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Judgment
Ramesh Ranganathan, CJ
Heard Mr. Aditya Singh, learned counsel for the appellant, Mr. J.C. Pande, learned Brief Holder for the State of Uttarakhand and Mr. M.C. Pant,
learned counsel for the first respondent-writ petitioner.
This Special Appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 1404 of 2019 dated 12.09.2019.
The first respondent herein filed Writ Petition (M/S) No. 1404 of 2019 seeking a writ of certiorari to quash the order passed by the Registrar, Trade
Unions dated 06.05.2019; and a writ of mandamus commanding and directing the respondent-authorities to register the petitioner’s Trade Union
keeping in view the facts highlighted in the body of the Writ Petition.
Facts, to the limited extent necessary, are that the first respondent-writ petitioner moved an application, for registration of its Trade Union, on
22.12.2018 alleging ill-treatment of workers, and other violation of the labour laws by the appellant-company. The appellant herein raised an objection,
against such registration, by their letter dated 24.12.2018. The first respondent-writ petitioner, thereafter, made an application, on 01.03.2019, before
the Deputy Labour Commissioner informing him that registration of the Trade Union is pending before the authorities; they had submitted a detailed
reply to the objections of the respondent (appellant herein), along with an affidavit, requesting the authorities to register the Union; after the
application, for registration of the Trade Union was filed, the appellant-company was harassing members of the Union, and were arbitrarily issuing
suspension orders; and all this was against the provisions of the U.P. Industrial Disputes Act, 1947 (for short the “1947 Actâ€). The first
respondent herein also made an application, on 02.03.2019 before the Labour Enforcement Officer, and on the ground that no action was taken
thereupon, regarding registration of their Union, they filed Writ Petition (M/S) No. 829 of 2019 which was disposed of by a learned Single Judge of
this Court, by his order dated 28.03.2019, directing the respondent-authorities to take a decision on the petitioner’s representation dated
01.03.2019, and pass a speaking order within a period of four weeks from the date of production of a certified copy of the order. The first respondent-
writ petitioner claims to have served a copy of the order, passed in Writ Petition (M/S) No. 829 of 2019 dated 28.03.2019, on the Registrar, Trade
Unions by their representation dated 09.04.2019. It is their case that the appellant-company had, thereafter, dismissed certain members and office
bearers of the first respondent-writ petitioner’s Union on 20.04.2019; and, by his order dated 06.05.2019, the Registrar, Trade Unions had refused
to register the first respondent-writ petitioner’s Union holding that they had not removed those members, who were dismissed from service, from
the membership of the Trade Union.
The order passed by the Registrar, Trade Unions on 06.05.2019 (a copy of which is filed along with the Writ Petition) records that three of the
seven members, who had submitted the application for registration of the Union, were no longer in the services of the appellant-company; and, since
their services were terminated and as one other member of the Trade Union had also been placed under suspension, the application for registration of
the Trade Union was not maintainable. Yet another ground for rejecting the application was that the first respondent-writ petitioner’s Union had
failed to comply with Clause 11 of the by-laws of the Trade Union. Clause 11 of the by-laws of the Trade Union required that persons, whose
services have been terminated, should be removed from the membership of the Union.
On the first respondent-writ petitioner questioning the order of rejection, passed by the Registrar, Trade Unions, by filing Writ Petition (M/S) No.
1404 of 2019, the learned Single Judge, in his order dated 12.09.2019, after taking note of Section 4(1) of the Trade Unions Act, 1926 (for short the
“1926 Actâ€), observed that the application for registration was made by seven members on 12.11.2018 as required under Section 4(1) of the 1926
Act, and thereafter on 17.12.2018 and 20.12.2018, disciplinary proceedings were initiated against three members of the Trade Union, who had moved
the application affixing their signatures in terms of Section 4(1) of the 1926 Act, for registration of the Trade Union; on the jurisdiction of this Court
being invoked, by way of Writ Petition (M/S) No. 829 of 2019, an order was passed on 28.03.2019; a certified copy of the order dated 28.03.2019 was
placed before the Registrar, Trade Unions on 09.04.2019; before an order could be passed by the Registrar, the employer passed an order on
20.04.2019 terminating the services of three workmen who happened to be among the signatories of the application submitted to the Registrar, Trade
Unions under Section 4(1) of the 1926 Act; while the services of three of the seven signatories were terminated, another was suspended by orders
dated 17.12.2018 and 20.12.2018; even if it was assumed that the termination of the services of the three members was legal, even then four
members remained among the seven members, who had submitted the application under Section 4(1) of the 1926 Act; this satisfied the requirement of
Section 4(2) of the 1926 Act, which deems an application not to have become invalid merely by reason of the fact that, after an application is made
but before registration of the Trade Union, some of the applicants, not exceeding half of those who made the application, had ceased to be the
members of the Trade Union or have given notice in writing to the Registrar dissociating themselves from the application.
