Bombay High Court
Under The Trade Unions Act vs The Registrar Of Trade Unions on 27 November, 2013
Bench: V.M. Kanade, M.S. Sonak
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dss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.1556 OF 2013
National Aviators Guild )
Being a Trade Union, registered )
Under the Trade Unions Act, bearing )
Registration No.17/10437, having its )
Office at 601, Corolla Jewel, )
Marol Military Road, Marol, )
Andheri (E), Mumbai-400 059 ) .. Petitioner
Vs.
1. The Registrar of Trade Unions
ig )
Kamgar Bhavan, C-20 E-Block )
Bandra Kurla Complex, Bandra (E) )
Mumbai-400 051. )
2. The Deputy Registrar of )
Trade Unions, Kamgar Bhavan, )
C-20 E-Block Bandra Kurla Complex, )
Bandra (E), Mumbai-400 051. )
3. Mr. M.V. Palve )
C/o. "Kamgar Bhavan", )
C-20 E-Block Bandra Kurla Complex, )
Bandra (E), Mumbai-400 051. )
4. The State of Maharashtra, )
Mantralaya, Mumbai-400021 ) .. Respondents
5. Jet Airways Ltd. )
S.M. Centre, Andheri-Kurla Road, )
Andheri (E), Mumbai-59 ) .. Intervener
(to extent of allegations against it)
***
Mr. Sanjay Singhvi i/b. Bennet D'costa for the Petitioner.
Mr. J.S. Saluja, AGP for Respondent Nos.1 to 4.
Mr.D.J. Khambatta, Sr.Advocate with Mr. Abhay Kulkarni i/by
Gagrats for Intervener-Respondent No.5.
***
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CORAM : V. M. KANADE, AND
M. S. SONAK, JJ.
DATE : NOVEMBER 27, 2013.
JUDGMENT: (PER M.S. SONAK,J.)
1] Rule. Rule is made returnable with the consent of all the
parties forthwith.
2] The Petitioner, a Trade Union registered under the Trade
Unions Act, 1926 (said Act) comprising about 117 Pilots of Jet
Airways (India) Limited-Respondent No.5 challenges the order dated
15th April 2013 passed by the Industrial Tribunal (Appellate Authority
under Section 11 of the said Act), except to the extent, it sets aside
order dated 11th November 2009 passed by the Registrar of Trade
Unions cancelling the Petitioner's registration. The order dated 15 th
March 2009 proceeds to remand the matter to the Registrar once
again to determine whether registration had been validly granted and
during pendency of such determination suspends the registration
and restrains the Petitioner from raising any industrial disputes with
Respondent No.5.
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3] Before we advert to the facts and circumstances in which the
aforesaid challenge arises, we must observe that this case is a
classic illustration of how the authorities constituted under the said
Act, who are enjoined to facilitate the registration of Trade Unions
and safeguard the rights of its members, frustrate this purpose and
create unwarranted hurdles to prevent a Pilot's Union from 'taking off'
by 'grounding' them in the quagmire of litigation. This is
notwithstanding the statement of the objects and reasons of the said
Act, enacted way back in the year 1926 providing that a bona fide
Trade Union which has provided adequate safeguards for the rights
of its members be entitled to registration. This is notwithstanding that
Article 19 (1) (c) of the Constitution of India guaranteeing
fundamental right to every citizen to form an Association and Union,
subject only to reasonable restrictions as contemplated by Article
19(4) of the Constitution of India.
4] In order to evaluate the challenges raised in this petition,
reference to the factual settings, in which the same arise is
necessary.
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5] On 10th June 2009, about 117 Pilots employed with
Respondent No.5 and amongst other matters resolved to form and
register an Union under the said Act. In pursuance of the same, an
application in the prescribed form came to be made on 13th July 2009
to the Deputy Registrar of Trade Unions (Respondent No.2) to
register a trade Union in the name of "Indian National Aviator's
Guild". There is no dispute in the present case, that the term
"Registrar" as defined under Section 2(f) of the said Act, means a
Registrar of Trade Unions appointed by the appropriate Government
under Section 3, and includes any Additional or Deputy Registrar of
Trade Unions.
6] Respondent No.2 by letter dated 23rd July 2009 called for
further particulars to be submitted by 2nd September 2009 for the
purposes of registration of the Petitioner Union. It is the case of the
Petitioner Union that since such particulars were readily available,
Captain Sam Thomas, Joint Secretary and authorized representative
of the Petitioner Union submitted the same in the office of
Respondent No.2 on 24th July 2009 itself.
