Madras High Court
Integral Coach Factory Staff Council ... vs Union Of India (Uoi) And Ors. on 25 May, 1993
Equivalent citations: (1994)ILLJ678MAD, (1993)IIMLJ343
JUDGMENT Abdul Hadi, J.
1. A decision on a short point would dispose of the above referred to two writ appeals against W.P. No. 16141 of 1991, according to Mr. K. Alagiriswami, learned Senior Counsel appearing for the 3 appellants in W.A. No. 1865 of 1992 and respondents 1 to 3 in W.A. No. 418 of 1993. Therefore, the said point alone was argued before us and we dispose of these writ appeals based only on the decision we are giving on the said point.
2. These proceedings deal with the relevant rules relating to the election to the 12th Staff Council of the Integral Coach Factory at Madras. The abovesa id short point is whether the General Manager of the said Integral Coach Factory has got the power to amend the relevant rules.
3. W.P. No. 16141 of 1991 is by (1) Integral Coach Factory Staff Council, Madras, (2) Integral Coach Factory Labour Union, Madras, and (3) one D. Loganathan, who is said to be worker in the said Integral Coach Factory, affected by the abovesaid amendment made just as the above two other writ petitioners. The said writ petition is against the respondents (1) Union of India, (2) The General Manager, Integral Coach Factory, Madras, (3) M. Mahcndra Babu, and (4) M.K. Sreedharan Nambiar. The said respondents 3 and 4 are said to be persons who stood as candidates for the election to the said staff council. The said writ petition is for a writ of certiorarified mandamus for quashing the 2nd Respondent's circular PR/LW/45/SC/XII/Election. A.C.Circular No. 63, dated October 22, 1991, making the above referred to amendment to the relevant rule and consequently for restraining the 2nd respondent from holding the election to the said staff council on the basis of the abovesaid impugned circular.
4. The object of the said Staff Council is to maintain good relations between the abovesaid Coach Factory Administration and all classes of non-gazetted staff of the said factory by providing me means whereby the staff can bring the questions in connection with the condition of service to the notice of the administration. Rule 4 of Appendix XIII-A contained in the Indian Railway Establishment Code of 1951, as it stood before 1957, reads as follows:
"All non-gazetted staff (excluding apprentices) with more than 3 years continuous service will be eligible for election to staff council:
(i) Casual labourers are not eligible for election.
(ii) An employee while under suspension from duty shall not be eligible for election."
The election to the staff council should be held once in 2 or 3 years. As per election notice dated October 10, 1991, it was announced that the election to the said staff council in the Integral Coach Factory for electing the members thereof for the period beginning from January 1, 1992, would be held on December 13, 1991. In the meanwhile, the 2nd respondent-General Manager issued that abovesaid impugned circular dated October 22, 1991, amending the abovesaid rule by adding the following sub-paragraphs (iii) and (iv) after the above referred to sub-paragraphs (i) and (ii). The said added sub-paragraphs read as follows:
(iii) An employee should have a minimum of three years service still left before his date of superannuation for being eligible for contesting the election. The date being referred to will be the date on which the new staff council is to be constituted.
(iv) An employee against whom major penalty charge sheet is pending, is not eligible to contest the election. An employee undergoing major penalty also is not eligible for contesting the election".
5. The abovesaid W.P. No. 16141 of 1991 seeks to quash the abovesaid circular inter alia on the ground that the 2nd respondent- General Manager has no power to amend the said Appendix XIII-A. By order dated October 16, 1992, Somasundaram, J. has partly allowed the said writ petition by declaring the abovesaid sub-paragraph (iii) alone as invalid "on the ground that it is repugnant to the principles contained in the original Rule 4 and also on the ground that it is inconsistent with paragraph 2604 of the Manual". The writ petition has been dismissed with reference to the abovesaid sub-paragraph (iv) on the ground inter alia that the said sub paragraph (iv) is neither repugnant to the principles contained in any of the rules found in Appendix XIII-A of the Code, nor is it inconsistent with any other rules. It has also been held that the 2nd respondent-General Manager has power to frame the said rule contained in sub paragraph (iv) in exercise of the power conferred on him by paragraph 124 of the Code and by rule 8 of the Rules. Hence the writ petitioners therein have filed the above referred to W.A. No. 1865 of 1992. On the other hand, aggrieved by the relief given in the writ petition in relation to the above referred to sub-paragraph (iii), respondents 1 and 2 in the said writ petition have preferred the other W.A. No. 418 of 1993.
