D.C.M Chemical Mazdoor Ekta Union And Others v. Registrar Of Trade Unions, Delhi, And Others

V.S Deshpande, J.:— The decision of this writ petition involves the consideration of the true scope of S. 10 of the Trade Unions Act, 1926 (hereinafter called the Act), on the following facts:

2. Petitioner 1 and respondent 3 have been two registered unions of the employees of the D.C.M Chemical Works, Delhi By the impugned order, dated 1 November 1977, respondent 2, the then Deputy Registrar of Trade Unions, permitted the amalgamation of these two unions and the change of the name for the amalgamated union to be D.C.M Chemical Karamchari Union, who is joinded as respondent 4 to the writ petition. The Validity of this order challenged by petitioner 1 and eleven of its members, inter alia, on the following grounds:

(1) The permission for amalgamation and change of name is alleged to have been obtained from the Deputy Registrar by a conspiracy between the office-bearers of respondent 3 and respondents 5 and 6, who at the relevant time represented petitioner 1. Under S. 24 of the Act any two or more registered trade unions may become amalgamated together as one trade union provided that votes of at least one half of the members of each or every such trade union entitled to vote are recorded and that at least 60 per cent of the votes recorded are in favour of the proposal. It is alleged by the petitioners that as a matter of fact no such meeting of the unions was called in accordance with the constitution and consequently the Deputy Registrar had no jurisdiction to permit the amalgamation.

(2) After the alleged meeting in which amalgamation is said to have been resolved by the requisite majority of the voters from each union under S. 24, a meeting of the petitioners' union was called and 90 per cent of the said members expressed themselves against the amalgamation of the union. A resolution to that effect was passed and communicated to the Registrar of Trade Unions. These letters from petitioner 1 were of 29 October and 1 November 1977, and were received by the Registrar on 31 October and 1 November 1977, before the impugned order, dated 1 November 1977, was passed. Respondent 2 nevertheless ignored the letters and resolutions and passed the impugned order.

3. Respondent 4 purporting to be the amalgamated union, has resisted the writ petition and contended that the requirements of S. 24 have been complied with and the impugned order was valid. Sri D.N Vohra, learned counsel for respondent 4, also pointed out that the prayer in the writ petition for quashing the order, dated 1 November 1977, substantially seeks a relief which is available to the petitioner from the Registrar under S. 10 of the Act. Clause (3) of Art. 226 bars the jurisdiction of this Court to entertain the writ petition because the statutory alternative remedy is open to the writ petitioners and no cause is shown by the petitioners why that remedy is not being availed of.

4. Section 10 of the Act reads as follows:

“A certificate of registration of a 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 S. 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. The scope of S. 10 is to be understood in the light of overall provisions of the Act relating to the registration and the cancellation thereof. The very object of the Act is to provide for registered trade unions. Chapter 11 of the Act deals with registration of trade unions. An application for registration is made under S. 4 giving the particulars specified in S. 5 by a trade union the rules of which provide for the particulars stated in S. 6. The Registrar can call for further particulars under S. 7. The Registrar, on being satisfied that the applicant trade union complies with all the requirements of the Act in regard to registration, shall register the trade union by entering in a register the name and other particulars relating to the trade union. This registration is done under S. 8. After this registration is done, the evidence of the said registration is provided by the issue of a certificate of registration by the Registrar to the trade union so registered, it would be seen, therefore, that the mind of the Registrar has to be applied to the application for registration in the light of the provisions referred to above and the Registrar has to be satisfied that the relevant provisions of the Act have been complied with before he orders the registration of the applicant trade union. This is the decision of the Registrar under the statutory power which is important. The certificate of registration is merely the evidence of the decision. It is not the decision itself.

6. The prayer of the petitioners is that the order granting registration and change of name to respondent 4 should be quashed. Dr. Anand Parkash, for the petitioner argues that the order of registration passed under S. 8 relates only to an application made for registration under S. 4 and the compliance with Ss. 5 and 6. He points out that the registration of respondent 4 was made after permission for change of name and amalgamation was granted under Ss. 23 and 24. The order of the Deputy Registrar can at best be said to have been passed under Sub-secs. (3) and (4) of S. 25 of the Act. He argues that cancellation of the certificate of registration under S. 10 has relevance only to the grant of certificate under S. 9 which itself is a consequence of an order passed under S. 8. He contends that the grant of certificate is not mentioned in S. 25 and, therefore, the remedy of cancellation of the certificate of registration cannot be sought by the petitioner who seeks to have the order passed under S. 25 quashed.

