Gauhati High Court
All Assam Inland Water Transport ... vs The State Of Assam And 4 Ors on 27 February, 2020
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/14
GAHC010212212015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4538/2015
1:ALL ASSAM INLAND WATER TRANSPORT WORKER'S UNION
A REGISTERED TRADE UNION HAVING ITS OFFICE AT SUKRESWAR
FERRYGHAT, PANBAZAR, GHY- 1, REP. BY ITS GENERAL SECY.
VERSUS
1:THE STATE OF ASSAM and 4 ORS,
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM.
2:ADDL. CHIEF TO THE GOVT. OF ASSAM
TRANSPORT DEPTT.
ASSAM SACHIVALAYA
DISPUR
GHY- 5.
3:SECY. TRANSPORT DEPTT.
GOVT. OF ASSAM
ASSAM SACHIVALAYA
DISPUR
GHY- 6.
4:DIRECTOR INLAND WATER TRANSPORT DEPTT.
GOVT. OF ASSAM
ULUBARI
GHY- 7.
5:THE REGISTRAR OF COMPANIES
MOROLE BUILDING
SHILLONG- 1
Advocate for the Petitioner : MR.B DAS
Advocate for the Respondent : GA, ASSAM
Page No.# 2/14
Linked Case : WP(C) 6287/2017
1:STATE INLAND WATER TRANSPORT EMPLOYEES SANTHA
REP. BY ITS SECRETARY SRI ASWANI KUMAR BARUAH
S/O. LT. JIBON CHNADRA BARUAH
REGISTERED OFFICE AT ULUBARI I.W.T. OFFICE GUWAHATI-7
KAMRUP METRO
ASSAM.
VERSUS
1:THE STATE OF ASSAM and 5 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-6.
2:THE ADDL. CHIEF SECRETARY TO THE GOVT. OF ASSAM
TRANSPORT DEPTT.
DISPUR
GUWAHATI-6.
3:THE COMM. and SECY. TO THE GOVT. OF ASSAM
TRANSPORT DEPTT.
DISPUR
GUWAHATI-6.
4:THE JT. SECY. TO THE GOVT. OF ASSAM
TRANSPORT DEPTT.
DISPUR
GUWAHATI-6.
5:THE INLAND WATER TRANSPORT DEPARTMENT
REP. BY ITS DIRECTOR
ULUBARI
GUWAHATI-7.
6:THE REGISTRAR OF COMPANIES
MOROLE BUILDING
SHILLONG-1
MEGHALAYA.
Advocate for the Petitioner : MR.A GANGULY
Advocate for the Respondent : MR. S C KEYAL (R6)
Page No.# 3/14
Linked Case : WP(C) 5194/2015
1:STATE INDLAND WATER TRANSPORT EMPLOYEES SANTHA
SRI ATUL CHANDRA SARMA S/O LT. DHARANIDHAR SARMA R/O OFFICE
AT ULUBARI I.W.T. OFFICE GUWAHATI -7
KAMRUP METRO
ASSAM
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF SSAM
DISPUR
GUWAHATI -6.
Advocate for the Petitioner : MR.A GANGULY
Advocate for the Respondent : SC
TRANSPORT
BEFORE
HONOURABLE MR. JUSTICE NELSON SAILO
JUDGMENT
Date : 27-02-2020 JUDGMENT & O R D E R (CAV) Heard Mr. A. Das Gupta, learned senior counsel assisted by Ms. B. Das for the petitioner in WP(C) No. 4538/2015 and Mr. S. Bora, learned counsel for the petitioner in WP(C) No. 5195/2015 and WP(C) No. 6287/2017. I have also heard Mr. K.N Choudhury, learned senior counsel assisted by Mr. Y. Doloi, learned Standing Counsel, Transport Department for the respondent Transport Department.
