Jharkhand High Court

Vijay Bhushan Mishra vs Amalesh Kumar on 3 August, 2022

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
              (Letters Patent Appellate Jurisdiction)
                         L.P.A No. 456 of 2017

1.Vijay Bhushan Mishra, s/o Jagdish Mishra, Committee Member, Telco
Workers Union, Hans Stoerh Road, Telco, PO & PS-Telco, Jamshedpur,
District-East Singhbhum
2.Sarvjeet Singh, s/o Lakha Singh, Committee Member, Telco Workers
Union, Hans Stoerh Road, Telco, PO & PS-Telco, Jamshedpur, District-East
Singhbhum                                              ...... Appellants
                           Versus
1. Amalesh Kumar, s/o Late Ram Chandra Ram, resident of Cross Road
No.10/1, Telco Colony, P.O. & P.S. - Telco, Jamshedpur
2. Prakash Kumar, s/o Late Ram Chandra Singh, resident of Cross Road
No.10/A, L4-9, Telco Colony, P.O. & P.S. - Telco, Jamshedpur
3. The State of Jharkhand through Secretary, Department of Labour,
Government of Jharkhand, Ranchi
4. Labour Commissioner-cum-Registrar, Trade Union, Government of
Jharkhand, Ranchi
5. The Deputy Labour Commissioner, Jamshedpur
6. Telco Workers Union
7. Ajay Bhagat, President Telco Workers Union, Jamshedpur
8. Gurmit Singh, General Secretary, Telco Workers Union, Jamshedpur
9. Prakash Kumar Vishwakarma, Working President, Telco Workers Union,
Jamshedpur
10. Vijay Kumar Singh, Vice President, Telco Workers Union, Jamshedpur
11. Hardip Singh Saini, Treasurer, Telco Workers Union, Jamshedpur
12. Manoj Kumar, Committee Member, Telco Workers Union, Jamshedpur
13. Devjit Sarkar, Committee Member, Telco Workers Union, Jamshedpur
14. Amit Kumar Giri, Committee Member, Telco Workers Union,
Jamshedpur
15. Tata Motors Limited, represented through the Managing Director
                                                        ....... Respondents
                               with
                        L.P.A No. 455 of 2017
Sandeep Kumar Singh, s/o S.N. Singh at present r/o Road No.2, K2-26,
Telco Colony, PO & PS-Telco, Jamshedpur, District-East Singhbhum
                                                          ...... Appellant
                          Versus
1. Amalesh Kumar, s/o Late Ram Chandra Ram, r/o Cross Road No.10/1,
Telco Colony, PO & PS-Telco, Jamshedpur, District-East Singhbhum
2. Prakash Kumar, s/o Late Ram Chandra Singh, r/o Cross Road No.10/A,
L4-9, Telco Colony, PO & PS-Telco, Jamshedpur, District-East Singhbhum
3. The State of Jharkhand through Secretary, Department of Labour,
Government of Jharkhand, office at Nepal House, Doranda, PO & PS-
Doranda, District-Ranchi
4. Labour Commissioner-cum-Registrar, Trade Union, Government of
Jharkhand, office at Doranda, PO & PS-Doranda, District-Ranchi
                                        2           L.P.A No.456 of 2017 with L.P.A No.455 of 2017



