1. The Court: Applicability of Chapter IIIA of the Trade Unions Act, 1926 to Hotel Hindusthan International is the only question before this Court in this writ petition.

2. The Registrar of Trade Unions, West Bengal took up the said issue for his consideration in compliance with an order passed by the Hon'ble Appeal Court on 6th April, 2005 in MAT No. 4241 of 2004. By the said order, a direction was given to the Registrar to the effect that if an application is made by the appellant therein, viz., Hotel Hindusthan International Karmachari Union under section 28A of the Trade Unions Act, 1926, such application shall be decided in accordance with law by treating the hotel as “industry”.

3. An application under section 28A of the said Act seeking recognition of Hotel Hindusthan International Karmachari Union, the respondent No. 4 herein, as sole bargaining agent was submitted by the said respondent to he Registrar of Trade Unions, West Bengal.

4. On receipt of the said application, notice under Form J was issued by the Registrar of Trade Unions inviting the other registered Trade Unions unctioning in the same industrial establishment to submit their applications or their recognition as sole bargaining agent in the prescribed manner within 31st October, 2006.

5. On receipt of the said notice, the petitioner which is the other Trade Union functioning in the said hotel, by its letter dated 21 October, 2005 challenged the jurisdiction of the Registrar to take any step for grant of recognition to any Trade Union operating in the said hotel as the sole bargaining agent under section 28A of the said Act on the ground that since Chapter IIIA of the said Act has no application to the said hotel which is neither an industrial establishment nor a class of industry in a local area within the meaning of the said Act, the Registrar has no jurisdiction to take any step for grant of recognition to any of the Trade Unions, as the sole bargaining agent under Chapter IIIA of the said Act.

6. While considering the application under section 28A of the said Act, filed by the respondent No. 3 herein, the Registrar of Trade Unions overruled the objection raised by the petitioner regarding the lack of jurisdiction of the Registrar of Trade Unions to take up any steps for grant of recognition to any of the unions operating in the said hotel as sole bargaining agent and in fact he proceeded further under Chapter IIIA of the said Act by granting recognition to the respondent No. 3 in spite of the fact that the Registrar of Trade Unions himself held that the said respondent did not have any right to apply before the Registrar under section 28A of the said Act as the said hotel is neither an industrial establishment nor belongs to a class of industry in a local area.

7. The Registrar of Trade Unions ultimately by its letter dated 15 December, 2005 addressed to Hotel Hindusthan International being Annexure ‘P-8’ to this writ petition directed the hotel authorities to recognise the respondent No. 3 herein as the sole bargaining agent for a period of two years with effect from 1 January, 2006.

8. The propriety of the order passed by the Registrar of Trade Unions, West Bengal on 8 December, 2005 in connection with the application of the respondent No. 3 under section 28A of the said Act as well as the legality of grant of certificate in favour of the respondent No. 3 declaring the said respondent as the sole bargaining agent in the said hotel have been challenged by the petitioner in this writ petition.

9. Mr. Kalyan Bandopadhyay, learned senior Advocate, appearing for the petitioner, submitted that when the Registrar himself held that Hotel Hindusthan International is neither an industrial establishment nor a class of industry in a local area, the said Registrar ought to have rejected the application of the respondent No. 3 under section 28A of the said Act.

10. By referring to Rule 2(g) of the West Bengal Trade Unions Rules, 1998 read with the Explanation to section 25A of the Industrial Disputes Act, 1947, Mr. Bandopadhyay submitted that Hotel Hindusthan International cannot be regarded as an industrial establishment within the meaning of Rule 2(g) of the said rules.

11. By referring to section 2(a1) of the said Act, Mr. Bandopadhyay submitted that Hotel Hindusthan International also cannot be regarded as a class of industry within the meaning of the said Act.

12. Mr. Bandopadhyay, thus, submitted that if Hotel Hindusthan international is neither an industrial establishment within the meaning of Rule 2(g) of the said rules nor a class of industry within the meaning of section 2(a1) of the said Act, then Chapter IIIA of the said Act cannot have my application to Hotel Hindusthan International. As a necessary corollary, follows that the Registrar of Trade Unions is not vested with the power to rant recognition to any of the unions operating in the same hotel as sole bargaining agent under Chapter IIIA of the said Act.

13. By referring to Annexure ‘P-7’ to the writ petition Mr. Bandopadhyay pointed out that the application of respondent No. 3 was disposed of on 12.2005 and the certificate of recognition was issued immediately thereafter on 15.12.2005 by Annexure ‘P-8’ of the writ petition.

14. Mr. Bandopadhyay submitted that since the time-gap between the ate of disposal of the respondent's application under section 28A of the said act and the issuance of the certificate of the said Act was too short, the petitioner could not submit any application in the prescribed form claiming rant of recognition in favour of the petitioner to the authority before issuance of certificate of recognition in favour of the respondent No. 3.

