TaxTMI 
TaxTMI 
2013 (10) TMI 1561
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....the Registrar on 16.10.2012. The Registrar issued a Certificate of Registration of the Trade Union, in Form-C in terms of the Regulation 5(1), bearing No. A/T.U/99/2012 dated 18.10.2012. Soon thereafter, on 25.10.2012 and 26.10.2012, 88 workers of the 4th respondent submitted individual letters informing the 3rd respondent that they were not the members of the Union, their I.D. Cards and other documents were obtained without their knowledge and were used for the purpose of registration of the Trade Union. The 4th respondent submitted a representation on 29.10.2012 informing the 3rd respondent that over 60 workers, whose names were found in the resolution alleged to have been passed by the petitioner Union, had submitted representations to the Management that they had no knowledge of the registration of the Union by the so called office bearers; a fraud was played on them by persons claiming to be union office bearers, while submitting papers for registration to the office of the Registrar, which needed urgent enquiry to ascertain the real facts; and a proper enquiry should be made regarding membership of the petitioner Union, and their registration cancelled. The 4th respondent req....
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....red under the Act; after registration of the union, the 4th respondent bore a grudge against them, and was trying to suppress Union activities which amounted to unfair labour practice; without conducting a fact finding enquiry, with regards the contents of the letters alleged to have been submitted by the workmen and without there being any prima-facie evidence, the 3rd respondent had issued the notice at the instance of the 4th respondent; all 126 workers of the 4th respondent had attended the general body meeting dated 02.10.2012, and had signed in the minutes, which was verified by the Registrar affixing his signature on the minutes book; out of the 126 employees, who had signed in the minutes on 02.10.2012, 104 employees had also submitted individual affidavits stating that they had participated in the general body meeting dated 02.10.2012, they continued to be members of the union, the management of the 4th respondent had obtained their signatures on blank papers informing them that they proposed to grant house sites acquiring land for which purpose representations were required and thereafter the management of the 4th respondent had misused the said blank papers, and had crea....
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.... to defend their case; an enquiry was conducted by him, the Assistant Commissioner of Labour and the Assistant Labour Officer, on 22.05.2013 and 12.06.2013 to verify whether they had the minimum required 100 members; the Assistant Commissioner of Labour, Sanga Reddy had recorded the statements of the workmen to verify the veracity of the allegation made by the management; he had personally interrogated and interacted with as many as 46 workers whose names were shown as members of the Union; and, on his enquiry, 35 workers had reported that they were not interested in the formation of the Union, and had expressed their intention to withdraw therefrom. After extracting Section 4(1) of the Act and the first proviso thereto, the Registrar held that, in the light of the aforesaid observations, he was of the opinion that the minimum necessary requisite number to form the Union had fallen from 100 to 81 and, accordingly, registration of the petitioner Union was liable to be cancelled. He recorded his satisfaction under Section 10(b) of the Act and declared that the registration of the petitioner Union stood cancelled. 5. It is the petitioner's case that there is one more registered t....
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....ersonal verification at his office, to prove the requisite membership of the union; in W.P. No. 5623 of 2013 filed by them an order of status quo was passed on 01.03.2013 for a period of four weeks; they intimated respondents 1 to 3 of the order passed by this Court by their letter dated 03.03.2013; the Joint Commissioner of Labour called the petitioner for a meeting in March, 2013, and expressed his readiness to cause a full-fledged enquiry at his office or at the office of the third respondent; their office bearers were asked to suggest the manner in which the meeting should be conducted; a few staff members of the Labour Department had later come to the factory premises of the 4th respondent; senior officers of the 4th respondent management were present in the office room of the Personal Manager when each worker was called in, grilled, heckled and threatened; the petitioner's protests were in vain; the fourth respondent-management has no locus standi, right or authority in the issue; it was only at the behest of the fourth respondent that respondent Nos. 1 to 3 resorted to the illegal act of conducting an enquiry in the factory premises; officials of the fourth respondent, i....
