Calcutta High Court (Appellete Side)
Akd Tamluk Poura Shramik Karmachari ... vs The State Of West Bengal & Ors on 22 March, 2017
Author: Harish Tandon
Bench: Harish Tandon
1
22 22.03.17 W.P. 6172 (W) of 2017
Ct No. 2
akd Tamluk Poura Shramik Karmachari Union
Vs.
The State of West Bengal & Ors.
--------
Mr. Amal Baran Chatterjee, Mr. Sabyasachi Mondal.
... for the petitioner.
Mr. Gopal Chandra Das.
... for the municipality.
The so-called Trade Union filed the instant writ petition alleging the list of employees sent by the Chairman of the Municipality to the Director of Local Bodies for approval.
The petitioner says that such list has been prepared by picking up the favourable candidates depriving the eligible persons, being the member of the Trade Union.
Several representations were made both to the Chairman of the Municipality as well as the Director of Local Bodies alleging the nepotism and favouratism in preparing the list of the candidates, which are simply kept in the file and no progress is made thereupon.
The learned advocate appearing for the Municipality raises a preliminary objection on maintainability of the instant writ petition by the Trade Union.
In support of the aforesaid contention learned counsel relies upon a judgement of a Full Bench of Allahabad High Court in case of Umesh Chand Vinod 2 Kumar & Ors. vs. Krishi Utpadan Mandi Samity, Bharthana & Anr. reported in AIR 1984 Allahabad 46, wherein it is held that though the writ petition is maintainable at the instance of the association or society, but they must be authorized under the rules and regulations applicable therefor.
According to the Municipality there is nothing reflected from the writ petition that the Trade Union can maintain the writ petition having an authority and permission under the rules and regulations applicable therein.
On the other hand, the petitioner says that the point is more or less settled by our High Court in case of Paschimbanga Bhumijibi Krishak Samity & Ors. vs. State of West Bengal & Ors. reported in 1996 (2) CLJ 285.
After reading both the judgements cited at the Bar, this Court does not find a direct conflict between the said two judgements on the proposition of law. It has not been held in an absolute term that the writ petition at the instance of the association or society or the Trade Union is not maintainable. In the judgement of Paschimbanga Bhumijibi Krishak Samity (supra) the Court noticed the earlier judgement of the Supreme Court in case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs. Union of India reported in AIR 1981 SC 298 and recognized such class action and the representative proceeding to be maintainable under Article 226 or Article 32 of the Constitution of India. It is apposite to record the relevant observations made therein, which runs thus:
3"216. So far as the submission of Mr. Gupta to the effect that the petitioners have no locus standi is concerned the same is not necessary to be considered in details. It is not disputed at the Bar that hundreds (if not thousands) of writ applications had been filed in this Court questioning vires of this Act. Even on the Appellate Side, there are various cases which have to be decided by us on merits.
217. The question which have been raised in this case arise in one form or the other in the said applications. Furthermore, the learned trial Judge has passed a judgment on merit after hearing the Counsel for both the parties. The learned trial Judge has also rejected the contention of Mr. Gupta to the effect that the petitioners have no locus standi to question the vires of the said Act. We agree with the reasoning of the learned trial Judge and we, therefore, reject the contention. It is, however, relevant to notice that in (68) Akkhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India reported in AIR 1981 SC 298, wherein it has been held:
' A technical point is taken in the counter-
affidavit that the 1st petitioner is an
unrecognised association and that
therefore, the petition to that extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists 4 and they have approached this Court under Art. 32. Our current processual jurisprudence is not of individualistic Anglo- Indian mould. It is broad-based and people oriented, and envisions access to Justice through ' class actions', ' public interest litigation' and ' representative proceedings'. Indeed, little Indians in large numbers seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative Justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney General has taken no objection to a non-recognised association maintaining the writ petitions.' "
Furthermore, Section 13 of the Trade Unions Act, 1926 provides that every registered Trade Union shall be a body corporate and shall have perpetual succession and a common seal with power to acquire and hold both movable and immovable property and to contract, and shall by the said name sue and be sued.
In view of the law laid down in the aforesaid decision, there is no hesitation in my mind that the writ petition is maintainable and the preliminary objection 5 taken by the Municipality fails.
Reverting back to the merit of the writ petition this Court finds that once a serious allegation of favouratism or nepotism is made in preparing a panel, the authority should not sit idle and keep the same in abeyance, so that by the time the same is activated. The irreversible situation may arise.
The writ petition is disposed of directing the Director of Local Bodies to consider the representations made by the petitioner, which are annexed to the instant writ petition and shall take a decision within six weeks from the date of the communication of this order in accordance with law.
Nothing observed herein shall have any impact on the said decision, which shall be taken independently without being swayed by any observations made hereinabove.
Since the writ petition is disposed of without calling for affidavits, the allegations made therein shall not be deemed to have been admitted by the respondents.
There will be no order as to costs.
(HARISH TANDON, J.) 6