TMI Blog2013 (10) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... registered Trade Union of workmen shall at all times continue to have not less than ten per cent, or one hundred of the workmen. Sec.10 of the Act relates to cancellation of registration and, thereunder, a certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar. As the petitioner Union was neither put on notice nor were they informed of the proposal to cancel their registration under Sect.10(b) of the Act, the requirement of affording the petitioner Union a reasonable opportunity to show cause, as stipulated under the proviso to Section 10 of the Act, cannot be said to have been complied with. Sec.4(1) of the Act obligated the Registrar to ascertain whether the Petitioner-Union had the minimum required strength of 10% of the workmen, or 100 workers, in the establishment of the 4th respondent on the date of its registration. He ought to have verified whether the 88 workmen, who submitted a representation to him, were never the member of the Petitioner Union, and registration of the Union was obtained by fraud; or they had disassociated themselves from the petitioner Union between the date of the submission of the application and the date of reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es between the petitioner union and the other faction of workers which would cause unrest and disturbance in the factory. Enclosed to the said letter of the 4th respondent were copies of the representations of 88 workmen. 2. On receipt of the said representation, the Registrar issued notice dated 15.11.2012 informing the petitioner that 88 individual workers had represented that their signatures were misrepresented/forged and some of them were forced to join the union; and notice was being given to them as he intended to proceed, on or after 60 days of service of the notice, to cancel the certificate of registration, for the reasons given therein, unless sufficient cause was shown to the contrary in the meantime. The notice refers to Section 9A of the Act and states that the petitioner had failed to show that it had 10% of the workmen employed in the 4th respondent, with which it is connected, as its members after 18.10.2012 as per the amended provisions of the Act. A copy of the said notice was served on the petitioner on 16.11.2012. 3. The petitioner submitted their reply on 10.01.2013 informing the Registrar that the contents of the notice dated 15.11.2012 were self-contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said affidavits disclosed the mischievous action of the 4th respondent in creating the alleged letters; the management of the 4th respondent was threatening workers not to join the union, they were making all efforts to cancel registration of the petitioner union which amounted to unfair labour practice; after formation of the union, about 319 workers had obtained membership as on date by duly submitting their respective applications to the union for membership; copies of the 319 application forms submitted by individual workers, copies of the subscription receipts, copies of the register of members and subscriptions in Form F were being enclosed along with their reply; they had lodged a complaint on 26.10.2012 with the 3rd respondent, the Superintendent of Police, Medak and the District Collector, Medak, but no action was taken on their complaint; their union was having 10% of the total strength as required under Section 9A of the Act from the date of registration till date; the 4th respondent, in collusion with the existing union, was creating unrest among the workers, and was trying to cancel registration of their union; and it is in the said course of action that the mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized and formed themselves into the petitioner-union; it was only after satisfying himself, that all the requirements were satisfied, did the Registrar register the petitioner-union; the fourth respondent had resorted to illegal acts to get the registration certificate of the petitioner cancelled; they started threatening the workmen to discontinue their membership in the petitioner-union; on threat of termination of employment, and by mis-representation, the fourth respondent obtained their signatures on blank papers; the fourth respondent submitted a representation falsely alleging that the signatures of the workmen were used by the petitioner-union for the formation of the union; the workmen were also threatened and forced to initiate steps for cancellation of the registration of the petitioner-union; the petitioner's representation dated 26.10.2012, complaining of the illegal acts of the fourth respondent in resorting to unfair labour practices, was not acted upon; without causing any enquiry, as to the genuineness of the allegations made by the fourth respondent in their letter dated 29.10.2012, and relying on the alleged