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.... 29.10.2012 enclosing thereto copies of the representations of 88 workmen requesting that an enquiry be conducted and registration of the petitioner's union be cancelled, as it was obtained by fraud; as the petitioner union had less than 10% membership of the workmen, employed in the 4th respondent, a notice was issued under Section 9A of the Act; after due enquiry it came to light that the petitioner-Union was registered with forged signatures, coercion, misrepresentation, without the consent of the workmen and by playing fraud; based on the representations dated 25.10.2012 and 26.10.2012 of the 88 workers, and the representation of the fourth respondent dated 29.10.2012, a notice dated 15.11.2012 was issued to the petitioner, under Section 10(b) of the Act, to show cause why their registration not be cancelled; subsequently 104 workers had submitted individual affidavits dated 26.11.2012 stating that they were continuing as members of the Union; it appeared as if the same workers had signed the representations dated 25.10.2012 and 26.10.2012, and also the affidavits dated 22.11.2012, without atleast a few of them knowing the facts; the petitioner union's letter dated 26.1....
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....but not as contended by the petitioner union; it could be seen that, at the time of registration of the trade union, the petitioner union had resorted to malpractices; registration of the petitioner union was, therefore, liable to be cancelled; in view of the statements of 35 workers, the petitioner union did not have the required strength of 100 workers on the date of registration on 18.10.2012 or afterwards; their present membership of 319 workers is of no help; it is incorrect to state that the 3rd respondent neither considered their explanation dated 10.01.2013 or the 104 affidavits nor did he give them an opportunity by conducting an enquiry; an enquiry was conducted and 46 workers were examined on 22.05.2013 and 12.06.2013; all these matters were considered before the cancellation order dated 13.06.2013 was passed; inspite of being given an opportunity, the petitioner had failed to produce any workers before the 3rd respondent to support their contention; on the instructions of the 1st and 2nd respondent, an enquiry was caused into the representations of the petitioner, the 4th respondent, and the letters of the workmen dated 25.10.2012 and 26.10.2012, in the 4th respondent&#....
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....nd the alleged general body meeting of the petitioner held on 02.10.2012 and were on duty on that date; in fact, Mr. Murali had reported for duty on 02.10.2012 in the first shift, and continued to remain on duty even in the second shift; the minutes of the meeting of the petitioner records that the meeting took place at 10.00 A.M. on 02.10.2012 and shows that Mr. Murali was present in that meeting, and had subscribed his signature; the minutes were fabricated and the signatures were forged, as Mr. Murali was present on duty from 7.00 A.M. to 11.00 PM on 02.10.2012; he could not have, therefore, attended the meeting of the petitioner union; similarly Mr. Balaji was on duty on 02.10.2012 in the first shift and, as such, could not have been present; the abstract of the muster roll of these two individuals were being placed on record to show that they were on duty on that day; it is clear that registration of the petitioner union was obtained by fraud; the 3rd respondent had issued notice to the petitioner indicating his intention to cancel registration of the Trade Union for the reason that the petitioner union had failed to show that it represented 10% of the workmen employed in the ....
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....f the petitioner union, as per their statement, the strength of the petitioner union would come down to 91 members, which is less than the minimum requisite strength of 100 members as stipulated under Section 9A of the Act; registration of the petitioner is, therefore, liable to be cancelled; the 3rd respondent had cancelled registration after recording the workers statements, and after personally interrogating and interacting with them; no provision of the Act has been violated; in the absence of documentary evidence, merely filing affidavits or self-serving statements would not suffice; the 103 affidavits filed by the petitioner union, alleged to have been given by the workers of the 4th respondent, have no evidentiary value till all the 103 individual workers are examined on oath before this Court to elicit the truth; the very fact that there are three more Unions, registered under the Act, in their establishment would show that the 4th respondent is not averse to the formation of a Union by their workers, and their affiliation to any of the Unions; the 4th respondent, which believes in democracy and values its workmen, has been in existence at Sadasivapet since 1990, and has si....
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.... silent regarding the procedure to be followed by the Registrar of Trade Unions in conducting an enquiry on a complaint seeking cancellation of registration. 13. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual and his personality shall be free from official interference except where a reasonable basis for intrusion exists. (Gobind v. State of M.P. (1975) 2 SCC 148). The principle underlying the structure of the rights guaranteed by Article 19 is a balancing of the need for individual liberty with the need for social control in order that the freedoms guaranteed to the individual subserve the larger needs -- moral, social, economic and political -- of the community and thus ensure orderly progress towards the goal indicated by the preamble. (Collector of Customs v. Nathella Sampathu Chetty (1962) 3 SCR 786). Article 19(1)(c) confers a right on all citizens to form associations or unions. Article 19(4) stipulates that nothing in clause (c) of Article 19(1) shall affect the operation of any existing law in so far as it imposes, in the interests of the sovereignty and integrity of India or public order or morality, reasonable....
