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STARIAN EMPLOYEES UNION, NOIDA & ANOTHER versus THE PRESIDING OFFICER, LABOUR COURT (II) & OTHERS

High Court of Judicature at Allahabad

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Starian Employees Union, Noida & Another v. The Presiding Officer, Labour Court (Ii) & Others - WRIT - C No. - 53135 of 2007 [2007] RD-AH 18542 (30 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED.

CIVIL Misc. Writ Petition No. 53135 of 2007.

Starian Employees Union, Vs. The Presiding Officer,

Noida, Gautam Budh Nagar Labour Court (II),

and others. Ghaziabad and others.

Hon'ble Janardan Sahai, J.

Starian Employees Union, Noida, Gautam Budh Nagar was registered under the Trade Unions Act, 1926. Its registration certificate was cancelled by the Registrar, Trade Union, U.P. by an order dated 8.7.2007. The Union preferred an appeal before the Labour Court-II, Ghaziabad under Section 11 (aa) of the Trade Unions Act, 1926. It appears that the Labour Court before which the appeal was filed was constituted under Section 4-A of the U.P. Industrial Disputes Act, 1947. The Labour Court by order dated 21.9.2007 returned the appeal of the petitioners for presentation to the competent court. The petitioners have challenged this order of the labour court by means of the present writ petition.

An appeal against an order of cancellation lies under Section 11 of the Trade Unions Act, 1926. Section 11 (1) before its amendment by Act 31 of 2001 read as follows;

"11 (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 -

(a) where the head office of trade Union is situated within the limits of a Presidency town, to the High Court."

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

It appears that the State Government had issued a notification under Clause (b) of Section 11 (1) authorizing the District Judge, Kanpur Nagar to decide an appeal against an order of cancellation of registration. By the aforesaid Amending Act 2001 Clause (aa) was added after Clause (a), which is as follows;

"(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."

The question, which has arisen in this case is whether the Labour Court, Gautam Budh Nagar had the jurisdiction to decide the appeal. The contention of Sri Shyam Narain the petitioners' counsel is that the District Judge, Kanpur Nagar no longer has any jurisdiction because the case is covered by Clause (aa) and Clause (b) under which the notification authorizing the District Judge to hear the appeal was issued would only be applicable, if the headquarters of the Union is situated in an area not covered by clauses (a) or (aa). On the other hand Sri K. N. Tripathi, learned senior advocate appearing for the respondent submitted that there are labour courts under the Industrial Disputes Act, 1947 and U.P. Industrial Disputes Act, 1947 and also Industrial Tribunals under both the Acts and Section 11 (1) (aa) does not specify to which of these courts would an appeal lie and there is thus a cassus omissus in the legislation and therefore the appeal would lie under Section 11 (1) (b) of the Act to the District Judge, Kanpur.

To appreciate the controversy it is necessary to refer to the relevant provisions of the Trade Unions Act, 1926 as also to those of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947. The Trade Union Act, 1926 does not define a labour court or an industrial tribunal Section 7 of the Industrial Disputes Act, 1947 provides for the constitution of one or more labour courts for the adjudication of industrial disputes relating to any matter specified in the II Schedule and for performing such other functions as may be assigned to them under the Industrial Disputes Act. Section 7-A of the Industrial Disputes Act, 1947 provides for the constitution of one or more Industrial Tribunals for adjudication of industrial disputes relating to any matter specified in the second schedule or the third schedule and for performing such other functions as may be assigned to them under the Industrial Disputes Act. Similarly Section 4-A of the U. P. Industrial Disputes Act provides for Constitution of one or more labour courts for adjudication of industrial disputes relating to any matter specified in the first schedule and for performing such other functions as may be assigned to them under that Act. Section 4-B of the U.P. Industrial Disputes Act provides for constitution of one or more Industrial Tribunals to adjudicate upon industrial disputes under the Ist or 2nd schedule. The list of industrial disputes relating to matters specified in any of the schedules of the Industrial Disputes Act, 1947 or of the U.P. Industrial Disputes Act, 1947 does not include an appeal in a dispute relating to cancellation of the registration certificate of a Trade Union. No doubt the Trade Unions Act does provide for an appeal to the Labour Court or Industrial Tribunal as the case may be but it does not specify as to whether the appeal would lie to a labour court constituted under Section 7 of the Industrial Disputes Act, 1947 or to a Labour Court constituted under Section 4-A of the U.P. Industrial Disputes Act or to an Industrial Tribunal constituted under Section 7-A of the Industrial Disputes Act, 1947 or to an Industrial Tribunal under Section 4-B of the U.P. Industrial Disputes Act, 1947. This specification could have been done either by a provision in the Trade Unions Act, 1926 or by an amendment of the Industrial Disputes Act, 1947 or the U.P. Industrial Disputes Act, 1947.