5. The Deputy Labour Commissioner, Jamshedpur, office at Agrico, PO-
Agrico, PS-Sitaramdera,, Jamshedpur, District-East Singhbhum
6. Telco Workers Union, A Registered Trade Union registered under the
Trade Union Act, 1928 having Registration No. 98, having its office at Hans
Stoerh Road, Telco, PO & PS-Telco, Jamshedpur, District-East Singhbhum
through its Assistant Secretary Sri Navin Kumar, s/o Nand Lal, r/o L-4-4,
Road No.15, Telco Colony, PO & PS-Telco, Jamshedpur, District-East
Singhbhum
7. Ajay Bhagat, President, Telco Workers Union, at Hans Stoerh Road, Telco
PO & PS-Telco, Jamshedpur, District-East Singhbhum
8. Gurmit Singh, General Secretary, Telco Workers Union, at Hans Stoerh
Road, Telco PO & PS-Telco, Jamshedpur, District-East Singhbhum
9. Prakash Kumar Vishwakarma, Working President, Telco Workers Union,
at Hans Stoerh Road, Telco PO & PS-Telco, Jamshedpur, District-East
Singhbhum
10. Vijay Kumar Singh, Vice President, Telco Workers Union, at Hans
Stoerh Road, Telco PO & PS-Telco, Jamshedpur, District-East Singhbhum
11. Hardip Singh Saini, Treasurer, Telco Workers Union, at Hans Stoerh
Road, Telco PO & PS-Telco, Jamshedpur, District-East Singhbhum
12. Manoj Kumar, Committee Member, Telco Workers Union, at Hans
Stoerh Road, Telco PO & PS-Telco, Jamshedpur, District-East Singhbhum
13. Devjit Sarkar, Committee Member, Telco Workers Union, at Hans
Stoerh Road, Telco PO & PS-Telco, Jamshedpur, District-East Singhbhum
14. Amit Kumar Giri, Committee Member, Telco Workers Union, at Hans
Stoerh Road, Telco PO & PS-Telco, Jamshedpur, District-East Singhbhum
15. Vijay Bhushan Mishra, Committee Member, Telco Workers Union, at
Hans Stoerh Road, Telco PO & PS-Telco, Jamshedpur, District-East
Singhbhum
16. Sarvjeet Singh, Committee Member, Telco Workers Union, at Hans
Stoerh Road, Telco PO & PS-Telco, Jamshedpur, District-East Singhbhum
17. Tata Motors Limited, represented through the Managing Director, Office
at Telco, Jamshedpur                                   ....... Respondents

                                ---------------

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellants      : Mr. Sumeet Gadodia, Advocate
                          Mrs. Aanya, Advocate
                          (In L.P.A. No.456 of 2017)
                          Mr. Indrajit Sinha, Advocate
                          Miss. Sonal Jaiswal, Advocate
                          (In L.P.A. No.455 of 2017)
For the Resp.-State     : Mr. Mrinal Kanti Roy, G.A-I
                          Mr. Rakesh Ranjan, AC to G.A-I
For the Resp.No.15      : Mr. V.P. Singh, Sr. Advocate
                          Mrs. Rashmi Kumar, Advocate
                          (In L.P.A. No.456 of 2017)

                              ---------------
                                        3      L.P.A No.456 of 2017 with L.P.A No.455 of 2017



                                  ORDER

rd 3 August 2022 Per, Shree Chandrashekhar, J.

The order dated 13th June 2017 passed by the Labour Commissioner-cum-Registrar, Trade Union, Government of Jharkhand was challenged by Forty-nine persons in W.P(C) No. 3628 of 2017.

2. Two persons claiming similar rights as claimed by those Forty-nine persons and raising a similar plea approached this Court in W.P(C) No. 3322 of 2017.

3. They all questioned legality of the order dated 13 th June 2017 by which the application by Fifteen persons claiming themselves newly elected office bearers of the Telco Workers' Union (in short, Union) in Form-B register was allowed and name of the aforesaid Fifty-one persons were deleted from the Executive Committee of Union.

4. Before the writ Court several arguments were advanced one of which was that the Registrar, Trade Union has no powers and jurisdiction to adjudicate dispute between two rival factions of the Union claiming themselves validly elected. It was further argued that the Labour Commissioner-cum-Registrar, Trade Union, Government of Jharkhand who is the respondent no.2 passed the order dated 13 th June 2007 without affording an opportunity of hearing and supplying a copy of the enquiry report by the respondent no.3. The writ petitioners also set up a case that signature of several persons appearing in the minutes of meeting were duplicate and forged.

