Chaudhary Raj Kumar Singh And Anr. vs State Of U.P. And 3 Others
2015 Latest Caselaw 179 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court							      	       AFR
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 264 of 2015
 

 
Appellant :- Chaudhary Raj Kumar Singh And Anr.
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Mamta Singh,Ravi Kant
 
Counsel for Respondent :- C.S.C.,Anoop Trivedi
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Manoj Kumar Gupta,J.

The appellants in the present special appeal have sought to question a judgment and order passed by a learned Single Judge, rejecting a challenge to an order of the Deputy Registrar of Trade Unions, Gautam Budh Nagar dated 27 November 2014. By his order dated 27 November 2014, the Registrar of Trade Unions accepted on the record a change notified in Form-J in respect of the constitution of the office bearers of the Trade Union following the elections. The learned Single Judge has held that the Registrar, under the provisions of Section 28 of the Trade Unions Act, 19261, does not perform a judicial or quasi judicial function, but merely records the statement furnished showing all changes of office bearers made by Trade Union during the year. Consequently, it was held that if the appellants seek to dispute or challenge the legality of the elections which were held, they would have to file a civil suit.

Learned senior counsel appearing on behalf of the appellants has relied upon a decision of the Supreme Court in North Eastern Railway Employees Union & Ors. v. IIIrd Additional District Judge, Farrukhabad & Ors.2 in support of the proposition that the Registrar of Trade Unions is the authority charged with the duty of administering the provisions of the Act. Based on this observation, it was submitted that when a statement was submitted to the Registrar, he was duty bound to examine whether, prima facie, a change in the constitution of the office bearers was validly effected. The appellants dispute the legality of the elections which have been conducted by the contesting respondent, namely the fourth respondent, which is Noida Employees Association.

The powers of the Registrar in this regard are dealt with in Section 28 of the Act which relates to the filing of returns. Under Section 28 (1), a general statement has to be submitted annually to the Registrar duly audited of all receipts and expenditure of every registered Trade Unions for the relevant period. Under sub-section (2), together with the general statement, the Registrar has to be informed through a statement of all changes of office bearers made by Trade Union during the year to which the general statement refers. Sub-section (2) of Section 28 of the Act provides as follows:

"(2) Together with the general statement there shall be sent to the Registrar a statement showing all changes of office bearers made by the Trade Union during the year to which the general statement refers together as with a copy of the rules of the Trade Union corrected up to the date of the despatch thereof to the Registrar."

Sub-section (4) of Section 28 of the Act provides as follows:

"(4) For the purpose of examining the documents referred to in sub-sections (1), (2) and (3), and Registrar, or any officer authorized by him by general or special order, may at all reasonable times inspect the certificate of registration, account books, registers and other documents relating to a Trade Union, at its registered office or may require their production at such place as he may specify, in this behalf, but no such place shall be at a distance of more than ten miles from the registered office of a Trade Union."

The provisions of Section 28 (2) of the Act indicate that a statement showing all changes of office bearers made by the Trade Union during the year has to be sent to the Registrar together with a general statement containing receipts and expenditure during the year. Under sub-section (4), the Registrar is empowered to inspect annually the registers and other documents relating to a Trade Union for the purpose of examining the documents referred to in sub-sections (1), (2) and (3). Under Section 28, the Registrar does not possess an adjudicatory power to resolve election disputes. Undoubtedly, under sub-section (4) of Section 28, he has the power to inspect among other things, the registers and other documents relating to a Trade Union for the purpose of examining the documents which are referred to in sub-sections (1), (2) and (3). This, however, does not convert the function of the Registrar under Section 28 of the Act into that akin to a judicial or quasi judicial matter. Where the Act contemplated a specific role of the Registrar, specified powers have been conferred upon him such as in Chapter II relating to the registration of Trade Unions including in the matter of cancellation of a registration under Section 10 of the Act. Under Section 11 of the Act, 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 can file an appeal. In several States, State amendments have been made to the provisions of the Act. For instance, Section 28-1A which is a State amendment in Maharashtra, confers power upon the Industrial Court to decide a dispute as respect of whether or not any person is an office-bearer or member of a registered Trade Union. Such a power has not been conferred under the parent provisions of the Act and has been brought in by way of legislative amendments made by the State Legislature in Maharashtra. In any event, having due regard to the nature of the power which has been conferred upon the Registrar by Section 28, it is clear that he does not perform a judicial or quasi judicial function.

