M.S. Sonak, J.
1. Rule. Rule is made returnable with the consent of all the parties forthwith.
2. The Petitioner, a Trade Union registered under the Trade Unions Act, 1926 (said Act) comprising about 117 Pilots of Jet Airways (India) Limited-Respondent No.5 challenges the order dated 15th April 2013 passed by the Industrial Tribunal (Appellate Authority under Section 11 of the said Act), except to the extent, it sets aside order dated 11th November 2009 passed by the Registrar of Trade Unions cancelling the Petitioner's registration. The order dated 15th March 2009 proceeds to remand the matter to the Registrar once again to determine whether registration had been validly granted and during pendency of such determination suspends the registration and restrains the Petitioner from raising any industrial disputes with Respondent No.5.
3. Before we advert to the facts and circumstances in which the aforesaid challenge arises, we must observe that this case is a classic illustration of how the authorities constituted under the said Act, who are enjoined to facilitate the registration of Trade Unions and safeguard the rights of its members, frustrate this purpose and create unwarranted hurdles to prevent a Pilot's Union from 'taking off' by 'grounding' them in the quagmire of litigation. This is notwithstanding the statement of the objects and reasons of the said Act, enacted way back in the year 1926 providing that a bona fide Trade Union which has provided adequate safeguards for the rights of its members be entitled to registration. This is notwithstanding that Article 19 (1) (c) of the Constitution of India guaranteeing fundamental right to every citizen to form an Association and Union, subject only to reasonable restrictions as contemplated by Article 19(4) of the Constitution of India.
4. In order to evaluate the challenges raised in this petition, reference to the factual settings, in which the same arise is necessary.
5. On 10th June 2009, about 117 Pilots employed with Respondent No.5 and amongst other matters resolved to form and register an Union under the said Act. In pursuance of the same, an application in the prescribed form came to be made on 13th July 2009 to the Deputy Registrar of Trade Unions (Respondent No.2) to register a trade Union in the name of âIndian National Aviators Guildâ. There is no dispute in the present case, that the term âRegistrarâ as defined under Section 2(f) of the said Act, means a Registrar of Trade Unions appointed by the appropriate Government under Section 3, and includes any Additional or Deputy Registrar of Trade Unions.
6. Respondent No.2 by letter dated 23rd July 2009 called for further particulars to be submitted by 2nd September 2009 for the purposes of registration of the Petitioner Union. It is the case of the Petitioner Union that since such particulars were readily available, Captain Sam Thomas, Joint Secretary and authorized representative of the Petitioner Union submitted the same in the office of Respondent No.2 on 24th July 2009 itself.
7. Upon scrutiny on the said date, one of the main objection raised to the registration was that a certain G.R. dated 22nd December 2005 barred the use of the word âIndian in the name of any Trade Unions seeking registration. Therefore, Captain Sam Thomas armed with Resolution No.8 dated 10th June 2009, which conferred upon Joint Secretary a specific power to amend the Constitution and other documents as may be necessary for the purposes of registration, deleted word âIndian appearing in the name of the Trade Union thereby restricting the name to âNational Aviators Guildâ. There is a record of this compliance in the notings made in the office of Respondent No.2.
8. The notings in the office of Respondent No.2, which now are a part of the record in this proceeding, also make a reference to some additional matters, styled on occasions as âdeficiencies or as 'objections' or as 'conditions' under item Nos.2,9,10,11,12 and 13 to which detailed reference shall be made in the course of this judgment. There is a further noting made on 24th July 2009 itself that âRegn. Cert. be issued to the Union (subject to No.2,9,10,11,12 and
13)â. The records/notings also bear out that registration certificate in terms of Section 9 of the said Act came to be issued to the Petitioner Union on 24th July 2009.
Section 9 of the said Act provides 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 this Act.
9. On 6th August 2009, the Registrar of Trade Union (Respondent No.1) issued a show cause notice as to why the registration be not cancelled as âmany shortcomings were noticed in the matter of grant of registration. The Petitioner furnished response dated 10th August 2009. Expressing dissatisfaction with such response, Respondent No.1 issued yet another show cause notice dated 15th September 2009, this time invoking the provisions of Section 10 of the said Act, which permits cancellation of registration interaliawhere the Registrar is satisfied that the certificate has been obtained by âfraud or mistake. The Petitioner submitted response on 29th September 2009 alongwith clarification letter dated 22.9.2009 from Captain D. Balaraman, General Secretary of the Petitioner Trade Union to the effect that all signatures in the Constitution are truly his and the charge of discrepancy in signatures being one of the proposed grounds for cancellation of registration be put to rest completely.
