Karnataka High Court
B.P.L. Group Of Companies Karmikara ... vs The Commissioner Of Labour, Government ... on 24 March, 1999
Equivalent citations: 2001(2)KARLJ329, (2000)ILLJ71KANT
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
JUDGMENT
1. The petitioner is a trade union registered under the Trade Unions Act, 1926 (hereinafter referred to as 'the Act'). It has filed this writ petition being aggrieved by the impugned show-cause notice at Annexure-G bearing No. ALC-II/TUA/CR-3/98-99, dated November 25, 1998 issued to it by the 2nd respondent-Deputy Registrar of Trade Unions, Bangalore Division-II, who is also the Assistant Labour Commissioner, calling upon the petitioner-union to show cause as to why the certificate of registration of the union should not be withdrawn.
2. The facts leading to the issuance of the impugned show-cause notice are briefly stated as under-
The petitioner-union has submitted an application as per Annexure-A series before the 2nd respondent to register it as a trade union under the Act along with its constitution/bye-laws. After verifying and being satisfied with the same, the 2nd respondent has registered the petitioner-union on June 10, 1998 and issued the Certificate of Registration as per Annexure-B. According to the petitioner, its members are employees working in the 3rd respondent-BPL Group of Companies situated in various parts of Bangalore and its outskirts and nearly 10,000 employees are working in 15 to 16 units. After registration, the petitioner-union placed Charter of Demands with the management of 3rd respondent as per Annexure-C dated July 31, 1998. It is alleged that immediately after learning about the registration of the petitioner-union, the management started harassing the workers, details of harassment are not necessary for the purpose of deciding this matter. When the things stood thus, it is further alleged that the first respondent-Commissioner of Labour in Karnataka has started raising unnecessary and frivolous objections with regard to the registration to petitioner-union and addressed individual letters to the management and the petitioner-union. One of such letters was addressed to the President, CITU, as per Annexure-D, dated November 25, 1998. In the first paragraph of the said letter it is stated as under:--
"Recent verification of the union registrations reveals that the registration is ab initio void as the appropriate authority in respect of the registration of the union on all India basis is the Central Government. Hence, separate action is being initiated in the matter".
Copies of the same have been sent to the Chief Executive Officer of the Company, the President, CITU and the petitioner-union. The petitioner-union submitted a letter as per Annexure-E, dated November 28, 1998 traversing various facts and the stand taken is that the registration of petitioner is in accordance with the provisions of the Act. The petitioner-union also wrote letters as per Annexures-H, J and K to respondents 1 and 2 stating that they have registered many unions whose functions are in more than one State and their membership is extended throughout India. The petitioner-union also asked to furnish the unions registered in their offices.
3. Initially the Regional Labour Commissioner (Central) and the Union of India were arrayed as respondents 3 and 4. Subsequently, they have been deleted pursuant to the order dated February 9, 1999 in the light of the memo filed in that regard.
4. Respondents 1 and 2 represented by the Additional Government Advocate have filed statement of objections along with two documents. Mr. K. Kasturi, learned Counsel for the 3rd respondent-company filed counter denying the allegations made by the petitioner against the company with regard to the allegations of mala fides, harassment and unfair labour practices and that it had prevailed upon respondents 1 and 2 to issue the letter at Annexure-D and the impugned show-cause notice at Annexure-G. Heard the learned Counsel for the parties.
5. In the statement of objections filed on behalf of the respondents there is no reference to the Notification issued by the President of India under Article 258 of the Constitution entrusting the functions of the Central Government under the Indian Trade Unions Act, 1926 to the States with the exception mentioned therein and the subsequent notifications issued by the erstwhile Government of Mysore as the Commissioner of Labour in Mysore as the Registrar of Trade Unions for the State. However, except the notification issued under Article 258 of the Constitution of India, copies of those notifications have been produced by the learned Additional Government Advocate Mr. Mehaboob Ali Khan.
6. In the background of these facts and circumstances, the rival contentions urged by the respective parties have to be judged and the legality, validity and correctness of the impugned show-cause notice issued by the 2nd respondent will have to be tested.
