K. Venkata Rao vs Government of Andhra Pradesh and Another

The petitioner in the instant writ petition is aggrieved by the action of the first respondent in issuing G.O.Ms.54, Labour Employment Training and Factories Lab.II) Department, dated 14-10-1997 appointing the second respondent herein as Chairman of the State Advisory Contract Labour Board even before the expiry of the term of the petitioner as Chairman of the Board. The petitioner, therefore, prays for issuance of an appropriate writ, more particularly one in the nature of Writ of Mandamus declaring the said Governmental Order as arbitrary, illegal and. unconstitutional. The petitioner also prays for issuance of an appropriate consequential direction, directing the first respondent herein to continue the petitioner as the Chairman of the Board till 9-5-1998 that is to say the expiration of the term of the petitioner as Chairman of the Board.

Factual Matrix

The first respondent herein in exercise of its power u/s 4 of the Contract Labour (Regulation and Abolition) Act, 1970 (for short ''the Act'') read with Rule 3 of the Andhra Pradesh Contract Labour (Regulation and Abolition) Rules, 1971 (for short ''the Rules'') constituted the State Advisory Contract Labour Board for the State of Andhra Pradesh under GO.Rt.No.1065, Labour Employment and Training (Lab.II) Department, dated 9-5-1995. The Board consists of one Chairman; three official members; three representatives of employers and four representatives of employees. The petitioner herein has been appointed as the Chairman urder GO.RtNo.1065, dated 9-5-1995 and the Committee''s term is specified and is for a period of three years from the date of taking charge. In the instant writ petition, we are concerned with the term of the petitioner herein as Chairman of the Board. The petitioner herein had assumed charge of the post of Chairman on 10-5-1995. Admittedly, there are no complaints whatsoever against the petitioner herein during the discharge of his duties as the Chairman of the Board. Under GO.Rt.No. 1065 issued by the first respondent constituting the Board, the petitioner is entitled to continue in the office as Chairman of the Board upto 9-5-1998, in terms of the appointment

While so, the first respondent issued G.O.Ms.No.54, dated 14-10-1997 appointing the second respondent herein as Chairman of the Board and the Board itself is re-constituted. Thus, the petitioner herein has been removed as Chairman of the Board and in his place the second respondent herein is appointed as the Chairman.

The petitioner, therefore, is questioning the validity of the G.O.Ms.No.54, dated 14-10-1997 on various grounds. It is the case of the petitioner that he is entitled to continue till 9-5-1998 as the Board was constituted fixing its term for a period of three years from the date of taking charge. The term of the Committee has been clearly specified by G.O.Ms.No.1065, dated 9-5-1995 under which the petitioner has been appointed as Chairman of the Board. It is the case of the first respondent that the Act does not stipulate any fixed period for the continuance of the Board and the same is left to the State Government to make Rules u/s 4 of the Act. The Rules prescribe the term as three years so far as it relates to the office of the Chairman and members from different categories representing the Industry, employers and employees. At the same time sub-rule (2) of Rule 4 states that the persons representing the State Government and the Public Works Department shall continue in office during the pleasure of the Governor. The State Government with a view to bring uniformity has decided that the Chairman, including the Members will function at the pleasure of the Governor and accordingly in exercise of power conferred u/s 35(1) of the Act issued draft notification vide GO.Ms.No.27, dated 12-6-1996 followed by final notification dated 6-5-1997 amending the Rules providing the term of office of the Chairman as well as its Members. The expression ''three years'' which was provided under Rule 4 was substituted by the expression ''during the pleasure of the Governor'' in respect of the Chairman and the non-official Members. The amendment has already come into force. The petitioner, therefore, cannot continue in the office for a period of three years under the amended Rules. The petitioner has no legal or any other right to remain in the office till the expiry of (he period of three years.

It is the further case of the first respondent that Section 4 of the Act clearly contemplates that the ''term of office and other conditions of service'' is only applicable to the Members and not for the post of Chairman, the amendment now brought about amending Rule 4 of the Rules is in conformity with the provisions of the Act. The amended Rule will apply to all persons holding the office of Chairman as well as Members as on the date of promulgation of the amendment and such persons cease to hold office in accordance with the amended Rules.

The petitioner having contended that the Rules are prospep1 ctive in operation and would not apply in respect of the Board already constituted, had taken steps to seek permission of the Court to amend the writ petition and to raise the question relating to validity of the amended Rules. It is the case of the petitioner that the amended Rules run counter to the provisions of the Act and, therefore, ultra vires. It is his further case that Section 4 of the Act mandates the State Government to constitute the Board to be called as the State Advisory Contract Labour Board and such Board shall consist of a Chairman to be appointed by the State Government and such number of persons not exceeding eleven but not less than nine etc. Sub-section (3) of Section 4 stipulates the required number of persons to be appointed as Member from each of the categories specified in sub-section (2). The term of office and other conditions of service shall be such as may be prescribed. It is the submission of the learned Counsel for the petitioner that sub-section (3) of Section 4 speaks about the term of office; whereas the Rule making authority converted the term of office into one to be held during the pleasure of the State Government. Therefore, according to the petitioner, the Rule is ultra vires.

An additional counter affidavit is promptly filed by the first respondent contending that the amended Rules are perfectly in conformity with the substantial provisions of the Act and, therefore, cannot be said to be ultra vires. The petitioner has no right to insist that he shall have to be allowed to continue in office for a period of three years under the order of appointment and Constitution of the Board.

The question therefore squarely falls for consideration is as to whether sub-rules (I) and (2) of Rule 4 as amended by the Rule making authority in G.O.Ms.22 dated 6-5-1997 are ultra vires and whether the petitioner is entitled to continue in the office as Chairman of the Board until completion of the period of three years.

Learned senior Counsel, Sri E. Manohar appearing on behalf of the petitioner submits that the amended Rule is ultra vires and runs counter to the substantial provisions of the Act. It would be appropriate to have a look at Section 4 of the Act.

State Advisory Board:

(1) The State Government may constitute a Board to be called the State Advisory Labour Contract Board (hereinafter referred to as the State Board) to advise Ihe State Government on such matters arising out of the administration of this Act as may be referred to it and to carry out other functions assigned to it under this Act.

(2) The State Board shall consist of -

(a) a Chairman to be appointed by the State Government;

(b) the Labour Commissioner ex-officio or in-his absence any other officer nominated by the State Government in that behalf;

(c) such number of members, not exceeding eleven but not less than nine, as the State Government may nominate to represent that Government, the Industry, the contractors, the workmen and any other interests which, in the opinion of the State Government, ought to be represented on the State Board.

(3) The number of persons to be appointed as members from each of the categories specified in sub-section (2), the term of office and other conditions of service of, the procedure to be followed in the discharge of their functions by, and the manner of filling vacancies among, the members of the State Board shall be such as may be prescribed:

Provided that the number of members nominated to represent the workmen shall not be less than the number of members nominated to represent the principal employers and the contractors.

It would be appropriate to have a look at the un-amended Rule 4 and Amended Rule of the Rules.

Un-amanded Rule 4 Amended Rule 4

Term of Office

In Rule 4 of the said rules, for sub-rules (1), (2) and (3) the following shall be substituted namely :

(1)

The Chairman of the Board shall hold office as such for a period of three years from the date on which his appointment is notified in the Official Gazette.

(1)

The Chairman and every member of the Board other than official members as referred to in Rule 3 shall hold office during the pleasure of the Government.

(2)

Each of the members referred to in clauses (c) and (d) of Rule 3 shall hold office as such during the pleasure of the Governor.

(2)

If a member is unable to attend a meeting of the Board, the State Government or the body which appointed or nominated him may by notice in writing signed on it behalf and by such member and addressed to the Board nominate a substitute in his place to attend the meeting and such a substitute member shall have all the rights of a member in respect of that meeting and any decision taken at that meeting shall be binding on the said body.

(3)

Each of the members referred to in clause (c), (e) and (f) of Rule 3 shall hold office as such for a period of three years commencing from the date on which his appointment is first notified in the Official Gazette :

Provided that where the successor of any such member has not been notified in the Official Gazette on or before the expiry of the said period of three years, such Member shall, notwith-standing the expiry of the period of his office,continue to hold such office until the appointment of his successor has been notified in the Official Gazette. "

(4)

If a member is unable to attend a meeting of the Board, the State Government or the body which appointed or nominated him may by notice in writing signed on its behalf and by such by member and addressed to the Chairman of the Board nominate a substitute in his place to attend the meeting and such a substitute member shall have all the rights of a member in respect of that meeting and any decision taken at the meeting shall be binding on the said body.

