Delhi District Court
Sail Employees Union Corporate Office ... vs . Saeu & Ors. on 6 April, 2013
SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors.
IN THE COURT OF ADDITIONAL JUDGE03,
ROOM NO. 308, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
RCA No. 02/12
SAIL Employees Union Corporate Office (Regd).
Through its General Secretary
Mr. Raj Solanki, SAIL, Ispat Bhawan
Lodhi Road, New Delhi - 110003.
...Appellant
(Defendant no.4 in original suit)
Versus
1. Steel Authority Employee Union (SAEU)
Through its Secretary Mr. S.L. Rainia
Office of Steel Authority of India Ltd.
Ispat Bhawan, Lodhi Road, New Delhi110003.
2. Mr. S.L. Raina S/o. Late Sh. R.K. Raina
R/o. 15/376, Vasundhara Colony
Ghaziabad (U.P.)
3. Mr. Anand Singh Rawat S/o. Late Sh. Pan Singh Rawat
R/o. D3680A, Street No.14, Laxmi Nagar, Delhi110092.
4. Sh.Deep Singh Rawat S/o. Sh. S.S. Rawat
RCA 02/12 Page 1 of 24
SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors.
R/o. A64, Sector 12, NOIDA - 201301.
5. Mr. Brijesh Kumar S/o. Late Sh. Babu Ram
R/o. C248, BETA1, Greater Noida (U.P.)
...Respondents
(Plaintiff no.1 to 5 in original suit)
6. The Deputy Registrar of Trade Union Delhi
South District, A Wing First Floor Room No. 123
Pushpa Bhawan, Pushp Vihar, New Delhi.
7. Steel Authority of India Ltd., Ispat Bhawan
Lodhi Road, New Delhi - 110003.
8. The Govt. of NCT of Delhi, through Secretary Labour
5, Sham Nath Marg, Delhi - 110054.
...Respondents
(Defendants 1 to 3 in original suit)
Appeal Presented on : 02.01.2012
Date of Institution : 03.01.2012
Date of Decision : 06.04.2013
JUDGMENT
(On appeal under section 96 of the Code of Civil Procedure ) 1.1 (Introduction) It requires to give brief introduction of the case of the RCA 02/12 Page 2 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. parties, in order to adjudicate the appeal. The plaintiffs/respondents 1 to 5 filed suit (no. 435/2010) for declaration, permanent injunction and mandatory injunction, which was opposed by all the defendants (i.e. the appellant and the respondents 6, 7 and 8). While going through the Trial Court record, it is discovered that many documents are endorsed repeatedly with common mark of identification/alphabets viz. A,B,C,D,E, etc therefore, they will be referred by dates and other documents by the number assigned. Another appeal is also listed today for judgment arising out of same impugned decree/judgment of dated 28.11.2011in suit no.435/2010 by trial court of Shri Raj Kumar Tripathi, Additional Senior Civil Judge (south), Saket, Delhi, therefore, parties are referred by way of plaintiffs or defendants, to identify them at glance in the appeal as well as their reference to suit. 1.2 (Case of respondent nos.1 to 5/plaintiffs) - The plaintiffs filed the suit stating that plaintiff no.1 is a Union registered under the provisions of Trade Union Act, 1926 vide registration no. 2252 dated 03.10.1977 and form C was issued (now MarkA), by defendant no.1/Deputy Registrar of Trade Union, Delhi. The officers of plaintiff no.1 had been declared protected workmen under the law of the Trade Union Act 1926 ( in brief Act, 1926). RCA 02/12 Page 3 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. The defendant no.2 had recognised the plaintiff no.1 Union by a letter. Sh. Raj Solanki, now General Secretary of defendant no.4, was Secretary of plaintiff no.1 from 14.10.2001 to 24.02.2010, he was replaced from the post of Secretary by a resolution by the plaintiff no.1's Executive Committee on 24.02.2010, when plaintiff no.1 resolved to reconstitute the committee as the said Sh. Raj Solanki had not taken up properly the pending issues of Union with the Management. The Election to the Executive Committee were held as per rules and the same were informed to the defendant no.1 since Sh. Raj Solanki was removed from the post of Secretary on 24.02.2010 through the resolution, he started working to the detriment of plaintiff no.1 and in order to cause harm and break the union into small fractions and he also started malicious propaganda against the plaintiff no.1 and its office bearer, he also floated another union by the name and style of SAIL Employees' Union Corporate Office, which has been registered with defendant no.1/Deputy Registrar of Trade Union of Delhi in March 2010. Sh. S.N. Raina and other members