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The Industrial Disputes Act, 1947

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Gauhati High Court
Tripura Government Employees' ... vs State Of Tripura And Ors. on 8 August, 1996
Equivalent citations: (1998) IIILLJ 567 Gau
Author: V Khanna
Bench: V Khanna, A Patnaik

JUDGMENT

V.K. Khanna, C.J.

1. The petitioner federation is a federation of various Associations of the Tripura Government Employees, Semi-Government Employees and Employees of Tripura Government Undertakings, etc. formed with the prime object of espousing a

feeling of fraternity amongst all strata of workers/employees and to secure amongst others their constitutional, legal rights, financial interest and for ameliorating the working condition of its members. Earlier to the present Civil Rule, this very petitioner had approached this High Court by filing Civil Rule No. 58/94 with the grievance that the concerned authorities of the Government had been subjecting the office bearers of the petitioner federation and its Constituent units/associations to indiscriminate transfer, though the same were not called for in administrative exigency or public interest, whereas, the employees and office bearers of the Tripura Employees Co-ordinating Committee which was the supporter of the Government in power and thus enjoyed its favour were granted benefit of exemption from general transfer as was the policy of the Government at the relevant time. The aforesaid Civil Rule was disposed of in terms of the order dated June 20, 1994 passed in Misc. Case No. 251/94 arising out of the aforesaid Civil Rule. While disposing of the aforesaid Civil Rule, this Court observed that the State of Tripura had no written guidelines for recognition of the Association of employees and its constituent units and that though the power which the State Government exercised for recognition of an employees Association is an administrative function, the same cannot be exercised in an arbitrary manner and has to be on the basis of specific guidelines. It was further observed that in absence of specific guidelines very serious result might ensue inasmuch as it could not be ruled out that the State, as an employer, might sometimes for various reasons, prefer one association over the other. It was also observed that such exercise of power by the State Government could not be permitted, as it would clearly lead to discrimination as well as arbitrariness. Various Associations which had represented their case were ordered to be considered for recognition after laying down the guidelines in this regard.

2. The State of Tripura, thereafter, by notification dated January 2, 1995 framed guidelines which were to be called the Tripura Government Services (Recognition of Service Association) Guidelines, 1995. The aforesaid Guidelines were to apply to Service Associations of all Government servants including teachers, ministerial, non-uniformed employess in the Police Organisation and employees of Semi-Government and State Government Undertakings. The Tripura Government Services (Recognition of Service Association) Guidelines, 1995 (for short 'the Guidelines, 1995') has been annexed as Annexure-12 to the Civil Rule. At this stage, it will be worthwhile mentioning that the State of Tripura on February 28, 1995 had issued a Memorandum to the effect that 3 State Level Office Bearers, by designation and 2 Sub-Division Level Office Bearers, by designation of any recognised employees' association or its constituent unit shall be given special privilege in the matter of transfer to the extent that their transfer, when warranted by administrative requirement, shall be issued only with the approval of the departmental Minister concerned. Clause-3 of the aforesaid Memorandum specifically clarifies that the reference to State level Committee shall not include State Level Office Bearers in every Directorate or Department but a total of three office bearers, by designation, of each Association/Constituent unit based at Agartala. It was also clarified that the total number of office bearers of each recognised Association/Constituent unit at the Sub-Division level for the purpose of the Memorandum shall be 2 (two) at each Sub-Division and not 2 (two) in each office located at the same time at Sub-Division. Three (3) State Level Office Bearers by designation of any recognised Employees Association or its constituent unit based at Agartala shall mean President or Chairman or by any other designation; Secretary General or General Secretary or Secretary or by any other designation; and Treasurer, Cashier or by any other designation, as may be applicable to the concerned Association or its constituent unit based at Agartala. As far as the Sub-Division Level Office Bearers were concerned, it was clarified that for the purpose of the said Memorandum it shall mean two persons with President or Chairman or by any other designation and General Secretary or Secretary or by any other designation as may be applicable to the concerned Association or its constituent unit at Sub-Divisional Level.

3. We have heard Mr. B.K. Das, assisted by Mr. A. Roy, learned counsel appearing for the petitioner and Mr. Ashok Chakraborty, learned Advocate General, assisted by Mr. B.P. Kataki, learned Government Advocate and Mr. A. Ghosh, appearing for the State-respondents. It may be mentioned that besides hearing the oral arguments, the parties were also allowed to submit written arguments which they have furnished and formed part of the record, and while adjudicating the questions raised in this petition, we have taken into consideration the oral arguments advanced before us by the parties and also the written arguments submitted by them.

