S.S. Dhavan, J.
1. This is a petition under Article 226 of the Constitution impugning the legality of an order of the Regional Conciliation Officer, Lucknow, rejecting the application of Uttar Pradeshiya Shramik Maha Sangh Lucknow seeking to initiate conciliation proceedings before that officer. The petitioner No. 1 is the aforesaid Sangh and the petitioner No. 2, Anwar Ali Rizvi, is a workman of Ram Chandra & Sons Sugar Mills Limited Bam Banki. The second petitioner was added during the hearing of this case with the permission of the Court.
The petitioners were also permitted to file asupplementary affidavit giving additional facts insupport of their case. The petition involves, interalia the constitutionality of Section 6-1 (3) of theU. P. Industrial Disputes Act 1947 and of rule40 of the U. P. Industrial Disputes Rules 1947made under that Act. There is not much controversy about the facts on which this petition isfounded. Very briefly the case of the petitionersas stated in their two affidavits is this.
2. The petitioner No. 1 which will be referred to in this judgment as the Sangh, is a Trade Union registered under the Trade Unions Act of 1926. It is a federation of 23 Trade Unions ail of which are affiliated to it and are registered under the aforesaid Act. The petitioner No. 2, Anwar Ali Rizvi, is a workman employed in the Ram Chandra. & Sons Sugar Mills (Private) Limited in' Bara Banki. The petitioners state that there were several disputes between the workmen of some of the Trade Unions affiliated to the Sangh and their employers.
The Sangh made several applications before the Regional Conciliation Officer, Lucknow praying that a Conciliation Board be constituted for the settlement of the dispute in each case, But all these applications were rejected by that Officer on the ground that the Sangh was not qualified to represent any workman in conciliation proceedings in view of the provisions of Rule 40 Sub-rule (1). The proviso to that Sub-rule enjoins that no officer of a Federation of Union shall be entitled to represent the parties (in an industrial dispute) unless the Federation has been approved of by the Labour Commissioner for this purpose.
The amended rule also laid down that an application for the approval of a Federation of Unions for representing the parties may be made to the Labour Commissioner but the. proviso to that rule enjoins that no Federation of Unions shall be entitled to apply for approval unless a period of two years has elapsed since its formation. The rule further provides that the Labour Commissioner, after making such enquiries as he deems fit, may approve of the Federation or reject its application.
Both the petitioners complain that, as a result of the amended Rule 40 read with Section 6-I (3) of the Act the Sangh has been deprived of the opportunity of initialing conciliation proceedings on behalf of workmen belonging to the Unions affiliated to it. The petitioner No. 2, Anwar Ali Rizvi, contends that by depriving the Sangh of this right the State has violated his right of association guaranteed under Article 19(c) of the Constitution.
3. In their supplementary affidavit the petitioners state that the Trade Union movement in India has been monopolised by different political parties and that there are very few trade unions independent of the control of these parties. The petitioner Sangh claims to be an independent Trade Union which is neither sponsored by nor affiliated to any political party. The petitioners further state that the Indian National Congress has organized a Trade Union known as the Indian National Trade Union Congress (to be referred to hereinafter as the INTUC.)
Similarly., it is alleged, that the Praja Socialist Party has also organized a Trade Union which is called the Hind Mazdoor Sabha. The Communist Party of India, it is stated, has also organized a Trade Union under the name of the Indian Trade Union Congress. The Socialist Party, it is alleged, has separated from the Praja Socialist Party, but is still supporting the Hind Mazdoor Sabha.
4. The petitioners further, allege that the policy of the Government of Uttar Pradesh which is controlled by the Indian National Congress, has been
'to boost up the INTUC at the cost of the trade unions organizations sponsored or affiliated to other political organizations and independent Trade Unions. The authority conferred under the U. P. Industrial Disputes Act upon the State Governmenthas been systematically and regularly exercised in such a manner as to favour unduly the Trade Unions affiliated to the INTUC and to give a step-motherly treatment to the Trade Unions affiliated to other political organizations and independent Trade Unions. In the matter of representations or 1 hourconferences or recognition as a recognised Trade Union or in the matter of referring the disputes for adjudication this attitude of the State Government for many years is very well-known and there has been complaints throughout the trade union movement about this attitude.'