10. It appears that the Petitioner also preferred Writ Petition (L) No.2019 of 2009 questioning the show cause notices, which petition was however dismissed by this Court by order dated 5th October 2009 , on the ground that the same was premature since the matter was at the stage of issuance of show cause notice itself.
11. Respondent No.1, thereafter, by order dated 11th November 2009 ordered cancellation of registration of the Petitioner Trade Union upon grounds, which have been usefully enumerated by the Industrial Tribunal in the impugned order dated 15th April 2013. The same are as follows:
âi] That the union sought pre-ponement of the date of scrutiny of the application and this amounted to unseemly haste;
ii] The Dy. Registrar issued the registration certificate subject to compliance of certain objections raised by the dealing clerk to the complained within future;
iii] When the office of the Registrar required the name of the union to be modified by deleting the word âIndianâ the same was carried out by one of the authorised office bearers, i.e., the Jt. Secretary, whilst the General Secretary was also required to endorse the same;
iv] There was a discrepancy in the signature of captain Balaraman whose explanation owning up to all of them he did not accept.
v] The President Mr. Balaraman had authorized Mr. R.D. Jadhav to collect the Constitution copy from the office of the Registrar but the same did not contain the signature of Mr. R.D. Jadhav.â
12. The Petitioner thereupon preferred writ Petition No.309 of 2010 before this Court questioning the order dated 11th November 2009 made by Respondent No.1. However, this Hon'ble Court declined to entertain the said Petition by its order dated 18th February 2010 after noting that the Petitioner had an alternate remedy by way of approaching the Industrial Tribunal under Section 11 of the said Act and granted liberty to the Petitioner to avail such alternate remedy.
13. Upon the Petitioner preferring an appeal before the Industrial Tribunal within a period of 64 days from the date of order made by this Court in Writ Petition No.309 of 2010, the Industrial Tribunal vide orderdated 29th May 2010, declined to condone delay of about 90 days in preferring the appeal and on that basis refused to entertain the Petitioner's appeal.
14. The Petitioner was once again constrained to prefer Writ Petition No.4742 of 2010 in this Court, which petition was allowed by judgement and order dated 28th September 2010. The application seeking condonation of delay was allowed and directions issued to the Industrial Tribunal to dispose of the appeal expeditiously. In the judgment and order dated 28th September 2010, the Division Bench of this Court observed that :
âthe approach of the Industrial Court in rejecting the application for condonation of delay is grossly erroneous. When the Petitioner approached this Court in Writ Petition No.309 of 2010, the Petition came to be rejected solely on the ground that the Petitioner has an alternate statutory remedy of appeal under Section 11 of the Act and this order was passed on 18th February 2010. The Industrial Court has noted in the impugned order that the appeal was filed within 64 days from 18th February,2010 and even if it is presumed that Regulation 9 of the Bombay Rules was applicable in the instant case, the appeal was filed within 90 days. When this Court has rejected the Petition solely on the ground that a statutory remedy of appeal was available and such liberty was granted to the Petitioner, in all fairness, the Limitation period ought to have been counted by the Industrial Court from 18th February, 2010 unless this Court had directed to file the appeal within a specific period. Solely on this ground the Petitioner must succeed before us and we need not examine other grounds of challenged raised by Mr. Singhvi.â
15. Once decks were cleared for adjudication in appeal, the Tribunal by order dated 24th January 2011 rejected the application made by Respondent No.5 for intervention and by order dated 11th April 2011 stayed Registrars cancellation order dated 11th November 2009 pending adjudication in appeal. By consent, however, Writ Petition No.5406 of 2011 preferred by Respondent No.5 was disposed of by an order dated 21st December 2011 permitting Respondent No.5 to intervene in the pending appeal only for the limited purpose of refuting the allegations made by the Petitioner Union against them in the reply to show cause notice and memo of appeal. Directions also given to be issued to the Tribunal for expeditious disposal of the appeal.