Page No.# 4/14
2. All the 3 (three) writ petitions are taken up for disposal together since the issues involved are similar. WP(C) No. 4538/2015 is filed by all Assam Inland Water Transport Workers' Union while the other 2 (two) writ petitions are filed by State Inland Water Transport Employees' Santha. WP(C) No. 5194/2015 was initially filed by the said petitioner challenging the Notification dated 17.07.2015 whereby, the decision of the State Cabinet dated 30.06.2015 for incorporation of a Corporation under the administrative control of the Transport Department in the name and style "Assam Inland Water Transport Corporation Limited" (The Corporation) as a State Public Sector undertaking under the Companies Act, 2013 was notified. Subsequent thereto, the respondent authority in the Transport Department issued Notification dated 02.08.2017 notifying the registered office of the Corporation to be the Directorate of Inland Water Transport, Assam, Ulubari, Guwahati 781007 and again, in supersession of the same, issued another Notification dated 07.08.2017 notifying the location of the registered office of the Corporation as "Inland Water Transport Guest House, Pandu, Guwahati 781012." Therefore, in order to challenge the 2 (two) subsequent notifications, WP(C) 6287/2017 was again filed by the petitioner. Be it stated herein that the 3 (three) notifications are put to challenge in WP(C) No. 4538/2015 as well and hence, a common consideration is necessitated.
3. For the sake of brevity, the facts of the case projected by the petitioner in WP(C) No. 4538/2015 may be narrated. The petitioner claims that the petitioner is a registered Trade Union and its members are employed under the Inland Water Transport, Govt. of Assam and there are about 5000 employees working in 35 branches in different places. Out of these 5000 employees, about 3500 employees are members of the petitioner union and out of the Page No.# 5/14 3500 members about 1000 employees are Muster Roll workers.
4. According to the petitioner, the employees of the Inland Water Transport as Government employees under the Transport Department are set out with the task of maintaining ferry services of passenger and goods throughout Assam and Kolkata through Bangladesh. The State Government is taking different steps to convert the Inland Water Transport Department into a Corporation and in such event, all the employees of the Transport Department will become the employees of the Corporation and they will be deprived of their rights and privileges as enjoyed by Government employees.
5. The petitioner contends that on account of a ferry disaster, which occurred on 30.04.2012 at Medartari, Dhubri, a one man enquiry committee was constituted to enquire into the accident which led to the death of many passengers. The one man enquiry was headed by Sri Jitesh Khosla, Addl. Chief Secretary to the Govt. of Assam, Department of Welfare for Plain, Tribes and Backward Classes, etc. The term of reference of the enquiry was to ascertain the facts and circumstances leading to the accident, to determine if there were lapses on the part of the authority including violation of rules, license condition for operation of ferry service, to suggest measures to be taken, to prevent such accident in future, to assess the capable of existing agencies including NDRF to respond and handle such disaster and any other matters relevant to the incident including measures to improve the Ferry Transport System in Riverine areas.
6. Accordingly, the enquiry was conducted and thereafter, a report was submitted on 10.01.2013. According to the petitioner, the enquiry report dealt with matters which were not Page No.# 6/14 relevant to the cause of the accident but suggested to separate the Inland Water Transport Department from the activities of the State Government and to convert the Department into a Corporation through public private partnership. On the basis of the enquiry report, the Govt. of Assam, Political Department drafted a new Act known as "Assam Inland Water Transport Department Act, 2014" by which the State Government intended to transform the Inland Water Transport Department into a Corporation. The Draft Act stipulates that permanent staff on Inland Water Transport Department and temporary staff, who have completed 5 (five) years of continuous service in the Inland Water Transport Department will be deputed to the Corporation on foreign service. However, there is no proposal with regard to a large number of Muster Roll employees, who are about 997 in numbers alongwith other temporary staffs on the Inland Water Transport Department. Therefore, the petitioner contends that the condition of service of the Government employees will be changed against their Will. They also contended that the State Government in drafting the new Act did not consult the employees union. The petitioner, in view of the steps initiated by the State Government, submitted various representations and also held meeting but the State Government is adamant to transform the Inland Water Transport Department into a Corporation and which will adversely affect the interest of the employees. The State Cabinet on 30.06.2015, in furtherance of this plan, took a decision for incorporation of a Corporation under the Administrative Control of the Transport Department in the name and style of "Assam Inland Water Transport Corporation Limited", as already stated herein above. The Cabinet decision was notified vide the impugned Notification dated 17.07.2015.
7. Aggrieved with the above notification, the petitioner approached this Court by filing Page No.# 7/14 WP(C) No. 4538/2015 and this Court vide Order dated 12.08.2015 passed an interim order directing that status quo should be maintained as regards to the character of Inland Water Transport Department. The said interim order remains as on date.
8. However, despite the interim order, the Commissioner and Secretary to the Govt. of Assam Transport Department issued the two impugned Notifications dated 02.08.2017 and 07.08.2017 notifying the location of the registered office of the Corporation. Although a contempt petition was filed alleging violation of the interim order dated 12.08.2015 but the contempt petition was closed after it was observed that the issuance of the two notifications did not change the character of the Inland Water Transport Department and may be agitated in the writ proceeding.
