Gujarat High Court
Videocon Industries Ltd vs Deputy Registrar on 4 July, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/LPA/1821/2017 ORDER DATED: 04/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1821 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 9130 of 2015
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VIDEOCON INDUSTRIES LTD
Versus
DEPUTY REGISTRAR, & 2 other(s)
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Appearance:
MR DG SHUKLA(1998) for the Appellant(s) No. 1
MS. DHARITRI PANCHOLI, LD. ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
SERVED BY RPAD (N) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/07/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The appellant herein is the Company-original petitioner in the Special Civil Application No.9130 of 2015. The respondent Nos.1 to 3 are the original respondent Nos.1 to 3. The appellant seeks to challenge the order dated 21.04.2015 passed by the learned Industrial Court, Vadodara in Appeal (T.U.) No.2 of 2014) as also the judgment and order of this Court dated 28.02.2017, where the learned Single Judge has dismissed the petition.
2. It is the case of the appellant that it is having its Divisional Unit at village Chavaj known as Videocon Narmada Glass Division. There are about 800 employees Page 1 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 including the managers, officers, supervisory and administrative staff working with the said Division. 345 workmen were covered under the definition of 'Workman' under Section 2(s) of the Industrial Disputes Act, 1947. For the past several years, Gujarat Kamdar Samaj, a registered Trade Union is espousing the cause of the workmen working with the said division of the petitioner.
3. According to the appellant, on 18.09.2013, Chavaj Employees Union (respondent No.1) has been formed by seven persons and the main object as per the object clause of the said union is to organize the workmen of Videocon Narmada Glass Division of petitioner company and to have negotiation with the company along with the other objects. The registration of its union under the Trade Unions Act, 1926 in the prescribed Form-A was sought, for which, an application had been made on 18.09.2013. According to the Union, there were 75 workmen of the said Division of the petitioner-Company as its member. It is the say of the petitioner that the respondent-Union, by submitting incorrect name of the Division of the company as well as by falsely stating the number of workmen, tendered an application for obtaining the Registration Certificate.
4. On 17.09.2013, one Mr. Zeenabhai Togabhai Bharwad also gave an application along with the affidavit for registration of the Trade Union stating that the office bearers, as mentioned in the said affidavit, were not Page 2 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 involved in any criminal offence. Certificate to that effect alleged to have been issued by the Authorized Officer of the 'A' & 'C' Division Police Station, Bharuch City also had been submitted along with the said application. The certificates from 'C' Division Police Station are, in fact, not issued by the Authorized Officer of the police station and false affidavit has been submitted stating on oath wrongly that they are not involved in any criminal offence.
5. On 14.10.2013, the respondent-authority informed the President & General Secretary of the respondent- Union that the respondent Union is not having required number of members as per the amendment in the Act on 09.09.2001 as well as another Union is already in existence. The application dated 19.09.2013 was not granted and direction was issued to contact the petitioner- Union or to take the help of the respondent authority.
6. Aggrieved, the respondent-Union, on 30.11.2013, by its communication dated 14.10.2013, preferred appeal before the Industrial Court, Vadodara being Appeal (T.U.) No.1 of 2013 and challenged the action of the respondent authority, rejecting the application for registration of the Trade Union as well as praying for issuance of necessary directions to the respondent authority to issue the registration certificate to the respondent-Union.
7. On 18.09.2014, the respondent authority submitted the Vakalatnama of the Government Pleader, however, Page 3 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 despite several opportunities being given, the respondent authority had not submitted its written statement. No arguments were even made, and the Industrial Court passed an order quashing and setting aside the order dated 14.10.2013 passed by the respondent-authority and directed the authority to issue the Registration Certificate after taking into consideration the documents of the respondent-Union and on hearing them and if all the conditions for registration are complied with.