16. Notwithstanding the limited intervention rights, Respondent No.5 in its reply purported to defend the Registrars cancellation order dated 11th November 2009 on merits. Therefore, the Tribunal by order dated 4th April 2012 directed Respondent No.5 to effect necessary amendments in its reply so as to bring some in accord with the directions issued by this Court in its order dated 21st December 2011 (supra). As the amended reply dated 5th May 2012 also suffered the same fate, the Petitioner moved for striking of defence and the Tribunal made an order dated 6th October 2012 directing that the amended reply be accepted only to the extent it meets allegations leveled by the Petitioner Union against Respondent no.5 and not any further.
17. The Tribunal, thereafter, consistent with the procedure prescribed under Section 11(3) of the said Act made orders with regard to production of documents and framing of issues. The Petitioner examined Mr. D.Balaraman (President), Captain Sam Thomas (Joint Secretary) and Mr. R.D.Jadhav, the person authorized to collect the certificate of registration from the office of Respondent No.2. The said witnesses were duly cross-examined on behalf of the Respondents. On behalf of Respondent Nos.1 and 2, Mr. Raju Jadhav dealing hand/clerk, who was present in their office on 24th July 2009 and had made some notings was cited as a witness. However, Mr. Raju Jadhav was not examined for reasons which are
18. Ultimately, the Tribunal passed an order dated 15th April 2013, operative portion of which reads thus :
â1] The appeal filed by the appellant is partly allowed.
2] The order passed by the Dy. Registrar dt.11th November, 2009 is hereby quashed and set aside only for the purpose to decide the points formulated by this court in earlier paras of this order i.e.
(i) Whether the compliance of condition Nos.2,9,11,12 and 13 are mandatory under the provisions of Sec.6 of the Trade Unions Act?
(ii) Whether the appellant union has complied all the formalities of meeting dt. 24th July, 2007 or 27th July, 2007 ?
(iii) Whether the persons who have signed the original copy of constitution of N.A.G. were present in Mumbai on 24th July, 2009 in the office of the Dy. Registrar of Trade Unions and whether they have signed the copy of the Constitution ?
3] Since this court is mostly in agreement with the observations of the Registrar, Trade Unions but only for clarification purpose the order of the Registrar is quashed and set aside. The rights of the appellant union as a trade union is suspended during the pendency of the application before the Registrar, Trade Unions and the appellant union is also directed not to raise any industrial matters pertaining to the Industrial Disputes Act, 1947 with the management of Jet Airways during the pendency of the matter before the Registrar, Trade Unions except in the pending matters, if any.
4] Parties are hereby directed to appear before the Registrar, Trade Unions and to cooperate him to decide the application as early as possible.
5] The R and P of this proceedings alongwith two registers i.e. Minute Book and Register of Membership and Subscription in 'J' form produced by the appellant before this court be sent to the office of the Registrar for verification of the same while deciding the application.
6] It is clarified that the order of the Registrar is not set aside on the ground of illegalities committed by the Registrar but only for the purpose mentioned in the earlier paras and operative order of this order.
7] Parties to bear their own costs.â
19. Mr. Singhvi, learned counsel appearing on behalf of the Petitioner Union made the following submissions:
(i) There is no power of remand vested in the Tribunal. Consequently, the order of remand is a nullity;
(ii) In any case, the facts and circumstances of the present case did not warrant any remand;
(iii) The Registrars cancellation order dated 11th November 2009, was based upon five grounds, which were extraneous, irrelevant and even bordering upon the absurd. The Tribunal failed to critically examine the validity or otherwise of such grounds. Therefore, there is clear failure to exercise jurisdiction or in any case exercise of jurisdiction with material irregularity;
(iv) In passing the order dated 15th April 2013, the Tribunal failed to pose to itself the correct questions, failed to apply the correct legal principles, ignored relevant materials on record and took into consideration irrelevant and extraneous material. The findings recorded by the Tribunal are vitiated by perversity. The documentary and oral evidence tendered by and on behalf of the Petitioner has not even been adverted to, much less appreciated. The Tribunal, without record of any reasons failed to draw adverse inference against Respondent Nos.1 and 2 for withholding testimony of Mr. Raju Jadhav. Instead, the Tribunal misdirected itself, both in law as well as in fact by remanding the matter to Respondent No.1 so as to enable Respondent No.1 to examine Raju Jadhav, a clerk in his office, notwithstanding the circumstance that Respondent No.1, in the present case, is to be both the complainant and the Judge. Again, the Tribunal also misdirected itself in law and failed to exercise jurisdiction vested in it by refusing to determine whether so called deficiencies related to any mandatory requirements or not. For all these reasons, Mr. Singhvi submitted that the order of the Tribunal, except to the extent it set aside the cancellation order dated 11th November 2009 is unsustainable and deserves to be set aside; and (v) Finally, Mr. Singhvi submitted that the Tribunal, having set aside the Registrars cancellation order dated 11th November 2009, had absolutely no jurisdiction or authority to direct the suspension of the Petitioners registration and to restrain the Petitioner from raising any industrial disputes with the management of Respondent No.5.