The learned Single Judge further observed that, merely because the fourth member was suspended from service, he did not cease to be an
employee of the appellant-company; and, since the requirement of four members surviving as members of the Trade Union post the application was
satisfied, the application for registration ought to have been considered by the Registrar, Trade Unions; and rejection of the application was illegal.
Thereafter the learned Single Judge, relying on the judgment of the Supreme Court, inA ssam Oil Co. Ltd., New Delhi v. Its Workmen : AIR 1960 SC
1264, held that the right to form a Trade Union was not only available under a Statute, but was also a fundamental right under Part III of the
Constitution of India. The order impugned in the Writ Petition dated 06.05.2019 was set aside, and the Registrar, Trade Unions was directed to
promptly take action and pass an order, on the application of the respondent-writ petitioner, within a period of three weeks from the date of production
of a certified copy of the order. Aggrieved thereby, the fourth respondent in the Writ Petition is now in appeal before us.
Mr. Aditya Singh, learned counsel for the appellant-fourth respondent, would submit that, under Section 4(1) of the 1926 Act, a minimum of seven
members should make an application for registration of the Trade Union; once an application is submitted then, as long as not more than half of those
who applied for registration, remain in service, the application for registration is required to be examined; of the seven employees of the appellant-
company, who applied for registration, the services of three of them were terminated, they ceased to be the employees of the appellant-company, and
automatically ceased to be the members of the Union; the fourth member, who was suspended from service, has also ceased to be a workman in
terms of Section 2(z) of the 1947 Act; consequently only three of the seven members remained; since the requirement of Section 4(2) is also not
satisfied, the Registrar, Trade Unions was justified in rejecting their application; further, in terms of Clause 11 of the by-laws of the Trade Union,
employees, whose services have been terminated, should have been removed from the membership of the Union; and yet the first respondent had
failed to remove the names of these persons from their list of members.
Mr. J.C. Pande, learned Brief Holder for the State of Uttarakhand, would submit that, against the order passed by the Registrar, Trade Unions, an
appeal lies under Section 11 of the 1926 Act; without availing the appellate remedy, under Section 11 of the 1926 Act, the first respondent-writ
petitioner had invoked the extra-ordinary jurisdiction of this Court; and the Writ Petition was, therefore, liable to be dismissed relegating them to avail
the alternative remedy of an appeal.
On the other hand Mr. M.C. Pant, learned counsel for the first respondent-writ petitioner, would submit that existence of an alternative remedy
does not bar exercise of jurisdiction under Article 226 of the Constitution of India; suspension of an employee does not result in cessation of
employment; consequently, even if the termination of the services of three of the applicants, by the appellant-company, is presumed to be valid, even
then four of them would still continue to remain the employees of the appellant-company; and their application for registration, under Section 4(1) of
the 1926 Act, should have been considered by the Registrar; reliance placed on behalf of the appellant-company on the definition of a “workmanâ€,
under Section 2(z) of the 1947 Act, is misplaced; the definition of a “workmanâ€, under Section 2(g) of the 1926 Act, is far wider; the appellant-
company is resorting to all illegal measures to ensure that the Trade Union does not come into existence; all sorts of unethical and illegal practices
have been resorted to, to ensure that the Union is not registered; and, since the order under appeal does not suffer from any patent illegality, no
interference is called for. Learned counsel would also put the maintainability of an intra-Court appeal in issue contending that an order passed by the
learned Single Judge, either affirming or rejecting the order passed by the Registrar, Trade Unions under Section 4(1) of the 1926 Act, cannot be
questioned by way of an intra-Court appeal in view of Chapter VIII Rule 5 of the Allahabad High Court Rules.