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...., cannot be said to contain the quality of reasonableness. (Pathumma v. State of Kerala (1978) 2 SCC 1; Chintaman Rao v. State of Madhya Pradesh AIR 1951 SC 118; and State of Maharashtra v. Himmatbhai Narbheram Rao (1969) 2 SCR 392). In imposing restrictions on the fundamental rights, the State must adopt an objective standard. The restrictions must be in public interest, must bear a close nexus with the object in the interest of which they are imposed, and a just balance should be struck between the deprivation of the right and the danger or evil sought to be avoided. (Laxmi Khandsari v. State of U.P. AIR 1981 SC 873; P.P. Enterprises v. Union of India (1982) 2 SCC 33). Restrictions can by no means be said to be unreasonable, if it is only regulatory and not prohibitory. (P.P. Enterprises (1982) 2 SCC 33). 16. While interpreting the provisions of the Constitution, more particularly the fundamental rights in Part III thereof, the Court should adopt a construction which would give full play to the fundamental rights, and must resort to a strict construction of the restrictions imposed under clauses (2) to (6) of Article 19. A constitution is a legal instrument giving rise, amongst ....
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....ration, stipulates that the Registrar, on registering a Trade Union under Section 8, shall issue a certificate of registration in the prescribed form which shall be conclusive evidence that the Trade Union has been duly registered under the Act. In the case on hand, the petitioner Union was registered under Section 8 of the Act and a certificate of registration was issued in their favour by the Registrar, under Section 9 of the Act, on 18.10.2012. 18. Section 9A of the Act relates to the minimum requirement of membership of a Trade Union and, thereunder, a registered Trade Union of workmen shall at all times continue to have not less than ten per cent, or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 10 of the Act relates to cancellation of registration and, thereunder, 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; (b) if he is satisfied that the certificate has been obtained by fraud or mistake or that the....
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....he said Regulations enable him to call for such further particulars as he may deem necessary and to examine any officer of the Union. Except to stipulate in Regulation 9 that a show cause notice should be served on the Union in Form-D, both the State and the Central Regulations are silent on the manner in which the power of cancellation of registration, under clause (b) and [c] of Section 10 of the Act, should be exercised by the Registrar. 21. Should Section 10 of the Act be so interpreted as conferring an unguided discretion on the Registrar to cancel registration of a Trade Union at his subjective satisfaction? It is a cardinal rule of construction that if on one construction being given the statute will be rendered ultra vires the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction. (Union of India v. Elphinstone Spinning and Weaving Co. Ltd. AIR 2001 SC 724 : (2001) 4 SCC 139; Shell Co. of Australia v. Federal Commr. of Taxation 1931 AC 275 (Privy Council); Kedar Nath Singh v.....
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....spect to it, without being aware of alternatives. The expression "fraud" means an act of deliberate deception with the design of securing something by taking unfair advantage of another, to gain by another's loss. (S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1; State of A.P. v. T. Suryachandra Rao (2005 (5) ALD 118 (SC) : (2005) 6 SCC 149; and Behari Kunj Sahkari Avas Samiti v. State of U.P. (2008) 12 SCC 306). 'Fraud' is a false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon it to his prejudice and to the advantage of the representer. It is defined in Oxford Dictionary as, 'using of false representations to obtain an unjust advantage or to injure the rights or interests of another'. In Webster it is defined as, 'deception in order to gain by another's loss; craft; trickery; guile; any artifice or deception practiced to cheat, deceive, or circumvent another to his injury'. (State of Maharashtra v. Budhikota Subba Rao (Dr.) (1993) 2 SCC 567). In Black's Law Dictionary, 'fraud' is defined as an intentional perversion of truth for the purpose of inducing another in relianc....
