Calcutta High Court (Appellete Side)
Fire Services Workers Union vs The State Of West Bengal & Ors on 10 March, 2022
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IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
WPA 2770 of 2019
Fire Services Workers Union, West Bengal and Ors.
Versus
The State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharyya, Senior Advocate
Mr. Bhaskar Ghosh
.....For the Petitioners
Mr. Lalit Mohan Mahata
Mrs. Jhuma Chakraborty
.....For the State
Heard on : 21.02.2022
Judgment on : 10.03.2022
Krishna Rao, J.:
1. The petitioner no. 1 is a Union of the personnels engaged as Group- B, C
and D employees in the West Bengal Fire and Emergency Services.
2. The petitioner nos. 2 and 3 are the General Secretary and Joint Secretary
of the petitioner no. 1.
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3. The petitioners have challenged the Resolution No. 1940/FES/O/3S-
16/2017 dt. 18.12.2018 issued by the Government of West Bengal.
4. The petitioner no. 1 is a registered Union under the Trade Union Act,
1926 having registration No. 732 dt. 30.03.1946.
5. The aims and objects of the petitioner no. 1 union amongst others to
protect and espouse by all legal means the trade union rights including
the economic, social, democratic and cultural rights of the members for
their services related interest.
6. Since the year 1946, the petitioner Union is discharging its duty as per
the aims and objects of the Union after being recognized by Government
of West Bengal and carrying out the immense responsibility of placing,
highlighting and negotiating the grievances of the members of the union
and other employees of the Department of Fire and Emergency Services,
Government of West Bengal before the departmental authorities for
redressal of the same by way of representations, deputations,
discussions, deliberations of bilateral conciliation upon day-to-day
interactions with the members as well as higher echelons of the
administration and also extending their activities for protection of
interest of other department of the State Government as well as Central
Government along with working people of all strata apart from employees
of the Department of Fire and Emergency Services, by fostering joint
association and larger democratic movement by involving them by
elevating through cultural level and thinking and awareness for the
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purpose of the same taking of various educational plans and activities by
distributing leaflets, publishing poster, several magazines, organizing
trade union class and cultural program etc.
7. All of a sudden by way of communication dt. 31.12.2018 a Resolution
No. 1940/FES/O/3S-16/2017 dt. 18.12.18 issued by the Government of
West Bengal was served upon the petitioner union.
8. By way of the resolution dt. 18.12.2018, the Governor of West Bengal
has constituted a Board namely "The West Bengal Fire and Emergency
Services Welfare Board" and "West Bengal Fire and Emergency Services
Divisional Welfare Board" to ensure welfare of the members of the Fire
Brigade of the State of West Bengal in the following manner:-
"West Bengal Fire & Emergency Services Welfare Board:-
(1) In the State, there shall be a Board, namely, the West Bengal
Fire and Emergency Services Welfare Board and the said Board
shall consist of the following members:-
(a) Director General, West Bengal Fire & Chairman
Emergency Services
(b) Additional Director General or Director, West Member Secretary
Bengal Fire & Emergency Services
© Maintenance Superintendent Member
(d) Station Officers (two) Members
(e) Chief Mobilising Officer or Mobilising Officer Member
(f) Sub-Officers (two) Members
(g) Leaders (three) Members
(h) Fire Engine Operator cum Driver (three) Members
(i) Fire Operators (six) Members
(j) Staff Car Driver Member
(2) The Board meeting shall be held once in every quarter.
(3) The Board shall formulate guidelines and procedures for
smooth conduct of the Board.
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4. West Bengal Fire and Emergency Services Divisional Welfare
Board:-
(1) In every Division, there shall be a Board, namely, the West
Bengal Fire and Emergency Services Divisional Welfare Board and
the said Board shall consist of the following members:-
(a) Divisional Fire Officer Chairman
(b) Senior Most Station Officer Member
Secretary
© Station Officer Member
(d) Sub-Officers (two) Members
(e) Mobilising Officer or Assistant Mobilising Officer Member
(f) Leaders (three) Members
(g) Fire Engine Operator cum Driver (two) Members
(h) Fire Operators (three) Members
(i) Staff Car Driver Member
(2) The Board meeting shall be head of legal once in every
month.