We see no reason to examine the submission of Mr. M.C. Pant, learned counsel for the first respondent-writ petitioner, regarding the
maintainability of an intra-Court appeal, since we are satisfied that the appeal necessitates rejection on other grounds.
Before examining the submissions of Mr. Aditya Singh, learned counsel for the appellant-company, it is necessary to examine, at the outset, the
submission of Mr. J.C. Pande, learned Brief Holder for the State Government, that the first respondent-writ petitioner could not have invoked the
jurisdiction of this Court since he has an appellate remedy under Section 11 of the 1926 Act, against the order passed by the Registrar, Trade Unions.
Section 11(1) of the 1926 Act enables any person, aggrieved by the refusal of the Registrar to register a Trade Union, to prefer an appeal within such
period as may be prescribed. In terms of Section 11(4) of the 1926 Act, an appeal would lie to the High Court against the order passed in appeal under
Section 11(1) of the 1926 Act.
The mere existence of a statutory remedy of an appeal under Section 11(1) of the 1926 Act, or for that matter a second appeal there-against
before the High Court, under Section 11(4) of the 1926 Act, would not bar exercise of jurisdiction under Article 226 of the Constitution of India.
The power of judicial review, conferred on the High Court under Article 226 / 227 of the Constitution of India, is part of the basic structure of the
Constitution (L. Chandra Kumar v. Union of India : AIR 1997 SC 1125.) As the power of Judicial review conferred on the High Court cannot be
negated or circumscribed even by an amendment to the Constitution, no statutory provision - plenary or subordinate, can circumscribe or negate
exercise of such a power conferred on the High Court under Article 226 of the Constitution of India. While this Court would, ordinarily, exercise
restraint and refrain from exercising its discretionary jurisdiction, under Article 226 of the Constitution to interfere, where the petitioner has an
effective alternative statutory remedy, there are exceptions to this self-imposed limitations. This Court would be justified in interference, despite the
existence of an alternative remedy, if the order, impugned in the writ petition, is in violation of principles of natural justice or if the order passed by the
authority is without jurisdiction or in excess of jurisdiction or for failure to exercise the jurisdiction vested in him. (Whirlpool Corporation v. Registrar
Of Trade Marks, Mumbai : (1998) 8 SCC 1.) In the present case, the learned Single Judge has exercised his discretion to entertain the Writ Petition,
and has examined the dispute on its merits. He has also held that the Registrar, Trade Unions has illegally failed to exercise the jurisdiction vested in
him under Section 4(1) of the 1926 Act. Such exercise of discretion to entertain the Writ Petition would, ordinarily, not be interdicted in an intra-Court
appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules.
The scope of interference in an intra-Court appeal is extremely limited. Save cases where the order under appeal suffers from a patent illegality,
no interference is called for. Exercise of jurisdiction by the learned Single Judge, to entertain the Writ Petition, cannot be said to suffer from such a
patent illegality as to warrant interference in an intra-Court appeal. We see no reason therefore, more so at the appellate stage, to non-suit the first
respondent-writ petitioner on the ground that they have not availed the statutory remedy of an appeal under Section 11 of the 1926 Act. The
contention, urged on behalf of Mr. J.C. Pande, learned Brief Holder for the State Government is, therefore, rejected.
The submission of Mr. Aditya Singh, learned counsel for the appellant-company, is that Section 4(2) of the 1926 Act is not attracted in the facts
and circumstances of the present case, as four of the seven members, who had submitted the application for registration of the Union, had ceased to
be the employees of the appellant-company and, consequently, the application filed earlier, for registration of the Union, cannot be continued at the
behest of the remaining three members alone. Reliance is placed in this regard on Section 2(z) of the 1947 Act. It is necessary, therefore, to take note
of certain provisions of both the 1926 Act and the 1947 Act.