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....lse, and which he must therefore be taken to have known was false, cannot be said to be honestly believed in. 'A consideration of the grounds of belief' is, no doubt, an important aid in ascertaining whether the belief was really entertained. A man's mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so. (Kerr on Fraud and Mistake; Ram Chandra Singh (2004) (6) ALD 31 (SC) : (2003) 8 SCC 319). Suppression of a material document would also amount to fraud. (Gowrishankar v. Joshi Amba Shankar Family Trust (1996) 3 SCC 310; S.P. Chengalvaraya Naidu (1994) 1 SCC 1; T. Suryachandra Rao (2005 (5) ALD 118 (SC) : (2005) 6 SCC 149; Behari Kunj Sahkari Avas Samiti (2008) 12 SCC 306 and Bhaurao Dagdu Paralkar v. State of Maharashtra (2005) 7 SCC 605). Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be whether the same was material for grant or denial of the relief. (S.J.S. Business Enterprises (P) Ltd. v. State of Bihar (2004) (5) ALD 84 (SC) : (2004) 7 SCC 166; Sardar Associates v. Punjab & Sind Bank (2009) 8 SCC 257; Divisional Forest Officer, Eluru. v.....
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....after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given if no further evidence were to be adduced by either side. (Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558). The degree of proof required in such cases is extremely high. An ambiguous statement cannot per se make the representer guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. (A.C. Ananthaswamy v. Boraiah (2004) 8 SCC 588). Fraud must be established beyond reasonable doubt. However suspicious may be the circumstances, however strange the coincidences, and however grave the doubt, suspicion alone can never take the place of proof. (Union of India v. Chaturbhai M. Patel & Co., (1976) 1 SCC 747; A.L.N. Narayanan Chettyar v. Official Assignee, High Court, Rangoon AIR 1941 P.C. 93). The basic principles of the rules of evidence require a party alleging fraud to give particulars of the fraud. In the absence of any such particulars being mentioned in the notice, attributing some overt act, no inference c....
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.... finding is recorded in the impugned order dated 13.06.2013, of the petitioner having committed fraud in the registration of the Union, the averments in the counter-affidavit of the 3rd respondent to the contrary cannot be accepted. As the certificate of registration of the petitioner was cancelled under Section 10(b) of the Act, it is necessary to examine whether any other ground in the first limb of the said provision is applicable. d). MEANING OF THE EXPRESSIONS - "CEASE TO EXIST" AND "CEASE TO HAVE THE REQUISITE NUMBER OF MEMBERS" 29. Section 10(b) of the Act is attracted if the Trade Union has ceased to exist. The New Oxford Dictionary of English language defines "exist" to mean "to have objective reality or being; and live, especially in adverse conditions" The word "exist" also means "subsist" or "survive". The word 'cease' has been defined in the Concise Oxford Dictionary of Current English, first edition to mean to stop, bring or come to an end. The word 'ceased', when used as a verb, means discontinue, quit or stop. A Union can, therefore, be said to have ceased to exist only after it has came into existence, and not before. Cessation of the existence of....
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....ded. (Anwar Hasan Khan v. Mohd. Shafi (2001) 8 SCC 540). While Section 10(b) would operate only if the Union no longer remains in existence, Section 10(c) would apply when the Union remains in existence but with a membership below the statutorily prescribed minimum. Merely because the membership of a Union falls below the minimum stipulated 100 workers, does not mean that the Union has ceased to exist attracting Section 10(b) of the Act. While Section 10(b) empowers a certificate of registration to be cancelled where such a certificate has been obtained by fraud or mistake which are pre-registration events, cessation of existence of a union under Section 10(b), and the Union ceasing to have the requisite number of members under Section 10(c), are post-registration events. Both Sections 9(A) and 10(c) were inserted by Act 31 of 2001 with effect from 09.01.2002. It is only for non-compliance with the conditions stipulated in Section 9A of the Act, which requires the registered Trade Union to continue at all times to have not less than 10% of the total strength or 100 workmen of the establishment as its members, can the Registrar exercise jurisdiction under Section 10(c) of the Act. ....
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....ecision of any one else. (Benarasi Das AIR 1957 PEPSU 5; Brajnadan Sharma v. State of Bihar AIR 1950 Pat 322 (FB); Liversidge v. Anderson 1942 AC 206). A law which makes vague provisions, the application of which depends entirely on the subjective determination of the executive, cannot be called a reasonable restriction on fundamental rights. (Benarasi Das AIR 1957 PEPSU 5). 34. Is Section 10 of the Act vague, and the power conferred on the Registrar thereunder unguided and unfettered? While the Act and the Regulations (both Central and State) do not prescribe the procedure to be followed by the Registrar for cancelling the registration of a Trade Union, the words "is satisfied", used both in Section 10(b) & [c] of the Act, affords sufficient guidance for the manner in which the power conferred by these clauses should be exercised. The words 'is satisfied' must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power. If the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power, the value of the intended restraint is in effect nothing. The words 'is satisfied' m....
