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1996 DIGILAW 390 (KER)

Cochin Port Trust Ex Service Employees Association v. Union of India

1996-09-16

JACOB BENJAMIN KOSHY, U P SINGH

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JUDGMENT U.P.Singh,C. J. 1. This appeal has been preferred by one P. Soman Kutty Nair, claiming himself to be the General Secretary representing the Cochin Port Trust Ex-service Employees Association against the judgment of the learned Single Judge in O. P. 7676 of 1995. 2. The prayer in the Original Petition was to direct respondents 1 and 2, the Union of India, Ministry of Surface Transport and the Chairman, Cochin Port Trust Cochin to carry out amendment in Cochin Port Trust Employees (Allotment of Accommodation) Regulations in order to implement the telex message dated 14th September 1.994, Ext. P-4, issued by the first respondent, Government of India. The telex message contained in Ext. P-4 was referring to the directions given by this Court to amend the Cochin Port Trust Employees (Allotment of Accommodation) Regulations so as to give effect to Ext. P-2 order dated 8th January 1992 issued by the Government of India, Directorate of Estates, in its Office Memorandum relating to the counting of the reservist pension drawn by Ex-servicemen for determination of entitlement of accommodation. While considering the said question it was pointed out in the said Office Memorandum that the same should be regulated in the same manner as in para 2. Para 2 of the said Office Memorandum was in respect of counting of pension components for determining of eligibility. It reads: "In case of re-employment within the concessional period, the employees are allowed to retain the accommodation or are allotted higher/lower type of accommodation on the basis of their pay. Normally on re-employment the pay is fixed after deducting elements of basic pension from the pay of the post. It has now been decided that for the purpose of allotment of accommodation notional pay of the post, in which an official is re-employed shall be taken into account." 3. On reading of the said Office Memorandum which has also been filed as Ext. P-5 it does not appear to us how the same can be of any use to support the contention of the appellant to command the Cochin Port Trust to make suitable amendments in their Regulations relating allotment of accommodation to Cochin Port Trust Employees. Clause.2 of the Office Memorandum dated 8th January 1992 contained in Exts. P-5 it does not appear to us how the same can be of any use to support the contention of the appellant to command the Cochin Port Trust to make suitable amendments in their Regulations relating allotment of accommodation to Cochin Port Trust Employees. Clause.2 of the Office Memorandum dated 8th January 1992 contained in Exts. P-2 and P-5 is a decision that for the purpose of allotment of accommodation notional pay of the post, in which an official is re-employed shall be taken into account. It does not deal with and is not a direction containing a decision of the Government of India that a person retiring from the military service and joining the Cochin Port Trust being re-employed in the said Trust will be entitled for accommodation, contrary to the Regulations of the Cochin Port Trust. Neither the decision of this Court in the earlier Original Petition filed by the appellant directed that the Cochin Port Trust must carry out the amendments in the Regulations to implement the telex message contained in Ext. P-4, communicated by the Government of India, nor the said Office Memorandum dated 8th January 1992 could be treated as a positive order mandating the Cochin Port Trust to make such amendments in the Regulations. Ext. P-4 telex message dated 14th September 1994 had merely pointed out the observations of the learned Single Judge while disposing of the earlier writ petition and the same could no the treated as a direction of the Government of India in accordance with S.125 of the Major Port Trust Act so as to bind the Cochin Port Trust to act in terms of the telex message, Ext. P-4. S.125 of the Major Port Trust Act, 1963 states: "Whenever the Central Government considers necessary in the public interest so to do, it may, by order in writing together with a statement of reasons, therefore, direct any Board to make any Regulations for all or any of the matters specified in S.28 or S.76 or S.123." 4. Thus, any direction so given by the Central Government has to be by an order in writing containing the reasons thereof. Considering the true import of S.125 of the Act the contention of the appellant to treat the telex message Ext. Thus, any direction so given by the Central Government has to be by an order in writing containing the reasons thereof. Considering the true import of S.125 of the Act the contention of the appellant to treat the telex message Ext. P-4 as an order of the Government of India cannot be accepted as it is not a directive under S.125 to bind the Port Trust to necessarily carry out the amendments in the Regulations. The telex message Ext. P-4 did not contain any reason directing such amendments to be carried out, nor could it be treated as an order of the Government of India under S.125 of the Act. Therefore, the contention of the appellant is unfounded and has to be rejected. Further, this Court in exercise of writ jurisdiction under Art.226 and 227 of the Constitution was not competent to direct an authority to necessarily carry out the amendment in the Port Trust Regulations by legislating in the field. Therefore, the earlier observations of the learned Single Judge, this Court on the Original Petition of the appellant could not be treated as a mandate to the Port Trust to legislate, nor such power lies with the Court and therefore the observation therein was not of a binding nature on the Port Trust to necessarily carry out the amendments in the Regulations. 5. Cochin Port Trust is a statutory body constituted under the Major Port Trust Act. S.28 of the said Act empowers the Trust Board to make Regulations governing the conditions of service of the employees of the Board. The statutory power entirely vests with the Board of the Port Trust. While carrying out its statutory functions in the matter of providing accommodation it has to take into account several aspects of the matter such as the number of staff, availability of accommodation, availability of alternate accommodation available in the locality etc. In their statement filed before this Court in the present writ petition it was stated that there are nearly 5200 employees under them and out of them 342 are Ex-servicemen. Most of these Ex-servicemen joined service only after 1990. The staff quarters under Type I, Type II and Type III which are available are 397 in Type I, 219 in Type II and 103 in Type III. Since 1976 onwards the applicants are in the waiting list for allotment of quarters. Most of these Ex-servicemen joined service only after 1990. The staff quarters under Type I, Type II and Type III which are available are 397 in Type I, 219 in Type II and 103 in Type III. Since 1976 onwards the applicants are in the waiting list for allotment of quarters. In such a situation if the Ex-servicemen, who have taken re-employment after retirement are allowed to march over the seniors in the Port Trust for allotment of quarters that will lead to by-passing of the port employees who are waiting for the last so many years. Considering all these aspects of the matter the Cochin Port Trust decided not to give any weightage to the service of Ex-servicemen and communicated its order Ext. P-l to the appellant. We, therefore, do not find that such a decision of the Port Trust was either unreasonable or arbitrary. The contention of the appellant fails and the writ appeal is dismissed but without any order as to cost.