V. P. MOHAN KUMAR, J. ( 1 ) ROBERT Bruce attempted, it is said, seven times to succeed, but the 4th respondent achieved the goal at the second attempt itself. ( 2 ) THE controversy centres round the nomination to the Board of Trustees of the 2nd respondent Port. Under Section 3 of the Major Port Trusts Act, 1963, (hereinafter referred to as 'the Act'), the Central Government, the 1st respondent herein, constitutes a Board of Trustees of the Port which shall consist of persons 17 in number in the case of Port as in the nature of the 3rd respondent to represent various interests mentioned therein. The Central Government should be satisfied that said nominees would be capable of representing the interest they represent as referred to in Section 3 (1) of the Act. Section 3 (1) (c) (i) (1) refers to nominees to represent the Labour employed in the Port. The proviso to the said section provides that while making the nomination to the said Board of Trustees to represent the Labour intetest, the representatives of the Labour employed in the Port, the Central Government shall obtain the opinion of the Trade Unions composed of persons employed in the Port. ( 3 ) THE 4th respondent, as Office Bearer of the Kanara Stevedoring Workers Union C/o INTUC Office K. S. R. M. Street, Mangalore, filed Writ Petition No. 7538/95 praying, inter alia, that the Central Government be directed to choose the Labour representatives after holding a referendum by conducting a secret ballot among the labourers and after deciding as to which Union has the majority membership of the workers and accept the nominees made by the majority Union as the two representatives to the Board of Trustees. This Court by its judgment negatived the plea. In doing so, this Court held as hereunder:"3. In short, the argument and contention urged by the petitioners is that the nomination of the two labour representatives to the Board of Trustees should be as suggested by the Trade Union who claims majority membership of the labourers of the Port. As we have seen earlier, the statutory provision does not support such a contention. All that the statute requires is that the Central Govetnment may nominate such number of persons who are in the "opinion of the Government capable of representing" the interests of the labour employed in the Port. As we have seen earlier, the statutory provision does not support such a contention. All that the statute requires is that the Central Govetnment may nominate such number of persons who are in the "opinion of the Government capable of representing" the interests of the labour employed in the Port. This is to be done by the Central Government on its coming to the satisfaction that the person being nominated is capable of representing the labour interest. The Trade Union cannot certainly control the exercise of this power by the Government in any manner except to the extent indicated in the proviso. All Trade Unions, irrespective of its strength, can tender their opinion in the matter. The Central Government is free to take into account the opinion of the Trade Union as envisaged in the proviso in the section. The opinion tendered need not rule the decision of the Central Government in this behalf. This is only a piece of material that they may advert to. The statute does not contemplate that the opinion thus tendered shall control the exercise of the power by the Government under Section 3 (1) (c) (i) of the Act. While considering the opinion thus offered, the Government need not necessarily be influenced by the fact that the Union that is tendering the opinion is the so-called majority Union. The opinion to be formed by the Government is the subjective opinion of the Government arrived at after taking into account relevant consideration and materials. ( 4 ) WHAT the petitioners urge is that virtually the Trade Union may choose the two representatives to be nominated to represent the labour employed in the Port under Section 3 (1) (c) (i) of the Act under the feigned pretext that the particular Trade Union which chooses the nominees claims membership of majority of the workers. If that be the intention of the Legislature, the proviso occurring in Sec. 3 (1) would have been differently worded. And there was also no need for the Legislature to give a mandate to the nominating authority to invite the opinion of all registered Trade Unions referred to therein. As long as such a right is not conceded or recognised by the statute, the Court cannot create such a new right in favour of a Trade Union. Nor can it transfer the right of the Central Government to another body by judicial interpretation. As long as such a right is not conceded or recognised by the statute, the Court cannot create such a new right in favour of a Trade Union. Nor can it transfer the right of the Central Government to another body by judicial