North Central Railway Employees Sangh vs State of U.P.

Shri M.C. Chaturvedi, J.—Heard Shri M.C. Chaturvedi, learned Senior Counsel assisted by Sri Suresh Chandra Dwivedi appearing for the petitioners; Shri Ashok Mehta, learned Addl. Solicitor General of India assisted by Shri Saurabh Srivastava appearing for respondents as well as Shri Ajay Kumar Sharma, Shri Dinesh Chandra Mishra and Sri Anand Mohan Pandey, learned counsels appearing for the applicants seeking impleadment.

North Central Railways through its General Secretary R.P. Singh is before this Court assailing the order dated 16.1.2017 passed by third respondent refusing to register the election of the petitioner Sangh held on 2.11.2016 and for a direction to the third respondent to record the executive body of the petitioner Sangh elected on 2.11.2016 on the register maintained by Deputy Labour Commissioner/ Deputy Registrar, Trade Union.

Factual matrix given rise to present writ petition is as follows :

The first petitioner i.e. North Central Railway Employees Sangh is a registered trade union under the Trade Union Act, 1926 by the Registrar of Trade Union, U.P. bearing Registration No.9168 dated 10.3.2003. One Shri O.P. Pathak had made certain complaints regarding registration of petitioner Union and on his complaint a show cause notice dated 10.4.2003 was issued by the second respondent asking the petitioner Union as to why the registration be not cancelled. The reply thereto was submitted by the petitioners Union on 21.4.2003. The said show cause notice was subsequently withdrawn considering the reply submitted by the petitioners Union vide order dated 29.4.2003. Even though the said complaint was withdrawn but the complainant was not satisfied and had instituted a Civil Suit bearing Case No.43A of 2003 in the Court of IInd Civil Judge, Group-2, Gwalior in which temporary injunction was obtained on 16.4.2003. Aggrieved with the said injunction the petitioners Union had preferred Writ Petition No.1295 of 2003 before the High Court, Gwalior and the High Court Gwalior had proceeded to set aside the order passed by the Civil Court vide order dated 13.5.2003. The complainant had further proceeded to file a complaint before the Judicial Magistrate, Ist class, Gwalior in which on 17.5.2005 an arrest warrant against the second petitioner along with some other persons was issued. Aggrieved with the said arrest warrant, the petitioners Union had further proceeded to challenge the same before the High Court, Gwalior by preferring Writ Petition No.1502 of 2005 in which the High Court had intervened and passed interim order in favour of the petitioners on 9.6.2005 staying the effect and operation of the arrest warrant dated 17.5.2005. Finally vide order dated 2.1.2007 the High Court, Gwalior had set aside the arrest warrant dated 17.5.2005.

It is contended that on one hand the petitioner was fighting with the onslaught of the complainant-Shri O.P. Pathak at High Court Gwalior and on the other hand another show cause notice in the said period of litigation was issued by the Registrar, Trade Union on 11.1.2005 to which the petitioners Union has submitted reply on 5.3.2005. But finally the registration of the petitioners Union was cancelled on 15.4.2005. Aggrieved with the same, the petitioners Union had preferring an appeal being Misc. Appeal No.64 of 2005 (North Central Railway Employees Sangh v. Registrar, Trade Union & Ors.) in the Court of District Judge, Kanpur in which interim order dated 7.5.2005 was passed staying the order dated 15.4.2005. Even in the said proceeding Shri O.P. Pathak had filed impleadment application but the same has been rejected vide order dated 18.4.2006 passed by the Addl. District Judge (SC & ST Act), Kanpur. It is contended that the order dated 18.4.2006 rejecting the impleadment application has never been challenged and as such the same has attained finality. Finally on 28.4.2006 the Misc. Appeal No.64 of 2005 was returned on the ground of jurisdiction.

