Roadways Mazdoor Sabha and Another vs State of U.P. and Others

Prakash Krishna, J.—Challenging the order dated January 25, 2010 passed by the Registrar, Trade Unions, the present writ petition has been filed.By the order dated March 18, 2009 registration of Form ''J'' was granted in recognition of the election of Petitioners Trade Union. By the subsequent order which is impugned herein, the said registration Form ''J'' has been recalled. The main challenge is that the Registrar does not possess any such power. To appreciate the controversy involved, the facts of the case may be noticed in brief.

The Petitioners claimed that there is a registered Trade Union in the name and style of "Roadways Mazdoor Sabha, U.P.". The election of the said Trade Union was held in the year 2002 and since then, no election did take place. For the first time, an election was held after about eight years in the year 2008. In the election which was held in the year 2002 Jaiveer Singh Yadav was elected as President who is Petitioner No. 2 herein and Vishnudev Pandey was elected as Secretary, Respondent No. 6 herein. The election of the year 2008 was held at Etawah.

It has been averred in the writ petition that the election of the Petitioners Trade Union was held on December 29, 2008 at Etawah wherein 141 delegates were present. In the said election Jaiveer Singh Yadav was elected as President and Sri O.P. Rathore, as Secretary. The papers were forwarded to the Registrar, Trade Union who issued Form ''J'' to the Petitioners Trade Union. The further averment is that the Respondent No. 6 herein formed a different faction and he set up a rival Trade Union. He without holding any election allegedly elected Jaswant Singh as President, Vishnu Dev Pandey as Secretary and Sri Mahendra Pratap Singh as Vice Secretary in the alleged election held on December 29, 20081 The said elected office bearers formed rival Committee of the Trade Union. The further allegation is that Jaswant Singh, the alleged elected President could not be elected at all as he was expelled from the membership vide letter dated June 15, 2008 The further allegation is that the validity of the election held in the year 2009 as set out by the Petitioners Trade Union is being examined by the Deputy Labour Commissioner as is evident from his letter dated December 3, 2009 The matter is still pending consideration. The elections were valid for a period of one year. As per the bye laws No. 38 the election is required to be held in the month of September or October of every year and the elected office-bearers shall hold the office from the date of entering there in the office till the date of next election. The impugned order of the Registrar, Trade Union ordering the holding of fresh election as per the approved bye laws of the Trade Union for the year October 1, 2009 within a period of three months is illegal and arbitrary.

A counter affidavit has been filed by Sri Vishnu Dev Pandey on behalf of the Respondent Nos. 5 and 6 on the pleas inter alia that the present writ petition at the instance of Jaiveer Singh, Petitioner No. 2 is not maintainable as he is not the President of Roadways Mazdoor Sabha. Form ''J'' which issued earlier has been recalled. No such election as stated by the Petitioners was held at Etawah. Reference has been made to Section 28 of Indian Trade Unions Act, 1926 and to the fact that in pursuance of the impugned order, a fresh election has already taken place wherein the contesting Respondents have been declared office bearers. The allegation that Jaswant was expelled from the membership has been denied. It has been further stated that proper opportunity of hearing was afforded to the Petitioners as is evident from the letter dated December 3, 2009 asking him to appear before the authority on December 23, 2009 but the Petitioner No. 2 chose not to appear.

In the rejoinder affidavit the pleas raised in the writ petition has been reiterated.

Heard Sri T.P. Singh, learned senior counsel for the Petitioners, and Sri K.P. Agrawal, learned senior counsel for the contesting Respondents.

Sri T.P. Singh, learned senior counsel for the Petitioners, submits that the order recognizing the election of Petitioners was passed by the Registrar, Trade Unions by issuing Form ''J''. The said order could not have been reviewed subsequently. Elaborating the argument, it was submitted that the election of the year 2008 was valid for a period of one year up to 2009. After the expiry of the aforesaid period, a fresh election has taken place. This being so, there was no occasion to recall the Form ''J'' issued for the election held in the year 2008 by the impugned drder dated January 25, 2010

Sri K.P. Agrawal, learned senior counsel for the contesting Respondent, does not dispute that the Registrar, Trade Unions does not possess any power to review its earlier order, but with a caveat he submits that it possesses power to recall its own order on the principle that power to pass an order implies the power to recall order. Power to recall an order is explicit in the power to pass an order. On the facts of the present case, admittedly, no election was held after the year 2002, thus, the holding of a fresh election after giving opportunity to all the persons, cannot be said, in any manner, to be prejudicial to the Petitioners or to any other person. The remedy of the Petitioners is to file a civil suit to establish the legality and validity of their election if they are so aggrieved by the order passed by the Registrar, Trade Union. Registrar, Trade Unions does not possess any power to go into the question of legality and validity of an election, submits the learned senior counsel for the contesting Respondents. He further submits that in any view of the matter, the election having taken place in pursuance of the impugned order dated January 25, 2010, no interference under Article 226 of the Constitution of India is called for and the writ petition deserves dismissal.