interpretation. To recognise such a right would be making unwarranted inroads into the statute and making uncalled for interference with the statutory right conferred on the Central Government by the statute. ( 5 ) THE relief prayed for by the petitioners in the writ petitions is as follows:" (A) Issue a writ of mandamus or any other appropriate writ/order/direction, directing the respondents to determine the majority and representative character of Trade Unions functioning in the 2nd Respondent Port either through the Check-off system in vogue in the 2nd respondent Port or through the Secret Ballot to be conducted among the workers of the 2nd Respondent Port through the agency of the 3rd Respondent and then appoint the Labour Representative on the 2nd Respondent Trust under Section 3 of the Major Port Trusts Act. "the grant of this relief would amount to virtually rewriting Section 3 of the Major Port Trusts Act, 1963. As the statute now stands, there is nothing in Section 3 of the Act which provides that the Central Government should nominate to the Board of Trustees of the Port only the representative suggested by the majority Union. This is a wishful thinking of the petitioners oblivious of statutory provisions. It is important to remember that while exercising the power under Section 3 of the Act, it is not the function of the Central Government to decide as to which is the Trade Union which enjoys majority support. As stated, it is only choosing the person who is capable of representing the interest of the labour employed in the Port and nothing else. The petitioners want the 2nd respondent to conduct an enquiry to decide as to who is the majority Union. Such an enquiry is foreign while exercising the power under Section 3 of the Major Port Trusts Act, 1963. In such circumstances, the relief sought for is clearly misconceived. The writ petitions are therefore dismissed with costs. "this judgment was challenged in Writ Appeal No. 3811/95. The appeal was dismissed affirming the abovesaid decision of this Court. 4. Such an enquiry is foreign while exercising the power under Section 3 of the Major Port Trusts Act, 1963. In such circumstances, the relief sought for is clearly misconceived. The writ petitions are therefore dismissed with costs. "this judgment was challenged in Writ Appeal No. 3811/95. The appeal was dismissed affirming the abovesaid decision of this Court. 4. It is clear from the judgment of this Court that the view of this Court as affirmed is as follows :"under Section 3, the Central Government is entitled to nominate 17 trustees to the Board of Trustees of the 2nd respondent of whom not less than two shall be persons capable of representing the interests of the labour employed in the Port. The statute also provides that while doing so, the Central Government shall obtain the opinion of the Trade Unions composed of the persons employed in the Port which Unions are registered under the Trade Unions Act. The statute thus clearly gives ample power and discretion to the Central Government, subject to other statutory requirements, to nominate any two persons of its choice to the Board of Trustees of the Port, who, in the opinion of the Central Government, are capable of representing the interests of the labour employed in the Port. The statute only requires that, before doing so, the Central Government may obtain the opinion of the Trade Unions composed of the persons employed in the particular Port. A reading of the section makes it abundantly clear that the discretion of the choice of the person to be nominated absolutely vests in the Central Government and the Central Government may choose the person. The Trade Unions have no control in the matter nor in the exercise of the choice of personnel to be so nominated except to the extent mentioned in the proviso to the section. "it can also be held that the majority membership of a Union is no consequence in choosing the Trustees to represent the interest of the Labour. 5. The Ist respondent was to nominate the fresh Board of Trustees from 1-4-1995 for a period of two years. In W. P. No. 7538/95, the 4th respondent had secured stay of making nomination by the Central Government of Trustees to represent the interest of Labour employed in Port on the expiry of the previous term by 31-3-1995. 