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CIVIL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO. 93407 OF 2020
Ravindra Valmik Konkar and Ors. ...Petitioners
……….
Mr. Rakesh Sawant a/w. Shamiana H. for the Petitioners.
Mr. P.M. Palshikar i/b. Kanhaiya S. Yadav for Respondent No.2.
Mrs. M.S. Bane, AGP for the State.
OCTOBER, 2020
DECEMBER, 2020
JUDGMENT
2. The challenge in this petition is to the order dated 05/02/2020 whereby Respondent No.1 has rejected an application for issuance of consent certifcate for raising a dispute before the Industrial Court in respect of elections of the ofce bearers to the Managing Committee of Respondent No.2-Trade Union.
3. The Respondent No.2- is a Trade Union duly registered under the provisions of Trade Union Act, 1926. The Petitioners, who are the employees of Century Rayon are the members of Respondent No.2- Trade Union. The tenure of the Managing Committee of Respondent No.2-Trade Union was till 31/03/2019. The Petitioners claim that the Managing Committee did not declare the election programme as per the constitution of the Respondent No.2-Trade Union. The Petitioners therefore approached Respondent No.1 seeking appropriate action against the ofce bearers and for conduct of the fresh elections. Upon inquiries the Petitioners learnt that ofce bearers of the Managing Committee of the Respondent No.2-Trade Union had submitted the result of election and a list of the elected ofce bearers elected in elections purportedly held on 10/03/2019 as per the amended constitution of Respondent No.2-Trade Union.
4. The Petitioners claim that the notice of the meeting was not received by the members and that the elections were not held as per the constitution of Respondent No.2-Union. The Petitioners alleged that the ofce bearers have played fraud upon the members of Respondent No.2-Trade Union. The Petitioners therefore fled an application before Respondent No.1- The Registrar of Trade Union seeking consent as required under Section 28-1A of the said Act and made a request for an enquiry under Regulation 23 of the Bombay Trade Unions Regulations, 1927. The Petitioners claimed that the constitution of Respondent No.2- Trade Union was amended as to adopt the method of election of show of hands. The said amendment was approved on 28/03/2019 whereas the elections were purportedly held on 10/03/2019 as per the amended constitution even before approval of the amendment. It was alleged that no notice was served on the Petitioners or the other members of the Trade Union. The Petitioners disputed that a meeting was held on 21/10/2018 in respect of conduct of elections and further denied that the elections were held on 10/03/2019. The Petitioners alleged that the ofce bearers have created sham, bogus and fabricated documents to create an illusion of elections. The grievance of the Petitioners was that the members of the Managing Committee have been holding posts without conducting elections.
5. The Respondent No.1-Registrar conducted an enquiry and upon hearing the concerned parties, by the impugned order dated 05/02/2020 refused to issue certifcate mainly on the ground that notice of the meeting scheduled on 10/03/2019 was displayed on the notice board notifying the members that the elections of new Managing Committee for the year 2019-2022 would be held on 10/03/2019. Respondent No.1 has observed that elections were held as per the constitution of the Respondent No.2-Trade Union and that there was no merits in the objections raised by the Petitioners.
6. Mr. Rakesh Sawant, learned counsel for the Petitioners submits that Section 28-1A does not contemplate two tier system of adjudication and it merely casts a duty on the Registrar to conduct a preliminary enquiry and ascertain whether preliminary requisite for fling of the application has been made out. He submits that in the instant case Respondent No.1 while refusing the consent has entered the arena of adjudication and has virtually given a judgment on the contentions raised by the Petitioners in respect of election process and conduct of election and has thereby usurped the powers of the Industrial Courts. He submits that the order is grossly illegal and in excess of jurisdiction. In support of this contention he has relied upon the decision of the Division Bench of this Court in Mumbai Taxi Mill Union and Anr. Vs. State of Maharashtra 2013 (3) MAH L.J. 635 and the decisions of learned Single Judge in Ashok Shinde and Ors. Vs. K.V.J. Rao in Writ Petition No.4253 of 2012, and Ravindra Yadav vs. Rashtriya Raksha Karmachari Sangh Civil Revision Application No.69 of 2015.
