R.G.D'SOUZA Vs POONA EMPLOYEES UNION
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: C.A. No.-010129-010129 / 2010
Diary number: 26286 / 2009
Advocates: RAMESH BABU M. R. Vs
JYOTI MENDIRATTA
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C.A. @ SLP(C) NOS. 31173-31174 OF 2010 1
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10129 OF 2010
R.G.D’SOUZA ………APPELLANT
Vs.
POONA EMPLOYEES UNION & ANR. ………RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J. The appellant has filed this appeal
questioning the correctness of the Judgment and
order dated 25.2.2009 passed in W.P. No.4048 of
2008 by the Division Bench of High Court of
Judicature at Bombay affirming the order of
Industrial Court, Pune dated 11.04.2008 whereby
the Industrial Court set aside the order of
Additional Registrar, cancelling the
REPORTABLE
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Registration Certificate of the Poona Employees
Union-the respondent No.1 (hereinafter referred
to as the Trade Union), urging various facts and
legal contentions.
2. The factual matrix and the rival legal
contentions are briefly stated hereunder with a
view to find out as to whether the impugned
Judgment and order warrants interference by this
Court under its appellate jurisdiction.
The appellant was the Union President of the
Trade Union when the application for the
Registration of it was submitted. Due to
internal clashes, he was expelled from the Trade
Union. There were some disputes between the
Trade Union and another Union namely, Bhartiya
Kamgar Sena (“BKS” for short) pending before the
Industrial Court. The appellant claimed that he
was an active member in the Labour movement and
an interested party and therefore, filed an
application under Section 10 of the Trade Unions
Act, 1926 (for short “the Act”) before the
Additional Registrar of Trade Unions seeking
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cancellation of the Certificate of Registration
of the Trade Union on the ground that the same
was obtained by fraud, mistake or
misrepresentation.
The ground taken for cancellation of the
registration of the Trade Union was non-filing
of the necessary documents as per the Rules and
Regulation and obtained Registration Certificate
by mistake and fraud which was accepted by the
Additional Registrar of the Trade Unions. The
Additional Registrar of Trade Unions by his
order dated 12.2.2008 cancelled the registration
of the Trade Union.
3. Being aggrieved by the said order, the Trade
Union filed an appeal under Section 11 of the Act
before the Industrial Court, Pune, the Appellate
Authority. After hearing both the parties, the
Industrial Court, Pune passed an order on
11.4.2008, by recording its reasons, set aside
the order passed by the Additional Registrar of
Trade Unions.
4. Being aggrieved by the order passed by the
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Industrial Court, the appellant preferred writ
petition No. 4048 of 2008 before the High Court
of Bombay under Article 226 of the Constitution
of India urging various grounds, inter alia
contending that the order passed by the
Industrial Court is vitiated both on the grounds
of erroneous finding and error in law. The High
Court came out with the following two issues
involved in the petition:
(i) Whether the appellant had locus standi to
invoke the proceedings under Section 10 of
the Trade Unions Act, 1926?
(ii) Whether the Registration Certificate
obtained by fraud or mistake by the first
respondent-Trade Union and so liable to be
cancelled?
5. The High Court rejected the submissions made
on behalf of the appellant and held that the
appellant had no locus to apply for cancellation
of the Certificate of Registration of the Trade
Union and that the view taken by the Industrial
Court on the same is legal and valid.
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6. Mr. C. U. Singh, the learned senior counsel on
behalf of the appellant has argued that the
Industrial Court completely mixed up the issues
while answering the questions of law raised
before it. It is urged by him that at the time of
applying for the registration, the Trade Union
did not follow the provisions under Sections 4
and 6 of the Act. The Trade Union ought to have
specifically mentioned the name/names of any
establishment or nature of any
industry/industries in which the persons employed
were to be united or combined. In the absence of
mentioning the name of industry and non-inclusion
of the same in the schedule in the application in
the prescribed form is a gross mistake on the
part of the Trade Union. Our attention was also
drawn to the application submitted by the Trade
Union before the Registrar of Trade Unions for
its registration. Further, the learned senior
counsel urged on the point of requirement of
specific mention of the object or purpose in the
application for registration by the Trade Union
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by relying upon Indian Express Newspapers (Bom)
Employees Union v. K.M. Desai & Ors.1 and
Maharashtra Engg. Plastic & General Kamgar v.
