Aftab Alam, J.:— The petitioner in this application, claiming to represent the Bokaro Steel Workers Union as its general secretary seeks to challenge the directions contained in the communication, dated 25 July 1994, addressed by the Labour Commissioner, Bihar, to the General Secretary, Rastriya Mazdoor Congress. This communication (copy at Annexure 4) states that in the Bokaro Workers Union, registration No. 1034, affiliated to the INTUC, an internal dispute had come into existence on account of the conflicting claims of two factions to be its rightful office-bearers. It was farther stated that one C.L Srivastava (respondent 3), the leader of one faction claimed that the unions election was held in 1991, in which he was elected as its general secretary; similarly one P.N Tripathi, the leader of the other faction (after whose demise the present petitioner claims to have assumed the office of the general secretary) claimed that the unions election was held in 1992 when he was elected the general secretary of the union. The letter goes on to state that on enquiry it was found that neither of the two elections, on which the rival factions founded their respective claims, was in accordance with the union's constitution and it was accordingly decided that an election of the office-bearers of the union be held through the national headquarters of INTUC and following the procedures provided in the union's constitution. The letter further directed that the election will be held under the supervision of the Deputy Labour Commissioner, Bokaro Steel City, as the representative of the Registrar, Trade Unions, and the list of the office-bearers prepared on the basis of this election and duly countersigned by the Registrar's representative shall be accepted as the list of the validly elected office-bearers. The letter concludes with the direction that the election must be held within three months from the date of the letter failing which further action would be taken in terms of the provisions of the Trade Unions Act and the code of discipline framed by the department. The letter, however, does not disclose the source of power for the Labour Commissioner/Trade Union Registrar to issue the directions of the nature as stated above.
2. Each of the rival factions claiming to lawfully represent the union has its own story to narrate. I need not to go into the details of the rival claims for the simple reason that this Court in this application would not undertake an adjudication on the merits of the conflicting claims involving disputed questions of facts. It would be, however, appropriate to note the following facts which arc not in dispute.
3. According to the petitioner, an election was held on 24 August 1990, in which Bindeshwari Dubey and P.N Tripathi (since deceased) were elected as the president and the general secretary respectively of the union. The intimation in this regard was duly given to the Registrar, Trade Unions, as required under S. 28 of the Trade Unions Act. It appears that Sri Srivastava (respondent 3) had then raised a dispute before the Registrar regarding the alleged election of the petitioner's faction as the office-bearers of the union and questioning the validity of the election said to have been held on 24 August 1990. The Registrar appears to have referred the dispute to the parent body, the INTUC and on the advice received from it “recognised” the members of the petitioner's faction as the duly elected office-bearer of the union vide his letter, dated 15 September 1990, addressed to the General Manager, Bokaro Steel Plant (copy at Annexure J) This letter appears to have been challenged first by filing a writ petition being Civil Writ Juridication Case No. 2009 of 1990 (R) before the Ranchi Bench of this Court. But this Court declined to interfere in the matter and then Sri Srivastava filed a suit, being T.S No. 87 of 1990, in the Court of Munsif, Chas. This suit was later withdrawn but on the same day another suit, being T.S No. 120 of 1990, was filed questioning the validity of the election said to have been held on 24 August 1990, and also challenging the Registrar's letter, dated 15 September 1990. In this suit, in addition to the members of the petitioner's faction, the Registrar, Trade Unions, and the Deputy Labour Commissioner, Bokaro, were impleaded as defendants. It is also an admitted fact that in this suit the Munsif. Chas, granted an order of injunction restraining the members of the petitioner's faction from functioning as the office-bearers of the union. In appeal, however, the injunction order was set aside by the Sixth Additional District Judge. Dhanbad and the appellate order was affirmed when the injunction matter came before the High Court.
4. According to the petitioner, the next election of the union was held on 27 May 1992, in which the members of the petitioner's faction were declared elected to the different offices of the union of 28 May 1992. The result of the election was duly communicated by Sri P.N Tripathi, the general secretary to all concerned including she Registrar, Trade Unions, vide letter, dated 31 May 1992.