9. Mr. A. Das Gupta, learned senior counsel for the petitioner Union submits that the powers of shipping and navigation on inland waterways cannot be shifted to a Company through an executive order as contained in the impugned Order dated 17.07.2015. He submits that in order to vest this power to the executive for the purpose of creating a Corporation Limited, there should be an enactment made by the State Legislature. Although the State Government, in the Political Department, made a Draft Act to be called as Assam Inland Water Transport Act, 2014 but the same has not been laid in the floor of Assam State Assembly and therefore, the Act is a non-existence Act. He submits that as per Section 3 of the Draft Act, the State Government, through a notification published in the official Gazette, may constitute a Corporation to be called Assam State Inland Water Transport Corporation. However, as stated earlier, as the Draft Act has not been legislated, the State Government in exercise of their executive power cannot constitute a Corporation. The learned senior counsel Page No.# 8/14 submits that as per Entry 32 of the Concurrent List, shipping and navigation on inland waterways as regards mechanically propelled vessels, and the rule of the road on such waterways and the carriage of passengers and goods on inland waterways has been included in the said list. The learned senior counsel further refers to Article 162 of the Constitution of India which provides for the extent of executive power of the State. He submits that as per the said Article, subject to the provisions of the Constitution, the executive power of the State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Provided that in any matter with respect to which the Legislature of a State has power to make law, the executive power of the State shall be subject to, and limited by the executive power expressly conferred by the Constitution or by any law made by the Parliament upon the Union or authorities thereof. He therefore submits that the impugned Notification dated 17.07.2015 as well as the Notifications dated 02.08.2017 and 07.08.2017 cannot be legally sustained and therefore, the same should be set aside and quashed. In support of his submission, the learned senior counsel relies upon the following authorities:-
(i) Rai Sahib Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549.
(ii) State of Madhya Pradesh vs. Thakur Bharat Singh, AIR 1967 SC 1170.
(iii) Gullapalli Nageswara Rao, Somasankara Sastri vs. A.P State Road Transport Corporation, AIR 1959 SC 308.
10. Mr. S. Bora, learned counsel for the petitioner in WP(C) No. 5194/2015 and WP(C) No. 6287/2017 adopts the argument of Mr. A. Das Gupta, the learned senior counsel. He submits that the impugned action of the State respondents to convert the Inland Water Transport Page No.# 9/14 Department into a Corporation will change the status of the members of the petitioner union. From being a Government employee, they will become an employee of the Corporation and in such event, they will be deprived of the pension scheme, family pension, other beneficial schemes of the Government such as compassionate appointment, regularization of service, etc. He submits that till date, to the knowledge of the petitioner, the Registrar of Companies has not incorporated the Corporation as a Company and as such, the balance of convenience is in favour of the petitioner and the impugned action of the State respondents being in violation of Article 21 of the Constitution of India, the impugned Notifications dated 17.07.2015, 02.08.2017 & 07.08.2017 may be set aside and quashed.
11. Appearing for the respondent Transport Department Mr. K.N Choudhury, the learned senior counsel, referring to the affidavit-in-opposition filed by the respondent Nos. 1 & 2 on 17.02.2016 and the additional affidavit-in-opposition filed on 25.01.2019 submits that the one man enquiry was made for all round development of Inland Water Transport System for better and safety of travelling by ferry commuters on the river Brahmaputra Barak and its tributaries with modern system of Water Transport. He submits that as per the Khosla committee recommendations, setting up of a Corporation for establishing, maintaining and providing better transportation services of goods and passengers have been recommended. In so far as the Inland Water Transport Act, 2014 is concerned, the same is at the Draft stage and not yet finalized. He further submits that in order to take a Cabinet decision, prior to consultation of the petitioner union is not mandatory especially when the decision is taken in public interest. The learned senior counsel also submits that the State Government is aware of the provisions of the subject listed against Entry 32 of the Concurrent List and also the Page No.# 10/14 provisions laid down in the Government of India Act, 1935. He submits that the State has the power to take a decision regarding the Inland Water Transport Department and for which, a proper enactment under the State Registrar will be made as and when necessary. He submits that by the impugned Notification dated 17.07.2015, the Government of Assam has only notified the decision of the Cabinet to incorporate the Assam Inland Water Transport Corporation Limited as a Public Sector undertaking under the Companies Act, 2013 and the same shall come into existence with effect from the date of incorporation with the Registrar of Companies. The contemplated company has till date, not been incorporated and therefore, the writ petitions being pre-matured, the same are liable to be dismissed. In support of his submissions, the learned senior counsel relied upon the Municipal Commissioner of Dum Dum Municipality & Ors. vs. Indian Tourism Development Corporation & Ors, (1995) 5 SCC 251.
