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SCA/5040/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5040 of 2011
=========================================================
AZAD
HIND MAJDUR SENA & 1 - Petitioner(s)
Versus
DEPUTY
REGISTRATION OFFICER OF LABOUR UNIONS - Respondent(s)
=========================================================
Appearance
:
MR
NIRZAR S DESAI for
Petitioner(s) : 1 - 2.
Mr. Anand L. Sharma AGP for Respondent(s)
: 1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/04/2011
ORAL
ORDER
Heard
learned Advocate Mr. NS Desai for petitioners – Azad Hind
Majdur Sena and Dakshin Gujarat Kamdar Parishad, a Registered Trade
Unions having Registration No. G.5313 and G.5134 respectively and
learned AGP Mr. AL Sharma for respondents.
Petitioners
have challenged order passed by Registrar of Trade Unions dated 1st
April, 2011 while exercising power under section 10 of Trade Unions
Act, 1926 cancelling registration of both unions by same dated
order.
Learned
AGP Mr. Sharma appering for respondent raised contention before this
Court that against order of cancellation of registration passed by
Registrar of Trade Unions under sec.10 of Trade Unions Act, 1926,
appeal is available to both petitioners under section 11(aa) of
Trade Unions Act,1926. He also submitted that as per Gujarat
Amendment made vide Gujarat Act 7 of 1962, sec. 6 (w.e.f. 1.7.1962),
section 11A has been inserted after section 11 which provides for
appeal to Industrial Court where State Government is appropriate
Government. Considering his submissions, whole section 11 of Trade
Unions Act, 1926 is quoted as under:
“11.
Appeal. – (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 the Trade Union is situated within the limits of a
Presidency town to the High Court, o r
(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;
(b) where the head
office is situated in any area to such Court, not inferior to the
Court of an additional or assistant Judge of a principal Civil Court
of original jurisdiction, as the appropriate Government may appoint
in this behalf for that area.
(2) The
appellate Court may dismiss the appeal or pass an order directing
the Registrar to register the Trade Union and to issue a certificate
of registration under the provisaions of section 9 or setting aside
the order or withdrawal or cancellation of the certificate
as the case may be, and the Registrar shall comply with such order.
(3) For the purpose of
an appeal under sub section (1) an appellate Court shall, so far as
may be, follow the same procedure and have the same power as it
follows and has when trying a suit under the Code of Civil
Procedure, 1908 (5 of 1908) and may direct by whom the whole or any
part of the costs of the appeal shall be paid and such costs shall
be recovered as if they had been awarded in a suit under the said
Code.
(4)
In the event of the dismissal of an appeal by any court appointed
under clause (b) of sub section (1) the person aggrieved shall have
a right of appeal to the High Court, and the High Court shall, for
the purpose of such appeal, have all the powers of the appellate
court under sub section (2) and (3), and the provisions of those sub
sections shall apply accordingly.”
Section
11A inserted after section 11 vide Gujarat Act 7 of 1962, sec. 6
(w.e.f. 1.7.1962) is also quoted as under:
“Gujarat.-
After section 11, insert following section, namely:-
“11A.
Appeal to Industrial Court in certain cases.- (1) Notwithstanding
anything contained in sub section (1) of section 11 of the case of a
Trade Union in relation to which the State Government is the
appropriate Government, any person aggrieved by any refusal of the
Registrar to register such Trade Union or by withdrawal or
cancellation of a certificate of registration
may within such period as may be prescribed, appeal to the
Industrial Court. The decision of the Industrial Court in such
appeal shall be final.
(2) In respect of an
appeal under sub-section (1), the Industrial Court shall have the
same power and follow the same procedure as an appellate Court and
follows under sub section (2) and (3) of section 11″
[Vide
Gujarat Act 7 of 1962, sec. 6 (w.e.f. 1.7.19620.]”
Therefore,
petitioner is having alternative statutory remedy to approach
Industrial Court by way of appeal against order under section 10 of
Trade Unions Act, 1926. Therefore, complete remedy is available to
petitioner to challenge order in question, under section 11(aa) and
as per State Amendment as referred to above. Therefore, this
petition is not entertained by this Court only on that ground.
Recently, apex court has, in case of Transport and Dock Workers
Union versus Mumbai Port Trust and another, reported in 2011 (2)
SCC page 575, observed as under in paragraph 14:
“14. In
our opinion the writ petition filed by the appellants should have
been dismissed by the High Court on the ground of existence of an
alternative remedy under the Industrial Disputes Act. It is well
settled that writ jurisdiction is discretionary jurisdiction, and
the discretion should not ordinarily be exercised
if there is an alternative remedy available to the appellant. In
this case there was a clear alternative remedy available to the
appellant by raising an industrial dispute and hence we fail to
understand why the High Court entertained the writ petition. It
seems to us that some High Courts by adopting an over liberal
approach are unnecessarily adding to their load of arrears instead
of observing judicial discipline in following settled legal
principles. However, we may also consider the case on merits.”
In
view of aforesaid observations made by apex court, when petitioner
is having alternative effective statutory remedy of appeal under
Act, then, petition is not to be entertained by this Court. That
view has been taken by apex court in aforesaid case. Accordingly,
this petition is not entertained by this Court on that ground alone
and same is therefore, disposed of accordingly without expressing
any opinion on merits with a liberty in favour of petitioner to
avail remedy available under section 11A of Trade Unions Act, 1926.
(H.K.
Rathod,J.)
Vyas
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