5. The Ist respondent was to nominate the fresh Board of Trustees from 1-4-1995 for a period of two years. In W. P. No. 7538/95, the 4th respondent had secured stay of making nomination by the Central Government of Trustees to represent the interest of Labour employed in Port on the expiry of the previous term by 31-3-1995. After the writ petition was disposed of as also the appeal, by Annexure-C, dated 26-10-1995, the petitioner herein and another were nominated to the Board of Trustees. ( 6 ) NOW, while the matters stood thus, the present proceedings were initiated on 19-8-1996,by issuance of Annexure-E. It proposed to withdraw the nomination of the petitioner from the Board of Trustees. It expressed the following reasons: (i) that the petitioner was nominated to represent the Labour employed in the Board on the basis of the verified membership of registered Trade Unions of Port Workers in 2nd respondent Port as on 31-12-1992. (ii) that on the basis of the verified membership as on 31-12-1994, the New Mangalore Port Staff Association is not entitled to any of the two seats to represent the Labour employed in the Port. "the Show Cause Notice reveals that the nomination was made on the basis of the varified membership as on 31-12-1992, that on the basis of the subsequent ascertainment as on 31-12-1994, the Government has formed an opinion that the New Mangalore Port Staff Association is not entitled to "any" of the two seats. The inference one draws from the language of the notice is that neither of the two nominated from the Association is entitled to be nominated to the seat. It also discloses that the nomination was made only on the basis of the verified membership, it further discloses that the formation of the opinion arrived at in October, 1995, was solely on the basis of strength of the membership of the Union. ( 7 ) BEFORE proceeding, we may advert to certain factual aspects. The nomination that has to be made is to a Board whose life is to expire with 3l-3-1997. The nomination of the "labour interest nominees" were made after this Court declared on l3-l0-1995 in W. P. No. 7537/95 and W. P. No. 7538/95 as follows:"5. ( 7 ) BEFORE proceeding, we may advert to certain factual aspects. The nomination that has to be made is to a Board whose life is to expire with 3l-3-1997. The nomination of the "labour interest nominees" were made after this Court declared on l3-l0-1995 in W. P. No. 7537/95 and W. P. No. 7538/95 as follows:"5. The relief prayed for by the petitioners in the writ petitions is as follows :" (a) Issue a writ of mandamus or any other appropriate writ/order/direction, directing the respondents to determine the majority and representative character of Trade Unions functioning in the 2nd respondent Port either through the Check-off system in vogue in the 2nd respondent Port or through the Secret Ballot to be conducted among the workers of the 2nd Respondent Port through the agency of the 3rd Respondent and then appoint the Labour Representative on the 2nd Respondent Trust under Section 3 of the Major Port Trusts Act. "the grant of this relief would amount to virtually rewriting Section 3 of the Major Port Trusts Act, 1963. As the statute now stands, there is nothing in Section 3 of the Act which provides that the Central Government should nominate to the Board of Trustees of the Port only the representative suggested by the majority Union. This is a wishful thinking of the petitioners oblivious of a statutory provisions. . . . . . "obviously this Courtruled that strength of Union shall not be a criterion to make the nomination. In the instant case, the nomination was made only on 26-10-1995. It should be assumed that the nomination was made by the competent authority in terms of the judgment after assessing the suitability of the person to be nominated and without reference to the strength of the Union to which, he belongs. Annexure-C order, making the nomination, merely states as follows:"__the Central Government hereby appoints (1) Shri M. Lokayya Shetty and (2) Shri N. Ramachandra Gowda as Trustees to represent labour employed in the Port on the Board of Trustees for the Port of New Mangalore. . . . . . . . "it does not at all refer to the fact that these nominations were made because they were Office-Bearers of any Union nor that the said Union has majority of workers as its members. . . . . . . . "it does not at all refer to the fact that these nominations were made because they were Office-Bearers of any Union nor that the said Union has majority of workers as its members. It is also to be noted that on the date of making the nomination, i. e. , on 26-10-1995, the Central Government should be presumed to have had the membership strength of the Union as on 31-12-1994. ( 8 ) NOW against all these factual premises, there is the following statement made in the Statement of Objections filed by the 1st respondent:". . . The first petitioner was appointed on the basis of verified membership figures of registered trade unions operating in the Port as on 31-12-1992, since two unions viz. , Karnataka Dock and General Workers' Union (HMS) and the New Mangalore Port Staff Association (HMS) were both entitled to one seat each as per that verification. Thereafter, the verification report as on 31-12-94 was received by this respondent and the entitlement of the Unions as per that verification report was assessed. It was found