Holding

A member is deemed non‑member only if his subscription is in arrears for more than three calendar months within the preceding six months, so the appellant’s cancellation petition fails.

Summary

The Maharashtra Girni Kamgar Union (appellant) sought cancellation of the registration of respondent No.4 union as a representative union under Section 15(b)(ii) of the Bombay Industrial Relations Act, 1946, alleging that its membership fell below the 25% statutory minimum for a continuous three‑month period. The dispute turned on the interpretation of the proviso to Section 3(25) of the Act, specifically the meaning of “period of more than three calendar months” after the 1965 amendment, and on the procedure to be followed under Section 15. The Supreme Court held that “more than three calendar months” means four or more months, and that a member is deemed non‑member only if his subscription is in arrears for more than three months within the six months preceding the month in question. Applying this, the Court found that the 61,509 workmen who had not paid for December 1981 were not in arrears for more than three months and therefore must be counted as members, keeping the union’s membership above the 25% floor. Consequently, the appellant’s application for cancellation was rightly rejected. The Court also clarified that the procedure for cancellation is governed by Section 15 itself, not by Rule 28A of the BIR Rules.

Issues considered

The correct interpretation of ‘period of more than three calendar months’ in the proviso to Section 3(25) of the Bombay Industrial Relations Act, 1946 post‑1965 amendment
Whether the respondent union’s membership fell below the 25% threshold for a continuous three‑month period under Section 15(b)(ii)
Whether the procedure for cancellation of a representative union’s registration is prescribed by Section 15 itself or by Rule 28A of the BIR Rules
Whether the proviso to Section 3(25) should be construed strictly or liberally in light of legislative intent

Legislation cited

Bombay Industrial Relations Act, 1946s. 118, s. 123(2)(na), s. 13, s. 15, s. 16, s. 22, s. 3(25)
Trade Unions Act, 1926s. 6

Subjects

industrial relationsrepresentative unionmembership thresholdsubscription arrearsstatutory interpretationcancellation of registrationBombay Industrial Relations ActTrade Unions Act

Judgment

MAHARASHTRA GIRNI KAMGAR UNION A
v.
S. BHATTACHARJI AND ORS.

AUGUST31, 1999

[S.B. MAJMUDAR, M. SRINIVASAN AND U.C. BANERJEE, JJ.] B

Labour Laws :

Bombay Industrial Relations Act, 1946 :
c
Sections l 5(b) (ii), 3(25) 13(1) and 16-Representative Union-
Registration-Cancel/ation of-On ground that membership fell below the
statutory minimum under S.13(1)-Number of members-Computation of-
Subscription-Arrears of-For a period ofmore than three calendar months-
Held : · "More than three calendar months" cannot be equated with "three D
calendar months "-It would be four calendar months or more-In the
circumstances of the case, membership. of the representative union has not
fallen below the statutory minimum-Hence, application of rival union for
cancellation of registration of representative union, rightly rejected-Trade
Unions Act, 1926.
E
Section 15-Representation union-Registration-Cancellation of-
Procedure to be followed-Held : Is the one provided under S.15 itself and
not the one provided under R.28-A of the Rules framed under the BIR Act.

Interpretation of Statutes :
F
Welfare Legislation-Rules of interpretation-Held : Interpretation,
which fructifies, not which frustrates, the benevolent scheme, has to be
preferred.

Words and Phrases:

"Period of more than ·three calendar months "-Meaning of-Jn the G
context of proviso to S.3(25) of the Bombay Industrial Relations Act, 1946.

The appellant was an union registered under the Trade Unions Act,
1926. Its members were workmen engaged in cotton textile industry.
Respondent No. 4 was registered as a representative union in the same H
89
90 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A industry in the same area under Section 13 of the Bombay Industrial Relations
Act, 1946.

The appellant-union moved an application on 24-3-1982 before the
Registrar of Unions for cancellation of the registration of respondent No.4
union as a representative union under Section 15(b)(ii) of the BIR Act on
B the ground that for the relevant period of con~inuous three calendar months
the membership of respondent No. 4 union had fallen below the requisite
25% of the workmen in the textile industry in that area. The Additional
0

Registrar rejected the said application. In appeal, the Industrial Court, on
an interpretation of Section 3(25) of the BIR Act read with Section 15
C thereof, held that the membership of respondent No. 4 union had not fallen
below the minimum required for con.tinuance of its registration as a
representative union. The High Court upheld this order. Hence this appeal.

On behalf of the appellant-union it was contended that for the purpose
of its application dated 24-3-1982 the relevant continuous three calendar
D months period consisted of December 1981, January 1982 and February
1982; that the members of respondent No. 4 union who had not paid their
subscription for December 1981 were 61,509; that on a correct interpretation
of Section 3(25) of the BIR Act, a workman who had not paid his subscription
for a particular month by the next month would be in arrears for more than
one month; that the said 61,509 workmen who had not cleared their arrears
E for December 1981, even by the end of February 1982, had to be treated to .
be in arrears of subscription for a period of more than three calendar
months, namely, December 1981, January 1982 and February 1982; that
these 61,509 members would be deemed not to be the members of respondent
No. 4 union for the purpose of considering continued representative status
F of respondent No. 4 union, that they were out of consideration for computing
25% membership of respondent No. 4 union from all the requisite three
months and, therefore, the appellant's application moved in March 1982 was
required to be allowed.

Dismissing the appeal, the Court
G
HELD: 1.1. By the deeming provision as per the proviso to Section
3(25) of the Bombay Industrial Relations Act, 1946 existing prior to 1965,
the legislature treated deemed arrears of subscription for three calendar
months or even more to be a sufficient disqualification for a person to be
continued on the roll of membership of the union for subsequent months.
H However, the said proviso has undergone a sea-change from 1965 and as per

j

T
MAHARASHTRA GJRNI KAMGAR UNION 1·. S. BHATT ACHARJI 91
present form in which it exists on the statute book, a person would be deemed A
to be a non-member only if his subscription is in arrears for a period of more
than three calendar months within the block of six earlier calendar months.
Therefore, it is not possible to agree with the contention of the appellant that
period of more than three calendar months as mentioned in the proviso
pursuant to the amendment in 1965 can be said to have set in once it is found B
that for each of the preceding three calendar months subsc~iption was not
paid by the end of such month and the moment three calendar months are
over without payment of the due subscription for each of these months, on
the stroke of 12 0' clock midnight of the third calendar month the period
of more than three calendar months can be said to have started. It is obvious
that the concept of arrears for a calendar month as laid down by the explanation C
takes in its sweep the conduct of a member who does not pay the subscription
for the concerned calendar month by the end of the month. He has full play
and locus paenitentiae to pay up the subscription for the month concerned
at any time from first till the last day of such calendar month. The
interpretation canvassed by the appellant would render the phrase "more
than three calendar months" totally otiose. It is axiomatic that 'more than D
three calendar months' cannot be equated with 'three calendar months'.
Further, it is also interesting to compare the phraseology employed by the
legislature in Sections 13 and 16 of the BIR Act wherein an applicant union
for getting registration as a representative union under Section 13 or the
rival union to displace such a representative union by applying under Section E
16 has to show its requisite 25% membership of the workmen engaged in
that industry for a continuous period of three calendar months i~mediately
preceding such application. Continuous period of three calendar months
would naturally start with the first month and end with the third month. Such
phraseology is conspicuously absent in the proviso to Section 3(25) as it
stands on the statute book after 1965. (109-B-H; 110-A-El F

