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Jharkhand High Court · body

2018 DIGILAW 1178 (JHR)

Vijay Bhushan Mishra v. Amalesh Kumar

2018-05-25

ANUBHA RAWAT CHOUDHARY, RONGON MUKHOPADHYAY

body2018
ORDER : 1. Heard Mr. Rajiv Ranjan, learned senior counsel on behalf of respondent no. 2 in I.A. No. 9192 of 2017, Mr. Sumit Gadodia, learned counsel appearing on behalf of the appellant in L.P.A. No. 456 of 2017, Mr. Indrajit Sinha, learned counsel appearing on behalf of the appellant in L.P.A. No. 455 of 2017 which is connected with L.P.A. No. 456 of 2017, Mr. V.P. Singh, learned senior counsel appearing on behalf of the respondent no. 15 and Mr. L.C.N. Sahdeo, learned G.P. IV appearing on behalf of the respondent-State of Jharkhand. 2. This application has been preferred by the respondent no. 2 herein (petitioner no. 2 in the writ petition) by which a prayer has been made for recall of the order dated 11.09.2017 whereby and whereunder, the order dated 04.08.2017 passed in W.P. (C) No. 3322 of 2017 by the learned Single Judge has been stayed and certain other conditions have been incorporated in the order dated 11.09.2017 to which the respondent no. 2 is aggrieved. 3. The writ petition being W.P. (C) No. 3322 of 2017 was filed by the respondent nos. 1 and 2 (writ petitioner nos. 1 & 2) for quashment of the order dated 13.06.2017 passed by the Labour Commissioner cum Registrar, Trade Union, Government of Jharkhand as contained in Memo No. 2/T2-10-03/17 Shra. Ni. 1335 dated 13.06.2017 by which the application submitted by the respondent no. 10 to 14 herein was allowed and the objection submitted by the petitioner was rejected. The learned Single Judge in W.P. (C) No. 3322 of 2017 had quashed the order dated 13.06.2017 and had further given a direction to the Deputy Commissioner, East Singhbhum, Jamshedpur to get the election of the Union conducted afresh within 8 weeks by verifying the voters’ list and by calling for the intending candidates for filing their nomination papers and holding the election by secret ballot as well as to declare the result of the election according to law. The present appellants herein (respondent nos. 12 & 13 in the writ application) have challenged the order of the learned Single Judge in the present appeal. This Court vide order dated 11.09.2017 had granted an interim order of stay in favour of the appellants herein, the relevant portion of which reads as follows: “6. The present appellants herein (respondent nos. 12 & 13 in the writ application) have challenged the order of the learned Single Judge in the present appeal. This Court vide order dated 11.09.2017 had granted an interim order of stay in favour of the appellants herein, the relevant portion of which reads as follows: “6. We, therefore, stay the operation, implementation and execution of the order passed by learned Single Judge in W.P. (C) No. 3322 of 2017 order dated 04.08.2017, to the extent which it gave a direction to the Deputy Commissioner, Jamshedpur to be appointed as a Special Officer for holding fresh election of the Trade Union. This part of the judgment and order delivered by learned Single Judge is, hereby, stayed. 7. Neither these appellants nor the respondent Nos. 1 and 2 shall be Incharge of the Trade Union Office, nor, they shall operate the following bank accounts of the Trade Union:- (i) Bank Account No. 3006342017 of Central Bank of India, Telco Branch. (ii) Bank Account No. 0011564 of Bank of India, Telco Branch. (iii) Bank Account No. 587501010050142 of Bank of India, Telco Branch. 8. These bank accounts shall not be operated by these appellants 9. This Letters Patent Appeal is Admitted. 10. Registry is directed to enlist this Letters Patent Appeal along with L.P.A. No. 455 of 2017 under the heading ‘For Hearing’ in the 2nd week of April, 2018.” 4. The respondent no. 2 herein had moved the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 10797 of 2018 in which on 07.05.2018, the High Court was requested to hear the Interlocutory Application on 17.05.2018. 5. On 17.05.2018, the matter was placed before the Division Bench and since Hon’ble Amitabh K. Gupta, J had recused himself from hearing the matter, the same was assigned to another Division Bench which on 18.05.2018 had directed the listing of Interlocutory Application on 12.06.2018 before the appropriate Bench which had passed the interim order dated 11.09.2017. The matter was once again moved before the Hon’ble Supreme Court and vide order dated 18.05.2018 in view of urgency expressed by both the sides, the matter was requested to be placed before first available Vacation Bench with a further request to dispose of the Interlocutory Application preferably on the same day. The matter was once again moved before the Hon’ble Supreme Court and vide order dated 18.05.2018 in view of urgency expressed by both the sides, the matter was requested to be placed before first available Vacation Bench with a further request to dispose of the Interlocutory Application preferably on the same day. Pursuant to the order dated 18.05.2018 passed by the Hon’ble Supreme Court, the matter was listed before a Division Bench comprising of R. Mukhopadhyay, J. and Ananda Sen, J. and after a lengthy hearing since it came to the knowledge that Ananda Sen, J. had appeared in a case which resulted in the holding of the election