5. The validity of the election said to have bene held on 27, 28 May 1992, was challenged in T.S No. 11 of 1993, filed in the Court of Sub-Judge I, Chas. This suit has been filed by one B. Upadhya, a member of Sri Srivastava's faction who according to the claim of the third respondent was elected as the union's general secretary in the election held on 12 December 1991. In this suit also a prayer for ad interim injunction was made which was turned down by the trial Court.
6. As appearing from the statements made in the counter-affidavit filed on behalf of respondent 3, it is an admitted position that both the aforesaid suits are still pending. As regards the earlier suit, being T.S No. 120 of 1990, it is stated (vide Para. 11 of the counter-affidavit) that it was pending at the stage of argument.
7. In addition to filing the aforesaid T.S No. 11 of 1993, a dispute appears to have also been raised before the Registrar, Trade Unions, alleging that no election was, in fact, held on 27 May 1992, and the list of the office-bearers, dated 28 May 1992, was fake. On such a complaint having been made, the Registrar initiated an enquiry and called the leaders of the rival factions to appear before him on 22 July 1993. with all the materials in support of their contention. Following the enquiry, the impugned directions were given by the Registrar after more than two years of the election as claimed to have been held by the petitioner. The petitioner claims that in the meanwhile the union has entered into a number of agreements with the management of the Bokaro Steel Plant and the consequences of the annulment of the election would be very grave and would adversely affect the workmen-employer relations and the industrial peace and harmony.
8. It is to be clarified that the aforesaid facts have been noted not with a view to examine the merits of the respective claims of the petitioner and the third respondent. And in fairness to Sri Gopa Subramaniam, learned counsel for the petitioner, it must be stated that he did not urge that the petitioner's claim be upheld on the basis of any findings of facts. He, however, sharply questioned the authority and the power of the Labour Commissioner (even conceding that the same officer was the Registrar, Trade Unions) to issue directions of the nature as contained in the communication, dated 25 July 1994. Sri Subramaniam contended that there was no provision in the Trade Unions Act empowering the Registrar, Trade Unions, to issue directions for holding the union's election under the supervision of the Registrar or his nominee. He submitted that the provisions of S. 28 of the Act at best empowered him to hold an enquiry to ascertain as to whether or not a set of persons were validly elected office-bearers, of the union with the limited object of updating the register required to be maintained under S. 8 of the Act.
9. Thus, the only question that falls for consideration in this application is whether there is any provision in the Trade Unions Act justifying the action of the Registrar in issuing the directions as noted hereinabove.
10. Although no provision has been disclosed in the impugned communication, in the counter-affidavit filed on behalf of the Registrar, the provisions contained in S. 28 of the Act are cited as the source of power to justify the issuance of the directions coming under challenge in this application.
11. Sri K.N Gupta, learned counsel appearing on behalf of respondent 3 submitted that S. 28 read with Ss. 8, 10 and 25 and regulations 6, 9 and 11 of the Bihar and Orissa Trade Unions Regulations provided the Registrar with adequate authority to issue the impugned direction.
12. The Trade Unions Act was enacted in 1926 with the object “to provide for the registration of trade unions and in certain respects to define the law relating to registered trade unions.” Section 3 of the Act provided for the appointment of the Registrar of Trade Unions for each State. Section 8 provided that on being satisfied that a trade union had complied with the requirement of the Act in regard to registration, the Registrar, would 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. Section 10 provided that under certain circumstances the certificate of registration could be withdrawn or cancelled by the Registrar. Section 25 contained provision regarding the change of name of a trade union or amalgamation of more than one union. Section 28 required the submission of annual returns to the Registrar. It will be useful at this sage to reproduce this section:
“28. Returns. —(1) There shall be sent annually to the Registrar on or before such date as may prescribed, a general statement, audited in the prescribed manner, of all receipts and expenditure of every registered trade union during the year ending on 31st day of December next preceding such prescribed date, and of the assets and liabilities of the trade union existing on such 31st day of December. The statement shall be prepared in such form and shall comprise such particulars as may be prescribed.
(2) Together with the general statement there shall be sent to the Registrar a statement showing all changes of office-bearers made by the trade union during the year to which the general statement refers together also with a copy of the rules of the trade union corrected up to the date of the despatch thereof to the Registrar.
