Kerala State Construction Workers Congress (Intuc) Central Office v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** ## **WP(C).No. 3416 of 2013 (B)** ## **-------------------------------------** ## **PETITIONER(S):** **----------------------KERALA STATE CONSTRUCTION WORKERS CONGRESS (INDIAN NATIONAL TRADE UNION CONGRESS-INTUC) CENTRAL OFFICE, INTUC BHAVAN, NEERAZHI LANE G.P.O, THIRUVANANTHAPURAM - 695 001 REPRESENTED BY ITS GENERAL SECRETARY MR. G. JAYAPRAKASH AGED 54 YEARS, S/O. LATE GOPINATHAN.** **BY ADVS.SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE SECRETARY TO GOVERNMENT LABOUR AND REHABILITATION DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001.** ## **2. THE LABOUR COMMISSIONER** **KERALA HOUSING BOARD BUILDING, SANTHI NAGAR P.O. THIRUVANANTHAPURAM - 695 001.** ## **3. KERALA BUILDING AND OTHER CONSTRUCTION WORKERS** **WELFARE BOARD, REPRESENTED BY ITS SECRETARY NIRMAN BHAVAN, METTUKKADA, THYCAUD P.O. THIRUVANANTHAPURAM - 695 014.** ## **4. PANGAPPARA ASOKAN** **“HARICHANDANAM”, PANGAPPARA P.O. THIRUVANANTHAPURAM -695 581.** **R1 & R2 BY SR. GOVERNMENT PLEADER SRI. RAMPRASAD UNNI R3 BY ADV. SRI.ASHIK K.MOHAMED ALI, SC, KB & OCWWB R4 BY ADV. SMT.T.S.MAYA (THIYADIL) R4 BY ADV. SRI.K.RAJEEV (THIYADIL)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 3416 of 2013 (B)** **APPENDIX** **PETITIONER(S) EXHIBITS :-** **EXHIBIT-P1- COPY OF ANNUAL RETURN FOR THE YEAR ENDING 31/12/2010 SUBMITTED BY THE PETITIONER UNION BEFORE THE 2ND RESPONDENT.** **EXHIBIT-P2- COPY OF ANNUAL RETURN FOR THE YEAR ENDING 31/12/2011 SUBMITTED BY THE PETITIONER UNION BEFORE THE 2ND RESPONDENT.** **EXHIBIT-P3- COPY OF RESIGNATION LETTER DATED 11/02/2012 SUBMITTED BY 4TH RESPONDENT TO PRESIDENT OF THE PETITIONER UNION.** **EXHIBIT-P4- COPY OF LETTER DATED 09/03/2012 SUBMITTED BY PETITIONER UNION TO 2ND RESPONDENT.** **EXHIBIT-P5- COPY OF LETTER DATED 26/02/2012 SUBMITTED BY PETITIONER UNION TO THE 3RD RESPONDENT.** - **EXHIBIT-P6- COPY OF ORDER NO. B (1) 5977/2012 DATED 23/05/2012 OF THE 3RD RESPONDENT.** **EXHIBIT-P7- COPY OF THE LETTER NO. E4/7061/12 DATED 13/06/2012 OF THE 3RD RESPONDENT TO DISTRICT EXECUTIVE OFFICER, PATHANAMTHITTA WITH A COPY TO JAYAPRAKASH G. GENERAL SECRETARY OF PETITIONER UNION ALONG WITH LETTER NO. E4/7061/12 DATED 05/06/2012.** **EXHIBIT-P8- COPY OF THE LETTER BEARING NO. 19911/J1/2012/LBR DATED 04/01/2013 ISSUED BY IST RESPONDENT ADDRESSED TO 2ND AND 3RD RESPONDENTS.** **EXHIBIT-P9- COPY OF THE LETTER NO. B (1) 5977/2012 DATED 02/11/2012 SUBMITTED BEFORE THE IST RESPONDENT BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS :-** **EXHIBIT R4(a)COPY OF THE ANNUAL RETURNS OF 2011 FILED BY THE ACTUAL OFFICE BEARERS OF THE PETITIONER UNION.** **EXHIBIT R4(b)COPY OF THE LETTER ISSUED BY THE SECRETARY OF THE PEITIONER UNION DATED 15.02.2012** **EXHIBIT R4(c)COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF THE PETITIONER UNION HELD ON 23.02.2012** **EXHIBIT R4(d)COPY OF THE LETTER ISSUED BY ADV. SUBODHAN DATED 16.02.2012 TO THE 3RD RESPONDENT.** ## **DCS** **WP(C).No. 3416 of 2013 (B)** **EXHIBIT R4(e)COPY OF BYE-LAW OF THE PETITIONER UNION EXHIBIT R4(f)COPY OF THE LETTER ISSUED BY ADV. SUBODHAN TO THE 4TH RESPONDENT, DATED 09.03.2012 EXHIBIT R4(g)COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF THE PETITIONER UNION HELD ON 14.03.2012 EXHIBIT R4(h)COPY OF THE ORDER OF O.S. 295/2012 OF MUNSIFF COURT KOTTAYAM EXHIBIT R4(i)COPY OF THE PUBLICITY NOTICE OF THE STATE LEADERSHIP TRAINING PROGRAMME AT PANDALAM ON 01.02.2013 & 02.02.2013 EXHIBIT R4(j)COPY OF THE RECOMMENDATIONS OF THE SECRETARY TO THE LABOUR DEPARTMENT AND THE ORDER OF THE HON'BLE LABOUR MINISTER DATED 4.1.2013 EXHIBIT R4(k)COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 21.02.2013** **/TRUE COPY/** ## **P.A. TO JUDGE** ## **DCS** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 3416 of 2013** **----------------------------------------** Dated this the 29[th ] day of August, 2013 ## **JUDGMENT** The petitioner is