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2000 DIGILAW 311 (PAT)

P. K. Balmuchu v. State Of Bihar

2000-02-25

P.K.DEB

body2000
Judgment P.K.Deb, J. 1. In this writ petition the order dated 31.12.1997 passed by the Additional Registrar of Trade Unions, Government of Bihar (Respondent No. 3) has been sought to be quashed and issuance of a writ of certiorari with regard to the allowance of the amendment of the Constitution of the Tata Workers Union (Respondent No. 4). 2. Although the short point involved in this writ petition is whether the impugned order as contained in Annexure-7 can be sustained in law when the same is of review of the earlier orders on the same subject passed by the Labour Commissioner -cum- Registrar of Trade Unions (respondent no. 2) as contained in Annexure-6 dated 20.3.97 and Annexure-R4/A dated 22.3.97, the facts and the chequered history is required to be reiterated for undertaking the circumstances in which those orders as mentioned abov,e had been passed. The three petitioners in this writ petition are admittedly the members of the Tata Workers Union at Jamshedpur, the respondent no.4 in this case. The petitioner no. 1 is also a member of the Executive Committee of the Union and he is also an elected representative of the people and is a member of the Legislative Assembly Bihar from Ghatshila Constituency. The respondent No. 4 i.e. the Tata Workers Union is a registered Trade Union under the provisions of the Trade Union Act, 1926 and the same is affiliated to Indian National Trade Union Congress (INTUC). In pursuance of the election of the Union held in 1989 an Executive Committee was constituted under the then Constitution of the Union. The office bearers being elected by the Executive Committee of the Union started a process for substantial amendment of the Constitution of the Tata Workers Union and drafted a proposed amendment. The said draft was ratified by the General Body of the members on 20.9.91 and then the said amendment was sent to the Registrar of Trade Unions, for registering the same. The proposed amendments are contained in Annexure-1 to the writ petition. It is the contention of the petitioners that said proposed amendments were never put before the General Body of the members of the Union and it was not ratified by the majority of the workers as about 20,000 (twenty thousand) workers were opposing such amendments. The Union has a member of about 35,000 (thirty five thousand) workers of the TISCO and its allied organisation. The Union has a member of about 35,000 (thirty five thousand) workers of the TISCO and its allied organisation. Although the proposed amendments were sent to the Registrar of Trade Union but the same was not considered by the respondent no. 2 and, as such, one Shri B.K. Singh filed a writ petition being CWJC No. 75 of 1996 (R). In the meantime notices were issued for holding of election of the Union for a period of two years, namely, 1994 under the existing constitution and the Sub-Committee was nominated to conduct the election. When the amendment in the constitution had been refused by the Registrar, Trade Union then again Shri B.K. Singh moved this Court in CWJC No. 2909 of 1996 (R) wherein prayer was made for quashing the order dated 10.4.1996 passed by the Respondent No.2. The said writ petition was disposed of vide its order dated 2.12.1996 directing the Labour Commissioner-cum-Registrar (respondent no. 2) to consider the representation filed by the Tata Workers Union, Jamshedpur and to pass an appropriate order. The said order is annexed as Annexure 4 and 4/A to this writ petition. Subsequent to the order passed in CWJC No. 2909 of 1996 (R) the said petitioner B. K. Singh filed a representation before the Respondent No. 2 on 29.12.1996 for considering the amendment in the constitution of the Union. The vital point in that proposed amendment was to increase the term of its office bearers of the Union from two years to five years. But on the representation also no order was passed by the Registrar, respondent no. 2 and then the said B. K.Singh again filed CWJC No. 768 of 1997 (R) for a direction upon the Registrar of Trade Unions to pass apropriate order. In that writ petition the Registrar of Trade Unions appeared and filed a counter affidavit annexing the order dated 20.3.1997 as Annexure-B stating that the proposed amendment had already been refused/rejected by a comprehensive resasoned order. That comprehensive order is contained in Annexure-6 to this writ petition as already mentioned above. Consequent to such order being passed by the Registrar of Trade Union in CWJC No. 768 of 1997 (R) was withdrawn and after that election for the Executive Body of the Union was held under the existing constitution for the period 1996-97 then the respondent no. Consequent to such order being passed by the Registrar of Trade Union in CWJC No. 768 of 1997 (R) was withdrawn and after that election for the Executive Body of the Union was held under the existing constitution for the period 1996-97 then the respondent no. 4 filed CWJC No. 3306 of 1997 (R) specifically praying therein for the amendment of the constitution and did not mention about the order already passed by respondent no. 2 on 20.3.97 although in all the above mentioned writ petitions respondent no. 4 was appearing. Petitioner no. 2 and 3 filed intervention petition in CWJC No. 3306 of 1997 (R) but then the writ petition was withdrawn on 27.4.1998 as in the meantime respondent no. 3 had already passed an order dated 31.12.1997 as contained in Annexure-7. Such order dated 31.12.1997 as contained in Annexure-7 has been impugned in this writ petition on the ground that in the earlier order dated 20.3,1997 a very detailed order was passed by the respondent no.2 refusing the amendment giving cogent reasons for his non- satisfaction and it was also mentioned that after the General Body meeting in the year 1991 new office bearers have come after the election was held and the proposed amendment had not been passed by the General Body after the new Election or by the Executive Committee and direction was made to place those proposed amendments before the General Body and the Executive Members. 