Falguni Chakraborti v. State Of West Bengal And Others

1. In this writ petition, the petitioner has made the following prayers:

(a) A writ or writs in the nature of mandamus commanding the respondents No. 3 to settle the dispute regarding intra union rivalry of the petitioner-union.

(b) A writ in the nature of the mandamus commanding the respondent to allow the petitioner to function whatsoever.

(c) A writ or writs in the nature of mandamus commanding the respondent No. 3 to consider the repeated representations of the petitioner-union.

(d) An interim order of restraining the rival committee to function in the name of the petitioner union namely the Ananda Bazar Patrika Hindustan Standard and Desh Employees and Workers Union.

(e) A writ or writs in the nature of certiorari calling upon the respondent No. 3 to transmit the entire records before this Hon'ble Court so that after perusal of the same conscionable justice may be administered.

(f) A direction and/or directions refraining the concerned respondents from encouraging intra union rivalry in any manner whatsoever.

(g) Rule nisi in terms of prayers (a), (b), (c), (d), (e) and (f).

(h) Ad interim orders in terms of prayers (a), (b), (c), (d) and (f).

(i) Cost pertaining to the instant application.

(j) Such other or further order or orders and/or direction or directions as your Lordships may deem fit and proper.”

2. Learned counsel for the petitioner submits that the petitioner has been making representations one after other but the same are not being considered. Therefore the respondents should be directed to consider such representation. She has relied on Sub-sec. (4) of S. 28 of the Trade Unions Act in order to substantiate her contention.

3. Dr. Manotosh Mukherjee, learned counsel for the respondent-employer takes the points which are recorded in the order, dated 26, June, 2001, viz:

“that this petition is not maintainable since the relief is sought for against the rival parties but these rival parties have not been made parties to this petition;

that it is intra-union rivalry and, therefore, this is a subject-matter of suit which cannot be entertained in writ jurisdiction;

that there has been suppression of material facts, therefore, on the above grounds, the petition should be thrown out.”

4. The learned counsel for the State contends that there has already been an election, notices whereof have been communicated. Though it is alleged that some of the members were not given opportunities and were not permitted to take part in the election but no particulars having been disclosed, the same cannot be gone into.

5. M. Majumdar, learned counsel appearing for the union submits that the union having not been made parties, the writ petition cannot be maintained. He contended further that relevant facts have not been disclosed, in the facts and circumstances of the case the registrar of trade union has no Jurisdiction to entertain such representation nor it has jurisdiction to adjudicate the dispute in law. But since his client is not a party to the proceedings, therefore, he is not permitted to intervene.

6. After having heard the learned counsel for the parties, it appears that there is an existence of a rivalry and this relates to intra union rivalry, as it appears from the prayer itself. Injunction has also been prayed against the rival union. Therefore, this petition cannot be maintained without the rivals against whom the real relief is being sought to be achieved. By reason of the principles of audi alteram partem no relief can be had against some one who is not a part to the proceedings.

7. It is sought to be contended that the principal relief sought is a direction upon the Registrar of Trade Unions to consider its representation and no relief in this petition is sought against their rival. The submission is fallacious. Inasmuch as it is the dispute between two rivals claiming control over same union which is being sought to be settled through this representation. From the facts disclosed it appears that there was an earlier order of this Court pursuant to which the self same dispute was sought to be settled by holding election through the Registrar of Trade Unions. Such election has been held. The petitioners' rivals have won the election and are in control by reason of such election. Thus any step taken with regard thereto the right of the third party is affected. Any order passed herein would be adjudicating the right of the petitioners to maintain the representation related to the third party's interest, it is open to such party to contend that in facts and circumstances no such representation is maintainable. It may, on its behalf, also be contended that the Registrar has no jurisdiction not only to entertain the alleged representation but also to adjudicate the alleged dispute, in the facts and circumstances of the case. That apart injunction against the rivals of the petitioners is one of the prayer in the petition and the pleading contains allegations against such rivals. In effect the relief is sought against those rivals who have since been declared elected. More precisely it is really an election dispute which is being sought to be resolved through such representation. Thus in the absence of the alleged rivals this writ petition is hit by the principals of audi alteram partem, a cardinal well-established settled principle of jurisprudence which needs no more elaboration.

8. Then again it appears that there was an earlier order passed by this Court directing election of the union. It is pointed out that such election was held after issuing a notice, dated 17 March, 1998, and these facts having not been disclosed, it is contended by Sri Mukherjee that there has been suppression of facts. Therefore, the petition should be dismissed relying on the decision of Garbari Union v. Swapan Kumar Jana, (1997) 1 C.H.N 189. He then contends that the question being an intra-union rivalry, it should be decided in a civil Court. The petitioner cannot claim to invoke such jurisdiction particularly when the dispute has already been settled by holding an election in terms of the earlier order passed by this Court.

9. As it appears from the pleading that an Order was passed by this Court and pursuant to that order the election had taken place. Therefore, this question becomes the question of dispute between two groups of the same union which cannot be decided under Sub-sec. (4) of S. 28 of the Trade Unions Act, 1926, hereinafter referred to as the said Act. Sub-sec. (4) of S. 28 provides as follows:

S. 28 Returns

(4) For the purpose of examining the documents referred to in Sub-secs. (1), (2), and (3) the Registrar, or any officer authorized by him by general or special offer, 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 snail be at a distance of more than ten miles from the registered office of a trade union.