(3) A copy of every alteration made in the rules of a registered trade union shall be sent to the Registrar within fifteen days of the making of the alteration.
(4) For the purpose of examining the documents referred to in Sub-secs. (1), (2) and (3), the Registrar, or any officer authorised by him by general or special order, may at all reasonable times inspect the certificate of registration, account books, registers and other documents relating to a trade union, at its registered office or may require their production at such place as he may specify, in this behalf, but no such place shall be at a distance of more than ten miles from its registered office of a trade union.”
13. It is important to note that there is no provision in the Act empowering the Registrar to exercise any superintendence or control over the internal affairs or the day-to-day functioning of a trade union. The Act thus envisages that the Registrar should maintain an up-to-date record relating to the trade unions without in any manner interfering in their internal affairs. This is understandable too for a trade union in its nature is an organised association of employees formed to protect their interests and to secure, by means of collective bargaining with the employer, better and improved conditions of service. In many cases, the employer is the Government or an undertaking owned by the Government. It is, therefore, obvious that any legal sanction for the Government to interfere in the internal affairs of a trade union would very seriously undermine the union's ability to effectively uphold the employees' interests. However, a grave lacuna in this archaic Act of the year 1926, is that it does not contain any provision to resolve the intra union disputes such as the present one when two rival factions claim to represent the union as its office-bearers. This hiatus in the law has often tempted the executive to step in to resolve the dispute in its own way. As a result, orders with varying degrees of executive interference are known to have been passed; in some cases the Registrar simply refused to accept the claim of any particular person or group arising on the basis of an alleged election and declined to recognise him/them as the validly elected office-bearer(s); in some other cases the Registrar went to the extent of issuing on order directing the concerned employer and the Labour Department of the Government to recognise any particular person or group as the validly elected office-bearer(s) and to act accordingly in dealing with the union; in some other cases a direction of the present kind has been given asking to hold election under the supervision of the Registrar in order to resolve the dispute regarding the office-bearers of a union.
14. In dealing with similar cases earlier the Courts have had occasion to examine the scope and ambit of S. 28 (read with S. 8) of the Trade Unions Act. In some cases the provisions of Ss. 8 and 28 have been interpreted in a manner to give certain power to the Registrar, Trade Unions to hold an enquiry regarding the validity of the claim of a set of persons to be the duly elected office-bearers of a union. It is proposed to examine hereinbelow the parameters of S. 28 as emerging from the earlier judicial decisions.
15. One of the earliest decisions examining the scope of S. 28 of the Act appears to be from a Division Bench of our own High Court in the case of Mukund Ram Tanti v. Registrar, Trade Unions [A.I.R 1962 Pat. 338]. The petitioner in that case claimed to be the newly elected president of a union. According to him, he was elected at the union's general meeting held on 27 February 1960. Respondents 2 to 7 of that case were the old office-bearers who admittedly continued in office till the date when the general meeting was allegedly held electing the petitioner as the new president. The old office-bearers did not accept that there was any valid general meeting of the union electing the petitioner as the president. This led to a dispute and the Registrar, Trade Unions, issued notices to both the parties to appear before him with the materials in support of their claims. The Registrar heard the rival parties and held that the decision said to have been taken in the alleged meeting would not be binding on the old office-bearers of the union, who under the rules, had to continue till a new general election was held in accordance with law. In those circumstances, the Registrar observed that respondents 2 to 7 would continue to be the proper set of office-bearers of the union until they were removed from office in a proper election, held according to the rules; and that for the purpose of maintenance of records in the office of the Registrar of Trade Unions, no notice could be taken by him of the election held on 27 March 1960. The petitioner challenged this decision of the Registrar, Trade Unions, and contended that the Registrar had no authority in law or jurisdiction to hold an enquiry as to the legality of the election and to pass an order directing the old office-bearers to continue till a fresh election was held. This Court held that it appeared from certain provisions of the Act “though not specifically but impliedly” that it was a part of the duty of the Registrar of Trade Unions to record the changes of the office-bearers in the appropriate register in order to discharge his duty under the Act. In that view, it was held:
“…that, on being informed about the election of the new office-bearers, the Registrar is within his right to ascertain whether they were legally elected so as to be recorded in the Register maintained for the purpose and to be bound for compliance, of the provisions of the Act. In other words, the Registrar has full jurisdiction to enquire about the legality of the new election for the purpose of maintaining a proper register showing the names of the office-bearers who may be at the relevant time required to comply with the provisions of the Act or to be dealt with in accordance the re with. In this particular case, the order of the Registrar clearly shows that the election of the new office-bearers was not accepted by him to be legal only for the purpose of maintenance of records in his office to facilitate the administration under the Act.”
