K.C. Mathew vs Ms. Director Plantation Corporation and Another

D.J. Jagannadha Raju, J.—O. P. No. 349/91 is filed by K. C. Mathew, & Junior Superintendent working under the first respondent who was also holding the post of General Secretary of the Kerala Plantation Corporation Staff Union affiliated to the I. N. T. U. C. He prays for a declaration that the rules governing officers of the respondent do not prohibit or restrict the petitioner from holding the post in a trade union and that Exts. P1 and P3 are illegal and arbitrary. It is the petitioner''s claim that ever since he joined the respondent''s service and ever since the Plantation Corporation Staff Union affiliated to I. N. T. U. C. was formed in 1970 he happened to be an office bearer of the union and in 1979 as per the settlement between the staff union and the management 30 posts of Junior Superintendents were created or in effect certain posts were upgraded and he continued to be the General Secretary of the union from 1981 though working as Junior Superintendent. He claims that Ext. P1 memo issued to him on 8-3-1990 and the memo dated 6-12-1990 issued to him after Ext. P2 explanation are illegal and arbitrary and they violate the fundamental right of the petitioner under Article 19 (1) of the Constitution. Shri. M. V. Joseph appearing for the petitioner contends that clause 17 (d) of Ext. R1 (a) only prohibits an officer from being a member of a political party or of being a member of any organisation which takes part in politics. It does not restrict the right of the petitioner to be a member of a trade union and it does not prohibit the petitioner from being an office bearer of a trade union. If this clause is deemed to prohibit the petitioner participating in the trade union activity and holding the post of an office bearer of the staff union it offends Article 19 of the Constitution. He also contends that the respondent comes within the ambit of Article 12 of the Constitution. As it is a Government Company and it is an instrumentality of the State, the writ petition is maintainable and any restrictions against the fundamental right under Article 19 (1) of the Constitution can only be imposed by a statute. The Board of Directors by a resolution, cannot impose any restrictions on the fundamental right envisaged under Article 19(1) of the Constitution. Hence Exts. P1 and P3 have to be quashed He also contends that right from 1981 petitioner has been holding the post of General Secretary of the union. Till 1990 there was no objection. Obviously, they are now trying to prevent the petitioner from participating in the trade union activity and being the General Secretary. In view of the decision to hold a referendum Exts. P1 and P3 were issued with ulterior motives. On the ground of want of bonafides also they are liable to be quashed.

On behalf of the contesting respondent Shri. Siri Jagan contends that the respondent/Corporation does not come within the ambit of Article 12 of the Constitution. It is not correct to say that there is no rule prohibiting the petitioner from participating in trade union activity as the trade union is affiliated to a Political party and as it is bound to take interest in political activity. As the petitioner is a Junior Superintendent and not a workman as defined under the Industrial Disputes Act, he is not entitled to be an office bearer of a trade union, because there is every possibility of his not treating properly the workman working under him who belongs to other trade union or he might influence the workers belonging to other trade unions to support his union in the referendum. A Junior Superintendent who is appointed in a supervisory and managerial capacity cannot continue as an office bearer of the staff union of the Corporation. He submits that in this case, no want of bonafides can be attributed to the management, because as early as 31-1-1990 the Board of Directors resolved that officers of the Corporation who are performing supervisory and managerial duties should not take up decisions as office bearers of the staff or workers union. It is not correct to say that the decision was taken in view of the referendum that was conducted. Ext. R1 (c) is the resolution of the Board dated 31-1-1990. As a consequence of it, Ext. P1 notice was issued to the petitioner on 8-3-1990. Petitioner gave his reply, Ext. P2, on 30-4-1990. The decision to conduct a referendum was taken on 4-10-1990. The impugned order, Ext. P3, was passed on 6-12-1990. Shri. Siri Jagan contends that judged back ground of the chronology of events there is absolutely no proof of any malafides. Assuming for a moment that Ext. P3 order is passed in view of the impending referendum even then it cannot be struck down as illegal or arbitrary. The Corporation being a Government Company registered under the Companies Act does not have any statutory rules. It is not a statutory Corporation. There is no question of imposing any restrictions by way of legislation. The conduct rules and service rules are merely the resolution of the Board of Directors. Ext. R1 (c) passed on 31-1-1990 coupled with in the conduct service rules Ext. R1 (a) authorises the respondent/Corporation to prohibit the petitioner from taking part in the trade union activity of which workmen are members. It is claimed that Ext. P3 does not violate Article 19 of the Constitution. The service conditions do not prohibit his participating in trade union activity and he is entitled to participate in the trade union or hold the post of an office bearer of which the officers alone are members. He specifically relies upon Rule 77 of the Kerala Government Servants'' Conduct Rules as an indication that a person who is in the cadre of an officer cannot be the office bearer of a trade union which comprises as its members his subordinates. He also contends that as per the decision reported in 1994 (1) K. L. T. 754 (Rajan v. State) the respondent/Corporation does not come within the ambit of Article 12 of the Constitution.

