for that union to contend that a prima facie case has been made out. It is for this reason that the impugned order for temporary injunction is liable to be quashed and we do not find any reason to disagree with that order.
9. Some arguments were advanced before us as to whether this continuous period of six months should immediately precede the making of the application or it can be any period of continuous six months in the past not necessarily preceding the date of the application. In the present case, the allegation of the Maharashtra Union in its application is that the membership of the Mazdoor Congress has fallen to less than 30 per cent from January to June 1981, that is for continuous six months immediately preceding the application which was filed in July 1981. Hence, it is not necessary to decide in this appeal as to whether the period of six months should be immediately preceding the filing of the application or that it can be any other period of continuous six months before the filing of the application.
10. There is one more aspect that has to be borne in mind while deciding as to whether the interim injunction should have been granted in the circumstances of the present case. Sections 20 and 21 of the Act of 1971 has bestowed certain rights on recognized unions. Those rights are numerous. It is not necessary to enumerate all of them. However, we would like to refer to a few of them. For example, under S. 20(1)(c), the recognized union has a right to meet and discuss with an employer or any person appointed by him in that behalf, the grievances of employees/employer in his undertaking. Under S. 20(1)(d), the recognized union has a right to appear on behalf of any employee or employees in any domestic departmental inquiry held by the employer. It is the recognized union who has a right to appear in any proceeding related to unfair labour practices. Section 18, Industrial Disputes Act, 1947, deals with settlement arrived at by agreement between the employer and the employee. Proviso to S. 18(1) lays down that it is the recognized union which would be entitled to arrive at an agreement with the employer and it would be binding on all persons. The question is whether before any decision about the cancellation of the recognition, the temporary injunction restraining the recognized union from meeting, discussing and settling any dispute should be granted. It is not that such a relief cannot be granted case is required to be made out for taking in any event, but a very strong and good away the rights of a recognized union before the actual decision as regards the cancellation of its recognition. As discussed above, there is no prima facie case in favour of the Maharashtra Union for cancellation of the recognition of the Mazdoor Congress and it is in this background also that the grant of interim relief is vitiated.
11. Before concluding the question about the legality of the said interim injunction, we would also like to mention the reasons that have been given by the Industrial Court for passing orders in favour of the Maharashtra Union. In Para. 7, the Industrial Court has discussed the existence of a prima facie case and in Para. 8, there are certain other observations. In our opinion, those observations do not warrant a grant of temporary injunction. We would like to reproduce those observations:
“8. Dr. Kulkarni has also brought to my notice another important ground for making the application for interim relief. That ground is given in a fresh affidavit filed by Sri R.A Angne on 14 September 1981. In the affidavit, Sri R.A Angne has stated as follows:
‘Both the non-applicants have entered into an agreement on charter of demand on 23 February 1978. The period of this agreement expires on 31 October 1981. As the non-applicant union continues to be a recognized union under the Act, although it has no membership and anything even much less than 30 per cent membership and has lost its right to represent the workmen, the agreement cannot be terminated by the applicant-union or the workmen in view of provision of S. 19(7), Industrial Disputes Act, 1947. It is now well-settled law that this agreement can be terminated in advance before 31 October 1981. See Shukla Manseta Industries Private Ltd. v. Workmen Employed Under It [1977 — II L.L.N 498] It is also well settled that unless this agreement is terminated, a new charter of demands cannot be submitted and that no retrospective effect to the demands be given from the date earlier than the date of charter of demands.
Under these circumstances, if this settlement is not terminated till the recognition of the non-applicant union is cancelled, it will amount to complete and irreparable loss of benefits in emoluments and other demands. Therefore, if the interim relief, as prayed for, is not granted, it will result in startling and irreparable consequence for no reasons of the applicants' fault or the fault of the workmen employed by the non-applicant-company.
For the aforesaid reasons, I grant…”
We tried to understand these reasons which compelled the Industrial Court to grant the temporary injunction. The reasons, as mentioned in Para. 8 above, could not be a ground for granting temporary injunction. As a matter of fact, the grant of such temporary injunction would have the effect of creating a sort of stalemate and obviously the creation of such a stalemate should not be allowed. Under these circumstances, we are quite satisfied that the learned single Judge has come to the correct conclusion that interim injunction was not at all permissible. At this stage, we may also observe that the learned single Judge has made a provision in his judgment to safeguard the interest of the Maharashtra Union by directing that though Mazdoor Congress would be free to act as the recognized union in all other respects but it will not sign any settlement with the undertaking without the permission of the Industrial Court. Thus, the challenge about the quashing of the interim injunction has been rightly accepted by the learned single Judge.
