Swashrayi Mahila Seva Sangh vs Union Of India (Uoi) And Anr.
2005 Latest Caselaw 215 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule. With the consent of the counsel for the parties, the writ petition is taken up for hearing.

2. This writ petition has been filed by Swashrayi Mahila Seva Sangh (Self Employed Women's Association)[hereinafter referred to as the `SEWA']. This writ petition challenges the Order dated 4th August, 2004, passed by the Jointt Chief Labour Commissioner (Central), Government of India, Ministry of Labour and Employment, New Delhi, declining to grant recognition to SEWA, i.e,. the petitioner herein on the ground that this organization did not fulfilll the basic criteria as the affiliated trade unions of the EWA were registered only in three States.

3. The genesis of the dispute arises from a Memorandum dated 22nd June, 2000, the relevant portion of which reads as follows:-

''The Government of India had decided to conduct general verification of the membership of the registered trade unions affiliated to various Central Trade Union organizations with 31.12.1997 as Date of Reckoning, for the purpose of determining the representation of the Central Trade Union Organizations on International and National Conferences, Committees, Councils etc. Those Central Trade Union organizations, which have a verified membership of 5 lakhs and above, and are spread over at least 4 States and four industries(which may include Agriculture) would be recognized by the Government of India as Central Trade Union Organizations.........''

The rest of the memorandum dealt with the procedure to be followed. SEWA in the writ petition has referred to the importance of recognition of the Central Trade Union organization, which enables conducting/facilitating of national and international dialogue on policy matters with trade union, workers, industry and Government. The view formulated in such dialogue leads to framing of the policy relating to labour laws and other allied matters. SEWA represented self-employed women and at the relevant time had the membership of about 6,89,000.

4. On 25th July, 2003 in a matter pertaining to a delay in the verification of membership of the Central Trade Union organizations, the Division Bench of this Court passed the following order in LPA Nos.385/2000, 389/2000 and CW.1258/97 :-

''........The exercise is to be undertaken once in every four years for the verification of the membership of the Central Trade Union Organization. Today it is agreed by the Unions appearing before the Court that the last date of the last year, i.e. to say 31st December, 2002, be taken into consideration and accordingly the orders may be passed as a reckoning date for the purpose of such verification.

Counsel for the Union of India would like to take instructions in the matter and, therefore, we adjourn the matter to 25th July, 2003.

Direct service permitted (dusty). In view of this order, counsel for the Union of India was required to convey the instructions. However, nobody is present on behalf of the Union of India. Learned counsel for the Trade Union is present before the Court. The matter was heard on earlier occasion. The last verification was done in the year 1996 and thereafter there is no verification and it is overdue. The law requires that once in four years it must be done but that is not done. In view of these all the trade unions agreed to one date for the purpose of reckoning for such verification. Under the circumstances, we direct that the last date of the last order i.e. to say 31st December, 2002 be taken as reckoning date for the purpose of such verification. The verification shall be completed within one year. The Chief Labour Commissioner is directed to carry out the necessary exercise. With these observations, the appeal and the petition stand disposed of.''

5. Thus the above order directed the following:-

(a) that the verification of Central Trade Union organizations should take place with reference to membership as on 31st December, 2002

(b) that this verification was to be done on or before 30th July, 2004 and

(c) that the exercise was required to be done by the Chief Labour Commissioner.

6. Mr. Gaurav Duggal, the learned counsel, appearing on behalf of the Union of India submits that in respect of the time granted by the Division Bench's order dated 25th July, 2003, an application for extension of time is still pending in the aforementioned matter. However pursuant to the above direction of the Division Bench, action was taken in the case of the petitioner and on 4th August, 2004, the following order impugned in the present petition was passed:-

''No. 38(2)/03-Vfn

Government of India

Ministry of Labour and Employment

New Delhi Dated : 04/08/2004

To,

The General Secretary,

Swashrayi Mahila Seva Sangh

SEWA Reception Centre,

Opposite Victoria Garden,

Badhra, Ahmedabad-380001

Sub: General Verification of membership of Trade Unions affiliated to Central Trade Union Organisations (CTUOs).

