Calcutta High Court
Philips Worker'S Union And Anr. vs Registrar Of Trade Unions And Ors. on 12 August, 1988
Equivalent citations: (1994)IIILLJ1159CAL
JUDGMENT Yusuf, J.
1. The appeal and the stay application are directed against the order, dated 2 March, 1988, passed by his Lordship Justice Sri Suhas Chandra Sen dismissing the writ application of the appellants. Briefly the case of the appellants writ petitioners is as under:
2. The appellant 1 is a trade union of workers of the company, Philips India, Ltd., (now known as Pieco Electronics and Electricals, Ltd.), at Calcutta, and the said appellant 2 is the president of the factory unit of the said union. The Philips Workers' Union was registered under the Trade Unions Act, 1926, some 33 years back after framing a constitution and rules as required under the said Act, the registered number being 3086. The mode and manner of the election of the members of the central executive committee have been provided under Rule 8 of the constitution as required by Section 6(h) of the Trade Unions Act. There are two branches of the union, namely, factory unit and commercial unit, and for transacting the business there are two executive committees, one each for the factory unit and the commercial unit. It is stated in the petition that the union has a long heritage of political neutrality but recently one Sri Sunil Ghosh and his associates of the factory unit had been campaigning for the affiliation of the union to CITU. The election of the executive committee of the factory unit was held in 1986 for the year 1986-87. The appellant 2 and his associates did not put up any candidate against Sri Sunil Ghosh and Sri Pradip Mukherjee who filed nominations for the posts of secretary and treasurer respectively, but before the polling date which was fixed on 29 April, 1986, Sri Ghosh and Sri Mukherjee and some of their followers withdrew their candidatures on 22 April, 1986. All other candidates were elected uncontested but due to the aforesaid withdrawal the posts of secretary and treasurer and some members remained vacant even after the election. The newly elected executive committee after obtaining legal opinion filled up by co-option all the vacant posts at the general meeting of members of the factory unit held on 15 September, 1986, where 730 out of 1200 members of the factory unit were present. Thereafter the executive committee of the factory unit submitted a charter of demands to the management of Philips India, Ltd., for increase of pay and allowances to workmen and this angered the faction led by Sri Ghosh. Ultimately the executive committee succeeded in persuading the management to accept most of its demand and this infuriated the opposite camp very much.
3. On or about 6 March, 1987 the appellant 2 received a Memo No. 215/TUR, dated 2 March, 1987, from the Deputy Registrar of Trade Unions, West Bengal, respondent 2, regarding affiliation of the rules and constitution of Philips Workers' Union. The said memo, inter alia, stated as under:
"From a perusal of the joint representation, dated 2 and 7 January, 1987, from some members of your union it appears as below:
(1) That in violation of Clause (9) of the rules and constitution of your union you co-opted executives in the posts of secretary and treasurer.
(2) That in the last union election held on 29 April 1986, more than two-thirds of the posts of the executive members from the Salt Lake Factory remained vacant.
(3) That the 32nd annual general meeting held on 15 September 1986, was not convened by the duly elected secretary as alleged by the workmen's representation, dated 3 December 1986, addressed to the president.
(4) That the annual general meeting of the year 1986 was not held according to the rules and constitution of the union."
This memo also referred to a registered letter sent to appellant 2 being Memo No. 99/TUR, dated 20 January 1987, by which appellant 2 was asked to appear before Sri R.N. Mitra. Inspector of Trade Unions, on 31 January 1987, at 11.30 a.m. for a discussion which was not complied with. Respondent 2 asked appellant 2 to appear before the said Inspector on 13 March 1987, with the relevant papers in connection with the annual general meeting and election of office bearers of the union and also the minute book and certified copies of rules and constitution failing which necessary steps would be taken including the cancellation of registration of the union under Section 10(b) of the Trade Unions Act.