12. The next question is as to the legality of the order, dated 25 January 1982. In Para. 4 above, we have reproduced this order. The learned single Judge has held that in a dispute under S. 13 regarding cancellation of recognition, the ballot is not permissible. Dr. Kulkarni and Sri Singhvi contended that there is no infirmity in this order of the Industrial Court. According to them, the purpose of the order was to find out as to in whose union there is a majority of employees and by this ballot the Industrial Court would also be able to know as to whether membership of Mazdoor Congress has fallen below the requisite percentage for the relevant period of six months. Section J 3 empowers the Industrial Court to pass an appropriate order after holding an enquiry in the matter. Section 5(c) of the Act of 1971, lays down that it shall be the duty of the Industrial Court to assign work and to give directions to the investigating officers in matters of verification of membership of unions, and investigation of complaints relating to unfair labour practices. These investigating officers are appointed under S. 8 for the purpose of assisting the Industrial Court in the discharge of its duties. Section 33 empowers the Industrial Court to make regulations and rules for regulating the procedure before it. Dr. Kulkarni relied upon regulations 65 and 66 which deal with the procedure as to how the investigating officer should proceed in matters of verification of membership of unions. Regulation 65 permits investigating officers to convene meetings of the employees after following certain procedure. Regulation 66 permits investigating officers to call for and inspect any document in possession of the employer of an undertaking or the employees of an understanding. What is urged is that the provision for appointment of investigating officers who are to render assistance to the Industrial Court would mean that the Industrial Court can act through the investigating officer. It was also urged that the powers of the investigating officers are so wide that they can even convene meetings of the employees. Dr. Kulkarni, therefore, contended that the procedure contemplated by S. 13 need not necessarily be a quasi-judicial procedure. According to him, the procedure which may suit well in a given contingency can be adopted by the Industrial Court while deciding the controversy before it. He drew our attention to the fact that in the undertaking of respondent 4, there are about 1,025 employees and 30 per cent of those employees would come to more than 200. According to him, the enquiry as to whether the Mazdoor Congress had a membership of more than 30 per cent during the relevant period will be a prolonged enquiry if one has to adopt the usual mode to find out the percentage of the membership of Mazdoor Congress. Dr. Kulkarni also took an instance of an undertaking where the employees may be 5,000 and argued that for deciding the fact as to whether 30 per cent membership is commanded by a union an enquiry will have to be made from about 1,500 members of that union. According to him, to inquire into this aspect with the help of record and the oral and documentary evidence would be a time consuming task. He argued that the matter about the cancellation of recognition of a union is required to be decided expeditiously and that it is for this reason that an enquiry by ballot is most suitable. It is in this background that Dr. Kulkarni has submitted before the learned single Judge that the secret ballot was the only method by which the issue of cancellation of the recognition of Mazdoor Congress should be decided. However, in appeal, Dr. Kulkarni stated that the this secret ballot would be one of the methods for deciding the controversy and not the only method.
18. As against this, the contention of Sri Damania is that the determination of a fact with the help of a secret ballot would not be possible and that the Legislature never intended such a type of procedure. The Act of 1971 was exacted after considering the report of a Committee on Unfair Labour Practices. This committee was constituted by Government resolution, dated 14 February 1968. Sri Damania urged that it would be advantageous to consider as to what has been observed by the said committee in its report so far as the question of holding a ballot is concerned. He drew our attention to the following observations on pages 37 and 38 of the report:
“There is considerable difference of opinion among the parties who gave evidence before us as to the method to be followed for selecting the sole bargaining agent. The Maharashtra Units of A.I.T.U.C and H.M.S, as also some employers have advocated the method of of election by secret ballot, giving the right to vote to all workers whether they are members of any trade union of not. The American practice endorses the method of election by secret ballot with a right to vote to all workers. The Maharashtra Unit of the B.M.S has advocated the method of election, but they say that the right to vote should be restricted to the members of the union only. On the other hand, some trade unions, particularly the I.N.T.U.C, have contended that, in the existing conditions, it would be unwise to advocate the method of election by secret ballot. They have expressed preference for the method of verification of membership of the trade unions, more or less on the lines of the provisions contained in the Bombay Industrial Relations Act. We need not express any opinion on this highly controversial issue. Firstly for the reason that it is not an issue which directly arises from our terms of reference. Secondly, because much can be said on both sides. We, therefore, feel that it should be left for the consideration of the Legislature…….”
