Citation Codes

Equivalent Citations

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Case Number

W.P No. 2475 of 1988 with W.P No. 2044 of 1991

Advocates

S.J Deshmukh with N.M Ganguli
Narayan Shete with P.M Patel and Mrs. Nishita Mhatre
R.S Pai
S.M Dixit and S.B Sukhtankar

Judges

M.L Pendse
A.V Savant, JJ.

Acts

section 11 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU and PULP Act).
provisions of section 21 of the Bombay General Clauses Act, 1904,
provisions of section 21 of the Central General Clauses Act.
SECTION 10 TRADE UNIONS ACT 1926
SECTION 21 GENERAL CLAUSES ACT
provisions of section 10(b) of the Trade Unions Act
SECTION 11 TRADE UNIONS ACT
SECTION 22 TRADE UNIONS ACT
ARTICLE 226 CONSTITUTION OF INDIA
section 10(b) of the Trade Unions Act
TRADE UNIONS ACT 1926
Section 10(b),

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Smart Summary

Judgment Summary — M.L. Pendse, J.

Factual and Procedural Background

Two writ petitions under Article 226 were heard together because they raised identical issues. The Association of Engineering Workers (petitioner) is a trade union representing employees at Mazagon Docks Limited and is a recognised union under section 11 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU and PULP Act). Respondent No. 1, Dockyard Labour Union, also a registered trade union, applied in 1987 to be registered as a recognised union under the MRTU and PULP Act. The petitioner Union filed written objections and raised a preliminary objection that Dockyard Labour Union's registration had been cancelled by the Additional Registrar of Trade Unions on January 30, 1981, rendering the application not maintainable. The Dockyard Labour Union replied that the cancellation order had been withdrawn by the Additional Registrar on March 12, 1981, so the registration was in force. The Industrial Court overruled the petitioner's preliminary objection by order dated July 14, 1988. That order was challenged in Writ Petition No. 2475 of 1988.

Separately, on June 6, 1988, Dockyard Labour Union filed an application under section 13 of the MRTU and PULP Act seeking cancellation or derecognition of the petitioner Union, alleging failure to maintain required membership and other statutory defaults. The petitioner Union objected that the derecognition application was not maintainable because Dockyard Labour Union's registration under the Trade Unions Act had been cancelled on January 30, 1981 and that the Registrar lacked authority to withdraw that cancellation. The Industrial Court rejected this objection by order dated June 1, 1991. That order was challenged in Writ Petition No. 2044 of 1991.

Legal Issues Presented

Whether the Additional Registrar of Trade Unions had power to withdraw an earlier order cancelling registration of a trade union (i.e., whether the Registrar could withdraw a cancellation made under section 10 of the Trade Unions Act, 1926).
Whether the cancellation of Dockyard Labour Union's registration dated January 30, 1981 was valid given the mandatory notice requirement in section 10 of the Trade Unions Act, or whether that cancellation was a non est (void) for want of compliance with the proviso to section 10.
Whether the Industrial Court erred in treating Dockyard Labour Union as properly registered and permitting it to apply under the MRTU and PULP Act despite the earlier cancellation and subsequent withdrawal.

Arguments of the Parties

Petitioner (Association of Engineering Workers) — Arguments summarized (as presented by Shri Deshmukh)

The petitioner argued that the registration of Dockyard Labour Union had been cancelled by the Additional Registrar on January 30, 1981 and that the Registrar had no authority to withdraw that cancellation; the correct recourse was an appeal under section 11 of the Trade Unions Act.
The petitioner contended that the cancellation order was effective and final because once an order is passed the authority becomes functus officio and cannot revoke it; any challenge must be by appeal within 30 days under section 11.
The petitioner asserted that the mandatory proviso to section 10 (requiring not less than two months' prior written notice specifying grounds) had not been complied with before cancellation and that there was no material on record to show such notice had been served. The petitioner relied on the absence of registry records and argued that references to a June 20, 1980 letter did not suffice without a copy of that letter.
The petitioner pointed to a note by the Additional Registrar indicating the cancellation and subsequent restoration and to missing office copies, arguing these did not establish compliance with section 10's requirements.
The petitioner relied on a Division Bench decision (Rashtriya Mukund Employees' Union v. Mukand Iron and Steel Works Ltd., 1987 (55) FLR 507) said to hold that the Registrar lacks the inherent power to revoke or review an order of cancellation in the absence of statutory provision for revocation; the petitioner's counsel urged this principle.