8. The respondent-authority did not contest the said appeal proceedings by filing its written statement and did not submit necessary facts about the membership of the respondent-Union before the Industrial Court. Pursuant to the order passed by the Industrial Court, the respondent had issued a letter dated 18.11.2014 to the Company about the employment strength of the company, and the petitioner-company vide its letter dated 27.11.2014, informed the respondent-authority that the verification has not been done of the 79 workmen alleged to have been the members of the respondent-Union. The random verification of only 26 workmen was done where no proper verification was made by the respondent authority. It is averred that the respondent-authority, without proper verification and without due compliance with the provisions of the Act, granted Registration Certificate of the Union on 01.12.2014.
9. Aggrieved, the appellant-Company preferred appeal Page 4 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 before the Industrial Court, Vadodara being Appeal (T.U.) No.02 of 2014, challenging the registration certificate urging that the registration certificate issued in favour of the respondent-Union be cancelled. The grievance of the appellant-Company was also that many of the office bearers were involved in criminal cases and the proper verification had not been done about the membership. It also submitted its list of documents on 15.12.2014 along with the copy of the letter. The respondent-authority had submitted its written statement on 02.02.2015 urging that the appeal of the Company be dismissed with cost along with other submissions. The appellant-Company submitted its another list on 07.03.2015 and 10.03.2015 along with the News Items published in various newspapers as well as the affidavits of some of the persons who had alleged of the forcible signatures and the threats given to them for becoming the member of the respondent-Union urging that their signatures be treated as cancelled.
10. On 21.04.2015, the Industrial Court at Ahmedabad, after hearing the learned advocates, rejected the appeal preferred by the Company without any reason. This had aggrieved the Company, which preferred the Special Civil Application No.9130 of 2015 on 08.05.2015. The grievance on the part of the appellant is that on 28.02.2017, the learned Single Judge has dismissed the said petition. This, according to the appellant, is by committing a gross error of not appreciating the submission that the Page 5 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 respondent-authority had neither submitted its written statement nor their advocates had remained present during the proceedings. It is also the grievance of the appellant that the respondent-authority, being a government department, should act as per the statutory provision and must not favour the respondent-Union. The action of the respondent-authority was to properly verify the membership strength of the Union in the presence of the Court Commissioner and, hence, the judgment and order passed, being improper and perverse, requires to be quashed.
11. It has also taken a serious exception to the court's findings that the Company does not have any locus standi nor authority under the Act to file the appeal on the ground that the respondent-union which is less than 10% employees of the Company as its members would continue to function, has been disregarded by the learned Single Judge. The Court also was not right when it said that for cancellation of certificate of registration of the Trade Union none except the aggrieved union would have a locus standi. Therefore has prayed thus;
"(A) Your Lordship may be pleased to allow the Letters Patent Appeal and quash and set aside the impugned judgment and order passed by the learned Single Judge on 28.02.2017 in Special Civil Application No.9130 of 2015 and be further pleased to quash and set aside the order dated 21.04.2015 passed by the learned Industrial Court, Vadodara in Appeal (T.U.) No.2 of 2014.Page 6 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022
C/LPA/1821/2017 ORDER DATED: 04/07/2022 (B) Any other and further reliefs which this Hon'ble Court may deem fit and proper may be granted."