4. In reply to the memo, dated 2 March 1987, received from the Deputy Registrar of Trade Unions, appellant 2 wrote directly to the Registrar of Trade Unions on 12 March, 1987, stating, inter alia, that no letter bearing the memo and date as stated in the letter of the Deputy Registrar was received earlier nor any copy of the alleged representation of some members, dated 2 January 1987, and 7 January 1987, were supplied to him, as such this appellant is in dark about the so-called members who have grievances and also what actually their grievances are. It was further contended that in the Trade Unions Act there is no provision whereby the Registrar and the Deputy Registrar can decide and adjudicate any dispute between the members of a trade union regarding observance and non-observance of any rule of the constitution of that trade union and have no jurisdiction whatsoever to act beyond Section 10 of the Trade Unions Act. It was further stated there that it is only the Registrar and not the Deputy Registrar who can move under Section 10 of the Act. Appellant 2 further stated that no default of any nature has been committed under Section 10(b) of the Act and, as such, the threat of the Deputy Registrar for the cancellation of the registration of the union is uncalled for and without jurisdiction. The factory unit of the Philips Workers' Union is only an integral committee of the Philips Workers' Union and, as such, there is no registration at all so far the factory unit is concerned. The different units are governed by the constitution and the rules of the Philips Workers' Union. The general body of the members of factory unit held a meeting on 15 September 1986, and approved the co-option by majority vote and we do not find any provisions in the constitution by which co-option could not take place. It was alleged in the letter that the motive appears political and the Deputy Registrar acted with bias and his action suffers from non-application of mind.
5. By a fresh memo No. 259/TUR, dated 17 March 1987, the Deputy Registrar of Trade Unions again wrote to appellant 2 as under:
"In continuation of this office memo No. 215/TUR, dated 2 March, 1987, in regard to the above, I am to say that it appears from an examination of rules and constitution of your union that in terms of Clause (9) of the rules, the president, the vice-president, the secretary and the treasurer shall be elected. Therefore, there is no scope whatsoever for co-option of executives for filling up the vacancies in the above-noted posts. It has to be pointed out that such co-option of executives by your union has resulted in the violation of Section 6(h) of the Trade Unions Act, 1926.
In the circumstances, you are requested to show cause within two months from the date of receipt hereof as to why the registration of your union should not be cancelled as per provisions of Section 10(6) of the Trade Unions Act, 1926, for having willfully violated Clause (9) of the rules and constitution of your union framed in accordance with the provision of Section 6(h) of the Trade Unions Act, 1926. Should you have any explanation to offer you can submit the same in writing within the aforesaid period. If, however, you want to make an oral submission you can meet the Registrar of Trade Unions, West Bengal, at his chamber at New Secretariat Buildings (11th floor), Calcutta-1, on 20 April 1987, at 12 Noon.
Copies of representations received so far regarding the above matter are enclosed for your information and perusal".
6. This memo was received by appellant 2 on 4 April 1987. In response to the memo of 17 March 1987, appellant 2 wrote to the Registrar of Trade Unions on 20 April 1987, requesting him to allow a fortnight's time as he had some personal difficulties on 20 April 1987 and would not be able to appear before him but nothing was heard from the Registrar thereafter. By letter, dated 2 June 1987, appellant 2 gave a comprehensive reply to the Registrar of Trade Unions in respect of the Deputy Registrar's memo, dated 17 March 1987, wherein he refuted all the allegations made in the said memo and also dealt with in detail with the six documents which the Deputy Registrar annexed with the memo, dated 17 March 1987, including the xerox copy of a document containing signatures consisting of 22 sheets. This letter was, in fact, the demand of justice.
7. Subsequently, the Senior Personnel Manager of the Pieco Electronics and Electricals Ltd., 7, Justice Chandra Madhab Road, Calcutta, received a communication bearing Memo No. 553/TUR, dated 4 June 1987, from the Deputy Registrar of Trade Unions, West Bengal, to the following effect:
"Sub : Cancellation of registration of Philips Workers' Union. (Regd. No. 3086) Sir, Please note that in pursuance of this office notice No. 259/TUR, dated 17 March 1987 (a copy of which was sent to you vide this office letter No. 362/TUR/LC, dated 21 April 1987), the registration of Philips Workers' Union was cancelled by the Registrar of Trade Unions, West Bengal, vide his order No. 549/TUR, dated 4 June 1987.
Yours faithfully, (Sd.) S.R. Biswas, Deputy Registrar of Trade Unions, West Bengal".
8. But no communication of the aforesaid nature was sent to the Philips Workers' Union and the appellants came to know about the cancellation of the registration of their trade union only from the Senior Personnel Manager of the Pieco Electronics and Electricals Ltd.