12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on records including the authorities relied upon.
13. As may be noticed, the challenge made to by the petitioners is on the decision taken by the State Cabinet on 30.06.2015 for incorporation of a Corporation under the Administrative Control of the Transport Department in the name and style "Assam Inland of Transport Corporation Limited" as a State Public Sector Undertaking under the Companies Act, 2013 with the objectives and structure as detailed in the Memorandum of Association and Articles of Association. The subject of shipping and navigation on inland waterways as regards mechanically propelled vessels, rule of the road construct waterways and carriage of passengers and goods on inland waterways have been provided in the Concurrent List (List-
Page No.# 11/14 III). However, the same is subject to the provisions of List-I with respect to National Waterways. Article 162 of the Constitution of India provides for the extent of the executive powers of the State to extend to the matters with respect to which the State Legislature has the power to make laws. The Apex Court in Rai Sahib Ram Jawaya Kapur vs. State of Punjab (Supra) while examining a petition under Article 32 of the Constitution preferred by 6 (six) persons, who claimed to be in the business of preparing, printing publishing and selling text books for different classes, alleged that the Education Department of the Punjab Government in pursuance of their policy of nationalization of text books, issued a series of notifications since 1950, regarding printing, publication and sale of these books which have not only placed unwarrantable restrictions upon the rights of the petitioners to carry on their business but have practically ousted them and other fellow-traders from the business altogether. Therefore, the claim that was made was that no restrictions could be imposed upon the petitioners' right to carry on the trade guaranteed under Article 19(1)(g) of the Constitution by mere executive orders, without proper legislation. The Apex Court observed that Aricle 73 of the Constitution relates to executive powers of the Union while the corresponding provision in regard to the executive power of the State is under Article 162. The provisions of these articles are analogous to those of section 8 and 49(2) respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States. Appreciating the provision of Article 162 in particular, the Apex Court further observed that under this Article, the executive authority of the State as exclusive in respect to any of the matters enumerated in List-II of 7 th Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. The Apex Court observed that it may not be possible to frame an Page No.# 12/14 exhausted definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. Paragraph Nos. 12 & 13 of the said decision may be abstracted for ready perusal:-
"12. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.
It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of executive are limited merely to the carrying out of these laws.
13. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the Page No.# 13/14 formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State."
14. The Apex Court again in State of Madhya Pradesh vs. Thakur Bharat Singh (Supra), while dealing with suspension of rights under Article 19 of the Constitution after proclamation of emergency under Article 358 held that all executive action which operates to the prejudice of any person must have an authority of law to support it and that the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take Legislative or executive action provided such action was competent for the State to make or take but for the provisions contained in Part-III of the Constitution. The case of Rai Sahib Ram Jawaya Kapur vs. State of Punjab (Supra) was also referred to by the Apex Court. The Apex Court held that in the facts of that case since there was no infringement of Fundamental Right, the executive instructions need not be back by a legislation. The Apex Court in Gullapalli Nageswara Rao, Somasakara Sastri (Supra) had also taken a similar view.
15. In so far as the decision relied upon by the learned senior counsel for the respondent Department i,e. Municipal Commissioner of Dum Dum Municipality & Ors. (Supra) , there is no argument to the fact that the State Government are at liberty to embark upon an extensive and systematic course of activity whereunder, several business ventures were Page No.# 14/14 commenced and in many cases taken over by creating Corporations for carrying out the activities. But the fact remains that the same has to be back by legislation and not merely by means of an executive action.
16. Under the facts and circumstances of the case and upon due consideration, I find merit in the writ petition. The State respondents having not come up with any legislation, the impugned Notification dated 17.07.2015 is found to be unsustainable. Accordingly, the same is set aside. Likewise, the impugned Notification dated 02.08.2017 as well as 07.08.2017 are also set aside.
17. The writ petitions are accordingly disposed of as allowed. No cost.
JUDGE Comparing Assistant