5. The petitioners contend that the Sangh has filed several applications before the Regional Conciliation Officer, but unless the right of the Sangh to initiate the proceedings is recognised, the applications will be rejected on the ground of not being properly instituted.
6. The grievance of the petitioners is that both Section 6-I and Rule 40 vest the Labour Commissioner with an absolute and arbitrary power to approve of or reject any Union or Federation of Unions at his discretion. They further contendthat as the Labour Commissioner U. P. is an official of the U. P. Government which in turn is controlled by the Indian National Congress, the power under Rule 40 is likely to be used arbitrarily in favour of Unions belonging to the INTUC. In their affidavit in rejoinder the petitioners have filed extracts from several journals containing complaints against the manner in which the Congress Governments are alleged to have discriminated in favourof the INTUG and against its rivals.
Annexure 'A' is an extract from the Fortnightly Trade Union Record dated 5-2-1959. This issuecontains a text of the resolution passed by the All India Trade Union Congress protesting against what was alleged as 'the deliberate offensive which is being carried on by the Labour Departments of the Governments of Bihar, Bombay and Madhya Pradesh to suppress the AITUC organization in these States'. The resolution also purports to protest against what is called 'the blatant refusal to grantregistration to AITUC Unions in Bihar.' There is an allegation in the resolution that these discriminatory policies 'have come to be identified with the three Labour Ministers' of the aforesaid Governments. Annexure 'B' is an extract from the New Age Weekly dated 15-2-1959.
It is alleged in it, inter alia, that a meeting of the Telangana section of TNTUC in Andhra Pradesh was presided over by the Minister for Irrigation and Power and that it was also addressed by theChief Minister of Andhra Pradesh. The extract ends with the following protest:
'It is such open and shameless boosting of the INTUC by the Chief Minister and the Minister for Irrigation and Power that is taking place in Andhra Pradesh. It is the faction that supports and thrives on the direct patronage of the Chief Minister and his groun inside the Congress that rules the roost in the INTUC in this State.
Annexure 'C' is another extract from the Fortnightly Trade Union Record dated 5-1-1959. It complains that ''The top bosses of the National Coal Development Corporation .... managing the collieries in the State Sector, seem to be more anxious to propup the disintegrating INTUC affiliates rather than in implementing the provisions of labour legislations.'
7. The State in its counter affidavit has made a somewhat fatuous denial that
'there is nothing on records -... to show that the trade union movement in the country has 'been monopolised by different political parties.'
The same counter-affidavit also states that no directive or instructions were received at any time fromthe Government of Uttar Pradesh or its Officersthat the Indian National Trade Union Co gressshould be boosted up or given preferential treatment as against other trade unions. To this denialthe petitioners, in their rejoinder, have given theretort that it is hardly possible 'for an officer ofthe Government to disclose secrets of the department'.
However, it is not necessary for this Court toconsider whether or not there has been any discrimination in favour of the INTUC or any otherlabour organization. It is, however, beyond dispute that there have been in fact complaints aboutsuch discrimination. The Court will also acceptthe statement of the petitioners that the IndianNational Congress, the Praja Socialis, Party and theCommunist Party of India are intimately connected respectvely with the INTUC the Hind MazdoorSabha and the AITUC. This statement has not beenseriously controverted by the respondents beyondsaying that ,
'there is nothing on records of the deponent to show that the Trade union movement in the country has been monopolised by different political parties.'
8. Mr. S.C. Khare, who argued the case for the petitioners with ability, impugned the validityof the constitutionality of Sub-section 3 of Section 6-I on the simple ground that the two years qualification imposes an unreasonable restriction on the petitioners' right of association guaranteed under Article 19(c) of the Constitution. He impugned the legality of the impugned rule 46 on the same ground and also on the additional ground that the rule goes beyond the limits permitted by the statute. In a nutshell, therefore, the impugned statute is attacked as unconstitutional and the impugned rule as both unconstitutional and ultra vires of the statute itself. I shall now consider this argument on merits.
