Labour Law 1

LLB 3rd Semester

Topic of Presentation

Cancellation of Certificate of Registration of a Trade Union and Appeal against Cancellation

Submitted to:Chairman, Dept of Laws

Submitted by:Mehar Ranu Roll # 417/08, 3rd Semester (Evening)

Bibliography

Kirpa Dayal Srivastava The Law Relating to Trade Unions In India

R.C. Saxena Labour Problems and Social Welfare

Dr G.M. Kothari A Study of Indusrial Law P 290-302

V.K. Kharbanda Commentaries on Trade Unions Act, 1926 P 274-353

Dr Meenu Paul Labour and Industrial Law p 158-161

Cancellation of Certificate of Registration of a Trade Union and Appeal against Cancellation

Introduction Modern Trade Union is the product of conditions created by industrialization. Trade Union movement is not confined to the premises of one nation or country but it has widened in the international field. The movement of Trade unionism which came throughout the world as the movement of organized labour in the form of combination and collective actions, has been instrumental in generating the major basis of modern labour law in all the countries. The resolution of the Right to Organise and to bargain collectively was adopted by the International Labour Conference (ILO) on July 11, 1947. In India, the Right to form Association or Union is a Fundamental Right guaranteed by Article 19 (1)(c) of the Constitution. Development of Trade union movement and Law in India The Trade Union movement in India can be traced back to 1890, when the BOMBAY MILLHANDS ASSOCIATION was formed. A large number of labour associations were started after 1890. For example the Printers Union, Calcutta was formed in 2005. The Kamgar Hitwardhak Sabha and the Social Service League was established in 1910. These associations were essentially labour welfare organizations. They could hardly be regarded as modern trade unions. Trade Unions and their activities were not considered lawful in the beginning anywhere in the world. This was so in India also. Until 1926, there was no law in India for registration and protection of trade Unions. In 1920, when a suit was filed by BINNY & CO against the officials of the MADRAS TEXTILE LABOUR UNION., The High Court of Madras, following the common law in England granted an INJUCTION restraining the union officials from influencing the workmen to break

4 their contracts with employers by striking. This led to agitation by Indian political leadership as well as British Labour Party. As a result in 1926, the Trade Unions Act, 1926 was enacted on the pattern of English Law. Definition of Trade Union A Trade Union is a continuous combination of wage earners for the purpose of maintaining the conditions of their lives. Section 2 (h) defines Trade Union means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business and includes any federation of two or more trade unions. Trade Union means any combination formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers. According to Sidney and Beatrice Webb, A trade union is a continuous association of wage-earners for the purpose of maintaining or improving the conditions of their working lives. In 1929 the Trade Union Act was amended by the ACT XV of 1928 to facilitate the procedure of APPEAL against decisions of the REGISTRAR refusing to register a Trade Union or withdrawing a Certificate of REGISTRATION. REGISTRATION OF TRADE UNION Rgistration does not bring any Trade Union into existence. Registration is merely a proof of already existing trade Union. The procedure for the Registration of the Trade Union has been laid down under Sections 4,5,6,7 and 8 of the Trade Union Act. Section 4 Mode of Registration Any seven or more members of a Trade Union may apply for registration of the trade union under this Act. The application shall not

5 be deemed to have become invalid merely by reason of the fact that at any time after the date of the application, but before the registration of the Trade Union, some of the applicants but not exceeding half of the total number of the persons who made the application, have ceased to be members of the Trade Union or have given notice in writing to the Registrar dissociating themselves from the application. No trade Union of workmen shall be registered unless at least ten percent, or one hundred of the workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union on the date of making of application for registration. Section 5 Application of Registration Every application for registration of a Trade Union shall be made to the Registrar in Form A and shall be accompanied with a copy of rules of the Trade Union with all the particulars. Section 6 Provisions to be contained in the rules of a Trade Union A Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act. Every registered Trade Union is required to have written rules dealing with certain matters specified in Schedule II of the Central Trade Union Regulations, 1938. Section 7 Power to call for further particulars and to require alteration of name The Registrar may call for further information for the purpose of satisfying himself that any application complies with the provisions of the Act that the Trade Union is entitled to registration. If the name under which a Trade Union is proposed to be registered is identical with any other existing trade Union, the registrar shall require the persons applying for registration to alter the name of the Trade Union and shall refuse to register the Union until such aleration has been made.. Section 8 Registration

6 The Registrar will register the Trade Union by entering in a register to be maintained as may be prescribed if he is satisfied that the Trade Union has complied with all the requirements of the Act with regard to registration. Section 9 Certificate of registration The Registrar, on registering a Trade Union under Section 8, shall issue a certificate of registration in the prescribed form which shall be conclusive evidence that the Trade Union has been duly registered under this Act. CANCELLATION OF A CERTIFICATE OF REGISTRATION Section 10 Cancellation of registration A certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar (a) On the application of the Trade Union to be verified in such manner as may be prescribed or (b) If the Registrar is satisfied that the certificate has been obtained by fraud or mistake or that the Trade Union has ceased to exist or has willfully and after notice from the Registrar contravened any provision of this or allowed any rule to continue in force which is inconsistent with any such provision or has rescinded any rule providing for any matter provision for which is required by Section 6 Provided that not less than two months previous notice in writing specifying the ground on which it is proposed to withdraw or cancel the certificate shall be given by the Registrar to the Trade Union before the certificate is withdrawn or cancelled otherwise than on the application of the Trade Union. A certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar on the following grounds (i) on the application of the registered Trade Union According to Section 10 (a), a registered Trade Union may apply to the Registrar for cancellation of the registration of the Trade Union. According to Central Trade Unions Regulations 1938, the Registrar on receiving an application for the cancellation of registration shall, before

