Rajasthan High Court - Jodhpur
Additional Registrar Of Trade ... vs Bhartiya Cement Majdoor Sangh on 13 January, 2022
Bench: Akil Kureshi, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 741/2021
Additional Registrar Of Trade Union And Divisional Joint Labour
Commissioner, Labour Department, Govt. Of Rajasthan, Jodhpur.
----Appellant
Versus
Bhartiya Cement Majdoor Sangh, Jodhpur Sambhag 163,
Gharwala Jaav, Chimabai Sancheti School Ke Pass, Pali,
Rajasthan.
----Respondent
For Appellant(s) : Mr. B.S. Tanwar through V.C.
For Respondent(s) : Dr. Nupur Bhati through V.C.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MS. JUSTICE REKHA BORANA
Order
13/01/2022
This appeal is filed by the Labour Commissioner to challenge
the judgment dated 21.10.2021 passed by the learned Single
Judge in S.B. Civil Writ Petition No.6449/2020.
The respondent herein-original petitioner is a trade union
and had applied for registration of union under the Trade Union
Act, 1926 (for short, 'the Act'). This application was rejected on
the ground that the trade union did not have a minimum 10% of
the total number of labourers working in the cement unit situated
in the division. Learned Single Judge quashed the order passed
by the authority and directed for registration of union. Reference
was made to Section 4 of the Act for this purpose.
We have heard learned counsel for the parties.
(2 of 3) [SAW-741/2021]
Sub-Section (1) of Section 4 of the Act provides that any
seven or more members of a trade union may by subscribing their
names to the rules of the Trade Union and by otherwise complying
with the provisions of the Act applied for registration. First
proviso of sub-section (1), which comes up for consideration reads
as under:-
"Provided that no Trade Union of workmen shall be
registered unless at least 10 per cent, or one hundred
of the workmen, whichever is less, engaged or
employed in the establishment or industry with which it
is connected are the members of such Trade Union on
the date of making of application for registration:"
As per this proviso registration to a trade union will not be
granted unless such union at least 10% or 100 workmen
whichever is less engaged or employed in the establishment or
industry with which it is connected are its members. According to
the appellant, the petitioner trade union did not have minimum
10% workmen as its members, and therefore, the application was
liable to be rejected. The learned Single Judge, however, opined
that the requirement of the proviso is the trade union concerned
might have at least 10% or 100 workmen as its members,
whichever is less. In our opinion, the learned Judge was correct
in interpreting the said proviso. The authority ignores the
expression "whichever is less" which succeeds the earlier portion
of the proviso which requires that no trade union shall be
registered unless it has at least 10% or 100 workmen as its
members. Admittedly, the petitioner had a membership of 382
workmen and thus satisfied this requirement.
Learned counsel for the appellant, however, raised additional
ground in this appeal. He suggested that there is further proviso
(3 of 3) [SAW-741/2021]
to sub-section (1) of Section 4 of the Act, which provides that no
trade union of workmen would be registered unless it has on the
date of making application not less than seven persons as its
members who are workmen engaged or employed in the
establishment or industry with which it is connected. No such
ground was taken in the order rejecting the application filed by the
petitioner for registration, nor before the Tribunal where the
petitioner had challenged the rejection order, nor before the
learned Single Judge. The same cannot be permitted to be raised
for the first time in the appeal since it is not the pure question of
fact but mixed question of law and fact.
In the result the appeal is dismissed.
(REKHA BORANA),J (AKIL KURESHI),CJ
4-a.asopa/-
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