9. Section 6-I runs as follows:
''Representation of the parties -- (1) Subject to the provisions of Sub-sections (2) and (3) the parties to an industrial dispute may be represented before a Board, Labour Court, or Tribunal in the manner prescribed.
(2) No party to any proceeding before a Board, shall be represented by a legal praclitioner, and no party to any proceeding before a Labour Court ' or Tribunal shall be represented by a legal practitioner, unless the consent of the other party or parties to the proceeding and the leave of the Presiding Officer of the Labour Court or Tribunal, as tire case may be, has been obtained.
(3) No officer of a Union shall he entitled to represent any party unless a period of two years has elapsed since its registration under the Indian Trade Unions Act, 1926 and the Union has been registered for one trade only: Provided that an officer of a federation of unions may, subject to such conditions as may be prescribed, represent any party'.
10. Thus under Sub-section (3), no officer of a Union is entitled to represent any party in an industrial dispute unless a period of two years has elapsed since its registration under the Trade Unions Act, 1926 and the Union has been registered for one trade only. But the proviso to this Section makes an exception in favour of a federation of unions and provides 'that an officer of such a federation may, subject to such conditions as may be prescribed, represent any party:' The nettresult of Sub-section (3) therefore is that whereas A union is not entitled to represent workmen in an industrial dispute until it is two years old since the date of its registration, a federation of unions suffers from no such restriction
It is true that even the right of a federation to represent workmen is subject to conditions which may be prescribed. 'Prescribed' means prescribed under the rules. But the Government cannot, under the guise of its rule-making power under Section 23 of the Act, insert any provision in the rules which will negate a provision of the Act. This is precisely what Government have done by introducing the two years' qualification for a federation of unions in the amended Rule 40.
Whereas the statute says that the two years rule shall not apply to a federation, Government have re-introduced this condition through the hack-door of the rule-making power. This is clearly illegal. I, therefore, hold that the proviso to Sub-rule 3 of Rule 40 which enjoins that no federation of unions shall be entitled to apply for approval unless a period of two years has elapsed since its formation is ultra vires of the statute and illegal,
11. Mr. Khare's next contention is that the amended Rule 40 vests the Labour Commissioner with an arbitrary power to allow or reject the application of any federation for permission to represent workmen in industrial disputes at his discretion. That being so, this part of the rule is hit by Article 14 of the Constitution. I shall now examine this contention on merits.
12. The right to form associations or unions, guaranteed under Article 19(c) of the Constitution include the right of workmen to form trade unions for a lawful purpose. The purpose of an association is an integral part of the right, and if the purpose is restricted, the right is inevitably restricted. The right to form an association is not a right to be exercised in a vacuum or an empty or a paper right. Citizens do not begin to enjoy this right effectively immediately after forming an association or a union on paper. The enjoyment and fulfilment of the right begins with the fulfilment of the purpose for which the association is formed. The word 'form' has been held to refer not only to the initial commencement of the association but also to the continuance of that association. If, however, the State tries to circumvent Article 19(c) by placing restrictions on the objects or purposes or the normal functioning of an association, this would amount to an indirect restriction on the right itself.
I agree with the learned counsel for the petitioners that the State cannot do indirectly what it is prohibited to do directly. As was observed by the Supreme Court in In re Kerala Education Bill, AIR 1958 S C 956 at p. 985,
'.......The legislative power is subject to thefundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly'.