(3) The Board shall formulate regulations and procedure for
smooth conduct of the Board
(4) The minutes of the meeting shall be recorded and the
same will be sent to West Bengal Fire and Emergency Services
Welfare Board for observation.
5. Quarterly report.-
(1) The West Bengal Fire and Emergency Services Welfare Board
shall submit quarterly report to the Government in the Department
of Fire and Emergency Services.
(2) The Additional Chief Secretary or the Principal
Secretary or the Secretary of the Department of Fire and
Emergency Services shall review the report periodically.
6. Annual Meeting:-
There shall be an annual meeting to be chaired by the Minister-In-
Charge of the Department of Fire and Emergency Services and the
be attended by the Additional Chief Secretary or Principal
Secretary or Secretary, Department of Fire and Emergency Services
and Director General, West Bengal Fire and Emergency Services to
discuss progress of the Welfare schemes so far undertaken and/or
to be undertaken for the welfare of the members of Fire Brigade.
The meeting may also be attended by officers on invitation.
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7. Welfare scheme:-
Matters relating to health care, retirement benefits, group housing,
general principals of services as recruitment, promotion and
discipline and other welfare scheme such as education and carrier
counseling for dependents of members of Fire Brigade shall be in
consideration of the West Bengal Fire and Emergency Services
Welfare Board.
8. Fund:-
In order to implement different welfare activities of the members of
Fire Brigade, the West Bengal Fire and Emergency Services Welfare
Board shall maintain separate funds which shall comprise grant
from the Government and/or Government organization.
9. Formulation of guidelines for functioning of West Bengal
Fire and Emergency Services Divisional Welfare Boards:-
(1) The West Bengal Fire and Emergency Services Welfare
Board shall formulate the operational guidelines for functioning of
the West Bengal Fire and Emergency Services Divisional Welfare
Boards, maintenance of funds etc.
(2) Members of the Board shall be selected by lotteries, if
necessary.
Note:- All the associations or unions or societies of the members of
Fire Brigade at all levels shall be treated as withdrawn with immediate
effect."
9. By way of the impugned resolution dt. 18.12.2018, the respondents have
given the note that "All the associations or unions or societies of the
members of Fire Brigade at all levels shall be treated as withdrawn with
immediate effect".
10. On receipt of the resolution dt. 18.12.2018, the petitioner no. 2, the
General Secretary of the petitioner no. 1 union had made representation
to the respondent authorities for restoration of the Fire Services
Workers Union, West Bengal by cancelling and/or withdrawing and/or
rescinding the caption resolution immediately.
11. Inspite of receipt of the representation from the petitioner no. 2 no
action has been taken by the respondents.
12. The Ld. Senior Counsel Mr. Bikash Ranjan Bhattacharyya representing
the petitioner, submitted that the members of the union were shocked
to observe with dismay that the utter disregard and lack of sympathy of
the rights of the democratic institutions, the respondents have
communicated the resolution which is arbitrary, in complete violation of
natural justice as the same was issued without giving any opportunity
of hearing.
13. The Ld. Senior Counsel submitted that in the 3 rd paragraph of the
impugned Resolution the respondent authorities have made a false,
frivolous, baseless and unfounded allegation, inter alia, that the repeal
of West Bengal Fire Services (Maintenance of Discipline) Act, 1974
repealed by the West Bengal Fire Service (Maintenance of Discipline)
(Repealing) Act 1978 resulted in lacking of proper discipline due
discharge of duties in emergency situation by the member of the Fire
Brigade without any material evidence to support and substantiate the
same.
14. The Ld. Senior Counsel further submitted that the union enjoyed
recognition of the Government of West Bengal on and from the date of
registration of the Union and after grant of permission for formation of
such Union by the concern Government upholding the right to form
Union and as such the same cannot be illegally withdrawn by executive
fiat.
