P.G. Dhananjayan Vs. State of Kerala and ors. - Court Judgment

Excerpt:
constitution - quo warranto - article 226 of constitution of india and section 6 (3) (1) of kerala abkari worker's welfare fund act, 1989 - writ petition challenging appointment of respondent no. 4 and 5 as member and chairman of board created under act of 1989 - challenge on ground that respondents did not possess qualification prescribed under section 6 (3) (1) - evidence prove that respondents did not usurp any public office -state government used its power to select and appoint respondents who are competent to represent abkari workers in the board constituted under section 6. - - 3. however, genuine efforts of the counsel for the parties to place before this court through citation of decided cases of the writ of quo warranto copious references to the principles of administrative law emphasising attitude of reasonableness and acting in good faith, together with the settled guidelines relating to the exercise of discretionary power with implied limitation, all above would certainly provide tabulised wisdowm that would provide its own weightage to this judgment. but a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. 8-12-94 and 3-1-95 as well as affidavit dt. he clearly falls within the expression employer under the kerala abkari workers welfare fund act, 1989. he therefore does not suffer from any disqualification to be nominated.v.v. kamat, j.1. the writ of quo warranto originally was a writ for the king in england against the subject who claimed or usurped any office, to inquire into the authority by which the claim was sought to be supported, in order to determine the right of the subject. the said writ actually fell into disuse.2. in fact, in his constitutional law of india -- shri h. m. searvai proceeds with the discussion of quo warranto in the following words : (16.61 -- page 1481 -- 4th edition)'the writ of quo warranto was replaced in england, first by information in the nature of quo warranto, and then by an injunction accompanied, if necessary, by an order declaring vacant. but the principles which govern the writ still apply, and in the following discussion the 'writ' of quo warranto is referred to, as it is expressly mentioned in articles 32 and 226'.in the country of origin there has been replacement long back. in fact, keeping all the principles undisputed, the factual matrix would provide clear answers to the contentions of this petition.3. however, genuine efforts of the counsel for the parties to place before this court through citation of decided cases of the writ of quo warranto copious references to the principles of administrative law emphasising attitude of reasonableness and acting in good faith, together with the settled guidelines relating to the exercise of discretionary power with implied limitation, all above would certainly provide tabulised wisdowm that would provide its own weightage to this judgment. this would also add as an acknowledgment of labour of counsel.4. the petition prays for a writ of quo warranto or any other writ quashing the appointment of respondent no. 3 as a member and chairman of the kerala abkari workers' welfare fund board and also the appointments of respondent nos. 4 and 5 as members of the board and to pass consequential orders and directions to declare the three posts of office as vacant.5. an introduction to the writ of quo warranto has necessarily to begin with the passage from halsbury (vol. ii -- 3rd end. p. 145) continuously quoted with approval thereafter even by the supreme court, while considering the authority of anniah gowda in holding the post of a research reader in english in the central college. the observations are (at p. 494 of air) :--'the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public office against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. it would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office, in some cases, persons not entitled to public office may be allowed to occupy them and continue to hold them as a result of the connivance of the executive or with its active help and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked the usurper can be ousted and the person entitled to the post be allowed to occupy it. it is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by(a) usurper without legal authority, and that(b) necessarily leads to the enquiry as to whether the appointment of the said usurper has been made in accordance with law or not.'6. the above observations approved by the supreme court (air 1965 sc 491) (supra), by this court, are considered in details while examining the legality of the order of retaining a member of ias in service after retirement for a further period of one year, subject to the sanction by the central government with regard to the period beyond 6 months.7. the principles relating to the exercising of power by the public authority expect an implied duty to act with reason and responsibility in the situation of exercise of such powers even in matters of public appointments. in this context, the learned counsel, with advantage, relied on the law and principles summed up in 'administrative law --by hwr wade -- 6th edition p. 399 to the following apt effect:'statutory power conferred for public purposes is conferred as it were upon trust, not absolutely that is to say, it can validly be used only in the right and proper way which parliament when conferring it is presumed to have intended. although the crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms.......... the powers of public authorities are therefore essentially different from those of private persons. a man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. he may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. in the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. this is unfettered discretion. but a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest.'reliance is also placed on the oft-quoted and relied upon decisions of the house of lords on the