7. Mr. P.M. Palshikar, learned counsel for Respondent No.2- Trade Union submits that the decision of the Division Bench in Mumbai Taximen’s Union (supra) is distinguishable on facts. He submits that in the instant case notices relating to conduct of elections were displayed on the notice board and that the elections were held on 10/03/2019 as per the constitution of Respondent No.2-Trade Union without any objection from the Petitioners or the other members of Respondent No.2-Trade Union. It is submitted that upon conducting the preliminary enquiry, Respondent No.1 was satisfed that the elections were held as per the constitution of the Respondent No.2-Union and that there was no dispute of the nature referred to in Sub Section 1 of Section 28-1A, which was required to be referred to the Industrial Court for adjudication. It is further stated that the dispute relating to election is not covered by Section 28-1A of the Act and as such the jurisdiction of the Civil Court is not barred and that it is open to the Petitioners to approach civil court. He has relied upon the decisions of the Apex Court in Borosil Glass Workers Ltd. Employees Union vs. DD Bambode and Ors. (2001) 1 SCC 350 and the decision of the Division Bench of this Court in Engineering Mazdoor Sabha vs. Registrar of Trade Union (1979) 8 BOM LR 139 and of the learned Single Judge in Arun Sheshrao Asatkar vs. Member Industrial Court and Ors. Writ Petition No.435 of 1995.
8. I have perused the records placed before me and considered the submissions of the counsel for respective parties. The short point for consideration is whether the order of refusal of consent is in excess of jurisdiction conferred under Section 28-1A. It is therefore appropriate to refer to Section 28-1A of the Trade Unions Act, which reads thus:- 28-1A. Power of Industrial Court to decide certain disputes. —(1) Where there is a dispute as respects whether or not any person is an office-bearer or a member of a reeistered Trade Union (includine any dispute relatine to wroneful expulsion of any such office-bearer or member), or where there is any dispute relatine to the property (includine the account books) of any reeistered Trade Union, any member of such reeistered Trade Union for a period of not less than six months may, with the consent of the Reeistrar, and in such manner as may be prescribed, refer the dispute to the Industrial Court constituted under the Bombay Industrial Relations Act, 1946, for decision. (2) The Industrial Court shall, after hearine the parties to the dispute, decide the dispute; and may require an office-bearer or member of the Reeistered Trade Union to be appointed whether by election or otherwise under the supervision of such person as the Industrial Court may appoint in this behalf or removed, in accordance with the rules of the Trade Union: Provided that the Industrial Court may, pendine the decision of the dispute, make an interim order specifyine or appointine any person or appointine a Committee of Administration for any purpose under the Act includine the purpose of takine possession or control of the property in dispute and manaeine it for the purposes of the Union pendine the decision. (3) The decision of the Industrial Court shall be fnal and bindine on the parties and shall not be called in question in any Civil Court. (4) No Civil Court shall entertain any suit or other proceedines in relation to the dispute referred to the Industrial Court as aforesaid, and if any suit or proceedine is pendine in any such Court, the Civil Court shall, on receipt of an intimation from the Industrial Court that it is seized of the question, cease to exercise jurisdiction in respect thereof. (5) Save as aforesaid, the Industrial Court may, in decidine disputes under this section, exercise the same powers and follow the same procedure as it exercises or follows for the purpose of decidine industrial disputes under the Bombay Industrial Relations Act, 1946.”
9. Regulation 23 of the Bombay Trade Unions Regulations, 1927 prescribes the manner of referring the dispute to Industrial Court under Section 28-1A. Regulation 23 reads as under:- "23. Manner of referrine dispute to Industrial Court under section 28- 1A (1) Any person desirine to obtain the consent of the Reeistrar under sub-section (1) of Section 28-1A for the purpose of referrine a dispute to the Industrial Court under that sub-section shall make an application to the Reeistrar in Form 'K'. (2) On receipt of the application under sub-rule (1), the Reeistrar shall make such inquiries as he may deem ft, and if he is satisfed that any dispute of the nature referred to in sub-section (1) of Section 28-1A exists he may eive his consent in Form "L", called the consent certifcate. (3) On receipt of the consent certifcate under sub-rule (2), the applicant shall then refer the dispute to the Industrial Court in Form 'M' and enclose therewith the consent certifcate in orieinal."
