1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H DAY OF FEBRUARY, 2018 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.40842/2015 (APMC) BETWEEN: SRI. JAYARAM S/O NARAYANA SINGH MAJOR, RESIDING AT ‘NESARA NILAYA’ NO.135, FRONT OF VENKATESHWARA DENTAL COLLEGE BANNERGHATTA POST ANEKAL TALUK BANGALORE RURAL DISTRICT. (BY SRI.MUDIT KUNDLIA, ADV., FOR SRI. K.N. SUBBAREDDY, ADV.,) ... PETITIONER AGRICULTURAL PRODUCE MARKETING COMMITTEE (APMC) TUMKUR ROAD YESHWANTHAPURA BANGALORE REP. BY ITS SECRETARY AND:
1.
2. (BY SRI.MALLIKARJUN C. BASAREDDY, ADV., FOR R-1; SRI. SATYANARAYANA SINGH R.B., AGA FOR R-2) AGRICULTURAL PRODUCE MARKETING COMMITTEE (APMC) TUMKUR ROAD YESHWANTHAPURA BANGALORE REP. BY ITS DIRECTOR ... RESPONDENTS2THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDERDATED3007.2015 ISSUED BY THE R-2 VIDE ANNEXURE-A. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDERThough the matter is listed for preliminary hearing in ‘B’ group, by consent of learned Advocates appearing for parties, this writ petition is taken up for final disposal.
2. Petitioner is assailing the order dated 30.07.2015 bearing No.PÀȪÀiÁE/21/ZÀÄ£ÁªÀuÉ/2012, ¢£ÁAPÀ.30.07.2015 as per Annexure-A passed by second respondent disqualifying the petitioner from membership of the Agricultural Produce Marketing Committee, Yeshwanthapura, Bengaluru (for short ‘Committee’) in exercise of power under Section 17(2) of the Karnataka Agricultural Produce Marketing (Regulations and Development) Act, 1966 (‘Act’ for short) on the ground that petitioner had failed to attend 3 more than three consecutive ordinary meetings of the committee held on 16.06.2014, 25.07.2014, 25.08.2014 and 07.10.2014.
3. Petitioner came to be elected as a member of the committee from Jigani-7 constituency reserved for backward class-‘A’ in the election held on 10.01.2013. Petitioner contested for the post of Vice President which was for a period of 20 months and was successfull in being elected as Vice President of the committee. Petitioner is said to have attended the meetings till September, 2014 regularly. A meeting notice dated 01.10.2014 for the proposed meeting scheduled to be held on 07.10.2014 came to be received by the petitioner. On receipt of it, petitioner submitted a representation as per Annexure-B to the Secretary of the Committee intimating thereunder that he would not be able to attend the meeting scheduled to be held on 07.10.2014 on account of his pre-fixed foreign tour which he had undertaken and as such sought leave of 4 absence as per Annexure-B. Even according to second respondent, said meeting was not conducted.
4. Subsequently, the election officer namely, Tahsildar, Bangalore North Taluk conducted a meeting to elect president and vice president of the Committee on 21.10.2014 on account of term of 20 months period fixed under the Act was to come to an end on 24.10.2014. Petitioner is stated to have attended the said meeting also on 21.10.2014 as per Annexure-C. Petitioner also claimed that he had attended subsequent meeting held on 29.10.2014 vide Annexure- D and the monthly General meetings held on 19.01.2015 and 18.06.2015 as per Annexure-E and Annexure-F respectively.
5. Notices dated 24.02.2015 and 13.04.2015- Annexure-R-3 and Annexure-R-4 came to be issued to the petitioner to show cause as to why he should not be disqualified for not attending three (3) consecutive general meetings. Since no reply was received from petitioner, second respondent passed the impugned 5 order dated 30.07.2015- Annexure-A whereunder it is alleged that petitioner had earned disqualification on account of his abstention at the General meetings held on 16.06.2014, 25.07.2014, 25.08.2014 including the meeting held on 07.10.2014. Hence, second respondent exercising power under Section 17(2) of the Act disqualified the petitioner from membership of the Committee. Petitioner has assailed the said order in this writ petition contending interalia that same is in violation of principles of natural justice and said order is contrary to Section 17 of the Act and there has been total non-consideration of his representation dated 01.10.2014- Annexure-B whereunder exemption from attending the meeting scheduled to be held on 07.10.2014 had been sought for; on account of respondents having not intimated about outcome of consideration of the said representation, it is deemed to have been granted (leave granted).