Chamundi Petroleum & Ors.2 in support of his case.
7. It is also contented by the learned senior
counsel that the registration was obtained by
mistake or fraud by the Trade Union and the same
was not examined by either the Industrial Court
or the High Court.
8. He further contended that the details of the
office bearers of the Trade Union were not given
in the Schedule-I of the list of officers as per
the prescribed Form ‘A’, relevant column 5, under
Section 5(1)(c) of the Central Trade Union
Regulations, 1938. In support of the said legal
contention he has placed reliance upon the
decision of this Court in Forbes Forbes Campbell
& Co. Ltd. v. Engineering Mazdoor Sabha3, wherein
with regard to recognition of a Trade Union this
Court held that filing in the form by furnishing
details is mandatory, and that form and rule must 1 1995 I CLR 677 2 2007 1 CLR 810 3 (1979) 1 SCC 14
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be read in tandem. It was contended that the said
decision with all fours is applicable in
justification of cancellation of Registration
Certificate.
9. It was further contended by the learned senior
counsel for the appellant that the High Court has
erred in law in interpreting the phrase ‘mistake’
occurred under Section 10(b) of the Act stating
that the legislative wisdom which excludes an act
of mistake the power of review can be exercised
by the Registrar of Trade Unions and the order of
cancellation of its Certificate of Registration
can be made, but the High Court has erroneously
held that registration cannot be cancelled by the
Registrar in exercise of the power by him under
Section 10 of the Act.
10. Further, the learned senior counsel placing
strong reliance upon Section 4 of the Act,
pointed out that the Amendment in view of the
first proviso to Section 4 of the Act, which
mandates that no Trade Union of workmen shall be
registered unless at least ten percent or one
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hundred of the workmen whichever is less,
engaged or employed in the establishment or
industry with which it is connected are the
members of such Trade Union, on the date of
making of application for registration. The
second proviso states that no Trade Union of
workmen shall be registered unless it has on the
date of making application not less than seven
persons as its members, who are the workmen
engaged or employed in the establishment or
industry with which it is connected. Such
requirement under Section 4 and its proviso is a
statutory legal requirement for either
registered Trade Union or continues as a
registered Trade Union even after the amendment
to the Act by bringing an Amendment to its
constitution is the legal requirement in
accordance with the aforesaid provisos.
Therefore, he contends that non-compliance of
the said legal requirement by the Trade Union
even after the amendment to the Act has invited
the cancellation of its registration. This
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cancellation was done in the instant case by the
Registrar of Trade Unions at the instance of the
appellant. Since the same was not considered by
the High Court, the impugned judgment and order
is liable to be set aside.
11. On the other hand, Mr. Colin Gonsalves, the
learned senior counsel on behalf of Trade Union,
sought to justify the impugned Judgment and
order passed by the High Court by affirming the
Judgment of the Industrial Court by placing
strong reliance upon the fact that the Trade
Union has been actively working for the welfare
of labourers since 1986. Cancellation of the
Registration Certificate by the Registrar of
Trade Unions at the instance of the appellant is
totally impermissible under Section 10 of the
Act. As per Section 10(a) of the Act, the
Registrar of Trade Unions can take cognizance of
the cancellation on application by a Trade Union
and not that of an individual. It was contended
that the appellant had no locus standi under
Section 10(a) of the Act to challenge the
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Registration Certificate issued by the
Additional Registrar of Trade Unions. It is also
urged by him that as per Section 10(a) of the
Act the mistake ought to be on the part of the
applicant and could not be on the part of the
Registering Authority in support of the said
contention and legal position, the learned
senior counsel has relied upon the judgment of
Karnataka High Court in the case of Registrar,
Trade Unions, Mysore v. M. Mariswamy4, wherein
the Court held as under:-
“Index Note: (A) Trade Unions Act (1926), Section 10(b)- Withdrawal or cancellation of registration on ground of ‘mistake must have been on the part of the applicant Union and not on the part of the Registrar himself- withdrawal or cancellation cannot be made for the mistake of the Registrar himself.”
12. On the point of disclosure of the object,
the learned senior counsel placed reliance on
B.P.L. Group of Companies Karmikara Sangha v.