In the reference before them the Supreme Court held that the indirect effect of the Kerala Education Bill would be to deprive them virtually of certain rights guaranteed under Article 30(1) of the Constitution. The same principle would apply to the facts of the present case
13. It is a matter of common knowledge that the primary purpose for forming a fade union is to enable its members to take collective action for safeguarding their own interests. A Trade Union has been described as
'an association of wage-earners or salary earners, formed primarily for the purpose of colleetive action for the forwarding or defence of its professional interests'. (Chambers' Encyclopaedia Volume XIII page 725). 'The primary purose of Trade Union is collective bargaining, based ultimately on the right to strike. But the strike is, in fact, usually invoked only as a last resort. Trade Unions accordingly prefer to settle questions by means of negotiations, either with employers singly or, more often nowadays, with employers' associations or federations, or direct with the State'. (Everyman's Encyclopaedia III Edition page 356). In the peculiar conditions of India, collective bargaining on behalf of workmen is almost the only function of the overwhelming majority of the trade unions, the subsidiary purpose of functioning as friendly societies conferring malterial benefits on the members being almost unknown in this country. It is therefore obvious that any provision which prevents, permanently or temporarily, a trade union from representing workers in an industrial dispute would have the effect of frustrating its primary purpose and would amount to an indirect restriction on the right of its members guaranteed under Article 19(c).
As stated above, workmen form trade unions for the primary purpose of representing them in collective bargaining in an industrial dispute. But if this very purpose is thwarted or restricted the right of forming association itself becomes illusory. I therefore hold that the effect of the rejection of the application of the federation for permission to represent its members or the rejection of its application for approval by the Labour Commissioner for purposes of such representation would amount to 'restriction within the meaning of Clause 4 of Article 19 of the Constitution. I shall now consider whether the restriction imposed by the amended Rule 40 is reasonable or not.
14. Mr. Khare contended that Sub-rule 4 vests the Labour Commissioner with an absolute and arbitrary power to approve or disapprove of a federation of unions according to his own sweet-will. He pointed out that no principles or criteria have been prescribed for the guidance of the Labour Commissioner. He argued that in view of the fact that political parties are vitally interested in their own trade unions and that the Government of this State is controlled by a political party which is interested in a particular trade union, this absolute and arbitrary power is capable of and likely to be abused. As far as I am able to understand learned counsel's argument, his case appears to be that discrimination is inherent in this statute.
15. In reply learned Junior Standing Counsel Mr. N. D. Pant, who made an able and gallant attempt to save the impugned rule, contended that this Court should not presume that the officials will necessarily discriminate in favour of any particular category of trade unions when exercising the power under this rule. He relied on an observation of the Supreme Court in Tikaramji v State of Uttar Pradesh, (S) AIR 1956 SC 676 to the effect that public officers are presumed to act fairly. But this presumption holds good only as long as the aggrieved person is not able to adduce facts proving the likelihood of discrimination.
The presumption will be rebutted as soon as facts are placed before this Court showing that the officials in spite of every desire to do justice, may be placed in a position where it is difficult for them to hold the balance fairly between rival claimants. In this case the petitioners' case is that, in view of the peculiar circumstances dominatingthe functioning of the trade unions, the absolute power vested with the Labour Commissioner contains in it a serious possibility of abuse.
16. This Court, in accordance with the guiding principle suggested by the Supreme Court in State of Madras v. V. G. Row, AIR 1952 S C 196, must, in deciding whether any particular law or order of Government restricts unreasonably the right of association guaranteed under Article 19(c), take notice of the existence of conditions relating to organised industrial labour in India. A lot of water has flown under the bridges in all the capitals of the world since 1834 when the 'Tolpuddle Martyrs' were sentenced to transportation by the English Courts for the offence of illegal conspiracy of forming an association of workers. Today organised labour is a recognised force in the modern State.
'Trade Unionism, in most advanced countries, has now achieved a status which involves representation on many public bodies dealing with labour and economic matters. Where the State intervenes in industrial bargaining, Trade Unions are usually given direct representation on wage-fixing bodies (wage-boards, wage councils etcetra). To an increasing extent they are consulted also on question of economic policy and are represented on advisory or controlling bodies appointed to assist the Government in industrial affairs'. (Chambers Encyclopaedia, Volume XIII, page 732).