The 1926 Act 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(h) of the 1926 Act defines a “Trade Union†to mean any combination, whether temporary or permanent, formed primarily for
the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or
for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions. Section 5 of the
1926 Act relates to the application for registration and, under sub-Section (1) thereof, every application for registration of a Trade Union shall be made
to the Registrar, and shall be accompanied by a copy of the Rules of the Trade Union, and a statement of the particulars mentioned in clauses (a) to
(c) of Section 5(1). Section 6 relates to the provisions to be contained in the rules of a Trade Union, and Section 8 relates to registration. In terms of
Section 8 of the 1926 Act, the Registrar, on being satisfied that the Trade Union has complied with all the requirements of the 1926 Act in regard to
registration, shall register the Trade Union by entering in a register, to be maintained in such form as may be prescribed, the particulars relating to the
Trade Union contained in the statement accompanying the application for registration. Section 9 of the 1926 Act relates to the certificate of
registration and, thereunder, the Registrar, on registering a Trade Union under Section 8, shall issue a certificate of registration in the prescribed form
which shall be conclusive evidence that the Trade Union has been duly registered under the 1926 Act.
Section 4 of the 1926 Act, around which the dispute in these proceedings revolve, provides for the mode of registration. Under sub-Section (1)
thereof, any seven or more members of a Trade Union may, by subscribing their names to the Rules of the Trade Union and by otherwise complying
with the provisions of the 1926 Act with respect to registration, may apply for registration of the Trade Union under the 1926 Act. Under the first
proviso thereto, no Trade Union of workmen shall be registered unless at least ten per cent or one hundred of the workmen, whichever is less,
engaged or employed in the establishment or industry with which it is connected, are the members of such Trade Union on the date of making of the
application for registration. Under the second proviso thereto, no Trade Union of workmen shall be registered unless it has, on the date of making the
application, not less than seven persons as its members who are workmen engaged or employed in the establishment or industry with which it is
connected.
While it is true that the definition of a “workmanâ€, under the second limb of Section 2(g) of the 1926 Act, is extremely wide and means all
persons employed in the trade or industry, whether or not in the employment of the employer with whom the trade dispute arises, the second proviso to
Section 4(1) of the 1926 Act prohibits registration of a Trade Union of workmen unless it has, on the date of making the application, not less than
seven persons as its members, who are workmen engaged or employed in the establishment or industry with which it is connected.
It is not in dispute that the requirements of Section 4(1) of the 1926 Act, and the second proviso thereto, have been complied with since the seven
persons, who made the application for registration, were all employees of the appellant-company. While the application for registration was made on
12.11.2018, three of the employees, who had submitted the application for registration of the Union, were terminated from service by order dated
20.04.2019 long after the application was made by them seeking registration of the Trade Union.
While Mr. M.C. Pant, learned counsel for the first respondent-writ petitioner, would contend that the termination of these three employees is
illegal, and amounts to an unfair labour practice, it is unnecessary for us to examine these issues in the present proceedings, since those employees,
whose services were terminated, would undoubtedly have the remedy of invoking the jurisdiction of the concerned Industrial Tribunal/Labour Court
under the provisions of the 1947 Act. Mr. M.C. Pant, learned counsel for the first respondent-writ petitioner, would submit that proceedings, under the
1947 Act, have been instituted, and are pending before the Labour Court, Haldwani.
Section 4(2) of the 1926 Act provides for a contingency where some of those, who had made an application for registration of the Trade Union
under Section 4(1) of the 1926 Act, cease to be the members of the Trade Union. Section 4(2) stipulates that, where an application has been made
under Section 4(1) for registration of a Trade Union, such application shall not be deemed to have become invalid merely by reason of the fact that, at
any time after the date of the application but before registration of the Trade Union, some of the applicants, but not exceeding half of the total number
of persons who made the application, have ceased to be members of the Trade Union or have given notice in writing to the Registrar dissociating
themselves from the application.
It is not even contended before us that some of those, who signed the application for registration of the Trade Union, have given any notice in
writing to the Registrar dissociating themselves from the application. The submission, on the other hand, is that, consequent on their termination, three
of the applicants, and on his suspension the fourth applicant, have ceased to be the members of the Trade Union sought to be registered by the first
respondent-writ petitioner.