in Tata Workers’ Union, he had recused himself and consequent thereto another Bench was constituted on 21.05.2018 itself and upon consideration of the arguments advanced by the respective counsel for the parties, I.A. No. 9192 of 2017 is being disposed of. 6. Mr. Rajiv Ranjan, learned senior counsel appearing for the respondent no. 2 herein has submitted that the holding of election as directed by the learned Single Judge was not a relief granted to respondent no. 2. It has been submitted that pursuant to the order of learned Single Judge, the Deputy Commissioner had already initiated the process of holding elections. Learned senior counsel submits that the present Letters Patent Appeal has not been filed by the President or Secretary of the parallel Union but by a co-opted Member. It has been submitted that the stay of the elections as also the interim directions and non-operation of the bank accounts of the Trade Union has crippled the activities of the Union, as no appropriate decisions are being taken. Learned senior counsel adds that there was an apprehension already in the mind of the present respondent that another Union namely, TML and Driveline Workers’ Union will be recognized by the Management which apprehension has been found to be correct. Learned senior counsel adds that Telco Workers’ Union is espousing the cause of the workers since 1946 and on account of the operation of stay granted by this Court and by stalling the elections, the TML and Driveline Workers’ Union has usurped the space vacated by Telco Workers’ Union. Learned senior counsel submitted that the stay which has been granted in L.P.A. No. 456 of 2017 was virtually in nobody’s interest. Learned senior counsel submitted that the stay which has been granted in L.P.A. No. 456 of 2017 was virtually in nobody’s interest. He submits that the tenure of the office bearers is going to be completed in August 2018. Learned senior counsel further submits that the present union has now been derecognized by the State of Bihar. He has further stated that the holding of the elections will not harm the prospect of either of the warring factions of the Union. Learned senior counsel while touching the merits of the case has emphasized that the inquiry report submitted by the Deputy Labour Commissioner, Jamshedpur was one sided as it virtually adjudicated the inter-se dispute between the rival factions of the Union and the learned Single Judge has considered this aspect of the matter while setting aside the order passed by the Registrar-cum-Labour Commissioner dated 13.06.2017. Mr. Rajiv Ranjan continuing further has submitted that on account of uncertainty prevailing in the functioning of the Union, a large number of workmen belonging to Telco Workers’ Union had shifted their allegiance to the other Union which had damaged the prospects of the Union of which both the sides are the rival factions. A suggestion has been put forward by the learned senior counsel for the respondent no. 2 that the elections be held as per direction of the learned Single Judge and the Deputy Commissioner be further given permission to operate the accounts. Concluding his argument, Mr. Rajiv Ranjan submits that the circumstances depicted by him would lead to a conclusion that grant of stay in L.P.A. No. 456 of 2017 has stalled the entire process of elections as also the functioning of the trade union and since the workers are also being affected, the order of stay dated 11.09.2017 should be vacated. 7. Mr. Sumit Gadodia, learned counsel for the appellant in L.P.A. No. 456 of 2017 has at the initial stage of his argument referred to the factual aspects of the case. He has submitted that in August 2015, the elections were held and 98 Executive Members were elected out of which 22 were office bearers. He submits that on 21.01.2016, the names of the elected Members were entered in Form B. On 12.10.2016, a meeting was convened by 40 members for discussing wage revision with the Management and for taking decision to expel the President and Secretary of the Union. He submits that on 21.01.2016, the names of the elected Members were entered in Form B. On 12.10.2016, a meeting was convened by 40 members for discussing wage revision with the Management and for taking decision to expel the President and Secretary of the Union. On 16.11.2016 both the writ petitioners were expelled and on 11.12.2016, the said decision was ratified. Learned counsel submits that on 28.12.2016, the respondent nos. 10 to 14 in the writ petition had filed an application for amendment in Form B and on 02.01.2017, the petitioners in the writ petitions also filed an application for amendment in Form B. It has been contended that the matter was inquired by the Deputy Labour Commissioner and on consideration of all aspects of the matter, the Labour Commissioner-cum-Registrar, Government of Jharkhand had passed the impugned order in the writ application dated 13.06.2017. Mr. Gadodia while referring to Sections 17 & 18 of the Trade Union Act has submitted that immunity has been granted to the office bearer or members of the trade union. It has been stated that the Registrar has to maintain the records for which he has referred to Sections 31 & 32 of the Trade Unions Act. In the backdrop of the aforesaid provisions of Sections 17, 18, 31 & 32, learned counsel has referred to Section 