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7] Upon scrutiny on the said date, one of the main objection
raised to the registration was that a certain G.R. dated 22 nd
December 2005 barred the use of the word 'Indian' in the name of
any Trade Unions seeking registration. Therefore, Captain Sam
Thomas armed with Resolution No.8 dated 10 th June 2009, which
conferred upon Joint Secretary a specific power to amend the
Constitution and other documents as may be necessary for the
purposes of registration, deleted word 'Indian' appearing in the name
of the Trade Union thereby restricting the name to "National Aviator's
Guild". There is a record of this compliance in the notings made in
the office of Respondent No.2.
8] The notings in the office of Respondent No.2, which now are a
part of the record in this proceeding, also make a reference to some
additional matters, styled on occasions as 'deficiencies' or as
'objections' or as 'conditions' under item Nos.2,9,10,11,12 and 13 to
which detailed reference shall be made in the course of this
judgment. There is a further noting made on 24th July 2009 itself that
"Regn. Cert. be issued to the Union (subject to No.2,9,10,11,12 and
13)". The records/notings also bear out that registration certificate in
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terms of Section 9 of the said Act came to be issued to the Petitioner
Union on 24th July 2009.
Section 9 of the said Act provides that the Registrar, on
registering a Trade Union under Section 8, shall issue a certificate of
registration in the prescribed form which shall be 'conclusive
evidence that the Trade Union has been duly registered under this
Act'.
9]
On 6th August 2009, the Registrar of Trade Union (Respondent
No.1) issued a show cause notice as to why the registration be not
cancelled as 'many shortcomings' were noticed in the matter of grant
of registration. The Petitioner furnished response dated 10 th August
2009. Expressing dissatisfaction with such response, Respondent
No.1 issued yet another show cause notice dated 15 th September
2009, this time invoking the provisions of Section 10 of the said Act,
which permits cancellation of registration interalia where the
Registrar is satisfied that the certificate has been obtained by 'fraud
or mistake'. The Petitioner submitted response on 29 th September
2009 alongwith clarification letter dated 22.9.2009 from Captain D.
Balaraman, General Secretary of the Petitioner Trade Union to the
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effect that all signatures in the Constitution are truly his and the
charge of discrepancy in signatures being one of the proposed
grounds for cancellation of registration be put to rest completely.
10] It appears that the Petitioner also preferred Writ Petition (L)
No.2019 of 2009 questioning the show cause notices, which petition
was however dismissed by this Court by order dated 5 th October
2009 , on the ground that the same was premature since the matter
was at the stage of issuance of show cause notice itself.
11] Respondent No.1, thereafter, by order dated 11th November
2009 ordered cancellation of registration of the Petitioner Trade
Union upon grounds, which have been usefully enumerated by the
Industrial Tribunal in the impugned order dated 15 th April 2013. The
same are as follows:
"i] That the union sought pre-ponement of the date
of scrutiny of the application and this amounted to
unseemly haste;
ii] The Dy. Registrar issued the registration
certificate subject to compliance of certain objections
raised by the dealing clerk to the complained within
future;
iii] When the office of the Registrar required the
name of the union to be modified by deleting the word
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"Indian" the same was carried out by one of the
authorised office bearers, i.e., the Jt. Secretary, whilst
the General Secretary was also required to endorse
the same;
iv] There was a discrepancy in the signature of
captain Balaraman whose explanation owning up to
all of them he did not accept.
v] The President Mr. Balaraman had authorized
Mr. R.D. Jadhav to collect the Constitution copy from
the office of the Registrar but the same did not
contain the signature of Mr. R.D. Jadhav."
12] The Petitioner thereupon preferred writ Petition No.309 of
2010 before this Court questioning the order dated 11 th November
2009 made by Respondent No.1. However, this Hon'ble Court
declined to entertain the said Petition by its order dated 18 th February
2010 after noting that the Petitioner had an alternate remedy by way
of approaching the Industrial Tribunal under Section 11 of the said
Act and granted liberty to the Petitioner to avail such alternate
remedy.
13] Upon the Petitioner preferring an appeal before the Industrial
Tribunal within a period of 64 days from the date of order made by
this Court in Writ Petition No.309 of 2010, the Industrial Tribunal vide
order dated 29th May 2010, declined to condone delay of about 90
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days in preferring the appeal and on that basis refused to entertain
the Petitioner's appeal.