In the reply argument Shri. Joseph points out that the decision reported in 1994 (1) K. L. T. 754 (Rajan v. State) is not correct law and this is a decision rendered ignoring the five Judges Full Bench decision in 1984 K. L. T. 403 (Kunju Mohammed v. State of Kerala), popularly known as the SIDECO Case. He also submits that unless a restriction is imposed by statute or by statutory rules the fundamental right of the petitioner under Articles 19 of the Constitution cannot be curtailed. The State will be entitled to impose only reasonable restriction and not unreasonable restriction and that also can be done only by way of law. It cannot be done by way of resolution by Board of Directors.

O. P. No. 16255 of 1992 is filed by the General Secretary of the Kerala Plantation Staff Association (A. I. T. U. C.). In this petition, petitioner seeks several reliefs, some of which have become in fructuous. The first relief is to call far the records relating to the case and quash resolution No. 4239 in Ext. P4 dated 4-10-1990. The second relief prayed for is to issue a writ of mandamus to direct the management/first respondent to see that D. S. Menon, R6 and K. C. Mathew, R7 who are now working as Junior Superintendents and who are office bearers of different trade unions do not hold the office of in any trade union of employees of the first respondent. The third relief prayed for is to direct the respondent not to conduct the referendum pursuant to Ext. P4 resolution. 4 and 5 are the residuary prayers which are consequent to the first three prayers. Now, in this case as the referendum has already been held on 15-12-1992 prayer 3 has become in fructuous, so also prayer 1 has become in fructuous. The only prayer that survives in this writ petition is prayer No. 2. It is contended on behalf of the petitioner that Junior Superintendents who are working in the supervisory cadre and in the managerial cadre are not entitled to participate in trade union activities of trade unions of which employees of the first respondent are members. Reliance is placed upon clause 17(d) of the service rules and various resolutions passed and the memos issued to K. C. Mathew.

As regards this writ petition, Shri. M. V. Joseph contends that this writ petition is a writ petition engineered by the management to lend support the stand taken by the management in O. P. No. 349/91. The arguments which are advanced regarding O. P. No. 349/91 hold good for this original petition also Petitioner who is interested in rival trade union is not entitled to question the right of K. C. Mathew to hold position as an office bearer of a registered trade union. Clause 17 (d) of the service rules does not in any way prohibit him from taking part in trade union activities.

First respondent/management filed its counter in general supporting the writ petitioner and claims that the writ petition is not maintainable as it is filed by a trade union and not by a citizen. On the ground that the referendum has already been held and Ext. R1 (a) is the circular issued as a result of the referendum the writ petition has become in fructuous and it should be dismissed with costs.

The points that arise for consideration in these two original petitions are;

i) whether Rule 17 (d) of Ext. R1 (a) can have the effect of debarring the petitioner from taking part in trade union activities and holding the post of an office bearer in the registered trade union;

ii) whether the Plantation Corporation is within the ambit of Article 12 of the Constitution or not; and

iii) what are the reliefs to which the writ petitioners are entitled. Point No. 2 (ii)

Shri. Siri Jagan appearing for the management contended before me that the Plantation Corporation is a Government owned Company administered by the Board of Directors and hence no writ petition is maintainable against it. He contends that it does not come within the ambit of "an instrumentality of the State" which alone would bring at within the clutches of Article 12 of the Constitution. He also submits that the right to form of a trade union and to hold office as an office bearer is not a fundamental right. He places reliance''s upon the decision reported in 1994 KLT 754 (Rajan v. State) to show that an organisation like the Plantation Corporation is an industry, but not a State or instrumentality of the State within the meaning of Article 12 of the Constitution. The decision reported in 1994 (1) KLT 754 Rajan v. State is a decision of a single Judge who was considering the question whether the Kerala State Science and Technological Museum which is a registered society comes within the meaning of State or other authority or it comes within the definition of an industry. The learned Judge quoting extensively from the G.Os. which created the organisation and as to how it is a registered society run with the funds of the State, has come to the conclusion that it is an industry. From paragraph 4 his Lordship dealt with the question whether the Museum would come within the meaning of an industry and following the principles laid down in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, held that it is an industry. With utmost respect to the learned Judge I may point out that in the course of discussion his Lordship did not even refer to the definition of industry as given in Section 2 (j), If the learned counsel arguing the case had brought to the notice of the court the definitions of industry in Section 2 (j), industrial dispute in Section 2 (k) and industrial establishment or undertakings in Section k 2 (ka) of the Industrial Disputes Act, it would have become clear that the society which was disseminating scientific knowledge would not come within the definition of industry. Then his Lordship dealt with the question whether the Kerala State Science and Technological Museum Association which is an autonomous organisation would come within the meaning of State or other authority contemplated under Article 12 of the Constitution. His Lordship after referring to certain decisions of the Supreme Court came to the conclusion that on the ground that the Museum is not discharging a function which is an essential function of the State and it has no public obligation concluded that it is not State or authority within the meaning of Article 12 of the Constitution. Consequently his Lordship held that the writ petition is not maintainable.