28(2) and 28(4) of the Trade Unions Act and has stated that the Registrar has to maintain the records as also Form B and therefore, it cannot be said that the Registrar had considered the inter-se dispute between the parties. On the said analogy, Mr. Gadodia has drawn the attention of the Court to Section 21(A) of the Trade Unions Act. He has further submitted that the State of Bihar has derecognized the Union which is a subject-matter of another writ application and it has been submitted that the respondent no. 2 herein in spite of there being a stay operating has described himself as the General Secretary of the Telco Workers’ Union which amounts to a contempt of Court on the part of the respondent no. 2. It has been stated that if the stay granted by this Court on 11.09.2017 is vacated, the same would render issue no. 1 framed by the learned Single Judge as infructuous. 2. It has been stated that if the stay granted by this Court on 11.09.2017 is vacated, the same would render issue no. 1 framed by the learned Single Judge as infructuous. In support of his contention, learned counsel has referred to the judgment in the case of Indo Asahi Glass Mazdoor Sangh Vs. State of Bihar and Others, (1995) 2 PLJR 604 . Mr. Sumit Gadodia, furthering his argument has also made a reference to the inquiry report and has stated that the solitary purpose of such inquiry was for updating Form B and not for deciding the inter-se dispute between the rival factions of the Union. Learned counsel submits that since the writ petitioners have subjugated themselves to the jurisdiction of the Labour Commissioner, they cannot be permitted to challenge the validity or otherwise of the order passed by the Registrar which was under challenge before the learned Single Judge. Learned counsel submits that the appellants have a good prima-facie case in issue no. 1 which according to him has been sufficiently described in course of his argument. It has also been stated that although no prayer had been made by the writ petitioners for holding of elections, but the learned Single Judge has exceeded his jurisdiction in going beyond the prayer and directing Deputy Commissioner, Singhbhum East, Jamshedpur to hold elections which is all the more inappropriate in view of the fact that issue no. 2 which relates to the maintainability of the writ application was answered in the negative. He submits that although, learned senior counsel for the writ petitioners had argued about operation of the bank account by the Deputy Commissioner, but no such plea has been taken in the Interlocutory Application. He adds further that in effect if the respondent no. 2 herein is allowed to continue in the Union, the same will have a catastrophic effect on the activities of the trade union. Mr. Gadodia while concluding his argument has referred to the judgment in the case of Deoraj Vs. State of Maharashtra and Others, (2004) 4 SCC 697. 8. Mr. 2 herein is allowed to continue in the Union, the same will have a catastrophic effect on the activities of the trade union. Mr. Gadodia while concluding his argument has referred to the judgment in the case of Deoraj Vs. State of Maharashtra and Others, (2004) 4 SCC 697. 8. Mr. Indrajit Sinha, learned counsel for the appellant in L.P.A. No. 455 of 2017 has addressed the issue in his capacity of being a Member of the Union since the appeal preferred by him, although he was not a party in the writ petition has already been admitted along with the L.P.A. No. 456 of 2017. Mr. Sinha, submits that no instance has been depicted by learned senior counsel appearing for the writ petitioners to show as to how the stay granted by this Court on 11.09.2017 has adversely affected them. Learned counsel in course of his argument has also referred to Form B as well as Form F of the Trade Unions Act. While referring to paragraph 19 of the order passed by the learned Single Judge, he has submitted that the learned Single Judge has exceeded his jurisdiction as the Registrar, Trade Unions was never considering the inter-se dispute between the rival factions of the Union, rather was considering the name of the workmen to be included in the Form B which is in terms of Section 28 of the Trade Unions Act. Mr. Sinha has also submitted that the order passed by the Registrar-cum-Labour Commissioner was within the duties of the Registrar and there is a subtle difference between patent lack of jurisdiction and latent lack of jurisdiction. Learned counsel has reiterated what has been submitted by Mr. Sumit Gadodia, learned counsel appearing for the appellant in L.P.A. No. 456 of 2017 by submitting that once the writ petitioners had surrendered to the jurisdiction of the Registrar, Trade Union, they cannot be permitted to turn back on the same and in support of his contention he has referred to the judgment in the case of Sohan Singh and Others Vs. General Manager, Ordnance Factory, Khamaria, Jabalpur and Others, (1984) Supp. SCC 661. Mr. Sinha has also referred to the Bihar and Orissa Trade Regulation Act, 1928 especially to Clause 7 (i) and Clause 7 (ii). He has further submitted that once issue no. General Manager, Ordnance Factory, Khamaria, Jabalpur and Others, (1984) Supp. SCC 661. Mr. Sinha has also referred to the Bihar and Orissa Trade Regulation Act, 1928 especially to Clause 7 (i) and Clause 7 (ii). He has further