12. On issuance of notice, the other side has appeared and the Court has heard the learned advocate Mr. D.G. Shukla for the appellant and Ms. Dharitri Pancholi, the learned AGP, appearing for the respondent No.1. Along the line of the pleadings, the parties have argued before this Court at length. The authorities which are sought to be relied upon by the learned advocate Mr. Shukla are (i) the decision of the Bombay High Court in the case of D'Souza R.G. vs. Poona Employees Union through its President & Ors., reported in 2009-III-LLJ-466(Bom) and
(ii) the decision of the Apex Court in the case of R.G. D'Souza vs. Poona Employees Union & Anr., reported in (2015) 2 SCC 526. In the judgment of the Bombay High Court, there was a challenge to the order passed by the Industrial Court, Pune, by which, it set aside the order of the Addl. Registrar cancelling the registration certificate of the Trade Union. It was sought on the ground that the same was obtained by fraud and misrepresentation. The matter was decided in favour of the petitioner therein by the Addl. Registrar of the Trade Union. The challenge was made under Section 11 of the Trade Union Act, 1926 before the Appellate Authority. The Industrial Court quashed the order of the Addl. Registrar and obtaining registration certificate by mistake and fraud were the main grounds of challenge. This was challenged by way of petition under Article 226. The Court held that what is Page 7 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 included within the purview of Section 10 is only the act of mistake or fraud committed by the Trade Union applying for registration. The act of granting registration certificate by mistake may occur due to incorrect assessment or non-application of mind or mechanical act on the part of the Registrar, but such act cannot be rectified by Section
10. It can only be rectified either by the appellate authority or the Writ Court as the circumstances may demand. The fraud and mistake referred to in Section 10 would be required to be established or proved as any other fact. The factum of fraud or mistake is essentially a question of fact which needs to be established by leading cogent evidence. In another decision of the Supreme Court, as referred to above, the question was the correctness of the judgment and order passed by the Division Bench of the High Court at Bombay, affirming the order of the Industrial Court, Pune, whereby the Industrial Court had set aside the order of the Addl. Registrar, cancelling the registration certificate of Poona Employees Union. In the said decision, the Apex Court had held that as per Section 10 of the Act, the certificate of registration of the Trade Union may be withdrawn or cancelled by the Registrar of Trade Union either on application of a trade union inviting the attention of the Registrar of Trade Union or the Registrar may suo motu take cognizance under the said Section. There is no mention in the said provision about cancellation of registration of the Trade Union on application by any other person. The said Page 8 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 section permits the authority to cancel the registration of the Trade Union if it is obtained by fraud or mistake, but does not permit the authority to cancel the certificate of registration if the same is granted by mistake due to incorrect assessment or non-application of mind or mechanical act on the part of the authority. The Court further held thus;
"22. With respect to the provisions of Sections 4, 5, and 6 of the Act & Rules, which provide for furnishing the details in the application to be submitted for registration of the Trade Union. The above said provisions of the sections clearly state that they must be complied with for the applying- Union to be entitled for registration. However, it is essential to note that the 1st proviso of Section 4; clause (aa), (b) and (c) of Section 5 and clause (ee) & (hh) of Section 6 were inserted to the Act only by the Amendment Act of 31 of 2001, w.e.f. 09.01.2002, whereas the Trade Union was registered in the year 1986 when part of the above said provisions were not present. Therefore, in the present case on hand, although it was necessary for the Trade Union to comply with and provide all the necessary details under the above said provisions that were relevant at the time of registration, the Registrar either by mistake or due to incorrect assessment or non-application of mind may have issued a Certificate of Registration to the Trade Union. This official act by the Registrar of Trade Unions cannot be nullified by him under Section 10 of the Act, but can only be rectified by the appellate authority or writ court as rightly opined by the High Court in the impugned judgment.
23. In our considered view, the High Court has correctly held that the word "any" in the application form and the Rules of the Trade Union under Section 6 of the Act can be considered as "all". The High Court has rightly held that the word "any" could Page 9 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 mean that the object the Trade Union was to operate in all types of industries in Pune District. The necessity of specifying or disclosing the nature of industry/industries in which the Trade Union intends to operate and functions came only when the Section 2 of the amendment Act of 31 of 2001 (w.e.f. 9.1.2002) was inserted in the Trade Unions Act, 1926, whereas the Trade Union was registered in the year 1986. The requirement of workmen engaged in an establishment or industry with which it is connected to be members of the Trade Union came only after Section 4 was amended and the provisos were incorporated which came into force w.e.f. 09.01.2002, which is much after the registration of the Trade Union. The first part of the proviso mandated that a Trade Union must have at least ten percent or one hundred workmen engaged or employed in an establishment or industry who are members of such Trade Union on the date of making the application for registration. The second part of the proviso mandated that a Trade Union on the date of making application for registration must have not less than seven persons as its members who are engaged or employed in the establishment or industry with which it is connected. This requirement was not needed at the time of registration of the Trade Union as the above said amendment to the Act came after the registration of the same. From the facts and circumstances of the case on hand, the Trade Union has neither suppressed nor supplied any information by fraud or mistake in order to obtain the Certificate of Registration. Therefore, discrepancy in providing details in the prescribed Form 'A' being a product of the above Amendment Act cannot invalidate or is not a valid ground to cancel the Certificate of Registration of the Trade Union and the decision of this Court in the case of Forbes Forbes Campbell (supra) as relied on by the learned senior counsel for the appellant is not relevant in the case on hand."