5. On the other hand, the respondents three of whom are the appellants before us supported the order dated 13 th June 2017 and took a plea that the dispute sought to be raised by the writ petitioners was not amenable to writ jurisdiction.

6. The writ Court held that the disputed questions of fact raised by both parties cannot be adjudicated in a writ jurisdiction and, the Registrar, Trade Union has no jurisdiction to decide inter-se dispute between the rival factions and, accordingly, set aside the order dated 13 th June 2017 passed by the respondent no.2. The writ Court thereafter proceeded to appoint Deputy-Commissioner, Jamshedpur (East Singhbhum) as Special Officer to

conduct election of the Union within 8 weeks after verifying the voter-list and election by secret ballots.

7. This part of the judgment by which fresh elections were ordered has been challenged by the appellants who were made respondents in the writ proceedings.

8. By an order dated 11th September 2017, the aforesaid order passed by the writ Court was stayed by a co-ordinate Bench of this Court and L.P.A No.456 of 2017 was admitted for hearing. It was further ordered by this Court that L.P.A No.455 of 2017 shall also be heard together with L.P.A No.456 of 2017.

9. By an order dated 25th May 2018, I.A No. 9192 of 2017 which was filed in L.P.A No. 456 of 2017 for recalling the order dated 11 th September 2017 has been dismissed.

10. It further appears that against the order dated 25th May 2018 passed by a co-ordinate Bench of this Court, Prakash Kumar, who is one of the writ petitioners approached the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No(s). 40475 of 2018 and the said petition was dismissed in the following terms:

"Delay condoned.

Having heard learned counsel for both sides, we are of the view that since the term of the Committee is over in August, 2018, fresh election should be held, which will be subject to the decision in the pending LPA.

With these observations, the Special Leave Petitions are disposed of.

Pending applications also stand disposed of."

11. Now, the admitted position is that fresh elections have been conducted and the newly elected office bearers have assumed the charge.

12. The learned counsels appearing for the parties have reiterated their respective stands taken before the writ Court.

13. The plea urged on behalf of the appellants is that once it is held that the dispute sought to be raised by the parties was not amenable to writ jurisdiction, the writ Court could not have proceeded to appoint the Deputy-Commissioner, Jamshedpur (East Singhbhum) as Special Officer to hold elections.

14. Having gone through the writ Court's order, we are inclined to commend the findings of the writ Court that the Registrar, Trade Union has

no powers and jurisdiction to decide the disputed claim by the rival factions.

15. The writ Court has held as under:

"20. In the Trade Unions Act, 1926, there is no such power given to the Registrar, Trade Union to decide the dispute as to who would be the office bearer of the Trade Union. Although in some states i.e State of Madhya Pradesh, Maharashtra and Gujarat, suitable amendment in the Trade Union Act, 1926 has been carried out by inserting new provision whereby the Registrar Trade Union has been conferred power that if any dispute arises with regard to the office bearers of registered Trade Union, it shall be referred to the Industrial Court. However, there is no such provision in the State of Jharkhand. Different High Courts in India also while considering the similar issue have held that the Labour Commissioner- cumRegistrar Trade Union has no jurisdiction under The Trade Unions Act, 1926 to decide the inter-se dispute of two factions of the Union.

21. For the reasons as aforesaid, the first issue is answered in affirmative by holding that, the respondent no. 2 had no jurisdiction to decide the inter-se disputes raised by the petitioners as well as the private respondents. Accordingly, the order dt. 13.06.2017 passed by the respondent no. 2 is hereby quashed and set aside being without jurisdiction.

22. Before parting with this issue, I would like to observe that in the State of Jharkhand where there are numerous Industries and the disputes between the office bearers of Union frequently come to the High Court invoking Article 226 of the Constitution of India which also consumes the valuable time of the High Court, it is high time when the Government of Jharkhand should also take steps for making suitable amendment in the Trade Union Act, 1926 so that the inter-se disputes between the office bearers of the trade union may be resolved quickly and effectively by other forum."