3. It is the contention of the petitioners that there was no power of the respondent no. 3 to sit over the order passed by the respondent No. 2 on 20.3.1997 and review the same by a non-speaking order on 31.12.1997 as contained in Annexure-7 without even mentioning about the earlier order passed by the respondent no. 2. It is also contended that the respondent no. 3 had reviewed the order on the face of it when no such power was available to him and if such reviewing power is also there then also the same can be passed only after giving proper opportunity of hearing to the new members of the Executive Committee or on getting a fresh proposal after being passed through the General Body. 4. In the counter affidavit filed it is submitted that the petitioner no. 4. In the counter affidavit filed it is submitted that the petitioner no. 1 took the initiative while he was an elected member for the purpose of amendment and now when he sought for amendment has been allowed by Annexure-7 he is coming to challenge the same as he has lost in the election meaning thereby he wanted to retain in the office more than the period prescribed under the old constitution and when he lost the election then he is opposing the amendment. It has further been contended that in the earlier writ petition the order passed on 20.3.1997 had not been mentioned as the same was never being communicated to the respondent no. 4 and they have only knowledge about the order passed on 22.3.1997 by the Registrar as contained in Annexure-R/A and, as such, there was no suppression from the side of respondent no. 4 in filing the previous writ petition. It has also been contended that order impugned is an Executive Order and the same does not require any reasons to be given and no question of review of Executive order arises rather the executive order passed if on substantial compliance of the provisions of the Act and the rules contained then there is no scope to challenge the same. 5. Mr. P. K. Sinha, Senior Counsel appearing for and on behalf of the petitioners argued only on the point of law to the effect that the earlier order of refusal of amendment passed on 20.3.1997 and reiterated on 22.3.1997 cannot ba annuled by a non-speaking order passed by respondent no. 3 vide Annexure-7 on 31.12.1997 even not noting the rejections made earlier on the same papers and documents available before the respondent no. 3. It is virtually a review of the earlier order which is not permissible under the law as there is no scope for it and even if it is reviewed then also the same is time barred when the earlier orders dated 20.3.1997 and 22.3.97 reached its finality. 6. Mr. K.M. Prasad, Senior counsel appearing for and on behalf of the respondent No. 4 submitted that the impugned order dated 30.12.1997 had been passed by the respondent no. 6. Mr. K.M. Prasad, Senior counsel appearing for and on behalf of the respondent No. 4 submitted that the impugned order dated 30.12.1997 had been passed by the respondent no. 3 by following the procedure and rules as laid down under Section 28 (3) of the Trade Union Act and Regulations 11 (1) of Bihar Trade Union Regulations and when there is total compliance of the provisions of Act and the regulations thereof there is no scope to challenge the same within the narrow scope of Trade Union Act. In support of his contention he has referred to a judgment of the Gujrat High Court as reported in 1970 (l)LLJ 719 (Ahmedabad Misc. Industrial Workers Union vs. Electricity Mazdoor Sabha and anr.) wherein it was held that alteration of the constitution of the trade Union if once scrutinised and registered by the Registrar the same cannot be challenged by a third party or even by an individual employee member. That case arose under the Bombay Trade Union Regulations and it is submitted that the provisions of Bihar Trade Union Regulations are para-materia the same and hence that judgment of the Gujrat High Court is relevant in the present case also. It was observed in that judgment that once the alterations are registered by the Registrar of Trade Unions after being satisfied that they are in accordance with the rules of the Union and also in accordance with the provisions of the Act, no enquiry should thereafter be permissible into the question whether in making the alteration the forms of procedure prescribed by the Act or the Rules of the trade union was complied with or not. The amendment and alterations are permissible under Regulation Xll of the Constitution of the Tata Workers Union and it was provided that such amendment and new rules may be registered or rescinded if the same had been passed by the Executive Committee in the interest and for the better working of the Union, subject to the approval of the General Body of the members. In the present case this Article Xll of the constitution of the Tata Workers Union had been considered by the respondent No. 2, Registrar not only once but twice and after going into all factual aspects regarding the interest and better working of the Union the amendment was rejected. In the present case this Article Xll of the constitution of the Tata Workers Union had been considered by the respondent No. 2, Registrar not only once but twice and after going into all factual aspects regarding the interest and better working of the Union the amendment was rejected. But by the impugned order the said two orders have been given go-by to by a stroke of pen without even mentioning about the earlier rejection and giving any reasons whatsoever as to how the earlier rejection is modified by changing it into an allowance even the earlier order had not been mentioned by the respondent no. 3 in passing the impugned order. The circumstances of the present case is not the same as that of the reported case as referred above. Here in the present case the question is when once rejection is there then the same authority by change of officer, earlier order has been rescinded to without giving any reason whatsoever and the same is nothing but a review and that review also is without any ground being shown and that too not on change of circumstances but on the same papers and documents on which once rejection has been recorded. Mr. K.M.Prasad Senior Counsel further submitted that the order being an Executive/administrative order and it being not quasijudicial order, it does not require any reasons to be recorded and while passing