13. The appeal was dismissed by holding that the High Page 10 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 Court had rightly affirmed the decision of the Industrial Court, wherein it had set aside the cancellation of registration.
14. Adverting to the judgment which is under challenge of the learned Single Judge, we notice that before answering the rival contentions, the Court had chosen to refer to the relevant scheme of the Trade Union Act, Industrial Disputes Act and the Gujarat Industrial Relations Act. The Court, on the strength of the scheme of the aforesaid provisions, has held that establishment, management, employer and employee have reciprocal obligations to be discharged, and in the event of industrial dispute, the parties would be adversaries and the union of the workmen would be under an obligation to espouse the cause of the workman/employee before appropriate forum under the relevant provisions of the law. It is further held and observed thus;
"Thus the interest of workmen/employees union and the establishment/management/employer would often be in conflict in such disputes. Union of the workmen through whom the workmen is statutorily entitled to espouse its grievance must be such as the workmen would instill confidence in it. It is only when independence of the union is ensured that it would be able to discharge its duties to the workman/employees independently and with due diligence. Interference in formation or registration of union by establishment/management/employer would allow such bodies to influence the union by demonstrating its powers or ability to interfere in their very existence and thus independence of union would be Page 11 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 casuality which would be detrimental to the interest of workmen/employees. Such a situation may weaken the bargaining capacity of the weaker section i.e. workmen/employees. Bearing in mind the relevant scheme of the above enactments, it is required to be noted that the principle object of the labour legislation is to maintain the industrial peace and necessity of the labour legislations was felt to balance the unequal bargaining power between the employer and the employees or the workmen. The idea of collective bargaining power came to be introduced by contemplating the formation and registration of the trade union. The industrial dispute can be raised by the employer and the workmen or the employees under the above enactments. However more often than not it is the employees or the workmen who is found to be raising industrial dispute and the industrial dispute at the hands of the employer are rarely noticed. This would mean that the employee or the workman is by and large in the need of support of the union for espousing their grievances. Allowing the employer to question the existence or registration of the union may result into a leverage to the employer to interfere in the individual affairs of the union. If the proposition canvassed by the learned counsel for the petitioner is accepted, a day may not be far where the employer may get a political edge bringing down the union to its knees and eventually compromising with the interest of the workmen. If the employer is allowed to say as to how the union should be constituted or the union should be registered, the union may have to toe the lines of the employer; thus eroding the very faith of the workman reposed in the union. "
15. The Court notice that there is already in existence a Union, namely, Gujarat Kamdar Samaj, representing the cause of the workmen. The said Union has not made any grievance against the registration of the second Page 12 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022 C/LPA/1821/2017 ORDER DATED: 04/07/2022 respondent-Union. The employer would have no business to make a grievance against the registration of another Union. It is also taken note of R.G. D'Souza decision (supra) holding that the cancellation of registration sought at the instance of individual was disapproved, and it is only the Union which can be the aggrieved party and can seek cancellation. The Court chose not to entertain any petition under Article 226 by holding that none except the aggrieved Union, would have a locus standi to so do it. We are in complete agreement with these findings and, therefore, the order and judgment book no interference in this appeal.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) Vahid Page 13 of 13 Downloaded on : Sat Dec 24 20:21:33 IST 2022