20. Perhaps in order not to precipitate matters, Mr. Singhvi learned counsel for the Petitioner upon taking instructions from the office bearers of the Petitioner present in the court, made a statement to the effect that the Petitioner does not press the contention that the cancellation order dated 11th November 2009 has been made âat the behest of Respondent No.5. In view of this statement, there was no occasion to hear Mr.Khambatta, learned senior counsel appearing for Respondent No.5. As noticed earlier, this Court in its order dated 21st December 2011 passed in Writ Petition No.5406 of 2011 had permitted Respondent No.5 to intervene in the appeal proceedings before the Tribunal âonly for the limited purpose of refuting the allegations made against them in the reply to the show cause notice and in the memo of appeal.
21. Mr.Saluja, learned AGP appearing for Respondent Nos.1 to 4 defended both, the Registrars cancellation order dated 11th November 2009 as well as the Tribunals order dated 15th April 2013. He submitted that there was no clarity on the issue whether the noted deficiencies were cleared by the Petitioners representative on 24th July 2009 or 27th July 2009. There is no provision in the said Act for issue of registration certificate âsubject to compliances. The registration was effected with undue haste and the Deputy Registrar committed a mistake in issuing registration certificate without satisfying himself as to whether or not the deficiencies as noted had been cleared. Learned AGP submitted that the Tribunal was well within its powers to order a remand and that no prejudice whatsoever can be said to have occasioned the Petitioner Union on account of such remand.
22. Learned AGP also submitted that there was no compliance with the mandatory requirements of Section 6 of the said Act, inasmuch as no provisions were made for the payment of minimum subscription by the members of the Petitioner Union as required by sub clause (ee) of Section 6 and the registers in the prescribed form evidencing such payment was not made available at the stage when registration certificate came to be issued. This according to the learned AGP is a fatality which goes to the root of the matter rendering the registration certificate totally infirm.
23. The last submission of the learned AGP need not detain us any further, for the following reasons:
(i) Such contention finds no reference either in the two show cause notices dated 6th August 2009 and 15th September 2009, or for that matter in the cancellation order dated 11th September 2009. This position was fairly conceded by the learned AGP. However, his contention was that this is a matter which goes to the root and therefore there can be no bar to raising the same in the present proceedings. We do not agree. It is by now a settled position in law that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds later brought out (MohinderSingh Gill v. The Chief Election Commissioner, New Delhi -(1978) 1 SCC 405).
(ii) The proviso to Section 10 of the said Act provides for not less than two months' previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate shall be given by the Registrar to the Trade Union before the certificate is withdrawn or cancelled. This is a statutory recognition of the principles of natural justice and fair play before drastic action of cancellation of registration is effected.
To permit raising of such a ground, which found no place in two show cause notices, would virtually permit Respondent Nos.1 and 2 to act in breach of the proviso to Section 10 of the said Act and consequently, in breach of principles of natural justice and fair play; and
(iii) In any case, there is material available on record, in the form of clause IV A of the Rules and Regulation of the Petitioner Union as well as extracts from registers maintained in the prescribed form, from which it is clear that this requirement had been duly complied with by the Petitioner Union. Accordingly, we find no substance in the aforesaid later submission of the learned AGP.