an administrative/executive order only satisfaction of the Officer concerned is required and not reasoning to be given as the same is not a quasi-judicial order. In this context Mr. Prasad has referred to a judgment of the Apex Court as reported in 1996 (l)LLJ 879 (Sultan Singh vs. State of Haryana & anr). That case related to Industrial Disputes Act, 1947 under Section 10 (1) regarding power of the Government to make reference of an Industrial Dispute. The petitioner in that case was terminated from his service and he made an application for reference and the State Government i.e. State of Haryana rejected the same. Once again the workmen made a representation and the Minister made a note on the representation directing to make a reference. On this representation also the Government did not consider it necessary to reconsider the earlier decision already taken. Once again the workmen made a representation and the Minister made a note on the representation directing to make a reference. On this representation also the Government did not consider it necessary to reconsider the earlier decision already taken. In that context and the factual aspect it was held that once the Government has taken decision after considering the factual aspect that there was no Industrial Dispute existing decided not to refer the matter to the industrial Dispute to be adjudicated by the Tribunal and the second representation was also turned down as the Government did not feel it necessary to reconsider the earlier decision. It was held by the Apex Court that the order being an administrative order and not a quasi-judicial order then such rejection is not required to be a reasoned one. The position and circumstances in that reported case is totally different in the present case. Here an authority empowered under the Statute had already passed an order on the materials and documents before it and on the same materials and documents the same authority had passed a reverse order without referring to the earlier decision. An authority under the Statute if passes an order either administrative or quasi-judicial then the same if requires to be reversed then reasonings must be given as to on what circumstances the same had been reversed. If laxity is given to the authority to pass order on one way at one time and the other way at other time then the whole matter would become a confusing one and contrary to the rule of law even on the administrative side. There is thin difference between an administrative power and the quasi-judicial power and it has been observed by the Apex Court long back in AIR 1970 S.C. 150 (A. K. Kraipak vs. Union of India) that the dividing line between an administrative power and a quasi judicial power is being gradually obliterated. The observation and the decision of the Apex Court is very relevant in the present context and, as such, I am reiterating the same. "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. The observation and the decision of the Apex Court is very relevant in the present context and, as such, I am reiterating the same. "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the frame work of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like India which is regulated and controlled by the rule of law it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of actng judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power since years back is now being considered as a quasi-judicial power." 7. The same principle being taken in the present circumstances and context of the case, it appears that the same authority is blowing hot and cold on the same matter. Once rejection is there regarding the amendment on grounds being given then there was no scope to reverse it unless it could be shown that some radical changes are there in the circumstances which were existing at the time of rejection of the amendment. It is nobodys case that fresh proposal has been made by the present Body of the Union respondent no. 4 and the same has been passed through Executive member and ratified by the General Body. There was clear direction in the earlier order as contained in Annexure-6 that the matter of amendment may be reconsidered if the same is passed by the new executive body being ratified by the General Body. 4 and the same has been passed through Executive member and ratified by the General Body. There was clear direction in the earlier order as contained in Annexure-6 that the matter of amendment may be reconsidered if the same is passed by the new executive body being ratified by the General Body. It was held that such amendment would not be in the interest of the members of the Union. Unless it could have been shown before the respondent No. 3, that the situation have been changed and present body has made a new proposal through Executive Body being ratified by General Body, there remains no scope to reverse the earlier order. Respondent No. 3 is not an appellate authority nor he has any scope to sit over the earlier order unless the proposal of amendment have been made afresh after giving through proper procedure. In any view of the matter either it is an administrative order or a quasi-judicial order there is no scope by the respondent no. 3 to sit over the earlier order passed by the respondent no. 2 as contained in Annexure-6 and Annexure-R4/A i.e. the orders dated 20.3.1997 and 22.3.1997 and the present order being a non-speaking order cannot be construed as legal and valid in view of the speaking order being passed on 20.3.1997 as contained in Annexure-6. If it is construed as a quasi-Judicial order which I feel be so considering the power and duties of the Registrar as contemplated under the Trade Union Act, the impugned order being a review order cannot be sustained in the eye of law as the same is totally time barred and there was no scope to review when no new materials were placed before the respondent no. 3 as the respondent no. 3 and respondent no. 2 constitute the same office of Registrar under the Trade Union Act. 8. In the result the writ petition is hereby allowed. The impugned order as contained in Annexure-7 is hereby quashed and the functioning of the Union Respondent No. 4 shall be governed by the old constitution and not by amended constitution in view of quashing of Annexure-7.