Koyla Shramik Sabha v. Deputy Registrar of Trade Unions Nagpur
2015-12-17
A.S.CHANDURKAR
body2015
DigiLaw.ai
JUDGMENT : A.S. CHANDURKAR, J. 1. In view of notice for final disposal, the learned counsel for the parties have been heard at length. 2. The petitioners are aggrieved by issuance of consent certificate dated 27.08.2015 by the Deputy Registrar of Trade Unions, Nagpur. Said Consent Certificate has been issued by making corrections in the earlier consent certificate dated 23.07.2015. 3. According to the petitioners, the petitioner No. 2 came to be elected as President of the petitioner No. 1 Union on 03.03.2014. This fact was informed to the Management on 12.05.2015 and according to petitioners same was duly accepted by the Management. The respondent Nos. 2 and 3 made an application to the respondent No. 1 under provisions of Trade Unions Act, 1926 (for short, the said Act) and Rules framed thereunder for making necessary enquiry and issuing a consent certificate alleging that as per the elections held, the office bearers and committee members as shown in Annexure A to the said application were entitled to be declared as such. In response to said application, the petitioners filed their reply and took the stand that the petitioner No. 2 in fact was the elected President and that the members shown as per Annexure A were not entitled for any such declaration. 4. After holding necessary enquiry as contemplated under Section 28-1A(1) of the said Act, the respondent No. 1 on 23.07.2015 issued a consent certificate and referred the dispute to the Industrial Court under provisions of Section 28-1A(1) of the said Act to consider as to whether the petitioner Nos. 2 and 3 along with others were members and office bearers of the petitioner No. 1-Union. Thereafter, the respondent Nos. 2 and 3 sought correction in the said consent certificate dated 23.07.2015 on the ground that said consent certificate was not issued in terms of the application as made. On 27.08.2015, a fresh consent certificate after making necessary corrections came to be issued. The dispute referred was as to whether the members shown as per Annexure A to the application were office bearers and committee members of the Union. Being aggrieved, the petitioners have filed the present writ petition. 5. Shri V.P. Marpakwar, learned counsel for the petitioners submitted that issuance of fresh consent certificate by making necessary corrections was not warranted in the facts of the present case.
Being aggrieved, the petitioners have filed the present writ petition. 5. Shri V.P. Marpakwar, learned counsel for the petitioners submitted that issuance of fresh consent certificate by making necessary corrections was not warranted in the facts of the present case. He submitted that the consent certificate dated 27.08.2015 had been issued without holding any enquiry as contemplated under provisions of said Act and Rules framed thereunder. He submitted that under the garb of making corrections, the entire nature of the dispute was altered. According to him issuance of the subsequent consent certificate amounted to reviewing the earlier consent certificate for which there was no jurisdiction with the respondent No. 1. He then submitted that the appropriate Government in the present case was the Central Government and therefore the respondent No. 1 had no jurisdiction to entertain the application and grant consent certificate. He referred to Regulation 23 of the Regulations framed under the said Act and urged that same has not been followed while granting necessary consent certificate. It was also submitted that under the provisions of Section 28-1A of the said Act, a dispute relating to wrongful expulsion of office bearers or members as well as whether a person was a member of the registered trade union for atleast six months could be adjudicated. In that background therefore it was submitted that the initial consent certificate dated 23.07.2015 had been rightly issued and the respondent No. 1 exceed his jurisdiction while correcting the same. He thus submitted that the subsequent consent certificate was liable to be set aside. 6. Shri S.D. Thakur, learned counsel for respondent Nos. 2 and 3 opposed aforesaid submissions. According to him on being duly satisfied about the locus of respondent Nos. 2 and 3 coupled with the fact that the earlier consent certificate did not reflect the true nature of dispute sought to be referred, necessary corrections came to be made in the consent certificate. He submitted that while issuing said consent certificate the powers exercised were administrative in nature and the jurisdiction to make corrections was inherent in the power to issue such consent certificate. He referred to the application moved by respondent No. 3 for being issued the consent certificate and submitted that Annexure A was duly made part of said application. He then submitted that no additional submissions were made by respondent Nos.
