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Registrar of Trade Unions, West Bengal Vs. Mihir Kumar Gooha - Court Judgment

LegalCrystal Citation
SubjectInsurance
CourtKolkata High Court
Decided On
Case NumberAppeal No. 98 of 1961
Judge
Reported inAIR1963Cal56,[1962(5)FLR339],(1963)ILLJ100Cal
ActsTrade Unions Act, 1926 - Sections 2, 6, 11(1) and 22
AppellantRegistrar of Trade Unions, West Bengal
RespondentMihir Kumar Gooha
Appellant AdvocateM.M. Sen and ;B.C. Basak, Advs.
Respondent AdvocateM.C. Chakravarty, Adv.
DispositionAppeal dismissed
Cases ReferredState of Bombay v. Hospital Mazdoor Sabha
Excerpt:
- sinha, j. 1. this is an appeal, against an order made by mitra, j., on the 19th september, 1960 by which he allowed an appeal under section 11 of the indian trade unions act, 1926 against the order of the registrar of trade unions, west bengal, cancelling the certificate of registration no. 3487 granted to the employees' state insurance corporation employee's union. the facts are shortly as follows : the employees' state insurance corporation came into existence under the provisions of a central act, namely, the employees' state insurance act (act no. xxiv of 1948). it is art act to provide for certain benefits to employees in case of sickness, maternity and 'employment injury' and to make provisions for certain other matters in relation thereto. at a meeting of (the employees of ft the.....
Judgment:

Sinha, J.

1. This is an appeal, against an order made by Mitra, J., on the 19th September, 1960 by which he allowed an appeal under Section 11 of the Indian Trade Unions Act, 1926 against the order of the Registrar of Trade Unions, West Bengal, cancelling the certificate of Registration No. 3487 granted to the Employees' State insurance Corporation Employee's Union. The facts are shortly as follows : The Employees' State Insurance Corporation came into existence under the provisions of a Central Act, namely, the Employees' State Insurance Act (Act No. XXIV of 1948). It is art Act to provide for certain benefits to employees in case of sickness, maternity and 'employment injury' and to make provisions for certain other matters in relation thereto. At a meeting of (the employees of ft the Employees' State Insurance Corporation, held on the 7th June, 1956 it was resolved to form a Trade Union of their own. This Trade Union made an application for registration under the Indian Trade Unions Act, 1926. On or about the 28th August, 1956 the Registrar of Trade Unions, West Bengal, certified that the union had been registered under the said Act, the certificate number being 3847. On or about the 20th November, 1957 the Registrar issued notice to the Secretary of the Union that it was his intention to cancel the registration of the said Trade Union on the following grounds, unless cause was shown to the contrary.

(1) That the certificate had been obtained by mistake and it was wrongly mentioned in the application that the Employees' State Insurance Corporation was a 'profession'.

(2) That the Employees' Slate insurance Corporation could not be regarded as 'trade' or 'industry' and the Employees therefore could not be regarded as 'workmen' under Section 2(g) of the Indian Trade Unions Act, 1926.

2. The Union showed cause. On the 20th March, 1958 the Registrar cancelled the certificate of Registration No. 3847 with effect from the 28th February, 1958. Against the said order of the Registrar, the Union preferred an appeal under Section 11(1)(a) of the Trade Unions Act. This was how Mitra, J. came to consider the matter. To learned Judge allowed the appeal and set asidethe order of the Registrar cancelling the certificate of Registration No. 3847 and directed each party to bear and pay-its own cost. This appeal has been directed against the said order.