(emphasis supplied.)
16. From the fact of this case, it is clear that this Court justified an enquiry by the Registrar for the purpose of maintenance of records in his office to facilitate the administration under the Act. The findings of the Registrar did not confer any right on any party nor was any party divested of his right to represent the union. Moreover, in that case, there was no direction by the Registrar to hold the union's election under the supervision of his nominee.
17. Next in line is a Single Judge decision of the Allahabad High Court in the case of North-Eastern Railway Mazdoor Union v. Registrar of Trade Unions [1969 L. &I.C 209]. In that case, Justice Sri M.H Beg (as his Lordship then was) held that the Act did not provide for any adjudication of a dispute between the rival groups of a trade union. It was further held that though the Registrar was invested with quasi-judicial powers in registering trade unions or in cancelling their registration, he had only an administrative duty to record changes in office-bearers under S. 8 read with S. 28. The relevant passage from the decision is as follows:
“The result of the foregoing discussion is that the functions of the Registrar under S. 8 read with S. 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 covert 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.”
18. In another decision, a learned Single Judge of the Andhra Pradesh High Court in the case of Sanjeeva Reddy v. Registrar of Trade Unions [1968 (34) F.J.R 89], held that a duty for maintaining the record having been cast on the Registrar, it followed that he had got the necessary powers to ascertain for his own purpose which set of office-bearers had been validly elected and represented the union. These powers were ancillary to the main power given to the Registrar under the Act. It was, however, clarified that the communication by the Registrar that the new set of office-bearers was the true representative of the union was outside the purview of the Act and could not be justified by any provision therein. In other words, the enquiry by the Registrar was for his own satisfaction and for the purpose of updating the register required to be maintained under S. 8 and his decision would neither confer any right of representing the union on any person or group of persons nor divest any one of such right. Thus, the Registrar, Trade Unions, could hardly assume the power to advise the employer or the officials of the Labour Department to recognise and treat any particular person as having the right to represent the union. That being the position as emerging from the Andhra Pradesh decision, the question of the Registrar having the power to direct for the holding of an election under the supervision of his nominee would further not arise.
19. In another decision, a learned Single Judge of the Madras High Court in the case of R. Murugesan v. Union Territory of Pondicherry [1976 - II L.L.J 435], held, that any enquiry made for the purpose of S. 28(2) was administrative in character and did not finally adjudicate on the claims of the parties. It was further held that any dispute concerning the election had to he fought before the appropriate, forum and the Registrar's decision was no bar to any further independent legal proceedings. In that case, a writ petition was filed seeking to challenge the following order passed by the Trade Unions Registrar:
“With reference to your letter, dated 1 August 1967, on the subject mentioned above, the list of office-bearers newly elected by your union in general body meeting held on 3(1 July 1967, is approved and registered in this office”.
20. The learned Single Judge referring to the Andhra Pradesh decision in Sanjeeva Reddy case [1968 (34) F.J.R 89] (vide supra), and this Court's decision in Mukund Ram Tanti case [A.I.R 1962 Pat. 338] (vide supra), held that the Registrar in the event of competing claims between two sets of office-bearers has to necessarily decide for his one purpose as to which of them he would recognise in relation to the administration of the Trade Unions Act. But it was pointed out that when the Registrar takes any such decision he is not determining the dispute between the parties so as to bind them. The learned Judge dismissed the writ petition for the reason and on the sole ground that the impugned order of the Registrar had not decided and could not have decided the legality of the election of the office-bearers. In that view, it was held that the writ petition was misconceived and it was also observed that the word “approved” occurring in the impugned order had contributed to that misconception. It was further pointed out that the Act had not constituted the Registrar as the Election Court or Election Tribunal for the purpose of determining such a dispute. The decision rendered by the Registrar was merely administrative and ancillary to the discharge of duties and powers under the Trade Unions Act. The determination of such a question so as to bind the party was outside the jurisdiction of the Registrar and the binding decision on the dispute could be obtained only in an appropriately instituted legal proceedings before the proper forum.