Respondent (Dockyard Labour Union) — Arguments summarized

Dockyard Labour Union replied to the maintainability objection by stating that the January 30, 1981 cancellation order had been withdrawn by the Additional Registrar by communication dated March 12, 1981, and that the Union's registration was therefore in operation.
The Dockyard Labour Union also asserted that it had complied with annual returns requirements by posting annual returns for 1978 and 1979 to the Registry's office, which led the Registrar to treat the cancellation as withdrawn.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rashtriya Mukund Employees' Union v. Mukand Iron and Steel Works Ltd., 1987 (55) Factories and Labour Reports 507 (Division Bench)	Held (in that case) that in absence of statutory provision for revocation or withdrawal the Registrar cannot exercise power to revoke or review an order of cancellation; the only remedy is appeal under section 11.	The court distinguished that decision on its facts: in the cited case the cancellation was not shown to be in breach of statutory requirements, and the Division Bench had not considered the implications of the General Clauses Act. The present Court held that the Division Bench's observations must be read in the factual context and that they do not deny a Registrar the power to withdraw an order which was passed without jurisdiction or in breach of mandatory procedure.

Court's Reasoning and Analysis

The Court's analysis proceeded in these principal steps, based on the materials and statutory provisions reproduced in the opinion:

Statutory framework: The Court set out section 10 of the Trade Unions Act (power of Registrar to withdraw or cancel registration) and the proviso requiring not less than two months' previous written notice specifying grounds before cancellation (except where cancellation is on application of the trade union). The Court also noted section 11 (right of appeal within 30 days against cancellation).
Requirement of prior notice: The Court emphasized that the power of cancellation under section 10(b) is available only after service of the two months' notice in writing specifying the ground of proposed cancellation. This was treated as a mandatory pre-requisite to valid exercise of cancellation power.
Factual application to the 1981 cancellation: The communication dated January 30, 1981 purported to cancel Dockyard Labour Union's registration under section 10(b) for failure to file annual statements. A subsequent communication dated March 12, 1981 treated the cancellation as withdrawn because the Union had posted the returns for 1978 and 1979.
Absence of evidence of mandatory notice: The Court examined whether there was material proving compliance with the proviso to section 10 (i.e., service of the two months' notice). It found no copy of the alleged June 20, 1980 registered letter (which was referred to) and the Registrar's records were incomplete; therefore the Court was not prepared to infer compliance with the strict statutory requirement for such a drastic power as cancellation.
Legal consequence of non-compliance: Because there was no material to show the mandatory notice had been given, the Court concluded that the January 30, 1981 cancellation was a non est (void) and had no valid existence in law; accordingly, the withdrawal step would not have been necessary if the initial cancellation were void.
Registrar's power to withdraw an order: The Court addressed the petitioner's separate contention that even if cancellation were voidable, the Registrar, having made an order, became functus officio and lacked power to withdraw it. The Court rejected this view, invoking section 21 of the Bombay General Clauses Act (and its parity with the Central General Clauses Act) to hold that power to issue an order includes power to amend, vary or rescind it. The Court held that an authority vested with power to pass an order can withdraw it if it is found to be without jurisdiction or unsustainable.
Treatment of precedent: The Court considered the Division Bench decision relied on by the petitioner and observed that that decision did not consider the General Clauses Act and was decided on its own facts where cancellation was not challenged as having been exercised without compliance with statutory prerequisites. On the present facts, where there was absence of mandatory notice and evidence of defective exercise, the Court held that the Registrar had power to withdraw an erroneous cancellation.
Final application to Industrial Court's conclusion: Given the Court's conclusions that (a) the cancellation order was in any event non est for lack of mandatory notice, and (b) the Registrar had power to withdraw an erroneous cancellation, the Court found no infirmity in the Industrial Tribunal/Industrial Court's conclusion that Dockyard Labour Union remained a properly registered trade union. Consequently, the writ petitions lacked merit.

Holding and Implications

Holding: Petitions dismissed.

Implications and immediate effects:

The Court upheld the Industrial Tribunal's conclusion that Dockyard Labour Union is properly registered under the Trade Unions Act, 1926, and that the registration was valid and subsisting.
The writ petitions challenging the Industrial Court's orders (Writ Petition No. 2475 of 1988 and Writ Petition No. 2044 of 1991) were dismissed; the rule in each petition was discharged.
No order as to costs was made in the circumstances of the case.
The Court distinguished the earlier Division Bench decision relied upon by the petitioner and explained that that decision did not preclude the Registrar from withdrawing an order of cancellation that was issued without compliance with mandatory statutory requirements; the opinion does not purport to lay down a novel broad precedent beyond its application to the facts shown.

