Constitution of India – Article 14 – Labour Welfare Fund Board – Whether the Government is empowered to remove nominated members from the Statutory Board – In the absence of any power to invoke the doctrine of pleasure and also in the absence of any public interest being put forward to recall each of such nomination, a general order removing nominations by earlier Government merely on the ground of political differences of ideology cannot itself withstand.

Government

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.MUHAMED MUSTAQUE, J.

W.P.(C).Nos.24099, 24726 & 25104 of 2016

Dated this the 15th day of November, 2016

PETITIONER

SAJI D.ANAND, KOLLAM.

BY ADV. SRI.C.ANIL KUMAR

RESPONDENT(S)

1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR AND REHABILITATION, SECETARIAT, THIRUVANANTHAPURAM-1.

2. KERALA LABOUR WELFARE FUND BOARD, VANCHIYOOR, THIRUVANANTHAPURAM-695035, REPRESENTED BY ITS CHARIMAN.

R1 BY SRI.K.V.SOHAN, STATE ATTORNEY R2 BY ADV. SRI.JAWAHAR JOSE,SC

J U D G M E N T

In these batch of writ petitions, the petitioners question Government Order dated 15.7.2016 terminating the membership of the nominated non-official members in certain Statutory Boards in the State.

2. W.P.(C).No.24099 of 2016 is filed by a non-official member of the Kerala Labour Welfare Fund Board. He was nominated as one of the nonofficial members to the above Board on 24.10.2014 for a period of three years by the then Government in power. W.P.(C).No.24726 of 2016 is filed by two non-official members of the Minimum Wages Advisory Board. The petitioners were appointed to the above Board on 14.4.2014 for a term of two years from the date of notification by the then Government. W.P. (C).No.25104 of 2016 is filed by non-official Directors of the Kerala Motor Transport Workers’ Welfare Fund Board. Subsequently, the second petitioner was deleted from the party array. The first petitioner was nominated as the Director of the Board representing the employer on 30.1.2016 by the Government. The challenge in these writ petitions is regarding premature termination of the members from the Statutory Boards vide Government Order dated 15.7.2016. No reasons have been assigned for termination. The Government has filed a statement in W.P.(C).No.24099 of 2016. The learned State Attorney filed adoption memos in the other two writ petitions seeking permission to adopt the said statement in it. Permission granted. In the statement it is stated that nomination was not based on any qualification nor pursuant to any application but it was based on the pleasure of the Government. The petitioners are terminated as the newly elected Government is having its own policy to be implemented to pave way for nomination of new members of its own choice.

3. The question in this writ petition is whether the Government is empowered to remove nominated members from the Statutory Board as above.

4. Heard Sri.Harikumar G.Nair, learned counsel for the petitioners in W.P.(C).No.25104 of 2016, Smt.A.K.Preetha, learned counsel for the petitioners in W.P.(C).Nos.24099 & 24726 of 2016 and Sri.K.V.Sohan, learned State Attorney.

5. Before proceeding further on the merits of each case, it is apposite to refer to the law relating to the nomination by pleasure and removal of such nominated members from the Statutory Boards before completion of the term in office as propounded by various judgments of the Hon’ble Supreme Court and of this Court. There is no dispute to the fact that nomination of the petitioners to various Boards is covered by the doctrine of pleasure. In a democratic State governed by the Constitution, the executive power of the Government is traced out to the ‘will’ of the people endorsing their policies and promises. However, those powers certainly can be exercised not in derogation of Rule of Law as conceived under the Constitution. In a constitutional democracy, it is an axiom that every power has its legal limitations. The power of the Government to nominate a member, if not circumscribed by any statutory provision, in relation to the manner of the nomination of an individual to the Statutory Board or Corporation, such nomination is covered by the doctrine of pleasure. The exercises of such powers certainly must be actuated and permeated by the public interest. In

O.M.Narain Agarwal and Others. v. Nagar Palika, Shahjahanpur and others, (1993) 2 SCC 242

the Hon’ble Supreme Court considered removal of nominated members of the Municipal Board by the State Government. In the above case, the Hon’ble Supreme Court held in paras.11 and 12 as follows:

“(11) …If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. In the case of an elected member, the legislature has provided the grounds in Section 40 of the Act under which the members could be removed. But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of the respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution.

(12) In our view, such provision neither offends any Article of the Constitution nor the same is against any public or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations…” (emphasis supplied)

6. In

Krishna S/o Bulaji Borate v. State of Maharashtra and others, (2001) 2 SCC 441

it was held as follows:

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