2007(6) ALL MR 272
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.B. CHAUDHARI, J.

Maharashtra State Road Transport Corporation Vs. Maharashtra S.T. Chalak-Wahak Yantriki Sanghatana, Akola

Writ Petition Nos.3168 of 1993,Writ Petition Nos.2988 of 1994,Writ Petition Nos.5874 of 2004,Writ Petition Nos.5875 of 2004

4th May, 2007

Petitioner Counsel: S. C. MEHADIA, P. N. VERMA , N. M. VERMA
Respondent Counsel: N. M. VERMA,V. G. WANKHEDE, S. C. MEHADIA , R. S. CHARPE

Road Transport Corporation Act (1950), Ss.3, 5 - Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), S.28 - Industrial Disputes Act (1947), S.9-A - Contesting of election by employee of Public Corporation - Circular dated 18-11-1991 requiring resignation prior to contesting election - Validity - There is no right or privilege given to an employee of Corporation to contest election as a Service Condition - Said circular cannot be said to be illegal or ultra vires the service regulations or provisions of the Act.

In the instant case, the question was whether the Circular No.6042 dated 18-11-1991 is contrary to Regulation No.2 and its proviso of the service regulations framed by the Corporation in accordance with section 45 of the Act of 1950, or contrary to Rule 48(b) dated 1-12-1981, or term No.8 of the settlement dated 24-5-1956 drawn in accordance with accepted demand No.61 in the year 1956, and whether the same is liable to be quashed and set aside. [Para 13,15,16]

JUDGMENT

JUDGMENT :- In all these four writ petitions, a common question of law is involved which is being decided by this common judgment.

2. Facts :

In W. P. No.3168/93 the petitioner-M.S.R.T.C. has challenged the validity of the Order dated 13-8-1992 below Ex.2 in Complaint (ULP) No.318 of 1992 passed by the Industrial Court, Amravati, staying the effect and operation of Circular No. 6042 dated 18-1 1-1991 issued by the petitioner-M.S.R.T.C.

3. The Maharashtra State Road Transport Corporation was established in accordance with the provisions of section 3 of the Road Transport Corporation Act, 1950 (for short the Act of 1950). The Act was brought into existence for adequate, economical and properly co-ordinated transport system. Section 5 of the said Act provides for a Board of Directors for the management of the business of the Corporation. The Board of Directors of the Corporation is the supreme authority and rather the authority of the Corporation entirely vests into the Board of Directors. Insofar as the rules and regulations regarding service regulations are concerned, the same were framed. The M.S.R.T.C. being a creature of a statute and looking to its functions to provide for transportation monopoly, the responsibility, conduct and discipline of the officers and servants of the Corporation is of a very high degree. Section 43 of the Act of 1950 provides that the officers and employees of the Corporation are the "public servants". The nature of employment of the employees of M.S.R.T.C. is akin to the employees of Central and State Governments. Service Regulation No.48(b) dated 1-12-1981 provides that no employee of the Corporation would take active part in politics and that no employee would contest the election of Parliament, State Legislature, Zilla Parishad. Panchayat Samiti, Village Panchayat, Cantonment Board and Municipal Council without the previous permission of the Corporation.

4. On 26-4-1985 the Corporation passed Resolution No.2 and issued direction to the effect that generous policy should be applied while granting permission to the employees to contest election but in case an employee is elected he should resign from the service of the Corporation. Thereafter on 29-9-1991 the Corporation adopted another resolution to the effect that in case an employee of Corporation desires to contest election, he should first tender resignation. Pursuant to the resolution dated 29-9-1991 the Corporation issued a Circular dated 18-11-1991 stating that those who desire to contest the election, they should resign first and then contest the election. The respondent herein so also individual employees filed complaints under the provisions of section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and questioned the validity of the said Circular dated 18-11-1991 before the Industrial Court.

5. Insofar as the present writ petition is concerned, the respondent/Union with two others filed complaint (ULP) No.318 of 1992 and challenged the said Circular. The Industrial Court made the interim order which is under challenge in the present writ petition. Since in the other writ petitions which are being disposed of by this common judgment, basically the same issue is involved, i.e. about the validity and implementation of the Circular dated 18-11-1991, all these petitions were clubbed together for final disposal.