16. No doubt a writ petition shall not lie which involves disputed questions of fact and would require evidence both oral as well as documentary. By very nature of the dispute sought to be agitated by the parties before the Registrar, Trade Union, it can be safely observed that a civil Court of competent jurisdiction was the proper Forum to decide the dispute sought to be raised by the parties. It is also well-settled that there is no bar in entertaining a writ petition founded on a plea that the order was passed without jurisdiction. As we have noticed, the writ Court held that the Registrar, Trade Union has no powers and jurisdiction to decide the dispute between the parties and, accordingly, the order dated 13 th June 2017 was set aside.

17. In our opinion, it is a misreading of the writ Court's order dated 4th August 2017 insofar as maintainability of the writ petitions is concerned. The issue no.2 as framed by the writ Court is in fact not a related issue

arising out of the main issue, that is - jurisdiction of the Registrar, Trade Union under section 8 r/w section 28 of the Trade Union Act, 1926. Therefore, we would not agree with the appellants on the issue that after holding that disputed questions of fact raised by the parties cannot be adjudicated in writ jurisdiction, the writ Court could not have entertained the petition, proceeded further and directed the Deputy-Commissioner, Jamshedpur (East Singhbhum) to conduct elections of the Union.

18. In the above view of the matter, we are not inclined to interfere with the powers of the writ Court to order fresh election to be conducted by the Deputy-Commissioner, Jamshedpur (East Singhbhum). In fact, the writ Court examined the issue as to its powers to issue a direction for holding election, and for that purpose has taken note of the judgments in "Gyana Pattnaik, General Secretary, Tata Refractories Shramik Sangh v. State Implementation Officer-Cum-Labour Commr., Orissa and Others" (2011) 15 SCC 565 and "Oil & Natural Gas Commission v. State of West Bengal" 1988 (2) LLJ 335.

19. The writ Court has held as under:

"28. In the present case, on perusal of the counter affidavit filed by the Management-respondent no. 15 it appears that the wage revision of the other Plants of the establishment has been executed but the wage revision of the employees of the present Plant is pending due to the aforesaid dispute between two rival factions of the Union. Although the dispute raised by the parties can effectively be adjudicated by the Civil Court, yet if the parties are directed to take recourse before the civil court, it will consume a considerable time which will be detrimental to the cause of the large number of the workmen of the establishment. In the present case, more than half of the term of the present elected members has elapsed but both the factions are fighting with each other for their supremacy in the Union which is jeopardizing the interest of the large number of workmen. Now a day, Trade Union is the part and parcel of the Establishment and as such the smooth working of the Union is necessary for the growth of any industrial establishment as well as in the interest of the workmen. For the aforesaid reasons and following the guiding principles laid down by the Hon'ble Supreme Court in Tata Refractories Shramik Sangh (Supra), the Deputy Commissioner, Jamshedpur (East Singhbhum) is appointed as Special Officer and is directed to get the election of the Union conducted afresh within eight weeks from the date of communication of the order by verifying the Voters' list and by calling for the intending candidates to file their nomination papers and to hold the election by secret ballots as well as to declare the result of the election according to law. The respondent no. 2, thereafter, shall record the names of the persons so elected under Sections 8 and 28 of the Trade Unions Act. The cost of the election shall be borne by the Union. In

conducting the election, the Deputy Commissioner may take assistance of District Administration, if required. It is also directed that till the elected members take charge, the office bearers who were functioning by virtue of 2016 election will function as ad-hoc office bearers but during that period their power and function shall be confined only to routine matters which are necessary in the interest of the member of the Union. It is also observed that the structure of the Union shall not be changed under any circumstance, till the respondent no. 2 enters the name of the office bearers in Form-B register after conclusion of election in the aforesaid manner.