15. Mr. Bandopadhyay submitted that in the event it is held by this Court that Chapter IIIA of the said Act is applicable to Hotel Hindusthan international, then an opportunity be given to the petitioner to submit the requisite application before the prescribed authority, so that the petitioner an participate in the selection process along with the other aspiring Trade unions.

16. Mr. Ghosh, learned Advocate, appearing for the hotel practically took an identical stand before this Court with regard to applicability of Chapter IA of the said Act to the said hotel.

17. Mr. Majumdar, learned Advocate, appearing for the respondent No. 3, supported the ultimate conclusion which was arrived at by the Registrar of trade Unions while deciding the application under section 28A of the said act submitted by his client.

18. Mr. Majumdar contended that Hotel Hindusthan International is an dustry within the meaning of industry as defined in section 2(aa) of the aid Act. By referring to Form H as prescribed under section 28 of the said act as well as the list of industries appended thereto, Mr. Majumdar submitted at serial Nos. 842 and 843 which referred to Restaurants, cafes, hotels etc. make it clear that Hotel Hindusthan International is an industry within the meaning of the said Act and the Trade Unions operating in the same hotel the required to submit annual return in the prescribed form under section 28 of the said Act.

19. Mr. Majumdar further submitted that industrial establishment was it defined in the Act itself. Industrial establishment was, however, defined the West Bengal Trade Unions Rules, 1998. According to Mr. Majumdar, the definition of industrial establishment in the said rules cannot be given effect to as the said definition practically makes certain provision of the Act operative.

20. Mr. Majumdar further submitted that when the provision of granting recognition to any Trade Union as the sole bargaining agent under Chapter IIIA of the said Act as well as the right of appeal to the employee and/or employer of an industrial establishment aggrieved by any decision of the Registrar under Chapter IIIA of the said Act was introduced in the Trade Unions Act, 1926 by way of the Trade Unions (West Bengal Amendment) Act, 1983 without defining industrial establishment, the rules framed under the said Act in 1998 cannot give a restricted meaning to the concept of industrial establishment by introducing the definition of industrial establishment in Rule 2(g) of the said rules. In fact, Mr. Majumdar contended that establishment of an industry is an industrial establishment.

21. According to Mr. Majumdar, the concept of industry and industrial establishment is synonymous and as such one cannot be distinguished and/or separated from the other.

22. Mr. Majumdar, thus, ultimately contended that Hotel Hindusthan International is an industry inasmuch as hotels are included in serial Nos. 842 and 843 of the list of industry as aforesaid and as such, the applicability of Chapter IIIA to Hotel Hindusthan International cannot be denied.

23. Mr. Majumdar, thus, supported the order impugned without however challenging the findings of the Registrar of Trade Unions to the effect that Hotel Hindusthan International is neither an industrial establishment non a class of industry in a local area and as such Chapter IIIA has no application to such a hotel.

24. Mr. Majumdar, however, fairly submitted before this Court that in the event however it is found that Chapter IIIA has its application to Hotel Hindusthan International, then an opportunity be given to the petitioner union to submit the requisite Form before the prescribed authority for grant of recognition in its favour, so that the said union can also participate in the selection process for recognition of such grant to the union representing the majority workers of the said union.

25. Mr. Das, learned Advocate, appearing on behalf of the State-respondents, supported the impugned order, by adopting the submission of Mr. Majumdar. Mr. Das further added that when the Hon'ble Appeal Court directed the Registrar of Trade Unions to consider the application under section 28A of the said Act submitted by the respondent No. 3 by treating the hotel as “an industry”, the Registrar of Trade Unions has no other alternative but to decide the said application and to grant a certificate of registration in favour of the respondent No. 3 who was the only applicant for such grant.

26. Heard the learned Advocates of both the parties. Considered the materials on record.

27. I have already indicated above that the dispute regarding applicability of Chapter IIIA to Hotel Hindusthan International is the only question which requires Court's consideration. In order to appreciate the respective contentions of the learned Advocates of the parties, I must point out that Chapter IIIA of the said Act is applicable to an industrial establishment or a class of industry in a local area. Chapter IIIA of the said Act does not refer to grant of certificate of recognition to Trade Unions as bargaining agent for an industry. The expression “industry” is conspicuously absent in provisions contained under Chapter IIIA of the said Act. Chapter IIIA of the said Act specifically refers to its applicability to an industrial establishment or a class of industry in a local area. “Any class of industry” and “industry” have been defined in section 2(a1) and section 2(aa) of the said Act respectively. It is nobody's case that Hotel Hindusthan International is a class of industry; as such, this Court need not consider the applicability of Chapter IIIA of the said Act to the hotel as a class of industry.