The term 'Labour Court' has not been defined under the Trade Unions Act, 1926. The Legislature, however, has enacted the Indian Trade Union Amendment Act, 1947 to amend the Indian Trade Unions Act, 1926. 'Labour Court' has been defined in section 3 (e) of this Amending Act as follows; "labour court means in relation to a Trade Union, a labour court appointed by the appropriate government under sub-Section 1 of Section 28-B. It appears however that the Indian Trade Unions Amendment Act, 1947 has not been enforced. Sub-Section 2 of Section 1 of the said Amending Act provides that it shall come into force on such date as the Central Government may by notification in the official gazette appoint. It appears however that no such notification has been issued. The question is whether in the absence of enforcement of the Amending Act, the definition of 'Labour Court' contained therein may be read for the purpose of interpreting the expression 'labour court' used in section 11 (aa). The Madras High Court in Registrar of Trade Unions Vs. Govt. Press Employees Union 1976 LIC 280 (282) = (1975) 2 Mad LJ 347 had occasion to consider the question in the context of the Section 3 (b) of the Amending Act which defines 'employer' and taking recourse to that definition it buttressed its view that all workmen in an industry whether employed in an industry conducted by Government or private agency were entitled to form a trade Union. The Madras High Court held that even though the Act may not have been enforced the Court could still have regard to its provisions for the purposes of giving meaning to its provisions. Section 3 (e), however, provides only limited help in solving the problem. Section 3 (e) defines 'labour court' as a court constituted under Section 28-B of the amending Act. Section 28-B may be quoted as follows;

"28-B" Appointment, constitution., powers and procedure of Labour Court -(1) For the purposes of this Chapter, the appropriate Government shall appoint such number of Labour Courts as it considers necessary, consisting of one or more persons each of whom-

(a) is, or has been, a judge of a High Court or a District Judge, or

(b) is qualified for appoitnemnt as a Judge of a High Court:

Provided that the appointment to a Labour Court of any persons not qualified under Clause (a) shall be made in consultation with the High Court of the Province in which the Labour Court has or is intended to have, its usual place of sitting."

The labour court before which the appeal was filed, however, has been constituted under Section 4-A of the U.P. Industrial Disputes Act. In the writ petition it is alleged that the objects of the Union are confined to the State of U.P. and that the Government of U.P. is the 'appropriate government'. Assuming that to be so, the appropriate government would be the State Government in view of the definition of that term under Section 2 of the Trade Unions Act, 1926. Section 4-A of the U.P. Industrial Disputes Act reads as under:-

4-A Labour Court - (1) The State Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of Industrial disputes relating to any matter specified in the First Schedule and for performing such other function as may be assigned to them under this Act.

(2) A Labour Court shall consist of one person only to be appointed by the State Government.

(3) A person shall not be qualified for appointment as the Presiding Officer of a Labour Court unless -

(a) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or

(b) he has held the Office of the Chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950, or or any Tribunal, for a period of not less than two years; or

(c) he has been a Presiding Officer of a Labour Court constituted under any Provincial Act or State Act for a period of not less than five years; or

(d) he has held any judicial office in India for not less than seven years; or

(e) he is enrolled in the list prepared under Section 4-D."

It would be seen that there is some difference between Section 28-B of the Trade Unions Amendment Act and Section 4-A regarding the qualifications of a person eligible to be appointed as presiding officer of a Labour Court. Section 4-A(2) provides that a Labour Court shall consist of one person only to be appointed by the State Government. Section 28 (B) (1) however, envisages a Labour Court consisting of one or more persons. Labour Court constituted under Section 4-A of the U.P. Industrial Disputes Act cannot be described as a Labour Court constituted under Section 28-B for in fact it has not been constituted under Section 28-B, a provision that has yet to be enforced. When, the provisions of the Trade Unions Amendment Act, 1947 are enforced and Labour Courts are constituted under Section 28-B the appeal can be preferred to such Labour Court under clause (aa) even though the reference in that clause to an 'Industrial Tribunal' would still not be specific. That however would not be a ground for not giving effect to the provisions of clause (aa) as reference in that provision to 'Labour Court' being specific an appeal can be filed before the labour court having jurisdiction over the area where the headquarters of the Union are situate. In Magor & St. Mellons Rural District Council v. Newport Corporation [(1950) 2 All ER 1226] Lord Denning said "we sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it to destructive analysis". Applying this principle we can apply the definition of Labour Court in Trade Union Amendment Act 1947 to Section 11 (aa) .

From the aforesaid discussion it is clear that the Labour Court referred to in clause (aa) has not been constituted even if resort is taken to the provisions of Trade Unions Amendment Act 1947 and there is no specification in clause (aa) itself or under the Industrial Disputes Act as to which Labour Court or Industrial Tribunal an appeal against an order cancelling registration of certificate of the Trade Union would lie. There thus appears to be a cassus omissus in the legislation. The principle is that the matters, which have not been provided in a statute cannot be supplied by the court as to do so would be legislation and not construction vide A.I.R. 1952 SC 362 Heera Devi Vs. District Board, Shahjahanpur. In AIR 1987 SC 33 State of Kerala Vs. Mathai Verghese it was said:- "When the legislature does not speak of currency notes of India the Court interpreting the relevant provision of law cannot substitute the expression 'Indian currency note' in place of the expression 'currency note'. The Court cannot do so for the Court can merely interpret the section; it cannot re-write, recast or redesign the section. In interpreting the provision the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation. It is not for the Court to reframe the legislation for the very good reason that the powers to 'legislate' have not been conferred on the Court.

The result, therefore, is that the provisions of Section 11 (aa) cannot be given effect to in the absence of legislative intervention by suitable amendment in the Trade Union Act 1926 or the Industrial Disputes Act specifying the labour court or industrial tribunal to which the appeal would lie or until a Labour Court under Section 28-B of the Trade Unions Amendment Act 1947 is constituted. The result is that the appeal would lie to a court referred to in Section 11(1)(b) of the Act. The Labour Court was therefore right in returning the appeal for presentation to the proper Court. Petition dismissed.

Dt. 30.11.2007

s/sn


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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