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2006 DIGILAW 761 (KER)

C. E. P. Z. Workers Union v. Union of India

2006-11-06

S.SIRI JAGAN

body2006
Judgment :- S. Siri Jagan, J. A Union of workers stated to be representing workers working in the Special Economic Zones in Kakkanad governed by the Special Economic Zones Act 2005 is the petitioner herein. The petitioner challenges Ext. P1 circular issued by the Development Commissioner appointed under the Special Economic Zones Act 2005, in respect of issue of photo security passes in the Cochin Special Economic Zone (CSEZ) on the ground that it is illegal, arbitrary, erroneous, and against the principles of natural justice. The contention of the petitioner is that the Development Commissioner has no power to issue a circular like Ext.P1. The petitioner would further submit that the Ext. P1 Rules governing issue of permanent photo security passes in CSEZ is patently arbitrary and against the basic rights of the workers who work inside the Zone. He also specifically points out some of the clauses as arbitrary and affecting the workers working in the Zone and their right to engage themselves in union activities. They would submit that uncanalized powers have been vested with the Security Officer to suspend or cancel security passes issued to the workers in the area and the clauses under 11 would militate against the basic rights of a workman under the Industrial Disputes Act. He would also submit that the Security Officer has even been given the power to cancel passes, which is also likely to be misused by the Security Officer. The petitioner also relies on Ext. P5 judgment, wherein, prohibition of entry by an order against a person without giving an opportunity to state his case has been struck down by this court. 2. The learned Assistant Solicitor General stoutly opposes the Writ Petition. According to him by virtue of the provisions of the Special Economic Zones Act, 2005 and the Rules made thereunder, the Development Commissioner, who is overall administrative charge of the entire Special Economic Zone have powers to issue Ext. P1 circular so as ensure the safety of the Zone itself by ensuring that authorized persons shall only enter the Special Economic Zone. The learned Assistant Solicitor General submits that there is no provision anywhere in Ext. P1 guidelines, which would militate against any rights of the workers working in the CSEZ. P1 circular so as ensure the safety of the Zone itself by ensuring that authorized persons shall only enter the Special Economic Zone. The learned Assistant Solicitor General submits that there is no provision anywhere in Ext. P1 guidelines, which would militate against any rights of the workers working in the CSEZ. On the other hand he submits that those are only intended at ensuring absolute safety of the Zone and the life and property of the developers who are running establishments in the Zone, other workers and the properties inside the CSEZ. It is only to ensure that proper authorized personnel only shall enter the CSEZ with the provisions of the Special Economic Zones Act, 2005 as also the Rules made thereunder. 3. Before going into the contentions of the parties I may recapitulate the relevant provisions of the Act and Rules. Under S.53 of the Special Economic Zones Act 2005 a Special Economic Zone is deemed to be a territory outside the customs territory of India for the purposes of undertaking the authorized operations. Further the Special Economic Zone shall be deemed to be a port, airport, insland container depot, land station and land customs stations, as the case may be under S.7 of the Customs Act, 1962. Under S.11, the Central Government is to appoint an Officer below the rank of Deputy Secretary to the Government of India as the Development Commissioner of one or more Special Economic Zones, S.12 details the functions of the Development Commissioner. Under S.12(3), every Development Commissioner shall be overall in-charge of the Special Economic Zone. S.47 details the authorities responsible for administration of the Special Economic Zones. Under the same any authority which has been conferred upon any power or is required to discharge any function under any Central or State Act, may subject to the provisions of this Act exercise such powers or discharge such functions in any Special Economic Zone under that Act. S.46 requires that every person whether employed or residing or required to be present in a Special Economic Zone shall be provided an identity card by every Development Commissioner of such Special Economic Zone, in such form and containing such particulars as may be prescribed. 4. In exercise of the powers conferred under S.55 of the Special Economic Zones Act, 2005 the Central Government has made the Special Economic Zones Rules 2006. 4. In exercise of the powers conferred under S.55 of the Special Economic Zones Act, 2005 the Central Government has made the Special Economic Zones Rules 2006. Under R.11 the Development Commissioner is the authority for demarcating the areas falling within the Special Economic Zone. Under R.11(4) authorizes person shall only be allowed to enter the processing area of the Special Economic Zone. R.70 of the Rules reads thus: "70. Identity Cards - (1) The entry of persons to the processing area of the Special Economic Zone shall be regulated by the Development Commissioner through issue of identity cards. (2) The identity card shall be valid upto a period of five years and shall be issued, in the format given in-Form K, to the entrepreneurs and regular employees of the Units. Provided that when any employee who has been issued an identity card ceases to be in employment of the Unit or Developer, the said identity card shall be surrendered forthwith and shall be deemed to be invalid from such date. (3) Temporary identity card may be issued by the Development Commissioner to the casual visitors and contractors and a proper record of such entries shall be maintained at the Special Economic Zone Gate. 5. Now, I shall deal with the contentions of the parties in the light of the above provisions. The primary contention of the petitioner is that S.12 of the Act does not confer any power on the Development Commissioner to issue a circular like Ext. Pl. According to him, his power to regulate issue of identity cards is regulated by R.70. Nowhere in the Act or Rules is there any power conferred on the Development Commissioner to issue a circular like Ext. P1 is the submission of the learned counsel for the petitioner. The learned counsel for the petitioner would further submit that when R.70 specifically states that the identity card shall be issued in the format given in Form K, the Development Commissioner cannot put further conditions by Ext.P1 circular thereon because Form K does not contain such conditions. 6. The Assistant Solicitor General emphatically supports Ext. P1. The learned counsel for the petitioner would further submit that when R.70 specifically states that the identity card shall be issued in the format given in Form K, the Development Commissioner cannot put further conditions by Ext.P1 circular thereon because Form K does not contain such conditions. 