2.1. The membership in question is of persons who are mostly illiterate
labour force working in various textile mills and other industries governed
by the BIR Act They are largely drawn from rural areas and come from long
distances to eke out their livelihood in search of maintaining themselves and G
the members of their family. Such poor and illiterate persons who join the

- unions which function for them in a representative capacity for ventilating
their grievances must be permitted to be duly represented by the unions of
' their choice. The interpretation, which fructifies this underlying purpose of
legislation, has to be preferred. The representative union of such employees,
by the process of collective bargaining on their behalf with the mill owners' H
92 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A association, can bring about appropriate settlements of industrial disputes
while dealing with better financially and socially placed unions of employers
who naturally have larger economic resources and can get able assistance
of competent legal and financial brains. [110-G-H)

2.2. The BIR Act is based on the principle of industrial democracy. Any
B provision of the Act, which tries to cater to the needs of these illiterate
masses of workmen, has to be so interpreted as to subserve the legislative
intent underlying the principle of industrial democracy and collective
bargaining guaranteed by the Act. Any interpretation which fructifies such
benevolent scheme and which guarantees continuance of membership of
C such illiterate masses of workmem has to be preferred to the interpretation
which frustrates the scheme underlying such benevolent enactment. The
deeming fiction contained in the proviso to Section 3(25) for dismembering
a person has, therefore, to be raised only on a strict construction of the
provision and not on a liberal construction of such a disabling provisi0n.
However, on the setting of Section 3(25) along with the proviso and the
D explanation even two interpretations are not reasonably possible.
(111-C-D)

3. The emphasis on the words "period of more than three calendar
months" does not advance the case for the appellant further for the simple
E reason that the phrase "period of more than three calendar months'' deals
with the time span during the relevant period of six calendar months preceding
the month in question within which the conduct of the member concerned has
to be scrutinised. That would not require a continuous period of more than
three calendar months. On the express language of the proviso as read with
the explanation it has to be held that before a member can be treated to be
F a deemed non-member for December 1981 it has to be shown that during the
six months preceding December 1981 i.e. from June 1981 till the end of
November 1981 he was at any time in arrears of subscription for more than
three calendar months, meaning thereby for four calendar months or even
more. But if it is shown that he was in deemed arrears as provided by the
G explanation of the proviso for only three months or less and ·not for a longer
period than three calendar months, then he cannot be deemed to be a non-
member for December 1981. It has also to be visualised that there is a clear
finding of fact reached by the appellate court, namely, the Industrial Court
and as confirmed by the Single Judge and the Division Bench of the High
Court that 61,509 members of respondent No. 4 union who had not paid
H subscription for December, 1981 by the end of that month were not in
MAHARASHTRA GIRNI KAMGAR UNION 1•. S. BHA TTACHARJI [S.B MAJMUDAR, J.] 93

arrears for even three calendar months, during the period June 1981 to A
November 1981. These 61,509 workmem members could not, therefore, be
treated to be non-members of respondent No. 4 union only because in the
month of December itself they had not paid up subscription by the end of
December 1981. On a conjoint reading of the main provisions of Section
3(25) and the proviso and the explanation thereof, the High Court was
justified in confirming the view of the appellate court that these 61,509 B

-
workmen had to be added back to the figure of 49,670 workmen who were
members of respondent No. 4 union in December 1981 and who had paid up
the subscription in time. Once this figure is added, total membership figure
obviou:;~y goes beyond the requisite 25% minimum membership for December
1981. It becomes, therefore, obvious that application of the appellant for C
cancellation of registration of respondent No. 4 union under Section 15 of
the BIR Act would fail. [113-B-H; 114-A-E)

4. The procedure to be followed by the Registrar under the BIR Act
while considering the application under Section 15 for cancelling the
registration of a representative union duly registered under the BIR Act D
earlier, is the one provided under the Section itself and not under R 28-A 'If
of the Rules framed under the BIR Act. It leaves to the discretion of the
Registrar to conduct such inquiry as he thinks fit in this connection and he
has to decide the application after issuing show cause notice to the union
whose registration is sought to be cancelled. (102-D)
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2473 of 1987.

From the Judgment and Order dated 18.7.86 of the Bombay High Court
in A. No. 685 of 1984.

S.J. Deshmukh, Ashok Kumar Gupta and Farukh Rashid for the Appellant. F
Ashok H. Desai, Ms. Reema Bagga and Jay Savla for the Respondent
No.3.

Bhimrao Naik, Kailash Vasdev, Ms. Nayana Buch and S. Varma for the
Respondent No. 4. G
Mrs. B. Sunita Rao for the Respondent Nos. 5-6.

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. This appeal, on certificate of fitness granted by
the High Court of Bombay, brings in challenge the decision rendered by the H
94 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Division Bench of the High Court in Appeal no. 685of1984 decided on 18th
July, 1986. It raises the question of correct interpretation of Section 3(25) of
the Bombay Industrial Relations Act. 1946 (hereinafter referred to as the 'BIR
Act'). The said provision defines the term 'Member' of a trade union which
is registered under the BIR Act. In order to appreciate the nature of the
B controversy centering round the aforesaid question a few introductory facts
deserve to be noted at the outset.

BACKGROUND FACTS:

The appellant is a union registered under the Trade Unions Act, 1926.
C It is functioning at Greater Bombay and seeks to cater to the problems of its
members who are workmen engaged in cotton textile industry situated therein.
Respondent No. 4 is duly registered as a representative union in the cotton
textile industry for the local area of Bombay under the provisions of Section
. 13 of the BIR Act. It is registered as a representative union on the basis that
it enjoyed for the whole period of three calendar months at the relevant time
D the requisite 25% and more membership of workmen engaged in various
cotton textile mills in the city.

The appellant union on 24 March, 1982 moved an application before the
Registrar functioning under the BIR Act for cancellation of the registration
E of respondent No. 4 union as a.representative union of workmen in the textile
industry for the local area of Bombay as per the provisions of Section l 5(b)(ii)
of the BIR Act. It was contended that for the relevant period of continuous
three calendar months the membership of the respondent No. 4 union had
fallen below the requisite 25% of the workmen in the textile industry in
Bombay and hence its registration was required to be cancelled. Initially, the
F said application was summarily rejected by the Additional Registrar by holding
that the membership of respondent No. 4 for the period of continuous three
calendar months had not fallen below the minimum. The appellant challenged
the said order by filing a Writ Petition No. 856 of 1982 in the Bombay High
Court. The· Additional Registrar thereupon withdrew his order rejecting the
G application of the appellant as the High Court had directed appropriate inquiry
to be made in this connection. Thereafter the Additional Registrar of Unions
functioning under the BIR Act by his Order dated 4 November, 1982 after
issuing appropriate show cause notice to respondent No. 4, though having
held that the membership of respondent No. 4 had fallen below the minimum
required for registration i.e. 25% for the concerned months, declined to cancel
H the said registration on the ground that during the relevant three months
MAHARASHTRAGIRNIKAMGARUNIONv. S.BHATTACHARJI[S.B.MAJMUDAR,J.) 95

there was a strike in the textile industry in Bombay and, therefore, the workers A

-- could not pay up their subscription. The said Order of the Additional Registrar
of Unions resulted in two cross appeals before the Industrial Court,
Maharashtra at Bombay. The Industrial Court, after bearing the parties, came
to the conclusion on an interpretation of Section 3(25) of the BIR Act read
with Section 15 thereof that the membership of respondent No. 4 union had
not fallen below the minimum required for continuance of its registration as B
a representative union. Resultantly, the appelhmt's application under Section
15 was dismissed. Being aggrieved by the said decision of respondent No.
2 herein i.e. the Industrial Court, the appellant once more approached the High
Court in Writ Petition No. 805of1983. Learned single Judge of the High Court
dismissed the writ petition and confirmed the order dated 23rd/24th April, C
1983 of respondent No. 2. The appellant carried a further appeal before the
Division bench of the High Court being OOCJ Appeal No. 685 of 1984. The
Division Bench of the High Court by the impugned judgment dated 18 July,
1986 dismissed the said appeal agreeing with the interpretation put up on
Section 3(25) of the Act by the Industrial Court as well as by the learned D
single Judge. As noted earlier, on a certificate of fitness granted by the
Division Bench of the High Court this appeal has reached this Court.