14] The Petitioner was once again constrained to prefer Writ
Petition No.4742 of 2010 in this Court, which petition was allowed by
judgement and order dated 28th September 2010. The application
seeking condonation of delay was allowed and directions issued to
the Industrial Tribunal to dispose of the appeal expeditiously. In the
judgment and order dated 28th September 2010, the Division Bench
of this Court observed that :
"the approach of the Industrial Court in rejecting the
application for condonation of delay is grossly
erroneous. When the Petitioner approached this
Court in Writ Petition No.309 of 2010, the Petition
came to be rejected solely on the ground that the
Petitioner has an alternate statutory remedy of appeal
under Section 11 of the Act and this order was
passed on 18th February 2010. The Industrial Court
has noted in the impugned order that the appeal was
filed within 64 days from 18th February,2010 and even
if it is presumed that Regulation 9 of the Bombay
Rules was applicable in the instant case, the appeal
was filed within 90 days. When this Court has
rejected the Petition solely on the ground that a
statutory remedy of appeal was available and such
liberty was granted to the Petitioner, in all fairness,
the Limitation period ought to have been counted by
the Industrial Court from 18th February, 2010 unless
this Court had directed to file the appeal within a
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specific period. Solely on this ground the Petitioner
must succeed before us and we need not examine
other grounds of challenged raised by Mr. Singhvi."
15] Once decks were cleared for adjudication in appeal, the
Tribunal by order dated 24th January 2011 rejected the application
made by Respondent No.5 for intervention and by order dated 11 th
April 2011 stayed Registrar's cancellation order dated 11 th November
2009 pending adjudication in appeal. By consent, however, Writ
Petition No.5406 of 2011 preferred by Respondent No.5 was
disposed of by an order dated 21st December 2011 permitting
Respondent No.5 to intervene in the pending appeal only for the
limited purpose of refuting the allegations made by the Petitioner
Union against them in the reply to show cause notice and memo of
appeal. Directions also given to be issued to the Tribunal for
expeditious disposal of the appeal.
16] Notwithstanding the limited intervention rights, Respondent
No.5 in its reply purported to defend the Registrar's cancellation
order dated 11th November 2009 on merits. Therefore, the Tribunal
by order dated 4th April 2012 directed Respondent No.5 to effect
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necessary amendments in its reply so as to bring some in accord
with the directions issued by this Court in its order dated 21 st
December 2011 (supra). As the amended reply dated 5 th May 2012
also suffered the same fate, the Petitioner moved for striking of
defence and the Tribunal made an order dated 6th October 2012
directing that the amended reply be accepted only to the extent it
meets allegations leveled by the Petitioner Union against
Respondent no.5 and not any further.
17] The Tribunal, thereafter, consistent with the procedure
prescribed under Section 11(3) of the said Act made orders with
regard to production of documents and framing of issues. The
Petitioner examined Mr. D.Balaraman (President), Captain Sam
Thomas (Joint Secretary) and Mr. R.D.Jadhav, the person authorised
to collect the certificate of registration from the office of Respondent
No.2. The said witnesses were duly cross-examined on behalf of the
Respondents. On behalf of Respondent Nos.1 and 2, Mr. Raju
Jadhav dealing hand/clerk, who was present in their office on 24 th
July 2009 and had made some notings was cited as a witness.
However, Mr. Raju Jadhav was not examined for reasons which are
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not forthcoming.
18] Ultimately, the Tribunal passed an order dated 15th April 2013,
operative portion of which reads thus :
"1] The appeal filed by the appellant is partly
allowed.
2] The order passed by the Dy. Registrar dt.11th
November, 2009 is hereby quashed and set aside
only for the purpose to decide the points formulated
by this court in earlier paras of this order i.e.
(i) Whetherig the compliance of condition
Nos.2,9,11,12 and 13 are mandatory under the
provisions of Sec.6 of the Trade Unions Act?
(ii) Whether the appellant union has complied all
the formalities of meeting dt. 24th July, 2007 or 27th
July, 2007 ?
(iii) Whether the persons who have signed the
original copy of constitution of N.A.G. were present in
Mumbai on 24th July, 2009 in the office of the Dy.
Registrar of Trade Unions and whether they have
signed the copy of the Constitution ?
3] Since this court is mostly in agreement with the
observations of the Registrar, Trade Unions but only
for clarification purpose the order of the Registrar is
quashed and set aside. The rights of the appellant
union as a trade union is suspended during the
pendency of the application before the Registrar,
Trade Unions and the appellant union is also directed
not to raise any industrial matters pertaining to the
Industrial Disputes Act, 1947 with the management of
Jet Airways during the pendency of the matter before
the Registrar, Trade Unions except in the pending
matters, if any.
4] Parties are hereby directed to appear before
the Registrar, Trade Unions and to cooperate him to
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decide the application as early as possible.
5] The R & P of this proceedings alongwith two
registers i.e. Minute Book and Register of
Membership and Subscription in 'J' form produced by
the appellant before this court be sent to the office of
the Registrar for verification of the same while
deciding the application.
6] It is clarified that the order of the Registrar is
not set aside on the ground of illegalities committed
by the Registrar but only for the purpose mentioned in
the earlier paras and operative order of this order.
7] Parties to bear their own costs."