7. The entire controversy arose in view of the fact that in the constitution of petitioner-union, under Item 3 relating to Aims and Objects of the petitioner-union in clause (a) it is mentioned as under.-
"(a) To organise and unite the employees working in BPL Limited and its associated/sister concerns all over India".
Since the aims and objects of petitioner-union is not confined only to the State of Karnataka but all over India, the Commissioner of Labour under Annexure-D, dated November 25, 1998 has raised the objection, which is extracted earlier, to the effect that the appropriate authority for registration of the union on all India basis is the Central Government. In the impugned show-cause notice at Annexure-G it is stated as under.-
"The ground of such proposed withdrawal is that the certificate of registration has been obtained by mistake, as the objects of the trade union are not confined to one State. .... thereby the appro-
priate Government for registration of such trade union is the Central Government".
8. In order to appreciate the reason assigned for the proposed withdrawing of the registration certificate of the petitioner-union, it is necessary to look into the relevant provisions of the Act in this regard. Section 5(1) of the Act prescribes that every application for registration of a trade union shall be made to the Registrar. Sub-section (1) of Section 3 of the Act stipulates that the appropriate Government shall appoint a person to be the Registrar of Trade Unions for each State. Section 2(f) of the Act defines "Registrar" to mean.-
(i) a Registrar of Trade Unions appointed by the appropriate Government under Section 3 and includes any Additional or Deputy Registrar of Trade Unions;
The term "Appropriate Government" is defined under Section 2 of the Act to mean.-
"In relation to trade unions whose objects are not confined to one State, the Central Government and in relation to other trade unions, the State Government and....".
From the italicised portion of the above, it is clear that in respect of trade unions whose objects are not confined to one State the appropriate Government is the Central Government. In the light of these provisions, it has to be tested as to whether the impugned show-cause notice is legal and valid.
9. In clause (a) of Item 3 of the constitution of petitioner-union, the aims and objects are not confined to one State but it is in respect of BPL Limited and its associated concerns all over India. That being the position, the "appropriate Government" for the purpose of appointment of Registrar of Trade Unions in respect of petitioner-union is the Central Government. In the instance case, the 2nd respondent-Deputy Registrar of Trade Unions, who is the Assistant Labour Commissioner, Bangalore, and who is appointed by the State Government, has registered the petitioner-union and the same is proposed to be withdrawn as the said registration is void since the registration was not made by the Registrar of Trade Unions appointed by the Central Government and the certificate has been obtained by mistake.
10. Now, let me examine as to whether the registration of petitioner's union made by the 2nd respondent is legal and valid and whether the 2nd respondent had the jurisdiction to register the petitioner-union and the proposed withdrawal of the registration certificate is justified.
11. In the case of Jagadish Bharti v Union of India, the Allahabad High Court has observed in paragraph 2 of the judgment as follows.-
"By Notification dated January 16, 1941 (Published in the Gazette of India dated January 18, 1941, Part I, page 108, Second Volume) the Central Government made the following orders.-
'No. L-3006--In exercise of the powers conferred by sub-section (1) of Section 124 of the Government of India Act, 1935, the Governor General in Council is pleased with effect from April 1, 1941, to entrust to the Government of each Province, with its consent, the functions of the Central Government under the Indian Trade Unions Act, 1926 (XVI of 1926) in relation to trade unions whose objects are not confined to, and whose head office is situated in that province'.
'Thereafter, by a Notification No. L-3006(1) and (2), dated July 4, 1941, the Central Government cancelled the Central Trade Unions Regulations, 1938 with effect from March 31, 1941. The post of the Registrar of Central Trade Unions was also abolished. Thereafter, the State Government of Uttar Pradesh, by a Notification No. 1894(L)(4)/XVIII-42/38, dated July 13, 1944 directed that "in exercise of the powers conferred by Section 29 of the Indian Trade Unions Act, 1926 (16 of 1926), the Governor is pleased to order that the regulations published under Government Notification No. 1659/18-681, dated September 15, 1927 shall apply also to trade unions whose head offices are situated within the United Provinces but whose objects are not confined to the United Provinces'.