9. Sri Saktinath Mukherjee, the learned counsel appearing for the appellants-petitioners, submitted that the Philips Workers, Union have two different units, namely, the factory unit, and the commercial unit, and the Deputy Registrar by his two impugned memos only referred to the election of the factory unit, but whereas by order, dated 4 June 1987, the registration of the parent body, i.e., the Philips Workers' Union, has been cancelled under the Act. According to Sri Mukherjee the two units are the internal units of the Philips Workers' Union and the Registrar and the Deputy Registrar acted in utter violation of jurisdiction under extraneous political consideration in issuing the show cause notice as well as the order for the cancellation of the registration of the union. He submitted that in the impugned memo, dated 17 March 1987, there was no allegation with regard to the Philips Workers' Union whereupon a notice proposing the cancellation of the registration of the entire union can lie and the issuance of the impugned two memos under Section 10(b) itself is a nullity in the eye of law. He further contended that there was no violation of Clause (9) of the constitution as there was no bar to fill in the vacant seats by co-option.
10. Sri Mukherjee strongly contended that Section 6 of the Trade Unions Act only provides for the formalities to be adopted to have the union registered under the Act, unless the provisions of Section 6 are complied with a union cannot be entitled to be registered. Provisions of Section 10 of the Act provide the manner by which the Registrar can withdraw or cancel the registration of a trade union and in this connection he emphasised very much the requirements of Section 10(b) beyond which the Registrar cannot act. Sri Mukherjee has also relied upon a decision in the case of Ram and Shyam Company v. State of Haryana and Ors. .
11. Sri Sen Gupta, appearing for some of the workers, supported the contentions of Sri Mukherjee and further submitted that the Deputy Registrar has no jurisdiction and is not competent to issue any show cause notice according to Section 10 of the Act. Such action on the part of the Deputy Registrar is perverse, without jurisdiction and ab initio void.
12. Sri Pal, appearing for the State respondents, i.e., the Registrar and the Deputy Registrar of the Trade Unions, West Bengal, vaguely attempted to justify the action of the State-respondents in issuing show cause notice and cancelling the registration of the trade union. He contended that if aggrieved the appellant-petitioners could have preferred an appeal under Section 11 of the Act instead of moving the writ jurisdiction. He produced the records of the case which reveals the way the matter was dealt with by the authorities and we shall deal with it later on. Sri Ukil, appearing for some of the private respondents, supported the cancellation order of the Registrar.
13. We have considered the facts and circumstances of the case and the submissions made by the learned counsel for the parties. It appears to us from the perusal of the records produced by the learned advocate for the State that the Deputy Registrar of Trade Unions, West Bengal, from the very beginning moved against the Philips Workers Union with a preconceived notion and with mala fide motive aided and abetted by the Registrar of Trade Unions, West Bengal. The two memos, dated 2 March 1987, and 17 March 1987, contained an open threat that the registration of the union would be cancelled. From the record it appears that as far back as on 13 February 1987, much before the issuance of the first impugned memo, dated 2 March 1987, to appellant 2 there appears a note by the Registrar which is quoted as under:
"Let us proceed strictly according to the law even if it means taking steps for cancellation of the union..."
14. We find that in the notesheet of the record "the president of the union" has always been referred to and not the president, Philips Workers' Union (Factory Unit) and the Registrar in his note of 11 May 1987, writes that "the president of the union" did not appear. We further find that the Registrar in his note, dated 4 June 1987, again refers as "the president. Philips/Workers Union" whereas both the impugned memos were addressed to the president, Philips workers' Union (Factory Unit) and not to the president of the Philips Workers' Union as such. It is crystal clear that the Philips Workers' Union (Registered No. 3086) is the union registered under the Trade Unions Act and not the factory unit or the commercial unit which are the two wings of the main body having no independent status of their own. One rails to understand how the respondents 1 and 2 can take steps against the parent body, i.e., the Philips Workers' Union which is not served with any show cause notice and how the registration of this parent body can be cancelled. This shows the way how the respondents 1 and 2 moved against this particular union at the instigation from certain quarters. Even for argument's sake if it is accepted that there were some irregularities in the factory unit of the Philips Workers' Union, on that count the parent body's registration should not have been cancelled under any circumstances.
15. We agree with the submission of Sri Mukherjee that Clause (9) of the constitution of the Philips 'Workers' Union which deals with executive committee of the units does not specify that the casually vacant seats should be filled in by election. The relevant provision in Clause (9) runs as follows:
"If any seat of executive member is found to be lying vacant in any unit after the election, the new unit of the committee may, however, fill up the vacant seat by selection according to suitability".
