Bombay High Court
R. G. D'Souza vs Poona Employees Union on 25 February, 2009
Author: Mridula Bhatkar
Bench: V. C. Daga, Mridula Bhatkar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4048 OF 2008
R. G. D'souza
Shramadeep Housing Society,
R.M. 69/5, MIDC Chinchwad,
Pune ... Petitioner
V/s
1. Poona Employees Union
Through its President
Shri Madhav B. Roham,
H-89, Shastri Nagar,
Yerawada, Pune 411 006
2. Shri A. R. Lakaswar,
Addl. Registrar Trade Unions Act,
Office of Addl. Labour Commissioner
Wakadewadi, Pune Mumbai Road,
Shivajinagar, Pune 411 005
3. Shri Shrikant K. Deshpande
Member, Industrial Court,
Pune. ... Respondents
Mr. Rahul Nerlekar, Advocate for the Petitioner
Smt. Gayatri Singh, Advocate for Respondents
CORAM: V. C. DAGA, &
MRS. MRIDULA BHATKAR, JJ.
DATE : 25th February, 2009
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JUDGMENT (Per Mrs. Mridula Bhatkar, J.)
1. Perused Petition. Rule, returnable forthwith. Heard finally by consent, of parties.
2. The Petitioner has challenged the Order dated 11th April 2008, passed by the Industrial Court, Pune by which it set aside the order of the Additional Registrar cancelling the Registration Certificate of the Respondent No.1 - the Trade Union.
3. FACTUAL MATRIX :
Petitioner was the Unit President of the Respondent No. 1 Trade Union when the application for the Registration Certificate of Respondent No. 1 Union was made. However, the Petitioner, due to internal clashes, was expelled from the Respondent No. 1 Union. There were some disputes between the Respondent No. 1 and one other Union namely Bhartiya Kamgar Sena (BKS) pending before the Industrial Court. The Petitioner being the active member in the labour movement and interested party, filed an application under Section 10 of the Trade Unions Act, 1926 (Amended Act- 2001) before the second Respondent i.e. the Additional Registrar, Trade Union seeking cancellation of the registration of the Respondent No. 1 - Union on the ground that the same was obtained by fraud, mistake or ::: Downloaded on - 09/06/2013 14:22:19 ::: 3 misrepresentation. By Order dated 12th February 2008, the said matter was decided in favour of the Petitioner by the Additional Registrar of Trade Union and it was held that the registration of the Respondent No.1 - Union itself is illegal.
4. Respondent No. 1 challenged the aforesaid Order under Section 11 of the Trade Unions Act, 1926 before the Appellate Authority i.e. the Respondent No. 3 - the Industrial Court, Pune. The Industrial Court, after hearing both the parties, gave verdict on 11th April 2008, and set aside and quashed the Order passed by the Additional Registrar of Trade Union. Non filing of the necessary documents as per the rules and obtaining Registration Certificate by mistake and fraud were the main grounds of challenge. Petitioner, thereafter, being aggrieved with the said Judgment and Order has preferred this Writ Petition in the High Court under Article 226 of the Constitution of India.
5. SUBMISSIONS :
Learned Advocate of the Petitioner has submitted that the Order passed by the Industrial Court is bad and illegal. That the Industrial Court has completely mixed up the issues while answering the questions of Law raised by him. It was argued that at the time of applying for the registration, the Respondent No. 1 - Union did not follow the rules under ::: Downloaded on - 09/06/2013 14:22:19 ::: 4 Sections 4 and 6 of the Trade Unions Act. The Respondent No. 1 - Union ought to have specifically mentioned the name of any establishment or nature of any industry in which the persons employed were to be united or combined. The absence of indication of industry and non-inclusion of the schedule is a gross mistake on the part of the Respondent No. 1 - Union. Our attention was drawn to the copies of the application for registration submitted by the Respondent No.1
- Union at the time of registration. Learned Advocate for the Petitioner, on the point of requirement of specific mention of the object or purpose in the application for registration by the Trade Union, relied on the ruling of the Division Bench of this Court in Indian Express Newspapers (Bom) Employees Union Vs. K. M. Desai & Ors. in Writ Petition No. 2396 of 1986. Learned Advocate has argued that the Industrial Court ought not to have set aside the order of cancellation of the Registration Certificate passed by the Additional Registrar as it was obtained by fraud and mistake.