15. The Ld. Senior Counsel further submitted that freedom of speech and
expression as well as a freedom to form association or unions is not
only a basis fundamental right but also a part of human rights, which
has also been upheld by the Supreme Court of India and held that the
recognition of the Government may attain the constitutional importance
where without such recognition, the fundamental rights under Article
19(1)(a) and 19(1)(c) would become illusory.
16. It is further submitted that the right of the members of the Union to
carry out their function is enshrined in the Article 19 (1) (a) and 19 (1)
(c) of the Constitution of India and as such the impugned resolution is
not sustainable in stopping the members of Union from carrying out
their function relating to the Union on the said count.
17. The Ld. Senior Counsel further submitted that the impugned resolution
is in gross violation of the fundamental rights as enshrined in the
Constitution of India as well as provisions of Article 20 and Article 30 of
the Universal Declaration of Human Rights and International Covenant
on Civil Political Rights, 1996 and total disregard the legal right and
privileges granted under the Trade Unions Act, 1926.
18. The Ld. Senior Counsel further submitted that the executive
government upon consideration of all aspects took a considerate
decision to recognize the union one of the representative body of the
employees of the Department of Fire and Emergency Services. The
union is functioning in spite of their being change in the political
Constitution of the Government from time to time and succeeding
Government is duty bound to continue and carry on the unfinished job
of the previous government for the reason that the action is that of the
'State' within the meaning of Article 12 of the Constitution of India
which continues to subsist and therefore it is not required that the new
Government can plead contrary to the State action taken by the
previous Government in respect of the particular subjects.
19. The Ld. Senior Counsel further submitted that no reason for less a
cogent or sustainable reason has been disclosed whatsoever changes of
basic circumstances promoting to the purported decision of the said
withdrawal of the association or unions or societies of the members of
the Fire Brigade. The impugned resolution is arbitrary and violative of
the provision of the Constitution of India and legal rights and privilege
granted under the Trade Unions Act, 1926 and the impugned resolution
have been issued in colourable exercise of power, particularly in the
absence of any law supporting the said Act of the authorities.
20. The Ld. Senior Counsel pointed out Section 10 of the Trade Unions Act,
1926 wherein the cancellation of registration has been prescribed.
Section 10:-
"Cancellation of Registration.- A certificate of registration of
a Trade Union may be withdrawn or cancelled by the Registrar-
(a) on the application of the Trade Union to be verified in such
manner as may be prescribed;
(b) if the Registrar is satisfied that the certificate has been
obtained by fraud or mistake, or that the Trade Union has
ceased to exist or has willfully and after notice from the
Registrar contravened any provision of this Act or allowed
any rule to continue in force which is inconsistent with
any such provision, or has rescinded and rule providing for
any matter provision for which is required by section 6;
(c) if the Registrar is satisfied that a registered Trade Union of
workmen ceases to have the requisite number of members:
Provided that not less than two months' previous notice in
writing specifying the ground on which it is proposed to withdraw or
cancel the certificate shall be given by the Registrar to the Trade
Union before the certificate is withdrawn or cancelled otherwise
than on the application of the Trade Union."
21. The Counsel for the petitioner has relied upon Section 4 of West Bengal
Service (duties), etc. rules which reads as follows:-
"Rights.- The following shall be the rights of Government employee:
(1) every Government employee shall have the right to form
Associations/Unions/Federative bodies of the employees;
(2) every Government employee shall full trade union rights including
the right to strike. The right to strike shall, however, be subject to
compliance with the provisions laid down in Appendix;
Note:
The right to strike shall not, however, be available to the members
of the W.B.C.S (Executive and Judicial) and other allied executive,
administrative, medical, engineering and educational services.
(3) every Government employee shall enjoy full democratic rights
except being a member of any political party;
Explanation.- These rights do not however include any which is
prohibited under the law of the land.
(4) any Government employee may, with prior intimation to the
authority and subject to the conditions laid down in clause (7) of
rule 6 of these rules, participate in a radio or television
programme:
(a) incites communal and/or parochial feelings;
(b) goes against the unity and integrity of the country;
(5) any Government employee may contribute any literary or scientific
writing or write any letter to any newspaper or periodical, subject
to the provisions laid down in clause(4)."