6. W.P. No.2988/94 has been filed by Ashok Ramchandra Gomase, who is working as a driver in M.S.R.T.C., Nagpur Division, challenging the validity of the order dated 21-9-1994 made by the Industrial Court, Nagpur, which rejected his application (Ex.2) for grant of interim relief pending decision of Complaint (ULP) No.385 of 1994 in which he challenged the action of M.S.R.T.C. in issuing charge-sheet to him on the basis of the said Circular dated 18-11-1991. In the complaint as well as in the application for interim relief, the petitioner submitted, that the action on the part of the M.S.R.T.C. in proceeding against him in the Departmental Enquiry only on the ground that his conduct in not resigning before contesting the election to the Municipal Corporation was in contravention of the Circular dated 18-11-1991 and, therefore, the domestic enquiry against him was required to be stayed, as the validity of the Circular dated 18-11-1991 was under challenge. He further contended that by order dated 13-8-1992 passed by the Industrial Court, Amravati, in Complaint (ULP) No.318 of 1992, the effect and operation of Circular dated 18-11-1991 was stayed and the said stay order was still in operation. It is this order dated 13-8-1992 passed by the Industrial Court, Amravati, which is under challenge in W.P. No.3168/92. At the time of admission of this writ petition, this Court had granted interim relief and thereby the domestic enquiry against the petitioner was stayed. The petition has now come up for final hearing in routine course.

7. W P. No.5874/04 has been filed by Anil Devidas Garade who is working as a Helper with M.S.R.T.C. and by the Union-petitioner No.2 in which there is a challenge to the interim order made by Labour Court, Akola, on 4-9-2004 below Ex.2 in Complaint (ULP) No.62 of 2004 rejecting the application for grant of interim relief under section 30(2) of MRTU and PULP Act, 1971 as well as the order dated 26-11-2004 below Ex.U-10 and U-11 in Revision Application (ULP) Nos.74/04 and 75/04 made by Industrial Court, Akola, rejecting the application for grant of interim relief. This Court has on 12-10-2004 ordered status quo by way of interim relief and thereafter the petition came up for admission along with W.P. No.5875/04. Since the issue involved is common, this petition is also taken up for final hearing with the consent of the parties. The petitioner No.1 submits that he was served with the charge-sheet dated 1-6-2002 by the Corporation only on the ground that he contested the election for Akola Municipal Corporation from Ward No.12(K) while in the employment of M.S.R.T.C. without first resigning from service in accordance with the Circular dated 18-11-1991 and therefore was guilty of misconduct within the meaning of Item Nos.10 and 22 of Schedule A of Discipline and Appeal Rules. According to him, the Circular No.6042 dated 18-11-1991 itself being illegal, no charge-sheet could have been served upon him muchless enquiry could have been conducted against him and therefore the whole enquiry as well as charge-sheet was vitiated. He approached the Labour Court by filing Complaint (ULP) No.62 of 2004 along with his Union which dismissed the application for interim relief by the Order dated 4-9-2004 and the Industrial Court followed the suit.

8. In W.P. No.5874/04 petitioner No.1 Vishnu Shivram Mehere, who is working as a clerk with M.S.R.T.C. along with his Union has challenged the Order dated 26-11-2004 made by the Industrial Court, Akola, below Exs.U-10 and U-11 in Revision Application (ULP) No.74/04 and 75/04 rejecting the applications for grant of interim relief. This Court has on 12-10-2004 ordered status quo by way of interim relief and thereafter the petition came up for admission along with W.P. No.5875/04. Since the issue involved is common, this petition is also taken up for final hearing with the consent of the parties. The petitioner No.1 submits that he was served with the charge-sheet dated 23-4-2002 by the Corporation only on the ground that he contested the election for Akola Municipal Corporation from Ward No.22(K) while in the employment of M.S.R.T.C. without first resigning from service in accordance with the Circular dated 18-11-1991 and therefore was guilty of misconduct within the meaning of Item Nos.10 and 22 of Schedule A of Discipline and Appeal Rules. According to him, the Circular No.6042 dated 18-11-1991 itself being illegal, no charge-sheet could have been served upon him muchless enquiry could have been conducted against him and therefore the whole enquiry as well as charge-sheet was vitiated. He approached the Labour Court by filing Complaint (ULP) No.61 of 2004 along with his Union which dismissed the application for interim relief by the order dated 4-9-2004 and the Industrial Court followed the suit.