RIVAL CONTENTIONS:

Learned counsel for the appellant vehemently contended placing reliance E
on the relevant provisions of the BIR Act including the definition section of
"Member" as laid down in Section 3(25) there of that the interpretation put
forward by the Division Bench of the High Court as well as by the learned
single Judge and in tum by the Industrial Court is not a correct one. He
submitted that as the appellant had moved the application under Section 15
of the BIR Act for cancelling the registration of respondent No. 4 representative F
union on 24 March, 1982, the relevant continuous three calendar months
period wherein respondent No. 4's membership had to be scrutinised consisted
of December, 1981, January, 1982 and February, 1982. That it was found as a
matter of fact by the Additional Registrar on remand from the High Court that
for the relevant three months, figures of membership of respondent No. 4 G
union had fallen milch below the requisite 25% of membership. That during
this relevant period total strength of workmen working in the textile industry
in different mills in Greater Bombay was 2.25 lakhs; 25% thereof which will
be the requisite membership, before respondent No.4 can be treated to have
continued as a representative union under the Act would, therefore, work up
to 56,250 while it was found as a matter of fact by the inspection team H
96 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A appointed by the Additional Registrar which went into the matter that the
figures of membership of respondent .No. 4 for the relevant three months
projected the following picture:

December, 1981 49,670
--
B January, 1982 40,902

February, 1982 5,080

That it was further found by the inspection team that those members of
respondent No. 4 who did not pay their subscription for the aforesaid relevant
c three months were as under:

December, 1981 61,509

January, 1982 58,852

February, 1982 ·74,904
D
It was, therefore, contended that as respondent no. 4's membership was less
than 25% minimum requisite for being recognised as a representative union -.
of workmen in the textile industry in Bombay for all the aforesaid three
relevant months, the appellant's application for cancellation ofrespondent no.
E 4' s registration was required to be allowed as laid down by Section l 5(b)(ii)
of the BIR Act. In this connection, it was submitted that the Division Bench
of the High Court had wrongly taken the view that only because in the month
of December, 1981, 61,509 workmen had not paid their subscription for that
month they could not be treated as non-members as it was found that they
were not in arrears for more than three months in the block period of six
F months preceding December, 1981. "Hence, this number of 61, 509 workmen
had to be added back for computing the membership of respondent no. 4
union for December, 1981 and if that took place, the membership of respondent
no. 4 union for that month would far exceed 25% minimum required for
continuing its registration. It was similarly argued by learned counsel for the
appellant that the High court had for the same set of reasoning erred in
G adding up the number of employees who were in arrears for January, 1982 to
the figure of those who had paid up their subscription for January, 1982. He,
./
however, fairly conceded that if in fact for any of the requisite three months,
namely, December, 1981, January, 1982 and February, 1982 respondent no. 4's . "
membership had actually exceeded 25% for one month or more out of these
H three months then respondent no. 4's registration could not be cancelled
MAHARASHTRAGIRNIKAMGAR UNION v. S.BHATTACHARJI (S.B.MAJMUDAR, J.] 97

under Section 15(b)(ii) of the BIR Act as cancellation could be ordered only A
if for the entire continuous period of three months, namely, December, 1981
to February, 1982 such membership had fallen below the requisite 25% of the
work force of the textile industry in Bombay city. His contention, however,
was that on a correct interpretation of Section 3(25) of the Act defining
"member" of a trade union, it ought to have held that when 61,509 workmen
had admittedly not paid subscription for December, 1981, by January, 1982 B
they would be in arrears for a period of more than one calendar month. They
had admittedly not paid the arrears for December month even by the end of
January, 1982. Therefore, by the beginning of February, 1982 they were in
arrears for a period of more than two calendar months. And when by the
beginning of March, 1982 they had not cleared the arrears of December, 1981, C
even by the end of February, 1982, these workmen had to be treated to be
in arrears of subscription for a period of more than three calendar months,
namely, December, 1981, January, 1982 and February, 1982. Therefore, they
would be deemed not to be members of the respondent no. 4 union for the
purpose of considering continued representative status of respondent no. 4
union. That they were deemed not to be such members for all the aforesaid D
three months. Hence, they were out of consideration for computing 25%
membership of respondent no. 4 from all the requisite three months. Therefore,
. the appellant's application moved in March, 1982 was required to be allowed.
He, however, fairly stated that he did not support the contention canvassed
by his learned counterpart Shri Damania, who appeared for the appellant E
union before the Division Bench of the High Court, namely, that if a workman
did not pay his subscription on or before 3 lst December, 1981, he cannot be
construed to be a member for that month and there would remain no occasion
for invoking the proviso to Section 3(25) for deciding his status as a member.
However, his submission was that even if the proviso is read harmoniously
with the main part of Section 3(25) of the BIR Act even then once it is found F
that for a continuous period of three calendar months a workman was in
arrears may be for even one of the calendar months during that period, by
the end of the period of three calendar months on the very next date or even
at the stroke of midnight of the end of the third calendar months such
workman had to be treated to be in arrears for a period of more than three G
calendar months and consequently, he will be deemed not to be a member of
the union whose membership was claimed by him. He, therefore, submitted
that on a correct interpretation of the main part of Section 3(25) of the Act
read with the proviso and the explanation attached thereto, it has to be held
that respondent no. 4 had ceased to have the requisite 25% membership of
the working force in the textile industry in the city of Bombay for the relevant H
98 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A three months and as it was not found that it had the requisite 25% membership
at least in May, 1982 when show cause notice was issued to the respondent
no. 4 union, the inevitable result was that it had ceased to be a representative
union of the employees working in the textile industry at the relevant time and
its registration was liable to be cancelled.