24. Mr. Singhvi submitted that the Tribunal as an appellate authority under Section 11 of the said Act is a âcreature of statute and its powers are restricted to those specifically conferred by the statute of its creation. Section 11(3) requires the appellate authority, so far as may be, follow the same procedure and have the same powers as it follows and has when trying a suit under the Code of Civil Procedure, 1908. In trying a suit, Mr. Singhvi submits that a tribunal virtually exercises original jurisdiction and accordingly powers of remand stand excluded by necessary implication. The remand order is, therefore, ultra-vires, in excess of jurisdiction, null and void.
25. In these proceedings, we do not deem it necessary to decide this larger issue. This is because we are of the opinion that even if power of remand is conceded in favour of the Tribunal, in the facts and circumstances of the present case, there was absolutely no warrant for the exercise of such powers.
26. The entire material in form of documentary as well as oral evidence was available before the Tribunal. The issue as to whether or not the deficiencies as alleged related to mandatory requirement as prescribed by the said Act or not, is an issue of law, for which there was absolutely no necessity to remand the matter to Respondent No.1. Mr. Raju Jadhav, the clerk in the office of Respondent Nos.1 and 2 had in fact been cited as a witness. For reasons which are not forthcoming, Respondent Nos.1 and 2 failed to examine said Mr. Raju Jadhav. The Tribunal ought to have drawn an adverse inference against Respondent Nos.1 and 2. Instead, the Tribunal has chosen to remand the matter to Respondent No.1, with a view to enable the examination of Mr. Raju Jadhav. In the facts of the present case, this was totally improper. There was absolutely no warrant for exercise of powers of remand, assuming that the Tribunal had such powers in the first place.
27. The Tribunal, as appellate authority was required to focus upon the five grounds contained in Registrars cancellation order dated 11th November 2009 and determine whether such grounds stand the scrutiny of facts and the law. The Tribunal, apart from enumerating the five grounds in paragraph â2 of its order, has failed to determine the validity thereof, which is precisely the exercise expected of an appellate authority.
28. The first ground in the cancellation order dated 11th November 2009 is that the Union sought pre-ponement of the date of scrutiny of the application and this amounted to unseemly haste. In our opinion, this is hardly a reason to cancel the registration. This is certainly not a ground contemplated by Section 10 for the purposes of exercise of drastic powers conferred upon the Registrar. This certainly does not constitute either a fraud or a mistake on the part of the Petitioner Union or its members. Accordingly, first ground is clearly irrelevant, extraneous and could not have formed the basis for issuance of cancellation order dated 11th November 2009.
29. The second ground is that the Deputy Registrar issued the registration certificate subject to certain compliances. The submission of the learned AGP was that a registration certificate is required to be issued only after the Registrar is satisfied that the Trade Union has complied with all the requirements of the said Act in regard to registration and the said Act does not contemplate to issue of registration certificate âsubject to compliance. The learned AGP submitted that from notings, it appears the last compliance with regard to submission of identity card of the Treasurer of the Petitioner Union was only on 27th July 2009 and therefore the issue of registration certificate on 24th July2009, is clearly vulnerable.
30. We are unable to accept the submission of learned AGP for several reasons.
31. In the first place, the said Act does not mandate submission of identity card of the office bearers of the Union or of the members subscribing their names to the rules of the Union. This does not mean that in a given case the Registrar lacks the power to require production of such identity card, possibly in order to satisfy himself as to the identity of an office bearer or subscriber. But this is a far cry from elevating the requirement of furnishing such further particulars to the status of a mandatory requirement. Besides, from the notings produced on record, there is no reason to reject the Petitioners submission that even this requirement was complied with on 24th July 2009 and that noting to this effect may have been made on 27th July 2009 by the dealing hand because 25th and 26th July 2009 were Saturday and Sunday. In fact, Captain Sam Thomas in his deposition before the Tribunal has clearly stated that further particulars, information and conditions were furnished/complied with on 24th July 2009 itself. The testimony of Captain Sam Thomas has not been shaken in cross-examination. Despite citing Mr. Raju Jadhav, dealing hand as a witness, Respondent Nos.1 and 2 failed to examine him. In such circumstances, adverse inference ought to have been drawn particularly when Respondent Nos.1 and 2 seek to inflict and sustain drastic action of cancellation of registration.
