Andhra Pradesh High Court - Amravati
I.C.L Mazdoor And Contract Labour Union vs Government Of Andhra Pradesh on 1 May, 2023
HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION No.22065 of 2008
ORDER:
This present writ petition came to be filed under Article 226 of the Constitution of India seeking the following relief:
"...to issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents 1 to 3 in not notifying A.P.Industrial Workers (Representation, Participation in management and Relief) Act, 1998 in the Official Gazette as required under Section 1(4) of the constitution of India and doctrine of Seperation of powers underlying in the provisions of constitution of India and conseqquently direct the Government of Andhra Pradesh to notify the said Act as required under Law...."
2. The case of the petitioner is that, the petitioner's union was registered under the provisions of the Trade Unions Act,1926, bearing F/1439 in the year 1995 which was established with objectives inter alia include the promotion of welfare of the workmen employed in the 4th respondent industry, which is engaged in the manufacture of Cement, being one of the premier cement companies in India having manufacture units all over India including one at Chilamakur, Cuddapah District.
3. There are about 304 permanent workers and about 612 contract labour working on the rolls of the 4th respondent industry and all these workers are the members of the petitioner's union. The contract labour are employed in the activities of loading of cement into wagons and unloading of raw material and stitching of bags and other allied works of the 4th respondent company having put a minimum service of 15 years. These contract labour are also being extended the benefits of EPF and MP Act and 2 other statutory benefits, but, however, are denying the Right to Vote in the elections conducted by the 1st and 2nd respondents periodically.
4. These contract labour are also members of the petitioner union for the last 13 years and due to denial of the voting rights to these contract labour, their capacity to bargain with the employer has been seriously impaired such as regularization of services etc.
5. The further case of the petitioner is that the Andhra Pradesh Industrial Workers (Representation, Participation in Management and Relief) Act, 1998 enacted by the Andhra Pradesh State Legislature which is intended to provide the recognition to the Trade Union with a view to facilitating collective bargaining and provide for participation of workers in management of Industrial establishments, protection of workers, constitution of contingency fund to provide relief for the workmen effected by closure of Industrial establishment due to sickness or otherwise.
6. The preamble of the said Act further shows that the said Act was enacted to give effect to the concept of the workers participation in the management of Industrial Establishment enshrined in Article 43-A of Constitution of India as one of the Directive Principles of the said policy. Section 2 (XXI) of the Act defines the word 'Workman' Section 14 (1) of the said Act defines the word 'eligible voters' and according to this section all permanent workers and all such casual or temporary or badli workmen or contract labour who worked in the establishment for not less than two hundred and forty days within a continuous period of 365 days preceding 3 date of application under sub-section (1) and Section 12. Sections 7 and 8 of the Act speak about the powers of election authorities.
7. Section 12 lays down that when there are more than one eligible union are functioning, any of such unions may apply to the election authority to be considered as a recognized union whereas section 13 speaks about the manner of election, Section 19 speaks about rights of the recognized union whereas the Section 20 of the Act enumerates the corresponding obligations of the employer. It is therefore clear that A.P.State Legislature through the said Act interalia provides for election of the Recognized union and appointment of election authority and voting rights to the workman either causal or temporary are contract labour etc.
8. Section 1 clause 4 of the Act lays down that the Act shall come into force as such that the Government, may by notification appoint and they may appoint different dates for different provisions or different chapters but the said Act was not brought into force as the same was not notified in the official gazette as required under the Sec 1(4) of the Act. If the said Act is brought into force the members of the petitioners herein who are contract labour would get statutory recognition of their voting rights and they will be in a better position to bargain and secure better service conditions.
9. Declaring the inaction on the part of the respondents 1 to 3 in not notifying the Andhra Pradesh Industrial Workers (Representation, Participation in Management and Relief) Act, 1998 in the official Gazette as required under Section 1(4) of the said Act, the present writ petition is filed. 4
10. The respondent No.2 has filed a counter, wherein, it states as follows:
"At the outset that the Instant writ petition is not maintainable in view of the Law laid down by the Hon'ble Supreme Court in "A.K. Roy and others vs. Union of India and others", reported in "AIR 1982 SC 710", wherein the Hon'ble Supreme Court has categorically held that no Mandamus could be issued to the Executive to bring into force the act therein, in respect of conditional legislations. The Hon'ble Supreme Court has observed:
".....But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to of that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus. The Court's power of judicial review in such cases has to be capable of being exercised both positively and negatively, if indeed it has that power: positively, by issuing a mandamus calling upon the Government to act and negatively by inhibiting it from acting......"