of plaintiff no.1 came to know about alleged cancellation of plaintiff no.1 by the Deputy Registrar of Trade Union Delhi, they browsed website, where it was shown that registration of plaintiff no.1 stands cancelled, its hard copy, (now Ex. PW1/12) was generated. The said Sh. Rajpal Solanki, RCA 02/12 Page 4 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. now General Secretary of SAIL Employees Union Corporate Office, by taking undue advantage of said information on the website, he alongwith his other associates started causing damage to the plaintiff no.1 and also hampering the union activities of plaintiff no.1. The plaintiff no.1 tried to acquire the information with regard to its status in the record of defendant no. 1/Deputy Registrar of Trade Union, Delhi, but it was informed that file related to plaintiff no.1 had been misplaced and was not readily available, the inspection of official record was not allowed. Then plaintiffs applied under Right to Information Act, 2005 by application dated 05.05.2010 (now Ex. PW1/13) seeking various information and it was replied on 21.05.2010 (now Ex. D1W1/P1) by the defendant no.1 that the file was not received in its office. The plaintiff no.1 wrote letters dated 12.03.2010 and 06.04.2010 (now Ex. PW1/15 and Ex. PW1/16) to defendant no.1 that its status is being shown wrongly as cancelled and it requires correction and another letter dated 13.04.2010( MarkD) to the Labour Commissioner but no response have been received from them. The defendant no.1 and 4 in connivance of each other and also being unfair labour practice on the part of management, floated the defendant no.4 SAIL Employees Union Corporate Office. Police report was also lodged against the said Mr. Solanki, who failed to return and RCA 02/12 Page 5 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. restore the record and register to the office bearers of plaintiff no.1. The plaintiff has been filing necessary returns with the statutory authorities as per law. There is no cancellation order on the website but status of plaintiff no.1 has been shown wrongly as cancelled. The defendant no.1 had issued a letter dated 30.04.2010 (now Mark A = Mark E= Ex.D1W1/P2), without supporting documents and as a matter of record, the employer/defendant no. 2/Steel Authority of India Limited had categorically asked for cancellation order, if any, passed by defendant no.1. No such order has been passed by defendant no.1. The defendant no.1 has intentionally given misleading and vague reply to defendant no. 2's letter dated 28.04.2010 (now Ex. PW1/D3) by reply dated 30.04.2010 (Mark A = Mark E= Ex.D1W1/P2), that is why the suit to declare that letter dated 30.04.2010 as illegal, null and void vis - a - vis mandatory injunction to withdraw the alleged cancellation order, de registering the plaintiff no.1 and all orders passed consequent thereto besides suit of permanent injunction restraining the defendants, their representatives/ successors etc. from changing the status and position of plaintiff no.1 and other plaintiffs in any manner.
1.3 (1.3 Case of respondents 6 and 8/defendant nos. 1 and 3) - RCA 02/12 Page 6 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. The written statement was filed under the signature of defendant no.1 that suit is not maintainable for want of notice u/s. 80 of CPC, the Civil Court jurisdiction is barred by Section 11 of the Trade Union Act, 1926 and the suit is also barred by Limitation u/s 10 of the Act, 1926. The plaintiff no.1 was registered on 13.10.1977 vide registration no. 2252, however its registration was cancelled due to nonsubmission of annual returns prior to 1989, list of cancelled union was published on website of Labour Department since 2006. All the procedure was followed before cancellation of registration, which was in the knowledge of office bearers as well as Sh. Raj Solanki, Ex General Secretary of plaintiff no.1. This cancellation was carried as per the provisions of section 11 of the Trade Union Act and there was time of 60 days for filing of appeal as per section 10 of the Act, consequently neither the present suit for declaration and injunction is the remedy nor it is maintainable and time of filing the appeal has also elapsed, therefore, it is barred by time and it is liable to be dismissed.