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....15.11.2012, referred to the representation of 88 individual workers that their signatures were misrepresented and forged and some of them were forced to join the Union. Mere reference to the information received by him, in the notice given to the Union, would not suffice as the proviso to Section 10 obligates the Registrar to specify the grounds, on which he proposes to cancel the certificate of registration, in the notice issued by him to the Union. The petitioner was not even put on notice that its registration was proposed to be cancelled, in terms of Section 10(b) of the Act, for fraud or mistake or for the reason that it had ceased to exist. On the contrary, they were specifically informed that they had failed to show, in terms of Section 9A of the Act, that they had 10% of the workmen employed in the 4th respondent as its members after 18.10.2012 (i.e. subsequent to their registration as a Union on 18.10.2012, and not prior thereto). Exercise of jurisdiction to cancel registration, for failure to comply with the requirements of Section 9A of the Act, is referable only to Section 10(c) and not to Section 10(b) of the Act, as the former is attracted when the membership of a reg....
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....o have at least 10% of the workmen, or 100 workers, of the establishment as its members as a condition precedent for its registration as a Trade Union. The Registrar has, however, failed to take note of Section 4(2) of the Act which stipulates that, where an application has been made under sub-section (1) for the registration of a Trade Union, such application shall not be deemed to have become invalid merely by reason of the fact that, at any time after the date of the application but before registration of the Trade Union, some of the applicants, but not exceeding half of the total number of persons who made the application, have ceased to be the members of the Trade Union or have given notice in writing to the Registrar dissociating themselves from the application. The petitioner Union submitted an application for registration of their Union on 02.10.2012 (receipt of which was acknowledged by the office of the 3rd respondent on 16.10.2013), and the Registrar of Trade Unions issued a certificate of registration in their favour on 18.10.2012. Even if less than half the total number of persons, who made the application, had ceased to be the members of the Trade Union after the appl....
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....ess in action demand that an opportunity to be heard should be given to the person affected? Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both an administrative inquiry as well as a quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or, to put it negatively, to prevent miscarriage of justice it is difficult to see why it should be applicable to a quasi-judicial inquiry and not to an administrative inquiry. It must logically apply to both. Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences. (Maneka Gandhi AIR 1978 SC 597. The rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case and the framework of the law under which th....
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....ndemned as unfair and unjust. Absence of an express provision in the Act, which requires that the audi alteram partem rule be followed, is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle that, although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. (Maneka Gandhi AIR 1978 SC 597). Principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary. (Institute of Chartered Accountants of India v. L.K. Ratna AIR 1987 S.C. 71). Courts have generally read into the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made which would have adverse civil consequences for the parties affected. (C.B. Gautam v. Union of India JT 1992 (6) S.C. 678). 45. The duty to act judicially need not be super-added, but may be spelt out from the nature of the power conferred, the manner ....
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....action is taken cannot be countenanced by Courts. Procedural fairness is as much of importance as the substantive law itself. (SBI v. D.C. Aggarwal (1993) 1 SCC 13). The obligation which the law casts on the authority is that they should not act on information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. Rules of natural justice are violated, and the proceedings would stand vitiated, if the authority concerned acts upon information collected by it and the said information has not been disclosed to the party, against whom the material has been used. (State of Assam v. Mahendra Kumar Das (1970) 1 SCC 709; State of Mysore v. S.S. Makapur (1963) 2 SCR 943; Central Bank of India Ltd. v. Prakash Chand Jain (1969) 1 SCR 735; U.P. Warehousing Corpn. v. Chandra Kiran Tyagi (1969) 2 SCC 838 : AIR 1970 SC 1244). 47. In the case on hand, a complaint is said to have been received from 88 workmen contending that they were not the members of the petitioner-Union. The 4th respondent (employer) also submitted a representation enclosing the representations of the 88 workmen. Curiously an enquiry was caused, and t....
