Central Administrative Tribunal - Delhi
Naveen Kumar vs Chief Secretary on 25 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.3126/2012
Reserved on: 27.08.2013
Pronounced on:25.02.2014
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K. Bhardwaj, Member (J)
Naveen Kumar
S/o Shri Ram Phal
R/o V.P.O.Panchi Jattan
Distt. Sonepat, Haryana. Applicant.
(By Advocate: Shri J.S.Mann)
Versus
1. Chief Secretary,
Govt. of NCT, Players Building,
I.P.Estate, New Delhi.
2. Chairman,
Delhi Transport Corporation,
I.P.Estate, Delhi-110002.
3. The Depot Manager,
Delhi Transport Corporation,
(Govt. of NCT of Delhi)
Bawana Depot, Rohini-110039. Respondents.
(By Advocate: Shri Ajesh Luthra)
ORDER
Mr.Sudhir Kumar, Member (A):
The applicant of this case was appointed under the Respondent No.3 in the Delhi Transport Corporation (DTC for short) as a Driver through the Delhi Subordinate Service Selection Board (DSSSB, for short) with effect from 04.02.2009. He underwent his medical examination on completion of requisite training of six days given by the DTC. He was placed under probation for a period of two years with effect from 04.02.2009. Even during his probation, he is said to have availed of 388 days leave, out of which 283 days was unauthorized absence, and 105 days were treated by the respondents as leave not due. The applicant contested this computation and submitted that he had sent medical documents in respect of the alleged unauthorized absence period of 283 days, and had also given prior information to the Respondent No.3 regarding the sickness of his father and of himself from time to time, through his colleagues and concerned dealing staff. He is aggrieved that in spite of this his services were terminated vide order dated 03.02.2011 through Annexure A-3, and through Annexure A-4 dated 24.03.2011 he was informed that he may submit an appeal to the Regional Manager (Rural) in the first instance as per the laid down procedure, instead of the appeal dated 03.03.2011 addressed by him to the Respondent No.2 directly. He then submitted such an appeal, and he was asked to report to the office of the Regional Manager (Rural), DTC, Peera Garhi Depot, in connection with the hearing of the applicants case on 05.08.2011 through Annexure A-5.
2. The applicant has submitted that during the course of hearing of his appeal case, he explained that he had remained on leave intermittently due to sickness of his father, as well as of himself, and there was no other member in his family to look after his father, in his absence. That being the case he had requested for being given one more chance to continue to serve the Corporation, and perform his duty with full dedication. Through an order passed on note-sheet file, a copy of which has been produced by the applicant through Annexure A-6 (pages 35 and 36 of the OA), the Regional Manager (Rural) decided to set aside his termination order dated 03.02.2011, further decided to order that he may be kept on extended probation for further one year from the date of issue of orders for his re-engagement, and his performance may be watched for the period. It was further ordered that he would not be entitled to any back-wages/monetary benefits for the intervening period from the date of his termination of his services i.e. from 03.02.2009, till the date of his re-joining service with the Corporation, which proposal was put up for approval of the Respondent No.2, so that further necessary orders may be issued. The matter ultimately came to be placed as a Board agenda item before the DTC-Board, for consideration and approval of appeal cases of such DSSSB selected Drivers, who were appointed after 04.12.2007, and whose services were thereafter terminated on various grounds, without giving any opportunity, by extending their period of probation beyond the two years of normal probation, as envisaged in the normal course. But the Board of DTC, in its meeting held on 29.08.2011, did not concur with the proposal, and directed that no action was to be taken in the matter, as is apparent from Annexure A-1, again a copy of the note-sheet produced by the applicant, as a part of the paper book.
3. The applicant then submitted his representation before the grievance hearing held by the Respondent No.2 on 19.01.2012 at the Bawana Depot, requesting to reinstate him in the services of the Corporation. On perusal of the comments of the Depot Manager of Bawana Depot, it was noted in the reply of the respondents to him that the Depot Manager had submitted that the applicant had availed 388 days leave during two years probation, out of which 283 days was unauthorized absence, and 105 days were ultimately treated as leave not due. Since he was most irregular even during his probation period, his services were terminated through letter dated 03.02.2011. It was further noted that even though he had filed an appeal before the Regional Manager (Rural) on 01.04.2011 for reinstatement, and the same was considered favourably, but that had not been agreed to by the competent authority, and the applicant had been informed accordingly. Finally, in response to the grievance raised by the applicant through Annexure A-8 dated 15.03.2012, the applicant was informed that the Respondent No.2 had seen the file and no intervention can be made in the matter at this stage. The applicant submitted another representation dated 21.06.2012 addressed to the Respondent No.2, CMD, DTC, but that request was also not accepted, and he was informed accordingly through Annexure A-10 dated 24.07.2012.