Commissioner of Labour5 in support of the
4 1974 LAB I.C. 695 5 2001 91 L.L.N. 599
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submission made as stated above.
13. Learned senior counsel appearing on behalf
of the Trade Union further justified the
impugned judgment on three grounds. The
authorisation and approval of the registration
of the Trade Union was made by the Registrar of
Trade Unions. In the absence of prohibition or
prevention under the Statute from being a
general Trade Union, non-furnishing the name of
the industry or industries under Schedule III in
the relevant column Sl. No. 5 of the application
form it is specifically mentioned “any” industry
means “all”, the object of registration of the
Trade Union further fortifies the stand taken by
the Trade Union that it is a general Trade
Union, where it is empowered to have enrolment
of workmen from all the industries which are
situated within the Pune District. Non-
furnishing the name of the industries in respect
of which the Trade Union has been registered
does not vitiate its registration in law.
Therefore, non-furnishing the names of
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industries in the Schedule III portion to the
application in the prescribed form is only
superfluous and making a big issue in this
regard for justification for the cancellation of
Certificate of Registration of the Trade Union
is wholly untenable in law. Non-furnishing of
the names of industries in Schedule III to the
application due to inadvertence cannot be
attributed as fraud or mistake on the part of
the Trade Union to get its registration with the
Registrar of Trade Unions and cancellation of
the same is not permissible in law. It is not
the form, but the substance of the matter and
substantial compliance of the details that are
furnished in the prescribed form ‘A’ by the
Trade Union that matters, this has been done in
the case on hand by the Trade Union and
therefore, the impugned Judgment & order passed
by the High Court is legal and valid. Further,
in response to the reliance placed upon the two
judgments namely, Indian Express Newspapers
(Bom) Employees Union (supra) and Chamundi
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Petroleum Case (supra) by senior counsel for the
appellants, the learned senior counsel for the
Trade Union submitted that they are
distinguishable from the present case on hand.
In the Indian Express Newspapers case (supra),
the constitution of the respondent-Trade Union
which consisted of both journalists and non-
journalists working in the respondent-company
(Indian Express) only mentioned the objects of
the union in Schedule ‘A’ as “printing press”
and did not bear an entry of the newspaper
establishment or a newspaper industry. It was
held in that case that the Constitution of the
respondent-Trade Union did not permit it to
enrol journalists and non-journalists employed
by the respondent-Company and that a newspaper
industry cannot be equated with the “printing
press” industry as publication of newspaper and
periodical involves many more functions. In the
case of Chamundi Petroleum (supra) the
constitution of the Trade Union did not say that
it is in relation to workmen of working in
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petrol pumps. Therefore, the reliance placed
upon the aforesaid two judgments by the senior
counsel on behalf of the appellant to justify
the order of cancellation of the Registration of
the Trade Union are wholly untenable in law as
these cases do not apply to the facts and
circumstances of the case on hand as both the
cases are distinguishable.
14. We have heard both the learned senior
counsels for the parties. After examining the
correctness of the legal contentions, we are in
respectful agreement with the concurrent finding
and reasons recorded by the High Court as well
as the Industrial Court for the following
reasons.
15. As per Section 10 of the Act, the
Certificate of Registration of a Trade Union may
be withdrawn or cancelled by the Registrar of
Trade Union either on application of a Trade
Union inviting the attention of the Registrar of
Trade Unions or the Registrar may suo moto take
cognizance under the said section. There is no
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mention in the said provision about cancellation
of Registration of Trade Union on application by
any other person. The said section permits the
Authority to cancel the registration of the
trade union if, it is obtained by fraud or
mistake, but does not permit the Authority to
cancel the certificate of registration if, the
same is granted by mistake due to incorrect
assessment or non-application of mind or
mechanical act on the part of the Authority.
16. Even for the sake of argument, it is
accepted by us that the mistake is on the part
of the Trade Union and in the opinion of the
Registrar of Trade Unions in exercise of his
powers under Section 10 of the Act cancels the
Certification of Registration of the Trade
Union, then it must be preceded by an enquiry,
followed by show cause notice, disclosing
grounds for initiating action so that the same
can be answered by the noticee Union
effectively. This was not done in the present
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case on hand and the same has been rightly held
by the High Court. Further Rule 8(2) of the
Bombay Trade Union Regulations 1927 clearly
states that:-
“2) The Registrar on receiving an application for withdrawal or cancellation of registration shall, before granting the application, verify himself that the application was approved in general meeting of the Trade Union if it was not so approved, that it has the approval of the majority members of the Trade Union. For this purpose, the Registrar may call for such further particulars as he may deem necessary and may examine any officer of the Union.”
