Vishnu Ganpati Nivadunga And Anr vs The State Of Maharashtra And Ors
2024 Latest Caselaw 2365 Bom

Bombay High Court

Vishnu Ganpati Nivadunga And Anr vs The State Of Maharashtra And Ors on 25 January, 2024

Author: Amit Borkar

Bench: Amit Borkar

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                       SA Pathan

                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION

                                             WRIT PETITION NO.10144 OF 2022

SHABNOOR
AYUB
PATHAN
                       Vishnu Ganpati Nivadnuca & Anr                     ... Petitioners
                                  V/s.
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2024.01.31
06:56:43 +0530




                       The State of Maharashtra & Ors                     ... Respondents



                       Mr. Sanjay Prabhakar Shinde, for Petitioners.
                       Mr. B. S. Mahamulkar, for Respondent No.2 (through
                       V.C.).
                       Mr. Meelan Topkar i/by Mr. Saurabh Mandlik, for
                       Respondent No.4.
                       Mr. P. G. Sawant, AGP, for State/Respondent.



                                                        CORAM     : AMIT BORKAR, J.

                                                        DATED     : JANUARY 25, 2024
                       P.C.:

1. The petitioner is challenging an order passed by the Secretary in the exercise of the power conferred by clause (9)(e) of the Goods Transport Unprotected Workers (Regulation of Employment and Welfare) Scheme 1971 brought in force under sub-Section (1) of Section 4 of the Maharashtra Mathadi, Hamal And Other Manual Workers (Regulation of Employment And Welfare) Act, 1969.

2. On 8 September 2023, the Assistant Registrar, Civil Writ

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Petition Department, submitted a report stating that there is a dispute between the Tolis of Mathadi Kamgars. It is stated that the petitioners have challenged the communication dated 1st August 2022 by which the Secretary has decided to dispute by issuing certain directions, and, therefore, the matter pertains to the assignment of a Single Judge taking civil writ petitions of even years arising from industrial and labour laws.

3. Mr. Sanjay Shinde learned Advocate for the petitioner, relying on the judgment of the Apex Court in the case of Indian National Congress (I) Vs. Institute of Social Welfare & Ors, reported in (2002) 5 SCC 685 and the Full Bench judgment of this Court in the case of Mayur Vasant Sonawane Vs. State of Maharashtra and Another, reported in (2022) 3 Mah LJ 334, contended that the order passed by the Secretary is a quasi-judicial order. According to him, to confer the status of quasi-judicial order, there doesn't need to be lis between two parties. The affidavit filed by the Board states that the impugned order is passed after allowing the contesting parties to hear. According to him, the impugned order satisfies the parameter of a dispute between the authority and the subject and, therefore, the order needs to be termed a quasi-judicial order.

4. Per contra, Mr. Meelan Topkar, learned Advocate for respondent No.4, invited my attention to paragraphs 26 and 27 of the judgment in the case of Indian National Congress (Supra), submitted that crucial test to confer the status of quasi-judicial order there must be an obligation to hold an enquiry under a

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statue which is absent about the order passed by the Secretary in the exercise of power under clause (9) of the Scheme and, therefore, the impugned order is administrative order.

5. Having considered the submissions made on behalf of both sides, it is necessary to set out relevant parameters to confer status or order as quasi-judicial order. The parameters as laid down by the Apex Court in the case of Indian National Congress (Supra) are as under:

(i) If a statutory authority empowers under the statute to do any act;

(ii) such an act would prejudicially affect the subject;

(iii) even in the absence of lis between two rival parties, the contest is between the authority and the subject;

(iv) Considering the Scheme of statute, if statutory authority is obliged to act judicially, the decision of such authority is quasi-judicial.

6. The crucial test that distinguishes administrative order from quasi-judicial order appears to be a requirement under the law to hold an enquiry before arriving at a decision. Such obligation created under the statute confers the status of quasi-judicial order after being passed by such authority.

7. In light of the test laid down by the Apex Court, I have considered the scheme of the Goods Transport Unprotected Workers (Regulation of Employment and Welfare) Scheme 1971.

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The object of the Scheme appears to ensure an adequate supply and full and proper utilization of unprotected workers employed in Goods Vehicle Transport undertakings in connection with loading, unloading, stacking, carrying, weighing, measuring and such other work, including work preparatory or incidental to such operations for the efficient performance of work and generally for making better provisions for the terms and conditions of employment of such workers and make provision for their general welfare. Under the said Scheme, a Board is constituted under Section 6 of the Goods Transport Unprotected Workers (Regulation of Employment and Welfare) Scheme 1971 and Section 6 of the Maharashtra Mathadi, Hamal And Other Manual Workers (Regulation of Employment And Welfare) Act, 1969.

8. Clause 6 of the Goods Transport Unprotected Workers (Regulation of Employment and Welfare) Scheme 1971 enumerates the functions of the Board. It also lists the functions, responsibilities and duties of the chairman. Clause 9, which is relevant in the present writ petition, deals with the functions of the Secretary. The functions to be held by the Secretary are in addition to the power and functions of the Board. The impugned order was purportedly passed under clause 9 (e) of the scheme. Clause 9 (e) reads as under:

"(e) the allotment of registered workers in the pool who are available for work to registered employers and for this purpose, the Secretary shall:-

(i) make the fullest possible use of registered workers in

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the pool;

(ii) keep the record of attendance at call stands or control points of registered workers;

(iii) provide for the maintenance of records of employment and earnings of registered workers;

(iv) make or cause to be made the necessary entries in the attendance cards and the wage slips of the workers in the reserve pool as laid down in clause 23;"

9. Upon careful reading of clause 9 (e) of the Scheme, the Secretary has the power to consider the factors referred to in clause (iv). On reading clause 9 (e), no obligation is created to make an enquiry about the allotment of registered workers in the pool who are available for work with the registered employees. Clause 38 of the said Scheme provides for an appeal against specific orders passed by the Secretary. The list of such appealable orders is provided under clause 38(2). The order passed under clause 9 does not find a place in sub-clause (ii) of clause 38 of the said Scheme.

10. Merely because while passing the impugned order, the Secretary has granted the opportunity of hearing to the subject will not confer such order, the status of quasi-judicial order as there is no obligation to make an enquiry under clause 9 (e) of the said Scheme. Therefore, in my opinion, the impugned order fails to conform to the parameters of a quasi-judicial order. It is, therefore, held that the order passed by the Secretary in exercising power under clause 9 (e) of the said Scheme is an administrative order.

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11. Office to place the writ petition before the Division Bench.

12. Ad-interim relief granted earlier, if any, to continue for four weeks from today.

(AMIT BORKAR, J.)