6. Respondents on being notified have appeared and have filed statement of objections. First 6 respondent in its statement of objections has denied the averments made in the writ petition and contended that petitioner had not informed the committee about his foreign tour and hence, meeting fixed on 07.10.2014 was not attended to and question of granting exemption does not arise. It is further contended that petitioner has not attended three general meetings continuously and same itself is sufficient for disqualification and mere attending further meetings would not wipe out earlier absence of three general meetings continuously. It is specifically contended that petitioner had continuously remained absent for three meetings i.e., 16.06.2014, 25.07.2014, 25.08.2014 and as such, petitioner was liable to be disqualified from membership of the committee under Section 17(2) of the Act. On these grounds, first respondent has sought for dismissal of the writ petition. Second respondent – State has also filed its statement of objections which would indicate that it has supported the stand of first respondent and has also sought for dismissal of the writ petition. 7 7. I have heard the arguments of Sri. Mudith Kundlia, learned Advocate appearing on behalf of Sri. K.N. Subbareddy for petitioner and Sri. Mallikarjun C. Basareddy, learned Advocate appearing for first respondent and Sri. Sathyanarayana Singh R.B, learned Additional Government Advocate appearing for second respondent. Perused the case papers and records.
8. It is the contention of Sri. Mudith Kundlia, learned Advocate appearing for petitioner that second respondent committed an error in passing the impugned order without considering Section 17 of the Act in proper perspective and has failed to consider the fact that even non-attending three consecutive meetings of the committee continuously would not attract Section 17(2) of the Act. He would also submit that impugned order is passed without hearing petitioner and it is in violation of principles of natural justice. He submits that even if Board meeting which was proposed to be held on 07.10.2014 is also construed as a General meeting not attended by petitioner, even then, Section 8 17(2) is not attracted, since petitioner had already submitted an application for leave and there being no reply from second respondent, leave is deemed to have been granted as per deeming provision. As such, he contends that in either of the circumstances, sub- Section (2) of Section 17 is not attracted and prays for allowing the writ petition by quashing the impugned order.
9. Per contra, Sri. Sathyanarayana Singh R.B, learned Additional Government Advocate appearing for second respondent has vehemently contended that before issuance of impugned order, notice as required under sub-Section (2) of Section 17 of the Act was issued to the petitioner and despite receipt of said notice, petitioner has failed to appear and explain the circumstances under which he could not attend the meeting and as such, plea of alleged violation of principles of natural justice need not to be accepted. Learned Advocates appearing for respondents-1 and 2 have reiterated the grounds urged in their statement of 9 objections and have prayed for dismissal of the writ petition.
10. Having heard the learned Advocates appearing for parties and on perusal of case papers, this Court is of the considered view that in order to examine the rival contentions, Section 17 of the Act which has a direct bearing on the adjudication of rival claims requires to be noticed. As such, for the purpose of immediate reference, it is extracted herein below. to any of If any member of “17. Disqualification of sitting member.- (1) the market committee,- (a) becomes subject the disqualifications mentioned in Section 16; or [(b) if a member (other than an ex officio member) absents himself for more than three consecutive ordinary meetings unless leave so to absent himself has been granted by the market committee, his seat shall be deemed to be or to have become, as the case may be, vacant and the same shall, immediately be intimated to the member the market committee].: in writing by Provided that where an application is made by a member to the market committee for leave to absent himself and the market committee fails to inform the 10 applicant of its decision on the application within a period of two months from the date of the application, the leave applied for shall be deemed to have been granted by the market committee. (2) Whenever the [question whether a is or has become subject to person disqualification under sub-section (1) arises(or whether on the date of his election, the returned candidate was not qualified or was qualified to be chosen to fill the seat arises]., the Director of Agricultural Marketing shall]. either suo motu or on a report from the Secretary to the market committee or otherwise, and after giving an opportunity to the member concerned to be heard and holding such enquiry as he deems fit, decide the question, and his decision shall be final. [(3) Any question for decision under sub- section (2) pending before the Deputy Commissioner shall, on the date of Karnataka commencement Agricultural Marketing (Regulation) and Certain Other Laws (Amendment) Act, 1991, stand transferred to the Director of Agricultural Marketing and such question shall be decided by him as if it had been reported to or initiated by him.]