National Aviators Guild. v. M.V. Palve.

November, 2009. When we pointed out to the learned Counsel appearing for the petitioner that the order dated 11th November, 2009 is an order made under sub section 10 of the Trade Unions Act, 1926. Section 11 of the Trade Union Act

6.wp.309-10 2 provides for an appeal against such an order to a Court of law and, therefore, we are not inclined to entertain this Petition as alternate remedy is available before the Court of law, the learned Counsel appearing for the petitioner submitted that he cannot be forced to adopt an alternate remedy of an appeal provided in section 11 of the Trade Unions Act, 1926 because, according to him, the order impugned in the Petition is an order made without authority of law. The order has been made by the Registrar of Trade Unions. According to the learned Counsel for the petitioner, the petitioner trade union was registered by the Deputy Registrar and, therefore, according to him the order canceling the registration can be made only by the Deputy Registrar. The learned Counsel relies on the provisions of Section 3 and Section 2(f) of the Trade Unions Act, 1926. The learned Counsel submits that once the power of the Registrar is delegated to the Deputy Registrar by the appropriate government, the Registrar cannot exercise the powers of the Registrar which have been delegated to the Deputy Registrar. The next submission of the learned Counsel is that the order has been made in breach of principles of natural justice because though an opportunity of personal hearing was sought in the replies given to the show cause

6.wp.309-10 3 notices, the order has been made without granting an opportunity of personal hearing. The learned Counsel then submitted that he cannot be forced to adopt alternate remedy becasues Shri Palve who has made the order was actuated by malice.

The order impugned is undoubtedly made under section 10 of the Trade Unions Act, 1926. Section 10 empowers a Registrar to cancel the registration of a trade union. Section 11 provides an appeal against the order made under section 10 either before the High Court if Head Office of the Trade Union is in the Presidency Town OR before a Labour Court or an Industrial Court if the Head Office of the Trade Union is situated in an area, falling within the jurisdiction of a Labour Court or an Industrial Tribunal. Thus, an appeal is provided by the statute to a Court of law. It is no doubt true that if the order is without authority of law, High Court can entertain a Petition under Article 226 directly. So far as the present case is concerned, power under Section 10 is vested in the Registrar. The term “Registrar” is defined in Section 2(f), which reads as under :-

2. Definitions. (a) ... (b) ...

6.wp.309-10 4 (c) ... (d) ... (e) ... (f) “Registrar” means- a Registrar of Trade Unions appointed by the (i) appropriate Government under section 3, and includes any Additional or Deputy Registrar of Trade Unions; and in relation to any Trade Union, the Registrar appointed for (ii) the State in which the head or registered office, as the case may be, of the Trade Union is situated;”

Then relevant provision is Section 3, which reads as under :- Appointment of Registrars- (1) The appropriate "3. Government shall appoint a person to be the Registrar of Trade Unions for each State. (2) The appropriate Government may appoint as many Additional and Deputy Registrars of Trade Unions as it thinks fit for the purpose of exercising and discharging, under the superintendence and direction of the Registrar, such powers and functions of the Registrar under this Act, as it may, by order, specify and define the local limits within which any such Additional or Deputy Registrar shall exercise and discharge the powers and functions so specified. (3) Subject to the provisions of any order under sub-section (2), where an Additional or Deputy Registrar exercises and discharges the powers and functions of a Registrar in an area within which the registered office of a Trade Union is situated, the Additional or Deputy Registrar shall be deemed to be the Registrar in relation to the Trade Union for the purpose of this Act.”

Perusal of the provisions of Sections 2(f) and 3 shows that the power to appoint a Registrar is vested in the Appropriate Government. The Appropriate Government also has power to appoint Additional or Deputy Registrars for the purpose of exercising and discharging such powers and functions of the

6.wp.309-10 5 Registrar under the Act, as the appropriate Government may delegate to such Additional or Deputy Registrar, but, such powers are to be exercised by the Additional or Deputy Registrar under the superintendence and direction of the Registrar. When a Deputy Registrar or Additional Registrar is exercising the powers of the Registrar in a local area, he is deemed to be a Registrar. Thus, Section 3 provides for delegation of the powers of the Registrar to Deputy and Additional Registrar in relation to certain local areas, but, such powers are exercised by the delegates subject to supervision and control of the Registrar.

The law can be taken to be well settled that when the power is delegated, the principal does not become functus officio and does not cease to hold the power. He can also exercise the powers till delegate has exercised its power which is delegated. After the delegate exercises the power, the principal cannot exercise the same power.

In the present case, though the Registration was given by the Deputy Registrar proceedings for cancellation of the registration could have been taken up either by the Registrar or by the Deputy Registrar concerned. The Registrar will continue to have the powers. The learned Counsel submitted

6.wp.309-10 6 that the Registrar will continue to have the power provided he delegates the power and not if the appropriate Government delegates powers. In our opinion as to who delegates the powers will not make any difference to the principal because the principle of law is that even after the delegation of the powers the principal continues to enjoy the powers till delegate exercises such powers. In our opinion, the objection raised to the order that the Registrar did not have any authority has no substance and has to be rejected.

So far as the other contention that the opportunity of personal hearing should have been given is concerned, the opportunity of personal hearing is not provided by the provisions. All that is provided by the provision is that a show cause notice is required to be given. An opportunity of showing the cause has admittedly been given. The settled law is that the principles of natural justice have several shades. One shade of principles of natural justice is issuing show cause notice and granting an opportunity to show cause and that is incorporated in the provision itself and, therefore, it is mandatory to follow that procedure. Whether personal hearing is to be given or not is in the discretion of the authority and, therefore, unless the person who is seeking personal hearing makes out a case for granting

6.wp.309-10 7 personal hearing, mere non-grant of personal hearing does not vitiate the order. In our opinion, therefore, the contention that only because the personal hearing was not given, the order can be said to be an order made in breach of principles of natural justice, also cannot be accepted.

The learned Counsel appearing for the petitioner then submitted that the respondent Palve who made the order was actuated by malice. The malice alleged is because of the terms in the agreement entered into between the petitioners and their employer. In our opinion, from the terms contained in the agreement entered into between the employer and the petitioners malice cannot be inferred against the Registrar. What is further to be seen here is that the petitioners have not cared to join the Registrar who has made the order as a party. Only the person who has made the order has been joined and, therefore, that is also an infirmity in the Petition.

Taking overall view in the matter, in our opinion, it will not be appropriate to entertain this Petition because there is an alternate remedy available to the petitioner. Petition is rejected. However, it is made clear that the observations made above by us are only for the purpose of rejection of the Petition and whatever we have said above, will not come in the way of

6.wp.309-10 8 the petitioners adopting alternate remedy which may be available to them in law. Petition is rejected. (D.K. DESHMUKH,J.)

(A.R. JOSHI, J.)