This summary is based exclusively on the content of the provided opinion and does not add information beyond that text.

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Association Of Engineering Workers, Ghatkopar (East), Bombay v. Dockyard Labour Union, Mazagaon, Bombay And Others

M.L Pendse, J.:— Both these petitions filed under Article 226 of the Constitution of India can be conveniently disposed of by common judgment as the issue raised in both these petitions is identical. The facts giving rise to filing of the two petitions are required to be briefly stated to appreciate the grievance made by the petitioner Union in both the petitions.

2. Association of Engineering Workers is a Trade Union registered under the Trade Unions Act, 1926, and represents the employees in the undertaking of Mazagon Docks Limited, Bombay. The Association of Engineering Workers is also registered as recognised union in respect of the undertaking of respondent No. 2 under section 11 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU and PULP Act). Respondent No. 1-Dockyard Labour Union is also a Trade Union registered under the Trade Unions Act, 1926 and filed application No. 44 of 1987 on October 19, 1987 before the Industrial Court at Bombay for registration as a recognised union under the MRTU and PULP Act. The application filed under section 14 of that act was resisted by the petitioner Union by filing written objections in November 1987. The petitioner Union raised a preliminary objection to the maintainability of the application on the ground that the registration of Dockyard Labour Union was cancelled by the Additional Registrar of Trade Unions, Bombay on January 30, 1981 and consequently the application for registration under the MRTU and PULP Act was not maintainable. The Dockyard Labour Union answered the preliminary objection by pointing out that the order of cancellation of the registration passed on January 30, 1981 was withdrawn by the Additional Registrar of Trade Unions, Bombay on March 12, 1981 and consequently the registration of Dockyard Labour Union was in operation and the Union can seek registration under the MRTU and PULP Act. The preliminary objection raised by the petitioner was overruled by Member of the Industrial Court, Bombay by order dated July 14, 1988 passed below Exhibit U-1. The Industrial Court held that in view of the withdrawal of the order of cancellation of certificate of registration, the preliminary contention of non-maintainability of the application is required to be overruled. The petitioner Union preferred Writ Petition No. 2475 of 1988 to challenge legality of the order passed by the Industrial Court overruling the preliminary objection.

3. On June 6, 1988 Dockyard Labour Union filed Application (MRTU) No. 22 of 1988 in the Industrial Court, Bombay under section 13 of the mrtu and pulp act for cancellation or derecognition of the petitioner Union. The Dockyard Labour Union claimed that the petitioner's membership has for continuous period of six calendar months fallen below the minimum required under section 11 of the Act, the petitioner Union has failed to observe any of the conditions specified in section 19 of the Act and the petitioner Union is not being conducted bona fide in the interest of the employees. The petitioner Union filed reply to the application, inter alia, raising a preliminary objection that the application for derecognition of the petitioner Union filed by the Dockyard Labour Union is not maintainable as the said Union is not a registered trade union under the-Trade Unions Act. The objection was that the registration of Dockyard Labour Union under the Trade Unions Act was cancelled on January 30, 1981 and the Registrar had no authority or jurisdiction to withdraw that order and the only remedy of Dockyard Labour Union was to prefer an appeal against the order of cancellation of the registration. The appeal not having been preferred, claimed the petitioner Union, the order of cancellation of registration stands and the application for derecognition under section 13 of the mrtu and pulp act was not maintainable. The preliminary objection to the maintainability of the application raised on behalf of the petitioner Union was turned down by the Industrial Court by order dated June 1, 1991 and that order is under challenge in Writ Petition No. 2044 of 1991.

4. The question which falls for determination in these two petitions is whether the Additional Registrar of Trade Unions had power to withdraw order of cancellation of the registration passed in exercise of powers under section 10 of the Trade Unions Act. Before adverting to the contentions urged by the learned counsel, it is necessary to set out provisions of section 10 of the Trade Unions Act, 1926, which deal with cancellation of registration. Section 10 reads as under:

“10. Cancellation of Registration. — A certificate of registration of Trade Union may be withdrawn or cancelled by the Registrar—

(a) on the application of, the Trade Union to be verified in such manner as may be prescribed, or

(b) if the Registrar is satisfied that the certificate has been obtained by fraud or mistake, or that the Trade Union has ceased to exist or has wilfully and after notice from the Registrar contravened any provision of this Act or allowed any rule to continue in force which is inconsistent with any such provision, or has rescinded any rule providing for any matter provision for which is required by section 6:

Provided that not less than two months' previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate shall be given by the Registrar to the Trade Union before the certificate is withdrawn or cancelled otherwise than on the application of the Trade Union.”