6. Learned Advocate for Respondent No. 1, in reply, has submitted that the Respondent No.1 - Trade Union is actively working for the well being of the labourers since 1986. It was argued that the cancellation of Registration Certificate is provided under Section 10 of the Trade Unions Act. That as per Section 10(a), cognizance of cancellation ::: Downloaded on - 09/06/2013 14:22:19 ::: 5 can be taken by the Registrar, on application, not of the individual, but that of the trade union. Hence, the locus of the Petitioner under Section 10(a) is challenged. While countering the arguments on the point of obtaining Registration Certificate by mistake, she urged that as per Section 10(a), the mistake ought to be on the part of the applicant and could not be on the part of the registering authority. She relied on the ruling of Karnataka High Court in Registrar, Trade Unions, Mysore Vs. M. Mariswamy reported in 1974 LAB. I.C. 695 in support of the submission, wherein Court ruled as under:
"Index Note:- (A) Trade Unions Act (1926), S. 10(b)
- Withdrawal or cancellation of registration on ground of 'mistake' - Mistake must have been on the part of the applicant Union and not on the part of the Registrar himself - Withdrawal or cancellation cannot be made for the mistake of the Registrar himself."
(Emphasis supplied)
7. On the point of disclosure of the object, reliance is placed on B.P.L. Group of Companies Karmikara Sangha Vs. Commissioner of Labour reported in 2001(1) L.L.N. 599 to support of the submission made.
8. THE ISSUES :
::: Downloaded on - 09/06/2013 14:22:19 ::: 6The Petition involves two issues, reading as under:
(a) Whether the Petitioner has locus standi to invoke the proceedings under Section 10 of the Trade Unions Act, 1926 or not?
(b) Whether the Registration Certificate has been obtained by fraud or mistake by the Trade Union and so liabled to be cancelled ?
9. STATUTORY PROVISIONS :
Before considering the rival submission, let us turn to the relevant statutory provisions of the Act to decide the issues involved herein.
S.4. Mode of Registration - (1) Any seven or more members of a Trade Union may, by subscribing their names to the rules of the Trade Union and by otherwise complying with the provisions of this Act with respect to registration, apply for registration of the Trade Union under this Act.
(2) Where an application has been made under sub-
section (1) for the registration of a Trade Union, such application shall not be deemed to have become invalid merely by reason of the fact that, at any time after the date of the application, but before the registration of the Trade Union, some of the applicants, but not exceeding half of the total number of persons who made the application, have ceased to be members of the Trade Union or have given notice in writing to the Registrar dissociating themselves from the application.
::: Downloaded on - 09/06/2013 14:22:19 ::: 7S.6 Provisions to be contained in the rules of a Trade Union - A Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following matters, namely-
(a) the name of the Trade Union;
(b) the whole of the objects for which the Trade
Union has been established;
(c) the whole of the purposes for which the general
funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are lawfully applicable under this Act;
(d) the maintenance of a list of the members of the Trade Union and adequate facilities for the inspection thereof by the office-bearers and members of Trade Union;
(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as office- bearers required under Section 22 to form the executive of the Trade Union;
(ee) the payment of a minimum subscription by members of the Trade Union which shall not be less than-
(i) one rupee per annum for rural workers;
(ii) three rupees per annum for workers in other unorganised sectors;
(iii) twelve rupees per annum for workers in any other case;
(f) the conditions under which any member shall be ::: Downloaded on - 09/06/2013 14:22:19 ::: 8 entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members;
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members of the executive and the other office-bearers of the Trade Union shall be elected and removed;
(hh) the duration of period being not more than three years, for which the members of the executive and other office-bearers of the Trade Union shall be elected;
(i) the safe custody of the funds of the Trade Union, an annual audit, in such manner as may be prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the office-bearers and members of the Trade Union; and
(j) the manner in which the Trade Union may be dissolved.
S.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;
(b) if the Registrar is satisfied that the certificate has been obtained by fraud or mistake or that the Trade Union has ceased to exist or has wilfully 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 ::: Downloaded on - 09/06/2013 14:22:19 ::: 9 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.
10. CONSIDERATION :
The submission of learned Advocate for the Respondent that the Section 10(a) specifically mentions about "on application of the Trade Union" and it does not speak about "on application of the individual" is apparently correct. Thus, the submissions of learned Advocate of the Petitioner that any individual can also apply for cancellation does not hold good.
11. An individual may submit an application under Section 10(a) of the Act to invite the attention of the Registrar of Trade Union. The Registrar, thereafter, can suo motu take cognizance under Section 10 of the Trade Unions Act, 1926.
Section 10(a) needs to be read along with Section 10(b), which speaks about the satisfaction of the Registrar about validity of the Certificate. When Registrar forms an opinion to ::: Downloaded on - 09/06/2013 14:22:19 ::: 10 exercise suo motu powers, it must be preceded by an enquiry, may be preliminary in nature. He has to record prima facie reasons for his satisfaction before initiating action of cancellation of registration of the Union followed by show cause notice disclosing grounds for actions so that the same can be effectively answered by the noticee Union. No such course of action was adopted by the Registrar of the Trade Unions in this behalf as such it is not possible to hold in the facts and circumstances of this case that in exercise of suo motu powers, the action was initiated and taken by the Registrar.