After the coming into force of the Constitution of India, the Central Government, on February 26, 1952, by a Notification passed the following order.-
'In exercise of the powers conferred by clause (1) of Article 258 of the Constitution, and in supersession of the Notification of the Government of India in the later Department of Labour No. L-3006, dated January 16, 1941, the President hereby entrusts with effect from March 1, 1952 to the Government of each Part A State except the Government of Orissa and the Government of each Part B State, except the Government of Jammu and Kashmir with their consent, the functions of the Central Government under the Indian Trade Unions Act, 1926 (16 of 1926), in relation to trade unions whose objects are not confined to and whose head office is situated in that State".
It is thus clear that the President has entrusted the functions of the Central Government under the Act to the States in relation to the trade unions whose objects are not confined to and whose office is situated in the concerned State, Mr. Anantharam, learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Samsher Singh v State of Punjab and Another . In that case the Supreme Court considered the law laid down in the case of Jayantilal Amratlal Shodhan v F.N. Rana, and in paragraph 43 it is held as under.-
"43. The ratio in Jayantilal Amratlal Shodhan's case, supra, is confined to the powers of the President which can be conferred on States under Article 258. The effect of Article 258 is to make a blanket provision enabling the President to exercise the power which the Legislature could exercise by legislation, to entrust functions to the officers to be specified in that behalf by the President and subject to the conditions prescribed thereby. The result of the notification by the President under Article 258 is that wherever the expression "appropriate Government" occurs in the Act in relation to provisions for acquisition of land for the purpose of the union the words "appropriate Government or the Commissioner of the Division having territorial jurisdiction over the area is which the land is situated" were deemed to be substituted".
The law laid down in the above case squarely applies to the instant case. In the light of the ratio laid down as above, for the expression "appropriate Government" it has to be read that Karnataka Government or the Registrar, Additional Registrar or Deputy Registrar of Trade Unions of the Division having territorial jurisdiction over the area in which the petitioner-union is registered.
12. Even otherwise also, pursuant to conferment of the powers on the States, the Government of erstwhile Mysore, in exercise of the powers conferred under sub-section (1) of Section 3 of the Act, by Notification bearing No. S.O. 2270, dated March 3, 1965 appointed the Commissioner of Labour in Mysore, Bangalore as the Registrar of Trade Unions for the State of Mysore. That was in supersession of two notifications issued earlier. In turn, the Registrar of Trade Unions on whom the Central Government functions under the Act were entrusted under the Act, has been authorised by Notification No. ITU-MIS-CH-171-1358/64-65, dated May 11, 1965 certain officers working under him to discharge the functions under Section 3 of the Act. The Assistant Labour Commissioner, Bangalore Division, who is the 2nd respondent herein, is one of the officers entrusted with the functions of the Registrar under the Act. This fact is not disputed by any of the parties. Therefore, it has to be held that the exercise of power by the 2nd respondent and the registration of petitioner-union under the Act is legal, valid and was in accordance with the provisions of the Act and the notifications referred to above as the 2nd respondent has exercised the powers of the Central Government under the Act.
13. In the light of what has been observed above, it has to be held that the ground stated in the impugned show-cause notice that the certificate of registration had been obtained by mistake, is untenable. Such being the position, the proposal of respondents 1 and 2 to withdraw the registration certificate of the petitioner-union on the said ground is devoid of merit and they cannot withdraw the registration certificate on that ground. It also cannot be said that the registration of petitioner-union is ab initio void as stated by the first respondent in Annexure-D. On the other hand, it is held that the registration of petitioner-union by the 2nd respondent under the provisions of the Act is perfectly right and no fault can be found in that.
14. Under Section 10 of the Act, a certificate of registration of a trade union can be withdrawn or cancelled (a) on the application of the trade union, or (b) if the certificate has been obtained by fraud Or mistake or if the trade union has ceased to exist or has wilfully contravened any provisions of the Act etc. In the instant case, none of the grounds enumerated in Section 10 of the Act is available to respondents 1 and 2 either to withdraw or cancel the certificate of registration. Therefore, the impugned action contemplated under Annexure-G to withdraw the registration certificate of the petitioner-union is wholly unwarranted.