17. In many countries the trade unions are treated virtually as the fourth estate of the realm. Properly treated, industrial labour functioning through the trade, unions can be one of the pillars supporting the State in any programme or policy of industrial development involving large scale sacrifices on the part of workmen. It is a matter of history that in England, during the Second World War, the Trade Union Congress or the TUC, (to call it by its popular name) was largely successful in, persuading; the British working classes to accept cheerfully the tremendous sacrifices imposed by the 'War effort'.
But the TUC would not have been able to achieve this if it had not been the representative organization of the entire British working class. The policy of every successive British Government regardless of its political creed, has been to maintain and strengthen the Trade Union Congress and its affiliated unions as the representative organization of British workmen. But the position would have been different if British Trade Unionism had been fragmented info several rival organizations owing allegiance to different political parties.
Industrial labour can be a violent explosive force -- as in Czarist Russia -- or a dynamic, constructive force as in Britain, depending upon the attitude and policy of the State towards the-Trade Unionism and Trade Unions. Any policy which results in the weakening of Trade Unionism or in its fragmentation or which tends to convert the Trade Unions into camp followers of the political parties is likely to prove injurious to the public interest in the long run, for its ultimate result must be that industrial labour is left with no representative organization which can speak on behalf of the workmen in a particular industry or in industry as a whole.
Disputes between capital and labour as regards their respective share are inevitable, and the purpose of industrial legislation is to strive for the settlement of these disputes by methods of conciliation and negotiation. But the existence of rival Trade Unions in the same industry which owe allegiance to different political parties and some of whom are suspected by their rivals of being unduly favoured by the party which forms the Government of the day, is more likely to hinder than advance the process of conciliation for it is well-known that each rival Trade Union outbids the others as regards the terms to be obtained from the employer in its efforts to show that it alone has the interests of the workmen at heart.
This is a phenomenon which is all too familiar in this country and of which the Court must take notice in any proceedings in which the reasonableness of a particular piece of industrial legislation is called in question.
18. In paragraph 5 of the counter-affidavit filed on behalf of the State there is a reference to the wisdom of the legislature which has given a discretion to the State Government in recognising or not recognising a union for purposes of representing workmen in an industrial dispute. If this paragraph was intended to be a hint to this Court that it should not substitute its own wisdom for that of the legislature in matters of policy, it was hardly necessary: for the Court will readily concede that the wisdom of the legislature must prevail over that of the Court in all matters of legislative policy and executive discretion as long as! the legislature and the Government function according to and within the limit of the Constitution.
Bur when a citizen comes to this Court with a complaint that his fundamental right to form an association guaranteed under Article 19(c) has been violated or unduly restricted, the Court cannot surrender its own judgment in favour of any other organ of the State in deciding whether the impugned restrictions are reasonable or not. Indeed, this Court is under a duty, imposed by Articles 13 and 14 of the Constitution, to act as a sort of constitutional censor of all legislation and to scrutinise at the instance of any aggrieved citizen, any Jaw or executive act and to examine its legality and thus ensure that no unconstitutional legislation or illegal state action slips through its vigilant scrutiny.
Only by performing this duty can this Court effectively protect the fundamental rights of the citizens. This Court is the sole arbiter, subject to the ultimate authority of the Supreme Court in appeal or otherwise, of the question whether any particular law or order of Government imposes an unreasonable restriction on the rights of the citizen. There is no standard of reasonableness prescribed in the Constitution. The makers of the Constitution left it to the wisdom of the High Courts, subject to the ultimate judicial authority of the Supreme Court, to decide what is reasonable according to the facts and circumstances of each case.
The Supreme Court in. its unanimous decision !n AIR 1952 SC 196, laid down certain general principles for the guidance of the courts when called upon to decide whether a particular statute imposes unreasonable restriction on any fundamental right. Their Lordships observed,
'It is important in this context to bear in mind that the lost of the reasonableness, wherever prescribed, shall be applied to each individual statute impugned and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict'.
Thus according to the Supreme Court it is the duty of the Court to take into, consideration the prevailing conditions at the time.' The words 'prevailing conditions' include the state of affairs in the realm in all their aspects, political, social, economic, as well as the urgent needs of the society and the public interest at any given time. The makers of the constitution deliberately refrained from enclosing the word 'reasonable' in any rigid, unchanging encasement. They intended it to be as elastic as possible and capable of changing with the needs of the society from generation to generation.