3. I must mention here a preliminary objection that has been taken in this appeal. It is, that an appeal does not lie. That an appeal does not lie under the Trade Unions Act is quite clear. As I have stated above, an appeal lies from the decision of the Registrar to the High Court under Section 11(1)(a). But against the decision of the High Court no further appeal has been provided under the Act. It has been argued however, that an appeal lies under Clause 15 of the Letters Patent. Two objections have been taken in respect of such appeal. Firstly, it is said that the judgment of Mitra, J. was itself passed in the exercise of appellate jurisdiction, and therefore, is not appealable, and secondly, there was no declaration by the learned Judge that the case was a fit one for appeal. In my opinion, there is no substance in this argument. A judgment passed in the exercise of appellate jurisdiction is excluded, where it is in respect of a decree or order passed by a court subject to the superintendence of the High Court. That is not the case here, because the Registrar of Trade Unions is not a 'court subject to the superintendence of the High Court'. That an appeal lies under Clause 15 of the Letters. Patent is clear from the Supreme Court decision National Sewing Thread Co. Ltd. Chidambaram v. James Chadwick and Bros, Ltd. : [1953]4SCR1028 . That was a case under the Trade Marks Act 1940. The appellants there made an application to the Registrar of Trade Marks at Bombay for the registration of their mark 'Vulture Brand', under the Trade Marks Act, 1940. This was opposed. The Registrar refused registration. The appellants preferred an appeal against the order of the Registrar to the High Court at Bombay, under the provisions of Section 76 of the Trade Marks Act, which is similar to Section 11 of the Trade Unions Act. Shah J. allowed the appeal and set aside the order of the Registrar and directed him to register the mark as a trade mark. From the judgment of Shah, J. an appeal was preferred by the respondents under Clause 15 of the Letters Patent: of the Bombay High Court, and was allowed. There was a further appeal to the Supreme Court. Mahajan J. held, that the Trade Marks Act did not provide or lay down any procedure for the future conduct of an appeal provided for by Section 77 of the Trade Marks Act. Therefore, after it had reached the High Court, it was to be determined according to the rules, practice and procedure of that court, and in accordance with the provisions of the Charter under which that court was constituted, and which confers on it the powers in respect of the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal lies to a court already established, that appeal, must be regulated by the practice and procedure of that court. See National Telephone Co, Ltd. v. Postmaster General, 1913 A. C. 546 and Adaikappa Chettiar v. Chandrasekha Thevar . It was held that the case of India Electric Works v. Registrar of Trade Marks : AIR1947Cal49 where it was decided that there was no right of appeal from the decision of a single Judge to a Division Bench, with respect to a Trade Marks Act appeal, was wrongly decided. It was. held that in such a case, an appeal lay under Clause 15of the Letters Patent. Clause 15 of the Letters Patent of this High Court is in identical terms, and the provisionsof the Trade Marks Act are similar to the provisions of the Trade Unions Act. I hold therefore, that the appeal is competent under the provisions of Clause 15 of the letters Patent.

4. I now come to the merits of the case. First ofall, we must consider certain provisions of the Trade Unions Act (Act XVI of 1926). This is an Act to provide for the registration of Trade Unions and in certain respects to define the law relating to registered Trade Unions'. Section 2 of the said Act is the definition section. Clause (e) provides that 'registered trade union' means a union registered under the Act. The definitions of the expressions 'trade dispute' and 'trade union' areimportant and are set out below :

'(g) Trade dispute' means any dispute between the employers and workmen or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person, and 'workmen' means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises; and

(h) 'trade union' means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between the workmen and employers or between workmen and workmen or betweenemployers and employers or for imposing restrictive conditions on the conduct of any trade or business andincludes any federation of two or more trade unions'.