There is also another report known as she Report of the National Commission on Labour. On pages 330 and 331 of that report, the Commission has discussed the efficacy of the secret ballot as well as the membership verification method. The Commission had considered the advantages and disadvantages of both the methods and in Para. 23.56 it has observed as follows:
“Much of the opposition to membership verification today is the outcome of fears of manipulation and interference by the administrative authority, fears which are not always unfounded. It is reasonable to expect that verification will become more acceptable, if entrusted to an independent quasi-judicial authority. Similarly, election by secret ballot may find favour with those who now oppose it, when an independent authority conducts it, strictly according to accepted regulations. The best course, therefore, seems to be to leave the choice of method, in any particular case, to the discretion of an independent authority. We suggest that this task should be entrusted to the Industrial Relations Commission (s) proposed by us. The commission will have the power to decide the representative character of unions either by examination of membership records, or if it considers necessary, by holding an election through secret ballot open to all employees……”
As far as this report of the National Commission is concerned, it appears that no action has been taken by the Central Government on it. However, the Act of 1971 seems to be the result of the report of the Committee on Unfair Labour Practices. This is clear from the wording of the preamble which reads as follows:
“Whereas, by Government Resolution, Industries and Labour Department, No. I.D.A 1367-LAB-II, dated 14 February 1968, the Government of Maharashtra appointed a committee called ‘the Committee on Unfair Labour Practices’ for defining certain activities of employers and workers and their organizations which should be treated as unfair labour practices and for suggesting action which should be taken against employers or workers, or their organzations, for engaging in such unfair labour practices;
And whereas, after taking into consideration the report of the committee, Government is cf opinion that it is expedient to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognized unions; to provide for declaring certain strikes and lockouts as illegal strikes and lockouts; to define and provide for the prevention of certain unfair labour practices; to constitute Courts (as independent machinery) for carrying out the purposes of according recognition to trade unions and for enforcing provisions relating to unfair practices; and to provide for matters connected with the purposes aforesaid. It is hereby enacted in the Twenty-second Year of the Republic of India as follows:…”
Sri Damania, therefore, contended that the fact that this report left the matter of—
(i) method of secret ballot; or
(ii) verification of membership method
to the Legislature should be borne in mind while interpreting the provisions of the Act of 1971.
It is true that the preamble of the Act of 1971, has made a mention about this report. In our opinion, it is not necessary to construe the provisions of the Act of 1971, on the basis of certain observations made in either or both of these reports. One has to read the various provisions of the Act of 1971 and the regulations made thereunder for the purpose of deciding as to what machinery the Legislature has evolved for deciding the disputes between the parties.
14. Sri Damania drew our attention to regulations 78, 79 and 82 of the Industrial Court Regulations, 1975. Regulation 78 contemplates filing of a written statement by the party to whom a notice to show cause is issued. The said written statement is required to be verified in the same manner as a pleading in a civil suit. What is to be done after the said written statement is filed on the first date of hearing is provided by regulation 79. It reads as follows:
“79. The Court will ascertain the points of dispute between the parties at the first hearing and shall after hearing the parties ascertain whether parties desire to lead oral evidence, it so on what points, after considering relevancy of such evidence in view of the rival cases put up by the parties. In case oral evidence is to be recorded, the Court may, if the evidence is likely to be voluminous or on other grounds deemed fit by the Court, direct that witnesses may be examined on commission by a Commissioner to be appointed by the Court. The Court may appoint any person or an investigating officer as the
‘Commissioner for the examination of witnesses with necessary directions to the Commissioner. These directions shall specify the points in dispute on which oral evidence is to be recorded and the time within which it is to be recorded. If it is decided to have the evidence recorded before it, the Court may fix a date for recording evidence’.”