a Trade Union represented by the General Secretary, one Sri. G. Jayaprakash. They challenge Ext.P8 order issued by the Government inter alia contending that the Government has no power to rescind the decision taken by the Labour Commissioner exercising the power of the Registrar of Trade Union under the Trade Unions Act. 2. The facts involved in the above writ petition would disclose that there are apparently two factions among the members of the petitioner Trade Union of which one is headed by Adv. Sri. G. Subodhan as the present President which again is disputed, and the other headed by Sri. K. Muraleedharan. 3. The issue had developed on account of resignation of the 4[th] respondent by submitting a letter of resignation dated 11.02.2012. The 4[th] respondent was continuing as Secretary of the Union since 06.11.2003 and was elected as W.P.(C). NO. 3416 of 2013 **2** General Secretary during the year 2011-2012. According to the petitioner, the resignation letter was to take effect from 13.02.2012 and having accepted the resignation of the 4[th] respondent the aforesaid Sri. G. Jayaprakash was co-opted as General Secretary and in the vacant post of Treasurer a person by named Sri. Mohandas Unnimadom was co-opted. In the meantime, the rival faction headed by Sri. K. Muraleedharan had convened certain meetings and they had submitted Ext. R4(a) Return before the Registrar of Trade Unions under Section 26 of the Indian Trade Unions Act. This was with reference to the Executive Committee position and other details as on 31.12.2011. In the meantime, the petitioner's faction also submitted Ext.P2 Return for the same period indicating the change in the position of General Secretary as well as Treasurer. These two Returns came to be considered by the Registrar of Trade Unions and Ext. P6 order was issued inter alia observing that there are some disputes between the two factions of the members of the W.P.(C). NO. 3416 of 2013 **3** Trade Union and until their disputes are resolved by way of a civil suit Adv. Sri. G. Subodhan shall be the President and Sri. G. Jayaprakash shall be the General Secretary. Subsequently, the Government issued Ext. P8 on 04.01.2013 inter alia stating that the view expressed by the Labour Commissioner was not correct especially in view of the judgment of the Supreme Court in **ONGC Workmen Association v. State of West Bengal and Others [(1988) 2 LLJ 335(Calcutta)]** and **Ramdas Tigga v. State of Jharkhand [2004(3) KLT Short Note 84]** . Hence the Government decided to rescind the decision of the Labour Commissioner and the parties were called upon to raise their contentions before the appropriate legal forum. 4. The petitioner relies upon Ext. P9 report dated 02.11.2012 issued by the Labour Commissioner to the Government inter alia clarifying the reason for taking Ext.P6 decision. It is stated that the decision taken by the rival faction of Sri. K. Muraleedharan on 14.03.2012 was not W.P.(C). NO. 3416 of 2013 **4** accepted as the General Body meeting did not have the necessary quorum for appointing the office bearers of the said Trade Union. 5. Counter affidavit is filed by the 4[th] respondent inter alia contending that though the 4[th] respondent had submitted resignation on 11.02.2012, when the Executive Committee met on 23.02.2012, it was unanimously decided to withdraw the said resignation and accordingly the 4[th] respondent had withdrawn his resignation. That apart a General Body Meeting was held on 14.03.2012 appointing various office bearers as Ext. R4(g) and Return had been filed as per Ext. R4(a). It is also contended that subsequently the office bearers who were elected in the meeting held on 14.03.2012 had conducted several meetings and other Trade Union activities which were not opposed by the either side and since the members of the Union had accepted the faction of Sri. K. Muraleedharan as the official faction of the Trade Union, the same was W.P.(C). NO. 3416 of 2013 **5** required to be accepted by the Labour Commissioner. But without referring to the Executive Committee minutes or properly considering the decision taken in the General Body Meeting, Ext. P6 came to be passed. The rival faction therefore submitted a representation to the Government against the decision taken at Ext. P6 which was considered by the Government and Ext. P8 order came to be passed. In that view of the matter, it is contended that when there is admittedly a dispute between the two factions in relation to their right to manage the affairs of the Trade Union, the same cannot be decided by the Registrar exercising the power under the Trade Unions Act and it has only administrative powers and any dispute between the parties are to be resolved by a civil suit. 6. The learned counsel for the 4[th] respondent also relied upon the judgment of Supreme Court in **Borosil Glass Works Ltd. Employees Union v. D.D. Bambode and others [AIR 2001 SC 378]** for the proposition that W.P.(C). NO. 3416 of 2013 **6** dispute as to whether a person should be admitted as a member or not is not a dispute coming within the ambit of Section 28(1-A) of the Trade Unions Act and it can be decided only by approaching a Civil Court. Another judgment relied upon is **Fateh Singh Solanki & Others v. Rastriya Mill Mazdoor Sangh & Others [1994 (1) LLJ 294]** in which case a learned Single Judge of the Rajasthan High Court has held that neither the Act nor the Regulation framed under the Act, gives powers to the Registrar to hold any quasi-judicial enquiry to record the evidence and to decide the claims of the claimants of the rival Trade Unions and therefore it is not open for the Registrar to decide the dispute between the rival office bearers of the Trade Union under Section 28 of the Act. It is also held that the dispute in the nature of rival claims of the office bearers of the Trade Unions, is a private dispute which can only be adjudicated by a Civil Court and not by the Registrar under the Act. W.P.(C). NO. 3416 of 2013 **7** 7. Having regard to the aforesaid factual situation, the question to be considered is the validity of Ext. P8 order. 8. It is the main contention of the learned counsel for the petitioner that the Government has no power of review or revision against an order passed by the Registrar of Trade Union under the Trade Unions Act. In that view of the matter, it is contended that Ext. P8 was issued without any jurisdiction. It is also contended that Ext. P6 is not a final order deciding a dispute between the parties whereas it is only an interim arrangement of management of the Trade Union which was to remain in force still the dispute between the parties are settled by an appropriate forum. On the other hand, the learned counsel for the 4[th] respondent would contend that the Government had to interfere in the matter in view of the fact that the Registrar of Trade Unions has committed an illegality by interfering in an issue which ought to have been the subject matter of the civil dispute. 9. The learned Standing Counsel appearing on behalf W.P.(C). NO. 3416 of 2013 **8** of the 3[rd] respondent would submit that in terms of Rule 283 of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Kerala Rules, 1998, in regard to membership of building worker the statute requires a certificate to be made available by the Registered Trade Union. In that view of the matter, if a Registered Trade Union is not in existence or if there is any dispute regarding the existence or otherwise of the registered Trade Union, the workers will not be in a position to enroll themselves as member of the concerned Welfare Fund Board. Having regard to the aforesaid arguments made by the learned counsel for the either parties, the first question to be considered is whether the Labour Commissioner has exceeded its jurisdiction by passing Ext. P6. On a perusal of Ext. P6, it is evident that, what the Labour Commissioner has decided was only acceptance of one of the Returns filed by the rival claimants. It is not an order by which the 2[nd] respondent had while accepting the W.P.