10. Sub-section (4) empowers the Registrar or its authorized officer to examine the documents referred to in Sub-secs. (1), (2) and (3). It is an administrative power. We may now examine the same in the context of this case which relates to Sub-sec. (2). In the present case the changes of the office bearers which is being disputed by the petitioners. Now in order to ascertain that there has been changes the Registrar may examine the same. This is required only when the Registrar may have reason to form an opinion that it is necessary. But it is only to ascertain that the statements submitted are supported by documents. Section 28 relates to “Returns” by the Trade Unions. Therefore Sub-sec. (4) has to be construed in the context of S. 28. It cannot travel beyond the scheme of S. 28. Every provision of the statute has to be interpreted having regard to context and the scheme of the provisions in respect whereof the particular section, etc., is provided for. As observed earlier S. 28 relates to submission of returns only. Section 28 does not postulate adjudication of dispute. Sub-section (4) does not empower the registrar to adjudicate any disputes adjudication of a dispute is not a administrative function. It is a quasi-judicial function. Unless statute specifically provides no statutory authority can exercise any quasi-judicial function. Such functions are to be conferred by statute specifically. An authority created under a statute is a creature of statute. His powers are to be found out from within the statute itself. He cannot assume any extra statutory power.

11. Section 28 is only a regulatory procedure. It is not a substantive power that has been conferred on the Registrar. In order to perform or discharge the regulatory function he can examine documents. How such documents can be examined has been mentioned. But nothing from Sub-sec. (4) indicates that it has conferred any power or adjudication of any dispute particularly election dispute. The correctness of the election or otherwise if disputed: One claiming to have been elected and other claiming that such election has not been duly held, is a determining of specific dispute which has never been contemplated by the Legislature while incorporating Sub-sec. (4).

12. In North Eastern Railway Mazdoor Union v. Registrar of Trade union [1969 L.&I.C 209], was held that the duty of the Registrar in recording changes of office-bearers is only administrative. It has no quasi-judicial power of enquiry in respect of the claims of rival groups in trade unions. In Jagdish Bharati v. Union of India [1969 L.&I.C 205], it was held that in case of Rival Group of Trade Unions filling conflicting forms under regulation 17-A of Uttar Pradesh Trade Union Regulations, the registrar has no powers to hold a quasi-judicial enquiry, S. 28(2) empowers the Registrar only to receive the statement. It is only to ascertain whether it is in order or not the records will be examined, but not for the purpose of invalidity thereof. In Sanjeeva Reddy v. Registrar of Trade Unions [1969-I L.L.J 11], it was held that Registrar Cannot make any enquiry with regard To the validity of the election. It was further held that Registrar has no power to decide election disputes relating to registered trade unions. There is no specific provision in the Act empowering the Registrar to make an enquiry when a statement of election of office-bearers is sent to him. Similarly, no duty is cast upon him to accept the statement of change of office-bearers which is sent to him. In Engineering Mazdoor Sabha v. Registrar of Trade Unions [1977 (2) L.L.N 596], it was held that there is a material difference between the provisions of S. 28 of the Trade Unions Act read with regulation 12 of the Bombay Trade Unions Regulations, 1927, and the provisions of the added S. 28(1A) read with regulation 23. The field of operation of these two provisions is distinct and different. It may be that the Registrar has not issued a consent certificate without which a dispute contemplated by S. 28(1A)(1) of the Trade Unions Act, could not be raised at all. The mere fact that the election of office-bearers is under challenge, and the Registrar has issued a certificate, is hardly a ground to refuse registration of alterations received under S. 28(3).

13. Thus it is crystal clear that S. 28 does not empower the Registrar to adjudicate any dispute between rival groups in relation of the election of office-bearers. The plain reading of Sub-sec. (4) makes it clear that the provision thereof is administrative in nature. It may examine or inspect the documents and may require its production only for the purpose mentioned in Sub-secs. (1), (2) and (3) of S. 28. Sub-section (4) has no manner of independent application other than those provided in Sub-secs. (1), (2) and (3). Sub-section (1) relates to the statement of accounts while Sub-sec. (2) is related to change of office-bearers, Sub-section (3) deals with alteration made in the rules, Neither of these three sub-sections are related to election dispute.

14. A section is to be read in the context in which it is incorporated and according to scheme of the statute. Section 28 deals with “Returns.” Therefore, Sub-sec. (4) cannot surpass or exceed the scope and ambit contemplated under Sub-secs. (1), (2) and (3), none of which deals with election dispute. Therefore, reference to Sub-sec. (4) of S. 28 does not help the petitioner in her contention.

15. Then again, the election was held by the Registrar himself under the orders of this Court. Therefore there is no question of examining the records by himself.

16. The above provision clearly shows that these are matters which are to be decided by the authority concerned but the same will not be relating to the dispute between two groups claiming to be in control of the union. In fact this is a civil dispute between the two groups of the same union fighting each other which can only be decided in a civil suit and not by representation particularly when the self same question was once decided pursuant to the decision of this Court. If the petitioner disputes an election in that event he is at liberty to approach the civil Court and thrash out his grievances. It is not necessary to go into the question of suppression of material facts at this stage since I am not inclined to entertain this writ petition on the other two grounds. This writ petition is accordingly dismissed. No orders as to costs.

Parties are to act on the xerox signed copy of this dictated order on the usual undertaking.

Petition dismissed.