apt observations of lord denning that parliament confers a discretion on the minister so that it could be used to promote the policy and objects of the act and the court was entitled to interfere if it is found that discretion was used to frustrate the policy and objects of the act.8. submission was also made with regard to the nature of material that can be considered by the court with reference to the order of appointment in question. it was submitted that the order of appointment cannot be justified on the basis of the material taken up and collected afterwards in support and the material that is to be considered is the material considered by the public authority appointing the persons concerned -- i.e. respondent nos. 3, 4 and 5 and would not be the material produced by the persons concerned. to appreciate this submission with the help of case-law cited, it would just be necessary to introduce facts and the material in support thereof with a preface of the relevant statutory provisions. this aspect would have to be postponed till then.9. the appointments of respondent nos. 3, 4 and 5 are challenged with a prayer for a writ of quo warranto with refernece to the provisions of the kerala abkari workers' welfare fund act 1989 in connection with the constitution of the board under the act. section 3 of the act provides for the formation of abkari workers welfare fund and scheme for the said purpose. the scheme gets constituted by virtue of section 6 of the said act. relevant portion as is necessary for the purpose of this petition from section 6 is reproduced below :--6. constitution of board : (1)the government in may, by notification in the gazette, constitute with effect from such date as may be specified therein a board to be called 'the abkari workers' welfare fund board', for the administration of the fund and to supervise or carry out the activities financed from the fund.(2) the board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal and shall by the said name sue and be sued.(3) the board shall consist of fifteen directors nominated by government as hereinafter provided, --i) five members representing abkari workers,ii) five members representing the employers,iii) five members representing the government.(4) one of the directors of the board shall be appointed by the government to be its chairman.(5) the government shall publish in the gazette the names of all the directors of the board.(6) the board shall administer the fund vested in it in such manner as may be specified in the scheme.(7) the board may, with the previous approval of the government, delegate to the chairman or to any director of the board or to the chief welfare fund inspector such of the powers and functions under this act or the scheme as it may consider necessary for the efficient administration of the fund, subject to such restrictions and conditions, if any, as it may specify.'10. as far as the petition is concerned, only provision that is really relevant is subsection 3(i) of section 6 reproduced hereinbefore.11. what is required to be considered is whether those respondents can represent abkari workers as per the provisions of section 6.12. it would be convenient to consider the case of each of the respondents separately on the basis of the material on record. however, the case as spelt out in the petition with regard to these respondents is available in short, because beyond these averments there are no factual averments in the petition other than those averred in paragraphs 6, 7 and 8 respectively in regard to respondent nos. 3, 4 and 5. they are as follows :respondent no. 3. the 3rd respondent is helper in the fact ltd., udyogamandal. but, he has got nothing to do with the abkari workers. he is not an abkari worker and he is not an office bearer of any registered trade union of abkari workers. he is a total stranger to abkari industry and the workman employed therein. therefore, he cannot be treated as one representing the abkari workers.respondent no. 4. the 4th respondent is not an abkari contractor. he does not have any licence to deal in foreign liquor or in arrack. without such a licence, he cannot run any abkari shop or employ any abkari worker and as a matter of fact, he is not running any abkari shop or is employing any abkari worker. he is not an employe as defined under section 2(3) of the act, there-fore, he does not represent the employers. he has no connection whatsoever with the business of vending arrack or foreign liquor.respondent no. 5. same is the case of the 5th respondent also. he does not have any licence under the abkari act or rules framed thereunder to vend arrack or foreign liquor. he does not employ any abkari worker and is not an employer as defined under the act. therefore, he cannot be one representing the employers of abkari workers.13. the material on record to consider the claim of respondent no. 3 as the member and the chairman of the board consists of his two affidavits dt. 8-12-94 and 3-1-95 as well as affidavit dt. 9-1-95 on behalf of respondent no. 1 -- the state of kerala smt. tessy augustine, under secretary, labour and rehabilitation department, secretariat, trivandrum. the petitioner also has filed replies by affidavits thereto. what is required to be considered is whether the respondent no. 3 can represent abkari workers with regard to the requirements of the kerala abkari workers welfare fund act 1969.14. it would be necessary to reproduce relevant averments from the affidavit dated 8-12-94 which are as follows :--'1 was in the trade union movement representing the workers for a very long time. i was the joint secretary of fact employees congress (intuc) from 1976 to 1978 and is functioning as its working president from 1983 till today. fact employees congress (intuc) is a trade union of the permanent workers in different categories in fact, a public sector undertaking owned by the government of india. i have been functioning as the vice president of i.r.e. workers union (intuc) from 1980. the said trade union represents