Consequently, the petitioners Union has approached to the Labour Court, Allahabad by preferring Misc. appeal No.104 of 2006 in which vide order dated 12.5.2006 the Labour Court stayed the order dated 15.4.2005 by which the registration of the petitioners Union was cancelled. Even in the said appeal Shri Om Prakash Pathak has again filed an impleadment application, which too has been rejected vide order dated 31.1.2007. It is contended that the said rejection order dated 31.1.2007 has also not been challenged by Shri O.P. Pathak and as such the said order dated 31.1.2007 has also attained finality. Finally the Labour Court vide order dated 15.6.2007 had set aside the order dated 15.4.2005 directing the Registrar Trade Union to proceed afresh on the notice dated 11.1.2005. Consequently, the Registrar, Trade Union had asked the petitioner Union to submit reply to the notice dated 11.1.2005. The petitioners Union had submitted reply on 17.7.2007. The Registrar Trade Union vide order dated 6.9.2007 again revived the earlier order dated 15.4.2005 by which the registration of the petitioners Union was cancelled. The same was again subjected to challenge by preferring Misc. Appeal No.3 of 2007 before the Industrial Tribunal, Allahabad and the same was again set aside by the Industrial Tribunal, Allahabad vide order dated 7.4.2008. The order dated 7.4.2008 had attained finality as at no point of time the same has been assailed by the complainant.

It is contended that the petitioners Trade Union had asked through an application dated 12.8.2010 under Right to Information Act regarding term of some of the registered Union including the petitioners Trade Union and in response thereof the Registrar, Trade Union vide letter dated 7.9.2010 informed that the term of the petitioners Trade Union is 3 years. The General Manager, North Central Railway, Allahabad Zone vide letters dated 21.2.2013 and 14.3.2013 had sought information regarding registered Trade Unions relating to North Central Railways, Allahabad Zone, their registration numbers and dates and in response to which the Registrar Trade Union vide letter dated 15.3.2003 (appended as Annexure 14 to the writ petition) submitted the details of the Registered Trade Unions in existence relating to North Central Railway Allahabad Zone and in which the petitioners Trade Union is placed at Sl. No.3.

It is alleged that the said Shri O.P. Pathak again just to harass and victimise the office bearers of the petitioners Trade Union had lodged a First Information Report on 19.3.2013 under Section 420 and 468 IPC at P.S. G.R.P. Gwalior on the basis of which Case Crime No.9 of 2013 was registered. The same was again challenged by second petitioner before High Court at Gwalior by preferring Criminal Case No.8262 of 2013 and in the said proceedings Shri O.P. Pathak not only contested the case but had also filed the counter affidavit. Finally the High Court at Gwalior vide judgment and order dated 10.12.2013 had quashed the first information report dated 19.3.2008 lodged by Shri O.P. Pathak clearly observing that North Central Railway Employees Sangh was in fact in existence and had also acknowledged the order dated 7.4.2008 passed by the Industrial Tribunal, Allahabad. Aggrieved by the judgment and order dated 10.12.2013 passed by the High Court at Gwalior, Shri O.P. Pathak had preferred Special Leave to Appeal (Crl.) No.3631 of 2014 before Hon''ble the Apex Court but the same was dismissed vide judgment and order dated 10.11.2014.

It is stated that Shri O.P. Pathak is not a member of the petitioners Trade Union and he belongs to another Trade Union namely North Central Railway Karmchari Sangh and also General Secretary of the said Union and in this manner he has no locus standi either under the statute or under the settled law to intervene in the matter of another registered Trade Union.

The last election of the petitioners Trade Union was held on 6.11.2013 and From ''J'' was registered on 6.12.2013 (Annexure 17 to the writ petition) by the Deputy Labour Commissioner, Allahabad (third respondent). One Shri S.P. Sharma, elected President seized to be member of petitioners Trade Union after 31.12.2014 and in his place one Shri Syed Sakil Haidar was coopted as President of the petitioners Trade Union under the provisions of the constitution of registered petitioners'' Sangh. For registering the same From ''J'' was submitted and the third respondent registered the same and communicated vide letter dated 23.4.2015. Under the constitution of petitioners'' Sangh next election of the Executive Committee was due to be held on or before 6.11.2016. The election accordingly was announced to be held on 2.11.2016 and as per programme the election was conducted on 2.11.2016. The elected executive body was circulated by the General Manager, North Central Railway, Allahabad vide his letter dated 3.11.2016. Consequently, by means of application dated 5.11.2016 the petitioners Union requested to the third respondent for registering the executive body of the Union duly elected on 2.11.2016 enclosing therewith Form ''J'' and circular of the General Manager, North Central Railway, Allahabad.