A close analysis of Section 4 of the Act would undoubtedly show that the Slate Government is required to constitute a Board to be called as the State Advisory Contract Labour Board to advise the Stale Government on such matters arising out of administration of the Act and such Board shall consist of Chairman to be appointed by the State Government; the Labour Commissioner ex-officio or in his absence any other person nominated by the State Government and members not exceeding eleven, but not less than nine be nominated by the State Government to represent the Government, the Industry, the Contractors, the workmen and any other interests. It further says that the State Government has to prescribe the number of persons to be appointed as members from each of the categories specified in subsection (2), the term of office and other conditions of service and the procedure to be followed etc. There cannot be any doubt that the whole of Section 4, including all its subsections have to be read as an integral one. If so read, it would reveal that the Board consists of Chairman and other members to be appointed/nominated as the case may be. If so read, the expression ''term of office'' occurring in sub-section (3) of Section 4 and its application cannot be restricted only in the case of members. But the expression ''term of office'' used in sub-section (3) is also applicable in the case of Chairman also. Any other construction would lead to absurdity and such construction is required to be avoided by the Court. It is not as if the Chairman would have no term of office at all; whereas the Members to be nominated/appointed by the Slate Government are required to have a specified term of office. Such construction as suggested by the respondents would not only lead to anamolous situation, but also absurdity. After all the members to be so appointed from each of the categories specified in sub-section (2)(c) of Section 4 and the Chairman to be appointed by the State Government are required to act as a team and that is the whole concept of having the Board.

Precisely for the said reason, the un-amended Rule provides a period of three years term for the Chairman of the Board and for the Members representing employers and employees; whereas no term of office as such is provided for the members representing the State Government from amongst its officials and the person representing the Public Works Department, as these members shall hold office during the pleasure of the Government. The person representing the State Government and the Public Works Department are the officials of the State Government and nominated to be on the Board and to hold office rightly during the pleasure of the Government. For the aforesaid reasons, it is not possible to accept the construction of Section 4, as suggested by the learned Advocate General. The expression ''term of office'' used in Section 4 is applicable in case of Chairman, as well as the Members appointed to represent the employers and the employees. Such construction would be in conformity with the scheme of the Act. The Advisory Board itself is constituted for the purpose of advising the State Government on matters arising out of administration of the Act and such Board should invariably consist of a Chairman and members representing the employers and employees apart from the Government nominee. Section 4 provides for the term of office for the Members, as well as the Chairman. The un-amended Rule 4, thus, is clearly in conformity with Section 4 of the Act, as it prescribes term of office of three years for the Chairman, as well as members representing the employers and the employees.

Rule 5 of the Rules provides for resignation of a Member of the Board not being ex-officio member and prescribes procedure thereof There is no Rule providing for the resignation of the Chairman of the Board. Does it mean that the Chairman can never resign from his office as such ? Therefore, it is not possible to construe Section 4 to hold that there is no term of office prescribed in the case of Chairman and restrict the facility of term of office to Members only.

The Rules framed by the Central Government are in para materia with the un-amended Rules framed by the State Government. Both the Rule making authorities viz., the Central Government and the State Government have properly understood the scheme of the Act and accordingly framed the Rules in conformity with the provisions of the Act and accordingly provided for the term of the office to the Chairman of the Board and Members representing the employers and employees and further treated other Members to hold the Office during the pleasure of the President or the Governor as the case may be.

The amended Sub-rules (1) and (2) of Rule 4 do not provide for any term of office either for the Chairman or for any of the Members of the Board, In fact, the amended Sub-rule (1) of Rule 4 makes a very curious reading. It provides that the Chairman and every Member of the Board other than the official Member as referred to in Rule 3 shall have to hold the office during Ihe pleasure of the Government. Does it mean that the official Members, such as Labour Commissioner or in his absence other officers nominated by the Government and the person representing the State Government, as the case may be and the person representing the Public Works Department or the State Government would hold the office for a tenn?