Madam,

I am to refer to your letter dated 20.1.2004 through which you have filed your membership claim for participating in the General verification of membership of trade unions affiliated to Central Trade Union Organisations. The Standing Committee in its meeting held on 31.05.2004 has observed that your organization does not fulfilll the basic criteria for recognition as Central Trade Union Organisation because your affiliated unions including yours are registered only in three states. Hence your membership claim is not accepted for General Verification. This is for your information please.

Yours faithfully

Sd/-       

(G.R. MAJHEE)

JT.CHIEF LABOUR

COMMISSIONER (Central)''

The above order has declined the verification of the membership of the petitioner trade union on the ground that the organization does not fulfilll the basic criteria of recognition as Central Trade Union Organization because its affiliated unions of the petitioner including the petitioner are registered only in three States. Thus the membership claim was not accepted for the purpose of general verification.

7. This order has been challenged in the present writ petition by the senior counsel for the petitioner, Ms. Indira Jaisingh inter alia on the following grounds:-

(a) that the impugned order dated 4th August, 2004 was passed by the Standing Committee though communicated by the Joint Chief Labour Commissioner and was not passed by the Chief Labour Commissioner as ordered by the Division Bench's Order dated 25th July, 2003.

(b) that the Order dated 4th August, 2004 proceeds to impose a criteria of registration of the trade unions in more than three States when the criteria set out by the Government's letter dated 22nd June, 2000 only required that the trade unions must have a verified membership of 5 lacs and above and are spread over at least in 4 States and four industries.

8. The learned counsel for the respondents has very fairly stated that in so far as the criteria of 5 laces members is concerned, in view of the certificate furnished by the petitioner from the Registrar of Trade Unions, Ahmedabad (Gujarat), the petitioner does fulfilll the criteria qua membership of 5 lacs and above and is also spread over at least in 4 States and 4 industries. He has further submitted that the petitioner's request for verification has been denied on the ground that its affiliated trade unions including the petitioner are registered only in three States.

9. The learned counsel for the respondents has also relied upon the stand taken by the UOI in the counter affidavit wherein it has been contended that for the purpose of the said verification, the standard procedure has been evolved for a particular trade unions affiliated to the Central Trade Union Organization. In the counter affidavit, it is averred as follows:-

''(a) The Central Trade Union Organisation has to satisfy that the total verified membership of trade unions purportedly affiliated to it is at least five lacs and spread over at least four states and four industries. It is submitted that the strength of a Central Trade Union Organization is taken to be the combined verified strength of the trade unions registered under the Trade Union Act, 1926 and affiliated to it.

It is therefore pertinent to submit and becomes imperative to state at the outset that the affiliation of a particular trade union to Central Trade Union Organisations its registration under Trade Union Act, 1926 is paramount, on the basis of which claimed membership is verified for granting status of Central Trade Union Organisation by the Central Government.

(b) After Central Trade Union Organisation has satisfied prima facie that it fulfillls the above said criteria that the general verification of the strength of a Central Trade Union Organisation is carried out. It is submitted that the said verification is undertaken periodically through a long exercise wherein the first stage verification of Registration particulars, submission of Annual Returns to the Registrar Trade Unions and affiliates of unions to the Central Trade Union Organization is verified from the records of the concerned Registrar of Trade Union. In the second stage verification of membership records of each Trade Union is conducted and at the third stage few randomly selected members of Trade Unions are personally interrogated. The said exercise therefore by itself takes a very long time to complete.

The Respondents are annexing herewith as Annexure R-2 the above stated procedure for verification of membership of the trade unions affiliated to the Central Trade Union Organisations. A combined reading of the above states steps for verification of membership of Trade Unions affiliated to Central Trade Union Organisations makes it clear that before the claim of any Central Trade Union Organisation is accepted to conduct general verification of the membership of Trade Unions affiliated to Central Trade union Organisation, the first step to be crossed is the prima facie proof that the Trade Unions supposedly affiliated to Central Trade Union Organization have a combined membership of at least 5 lacs and spread over at least in four states and four industries. It is submitted that a particular trade union would be registered only in one state and therefore as per the procedure approved by the Standing Committee if membership of a particular Trade Union spread over in more than one state then the verified membership of that union will be accounted for in the state where it is registered.''