21. At this stage, it will be necessary to consider the other point of view canvassed by Sri Gupta, learned counsel for respondent 3. Sri Gupta submitted that in a number of decisions directions were issued for holding the union's election under the supervision of the Registrar. Trade Unions, or his nominee. He referred to the decision of a learned Single Judge of the Calcutta High Court in the case of O.N.G.C Workmen's Association v. State of West Bengal [1988 — I L.L.N 1052]. By an order passed in that case, the learned Single Judge appointed the Trade Unions Registrar as a special officer and/or conferred on him such rights to conduct the election afresh of the office-bearers of the ONGC Workmen Association within two months from the date of communication of the order. The Trade Unions Registrar was directed in this regard to verify the voters list and to ask the intending parties to file nomination papers and to hold the election by secret ballot and to declare the result of the election according to law and thereafter to record the names of the persons so elected under Ss. 8 and 28 of the Trade Unions Act. It is to be noted that in Para. 9 of that decision the learned Judge found and held that it was beyond any doubt that the Registrar, Trade Unions, had no quasi-judicial authority to hold any enquiry by allowing parties to examine witnesses and to allow the party to cross-examine such witnesses and to decide the dispute as to who were the real office-bearers. He also found that the proper forum for an adjudication on a dispute of this kind was civil suit but, in the facts and circumstances of that case, was of the opinion that a suit before the civil Court would delay the matter and the circumstances required that the dispute should be resolved expeditiously and hence issued the directions as noted above.
22. Sri Gupta then referred to a decision of the Supreme Court in the case North-Eastern Railway Employees Union v. Third Additional District Judge [1988 - I L.L.N 906]. From the brief decision it appears that the Allahabad High Court had designated the General Manager, North-Eastern Railway, as the authority to hold elections of North-Eastern Railway Employees' Union. The Supreme Court by its order substituted the Registrar, Trade Unions, in place of the General Manager, North-Eastern Railway, observing that the Registrar was the authority charged with the duly of administering the provisions of the Trade Unions Act, and directed that the election would be held under the supervision of the Registrar or by any officer designated by him for that purpose.
23. At this stage, 1 would like to observe that in relying upon the above-mentioned decisions Sri Gupta overlooked the very significant fact that in those two cases directions to hold the union's election were issued not by the Registrar but by the High Court in exercise of its writ jurisdiction. It is another matter for the High Court or even a civil Court in a fit case to issue direction for holding election of the office-bearers of a union and to designate the Registrar, Trade Unions, or his nominee to supervise the election and to confer upon him such authority by virtue of the Courts' order. It would be an altogether different matter for the Registrar who is a creature of the Act and must, therefore, act within the parameters of the Act to assume this authority and to issue such an order on his own and the two situations cannot be equaled.
24. Sri Gupta also relied upon a Division Bench decision of this Court in the case of Indian Explosives Workers' Union v. State of Bihar [(1989) 2 B.L.J.R 315]. It is a brief order which can be quoted in full:
“A supplementary affidavit has been filed on behalf of the petitioners. Let it be kept on record.
(2) Sri B.C Ghosh, learned counsel for the petitioners, submits that the Registrar, Trade Unions, Bihar, respondent 2 has no jurisdiction to hold any election of (he two rival trade unions in question and has, therefore, challenged Annexure 13, a communication from the Registrar (respondent 2) to furnish certain informations for holding of due election. This is in the background of an earlier petition filed by the petitioners in this Court which has been registered as Civil Writ Jurisdiction Case. No. 1262 of 1988 (R) in which by an order, dated 25 July 1989, a Bench of this Court had directed that during the pendency of that application, no independent Board shall function in any manner but the Registrar of the Trade Unions may, if he thinks fit, discharge statutory duly in regard to two rival trade unions. That writ application is, however, still pending. Sri Ghosh submits that the Registrar of Trade Unions, respondent 2, cannot be said to have discharged any statutory duty in issuing Annexure 13.