5. The word 'trade' or 'industry' has not been defined in the Act. There is no independent definition of the word 'workmen' except as contained in the definitionof the expression 'trade dispute'. Section 4 of the said Act provides that any seven or more members of a tradeunion may, by subscribing their names to the rules of the trade union, and by otherwise complying with the provisions of the said Act with respect to registration, apply for registration of the trade union under the said Act. Section 6 provides that a trade union shall not be entitled to registration unless the executive thereof isconstituted in accordance with the provisions of the said Act and the rules thereof provide for certain matters specified therein. Clause (e) of Section 6 provides that one of such matters relates to the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the trade union is connected, and also the admission of the number of honorary or temporary members as officers required under Section 22 to form the executive of the trade union. Section 22 of the said Act provides that not less than one-half of the total number of the officers of every registered trade union shall be persons actually engaged or employed in an industry with which the trade union is connected, provided that the appropriate Government may by special or general order declare that the provisions of the sectionshall not apply to any trade union or class of trade unions specified therein. Section 8 authorises the Registrar to register a Trade Union after being satisfied that it has complied with all the requirements of the said Act In regard to registration. He then issues certificate under Section 9, Section 10 provides that a certificate of registration of a trade union may be withdrawn or cancelledby the Registrar, inter alia on the ground that he was satisfied that the certificate had been obtained by fraud or mistake. Notice of not less than two months was to be given before the certificate wascancelled. Any person aggrieved by an order made by the Registrar cancelling the certificate of registration, may appeal under Section 11. Where the head office of the trade union is situated within the limits of the Presidency town, the appeal lies to the High Court, There is no provision in the Act for any further appeal. It will be observed that in the instant case the certificate of registration was sought to be cancelled on two grounds viz., that the certificate had been obtained by mistake, it being wrongfully mentioned in the application that the Employees' State Insurance Corporation was a 'profession' and, secondly, because the Employees' State Insurance Corporation could not be regarded as a 'trade' or 'industry' and the employees thereof could not be regarded as 'workmen' under Section 2(g) of the said Act. In the order of cancellation, no reason has been given and it has not been stated whether the cancellation was on both the grounds or any one of them, and if so which. I might mention here that so far as the first ground is concerned, namely, that in the application for registration the Employees' State Insurance Corporation was mentioned as a 'profession', it came to be so because in the form that has been prescribed under the Act for an application for registration, the word 'profession' has been mentioned. It is however, nobody's case that the Employees' state Insurance Corporation is a 'profession' or the employees thereof carry on a profession. This ground was not pressed in the court below and has not been pressed before us. It is however maintained that the said Corporation carries on a 'trade' or 'industry' and the employees thereof are 'workmen' as defined in Section 2(g) of the said Act. It will be observed that in the definition of the expression 'trade dispute', the words 'trade' and 'industry' occur. 'Workmen' according to this definition, mean all persons employed in a trade or industry. In the definition of the expression 'trade union', the words 'trade' and 'business' appear. It follows that there may be a 'trade union' within the meaning of the said Act, not only In connection with a 'trade' or 'industry' but also with a 'business'. Coming now to Section 6, we find that in Clause (e), only the word 'industry' has been mentioned and in Section 22 also, the word 'industry' is only mentioned. Mr. Sen has sought to argue that the definitions of the expressions 'trade dispute' and 'trade union' were intended to be wider, since they mentioned all the three words -- 'trade', 'industry' and 'business' whereas Sections 6 and 22 were not intended to have such a wide scope and were restricted only to the word 'industry'. In other words, the provisions thereof do not extend to any 'trade' or 'business'. I think this argument should at once be rejected. As will be remembered, the whole object of the Trade Unions Act is to provide for the registration of trade unions. The formation of trade union may be made without the help of the Act, but it can only be registered if it complies with the provisions contained therein. The registration of a trade union grants to it many facilities. It is therefore inconceivable that the most relevant provision in the Act, namely the provision as to registration, contained in Section 6 or Section 22,should only have a restricted scope, whereas in the definition section there is recognition of a 'trade union' having a much larger scope of a 'trade dispute' which is correspondingly wide in meaning, it is obvious that the words 'trade', 'industry,' and 'business' have been used indiscriminately and are all within the scope of the Act, which was intended to be wide in scope. The argument put forward on behalf of the respondent is that the expression 'workmen' in Section 2(g) relates to 'trade' or 'industry', whereas the Employees' State Insurance Corporation is neither a 'trade' nor an 'industry'. It will, therefore, have to be considered as to what those expressions mean when used in Section 2(g) of the said Act. Before proceeding further, it is necessary to consider the provisions of the Employee's State Insurance Act, 1948. I have already mentioned the objects of the said Act. Under Section 3, the Central Government may by notification establish, for the administration of the scheme of the Employees' State Insurance, a Corporation to be known as the Employees' State Insurance Corporation. Upon being so established, the Corporation was to be a body corporate having perpetual succession and a common seal. The scheme of the Act is that all employees in factones or establishments to 'which the Act applies, shall be insured in the manner provided by the Act. Contributions are to be paid by the employer as wall as the employee such contributions being received by the Corporation. There are provisions also for grants, donations and gifts from Government or any local authority. Out of the fund so created, the insured persons or their dependants are granted certain benefits, in case of sickness, disablement, injury, death etc. Amongst the purposes for which the fund is to be expended are included the following :

1. Provision of medical treatment and attendance to insured persons and their families.

2. Establishment and maintenance of hospitals, dispensaries and other institutions and the provision of medical and other ancillary services for the benefit of insured persons, and in certain cases to their families.