The judgment of the Supreme Court in North Eastern Railway Employees' Union (supra) was a case where a decision was rendered by the Allahabad High Court designating the General Manager, Railways as the authority to hold elections of a Trade Union and the issue before the Supreme Court was whether this direction should be substituted by the Registrar of Trade Unions. The Supreme Court observed that the Registrar of Trade Unions is the authority charged with the duty of administering the provisions of the Act and the High Court was obviously in error in designating the General Manager, Railways as the authority to hold elections of the Trade Union. This direction of the High Court was consequently modified. The right to contest elections is, it is well settled, not a common law right, but of a statutory nature. The Supreme Court held that the direction which was issued by this Court, designating the General Manager, Railways as the authority to hold elections of the Trade Unions, was contrary to law and that was set aside. The provisions of Section 28 of the Act did not fall for consideration. There can be no doubt about the principle of law that the Registrar of Trade Unions is the authority which is vested with the duty of administering the provisions of the Act. The statutory powers of the Registrar are those, which are specifically conferred upon him. When elections are held to the office bearers of a Trade Union, the Registrar has not been empowered under Section 28 of the Act to decide electoral disputes. In the absence of any other specific remedy, the remedy of a civil suit would be available having due regard to the provisions of Section 9 of the Code of Civil Procedure, 1908 under which, the ordinary civil court has jurisdiction to decide all civil disputes, save and except those which are excluded from the jurisdiction of the civil court expressly or by necessary implication.

The view which has been taken by the learned Single Judge is consistent with the earlier judgments of the Division Benches of this Court. In Girjashanker Shukla & Ors. v. Hindustan Aeronautics Ltd. Amethi, Sultanpur & Ors.3, the Division Bench observed as follows:

"15.... The power of Registrar under the Trade Unions Act cannot be extended for adjudicating election disputes. In case any person feels aggrieved by the election of the Executive, or is aggrieved by the exclusion or non-inclusion as a member he would have to seek his remedy in the appropriate forum as may be provided under the law namely; bye laws or the Rules thereof."

The same view was taken in an earlier decision in North Eastern Railway Mazdoor Union, Rail Mazdoor Bhawan, Gorakhpur v. Registrar of Trade Unions, Kanpur & Ors.4 The said decision has been followed by a learned Single Judge of this Court in North Eastern Railway Employees' Union & Ors. v. Deputy Labour Commissioner/Deputy Registrar of Trade Unions, Gorakhpur and Ors.5, where it was held as follows:

"13. A perusal of analysis of the provisions of the Trade Unions Act clearly demonstrates that the rights conferred under the Trade Unions Act for holding elections is subject to the aforesaid Act and is neither a fundamental right nor a common law right. A close analysis of the aforesaid provisions further demonstrates that the elections held pursuance to the scheme of the Trade Unions Act are not subject to any challenge under any provisions of the Statutes, namely, Trade Unions Act. In other words, from the scheme stated above, it is clear that the said statute does not provide any machinery for challenging the elections held under the said Act and the Registrar has absolutely no right, authority or jurisdiction to adjudicate upon any elections set up by any of the rival faction or any other person. The power of the Registrar has been held by this Court and the other High Courts referred to above in the preceding paragraphs are purely administrative to register the change of the office-bearers for the purpose and communication with the office-bearers only for administrative purpose in order to ensure the compliance of the provisions of the Trade Unions Act and Rules as has been observed by the Division Bench of the Patna High Court. The Registrar of the Trade Unions Act has not been conferred with the power for holding elections of the Trade Unions, superintendence of the elections of the Trade Unions of conduct of the elections of the Trade Unions. This view of mine finds support from the observation of the Apex Court in the case in AIR 1982 SC 983:

".............................right to elect, fundamental though it is to democracy is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of Statute, there is no right to elect, no right to be elected and no right to dispute election. Statutory creations they are, and therefore, subject to the statutory limitation........................"

14.In this view of the matter, right to dispute an election of a Trade Union since has not been conferred under the Statute, namely, Trade Unions Act, remedy under the original civil law, i.e., filing of civil suit is the only remedy and since that remedy is available, this Court in exercise of power under Article 226 of the Constitution of India will not interfere with either register in the change of office-bearers or refusal to register the change of the office-bearers by the Registrar of the Trade Union in Form 'J'."

For these reasons, we are of the view that the learned Single Judge was correct in relegating the appellants to the remedy of a civil suit where all disputed questions of fact in regard to the validity of the elections can be resolved. The exercise of writ jurisdiction under Article 226 of the Constitution was not warranted. However, we leave it open to the appellants to seek recourse to the remedy of a civil suit. We clarify that if the appellants do so, nothing contained in the order of the learned Single Judge shall amount to any expression on merits.

The special appeal is, accordingly, dismissed. There shall be no order as to costs.

Order Date :- 28.4.2015

RKK/-

				(M.K. Gupta, J)                  (Dr. D.Y. Chandrachud, CJ)
 
Chief Justice's Court
 

 
Civil Misc. Delay Condonation Application No.112085 of 2015
 
In re:
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 264 of 2015
 

 
Appellant :- Chaudhary Raj Kumar Singh And Anr.
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Mamta Singh,Ravi Kant
 
Counsel for Respondent :- C.S.C.,Anoop Trivedi
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Manoj Kumar Gupta,J.
 
	There is a delay of five days in filing the special appeal, which is condoned in the interest of justice since sufficient cause has been shown in the affidavit filed in support of the delay condonation application.
 
	The delay condonation application stands disposed of. There shall be no order as to costs. 
 
Order Date :- 28.4.2015
 
RKK/-
 
				(M.K. Gupta, J)                  (Dr. D.Y. Chandrachud, CJ)