6. In W.A. No. 1865 of 1992, the appellants sought for certain interim reliefs in C.M.P. Nos. 16712 and 16713 of 1992 and in the said C.M.Ps., we passed the following order on November 27, 1992:
"There will be interim stay of the operation of the Rule challenged, namely sub-para (iv) of Rule IV of the Rules regulating the forma-
tion and functions of staff council framed as per para 124 of the Indian Railway Establishment Code, Volume I, pending further orders. We make it clear that we are not staying the process of election."
7. There is no necessity to traverse all the allegations in the affidavits and counter affidavits in the writ petition against which these writ appeals arise since, as already pointed out, the only question that was argued and accordingly dealt with by us is, whether the General Manager, Integral Coach Factory, has got the power to make the abovesaid amendment to the abovesaid Rule 4 by adding the above referred to sub-paragraphs (iii) and (iv), as stated above.
8. Mr. K. Alagiriswami, learned Senior Counsel for the writ petitioners substantiated his abovesaid only argument as follows: The Rules contained in Appendix XIII-A were made by the Railway Board under their letter No. E.45-00-16 (R), dated November 15, 1946 and printed as Appendix XIII-A in the 1951 edition of the Code. In the subsequent codes brought in the years 1959, 1971 and 1985, the abovesaid Appendix XIII-A of 1951 Code had been deleted. Instead, the Railway Board brought the said Rules regulating the formation and functions of staff council in Chapter XXXVII of its revised edition of the Indian Railways Establishment Manual of 1960 under the heading "Staff Councils and Negotiating Machinery". Further, in the 1990 edition of the said Manual, Chapter XXVI brought out the abovesaid Rule under the same heading. Though Rule 8 of the above referred to original Appendix XIII-A ran as follows, 'The General Manager shall draw up subsidiary rules in regard to matters laid down in these rules and also in regard to details of procedure, so long as they are not repugnant to the principles detailed herein", in both the above referred to 1960 and 1990 editions of the Indian Railway Establishment Manual, the Railway Board have taken away the rule-making power of the General. Manager as contained in the abovesaid Rule 8 of Appendix XIII-A of 1951 edition of the Code. The learned Judge, who decided W.P.No. 16141 of 1991 erred in following the abovesaid absolute Rule 8 of 1951 and consequently committed an error in law, in not having quashed the abovesaid sub-paragraph (iv) also. The learned Judge upheld sub-paragraph (iv) on the ground that the General Manager has ample power to frame the said sub-paragraph (iv) in exercise of the power conferred on by him by paragraph 124 of the Code of 1985 edition. The said paragraph 124 and the connected paragraph 123 run as follows:
"123. The Railway Board have full powers to make rules of general application to Group C & Group D railway servants under their control.
124. The General Managers of Indian Railways have full powers to make rules with regard to Railway servants in Group C & D under their control provided they are not inconsistent with any made by the President or the Ministry of Railways."
But the rules regulating the formation and functions of the staff council do not relate to recruitment and conditions of service to Grade C and D employees (appointed in the Integral Coach Factory) which are spoken to in the abovesaid paragraphs 123 &124. Further the abovesaid paragraphs 123 and 124 are rules framed pursuant to Article 309 of the Constitution of India, while the impugned rules are not rules framed pursuant to Article 309, since they do not relate to 'recruitment and conditions of service of the Integral Coach Factory employees.'
9. Learned counsel for respondents 1 and 2, Mr. B.T. Seshadri, initially fairly represented that the impugned rules were not rules framed pursuant to Article 309 of the Constitution of India. Accordingly he also did not press into service the contention that the abovesaid paragraph 124 empowers the General Manager to make the abovesaid impugned amendment, even though the impugned circular in W.P. No. 16141 of 1991, purports to say that the abovesaid amendment has been made pursuant to the abovesaid paragraph 124.