4. The applicant has, therefore, filed the present OA, taking the ground that the provisions exist in the guidelines on authorized absence and leave without pay, according to which an employee, who is not paid wages for the period of absence, cannot be removed from service, as otherwise it would amount to double jeopardy. He also took the ground that the Appellate Authority, i.e. Regional Manager (Rural), had rightly observed in his file noting that when leave is granted, even though subsequently, no adverse action can be taken for the period of absence, because it has the effect of regularizing the absence, meaning thereby that the management cannot proceed on the basis that the absence was unauthorized. He had claimed of having availed 388 days leave, which had already been regularized, and, therefore, the order of termination was unlawful. He had further sought shelter behind the file noting of the Appellate Authority, i.e. Regional Manager (Rural), who had passed an order on the file ordering the setting aside of the order of termination dated 13.02.2011 passed by the Disciplinary Authority, the Depot Manager, Bawana Depot, but that file decision had not been communicated to the applicant. Therefore, he had assailed the further action of the Appellate Authority in having forwarded his decision on the note file to his higher authority, i.e. C.M.D., Respondent No.2, seeking approval in respect of his own decision, which was unwarranted, and submitted that there was no legal requirement for the Appellate Authority to seek the approval of the higher authority, i.e. CMD, since in the instant case, the Appellate Authority was himself competent to take an independent decision while sitting in appeal, as he was handling the matter in a quasi judicial capacity and not in an administrative capacity.
5. The applicant has taken the further ground that it is a settled principle of Administrative Law, and the principles of natural justice, that he who decides must hear, while the CMD had not granted him any opportunity of being heard while rejecting his appeal. He has also submitted that without prejudice to the other grounds, since provisions exist in the Government of India guidelines dated 15.04.1959 that probationers can be granted extension of probation beyond two years of probation period, those guidelines ought to have been applied in his case as a probationer. He had further sought shelter behind the Circular dated 11.03.2011, which had been applied by the respondents with effect from 04.02.2007 retrospectively, and had submitted that his case was squarely covered by the said Circular. The applicant had further taken the ground that it was unlawful in the eyes of law for the concerned Appellate Authority, i.e. Regional Manager (Rural), to have first considered the matter himself, but then left the final decision to his superior authority, which amounts to non-exercise of its power by the Appellate Authority, because even though the authority had purported to be acting, yet, in effect, it did not do so, as it did not take the action of communicating to the applicant the decision on the basis of his own judgment. He had therefore assailed this action on the basis of following case law:
(1) Commissioner of Police vs. Goverdhan Bhanji AIR 1952 SC 15.
(2). Simms Motor Units Ltd. vs. Minister of Labour (1946) 2 ALL ER 201.
(3). State of Punjab vs. Suraj Prakash AIR 1963 SC 507 (4). Mount Corp. vs. Director of Industries AIR 1965 Mys. 143 (5). Shri Ram Vilas Service vs. R.WPd Traffic B. WPrd AIR 1948 Mad.400 (6). Rambharosa vs. Bihar AIR 1953 Pat.370 (7). Purtabpore Company Ltd. vs. Cane Commissioner of Bihar (1969) 1 SCC 308.
(8). 1991 Part-1 All India Law Service Journal page 165 para 15 in the case of Puttuswami Gowda & Ors. Vs. Honble the Chief Justice of High Court of Karnataka at Bangalore.
(10). AIR 1991 SC Page 101, Para 238 (Constitution Bench) in case of DTC vs. DTC Mazdoor Union.