It is contended that for registering the executive body of the Trade Union provisions are contained in the U.P. Trade Unions Regulations, 1927 and Rules 17 (A) of the same provides as under :-

"17 (A) Intimation regarding any change in officers of a registered Trade Union shall be sent in duplicate in Form ''J'' to the Registrar within a week of such change talking place. The Registrar shall within thirty days and under intimation to the Secretary of the Trade Union concerned, record the change in the Register of Trade Unions maintained under Section 8 of the Act unless he has reason to believe that the change has not been made in the manner provided in the registered rules of the Trade Union."

From a bare reading of the statutory provisions as above, it is sought to be contended that the Registrar Trade Union within thirty days and under intimation to the Secretary of the Trade Union concerned, record the change in the Register of Trade Unions maintained under Section 8 of the Act unless he has reason to believe that the change has not been made in the manner provided in the registered rules of the Trade Union.

Consequently, vide letter dated 11.11.2016 the office of third respondent had asked certain documents to be produced on 17.11.2016. On 17.11.2016 the petitioner personally met with third respondent along with all relevant documents. On the said date it had been apprised to the second petitioner that there are certain complaints against the petitioners Sangh and firstly all the complaints have to be replied and only thereafter From ''J'' would be considered. Immediately the second petitioner had asked for supply of the complaints and consequently on 29.11.2016 copies of complaints made by Shri O.P. Pathak, Shri R.D. Sharma and Shri Shyam Singh Bhadauriya were provided to the second petitioner. The second petitioner submitted reply to the complaints on 7.12.2016. It is contended that no other claim in the shape of Form ''J'' has been filed regarding petitioners Union to register the name of office bearers of the petitioners Union. Finally the third respondent passed the impugned order dated 16.1.2017 whereby the office bearers of the Trade Union elected on 2.11.2016 have been rejected to be registered on the register of the Trade Union maintained by the Deputy Labour Commissioner.

In this backdrop, Shri M.C. Chaturvedi, learned Senior Advocate assisted by Shri S.C. Dwivedi appearing for the petitioners had vehemently contended that while passing the impugned order the third respondent has erred in law while observing that the registration of petitioners Union is not in existence since 2003, whereas such exercise can only be done by the Registrar, Trade Union and such power cannot be exercised by the Addl. Labour Commissioner/ Deputy Labour Commissioner as per the notification dated 27th November, 1990 and as such the order impugned is without jurisdiction and cannot sustain.

Shri Chaturvedi, learned Senior Counsel further made submissions that the finding so recorded by the third respondent is contrary to the fact and record, whereas he had proceeded to record that in the list dated 14.9.2007 the petitioners Union could not find place among 14 registered Unions. The said finding could not be made by the third respondent in the backdrop that the Industrial Tribunal in its order dated 7.4.2008 had clearly set aside the order dated 6.9.2007 and the same has also been acknowledged by the High Court at Gwalior while setting aside the first information report. He has vehemently contended that the finding of fact, which has been narrated by the third respondent while passing the impugned order is totally erroneous as in the list of registered Trade Unions relating to North Central Railway, Allahabad Zone, which was furnished by Registrar, Trade Unions on 7.9.2010 and 15.3.2016, which was also appended along with the record clearly proceeds to mention that the petitioners Union was duly registered and was recognised. He further made submissions that once the Working Committee of the Union had resolved not to extend the term of honorary membership of one Shiv Prasad Sharma beyond December 2014 and as President of the Sangh, consequently the post of President fell vacant. Thereafter, the working committee co-opted Shri Syed Sakil Haider as President for remaining period upto November 2016.