letters said to have been submitted by 88 individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned proceedings dated 13.06.2013, cancelling their registration, was received on 17.06.2013; it is evident therefrom that the third respondent had caused an enquiry behind their back, and without giving them or their members an opportunity of being heard; the third respondent did not even consider their explanation dated 10.01.2013; his action, in cancelling the registration certificate, is arbitrary, illegal, in violation of principles of natural justice and contrary to the provisions of the Act and the Regulations made thereunder; the reasons given by the third respondent, in the impugned proceedings, are not only self-contradictory but also fall foul of Section 10 of the Act; as the impugned proceedings dated 13.06.2013 is arbitrary and illegal, and was passed without following the procedure laid down under the Act and the Regulations and in violation of principles of natural justice, existence of an alternate remedy of appeal under Section 11 of the Act is not a bar to maintain the Writ Petition; and the petitioner withdrew W.P. No. 5623 of 2013 as it had become infructuous. 6. In his counter affidavit, the third respondent would submit that the petitioner was registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he workers had complained to the 3rd respondent in person either on 26.10.2012 or subsequently, except for a few office bearers of the petitioner union; hence action could not be taken by the 3rd respondent on the petitioner union's representation dated 26.10.2012; on receipt of 88 individual representations of the workers dated 15.10.2012 and 26.10.2012, and the representation of the 4th respondent dated 29.10.2012, the 3rd respondent had issued notice dated 15.11.2012 to the petitioner union to ascertain facts, and to verify whether the petitioner union had the required members as per Section 9A of the Act; the petitioner's contention that the 4th respondent had created the said letters of the workmen, by forging and misrepresenting facts, could not be believed in the light of the subsequent enquiry conducted by the Assistant Commissioner of Labour, Sangareddy on 22.05.2013 and 12.06.2013 with the workmen; on perusal of their statements, it was evident that 35 workers had stated that they were not interested in the formation of the petitioner union, their pay slips, their signatures, were obtained for the purposes of a loan, their signatures were either forged or obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignatures of the workmen on blank papers is not true as their signatures were obtained during the enquiry, after recording their statements; considering the representations and affidavits of these individuals, the petitioner-Union's representations, the representation of the fourth respondent, and the instructions of the first and second respondents, and based on the enquiry report dated 13.06.2013 submitted by the Assistant Commissioner of Labour, Sangareddy, the petitioner's registration was cancelled vide proceedings dated 13.06.2013 under Section 9A of the Act as they had 81 members only, whereas they were required to have 100 workers as their members; and the allegations, that cancellation of registration is arbitrary, illegal, unjustified and in violation of principles of natural justice, are not correct. 7. In the counter affidavit, filed on behalf of the 4th respondent, it is stated that there is no procedure prescribed, either under the Act or the Regulations, for the Registrar to cause an enquiry before cancellation of registration of a trade union, on an application made by any party for cancellation under Section 10 of the Act; all that is prescribed is for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and some of them were forced to join the union; copies of the representation of the 88 workers were forwarded to the petitioner union; the petitioner had obtained registration by fraudulent means obtaining the signatures of workmen/employees under coercion and undue influence; the Assistant Commissioner of Labour had conducted an enquiry into the complaint given by the 4th respondent on 11.02.2013; the notice of the Assistant Commissioner of Labour stated that, during enquiry, statements of seven individual workers were recorded in respect of registration of the union, the said workers had informed that they had no knowledge of the union registration; the Assistant Commissioner of Labour was forced, by the President of the petitioner Union, to stop the enquiry on 11.02.2013; the 4th respondent lodged a complaint with the Commissioner of Labour regarding stoppage of the enquiry by the Assistant Commissioner of Labour, Sangareddy at the behest of the President of the petitioner union; the Deputy Commissioner of Labour again commenced enquiry on 22.05.2013 afresh; he recorded the statements of 25 of the 88 workers, 17 of whom gave their statements in favour of the management confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent is not tenable; the allegations that the 4th respondent has no locus standi, respondents 1 to 3 had resorted to illegal acts of conducting enquiry in the 4th respondent premises and had clouded with the officials of the 4th respondent, are not tenable; there are about 2500 workers working either directly or indirectly with them; and there has never been any complaint against them ever since inception. 