10. On the other hand, the said counsel's argument, as also contained in the affidavit dated April 22, 1993 filed before us in W.A. No. 1865 of 1992 on behalf of respondents 1 and 2 is as follows: It is admitted that the rules regulating the formation and functions of the staff council contained in Appendix XIII-A were published under the authority of the Board's letter No. E45-00-16(R), dated November 15, 1946. The next edition of the Indian Railway Establishment Code was published in 1959, wherein it was stated that the said Appendix XIII-A and certain other appendices of 1951 edition had been 'embodied in the Railway Establishment Manual' which has been issued separately. In view of this, in the Railway Establishment Code dated June 30, 1959, Appendix XIII-A was not printed. On the other hand, the rules regulating Staff Council have been embodied in Chapter XXXVII of the Railway Establishment Manual of 1960. It is provided in prefatory note to the said Manual of 1960 thus:
".....the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes and in case of conflict the latter should prevail. This Manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject."
Though the said Chapter XXXVII does not contain provisions similar to the above Rule 8 of Appendix XIII-A, inasmuch as the Manual is not the final authority on the subject, Appendix XIII-A of the Indian Railway Establishment Code, 1951 should prevail. No doubt, the revised editions of the Railway Establishment Code came up subsequently in 1971 and 1985. However, for the abovesaid same reason, these editions also did not print the abovesaid Appendix XIII-A Rules. This does not mean that Appendix XIII-A had been repealed. The Manual is only the compendium of instructions for the guidance of the staff and it is not the final authority on the subject and in case of any doubt reference should always be made to the original orders on the subject. Similarly, the Manual was revised and printed again in 1968 and 1990 and it cannot, therefore, be contended that the General Manager has no power to issue subsidiary rules relating to the rules regulating the formation and functions of the staff council.
11. Further Mr. B.T. Seshadri also sought to rely on Rule 2613-A which appears to be an amendment made to the above referred to 1990 edition of the Indian Railway Establishment Manual Volume II. The said rule runs as follows:
"The General Manager will, if required, draw up subsidiary rules in regard to matters laid down in these rules and also in regard to details of procedure so long as these are not inconsistent with any of the rules made by the President or the Ministry of Railways."
12. We may first dispose of this latter part of his argument relying on the above referred to Rule 2613. A holding that the said rule will have no application to the present case since the said amending rule has been made by the Ministry of Railways, only on February 26, 1993, even as per the very document filed by the said counsel along with the abovesaid affidavit dated April 22, 1993. No doubt it is stated in the said affidavit that in order to clear any doubts regarding the powers of the General Manager in this regard, the said amendment in Rule 2613-A is introduced. But, we cannot accept this contention made in the said affidavit that the said Rule 2613-A was introduced only 'to clear any doubts in regard to the powers of the General Manager'. Nothing has been shown before us to hold that the said amendment in Rule 2613-A was made only to clear any doubts regarding the powers of General Manager. So, if at all, the said rule can have operation only after the said date February 26, 1993 and will have no application to the present case, where the impugned circular in W.P.No. 16141 of 1991 was issued as early as October 20, 1991.
13. Mr. Prakash, learned counsel for respondents 3 and 4 adopted the arguments of Mr. B.T. Seshadri. In addition he also argues that since the impugned rules are not rules under Article 309 of the Constitution of India, there can be no judicial review of the same and that the 1st writ petitioner staff council is not a registered body. We may first of all dispose of this additional submissions of the said counsel by holding that they have no merit at all. Even though the impugned rules are not rules covered under Article 309 of the Constitution of India, there is absolutely no bar for the Court to judicially review them. Further, as submitted by Mr. K. Alagiriswami, learned Senior counsel, even assuming that the first writ petitioner was not a registered body, the writ petitions could be maintained since there are two other writ petitioners who are aggrieved by the impugned orders in both the writ petitions. (The 2nd writ petitioner is said to be a registered body and the 3rd writ petitioners in the two different writ petitions are only workers in the abovesaid Integral Coach Factory.)