. [(4) Any election petitions falling under clause (a) of Section 21 of the Act pending before the Civil Judge on the date of Karnataka commencement Agricultural Marketing (Regulation Development) (Amendment) Act, 2013 shall stand transferred to the Director of Agricultural Marketing and such petition shall be decided by the Director of Agricultural Produce and Produce of the of the 11 Marketing as if such petition had been filed before him.].” 11. A bare reading of above provision would disclose that under clause (b), if a member of the committee “absents himself for more than three consecutive ordinary meetings”, until leave so to absent has been granted by the committee, his seat would deemed to be or to have become vacant. The only exception for the said clause to become operative is, in case of such member is granted leave to absent himself from attending ordinary meeting by the market committee. Said provision would also disclose that on the seat deemed to have become vacant, such occurrence of vacancy is required to be immediately intimated to such member in writing by the market committee. Proviso to sub-section (1) of Section 17 would disclose that in case an application is made by a member to the market committee for leave to absent himself and the market committee fails to inform the applicant of its decision on the application within a period of two months from the date of the application, 12 the leave applied for shall be deemed to have been granted by the market committee. In other words, where the outcome of consideration of an application for leave by the market committee is not intimated to the applicant within two (2) months from the date of application, in such circumstances, deeming provision would come into play and for all practical purposes, the member is deemed to have been granted leave. Consideration of an application for leave to absent, decision arrived thereon should be completed within a period of two months from the date of application inclusive of its decision and intimation to the applicant. This is tone and tenor of the expression found in the proviso to clause (b) of sub-section (1) of Section 17 of the Act.
12. In the instant case, there is no dispute to the fact that petitioner is a member of the first respondent – market committee and had not earned any disqualification till 16.04.2014. A bare reading of the impugned order dated 30.07.2015 - Annexure-A would 13 disclose that reason for disqualifying the petitioner under Section 17(2) of the Act is on the ground that he had failed to attend three General meetings on 16.06.2014, 25.07.2014, 25.08.2014 and 07.10.2014 i.e., had failed to attend three ordinary General meetings. First respondent has enclosed along with its statement of objections the communication received from the Secretary of the Committee intimating the number of meetings held from 13.03.2013 to 19.01.2015. For the purpose of the present case, it would suffice if only relevant dates on which meetings were held between first meeting and last meeting as reflected in the impugned order and the remarks thereof, since they would have direct bearing. They read as under: Date Type of Meeting Remarks 16.06.2014 Ordinary Meeting-11 20.06.2014 Emergency Meeting 03.07.2014 Special Meeting 25.07.2014 Ordinary Meeting-12 19.08.2014 Special Meeting 25.08.2014 Ordinary Meeting-13 07.10.2014 Ordinary Meeting-14 Absent Absent Absent Absent Absent Absent Absent 14 13. Averments made in the petition when read in conjunction with impugned order, it would emerge from the pleadings that petitioner has not disputed his absence for the General meetings held on 16.06.2014, 25.07.2014, 25.08.2014. However, in respect of the meeting held on 07.10.2014 petitioner claims that he has submitted his leave of absence as per representation dated 01.10.2014-Annexure-B which would also disclose that it has been duly acknowledged by the first respondent on 07.10.2014. In the light of language employed in proviso to clause (b) of sub- Section (1) of Section 17 of the Act, where such application for leave to absent is received, the decision of such consideration is required to be intimated to the applicant /member within two (2) months from the date of such application and same having not been done in the instant case, deeming provision would come into play or would get attracted and as such without any iota of doubt, it can be clearly held that in the instant case, leave of absence was duly sought for by the petitioner by submitting an application dated 01.10.2014 (received 15 by first respondent on 07.10.2014) and said request was not refused or the decision on such consideration having not been intimated to the petitioner, it is deemed that petitioner has been granted leave of absence as per deeming provision. Hence, the first contention of the respondents that petitioner had failed to attend the meeting without seeking leave of absence cannot be accepted and it stands rejected.