What was reasonable yesterday may not be so today and what is reasonable today may cease to be so tomorrow. This appears to me to he a fair interpretation of the suggestion of the Supreme Court that the Court should consider the conditions prevailing 'at the time.'
19. In the light of these observations, I have to consider whether the power vested with the Labour Commissioner to approve or reject a Union or Federation of Unions at his discretion is inherently discriminatory and hit by Article 14. The Court has to decide this question in the background of the' existing conditions which reveal the existence En this country of two forces pulling in opposite directions. On the one hand, the interests of the trade union movement as a whole and all the workmen in general may require organizational unity.
On the other hand, the unions dominated by the political parties may take their colour from the political strife in which their respective parties function. The Court must also take note of the fact that any political party will tend to advance its own political interests in every field of legitimate activity, including the field of trade union activity. It must also take note of the fact that different parts of the country are ruled by Government controlled by different political parties with conflicting political interests.
Thus the political interests of the party in office may colour its policy and decisions in the matter of giving recognition to trade unions or permitting them to appear before industrial courts. These facts are relevant in any consideration of the question whether the power vested in the Labour Commissioner to refuse or approve of any particular Union is arbitrary or capable of being abused or exercised in a discriminatory manner. Sufficient facts have been placed before this Court by the petitioner to show that there have been cases where one political party has accused the ruling political party of State of having exercised its powers relating to trade unions for advancing its own political interest.
Now, a Labour Commissioner normally functions under a Labour Minister who is a member of the cabinet drawn from a political party enjoying a majority in the legislature. It therefore becomes necessary for the Court to scrutinise carefully the power vested in the Labour Commissioner or any other authority, and to see whether his discretion is guided by objective principles which will ensure that no political party, while in office, can take advantage of this power for its own political ends. Governments, under the parliamentary system of Government, will come and go but the trade unions and problems of industry and the need for settlement of disputes transcend all parties.
Any law which has an inherent potentiality for discrimination and abuse must be struck down by this Court as discriminatory under Article 14 of the Constitution and therefore an unreasonable restriction not warranted by Clause 4 of Article 19.
20. Learned counsel for the State contended that the guiding principles are specified in the preamble to the U. P. Industrial Disputes Act and the Labour Commissioner is expected to 'exercise his power under Rule 40 in accordance with the principles enunciated in the preamble. But the preamble merely states,
'Whereas it is necessary to provide for powers to prevent strikes and lock-outs and for the settlement of industrial disputes and other incidental matters ..........'.
21. Learned counsel for the State then contended that the object of the two years' rule is to discourage any mushroom growth of the trade unions and to ensure that a particular trade union will have acquired sufficient maturity or experience before it is permitted to represent its workmen, I am not impressed with this argument for it ignores the fact that a trade union is formed by the workmen themselves after they have come to the conclusion that they need an association which will represent them in proceedings under the Industrial Disputes Act.
The acquirement of wisdom or maturity or experience by a trade union is a deceptive and illusory notion; it is the wisdom and experience of the workmen forming the association which matters, The state may impose any reasonable test to ensure that a trade union or federation is genuinely representative of workmen and is not a bogus organisation set up by adventurers or imposters.
But it cannot withhold or delay recognition on the alleged ground of immaturity or lack of experience of the organisation. Tests which may be imposed for entry into professions like the' bar have no relevance to associations or trade unions. It is not contended by the State that the petitioner Sangh is not a representative organisation. The Sangh's allegation that 23 registered trade unions are affiliated to it has not been denied.
22. Learned counsel for the State then con-tended that the two years' rule is necessary to enable the workmen to know whether its officials are really competent and able to represent them honestly and efficiently in industrial disputes. I am not impressed by this argument. If at the end of two years the workmen come to the conclusion that the office-bearers of the union are not competent and have to be replaced by another set of office bearers, logically the Union should be made, to wait for another two years before deciding whether the new office-bearers are worthy of their confidence or not. It is always open to the members of a trade union to dismiss at any time its office bearers and to replace them by others whom they consider more competent, and there is no reason why they must wait for two years before 'sacking' an undesirable set of officials.