10. In Engineering Mazdoor Sabha (supra), the Division Bench of this Court while pointing out the diference between the provisions of Section 28 of Trade Union Act r/w Regulation 12 and the provisions of Section 28-1A r/w Regulation 23, has observed thus: 17…..It may be noted that the added Section 28-1A provides for raisine a dispute whether a particular member is an office bearer or not of the reeistered trade union, includine dispute whether the member has been wronefully expelled from the membership or the office of a trade union. It also permits.disputes to be raised reeardine property of the union includine account books at the instance of a person who has been a member of the reeistered trade union for a period of not less than six months. However, he has to raise such a dispute with the prior consent of the Reeistrar and also in the manner prescribed. This added section requires the Reeistrar now to entertain an application at the instance of a member for raisine a dispute contemplated by Subsection (1) of Section 28-1A and before issuance of his consent certifcate, he has to follow the procedure laid down in Ree. 23 of the 1927 Reeulations.
18. xxx 19.xxx 20..... It may be that the Reeistrar has, to issue;a consent certifcate without which a dispute contemplated by Subsection (1) of Section 28-1A of the Trade Unions Act could not be raised at all. However, the examination required to be made is only for the purpose of fndine whether a dispute exists. The Reeistrar has not to eo deep and decide whether that dispute has really such substance that it may ultimately succeed. The only idea of the Leeislature seems to be that the Industrial Court should not be fooded with frivolous disputes and there should be some kind of prior checkine by experienced officer of Government before a dispute is allowed to be raised. It may be noted that because a dispute is raised, as many disputes are raised in various litieations under various Acts they do not have ipso facto efect of afectine the proceedines of the various bodies whose existence is challeneed. If an election is in dispute, as in the present case, and the disputants wanted that the persons wronefully elected to certain office should not function, they have a rieht to apply to the Industrial Court for interim relief. The proviso to Sub-section (2) of Section 28-1A provides that the Industrial Court may pendine the decision of the dispute make an interim order specifyine or appointine any person or appointine a Committee of Administration for any purpose under the Act includine the purpose of takine possession or control of the property in dispute and manaeine it for the purpose of the union pendine the decision. In other words, the existence of the union and its officers as also carryine out the activities of the union is not to be hampered but instead of reeularly elected persons, an Administrator may conduct the afairs of the union. Implicit, therefore, is the intention of the Leeislature that where no interim relief has been eranted as provided by proviso to Sub-section (2) of Section 28-1A, the activities of the union must be deemed to continue in the normal course....”