B On the other hand, learned senior counsel Shri Desai appearing for
respondent no. 3 herein, i.e. the Bombay Mill Owners' Association and
learned senior counsel Shri Bhimrao Naik appearing for respondent no. 4
union supported the interpretation put forward by the Division Bench of the
High Court. It was contended that the Division Bench of the High Court in
C the impugned judgment had rightly come to the conclusion that as the
appellant had moved the appijcation for cancellation of registration of
respondent no. 4 in March, 1982, the relevant three months for which inquiry
was to be held by the Registrar comprised the continuous period from
December, 1981 to February, 1982. That even if for one of these months the
membership of respondent no. 4 had crossed the minimum requirement of
D 25%, the appellant's application was liable to be dismissed as it would not
satisfy the requirement of continuous fall of membership below 25% for each
of these months. That a clear finding of fact was arrived at by the Industrial
Court in appeal that for the month of December, 1981 and even for the month
of January, 1982 out of the aforesaid relevant three months, respondent no.
E 4's membership could not be said to have fallen below the minimum 25% as
those workmen-members who had not paid arrears for two months were not
found to be in arrears for a period of three months and more during the period
of six months immediately preceding these two months i.e. December, 1981
and January, 1982 and consequently, they were rightly added back to the
number of members who had actually paid subscription for these two months.
F It was submitted that on a correct interpretation of Section 3(25) of the Act
read with the proviso and the explanation, it had to be appreciated whether
the concerned member of the union was in arrears of subscription for a period
of three months or more during tbe block period of six months preceding the
given month for which the inquiry was to be made. Hence, that inqui,ry had
G to be projected backwards for a period of six months immediately preceding
the month in question. Taking the first month, namely, December, 1981 it was
submitted that six months immediately preceding December, 1981 would consist
of the period comprising June, 1981 to November, 1981. That as per Section
3(25) read with the proviso and the explanation if it was found that the
concerned workman had not paid his subscription and was in arrears for more
H than three calendar months during the period from June, 1981 to November,
MAHARASHTRA GIRNI KAMGAR UNION 1•. S. BHATTACHARJI [S.B. MAJMUDAR, J .] 99
1981 then only he would be deemed not to be a member of the union in A
December, 1981. It was emphasised that the legislature had advisedly used the
terminology "if his subscription is in arrears for a period of more than three
calendar months during the period of six months immediately preceding". It
was submitted that when the question of membership was on the anvil of
scrutiny for the first month of December, 1981, it had to be seen whether the B
concerned workman had not paid his subscription and was, therefore, in
arrears for more than three calendar months falling within the period of June,
1981 to November, 1981. That there was a clear finding of the Industrial Court
as confirmed by the High Court that the members of respondent no. 4 union
totalling up to 61,509 though had not paid subscription for December, 1981
. had not kept their subscription in arrears for more than three calendar months C
.... during the period June, 1981 to November, 1981 and therefore, they could not
be deemed to be non-members of respondent no.4 union in December, 1981.
It was submitted in the light of the aforesaid finding of fact which obviously
could not be challenged in the present proceedings that these 61,509 workmen
were rightly added back to the figure of 49,670 workmen-members who had
. paid their subscription for December, 1981 and once that happened respondent D
no. 4 union could not be said to have fallen below the 25% of requisite
membership i.e. 56,250 for that month. It was further submitted by learned
senior counsel for respondents that once that conclusion is reached, the
result becomes inevitable that the appellant's application becomes liable to be
rejected and accordingly, was rightly rejected by the authorities functioning E
under the BIR Act and that decision was rightly confirmed in the first instance
by the learned single Judge and subsequently by the Division Bench by its
impugned judgment.

CONSIDERATION OF THE QUESTION IN CONTROVERSY:
F
In the light of the aforesaid rival contentions, we now proceed to
address ourselves to the moot question posed for our consideration. Before
we deal with the same, it would be appropriate to have a look at the relevant
statutory scheme holding the field. Section 13(1) of the BIR Act deals with
the question of registration of trade union of employees engaged in an G
industry governed by the said Act. As per the said provision, if a union of
workmen satisfied the registering authority that for a continuous period of
three calendar months immediately preceding the date of its application for
registration as a representative union it had the membership of not less than
25% of the total number of employees employed in such an industry in the
local area, it became entitled to be registered as a representative union under H
100 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A the BIR Act. It is not in dispute between the parties that as early as in 1958,
respondent no.4 satisfying this statutory requirement, got registered as a
representative union of workmen employed in the textile industry in the city
of Bombay and, accordingly, it continued to function as such thereafter and
had entered into many settlements under the BIR Act with the textile mill
B owners. It is the appellant union which, it was alleged, had given a strike call
which resulted into partial strike from October, 1982 in cotton textile industry
in Bombay and which became almost a cent per cent strike from January, 1982
and which lingered on for a couple of months and years thereafter. For
considering the grievance of the appellant rival union that respondent no. 4
had become liable to be de-recognised as a representative union, as noted
C earlier, it has to be seen whether for the relevant three months i.e. from
December, 1981 to February, 1982 as well as for the month of May, 1982 when
show cause notice was issued to respondent no.4 union, its membership of
employees working in textile industry in Bombay had fallen below the requisite
-
25% in each of these months. It becomes, therefore, at once clear that if out
of these four months even for one month the membership of respondent no.
D 4 meets the requirement of 25% or more, the appellant's application would •
naturally fail. For deciding this question, it becomes necessary to have a look
at the definition of the term 'member' of the union as defined in Section 3(25)
of the BIR Act. As the entire controversy revolves round the correct
interpretation of this definition, it is appropriate to extract the same in extenso
E as under:
"Member" means a person who is an ordinary member of a union and
who has paid a subscription of not less than [twenty five paise] [per.
calendar month];

p Provided that no person shall at any time be deemed to be a member
if his sub!icription is in arrears [for a period of more than three
calendar months during the period of six months immediately preceding
such time].

[Explanation : A subscription for a particular calendar months shall,
G for the purposes of this clause, be deemed to be in arrears if such
subscription is not paid by the end of the calendar month in respect
of which it is due];"

The other relevant provision of the Act to which our attention was invited
by learned counsel for the appellant in support of his contention is Section
H 15(b)(ii). The said provision was invoked by the appellant for seeking de-
MAHARASHTRA GIRNJ KAMGAR UNION t'. S. BHATTACHARJI [S.B. MAJMUDAR,J.] 10}

recognition of respondent no. 4 as a representative union. The said provision A
also deserves to be noted at this stage. It reads as under :

"15. Cancellation of registration-The Registrar shall cancel the
registration of a union-

(a) xxx xxx xxx B

(b) if [after giving notice to such union to show cause why its
registration should not be cancelled and] after holding such inquiry,
if any, as he deems fit, he is satisfied-

(i) xxx xxx xxx
c
(ii) that the membership of the union has for a continuous period
of three [calendar] months fallen below the minimum required
under section 13 for its registration:
D
Provided that where a strike or a closure not being an illegal strike or
closure under this Act in an industry involving more than a third of
the employees in the industry in the area has extended to a period
exceeding fourteen days in any calendar month, such month shall be
excluded in computing the said period of three months:
E
Provided further that the registration of a 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

xxx xxx xxx" F

Our attention was also invited to Section 16 of the BIR Act which deals
with application to be made by the rival union that wants to be registered as
.. a representative union in place of existing union like respondent No. 4. It must
be noted that the appellant has never claimed benefit of Section 16 of the BIR G
Act by staking its claim for displacing respondent no. 4 as a representative
union on the ground that it had more membership of the employees/workmen
of textile industry in Bombay as compared to respondent no. 4 during the
relevant months. It is, therefore, not necessary to dilate on the said provision
any further. Learned counsel for the appellant invited our attention to Section
22 of the Act which deals with registration of an approved union. In our view, H
102 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A the said provision is also not of much relevance. Our attention was also
invited to Section 118 of the Act which provides for powers of the Registrar
and other authorities under the Act regarding summoning of witnesses .etc.
For resolving the present controversy, said Section is also not of much
relevance. Our attention was also invited to Section 123 (2) (na) which deals
with rule making power under which the Maharashtra State had framed the
B relevant rules. Emphasis was placed on Rule 28A for pointing out the procedure
to be followed by the Registrar under the Act in. connection with application
for registration under Section 13(1) of the Act and application for displacing
the representative union by the rival applicant union under Section _16 of the
Act. In our view, the said rule is also strictly not of much relevance for
C resolving the present controversy as the rule making authority has
conspicuously not included Section 15 within the procedural sweep of Rule
28A. Consequently, the procedure to be followed by the Registrar under the
BIR Act while considering the application under Section 15 for cancelling the
registration of a representative union duly registered under the BIR Act
earlier, is the one provided under the Section itself. It leaves to the discretion
D of the Registrar to conduct such inquiry as he thinks fit in this connection
and has to decide the application after issuing show cause notice to the union
whose registration is sought to be cancelled. It is not in dispute before us
that requisite procedure of Section 15 was followed by the Additional Registrar
after remand of the proceedings by the High Court pursuant to its decision
E in Writ Petition No. 856 of 1982.