22. The Counsel for the petitioner has also relied upon Appendix-I of the said
rule which reads as follows:-
"Procedure to be followed before going on strike
1. No employee shall go on strike without-
(i) Completing the process of conciliation or negotiation in the
manner laid down hereunder;
(ii) Giving notice of at least 14 days to the appropriate authority
and the strike shall not commence before expiry of the period of
notice. For public utility services (as detailed below) the period
of notice shall be thirty days; and
Note:-
The following services shall be included in the category of public
utility services:
(1) All services directly connected with the running of hospitals.
(2) Fire Brigade - operational services.
(3) Drinking Water Supply - operational services.
(4) Milk Supply - operational services.
(5) Ration shop of the Food and Supplies Department."
23. The petitioner also relied upon Article 33 of the Constitution of India
which reads as follows:-
"Power of Parliament to modify the rights conferred by
this Part in their application to Forces, etc.- Parliament may, by
law, determine to what extent any of the rights conferred by this
Part shall, in their application to,-
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance
of public order; or
(c) persons employed in any bureau or other organization
established by the State for purposes of intelligence or
counter intelligence; or
(d) persons employed in, or in connection with, the
telecommunication systems set up for the purposes of
any Force, bureau or organization referred to in clauses
(a) to (c) ,
be restricted or abrogated so as to ensure the proper discharge of
their duties and the maintenance of discipline among them."
24. The Ld. Senior Counsel appearing for the petitioner relied upon the
judgment passed by the Coordinate Bench of this Court in W.P. No. 92 of
2012 (Bijitaswa Rout & Ors. -Vs- State of West Bengal & Ors.) dt.
10.12.2012 wherein the Coordinate Bench had set aside the Resolution
No. 233-PL dt. 10.01.2012 issued by the Additional Chief Secretary, Home
Department, Government of West Bengal conveyed the decision of the
Government to substitute the Joint Consultative Committees for Police at
different levels with the Police Welfare Board for the West Bengal Police
and Kolkata Police and the recognition accorded in favour of the three
Associations was to be treated as withdrawn.
25. The Ld. Senior Counsel by relying upon the said judgment submitted
that the Coordinate Bench had set aside the said impugned resolution and
the instant case is also covered under the said judgment. The Ld. Senior
Counsel prayed for setting aside the impugned resolution dt. 18.12.2018.
26. Per contra, Mr. Lalit Mohan Mahata, the Ld. Counsel representing the
respondents no. 1 and 2 submitted that the West Bengal Fire and
Emergency Services was constituted in terms of West Bengal Fire Services
Act, 1950 and Fire Brigade so constituted is an association of disciplined
nature in a way that it can act in a concerted efforts and neatly
coordination manner at the time of emergency and the members of Fire
Brigade are public servant within the meaning of Section 38E of the Act of
1950.
27. The Ld. Counsel for the respondents further submitted that to ensure
discipline amongst the members of the Fire Brigade and also to ensure
proper discharge of their duty, West Bengal Fire Services (Maintenance of
Discipline) Ordinance, 1974 was passed and subsequently the Ordinance
was replaced after coming into force of the West Bengal Fire Services
(Maintenance of Discipline) Act, 1974.
28. The Counsel for the respondents further submitted that in Section 3 of
the Act of 1974 there is a restriction on the right to form association,
freedom of speech etc. and it is mentioned that "No member of Fire
Brigade shall without sanction of State Government or the authority
prescribed in this behalf of a member of or be associated in any way with,
any trade union, labour union, political association or any class of trade
union, labour union or political associations. The Ld. Counsel for the
respondent has further submitted that Section 4 of the Act of 1974
provides penalty with imprisonment or with fined for violation of any
Provisions of Section 3 of the Act of 1974.
29. The Ld. Counsel for the respondents further submitted that since
beginning various unions, associations, registered and unregistered were
formed by the members of the Fire Brigade for ventilating their grievances
and there are altogether about 15-16 associations were in existence but
only one association has challenged the impugned resolution implied that
the other associations/unions have accepted the, impugned resolution.
