Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Civil Revision No. 39 (W) of 1965, decided on 1st February 1968.
---‑Association of employees‑‑ Unincorpo rated association recognised by Government‑Not entitled to launch legal proceedings on behalf of members‑ Such unincorporated asso ciation, held, can apply for writ only in case of infringement of Its right as a collective body as distinguished from aggregate rights of its members‑Writ‑Constitution of India, Art. 226.
The recognition by the Government under the Central 5crvices (Reception of Service Association) Rules, 1559, of an association of employees, which is not an incorporated body, gives it only a status in its relationship and dealings with the Government. It has nothing to do with the representation of its members in litigation before a Court of law.
An unincorporated association of employees has no legal personality and is nothing but an aggregation of its members who can only bring legal proceedings in their individual capacity. Even when all of them are affected by an act of the employer (Government), they can exchange that only if all the members join in the proceedings by name. The association as such cannot maintain an application under Article 226 of the Constitution of India or other legal proceeding in its own name. Even when such as association is permitted by law to bring a legal proceed ing, it can bring an application under Article 226 only when its rights as a collective body, as distinguished from the aggregate rights of its members, are affected by the act challenged in the proceedings.
Indian Sugar Mills' Association v. Secretary to Government U: P., Labour Department A-I‑R 1951 All. 1; ‑ General Secretary Eastern Zone Insurance Employees' Association v. Zonal Manager, Eastern Zone Life Insurance Corporation (1960) 23 F J R 456; Banglore District Hotel Owners Association v. District Magistrate, Bangalore A I R 1951 Mys. 14; Chiranjit Lal v. Union of India A 'I R 1951 S C 41; Government Press Employees' Association v. Government of Mysore (1961) 21 F J R 105; BarrackApr Bus Syndicate v. Sernjuddin A I R 1957 Cal. 444 and Sibitri Motor Service v. Asansol Bus Association A I R 1951 Cal. 255 rel.
Ram Prasad Vishwakarma v. Industrial Tribunal, Patna (1960) 19 F J R 380; West Bengal Press. Workers' & Employees' Union v. Art Union Printings Works (Private) Ltd. (1961) 23 F J R 592 and Sibitri Motor Service v. Asansol Bus Association A I R 1951 Cal. 255 ref.
B. C. Das Gupta v. Bejoy Ranjan A I R 1953 Cal. 212 and All India Station Masters' Association v. General Manager, Central Railway A I R 191;0 S C 384 distinguished.
(b) Writ‑‑Jurisdiction of High Court‑Infringement of legal right only and not the brench of administrative order‑Creates writ jurisdiction of High Court‑Constitution of India, Art. 226.
The High Court cannot interfere under Article 226 of the Constitution of India unless some legal right is infringed. Unless such a legal right is established, there is no question of a violation of Article 14 or Article 16. Administrative practice or the opinion of a Pay Commission cannot form basis of a petition for a writ.
A. P. Chatterjee for Appellant.
A. K. Mukherjee and Shiblal Bose for Respondent.
This rule involves a dispute between two sections of the subordinate employees in the office of the Director‑General of Ordnance Factories, re presented by two Unions.
The petitioner is the Employees' Association, which represents employees other than Stenographers. The "Stenogra phers' Association" has been added as respondent No. 3 at their intervention Respondent No. 1 is the Union of India and respondent No. 2 is the Director‑General of Ordnance Factories.
According to the petitioner‑Association, the stenographers are outside the clerical cadre; that there is no rule authorising the promotion of stenographers to the grade of assistants and that the stenographers had no higher prospects in their career. Administratively, however, respondents reserved a post of assistant‑in‑charge to be filled up from the cadre of stenographers of Grade II and on the protest of the petitioner, respondent No. 2 stated that it was only a "non‑recurring measure" (Annexure A) which had been adopted "to remove from the minds of the stenographers the sense of frustration which they were suffering from for not having any scope of advancement".
Since 1962, the respondents have been proposing to combine the two services by making a combined seniority lists of Clerks and Stenographers and petitioner has been making representations against the proposal. On 16th May 1964; respondent No. 1 intimated that the matter was under consideration. In spite of this, the respondent No. 2, on 22nd December 1964, appointed 4 stenographers to the posts of assistants in the clerical cadre against existing vacancies in the posts of Superintendents‑to the prejudice of the clerical staff (vide Annexure F), and this policy has been repeated by another series of such appointments per order at (Annexure G), dated ‑ 31st December 1964. The petitioner points out that the proposal for a merger of the two cadres of stenographers and assistants was rejected by the Pay Commission on the ground that the qualifications for and the nature of the work, etc., of the two cadres were entirely different. The petitioner challenges the aforesaid decision of the respondents to merge the two cadres and the validity of the order of appointment at Annexure F.
The petition is opposed by affidavits on behalf of respondent No. 2 as well as the added respondent No. 3.
Before entering into the merits of the petition, it is necessary to dispose of the preliminary objection taken on behalf of the respondent No. 3, namely, that the petitioner, being an unincorporated association, cannot maintain an application under Article 226 and that the grievance, if any, of its members should be agitated in appropriate proceedings brought by them in their individual capacity.
The petitioner‑Association is, of course, not an incorporated body but it relies on the fact that it has been recognised' by the Government according to the Central Services (Recognition of Service Association) Rules, 1959, made in exercise of powers conferred by Article 309 of the Constitution. Recognition, however, gives an employees' association only a status in it relationship and dealings with the employer, i.e., the Government. It has nothing to do with the representation of its members in a litigation before a Court of law. The question has, therefore, to be answered on general principles as explained by U. judicial decisions.