Considered the respective submissions of the learned Counsel for the parties and perused the record. Before proceeding further, certain facts which are not in dispute but have a bearing to a great extent in setting up a democratic atmosphere in an elected body may be noted.

It is not in dispute that the last election was held in the year 2002. It is also not in dispute that as per the bye laws, the elections are required to be held annually in the month of September or October. No election was held for the year subsequent to the year 2002. All of a sudden, abruptly, the Petitioners came out with a case that an election was held wherein office bearers were elected in the year 2008. The Registrar, Trade Unions when approached by them, made the necessary entries as per Section 28 of the Trade Unions Act. It is also evident that there is rival group who is claiming elected as office bearers of the Trade Union. When the Registrar, Trade Unions was apprised of the facts, he examined the matter and took note of the fact that there are different factions who are claiming as elected office bearers of the Trade Union. To set the controversy at rest, he passed the impugned order by restoring the status quo ante and ordered that election be held as per the Registered bye laws, taking the year 2002 as the base year. As noticed herein before, there was no dispute up to the year 2002.

Having noticed as above, now the main argument of the learned Counsel for the Petitioner that the Registrar, Trade Unions has no power to review or recall its earlier order, requires consideration. As noticed herein above, Sri K.P. Agrawal, learned senior counsel for the contesting Respondent, has stated that he does not dispute that the said authority does not possess any power of review. But he submits that since the authority was exercising administrative power, therefore, in view of Section 15 of the General Clauses Act and or on the General Principles of Law power to pass an order includes the power to recall the said order.

Section 14 of the General Clauses Act, 1897 provides that power conferred to be exercisable from time to time, unless a different intention appears, that power may be exercised as occasion requires. Reverting to the facts of the present case, it may be noted that before passing of the impugned order, a notice was issued to the Petitioner but the Petitioner for the reasons known to him chose not to appear and participate in the proceeding which led the passing of the impugned order. The said fact has been noticed in the impugned order itself. In this fact situation, the Registrar, Trade Unions proceeded in the matter and found that Form ''J'' presented by the Petitioner was ordered to be registered by the Sub-Registrar, Trade Unions. Azamgarh, illegally. He ignored the guidelines dated June 18, 1999 The said guidelines provide that in case of a dispute among the elected members of a Trade Union, the recommendation of the Maha Sangh with whom the said Trade Union is registered shall be taken into consideration to resolve the dispute and if the said dispute cannot be resolved, then, the dispute can be settled by a Court of competent jurisdiction. Thereafter, the Registrar, Trade Unions has considered the various facts and circumstances of the case and passed the impugned order. Remarkably, it was noticed that the record of the Regional Registrar, Azamgarh, does not show that any opportunity of hearing was afforded to the rival faction represented by Sri Vishnu Dev Pandey or he was associated with the proceedings before issuing Form ''J'' in favour of the Petitioner. In other words, the Registrar, Trade Unions was satisfied that the earlier order was passed arbitrarily, in violation of the guidelines dated June 18, 1999 and without taking consideration the other attending facts and circumstances of the case. Then, after setting aside the order of the Sub-Registrar, Azamgarh dated March 18, 2009 it directed to hold the election as per the registered bye-laws for the ensuing year 2009-2010, within a period of three months. On these facts, the order dated: March 18, 2009 passed by the Sub-Registrar Azamgarh was rightly recalled and fresh election was rightly ordered. The Petitioner could not show any prejudice or harm, if any, caused to him by the impugned order. This is an additional reason not to interfere in the present proceedings. The Petitioner was asked to participate in the proceedings in particular and his failure without any sufficient cause also disentitles him to challenge the impugned order.

