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Kesoram Rayon Workmen's Union Vs. Registrar of Trade Unions and Ors. (22.11.1966 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Constitution
CourtKolkata High Court
Decided On
Case NumberC.R. No. 562(W) of 1965
Judge
Reported inAIR1967Cal507,(1968)ILLJ335Cal
ActsTrade Unions Act, 1926 - Sections 8 and 11(1); ;Constitution of India - Article 19(1)
AppellantKesoram Rayon Workmen's Union
RespondentRegistrar of Trade Unions and Ors.
Appellant AdvocateSidhartha Sankar Roy, ;Dipankar Gupta and ;Mrityunjay Palit, Advs.
Respondent AdvocatePuspamay Dasgupta, G.P. for Nos. 1 and 2, ;Provat Kumar Sengupta, ;S.K. Mukherjee and ;Manas Nath Roy, Advs. for No. 3 and ;S.K. Acharya, ;K.P. Mukherjee and ;P.D. Himat Singka, Advs. for No. 4
DispositionPetition dismissed
Cases ReferredGuruswamy v. State of Mysore
Excerpt:
- d. basu, j. 1. the petitioner kesoram rayon workmen's union, a trade union of the workmen of respondent no. 4 (kesorani industries & cotton mills ltd.) has brought this petition under article 226 of the constitution on the following allegations:2. the petitioner was registered as a trade union on 7-9-1959. in 1964, it organised a strike to compel respondent no 4 to accede to the demands of its members; on 16-3-1964 the dispute was referred by the state government (respondent no. 2) to the first industrial tribunal and it was followed by an award of the tribunal, dated 4-6-1964, in terms thereof. further disputes having arisen thereafter, various tripartite agreements were entered into by respondent no. 4 at the instance of the petitioner as a result of these activities of the petitionr......
Judgment:

D. Basu, J.

1. The Petitioner Kesoram Rayon Workmen's Union, a Trade Union of the workmen of Respondent No. 4 (Kesorani Industries & Cotton Mills Ltd.) has brought this Petition under Article 226 of the Constitution on the following allegations:

2. The Petitioner was registered as a Trade Union on 7-9-1959. In 1964, it organised a strike to compel Respondent No 4 to accede to the demands of its members; on 16-3-1964 the dispute was referred by the State Government (Respondent No. 2) to the First Industrial Tribunal and it was followed by an Award of the Tribunal, dated 4-6-1964, in terms thereof. Further disputes having arisen thereafter, various tripartite agreements were entered into by Respondent No. 4 at the instance of the Petitioner As a result of these activities of the Petitionr. Respondent No. 4 sought to set up a rival Trade Union of its employees and succeeded in setting up Respondent No. 3. the Kesoram Rayon Sramik Union, consisting of not more than 10 per cent of its employees. In March, 1965. the Petitioner came to know that Respondent No. 3 had submitted an application for its registration as a Trade Union to Respondent No. 1, the Registrar of Trade Unions. Thereupon members of the Petitioner Union submitted a written objection to Respondent No. 1 by a joint petition (Ann. A to the petition). The matter having been sent to the Asstt. Labour Commissioner of the State for inquiry, he submitted a report stating that the application for registration submitted by the rival Union was defective and also contained false signatures and that, accordingly, it should be rejected.

3. Notwithstanding this report of the Asstt Labour Commissioner, however, Respondent No. 1 heard Respondent No. 4. without giving any notice to the petitioner even though the Petitioner pressed for a personal hearing, and made as order for registration of Respondent No. 3 and issued a certificate accordingly, OH the 2nd June, 1965, The petitioner now challenges the validity of the said order of registration of the rival Union and prays for a writ of mandamus and certiorari on the grounds: --

(a) That the order contravenes natural justice as it was made without hearing the petitioner;

(b) That Section 8 of the Trade Unions Act, 1926 (hereinafter referred to as 'the Act'), if it is construed as not requiring a hearing to be offered to an existing Union before registering a new one, contravenes Article 19(1)(c) of the Constitution;

(c) That the impugned order is ultra vires as it was made on extraneous considerations and also because the application submitted by Respondent No. 3 did not comply with the requirements of the statute.

4. Separate affidavits in opposition have been filed by Respondents 1, 3 and 4.

5. On behalf of the respondents a preliminary objection has been taken as to the maintainability of this petition on the ground of absence of locus standi of the petitioner and. in my opinion this objection should succeed, for the following reasons:

6. It is now well settled that in order to maintain an application under Article 226. the petitioner must show that he has a legal right which has been infringed by the impugned act or order Calcutta Gas Co. v. State of West Bengal : AIR1962SC1044 . State of Punjab v. Suraj Prakash, : [1962]2SCR711 ; State of Orissa v Ramchandra : AIR1964SC685 , even though that right or interest may not necessarily be a proprietary interest Venkateswara v. Govt. of A.P., : [1966]2SCR172 .