submitted that once issue no. 2 as framed by the learned Single Judge was answered in the negative, pre-ponement of election has deprived the right of the workmen to move before the competent civil court. He submits that the appellant has been permanently injuncted from taking recourse before the civil court. Learned counsel with respect to the de-registration of the Union has referred to the judgment in the case of Retd. Armed Forces Medical Association and Others Vs. Union of India and Others, (2006) 11 SCC 731 (I). Mr. Indrajit Sinha, learned counsel submits that if an order is void or voidable, the same requires to be set aside by a competent authority and no such declaration can be obtained in a collateral proceeding and in support of his contention, he has referred to the judgment in the case of Inderjit Singh Grewal Vs. State of Punjab and Another, (2011) 12 SCC 588 . 9. Learned counsel further submits that the trade union does not have any registration number and the registration number which is being used is with respect to a truck owners’ association in Pakur. It has been submitted that not a single union member has alleged that they have been coerced to change their allegiance to another union and the workmen does have the prerogative to change the union. Learned counsel therefore, submits that the Interlocutory Application is basically seeking a review of the order dated 11.09.2017 and not an order of recall and such order of review is not permissible in law. 10. Mr. L.C.N. Sahdeo, learned G.P. IV appearing for the State has merely stated about de-registration of the concerned union. 11. Mr. V.P. Singh, learned senior counsel appearing for the Tata Motors Ltd. has merely relied on the counter affidavit submitted in the writ application. 12. 10. Mr. L.C.N. Sahdeo, learned G.P. IV appearing for the State has merely stated about de-registration of the concerned union. 11. Mr. V.P. Singh, learned senior counsel appearing for the Tata Motors Ltd. has merely relied on the counter affidavit submitted in the writ application. 12. Although, learned counsel for the contesting parties have also made their arguments with respect to the legality or otherwise of the order of the learned Single Judge dated 04.08.2007 passed in W.P. (C) No. 3322 of 2017 and this Court being conscious of the fact that any observation may affect the merits of the appeal will endeavor to proceed as to whether the interim order passed on 11.09.2017 deserves to be recalled or not, as prayed for by the respondent no. 2 herein. 13. It appears that the registration certificate of Telco Workers’ Union being registration no. 98/20.09.1946 has been cancelled by the order of the Labour Commissioner-cum-Registrar, Trade Union on 03.05.2017 and the same is subject matter of W.P. (L) No. 1396 of 2018. The issue of cancellation of registration certificate was never brought to the notice of the learned Single Judge by either of the parties and such subsequent development has further complicated the issue with respect to the holding of elections as it appears that the Union has lost its existence in the eyes of law. 14. In context of the above, reference may be made to the case of B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees’ Assn. (2006) 11 SCC 731 (II), wherein it was held as follows: “38. In the writ petition filed by Respondents 1 and 2 their locus standi to challenge the appointment of the appellant was asserted in the following words: “The petitioner Association is a trade union registered under the Trade Unions Act, 1926. The petitioner is the only registered trade union existing in the 2nd respondent Board. The Board has held several negotiations with the petitioner Union with regard to the service conditions of the employees of the 2nd respondent Board since its formation in the year 1986. The Board has entered into several settlements with the petitioner Union with regard to their service conditions. The petitioner which is a recognised trade union is entitled to agitate the matter with regard to the appointment of the 3rd respondent to the Board. The Board has entered into several settlements with the petitioner Union with regard to their service conditions. The petitioner which is a recognised trade union is entitled to agitate the matter with regard to the appointment of the 3rd respondent to the Board. The petitioner is concerned about the functioning of the 2nd respondent Board, and as such is entitled to question the appointment of the 3rd respondent as Managing Director on contract basis. Hence, the petitioner has locus standi to file this writ petition.” (Emphasis supplied) These averments were established to be false. The registration of the first respondent under the Trade Unions Act had been cancelled as early as on 2-11-1992. It is not a registered and recognised union. In fact, it was pointed out that the one recognised association is the Karnataka Urban Water Supply and Drainage Board Officers’ and Employees’ Association and the first respondent does not have even a handful of members. The fact of cancellation of registration of the first respondent came to the knowledge of the appellant long after the disposal of the earlier Writ Petition No. 44001 of 1995 wherein the Court had given a finding that the first respondent has locus standi to challenge the appointment of the