6. The applicant has further taken the ground that once the unauthorized absence had been regularized by the respondent-Corporation, he has to be treated as on duty, and as such he has to be held to be undergone the required probation period of two years, and there is no question of extension of probation period beyond two years. Without prejudice to this contention, he had repeated his contention that the Appellate Authority is competent enough to enhance the period of probation to the extent of leave availed by him, and termination during the probation period is permissible only when a particular person is found unfit in the performance of work, and not for remaining on leave, which was needed by him in avoidable circumstances. He further submitted that the principles of natural justice demand a proper hearing, while Respondent No.2, CMD, has not passed any speaking order, and, therefore, the order of his dismissal is unlawful, arbitrary, perverse and disproportionate to the alleged act/omission committed by him. He had further stated that the Appellate Authority has failed to appreciate that the Disciplinary Authority has applied the Doctrine of Humanism, in the absence of grave offence of moral turpitude. In support of this contention, he had cited case of Putuswami Gowda & Ors vs. Honble the Chief Justice of High Court of Karnataka at Bangalore (supra). He had further taken the ground that the Appellate Authority has failed to take into consideration the fact that awarding impugned punishment of termination in respect of public servant amounted to his death punishment, and before awarding such grave punishment, all rules and regulations should be exhaustively applied, in respect of which he had cited the case of DTC vs. DTC Mazdoor Union, AIR 1991 SC 101 para 238. Without prejudice to the aforesaid ground, the applicant had submitted that PLD Circular dated 11.03.2011 is unconstitutional and the same is against the law laid down by DRTA Rules, 1952. In the result, the applicant had prayed for the following reliefs:
(a) set aside order dated 17-10-2011 passed by the CMD; and/or
(b) to direct the respondent to implement order dated 20.05.2011 passed by the Regional Manager (Rural) from N/2 to N/3 of the file and reinstate the applicant w.e.f.20.5.2011; and/or
(c) Set aside the consequent letters of communication dated 15-3-3012, and 24-7-2012; and/or
(d) to direct the respondents to produce PLD Circular No.PLD-113/1169 dated 11-3-11 & Government of India guidelines vide letter No.GI/MHA/OM No.44/1/59.
7. The respondents filed their counter reply on 18.12.2012. They had contested that out of 388 days absence of the applicant during his probation, while 105 days absence was regularized as leave not due to his credit, but the remaining un-authorized absence of 283 days was not at all regularized, as the applicant had not submitted any medical certificate or any leave application in the office. They had contested the applicants contention that his rest days had been counted as authorized absence, submitting that rest cannot be given until the applicant is physically present and duties are performed, as per the rules of the Corporation. It was also submitted that though the Regional Manager (Rural) had been appointed as the applicants Appellate Authority but he does not have the power to reinstate any person, for which he can only recommend to the higher authorities for consideration of the case. Accordingly, the Regional Manager (Rural) had recommended in favour of the applicant, but the higher authority had turned down his suggestion and recommendation after considering the facts of the case. It was submitted that the Appellate Authority is competent to take action only in those cases which the concerned authorities are permitted to take action as per the Rules and Regulations framed by the DTC, and as per the powers delegated to him by the Department/CMD. It was also denied that there was any violation of the principles of natural justice, and it was submitted that action had been taken against the applicant due to his unsuitability for employment, and as per the rules of the Corporation. In the result, they had prayed that the OA deserves to be dismissed.
8. The applicant thereafter filed a rejoinder on 17.01.2013, more of less reiterating his contentions, as already raised in the OA. He had specifically denied that though the Regional Manager (Rural) had been appointed as Appellate Authority, but it was without the power of reinstatement, and only with the power to recommend to higher authority for consideration of the case. He had, therefore, again prayed that the OA be allowed.
9. Heard. We have given our anxious consideration to the facts of this case. Though in the instant case the Appellate Authority had made file notings and noted in Para-2 of his Note (Page-35 of the Paper Book) that the applicant was unauthorized absent for 283 days, and had further noted in Para-3 that the applicant was an irregular worker, whose appointment was purely temporary, he had come to the conclusion that a very severe punishment had been imposed by the Disciplinary Authority without taking into consideration that:
(a) Leave had been taken by the applicant in piece-meal but not on regular basis; and
(b) DTC is facing shortage of Drivers and the appellant is a regular Driver on probation and had been selected through DSSSB.