1.4 (Case of respondent no.7/defendant no.2) - The defendant no. 2 has also requested for dismissal of suit as there is nothing against it. The grievances of plaintiffs fall under the territorial limit of labour court or RCA 02/12 Page 7 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. industrial tribunal but not before the Civil Court. Since efficacious remedy of special law is available under the Act 1926, the provisions of general law are not available to the plaintiff. As per letter dated 30.04.2010 (Mark A=Mark E=D1W1/P2) of defendant no.1, the registration of plaintiff no.1 was cancelled, therefore, plaintiff has lost the status of recognised union of employees of defendant no.2 and consequent to registration of defendant no.4, a new Trade Union was registered, it had informed the defendant no.2, accordingly, the facts were verified, processed and the same were considered by defendant no.2. Neither the acts of defendant no.2 were in haste nor arbitrary nor contrary to the practice or procedure or rules, therefore, the suit was liable to be dismissed qua defendant no. 2. The plaintiffs cannot claim status of protected workmen as a matter of right. This privilege is conferred on office bearers by virtue of recognition of trade union. Thus, plaintiffs could not take plea of hardships on account of change of status of office bearers due to deregistration of plaintiff no.1 1.5 (Case of appellant/defendant no.4) - The defendant no.4 was impleaded on its application under Order I Rule 10 CPC by order dated 03.08.2010 and defendant no.4 requests for dismissal of suit in terms of RCA 02/12 Page 8 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. section 41(i) of Specific Relief Act, 1963 that as per plaintiff no.1's own case, the defendant no.1 did not issue any notice or show cause or letter before cancellation of its registration, the plaintiffs' were not entitled for equitable th relief. As per approved constitution, the head office of plaintiff no.1 was 14 Floor, Hindustan Times House, K.G. Marg, New Delhi 110013 but the plaintiffs filed typed copy of Constitution (now Mark C) which shows head office at Steel Authority of India Ltd. Ispat Bhawan, Lodhi Road, New Delhi which is a fabricated and false copy of Constitution as original has not been produced. Further, as per the provisions of Trade Union Act, 1926, remedy against cancellation of registration lies in the form of appeal and not suit for declaration and injunctions before civil court. Since plaintiff no.1 is not a registered trade union, and plaintiffs 2 to 5 have no entity in the eyes of law, therefore, suit has not been properly filed. The plaintiffs also failed to serve notice u/s 80 of CPC. The plaintiff is nonexistent and defunct; whereas the defendant no.4 has every right to float another union, and defendant no. 4 SAIL Employee Union Corporate Office has been registered with defendant no.1 and it has also been recognised by defendant no.2. The cancellation of registration of plaintiff no.1 was published on the website and it is in the public domain, therefore, the suit is liable to be dismissed. RCA 02/12 Page 9 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. 2.1 From the pleading of parties, the trial court of Additional Senior Civil Judge, Delhi, framed the following issues :
1. Whether the plaintiffs have not approached the court with clean hands and suppressed the material facts from the court, if so, what facts? OPD no.1.
2. Whether the suit filed by the plaintiffs is liable to be dismissed for want of service of statutory notice under section 80 of CPC before filing the present suit? OPD.
3. Whether the plaintiffs are not entitled to the equitable relief of injunction or any other relief in terms of section 41(I) of The Specific Relief Act? OPD no.4.
4. Whether the registration of Union of plaintiff no.1 has been cancelled, if so, when and in that circumstances as to whether the jurisdiction of the court is barred? OPD.
5. Whether the plaintiffs are entitled for a cecree of declaration as prayed for in the suit? OPP.
6. Whether the plaintiffs are entitled for a decree of a permanent injunction, as prayed for in the suit? OPP.
7. Whether the plaintiffs are entitled for a decree of a mandatory injunction, as prayed for in the suit? OPP.
8. Relief.
2.2 The plaintiff got examined PW1 Sh. S.N. Raina in order to establish the case and defendants no.1 examined D1W1 Mr. Peter Bara and defendant no.2 got examined D2W2 Sh. Sameer Swaroop and Defendant RCA 02/12 Page 10 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. no.4 examined D4W1 Sh. Raj Solanki, General Secretary.