32. Secondly, it is clear that the requirement to produce identity card, at the highest was in pursuance of powers conferred upon the Registrar under Section 7(1) of the said Act. The provisions of Section 7(1) of the said Act are enabling provisions. They empower Registrar to call for further information for the purpose of satisfying himself that any application complies with the provisions of Section 5, or that the Trade Union is entitled to registration under Section 6 and further provides that the Registrar 'may refuse to register of the Trade Union until such information is supplied'.
33. From the italicized phrase as aforesaid, and on account of employ of the word âmay by the legislature, it is clear that there is no mandate cast upon the Registrar to refuse registration in every case until such information as may have been called for is supplied. At the highest, a discretion is conferred upon the Registrar to refuse registration until such information is supplied. Assuming therefore, that the learned AGP is right in his submission, that there was marginal delay in submitting additional information, that by itself does not lead to the sequiter that the Registrar was bound to refuse registration until the information had been supplied.
34. Thirdly, there is intrinsic evidence available in the said Act itself, which assists in determining which of the requirements can be regarded as mandatory for the purposes of registration of a Trade Union. For example, the requirements set out in two provisos to Section 4(1), which employ the phrase 'no Trade Union of workmen shall be registered unless................' can be regarded as mandatory. Similarly, Section 6 of the said Act reads 'A Trade Union shall not be entitled to registration under this Act, unless the executive thereof.........'. The requirements contained in Section 6 can also be regarded as mandatory requirements. Normally, when the legislature employs words/phrases in a negative form as aforesaid, the anxiety of the legislature to insist upon strict compliance can be presumed. In contrast as pointed out earlier, phraseology employed in Section 7(1) of the said Act is quite different. The provision merely enables or empowers the Registrar to call for further information and provides that the Registrar âmay refuse to register of the Trade Union until such information is supplied.
35. Fourthly, from the perusal of the record, we find that in the present case registration certificate was not issued 'subject to compliances'. The notings, at the highest indicate that a suggestion was put up by the dealing hand that registration certificate be issued subject to Nos.2,9,10,11,12 and 13. However, the actual registration certificate has been issued in prescribed form 'C' on 24th July 2009. As pointed out earlier, Section 9 of the said Act provides that a certificate of registration issued in the prescribed form shall be conclusive evidence that the Trade Union has been duly registered under the said Act.
36. In the aforesaid circumstances, we find no merit in the second ground of cancellation of registration. However, since much has been made about compliance with objection Nos.2,9,10,11,12 and 13 and even the Tribunals order under challenge remands the matters to the Registrar with reference to some of the said objections, reference to the same may be necessary:
(a) Objection Nos.2 and 9 related to the use of word âIndian in the name of the Petitioner Union prior to its registration. In fact, objection Nos.2 and 9, when construed in proper perspective are not objections, but rather notings of compliance. There is no dispute that Captain Sam Thomas, on the basis of Resolution No.8 dated 10th June 2009, effected necessary change in the name and in the other documents on 24th July 2009, itself. This is deposed by Captain Sam Thomas before the Tribunal and corroborated by the documentary evidence on record. In such circumstances, there remained nothing further to be complied with in so far as objection Nos. 2 and 9 are concerned.
(b) Objection No.10 relates to preparation of register in form âJ. The material on record establishes that not only such register was in existence, but further the same was also as per the prescribed form âJ. The deposition of the Petitioner witnesses, as also the documentary evidence on record bear out compliance on 24th July 2009 itself. Significantly, even the Tribunal in its remand order dated 15th April 2013 has not directed any verification regards objection No.10, possibly being satisfied regards its compliance.
(c) Objection No.11 states that the signatures of all the office bearers do not appear in Constitution submitted by the Union. The basis for such an objection is by no means clear. In any case, the noting on 24th July 2009 itself makes it clear that the Petitioner Union has reported compliance of objection/deficiencies at serial Nos.10,11,12 and 13, except that the Petitioner Union had not submitted identity card of the Treasurer as per objection No.12. The Constitution, which is part of the record contains signatures of all the office bearers. The deposition of the Petitioner's witnesses and documentary evidence on record bears out this circumstance.
(d) Objection No.12, as seen above, points out that the Petitioner Union had not submitted identity card of its office bearer. Such identity cards, except that of the Treasurer is noted to have been submitted on 24th July 2009. Such requirement is by no means a mandatory requirement. The Petitioner's witnesses have deposed that even this requirement was complied with on 24th July 2009 itself.