10. Elaborate submissions, both oral and written, were made by Sri K.S. Murthy, Learned Counsel for the petitioner and Sri M. Radhakrishna Murthy, Learned Counsel for the 4th respondent. The Learned Government Pleader for Labour advanced arguments in justification of the order impugned in this Writ Petition, and has placed the original records for the perusal of this Court. It is convenient to examine the rival submissions under different heads. I. FUNDAMENTAL RIGHTS MUST BE LIBERALLY INTERPRETED, AND THE RESTRICTIONS THEREON BE STRICTLY CONSTRUED: 11. Sri K.S. Murthy, Learned Counsel for the petitioner, would submit that the 4th respondent management cannot water down the fundamental right of the petitioner to form an association, with the help of willing officers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Suryapal Singh v. U.P. Government AIR 1951 All. 674). The right to form associations or unions has wide and varied scope for its exercise, and its curtailment is fraught with potential reactions in the religious, political and economic fields. (State of Madras v. V.G. Row 1952 SCR 597). While Article 19(1) grants rights to the citizens as such, associations or Unions can lay claim to the fundamental rights guaranteed by Article 19(1)(c) solely on the basis of their being an aggregation of citizens i.e. the rights of the citizens composing the body. (Dharam Dutt v. Union of India (2004) 1 SCC 712; A.I.B.E. Assocn. v. N.I. Tribunal AIR 1962 SC 171 : (1962) 3 SCR 269; V.G. Row 1952 SCR 597). 14. The right to form a Union can be effective only if it is held to include within it the right to continue the Union with its composition as voluntarily agreed upon by the persons forming it. (Damyanti Naranga v. Union of India AIR 1971 SC 966; Ashom Rastrabhasa Prachar Samiti v. State of Assam AIR 1989 SC 2126). The right to form unions is a positive right, which alone is made a fundamental right. (Tira Ramji v. State of U.P. AIR 1956 SC 676). The qualification subject to which the right u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is quite consistent with this, to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms. (Minister of Home Affairs v. Fisher (1979) 3 All ER 21). In the context of the principles underlying the Constitution, and the manner in which Part III has been framed, the guarantees embodied therein are to be interpreted liberally so as to subserve the purpose for which the Constitution-makers intended them, and not in any pedantic or narrow sense. (N.I. Tribunal AIR 1962 SC 171 : (1962) 3 SCR 269). The Court should not interpret constitutional rights, enshrined in Part III, to choke its life-breath or chill its elan vital by processes of legalism, overruling the enduring values burning in the bosoms of those who won our independence and drew up our founding document. True, high constitutional policy has harmonised individual freedoms with holistic community good by inscribing exceptions to Article 19(1) in Articles 19(2) to (6). Even so, what is fundamental is the freedom, not the exception. (Maneka Gandhi v. Union of India 17 AIR 1978 SC 597; V.G. Row 1952 SCR 597). Construing Section 10 of the Act, as conferring an unbridled discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the Act; and (c) if he is satisfied that a registered Trade Union of workmen ceases to have the requisite number of members. Under the proviso thereto 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. 19. Upon a complaint being made, the Registrar has the power to cancel registration under Section 10 of the Act after making due inquiry. Two months previous notice, specifying the ground of proposed cancellation, must have been issued, (Tamil Nadu Government Press Workers Sangam, Madras v. First Trade Union Addl. Registrar (Deputy Commissioner of Labour I), Madras 2004 ILLJ 274 Mad; Mysore Iron and Steel Workers, labourers' Association v. Commissioner of Labour and Registrar of Trade Unions, Bangalore 1972 LIC 799; and Tata Electric Companies Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8; State of Bihar v. Charusila Dasi AIR 1959 SC 1002; In re, the Hindu Women's Right to Property Act, 1937 1941 FCR 12 (AIR 1941 FC 72)). 