2.3 The Trial Court returned findings on each issue. Issue no.1 , 2 and 4 were taken individually and separately. The onus to prove issue no.1 was on defendant no.1, onus to prove issue no.2 and 4 was on the defendants, the findings have been returned against the defendants on such issues. The other issues no. 3,5,6 and 7 were taken together, onus to prove issue no. 3 was on defendant no.4, it has been decided against defendant and onus to prove issue no. 5,6 and 7 was on the plaintiffs, the same have been decided in favour of the plaintiffs. In addition point of Limitation was also argued by the parties, it has also been held in paragraph 28 of the judgment that the suit is within Limitation as per article 58 of schedule appended with the Limitation Act. Appellant is aggrieved by the impugned decree/judgment dated 28.11.2012 and assails it in the appeal.
3. The appellant assails the impugned decree as the Trial Court failed to appreciate the facts, figures and material on record, visavis the provisions of law of CPC, the Limitation Act, the provisions of sections 35 and 114 (e) of the Indian Evidence Act, sections 10 and 11 of the Trade Union Act, 1926. By reading the material on record and provisions of law, RCA 02/12 Page 11 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. only conclusion could be drawn is to set aside the impugned decree/judgment by allowing the appeal. The other detail of appeal will be referred appropriately point wise. Whereas, the plaintiffs opposed the appeal that neither there is any flaw in the findings returned by the Trial Court nor there is any perversity to set aside the findings, each aspect being raised in the appeal have been dealt by the trial court exhaustively. The other submission of petitioners will be referred appropriately. 4.1 According to appellant, notice u/s 80 CPC is the statutory requirement of law and trial court reasoned that plaintiff had filed an application u/s 80(2) CPC, and it was not dismissed, therefore, it has deemed to have been allowed, the observations are contrary to provisions of section 80 CPC. The respondents 6, 7 and 8 support the contentions of appellant in this regard. Whereas, according to plaintiffs, they have filed an application u/s 80(2) CPC and case was prosecuted after notice on the suit to all the parties, therefore, there is nothing wrong in the observation recorded and no prejudice has been caused to the parties and even the trial court has discussed object of notice u/s 80 of CP as well as the provisions of 80 (2) of CPC.
4.1(a) The contentions of appellant are not sustainable, since the RCA 02/12 Page 12 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. appellant was defendant no.4 in the main suit and defendant no.4 is not a public authority. So far respondent no.6, 7 and 8 are concerned, the trial court in para 15 of the judgment has dealt in detail the object of section 80 CPC, the proceedings recorded and that application was deemed to have been allowed and thence, case was proceeded further. Therefore, the findings of trial court on issue no.2 are confirmed, there is nothing on record to set aside such findings on issue no.2.
4.2 The appellant also contends that the plaintiffs have concealed material facts from the court and came without clean hands before the court, they are not entitled for equitable relief of injunction in view of specific provisions of the Specific Relief Act. The plaintiffs filed typed copy of Constitution (MarkC) by suppressing the original/official copy of Constitution in order to state that Head office of plaintiff no.1 is at Lodhi Road, New Delhi whereas the registered office of defendant no.1 is of Hindustan Times th House, 14 Floor, K.G. Marg, New Delhi, secondly, there is nothing on record that plaintiff brought to the knowledge of defendant no. 1 about change of address of plaintiff no.1. Therefore, the documents have been manipulated which clearly spells out from the crossexamination of PW1 Sh. S.L. Raina as to how the typed copy (Mark C) was prepared and he could not account RCA 02/12 Page 13 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. for either for original copy or of other record from which it was typed. The respondents 6 and 8 are of also same contentions. Whereas, according to plaintiffs, there is no merit in the appeal, as Trial Court had also dealt this aspect in the judgment and also observed that there is nothing disclosed in the affidavit of defendant no.1 that plaintiffs have concealed the material or they came to court without clean hands.
