1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7641 OF 2008 ALONGWITH WRIT PETITION NO.7657 OF 2008 Cimmco Spinners Employees Union & Ors. ..... Petitioners V/s State of Maharashtra & Ors. ..... Respondents. Shri Madhav Jamdar for the Petitioners in both the above petitions. Shri C.R. Naidu i/b M/s C.R. Naidu & Co. for respondent Nos. 3, 4 and 6 to 9 in Writ Petition No.7641 of 2008. Shri C.R. Naidu i/b M/s C.R. Naidu & Co. for respondent Nos 3 to 9 in Writ Petition No.7657 of 2008. Mr. R.D. Rayrikar, AGP for respondent Nos. 1 and 2 in both the above Writ Petitions. CORAM: V.M. KANADE, J. DATE : 24TH JUNE, 2009 P.C:­ 1. Both the above Petitions are being disposed of by this common order as the facts and issues involved in the same 2 are identical. 2. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents. 3. By these Petitions, petitioners are challenging the Certificate dated 14/08/2008 issued by the Deputy Registrar of Trade Union, Pune Division Pune to the respondents on being satisfied that the dispute referred to in sub­section (1) of section 28(1A) of the Trade Unions Act, 1926 exists in respect of the property of the Union and, accordingly, he has referred the said dispute to the Industrial Court. 4. Brief facts are that the respondents filed an application to the Deputy Registrar, seeking certificate under section 28(1A) of the said Act. In the said application, it was contended that they are members of the said Union for a period 3 not less than six months and alleged that irregularities were committed by the office bearers of the Union. It was specifically contended that one of the irregularities was that the respondent Nos. 1 to 3 did not issue receipts for the payment of membership subscription made by the members. Though this fact had been brought to their notice repeatedly by sending reminders, letters and circulars, the respondents in the said application had failed to issue receipts for payment of the subscription made. A reply was filed by the petitioners herein in which this fact was denied and it was contended that the respondents themselves had collected the said subscription. The Deputy Registrar, after going through the said application, and reply and after hearing the parties was pleased to come to the conclusion that the dispute regarding the property of the Union including Books of Accounts of the Trade Union exists. He has also noted that though the complainant was asked to submit membership receipts for six months, the said receipts had not 4 been submitted in both the applications. Immediately, thereafter, he has noted that the complainant had submitted his say on 11/6/2008 alongwith Circulars dated 1/5/2008 and 24/5/2008 bearing No.16/2008 and No.17/2008. In these circulars, it was clearly stated that the respondents were the Executive Members of the said Union and this was for a period exceeding six months. After having so noticed the circulars which were produced before him, the said certificate was issued. 5. Shri Jamdar, the learned Counsel appearing on behalf of the petitioners submitted that there is clear non­ application of mind on the part of the Deputy Registrar in issuing the said certificate because, though he had noted that the membership receipts for six months were not produced, he has still granted the certificate in favour of the complainants. He has invited my attention to section 28(1A) and submitted that one of the requirements which had to be complied with by the 5 complainant was to prove that he was the member for a period of not less than six months. He submitted that this requirement not having been complied with by the complainants, the Deputy Registrar ought to have refused to give certificate under the said section. He also invited my attention to Regulation 23 which deals with manner of referring dispute to Industrial Court under section 28­1A. 6. Shri Naidu, the learned Counsel appearing on behalf of the respondents­members, on the other hand, submitted that it was a specific case and complaint of the complainants that though payment of subscription was made, receipts were not issued and the Deputy Registrar was not competent to decide the said issue. The Deputy Registrar, however, being satisfied from the documents which were produced by the complainants had referred the dispute. He submitted that though this Court had refused to grant ad­interim relief and directed the Industrial 6 Court to proceed with the hearing of the complaint, petitioners herein managed to prolong the hearing of the dispute in view of pendency of the Petition in this Court. 7. In my view, there is no merit in the submissions made by the learned Counsel appearing on behalf of the petitioners. The Deputy Registrar, while exercising power under section 28(1A) has to arrive at subjective satisfaction regarding existence of dispute relating to the property of the Union including Books of Accounts and the complaint has to be filed by a person who is a member of the Union for not less than six months. Sub­section (1) of section 28(1A) of the said Act and Regulation 23 of the Bombay Trade Unions Regulations, 1927 read as under:­ “28(1A). Power of Industrial Court to decide certain disputes 7 (1)Where there is a dispute as respects whether or not any person is an office bearer or member of a registered Trade Union including any dispute relating to wrongful expulsion of any such officer­ bearer or member, or where there is any dispute relating to the property including the account books of any registered Trade Union, any member or such registered Trade Union for a period of not less than six months, may, with the consent of Registrar and in such manner as may be prescribed, refer the dispute to the Industrial Court constituted under the Bombay Industrial Relation Act, 1946, (Bom. XI of 1947) for decision.” “23. Manner of referring dispute to Industrial Court under Section 28­1A (1)Any person desiring to obtain the 8 consent of the Registrar under sub section (1) of Section 28­1A for the purpose of referring a dispute to the Industrial Court under that sub­ section shall make an application to the Registrar in form ‘K’. (2)On receipt of the application under sub­rule (1), the Registrar shall make such inquiries as he may deem fit; and if he is satisfied that any dispute of the nature referred to in sub­ section (1) of Section 28­1A exists he may give his consent in if Form “L”, called the consent certificate. (3) On receipt of the consent certificate under sub­rule (2), the applicant shall then refer the dispute to the Industrial Court in Form ‘M’ and enclose therewith the consent certificate in original.” On conjoint reading of the said section 28(1A) and Regulation 9 23, it is evident that the Deputy Registrar is not expected to hold an inquiry for deciding any preliminary issue on the question of membership of the complainant. The said provision obviously has been made in order to ensure that totally frivolous applications are not filed and, therefore, the Deputy Registrar has to act a a filter to weed out the frivolous complaints. Therefore, the satisfaction of the Deputy Registrar is a subjective satisfaction regarding the existence of dispute and the complainants being prima facie members of the Union. For that purpose if some evidence is led to show that they are members of the said Union, the Deputy Registrar, on being satisfied, is expected to issue the said certificate so that the dispute is referred to the Industrial Court which is then supposed to adjudicate the rival contentions raised by the parties in the complaint and dispute. The Deputy Registrar, though, he has noticed that receipts were not produced by the complainants, has also further noticed that the complainants had produced 10 circulars which indicated that they were office bearers of the Union for more than six months. One of the grievances of the complainants is that no receipts were issued by the office bearers of the Union even though subscription amount is paid. That being the position, there was no question of production of those receipts before the Deputy Registrar. If the submission made by Shri Jamdar, the learned Counsel appearing on behalf of the petitioners is accepted, then, if no receipts are issued by the office bearers of the Union, no member could be entitled to raise a dispute regarding the property of the Union and, in such circumstances, the Deputy Registrar would be precluded from referring the dispute to the Industrial court. In my view, therefore, there is no merit in the submission made by the learned Counsel appearing on behalf of the petitioners. 8 Both the Petitions are dismissed. All questions which are raised by the petitioners herein are kept open and the 11 Industrial Court shall decide the same on merits and in accordance with law. (V.M. KANADE, J)