It is in the background of the aforesaid statutory schemes to which our
attention was invited by learned counsel for both sides that we now proceed
to deal with the moot question posed for our consideration.

F A mere look at Section 3(25) shows that the definition of a 'member'
which applied in the relevant time and which is in the same form on the statute
book till date clearly indicates that a person can be a member of a union if
he satisfies the following two requirements : (i) that he is an ordinary memb~
of a union and (ii) he has paid the subscription of not less than 25 paise per
G calendar month. Now, the 'ordinary member of a trade union' connotes a
member employee-workman engaged in the concerned industry and who is
either than an ex-officio member of the union. Section 6 of the Trade Unions
Act, 1926 (for short 'the Act') deals with provisions to be contained in the
rules of a trade union. It is not in dispute between the parties that both the
appellant as well as respondent No. 4 are registered trade unions under that
H Act. Section 6 thereof provides that a trade union shall not be entitled to
--
MAHARASHTRAGIRNIKAMGARUNIONv. S.BHATIACHARJI[S.B.MAJMUDAR,J.) 103

registration under this Act, unless the executive thereof is constituted in A
accordance with the provisions of this Act and the rules thereof provide for
. the following amongst other matters, namely-
''xxx xxx xxx
(e) the admission of ordinary members who shall be persons actually
engaged or employed in an industry with which the Trade Union is B
connected, and also the admission of the number of honorary or
temporar; members as [office bearers] required under Section 22 to
form the executive of the Trade Union;
"xxx xxx xxx"

-- Thus, an ordinary member of a trade union would be an employee in that
industry with which the trade union is concerned and would not include
c
honorary or temporary members, like office bearers. It is not in dispute that
the membership of respondent no. 4 union consisted of ordinary members
meaning thereby, the workmen actually engaged in textile industry in the city
of Bombay during the relevant months in question. However, the further D
requirement of Section 3 sub-section 25 is that in order that such an ordinary
member can be treated to be a member of the union it has to be shown that
he has paid the subscription of not less than 25 paise per calendar month.
Now it becomes at once clear that a small amount of minimum 25 paise is
required to be shown to have been paid by such an ordinary member for the E
given calendar month. As the question arises whether a particular member
had paid subscription for the relevant three months i.e. December, 1981,
January, 1982 and February, 1982, it may be found that he might have paid
up the subscription for each of these months simultaneously say, in March
or April, 1982. Still he could be said to have paid the requisite subscription
per each of these calendar months. It is not as if the subscription must be F
shown to have been paid by such ordinary member on or before the end of
the concerned calendar month. The legislature had advisedly used the
terminology "h(ls paid a subscription of not less than 25 paise per calendar
month". It has obviously not used the phraseology "has paid a subscription
.->
of not less than 25 paise before the end of a calendar month". The phrase G
"has paid" is very significant Payment of subscription of such a meagre
amount of 25 paise per calendar month at any point of time for any of the
past calendar months would entitle such member to continue on the roll of
membership of a union. If he pays at a time say Rs. 1.00 covering the

l
(
subscription for each of the calendar months i.e. December, 1981, January,
1982, February, 1982 and March, 1982 in March, 1982 itself, he can legitimately H

\"
_,;_ -

'
'
104 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A say that he has paid subscription of not less than 25 paise per each of the
aforesaid three calendar months. It is not the requirement of the main part
of Section 3(25) that such subscription should have been paid on or before
the expiry of the concerned calender month. Once we tum to the explanation
of the aforesaid section, a different legislative intention becomes at once clear.
B While considering the question of arrears of subscription per calendar month
the requirement of the provision is entirely different. A member would be
treated to be in arrears for that calendar month ifhe has actually not paid such
subscription by the end of the concerned calendar month for which it was
due. That explanation naturally is a reference to the proviso which precedes
it and qualifies the term "arrears of subscription" but it doe!\ not travel
C backward any further so as to qualify entirely a different phraseology found
in the main part of Section 3(25) of the BIR Act about the payment of
subscription of not less than 25 paise per calendar month. It must, therefore,
be held that if on facts it .is found that subscription for the relevant three
calendar months has already been paid up by the concerned member even in
lumpsum at a later point of time after the expiry of the calendar month
D concerned such payment in lumpsum may ensure for his continuance as a
member if he so behaved and paid up subscription of not less than 25 paise
per calendar month concerned. However, if the section would have stood
without the proviso, the apprehension voiced by learned counsel for the
appellant would have assumed greater efficacy, He was right when he
E contended that it may happen that a member may be in arrears for a number
of months but once the trade union whose registration is sought to be
cancelled gets a hint that an application for cancellation of its registration is
in the offing under Section l 5(b)(ii) of the Act then lumpsum payments of
subscription in arrears by requisite number of members may get arranged at
a time so as to frustrate the application under Section 15. This anxiety and
F apprehension on the part of learned counsel for the appellant are tried to be
met by the legislature itself and, therefore, it enacted a safety valve and a road
block against such activities on the part of the union whose registration was
sought to be got cancelled on relevant date by enacting the proviso with the
explanation of Section 3(25) of the BIR Act to the consideration of which,
G therefore, we now have to tum.
On a conjoint reading of the proviso to Section 3(25) and the explanation
attached thereto, it becomes at once clear that even if a person may have paid
the subscription of not less than 25 paise per calendar month for the relevant
three calendar months at a time subsequently and, therefore, may have remained
H out of the sweep of the main part of Section 3(25), his membership is liable
MAHARASHTRA GIRNIKAMGAR UNION r. S. BHATTACHARJI [S.B. MAJMUOAR, J.) l 05