5. Section 11 of the Trade Unions Act provides that any person aggrieved by the order of the Registrar withdrawing or cancelling a certificate of registration is entitled to file an appeal. The provision prescribes that the appeal is to be lodged within period of 30 days from the date of the order of the Registrar. Before examining the question as to whether the Registrar has power to withdraw the order of cancellation of registration passed under section 10, it is necessary to ascertain when the Registrar can exercise the powers in respect of cancellation of registration. Section 10(b), inter alia, provides that if the Registrar is satisfied that the Trade Union has wilfully and after notice from the Registrar contravened any provisions of the Act, then the Registrar can withdraw or cancel the registration. The proviso clearly prescribes that the Registrar can exercise powers provided not less than two months' previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate is given by the Registrar to the Trade Union. It is therefore obvious that the jurisdiction to exercise power of cancellation of registration of Trade Union is available to the Registrar only after service of two months' notice in writing specifying the ground on the Trade Union.

6. The registration of Dockyard Labour Union was cancelled by the Additional Registrar of Trade Unions by communication dated January 30, 1981, and copy of which is annexed as Exhibit ‘D’ to Writ Petition No. 2475 of 1988. The communication recites that in continuation of their letter dated June 20, 1980 the Union is informed that in accordance with provisions of section 10(b) of the Trade Unions Act the registration stands cancelled with effect from January 30, 1981 on the ground that after due notice from the Registrar the Union has continued wilfully to contravene the provisions of section 22 of the Trade Unions Act by failing to send to the Registrar by the prescribed date the annual general statement of accounts. By communication dated March 12, 1981 Dockyard Labour Union was informed that as it was found that the Union had posted the annual returns for years 1978 and 1979 by delivering the same to the Registry's office it has been decided to treat the cancellation as withdrawn. It is not in dispute that subsequent to March 1981 Dockyard Labour Union was treated as duly registered union under the Trade Unions Act and was permitted to represent the employees of respondent No. 2.

7. Shri Deshmukh, learned counsel appearing on behalf of the petitioner, submitted that once the power under section 10(b) of the Act was exercised by the Additional Registrar and registration of Union was cancelled, then the Registrar had no authority or jurisdiction to withdraw the said order. It is not possible to accede to the submission of the learned counsel for more than one reason. In the first instance the prerequirement for exercise of powers under section 10(b) of the Trade Unions Act is service of notice of a duration of not less than two months on the Union against which adverse order is contemplated. We enquired from Shri Deshmukh as to whether there is any material on record to indicate that such a notice was served on the Union before cancellation of registration. Shri Deshmukh submitted that the Registrar was summoned before the Industrial Court to produce the record, but expressed inability to assist the Court as the relevant record was not available in the registry. Shri Deshmukh submitted that there are two circumstances on record from which it could be inferred that the requirement of the proviso to section 10 was complied with. The learned counsel urged that the communication dated January 30, 1981 refers to the registered letter dated June 20, 1980 sent by the registry and it should be presumed that the said letter must have been the notice contemplated by proviso to section 10 of the Trade Unions Act. It is not possible to draw such an inference in absence of copy of the letter dated June 20, 1980. The power to cancel registration of a trade union is a drastic power and we are not prepared to assume that the requirement of section 10 was strictly complied with by the Registrar before exercising power of cancellation on January 30, 1981. The second circumstance to which Shri Deshmukh made reference is a note prepared by the Additional Registrar and produced before the Industrial Court. The note merely recites that the registration was cancelled on January 30, 1981 and was subsequently restored on March 12, 1981 though a note was not made to that effect in the concerned register in the Registry. The note also recites that the office copy of letter dated March 12, 1981 addressed to Dockyard Labour Union is not traceable in the Registry. We are unable to appreciate how the contents of this note can lead to the conclusion that the strict requirements of section 10 of the Trade Unions Act were complied with before exercise of power of cancellation of registration of the Union. In absence of any material to establish that the powers were exercised by the Registrar after complying with the mandatory requirement of the section, it must be held that the order of cancellation was a non est and therefore has no valid existence in law and can be ignored. This conclusion is reinforced because of what the Additional Registrar did within a period of two months from the date of passing of the order. The Union brought to the attention of the Registrar that the exercise of power was totally defective and without jurisdiction and realising that aspect the Registrar withdrew the order of cancellation. In case the initial order of cancellation was a non est and void ab initio, then there was no occasion to withdraw the same and the withdrawal of the same by the Registrar was only to advance the cause of justice. Once the conclusion is reached that the initial order of cancellation was a non est and was passed by the Registrar with total lack of jurisdiction, then the question of withdrawal of the order does not arise and consequently the registration of Dockyard Labour Union must be treated as valid and subsisting all along.