22. If the provisions of the statute are reasonably capable of a construction which does not involve the infringement of any fundamental rights, that construction must be preferred though it may reasonably be possible to adopt another construction which leads to the infringement of the said fundamental rights. (Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan AIR 1963 SC 1638). A court of law would interpret a provision which would help in sustaining the validity of the law by applying the doctrine of reasonable construction than accepting the interpretation which may render such provision unsustainable and ultra vires the Constitution, (Olga Tellis v. Bombay Municipal Corpn. (1985) 3 SCC 545; Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388; and Uttar Pradesh Power Corporation Limited v. Ayodhya Prasad Mishra (2008) 10 SCC 139), as the parliament is presumed to have enacted a reasonable statute. (Bharat Petroleum Corporation Ltd. V. Maddula Ratnavalli (2007) 6 SCC 81; Breyer, Stephen (2005): Active ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, is one which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to the Halsbury's Laws of England, a representation is deemed to be false and, therefore, a misrepresentation if it was, at the material date, false in substance and in fact. From the dictionary meaning or even otherwise fraud arises out of the deliberate active role of the representer about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of a fact with knowledge that it was false. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless of whether it be true or false. A false statement, made through carelessness and without reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been extended to failure to disclose all relevant and material facts which one has a positive duty to disclose. It is thus understood as a deliberate act or omission to mislead the other to gain undue advantage. 'It consists of some deceitful practice or willful device resorted to with intent to deprive another of his right or in some manner to do him an injury' (Black's Law Dictionary). (Budhikota Subbarao (Dr) (1993) 2 SCC 567). The colour of fraud in public law or administrative law arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to procure an order from an authority. In public law the duty is not to deceive. (Shrisht Dhawan v. Shaw Bros (1992) 1 SCC 534; Roshan Deen v. Preeti Lal (2002 (1) ALD 18 (SC) : (2002) 1 SCC 100, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003) 8 SCC 311; Ram Chandra Singh (2004) (6) ALD 31 (SC) : (2003) 8 SCC 319; Ashok Leyland Ltd. v. State of T.N. (2004) 3 SCC 1; T. Suryachandra Rao (2005 (5) ALD 118 (SC) : (2005) 6 SCC 149; Behari Kunj Sahkari Avas Samiti (2008) 12 SCC 306; and Divisional Forest Officer, Eluru. (2011) (2) ALD 147 (DB)). There is, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty who alleges fraud to prove such allegations. The level of proof required for proving fraud is extremely high. (Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad (2005) 11 SCC 314; Chief Engineer, M.S.E.B. v. Suresh Raghunath Bhokare (2005) 10 SCC 465; Maharashtra Power Development Corpn. Ltd. v. Dabhol Power Co. (2005) 11 SCC 209; and Alva Aluminium Ltd. v. Gabriel India Ltd. (2011) 1 SCC 167). c). THE VALIDITY OF A STATUTORY ORDER MUST BE JUDGED ON REASONS GIVEN THEREIN AND NOT ON THE EXPLANATION FURNISHED SUBSEQUENTLY: 28. The condition precedent, for the exercise of jurisdiction under the first limb of Section 10(b) of the Act, is the prima facie satisfaction of the Registrar, based on the material on record and the information available with him, that the certificate of registration was obtained by fraud or mistake. Neither has the Registrar arrived at any such prima facie view in the show-cause notice dated 15.11.2012 nor has he recorded any finding, in the impugned order dated 13.06.2013, that the certificate of registration was obtained either by fraud or mistake. Statutory orders must stand on their own legs, and their validity cannot be examined on the averments in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y after it comes into existence on its being registered under Section 8 of the Act. Section 4 of the Act, (which is attracted only before a Union is registered), has no application in examining whether or not a Trade Union has ceased to exist necessitating cancellation of its registration under Section 10 of the Act. 30. Formation of the union is a voluntary exercise. While some members who had joined the Union earlier may dissociate themselves subsequently, some others who were not members earlier may join the union either during the period when the application for registration is pending consideration, or even after the Union has been registered. The condition precedent for the exercise of jurisdiction, under Section 10(c) of the Act, is that a Registered Trade Union should cease to have the requisite number of members. The words Registered Trade Union and ceases make it clear that the power conferred under Section 10(c) can be exercised only in cases where a Trade Union ceases to have the minimum required membership after its registration. 