7 granting the application, satisfy himself that the withdrawal or cancellation of registration was approved by a general meeting or majority of the members of the Trade Union. On his satisfaction, after the verification of the application, the Registrar may cancel the certificate of the registered Trade Union. (ii) When registration was obtained by fraud or mistake According to Section 10 (b), the Registrar may cancel the certificate of registration of a registered Trade Union if he is satisfied that the certificate of registration has been obtained by fraud or misrepresentation. (iii) When Trade Union ceases to exist According to Section 10 (b), the Registrar may cancel the certificate of registration of a registered Trade Union if he is satisfied that the registered Trade Union has ceased to exist. (iv) Contravention of any provision of Trade Union Act, 1926 According to Section 10 (b), the Registrar may cancel the certificate of registration of a registered Trade Union if the registered Trade Union has contravened any of the provisions of the Trade Unions Act, 1926. (v) Inconsistency of any rule of the Trade Union with the rules framed under Section 6 of the Act According to Section 10 (b), the Registrar may cancel the certificate of registration of a registered Trade Union if he is satisfied that the Trade Union has allowed any rule to continue in force which is inconsistent with any rule made under Section 6 of the Act. Once a Trade Union is registered its certificate of registration cannot be cancelled/save and except under the provisions of Section 10 of the Act. According to Section 10 (b), the Registrar must give previous notice of not less than two months before the certificate of Registration is withdrawn or cancelled. The Madras High Court in Neyveli National Workers Union v/s Additional Registrar-II of Trade Unions (1999 Lab IC 701 Madras) held

8 that a notice under Section 10 (b) which does not give the Trade Union an opportunity to comply with the provisions of the Act is not a proper notice. Cancellation of registration in such case is not proper. The Bombay High court in Mukand Iron & Steel Works Ltd v/s V.G. Deshnande, Registrar of Trade Unions (1986 LLJ II 290 Bombay) held that once the Registrar cancels or withdraws the registration of a Trade Union, he has no power to review it and he cannot withdraw that order of cancellation because of subsequent event. The Bombay High Court further explained that a Trade Union whose registration has been cancelled has remedies in the form of Appeal against such order. If the appeal succeeds, the order of cancellation or withdrawal of registration could be held to be bad ab initio and the Trade Union would continue on the register as if the order of cancellation has not been passed. If fresh registration is permitted, it would operate from the date thereof.

APPEAL AGAINST CANCELLATION The original Act of 1926 was amended in 1929 so as to provide for the procedure of Appeal against the decision of the Registrar. Section 11 Appeal Section 11 of the Trade Unions Act, 1926 provides for the appeal(i) (ii) Appeal against the refusal of the Registrar to register the Trade Union and Appeal against the withdrawal or cancellation of a certificate of registration of Trade Union by the Registrar

According to section 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 has the right of Appeal. The Appeal should be preferred within the stipulated period.

9 The proceedings by way of Appeal must be started within sixty days of the date on which the Registrar passed the order against which the appeal is made. Appellate Court [Section 11 (1) (a), (b)] According to Section 11 (1), an appeal against refusal of the registrar to register a Trade Union or against the withdrawal or cancellation of a certificate of registration may be made to the(a) (b)

(c)

where the head office of the Trade Union is situated within the limits of a Presidency town, to the High Court or 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, where the head office of Trade Union is situated in any other area, to such court, not inferior to the Court of an additional or assistant judge or a principal Civil Court of original jurisdiction, as the appropriate Government may appoint in this behalf for that area.

Section 11(2) The appellate court may dismiss the appeal against the refusal of the Registrar to register the Trade Union or the appellate authority may pass an order directing the Registrar to register the Trade Union and to issue a certificate of registration under the provisions of Section 9 of the Act. Section 11(3) For the purpose of an appeal, appellate court shall follow the same procedure and has the same powers as it follows when trying a suit under the Code of Civil Procedure, 1908, and may direct by whom the whole or any part the costs of the appeal shall be paid. Appeal to the High Court [Section 11(4)] An appellate court appointed by the appropriate Government under clause (b) of Section 11(1) may dismiss an appeal under Section 11(2). According to Section 11(4), in the event of dismissal of an appeal by such appellate court, the person aggrieved shall have

10 a right to appeal to the High Court against the dismissal of appeal by the appellate court. Procedure to be followed by the High Court According to Section 11(4) , for the purpose of appeal under Section 11(4) of the Act, the High Court shall have powers of Appellate Court under Section 11(2) and 11(3). The provisions of Section 11 (2) and 11(3) apply accordingly. Hoever, there is some anomaly in the provisions of Section 11 of the Trade Unions Act, 1926. it is clear from the provisions of this section that a Trade Union having its office situated within limits of a Presidency Town shall have only one right of Appeal against the decision of the Registrar refusing to register such Trade Union. Bur a Trade Union having its office situated within the mufassil, shall have two rights of Appeal against the decision of the Registrar. It cannot go directly to the High Court, but shall first move the local court exercising original jurisdiction and then prefer an appeal against the decision of the local Court to the High Court. The provision of an appeal under Section 11 is not a bar for invoking the writ jurisdiction under Article 226 of the Constitution. Conclusion Various shortcomings have been pointed out in Trade Unions Act of 1926. Even the amendments passed by Amendments Act of 1947 have not been enforced. Labour in small industries is yet not organized. It is unable to avail of the various benefits extended under various labour laws. The Agriculture labour which constitutes the core of labour is still unorganized. It must be regrettably admitted that even today organized association of the workers in the country is far below the stage of development, which it has reached in Gret Britain and in among other countries of the world.

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