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....ce to R4 management but not to the petitioner. 49. On the other hand Sri M. Radhakrishna Murthy, Learned Counsel for the 4th respondent, would submit that the Registrar did not allow the representatives of Respondent No. 4 to be present while conducting the enquiry; if the petitioner union genuinely has the requisite minimum statutory strength of 100 workers it can seek fresh registration, as cancellation of registration is not a bar to apply for registration afresh; the very fact that the petitioner union has opted to litigate, instead of seeking fresh registration, shows that it does not continue to have the requisite physical membership of 100 workmen, and seeks to continue its existence relying on fabricated and false documents. 50. The petitioner Union, vide letter dated 10.01.2013 (i.e., the reply submitted by them to the notice issued under the proviso to Section 10 of the Act dated 15.11.2012), informed the Registrar that the Union had obtained membership of 319 workers as on date. Before satisfying himself whether or not the petitioner Union had, at any time after its registration, ceased to have the requisite number of members as stipulated under Section 9A of the Act, ....
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....M. and 1.00 P.M. to record their statements. It is disconcerting that the enquiry was caused by the Registrar of Trade Unions in the premises of the 4th respondent which has no say, under the Act and the Regulations, in either the registration of a Trade Union or in the cancellation of its registration. In the light of the allegations and counter allegations made by the petitioner Union and the 4th respondent against each other, alleging that the other had coerced the workmen either to join or to withdraw from the Union, an independent verification exercise, regarding the membership of the petitioner Union, ought to have been undertaken by the Registrar, and not in the office of either the petitioner Union or the 4th respondent. Nothing prevented the Registrar from causing an enquiry in his own office or to direct the petitioner Union to produce proof of their membership not having fallen below the statutorily prescribed minimum. c. THE REGISTRAR CANNOT SURRENDER THE DISCRETION CONFERRED UNDER THE ACT EITHER TO REGISTER OR TO CANCEL REGISTRATION OF THE UNION: 54. The satisfaction, under clauses (a) & (b) of Section 10 of the Act, is that of the Registrar of Trade Unions and not t....
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.... respondent of the manner in which his discretion, to cancel registration, should be guided by. Statutory discretion cannot be exercised by the authority, on whom power is conferred, at the dictates of his superiors for that would amount to surrender of discretion and abdication of duty. The principles of administrative law, such as surrender of discretion and abdication of duty vitiating the decision, would apply in the case of exercise of power conferred by a statute or rules made thereunder or instruments which are statutory in character. (Irrigation Development Employees Association v. Govt. of A.P. 2004 (2) ALD 599 (DB)). Exercise of statutory power partakes a quasi-judicial complexion. In the exercise of such power, the authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the authority's discretion that is exercised, but someone else's. If an authority "hands over its discretion to another body it acts ultra vires". Such interference by a person or body extraneous to the power is contrary to the nature of the power conferred on the authority. (State of ....
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....58. As a Union should have the minimum membership, stipulated in the first proviso to Section 4(1) of the Act, for it to be registered as a Trade Union, and must continue at all times after its registration to have such minimum membership in terms of Section 9A of the Act, the Registrar can arrive at the satisfaction, under Section 10(b) & (c) of the Act, only on receipt of information that the Trade Union had obtained the certificate of registration by fraud or mistake or that it has ceased to exist or that it no longer has the requisite number of members. In the absence of any statutory provision to the contrary the Registrar would be entitled, in the aforesaid contingencies, to initiate action for cancellation of registration on receipt of information, whatever be its source. While the workmen, who did not become members or do not wish to continue as members of the Trade Union, can make a complaint, such information can also be furnished by the employer on their being informed by the workmen that they were never, or have ceased to be, the members of the Union. The question which necessitates examination is whether the employer is entitled to be heard thereafter? a). IS THE MANA....
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....rt or inconvenience on a Trade Union being registered, or on the Registrar refusing to cancel the registration, that, by itself, would not bring them within the fold of "any person aggrieved" enabling them to prefer an appeal against such an order. 60. While there is no express provision either in the Act, or under the Regulations, conferring any right on the employer to be heard either at the time of registration of the Trade union or during the pendency of proceedings for cancellation of registration, the question which necessitates examination is whether principles of natural justice would require such an opportunity of hearing being afforded to the employer also. b). A FUNDAMENTAL RIGHT CAN BE CURTAILED ONLY BY LEGISLATION - PLENARY OR SUBORDINATE: 61. The only manner in which a violation of the fundamental right can be defended is by justifying the impugned action with reference to a valid law, i.e., be it a statute, a statutory rule or a statutory regulation. Executive or departmental instructions are not "law" which the State is entitled to make under the relevant clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several....