that as per the fresh report, the Kanara Port Workers' Union and the Karnataka Dock and General Workers' Union became entitled to one seat each. . . . "it also states that the nomination to the Board of Trustees of the Port, had always been made relying on the Formula called Nanda Formula which reads as under :"where there is only one seat, it of course goes to the largest organisation. Where there are two seats to be allocated, both should go to the largest organisation provided it is not less than 60% of the combined strength in terms of verified membership of all the organisations and the strength of the next largest organisation is less than, half of that of the largest organisation. "this formula is relied on by the 1st respondent to make the nomination rather than the statutory provision on the interpretation placed by this Court on the meaning and scope of the statutory provision. ( 9 ) THERE is no statutory backing for the above said formula. Section 3 of the Major Port Trust Act contemplates that the nominee must be a person who is capable of re-presenting the particular interest to represent which he is to be nominated. ( 9 ) THERE is no statutory backing for the above said formula. Section 3 of the Major Port Trust Act contemplates that the nominee must be a person who is capable of re-presenting the particular interest to represent which he is to be nominated. This provision is incorporated in order to enable the Government to nominate such person as well who will have specialised knowledge in the field which he has to represent and whose presence will be for enhancing the utility of the Trustee Board as well. The Government can also nominate such experts in the Board who can grant valuable assistance and advice in the matter of administration. There may be circumstances when the Government feels that an eminent Labour leader or trade unionist must be in the Board of Trustees to extend the benefit of his vast experience and knowledge. But, viewing by strength of the Union alone as a criterion, it may not be possible to achieve this object. It was perhaps this reason why the statute was so framed, and the discretion was left to the Central Government. The proviso, referred to above, does not also indicate that the rule of majority should prevail. If that be so, by introducing the Nanda Formula, the Executive cannot frustrate the object that the statute wanted to achieve. No executive orders or rules can be issued which will whittle down the statutory rules or provisions of the enactment. Nanda Formula has no statutory backing and it cannot be given primacy over the statutory rules. If the rule of majority now laid down by the Nanda Formula is followed, these laudable objects desired to be achieved by the statute would be lost. The administration of a Port involves serious and important mattes and consideration. A mere strength of majority should not always be the consideration to make the nomination. Certainly one cannot always find fault with if the same is adopted as a guidelines and if it is shown that the person nominated is otherwise capable. But, if it is laid down as the rule, then there is no alternative but to hold that that one will be sacrificing quality for the sake of majority. This is not always desirable in the larger interest of such institutions. But, if it is laid down as the rule, then there is no alternative but to hold that that one will be sacrificing quality for the sake of majority. This is not always desirable in the larger interest of such institutions. ( 10 ) NOW, in the instant case, as noticed, Annexure-C does not disclose that the individuals nominated earned their nomination on the basis of the majority strength of their Union on any particular time. In fact, the nomination was done after the pronouncement of the judgment by the Court wherein this Court categorically ruled that the rule of majority cannot govern the right for nomination. The declaration in that behalf was made by this Court on 13-10-1995. The nomination was made after the judgment on 26-10-1995. In such circumstances, the nomination should be deemed to have been made in accordance with the direction and observation made by this Court. If that be so, it must be held that nominees under Annexure-C earned the nomination because the Central Government formed its opinion that these persons were capable of representing the interest of the Labour. If so, the Central Government cannot now introduce an element of consideration considered to be irrelevant by this Court by judicial decision, to form such opinion as the basis for such nomination. The same would be totally illegal and opposed to the binding decision and unsustainable in law. ( 11 ) NOW, in the impugned order, the 1st respondent has stated thus :"whereas the Central Government has thoroughly examined the points raised by Shri