I may point out at this stage that the learned Judge''s decision overlooks the authoritative Full Bench decision of five Judges of this Court reported in 1984 K. L. T. 403 (Kunju Mohammed v. State of Kerala). The Full Bench after elaborately considering the case law came to the conclusion that the Kerala State Industrial Development and Employment Corporation which is a Government Company is an authority within the meaning of Article 12 of the Constitution and it is an instrumentality of the State. In paragraph 5 at page 405, the Court dealt with the history of the development of law relating to Article 12 of the Constitution from the beginning upto the International Airport Authority''s Case Ajay Hasia''s Case and B.S. Minhas Vs. Indian Statistical Institute and Others, and concluded as follows : "An authority is a State within the meaning of Article 12 of the Constitution if it is an instrumentality or agency of the Government. A decision on this question shall have due regard to the tests formulated and summarised in F. A. C. T. case". Then the Court observed in paragraph 9 as follows: Applying these principles, the main question in this Original Petition is whether SIDECO, a government owned company is a "State" within Article 12 of Constitution. All the shares of the company are vested in the Government and the company is rightly described as a Government owned company. The Directors of the company are representatives of the Government. The Directors shall reserve for the decision of the Governor and take action only, after the approval of the Governor is obtained with regard to certain aspects and then indicated in paragraph 10 as follows: "It is thus clear that SIDECO is an instrumentality of the State and thus "State" within the meaning of Article 12 of the Constitution and hence bound by the Constitutional corrective in writ jurisdiction". The learned single Judge''s judgment runs contrary to the principles laid down in the Full Bench decision. It is not a correct statement of law. Hence I ignore the decision reported in 1994 (1) K. L. T. 754 (Rajan v. State) and following the decision reported in 1984 K. L. T. 403 (FB) (Kunju Mohammed v. State of Kerala) hold that the first respondent/plantation Corporation which is a wholly State owned Corporation is an authority which comes within the meaning of Article 12 of the Constitution as it is an instrumentality of the State. The writ does lie against the Plantation Corporation. I hold this point in favour of the petitioner.

Point No. (i).

Article 19 of the Constitution protects certain rights regarding freedom of speech, etc. Under Article 19 (1) (c) the freedom to form associations or unions is protected. Under clauses (3) and (4) the rights protected under 1(b) and 1(c) are dealt with. The State is entitled to impose reasonable restrictions by passing any law on the exercise of the right conferred under clauses (b) and (c). Thus it is clear that if any restrictions regarding the fundamental rights covered by Article 19(1) (b) and (c) are to be imposed, they can only be imposed by making the statute, i.e., by legislation. In no other manner can these fundamental rights be interfered with. Ext. R1 (a) is the service rules of the officers of the plantation Corporation of Kerala. There is no dispute about the fact that K. C. Mathew/petitioner who is working as Junior Superintendent comes within the definition of officer as defined under Rule 2 (5). The more important question is whether Rule 17 (d) can have the effect of restricting the right of the petitioner to participate in trade union activity and hold the post of an office bearer in a registered trade union. Rule 17 (d) reads as follows: "An Officer shall not be a member of or be otherwise associated with any political party or any organisation which takes part in politics, nor shall be taken part in or subscribe in aid or assist in any other manner any political movement or activity". A plain reading of this role clearly indicates that what is prohibited is the participation of an officer in any political party or any political organisation and taking part in politics. The rule does not interfere with the right of an individual to participate in trade union activity though a trade union may be affiliated to a political party. If as a member of the trade union he takes active part or participates in the practical politics then certainly he can be pulled up and disciplinary proceedings taken against him. But as the rule now stands there does not appear to be any prohibition against the petitioner taking part in trade union activity or holding the post as an office bearer of a trade union.

