Indian Kanoon - Search engine for Indian Law

11. As regards the Port of Mormugao, the Board of Trustees is appointed from first April of the year for a period of two years. The Board of Trustees comprises of two trustees representing the interest of the labour as has been specified by the Government.

12. It is the case of the petitioner that Shri S.K. Shetye, the petitioner's nominee was appointed to the Board of Trustees of the Major Port of Mormugao as one of the persons capable of representing the labour employed in the Port in the years 1982, 1984, 1986 and 1988 for the period of two years each from first April of that year while the second person appointed to the Board as the person capable of representing the labour employed in the port of Mormugao was S.R. Kulkarni, a nominee of the other Trade Union respondent No. 4.

19. Shri Kakodkar, the learned Counsel appearing for the petitioners, on the basis of the facts as averred in the petition as also from the facts disclosed from the affidavit-in-reply filed on behalf of the Central government stated that now it is an admitted position that the appointment of the two labour representation trustees made by the impugned Notification was made not on the basis of figures of December, 1988, but on the last available figures, i.e. of December, 1986. He further brought to our notice the fact that even the reply-affidavit of the Government shows that the 1986 figures were not above board but that there were discrepancies. On these facts, therefore, he submitted that if the figures of 1988 were not available, it was open for the Government to take advantage of the provisions of section 11 of the said act which permits certain appointment to be done subsequent to the formation of the new Board if for some reason the Government is unable to fill in the vacancies. That is to say, if there was any genuine difficulty for some bona fide reason, the Government ought not to have appointed the respondents Nos. 2 and 3 to the Board of Trustees and could have waited for the figures of December 1988 to be available. Even otherwise, according to Mr. Kakodkar, the appointments effected on the basis of disputed figures of 1986 are also contrary to the very intention of the Legislature and, certainly, the order impugned insofar as the appointment of respondents Nos. 2 and 3 is concerned is void ab initio. He also argued that the formula evolved by the Government for verification and ascertainment of the strength of various Trade Unions and their representation every two years is significant and indicates that the very latest figures ought to form the basis of appointment of labour representatives on the Board. He also criticised the laxity on the part of the Government in collecting the final figures regarding the membership strength of the Union at the Port. But at the same time the laxity on the part of its machinery to collect the correct figures will not give a licence to the Government to appoint anybody to the Board of Trustees as labour representating the interest of the labour. Accordingly, he criticised the impugned Order as not only void, illegal and contrary to the provisions of the chapter II but also as mala fide and obnoxious.

22. Shri Dias, Counsel for respondent No. 3, opposed the petition. According to him, the nanda formula is merely a guideline which the central Government has secured for itself to aid and assist in the formulation of its opinion for appointment of trustees. according to him, this has been voluntarily by the State eventhough the Statue gives full discretion to the central Government to form its own opinion to find as to the person best capable of representing the interest of the labour. relying on the Barium chemicals' v. Company Law Board case, and The Commissioner of Income-tax v. Mahindra Ltd. case, , he submitted that the order passed by the Central Government (the impugned Notification) is a purely administrative order passed by the Government in its own discretion as authorised by section 3 of the Act and in that event, the same would not become justifiable before this court. In the alternative, he submitted that the appointment of the two trustees, respondents Nos. 2 and 3 for the term 1990 to 1992 based on the last available figures of 1986 is not so unreasonable that it needs to be interdered with. According to him, it would not be an illegality and only if at all, it is an erroneous order. In any event, the respondent No. 3 is bound to show cause to the notice issued and the Central government will decide in terms of the norms usually followed, urges Mr. Dias.

31. In the facts and circumstances of the present case and in view of the scheme of appointment of two trustees who, in the opinion of the Central Government, are best capable of representing the interests of the labour as envisaged in Chapter II, sections 3, 7, 10 and 11 of the Act, we find that the impugned order is unjust, illegal and void ab initio. It is based not on relevant considerations, and therefore, suffers from the vice of arbitrariness. We have, therefore, no hesitation to allow the petition though, of course, not as prayed for.