(C). NO. 3416 of 2013 **9** Return of one faction, decided a dispute between the parties concerned. It is clearly indicated that the said dispute has to be settled by an appropriate forum and until such settlement of disputes, Adv. Sri. Subhodan shall be the President and Sri. G. Jayaprakash shall be the Secretary. This apparently is based on the Return filed as per Ext. P2. In respect of Ext. R4(a) Return filed by the other faction, Ext. P9 report would indicate under what circumstances the Labour Commissioner had arrived at a decision at Ext. P6. It is indicated that in the Return filed by the rival faction it was shown that the office bearers were elected in a General Body Meeting held on 14.03.2012. The said authority also confirms the point that as per the byelaws of the Trade Union the quorum for such a meeting is 1/3[rd] of the existing members. Only 403 members attended the said meeting and apparently going by the number of members as stated in Ext. P2 or as stated in Ext. R4(a) there was no quorum for conducting such a meeting. In that view of the matter W.P.(C). NO. 3416 of 2013 **10** prima facie the Labour Commissioner formed an opinion that the said decision was not in accordance with the byelaws. This decision has been taken by the Registrar exercising the power under Section 28 of the Trade Unions Act. While considering Returns filed by two factions, it is open for the Registrar to verify whether the factual circumstances mentioned therein are correct or not. If the Registrar is of opinion that the decision which is reflected in the Return is improper on the basis of records, definitely the Registrar can reject the same. Registrar has only exercised an administrative function to verify whether the alleged meeting held on 14.03.2012 was in accordance with the byelaws prescribed and once it is found that it is not in accordance with the byelaws on account of absence of necessary quorum the Registrar was justified in temporarily treating the other faction as in management of the affairs until it is open for the rival faction to agitate the said issue before an appropriate authority. Under these circumstances, W.P.(C). NO. 3416 of 2013 **11** I do not think that Ext. P6 suffers from any illegality to enable the Government to interfere. 10. By Ext. P8, Government has set aside Ext. P6. No such power is vested with the Government in order to annul the decision taken by the 3[rd] respondent in Ext. P6. Having regard to these circumstances, I am of the view that the Government did not have any power either under the Act or the Rules framed thereunder to interfere with Ext.P6. Hence, Ext. P8 is liable to be quashed. 11. Further factual aspects involved in the matter would disclose that election of the officer bearers have to take place every year in terms with the byelaws. Apparently, the period of elected body had expired by March 2013 and therefore necessarily the new office bearers are to be elected. It shall be open for the Trade Union to call for the next meeting and having regard to the dispute now prevailing between the parties, I am of the opinion that even though, I am upholding Ext. P6, appropriate directions W.P.(C). NO. 3416 of 2013 **12** can be issued for conducting the election in accordance with the procedure prescribed. 12. Accordingly, this writ petition is allowed as under:- i) Ext. P8 is set aside. ii) The status as per Ext. P6 shall continue until next elections are held. iii) The petitioner is directed to convene the elections with immediate effect and the election process shall be completed within a period of three months from the date of receipt of a copy of this judgment. iv) It is needles to state that the petitioner Union shall permit participation of all concerned including the members of the rival faction in the matter relating to the conduct of election. SD/- **A.M. SHAFFIQUE JUDGE** DCS