19] Mr. Singhvi, learned counsel appearing on behalf of the
Petitioner Union made the following submissions:
(i) There is no power of remand vested in the
Tribunal. Consequently, the order of remand is a nullity;
(ii) In any case, the facts and circumstances of the
present case did not warrant any remand;
(iii) The Registrar's cancellation order dated 11th
November 2009, was based upon five grounds, which
were extraneous, irrelevant and even bordering upon the
absurd. The Tribunal failed to critically examine the
validity or otherwise of such grounds. Therefore, there is
clear failure to exercise jurisdiction or in any case
exercise of jurisdiction with material irregularity;
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(iv) In passing the order dated 15th April 2013, the
Tribunal failed to pose to itself the correct questions,
failed to apply the correct legal principles, ignored
relevant materials on record and took into consideration
irrelevant and extraneous material. The findings
recorded by the Tribunal are vitiated by perversity. The
documentary and oral evidence tendered by and on
behalf of the Petitioner has not even been adverted to,
much less appreciated. The Tribunal, without record of
any reasons failed to draw adverse inference against
Respondent Nos.1 and 2 for withholding testimony of Mr.
Raju Jadhav. Instead, the Tribunal misdirected itself, both
in law as well as in fact by remanding the matter to
Respondent No.1 so as to enable Respondent No.1 to
examine Raju Jadhav, a clerk in his office,
notwithstanding the circumstance that Respondent No.1,
in the present case, is to be both the complainant and
the Judge. Again, the Tribunal also misdirected itself in
law and failed to exercise jurisdiction vested in it by
refusing to determine whether so called deficiencies
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related to any mandatory requirements or not. For all
these reasons, Mr. Singhvi submitted that the order of
the Tribunal, except to the extent it set aside the
cancellation order dated 11th November 2009 is
unsustainable and deserves to be set aside; and
(v) Finally, Mr. Singhvi submitted that the Tribunal,
having set aside the Registrar's cancellation order dated
11th November 2009, had absolutely no jurisdiction or
authority to direct the suspension of the Petitioner's
registration and to restrain the Petitioner from raising any
industrial disputes with the management of Respondent
No.5.
20] Perhaps in order not to precipitate matters, Mr. Singhvi learned
counsel for the Petitioner upon taking instructions from the office
bearers of the Petitioner present in the court, made a statement to
the effect that the Petitioner does not press the contention that the
cancellation order dated 11th November 2009 has been made 'at the
behest' of Respondent No.5. In view of this statement, there was no
occasion to hear Mr.Khambatta, learned senior counsel appearing
for Respondent No.5. As noticed earlier, this Court in its order dated
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21st December 2011 passed in Writ Petition No.5406 of 2011 had
permitted Respondent No.5 to intervene in the appeal proceedings
before the Tribunal 'only for the limited purpose of refuting the
allegations made against them in the reply to the show cause notice
and in the memo of appeal'.
21] Mr.Saluja, learned AGP appearing for Respondent Nos.1 to 4
defended both, the Registrar's cancellation order dated 11 th
November 2009 as well as the Tribunal's order dated 15 th April 2013.
He submitted that there was no clarity on the issue whether the
noted deficiencies were cleared by the Petitioner's representative on
24th July 2009 or 27th July 2009. There is no provision in the said Act
for issue of registration certificate 'subject to compliances'. The
registration was effected with undue haste and the Deputy Registrar
committed a mistake in issuing registration certificate without
satisfying himself as to whether or not the deficiencies as noted had
been cleared. Learned AGP submitted that the Tribunal was well
within its powers to order a remand and that no prejudice
whatsoever can be said to have occasioned the Petitioner Union on
account of such remand.
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22] Learned AGP also submitted that there was no compliance
with the mandatory requirements of Section 6 of the said Act,
inasmuch as no provisions were made for the payment of minimum
subscription by the members of the Petitioner Union as required by
sub clause (ee) of Section 6 and the registers in the prescribed form
evidencing such payment was not made available at the stage when
registration certificate came to be issued. This according to the
learned AGP is a fatality which goes to the root of the matter
rendering the registration certificate totally infirm.
23] The last submission of the learned AGP need not detain us
any further, for the following reasons:
(i) Such contention finds no reference either in the two
show cause notices dated 6th August 2009 and 15th
September 2009, or for that matter in the cancellation
order dated 11th September 2009. This position was
fairly conceded by the learned AGP. However, his
contention was that this is a matter which goes to the
root and therefore there can be no bar to raising the
same in the present proceedings. We do not agree. It is
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by now a settled position in law that when a statutory
functionary makes an order based on certain grounds its
validity must be judged by the reasons so mentioned
and cannot be supplemented by fresh reasons in the
shape of affidavit or otherwise. Otherwise, an order bad
in the beginning may, by the time it comes to Court on
account of challenge, get validated by additional
grounds later brought out1.