14. Insofar as the allegation of more than three (3) ordinary General meetings having not been attended to by the petitioner and as such disqualification prescribed under sub-Section (2) of Section 17 of the Act would get attracted, though looks attractive at first blush, it does not detain this Court for too long to brush aside the same, inasmuch as, the expression used in clause (b) of sub-Section (1) of Section 17 of the Act is not “three consecutive ordinary meetings” but it is “more than three consecutive ordinary meetings”, which would mean that a sitting member of the market committee would become liable to disqualified, if he 16 absents for “more than” three consecutive ordinary meetings and as such the emphasis would be on the expression “more than”.
15. Hon’ble Apex Court in the case of MAHARASTHRA GIRNI KAMGAR UNION VS. S. BHATTACHARJI AND OTHERS reported in (1999) 7 SCC547while examining the deeming provision of Section 3(25) of the Bombay Industrial Relations Act, 1946 by which deeming provision, the legislature treated deemed arrears of subscription for three calendar months or even more to be a sufficient disqualification for a person to be continued on the roll of membership of the Union for subsequent months, had noticed that said provision having undergone changes from 1965 onwards and while interpreting the words “more than three calendar months” as mentioned in the proviso, pursuant to the amendment in the year 1965, Hon’ble Apex Court has held that a member who does not pay his subscription for a period of “more than three calendar months” within the block of six earlier 17 calendar months would be deemed to be a non member. It is further held that the concept of arrears of a calendar month as laid down by the explanation would take in its sweep the conduct of a member who does not pay subscription for the calendar month concerned by the end of that month or in other words, he has full play and locus to pay up the subscription for the month concerned at any time from the first, till last day of such calendar month. It has been held: “10. Let us take the case of a member of the union xxx end of the calendar month concerned. However, even if he is deemed to be in arrears for these three relevant calendar months, his case would not be covered by the sweep of the proviso which can make him a deemed non-member for the relevant month of December, 1981 if his subscription is found to be in arrears for a period of more than three calendar months. The vexed question is whether in the light of the aforesaid illustration such a member can be said to be in arrears of subscription for a period of more than three the interpretation which is canvassed by learned counsel for the respondents and which was upheld by the High Court, the proviso will not adversely affect the membership of such a person and he would not be deemed to be a non-member for December, 1981 for the simple reason that he was not in arrears for a period of more than three calendar months relevant for consideration for the application of the calendar months. On 18 proviso. He was in arrears for the calendar months June, August and September, 1981 but in order to be treated to be in arrears for a period of more than three calendar months it had to be shown that he was in such arrears for a period of four calendar months or even more as a period of "more than three calendar months" cannot be equated with the phraseology "period of three calendar months". In this connection, our attention was invited to the definition of the term "member" which was operating since 1953 and which underwent a change in 1965 and which changed definition as applicable on the facts of the present case. The definition of the term "member" as stood on the statute- book since 1953 read out as under: “3(25) ‘Member’ means a person who is an ordinary member of a Union and who has paid a subscription of not less than two annas per calendar month: Provided that no person shall at any time be deemed to be a member if his subscription is in arrears for a period of three calendar months or more next preceding such time. for a Explanation: The subscription particular calendar month shall, for the purpose of this clause, be deemed to be in areas if such subscription is not paid by the end of the calendar month in respect of which it is due". It is this definition which underwent a change in 1965 and became the definition in the present form. When the definition of `member' under Section 3(25) as existing on the statute book in 1953 is placed in juxtaposition with the definition as available in the present form it becomes at once clear that the earlier proviso tried to 19 treat the member to be a non-member by a deeming provision if he was in arrears of payment of subscription for a period of even three calendar months or more next preceding the month in question. If the old definition of 1953 had operated at the relevant time, a situation for which the appellant's learned counsel is canvassing would have been available to him as for the month of December, 1981 three calendar months next preceding would have been September, October and November, 1981 and if it was shown that he had not paid the subscription for each of these months by the end of that month then as per the explanation which is pari materia with the present explanation he would have been treated as a non-member for December, 1981 even if he had paid subscription for December, 1981. Thus, by the deeming provision as per the proviso existing prior to 