Sri K.P. Agrawal, learned senior counsel for the Respondents, referred Northern India Railway Mazdoor Union v. Registrar of Trade Unions, Kanpur and Ors. (1969) LIC'' 209 (All.) in support of his contention that the Registrar of Trade Unions u/s 18 of the Trade Unions Act exercises only administrative duty to record changes in office bearers of a Trade Union. While conflicting Forms under Regulation 17-A of the U.P. Trade Unions Regulations mentioning a different sets of office bearers are filed by rival groups in a Trade Union, a Registrar has no power to hold a quasi-judicial inquiry. Elaborating the argument, he submits that on the facts of the present case, it is but evident that two rival factions were claiming as elected office bearers of the Trade Union, the said dispute could not be resolved by the Registrar, Trade Unions and the only forum for resolution of such dispute is of Civil Court. The above submission of the learned senior counsel is well founded. Paragraphs-2 and 17 of the report are reproduced below:

The Act, however, does not provide for any adjudication on a dispute between rival individuals or groups claiming to represent a particular trade union. All that is provided for in the Act is that a return shall be made u/s 28 annually "showing all changes of officers made by the trade union during the year to which the general statement refers". This statement has to be accompanied by a copy of the rules of the trade union corrected up to date. Any changes made in the rules of a registered trade union have also to be intimated to the Registrar within fifteen days from the date of alteration. The statement in prescribed form, containing specified particulars, has to be filed on or before a prescribed date.

It is, therefore, clear that, although the Registrar is invested with quasi-judicial powers so far as registration of trade unions or cancellation of such registration is concerned, the Registrar has only an administrative duty to record and enter in a register such changes in the office-bearers and in the rules as may appear to have taken place during a particular year. There is no provision of the Act giving the Registrar any power to hold a full-fledged quasi-judicial inquiry into the validity of any election of off ice-bearers by going into seriously contested questions of fact.

The result of the foregoing discussion is that the functions of the Registrar u/s 8 read with Section 28 of the Act to record changes in accordance with the position revealed by a return in a year is an administrative function only. In exercising the administrative functions the Registrar can undertake a reasonable inquiry to discover whether alterations he is going to record are in conformity with the actual facts and rules. The implied power of the Registrar to ascertain actual facts from the parties where there appears to be some conflict between two versions placed before him by means of two forms filled up and filed by two rival groups could not convert the inquiry held by the Registrar into a quasi-judicial proceeding in which each side has the right to lead evidence and cross-examine witnesses.

All that the Registrar can do is to hold a summary inquiry for his own satisfaction. As the Registrar has not been given the power to adjudicate, in a quasi-judicial fashion, upon conflicting claims to represent the trade union, based upon divergent versions on questions of fact, the proper course for the Registrar in such cases is to refer the parties to a Civil Court for a decision and then to act in accordance with the decision arrived at by the Civil Court. Even if Regulation 17-A mentioned above were valid it would enable the Registrar to refuse to record a change if he had reason to believe that the change has not been made in the manner provided in the registered rules of the trade union. Even under Regulation 17-A, the Registrar could only look at the rules and prima facie evidence and arrive at a conclusion to believe, record or not to believe and record that the change is not in accordance with the Rules. He can refuse to record any change, even if he were to act under Regulation 17-A, and ask contesting parties to get an adjudication from a Civil Court first.

Sri T.P. Singh, learned senior counsel for the Petitioner has relied upon the case of Hotel Land Mark Employees Union, Kanpur and Others Vs. Up Registrar, Trade Unions, Kanpur and Others, . This case does not take contrary view of the matter. He also referred Bokaro Steel Workers Union and Anr. v. State of Bihar and Ors. 1995 (71) FLR 257, a case under the Trade Unions Act wherein also it has been held that Registrar has not been given power to adjudicate, any quasi-judicial fashion upon conflicting claims to represent the trade union, based upon a divergent versions on questions of fact, the proper course for the Registrar in such cases is to refer the parties to a civil Court for a decision and then to act in accordance with the decision arrived at by the civil Court. More or less, similar view has been taken in R.N. Singh and Anr. v. State of Bihar 1998 II LLJ 30 (Pat) wherein the order passed by the Registrar, Trade Union referring the matter for adjudication to any other forum has been set aside by holding that such dispute can be decided only by civil Court.

The sum and substance of the above decisions is that the Registrar has got only a very limited power to make the necessary entry in his record as provided for u/s 28 of the Trade Unions Act. He can record the changes of the office-bearers made by the Trade Union during the year to which the general statements were filed. In other words, the Registrar, Trade Union has no power in case of dispute to adjudicate as to which one of the rival claims is correct. Applying the ratio to the facts of the present case, in my considered view the Registrar has done no wrong by directing the parties to hold a fresh election in order to defuse the continuation of controversy among the members of the trade union. Since substantial justice has been done, no interference under Article 226 of the Constitution of India is called for.

Before saying omega to the case, it may be noted that a fresh election has, admittedly, taken place as per the impugned order and the remedy of the aggrieved person is to approach a civil Court to challenge its legality and validity. Disputed questions of fact cannot be gone into the present writ petition. The petition is, therefore, dismissed.

No order as to costs.