In this backdrop the Secretary of the Union had submitted a supplementary amended Form-J on 17th January 2015 before the Deputy Labour Commissioner/ Deputy Registrar Trade Union, Allahabad Region, Allahabad for registration of the newly coopted member and office bearers, which was duly registered by the Registrar Trade Union on 23rd April, 2015. Before registration, co-option was duly accepted by the Chief Personnel Officer, North Central Railway, Allahabad vide letter dated 16th January, 2015. The said action has been assailed by Shri Shiv Prasad Sharma by preferring Writ Petition No.36599 of 2015 (Shiv Prasad Sharma v. Union of India & Ors.) along with Writ Petition No.38407 of 2015 (R.D. Sharma v. Union of India & Ors.) and the learned Single Judge vide order dated 16.10.2015 had proceeded to dismiss both the writ petitions. The same was subjected to challenge in Special Appeal No.897 of 2015 (R.D. Sharma v. Union of India & Ors.). The same was also dismissed by the Division Bench vide order dated 4.1.2016. As such it has been sought to be contended that such co-option was very much acknowledged and even the election of 2013 was also moreover accepted by learned Single Judge as well as by the Division Bench and on this score while passing the impugned order the third respondent has clearly erred in law in not appreciating the facts on record even though he was fully aware with all the proceedings and as such the third respondent has committed gross illegality and acted beyond his jurisdiction and therefore this Court should come for rescue and reprieve of the petitioner.

Shri M.C. Chaturvedi, learned Senior Counsel has further contended that all the complainants namely Shri O.P. Pathak, Shri R.D. Sharma and Shri Shyam Singh Bhadauria are not even members of petitioner Union and as such they have no locus to intervene in the affairs of the petitioner Union. As such the finding recorded that the order dated 15.4.2005 is in existence is totally incorrect and the same has already been set aside by the competent court of law and the same has also been observed/ acknowledged by the High Court at Gwalior and as such no proceeding in this regard is pending and the alleged finding recorded by the third respondent is contrary to law and liable to be set aside.

Shri Ashok Mehta, learned Addl. Solicitor General of India assisted by Shri Saurabh Srivastava, learned counsel for the fourth respondent has very fairly submits that the fourth respondent has no role whatsoever in recommending either of the claim but at the same time apprised to the Court that on 7/8.11.2013 one V.P. Singh, Asstt. Personnel Officer (HQ) for General Manager (P) has circulated Central Body office bearers of North Central Railway Employees Sangh. In the same manner the circulation was also made of the Central Body office bearers of North Central Railway Employees Sangh on 3.11.2016.

Heard rival submissions and perused the record.

The record in question revealed that earlier the registration of petitioner Union was cancelled by the Registrar of Trade Union. Against the same the Union filed case before the Labour Court and the Industrial Tribunal. The said courts at Allahabad set aside the cancellation of registration order passed by the Registrar of Trade Union. In the absence of challenge to the said orders passed by the Labour Court and the Industrial Tribunal the said orders had attained finality.

Learned counsel appearing for the applicants seeking impleadment have vehemently contended that the Industrial Tribunal, Allahabad had no authority, jurisdiction and competence to decide the validity of the cancellation of registration order passed by the Registrar, Trade Union and it is contended that the order has to be treated as nullity because it was obtained by the Union by approaching incompetent court. As such it has been contended that the Industrial Tribunal did not have jurisdiction to examine the validity of cancellation of registration of petitioner Union. It has further been contended that the petitioners have not taken any step for restoration of their registration and as such it has been claimed that the Registrar at no point of time had restored the registration and as such the petitioners Union is not valid and registered Union. Only in this backdrop one of the complainant namely Shri O.P. Pathak had lodged the FIR and the case was registered as Case Crime No.9 of 2013 registered at P.S. G.R.P. Gwalior for offence punishable under Section 420 and 468 IPC. The said first information report has been assailed by the petitioner by preferring Criminal Case No.8262 of 2013 (R.P. Singh & Ors. v. State of M.P. & Ors.) before High Court of Madhya Pradesh, Jabalpur at Bench Gwalior under Section 482 CrPC for quashing the aforesaid first information report. Even at that point of time Shri O.P. Pathak, the complainant had also taken the aforesaid objection and the same has been negated by the High Court with following observations:-

"In view of the aforesaid judgments, it is clear that the criminal prosecution cannot be permitted to be used as an weapon of harassment or to settle the scores. In the present case, in the opinion of this Court, the complaint is lodged with an ulterior motive to pressurize the petitioners. This may be because of Trade Union''s rivalry. The procedure for registration of Trade Union and cancellation of it is prescribed in the Trade Unions Act, 1926. Whether the registration is rightly given or not, can be examined only by the competent statutory authority established under the Trade Unions Act. The police authorities have no competence to give opinion on this aspect. Thus, the stand taken in the reply of the police/State that before formation of Railway Zone, registration of petitioners'' Union was improper, cannot be accepted. In the aforesaid backdrop, in my opinion, if the prosecution is permitted to be continued on the basis of aforesaid false complaint, it will be an abuse of process of law. Apart from this, Section provides protection to the persons who are involved in legitimate Trade Union activities. The said Section of the Trade Unions (Madhya Pradesh Amendment) Act, 1968 reads as under:

28L. Protection of action under the Act.--No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or purported to be done under this Act.