7. We are of the view that this arguments puts the letter of the law above the substance of it. In our view, the impugned order permitting change of name and amalgamation has to be followed by registration for the simple reason that the Act deals only with registered unions. Sections 23 and 24 deal with registered unions only. Section 25 is consequential on the compliance with the requirements of Ss. 23 and 24 relating to the change of name and amalgamation of trade unions. Under Sub-sec. (3) of S. 25 registration after the change of name is a necessary consequence. Compliance with Sub-sec. (3) itself means that the Registrar has to permit the change of name and also to register the trade union under its new name. Under Sub-sec. (4) not only the compliance with S. 24 but also eligibility under S. 6 of the Act is needed before the amalgamated union is registered. The requirements of S. 6 have already been satisfied by these two trade unions before they were registered. The presumption is that the amalgamated union also satisfied these particulars. There is no allegation to the contrary. It would follow, therefore, that even under Sub-sec. (4) of S. 25 the registration of the amalgamated union by the Registrar was as a matter of course.

8. Our conclusion, therefore, is that the power of the Registrar to register a trade union under Sub-secs. (3) and (4) (of S. 25) is the same as is the power under S. 8. The certificate of registration has to be issued by the Registrar whether the registration is done under S. 8 or under S. 25.

9. Further, though S. 10 speaks of the cancellation of a certificate of registration, its contents show that this can be done only when the order of registration is shown to be such that it ought to be cancelled. So long as the order for registration stands and is justified by the compliance with those provisions of the Act which entitled a trade union to registration, the Registrar cannot cancel the certificate of registration. When, therefore, S. 10 (b) says that the Registrar has to be satisfied that the certificate, has been obtained by fraud or mistake, what it really means is that the registration is obtained by fraud of mistake. It is clear that the issue of certificate is merely a procedural act. The thrust of S. 10 is really towards such fraud or mistake which have resulted in the registration of a trade union. It would be rare that fraud or mistake is committed not to obtain the registration but merely to obtained the certificate of registration. We would, therefore, construe S. 10 to apply not only when a mere certificate of registration has been obtained by fraud or mistake, but also when the registration itself has been obtained by fraud or mistake.

10. On that view, the relief for quashing the order, dated 1 November 1977, is relief for quashing the registration and consequently the cancellation of the certificate of registration. Such a relief squarely falls within S. 10.

11. It is well settled that a petition is not to be entertained under Art. 226 of the Constitution if an adequate remedy is available to the petitioner under the statute action taken under which is sought to be questioned by a petition under Art. 226. This principle has since then been embodied in Cl. (3) of Art. 226 by the Constitution (Forty-second Amendment) Act, 1976. The Constitution (Forty-fifth Amendment) Bill, 1978, now seeks to delete Cl. (3) and restore original Art. 226. With or without Cl. (3) the position under Art. 226 would be the same, namely, this Court must be satisfied before taking jurisdiction under Art. 226 that no adequate remedy is available to the petitioner against the administrative action complained of. The words

“if any other remedy for such redress is provided by or under any other law for the time being in force,”

used in Cl. (3) have to be construed with a view to give effect not only to the object Cl. (3) so long as it remains a part of Art. 226, but also to fulfil the basic object of the exercise of writ jurisdiction by this Court under Art. 226. The intention of the Constitution is that the remedy under Art. 226 is discretionary. One factor governing the exercise of such discretion is to see whether an adequate alternative remedy is available to the petitioner. If it is available, the petitioner must explain to this Court why he cannot avail himself of it and why this Court should take up jurisdiction even though an adequate remedy elsewhere is available. As explained in Shri R.K Gupta…Petitioner v. Delhi Administration, Etc.…S Writ No. 259 of 1977, dated 20 January 1978], such alternative remedy does not, however, mean a suit in a civil Court, but rather a statutory remedy other than such a general remedy in a suit. The provisions of S. 10 have to be examined with a view to see if S. 10 provides a remedy which would be an adequate alternative remedy for the petitioners so as to put this Court on enquiry. The petitioners have not given any reason why they cannot first avail themselves of the remedy gives to them fey S. 10. Their only object in first coming to this Court seems to have been that they were in some doubt as to whether the remedy under S. 10 was available to them. This doubt has been removed by the above discussion. The petitioners, therefore, have to first avail themselves of the remedy under S. 10. This Court would not entertain the petition in view of the general discretion given to this Court by the original Art. 226 and in particular due to Cl. (3) of Art. 226 as it exists today.