While termination of an employee may not, per se, result in the cessation of membership of the Trade Union, since Clause 11 of the by-laws of the
Trade Union requires action to be taken to terminate the membership of the Union consequent on the termination of the services of an employee, we
shall nonetheless proceed on the premise that those three employees, whose services were terminated, automatically ceased to be the members of the
Trade Union also, in the light of Clause 11 of the by-laws. Even then the requirements of Section 4(2) of the 1926 Act would be satisfied in the facts
of the present case.
As noted hereinabove, Section 4(2) of the 1926 Act is a deeming provision. A legal fiction is created thereby that an application, made under
Section 4(1) of the 1926 Act by seven members of the Trade Union, shall remain valid despite the fact that, after such an application is made but
before the Trade Union is registered, some of the applicants have ceased to be the members of the Trade Union. The said provision, however, places
a restriction and stipulates that the legal fiction would only operate if the applicants, who have ceased to be the members, do not exceed half the total
number of persons who made the application.
In the present case the application, for registration of the Trade Union, was made by seven members and, for half the total number of the
members to be exceeded, four of the members must have ceased to be the members of the Trade Union. Even if we were to presume that three of
the members have ceased to be the members of the Trade Union, consequent on the termination of their services, the requirement of Section 4(2) of
the 1926 Act would still be satisfied as there would still remain four of the seven members who had originally made the application for registration of
the Trade Union.
Mr. Aditya Singh, learned counsel for the appellant-company, would however contend that even the fourth person, whose services were
suspended by the appellant by orders dated 17.12.2018 and 20.12.2018, would cease to be a member of the Trade Union in the light of Section 2(z) of
the 1947 Act. It is necessary, therefore, to take note of the definition of a “workman†under Section 2(z) of the 1947 Act. In terms thereof, a
workman means any person employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward,
whether the terms of employment be express or implied and, for the purposes of any proceeding under the 1947 Act in relation to an industrial dispute,
includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose
dismissal, discharge or retrenchment has led to that dispute.
While we find force in the submission of Mr. Aditya Singh, learned counsel for the appellant-company, that a dismissed, discharged or retrenched
employee would be a workman, under Section 2(z) of the 1947 Act, only for the limited purpose of raising an industrial dispute, or whose termination
from services has led to that dispute, the question which we are required to examine in the present case is whether a workman, who has been placed
under suspension, can be held to be a person whose services have been terminated. Unlike dismissal, discharge or retrenchment, which severes the
master and servant relationship between an employer and his employee, and brings to an end the employment of the employee concerned, mere
suspension does not bring about a cessation of employment. On his being placed under suspension, an employee is merely kept away from active duty
by a conscious act of the employer. It is only because he continues to be the employee of the concerned employer, who has kept him away from
work, is he required in law to be paid a subsistence allowance to enable him to survive during the period he is under suspension, and has been kept
away from duty.
Ordinarily an employee is placed under suspension pending completion of the disciplinary proceedings initiated against him, or where criminal
proceedings are pending on a criminal charge. Cessation of employment would result only on an order of dismissal, removal or discharge being passed
on conclusion of the departmental inquiry or on the conviction of the employee in the criminal proceedings. Mere suspension of an employee does not
result in bringing to an end the master and servant relationship. Notwithstanding his being placed under suspension, the fourth applicant continues to be
an employee of the appellant-company and is, consequently, entitled to continue as a member of the Trade Union which made the application for
registration of the Trade Union.
As a result, four of the seven members of the Trade Union, who made the application for registration, still continue to remain the employees of the
appellant-company and, in view of the legal fiction under Section 4(2) of the 1926 Act, the application for registration submitted earlier would continue
to remain valid. The learned Single Judge was, in our view, justified in quashing the order passed by the Registrar, Trade Unions, and in directing him
to consider the matter afresh within a period of three weeks.
Interference in an intra-Court appeal, as noted hereinabove, would only be justified if the order under appeal suffers from a patent illegality. We
find no such infirmity in the order under appeal.
The Special Appeal fails and is, accordingly, dismissed. However, in the circumstances, without costs.