Rashtriya Colliery Mazdoor Congres Vs Bhagwat Prasad Dubey

1 - Rashtriya Colliery Mazdoor Congres (Regd. No. 22 of 1948), A Trade Union Having Its Head Quarter At B/21-22, Indira Vihar, Seepat Road, Bilaspur, Chhattisgarh. Through Its General Secretary Dr. Deepak Jaiswal S/o Late Shri Ramswarup Jaiswal Aged About 57 Years, R/o Vidya Nagar, In front of Apollo Pharmacy, Bilaspur, Police Station Tarbahar, District Bilaspur, Chhattisgarh.

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2 - Dr. Deepak Jaiswal S/o Late Shri Ramswarup Jaiswal Aged About 57 Years General Secretary of Rashtriya Colliery Mazdoor Congress, R/o Vidya Nagar, In front of Apollo Pharmacy, Bilaspur, Police Station- Tarbahar, District Bilaspur, Chhattisgarh. .........Res. No. 2

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... Petitioners

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versus

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1 - Bhagwat Prasad Dubey S/o Shri Ram Kumar Dubey Aged About 73 Years R/o Ward No. 15, Chirmiri, General Secretary Rashtriya Colliery Workers Federation, Federation Office, Chirmiri, Post Office- Chirmiri, Korea, Chhattisgarh. ..........As Claimed Before The Court Below........Appellant,

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2 - The Registrar Trade Union Chhattisgarh, Office Of Labour Commissioner, Block-3, 2nd Floor, Indrawati Bhawan, New Raipur, Chhattisgarh. ..........Res. No. 1

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..Respondents

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For Petitioners	: Shri Rishi Rahul Soni, Advocate
For Respondents No.1	: Shri Sanjay Patel, Advocate
For Respondents No. 2	: Ms. Pragya Pandey, Dy. G.A.

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Single Bench: Hon’ble Shri Justice Sanjay S.Agrawal

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CAV Order

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1. By virtue of this petition, the petitioners are questioning the legality and propriety of the order dated 18.01.2019, whereby, the learned Member Judge, State Industrial Court, Bench at Bilaspur (CG) in Case No.02/ITU Act/I/2018, has partly allowed the appeal (Annexure P/15) preferred by Respondent No.1- Bhagwat Prasad Dubey under Section 11(aa) of the Trade Unions Act, 1926 (hereinafter referred to as “the Act, 1926”) by setting aside the order dated 24.03.2018 (Annexure P-14) passed by Respondent No.2- The Registrar, Trade Union, Chhattisgarh, Raipur, by remanding the matter to the said authority for adjudication of the case afresh.

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2. Briefly stated the facts of the case are that the two registered Trade Unions known as ‘Rashtriya Colliery Workers Federation’ (for short “RCWF”) and ‘Rashtriya Koyala Khadan Mazdoor Sangh’ (for short “RKKMS”) through its Managing Directors, have submitted an application (Annexure P/2) on 27.08.2003 before the Registrar, Trade Union, Chhattisgarh, Raipur as per the provisions prescribed under Sections 24 and 25 of the Act, 1926 for amalgamation of the said Unions to that of ‘Rashtriya Colliery Mazdoor Congress’ (for short “RCMC”). The Registrar, Trade Union, after considering the said

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application, has allowed the same and the name of the Union, Registered as “Rashtriya Colliery Worker Federation” has been changed as “Rashtriya Colliery Mazdoor Congress” vide its order dated 29.08.2003 (Annexure P/3).

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3. The aforesaid order as passed by the said authority was questioned by Respondent No.1- Bhagwat Prasad Dubey and RCWF before this Court, which was Registered as WP.No.3393/2005 (Annexure P/4) and vide order dated 12.10.2017 (Annexure P/5), a direction was issued for re-consideration of the said order dated 29.08.2003 after affording opportunity to all the affected parties. In pursuance to the directions as was issued by this Court on 12.10.2017 (Annexure P/5), the Registrar, Trade Union, vide its order (Annexure P/14) dated 24.03.2018, has rejected the said application for reconsideration of the said order dated 29.08.2003, whereby, a certificate of registration was granted in the name of the petitioners’ Union, namely, RCMC.

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4. The aforesaid order (Annexure P/14) passed by the Registrar, Trade Union, refusing to cancel the certificate of registration dated 29.08.2003, was questioned in appeal by Respondent No.1 as per the provisions prescribed under Section 11 (aa) of the Act, 1926 before the Member Judge, State Industrial Court, Bench at Bilaspur, and vide order dated 03.05.2018 (Annexure P/16), it was admitted for its hearing and notice was directed to be issued, and after receiving the said

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notice, the alleged order, passed on 03.05.2018, was questioned by the petitioners’ Union- RCMC before this Court regarding the maintainability of the said appeal, where it was registered as Writ Petition (C) No.1640/2018 and vide order dated 19.06.2018 (Annexure P/18), a liberty was granted to the petitioners’ Union to make an application before the said Court regarding the maintainability of the said appeal, which was preferred by Respondent No.1 before the Member Judge, State Industrial Court, Bench at Bilaspur.

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5. The aforesaid appeal, preferred by Respondent No.1, was allowed in part by the Industrial Court vide its order impugned dated 18.01.2017 and the matter was remanded to the Registrar, Trade Union, while setting aside the order dated 24.03.2018 (Annexure P/14) passed by the said authority, i.e. the Registrar, Trade Union, who had refused to cancel the certificate of registration of the petitioners’ Union, granted on 29.08.2003, with a direction to decide the same afresh.