10. The learned counsel for the respondent has also relied upon the order dated 20th July, 1998 which constituted a Standing Committee to conduct the verification of memberships of the trade unions. In particular reliance has been placed upon the procedure for verification of membership of trade unions as per Annexure R-2 to the counter affidavit. The relevant portion of the said procedure is reproduced hereunder:

''Procedure for verification of membership of trade union affiliated to Central Trade Union Organisation.

Coverage and purpose : The general verification of strength of Central Trade Union Organisations is conducted view a view to giving them representation on various international and nation Conferences, Committees, Councils, etc. The strength of a Central trade Union Organization is taken to be the combined membership of trade unions registered under the Trade Unions Act, 1926 which are affiliated to the Central Trade Union Organization concerned. Only those Trade Unions Organizations whose affiliates have at least a combined membership of five lakh and are spread over at least four states and four industries would be recognized by the Government as Central Trade Union Organization. The general verification of the strength of a Central Trade Union organization would be conducted after the organization has established prima facie that it fulfillls the above criteria.''

11. Mr. Duggal, who appears on behalf of the UOI has highlighted the fact that the process of verification necessarily involves the registration of a union and its affiliates and the membership of the trade union has to be five lakhs spread over at least four states and four industries. He has, submitted, stated that as indicated above for the purpose of verification of membership, it is necessary to ensure that the trade union organization and its affiliates have memberships of five lakhs and are spared over four states and four industries and this necessarily implies the registration of the principal organization and its affiliates in at least 4 States.

12. For determining the crux of the issue involved in the writ petition, it is necessary to consider the contents of the Memorandum dated 22nd June, 2000 of the Ministry of Labour, which laid down the following criteria required to be adopted by the Central Trade Union organizations seeking verification and recognition :

(a) Verified membership of 5 lakhs and above;

(b) Membership to be spread over four states and four industries.

If such criteria were satisfied then the organization would be recognized by the Central Trade Union Organization.

13. In my view the additional criteria sought to be imposed and reflected in the order impugned in the present writ petition dated 4th August, 2004 is extraneous and in addition to the criteria indicated in the memorandum. Even if the procedure prescribed could be given the meaning ascribed to it by the learned counsel for the UOI, i.e. requiring the verification of the membership of the union requiring its registration in four states that cannot be treated as one of the relevant grounds set out in the memorandum which require recognition. Accordingly, the reason given for declining the membership were irrelevant and not germane and indeed not in accordance with the memorandum of the Government of India dated 22nd June, 2000 itself. It is only the membership which is required to be spread over four states. It is not in dispute that the petitioner's membership as certified by the Registrar of Trade Unions is 6,89,551 at the relevant time i.e. 31st December, 2002. Furthermore, it is not in dispute that the membership of the petitioner is spread over four states and covers four industries. Accordingly, the criteria required by the memorandum dated 2nd June, 2000 are satisfied.

14. The scope of the writ of certiorari is founded on the following principles:-

(a) H.W.R. Wade and C.F. Foresyth define the writ of certiorari as follows:-

''Certiorari is used to bring up to into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed-that is to say, it is declared completely invalid, so that one need respect it.

The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the crown in motion.'' (Administrative Law, 8th Edn., page 591).

(b) De Smith, Woolf and Jowell define the certiorari and its scope in the following words:-

'' For a century or more it was generally assumed that certiorari and prohibition would issue only in respect of ''judicial acts'' or administrative acts in the performance of which the competent authority was under an express or implied duty to ''act judicially'' (or fairly). Because certiorari and prohibition were the main judicial remedies in administrative law it used to be very important to be able to identify ''judicial acts'' and situations where the courts could be expected to hold that there was a duty to act judicially. However, a judicial recognition that the rules of natural justice do not import an inflexible procedural code of uniform applicability and the increasing frequency with which judges fall back upon the vaguer duty to act fairly have shafted the focus of the argument from whether there are any implied procedural obligations to be complied with before a power may lawfully be exercised in determining their content in the particular context. It is now beyond doubt that certiorari and prohibition are not confined to reviewing decisions of a judicial nature. (Judicial Review of Administrative Act, 5th edition, page 702).''