7. The petitioner urges that as an existing Trade Union, it has a right to be heard before another Union of the workmen under the same employer is registered under the Act. Mr. Roy, on behalf of the petitioner, however, failed to point out any provision in the statute or the regulations made thereunder which confers such right upon an existing union. On the other hand. Section 8 of the Act makes it clear that as soon as the Registrar 'is satisfied that the Trade Union', which has made an application for registration under Sections 4-5, 'has complied with all the requirements of this Act. in regard to registration', the Registrar 'shall register the Trade Union by entering in a register. . . .'. Once, therefore, the Registrar is satisfied that the requirements of the statute has been complied with, it is obligatory upon him to enter in a register the applicant union and he has no obligation to hear the existing unions in the field before making the order under Section 8. In fact, the statute does not deal with the matter of registration from the standpoint of any existing union at all. It is significant to note that though Section 11(1) provides a statutory appeal from an order of refusal to register a union, there is no provision for any appeal or other remedy against an order granting registration. The petitioner, accordingly. challenges the constitutionality of Section 8 itself on the ground that it contravenes the fundamental right guaranteed by Article 19(1)(c) to an existing union such as the petitioner.

8. But this constitutional argument cannot be accepted inasmuch as the rights which are guaranteed by Article 19(1)(c) are:

(a) The right of an individual to form a union along with other individuals All India Bank Employees' Association v. N. I. Tribunal, Bombay, : (1961)IILLJ385SC .

But this very freedom belongs to all workmen under an employer, so that every workman has the freedom to form a union of his own choice and to refuse to become a member of any union if he does not like, Suryapal v. U.P. Govt., : AIR1951All674 (FB); O.K. Ghose v Joseph, : (1962)IILLJ615SC . In the result, no union can claim a monopoly right or a right to complain if some other union is brought info existence by other workmen.

(b) The right of the individuals who form an association to continue it. Sitharamachary v. Sr. Dy Inspector of Schools, Gannavaram Range. AIR 1958 Andh Pra 78.

9. Assuming for the time being that this part of the freedom under Article 19(1)(c) gives to an existing union the right to complain if its continuance is threatened by some State action, such is not the case here. The complaint of the petitioner is not that the impugned order threatens the continuance of the petitioner as a union, but that the impugned order would bring in a competitor. In relation to the freedom of business conferred by Article 19(1)(g), it has been held that it does not confer upon any individual or association the right to carry on a business free of competition from rivals and that, accordingly, any State action which introduces new competitors cannot be challenged as a contravention of Article 19(1)(g), Harnam Singh v. R.T.A. Calcutta, : [1954]1SCR371 . The same principle would apply to the right guaranteed by Article 19(1)(c).

10. It is urged on behalf of the petitioner, however, that if the rival union is registered. Government might refuse to recognise the petitioner so that its efficacy as a trade union to represent the grievances of its members would be lost. But this argument must also fail, for two reasons:

(i) Government has not yet refused to recognise the petitioner or denied it the right to represent its members in relation to the employer, nor taken any steps in that direction.

The Supreme Court decision in Kulkarni v. State of Bombay, (1954) SCR 384: (AIR 1954 SC 73), shows that the right to he recognised by the Government or the right to represent the workmen is not an absolute right guaranteed to a trade union by Article 19(1)(c). Assuming that such right follows from Article 19(1)(c). it is subject to reasonable restrictions. Even if the State had laid down qualifications for being eligible for recognition (as was done in Bombay), the reasonableness of such restriction would be a matter for the Court and it could not be said that such restriction was ipso facto bad.

(ii) Of course, if there was any legislation to the effect that only one union in an industry or establishment would be entitled to recognition, a serious question might be raised that the very bringing in of a second union with the State of statutory registration would prejudice the existence of the petitioner and would render nugatory the right of its members under Article 19(1)(c). In this context, we may refer to the Indian Trade Unions (Amendment) Act. 1947. which provides that a Trade Union would be statutorily eligible for 'recognition' only if 'it is representative of all the workmen employed by the employer in that industry or these industries.' But this Amendment Act has not been brought into force at all. by appointing a date by the Central Government as envisaged by Section 1(2) of the Amendment Act. Nor is there in any provision in the Industrial Disputes Act, 1947 similar to Section 27A and the proviso to Sections 32-33 of the Bombay Industrial Relations Act 1947 (vide Girija Sankar v. Gujarat Spinning Co., (1962) Supp 2 SCR 890) The existing law in Sec 36 of the Industrial Disputes Act 1947, as pointed out by Mr. Acharya. appearing on behalf of the opposite parties entitles any registered union to represent its members.