3. Under Section 29, the Corporation may acquire property and deal with the same. It may also invest monies' and take loans.

4. Under Section 59, the Corporation may with the approval of the State Government establish and maintain, in a State, such hospitals, dispensaries and other medical and surgical services as it may think fit, for the benefit of Insured persons or their families as the case may be.

5. Under Section 66, the Corporation has the right to recover damages from the employer on behalf of the employee in case of injury sustained by an insured person, owing to the negligence of the employer to observe any of the safety rules lawfully prescribed.

6. That being the scope of the activities of the Corporation, it is necessary to consider the question as to whether it comes within the four corners of the Trade Unions Act. I have already stated that the argument is that, in order to come within the scope of the Act, it must either be a 'trade' or an 'industry'. It has even been argued that it must be an 'industry' and nothing else. As I have stated above, the scope of the Trade Unions Act is in reality very wide and Includes all that which falls within the meaning of the expressions 'trade', 'industry' or 'business'. It would be useful now to consider the meaning ascribed to these expressions. The leading case on the subject which is invariably quoted, containing a dicta of Lord Wright, is National Association of Local Government Officers v. Bolton Corporation (1943) AC 166 at p. 184. The learned Judge said:

'... 'trade' is not only in the etymological or dictionary sense, but in legal usage, a term of the widest scope. It is connected originally with theword 'trade' and indicates a way of life or an occupation.In ordinary usage it may mean the occupation of a smallshopkeeper equally with that of a commercial magnate.it may also mean a skilled craft. It is true that it isoften used in contrast with a profession. A professionalworker would not ordinarily be called a trades-man, butthe word 'trade' is used in the widest application in theappellation trade unions'. Professions have their tradeunions . . . .... The Order expressly states in itsdefinition section that 'trade or industry includes the performance of its functions by a public local authority'............. but I take (these words) as Illustratingwhat modern conditions involve -- the idea that the functions of local authorities may come under the expression 'trade or industry'. From another point of view it may be said that every person who seeks to dispose of his services is a trader in that respect'.

7. The dicta of Lord Wright in this case refers to the 'Conditions of Employment and National Arbitration Order, 1940'. Citrine, in his Trade Union Law' Second Edition page 505 (footnote) points out that Lord Wright's dicta is of general application, irrespective of the definition contained in the National Arbitration Order. In the same case, Lord Simon pointed out that there could be a 'trade-union' to which the higher grades of officers of a municipal corporation could belong and It did not seem an impossible use of language to say that a dispute concerning their conditions of service might be a 'trade dispute'. In England, by Section 5(3) of the Trade Disputes Act, 1906 the expression 'workmen' is defined as meaning' 'all persons employed in trade or industry'. This is virtually the same as sec. 2(g) of the Indian Trade Unions Act, 1926. With regard to this definition Citrine says as follows :

'The expression 'trade or industry' in this definition has been interpreted widely by the Registrars of Friendly Societies so as to include, in effect, any gainful employment of a lawful character..........It is suggested thata similar wide interpretation of the definition of a 'work-men' will be adopted by the courts.'

Citrine gives the following examples of associations, the titles of which sufficiently indicate the categories of persons who have been recognised as capable of forming trade unions, Fire Brigades Union, British Airline Pilots' Association, Radio Officers' Union, Women Public Health Officers' Association, Medical Practitioners' Union, Musicians' Union and British Actors' Equity Association.