15. At this juncture, it has to be examined as to whether respondents 1 and 2 have exercised their power in accordance with the provisions of the Act, the Notifications referred to above and within the parameters of their functions. In this context, Section 6 of the Act stipulates that a trade union shall not be entitled for registration under the Act unless the requirement contained therein are fulfilled. In case the information furnished is incomplete or insufficient, Section 7 empowers the Registrar to call for further information. Section 8 of the Act prescribes that the union shall be registered only on the Registrar being satisfied with all the formalities and requirements. In the instant case the 2nd respondent has registered the petitioner-union after being satisfied with all the formalities and requirements. Once the registration is done after satisfying so, the certificate of registration can be withdrawn only in the circumstances and on any of the grounds mentioned in Section 10 of the Act. Already it has been observed that none of the grounds attract the withdrawal of the registration certificate of the petitioner-union. In such a situation, the exercise of power by the respondents 1 and 2 for withdrawing the certificate should be tested either with the touchstone of proper exercise of power or mala fide exercise of power.
16. According to respondents 1 and 2, the registration of the petitioner-union was ab initio void and the registration certificate had been obtained by mistake. The reason assigned is that the appropriate Government was the Central Government since the objects of petitioner-union was on all India basis and not confined to one State. While the reason assigned by them is correct as per the provisions of the Act referred to earlier during the course of this order, what pains this Court is that respondents 1 and 2 were not at all aware of their powers conferred on them under the various notifications issued pursuant to the entrustment of functions of the Central Government under the Act on the States in exercise of the power under Article 258(1) of the Constitution of India. Respondents 1 and 2 being the Class I Officers of the State, were totally unaware of the Notification issued by the President of India under Article 258 of the Constitution and the subsequent notifications issued thereon appointing Deputy Registrars. Without knowing that respondents 1 and 2 have been entrusted with the functions of the Central Government under the Act under the notification referred to above, the first respondent has created problems unnecessarily to the petitioner-
union by issuing Annexure-D, as a result of which the 2nd respondent has issued the impugned show-cause notice at Annexure-G to show cause as to why the registration certificate should not be withdrawn. Virtually, respondents 1 and 2 are ignorant of the powers vested with them to discharge the functions of the Central Government under the Act. The ignorance on their part has driven the petitioner-union to this Court through this writ petition. Without ascertaining the correct position, respondents 1 and 2 have acted mechanically and the allegations made in paragraph 7 of the writ petition that the first respondent has started harassing the petitioner-union raising unnecessary and frivolous objections about the registration of petitioner-union have to be accepted as correct. Respondents 1 and 2 being statutory authorities are expected and bound to be aware of their powers not only conferred under the Act, but by virtue of various Notifications issued under the provisions of the Act. Ignorance of their powers lead to several problems, like the one in the present case. As a result of which, the harmonious relationship between the managements and the employees will be strained which in turn affects the development and growth of industries in the country. This shows the way in which the Labour Department is functioning. Respondents 1 and 2, who are the Commissioner of Labour in Karnataka and Assistant Labour Commissioner, being Registrar and Deputy Registrar of Trade Unions respectively as per the notification, are ignorant of the existence of notification empowering them to discharge the functions of the Central Government under the Act. On account of that ignorance the impugned show-cause notice and the letter at Annexure-D have been issued by them. The officers heading the Labour Department are not aware of their functions and the notifications issued in that regard. This is the sorry state of affairs in the office of the Registrar and Deputy Registrar of Trade Unions so far as this case is concerned.