As such the co-option in the nine vacant posts of the executive members and the posts of the secretary and the treasurer was in accordance to Clause (9) of the said constitution.
16. The action taken by respondents 1 and 2 against appellant 1, the Philips Workers' Union, under Sections 6 and 10 of the Trade Unions Act is patently wrong, without jurisdiction and illegal. The provisions of Sections 6(a) to 6(j) of the Act are required to be complied with by a trade union at the time of the registration under the said Act. Clauses (a) to (j) of Section 6 provide the broad principles which must be incorporated compulsorily in the constitution and rules of a trade union. Once a trade union is registered under the Act its certificate of registration cannot be cancelled, save and except under the provisions of Section 10 of the Act which is quoted as follows:
"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 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 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,"
But we find that in this particular case none of the conditions contained in Section 10(b) has been violated by the Philips Workers' Union bearing Registration No. 3086. If at all there was any dispute such a dispute arose only in the factory unit.
17. In the record there appears 3 paged unsigned typed note in which the entire emphasis has been made on the violation of Clause (h) of Section 6 of the Trade Unions Act pointing out, inter alia, that any deviation from the manner of appointment of an office bearer of a trade union as laid down by the relevant rule of the trade union will be a deviation from the substantive provisions of the Trade Unions Act, i.e., Section 6(h) of the Act. The note concluded as under:
"In the aforesaid circumstances the registration of the Philips Workers' Union (Regd. No. 3086) was liable to be cancelled in terms of Section 10 of the Trade Unions Act, 1926".
The contents of this note indicate that it was prepared after the cancellation order has been issued.
18. In our opinion respondents 1 and 2 wholly proceeded with a wrong approach in the matter and made the parent body, i.e., the Philips Workers' Union as the target of their wrath. All the impugned memos were addressed to the president of the factory unit of the Philips Workers' Union and not to the president of the Philips Workers' Union. If there was any violation of constitution or rules on the part of the Philips Workers' Union then the president of the union ought to have been served with the notices. We fail to understand in such circumstances how the Philips Workers' Union itself can be penalised.
19. A perusal of the constitution of the 'Philips Workers' Union (Regd. No. 3086) reveals the fact that the union is combination of workers employed in Philips India, Ltd., in the district of Calcutta and in the State of West Bengal and it is called as Philips Workers' Union with head office at 249, Bepin Behari Ganguly Street, Calcutta, and the said union has two units, the factory unit and the commercial unit, with their offices at different places as indicated in the Clause (3) of the constitution. The central executive committee is the supreme body of the Philips Workers' Union and the central executive body is to be constituted according to Clause (8) of the constitution. Clause (9) specifically states that the administration of the two units of the union shall be carried on by the executive committee of the respective units which will be elected by secret ballots as per provision made in the constitution. We find that there is no bar in Clasue (9) to fill in the vacancy in any unit by co-option. If any seat of executive committee member is found to be lying vacant after the election, the new committee of the unit may, however, fill up the vacancy by selection according to suitability. There is a proviso which says that the posts of president, vice-president, secretary and treasurer shall be elected by all the eligible members of the respective units through secret ballot. In this particular case the election took place on 29 April 1986, and the last date of withdrawal of candidature was 22 April 1986. Sri Sunil Ghosh and some of his associates suddenly withdrew their candidatures on 22 April 1986, and, as such, nine posts of ordinary members of the executive committee and posts of secretary and treasurer all of the factory unit, remained vacant even after the election. Those nine vacant posts of ordinary members of executive committee and those of the secretary and treasurer were filled up by co-option at the general meeting of the members of the factory unit on 15 September 1986, with the approval of the general members by majority of 643 to 70 votes. We do not find any bar in the constitution that if the general election of the executive committee of any unit takes place and some seats remained vacant in the executive committee because of any reason then the same cannot be filled in by co-option. Secret ballot for the office bearers as mentioned in Clause (9) obviously refers to the procedure to be adopted at the election of the executive committee of the unit and not to fill in any casual vacancy which might occur after such election is held. There is no provision in the constitution which indicates even faintly that once the general election of any unit is held and the office bearers are elected but subsequently if there is any vacancy in the posts of president, vice-president, secretary and treasurer then also secret ballot shall be a must. In the absence of any such provision in the constitution of Philips Workers' Union we hold that the co-option was strictly in accordance to constitution and there was no illegality in it.