4.2(a) It is matter of record that copy of Constitution (Mark C) is a typed copy, showing registered office of plaintiff no.1 of Lodhi Colony, New Delhi. It is also a fact that plaintiff could not give a complete account from which record, it was copied/typed. Simultaneously, PW1 Sh. S.L. Raina was confronted with various documents/letters (Ex. PW1/D1, 9 sheets for the period 1985 to 1986), during his crossexamination and such correspondence is either with the Labour Commissioner, Delhi Administration or with defendant no.2, the address of plaintiff no.1 is of Ispat Bhawan, Lodhi Road, New Delhi. Secondly, when Sh. Raj Solanki was Secretary of plaintiff no.1, he himself had also issued letter/circular dated 29.05.2004 under his signature (Ex. PW1/D2), the circular was issued showing the address of plaintiff no.1 of Ispat Bhawan, Lodhi Road, New Delhi. Lastly, the defendant no.2's witness D2W1 Sh. Sameer Swarup, RCA 02/12 Page 14 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. Asstt. General Manager in his affidavit Ex. D1 (para 3) clearly stated that Steel Authority Employees Union (SAEU)/plaintiff no.1 had been functioning as registered and recognised Union at corporate office of SAIL, which is at Ispat Bhawan, Lodhi Road, New Delhi. There is no other record by the appellant or defendants 6 and 8 to prove that plaintiff no.1 had not been functioning from Ispat Bhawan, Lodhi Road, New Delhi, consequently, they could not establish that plaintiffs came to the court without clean hands or suppressed the material facts. The documents on record are establishing that plaintiff no.1 was operating its functions from Ispat Bhawan, Lodhi Road, New Delhi.
4.3 According to appellant, the registration of plaintiff was cancelled in 1986 and cancellation was also notified on website of Registrar of Trade Union in the year 2006, therefore, filing of the suit on 13.05.2010 is barred by law, since publication on the website is in public domain and it was known to everyone, visavis to all office bearers. Secondly, when a registration is cancelled u/s 10 of the Act, 1926, remedy lies in the form of appeal u/s 11 of the Act, 1926, that too within 60 days from the date of cancellation, therefore, from the year of cancellation in the year 1986 or from the date of publication in the year 2006, the suit is time barred and suit is not remedy being specific RCA 02/12 Page 15 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. provision of appeal. The plaintiffs were not filing the mandatory annual returns for several years with the registrar of trade union as per section 28 of the Act. The respondent nos. 6 and 8 have brought on record extract of cancellation register, which clearly shows that name of plaintiff no.1 was cancelled. The register is being maintained by defendant no.1, a Government office, it is presumed to be maintained during the course of its day today affair and presumption of its correctness and being maintained regularly is to be drawn as per sections 35/114 of the Indian Evidence Act. Ld. Counsel for respondents 6 and 8, supplements that record of cancellation of registration is available, which shows that as many as 18 registrations of union were cancelled, (being shown in the registered/extract filed in other appeal no. RCA 07/12) the plaintiff no.1 is one of them who have not filed the annual returns for the couple of years. Although, the plaintiff no.1's registration has been restored, it is without prejudice rights of parties to outcome of appeal. The respondent no. 7, 6 and 8 also make similar contentions on the point of limitation as well as the provisions of section 10 and 11 of the Trade Union Act, 1926. Whereas, the plaintiff has opposed the contentions that the contentions being raise have also been answered by the trial court, while referring of provisions of law visavis RCA 02/12 Page 16 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. relying upon various case law 1996 LAB IC 1700 2001 ILR 828, by observing that provisions of appeal u/s 11 of the Act 1926 could be invoked in case the plaintiff was served with order of cancellation u/s 10 of the Act, 1926. The remedy lies in the form of suit for declaration and other relief. The plaintiffs came across the information of cancellation of registration in the year 2010, when D4W1 Sh. Raj Solanki was spreading the rumors; immediately not only defendant no.1 was approached for inspection of record but also application for RTI was filed, however, no cancellation order was provided and in reply