31. Cessation of existence attracting Section 10(b), is not the same as a Union ceasing to have the requisite number of members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CT, MUST BE BASED ON REASONABLE GROUNDS: 32. A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable. Unchanneled and arbitrary discretion is patently violative of the requirements of reasonableness in Article 19 and of equality under Article 14. (P.N. Kaushal v. Union of India (1978) 3 SCC 558; Hari Chand Sarda v. Mizo District Council (1967) 1 SCR 1012 : AIR 1967 SC 829). If an uncontrolled or unguided power is conferred, without any reasonable and proper standards or limits being laid down in the enactment, the statute may be challenged as violating Part-III of the Constitution. (Maneklal Chhotalal v. M.G. Makwana (1967) 3 SCR 65). There is a broad distinction between exercise of discretion with regards a fundamental right guaranteed by the Constitution and a right conferred by a Statute. If the statute deals with a right, which is not fundamental in character, the Statute can take it away, but a fundamental right the statute cannot take away. Discretion, whereby restrictions are sought to be imposed on fundamental rights, must be differentiated from discretion in respect of matters not involving fundamental rights. (Pann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such reasonable grounds, known to the person, before he can validly exercise the power. (Attorney-General and Saint Christopher, Nevis and Anguilla v. Reynolds (1979) 3 ALL ER 129). 35. The satisfaction of the Registrar must be founded on grounds specified in the order, and the power to cancel registration is not to be exercised on his mere whim or fancy. The certificate of registration of a Trade Union can be cancelled by the Registrar under the first limb of Section 10(b) only if there exists reasonable grounds for him to arrive at the satisfaction that the certificate of registration was obtained by the Union by fraud or mistake or that the Union has ceased to exist. Likewise, there must be reasonable grounds for the Registrar to arrive at the satisfaction, under Section 10(c) of the Act, that the Union has ceased to have the requisite number of members. The Registrar failed to notice the distinction between cessation of the existence of a Trade Union in which case alone could the certificate of registration have been cancelled under Section 10(b) of the Act, and the membership of the Union falling below the stipulated minimum membership under Section 9A of the Act in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minimum, while the latter is applicable only when the Union no longer survives or subsists. It is evident, therefore, that Registrar initiated proceedings against the petitioner-Union, only under Section 10(c) of the Act, for violation of the conditions stipulated in Section 9A of the Act. 38. While the show-cause notice dated 15.11.2012, issued in compliance with the proviso to Section 10, is in terms of Section 10[c] of the Act, the impugned order of cancellation dated 13.06.2013 has been passed on the satisfaction of the Registrar under Section 10(b), and not under Section 10[c], of the Act. The jurisdictional facts, essential to attract the provisions of Section 10(b) of the Act, has not been referred to in the notice dated 15.11.2012. The fact or facts upon which the jurisdiction of an authority depends is a jurisdictional fact the existence of which is the sine qua non, or the condition precedent, to the assumption of jurisdiction by the authority. Once such a jurisdictional fact is found to exist, the authority has the power to decide adjudicatory facts or facts in issue. (Carona Ltd. v. Parvathy Swaminathan Sons (2007) 8 SCC 559; Halsbury's Laws of England (4th E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered, the application for registration of the Union would not be rendered invalid thereby. Section 4(1) of the Act obligated the Registrar to ascertain whether the Petitioner-Union had the minimum required strength of 10% of the workmen, or 100 workers, in the establishment of the 4th respondent on the date of its registration. He ought to have verified whether the 88 workmen, who submitted a representation to him, were never the member of the Petitioner Union, and registration of the Union was obtained by fraud; or they had disassociated themselves from the petitioner Union between the date of the submission of the application and the date of registration of the Union. III. VIOLATION OF PRINCIPLES OF NATURAL JUSTICE: 40. Sri K.S. Murthy, Learned Counsel for the petitioner, would complain of violation of principles of natural justice. According to the Learned Counsel, no notice was given before an inquiry was