In cases where the right of a collective body to bring proceedings under Article 226 is challenged, two questions have to be answered:‑
(a) Is the petitioner a legal entity or otherwise permitted by statute to initiate legal proceedings in its own name
(b) Has it been affected by the impugned order as a collective body
(a) So far as the first question is concerned, it is patent that a legal proceeding may be maintained only by an individual or other body which is recognised as a legal person.
In the case of a body incorporated by law, the corporate body acquires a legal personality of it self and is as such entitled to maintain legal proceedings. But an unincorporated association has no legal personality and it ii nothing but an aggregation of its members who can only bring legal proceedings in the individual capacity. Even when all of them are affected by an official act, they can challenge that only if all the members join in the proceedings by name; the association, in such a case, cannot maintain an application under Article 226 or other legal proceeding, in ‑its own name, as has been established by a number of decisions: Indian Sugar Mills' Association v. Secretary to Govern ment, U. P. Labour Department (A I R 1951 All. 1); General Secretary, Eastern Zone Insurance Employees' Association v. Zonal Manager, Eastern Zone Life Insurance Corporation ((1960) 23 F J R 456) and even registration under the Societies Registration Act cannot confer this right. Bangalore District Hotel Owners' Association v. District Magistrate, Bangalore' (A I R 1951 Mys. 14).
To the foregoing general rule, certain exceptions have been introduced by the provisions of certain special statutes e.g :---
(i) A registered Union is made a body corporate by section 13 of the Trade Unions Act, 1926, and is empowered to sue and be sued in its own name.
(i) Under the Industrial Disputes Act, 1947, an association of workmen has a right to raise industrial disputes and to represent the workmen throughout the proceedings Ram Prasad Vishwakarma v. Industrial Tribunal, Patna ((1960) 19 F J R 380) and can thus move against an award under the Act West Bengal Press Workers' Employees' Union v., Art Union Printing Works (Private) Ltd. ((1961) 23 F J R 592).
(iii) Under section, 47 of the Motor Vehicles Act, even an unincorporated association can make a representation in the matter of grant of a permit and can pursue that right in a proceeding under Article 226 Shabitri Motor Service v. Asansol Bus Association (A I A 1951 Cal. 255).
Learned Advocate for the petitioner paints out that in B. C. Das Gupta v. Bejoy Ranjan (1), a petition under Article 226 wars allowed to be brought against an unincorporated association, namely, the State Medical Faculty. It is to be noted, however, that that decision solely rested on the interpretation of the word "person" in the expression "issue to any person" in the text of Article 226 ' itself; by applying the interpretation of the word "person" in section 3 (39) of the General Clauses Act, the Court held that under Article 226,. the High Court could issue a writ even against an unincorporated association. The scope of this decision is thus confined to the question of the respondent in a writ petition and does not answer the question ‑as to who may be a petitioner as to which there is ho‑ express term in Article 226 itself and the general principles have, therefore, to be applied:
On behalf of the petitioners strong reliance has been placed on the fact that the cause title of the Supreme Court decision in All‑India Station Masters' Association v. General Manager, Central Railway (A I R 1960 SC 384) indicates that the association was allowed to bring a petition under Article 32 and establishes that an association has got aright under Article ' 32 or 226 to ventilate .the grievances of its members. It is to be noted, however, that the cause title of the cited case adds and others' as petitioners and, in all probability, besides the Association, the Station Masters themselves who were affected were added as petitioners, as would appear, from the opening words of the judgment (page, 385; ibid.)‑‑
"The petitioners who describe themselves as Road‑side Station Masters challenge . . . . ."
The Court did not say that the petition had been brought by an association of Station Masters and no question as to the maintainability of the petition by an association was raised in that case. It does not, accordingly, establish that an unincor porated association can sue in its own name, in the absence‑ of an express statutory provision in this behalf.
The instant rule; therefore, deserves to be discharged on this ground alone.
Even where an association is permitted by law to bring a legal proceeding, it can bring an application under Articles 226 only when its rights as a collective body as distinguished froze c the aggregate rights of its members are affected by the act challenged in the proceedings Chiranjit Lal v. Union of India (A I R 1951 SC 41) r. Government .. Press Employees' Association v. Government of Maysore ((1961) 21 FJR 105); Barrackpore Bus Syndicate v. Serajuddin (A I R 1957 Cal. 444), e.g. where it is already a party to the impugned cider as in Sabitri Motor Service v. Asansol Bus Association (A I R 1951 Cal. 255).
On this point also, the petition must fail because if any stenographer is given a higher post in the clerical line, it is only a particular assistant who is thereby deprived of his promotion that will be individually affected and shall be competent to bring a petition under Article 226. The collective existence or interests of the association as such will not thereby be affected.
On the merits also, the petitioner, has little to stand upon accepting certain statements in a Government of India Manual, which has no statutory force. The, test in the instant case is not the administrative practice which' may be in existence for any length of time but the legal right, if any, of the clerks to oust the stenographers from their cadre. The petitioner has, however, failed to prove the existence of separate cadres for clerks and stenographers in rebuttal of the statement in paragraph 4 of the counter‑affidavit that both clerks and stenographers belong to Class III ministerial service. The Pay Commission's observations as to the difference in the nature of their work have no legal force but only matters for consideration of the administrative authorities. The petitioner may carry on its activities at that level so long as they are not convinced, but this Court cannot interfere under Article 226 unless some legal right is infringed. So long as such legal right is not established there is no question of a violation of Article 14 or 16 either.
The rule is accordingly discharged, but without any order as to costs.
As prayed for by Ms. Chatterjee, let the operation of this order be stayed for a period of four weeks from this date.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer