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Judgment
B.Pugalendhi, J
The petitioner management has preferred this writ petition as against the order passed by the 1st respondent Registrar of Trade Union, rejecting the application of this petitioner management filed under Section 10(c)of the Trade Unions Act.
2.The petitioner management has filed the above application before the 1st respondent that the 2nd respondent union does not have the requisite minimum number of members as required under Section 9-A of the Trade Unions Act and therefore requested the 1st respondent to conduct an enquiry and to take appropriate action by cancelling the registration of the 2nd respondent union as per Section 10(c) of the Trade Unions Act. The 1st respondent by the impugned order dated 15.07.2024 held that the management is not having any right to seek for cancellation of the 2nd respondent union. The 1st respondent has taken a decision in the impugned proceedings by referring to the judgment of the Gujarat High Court in Videocon Industries Ltd Vs Deputy Registrar and 2 others, in Letters Patent Appeal No.1821 of 2017, dated 04.07.2022 and in R.G.D' Souza Vs Poona Employees Union and Anr reported in AIR 2015 SC 954.
3.The learned counsel for the petitioner submits that the 2nd respondent trade union is having two members as on date. As per Section 9-A of the Trade Unions Act (in short 'the Act'), 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 minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. In the petitioner factory, currently there are 546 employees and any registered trade union connected to the petitioner should have at least 48 of its employees as members of the union as per Section 9-A of the Act and the 2nd respondent union does not have the requisite minimum number of members. Therefore, the management submitted a request to the 1st respondent on 06.11.2020 to conduct due inquiry and examine the documents pertaining to the 2nd respondent and take action against the said union as per Section 10(c) of the Act. As per Section 10(c) of the Act, the 1st respondent can cancel the registration, if he is satisfied that there is no requisite number of members as per Section 9-A of the Act and to cancel the registration under this provision, it does not require any application from the trade union in this regard.
4.He further submits that the decisions referred to by the 1st respondent in the impugned order are not relevant to the present case as both those cases are pertaining to cancellation of registration of trade unions under Section 10(a) of the Act and not under Section 10(c) of the Act. The Registrar of Trade Unions can suo motu take action for cancellation of the registration of the trade union once it is brought to his notice about falling short of membership of a trade union prescribed under Section 9A r/w Section 10(c) of the Act.
5.The learned counsel for the 2nd respondent submits that the power to cancel registration under Section 10(c) of the Trade Unions Act 1926 is provided to the Registrar and it does not vest any right with the petitioner to file an application seeking the cancellation of registration. He further submits that it is the petitioner management which has indulged in unfair labour practices in order to weaken the 2nd Respondent Trade Union. The learned counsel by referring to sub section 2 of Section 4 of the Act submits that even at the time of processing the application for registration, if any of the members, who have duly filed the application for registration, are ceased to be the members of the trade union before registration, the application will not become invalid. Therefore, the reduction of membership cannot be a ground to cancel the registration. Therefore, according to the learned counsel Section 10(c) of the Act has to be conjointly read with Section 4(2) of the Act.
6.He further submits that an immunity has been provided under Section 18 of the Act from the management and the same is extracted as under:
“18. Immunity from civil suit in certain cases.—
(1) No suit or other legal proceeding shall be maintainable in any Civil Court against any registered Trade Union or any 1[office-bearer] or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground only that such act induces some other person to break a contract of employment, or that it is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills. (2) A registered Trade Union shall not be liable in any suit or other legal proceeding in any Civil Court in respect of any tortious act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union if it is proved that such person acted without the knowledge of, or contrary to express instructions given by, the executive of the Trade Union.”
7.This protection is provided under the Act in order to protect the union from the harassment of the management. In this case, the management has taken the task of cancelling the registration of trade union by referring to the provision under Section 10(c) of the Act and it is not permissible. The trade union is the protector of workers and they are having important role in any industry. The industrial democracy requires trade union as a collective body for negotiation with the management on behalf of the workmen to secure the proper wages. The management will never have a right to dispute the existence of the trade union, which has already been registered under the Act.
8.This court has considered the rival submissions made and perused the materials placed on record.
9.The core issue in this writ petition is whether the management can file an application under Section 10(c) of the Trade Unions Act?.
10.The 1st respondent the Registrar of Trade Unions has taken the complaint of the petitioner management, however, rejected the complaint by referring to the judgment of the Gujarat High Court at Ahamedabad in Videocon Industries Ltd vs Deputy Registrar and 2 others, in Letters Patent Appeal No.1821 of 2017, dated 04.07.2022 and the judgment of the Hon'ble Supreme Court in R.G.D' Souza vs Poona Employees Union and Anr[AIR 2015 SC 954].
11.Trade Union is defined under Section 2(h) of the Act, which reads as under:
“(h) “Trade Union” means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions.”
12.The trade union if any has to be registered under the Trade Unions Act by the Registrar of Trade Unions. The minimum requirement for registering a trade union, has been incorporated in the Act and the same is extracted as under:
“9-A. Minimum requirement about membership of a Trade Union: 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 minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members.”
13.The cancellation of registration is provided under Section 10(a) and (b) of the Act. Sub section (c) of Section 10 of the Act has been incorporated with effect from 09.01.2002 when Section 9-A was introduced. Proviso to Section 10(c) of the Act enables the cancellation of registration otherwise than on the application of the trade union, which reads as follows:
“10.A certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar--
... ... ...
(c) If the Registrar is satisfied that a registered Trade Union of workmen ceases to have the requisite number of members:
Provided that 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 otherwise than on the application of the Trade Union.”
14.Prior to the year 2002 with the available provision under Section 10(a) of the Act, it is the trade union alone can file an application for cancellation of registration, if any registration has been made on fraud. However, the minimum requirement of membership of any trade union, has been introduced in the year 2002 by incorporating Section 9-A of the Act. Proviso to Section 10(c) of the Act enables cancellation of registration, otherwise than on the application of the trade union. Therefore, this court is of the view that in the absence of any clarification with regard to the application otherwise than the trade union, the management can also maintain the application for cancellation. Moreover as rightly pointed by the learned counsel for the petitioner, when the application has been entertained by Registrar of Trade Unions and enquiry has been conducted, he ought to have ascertained whether the trade union is having the required membership as per Section 9-A of the Act. Further the judgments referred to by the 1st respondent in the impugned order are pertaining to Section 10(a) and 10(b) of the Act. Therefore, it cannot be made applicable to the newly incorporated Section 10(c) of the Act. Therefore, this court is of the view that the writ petition deserves to be allowed.
15.In the result, the impugned order is set aside. This writ petition is allowed. The matter is remanded back to the 1st respondent to take a call afresh. No costs. Consequently connected miscellaneous petition is closed.