(c) In T.C. Bassappa v. T. Nagappa, the Hon'ble Supreme Court laid down that certiorari is granted when the Court has acted without jurisdiction or in excess of its jurisdiction. It was also held that a writ of certiorari may also be issued if the Court or Tribunal acted in flagrant disregard of the rules or procedure or in violation of principles of natural justice where no particular procedure is prescribed. It has also been held that an error in the decision or determination may also be amenable to a writ of certiorari subject to the fact that the error is manifest and apparent on the face of the proceedings i.e. when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a right of certiorari.

(d) In Custodian of Evacuee Property vs. Khan Saheb Abdul Shukoor, the following principles were laid down:-

''(1) Certiorari will be issued for correcting errors of jurisdiction.

(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is patent error, which can be corrected by certiorari but not a mere wrong decision.''

(e) In Syed Yakoob vs. K.S. Radhkrishnan, it was held that when a question is decided without giving opportunity of hearing to a party affected, a writ of certiorari can be granted. Similarly in Harbans Lal vs. Jagmohan Saran, it was held that certiorari shall issue if there is any breach of principles of natural justice.

(f) The position of law laid down in Surya Dev Rai vs. Ram Chander Rai, , clearly shows held that the High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned.

(g) In State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86, the Constitution Bench of Supreme Court held that:

''11. On the authorities referred to above it appears to us that there may conceivably be cases- and the instant case is in point- where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play he superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. .....''

(h) In Ram and Shyam Co. vs. State of Haryana, , the Supreme Court held that the Rule which requires the exhaustion of alternate remedies in a rule of convenience and discretion rather than a rule of law and does not oust the jurisdiction of the Court. In State of U.P. vs. Mohammad Nooh (supra), it was held that there was no rule with regard to certiorari as there is for mandamus, that it would lie where there is no other equally effective remedy.

(i) In Smt. Jatan Kanwar Golcha vs. Golcha Properties Pvt. Ltd., it was held that, to contend that a writ petition would not lie because it is well settled that a person aggrieved by a judgment and not a party to the suit, could prefer an appeal with the leave of the appellate court and a prejudicially affected person ought to be granted leave to appeal.

15. Thus since the respondent No.1's impugned order dated 4th August, 2004 displays that not only the respondent No.1 has travelled beyond the jurisdiction vested in it by virtue of the norms set out in its memorandum dated 22nd June. 2000 for verifying claim for registration, but in so far as the impugned order imparts an additional requirement of registration in four States it takes into account extraneous material leading to a manifest error apparent on the record. Accordingly the criteria laid down or the issue of writ of certiorari are satisfied.

16. The writ petition is accordingly allowed and writ of certiorari will issue quashing and setting aside the Order dated 4th August, 2004, passed by the Joint Chief Labour Commissioner, Government of India.

17. However, the plea raised by the learned counsel for the petitioner that the mandate of the Division Bench of this Court dated 25th July, 2003 required verification by the Chief Labour Commissioner and not by Standing Committee, is not being gone into in view of the orders passed above.

18. Accordingly a writ of mandamus will also issue directing the respondents to complete the verification process of the petitioner within six weeks from today in accordance with the position of law laid down in this judgment. If all requirements of the memorandum dated 22.6.2000 are met, appropriate recognition be granted to the petitioner.

19. The learned counsel for the respondent sought time longer than six weeks for verification, granted by this Court. Taking into account the history of this case and mandamus issued by the Division Bench, in my view sufficient time has been granted by this Court. However, this Court must record its appreciation of counsel of both parties who rendered assistance in a fair and accomplished manner to this Court. The counsel for the respondent/Union of India, Shri Gaurav Duggal deserves compliments for a thorough preparation and fair presentation of the case. Even the counter affidavit is meticulously drafted and contains all relevant information and documents. In view of the meticulous presentation of the case by the UOI, no orders as to costs are being passed.

20. List the matter on 24th April, 2005 for further directions.