23. Learned counsel for the State lastly contended that the prescribed form of application contains material for the guidance of the Labour Commissioner. He referred to Form 20 which a federation is required to fill when applying for approval under Rule 40. The particulars to be given in this Form cannot form any guiding principle for the Labour Commissioner nor was learned counsel for the State able to show how they form any criteria for approving or rejecting a trade union under Sub-rule (4) of Rule 40. Learned Junior Standing Counsel then contended that the impugned law merely regulates a right of the trade union or a federation to represent workmen in proceedings before the Industrial Courts, but that this cannot be regarded as a restriction on the workmen's right to form an association.
This argument has been partially considered already. The short answer to it is that an indirect restriction can be as effective in destroying the purpose of an association as a direct restriction. I have already observed that in India the primary, and in most cases, almost the sole function of a trade union is to represent them in collected bargaining with employers that is, to lead them in case of a strike and represent them in proceedings before industrial tribunals. Now, the right to strike has been severely regulated and curtailed by the Industrial Disputes Act.
The only other function left is to represent the workmen before the Industrial Courts. But it permission to represent is withheld, the effect must be to paralyse the Union and turn it into a purposeless, lifeless and virtually non-existent association, Indirectly, therefore the right of workmen to form an association for the primary purpose of representing them before industrial tribunals would be effectively restricted if their trade union or federation is refused permission to represent them.
25. It was then contended by the learned counsel for the State that the right to represent is only held in abeyance but not permanently taken away. He argued that it does not very much matter if a trade union or federation is asked to wait for two years before representing the workers. I do not agree. Two years is a long time for keeping the functioning of a trade union in abeyance. In the peculiar conditions of India workmen expect immediate result from their membership of a trade union.
As representing workmen in industrial disputes is almost the sole benefit derived by workmen from a trade union, the result of the two years condition must be to prevent it from offering any benefit to the workmen during this period. Workmen will not ordinarily agree to waste their hard earned wages in subscriptions for a new union which will yield no results for two years. Their position cannot be likened to the of investors who sink capital in an enterprise which are not likely to bring profits for sometime but will ultimately prove profitable.
The two years' rule therefore is calculated to weaken and even disintegrate new unions already formed and to discourage the formation of new unions in the future. If the object of this law were to bring about the unity of the entire trade union movement Sn the State by discouraging fragmentation of trade unions the Court might have been inclined to hold that it is reasonable. I leave this hypothetical question open. But the impugned law is not calculated to bring about this result, nor was it argued before me that thisis its object. It is likely to operate in favour of the older federations which are attached to political parties and, which cannot but have a vested interest, for political reasons, in their monopoly of the right to represent workmen.
25. It is possible for this Court to visualize restriction on the right to represent workmen which it will regard as reasonable. For example, any provision requiring that a trade union must show a minimum strength of membership to qualify for the right to represent workmen will be upheld as reasonable, for its obvious purpose would be to ensure that the right to represent the workmen shall be enjoyed by associations genuinely representing workmen but not by imposters, like the three Tailors of Tooley Street who claimed to speak on behalf of the 'Tailors of England'. It was held by the Supreme Court in Raja Kulkarni v. State of Bombay. AIR 1954 S. C. 73 that a provision requiring a certain percentage of membership before a union can be allowed to represent the workers as a class to the exclusion of others is neither an infringement of Article 19 nor of Article 14.
26. But in this case the imposition of the two years' rule, cannot be regarded as a reasonable restriction. If the workers have formed an association for the purpose of representing them it is not for the State to say that they must wait for two years before their association can represent them. The position would be somewhat similar if the Bar Councils Act were to provide that a Bar Association formed by advocates or lawyers to represent them will not be allowed so to represent before the expiry of two years. Provisions for insuring that a trade union is a genuine association of workers are permissible, but an arbitrary rule preventing an association from functioning for two years is not. In the case of a trade union, such a rule may cripple it permanently.
