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1976 DIGILAW 238 (PAT)

Radheyshyam Singh v. Bata Mazdoor Union

1976-12-01

BIRENDRA PRASAD SINHA, LALIT MOHAN SHARMA

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Judgment BIRENDRA PRASAD SINHA, J. 1. This application is directed against an order passed by the Additional District Judge I, Patna, by which he sent back the case to the Registrar of Trade Unions for passing an order afresh after following the provisions contained in S. 10(b) of the Indian Trade Unions Act, 1926 (hereinafter referred to as the Act). The short facts are these. 2. By an order dated the 18th November, 1970 the Registrar of Trade Unions, Bihar, cancelled the certificate of registration of the Bata Mazdoor Union, Patna, under S. 10(b) of the Act. The ground for the cancellation was that the said Union had wilfully refused Radhey Shyam Singh, Indraprasad and Satyendra Narain Singh of the Bata Shoe Factory, Digha, to enrol them as members of the Union and had thus contravened the pro (Against order of Padma Narayan Singh, Addl. Dist. J. No. 1, Patna, D/- 12-7-1975) visions of S. 21 of the Act. It appears "that a notice had been given to the Union to show cause and their show cause was not found satisfactory. Against the said order, the Union filed an appeal under S. 11(1) of the Act before the District Judge Patna, which was numbered as Miscellanceous Appeal No. 137/70 of 1970/1973. Another Miscellaneous Appeal No.11 of 1971 was filed by some members of the Union against the said order of the Registrar -which has not yet been disponed of. Miscellaneous Appeal No. 137/70 of 1930/1973 was finally heard by the Additional District Judge, Patna, who set aside She order of cancellation of the registration -of the Union and remitted the matter back to the Registrar for passing on order in accordance with S. 10(b) of the Ad The learned Additional District Judge held that the alleged contravention of fee provisions of the Act by a trade union. has to be after a notice from the Registrar as contemplated under S. 10(b) off the Act and that, admittedly, not having done. the order passed by the Registrar was bad. The workmen, viz., Radhey shyam Singh and two others, who had been refused membership and had made a Complaint before the Registrar, being aggrieved by the order of the learned Additional District Judge, have come up to this Court in revision. 3. the order passed by the Registrar was bad. The workmen, viz., Radhey shyam Singh and two others, who had been refused membership and had made a Complaint before the Registrar, being aggrieved by the order of the learned Additional District Judge, have come up to this Court in revision. 3. Shri Guru Bachan Singh, learned Comsel appearing on behalf of the petitioners, submitted that only one notice is required under S. 10(b) of the Act as contemplated by the proviso to this section. Accodring to him, no notice is required to be given before any provision of the Act is contravened. 4. The only question, therefore, which arises for consideration in this case is as to whether the two months previous notice as provided for in the proviso to 5. 10(b) Is sufficient before withdrawing of cancelling the certificate of registration of the Trade Union. 5. The Indian Trade Unions Act. 1926, provides for registration of Trade Unions and in certain respects defines the law relating to registered Trade Unions. The mode of registration is laid down in S. 4. Any seven or more members of a Trade Union apply for registration of a Trade Union. The application has to be made in accordance with S. 5 giving certain particulars. A Trade Union is not entitled to registration unless the executive thereof is constituted in accordance with the provisions of the Act and the rules thereof provide for, amongst others, the objects and purpose for which the Trade Union has been established. The rules must also provide for the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Under S. 7, the Registrar may call for further information for the purpose of satisfying himself that any application complied with the provisions of S. 5, and that the Trade Union is entitled to registration under S. 6. He may refuse to register the Trade Union until such information was supplied. After the Registrar is satisfied that the Trade Union had complied with all the requirements of the Act in regard to registration, he shall register the Trade Union and shall issue a certificate of registration. Thereafter comes S. 10 which provides for cancellation of the Certificate of registration of the Trade Union. S. 10 of the Act reads as under: "10. Thereafter comes S. 10 which provides for cancellation of the Certificate of registration of the Trade Union. S. 10 of the Act reads as under: "10. 