to be displaced if he is hit by the proviso and the explanation. Meaning A
thereby, ifa member is shown to have paid subscription for December, 1981,
January, 1982 and February. 1982 say in March or April, 1982 and who can
legitimately contend that he had paid subscription of not less than 25 paise
per each of these calendar months, his membership for each of these calendar
months which would remain guaranteed under the first part under Section
3(25) would be deemed to be non-existent once the provisions of the proviso B
and the explanation hit such membership. The proviso requires such a
defaulting member who seeks to pay up subscription of requisite calendar
months at a time subsequently to satisfy the authorities that during the period
of six months immediately preceding the month in question which is on the
anvil of the scrutiny, he had so behaved that his subscription was not in C
arrears for a period of more than three calendar months falling within the
aforesaid six months. In other words, for deciding whether a person was an
ordinary member of respondent No 4 union in the month of December, 198 l
which is the first month on the anvil of scrutiny for the purpose of consideration
of appellant's application under Section l 5(b )(ii) of the Act, the period of six
months immediately preceding such time, namely, December, 1981, will consist D
of the block from June, 1981 to November, 1981. It has to be shown by
respondent no. 4 union that its members concerned had not been in arrears
of subscription for more than three calendar months during the period
beginning from June, 1981 and ending by November, 1981. If it is shown that
such a person had so behaved and had not attracted the adverse effect laid E
down in the proviso, then only such member will be treated to have continued
as per the main part of Section 3(25) but if it is shown that during the block
of June, 1981 to November, 1981 for a period of more than three calendar
months he was in arrears, meaning thereby, as seen from the explanation to
the proviso, the subscription of such a member for a particular calendar month
during this period was not paid up by the end of the calendar month concerned. F
Such a member would be treated to be in arrears for that calendar month and
even if he had paid such arrears by the next month· his subscription for that
calendar month would be treated to have remained in arrears. If such arrears
cover more than three calendar months then his payment of subscription for
December, 1981 will be of no avail. This safety valve has been enacted by the G
legislature, in our view, to provide for a contingency in which such chronic
defaulters in clearing the arrears of subscription may not get a locus
paenitentiae and may not also afford an equal locus paenitentiae for their
union to get subscription paid up in lumpsum subsequently for each of the
three calendar months on the anvil of scrutiny in proceedings for cancellation
of representative character of such unions. For appreciating the scope and H
106 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A ambit of the proviso read with the explanation, we may take an illustration.
Let us take the case of a member of the union who might have paid
subscription for the month of December. I 98 I say by March, I 982 in lumpsum
along with subscription of subsequent months. Then he can legitimately say
that he has paid the subscription of not less than 25 paise per calendar month
B of December, 198 I whether he paid the same before 31 December, 1981 or
subsequently would remain irrelevant. However, the proviso poses a bottle-
neck or a safety valve under which if such a member is shown not to have
behaved properly in past and if the requirements of the proviso get attracted
for him then he will be deemed not to be a member even for December, 198 I.
C Such a member who is otherwise said to have paid 25 paise for the month
of December, 1981 though belatedly, has got to be subjected to sc.rutiny about
his past behaviour and conduct regarding payment and clearance of arrears
of subscription for the relevant period of six months immediately preceding
December, 1981 i.e. from June, 1981toNovember,1981, as seen earlier. We may
take the following fact situation to ?ighlight the scope and ambit of the
D proviso and the explanation to Section 3(25) qua such a member:
SI. No. Name and year Date of payment Whether in
of the month of minimum arrears for the
subscription and calendar month ',....
the amount concerned
E
1. June, 1981 15 July, 1981 In arrears for the
paise 25 month of June' 81
as laid down by
the explanation.
F
2 July, 1981 15 July, paid Only arrears for
paise 50 to cover June will conti-
subscription for June nue. No arrears
as well as July, 1981. for July.

G ,., August, 1981 15 October, 1981 In arrears for
-'·
No payment August, 1981.

4. September, 1981 15 October, 1981 In arrears for
No payment September, 1981.
H
MAHARASHTRA GIRNI KAMGAR UNION v. S. BHATTACHARJI [S.B. MAJMUDAR, J .] 107

.. 5. October, 1981 15th october, 1981
Amount of paise
75 (for covering
the arrears of
Default in clearan-
ce of arrears for
August and
September 81
A

August, September continues.
and subscription
for October, 1981) B

6. November, 1981 15th November, No default for
1981, paise 25 paid November, 1981.

In the light of the aforesaid illustration, we have to see how the proviso read C
with the explanation to Section 3(25) can operate. It becomes at once clear
that during the relevant period of six months immediately preceding December,
1981, the concerned member has so behaved that he is in arrears for a period
of three calendar months comprised in this period, namely, June, August and
September, 1981, though in the succeeding months the subscription for June
is already paid up in July. Because of the thrust of the explanation this D
member will be deemed to be in arrears for June, August and September, 1981
as he had not paid subscription for each of these calendar months by the end
of the calendar month concerned. However, even if he is deemed to be in
arrears for these three relevant calendar months, his case would not be
covered by the sweep of the proviso which can make him a deemed non- E
member for the relevant month of December, 1981 if his subscription is found
to be in arrears for a period of more than three calendar months. 1he vexed
question is whether in the light of the aforesaid illustration such a member
can be said to be in arrears of subscription for a period of more than three
calendar months. On the interpretation which is canvassed by learned counsel
for the respondents and which was upheld by the High Court, the proviso F
will not adversely affect the membership of such a person and he would not
be deemed to be a non-member for December, 1981 for the simple reason that
he was not in arrears for a period of more than three calendar months relevant
for consideration for the application of the proviso. He was in arrears for the
calendar months June, August and September, 1981 but in order to be treated G
to be in arrears for a period of more than three calendar months it had to be
shown that he was in such arrears for a period of four calendar months or
even more as a period of "more than three calendar months" can not be
equated with the phn1seology "period of three calendar months". In this
connection, our attention was invited to the definition of the term "member"
which was operating since 1953 and which underwent a change in 1965 and H
108 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A which changed definition is applicable on the facts of the present case. The
definition of the term" member" as stood on the statute book since 1953 read
out as under:
"Member" means a person who is an ordinary member of a Union and
who has paid a subscription of not less than two annas per calendar
B month.
Provided that no person shall at any time be deemed to be a
member if his subscription is in arrears for a period of three calendar ...
months or more next preceding such time.
Explanation: The subscription for a particular calendar month shall,
c for the purpose of this clause, be deemed to be in areas if such
subscription is not paid by the end of the calendar month in respect
of which it is due".
It is this definition which underwent a change in 1965 and became the
definition in the present form. When the definition of 'member' under Section
D 3(25) as existing on the statute book in 1953 is placed in juxtaposition with
the definition as available in the present form it becomes at once clear that ...
the earlier proviso tried to treat the member to be a non-member by a deeming
provision if he was in arrears of payment of subscription for a period of even
three calendar months or more next preceding the month in question. If the
E old definition of 1953 had operated at the relevant time, a situation for which
the appellant's learned counsel is canvassing would have been available to
him as for the month of December, 1981 three calendar months next preceding
would have been September, October and November, 1981 and if it was shown
that he had not paid the subscription for each of these months by the end
of that month then as per the explanation which is pari materia with the
F present explanation he would have been treated a non-member for December,
1981 even if he had paid subscription for December, 1981. Thus, by the
deeming provision as per the proviso existing prior to 1965, the legislature
treated deemed arrears of subscription for three calendar months or even more
to be a sufficient disqualification for a person to be continued on the roll of
G membership of the union for subsequent months. However, the said proviso
has undergone a sea-change from 1965 and as per present form in which it
exists on the statute book, a person would be deemed to be a non-member
only if his subscription is in arrears for a period of more than three calendar
months within the block of six earlier calendar months. The legislature in its
wisdom removed the fetter of deemed non-membership which earlier existed
H when even three calendar months arrears of subscription were sufficient to
MAHARASHTRA GIRNI KAM GAR UNION v. S. BHATTACHARJI [S.B. MAJMUDAR, J .] 109

raise the deeming fiction of non-membership of such a person. It, therefore, A

..... cannot be said that what is deleted by the legislature from the proviso after
l 965 must by a process of interpretation be treated to have existed even after
the deletion of the term "arrears for a period of three calendar months". In
other words, after 1965 amendment in the proviso to Section 3(25), it is not
enough to raise the deeming fiction for displacing a member for the month B
of December, 1981 by only showing that he was in arrears for a period of three
calendar months preceding December, 1981 but on the contrary, the legislature
by providing a wider range for deemed non-membership during six preceding
months has thought it fit to provide in its wisdom that the deeming fiction
of non-membership would arise only when during the immediately preceding
six months' period the concerned member has so behaved as to remain in C
arrears by not paying subscription before the end of each of the calendar
months which must be more than three such months. Meaning thereby, they
may be four, may be five, may be six, as the inquiry about his past conduct
has to be spread backwards up to a maximum period of six months immediately
preceding the month in question, namely, December, 1981. It is not possible D
to agree with the contention of learned counsel for the appellant that period