Gowda and observe that the contentions of Shri Ramachandra Gowda are not acceptable as the Government has always been forming an opinion about the representative character of union only on the basis of the verified mebership reports furnished by Ministry of Labour and the Government is empowered under Section 8 (i) (aa) of the Major Port Trusts Act to remove a trustee before the expiry of his term as trustee in case the Government forms an opinion that he has lost his representation among the workers. Accordingly, the Central Government hereby removes Shri. N. Ramachandra Gowda a representative of New Mangalore Port Staff Association from the Board of Trustees for the Port of New Mangalore under Section 8 (i) (aa) of the Major Port Trust Act. "the reasons given are totally irrelevant. Accordingly, the Central Government hereby removes Shri. N. Ramachandra Gowda a representative of New Mangalore Port Staff Association from the Board of Trustees for the Port of New Mangalore under Section 8 (i) (aa) of the Major Port Trust Act. "the reasons given are totally irrelevant. First of all, as can be seen from Annexure-C, the two persons nominated were not shown to have been nominated because of the strength of the Union which they allegedly represented. The order does not at all refer to any trade Union. Secondly, this Court had frowned upon adopting the said consideration as a yardstick to make the nomination. If so, the reason assigned for removal of the petitioners from the Board of Trustee is totally irrelevant and arbitrary. This is a case of misuse of the power vested in the 12 respondent under Section 3 (1) of the Act. ( 12 ) THAT apart, Annexure-E states inter alia as follows : "whereas the Central Government on the basis of the above said verified figures as on 31-12-1994 have formed an opinion that the New Mangalore Port Staff Association is not entitled to any of the two seat to represent labour employed in the Port. "the Show Cause Notice state that the Association referred to above is not entitled to represent "any of the two seats". It means, both the nominees under Annexure-C should demit the office. If so, one fails to understand as to how the 1st respondent has chosen the petitioner be the person to demit the office. This also shows an arbitrary and capriciuous excercise of the power perhaps guided by the 4th respondent. ( 13 ) LASTLY, we may note one other circumstance as well. The term of the Board of Trustees commenced from 1-4-1995. It is to expire with 31-3-1997. The petitioner was nominated on 26-10-1995. The Show Cause Notice Annexure-E was issued on 19-8-1996 and the impugned order was made on 28-10-1996. That is, by the time the major part of the term has expired. The petitioner, according to the lst, respondent, represented a minority Union. Despite such minority nature of the Union the petitioner has effectively represented the interest of the Labour. There is no allegation in Annexure-E Show Cause Notice that because of the minority strength of the petitioner's Union, the interest of the Labour has suffered in any manner. The petitioner, according to the lst, respondent, represented a minority Union. Despite such minority nature of the Union the petitioner has effectively represented the interest of the Labour. There is no allegation in Annexure-E Show Cause Notice that because of the minority strength of the petitioner's Union, the interest of the Labour has suffered in any manner. There is no need to change the nomination merely because it wanted the 4th respondent on the Board. The wisdom of the utility of such late shuffling of the nomination is not traceable to any legal basis except to serve the private interest of the 4th respondent. This is an instance where the 1st respondent has exercised its power to cater the interest of the 4th respondent. It has harped on the very same yardstick disapproved by this Court, only with an intention to advance the interest of the 4th respondent. When this Court has in unmistakable terms stated that the rule of majority cannot control nomination, the lst respondent cannot still adopt the rule. Besides, as long as the lst respondent has no case, that due to the minority character of the Union which the petitioner represented, the interest of the Labour has suffered and he could not effectively represent that interest of the Labour on the Board of Trustees, it is unnecessary that the lst respondent should embark, upon a reshuffling activity at the fag end of the term of the Board of Trustees and disturb its proceeding. ( 14 ) I, therefore, quash Annexure-K order and hold that the nomination of the petitioner made as per Annexure-C cannot be revoked for the reason stated in Annexure-E and Annexure-K. The petitioner is entitled to his cost from the lst and 4th respondent, Advocate's fee is Rs. 1,500/ -. Order accordingly. --- *** --- .