appellant to the post of Managing Director of the Board solely on the ground that it is a registered trade union. In our opinion, the High Court gravely erred in refusing to examine the question of locus standi on the ground that it is decided in the earlier writ petition which operates as res judicata and that the petitioners even otherwise have locus standi. Chapter III of the Trade Unions Act, 1926 sets out rights and liabilities of the registered trade unions. Under the said enactment, an unregistered trade union or a trade union whose registration has been cancelled has no manner of right whatsoever, even the rights available under the ID Act have been limited only to those trade unions which are registered under the Trade Unions Act, 1926 by insertion of clause 2(qq) in the ID Act w.e.f. 21-8-1984 defining a trade union to mean a trade union registered under the Trade Unions Act, 1926. 15. A plea has been raised by Mr. Sumit Gadodia as well as Mr. 15. A plea has been raised by Mr. Sumit Gadodia as well as Mr. Indrajit Sinha, learned counsel appearing for the appellants in L.P.A. No. 456 of 2017 and L.P.A. No. 455 of 2017 with respect to the writ petitioners submitting themselves to the jurisdiction of the Labour Commissioner-cum-Registrar, Jharkhand which led to passing of the impugned order in the writ application and in support of the same has referred to the case of Sohan Singh and Others Vs. General Manager, Ordnance Factory, Khamaria, Jabalpur and Others (supra), wherein it was held as follows: 1.......... “The High Court seems to have taken the view that the trial of such an issue was beyond the competence of the Labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence or the jurisdiction of the Labour Court to try Issue 4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the Labour Court, they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the Labour Court on that ground alone.” 16. However, such plea can be considered only at the time of hearing on the merits of the appeal and not at this stage while hearing the Interlocutory Application for recall of order dated 11.09.2017. 17. Learned counsel for the appellants in L.P.A. No. 455 of 2017 and L.P.A. No. 456 of 2017 has also relied upon a plethora of judgments to counter the impugned order of the learned Single Judge, but we are not passing any observations on the merits of the case, as stated above, as it may directly affect either of the parties in the appeal. In the case of Deoraj Vs. State of Maharashtra and Others, (2004) 4 SCC 697, the factors necessary for grant of interim order had been enumerated and the same reads as follows: “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. In the case of Deoraj Vs. State of Maharashtra and Others, (2004) 4 SCC 697, the factors necessary for grant of interim order had been enumerated and the same reads as follows: “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case – of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.” 18. The interim order which has been granted in this appeal on 11.09.2017 if vacated will virtually render the Letters Patent Appeal as infructuous, moreso, in view of the development which as has been stated above was never brought to the notice of learned Single Judge which is with respect to the cancellation of the registration certificate of Telco Workers’ Union. The learned Single Judge had directed holding of the election under the aegis of the Deputy Commissioner, Singhbhum East, but since the Union itself has been deregistered, vacating the interim order dated 11.09.2017 would tantamount to allowing creation of an ambiguous situation which would not be of any consequence. The learned Single Judge had directed holding of the election under the aegis of the Deputy Commissioner, Singhbhum East, but since the Union itself has been deregistered, vacating the interim order dated 11.09.2017 would tantamount to allowing creation of an ambiguous situation which would not be of any consequence. The question of operation of the bank account of the Union has been strenuously argued by Mr. Rajiv Ranjan, learned senior counsel appearing for the respondent no. 2 herein, is also not of much significance, inasmuch as, nothing has been stated in the Interlocutory Application which would necessitate permission being granted to either of the rival factions to operate the account. Even otherwise, the submission of Mr. Rajiv Ranjan, learned counsel appearing for the respondent no. 2 herein with respect to grant of permission to the Deputy Commissioner, Singhbhum East, Jamshedpur to operate the account will not serve any fruitful purpose in view of the deregistration of the Union as indicated above. The appellant having a prima-facie case which is of a much higher standard and the balance of convenience being tilted towards the appellant vacating the interim order dated 11.09.2017 will lead to an irreparable loss to the appellant which would thus unequivocally lead to a conclusion that respondent no. 2 herein has failed to make out a case which would shift the balance of convenience towards the respondent no. 2 herein and on consideration of the entire aspects of the case, there being no reason to recall the order dated 11.09.2017 passed by this Court, I.A. No. 9192 of 2017 stands dismissed. I agree – Rongon Mukhopadhyay, J. I.A. dismissed.