12. For the reasons recorded, we cannot agree with submissions of the learned Advocate of the Petitioner and hold that the Petitioner has no Locus to apply for cancellation of the registration of the Respondent Union. The view taken by the Industrial Court on this count is legal and reasonable needs no interference.
13. While dealing with the issue of cancellation of registration, it is necessary to consider the effect of Sections ::: Downloaded on - 09/06/2013 14:22:19 ::: 11 4, 5 and 6 of the Trade Unions Act, 1926. Section 4 deals with the mode of the registration. Section 5 is in respect of the application for registration, which prescribes that every application of the registration of the Trade Union shall be accompanied by a copy of the rules of the Trade Union and the statement of the particulars, namely;
(a) Name, occupation, address of the members making application;
(b) Names and addresses of the Trade Union and its Head Office and;
(c) Details of the office bearers of the Trade Union.
Section 6 provides for provisions relating to the constitution of the executive thereof and the rules providing for the details specified as per (a) to (j) thereof. Thus, it is necessary for the applicant Trade Union to give all these details including the purpose or object of the Trade Union.
14. Registrar was while considering application for registration is expected not to act mechanically or like a stamp machine. Registrar can refuse to grant Registration Certificate, if information is found to be not as per the legal requirements. As per Section 10, the act of mistake is attributable to the Trade Union applying for registration and not to the Registrar, who is an authority to register the Trade Union. It mandates that there should be a fraud or mistake in ::: Downloaded on - 09/06/2013 14:22:19 ::: 12 the information given or facts presented or details furnished by the applicant Trade Union.
15. Granting Registration Certificate is the decision of the Registrar. The official act done in official capacity is presumed to be legal and valid. The said act cannot again be nullified by the second decision of the Registrar, who has no power of review under the Act. Legislative wisdom has specifically excluded an act of mistake by the Registrar and power to review. Registration cannot be cancelled by the Registrar in exercise of power under Section 10 of the Act.
Thus, only the act of obtaining the Registration Certificate by fraud or mistake, that too, by the person applying for registration, could only be a reason or ground for cancellation of registration of the Trade Union under Section 10 of the Act.
16. What is included within the purview of Section 10 is the only act of mistake or fraud committed by the Trade Union applying for registration.
::: Downloaded on - 09/06/2013 14:22:19 ::: 1317. 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 via Section 10. It can only be rectified either by the appellate authority or writ court as the circumstances may demand.
18. The fraud or mistake referred to under Section 10 of the Act is 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 positive evidence. If Trade Union obtains Certificate either by mistake or fraud and if it is proved by the cogent and reliable Evidence, then such Certificate can alone be a subject matter of cancellation under Section 10 of the Act. In other words, any mistake in granting Registration Certificate by the Registrar is not within the ambit of Section 10 of the Act as stated hereinabove.
19. In the case in hand, we were taken through the contents of the application form and the rules of the respondent Trade Union made under Section 6 of the Trade Unions Act, 1926. The purpose mentioned therein in Marathi is " ". It means "any" - industry. The meaning of the word "any" sometimes is to be considered as "all". It means ::: Downloaded on - 09/06/2013 14:22:19 ::: 14 the object of the present Trade Union was to operate in all types of the industries. Whether under a particular industrial legislation, such registered Trade Union is entitled to represent workmen of a particular industry or establishment or local area was altogether a different question, nothing to do with the registration of the Trade Union. In the year 1986, when the Respondent Trade Union was registered, it was not necessary to specify or disclose the nature of industry in which it intended to operate.
ig This requirement came on Statute book for the first time when Section 4 was amended and two provisos were incorporated reading as under:
"Provided that no Trade Union of workmen shall be registered unless at least ten percent or one hundred of the workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union on the date of making of application for registration:
Provided further that no Trade Union of workmen shall be registered unless it has on the date of making application not less than seven persons as its members, who are workmen engaged or employed in the establishment or industry with which it is connected."
20. Having said so, we must also observe that the Form 'A' prescribed for making application is a product of subordinate legislation. It cannot override the provisions of the Act as such any discrepancy while giving details in the ::: Downloaded on - 09/06/2013 14:22:19 ::: 15 prescribed form cannot invalidate the registration of the Trade Union.
21. At this juncture, it will not be out of place to mention that the respondent Union has neither suppressed any information nor furnished wrong or misleading information for obtaining registration as such it could not have been cancelled by the Registrar of the Trade Unions. The view taken by the Industrial Court is reasonable and plausible view. No fault can be found with the same.
22. The Petition is without any substance. The same is liable to be dismissed. In the result, rule is discharged with no order as to costs.
(Mrs. Mridula Bhatkar, J) (V. C. Daga, J) ::: Downloaded on - 09/06/2013 14:22:19 :::