Under regulation 82, the Court may require any fact to be proved by affidavits and pass order to that effect. The order granting recognition or cancellation of such recognition has a number of effects more particularly pertaining to the rights of the concerned unions. The recognition of a union grants certain privileges while cancellation of that recognition would nullify these privileges. Thus, an enquiry under S. 13 of the Act of 1971, may result in affecting the rights of a recognized union. Such an enquiry would at least be a quasi-judicial enquiry and it will be necessary to decide as to whether in the absence of any specific provisions for a secret ballot, it would be possible for the enquiring authority to decide matters in controversy in such quasi-judicial enquiry with the help of secret ballot. Of course, the position would be different if the Legislature makes a specific provision that a particular controversy can be decided by a secret ballot. But, so long as that provision is not there, we will have to take into account as to what is the primary use of a secret ballot. In ordinary parlance, a secret ballot is a method of voting. This is a process of an election while the enquiry contemplated by S. 13 of the Act of 1971, is a fact finding process. In our opinion, a secret ballot cannot be used as a process where a quasi-judicial enquiry regarding the finding of certain facts is contemplated.
15. In the present case, what is required to be proved by the Maharashtra Union is that the membership of the Mazdoor Congress has fallen to less than 30 per cent during the requisite six months' period and for obvious reasons, that has to be decided on the basis of the evidence that would be led before the Industrial Court. That evidence may be in the shape of the membership record or it can be of any other kind. But, we are not able to accept the contention of Dr. Kulkarni that this controversy can be decided with the help of a secret ballot. Another flaw in adopting secret ballot as a method of proving a particular fact can very well be imagined. Let us take a case where the number of employees in an undertakes is 100, and the Industrial Court holds a secret ballot for the purpose of deciding as to whether the membership of a recognized union has fallen to less than 30 per cent. Let us estimate that the result of such a secret ballot is that twenty-five employees vote in favour of the recognized union. This would mean that the membership has fallen below the requisite percentage but as stated earlier, Dr. Kulkarni has contended that the secret ballot would be one of the pieces of evidence. In that contingency, the recognized union could lead other evidence for the purpose of proving that though the result of the secret ballot was as above, still the membership percentage was actually more than 30 per cent. The difficulty would be that as the ballot would be secret, the recognized union would not be able to know as to which of the members have voted against the union and it will not be possible for the recognized union to lead evidence to contradict those particular voters who have voted against the recognized union. This incapacity would be on account of the absence of identity of such voters.
16. The inherent lacuna in the process of a secret ballot can also be seen from the record of this case. We have already observed that the Maharashtra Union contends that 727 members of the Mazdoor Congress have resigned from that union in March 1981. The secret ballot that was held in pursuance of the order of the Industrial Court shows that 918 employees voted and out of them 904 voted against the Mazdoor Congress. We should not forget that the total employees in the undertaking are 1025. Thus, in the secret ballot, 504 employees exhibited their mind by saying that they were not in the members of the recognized union for six months, namely, from January to June 1981, and also in the month of August 198!. This is obviously inconsistent with the fact that till 20 March 1981, even as per the case of Maharashtra Union, 727 employees were the member of Mazdoor Congress. Thus, the fact that till March 1981, Mazdoor Congress had a membership of 727 persons negatives the efficacy, propriety and the legality of the secret ballot and its result. There is another lacuna which is evident from these figures. In the secret ballot, the voter can say anything because he has the protection of secrecy. The secret ballot is thus held behind the back of the recognized union and it would have no opportunity to cross-examine the persons who have recorded a vote against the union.
17. The learned single Judge has, therefore, rightly held that the secret ballot could not be a procedure as contemplated by the Act of 1971 and its regulations for the purpose of deciding the facts relevant to an inquiry under S. 13 of the Act of 1971. The Legislature has not made any express provision that the facts necessary to an inquiry under S. 13 can be proved by secret ballot. In our opinion, in the absence of such legislative sanction, it would not be open to substitute a vote in place of proof of a fact. This is more so, when the scheme of the Act and its regulations framed thereunder indicate the determination of disputed facts on the basis of evidence to be led before the Industrial Court. Under these circumstances, it will not be open for the appellant to successfully challenge the order of the learned single Judge in this respect. The result, therefore, is that the appeal fails and is dismissed. There will, however, be no order as to costs