dated 21.05.2010 (Ex. D1W1/P1), the defendant no.1 has not furnished/mentioned any information or fact that file was misplaced. The limitation period is to be computed from the time when it came to the notice of plaintiffs in 2010 and Trial Court has already opined that as per article 58 of the scheduled appended with the Limitation Act, the suit is within limitation. Since plaintiffs were not provided any cancellation order, therefore, there was no occasion for filing an appeal u/s 11 of the Act, 1926 and suit for declaration and injunction has been rightly filed; the plaintiffs were never served with any show cause notice or notice or of cancellation order by the defendant no.1. The registration cannot be cancelled without affording opportunity to explain or show cause, which is a principle of RCA 02/12 Page 17 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. natural justice enshrined in section 10 itself. The section 10 of Act, 1926, does not specify ground of nonfiling of return as it is a penal provision as per section 31 r/w section 28 of the Act, 1926, therefore, before carrying the cancellation, not only a show cause notice is required to be served, but there should be specific cancellation order, which has not been brought on record by any of the defendants , there does not exist any cancellation order. The defendant no.1 could not prove cancellation order and photocopy of alleged cancellation register is not tenable nor its cognizance can be taken as neither the register has been authenticated nor it has been proved nor it has any sanctity. Nor the appellant can request to draw presumption u/s 35 and 114 of Indian Evidence Act, as the same are not conclusive evidence. For want of proof of register, in the trial court, it cannot be considered any piece of evidence in appeal, being shown first time. The appeal is liable to be dismissed.
4.3 (a) The contentions are addressed in respect of issue no.4, 3, 5,6 and 7. In order to adjudicate the same, the provisions of Act 1926, the Limitation Act, the Indian Evidence Act are perused, it requires to reproduce section 10 and 11 of the Trade Union Act, 1926, which reads as RCA 02/12 Page 18 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. follows: "Section 10 : Cancellation of registration - A certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar
(a) On the application of the Trade Union to be verified in such manner as may be prescribed, or
(b) If the Registrar is satisfied that the certificate has been obtained by fraud of mistake, or that the Trade Union has ceased to exist or has willfully and after notice from the Registrar contravened any provision of this Act or allowed any rule to continue in force which is inconsistent with any such provision or has rescinded any rule providing for any matter provision for which is required by section 6 :
Provided that not less than two months' previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate shall be given by the Registrar to the Trade Union before the certificate is withdrawn or cancelled otherwise than on the application of the Trade Union".
"Section 11 : Appeal (1) Any person aggrieved by any refusal of the Registrar to register a Trade Union or by the withdrawal or cancellation of a certificate of registration may, within such period of may be prescribed, appeal
(a) where the head office of the Trade Union is situated within the limits of a Presidency town to the High Court, or
(b) where the head office is situated in any other area, to such Court, not inferior to the Court of an additional or assistant Judge of a principal RCA 02/12 Page 19 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors.
Civil Court of original jurisdiction, as the [appropriate Government] may appoint in this behalf for that area.
(2) The appellate Court may dismiss the appeal, or pass an order directing the Registrar to register the Union and to issue a certificate of registration under the provisions of section 9 or setting aside the order for withdrawal or cancellation of the certificate, as the case may be, and the Registrar shall comply with such order.
(3) For the purpose of an appeal under subsection(1) an appellate Court shall so far as may be, follow the same procedure and have the same powers as it follows and has when trying a suit under the Code of Civil Procedure, 1908, and may direct by whom the whole or any part of the costs of the appeal shall be paid, and such costs shall be recovered as if they had been awarded in a suit under the said Code.