Be that as it may, sub-section (3) of Section 4 of the Act says that number of persons to be appointed as members from each of the categories specified in the sub-section (2), the term of office and other conditions of service of, and other requirements shall be as such, as may be prescribed. It is already noticed that sub-section (2) of Section 4 provides for Constitution of the Board which consists of a Chairman to be appointed by the State Government and olher Members. At this stage, it would be appropriate to have a look at Section 35 of the Act, which authorises the appropriate Government to make Rules for carrying out the purposes of the Act. Section 35(2)(a) of the Act reads as follows:

"35. Power to make Rules :-- The appropriate Government may, subject to the condition of previous publication, make rules for carrying out the purpose of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely,

(a) the number of persons to be appointed as members representing various interests on the Central Board and the Slate Board, the term of their office and other conditions of service, the procedure to be followed in the discharge of their functions and the manner of filling vacancies :-

(b) to (p) xxxxx"

It is so obvious that the rule making authority has to frame Rules prescribing the number of persons to be appointed as Members representing various interests on the Board, the term of office and other conditions of service. Therefore, the rule making authority is bound to make Rules prescribing the term of office. As already observed, the expression used ''Members'' in sub-section (3) of Section 4 of the Act, includes Chairman and the same meaning is required to be given to the expression used in sub-section 2(a) of Section 35 as ''Members'', include Chairman also. It is thus clear that the rule making authority is bound to make Rules prescribing the term of office of the Chairman, as well as the Members.

It is settled law that if there is any conflict between the statute and the subordinate legislation, the statute prevails over the subordinate legislation and the Rule or Regulation, as Ihe case may be, if not in conformity with the statute, in order to give effect to the statutory provision, the Rule, Regulation or Bye-law, as the case may be has to be ignored. The statutory provision has precedence and must be complied with. The Rule either has to yield to the statutory provision or if it is in conflict with the statutory provision, the Court is duty bound to declare such Rule as ultra vires. An argument is sought to be advanced by the learned senior Counsel appealing on behalf of the Respondent No.2, as if the amended Rule is retrospective in its operation. According to the learned senior Counsel, Sri R. Venugopal Reddy, the Chairman has to vacate the office and deemed to have vacated the office on the date the Rule has come into force. The Chairman cannot hold office for any further term, inasmuch as the Chairman is required to hold office during the pleasure of the Government. The learned Counsel placed reliance on a Division Bench Judgment of this Court in B. Kota Mallaiah and Others Vs. Commissioner and Registrar of Co-operative Societies and Others, . It is difficult to appreciate as to how the said Judgment would support the case of the petitioner. It was a case where the term of office of the elected body of a Primary Agricultural Co-operative Society was reduced from five years to three years on the wake of amendment to the Act itself. The amendment Act contained transitory provisions of putting an end to the term of office of the elected committees with immediate effect of the amendment Act coming into force. There is no such amendment to the provisions of the Act in the instant case nor any Rule is made by the rule making authority putting an end to the term of office of the Chairman. It is further required to notice that there is not even an attempt on the part of the Government to express that the Chairman of the Board has ceased to have the pleasure of the Government. Viewed from any angle, it is not possible to accept the submission made by the learned senior Counsel and it cannot be held that by virtue of the amended Rule, the "term of office of the Chairman has come to an end.

Yet another question arises as to whether the appropriate Government under the Act has been vested with the power to make Rules with retrospective effect. A perusal of the Section 35 of the Act says that although the power to make Rules to carry out the purposes of the Act has been conferred upon the appropriate Government (Central Government as well as the State Government), there is no provision in the section which may either expressly or by necessary implication show that the appropriate Government has been vested with the power to make Rules with retrospective effect. It is Section 35 of the Act that empowers the appropriate Government to make Rules and undoubtedly the Rules to be made by the appropriate Government are required to be in conformity with Section 35 of the Act. The extent and amplitude of the rule making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that Rule. Likewise, if there was nothing in the language..... to empower the Central Government either expressly or by necessary implication, to make a rule retrospectively, the Central Government would be acting in excess of its power if it gives retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between the subordinate legislation and the statute laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled." (emphasis is of mine). See Hukam Chand etc. Vs. Union of India (UOI) and Others, . Can the Rule making authority refuse to prescribe the term of office when the statute specifically provides for a term of office and mandates the Rule making authority to prescribe the term of Office ? It is not open for the Rule making authority to ignore the legislative mandate and frame Rules contrary to the legislative intent. If the provisions in the statute direct the Rule making authority to prescribe term of office, the Rule making authority is bound to prescribe the term of office for the Members of the Advisory Board (either Central or State, as the case may be) and I have already taken Ihe view that the expression used as ''Member'' in sub-section (2) of Section 4 includes Chairman also. Of course, no term of office need be prescribed in case of Labour Commissioner or a Member nominated in his place by the State Government inasmuch as the statute itself says that the Labour Commissioner is the ex officio Member and also the Members to be nominated by the State Government.