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.... 10 of the Act. VI. A REGISTERED TRADE UNION CANNOT CLAIM, AS OF RIGHT, TO BE RECOGNISED BY THE MANAGEMENT OF THE ESTABLISHMENT: 64. Sri K.S. Murthy, Learned Counsel for the petitioner, would submit that neither the Act nor the Rules require a Union to regularly/periodically report their membership strength to the Registrar; elections/verification for recognition will take care of this aspect; and registration of a Union merely facilitates entry into the electoral fray for recognition. 65. The distinction, between registration of a Trade Union and its recognition by the employer, must be borne in mind. While formation of a Union is a fundamental right, conferred on a citizen under Article 19(1)(c) of the Constitution, it does not bring within its ambit the right of a Union of workmen to be recognised by the employer. As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizens or claim freedom from restrictions to which the citizens composing it are subject. (Dharam Dutt (2004) 1 SCC 712; N.I. Tribunal AIR 1962 SC 171 : (1962) 3 SCR 269). The right guaranteed under Article 19(1)(c) extends to the formation of a Union ....
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....egarding general issues affecting all workmen/employees and a settlement, if any, arrived at as a result of such discussion/negotiations is binding on all workmen/employees. A non-recognized union cannot claim such a right, but it has the right to meet and discuss with the management/employer about the grievances of any individual member relating to his service conditions and to represent an individual member in a domestic or departmental inquiry, and in proceedings before the Conciliation Officer and adjudicator. The very fact that certain rights are vested in a non-recognized union shows that the Trade Unions Act, and the Regulations framed thereunder, acknowledge the existence of a non-recognised union. Such a union is not a superfluous entity, and has relevance in specific matters. (Chairman, SBI v. All Orissa State Bank Officers Assn. (2002) 5 SCC 669). Recognition by an employer is not implicit in the fundamental freedom to form a Union. Forming a Union is independent of, and different from, its recognition. Recognition of a Union confers rights, duties and obligations. Non-conferring of such rights, duties and obligations on a Union, other than the recognised union, does not....
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....he nature of information furnished to the Registrar of Trade Unions. Whether, or what, action should be initiated on receipt of such information is for the Registrar to decide. If the workmen were aggrieved by the failure of the Registrar to take appropriate action on their complaint, it was open to them to institute such legal proceedings as they deemed fit. It would be wholly inappropriate for this Court to adjudicate on the alleged failure of the Registrar, in a Writ Petition filed not by the complainant-workmen but by the Union questioning the validity of the order of the Registrar cancelling their certificate of registration. In any event these aspects cannot be gone into at the behest of the 4th respondent who, as stated hereinabove, has been assigned no role, under the Trade Unions Act and the Regulations made thereunder, either at the stage of registration of a Union or during the course of proceeding to cancel its certificate of Registration. Suffice it to note that, accepting these submissions urged on behalf of the 4th respondent, would also necessitate the impugned order dated 13.06.2013 being set aside. b). MAINTAINABILITY OF THE WRIT PETITION: 69. Sri M. Radhakrishn....
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....ights or where there has been violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (Whirlpool Corpn. v. Registrar of Trade Marks (1998) 8 SCC 1; Popcorn Entertainment v. City Industrial Development Corpn. (2007) 9 SCC 593; Mumtaz Post Graduate Degree College v. University of Lucknow (2009) 2 SCC 630; Guruvayoor Devaswom Managing Committee v. C.K. Rajan (2003) 7 SCC 546). 73. Where the order, complained against, is alleged to be illegal or invalid, as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 of the Constitution. Neither is the jurisdiction of the High Court ousted nor need such a petition be rejected on the ground that an appeal lies to a higher forum. (Philips Worker's Union v. Registrar of Trade Unions (1994) 3 LLJ 1159 Cal; Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147). The High Court may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. (Mumtaz Post Graduate Degree Colleg....