The above said rule was not fully complied
with by the Registrar of Trade Unions and the
appellant has not submitted any approval granted
by a general body meeting or by majority of the
Trade Union for the withdrawal or cancellation
of the registration of the Trade Union. The act
of fraud or mistake cannot be attributed to the
Trade Union since the information provided by
the Trade Union for registering itself is not by
fraud or mistake as mandated under Section 10 of
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the Act.
17. With respect to the provisions of Sections
4, 5, and 6 of the Act & Rules, which provide
for furnishing the details in the application to
be submitted for registration of the Trade
Union. The above said provisions of the sections
clearly state that they must be complied with
for the applying-Union to be entitled for
registration. However, it is essential to note
that the 1st proviso of Section 4; clause (aa),
(b) and (c) of Section 5 and clause (ee) & (hh)
of Section 6 were inserted to the Act only by
the Amendment Act of 31 of 2001, w.e.f.
09.01.2002, whereas the Trade Union was
registered in the year 1986 when part of the
above said provisions were not present.
Therefore, in the present case on hand, although
it was necessary for the Trade Union to comply
with and provide all the necessary details under
the above said provisions that were relevant at
the time of registration, the Registrar either
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by mistake or due to incorrect assessment or
non-application of mind may have issued a
Certificate of Registration to the Trade Union.
This official act by the Registrar of Trade
Unions cannot be nullified by him under Section
10 of the Act, but can only be rectified by the
appellate authority or writ court as rightly
opined by the High Court in the impugned
judgment.
18. In our considered view, the High Court has
correctly held that the word “any” in the
application form and the Rules of the Trade
Union under Section 6 of the Act can be
considered as “all”. The High Court has rightly
held that the word “any” could mean that the
object the Trade Union was to operate in all
types of industries in Pune District. The
necessity of specifying or disclosing the nature
of industry/industries in which the Trade Union
intends to operate and functions came only when
the Section 2 of the amendment Act of 31 of 2001
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(w.e.f. 9.1.2002) was inserted in the Trade
Unions Act, 1926, whereas the Trade Union was
registered in the year 1986. The requirement of
workmen engaged in an establishment or industry
with which it is connected to be members of the
Trade Union came only after Section 4 was
amended and the provisos were incorporated which
came into force w.e.f. 09.01.2002, which is much
after the registration of the Trade Union. The
first part of the proviso mandated that a Trade
Union must have at least ten percent or one
hundred workmen engaged or employed in an
establishment or industry who are members of
such Trade Union on the date of making the
application for registration. The second part of
the proviso mandated that a Trade Union on the
date of making application for registration must
have not less than seven persons as its members
who are engaged or employed in the establishment
or industry with which it is connected. This
requirement was not needed at the time of
registration of the Trade Union as the above
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said amendment to the Act came after the
registration of the same. From the facts and
circumstances of the case on hand, the Trade
Union has neither suppressed nor supplied any
information by fraud or mistake in order to
obtain the Certificate of Registration.
Therefore, discrepancy in providing details in
the prescribed Form ‘A’ being a product of the
above Amendment Act cannot invalidate or is not
a valid ground to cancel the Certificate of
Registration of the Trade Union and the decision
of this Court in the case of Forbes Forbes
Campbell (supra) as relied on by the learned
senior counsel for the appellant is not relevant
in the case on hand.
19. In the light of the above discussion and
reasons assigned by us, we are of the considered
view that the High Court has rightly affirmed
the decision of the Industrial Court, wherein it
has rightly set aside the cancellation of
Certificate of Registration of the Trade Union
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holding that it is not legal or valid. We find
no valid or cogent reasons to interfere with the
same in exercise of this Court’s Appellate
Jurisdiction. The appeal is dismissed. No costs.
……………………………………………………………J. [V. GOPALA GOWDA]
……………………………………………………………J. [C. NAGAPPAN]
New Delhi, November 18, 2014