(ii) The proviso to Section 10 of the said Act provides for
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. This is a statutory recognition of
the principles of natural justice and fair play before
drastic action of cancellation of registration is effected.
To permit raising of such a ground, which found no place
in two show cause notices, would virtually permit
Respondent Nos.1 and 2 to act in breach of the proviso
1 Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi -(1978) 1 SCC 405
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to Section 10 of the said Act and consequently, in
breach of principles of natural justice and fair play; and
(iii) In any case, there is material available on record, in the
form of clause IV A of the Rules and Regulation of the
Petitioner Union as well as extracts from registers
maintained in the prescribed form, from which it is clear
that this requirement had been duly complied with by the
Petitioner Union.
Accordingly, we find no substance in the aforesaid later submission
of the learned AGP.
24] Mr. Singhvi submitted that the Tribunal as an appellate
authority under Section 11 of the said Act is a 'creature of statute'
and its powers are restricted to those specifically conferred by the
statute of its creation. Section 11(3) requires the appellate authority,
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. In trying a suit, Mr. Singhvi submits that a
tribunal virtually exercises original jurisdiction and accordingly
powers of remand stand excluded by necessary implication. The
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remand order is, therefore, ultra-vires, in excess of jurisdiction, null
and void.
25] In these proceedings, we do not deem it necessary to decide
this larger issue. This is because we are of the opinion that even if
power of remand is conceded in favour of the Tribunal, in the facts
and circumstances of the present case, there was absolutely no
warrant for the exercise of such powers.
26] The entire material in form of documentary as well as oral
evidence was available before the Tribunal. The issue as to whether
or not the deficiencies as alleged related to mandatory requirement
as prescribed by the said Act or not, is an issue of law, for which
there was absolutely no necessity to remand the matter to
Respondent No.1. Mr. Raju Jadhav, the clerk in the office of
Respondent Nos.1 and 2 had in fact been cited as a witness. For
reasons which are not forthcoming, Respondent Nos.1 and 2 failed
to examine said Mr. Raju Jadhav. The Tribunal ought to have drawn
an adverse inference against Respondent Nos.1 and 2. Instead, the
Tribunal has chosen to remand the matter to Respondent No.1, with
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a view to enable the examination of Mr. Raju Jadhav. In the facts of
the present case, this was totally improper. There was absolutely no
warrant for exercise of powers of remand, assuming that the Tribunal
had such powers in the first place.
27] The Tribunal, as appellate authority was required to focus
upon the five grounds contained in Registrar's cancellation order
dated 11th November 2009 and determine whether such grounds
stand the scrutiny of facts and the law. The Tribunal, apart from
enumerating the five grounds in paragraph '2' of its order, has failed
to determine the validity thereof, which is precisely the exercise
expected of an appellate authority.
28] The first ground in the cancellation order dated 11th November
2009 is that the Union sought pre-ponement of the date of scrutiny of
the application and this amounted to unseemly haste. In our opinion,
this is hardly a reason to cancel the registration. This is certainly not
a ground contemplated by Section 10 for the purposes of exercise of
drastic powers conferred upon the Registrar. This certainly does not
constitute either a fraud or a mistake on the part of the Petitioner
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Union or its members. Accordingly, first ground is clearly irrelevant,
extraneous and could not have formed the basis for issuance of
cancellation order dated 11th November 2009.
29] The second ground is that the Deputy Registrar issued the
registration certificate subject to certain compliances. The
submission of the learned AGP was that a registration certificate is
required to be issued only after the Registrar is satisfied that the
Trade Union has complied with all the requirements of the said Act in
regard to registration and the said Act does not contemplate to issue
of registration certificate 'subject to compliance'. The learned AGP
submitted that from notings, it appears the last compliance with
regard to submission of identity card of the Treasurer of the
Petitioner Union was only on 27 th July 2009 and therefore the issue
of registration certificate on 24th July2009, is clearly vulnerable.
30] We are unable to accept the submission of learned AGP for
several reasons.
31] In the first place, the said Act does not mandate submission of
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identity card of the office bearers of the Union or of the members
subscribing their names to the rules of the Union. This does not
mean that in a given case the Registrar lacks the power to require
production of such identity card, possibly in order to satisfy himself
as to the identity of an office bearer or subscriber. But this is a far cry
from elevating the requirement of furnishing such further particulars
to the status of a mandatory requirement. Besides, from the notings
produced on record, there is no reason to reject the Petitioner's
submission that even this requirement was complied with on 24 th July
2009 and that noting to this effect may have been made on 27 th July
2009 by the dealing hand because 25 th & 26th July 2009 were
Saturday and Sunday. In fact, Captain Sam Thomas in his deposition
before the Tribunal has clearly stated that further particulars,
information and conditions were furnished/complied with on 24th July
2009 itself. The testimony of Captain Sam Thomas has not been
shaken in cross-examination. Despite citing Mr. Raju Jadhav, dealing
hand as a witness, Respondent Nos.1 and 2 failed to examine him.