6. The Assistant Solicitor General emphatically supports Ext. P1. According to him, in view of the special status of the Zone and its security requirements, as the officer in overall control of the zone, the Development Commissioner has to decide the suitability of the person to enter the Zone for assuring utmost security and in order to decide the same proper guidelines are absolutely essential, which alone has been provided by Ext. Pl. He would contend that the very provisions in S.46 and R.70 are sufficient powers to lay down the guidelines to decide the suitability of the persons to hold a photo identity card. 7. I have considered the rival contentions in detail. 8. The Special Economic Zones Act has been promulgated to provide for the establishment, development and management of the Special Economic Zones for the promotion of exports and for matters connected therewith or incidental thereto, as is evident from the preamble of the Act. The legislature wanted to preserve these Special Economic Zones as a special zones distinct and separate from the other parts of the country for very definite purposes. This zone is a Central Government installation, which is customs bounded, wherein, property worth crores of rupees are being brought in and warehoused. The Development Commissioner is directly in-charge of the security of the area as well as the goods, which are brought into the Special Economic Zone. Therefore, it is absolutely imperative that the Development Commissioner ensures that the person who enters the Special Economic Zone, either as employer or employee or otherwise is a person who is trustworthy enough to be so admitted for the security of the Zone. Naturally, therefore, when issuing photo identity cards the Development Commissioner has to ensure that the person to whom identity cards are issued are fit to hold such identity cards. This can only be ensured, if the Development Commissioner details the qualifications of the persons to hold such photo identity cards, as a person in the overall administrative charge of the Special Economic Zone by virtue of S.12(3) of the Special Economic Zones Act. This can only be ensured, if the Development Commissioner details the qualifications of the persons to hold such photo identity cards, as a person in the overall administrative charge of the Special Economic Zone by virtue of S.12(3) of the Special Economic Zones Act. Such a power is necessarily be read into the provisions of the Act and Rules, failing which the very purpose for which the photo identity cards are to be issued itself would be defeated. Therefore, I do not find any merit in the contention of the petitioner that the Development Commissioner does not have the power to issue Ext. P1 circular. 9. On reading of Ext. P1, I do not find anything arbitrary in any of the clauses contained therein. One of the objections of the petitioner's counsel is against Clause 9, under which no employee of one Unit should visit any other unit without the permission of the CEO of that Unit, where he or she is employed. According to him, this would amount to curtailing the rights of the employees to have Union activities within the premises of the CSEZ. 10. I am of opinion that when a particular employer has been allotted a special area as his area of operation, none of his employees should be allow to wander into the area allotted to other Developers because they would be trespassing into the other area which may pose danger not only to the safety of that other employer but also cause serious security problems inside the Special Economic Zone. As such, I do not find anything arbitrary or illegal in Clause 9. 11. Another contention of the petitioner is that under Clause 10 even a suspended employee's photo identity card can be cancelled by the Security Officer, as a result of which, the concerned workman would be even prevented from attending the disciplinary enquiry against him. I do not find any merit whatsoever in this contention. First of all, it would not be in the interest of the CSEZ to allow a suspended employee to wander around inside the Special Economic Zone. Secondly, the Security Officer does have power to issue temporary passes and if the employer of the suspended employee requests the Security Officer to issue a temporary pass to a delinquent workman for the purpose of attending any disciplinary enquiry, the purpose would be served. Secondly, the Security Officer does have power to issue temporary passes and if the employer of the suspended employee requests the Security Officer to issue a temporary pass to a delinquent workman for the purpose of attending any disciplinary enquiry, the purpose would be served. Further I find that in Clause 13 when the Security Officer proposes to cancel the pass permanently, he is to issue a show cause notice to the person effected within three days from the date of withdrawal of the pass and the Security Officer is to hear that person, consider the evidence adduced and then issue a speaking order within three days of receipt of reply. There is a further safeguard in that under clause 14, an appeal is provided to the Development Commissioner by aggrieved persons against orders of the Security Officer. As such, the challenge against Ext. P1 palpably fails. According to me, Ext. P1 contains very necessary safeguards for implementing the provisions of the Special Economic Zones Act and Rules thereunder. The objectives of the Act and Rules cannot be defeated by the whims and fancies of Trade Unions who wants to have a free ride in the Economic Zone, which is against the very interest of the Zone itself. Going by the provisions of the Act and Rules, which have been made with a specific purpose for the development of the nation itself, which cannot be whittled down for the imaginary grievances of a Trade Union. 12. The reliance of the petitioner on Ext. P5 judgment is totally out of place. First of all, the judgment was rendered in the context of a situation arising prior to the Act and Rules. Moreover the judgment only says that a person's entry into the Zone cannot be prohibited without giving an opportunity of being heard to the person concerned. In fact, Ext. P1 itself contains elaborate provisions under which, the person concerned is to be given notice, hearing etc. and also provides for an appeal against the orders of the Security Officer to the Development Commissioner. As such, Ext. P5 judgment has no application to the case under consideration. On the other hand, if at all, it would only support the provisions in Ext. P1. 13. I also have serious doubts about the maintainability of the Writ Petition itself at the instance of the Union. As such, Ext. P5 judgment has no application to the case under consideration. On the other hand, if at all, it would only support the provisions in Ext. P1. 13. I also have serious doubts about the maintainability of the Writ Petition itself at the instance of the Union. The Act and Rules do not recognize any Unions unlike in the case of Industrial Disputes Act. Therefore, it is very much doubtful as to whether a Union can maintain a Writ Petition against Ext. P1 guidelines itself. However, since I have on merits upheld Ext. P1, I am not going into details of the maintainability of the Writ Petition filed by a Union of workers. For the above reasons I do not find any merit in the Writ Petition and accordingly the same is dismissed.