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6. Learned counsel appearing for the petitioners while referring to the provisions prescribed under Section 11 of the Act, 1926, submits that since the Registrar, Trade Union has refused to cancel the certificate of registration passed on 29.08.2003, in the name of petitioners’ Union, therefore, the appeal preferred against the said order (Annexure P/14) was not maintainable before the State Industrial Court, Bench at Bilaspur, and the order impugned, therefore, deserves to be set aside.

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7. On the other hand, learned counsel appearing for the Respondent No.1 has supported the order impugned as passed by the Court below.

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8. The main question, which arises for determination in this petition, is as to whether, the appeal preferred by Respondent No.1 under Section 11 (aa) of the Act, 1926, questioning the order dated 24.03.2018 (Annexure P/14) passed by the Registrar, Trade Union, refusing to cancel the certificate of registration, made on 29.08.2003, could be held to be maintainable or not ?

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9. The provisions contained under Section 11 of the Act, 1926 is relevant for deciding the issue involved herein, which reads as under :-

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“11 . Appeal-(1) Any person aggrieved by any refusal of the Registrar to register a Trade Union or by the withdrawal or cancellation of a certificate of registration may, within such period as may be prescribed, appeal --

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(a) where the head office of the Trade Union is situated within the limits of a Presidency town to the High Court, or

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[(aa) where the head office is situated in an area, falling within the jurisdiction of a Labour Court or an Industrial Tribunal, to that Court or Tribunal, as the case may be] ;

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(b) where the head office is situated in any area, to such Court, not inferior to the Court of an additional or assistant Judge of a principal Civil Court of original jurisdiction, as the (appropriate Government) may appoint in this behalf for that area.

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(2) The Appellate Court may dismiss the appeal, or pass an order directing the Registrar to register the Union and to issue a certificate of registration under the provisions of Section 9 or setting aside the order or withdrawal or cancellation of the certificate, as the case may be, and the Registrar shall comply with such order.

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(3) For the purpose of an appeal under sub-section (1) an appellate Court shall, 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

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Code of Civil Procedure, 1908 (5 of 1908), and may direct by whom the whole or any part of the costs of the appeal shall be paid, and such costs shall be recovered as if they had been awarded in a suit under the said Code.

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(4) In the event of the dismissal of an appeal by any Court appointed under clause (b) of sub-section (1) the person aggrieved shall have a right of appeal to the High Court, and the High Court shall, for the purpose of such appeal, have all the powers of an appellate Court under sub-sections (2) and (3), and the provisions of those sub-sections shall apply accordingly.

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10. A bare perusal of the aforesaid provision would show that an appeal would lie against the following orders of the Registrar :-

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(i) Refusal to register a Trade Union as provided under Sections 7 and 8 of the Act, 1926 ;

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(ii) Withdrawal or cancellation of a certificate of registration passed under Section 10 of the Act, 1926.

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11. The appeal under the aforesaid provision would lie only against the aforesaid orders, as the expression “withdrawal or cancellation of a certificate of registration” used in the said provision is significant to ascertain the issue involved and, a bare perusal of the said expression would show that an appeal would lie only if the orders as mentioned herein-above, are passed.

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12. In the instant matter, since the application seeking cancellation of the certificate of registration made on 29.08.2003 has been rejected by the Registrar, Trade Union, issued in the name of the petitioners’ Union, therefore, in view of the said expression made under Section 11 of the Act, 1926, the appeal preferred by Respondent No.1 before the Industrial Court, cannot be held to be sustainable in the eye of law,

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as the appeal under Section 11 of the Act 1926, as observed hereinabove, would be maintainable only against the order of refusal of the registration of the Trade Union or against the order of withdrawal or cancellation of the certificate of registration as mentioned in the said provision.

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13. In view of the aforesaid background, although, the direction was issued by the Industrial Court vide its order impugned for reconsideration of the certificate of registration, made on 29.08.2003, but, since the said application was found to be rejected by the Registrar, Trade Union vide its order dated 24.03.2018, (Annexure P/14), therefore, the Registrar, Trade Union, who has neither refused the registration of the petitioners’ Trade Union, nor the registration certificate issued in its favour was either found to be cancelled or withdrawn under Section 10 of the Act, 1926, therefore, the appeal preferred under Section 11 of the Act, 1926, cannot be held to be sustainable in the eye of law. In such circumstances, the order as passed by the Member Judge, State Industrial Court, Bench at Bilaspur, setting aside the order dated 24.03.2018 passed by the Registrar, Trade Union, while remanding the matter to the said authority, with a direction for its fresh decision regarding reconsideration of the certificate of registration made on 29.08.2003, would, therefore, be without jurisdiction attracting the principles of c oram non judice.

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14. Consequently, the petition is allowed and the order impugned dated 18.01.2019 passed by the Member Judge, State Industrial Court, Bench at Bilaspur in case No.02/ITU Act/I/2018, is hereby quashed.

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No order as to cost(s).

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Sd/-

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(Sanjay S. Agrawal) JUDGE

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sunita

Rashtriya Colliery Mazdoor Congres v. Bhagwat Prasad Dubey

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Rashtriya Colliery Mazdoor Congres v. Bhagwat Prasad Dubey

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