9. Summary of Arguments :

Mr. N. M. Verma, General Secretary of Maharashtra S. T. Chalak Vahak Yantriki Sanghatana, made his submissions in W.P. Nos.5874/04 and 5875/04 on behalf of petitioner No.2 and for respondent in W.P. No.3178 of 1993 Mr. P. N. Verma Advocate made his submissions on behalf of petitioner in W.P. No.2988/94. Mr. S. C. Mehadia, learned counsel, made his submissions in W.P. No.3168/93 for petitioner-M.S.R.T.C. while Shri. R. S. Charpe and V. G. Wankhede made submissions in other petitions for M.S.R.T.C. Mr. N. M. Verma made the following submissions :

(i) Service Regulation No.48(b) dated 1-12-1981 prohibits an employee of the Corporation from taking active part in politics and from contesting election to Parliament. State Legislature and local bodies without previous permission of the Corporation. Resolution No.2 dated 26-4-1985 provided that if an employee contesting the election gets elected he should resign after he is declared elected. However, the Circular No.6042 dated 18-11-1991 issued on the basis of resolution dated 28-9-1981 of the Corporation provided that an employee who wants to contest the election will have to resign first from the service of M.S.R.T.C. The Circular dated 18-11-1991 is therefore contrary to the Service Regulation No.48(B) dated 1-12-1981.

(ii) Service Regulation No.2 and in particular its proviso translated in English reads as under :

"Provided that no addition, omission, revision or amendment of these regulations shall be carried out without consulting the recognised Labour Union and the Labour Commissioner, Maharashtra, concerning the matter mentioned in Schedule to the Industrial Employment Standing Orders Act, 1946. He submitted that before issuance of Circular No.6042 dated 18-11-1991 neither the recognised Labour Union nor the Labour Commissioner, Maharashtra were at all consulted and, therefore, the Circular was illegal and the result of unfair labour practice."

(iii) In accordance with the settlement that was entered into on 25-4-1956 it was agreed in response to Demand No.61 that the Corporation shall not undertake any step which would adversely affect the rights and privileges of the workers or their service conditions. He, therefore, submitted that in accordance with the said clause of settlement, the right of workman to contest an election without resigning from service is being affected by the said Circular dated 18-11-1991.

(iv) In the absence of issuance of notice of change under section 9-A of the Industrial Disputes Act by the employer-M.S.R.T.C. the Circular dated 18-11-1991 becomes bad-in-law.

(v) Since by interim order, the Industrial Court has stayed the said Circular, which interim order is under challenge, these writ petitions should not be entertained and the Industrial Court should be asked to try the complaint on merits and decide the validity of the said Circular instead of deciding the said point in these petitions.

10. Mr. P. N. Verma Advocate made the following submissions:

(i) The charge-sheet that was issued to his client was only on the ground that he contested the election of the local body without resigning from the service of the M.S.R.T.C..

(ii) The petitioner No.1 had applied to the M.S.R.T.C. for grant of permission to contest the election while in employment followed by reminders but the Corporation did not respond and hence it was deemed that permission was granted and, therefore, no fault could be found out to contest the election to the Municipal Corporation.

(iii) In the submission made by Mr. P. N. Verma the Circular dated 18-11-1991 is contrary to law and as such liable to be quashed and set aside. He, therefore, prayed that the petitions (W.P. Nos.5874/04 ad 5875/04) should be allowed and the Circular dated 18-11-1991 should be held invalid.

11. Per contra, M/s. S. C. Mehadia, V. G. Wankhede and R. S. Charpe learned counsel for M.S.R.T.C. submitted as under :

(i) M.S.R.T.C. is constituted under section 3 of the Act of 1950 for adequate, economic and properly co-ordinated system for road transport system. Section 5 of the aforesaid Act provides for formation of a Board of Directors in which the Corporation vests and it is the Board of Directors which manages the affairs of business of the Corporation. The Board of Directors is the supreme authority. Looking to the monopoly nature and activities of the transport Corporation and the nature of duties carried out by the officers and servants of the Corporation, section 43 of the Act provides that the officers and servants of the Corporation are "public servants". There is a great deal of responsibility on the officers and servants of the Corporation in the matter of discipline. Service conditions of the employees of the Corporation are akin to the employees of Central and State Governments and therefore there was nothing wrong on the part of the Corporation in providing for the same discipline as has been provided for Central and State Government employees in such matters.

(ii) The Resolution dated 29-9-1981 and Circular No.6042 dated 18-11-1991 are in public interest and for achieving discipline in the service of the Corporation. By Notification No.1157 dated 12-3-1957 there is an exemption provided from compliance of section 9-A of Industrial Disputes Act, 1947 and hence no notice of change was required to be issued. The proviso to Rule 2 of the Service Regulations does not come into operation because not a single entry in the Schedule to I.E.S.O. Act, 1946 can he said to have been affected because of issuance of the impugned Circular and, therefore, the submission that the recognised Labour Union and Commissioner of Labour, Maharashtra, were required to be consulted before issuance of the Circular dated 18-11-1991 is misconceived.