8. The expression 'trade union' as denned in the English Act, means any combination, whether temporary or permanent, the principal objects of which are under its constitution, the regulation of the relation between workmen and masters, or between workmen and workmen or between masters and masters, or the imposing of restrictive conditions on the conduct of any trade or business. The definition given in the Indian Act, Section 2(n) is substantially the same. After all, the word'trade' forms a part of the expression 'Trade Union', and the purposes for which trade unions have been evolved in the west and have been introduced and adopted in this country are the same. There is therefore no particular reason why the scope of such an institution in India should be considered as more restricted than in England. I now come to the word 'industry' upon which the argument of Mr. Sen is principally based. The argument is as follows: He says that the Word 'industry' has assumed importance because of the provisions of the Industrial Disputes Act. He says that most of the Indian decisions are explanatory of We word 'industry', as used in the said Act. Mr. Sen admits that these decisions have given to the word 'industry' a wide meaning. He however points out that this generous interpretation is solely due to the definition of the word 'industry' as contained in the Industrial Disputes Act. The word 'industry' as defined in the said Act means, 'any business, trade, undertaking, manufacture or calling or employments and includes any calling, service, employment, handicrafts or industrial occupation or avocation of workmen'. The definition of the expression' industrial dispute' in the said Act is equally wide. Mr. Sen points out that even with this wide definition, the courts have interpreted the meaning, guardedly. He draws cur attention to a decision of the Supreme Court, D. N. Banerji v. P. R. Mukherjee : [1953]4SCR302 in which Aiyar J., said as follows :

'In the ordinary or non-technical sense, according to what is understood by the man in the street, industry or business means an undertaking where capital and labour co-operate with each other for the purpose of producing wealth in the shape of goods, machines, tools etc., and for making profits. The concept of industry in this ordinary sense applies even to agriculture, horticulture, pisciculture and so on and so forth. It is also clear that every aspect of activity in which the relationship of employer and employee exists or arises does not thereby become an industry as commonly understood. We hardly think in terms of an industry, when we have regard for instance, to the rights and duties of master and servant, or of a Government and its secretariat, or the members of the medical profession working in a hospital. It would be regarded as absurd to think so : at any rate, the layman unacquainted with advancing legal concepts of what is meant by industry would rule out such a connotation as impossible. There is nothing however to prevent a statute from giving the word 'industry' and the words 'industrial dispute' a wider and more comprehensive import in order to meet the requirements of rapid industrial progress and to bring about in the interests of industrial peace and economy, a fair and satisfactory adjustment of relations between employers and workman in a variety of fields of activity. It is obvious that the limited concept of what an industry meant in early times must now yield place to an enormously wider concept so as to take in various and varied forms of Industry, so that disputes arising in connection with them might be settled quickly without much dislocation and disorganisation of the needs of society and in a manner more adapted to conciliation and settlement than a determination of the respective rights and liabilities according to strict legal procedure and principles.'

9. In the same case, the learned Judge quoted the dicta of Lord Wright in 1943 AC 166 (supra), quoted above. Mr. Sen has also referred to two decisions in which it has been held that solicitors of this court do not carry on an industry unless there are special facts which renderit so. The first decision is one of mine, Brij Mohon Bagaria v. N. C. Chatterji : (1958)IILLJ190Cal and the next decision is that of Mukharji, J., D. P. Dunderdale v. G. P. Mukherjee : (1958)IILLJ183Cal . In both these cases, it was pointed out that in the case of lawyers, attorney or solicitors, their normal avocations are entirely dependent upon their own intellectual attainments and individual skill, with which they act for their clients. In doing so, they may employ many assistants and a large number of staff, but that would not make their profession or business an 'industry'. This principle is by now, well-established. There is however no analogy between the profession of a solicitor and that a body like the Employees' State insurance Corporation. There is , in such a case, no question of any individual skill or intellectual attainment, Aiyar, J: in : [1953]4SCR302 (supra), has himself pointed out that the concept of 'industry' in the modern age, is rapidly outstripping its ordinary sense. In the State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC , Gajendragadkar J. said as follows :

'Let us first read the definition. Section 2(j) provides that 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. It would be noticed that the words used in the definition are very wide in their import and even so its latter part purports to provide an inclusive definition. The word 'undertaking' according to Webster means 'anything undertaken; any business, work or project which one engages in or attempts, an enterprise. Similarly, 'trade' according to Halsbury, in its primary meaning, is 'exchange of goods for goods or goods for money', and its secondary meaning it is 'any business carried on with a view to profit whether manual or mercantile, as distinguished from the liberal arts or learned professions and from agriculture', whereas 'business' is a wider term not synonymous with trade and means practically 'anything which is an occupation as distinguished from a pleasure'...........'