- of more than three calendar months as mentioned in the proviso pursuant to
the amendment in 1965 can be said to have set in once it is found that for
each of the preceding three calendar months subscription was not paid by
the end of such month and moment three calendar months are over without
payment of the due subscription for each of these months, on the stroke of E
12 O'clock midnight of the third calendar month the period of more than three
calendar months can be said to have started. It is obvious that the concept
of arrear for a calendar month as laid down by the explanation takes in its
sweep the conduct of a member who does not pay the subscription for the
concerned calendar month by the end of that month. Meaning thereby, he has
full play and locus paenitentiae to pay up the subscription for the month F
concerned at any time from first till the last day of such calendar month. If
the contention of learned counsel for the appellant is accepted, a very curious
result would follow which is not contemplated by the Section and which
would not reflect the legislative intent underlying the enactment of the proviso
as amended in 1965. If the interpretation put forward by learned counsel for G
the appellant is accepted "then it can be said in the light of the aforesaid
illustration that during the relevant period of six months from June, 1981 to

- November, 1981 the concerned member was deemed to be in arrears for the
months of June, August and September as he had admittedly not paid
subscription by the end of each of these months. If that happens, according
to learned counsel for the appellant, moment the last calendar month for H
110 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A which he has in arrears ended, namely, September, 1981 by first of October
such member can be treated to have been in arrears for more than three
calendar months. However, as provided by the explanation, in order that such
a member can be said to be in arrears for the next calendar month i.e. the
fourth calendar month which obviously would result into his being in arrears
for more than three calendar months, on first of October how can he be said
B to be in arrears for that month i.e. the fourth calendar month when time to
pay up subscription for October is still not over and .is available to him as
per the explanation till 3 lst October of that month? The interpretation
canvassed by learned counsel for the appellant would render the phrase
"more than three calendar months" totally otiose. It is also necessary to note,
C in this connection, that legislature has clearly expressed a different legislative
intent while substituting the earlier proviso to Section 3(25) which was on the
statute book from 1953 by deleting the words 'any arrears for a period of three
. calendar months' and by substituting the words 'arrears for a period of more
than three calendar months'. It is axiomatic that 'more than three calendar
months' cannot be equated with 'three calendar months'. In this connection,
D it is also interesting to compare the phraseology employed by the legislature
in Sections 13 and 16 wherein an applicant union for getting registration as
a representative union under Section 13 or the rival union to displace such
a representative union by applying under Section 16 has to show its requisite
-
25% membership of the workmen engaged in that industry for a continuous
E period of three calendar months immediately preceding such application.
Continuous period of three calendar months would naturally start with the
first month and end with the third month. Such a phraseology is conspicuously
absent in the proviso to Section 3(25) as it stands on the statute book after
1965. The interpretation which appealed to the high Court and which, in our
view is the correct interpretation, fructifies the legislative intent underlying
F the enactment. It has to be kept in view that the membership with which we
are concerned is of persons who are mostly illiterate labour force working in
various textile mills and other industries govemed•by the BIR Act in Bombay
or at other important centres. They are largely drawn from rural areas and
come from long distances to eke out their livelihood in search of maintaining
G themselves and the members of their family. Such poor and illiterate persons
who join the unions which function for them in a representative capacity for
ventilating their grievances must be permitted to be duly represented by the
unions of their choice. The interpretation which fructifies this underlying
purpose of legislation has to be preferred. The representative union of such
employees, by the process of collective bargaining on their behalf with the·
--
H mill owners' association, can bring about appropriate settlements of industrial
MAHARASHTRAGIRNIKAMGARUNIONv. S.BHATTACHARfl[S.B.MAJMUDAR,J.J 111

disputes while dealing with better financially and socially placed unions of A
employers who naturally have larger economic resources and can get able
assistance of competent legal and financial brains. Such illiterate and
unorganised masses of workmen, therefore, can be brought on a quick footing
for the purpose of bargaining with such mightier organisation of employers
only when they continue to be represented by the representative union. Such
illiterate masses cannot be dis-membered only because they had not paid B
pittance of 25 paise per month of subscription or even more as required by
their bargaining agents/unions for ventilating their grievances in a collective
manner. The BIR Act is based on the principle of industrial democracy. Any
provision of the Act which tries to cater to the needs of these illiterate masses
of workmen has to be so interpreted as to subserve the legislative intent C
underlying the principle of industrial democracy and collective bargaining
guaranteed by the Act. Any interpretation which fructifies such benevolent
scheme and which guarantees continuance of membership of such illiterate
masses of workmen has to be preferred to the interpretation which frustrates
the scheme underlying such a benevolent enactment. The deeming fiction
contained in the proviso to Section 3(25) for dis-membering a person has, D
therefore, to be raised only on a strict construction of the proviso and not
on a liberal construction of such a disabling provision. Therefore, if two
interpretations are possible, the one that restricts the scope of the proviso
which has a disabling effect on the membership of the union has to be

- preferred to the one which extends its scope. However, we hasten to add that E
on the setting of Section 3(25) along with the proviso and the explanation
even two interpretations are not reasonably possible. In fact, on the express
language employed by the legislature in the proviso as amended in 1965 read
with the explanation, the only plausible interpretation which appealed to the
High Court is clearly discernible from the very blue print of the proviso and
the explanation to Section 3(25). F
We may, at this stage, also refer to one additional interpretation
canvassed by learned counsel for the appellant in connection with the proviso
in question. He submitted that a period of more than three calendar months
during the period of six months would mean that if a member is in arrears and G
has not paid subscription for the month by the end of June; 1981, he will be
in arrears for that month as per the explanation. Thereafter during subsequent
months i.e. July to November, 1981 if he has not paid up the subscription for
June, 1981 even though belatedly the arrears for June, 1981 will continue to
exist from July onwards. Then in July 1981 he will be treated to be in arrears
of subscription for June, 1981 for a period of more than one month because H
112 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A July is after June and if arrears for June 198 l, remain uncleared in the next
month of August, 198 l then in the beginning of August he will be treated
to be in arrears for a period of more than two calendar months, namely, June
and July, 1981 and if even by August end subscription for June is not cleared,
then on the first of September, 198 l he will be treated to be in arrears of
B subscription for June, 1981 for a period of more than three calendar months,
June, 1981, July, 1981 and August, 1981. This, according to him, is the
interpretation of the phrase "for a period of more than three calendar months".
It is difficult to countenance this interpretation. Period of more than three
calendar months would naturally call for the inquiry whether the arrears for
the concerned calendar months have got so accumulated that they represent
C a period of more than three calendar months at a given point of time, out of
the relevant period of six months. When subscription for June, 1981 was not
paid by the end of June, as per the explanation a member would be treated
t.o be in arrears for June, 1981. Even if he paid subscription of June in July,
1981 along with the subscription for July, 1981 he would still be deemed to
be in arrears for June, 1981 for the purpose of the proviso read with the
D explanation. Deemed arrears remain as such even if cleared later on. Once the
deeming provision of the explanation operates qua the arrears for June, 1981
subsequent payment in July for the month of June cannot whittle down the
deeming provision regarding arrears for June, 1981 which would attach to the
conduct of such a member moment he has not paid up the subscription by
E the end of June. That will be the arrear for June, 1981. All such deemed arrears
can be added up further, for the respective succeeding calendar months if he
had not paid up subscription by the end of these succeeding calendar months.
When such a conduct continues for respective calendar months of August
and September, 1981, as per the explanation he will be said to be in arrears
for a period of three calendar months but the proviso in the present form
F requires not only arrears for the period of three calendar months but for a
period of more than three calendar months. Thus for the fourth calendar
month during the relevant period he must be shown to have not paid the
subscription for the fourth calendar month before the end of that calendar
month. If that happens then only he can be said to be hit by the proviso being
G in arrears for a period of more than three calendar months. If the interpretation
sought to be canvassed by learned counsel for the appellant is accepted then
on account of arrears for only one month, namely, June, 1981 he will be liable
to be dis-membered even though subsequenly for all the remaining five
months from July, 1981 to November, 1981 he promptly pays subscription
before the end of each of these succeeding five months. That would result
H in almost re-drafting the proviso which would then mean "if he is in arrears
MAHARASHTRAGIRNIKAMGARUNJON 1•. S.BHATTACHARJI [S.B.MAJMUDAR,J.] 113