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." S. 10(b) contemplates of various situations. A certificate of registration may be withdrawn or cancelled if the Registrar is satisfied (i) that the certificate has been obtained by fraud or mistake; (ii) or the Trade Union has ceased to exist; (iii) or has wilfully and after notice from the Registrar contravened any provision of this Act; (iv) or allowed any rule to continue in force which is inconsistent with any such provision; (v) or has rescinded any rule providing for any matter provision for which is required by S. 6. Before withdrawing or cancelling the certificate, a two-months previous notice specifying the grounds on which the action is proposed to be taken is necessary. The scheme appears to be that the question of cancellation or withdrawal of the certificate cannot be lightly treated. In the case of contravention of any provision of this Act by a Trade Union, the words "wilfully and after notice from the Registrar" have been used. The word "wilfully" introduces what may be called mens rea: a blameworthy mind. There may be occasion where a complaint is filed before the Registrar about any actual or apprehended contravention of any of the provisions of the Act: The alleged contravention or apprehended contravention may or may not be wilful. The word "wilfully" introduces what may be called mens rea: a blameworthy mind. There may be occasion where a complaint is filed before the Registrar about any actual or apprehended contravention of any of the provisions of the Act: The alleged contravention or apprehended contravention may or may not be wilful. If the same is not wilful, upon a notice by the Registrar, it is possible that the Union corrects itself and acts according to the provisions of the Act. If it does not, the act may be construed as wilful. It, therefore, appears that whenever a situation arises where the union has contravened or is likely to contravene any of the provisions of the Act, the legislature intended that a notice be given by the Registrar to the erring Trade Union pointing out the contravention. If upon such notice the Union does not correct itself, a situation may arise for giving a notice of the proposed cancellation of the registration as provided for in the proviso to CI. (b) of S. 10. In the instant case what was complained of by the petitioners was that they were not being enrolled as members of the Union in contravention of S. 21 of the Act. The decision by the Trade Union not to enrol such persons as members may be wilful or may not be wilful. A Trade Union could upon notice by the Registrar in this regard revise its decision and enrol persons as members and, in that view of the matter, the act of the Trade Union will not be wilful. The Union, on or other hand, could satisfy the Registrar that the persons who had applied for membership were not fit to be enrolled as members and as such there was no contravention of any of the provisions of the Act. In that event, the situation may not arise calling upon the Union concerned to show cause why its registration should not be withdrawn or cancelled. The words "wilfully and after notice from the Registrar" are significant. In other situations enumerated above, such a prior notice may not be necessary. In that event, the situation may not arise calling upon the Union concerned to show cause why its registration should not be withdrawn or cancelled. The words "wilfully and after notice from the Registrar" are significant. In other situations enumerated above, such a prior notice may not be necessary. But on a plain reading of the section it must be held that a prior notice, apart from the one for the proposed action for cancellation or withdrawal of certificate of registration as contemplated under the proviso to S. 10, has to be given by the Registrar in a case where there is any allegation of contravention of any provisions of this Act by the Trade Union. In absence of such a prior notice, any proceeding for cancellation or withdrawal of registration is illegal and without jurisdiction. Thus, in my opinion, a previous notice should have been given by the Registrar under S. 10 (b), other than the one provided under the proviso1. Shri Guru Bachan Singh relied on a decision in the case Registrar of Trade Union v. Dum Dum Cantonment Businessmens and Traders Union, (ILR (1970) 2 Cal 334). The facts in that case were quite different and the decision is not an authority on this point. 6 The Court below has sent back the case to the Registrar for passing orders afresh after following the provisions-under S. 10 (b) of the Act and, in my opinion, rightly. The order does not require any interference by this Court. 7. An application was filed on behalf of opposite party Nos. 1 to 4, the Bata Mazdoor Union and one Rajendra Prasad. Singh stating that Miscellaneous Appeal No. 11 of 1971 filed by some members of the Union was still pending" before the Additional District Judge V, Patna, and therefore, the hearing of this civil revision application be postponed until the final decision in that appeal. I do not find any good ground to accede to any-such prayer. 8. In the result, this- application is dismissed, but there will be no order as to costs. LALIT MOHAN SHARMA, J. 9 I agree.