10. As I have pointed out above, in the Trade unions Act, not only the word 'industry' is used, but also 'trade' and 'business.' Mr. Sen argues that the definition of the word 'industry' in the Industrial Disputes Act has been deliberately made wide, and that this wide definition ought not to be imported into the Trade Unions Act. In my opinion, there is no substance in this argument. The definition of the word 'industry' may be wide in the Industrial Disputes Act, but the scope of the Trade unions Act is equally wide, if not wider. The very fact that the scope of the Trade Unions Act includes within it ait the three expressions, 'trade', 'industry' and 'business' shows that the intention was to make the scope of the Trade Unions Act very wide. Even if we take the dictionary meaning of these three words, the horizon is wide indeed. For example, in the Oxford dictionary, the word 'industry' has been stated to mean anything practised for livelihood or habitual employment in useful work. Coming now to the facts of this case, I have already enumerated above the objects of the Employees' State insurance Act and the scheme framed thereunder, for the implementation of which a statutory Corporation has been created, if we give to the expressions 'trade', 'industry' and 'business' a wide meaning, then there is no difficulty at all in Including the Corporation within their ambit. One of the objects of the Corporation is to provide medical facilities for insured persons and their families. This very question as to whether such facilities should come within the scope of the Industrial Disputes Act was dis-cussed in : (1960)ILLJ251SC , Gajendragadkar, J., said as follows:

'In considering the question as to whether the group of Hospitals run by the appellant, undoubtedly for the purpose of giving medical relief to the citizens and for helping to import medical education, are an undertaking or not, it would be pertinent to enquire whether an activity of a like nature would be an undertaking if it is carried on by a private citizen or a group of private citizens. There is no doubt that if a hospital is run by private citizens for profit It would be an undertaking very much like the trade or business in their conventional sense. We have already stated that the presence of pro-fit motive is not essential for bringing an undertaking within Section 2(j). If that be so, if a private citizen runs a hospital without charging any fees from the patients treated in it, it would nevertheless be an undertaking under Section 2(J). Thus, the character of the activity involved in running a hospital brings the institution of the hospital within Section 2(j), Does it make any difference that the hospital is run by the Government in the interpretation of the word 'undertaking' In Section 2 (j)? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of Section 2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference.'

The learned Judge then goes to examine the attributes of an 'undertaking' as defined in the Industrial Disputes Act. In my opinion, the scope of the Trade Unions Act is not less. The learned Judge says as follows :

'It is difficult to state these possible attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged In a manner in which trade or business is generally organised or arranged it must not be casual nor must it be for oneself nor for pleasure, Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which Section 2(j) applies. Judged by this test there would be no difficulty in holding that the State is carrying en an undertaking when it runs the group of Hospitals in question.'

11. In my opinion, this test may well be applied to the expression 'industry' as also 'trade' or 'business' as used in the Trade Unions Act. In this Act also, the profits motive is not essential and the providing of amenities or services to the community or a substantial portion of it, would be sufficient to satisfy the test. The fact that such services are to be rendered by a statutory Corporation makes no difference. The fact that a large number of employees are employed by an employer, to render services for a particular class of persons, in an organised manner, is quite sufficient to bring the Corporation within the mischief of the Act. The employees of such a Corporation are 'Workmen.' as defined in Section 2(g) of the Trade Unions Act and are entitled to form a TradeUnion and get it registered. The learned Judge below, had come to the right conclusion and rightly set aside the order of cancellation passed by the Registrar, Trade Unions.

12. For the reasons aforesaid this appeal fails and should be dismissed with costs.

G.K. Mitter, J.

13. I agree.


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