In such circumstances, adverse inference ought to have been drawn
particularly when Respondent Nos.1 and 2 seek to inflict and sustain
drastic action of cancellation of registration.
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32] Secondly, it is clear that the requirement to produce identity
card, at the highest was in pursuance of powers conferred upon the
Registrar under Section 7(1) of the said Act. The provisions of
Section 7(1) of the said Act are enabling provisions. They empower
Registrar to call for further information for the purpose of satisfying
himself that any application complies with the provisions of Section
5, or that the Trade Union is entitled to registration under Section 6
and further provides that the Registrar 'may refuse to register of the
Trade Union until such information is supplied'.
33] From the italicized phrase as aforesaid, and on account of
employ of the word 'may' by the legislature, it is clear that there is no
mandate cast upon the Registrar to refuse registration in every case
until such information as may have been called for is supplied. At the
highest, a discretion is conferred upon the Registrar to refuse
registration until such information is supplied. Assuming therefore,
that the learned AGP is right in his submission, that there was
marginal delay in submitting additional information, that by itself does
not lead to the sequiter that the Registrar was bound to refuse
registration until the information had been supplied.
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34] Thirdly, there is intrinsic evidence available in the said Act
itself, which assists in determining which of the requirements can be
regarded as mandatory for the purposes of registration of a Trade
Union. For example, the requirements set out in two provisos to
Section 4(1), which employ the phrase 'no Trade Union of workmen
shall be registered unless................' can be regarded as mandatory.
Similarly, Section 6 of the said Act reads 'A Trade Union shall not be
entitled to registration under this Act, unless the executive
thereof.........'. The requirements contained in Section 6 can also be
regarded as mandatory requirements. Normally, when the legislature
employs words/phrases in a negative form as aforesaid, the anxiety
of the legislature to insist upon strict compliance can be presumed.
In contrast as pointed out earlier, phraseology employed in Section
7(1) of the said Act is quite different. The provision merely enables or
empowers the Registrar to call for further information and provides
that the Registrar 'may refuse to register of the Trade Union until
such information is supplied'.
35] Fourthly, from the perusal of the record, we find that in the
present case registration certificate was not issued 'subject to
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compliances'. The notings, at the highest indicate that a suggestion
was put up by the dealing hand that registration certificate be issued
subject to Nos.2,9,10,11,12 and 13. However, the actual registration
certificate has been issued in prescribed form 'C' on 24 th July 2009.
As pointed out earlier, Section 9 of the said Act provides that a
certificate of registration issued in the prescribed form shall be
conclusive evidence that the Trade Union has been duly registered
under the said Act.
36] In the aforesaid circumstances, we find no merit in the second
ground of cancellation of registration. However, since much has
been made about compliance with objection Nos.2,9,10,11,12 and
13 and even the Tribunal's order under challenge remands the
matters to the Registrar with reference to some of the said
objections, reference to the same may be necessary:
(a) Objection Nos.2 and 9 related to the use of word
'Indian' in the name of the Petitioner Union prior to its
registration. In fact, objection Nos.2 and 9, when construed
in proper perspective are not objections, but rather notings
of compliance. There is no dispute that Captain Sam
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Thomas, on the basis of Resolution No.8 dated 10th June
2009, effected necessary change in the name and in the
other documents on 24th July 2009, itself. This is deposed
by Captain Sam Thomas before the Tribunal and
corroborated by the documentary evidence on record. In
such circumstances, there remained nothing further to be
complied with in so far as objection Nos. 2 and 9 are
concerned.
(b) Objection No.10 relates to preparation of register in
form 'J'. The material on record establishes that not only
such register was in existence, but further the same was
also as per the prescribed form 'J'. The deposition of the
Petitioner witnesses, as also the documentary evidence on
record bear out compliance on 24th July 2009 itself.
Significantly, even the Tribunal in its remand order dated
15th April 2013 has not directed any verification regards
objection No.10, possibly being satisfied regards its
compliance.
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(c) Objection No.11 states that the signatures of all the
office bearers do not appear in Constitution submitted by the
Union. The basis for such an objection is by no means clear.
In any case, the noting on 24th July 2009 itself makes it clear
that the Petitioner Union has reported compliance of
objection/deficiencies at serial Nos.10,11,12 and 13, except
that the Petitioner Union had not submitted identity card of
the Treasurer as per objection No.12. The Constitution,
which is part of the record contains signatures of all the
office bearers. The deposition of the Petitioner's witnesses
and documentary evidence on record bears out this
circumstance.