1965, the legislature treated deemed arrears of subscription for three calendar months or even more to be a sufficient disqualification for a person to be continued on the roll of membership of the union subsequent months. However, the said proviso has undergone a sea-change from 1965 and as per present form in which it exists on the statute book, a person would be deemed to be a non-member only if his subscription is in arrears for a period of more than three calendar months within the block of six earlier calendar months. The legislature in its wisdom removed the fetter of deemed non-membership which earlier existed when even three calendar months arrears of subscription were sufficient to raise the deeming fiction of non-membership of such a person. It, therefore, cannot be said that what is deleted by the legislature from the proviso after 1965 must by a process of for 20 period six months' interpretation be treated to have existed even after the deletion of the term "arrears for a period of three calendar months". In other words, after 1965 amendment in the proviso to Section 3(25), it is not enough to raise the deeming fiction for displacing a member for the month of December, 1981 by only showing that he was in arrears for a period of three calendar months preceding December, 1981 but on the contrary, the legislature by providing a wider range for deemed non-membership during six preceding months has thought it fit to provide in its wisdom that the deeming fiction of non-membership would arise only when during the immediately preceding the concerned member has so behaved as to remain in arrears by not paying subscription before the end of each of the calendar months which must be more than three such months. Meaning thereby, they may be four, may be five, may be six, as the inquiry about his past conduct has to be spread backwards up to a maximum period immediately preceding the month in question, namely, December, 1981. It is not possible to agree with the contention of learned counsel for the appellant that period of more than three calendar months as mentioned in the proviso pursuant to the amendment in 1965 can be said to have set in once it is found that for each of the preceding three calendar months subscription was not paid by the end of such month and moment three calendar months are over without payment of the due subscription for each of these months, on the stroke of 12 O'clock midnight of the third calendar month the period of more than three calendar months can be said to have started. It is obvious that the concept of arrear for a calendar month as laid down of six months 21 for to pay up forward by for the appellant from June, 1981 by the explanation takes in its sweep the conduct of a member who does not pay the subscription the concerned calendar month by the end of that month. Meaning thereby, he has full play and locus poenitentiae the subscription for the month concerned at any time from first till the last day of such calendar month. If the contention of learned counsel is accepted, a very curious result would follow which is not contemplated by the Section and which would not reflect the legislative intent underlying the enactment of the proviso as amended in 1965. If the interpretation put learned counsel for the appellant is accepted then it can be said in the light of the aforesaid illustration that during the relevant period of six months to November, 1981 the concerned member was deemed to be in arrears for the months of June, August and September as he had admittedly not paid subscription by the end of each of these months. If that happens, according to learned counsel for the appellant, moment the last calendar month for which he was in arrears ended, namely, September, 1981 by first of October such member can be treated to have been in arrears for more than three calendar months. However, as provided by the explanation, in order that such a member can be said to be in arrears for the next calendar month i.e. the fourth calendar month which obviously would result in his being in arrears for more than three calendar months, on first of October how can he be said to be in arrears for that month i.e. the fourth calendar month when time to pay up subscription for October is still not over and is available to him as per the explanation till 31st October of that 22 clearly legislative intent than it is also interesting month?. The interpretation canvassed by learned counsel for the appellant would render the phrase "more than three calendar months" totally otiose. It is also necessary to note, in this connection, that legislature has expressed a different while substituting the earlier proviso to Section 3(25) which was on the statute book from 1953 by deleting the words “any arrears for a period of three calendar months” and by substituting the words “arrears for a period of more three calendar months”. It is axiomatic that “more than three calendar months” cannot be equated with “three calendar months”. In this connection, to compare the phraseology employed by the legislature in Sections 13 and 16 wherein an applicant union for getting registration as a representative union under Section 13 or the rival union to displace such a representative applying under Section 16 has to show its requisite 25% membership of the workmen engaged in that industry for a continuous period of three immediately preceding such application. Continuous period of three calendar months would naturally start with the first month and end with