30. The Ld. Counsel for the respondents further submitted that no formal
sanction of State Government was obtained by any of the associations,
unions and societies. It is further submitted that for ventilation of the
grievances by each and every of such unions, associations resulted in lack
of discipline in the general approach of administration of these disciplined
organization like Fire Brigade.
31. The Ld. Counsel for the respondents further submitted that after
considering the various factors, the Department of Fire and Emergency
Services had felt to constitute Welfare Board so that the grievances of the
members of the Fire Brigade can be ventilated in a concerted manner and
also that the welfare of the members of the Fire Brigade can be looked
after in a proper and systematic manner. It is further submitted that after
considering the opinion of the finance department and the law department
a new policy for consideration of Welfare Board was introduced and
accordingly after getting approval of the Cabinet of the Government of
West Bengal, the resolution has been issued under the name of West
Bengal Fire and Emergency Services (Constitution of Board) and
(Miscellaneous Provisions) schemes, 2018 constituting Welfare Board in
two tire system was promulgated.
32. The Counsel for the respondents further submitted that there shall be
one Central West Bengal Fire and Emergency Welfare Board and one West
Bengal Fire and Emergency Services Divisional Welfare Board in each
District of West Bengal comprising representatives of all the cadres of Fire
Brigade, shall be chosen by way of lotteries, if necessary, so that there
cannot be any cadre or class of members of Fire Brigade directed who
would remain unrepresented.
33. The Counsel for the respondent further submitted that the respondents
have not committed any error by issuing the resolution dt. 18.12.2018
and prayed for dismissal of the writ application.
34. Considered the rival submissions of the parties, documents available on
record and the judgment relied by the petitioner.
35. The issue arising for consideration in the instant writ application
whether the impugned resolution No. 1940/FES/O/3S-16/2017 dt.
18.12.2018 issued by the Secretary to the Government of West Bengal
conveying the withdrawal of all the associations, unions or societies of the
members of Fire Brigade at all levels, is sustainable in law or not.
36. In the scheme of the Constitution, suppression of power is discernible. It
has entrusted the executive or the administrative wing of the exclusive
domain of formalities policies of governance, which is regarded by it to be
in the best of interest of the nation and its people. What is good and right
for the people rest or their decision and all their action must be directed
towards achieving the same, with the caveat that the executive power of
the State must be exercised in tune with the constitutional norms and
principles. It is also open to the executive to change the policy according
to the demands of time and situation, and also in public interest, for
justifiable reasons. However, it is not the law that a policy decision enjoys
immunity and can never be subject of judicial review. The grounds based
there on scrutiny could be made or undoubtedly limited and the judicial
review court may, in its discretion, decline to interfere unless an
exceptional case warranting exercise of writ powers is set up. A change in
policy by itself does not vitiate the action taken. If the change is based on
proper materials and is considered rational or reasonable, there may not
be the scope for interference. It would be perfectly legitimate exercise of
power for the Court to examine as to whether the change in policy decision
attracts the voice of unrepealness and arbitrariness or not, or whether it is
patently malafide or not. Preservation of rule of law must be paramount
importance for every reasonable citizen of the country, whatever is his
capacity. Justice is not to be administered by the judiciary alone, it is the
constitutional resolve of the people that the executive must reach ought to
the masses by framing policies that are fair, just and reasonable and
intended to promote public good. None can, however, possibly dispute
that while an Executive Officer looks at things from this stand point of
policy and expediency, a judge looks at things objectively, uninfluenced by
considerations of policies and expediency. Quite often absence of
statutory mandate to record reasons in support of a policy decision is
used as shield to guard against judicial interference. The executive ought
to realized that recording of reasons serves a salutary purpose, namely, it
excludes of chances of arbitrariness and ensures a decree of fairness and
transparency in the decision making process. To look for the reasons that
compelled the executive to change its policy would be also a just
approached on the part of the Court in dispensing justice to the parties.
