2020 NearLaw (BombayHC Nagpur) Online 983
Bombay High Court

JUSTICE VINAY JOSHI JUSTICE A. S. CHANDURKAR

Nirmal Rampalsingh Raghuwanshi Vs. The Deputy Registrar & Ors.

WRIT PETITION NO. 5516 OF 2018

17th February 2020

Petitioner Counsel: Shri S. D. Chande
Respondent Counsel: Ms. T. Khan Shri R. S. Akbani N. A. Gaikwad Shri S. S. Dhengale Shri R. Kadu
Act Name: Trade Unions Act, 1926

HeadNote : RULE Rule made returnable forthwith and heard finally considering the nature of challenge raised.
The petitioner seeks to challenge the amendment to the Rules of Registered Trade Union by the name Koyla Shramik Sabha.
The challenge has been specifically raised to Rule 4(A) wherein it has been provided that office bearers of the Union would hold office for the period of five years.
Referring to the provisions of Section 6(hh) of the Trade Unions Act 1926, it is submitted that the maximum period for which the office bearers can be elected cannot exceed 3 years.
In addition the elections that were held in May 2018 are also sought to be challenged alongwith that a declaration that the membership list has been incorrectly prepared.
On behalf of the respondents an objection has been raised to the effect that the challenge to the elections can be raised under Section 28(1-A) of the said Act by seeking reference of the dispute to the Industrial Court.
Without seeking to obtain the consent of the Registrar, the writ petitioner has directly challenged the elections in the Writ Petition.
On hearing learned Counsel for the parties it can be seen that on 22.08.2014 the Rules of the Trade Union have been amended.
Section 28(3) of the said Act requires a copy of every alteration made in the Rules of a Registered Trade Union be sent to the Registrar.
Insofar as challenge to the elections of the Trade Union are concerned we find that such challenge is based on incorrect preparation of the list of the members.
We are inclined to permit the petitioner to avail that remedy in accordance with law as adjudication of the correctness of the membership list involves disputed questions.
(i) The respondent no2-Secretary shall in terms of Section 28(3) of the said Act forward a copy of the Rules of the Trade Union as amended on 22.08.2014 within a period of fifteen days from today to the Registrar.
(ii) The Registrar shall in accordance with provisions of Section 28(4) examine the alternation as made keeping in mind the provisions of Section 6(hh) of the said Act.
(iii) That exercise be conducted after giving opportunity to the parties and within the period of three months from the date the provisions of Section 28(3) of the said Act are complied with.
(iv) Liberty is granted to the petitioner to challenge the elections held in May 2018 by availing the remedy under Section 28(1-A) of the said Act in accordance with law.
The points raised in that regard are kept open.
(v) If, such remedy is invoked, the proceedings be decided expeditiously.

Section :
Section 6(hh) Trade Unions Act, 1926 Section 28(1-A) Trade Unions Act, 1926 Section 28(3) Trade Unions Act, 1926

Cases Cited :

JUDGEMENT

A. S. CHANDURKAR, J.

1. RULE. Rule made returnable forthwith and heard finally considering the nature of challenge raised.

2. The petitioner seeks to challenge the amendment to the Rules of Registered Trade Union by the name “Koyla Shramik Sabha”. The challenge has been specifically raised to Rule 4(A) wherein it has been provided that office bearers of the Union would hold office for the period of five years. Referring to the provisions of Section 6(hh) of the Trade Unions Act 1926, it is submitted that the maximum period for which the office bearers can be elected cannot exceed 3 years. It is the contention that the amendment to the Rules of the Trade Union is therefore contrary to the statutory requirement. In addition the elections that were held in May 2018 are also sought to be challenged alongwith that a declaration that the membership list has been incorrectly prepared.

3. On behalf of the respondents an objection has been raised to the effect that the challenge to the elections can be raised under Section 28(1-A) of the said Act by seeking reference of the dispute to the Industrial Court. Without seeking to obtain the consent of the Registrar, the writ petitioner has directly challenged the elections in the Writ Petition.

4. On hearing learned Counsel for the parties it can be seen that on 22.08.2014 the Rules of the Trade Union have been amended. Section 28(3) of the said Act requires a copy of every alteration made in the Rules of a Registered Trade Union be sent to the Registrar. Till date the alteration as made has not been forwarded to the Registrar.

5. Insofar as challenge to the elections of the Trade Union are concerned we find that such challenge is based on incorrect preparation of the list of the members. As statutory remedy has been provided under Section 28(1-A) of the said Act. We are inclined to permit the petitioner to avail that remedy in accordance with law as adjudication of the correctness of the membership list involves disputed questions.

6. Accordingly the Writ Petitions are disposed of by issuing the following directions :
(i) The respondent no.2-Secretary shall in terms of Section 28(3) of the said Act forward a copy of the Rules of the Trade Union as amended on 22.08.2014 within a period of fifteen days from today to the Registrar.
(ii) The Registrar shall in accordance with provisions of Section 28(4) examine the alternation as made keeping in mind the provisions of Section 6(hh) of the said Act.
(iii) That exercise be conducted after giving opportunity to the parties and within the period of three months from the date the provisions of Section 28(3) of the said Act are complied with.
(iv) Liberty is granted to the petitioner to challenge the elections held in May 2018 by availing the remedy under Section 28(1-A) of the said Act in accordance with law. The points raised in that regard are kept open.
(v) If, such remedy is invoked, the proceedings be decided expeditiously.