the third month. Such a phraseology is conspicuously absent in the proviso to Section 3(25) as it stands on the statute book after 1965. The interpretation which appealed to the high Court and which, in our view is the correct interpretation, legislative intent underlying the enactment. It has to be kept in view that the membership with which we are concerned is of persons who are mostly illiterate labour force working in various textile mills and other industries governed by the BIR Act in Bombay or at other important centres. calendar months fructifies the union by 23 They are largely drawn from rural areas and come from long distances to eke out their livelihood in search of maintaining themselves and the members of their family. Such poor and illiterate persons who join the unions which function for them in a representative capacity for ventilating their grievances must be permitted to be duly represented by the unions of their choice. The interpretation which fructifies this underlying purpose of legislation has to be preferred. The representative union of such employees, by the process of collective bargaining on their behalf with the mill owners' association, can bring about appropriate settlements of industrial disputes while dealing with better financially and socially placed unions of employers who naturally have larger economic resources and can get able assistance of competent legal and illiterate and financial brains. Such unorganised masses of workmen, therefore, can be brought on a quick footing for the purpose of bargaining with such mightier organisation of employers only when they continue to be represented by the representative union. Such illiterate masses cannot be dismembered only because they had not paid pittance of 25 paise per month of subscription or even more as required by their bargaining agents/unions their grievances in a collective manner. The BIR Act is based on the principle of industrial democracy. Any provision of the Act which tries to cater to the needs of these illiterate masses of workmen has to be so interpreted as to subserve the legislative of intent underlying industrial collective bargaining guaranteed by the Act. Any interpretation which such benevolent scheme and which guarantees the principle ventilating for democracy and fructifies 24 in to the the proviso continuance of membership of such illiterate masses of workmen has to be preferred interpretation which frustrates the scheme underlying such a benevolent enactment. The deeming fiction contained to Section 3(25) for dismembering a person has, therefore, to be raised only on a strict construction of the proviso and not on a liberal construction of such a disabling provision. Therefore, if two interpretations are possible, the one that restricts the scope of the proviso which has a disabling effect on the membership of the union has to be preferred to the one which extends its scope. However, we hasten to add that on the setting of Section 3(25) along with the proviso and the explanation even two interpretations reasonably possible. In fact, on the express language employed by the legislature in the proviso in 1965 read with the as amended explanation, plausible interpretation which appealed to the High Court is clearly discernible from the very blue print of the explanation to Section 3(25).” the proviso and are not the only 16. Keeping the above authoritative pronouncement of the Hon’ble Apex Court in mind, when the expression found in clause (b) of sub- Section(1) of Section 17 of the Act is perused, the irresistible conclusion which has to be drawn would be that only in the event of a member not attending “more than” three consecutive ordinary meetings, the 25 disqualification prescribed under sub-Section (2) of Section 17 of the Act would be attracted and the expression “more than three consecutive meetings” means that where a member absents for ‘not less than four meetings’ and that too without obtaining leave of absence and in such an event, it would entail disqualification. Hence, it is held that non – attending of three (3) consecutive ordinary meetings would not attract the disqualification prescribed under Section 17(2) of the Act and it is not the purport and intent of the legislature. The phraseology employed by the legislature in clause (b) of sub-Section (1) of Section 17 would render the expression “more than three months” otiose or it would negate the intent of the legislature, in the event of contention raised by the respondents that non-attendance of three (3) consecutive meetings attracted Section 17 (2) of the Act were to be accepted. In that view of the matter, second contention raised by the respondents also cannot be sustained. In other words, impugned order of disqualification passed against petitioner based on his absence for the ordinary 26 meetings held on 16.06.2014, 25.07.2014, 25.08.2014 and 07.10.2014 cannot be held as attracting clause (b) of sub-Section (1) of Section 17 of the Act.
17. For the reasons aforestated and also on the ground that clause (b) of sub-Section (1) of Section 17 of the Act is not attracted to the facts on hand and also on the ground that leave of absence is deemed to have been granted to the petitioner for the meeting held on 07.10.2014, impugned order is liable to be quashed.
18. Hence, I proceed to pass the following:
ORDER(1) Writ Petition is hereby allowed. (2) Impugned order dated 30.07.2015 - Annexure-A passed by second respondent is hereby quashed. (3) Rule made absolute. JUDGE *sp SD/-