4. The main challenge which has been made in the present Civil Rule is in respect of Clause-4 (b) of the Guidelines, 1995, as being illegal and unconstitutional and also the consequential orders which have been issued after issuance of the Guidelines, 1995, dated March 10, 1995 (contained in Annexure '13' to the Civil Rule), dated June 29, 1995 (contained in Annexure-14 to the Civil Rule) and dated June 30, 1995 (contained in Annexure-15 to the Civil Rule).

5. As far as the stand taken by the State of Tripura before us is concerned, it will be worthwhile to mention the same in order to fully appreciate the arguments raised by the learned counsel for the petitioner. According to the State of Tripura, the Rules of classification of Government employees of all Departments under the Government of Tripura was framed in Schedule-I, Part-A of the Tripura State Civil Services (Revised Pay) Rules, 1988 and it was effected from January 1, 1988. On the basis of the aforesaid Rules, classification of Government employees of all Departments under the Government of Tripura has been made in clause 4 (b) of the Guidelines, 1995, as Group-'A', Group-'B', Group-'C' and Group-'D'. A copy of the aforesaid Rules, 1988 forms part as Annexure-'A' to the written argument. A clear stand has been taken by the State of Tripura that no Service Association/Union has been recognised till date and that some cases are pending for decision. It has been stated that the prayer for recognition of 57 Service Associations/Unions has been rejected. A list of the aforesaid 57 Service Associations has been annexed as Annexure-'B' to the written argument. It has also been stated in the written argument submitted on behalf of the State-respondents that a list of names of Service Associations/Unions whose application for recognition is under examination has also been annexed which has been marked Annexure-'C' to the written argument.

6. Before noticing the arguments advanced by the learned counsel for the petitioner it will be worthwhile to quote Clauses-2, 3 and 4 of the Guidelines, 1995, which run as follows :

"2. APPLICATION.

These Guidelines shall apply to Service Associations of all government servants including teachers, ministerial, non-uniformed employees in the Police Organisation and employees of Semi-Government and State Government Undertaking.

3. A Service Association, federal, Coordinated body and its constituent bodies which have been recognised by the State Government before commencement of these Guidelines and in respect of which the recognition is subsisting on such commencement shall continue to be so recognised till disposal of all the applications received by the State Government from such Association federal or co-ordinated or its constituent body for recognition under these Guidelines or de-recognition of existing Association, federal or co-ordinated or constituent body by the State Government.

4. CONDITIONS FOR RECOGNITION FOR SERVICE ASSOCIATIONS:

A Service Association/Union which fulfils the following conditions may be recognised by the Government, namely :-

(a) An application for recognition of Service Association/Union shall be made to the Government with a copy of upto-date constitution, By-Laws (if any) of the Association/Union, name of office-bearers elected in the latest State Conference with date and venue of the conference, total strength of membership, upto-date statement of accounts and any other information as may be required by the Government.

(b) The Service Association/Union shall be formed covering separately or conjointly with all Group-'A', Group-'B', Group-'C' and Group-'D' employees of all Departments of the Government of Tripura and not Department, Directorate or designation-wise. Teachers of Government Schools/Institutions and Govt. aided schools covering all categories and specialised technical employees of different departments covering all categories may organise their own State Level Association/Union. Such Service Association/Union has been formed primarily with the objective of uniting the employees having common interest and at bettering the employer-employee relation including finding platform for negotiating matters of interest of employees and also the Government.

(c) Membership of a Service Association/Union shall be restricted to the Government employees and the employees of Semi-Government and State Government Undertakings as specified in these guidelines including the former State Government Employees or of the undertakings.

(d) Office-bearers and the members of the Executive Committee of the Service Associations/Unions shall be elected from amongst the members only.

(e) A federal or co-ordinated body is to be formed/constituted only with the recognised State Level Association/Unions. The officebearers and the members of the Executive Body shall be limited to the members of the recognised State Leval Association/Unions forming the federal/Co-ordinated body. An application for recognition of each federal or, Co-ordinated body is to be made with a copy of up to date constitutions, by-laws (if any) of the federal/Co-ordinated body, name of office-bearers and the members of the Executive Committee elected in the latest State Conference with date and venue of the conference, upto date statement of accounts, names of the recognised constituents and any other information as may be required by the Government.