11. In Mumbai Taximen’s Union (supra) the Division Bench of this Court while considering the contours of the power, which can be exercised by the Registrar under Section 28-1A r/w. Regulation 23 has held thus:- “13. …..In our view, perusal of the said provisions reveals that the said section 28(1A) does not contemplate two tier system of adjudication and it merely stipulates that dispute has to be adjudicated by the Industrial Court and before that consent of the Reeistrar has to be obtained. The inquiry which is to be held by the Reeistrar does not contemplate preliminary adjudication of dispute but holdine of summary scrutiny. The summary scrutiny obviously has to be made to fnd out whether preliminary requisites for fline the application are made out viz that such an application is made by any member or reeistered Trade Union which is in existence for a period of not less than six months. Secondly, to fnd out whether the dispute falls within the parameters laid down under section 28(1A) viz (i) whether any person is an office bearer or not, (ii) whether the dispute is relatine to wroneful expulsion and (iii) whether the dispute is relatine to property of Trade Union. Any other dispute, obviously, cannot be referred to and it is for that purpose the said inquiry appears to have been contemplated appears to be the intention of the leeislature in incorporatine and that the need to obtain consent. Perusal of Reeulation 23 also discloses that the Reeistrar is supposed to make such inquiries as he may deem ft and upon his satisfaction, he may refer the dispute. Upon conjoint readine of section 28(1A) and Reeulation 23, it would be abundantly clear that the leeislature never intended to put burden upon a member of the reeistered Trade Union who wishes to raise a dispute on the three aspects mentioned in the said section of provine the dispute twice, frst before the Reeistrar and then before the Industrial Court. There does not appear to be any reason to believe that the leeislature had in its mind two tier system of adjudication, frstly at the staee of Reeistrar and secondly at the staee of Industrial Court. If such an interpretation is made, it would defeat the purpose for which the provision has been incorporated by the Maharashtra Amendment Act viz to permit any member of a reeistered Trade Union to aeitate aeainst the three disputes referred to in the said section. If such an exercise is undertaken, it would be unendine afair and office bearer of the reeistered Trade Union would continue to perpetuate illeealities which are alleeed aeainst them. xxx
15. It is obvious that section 28(1A) which has been inserted by way of Maharashtra Amendment Act seeks to achieve a twofold purpose; frstly to ensure that there is a remedy available to a member of the reeistered Trade Union to voice his erievances in respect of three cateeories of cases mentioned in Section 28(1A) before the Industrial Court and the Industrial Court, if it is satisfed is armed with the powers to eive suitable interim directions and fnal orders. This purpose, therefore, seeks to provide a quick and efficacious remedy to the workman for redressal of his erievance aeainst the office bearers of the reeistered Trade Union. At the same time, by incorporatine the provisions of obtainine consent from the Reeistrar, the State of Maharashtra has soueht to introduce a flter to ensure that frivolous cases and complaints are not fled before the Industrial Court and, therefore, summary scrutiny by the Reeistrar is envisaeed by the said provision. If the said satisfaction which is to be arrived at by the Reeistrar is construed to mean that he has to dwell deep into the matter and see whether the complaint is likely to be successful if it is fled, it would defeat the very purpose of the said provision. If such an interpretation is eiven then the office bearers may continue till the proceedines continue and are concluded at the staee of Reeistrar and durine their term the matter may not reach before the Industrial Court. So the question is what exactly the Reeistrar is expected to do when an application is fled under section 28 (1A). For example, (1) When an application is fled before the Reeistrar seekine consent, what is he supposed to examine?
(i) Whether the applicant is a member of the reeistered
(ii) Whether the complaint pertains to matters which are referred to in section 28(1A)?
(iii) Whether the opponent - Union is a reeistered Trade
(i) Whether the alleeations made by the complainant are prima facie true or not?
(ii) Whether the complainant would fnally succeed or his complaint would be dismissed. There cannot be any strait jacket formula which can be laid down reeardine the manner in which the power has to be exercised by the Reeistrar.”
12. A plain reading of the provisions and the ratio in the aforesaid decisions indicates that Section 28-1A of the Trade Union Act, confers powers on the Industrial Court to decide certain disputes referred to in Sub Section (1) of Section 28-1A viz.
(i) whether any person is an ofce bearer or a member of a registered Trade Union including dispute relating to wrongful expulsion of any such ofce bearer or members (ii) whether the dispute is relating to the property including the account books of the registered Trade Union. The prerequisites of reference are that (i) the dispute should be raised by a person, who has been a member of a registered Trade Union for a period not less than six months and (ii) Issuance of consent certifcate by the Registrar to refer such dispute to the Industrial Court. Regulation 23 of the Bombay Trade Union Regulation 1927, which prescribes the manner of referring such dispute to Industrial Court, provides that the person desiring to obtain the consent of the Registrar of Sub Section 1 of Section 28-1A for the purpose of referring a dispute has to make an application to the Registrar in Form –“K”. The Regulation stipulates that on receipt of the application, the Registrar shall make such enquiries as he may deem ft and upon being satisfed that any dispute of the nature referred to in Sub Section 1 of Section 28-1A exists, the Registrar shall give consent certifcate in Form-“L” to refer the dispute to the Industrial Court. The underlying object of this provision is to provide expeditious and efcacious remedy to the members of a registered Trade Union to resolve internal disputes of a Trade Union, of a nature stated in Sub Section (1) of Section 28-1A. The mandate of obtaining consent certifcate from the Registrar is to prevent fling of frivolous complaints before the Industrial Court. Hence, the Registrar has been conferred with powers to conduct an inquiry and satisfy himself about existence of dispute referred to in Sub-Section (1) of Section 28-1A. The inquiry contemplated under the Regulation is of summary nature only to ascertain whether preliminary requisites for fling the application are made out and whether the dispute of the nature referred in Sub-Section (1) of Section 28-1A exists. The provisions under the Act or Regulations framed thereunder do not vest power on the Registrar to adjudicate the dispute and/or to decide whether the dispute raised has any substance or not.
13. In the instant case it is not in dispute that the Petitioners are the members of a registered Trade Union for a period of not less than six months. The Petitioners had made an application to Respondent No.1-Registrar in Form –“K” for consent to refer the dispute to the Industrial Court inter alia on the ground that the ofce bearers of the Managing Committee of Respondent No.2 -Trade Union had not conducted elections as per the Constitution of Respondent No.2- Trade Union. It was alleged that the ex-ofce bearers had prepared bogus and false documentation to create an illusion of election. The Petitioners had thus raised a dispute regarding validity of the elections and had questioned the legal status of the ofce bearers of Respondent No.2-Trade Union. The dispute whether any person is an ofce bearer of the Registered Trade Union is a dispute falling within the ambit of Sub-Section (1) of Section 28-1A, which has to be referred to the Industrial Court constituted under the Bombay Industrial Relations Act, 1946 for decision. Hence, in view of bar under sub- Section 4 of Section 28-1A, it was not open for the Petitioners to invoke the jurisdiction of the Civil Court.
14. In Borossil Glass Works (supra) the dispute was raised by a person who was not a member of the Union. The Apex Court has held that under Section 28-1A the jurisdiction of the Civil Court is barred only in respect of matters which have been referred to an Industrial Court under Section 28-1A. If a dispute does not fall under Section 28-1A then that dispute can always be taken to a civil court. It was held that a dispute whether a person should be or should not be admitted as a member is not a dispute falling within Section 28-1A and hence the bar under Sub Section 4 of Section 28-1A is not applicable.
15. Similarly, in Ashok Shinde (supra), declaration had been sought by the Union that the General Body Meeting and the Resolution passed therein were valid and binding. Learned single Judge of this Court has reiterated that the provisions under Section 28-1A can be invoked only by a person who has been a member of a registered Trade Union. It was held that the bar under Sub-Section 4 of Section 28-1A would not be applicable when the action is initiated by the Trade Union, which cannot be equated with any member of a registered Trade Union. Hence, the aforesaid decisions would not further the case of the Respondents.
16. It is pertinent to note that in the instant case Respondent No.1 has not refused consent certifcate for the reason that the application does not meet the preliminary requisites or that the dispute raised by the Petitioners is not the one referred in Sub Section 1 of Section 28-1A. The Registrar has declined to give consent on the ground that the elections were validly held and that there is no merit in the dispute raised by the Petitioner. It is thus evident that Respondent No.1 has adjudicated upon the merits of the dispute. As stated earlier the Registrar does not possess adjudicatory powers and that such powers are vested only in Industrial Court. Learned counsel for the Petitioner is therefore justifed in contending that the Registrar has usurped the powers, which are vested in the Industrial Court. The impugned order is in excess of jurisdiction and hence not sustainable.
17. Under the circumstances, the petition is allowed. The impugned order is quashed and set aside. Respondent No.1 is directed to issue the consent certifcate in form –“L” in respect of the dispute raised by the Petitioner, within a period of three weeks from the date on which the order is uploaded.
18. Rule is made absolute in above terms. (SMT.
ANUJA PRABHUDESSAI, J.)