5. It is submitted that the Hon'ble Supreme Court again in "Aeltmesh Rein Vs Union of India" reported in "1988 CriLJ 1809", following the principle laid down in the A.K. Roy's case has held that it is not open to the Hon'ble Court to issue a writ of mandamus directing the Central Government to bring the Act therein into force. The Hon'ble Supreme Court held as follows:
"....As long as the majority view expressed in the above decision (referring to A.K. Roy and others vs. Union of India and others) holds the field, it is not open to this Court to issue a writ in the nature of mandamus directing the Central Government to bring Section 30 of the Act into force."
6. Further, the said principle has been further reiterated in."Union of India vs. Shree Gajanan Maharaj Sansthan", reported in "(2002) IILLJ 554 SC", wherein at Para No. 7 of the said judgment, it is observed as follows:
"....It therefore, became necessary to leave the judgment to the executive as to when the law should be brought into force. When enforcement of a provision in a statute is left to the discretion of the Government without laying down any objective standards, no writ of mandamus could be issued directing the government to consider the question whether the provision should be brought into force and when it can do so."5
7. Further, the said principle was reiterated by the Hon'ble Supreme Court again in "Common Cause vs. Union of India and others", reported in "AIR2003SC4493", wherein the earlier principles of the Hon'ble Supreme Court were followed and it was concluded that when the Legislature itself had vested the power in the Central Government to notify the date from which the Act would be come into force, then the Central Government is entitled to take into consideration various facts. No mandamus can be issued to Central Government to issue the notification to bring the Act into force.
8. It is therefore submitted that, in pursuance of the consistent view of the Hon'ble Supreme Court in the above referred judgements, among several others, that no mandamus can be issued to the executive to notify a legislation, the instant writ petition is not maintainable and clearly misconceived.
9. It is necessary to submit herein, in the instant case, that due to passage of time and also evolution of the Labour Laws, the said Act, may not hold any relevance as of today, after 25 years. It is necessary to submit herein that the Parliament has now enacted new Labor Laws i.e., Code on Wages 2019, Industrial Relations Code 2020, Code on Social Security 2020, Occupational Safety, Health and Working Conditions Code 2020 on different dates in 2019 and 2020, by codifying nearly 29 existing Labour Legislations. It is submitted that the State of Andhra Pradesh, in pursuance thereof, has already prepared draft rules under each of the said codes and Preliminary Notifications to The Code on Wages (Andhra Pradesh) Rules, 2022, vide G.O.Rt. No. 202, LFB&IMS Deptt., Dt: 13.06.2022, The Industrial Reactions (Andhra Pradesh State) Rules, 2022 vide G.O.Rt. No. 203, LFB&IMS Deptt., Dt:
13.06.2022 Code on Social Security (Andhra Pradesh) Rules, 2022, Vide G.O.Rt. No. 251, LFB&IMS Deptt.. Dated: 14.07.2022, The Occupational Safety, Health and Working Conditions (Andhra Pradesh) Rules, 2022, G.O.RT. No. 205, LFB&IMS Deptt., Dt: 13.06.2022 have also been issued by Government of Andhra Pradesh.
10. In view of the Law laid down by the Hon'ble Supreme Court, in catena of judgments, that no mandamus can be issued to the Executive for Notifying any Legislation, the instant writ petition, therefore, is devoid of merits and liable to be dismissed."
11. As held by the Hon'ble Supreme Court, it is not open to this High Court to issue a writ of Mandamus directing the Central Government to bring the Act into force. In view of the fact that the enforcement of the provision in the Statute is to be left to the discretion of the Government and it is for the Government to decide whether the said provision should be brought into force or not and on the other hand, in view of the fact that Parliament has now enacted new Labor Laws i.e., Code on Wages 2019, Industrial Relations Code 2020, Code on Social Security 2020, Occupational 6 Safety, Health and Working Conditions Code 2020 on different dates in 2019 and 2020, by codifying nearly 29 existing Labour Legislations, this Court is not inclined to interfere in the present writ petition.
12. In view of the same, this writ petition is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous application, pending, if any, shall also stand closed.
______________________ JUSTICE V.SUJATHA Date: 01.05.2023 kbs 7 156 HONOURABLE SMT. JUSTICE V.SUJATHA (Dismissed) WRIT PETITION No.22065 of 2008 Date: 01.05.2023 kbs