However, assuming that there is marginal delay in submission of identity card of the Treasurer, the same in no manner renders registration certificate issued infirm or invalid.
(e) Objection No.13 relates to information regards opening of bank account. Again, this is no requirement under Sections 4,5 and 6 of the said Act. Objection No.13, in fact records, the explanation of the Petitioner Union that upon receipt of registration certificate, they shall furnish information regards Unions bank account within 15 days. It is the case of the Petitioner that registration certificate is necessary for the purpose of opening a bank account in the name of Trade Union.
37. The third ground in the cancellation order relates to deletion of the word âIndian by Captain Sam Thomas, Joint Secretary of the Petitioner Union from the rules of the Petitioner Union and other documents at the time of registration. The learned AGP submitted that Resolution No.8 dated 10th June 2009 conferred powers to amend upon the General Secretary and the Joint Secretary. In the present case, the amendment was effected only by the Joint Secretary and therefore the same was ultra-vires powers conferred upon the said Joint Secretary. In short, learned AGP defended the reasoning contained Registrars cancellation order dated 11th November 2009.
38. In our judgment, such reasoning apart from being hyper-technical is fallacious as well. In the first place, Resolutions passed by the Union are not required to be interpreted like statutes. Secondly, the Resolution in question was only enabling and therefore the Registrar ought to have read and interpreted the same contextually. Thirdly, this was not a case where the Union itself or for that matter some of its members had questioned the acts of the Joint Secretary as being ultra-vires the powers conferred by the Resolution. The amendments effected by the Joint Secretary were not prejudicial to the interest of the Union or its members. Fifthly, upon a plain and contextual reading of the Resolution, it is apparent that power/authority came to be conferred upon the General Secretary and in addition to the General Secretary, the Joint Secretary. This is a reasonable manner of reading and interpreting Resolution. In the context of a Constitution of a Trade Union, it has been held that the same is not required to be construed as a statute. It deserves to be construed broadly and liberally. The Act and the constitution of the trade union, unless clearly stipulate otherwise, deserves to be interpreted so as to advance the interest of the trade union and its members. The membership of a trade union is a valuable right, which can be taken away only within the clear parameters of the Act and the constitution of the trade union (BokajanCement Corporation Employees' Union V. Cement Corporation of India Ltd. (2004)1 SCC 142). Even whilst interpreting statute, it is settled position in law, that where a context requires âandâ may be read as âorâ and vice-versa (ShyamabaiV. Madan Mohan, 2010 (2) Mah. L.J. 476 (FB.) and Gangaram vs. Digamber, 1991 Mah.L.J. 1204). In such circumstances, therefore, to fault the amendment effected by Capt. Sam Thomas, Joint Secretary of the Petitioner was patently unreasonable exercise, particularly, considering the drastic consequences involved in cancellation of registration.
39. The fourth and fifth grounds for cancellation of registration as contained in the cancellation order dated 11th November 2009, in our opinion, border upon âabsurdity. The fourth ground for cancellation is that there is a âdiscrepancy in the signature of Captain Balaraman, President of the Petitioner Union, upon some documents furnished at the time of registration. The Petitioner Union upon submitting alongwith its reply to show cause notice, a letter dated 22nd April 2009 written by Captain Balaraman, unequivocally affirming that all the signatures under the name of Captain D.Balaraman are truly his and they have been signed by him in person, the charge of âdiscrepancy should have been given quietus, if not, a decent burial. To persist with this charge notwithstanding, and to make the same a basis for exercise of drastic power of cancellation, amounts to virtually an affront to the fundamental right of the Petitioner's members to form an Union.
40. Same is the position with regards to the fifth ground, which is to say least quite unfortunate. The charge is that the President of the Petitioner Union Captain D. Balaraman whilst authorizing Mr. R.D. Jadhav to collect the copy of the Constitution from the office of the Registrar did not take care to have the said Mr. R.D. Jadhav to put his signature upon the authority letter for the purposes of identification. Assuming all this to be factually correct, we are at complete loss to comprehend as to how this can be basis for cancellation of registration certificate by invoking the drastic powers contained in Section 10 of the said Act.