(3) Sri Ghosh relies upon the provisions of S. 28 of the Trade Unions Act, 1926, for the purpose of showing that there is no such statutory power or duty in the Registrar which he can exercise or perform and for that purpose he also placed reliance on a Bench decision of this Court in Civil Writ Jurisdiction Case No. 2072 of 1974, in the case of Kishori Prasad Mahto v. State of Bihar.
(4) We are afraid, there is no force in his contention. The Supreme Court in the case of North-Eastern Railway Employees Union v. Third Additional District Judge [1988 - 1 L.L.N 906] (vide supra), has held that the Registrar of Trade Unions is the authority charged with the duty of administering the provisions of the Trade Unions Act. Nothing has been shown to us in the Act which can be said to detract from the generality of what the Supreme Court has observed in that case.
(5) We do not find any merit in this application which is, accordingly, dismissed.”
25. With utmost respect, I find myself unable to follow this decision. First, it appears that the basic scheme of the Trade Unions Act as emerging from its different provisions and the decisions of this Court as also of the other High Courts as noted above were not brought to the notice of the Bench passing that order. Secondly, the decision seems to completely overlook the context in which the observation was made by the Supreme Court. As explained above, the direction to hold the election had come from the High Court which had said that the election should be held under the supervision of the General Manager, North Eastern Railway. The Supreme Court had only substituted the Registrar, Trade Unions, in place of the General Manager, Railways.
26. I am, therefore, of the considered opinion that the cases relied upon by Sri Gupta cannot defend or justify the action of the Registrar in issuing the impugned directions. I have also stated my reasons for not following the decision of this Court in the case of Indian Explosives Workers Union (vide supra), and I find myself in respectful agreement with the earlier decision of this Court in Mukund Ram Tanti case (vide supra), and those of the Allahabad High Court and the Madras High Court.
27. On an examination and analysis of the Patna decision Mukund Ram Tanti case (vide supra), the Allahabad, Andhra and the Madras decisions, 1 come to the following conclusions:
(i) In a dispute between two rival factions claiming to be the office-bearers of a trade union, it is open to the Registrar to hold an enquiry for the purpose of maintaining and updating the registers required to be maintained under S. 8 of the Act.
(ii) His decision in this regard shall neither confer any right on any person or group of persons nor divest any person or group of persons of any lawful rights.
(iii) Consequently the Registrar has no authority or power to issue any direction asking/advising the Labour Department of the Government or the employer to recognize and treat any particular person or group of persons as the duly elected office-bearers of the union in dealing with that union.
(iv) The Registrar, Trade Unions, has no authority or power to direct the holding of election of the office-bearers of a union under his own supervision or under the supervision of his nominee.
(v) In the absence of any provisions in the Trade Unions Act, 1926, any dispute of his kind can only be resolved by means of a suit filed before a civil Court.
(vi) The adjudication in a suit at least in this State is normally a slow and time consuming process and does not constitute a wholly satisfactory remedy for resolving the dispute.
(vii) The Legislature will, therefore, be well advised to address itself to this lacuna in the Trade Unions Act and to take steps to remedy it which has been long over due.
28. At this stage, Sri Gupta urged that in the interest of the smooth functioning of the union it was necessary that an election be held and asked the Court not to interfere with the order or lo issue direction of its own for holding of the election. In the facts and circumstances of this case, I am not inclined to accept this submission either. The admitted position is that the suit is now at the stage of arguments and I think the entire controversy can be effectively resolved in that suit before the civil Court.
29. For the reasons stated above, I come to the inescapable inference that the impugned directions as contained in the letter, dated 27 July 1994, were wholly without any authority or jurisdiction and are unsustainable in the eye of law. The impugned directions arc accordingly quashed.
30. In the result, this application is allowed. However, without any order as to costs.
31. P.K Sarin, J.:— I agree.