(d) Objection No.12, as seen above, points out that the
Petitioner Union had not submitted identity card of its office
bearer. Such identity cards, except that of the Treasurer is
noted to have been submitted on 24th July 2009. Such
requirement is by no means a mandatory requirement. The
Petitioner's witnesses have deposed that even this
requirement was complied with on 24th July 2009 itself.
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wpl 1556.13
However, assuming that there is marginal delay in
submission of identity card of the Treasurer, the same in no
manner renders registration certificate issued infirm or
invalid.
(e) Objection No.13 relates to information regards
opening of bank account. Again, this is no requirement
under Sections 4,5 and 6 of the said Act. Objection No.13,
in fact records, the explanation of the Petitioner Union that
upon receipt of registration certificate, they shall furnish
information regards Union's bank account within 15 days. It
is the case of the Petitioner that registration certificate is
necessary for the purpose of opening a bank account in the
name of Trade Union.
37] The third ground in the cancellation order relates to deletion of
the word 'Indian' by Captain Sam Thomas, Joint Secretary of the
Petitioner Union from the rules of the Petitioner Union and other
documents at the time of registration. The learned AGP submitted
that Resolution No.8 dated 10th June 2009 conferred powers to
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amend upon the General Secretary and the Joint Secretary. In the
present case, the amendment was effected only by the Joint
Secretary and therefore the same was ultra-vires powers conferred
upon the said Joint Secretary. In short, learned AGP defended the
reasoning contained Registrar's cancellation order dated 11th
November 2009.
38] In our judgment, such reasoning apart from being hyper-
technical is fallacious as well. In the first place, Resolutions passed
by the Union are not required to be interpreted like statutes.
Secondly, the Resolution in question was only enabling and therefore
the Registrar ought to have read and interpreted the same
contextually. Thirdly, this was not a case where the Union itself or for
that matter some of its members had questioned the acts of the Joint
Secretary as being ultra-vires the powers conferred by the
Resolution. The amendments effected by the Joint Secretary were
not prejudicial to the interest of the Union or its members. Fifthly,
upon a plain and contextual reading of the Resolution, it is apparent
that power/authority came to be conferred upon the General
Secretary and in addition to the General Secretary, the Joint
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Secretary. This is a reasonable manner of reading and interpreting
Resolution. In the context of a Constitution of a Trade Union, it has
been held that the same is not required to be construed as a statute.
It deserves to be construed broadly and liberally. The Act and the
constitution of the trade union, unless clearly stipulate otherwise,
deserves to be interpreted so as to advance the interest of the trade
union and its members. The membership of a trade union is a
valuable right, which can be taken away only within the clear
parameters of the Act and the constitution of the trade union 2. Even
whilst interpreting statute, it is settled position in law, that where a
context requires "and" may be read as "or" and vice-versa3.
In such circumstances, therefore, to fault the amendment
effected by Capt. Sam Thomas, Joint Secretary of the Petitioner was
patently unreasonable exercise, particularly, considering the drastic
consequences involved in cancellation of registration.
39] The fourth and fifth grounds for cancellation of registration as
contained in the cancellation order dated 11th November 2009, in our
2 Bokajan Cement Corporation Employees' Union V. Cement Corporation of India Ltd.,
(2004)1 SCC 142.
3 Shyamabai V. Madan Mohan, 2010 (2) Mah. L.J. 476 (FB.) and Gangaram vs. Digamber, 1991
Mah.L.J. 1204
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opinion, border upon 'absurdity'. The fourth ground for cancellation is
that there is a 'discrepancy' in the signature of Captain Balaraman,
President of the Petitioner Union, upon some documents furnished
at the time of registration. The Petitioner Union upon submitting
alongwith its reply to show cause notice, a letter dated 22 nd April
2009 written by Captain Balaraman, unequivocally affirming that all
the signatures under the name of Captain D.Balaraman are truly his
and they have been signed by him in person, the charge of
'discrepancy' should have been given quietus, if not, a decent burial.
To persist with this charge notwithstanding, and to make the same a
basis for exercise of drastic power of cancellation, amounts to
virtually an affront to the fundamental right of the Petitioner's
members to form an Union.
40] Same is the position with regards to the fifth ground, which is
to say least quite unfortunate. The charge is that the President of the
Petitioner Union Captain D. Balaraman whilst authorizing Mr. R.D.
Jadhav to collect the copy of the Constitution from the office of the
Registrar did not take care to have the said Mr. R.D. Jadhav to put
his signature upon the authority letter for the purposes of
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identification. Assuming all this to be factually correct, we are at
complete loss to comprehend as to how this can be basis for
cancellation of registration certificate by invoking the drastic powers
contained in Section 10 of the said Act.