37. The fundamental rights that the Constitution envisions are scared and
enable the people to engage a multifarious lawful activities not only in self-
interest but also in the interest of the public, some of whom to their utter
misfortune do not have the minimum resources to enforce their right for
obtaining that, which otherwise ought to legitimately accrue of them.
Right to obtain a permit or a license or recognition or exemption put follow
if the pre conditions therefore, are found to have been fulfilled or adhered
to, which is widely at variance from concession that may have been
granted in special circumstances. Certainly, by granting recognition to
the union of the petitioner, the authorities did not grant any concession.
Also, law since to be settled that the rule that administrative orders confer
no justiciable right is a general rule and alike all general rules, is subject
to exception. To say that an administrative order can never confer any
right is too wide a proposition. There are administrative orders can take
away or abridge rights that the principal of audi alteram partem can be
imported into this area. It is settled law that since by reason of a policy
vested or abridge rights cannot be taken away, such a right, a fortiori,
cannot be taken away by an amendment thereof.
38. Unless there is likelihood of a change in decision even if opportunity of
hearing were extended and thus it may not be directed to be extended as
mere ritual, for, in the ultimate analysis, it would be futile exercise, this
Court is of the considered view that 'Useless formality theory' ought not to
be applied mechanically.
39. The Registrar of trade unions, West Bengal had registered the union of
the petitioner on 30.03.1946 that is prior to independence. The
registration granted in favour of the petitioner union was accepted and
were allowed to continue until 18.12.2018.
40. The Union on the basis of the recognition till the impugned resolution
was issued, have claimed involvement in multifarious activities for the
greater benefit of the Fire Brigade personnel's. The involvement of the
Union by the Government, accepting the status of the Union as recognized
Union and thus the recognition of the Union could not have been revoked
on the specious ground that the recognition in terms of the Act had not
been obtained.
41. The judgment passed by Coordinate Bench of this Court in WP No. 92 of
2012 (Bijitaswa Rout & Ors. -Vs- State of West Bengal & Ors.) held that:-
"This Court is further of the view that if at all recognition accorded
in favour of the three Associations were to be revoked, that ought
to have been preceded by an opportunity of hearing to the
authorized representatives of each of the three Associations. Non-
grant of opportunity of hearing in conformity with the principles of
natural justice, on facts and in the circumstances, also renders the
impugned resolution vulnerable."
42. The petitioner Union is registered under Trade Union Act, 1926. In the
said Act the procedure for cancellation of registration is provided under
Section 10 of the said Act. In the said Section, it is also provided that not
less than two months previous notice in writing is specifying the ground
on which it is proposed to withdraw or cancel the certificate shall be given
by the Registrar to the Trade Union before certificate is withdrawn or
cancelled otherwise than on the application of the Trade Union.
43. In the instant case, the Registrar has not passed any order for the
withdrawal of the registration. The registration/recognition of the Union
petitioner has not been withdrawn by the Registrar. It is admitted fact
that before withdrawal of the registration, no opportunity has been given
to the petitioner Union.
44. This Court is of the view that before withdrawal of registration, no
opportunity was given to the petitioner. Non-grant of opportunity of
hearing in conformity with the principle of natural justice. The order
passed by the Coordinate Bench of this Court in WP No. 92 of 2012 dt.
10.12.12 is squarely applicable in the instant case.
45. In view of the above, the impugned resolution is stands set aside. The
respondents shall be entitled to substitute West Bengal Fire & Emergency
Services Welfare Board and West Bengal Fire & Emergency Services
Divisional Welfare Board but in accordance with law. If representative
from the petitioner Union is not to be included in the above mentioned
Welfare Boards, their views must be invited and in case responses are
received, the same must be received due consideration. The petitioner
Union shall be entitled to function as the same was functioning before the
impugned resolution was issued.
46. The Writ petition is stands allow to the extent as observed above, without
any order for costs.
Parties shall be entitled to act on the basis of a server copy of the
Judgment and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for,
be given to the parties upon compliance of the requisite formalities.
(Krishna Rao, J.)