8. Shri Deshmukh submitted that even though the Registrar had no authority or jurisdiction to pass order of cancellation for non-compliance with the requirement of section 10, still the Registrar had no powers to withdraw the said order. The submission is that right or wrong once an order is passed by the authority, the authority becomes functus officio and the order can be set aside only by filing an appeal as prescribed under section 11 of the Act. Shri Deshmukh urged that even in cases where the Registrar comes to a conclusion that the order of cancellation was wholly without jurisdiction or without any valid reason, still the Registrar had no authority to withdraw, the same. We are unable to accept the submission of the learned counsel. The power to pass order also includes power to withdraw the same. A reference can be usefully made to the provisions of section 21 of the Bombay General Clauses Act, 1904, which are on par with provisions of section 21 of the Central General Clauses Act. The section prescribes that the power to issue order includes a power to amend, vary or rescind such order. It is well settled that the authority conferred with the power to pass order can always withdraw the same, if it is found to be without jurisdiction or unsustainable. It is impossible to accede to the submission of Shri Deshmukh that once an order is passed by the Registrar, the order can be set aside only by preferring an appeal by an aggrieved party as prescribed under section 11 of the Trade Unions Act.

9. Shri Deshmukh referred to the decision of the Division Bench reported in 1987 (55) Factories and Labour Reports page 507 (between Rashtriya Mukund Employees' Union and Mukand Iron and Steel Works Ltd.) in support of the submission that the Registrar lacks inherent authority or power to revoke or review the order of cancellation or withdrawal of registration of the Union. The Division Bench observed that in the absence of any statutory provision for revocation or withdrawal or cancellation, the Registrar cannot exercise such power and the only remedy is to file an appeal as prescribed under section 11 of the Act. It is necessary to point out that in the case before the Division Bench finding was recorded that the order of cancellation of registration did not suffer from any infirmity and then the question arose as to whether such order could be withdrawn. The observations made by the Division Bench must be read in the background of the peculiar facts of that case. The attention of the Division Bench was not invited to provisions of section 21 of the General Clauses Act. The Division Bench realised that there could be cases where the Registration is cancelled in breach of the statutory provisions, like without giving the mandatory notice and then observed that in such cases it is possible that the Registrar would have power to withdraw the erroneous order. The Division Bench observed that as that was not the case on the facts before the Division Bench, it was not necessary to determine the question whether the Registrar can exercise power of withdrawal of order of cancellation when such order was patently illegal. In our judgment, the Registrar who is conferred with power of cancellation is also conferred with the inbuilt power to withdraw the same, if it is found that the power was exercised in breach or in violation of the statutory provisions. In our judgment, the cancellation of registration is a matter of serious concern and consequences and the powers are available with the Registrar to correct the mischief done in cancellation of registration without jurisdiction. In our judgment, the decision of the Division Bench referred to by Shri Deshmukh in no way takes away the power of the Registrar to withdraw the order of cancellation passed without jurisdiction.

10. In the present case, in our judgment, the order of cancellation was passed without jurisdiction as nothing was brought to our attention to establish that the power of cancellation was exercised after complying with the mandatory requirement of the section and consequently the question of withdrawal of such erroneous order does not arise, the order of cancellation being non est. Even otherwise the Registrar had ample powers to withdraw the order of cancellation on realisation of mistake and on such withdrawal the registration of Dockyard Labour Union remained in operation all along. In these circumstances we are unable to find any infirmity in the conclusion recorded by the Industrial Tribunal in both the petitions holding that Dockyard Labour Union is properly registered under the Trade Unions Act, 1926 and the registration is valid and subsisting. In our judgment, there is no merit in the two petitions and the petitions are required to be dismissed.

11. Accordingly, rule in each of the petition stands discharged. In the circumstances of the case there will be no order as to costs.

Petitions dismissed.

Association Of Engin... v. Dockyard Labour Unio...