14. We shall now deal with the above referred to main contention of the said learned counsel Mr. B.T. Seshadri, as against the relevant submissions of Mr. K.Alagiriswami, as stated above. First of all we must point out that the above referred to affidavit dated April 22, 1993 was filed on behalf of respondents 1 and 2 in the writ petition, only after we pointed out to Mr.B. T. Seshadri that his abovesaid submissions were not borne out by any relevant allegations made in the original counter affidavit filed by the said respondents in the writ petition. In this connection it should also be noted that the above referred to main argument of Mr. K. Alagiriswami that the 2nd respondent-General Manager has no power to make the abovesaid impugned amendment at all, has been set out in detail in the memorandum of grounds of appeal in W.A. No. 1865 of 1992 itself. No doubt, the learned judge, who decided W.P. No. 16141 of 1991 has proceeded on the footing that the contention of the writ petitioners before him was not that the said General Manager had no such power of amendment at all, but that he had no power to make such an amendment' inconsistent with any rule made by the Ministry of Railways'. In other words, according to the learned Judge, only because of the abovesaid alleged inconsistency the writ petitioners contended that the General Manager had no power to make the impugned amendment. May be, Mr. U.N.R. Rao, learned Senior Counsel, who represented the writ petitioners in the above writ petition might have argued the case in that way before the learned Judge, but, before us, Mr.K. Alagiriswami, learned Senior counsel for the writ petitioners, argues, as stated above, that the General Manager has no such power of amendment at all, irrespective of the fact whether the amended rules were inconsistent to any other rule made by any authority or not. As already stated, the appeal grounds also proceeded mainly on that footing. So, let us now consider whether the General Manager had such power of amendment when he passed the impugned circular dated October 22, 1991 in W.P. No. 16141 of 1991.
15. No doubt Rule 8 of Appendix XIII-A to the Indian Railway Establishment Code of 1951, as already indicated enables the General Manager to make such an amendment. In other words, while Rule 4 thereof, which provided for eligibility for election to the staff council, stated, "4. Eligibility for Election:- All permanent non- gazetted staff with more than three years continuous service will be eligible for election to staff councils and where necessary, special provision should be made to include apprentices. Elected membership should not be on a communal basis, but General Managers should ensure adequate representation of minority communities on staff councils by nomination where necessary.", Rule 8 stated thus:
"8. Subsidiary Rules: The General Manager shall draw up subsidiary rules in regard to matters laid down in these rules and also in regard to details of procedure so long as they are not repugnant to the principles detailed herein."
But, admittedly, in the subsequent editions of the Railway Establishment Code of the years 1959, 1971 and 1985, the abovesaid entire Appendix XIII-A was not there at all. The only explanation for the same that is now given in the abovesaid affidavit dated February 22, 1993 of respondents 1 and 2 in the writ petitions, can be found from the following averments in the said affidavit:
"The next edition of Indian Railway Establishment Code was published in 1959 wherein it was stated that Appendix XIII-A along with Appendix II, II-A, III, VI, XIII and XIV of 1951 edition have been embodied in the Railway Establishment Manual and which has been issued separately. In view of this in the Railway Establishment Code Vol.1 Revised Edition dated June 30, 1959, the Appendix XIII-A was not printed. On the other hand, the rules regulating the staff council have been embodied in Chapter XXXVII of the Railway Establishment Manual. It is provided clearly in the Manual that the provisions of the Manual do not supersede the rules contained in any of the Indian Railway Establishment Codes and in case of conflict, the latter should prevail and that the Manual may not be referred to as the final authority and reference would always be made to the original orders on the subject Though Chapter XXXVII of Indian Railway Establishment Manual does not contain the provisions similar to Rule 8 of the Rules regulating the formation and functions of staff council as contained in Appendix XIII-A inasmuch as the Manual is not the final authority on the subject, Appendix XIII-A of Indian Railway Establishment Code (1951) should prevail. The next revised edition of the Railway Establishment Code was of the year 1971 in which it is clearly stated that this is the reprint of Indian Railway Establishment Code 1951 Edition, Vol.1 and such additions, alterations as have been introduced through corrections (including advanced correction slips) issued upto May 15, 1969. The subsequent edition was of the year 1985 and it is the fifth edition. In as much as the Rules regulating the formation and functions of Staff Council have already been issued and embodied in the Railway Establishment Manual, the Railway Board thought it fit not to print the same in the 1959 edition, 1971 edition and 1985 edition. This does not mean that Appendix XIII-A had been repealed. As already submitted the Manual is only the compendium of instructions for the guidance of the staff and it is not the final authority on the subject and in case of any doubt, reference should always be made to the original orders on the subject. Similarly the Manual was revised and printed again in the year 1968 and again in 1990 and it cannot, therefore, be contended that the General Manager has no power to issue subsidiary rules relating to the rules regulating formation and functions of staff council."