41. Thus it is clear that the registrar's cancellation order dated 11th November 2009 has virtually no legs to stand on. The Tribunal ought to have struck the same down, rather than be âmostly in agreement with the observations of the Registrarâ and remand the matter to the Registrar for any further prolongation of the Petitioner's ordeal.
42. There is yet another ground, which renders the Tribunal's reasoning vulnerable. There are no allegations in the present case of fraud against the Petitioner. The allegations at the highest relate to 'mistake'. From the material on record, we see no 'mistake' attributable to the Petitioner. Even the Tribunal in paragraph '17' of its order notes that âthere is a mistake on the part of Dy. Registrar of Trade Union while issuing the registration certificate in favour of the appellant union.â We see no mistake on the part of the Deputy. Registrar in issuing the registration certificate to the Petitioner on 24th July 2009 either. However, if the noting/finding of the Tribunal is to be accepted, then in that eventuality there was clearly no warrant for the exercise of powers under Section 10 of the said Act. Section 10(b) empowers Registrar to cancel registration upon being satisfied that certificate has been obtained by 'fraud or mistake'. Such fraud or mistake has to be attributable to the person/union applying for registration and not some mistake or incorrect assessment on the part of the Registrar himself (R.G.D'souzavs. Poona Employees Union, Yerwada and ors., - 2009(4) Mh.L.J.95 and The Registrar of Trade Unions, Mysore vs. M.Mariswamy (1974) Lab I.C., 695 (V 7 C 153).
43. Mr. Singhvi is finally right in his submission that the Tribunal after having set aside the cancellation order dated 11th November 2009 exceeded its jurisdiction in suspending the Petitioners registration and restraining the Petitioner Union from raising any industrial dispute with the management of Respondent No.5. It is pertinent to mention that the Tribunal by its order dated 11th April 2011 had granted stay upon the cancellation order dated 11th November 2009, pending the decision of the appeal. The appeal having been partly allowed, the cancellation order dated 11th November 2009, having been set aside, we are unable to fathom, by resort to which jurisdiction the Tribunal could have suspended the registration of the Petitioner Union and restrained the Petitioner Union from raising any industrial dispute with the management of Respondent No.5. The legislature does not even appear to have vested such a power in the Registrar pending proceedings for cancellation of registration certificate. In fact, the proviso to Section 10 of the said Act mandates that no less than two months previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate shall be given by the Registrar to the Trade Union before the Certificate is withdrawn or cancelled otherwise than on the application of the Trade Union. In these circumstances, we are of the opinion that the directions to suspend registration and restraint from raising of an industrial disputes are patently in excess of jurisdiction, null and void.
44. This Court has consistently ruled that the power to cancel registration of the Trade Union is a drastic power and requirements of Section 10 have to be strictly complied with. Doctrine of proportionality must also inhere the exercise of such powers (SaraswatCooperative Bank Employees' Union v. State of Maharashtra and ors.,- 1996 (2) Mh.L.J.10, R.G.D'souza v. Poona Employees Unions, Yerwada â 2009(4) Mh.L.J.95, Association of Engineering Workers, Ghatkopar (E), Bombay v. Dockyard Labour Union, Mazgaon, Bombay and ors -1991 Mh.L.J.1278, Tata Memorial Hospital Workers Union v. M.S.Wani â (1998) I CLR 711 and Tata Electric Companies Officer Guild v. Registrar of Trade Unions â (1994) I CLR 242). In the circumstances, we satisfied that the Registrar's cancellation order dated 11th November 2009 was clearly unsustainable. We, accordingly, uphold the Tribunal's order dated 15th April, 2013 to the extent it set aside the Registrar's cancellation order dated 11th November 2009 though for the reasons other than those recorded by the Tribunal.
45. The petition, accordingly, succeeds and rule is made absolute in terms of prayer clause âa. The order of the Tribunal dated 15th April, 2013, to the extent it sets aside the Registrars cancellation order dated 11th November 2009 is maintained, though for the reasons which we have indicated and the rest of the order dated 15th April 2013 is hereby quashed and set aside.
46. Ordinarily, we would have been justified in imposing costs upon Respondent Nos.1 and 2. However, in the fond hope that the authorities constituted under the Trade Unions Act 1926, discharge their statutory duties keeping in mind âraison detre for enactment of the said Act and the constitutional provisions contained in Article 19(1)(c) of the Constitution of India, we refrain from doing so.