(4) In the event of the dismissal of an appeal by any Court appointed under clause (b) of subsection (1), the person aggrieved shall have a right of appeal to the High Court, and the High Court shall, for the purpose of such appeal, have all the powers of an appellate Court under subsections (2) and (3), and the provisions of those subsections shall apply accordingly." 4.3 (b) One of the issue raised in appeal is in regard to the jurisdiction of civil court visavis the forum for addressing the grievances per section 11 of the Act, 1926. By reading entire record together, it is admitted case of the parties, that no cancellation order has been produced before the court nor it has been proved. There are two appeals bearing no. RCA - 02/12 (present appeal) and another appeal No. 07/12 pending in the present court, however, in the former appeal, the appellant claims that registration of plaintiff no.1 RCA 02/12 Page 20 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. was cancelled in the year 1986 and in the latter it is claimed that cancellation was done in the year 1995. The defendant no.1 have also filed photocopy of cancellation register (3 sheets) but it is not apparent as to under what provisions, the register is being maintained or who maintains the register or for whose custody it is kept or it has been brought, as none of the pages bears any name or signature of the concerned officials. To say, these photocopies are inadmissible in evidence and the same cannot be considered as an evidence, as just presenting them during the course of arguments. It further establishes that there is no record of show cause or of notice or of cancellation order of plaintiff no.1.
Section 10 of the Act, 1926 talks about cancellation of registers under certain eventualities like when Trade Union itself files an application or the Registrar/defendant no.1 satisfies that certificate has been obtained by fraud or mistake or Trade Union ceases to exist or it has willfully contravened provisions of the Act or rules after notice from Registrar and previous notice of two months to show cause is required to be served while cancelling the certificate. The remedy of appeal lies under section 11 of the Act, 1926 against cancellation of registration under section 10 of the Act. Section 10 enumerates specific instances of violation or contravention of provisions of RCA 02/12 Page 21 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. Section 6. The legislature in its wisdom has also enacted section 28 of the Act, making it mandatory for filing the annual returns and violation of section 28 is made punishable under section 31 of the Act, 1926. By reading section 28, 31, 10 together, it can be inferred that cancellation of registration is extreme penalty in the form of cancellation of registration but requirement of section 10 is to be satisfied. The witness PW1 may have admitted with regard to status of returns, however, it does not ipsofacto result into cancellation of registration as mandatory provision of section 10 is to be followed. Therefore, for want of cancellation order as well as its proof, the plaintiffs were not having remedy of appeal under section 11 of the Act, which has been rightly concluded by the Trial Court that generally civil courts has jurisdiction, unless specifically excluded or barred, not only in the impugned judgment dated 28.11.2011 but also in order dated 26.02.2011 while deciding the contentions of the parties on the point of jurisdiction.
The plaintiffs learned about the cancellation of registration in the year 2010, as per appellant/defendant no.4, the cancellation was carried in the year 1986 and as per defendant nos. 1 and 3, the cancellation was in the year 1995 and there is no cancellation order proved on record. On the eve of enactment of Information Technology Act, the cancellation order was RCA 02/12 Page 22 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. published on the website but it was not known to the plaintiff and even the appellant/defendant no.4 Sh. Raj Solanki , who was office bearer of plaintiff no.1 from the year 2001 to 2010 and he was discharging his duties of office bearer of plaintiff no.1, also infers that it was not in the knowledge of plaintiffs about such cancellation of registration. Right to accrue for filing suit accrued in the year 2010 and the suit has been filed immediately in the year 2010 itself, therefore, it is within 3 years time, the suit is not barred by limitation. 4.3(c) By reading the conclusions drawn and other discussion in paragraph 4.3 (a) and 4.3 (b) together, it stands crystal clear that plaintiff no. 1 was operating its office from Ispat Bhawan, Lodhi Colony, New Delhi and there was no suppression of facts, visavis the civil court has jurisdiction to adjudicate the issues and for want of proof of cancellation of registration of plaintiff no.1, the photocopies of register cannot treated conclusive evidence nor the same are evidence as it could not have been established who and how such record is maintained and under what authority. Therefore, findings of Trial Court on issue no. 3, 5 , 6 and 7 are also confirmed.
5. Therefore, the findings of trial court are confirmed on each RCA 02/12 Page 23 of 24 SAIL Employees Union Corporate Office (Regd.) Vs. SAEU & Ors. issue, there is no merit in the appeal and the appeal is dismissed. Both the parties will bear their own cost. Decree Sheet be drawn accordingly. Copy of this judgment, alongwith trial court record be sent back to the trial court.
Announced in open Court (INDER JEET SINGH)
th
16 Chaitra, Saka 1935 Addl. District Judge03, South District
Saket/ 06.04. 2013
S
RCA 02/12 Page 24 of 24