16. But, though it is stated that Appendix XIII-A of 1951 was embodied in the Railway Establishment Manual which came up subsequently in 1960, it is clear that the abovesaid power given to the General Manager under Rule 8 of the original Appendix XIII-A, is not found at all in the abovesaid 1960 Manual. The above referred to Chapter XXXVII entitled 'staff councils and negotiating machinery' inter alia says in Rule 5 of Section 1 therein that 'all non-gazetted staff with more than three years continuous services will be eligible for election to staff councils. Likewise in the corresponding Rule 2604 of Section 1 of Chapter XXVI of the Manual of 1990 also it is only mentioned, (regarding eligibility for election'), that all non-gazetted staff excluding apprentices with more than three years continuous service will be eligible for election to staff councils. But, in the said Chapter XXXVII or Chapter XXVI it is nowhere stated that any of the rules contained in the said Chapter could be amended by the General Manager. Likewise, admittedly in the subsequent Manuals of 1968 and 1990 also, there was no provision enabling the General Manager to make amendments to the rules relating to staff councils. For example, in the 1990 edition of the Manual, the relevant chapter is Chapter XXVI, which replaced the original Chapter XXXVII of 1960 Manual. There too, there is no provision enabling the General Manager to make any amendment to the rules relating to the staff council. While so, even though the abovesaid affidavit dated April 22, 1993 says that the old Appendix XIII-A of 1951 had been 'embodied' in the subsequent Railway Establishment Manuals we find that though certain Other rules contained in Appendix XIII-A do find a place in the abovesaid subsequent manuals, Rule 8 of Appendix XIII-A has not been incorporated in any of the subsequent Manuals and so, it cannot be said that the said Rule 8 also has been 'embodied' in the subsequent Railway Establishment Manuals. So, it has only to be inferred that the said rule contained in Rule 8 has been impliedly repealed atleast from 1959. No doubt, to counteract such inference being drawn, Mr. B.T. Seshadri points out that the above referred to passage is contained in the prefatory note to the abovesaid 1960 Manual. But, the said passage no doubt states that 'the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes and in case of conflict the latter should prevail. This Manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject'. But, in our opinion, this passage cannot support the abovesaid argument of the learned counsel Mr. B.T. Seshadri. First of all, there is no 'conflict' as such between the manual of 1960 and in the above referred to Appendix XIII-A in relation to the power of the General Manager to amend the rules relating to staff council. Such a power was no doubt given in Appendix XIII-A of 1951. But, in the 1960 Manual, there is no reference at all to any such power. This absence of reference cannot be said to be the above referred to 'conflict'. That apart, we do not think that what is contained in the above referred to prefatory note alone could be taken as decisive. That apart, even though the prefatory note only states that the Manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject, what is meant by the abovesaid 'original orders' has also been not; made clear by Mr. B.T. Seshadri. It is also not clear whether the above referred to 'original orders' could coyer the rules found in the abovesaid Appendix XIII-A, which, as the very name 'Appendix' shows, is part of the Railway Establishment Code (1951) itself. In the said prefatory note of 1960 given by the Secretary of the Railway Board, it is stated that the said Manual 'embodies all administrative orders or Code Rules and allied Establishment matters, issued by the Railway Board from time to time and current on March 31, 1959' While, so, it is not made clear whether the above referred to administrative orders or the above referred to original orders would cover the above referred to Appendix XIII-A also. On these aspects, the said learned counsel has not given us necessary clarity.
17. All these apart, if really the Railway Board, which prepared the abovesaid Manual, desired, it could have easily incorporated the rule contained in the abovesaid Rule 8 of Appendix XIII-A in the abovesaid Chapter XXXVII of 1960 Manual or atleast in Chapter XXVI of 1990 Manual. Therefore, the contention of the learned counsel for the writ petitioners that the learned Judge who heard the writ petition erred in following the absolute Rule of 1951 (that is Rule 8 of Appendix XIII-A) has to be accepted. The learned Judge has also erred in relying on paragraph 124 of the Code of 1985 edition, as already indicated. Therefore, since the General Manager has no power at all to make the abovesaid impugned amendment, incorporating the above referred to sub-paragraphs (iii) and (iv), the impugned circular dated October 22, 1991 in W.P.No. 16141 of 1991 is liable to be quashed.
18. In the result, W.P. No. 16141 of 1991 is allowed in full, and the impugned circular dated October 22, 1991 is quashed in its entirety. No costs. W.A. No. 1865 of 1992 is allowed and W.A. No. 418 of 1993 is dismissed. No costs.