for any of the calendar months during the period of six months immediately A
preceding such time" and such arrears have continued for at least three
calendar months at a time. Such is not the legislative scheme. In fact such
a drastic scheme did not exist even under the earlier proviso as existing on
the statute book from 1953. It also required arrears for at least three calendar
months but never required arrears for only one calendar month subsisting for B
three calendar months. The emphasis tried to put by learned counsel for the
appellant on the words "period of more than three calendar months" does not
advance his case further for the simple reason that the phrase 'period of more
than three calendar months' deals with the time span during the relevant
period of six calendar months preceding the month in question within which
the conduct of the member concerned has to be scrutinised. That would not C
require a continuous period of more than three calendar months as suggested
-,
by learned counsel for the appellant. Period of more than three calendar
months encompasses two termini one the beginning of that period and other
the end of that period. During this time span the conduct of the concerned
member has to be scrutinised. 1t may be spread over more than three calendar
months during the block of six months prior to December, 1981. Learned D
counsel for the appellant then submitted that if this is the legislative intent

-- then it was easy to enact a new proviso to the following effect. "If his
subscription is in arrears for a period of four calendar months". It is easy to
visualise that the intention of the legislature could have been fructified if such
a provision was made. But the same intention can equally get fructified by E
enacting the words "for a period of more than three calendar months". It is
also to be kept in view that the legislature was dealing with a period of six
months immediately preceding the relevant month which is on the anvil of
scrutiny.in the proceeding under Section 15 of the BIR Act. During this period
of six months if a member is in arrears for a period of more than three calendar
months he can be in arrears for four or five or for even six calendar months. F
In order to cover all these contingencies the legislature in its wisdom has
used the terminology "in arrears for a period of more than three calendar
months" instead of the phraseology "for a period of four calendar months".
Whatever that may be, the fact remains that on the express language of the

-· proviso as read with the explanation it has to be held that before a member G
can be treated to be a deemed non-member for December, 1981 it has to be
shown that during the six months preceding December, 1981 i.e. from June,
1981 till the end of November, 1981 he was at any time in arrears of subscription
for more than three calendar months, meaning thereby for four calendar
months or even more. But if it is shown that he was in deemed arrears as
provided by the explanation of the proviso for only three calendar months or H
114 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A less and not for a longer period than three calendar months, then he cannot
be deemed to be a non-member for December, 1981. It has also to be visualised
that there is a clear finding of fact reached by the appellate court, namely, the \,

Industrial Court and as confirmed by the learned single Judge and by the
Division Bench of the High Court that 61,509 members of respondent no. 4
union who had not paid subscription for December, 1981 by the end of that
B month were not in arrears for even three calendar months leaving apart arrears
for more than three calendar months, during the period June, 1981 to November,
198 l. These 61,509 workmen members could not, therefore, be treated to be
non-members ofrespondent no. 4 union only because in the month of December
itself they had not paid up subscription by the end of December, 1981. On
C a conjoint reading of the main provisions of Section 3(25) and the proviso and
the explanation thereof, the High Court was justified in confining the view of
the appellate Court that these 61,509 workmen had to be added back to the
figure of 49,670 workmen who were members of respondent no. 4 union in
December, 198 r and who had paid up the subscription in time. Once this
D figure is added, total membership figure obviously goes beyC!nd the requisite
25% minimum membership for December, 1981 as it will be far beyond 56,250
which was the requisite membership of minimum 25% work force in cotton
textile industry in Bombay for December, 1981. Once the interpretation put
...
forward by the High Court and which is ·upheld by us in the present
Judgment gets attracted, on the aforesaid finding of fact there is no escape
E from the conclusion that a part from the scrutiny regarding remaining months
at least for the first month of December, 1981 membership of respondent no.
4 union had exceeded 25% of the work force in the cotton textile industry in
the city of Bombay. It becomes, therefore, obvious Jhat application of the
appellant for cancellation of registration of respondent no. 4 union under
Section 15 of the BIR Act would fail as the requirements of the said provision
F to the effect that for each of the three relevant months preceding March, 1982,
namely, December, 1981, January, 1982, February, 1982 and also for June, 1982,
respondent no. 4's membership must be said to have fallen below 25%, would
not remain established. Even if for one month of December, 1981, the
membership is above the requisite 25%, the application has to fail as fairly
G conceded by learned counsel for the appellant.
The contention of learned counsel for the appellant in the written
propositions that if subscription re~ains in arrears for three calendar months
it necessarily means that subscription is in arrears for a period of more than
three calendar m'onths as a length of time measured in terms of calendar
H months once three calendar months are over cannot be countenanced for the
MAHARASHTRA GIRNIKAMGAR UNION v. S. BHAITACHARJI (S.B.MAJMUDAR, J.] 115
simple reason that what the legislature intends by employing express A

- tenninology in the proviso to Section 3(25) is to the effect that at a given
point of time within the block period of six months preceding the month in
question, the subscription of the concerned member should be in arrears not
for three calendar months but for a longer period which necessarily would
require subscription to be in arrears for the additional calendar month apart B
from the earlier three calendar months during which subscription has not been
paid as required by the explanation. The submission that the moment it is
found that subscription is in arrears in respect of three calendar months it
means that subscription is in arrears for a period of more than three calendar
months is self-contradictory. Subscription if in areas in respect of only three
calendar months can by no stretch of imagination be considered as subscription C
being in arrears in respect of more than three calendar months. The phrase
''period of more than three calendar months" necessarily takes in its fold the
conduct of the defaulting member with reference to not only three calendar
months but more than three calendar moths meaning at least four if not more
than four calendar months within the block period of six calendar months
immediately preceding the month in question, as seen earlier. D
In the result, the appeal fails and is dismissed. In the facts and
circumstances of the case, there will be no order as to costs.

v.s.s. Appeal dismissed.