28. Let me now consider as to whether Hotel Hindusthan International can be regarded as an industry. The definition of “Industry” as defined in section 2(aa) of the Trade Unions Act, 1926 as well as clause (j) of section 2 of the Industrial Disputes Act, 1947, are set out hereunder:

“Section 2(aa) - ‘industry’ shall have the same meaning as in clause (j) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947).”

“Section 2(j) - ‘industry’ means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.”

29. On consideration of the definition of “industry” as defined in clause (j) of section 2 of the Industrial Disputes Act, 1947 read with the list of industries appended to Form H as prescribed in terms of section 28 of the said Act, this Court cannot conclude that Hotel Hindusthan International is not an industry within the meaning of section 2(aa) of the said Act as hotel undisputedly carries on business.

30. I have already indicated above that Chapter IIIA of the said Act does not refer to industry in any of the provisions contained therein. Chapter IIIA rather consistently all-through out refers to industrial establishment and class of industry. Thus, it goes without saying that Chapter IIIA of the said Act will not become applicable even if the hotel is an industry. However, Chapter IIIA can be applied to an industrial establishment as defined in Rule 2(g) of the West Bengal Trade Unions Rules, 1998.

31. For appreciation of the definition of “industrial establishment”, Rule 2(g) of the West Bengal Trade Unions Rules, 1998 and section 25A of the Industrial Disputes Act, 1947 as well as clause (m) of section 2 of the Factories Act, 1948 are set out hereunder:

“Rule 2(g) - ‘industrial establishment’ shall have the same meaning as in the Explanation to section 25A of the Industrial Disputes Act, 1947 (14 of 1947).”

“Section 25A. Application of sections 25C to 25E.—(1) Sections 25C to 25E inclusive shall not apply to industrial establishments to which Chapter VB applies, or—

(a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or

(b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently.

(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final.

Explanation.—In this section and in sections 25C, 25D and 25E, ‘industrial establishment’ means—

(i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948); or

(ii) a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952); or

(iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951).”

“Section 2(m) - ‘factory’ means any premises including the precincts thereof—

(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or

(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid or power, or is ordinarily so carried on,

but does not include a mine subject to operation of the Mines Act, 1952 (35 of 1952), or a mobile unit belonging to the armed forces of the union, a railway running shed or a hotel, restaurant or eating place.

Explanation I.—For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account.

Explanation II.—For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof.”

32. On consideration of the said provisions, this Court can safely conclude that Hotel Hindusthan International cannot be regarded as an industrial establishment within the meaning of Rule 2(g) of the West Bengal Trade Unions Rules, 1998, as it does not satisfy the requirement of the Explanation to section 25A of the Industrial Disputes Act.

33. The concept of industry and an industrial establishment are not synonymous. If the concept of industry and industrial establishment are synonymous, then those two expressions would not have been defined differently in the Act as well as in the rules framed thereunder. The definitions given to industry as well as industrial establishment in the Act and the rules thereunder make it clear that those two concepts are different from each other.

34. Thus, when the application of Chapter IIIA of the said Act has not been extended to the industry explicitly by incorporating industry in the said provision, this Court cannot extend the application of Chapter IIIA to Hotel Hindusthan International which is not an industrial establishment within the meaning of Rule 2(g) of the said rules, though the said hotel is an industry within the meaning of section 2(aa) of the said Act.

35. Needless to mention here that Rule 2(g) was framed by the State in exercise of its rule making authority under the statute, as such it cannot be said that the said Rule has no statutory force. In my view, the said Rule having statutory force, cannot be ignored.

36. This Court cannot accept the submission of Mr. Majumdar to the effect that, if the said definition is given effect to, then certain provision of the Act will become inoperative as, in my view, the gap which was there in the Act was filled up by the rule making power of the State. It is also an accepted position in law that a statutory provision starts functioning when the modalities for its operation is prescribed under the rules. Thus, in my view, Chapter IIIA so far as it relates to an industrial establishment became operative after introduction of the definition of industrial establishment in Rule 2(g) of the said rules in 1998.

37. Under such circumstances, this Court holds that the Registrar of Trade Unions acted in excess of his jurisdiction by granting recognition to respondent No. 3 as the sole bargaining agent in Hotel Hindusthan International.

38. The impugned order contained in Annexure ‘P-7’ to this writ petition as well as the grant of recognition of the respondent No. 3 as the sole bargaining agent as contained in Annexure ‘P-8’ to this writ petition, stand quashed.

39. The writ petition is, thus, allowed.

40. There will be, however, no order as to costs.

41. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.

Jyotirmay Bhattacharya, J.:

Writ petition allowed.

L.D.S