IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL In Writ Petition No. 1416 of 2007 (M/S) 1- Bhel Workers Union (Heep & CFFP) Ranipur, Hardwar, through its President R.S. Choudhary (Radhey Shyam Choudhary) 2- Radhey Shyam Choudhary Son of Late Shri Jai Narayan Choudhary, resident Of Quarter No. 11, Type 3, Sector 1, BHEL Ranipur, Hardwar (President of Petitioner No.1). 3- Suraj Mal son of Late Shri Bhag Mal, resident of 228 Ambedkar Nagar, Jhaulapur, Hardwar (General Secretary of petitioner no.1). ……Petitioners Versus 1. Up Saram Ayoukt Evam Up Registrar Trade Union, U.P. Saharanpur Chattre, Sharanpur. 2. Registrar Trade Unions, U.P. Kanpur. 3. B.P.Ojha, Resident of Quarter No. 3, Type 2, Sector 2, BHEL Ranipur, Hardwar …….Respondents. Mr. M.C.Pant, Advocate for the petitioner. Mr. Pankaj Miglani, Advocate for the respondents. Mr. V.K.Kohli, Senior Advocate with Mr. I.P.Kohli, Advocate for the intervenor. Dated:-29-06-2010 Hon’ble B.S.Verma, J. Heard learned counsel of the parties and perused the record. By means of this writ petition the petitioner has sought a writ in the nature of certiorari quashing the order dated ¾-10-2000 passed by respondent no.1 i.e. by Up Shram Ayoukt Evam Registrar Trade Union, Sharanpur Area. Sharanpur (Annexure-I to the writ petition) whereby Form ‘J’ of the petitioner No.1 Union was rejected. According to the petitioner, the petitioner’s union is registered trade union under the provisions of Trade Union Act 1926 and the Union is affiliated to Hind Mazdur Kisan Panchayat. The 2 election of said Union was held in 1992 and petitioner No.2 is elected President of the said Union. As per the byelaws the election of union is conducted every year. Till 1999 the petitioner No.2 was working as President of the Union. For the year 2008 fresh election was held on 12.02.2000 under the presidentship of petitioner no.2 in which petitioner no.2 was elected as President while petitioner no. 3 was elected as General Secretary and other office bearers of the working committee have also been elected. For the fresh elections for the year 12.02.2000, Form ‘J’ 2000 has been submitted before the respondents on 17.02.2000 through U.P.C., within the time as has been prescribed by byelaws, when came to the notice of the petitioner that Form ‘J’ of 2000 has not been received in the office of respondents then he again submitted the Form ‘J’ 2000 in the office of respondent on 12.05.2000. It has been stated in the Para-5 of the writ petition that Sh. B.P.Ojha, respondent No.3 was the General Secretary of the Union in the year 1999 and he submitted his resignation on 28.07.1999 from the post of General Secretary, which was accepted by the Working Committee vide resolution dated 11.08.1999. Copy of which has been annexed as annexure-V to the writ petition that Shri Osman Ali was elected as Secretary of the Union in the year 1999 in place of Shri B.P.Ojha and respondent No.3 never elected either as General Secretary in the election dated 12.02.2000 or office bearer of the Union. No meeting pertaining to the election was held as per clause 26-A of the byelaws of the Union. No prior notice of 15 days was given to the members of the Union, the election was due to be held in the month of January and there is no provision to conduct the election in the month of May. It is further stated in the Para-9 of the writ petition that respondent no.3 has submitted Form ‘J’ 2000 with the names of Shri C.P.Singh and Shri T.R. Sachedena as elected Office Bearers in the 3 election dated 13.05.2000. These three members have filed their affidavit before the authorities concerned stated therein that they were never elected in the said election nor any election was held on 13.05.2000 as alleged by respondent no.3 even though the respondent authority approved the election and issued Form ‘J’ 2000 infavour of respondent No.3. The impugned order for issuance of Form ‘J’ in favour of respondent no.3 was made in arbitrary manner without considering the fact mentioned above. The averments made in the writ petition have been denied by filing counter affidavit by respondent no.3 wherein he asserted that he is a duly elected secretary of the said union. The learned counsel for the petitioners have relied upon the judgment of the Iffco Phulpur Karmchari Sangh, Phulpur Allahabad Vs. Registrar Trade Unions U.P. Kanpur and others [(1991)2UPLBEC 1345] and in Para 17 where in it has been held that if there is a dispute between members of the committee of the Union. The Registrar ought to have referred the matter to the civil court, he is not a competent to decide himself. Since, the power of the Registrar is administrative in nature. It has been held in para-21 that the judgment is the finding of fact on the basis of record can not be interfere in the writ jurisdiction alternate remedy is available to the petitioner to approach the civil court. Para 17 and 21 of the said judgment is quoted below:- Para-17:-“In the case of North-Eastern Railway Employees Union (Supra), Hon’ble K.N.Singh, J.