12. We may next consider the allegation of petitioner 1 that the so-called resolution in favour of amalgamation was subsequently retracted by a counter resolution by petitioner 1. According to the petitioner, this was communicated to the Registrar by two letters received by the Registrar on 31 October and 1 November 1977. Both these letters bear the seals of the Office of the Registrar having received them on those dates. If so, the question arises whether the Registrar was entitled to ignore these two letters. Respondent 2 who was the Deputy Registrar, who passed the order of registration has since then retired. The counter-affidavit is filed by his successor. He is deposing only from the record and not from personal knowledge. When he says that these two letters were brought to the notice of the then Deputy Registrar only after the impugned order was passed he is speaking only from the record. It is not known if the then Registrar really did not know of these letters. He has not filed any counter-affidavit. Assuming that the then Deputy Registrar did not know of these letters even though they were received in the office, the question, arises whether it can be said within the meaning of S. 8 that the Registrar was satisfied that the two trade unions had complied with all the requirements of the Act in regard to registration. The satisfaction of the Registrar has to be based on the relevant material. It is true that it is only the existence of the material and not its sufficiency which can be looked into by this Court under Art. 226. But the resolution passed by petitioner 1 and communicated by these letters was such as to make non-existent the previous resolution authorizing the amalgamation. In the light of the subsequent resolution, it was arguable that there was no material before the Deputy Registrar on which he could be satisfied under S. 8 that the registration ought to be granted. It is now well settled that before an order adverse to a party is passed under a statute, the statutory authority acting under it ought to have regard to the rules of natural justice unless the statute expressly rules out compliance with natural justice. [See Indian Institute of Technology v. Managat Singh [I.L.R (1973) II Del. 6]. Section 8 does not expressly rule out compliance with natural justice. It requires the Registrar to consider the relevant material before he is satisfied that requirements of the Act in regard to registration have been complied with. The petitioners have alleged in the present case that the relevant material sent by them to the Registrar by these letters was not considered by him. Had it been so considered, no material would have existed before the Deputy Registrar to show that petitioner 1 had agreed to amalgamation.

13. Quite apart, therefore, from the bar of Cl. (3) of Art. 226 the impugned order is vulnerable on the ground that it has been passed without consideration of the relevant material and was thus not based on any material at all.

14. Respondent 2 acting under S. 25, Sub-secs. (3) and (4), is bound to satisfy himself that the material for taking decisions under those provisions has been submitted to him. Since it is the complaint of the petitioners that certain material sent to respondent 2 on the eve of passing of the impugned order was either not considered by him or was not brought to his notice, respondent 2 will be entitled to review the impugned order after considering whether the material sent by petitioner 1 in the form of subsequent resolution rescinding the prior one should have been put before respondent 2 before the impugned order was passed. On such review respondent 2 has the inherent power to set aside the impugned order, since it was passed in ignorance of the said material which had to be seen by respondent 2 before passing the impugned order.

15. For these two reasons, the Deputy Registrar of Trade Unions, who is succeeded by respondent 2, we hope, will —

(1) reconsider the material which placed before respondent 2 under Ss. 23 and 24 of the Act for charge of name and the amalgamation of the two trade unions, petitioner 1 and respondent 3;

(2) consider the subsequent material sent by petitioner 1 along with the letters received on 31 October and 1 November 1977, in the Office of the Registrar; and

(3) hear both petitioner 1 and respondent 3 and thereafter, pass an appropriate order reviewing, if necessary, the impugned order and granting or refusing the change of name and amalgamation.

This order shall be communicated to Sri S.P Joshi, Deputy Registrar, Trade Unions, 15, Rajpur Road, Delhi, who has filed the counter-affidavit in the present case for such further action in the light of the above observations as he may take at the hearing of the parties to the present writ petition. The petition is disposed of as above with no order as to costs.