As per this provision, the petitioners are protected. They were collecting the subscription from their members, which is a routine Trade Union activity. For this, they cannot be prosecuted.

For the reasons stated above, the impugned FIR in Crime No. 09/2013 registered against the petitioners'' Union at Police Station GRP, Gwalior, for offence punishable under Sections 420 and 468 of IPC, is set aside. The petition is allowed. No cost."

Even the impact of cancellation of registration and the order passed by the Industrial Tribunal, whereby the cancellation order was set aside had also been subjected to detailed scrutiny and the Court has clearly proceeded to observe in para 16 that the registration in the present circumstances was automatically revived. For ready reference para 16 of the judgment is reproduced as under:-

"Although Shri V.D. Sharma, relied on Annexure-R5 to submit that this document contains list of registered Trade Unions and name of the petitioners'' Union is absent, a careful reading of the document shows that it was issued before the order of the Industrial Court (Annexure C). Naturally, at that point of time, the cancellation of registration of petitioners'' Union was under challenge and the matter was sub judice. Once the petitioners'' Union succeeded from the Industrial Court, the inevitable consequence is that upon setting aside the cancellation of registration order, the registration is automatically revived. No further order or declaration in this regard was required."

The Court has also proceeded to examine the complaint so moved by Shri Shyam Singh Bhadauria resident of 339/18-C/37 Sector-7, Rajrooppur, Allahabad. The complaint copy has been produced by Shri M.C. Chaturvedi, Senior Counsel. The same has been communicated by Asstt. Labour Commissioner, Allahabad through its letter dated 29.11.2016.

It is highly important to mention that the previous election was registered on 6.12.2013 (Annexure No.17 to the writ petition). The record in question further revealed that all the complainants are not members of the present Union. Shri O.P. Pathak belongs to another Trade Union namely North Central Railway Karmchari Sangh bearing Registration No.9274 dated 7.3.2005 and happens to be the General Secretary of the said Union. Even the last election of petitioner Trade Union was held on 6.11.2013 and the Form ''J'' was registered on 6.12.2013 by the Deputy Labour Commissioner-third respondent (Annexure No.17 to the writ petition). Shri Shyam Singh Bhadauria is also not the member of petitioner trade union, whereas he is admittedly the member of trade union namely Uttar Madhya Railway Karmchari Sangh, Allahabad having Registration No.8627 dated 12.4.1998. The same is also reflected from his complaint, which has been produced.

In view of above, all the complainants have no locus in the present matter and as such their impleadment applications are unwarranted and are liable to be rejected. Consequently, all the impleadment applications are rejected.

The Court finds that the scope and ambit of the power that the Registrar exercises under the aforementioned provision is no longer res integra. Recently a Division Bench of the Court in Chaudhary Raj Kumar Singh and another v. State of U.P and others (Special Appeal Defective No.264 of 2015) decided on 28.04.2015) revisited the body of precedent on the subject and held that the Registrar does not perform judicial or quasi judicial functions. It was held that the statutory powers of the Registrar do not clothe him with the jurisdiction to decide electoral disputes or to adjudicate upon a lis inter parties. It was held that the function exercised by the Registrar was purely administrative in character and the appropriate remedy in case of a dispute arising was to institute proceedings under the ordinary civil law.

A Division Bench in IFFCO Phulpur Karmachari Sangh v. Registrar Trade Union and others, 1991 (63) FLR 823 held that the Registrar while exercising powers under Regulation 17-A is not obliged to hold any elaborate enquiry as would be required in the case of judicial or quasi judicial proceedings. The Division Bench noted that all that was required of the Registrar was to hold a summary enquiry for his own satisfaction before recording any changes in the register of office bearers.

In the aforesaid facts and circumstances, the order impugned cannot sustain and is accordingly set aside. The writ petition is allowed with direction to the third respondent to register the petitioner Union forthwith.