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Judgment
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.
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.
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 3500 members about 1000 employees are Muster Roll workers.
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.
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.
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 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 Limitedâ€, as already stated herein above. The Cabinet decision was notified vide the impugned Notification dated
17.07.2015.
Aggrieved with the above notification, the petitioner approached this Court by filing 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.
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.
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 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.
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 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.
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 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.
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.
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-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 7th 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 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.
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 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.â€
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.
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 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.
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.
The writ petitions are accordingly disposed of as allowed. No cost.