10. Thereafter, he had ordered in the note sheet on 20.05.2011 for setting aside the orders of the termination dated 03.02.2011, and ordered for the applicant to be kept for probation for a further one year, as per the provisions laid down in Circular dated 11.3.2011, from the date of issuance of orders for reengagement, and his performance be watched for this period, but these orders on the note sheet had never been converted into a speaking order for communication. Thereafter, since further necessary action had to be taken by the PLD, he had sent the file in the form of a proposal to the CMD for granting approval for his opinion and stand, so that necessary orders may be issued by the PLD.
11. However, the impugned Annexure A-1 shows that the matter was not even fully decided by the CMD himself alone, and that it was placed before the Board of the DTC for consideration and approval, and the DTC Board gave its approval for allowing the extension of previous instructions issued on 11.3.2011 to be implemented with retrospective effect from 04.12.2007. But it was noted that the applicants termination order had been issued on 03.02.2011, more than one month prior to the date of issuance of PLD Circular dated 11.03.2011, and, in the light of that, the proposal had not been agreed to. It is seen that this decision was thereafter marked down to the Regional Manager (Rural), the Appellate Authority, also, who had initially noted his decision on 19.10.2011.
12. We find that the applicant has submitted his contention in para 5/K of his OA, and has sought protection of the PLD Circular dated 11.03.2011, which had been given retrospective applicability, to be implemented w.e.f. 03.02.2007, and has prayed that it should be applied to his case of termination dated 03.02.2011. However, in para 5/V of the OA, he has prayed exactly the reverse, and has submitted that the PLD Circular dated 11.3.2011 is unconstitutional as the same is against the law as laid down by DRTA Rules, 1952. The respondents cannot be faulted for coming to the conclusion that a person who was unauthorizedly absent for 283 days even during the period of his Probation itself was not a fit person to be retained in service. The Honble Apex Court has in a catena of cases held that the unauthorized absence cannot be said to be a minor misconduct. This law has been laid down by the Honble Apex Court in the following cases in particular North Eastern Karnataka Corporation vs. Ashappa (2006) 5 SCC 137, State of Rajasthan vs. Mohd. Ayub Naz 2006 SCC L&S 175, and Director General, RPF and Ors. vs. Ch.Sai Babu 2003 (4) SCC 331.
13. The same stand has been taken by the respondents, and, therefore, it appears that the respondent-Board of the DTC, which had considered the proposal in a meeting held on 29.08.2011, had correctly applied the law of the land, and had decided that if the concerned persons are otherwise found suitable as per the rules and regulation of the DTC, a lenient view can always be applied in their cases, but had decided not to apply such leniency to the cases like that the case of the applicant where there was a long period of unauthorized absence and there was even no proper intimation to his superiors, and the respondent-Corporation cannot be faulted on this ground.
14. We must also deal with the case law as cited by the applicant. In the case of Puttuswami Gowda & Ors. Vs. Honble the Chief Justice of High Court of Karnataka at Bangalore (supra) AIR 1991 SC 295, (the citation of which was wrongly given by the applicant), it was held that though there is imperative need for total and absolute administrative independence of the High Court, but the Chief Justice or any other Administrative Judge must ensure that in carrying out the administrative functions, he is actuated by the same principles and values, as those of the Court he is serving. It was further held that where the Chief Justice of the High Court had disregarded the authority of the Public Service Commission under Rules to make selection of the candidates for appointment to the posts of Clerks in Subordinate Courts, and had by-passed the powers of the District Judge to make appointments, and he took upon himself the powers of both the authorities, of making selection as well as appointment, in the establishment of the Subordinate Courts, the methodology adopted by the Chief Justice was manifestly wrong, and it was doubtless a deviation from the course of law. But, on humanitarian grounds, such appointees, who were already in service for 10 years, were directed to be treated as regular appointees with all the benefits of past service. This relief having been allowed by the Honble Apex Court under its extra ordinary powers under Article 142 of the Constitution of India, the applicant cannot seek extension of the same benefit to him also.