(f) The Service Association/Union, Federal or Co-ordinated body must have an adequate representative character.

NOTE:- (1) For the purpose of this clause "Adequate representative character" shall mean an Association or Union which represents a minimum 15% or total number of particular class or category of employees in the State for whom the Association or Union is formed.

(2) For the purpose of Recognition, strength of membership of an employees Association or Union will be considered only on the basis of the members who are serving employees and not on the basis of Membership of former employees.

(g) Any amendment in the constitution/bylaws of the Service Association/Union/Federal/Co-ordinated body after its recognition shall be made known to the Government within a month of such amendment.

(h) Any change of office bearers of the Association/Union/Co-ordinated or Federal body should also be made known to the Government within a month of such change.

(i) A statement of accounts and total membership strength along with a list of office-bearers shall be submitted to the Government annually showing the position as on December 31, after recognition so as to reach within three months of the closure of the year of the respective Association.

(j) An employee shall not be a member of more than one Association at any point of time."

7. Learned counsel for the petitioner has attacked the provisions of the Guidelines, 1995 on the following grounds:

(a) The impugned provision of the Guidelines is opposed to the letter, spirit and purport of the directions of this Court contained in the judgment and order dated June 20, 1994 passed in Misc. Case No. 251/94 arising out of Civil Rule No. 58/94;

(b) The impugned provision of the guidelines suffers from the vice of mala fide and colourable exercise of power;

(c) The Classification of employees into Groups- 'A', 'B', 'C' & 'D' for the purpose of recognition on the basis of similar grouping

under Tripura State Civil Services (Revised Pay) Rules, 1988 is irrational, arbitrary and mala fide;

(d) Provision of the guidelines allowing the teachers and technical employees to organise their own association/Union is to favour; the association/union of the Tripura Employees Co-ordination Committee affiliated to C.I.T.U.; and

(e) The impugned provision of the guidelines are violative of Articles 14 and 19(1)(c) of the Constitution of India.

8. Before deciding the controversy which has been raised in the present Civil Rule, it may be worthwhile to note the history and the background in which the Guidelines, 1995 have been framed. In the foregoing paragraph it has been mentioned that a Memorandum dated February 28, 1994 had been issued which provided that three State Level Office-bearers by designation and two Sub-Divisional Level Office-bearers, by designation or any recognised employees association or its constituent unit shall be given special privilege in the matter of transfer to the extent that their transfers, when warranted by administrative requirements, shall be issued only with the approval of the departmental Minister concerned, (emphasis provided). In this very guidelines, it was also clarified that administrative requirements shall be paramount and the privilege conferred on certain categories of office bearers by this Memorandum shall not over-ride the prerogative of the Government to transfer any of its employees.

9. The law is well-settled that as far as the transfer of a Government employee is concerned, unless statutorily otherwise provided or unless it is mala fide, arbitrary or capricious, the same can be made by the Government and it would not attract any interference as having violated any service conditions and this law has been laid down by the Apex Court as well.

10. Before dealing with the points raised in this Civil Rule one distinction has also to be kept in mind between a Service Association which is being recognised by the State of Tripura in the context of the Memorandum dated February 28, 1994, and the rights of the citizens including the Government Servants to form an Association, and of the workers to form Trade Union. As far as the Service Associations of the Government Servants are concerned it would consist of majority of persons who will not come within the definition of 'workman', as the Government servants consist of all the employees of the State of Tripura which fall in Groups-'A', 'B', 'C' & 'D' of the Tripura State Civil Services (Revised pay) Rules, 1988, which are in force from January 1, 1988. No bar can also be placed on any service associations for being member of other National Trade Unions or being affiliated to them, if the constitution of those National Trade Unions and the Service Rules applicable to the Government Servants permit it. The question which this Court is examining is only from the angle of giving recognition by the State of Tripura to the Service Associations of the Government employees and not to the Trade Unions for the purpose of uniting the employees having common interest and bettering the employer-employee relation including platform for negotiating matters of interest of employees and the Government.

11. Amongst various arguments raised by the learned counsel for the parties, the first question which we propose to examine is regarding the classification of employees under Groups-'A', 'B', 'C' & 'D for the purpose of recognition on the basis of similar grouping under Tripura State Civil Services (Revised pay) Rules, 1988, and whether the said classification is invalid and can be struck down on the ground of being irrational, arbitrary and mala fide.