held; the statements allegedly made by workers, against the petitioner union, should have been furnished, and the Union should have been given an opportunity to cross examine or atleast explain, answer or controvert the statements allegedly made against them; and princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de before a Court that some principles of natural justice had been contravened, the Court has to decide whether observance of that rule was necessary for a just decision on the facts of the case. (Maneka Gandhi AIR 1978 SC 597; Suresh Koshy George v. University of Kerala AIR 1969 SC 198 : (1969) 1 SCR 315; D.F.O., South Kheri v. Ram Sanehi Singh (1971) 3 SCC 864 : AIR 1973 SC 205). a). PRINCIPLES OF NATURAL JUSTICE: ITS APPLICATION TO STATUTES WHICH AFFECT FUNDAMENTAL RIGHTS: 43. As a group of citizens have the fundamental right, under Article 19(1)(c) of the Constitution, to form themselves into a Union, cancellation of registration would result in denial of such a fundamental right and, consequently, the Registrar can exercise his discretion to cancel registration only in compliance with the principles of natural justice - giving an opportunity of hearing to the Trade Union. (Nagda Rashtra Sevak Karmachari Congress v. Industrial Court 1997 (77) FLR 139). Where hearing is obligated by a statute, which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal. The order of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. (Maneka Gandhi AIR 1978 SC 597). Cancellation of registration is a matter of serious concern and consequences. (Dockyard Labour Union : 1995 Suppl. (4) SCC 544). In the absence of any express provision excluding its application, principles of natural justice must be read into the provisions of Section 10 of the Act, including its proviso, since cancellation of registration not only has civil consequences but would also result in the fundamental rights of citizens (a section of the workmen in the establishment), under Article 19(1)(c) of the Constitution of India to form a Union, being unreasonably curtailed. The requirement of giving a notice, under the proviso to Section 10, is only to give the Trade Union an opportunity of showing cause against the proposed cancellation for, otherwise, the requirement of giving such a notice would be an empty ritual and a useless formality. As the notice, under the proviso to Section 10 of the Act, is mandatory, the Registrar is not competent to pass an order cancelling the registration without giving an opportunity to the Trade Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88 workmen were recorded, within the premises of the 4th respondent that too behind the petitioner's back. While the complaint of the 88 workmen may have been relevant in considering whether or not registration was obtained by the petitioner Union by fraud, the contents of the statements of 46 workmen, which also forms part of the record placed before this Court, shows that a few of them had complained of forgery and misrepresentation, and a few others had expressed their disinclination to continue as members of the petitioner Union. It was, therefore, imperative for the Registrar to ascertain whether or not those who had expressed their disinclination to continue as members of the Union had, in fact, associated themselves with the petitioner Union earlier when the Union submitted its application for registration and had discontinued their association after its registration. In either event, the 3rd respondent could not have conducted an enquiry behind the petitioner's back or relied on material not furnished to the petitioner along with the notice issued under the proviso to Section 10 of the Act. While the notice, under the proviso of Section 10 of the Act, was issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being taken under Section 10[c] of the Act, the Registrar ought to have not only enquired whether the 88 workmen, who had submitted a complaint, ceased to remain as members of the Union, but should have also ascertained whether any new members had joined the petitioner Union after its registration. The Registrar has not undertaken any such verification exercise. Again by letter dated 23.02.2013, the petitioner informed the Registrar that the members of their Union were ready to physically appear before him at his office to prove that they had the required minimum membership. The impugned order dated 13.06.2013 gives no clue of the reasons which weighed with the Registrar in not ascertaining whether or not the petitioner Union had the requisite number of members, after its registration, as stipulated under Section 9A of the Act. a). SHOULD THE PERSON COMPETENT TO CANCEL REGISTRATION ALONE CONDUCT THE ENQUIRY AND NOT DELEGATE IT TO ANOTHER OFFICER? 51. Sri K.S. Murthy, Learned Counsel for the petitioner, would submit that it is only the authority, competent to pass orders, which should conduct the inquiry; and the Registrar of Trade Unions could not have deputed the Asst. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either the 1st or 2nd respondents. The records placed before this Court, by the Learned Government Pleader for Labour, discloses that the 2nd respondent had directed the 3rd respondent (the Registrar), vide letter dated 20.04.2013, to pass necessary orders after careful verification and to submit an action taken report. The 4th respondent, by its letter dated 01.06.2013, informed the 1st respondent that the office bearers of the petitioner Union started applying pressure on some of the workmen who participated in the enquiry threatening and abusing them outside the office premises, there was disturbance of peace in the factory which could cause damage to the work in progress, it may ultimately result in stoppage of work, and a suitable decision be taken in the matter. Based on the said letter of the 4th respondent, the 1st respondent requested the 3rd respondent-Registrar to immediately intervene in the matter, and take necessary steps as per law, to ensure normalcy in the factory and to submit his action taken report immediately. The Assistant Commissioner of Labour, Sanga Reddy submitted a report to the 2nd respondent on 13.06.2013 regarding the union registration dispute; the 3r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Dharmander Prasad Singh AIR 1989 SC 997). An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. It is enough to show that a decision, which ought to have been based on the exercise of independent judgment, was dictated by those not entrusted with the power to decide. Authorities directly entrusted with a statutory discretion are not absolved from their duty to exercise their personal judgment in individual cases, unless explicit statutory provision has been made for them to be given binding instructions by a superior. (DE SMITH'S JUDICIAL REVIEW (Seventh Edition). V. IS THE EMPLOYER OF THE ESTABLISHMENT ENTITLED TO BE HEARD BEFORE A UNION OF WORKMEN, OF SUCH ESTABLISHMENT, IS EITHER REGISTERED OR THE CERTIFICATE OF REGISTRATION OF THE UNION CANCELLED? 56. Sri K.S. Murthy, Learned Counsel for the petitioner, would submit that there is no role for the management of an establishment in the process of registration, or cancellation of the registration, of a Trade Union; and Section 11, which enables a person aggrieved by the actions of the Registrar to prefer an appeal, does not als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MANAGEMENT OF THE ESTABLISHMENT A PERSON AGGRIEVED BY THE REGISTRATION OF A UNION UNDER THE ACT? 59. Unlike the proviso to Section 10 which mandates a two month prior notice to be given to the Trade Union, before its registration is cancelled, no similar statutory obligation is cast on the Registrar of Trade Unions to put the Management of the establishment on notice in this regard. It is only a person aggrieved , by the refusal to register the Trade Union or by the cancellation of the certificate of Registration, who has been conferred the right, under Section 11(1) of the Act, to prefer an appeal against such acts of refusal or cancellation. Section 11 of the Act does not provide for an appeal to be preferred by a person aggrieved by the registration of a Trade Union or against an order refusing to cancel the certificate of Registration. A person aggrieved , so as to be entitled to maintain the appeal, must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something . The person aggrieved must be a man who has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the several sub-clauses of Article 19(1). Nor would it be a procedure established by law within Article 21. (Kharak Singh v. State of U.P. AIR 1963 S.C. 1295). The quintessence of our Constitution is the rule of law. The State or its executive officers cannot interfere with the rights of others unless they can rely on a specific rule of law which authorises their acts. The State or its officers may not, in the exercise of their executive authority and without any legislation in support thereof, infringe upon the rights of citizens merely because the legislature of the State has the power to legislate in regard to the subject on which the executive power is exercised. Every act of the Government or its officers must, if it is to operate to the prejudice of any person, be supported by legislative authority. (Satwant Singh Sawhney v. Dr. Ramarathnam, Assistant Passport Officer, New Delhi (1967) 3 SCR 525 : AIR 1967 SC 1836; Smt. Indira Nehru Gandhi v. Raj Narain (1976) 2 SCR 347 : AIR 1975 SC 2299; S. Bishamber Dayal Chandra Mohan v. State of U.P. AIR 1982 SC 33; State of Madhya Pradesh v. Thakur Bharat Singh (1967) 2 SCR 454 : AIR 1967 SC 1170; Bishan Das v. State of Punjab AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e formation of a Union and, in so far as the