The expression ''term of office'' used in the statute is not without any significance; but, pregnent with meaning.

Stroud''s Judicial Dictionary defines ''term'' as the preliminary signification of ''term'' is term for years.

As per Slroud''s Judicial Dictionary ''Office'' means ''an office'' "a right to exercise a public or private employment and to take the fees and emoluments thereunto belonging".

In Black''s Law Dictionary ''term'' is defined as "a word or phrase; an expression; particularly one which possesses a fixed and known meaning in some science, art, or profession. A fixed period; period of determined or prescribed duration. A specified period of time. The word in legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. Term of office is defined as ''the period during which elected officer or appointee is entitled to hold office, perform its functions, and enjoy its privileges and emoluments."

''Office'' is defined in Black''s Dictionary as a right, and correspondent duty, to exercise a public trust. A public charge or employment. An employment on behalf of the government in any station or public trust, not merely transient, occasional, or incidental. The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the government; and, when this is the connection, "public office" is a usual and more discriminating expression. But a power and duly may exist without immediate grant from government, and may be properly called an ''office'', as the office of executor. Here the individual acts towards legatees in performance of a duty, and in exercise of a power not derived from their consent, but devolved on him by an authority with quo ad hoc is superior".

''Term of office'' means (As per The Law Lexicon of P. Ramanatha Aiyar) the period or limit of time during which the incumbent is permitted to hold.'' ''In the same ''Office''is defined as:

"This word is also used in combination with other words (as) Municipal Office;

public office, registered office of company; Revenue-office. Office: That function by virtue thereof a man hath some employment in the affairs of another, as of the King, or another person.

An office is ''the right to exercise a public or private employment, and take the fees and emoluments there unto belonging, whether public as those of magistrates, or private, as of bailiffs, receivers'' etc.

The term ''office'' denotes a duty in the Office-holder to be discharged by him as such. It consists in a right and correspondent duty, to execute a public or private duty and to take the emoluments belonging to it. Webster defines an office to be ''the place where a particular kind of business or service for others is transacted; a house or apartment in which public officers and others transact business; as a registrar''s office, a lawyer''s office. ''''Office" includes place and employment

The word ''Office'' has two meanings; the one popular the other legal and technical. Thus we speak of the office of an executor guardian & c. The legal meaning of the term always implies a charge, or trust, conferred by public authority, and for a public purpose." An office is in his sense, a trust created for the public. It imports duty or trust.''''

Therefore, the expression ''term of office'' used in sub-rule (3) of Rule 4 of the Rules is required to be understood in this background and by keeping the whole scheme of the Act in mind. It is not possible to come to the conclusion that the Rule making authority is mandated to prescribe the term of office only in the case of persons to be appointed as Members; but, not in the case of Chairman. If the persons to be appointed as Members are required to hold office for a particular term, it cannot be said that no term of office, as such is required to be prescribed by the Rule making authority in the case of Chairman. A combined reading of Sections 4 and 35 of the Act would undoubtedly show that the Rule making authority is bound to prescribe the term of office and other conditions of office, not only in the case of Members of the Board; but also in the case of Chairman. As it has been already noticed that the expression ''term'' denotes and defines the period, the Rule making authority is bound to prescribe a definite period for the Members of the Board, including its Chairman. That is what exactly has been done by the Rule making authority by incorporating Rule 4 (un-amended) prescribing a period of three years term for the Chairman to hold the Office.

For all the aforesaid reasons, the conclusion inescapable is that the amended Rule 4 of the Rules notified and which has come into effect from 12-6-1996 is ultra vires. It is not in conformity with the mandatory provisions of the Act.

The petitioner is accordingly entitled to hold office in terms of his appointment vide G.O.Rt.No.1065 dated 9-5-1995 until 9-5-1988 and it is accordingly declared. Consequently there is no vacancy as such arising so as to enable the first respondent to appoint the second respondent as Chairman of the A.P. State Advisory Contract Labour Board in the place of the petitioner. The impugned Government Order - G.O. Ms. No.54, dated 14-10-1997 is accordingly set aside. Writ of Mandamus be issued as prayed for.

The writ petition is allowed with costs.