(iii) The settlement as per demand No.61 sought to be relied on by the Union says that the rights and privileges of the employees and service conditions shall not be adversely affected. There is no right or privilege to contest the election while in the service of the Corporation and hence none is affected. Secondly, by asking an employee to resign first before contesting the election canton be said to be adverse to any service conditions.

(iv) The employees involved in these petitions have been charged only on the ground that they contested the elections without first resigning from service in breach of the said Circular No.6042 dated 18-11-1991 and this being the only question of law involved in these petitions there is no need to ask the Industrial Court or Labour Court to hold any trial and the question deserves to be decided in these writ petitions, as the facts are not disputed. The counsel for the M.S.R.T.C. therefore prayed for upholding the validity of the Circular dated 18-11-1991.

12. Consideration :

Having heard the counsel for the rival parties and having gone through the records of the petitions including the impugned orders, I find that this issue is pending in the Industrial Court as well as this Court since the year, 1992. I further find that there is no other issue involved in the subject-matter of these writ petitions as well as the complaints filed before the Industrial Courts except about the validity of the said Circular No.6042 dated 18-11-1991 on the touch stone of the submissions made. None of the parties could point out to me that except this question any other question is involved in these petitions nor that there would be any necessity of tendering oral evidence in the matter. Hence, I hold that the issue that is involved in the present writ petitions being the only issue and the question of law, the same can be decided in these petitions instead of remitting the matter to the Industrial/Labour Court at such a late stage. I, therefore, frame the question of law as under :

"Whether the Circular No.6042 dated 18-11-1991 is contrary to Regulation No.2 and its proviso of the service regulations framed by the Corporation in accordance with section 45 of the Act of 1950, or contrary to Rule 48(b) dated 1-12-1981, or term No.8 of the settlement dated 24-5-1956 drawn in accordance with accepted demand No.61 in the year 1956, and whether the same is liable to be quashed and set aside."

13. It is not in dispute that after the coming into force of the Act of 1950, a monopoly in transport system was introduced in the State of Maharashtra. As a result of the monopoly in transporting system the responsibility, conduct and discipline of the officers and servants of the Corporation was supposed to be of a very high degree. The behaviour of the officers and servants of the Corporation towards the public at large in the wake of the monopoly nature of transport system was bound to be courteous, helpful and honest. Section 43 of the Act of 1950 reads thus :

"All (Directors) of a Corporation, and all [officers and other employees] of a Corporation, whether appointed by the State Government or the Corporation, shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act or of any other law, to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860)."

Section 45(2)(c) of the Act of 1950 reads thus:

"45. Power to make regulations :-(1) .........

(2) In particular, and without prejudice to the generally of the foregoing power, such regulations may provide for all or any of the following matters, namely:

(a) . . . . . . . .

(b) . . . . . . . .

(c) the conditions of appointment and service and the scales of pay of officers and [other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer-cum-Financial Adviser;]

Perusal of the above provisions show that the Corporation has been given the authority and power to frame service conditions for its employees and not only that they are brought into the category of "public servants." Though I may not subscribe to the view expressed by the counsel for M.S.R.T.C. that the service conditions of the employees of the Corporation and those of Central and State Government are akin, I have no hesitation to hold that the officers and servants of the Corporation being "public servants" a very high degree of responsibility, conduct and discipline is expected of them and therefore the Model Service Conditions adopted by the Central and State Government, if applied to the officers and servants of the Corporation in such matters, would subserve the public interest. However, the challenge to the Circular impugned on the grounds argued before me will have to be addressed and hence I proceed to do so."

14. As regards the challenge to the impugned Circular on the ground that it is in violation of Regulation No.2 or its proviso in service regulations, I find that in clear terms the said proviso provides that the recognised Labour Union as well as the Commissioner of Labour, Maharashtra, will have to be consulted only in the event of proposal to add, delete, change or amend any service condition related to the entries in the Schedule to I.E.S.O. Act, 1946. I have perused the Schedule to the I.E.S.O. Act, 1946 and I find that the Schedule nowhere provides that 'taking part in the election without first resigning' is the service conditions nor taking part in the election is either a right or privilege of a workman. I, therefore, find that in the absence of any right or privilege for taking part in the election in the said schedule, it could not be said that Regulation No.2 of service regulations is violated. I also do not find that it was necessary for the Corporation to consult the recognised Labour Union or the Labour Commissioner, Maharashtra, before issuing the said Circular.