(as his Lordship then was) examined in considerable depath the parameters and the nature of powers vested in the Registrar under Section 28(3) read 4 with Regulation 17-A and in paragraph 10 of the judgment his lordship ruled as follows: “The Registrar was not holding a quasi-judicial enquiry. He was discharging an administrative function. He was not required to examine witnesses or to allow opportunity for cross-examination of witnesses. No doubt even an administrative enquiry must be held in a fair and impartial manner. In the instant case even if the Registrar was required to act in a quasi-judicial manner, the parties were given adequate opportunity but the petitioner No.2 did not avail the same. The notice dated 12.09.73 clearly stated that the parties should bring all evidence whether oral or documentary with them when they appear before the Registrar on 17.09.73. Petitioner No.2 did not comply with that requirement. The enquiry was adjourned for 22.0973 with the consent of the parties but even on that date petitioner No.2 did not appear or be produced any document or evidence in support of his case. The Registrar was not under any legal obligation to adjourn the enquiry further or to fix any other date. He had discretion to proceed with the enquiry or to adjourn the same. Once he proceeded with the enquiry he did not violate the same. Once he proceeded with the enquiry he did violate any law. Petitioner No.2 did not attend the enquiry on the ground of his illness. In the counter- affidavit filed by Shri R.S. Awasthi, it has emphatically been asserted that petitioner No.2 was not confined to bed instead he had been moving about he had performed journey from Gorakhpur to Lucknow between September 21 and 22, 1973, On these facts I am staisfied that petitioner No.2 was given full opportunity but he did not avail the same.” Para-21:-“Lastly, learned Counsel made an attempt to question the correctness of the impugned order on facts. We, however, do not propose to comment on that submission in view of the fact that the decision of the Deputy Labour Commissioner is summary in nature and is open to challenge by way of a civil suit in which both the parties can lead evidence in support of their respective 5 claims, and possibly also by way of approach to the Registrar as the notification dated 29.11.1990 delegating powers of the Registrar on the Deputy Labour Commissioner itself provides that the Deputy Labour Commissioner shall act under the superintendence and direction of the Registrar. Thus the petitioner has ample alternative remedies available to it so far as challenge to the impugned order on facts is concerned. In the result, the petition fails and is dismissed.” As per the averment made in the writ petition, the allegation was that three members who have been shown the members of the Union have filed their affidavit before the registrar after issuance of Form ‘J’ 2000 in favour of the respondent no.3 that they never participated in the election. When the facts came in the knowledge of the petitioner, the petitioner himself presented application for Form ‘J’2000. Earlier application was sent by UPC under existing certificate through ordinary post and alleged that it was not received in the office as admitted by the petitioner himself. There are so many disputed questions of facts are involved whether respondent no. 3 tender the application to registrar or not, whether the subsequent election has been conducted as pleaded by respondent no.3 for which the Form ‘J’ was issued. In the facts and circumstances the petitioner may approach the civil court for the redressal of his grievance if so advised. Intervention application stands disposed of. The present writ petition is dismissed on the ground of alternate remedy. (B.S.Verma, J.) 29-06-2010 JM