27. No other reason or fact was adduced to justify the imposition of the two years rule or the absolute discretion vested in the Labour Commissioner to grant or withhold permission to a Union or federation to represent workmen before Industrial Courts. But learned counsel for the State relied on two decisions of Oak, J. in Writ Petition No. 1298 of 1958 and District Labour Federation Pilibhit v. State of Uttar Pradesh, Writ Petition No. 1212 of 1958 respectively in which the learned Judge held that he saw no good ground for holding that Section 6-I of the U. P. Industrial Disputes Act 1947 or Rule 40 is invalid.
But the learned Judge considered only the grounds which were addressed to him. In the first case, it was not argued before him that the impugned section and rule are unconstitutional. Therefore, that judgment is not helpful to the case of the Stale. In the second judgment, an argument based on Articles 14 and 19 was addressed to the Court, but the foundation of the case under Article 14 was the alleged discrimination between workmen and employers. It was contended that Rule 40 provided different rules for the representation of workmen and the employers. This contention was rejected by Oak, J. But the question that Rule 40 vested a Labour Commissioner with the arbitrary power and that discrimination was inherent in it was not argued. Dealing with the argument based on Article 19(c), Oak, J. observed as follows:
'Sub-clause (c) of Article 19(1) deals with the right to form Associations or Unions. There is nothing in Section 6-I of the Act or in Rule 40 to interfere with the right of workmen to form Associations or Unions. Workmen are free to form TradeUnions. The petitioner has been registered under the Trade Unions Act. All that section 6-I and Rule 40 have done is to restrict, the right of Unions and Federations to represent parties before Industrial Tribunals. Such restriction of rights Of Unions or Federations does not amount to violation of the right of workmen to form Associations or Unions. There is no infringement of Article 19(1)(c) of the Constitution.'
28. This is the only paragraph dealing with this argument. There is nothing in this judgment to show that the Court was addressed on the question whether the two years' rule interferes with the primary purpose of an association and therefore with the right of wrokmen to form an association for that purpose. Thus, this judgment too is not of much avail to the State.
29. For the reasons given above, I hold that the proviso to Sub-Rule (3) of Rule 40 which enjoins that no federation of unions shall be entitled to apply for approval unless a period of two years has elapsed since its formation is ultra vires of Section 6-I of the U. P. Industrial Disputes Act 1947 and void, I also hold that this provision is an unreasonable restriction on the right of the workmen to form an association and is therefore ultra vires of Article 19(c) of the Constitution.
30. I further hold that Sub-rule (4) of Rule 40 vests the Labour Commissioner with an absolute power to approve a federation or reject its application, that this power is unguided by any principles or criteria and that discrimination is inherrent in this provision. Accordingly this Sub-rule is hit by Article 14 of the Constitution which also makes the provision an unreasonable restriction on the right to form an association. It is well settled that a power which is discriminatory under Article 14 cannot be reasonable under Article 19(4). I further hold that Sub-section (3! of Section 6-I of the U. P. Industrial Disputes Act providing that no officer of a union shall be entitled to represent any party unless a period of two years has elapsed since its registration is an unreasonable restriction on the right of workmen to form an association and is therefore ultra vires of Article 19(c) of the Constitution.
31. The next question is regarding the appropriate relief to be granted to the petitioners. The petitioners have stated that an application on behalf of the Sangh petitioner No. 1 under Rule 40 is pending before the Labour Commissioner U. P. in which the Sangh has prayed for his approval for the purpose of representing its workmen in certain proceedings pending before the Regional Conciliation Officer, Lucknow. In my opinion, the proper relief would be in the following terms :
32. This Court directs the issue of a writ in the nature of mandamus commanding the Labour Commissioner U. P. to dispose of the applications of the Uttar Pradeshiya Shramik Maha Sangh Lucknow petitioner No. 1 according to law and in accordance with the principles laid down by this Court in this judgment.
33. In the circumstances of this case thereshall be no order as to costs.