11. As the law stands to-day, it cannot be said that there is any bar to more than one trade unions to be recognised by the employer or that the very registration of Respondent No. 3 would oust the Petitioner in its relation ship with Respondent No. 4 or would render ineffective its function as a trade union. It cannot, accordingly be held that the impugned order in the instant ease prejudicially affects the Petitioner or that Section 8 of the Act imposes an unreasonable restriction upon the fundamental right of the petitioner inasmuch as it does not provide for offering a hearing to an existing union before registering a new union. The Act, in fact, speaks nothing about recognition of a union by the employer. If Respondent No. 4 or the State eventually refuses to allow the petitioner to represent its members, the petitioner may have a fresh cause of action in an appropriate forum, bat of that we need not say anything in the present proceeding. I am not unmindful of the observation in Venkateswara's case : [1966]2SCR172 , that '. . . in exceptional cases . . ., a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof.' What are those exceptional cases are not mentioned and the statement is not elaborated. From the facts of the case, however, it does not appear that any wider proposition than that arrived at in Guruswamy v. State of Mysore, : [1955]1SCR305 , was intended to be laid down. In Guruswamy's case, : [1955]1SCR305 , it was observed that even a bidder at a public auction was entitled to apply for a writ of mandamus where the authority required by statute to hold a public, auction, had acted contrary to the statute It must be noted that the petitioner in that case, like other persons, had a legal right to bid at a public auction to secure a Government contract, which was denied absolutely by the statutory authority's action contrary to the statute. He, therefore, could insist that the auction must be held according to the statute so as not to prejudice his right to be considered for the contract if the authority had acted according to law, even though he had no legal right to have his bid accepted.

12. In Venkateswara's case, : [1966]2SCR172 (ibid) the shifting of the Health Centre to another place, otherwise than in accordance with the law. affected the appellant, who was the representative a Committee formed by the villagers for the location of the Health Committee at the village from where it was removed by the impugned order.

13. Both these cases lay down that in order to apply for mandamus under Art. 228 to challenge the validity of the order of a statutory authority the petitioner must establish both (i) a legal interest, and (ii) the prejudice thereto by the impugned order. I have already stated that the petitioner before me has no such interest in the matter of registration of a rival union by other members of the establishment, which they had a right to form; nor has the petitioner been prejudiced in any way except by way of the introduction a competitor. This is not a prejudice which the law can take cognisance of, having regard to the (nature of the freedom guaranteed by Article 19(1)(c) of the Constitution.

14. This petition must, accordingly, fail on the ground of absence of locus standi of the petitioner.

15. I may, nevertheless, say a few words on the merits as well.

16. From what has been slated above, it is clear that the first two points taken by the petitioner must fail, namely.

(a) that the impugned order contravenes natural justice, because the Act does not provide for hearing any existing union before making the order and also because there is nothing else in the Act or the nature of this function which would go to show that the Registrar, while exercising his function under Section 8 was discharging a quasi-judicial function and not an executive function, as contended by the Registrar in his counter-affidavit;

(b) that Section 8 itself contravenes Article 19(1)(c) of the Constitution,--because an existing union cannot claim any right to be heard on the right of association guaranteed by Article 19(1)(c).

(c) The third point is that the Registrar has registered a union on extraneous considerations even though it did not comply with the requirements of the Act, in contravention of the terms of Section 8 which lays down the duties of the Registrar in the matter of registration of a Trade Union. One thing is clear from Section 8. namely that if its terms are complied with, it is obligatory upon the Registrar to register a union and that he has no discretion in the matter.

17. The observations in the case of In re. Inland Steam Navigation Workers' Union : AIR1936Cal57 . which was, of course, an appeal from an order of refusal to register, preferred by the union against whom the order of refusal had been made, tend to show that the only duty of the Registrar is to examine the application for registration, ex facie, with reference to the provisions hi Sections 2(h), 4-7 and 16, and that if, the application contains the materials required by Sections 5-6 (subject to the power to call for such particulars under Section 7(1) in order to be satisfied on this point and the power to direct alteration of the name of the union under Section 7(2) the Registrar is bound to register, Derbyshire. C. J. (p. 99 of Cal WN): (at p. 60 of AIR) said:

'In my view, the duties of the Registrar were to examine the application and to look at the objects set out in the Act and if these objects did not go outside the objects prescribed in the Act and if all the requirements of the Act and the regulations made thereunder have been complied with, it was his duty . . . to register the union.'