17. One of the contentions raised by the respondents 1 and 2 is with regard to the maintainability of the writ petition. It has been contended that since the show-cause notice is challenged in this writ petition, the petition is not maintainable. This contention is wholly untenable. The impugned show-cause notice has been issued on the premises that the registration of petitioner-union was ab initio void. That has been negatived and on the other hand it is held that the issuance of show-cause notice is ab initio void. The show-cause notice has been issued wrongly by the 2nd respondent without knowing the powers vested with him. In this regard, the reliance placed by Mr. Anantharam, learned Counsel for the petitioner, on the decision in the case of Whirlpool Corporation v Registrar of Trade Marks, Mumbai and Others, is applicable to the facts of this case. In that decision it has been held in paragraph 20 as under.-
"20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continues to hold the field with the result that law as to the jurisdic-
tion of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies is not affected, specially in case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation".
In view of the law laid down as above, the writ petition is maintainable and the contention raised on behalf of the respondents in this regard is rejected.
18. One of the allegations made by the petitioner in paragraph 7 of the writ petition relates to mala fides on the part of the first respondent-Commissioner of Labour in Karnataka. It is stated that the first respondent started harassing the petitioner-union by raising unnecessary and frivolous objections about the registration of the petitioner-union. This allegation has to be tested with reference to the facts and circumstances of the case and manner in which the first respondent has acted in the matter. It is pertinent to observe that the first respondent addressed letter as per Annexure-D on November 25, 1998 to the Chief Executive Officer of 3rd respondent-BPL, the President, CITU and Mr. Srinivas of petitioner-union fixing a conciliation meeting with the management and the union. In that letter he has raised objection that the registration of the petitioner-union is ab initio void. It is already observed that the said conclusion of the first respondent itself is ab initio void and the registration of petitioner-union by the 2nd respondent was legal, valid and in accordance with the provisions of the Act. Be that as it may, the fact remains the first respondent has evinced so much interest in favour of the management and against the petitioner-union. This is clear from the contents of the letter itself. In the last but one paragraph the first respondent bas given an advice to the petitioner-union in the following terms.-
"The Chief Executive Officers, and the union leaders or their authorised nominees with the required mandate should attend the said meeting with an open mind seeking to understand each other".
This is a one-sided call given by the first respondent to the petitioner-union. This shows that he was not impartial. He has acted without knowing the powers conferred under the Act by virtue of the notification issued from 1952 onwards entrusting the functions of Central Government. He being the head of the Labour Department should not have acted in such an ignorant manner to bring hurdles in the functioning of petitioner-union.
19. It is to be noted that the first respondent has addressed the letter as per Annexure-D on November 25, 1998. It is astonishing to observe that the impugned show-cause notice at Annexure-G was also issued by the 2nd respondent on the same day. From this it is clear that the 2nd respondent has not acted independently by applying his mind but he being the subordinate to first respondent, has acted as per the directions of the first respondent. Since conciliation meeting had been fixed on November 27, 1998 before the 2nd respondent by the first respondent under Annexure-D, nothing prevented the 2nd respondent to wait for two more days to await the decision of the conciliation meeting. Even before resumption of conciliation meeting the impugned show-cause notice had been issued proposing to withdraw the registration certificate of the petitioner-union. One can easily understand that this has been done to see that the petitioner-union should bow to the management. All these factors will prove beyond doubt the connivance of respondents 1 and 2 with the 3rd respondent. Otherwise, the Commissioner of Labour would not have exhibited ignorance of the notification issued by the President of India under Article 258 of the Constitution of India and those of his predecessors consequent upon the entrustment of Central Government functions under the Act by the President of India on the States. It is not stated either in the statement of objections or in the affidavits filed on behalf of respondents 1 and 2 the circumstances under which the impugned show-cause notice had been issued. In the circumstances, it has to be held that the issuance of the impugned show-cause notice at Annexure-G by the 2nd respondent was on the basis of Annexure-D of the first respondent is bad in law. In the light of what has been observed above, the allegations of mala fides made by the petitioner will have to be accepted.
20. For the reasons stated above, petitioner succeeds and the impugned show-cause notice is liable to be quashed.
21. Accordingly, the writ petition is allowed and the impugned showcause notice at Annexure-G issued by the 2nd respondent is quashed holding that the registration of petitioner-union by the 2nd respondent is legal, valid and is in accordance with the provisions of the Act and the entrustment of powers and functions under the notifications referred to above.