Respondent''s counsel relied upon Rule 77 of the Kerala Government Servants'' Conduct Rules to indicate that according to Note I appended to Rule 77 Class I and Class II officers shall not be allowed to be members in the same association in which Class III officers are members and vice versa. It should be remembered that Rule 77 deals with conditions for recognition of associations of Government Servants. While granting recognition certain restrictions are imposed by way of Note I. That does not in any way interfere with the fundamental right under Article 19 (1) of the Constitution. It should be remembered that the Government Servants Conduct Rules are statutory Rules framed under the proviso to Article 309 of the Constitution. The Conduct Rules Ext. R1 (a) are nothing but a resolution of the Board of Directors. They cannot have force of a statutory rules or statute. In this context, it may be pertinent to point out that as the rules stand there is no prohibition against an officer participating in trade union activity and the situation may be different if Rule 17 is suitably amended so as to restrict the officers from taking part in trade unions and restricting them from being office bearers of trade unions in which employees working under them are also members. As the rules stand there is no prohibition. Whether an amended rule prohibiting participation in trade union activities would amount to imposition of restriction under a statute or not is a different point. But in this writ petition I do not wish to pronounce anything about it. As and when such a situation arises, it will have to be decided by the court dealing with that matter.

Another interesting aspect which will have to be borne in mind is that the present petitioner has been a Junior Superintendent from 1979. Since 1981 he has been holding the post of office bearer in the trade union. The management knew that he does not come within the definition of "workman" as defined u/s 2 (s) of the Industrial Disputes Act. But at no point of time from 1981 to 1990 did the management object to his being an office bearer of the staff union in which workmen were also members. The present action appears to have come up because of a Board resolution Ext. R(1) (c) passed on 31-1-1990. Shri. Joseph appearing for the petitioner tried to attribute malafides for the action taken by the management to prevent the petitioner from taking part in trade union activity. He claimed that it was done with ulterior motives because a decision was taken to hold a referendum. Judging the entire material I do not find any justification to attribute malafides to the management. Ext. R1(c) was passed on 31-1-1990. By this resolution, the Board wanted that officers shall not take up positions as office bearers of staff or workers unions and it was resolved to give notice to officers who hold the position of office bearers of staff or workers unions. Ext. P1 notice was issued on 8-3-1990. Petitioner gave his reply to Ext. Pl on 30-4-1990. The decision to conduct a referendum was taken on 4-10-1990. In such a background, it cannot be said that 10 months prior to the decision to hold a referendum the Board had any ulterior motives in passing Ext. R1 (c) resolution and then giving Ext. P1 notice. Ext. P3, the impugned order, was passed on 6-12-1990. In fact the referendum was held much later in the year 1992. It can safely be said that the allegations of malafides are not justified.

Considering the rules as they exist and considering the constitutional position, the Board of Directors cannot prevent the petitioner from participating in trade union activity and from holding the post of office bearer of a trade union in which workers are members.

An argument was advanced by Shri. Siri Jagan to the effect that as the service rules are the result of a resolution of the Board of Directors Ext. R1(c) resolution dated 31-1-1990 may be deemed as an amendment of the service rules. This argument cannot be accepted for several reasons. If the Board of Directors contemplated amendment of the service rules, it was open to them to pass specific resolution amending Rule 17 and particularly Rule 17 (d) of the service rules. Ext. R1 (c) only indicates that the Board was only dealing with the question of recognition of trade unions and in that context passed resolution No. 4239. This Board resolution cannot constitute an amendment to the service rules. I hold point No. (i) in favour of the petitioner.

Consequent on my conclusions regarding Points (i) and (ii) it follows that the petitioner is entitled to the reliefs prayed for in this writ petition. Original petition is allowed and Ext. P1 and P3 in O. P. No. 349/91 are hereby quashed. It is hereby declared that there is no prohibition for the petitioner to be an office bearer of a trade union which may consist of officers as well as the workmen.

O. P. No. 16255/1992. In view of O. P. No. 349/91 being allowed it naturally follows that the petitioner is not entitled to the second prayer in the writ petition which, alone now survives. Prayers 1 and 3 have become in fructuous. Consequently O. P. No. 16255/92 is dismissed as devoid of merits,

In the result, O. P. No. 349/91 is allowed and O. P. No. 16252/92 is dismissed.

Each party shall bear its own costs