12. A bare perusal of Clause-4 (b) of the Guidelines, 1995, will show that the Service Association/Union shall be formed covering separately or conjointly with all Group-'A', Group-'B', Group-'C' and Group-'D' employees of all Departments of the Govt. of Tripura and not Department, Directorate or designation-wise. Teachers of Government Schools/Institutions and Government aided schools covering all categories and specialised technical employees of different departments covering all categories may organise their own State Level Association/Union. It will be pertinent to note this very Clause-4 (b) provides that such service association/unions have to be formed primarily with the objective of uniting the employees having common interest and bettering the employer-employee relation including finding platform for negotiating matters of interest of employees and also the Government. For the purpose of making a classification it has to be seen as to whether the classification has been made having a nexus with the purpose which is sought to be achieved. The Tripura State Civil Services (Revised pay) Rules, 1988, at page-24, clearly states that the classification of the posts shall be as follows with effect from January 1, 1988. It has classified the posts into four groups, i.e., Group-'A', Group-'B', Group-'C and Group-'D'.

13. For judging the validity of the classification and making that classification of the employees on the basis of those Groups-'A', 'B', 'C & 'D', for the purpose of giving recognition, we have to find out as to what does the Memorandum dated February 28, 1994 provide to the Government employees of the State of Tripura and for what purpose.

14. There cannot be any doubt that the clear purpose of providing such a privilege, which also forms part in various other stautory provisions, like Standing Orders governing the workmen, etc., is that the office-bearers of the Service Associations should not normally be transferred inasmuch as they are representatives of the employees who will represent the cause of the employees as representative of the Service Associations for bettering the employer-employee relation and also for the purpose of negotiating the matters of interest of employees and also the Govt. This has also to be noticed that the Service Associations will normally be formed of persons having common interest and their elected representatives are expected to present before the employer the genuine grievance of the members of their Association for betterment of their conditions of service and for negotiating with the Government and thus the office-bearers at the State Level Service Associations should be at the State capital to negotiate with the competent authorities of the State Government and the Office-bearers of Sub-Divisional Level to negotiate with the competent authorities should be at Sub-Divisional Headquarters.

15. In the arguments which have been raised before us, it has shown that the classification of the employees in Groups-'A', 'B', 'C & 'D' is wholly arbitrary, irrational and mala fide on the ground that even amongst Group-'A' employees the difficulties of one group of employees may not be similar. Certain examples have also been given regarding that. It has also been stated that the aforesaid classification of employees on the basis of Groups has been to favour certain Associations.

16. We are, however, of the opinion that the Tripura State Civil Services (Revised Pay) Rules, 1988 classified the posts into Groups-'A', 'B', 'C' & 'D' on the basis of scales of pay or salary. Government servants drawing same pay scales are likely to have a lot of common interest with regard to their conditions of service. Moreover, Clause 4 (b) of the Guidelines permits employees of these different groups to form service associations conjointly with other groups in case' common interest of such employees transcends beyond the group. The only restriction it puts is that the service associations should not be formed departmentwise, directorate wise or designationwise, but comprise of employees of all departments of the Government belonging to one or more group. In our opinion, making of classification on the basis of pay scales, therefore, cannot be said to be arbitrary or irrational and in case, the classification is made departmentwise, directoratewise or designationwise, it may result in unworkable situation inasmuch as there can be in that eventuality innumerable Associations and the privilege which is sought to be given by the

Memorandum dated February 28, 1994 will become unworkable as according to administrative exigency, transfer of officebearers of such innumerable associations from one place to another as may be required in public

interest may be problematic. Therefore, the argument that Clause-4 (b) of the Guidelines, 1995 is arbitrary, irrational or mala fide has no substance.

