Writ Petition No. 2236 of 1995

26th March, 1996

Petitioner Counsel: Mr. K.K.SINGHVI with Mr. A.V.BUKHARI
Respondent Counsel: Mr. C.J.SAWANT, Advocate General, with Mr. R.V.GOVILKAR
Other Counsel: Mr. J.P.CAMA with Mr. K.P.ANULKUMAR Mr. S.M.DHARAP Ms. LATA DESAI

JUDGMENT

MAJITHIA, J.- The petitioner, Maharashtra Rajya Mathadi Transport and General Kamgar Union, has sought a mandate to respondent No.1 to nominate only its nominees on the Boards of respondent Nos.2 to 5, in this petition under Article 226 of the Constitution of India.

2. The gravamen of the petitioner's allegation is that right from the enactment of the Maharashtra Mathadi, Hamal and other Manual workers (Regulation of Employment and welfare) Act, 1969 (for brevity 'the Act") till date, respondent No.1 nominated the representatives of Mathadi workers on the respondent Nos. 2 to 5-Boards after taking into consideration the membership of the trade union. the trade union having maximum number of membership was given representation. Nine thousand eight hundred twenty eight Mathadi workers are registered with respondent No.2 out of which 8823 are members of the petitioner-union. Respondent No.1 nominated only one office bearer of the petitioner-union on the Board of respondent No.2. Respondent No.1 nominated one member from other union on the Board which do not have the membership of Mathadi workers registered with respondent No.2, Similarly, the total number of Mathadi workers registered with respondent No.3 is 4577 out of which about 3278 are members of the petitioner-union and as such respondent No.1 was obliged to nominate members on the Board of respondent No.3 from the office-bearers of the petitioner-union only. Identical allegations have been made with regard to respondent Nos. 4 and 5.

3. Written statement by way of affidavit has been filed by Sudhir Yashwant Kursange, Section Officer, Government of Maharashtra in the Department of Industries, Energy and Labour. It is stated therein that till the year 1991 there was only one union, namely, the petitioner-union, operating in the field of the 4 Boards and that the petitioner-union had the monopoly of representation on the 4 Boards. After 1991 or so, other two unions, namely, Akhil Bharatiya Mathadi Transport and General Kamgar Union and the Maharashtra Mathadi and General Kamgar Union, came into existence. Since the petitioner had the largest membership prior to 1991, as it was the only union operating in the field of the four respondent-Boards, it has the total monopoly of representation on the four respondent-Boards. But in the year 1995, when the reconstitution of the four Boards took place, the other two unions, namely, Akhil Bharatiya Mathadi Transport and General Kamgar Union and the Maharashtra Mathadi and General kamgar Union, which were earlier part of the petitioner-union, were also given representation. The earlier nominations were not made on the basis of membership of the union representing Mathadi workers. It is then stated that the petitioner-union has not been given 100% representation as demanded by it. Two representatives of petitioner-union were nominated on the respondent No.2-Board. As regards respondent No.3-Board, 3 out of 5 members belong to the petitioner-union. As regards respondent Nos. 4 and 5-Boards, 2 out of 6 members are nominated from the petitioner-union.

4. In substance, it is averred on behalf of respondent No.1 that before 1991, there was no other union except the petitioner-union, So, all the representatives on the 4 Boards were the members of the petitioner-union.

5. In the body of the petition, challenge has been made to the vires of Section 6 of the Act. However, at the time of arguments, learned counsel abandoned this plea and he only submitted that the union having largest number of members should be given representation on the respondent Nos. 2 to 5-Boards. Learned counsel submitted that prior to 1991 the principal consideration for nomination was the total number of membership of the union, and the union which had the largest number of membership was given preference for nomination on the Board.

6. In order to appreciate the contention, it will be useful to reproduce Section 6 of the Act :-

"6. (1) The State Government may, by notification in the Official Gazette, establish a Board to be known by such name as may be specified in the notification for any scheduled employment in any area. One or more Boards may be appointed for one or more scheduled employments, and for one or more areas :

Provided that, the Boards established for the scheduled employments specified in column 4 of the Table appended to sub-section (4A) of section 1 in the area of Greater Bombay shall be the Boards deemed to have been established also for such scheduled employments in the area and on the dates specified in columns 2 and 3 of the said Table, respectively.

(2) Every such Board shall be a body corporate with the name aforesaid, having perpetual succession and common seal, with power to acquire, hold and dispose of property, and to contract, and may by that name, sue or be sued.

(3) The Board shall consist of members nominated from time to time by the state Government representing the employers, the unprotected workers, and the State Government.

(4) The members representing employers and unprotected workers shall be equal in number, and the members representing the State Government shall not exceed one-third of the total number of members representing employers and unprotected workers.

(5) The Chairman of the Board shall be one of the members appointed to represent the State Government, nominated in this behalf by the State Government.

(6) After nomination of all the members of the Board including the Chairman the State Government shall, by notification in the Official Gazette, publish the names of all the members of the Board.

(7) The term of officer of members of the Board shall be such as may be prescribed.

(7A) There shall be paid to every member (not being a member representing the State Government) from the fund of the Board, travelling and daily allowances for attending meeting of the Board at such rates as may be prescribed.

Sub-section (3) of Section 6 says that the Board constituted under the Act shall consist of members nominated by the State Government representing the employers, the unprotected workers and the State Government. The terms 'employer' and 'unprotected workers' are defined in Section 2(3) and (11) of the Act, which read as under :-

"(3) 'employer', in relation to any unprotected workers engaged by or through contractor, means the principal employer and in relation to any other unprotected worker, the person who has ultimate control over the affairs of the establishment, and includes any other person to whom the affairs of such establishment are entrusted, whether such person is called an agent, manager or is called by any other name prevailing in the scheduled employment;

(11) 'unprotected worker' means a manual worker who is engaged or to be engaged in any scheduled employment; "

The employer and the unprotected worker will be those who fall within the ambit of these terms. Nomination on the Boards shall be of those who will be representing the employer and the unprotected workers. Thus, the nomination will be of persons representing the employer and the unprotected workers. Learned counsel wants us to read sub-section (3) of section 6 to mean that the union having the largest number of members will have the right to represent the unprotected workers. The language of sub-section (3) is unambiguous. It only says that the State Government will nominate members representing the unprotected workers. The discretion is vested in the government as to whom to nominate. But the State Government, while making nomination, has to consider that the nominated member must be able to represent the unprotected workers. The State Government has to form an opinion as to who should be nominated for representing the unprotected workers on the Boards. We cannot read in the statute that only the members of the union having the largest number of members could be considered for nomination. Membership of the union of unprotected workers is not the criteria for making nomination. We cannot add something in the statute which is non-existent and read the statute as if only the representatives of the union having the largest number of members can be nominated on the boards. As observed by us earlier, the petitioner has not challenged the vires of the Act. The power under sub-section (3) of Section 6 for making nomination on the Boards vests with the state Government. Where a power is vested in a high authority, like the State Government, there is a presumption that the same will be exercised in a reasonable manner and if the selection is made on extraneous consideration in an arbitrary manner, the Courts have ample power to strike down the same. In the instant case, we do not think that the power under sub-section (3) of Section 6 has been exercised in an arbitrary manner. In fact, the nomination to the Boards has been made in a just and fair manner.

7. For the reasons stated above, the Writ Petition fails and is dismissed. Rule is discharged. No order as to costs.

Petition dismissed.