18. The observations of Costello. J. at p 102 of the Report (Cal WN), (at p 62 of AIR), are also to the same effect. Of course, these observations relate only to the objects of the union as referred to in Section 15, read with Section 2(h), and establish that the Registrar must look into the objects as they appear from the application and its annexure under Section 5 and cannot go into extraneous materials for finding out the objects. In my opinion, whether the application has complied with the other requirements of the Act are also to be determined from the same materials If the Registrar finds that the particulars furnished are not sufficient, he can ask for further particulars from the applicant union itself, under Section 7(2), for the purpose of satisfying himself for the purposes of Section 8.

19. Mr. Roy relied very much on certain decisions under Section 26A of the Income-tax Act, 1922. such as those reported in : [1953]33ITR1(SC) , and : [1958]34ITR130(SC) , to show the extent to which the Registering authority may direct his inquiry. But these decisions it appears are founded on different statutory provisions together with the rules framed under Section 26A of the Income-tax Act, 1922. which lay down certain specific requirements. Though regulations have been made under Section 29 of the Trade Unions Act, these Regulations do not prescribe any procedure to be followed in dealing with an application for registration under Section 8.

20. Leaving the matter of that, let us see how far the provisions of the Act have been violated, so as to have obliged the Registrar to refuse registration, as contended on behalf of the petitioner.

(i) The first point is that out of the 20 persons who subscribed the application for registration on behalf of Respondents Nos. 3, 7 denied their signatures.

Even if this allegation be correct, the application is not in contravention of Section 4(1), which requires the signatures of only 7 members to apply for registration Further if this allegation be true, it is for these persons whose signatures were forged in the application to seek their remedies in a proper proceeding, and it is neither possible nor necessary to enter into this question of fact in this proceeding under Article 226, at the instance of the petitioner union.

(ii) It is urged that the name and address of the employer company was not correctly given in the application. In the application it is stated to be 'Keshoram Rayon Industry, Tribeni'. In the cause title of the petition under Article 226, the petitioner states that it is a union of workmen of 'Messrs. Kesoram Rayon, Tribeni'' If this be correct. I do not think that the description in the application was wrong or misleading. Of course, in the petition. Respondent No 4 is described as Kesoram Industries & Cotton Mills Ltd as Proprietors of 'Kesoram Rayons. Tribeni'. What Section 5(b) requires is the name of the union and its address, which has been correctly given in the application Of course, para 4 of the Form of Application requires the name of the employers to be given, but that is obviously for the purpose of identification That purpose has been served by the contents of the application in question and this contention has no substance.

(iii) The next point urged before me is that there is no provision in the Rules appended to the application for removal of office bearers, as required by Section 6(h) of the Act, which reads:-- 'the manner in which members of the executive and the other office-bearers of the Trade Union shall be appointed and removed.'

The last sentence of Rule 7 says:--

'Any officer or member of the executive committee found incompetent . . . will be removed. . .'

It is urged that the words 'any officer' may refer to an officer of the executive committee and not of the Trade Union, as required by Section 6(h) of the Act. I cannot agree, and I do not think that the Registrar would have been justified in throwing out the application because there was no provision for removal of the office-bearers as stated by the Asstt. Labour Commissioner.

If, in actual working of the Rule, any difficulty is experienced, it would be competent for the union to amend the rule, under the authority of Section 6(g). read with Rule 14, with notice to the Registrar.

(iv) The Asstt. Labour Commissioner pointed out that Section 8 of the Rules provides for the payment of 'financial aid of all kinds from the general fund' of the union. It is contended that this rule is ultra vires the Act inasmuch as the 'objects' referred to in Section 15(j) must be understood to be the intra vires objects of a 'trade union' as denned in Section 2(h). But the Registrar rightly took it to be a typographical error and had got the rule amended as follows, before registration: 'payments of establishments and provisions of benefits, financial and all other kinds shall be met from the general fund of the union.'

What is meant by these words, as amended, is that not only financial benefits but also the costs of all other amenities which may have to be offered to the members of the union in accordance with Rule 3, which enumerates the different heads of expenditure under the head 'objects', shall be met from the general fund.

I find nothing wrong in the Rule after the amendment.

But it is vehemently urged that the Act does not give to the Registrar any power to direct any amendment of the Rules before registration Prima facie, the argument is attractive. But as I have already stated, even after the registration is made, the Rules may be amended, under the express provision of Section 6(G), and the manner prescribed by Rule 14 of the Rules in question, notice of such amendment, has to be given to the Registrar, and the Registrar must register the amendment, under Regulation 9 if the amendment has been adopted in accordance with the procedure laid down in the Rules of the union itself. If the union has the statutory power to amend the Rules immediately after registration, with notice to the Registrar, it would be an unreasonable interpretation to hold that the Registrar cannot ask the union to exercise this power before registration, in order to remove a typographical error.