41] Thus it is clear that the registrar's cancellation order dated 11th
November 2009 has virtually no legs to stand on. The Tribunal ought
to have struck the same down, rather than be "mostly in agreement
with the observations of the Registrar" and remand the matter to the
Registrar for any further prolongation of the Petitioner's ordeal.
42] There is yet another ground, which renders the Tribunal's
reasoning vulnerable. There are no allegations in the present case of
fraud against the Petitioner. The allegations at the highest relate to
'mistake'. From the material on record, we see no 'mistake'
attributable to the Petitioner. Even the Tribunal in paragraph '17' of
its order notes that "there is a mistake on the part of Dy. Registrar of
Trade Union while issuing the registration certificate in favour of the
appellant union." We see no mistake on the part of the Deputy.
Registrar in issuing the registration certificate to the Petitioner on 24 th
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July 2009 either. However, if the noting/finding of the Tribunal is to be
accepted, then in that eventuality there was clearly no warrant for the
exercise of powers under Section 10 of the said Act. Section 10(b)
empowers Registrar to cancel registration upon being satisfied that
certificate has been obtained by 'fraud or mistake'. Such fraud or
mistake has to be attributable to the person/union applying for
registration and not some mistake or incorrect assessment on the
part of the Registrar himself4.
43] Mr. Singhvi is finally right in his submission that the Tribunal
after having set aside the cancellation order dated 11 th November
2009 exceeded its jurisdiction in suspending the Petitioner's
registration and restraining the Petitioner Union from raising any
industrial dispute with the management of Respondent No.5. It is
pertinent to mention that the Tribunal by its order dated 11 th April
2011 had granted stay upon the cancellation order dated 11th
November 2009, pending the decision of the appeal. The appeal
having been partly allowed, the cancellation order dated 11th
November 2009, having been set aside, we are unable to fathom, by
4 R.G.D'souza vs. Poona Employees Union, Yerwada & ors., - 2009(4) Mh.L.J.95 &
The Registrar of Trade Unions, Mysore vs. M.Mariswamy (1974) Lab I.C., 695 (V 7 C 153)
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resort to which jurisdiction the Tribunal could have suspended the
registration of the Petitioner Union and restrained the Petitioner
Union from raising any industrial dispute with the management of
Respondent No.5. The legislature does not even appear to have
vested such a power in the Registrar pending proceedings for
cancellation of registration certificate. In fact, the proviso to Section
10 of the said Act mandates that no 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. In these
circumstances, we are of the opinion that the directions to suspend
registration and restraint from raising of an industrial disputes are
patently in excess of jurisdiction, null and void.
44] This Court has consistently ruled that the power to cancel
registration of the Trade Union is a drastic power and requirements
of Section 10 have to be strictly complied with. Doctrine of
proportionality must also inhere the exercise of such powers5. In the
5 Saraswat Cooperative Bank Employees' Union v. State of Maharashtra & ors.,-
1996(2)Mh.L.J.10, R.G.D'souza v. Poona Employees Unions, Yerwada - 2009(4) Mh.L.J.95,
35 / 37
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circumstances, we satisfied that the Registrar's cancellation order
dated 11th November 2009 was clearly unsustainable. We,
accordingly, uphold the Tribunal's order dated 15 th April, 2013 to the
extent it set aside the Registrar's cancellation order dated 11 th
November 2009 though for the reasons other than those recorded by
the Tribunal.
45] The petition, accordingly, succeeds and rule is made absolute
in terms of prayer clause 'a'. The order of the Tribunal dated 15 th
April, 2013, to the extent it sets aside the Registrar's cancellation
order dated 11th November 2009 is maintained, though for the
reasons which we have indicated and the rest of the order dated 15 th
April 2013 is hereby quashed and set aside.
46] Ordinarily, we would have been justified in imposing costs
upon Respondent Nos.1 and 2. However, in the fond hope that the
authorities constituted under the Trade Unions Act 1926, discharge
their statutory duties keeping in mind 'raison d'etre' for enactment of
Association of Engineering Workers, Ghatkopar (E), Bombay v. Dockyard Labour Union,
Mazgaon, Bombay & ors -1991 Mh.L.J.1278, Tata Memorial Hospital Workers Union v.
M.S.Wani - (1998) I CLR 711 & Tata Electric Companies Officer Guild v. Registrar of Trade
Unions - (1994) I CLR 242
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the said Act and the constitutional provisions contained in Article
19(1)(c) of the Constitution of India, we refrain from doing so.
[M. S. SONAK, J.] [V. M. KANADE, J.]
Dinesh
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