20. The plea of the State is that if the appellants were aggrieved with the notices and the order of respondents 1 and 2, they ought to have first preferred an appeal as provided under Section 11 of the Trade Unions Act. This argument has no leg to stand on. The Supreme Court in the case of Ram and Shyam Company v. State of Haryana and Ors. , has held that where any order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 of the Constitution and it does not oust the jurisdiction of the High Court, and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. The instant case is much more stronger than the case under reference. Under Section 11 of the Act the appeal of this matter lies in the High Court, may be a writ is not contemplated. The point raised is decided against the State Respondents,
21. We further hold that respondents 1 and 2 transgressed their jurisdiction in issuing notices by invoking the provisions of Section 10(b) of the Trade Unions Act and by cancelling the registration of the Philips Workers' Union (Regd. No. 3086). It further appears strange that respondent 2, who issued the cancellation order passed by respondent 1 even did not care to send the impugned order to the president of the Philips Workers' Union or to the president of its factory unit. Only a communication was made to the Senior or Personnel Manager of the Pieco Electronics and Electricals, Ltd., (formerly known as Philips India, Ltd.). One copy of the letter with a filled up postal acknowledgement due form addressed to the president of the Philips 'Workers' Union still lies un-issued in the record. It does not appear from the record that the Registrar applied his mind or noted reasons for the cancellation of the registration of the union. He did make up his mind on 13 February 1987, to cancel the registration and he did issue the order, dated 4 June 1987, without considering the show cause reply, dated 2 June 1987, which was duly received by him on the very same date. This is not only a case of non-application of mind but a reckless, motivated and vindictive act on the part of respondent 1. We accordingly set aside and quash the Memo No. 215/TUR, dated 2 March, 1987, and the Memo No. 259/TUR, dated 17 March 1987, as well as the Order No. 549/TUR, dated 4 June 1987, on the basis of which the registration of Philips Workers' Union (Regd. No. 3086) was cancelled by the Registrar of Trade Unions, West Bengal.
22. We take serious note of the manner in which the Registrar of Trade Unions behaved in dealing with this particular case and in forming an opinion much before issuing any show cause notice. There is substance in the submission of the learned counsel appearing for the appellants that both respondents 1 and 2 moved with mala fide motives under the influence of a particular ground of workers to derecognise the unions. We have noted the behaviour of Sri S. Roy, the Registrar of Trade Unions, West Bengal, when he attended the Court and replied to the questions of the Court in a casual manner with utter disregard to the majesty and dignity of the highest judiciary of the State. To the questions put to him by the Court, he was smiling and answering in an irresponsible way. He being a high official of the Government of West Bengal ought to know the code of conduct of presenting himself before a Court of law and that, too, before the highest judiciary of the State. Sri Pal appearing for the State was quite embarrassed by the way Sri Roy behaved and Sri Pal did personally express regret though not at the instruction or initiative of the Registrar. An official like Sri Roy deserves to be dealt with severely for his love of injustice and partiality in dealing with a case and also for his lack of respect to the judiciary. Such officers cannot be of any helpful use to the State Government in discharging their duties and responsibilities. The cat was out of the bag when the Registrar disclosed in the Court that he consulted the learned Government Pleader, Sri S.C. Ukil in this matter. But we find that Sri Ukil is not appearing for the State in this matter but espousing the cause of some workers supporting the cancellation of the registration of the Philips Workers' Union. This smells an unholy alliance to dislodge the Philips Workers' Union.
23. The appeal succeeds and the application is disposed of accordingly. The order under appeal is set aside and the writ application is allowed.
24. Filing of paper book is dispensed with. Undertaking is discharged.
25. While expressing, our displeasure of Sri Roy's conduct of the Court and the way he harassed the appellants we are inclined to saddle him with costs assessed at 30 G.Ms. This amount shall be paid personally by Sri Roy, respondent 1, and not from the State exchequer, within 14 days to the St. John Ambulance Association, Calcutta. The matter will appear on 5 September 1988, when Sri Roy is directed to produce the receipt of payment of the said amount,
26. In view of the judgment and order passed today, the Philips Workers' Union will be entitled to exercise all the legal rights including the operation of bank ac counts.
27. All parties shall act on the signed copy of the minutes of the operative part of the order and judgment on usual undertaking.
Ajit Kumar Sengupta, J.
28. I agree.