(v) It was further pointed by the Asst. Labour Commissioner that there was no provision for maintenance of 'account books' and facilities for their inspection, as required by Sections 6(i) and 20 of the Act.

The objection is evidently unsubstantial because Rule 11 says-

'The Joint Secretaries shall arrange . .for the proper maintenance of the differentBooks and Registers The books shall be opento inspection. The account shall be audited. . '

If the entire clause is read together, it is quite clear that the words 'different books' include account books. It is pointed out by the Registrar's office that this is in conformity with the model rules. The point must be rejected.

(vi) The next point raised is as to the alleged inconsistency between Rules 7 and 12 relating to the election and appointment of officers.

These rules relate to Section 6(h) which requires that the manner of appointment of the members and office-bearers must be provided in the Rules Now. Rule 7 says that 'all the members of the Executive Committee shall be elected at the Annual General Meeting.

Rule 12 next provides:--

'Every year there shall be held meeting of the general body of members of theunion to be called the annual general meeting.The quorum for this should be held of thedelegates, elected from members of the unionfrom every department Delegates will beelected one from each 10 members of theunion. The meeting shall dispose of allmatters affecting the general body of members including:

Appointment of the officers of the union for the following year.

The delegates session will be followed bythe meeting of the general body of the members where the decisions of the generalmeeting will be ratified.'

Mr. Roy lays stress upon the words 'ratified' in Rule 12 and contends that instead of the appointment being made by the General Meeting as required by Rule 7, Rule 12 gives only a power of ratification to the General Meeting, the decisions having been already made by the delegates This contention does not appear to be sound inasmuch as the power to ratify includes the power to refuse to ratify The General Meeting does not cease to be the deciding body simply because tentative conclusions have been arrived earlier at a smaller committee of the general body itself. This is the usual practice wherever the larger body is big enough for the purpose of. initiation of concrete proposals. I do not find any conflict between Rules 7 and 12.

(vii) It has next been urged that though the order for registration was made in the 1st June, 1965, account books up to 31-1-65 only were produced before the Inspector for Inspection, and that this is said to be in contravention of Section 5(2) I cannot agree inasmuch as Section 5(2) simply requires that the union must deliver 'together with the application' a general statement of its assets. The application having been submitted on the 15th February, 1965, it was not possible to submit along with that application any statement of assets etc. beyond the end of January. There is provision for submission of returns for subsequent years to the Registrar in Section 28.

This contention must, therefore, be rejected.

(viii) Lastly, it has been contended that, admittedly, the Treasurer. Kamasry Jadava is not a workman but an outsider, and that, accordingly, the constitution of the office-bearers of the union is invalid.

21. It has. however, been rightly contended on behalf of the Respondents that there is nothing in the Act which invalidates the appointment of an outsider as Treasurer. Section 2 (a) and (b) defines 'executive' and 'office bearer' as follows:

'2(a) 'executive' means the body, by whatever name called, to which the management of the affairs of a Trade Union is entrusted;

(b) 'office-bearer' in the case of Trade Union includes any member of the executive thereof, but does not include an auditor ''

22. Section 21A lays down certain dis-qualifications for being a member of the executive or any other office-bearer. Being an outsider is not mentioned as a disqualification in this section. Section 22 then says:--

'22. Proportion of officers to be connected with the industry.--Not less than one-half of the total number of the office-bearer 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 this section shall not apply to any Trade Union or class of Trade Unions specified in the order.''

23. It is evident that the first paragraph of Section 22 would be meaningless if all the officers of members of the executive were required to be workmen of the industry to which the union relates. Of course, the definition of trade union: in Section 2(h) says that a Trade Union is the combination of the workmen engaged in an industry But Section 22 expressly lays down that an outsider may be a member of the executive or other officer of the union, provided the specified percentage is not exceeded. The Schedule to the application does not show that this percentage has been exceeded. Of course this percentage has been reduced to 1/3 by Rule 6 of the Rules so far as the Executive Committee is concerned but, as the Addl. Registrar has pointed out, even that 1/8 limit has not been exceeded and nothing has been shown to me to the contrary.

24. This objection must also fail.

25. There is thus nothing for interference on the merits as well, apart from absence of locus standi on the part of the petitioner to maintain this petition under Article 226.

26. The Rule is accordingly discharged, but. in the circumstance of the case. I would not make any order as to costs.


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