17. As far as the argument that the impugned provisions of the Guidelines, 1995, are opposed to the letter, spirit and purport of the directions of this Court contained in the judgment and order dated June 20, 1994 passed in Misc. Case No. 251/94 arising out of Civil Rule No. 58/94 are concerned, we are of the opinion that the main attack is on the basis of providing two different yardsticks for recognition of the employees associations/union, i.e., formation of employees associations/union separately or conjointly, classwise and not Department, Directorate or designation-wise totally overlooking the object and purpose of forming such employees association/union. It has been argued that the main purpose of forming an employees association/union is for collective bargaining with the employer through negotiation. It has also been stated that at the present day at the national scene, the main 5 Employees Organisations are the Indian National Trade Union Congress (INTUC), All India Trade Union Congress, (CITU), Bharatia Chah Mazdoor Parishad and the Hind Mazdoor Parishad. According to the petitioner, all these National Level Organisations are sponsored by the respective national political parties. It has been stated that the petitioner federation which is an Apex body of the All Tripura Employees Federation is affiliated to INTUC. The Tripura Employees Co-ordination Committee had suffered a split in the year 1994 and the two committees under the name and style of Tripura Employees Co-ordination Committee (Digbijoy Bhawan) and Tripura Employees Co-ordination Committee (Hariganga Basak Road) came into existence and that the Tripura Employees Co-ordination Committee (Hariganga Basak Road) has in its hold the divided constituent units of the original Tripura Employees Co-ordination Committee and enjoyed support of the Government in power. The said Committee is not a registered union, but is, affiliated to C.I.T.U. It has also been stated that it will be affecting the rights of the employees as given under the Industrial Disputes Act and other Labour Laws.

18. As we have stated earlier in this case that we are only concerned with giving recognition to the service associations without affecting their legal rights under the Constitution and under any other statutory provisions. For the purpose of obtaining the special privilege which is accorded by the State of Tripura under the Memorandum dated February 28, 1994, in this case, therefore, we have to judge only the Guidelines of 1995 in that context. While judging the Guidelines, we have only to see the interest of the Government employees and whether the Guidelines, 1995 have been framed with the objective of uniting the employees having common interest and bettering the employer-employee relation including finding platform for negotiating matters of interest of employees and also the Government. In that context, it cannot be said that the Guidelines are, in any sense, arbitrary or malafide. It has adopted a classification which is also existing in the statutory Service Rules. Different Service Associations/Unions can be formed. The only rider is that they should have an adequate representative character. Adequate representative character has been defined to mean an Association or Union which represents a 15% of total number of particular class or category of employees for whom the Association or Union has been formed. In our opinion, this is in conformity with their own material provided by the petitioner as criteria for recognition of Association/Unions as formulated by the Central Labour Ministry and notified by All India Organisation of Employees is also 15%. The exception which has been made in the Guidelines is with respect to teachers of Government Schools/Institutions and Govt. aided schools covering all categories and specialised technical employees of different departments covering all categories who may organise their own State Level Association/Union, which, in our opinion, is also valid classification as the problems of these employees would be different than other employees of the Government Department.

19. As far as the question of affiliation to any National Level Organisations is concerned, the Guidelines, 1995, which have been framed places no rider and any such service association can be affiliated to any National Level Organisations, if that is permissible under the law and under the service conditions. We, therefore, find no force in this argument as well.

20. Before parting a special mention may be noted as far as Clause-3 is concerned. We may make a mention that the associations which have already been recognised, under Clause-3 and also under the earlier order of this Court would require the existing service associations for continuance of recognition to fall under the Guidelines which have been enunciated in the Guidelines, 1995 and in case those service associations do not fall under these Guidelines, the recognition has to be withdrawn as provided under ctause-7. As under the scheme of the Guidelines any amendment and any change has to be brought to the notice of the Government within a month, we are of the opinion that all associations which have been recognised before coming into force of the Guidelines, 1995, will be asked to give their details within one month and their cases will be reviewed by the Government within a period of three months in accordance with the provisions of the Guidelines, 1995 and their recognition would further continue after three months only after a fresh order has been passed by the competent authority as to whether they fulfil the Guidelines, 1995, and entitled to be recognised.

21. For the reasons stated above, we are of the opinion that Clause-4 (b) of the Guidelines, 1995 cannot be said to be either arbitrary or malafide requiring quashing by this Court. The consequential orders passed in pursuance of the Guidelines, 1995 are, therefore, correct. However, it is being made clear that in case recognition to any Association is not granted even after fulfilling the conditions laid down in the Guidelines, 1995, the same would be adjudicated whenever that association independently challenges the same putting forth all the facts of that particular case.

22. Subject to the aforesaid observations, the present Civil Rule is dismissed. However, looking to the entire facts and circumstances of the case, we leave the parties to bear their own costs.