the permanent workers in indian rare earths. i am the vice president of t.c.c. employees union (intuc) at present. previously i was its general secretary and that post i held from 1980. i am also the general secretary of tata oil mills employees union. this is an independent trade union not affiliated to any political party and i have been holding the post of general secretary of that union from 1986 onwards. i have been the president of fact painting thozhilali union representing contract workers for the last 10 years. i am also the president of kerala water authority staff association (intuc) and that office i have been holding for the last 10 years. i was elected as the president of udyogamandal contract workers congress (intuc) in 1974 and i continued to be hold that post now. i have been the president of thottakkattu distillery employees union, binanipuram p.o. from 1979 and continues to hold that post. i was the district president of intuc from 1983 to 1985'.on the basis above, the affidavit contains the following two submissions:--a) from the facts submitted above it is clear that i was very much in the trade union movement for a pretty long time. i have also been representing abkari workers as office bearer of their organisation. considering my active participation in the unions of workers, including abkari workers, the government thought it fit to nominate me as the chairman abkari workers welfare fund board.b) whether a person is capable of representing abkari workers of the employers of abkari shops is a matter which is within the discretion of the government and the exercise of discretion by the government is not liable to be questioned in proceedings under article 226 of the constitution of india.15. in para 4 of the said affidavit an incorrect averment is made which is satisfactorily corrected by the additional counter affidavit dt. 3-1 -95 which would be clear from the following averments therein:--'as a matter of fact, the correct name of the union is varappuzha range charaya shop thozhilali union (intuc), koduvazhanga, neericode p.o., having trade union registration no. 9/87. the name of the union in malayalam was translated into english and that english version happened to be mentioned in my counter affidavit filed on 8-12-94. as a matter of fact the name of the union should have been mentioned as varapuzha range charaya shop thozhilali union (intuc). the mistake in mentioning the name of the union in which i am the working president is deeply regretted and i express my unconditional apology in having made a mistaken statement regarding the name of the union.'this is also supported by necessary documentary evidence in pursuance of the following averments in para 4.'my election as working president of varapuzha range charaya shop thozhilali union (intuc) is recorded in the minutes book of the general body meeting held on' 1-11-1989, true copy of page 13 of the minutes book of varapuzha range charaya shop thozhilali union (intuc) containing the signature of the president, mr. m. o. john, in which my election as working president is recorded, is produced herewith and marked as ext. r 3(b). an english translation of ext. r3(b) is produced herewith and marked as ext. r 3(c). a general body meeting of varapuzha range charaya shop thozhilali union (intuc) presided over by me was held on 8-9-1990 and that is recorded in page 15 of the minutes book of the union. in the general body meeting held on 3-7-1991 i was re-elected as working president of the said union and that is recorded in page 17 of the minutes book. thereafter the meeting of varapuzha range charaya shop thozhilali union (intuc) was held on 15-7-1993 and in that meeting i was again re-elected as working president. the minutes of the said meeting is recorded in page 21 of the minutes book. hence it is clear that from 1--1-1989 onwards i have been continuously holding the post of working president of varapuzha range charaya shop thozhilali union (intuc) and even today i am the working president of the said union.'16. reference also would be necessary to refer to by reproducing averments of para 6 to find out the capacity of the respondent no. 3 to represent abkari workers as is required. the relevant portion reads as follows : --'it is submitted that varapuzha range charaya shop thozhilali union (intuc) is affiliated to madya -- videsa madya vyavasaya thozhilali federation (intuc). on 4-4-1994 the madya -- videsa madya vyavasaya thozhilali federation (intuc) received rs. 175/- towards contribution of varapuzha range charaya shop thozhilali union and receipt no. 90 dated 4-4-1994 was issued by the said federation. again varapuzha range charaya shop thozhilali union has given a contribution of rs. 1400/- to madya --videsa madya vyavasaya thozhilali federation (intuc) towards building fund and that is evidenced by receipt no. 44 dated 4-4-1994 issued by the said federation. hence it is clear that madya -- videsa madya vyavasaya thozhilali federation (intuc) is very much aware of the fact that varapuzha range charaya shop thozhilali union (intuc) is a trade union registered under the trade unions act and it is one affiliated to the said federation. on the basis of the above facts, ext. p4 communication issued by shri m. madhavan is not relevant for the purpose of this case. in view of the facts stated above, it is clear that i have been an office bearer of a recognised trade union of abkari workers. hence the averment contained in the o.p. that i have no connection with the abkari workers is not correct. since i have been handling the cause of the abkari workers and being a trade union leader in various other registered trade unions, the government thought it fit to appoint me as the chairman of the kerala abkari workers welfare fund board. hence the said decision is taken on proper consideration of relevant facts.'17. the contention of the petitioner in the reply to the counter that respondent no. 3 has turned round and has taken up a different stand is not possible to be accepted in