He referred to the application moved by respondent No. 3 for being issued the consent certificate and submitted that Annexure A was duly made part of said application. He then submitted that no additional submissions were made by respondent Nos. 2 and 3 while seeking corrections in the earlier consent certificate. In support of his submissions the learned counsel placed reliance on the judgment of Supreme Court in M/s. Dabur (Dr. S.K. Burman) Pvt. Ltd. vs. The Workmen, 1967 (2) LLJ 863 , Harnam Singh and Others vs. Punjab State Electricity Board, (2001) 10 SCC 526 as well as judgment of the learned Single Judge in State of Maharashtra vs. Anantha Krishnan, 1995 (2) Mah. LJ 572. 7. In reply it was submitted by the learned counsel for the petitioners that by granting initial consent certificate the question as to whether the petitioner No. 2 was an office bearer or not had been referred and said aspect was missing in the subsequent consent certificate. The aspect of wrongful expulsion of petitioner No. 2 was therefore given a go bye. He also submitted that the scope of provisions of Section 28-1A(1) of the said Act was distinct from the scope of provisions of Section 10 of the Industrial Disputes Act, 1948 and therefore the decisions relied upon in that regard had no application. 8. Smt. H. Prabhu, learned Assistant Government Pleader appearing for respondent No. 1 relied upon the affidavit filed on record and supported the impugned order. 9. I have given due consideration to the respective submissions and I have gone through the documents filed on record. The perusal of the application dated 29.05.2015 filed by respondent Nos. 2 and 3 indicates that it was the case of said respondents that disputes had arisen as to whether the persons mentioned in Annexure A to the application were members/office bearers of the Union for the period from 19.08.2013 to 18.08.2018 and were therefore entitled to deal with the property of the Union and conduct its affairs with the Management. It was further averred that respondent Nos. 2 and 3 were members of the Union for the period of not less than six months. It was on that basis that the consent certificate was sought. Necessary enquiry as contemplated was held and the petitioners as well as respondent Nos. 2 and 3 placed various documents on record.
It was further averred that respondent Nos. 2 and 3 were members of the Union for the period of not less than six months. It was on that basis that the consent certificate was sought. Necessary enquiry as contemplated was held and the petitioners as well as respondent Nos. 2 and 3 placed various documents on record. On that basis the respondent No. 1 on 23.07.2015 issued consent certificate on being satisfied that a dispute arose as to whether the petitioner No. 2 and three others were members and office bearers of the Union. Thereafter on 12.08.2015 the respondent Nos. 2 and 3 issued a communication to the respondent No. 1 stating that the consent certificate issued was incomplete and therefore appropriate corrections be made therein. A reminder was also issued on 20.08.2015 by stating that reference be made to para 3 of the application dated 29.05.2015. On that basis after making corrections a fresh consent certificate dated 27.08.2015 came to be issued. 10. In the light of aforesaid the respective submissions of the learned counsel would have to be considered. In M/s. Dabur (Dr. S.K. Burman) Pvt. Ltd. (supra) the Supreme Court considered the question as regards authority to rectify mistakes that had crept in an order of reference made under Section 10(1) of the Industrial Disputes Act, 1948. It was held that the State Government that had made the reference was competent to correct clerical errors and such exercise would not amount to withdrawing the reference or cancelling the same. Learned Single Judge in Bombay Gumasta Union (supra) considered similar issue and it was held that the State Government had necessary authority to make corrections to give effect to the actual decision of the State Government. 11. Though both the aforesaid decisions pertain to exercise of power under Section 10 of the Industrial Disputes Act, 1948, there is no reason whatsoever for not applying the same logic to the exercise of powers by the respondent No. 1 when he issued a fresh consent certificate after making necessary corrections. It is further to be noted that none of the parties were again heard before the corrected consent certificate was issued and the same was issued by considering very same material on the basis of which the first consent certificate came to be issued. 12.
It is further to be noted that none of the parties were again heard before the corrected consent certificate was issued and the same was issued by considering very same material on the basis of which the first consent certificate came to be issued. 12. Perusal of consent certificate dated 23.07.2015 indicates that the dispute referred therein was not the one that was sought to be raised by respondent Nos. 2 and 3 in their application dated 29.05.2015. On the contrary, the corrected consent certificate dated 27.08.2015 is based on the same lines on which application dated 29.05.2015 was made. It can thus be said that by making such corrections, the respondent No. 1 gave effect to the dispute that was actually sought to be referred under Section 28-1A of the said Act. No fresh enquiry was held by the respondent No. 1 while making said corrections and hence question of consideration of Regulation 23 as urged would not arise. Therefore, it cannot be said that by making such corrections, the power of review had been exercised and that the entire nature of the dispute was altered. The subsequent consent certificate is in accord with application dated 29.05.2015. More ever, the dispute as referred is always open for being contested before the Industrial Court under provisions of Section 28-1A(2) of the said Act. 13. As regards the submission that the appropriate Government was the Central Government and not the State Government, it is to be noted that on 16.10.2015 the Industrial Court passed an order rejecting an application seeking dismissal of the proceedings on the ground that the Central Government was the appropriate Government. It was held therein that it was the State Government which was the appropriate Government. Said order is not under challenge in the present writ petition and hence it would be for the petitioners to impugn said order if they are so aggrieved. 14. In view of aforesaid therefore it cannot be said that the respondent No. 1 committed any error in issuing consent certificate dated 27.08.2015. The order impugned does not suffer from any jurisdictional error and hence there is no case made out to interfere in writ jurisdiction. Petition is therefore dismissed. No costs. 15. At this stage the learned counsel for the petitioners/members requests for continuing the interim order for four weeks.
The order impugned does not suffer from any jurisdictional error and hence there is no case made out to interfere in writ jurisdiction. Petition is therefore dismissed. No costs. 15. At this stage the learned counsel for the petitioners/members requests for continuing the interim order for four weeks. The request is opposed by the learned counsel for the respondent Nos. 2 and 3. 16. Interim order dated 19.10.2015 shall continue to operate for a period of four weeks from today and shall cease to operate automatically thereafter.