15. As regards the argument that the rights and privileges of the employees cannot be adversely affected in accordance with Item No.8 of settlement of 25-4-1956, I find that there is no right or privilege given to an employee of the Corporation to contest the election as a service condition. In my opinion, to contest the election remaining in employment in the above background cannot be either called as a right or privilege. Further making it mandatory for an employee to resign first before contesting the election, cannot be said to be altering any service condition.

16. Now testing the argument that the Circular is bad in the absence of issuance of notice of change under section 9-A of the Industrial Disputes Act, I find that by Notification No.UDA-1157 (i) dated 12-3-1957 (Annexure-B in W.P. No.3168/93) there is a clear cut exemption in favour of M.S.R.T.C. from the operation of the said provision. In the face of the said exemption, I do not think that the Circular can be held to be illegal for want of notice or change under section 9-A of the Industrial Disputes Act. I further find that allowing an employee at one stage to contest the election with prior permission of the Corporation, which was done in the year 1981 in accordance with Rule 48(b) dated 1-12-1981, was nothing but a facility that was provided, but that cannot be called as a service condition. That was neither a right nor privilege. For all these reasons, I therefore find that the Circular No.6042, dated 18-11-1991 can in no case be termed as illegal or ultra-vires the service regulations or the provisions of any Act. The validity of the said Circular is therefore upheld.

17. As I have expressed earlier, discipline in the Government service and Public Corporation is the dire need of the hour. The conduct and behaviour of the employees of Public Corporations including M.S.R.T.C. is expected to be of a high degree towards the public at large. If an employee has a great desire of becoming a political leader and if he is asked to resign first, I do not find any fault with the M.S.R.T.C. to put its thumb by way of discipline. If the employee has the capacity to fight an election he does not need employment in M.S.R.T.C. To be an employee of M.S.R.T.C. during the process of election is bound to affect the duty to the public at large and hence the issuance of Circular in question cannot be faulted.

18. It appears that the respondent-Union in W. P. No.3168 of 1993 is allowed this litigation without considering the public interest and even without considering the interest of the Corporation so also of the employees. It appears that some employees on the instigation of respondent-Union defied the said Circular dated 18-11-1991 and then joined with the Union for questioning the validity of the said Circular before the Industrial/Labour Court as well as before this Court. It is the Union which has, in my opinion, unjustifiably ignited the litigation and kept the sword hanging for the last 14 years.

19. In view of the above discussion, W.P. No.3168 of 1993 is allowed with costs quantified at Rs.15,000/- to be paid by the respondent-Union to the petitioner within four weeks from today. The impugned order dated 31-8-1992 passed by the Industrial Court, Amravati, in Complaint (ULP) No.318 of 1992 is quashed and set aside.

Shri. Verma appearing on behalf of the Union/respondent No.2 prays for suspension of this judgment for a period of six weeks to approach the higher Court. Prayer is rejected.

20. For the above reasons, W.P. No.2988 of 1994 is dismissed with costs quantified at Rs.5,000/- to be paid by the petitioner to respondents 2 and 3 within four weeks from today. However, petitioner is at liberty to participate in the Departmental Enquiry being conducted against him by respondents No.2 and 3. The Departmental Enquiry be completed within a period of three months from the date of receipt of writ of this Court. If the respondents No.2 and 3 take a decision of terminating the services of the petitioner, the said order shall not be effective for a period of fifteen days from the date of service of such order to the petitioner to enable him to approach the appropriate forum.

21. For the same reasons, W.P. No.5874 of 2004 is dismissed with costs quantified at Rs.5,000/- to be paid by petitioner No.2 to respondents 1 to 3 within four weeks from today.

Mr. Verma appearing on behalf of respondent/Union prays for suspension of this judgment for a period of six weeks to approach the higher Court. Prayer is rejected.

22. For the same reasons, W.P. No.5875 of 2004 is dismissed with costs of Rs.5.000/- to be paid by petitioner No.2 to respondents 1 to 3. However, petitioner No.1 is at liberty to file reply to the show cause notice issued to him. If respondents 1 to 3 ultimately take a decision to terminate the services of petitioner No.1 after the Departmental Enquiry, the same shall not be effective for a period of fifteen days from the date of service of such order on petitioner No.1 so as to enable him to approach the appropriate forum. Labour Court, Akola, is directed to decide the complaint (ULPA) No.61 of 2004 within a period of six months from the date of receipt of writ of this Court.

Mr. Verma appearing on behalf of respondent/Union prays for suspension of this judgment for a period of six weeks to approach the higher Court. Prayer is rejected.

Writ petitions disposed of.

Petition allowed.