the face of the satisfactory clarification and therefore only the above aspects are reproduced hereinbefore, to place the situation above doubt and suspicion.18. then the learned counsel for the petitioner placed two submissions. firstly he submitted that justification is to be found and sought for from the return of the state only and not from those of the concerned respondent nos. 3, 4 and 5. secondly he submitted that the material now sought to be placed on record must be shown as available for consideration at the time of passing of orders of appointment by the state and not placed before this court in the affidavits in answer to the averments of the petition, for consideration as if afresh for this court. in other words the contention is that the material should be shown to have been the basis on which the appointments to the public office are made and not the one which is in use and is placed in justification thereof. with regard to second submission reliance is placed on the decision of this court.. 19. submission of the learned counsel was, relying on the decision, that the order of appointment cannot be justified and the jurisdiction has to be found either in the face of the order or on the basis of the concerned finding. it may be that there are other valid reasons to support the order but reasons which did not come to the notice of the authority, passed the order cannot be pressed into service, in justification thereof. in my judgment the observations are in the different context and relate to a situation of judicial review of administrative actions. the petition before me is for a writ of quo warranto where the court has to ascertain as to whether the public office has been usurped. it is not possible to accept the observations because they are in the different context.20. it is not possible to accept both these submissions for the reason that in a petition for a writ of quo warranto, the court has to see and find out as to whether a public office is usurped and therefore in the context the approach can never be restrictive in nature on any count. in this context, if in the usual conduct of business an under secretary of the respondent no. 1 for preparation of the return calls for the record and documents, maybe from respondent no. 3 also, it cannot be inferred that the respondent no. 1 would have to be held as totally unaware of the material. the usual conduct of business at once becomes present to the mind on reading annexure to the reply by the petitioner in the context.21. taking into consideration the above factual position it is impossible to reach a conclusion that respondent no. 3 has usurped the position to the public office of the member and chairman of the board under the act. to the contrary, the material shows that he is quite competent and experienced to represent abkari workers interests that are required to be protected under the kerala abkari workers' welfare fund act 1969.22. the question of respondent nos. 4 and 5 can be taken up for consideration together. in fact even the learned counsel for the petitioner was little lukewarm in his submissions in regard to these respondents. i have already quoted the cryptic averments in the petition against them in para 12 of the judgment. the material in the content is their returns dated 9-1-95 and 19-12-94 respectively and the replies of the petitioner dt. 17-1-95 and 14-1-95 respectively.23. a) averments of respondent no. 4, as are relevant are the following :--'this respondent also does not suffer from any of the disqualifications alleged by the petitioner, who has supressed material information from this hon'ble court's notice and has filed a highly motivated original petition. this respondent has been in liquor business for long. in fact his father himself was associated with the said business which he is carrying over. he is a partner at the time of nomination to the abkari workers' welfare fund board which is running business in arrack and has taken on auction group ii shops in ettumanoor excise range. there is a deed of partnership dt. 16th march 1993, in which the petitioner, is a partner, which partnership is running the business in arrack. besides the respondent himself was running a bar attached hotel namely 'rajadhani' at kottayam. he therefore, is very much in the business of liquor and therefore, entitled to be considered for nomination by the government to the kerala abkari welfare fund board.'denial and assertion as regard 'rajadhani hotel' will have to be considered in the light of the fact that the licence holders is not necessarily the one who manages day to day. it cannot be said, on material, that respondent no. 4 has usurped office with no merit to represent.b) similarly, averments of respondent no. 5 would show his legitimate claims :--'this respondent is a licenced manufacturer of spirit and of blending and indian made foreign liquor and other called business falling under the provisions of the abkari act. he is also the financial director of distillary. he therefore is fully entitled to be nominated representing the employers. there is nothing illegal in nominating this respondent as one of the members of the board of directors. he clearly falls within the expression employer under the kerala abkari workers welfare fund act, 1989. he therefore does not suffer from any disqualification to be nominated.'there is a bare denial to all this in reply and a call to produce material.24. in the light of all this factual matrix laid up as above, it cannot be said that public office is usurped by any of the respondent nos. 3 to 5. by their counters they have placed material in justification. it will have to be observed that the state government has used its power to select and appoint respondent nos. 3 to 5 who are shown to be competent to represent the abkari workers in the board constituted under section 6 of the kerala abkari workers' welfare fund act, 1969.for the above reasons the petition stands dismissed. in the circumstances, there shall be no order as to costs.