activities of the association are concerned or as regards the steps which the union might take to achieve the purpose of its creation, they are subject to such laws as may be framed and the validity of such laws is not to be tested by reference to the criteria to be found in clause (4) of Article 19 of the Constitution, for such a right guaranteed by Article 19(1)(c) does not carry with it a concomitant right that the Unions formed, for protecting the interests of labour, shall achieve the purpose for which they were brought into existence, such that any interference to such achievement by the law of the land would be unconstitutional. (N.I. Tribunal AIR 1962 SC 171 : (1962) 3 SCR 269). The rights not included in the literal meaning of Article 19(1)(c), but which are sought to be included therein as flowing therefrom i.e. every right which is necessary in order that the Union brought into existence fulfils every object for which it is formed, the qualifications therefor would not merely be those in clause (4) of Article 19 but would be more numerous and very different. (Dharam Dutt (2004) 1 SCC 712). 66. Even if it appears that the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognised union, does not put it in an inferior position. The members of a non-recognised Union can fully enjoy their fundamental freedom of speech and expression as also to form the union. (B.L. Workers Union, Bombay v. B.L. Co. Ltd. AIR 1985 SC 311). Even a very liberal interpretation of sub-clause (c) of clause (1) of Article 19 cannot lead to the conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike either as part of collective bargaining or otherwise. (N.I. Tribunal AIR 1962 SC 171 : (1962) 3 SCR 269). VII. OTHER CONTENTIONS: a). ENQUIRY CAUSED BY THE REGISTRAR OF TRADE UNIONS IS BEYOND THE SCOPE OF THE COMPLAINT FILED BY THE 88 WORKMEN OR THE 4TH RESPONDENT MANAGEMENT: 67. Sri M. Radhakrishna Murthy, Learned Counsel for respondent No. 4, would submit that the Registrar of Trade Unions, instead of conducting an enquiry in terms of the complaint of the 88 workmen and the 4th respondent management, that the petitioner union did not have the requisite minimum statutory membership of 100 workmen at the time of registration and its registration was therefore liable for cancellation, had conducted an enquiry on a compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T PETITION: 69. Sri M. Radhakrishnamurthy, Learned Counsel for the 4th respondent, would submit that the writ petition as filed is not maintainable as no statutory rule or provision has been violated by the Respondent. 70. A constitution is the documentation of the founding faiths of a nation and the fundamental directions for their fulfillment. (Fatechchand v. State of Maharashtra AIR 1977 SC 1825). The Court has been assigned the role of a sentinel on the qui vive as regards fundamental rights . (V.G. Row 1952 SCR 597). The Court watches and guards the fundamental rights guaranteed by the Constitution. (Chintaman Rao AIR 1951 SC 118; Benarasi Das AIR 1957 PEPSU 5). If the action of the executive of the State is found to infringe any of the freedoms guaranteed to him, the petitioner is entitled to a writ of mandamus. (Kharak Singh AIR 1963 S.C. 1295). In the present case not only has the statutory requirement of Section 10 of the Act been violated, but the illegal order passed by the Registrar has also resulted in denial of the fundamental rights of the petitioner under Article 19(1)[c] of the Constitution of India. The contentions urged, on behalf of the 4th respondent, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acious one. (Mumtaz Post Graduate Degree College v. University of Lucknow (2009) 2 SCC 630). 74. As the impugned order is in violation of principles of natural justice, in excess of jurisdiction and has resulted in denial of the petitioner's fundamental rights under Article 19(1)[c] of the Constitution of India, I see no reason to relegate the petitioner to the alternative statutory remedy of an appeal under the Act. d). SHOULD THIS COURT UNDERTAKE THE TASK OF VERIFYING WHETHER THE STATEMENTS OF THE 88 WORKMEN ARE TRUE OR FALSE? ARE THESE WORKMEN NECESSARY PARTIES TO THESE WRIT PROCEEDINGS? 75. Sri M. Radhakrishna Murthy, Learned Counsel for the 4th respondent, would submit that 88 workmen, whom the petitioner Union had shown as its members, submitted a complaint to the Registrar of Trade Unions; they had marked copies of their complaint to Respondent No. 4; on receipt of their complaints, Respondent No. 4 had addressed letter dated 29.10.2012 to the Registrar of Trade Unions complaining that the petitioner union had obtained registration by fraud, the signatures of the workmen were forged, some of the signatures of the workmen were obtained under coercion, misrepresen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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