15. In the case of DTC vs. DTC Mazdoor Union (supra), it was held that the first essential rule of law, upon which our whole constitutional system is based, is that discretion, when conferred upon executive authorities, must be confined within defined limits, and the absence of arbitrary power is the first essential of the rule of law. It was held that if a decision is taken without applying any principle or without any rule, it is unpredictable, and such a decision is the antithesis of a decision taken in accordance with the rule of law. The applicant before us cannot be allowed to take any benefit of this Constitutional Bench judgment also, though the applicant had placed reliance in particular upon Para 238 of the said judgment, which reads as follows:
238. In this case the complainant, V.A. Rebello was dismissed from service under Regulation 48 by paying salary of 30 days in lieu of notice. The order does not suggest any misconduct on behalf of the complainant and it is not possible to hold that the order was passed on any misconduct. This has been challenged by the complainant by filing a complaint before the National Industrial Tribunal. Under Section 33-A of the Industrial Disputes Act, 1947 the order was challenged as amounting to dismissal from service. The Tribunal held in its award that the discharge of the respondent is not a discharge simplic- iter but in breach of section 33-A of Industrial Disputes Act and as such directed the complaint to be considered on the merits. On appeal by Special Leave this Court while considering the purpose and scope of Section 33(1) and 33(2) of the Industrial Disputes Act, held following its decision in the Workmen of Sudder Office Cinnamara v. The Management, [1971] 2 Lab LJ 620 as follows:
"That if the termination of service is a colourable exercise of the power vested in the management or as a result of victimization or unfair labour practice, the Industrial Tribunal would have jurisdiction to intervene and set aside such a termination. In order to find out whether the order of termination is one of termination simpliciter under the provisions of contract or of standing orders, the Tribunal has ample jurisdiction to go into all the circumstances which led to the termination simpliciter. The form of the order of termination, is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of dismissal for misconduct. It is, therefore, open to the Tribunal to go behind the form of the order and look at the substance. If the Tribunal comes to the conclusion that though in form the order amounts to termination simpliciter but in reality cloaks a dismissal for misconduct, it will be open to it to set aside the orders as a colourable exercise of power by the management."
16. In the case of Commissioner of Police vs. Gordhandas Bhanji (supra), the Honble Apex Court had, for the first time, laid down the principle (which was later on reiterated by the Honble Apex Court in the case of Mohinder Singh Gill & Another vs. Chief Election Commissioner; 1998 AIR 851 also) that a public authority must state its reasons for taking a decision in the public order as pronounced by it, and that it is not legally permissible for a cryptic order to be passed first, and then for the reasons and the logic used for arriving at the decision to be explained subsequently. It does not appear to us that the applicant before us can derive any benefits out of this judgment of the Honble Apex Court in the instant case.
17. In the case of Simms Motor Units Ltd. vs. Minister of Labour (supra), the Court had invalidated reinstatement order made in Labour Regulations by an Officer, who was empowered to direct reinstatement of workers who had been dismissed, for misconduct, because the officer was found to have acted in doing so under the directions from the Minister, whereas he was himself a Statutory Authority in his own right, and should have exercised his own personal discretion. The Ministers directions to the concerned Officer were merely that there should be reinstatement wherever the Appellate Board was willing, but in fact, the Court held that the Minister had no power to lay down even any such rule, howsoever reasonable it may be. Therefore, exercising of any statutory power by wrong hands, or the statutory discretion available to an officer as a matter of his own right to be dictated to by any superior officer or Minister, was frowned upon by the Court. In the instant case, the applicant cannot be allowed to take any benefit from this cited judgment, as the appreciation of the impact of the Circular dated 11.03.2011 issued by the P.L.D. was what was sought by the Appellate Authority to be clarified through his own noting dated 20.05.2011.
18. We may also note here that the Honble Apex Court has in the case of State Bank of India and Others vs. S.N. Goyal (2008) 8 SCC 92 observed as follows:-
28. ..A quasi judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the Authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the Authority will become functus officio. The order dated 18.1.1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the Appointing Authority became functus officio when he signed the note on dated 18.1.1995.
(Emphasis supplied).
19. In the case State of Punjab vs. Suraj Prakash (supra), it was held that Sections 14 and 15 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, did not empower the State Government to direct the Consolidation Officer as to how he should exercise his powers thereunder, since it was the power of the Consolidation Officer himself to take away an allottees lands, after giving him other lands of equal value or paying compensation. Here, in the instant case, it is not the case that the competent authority has not acted on and acted itself, or has acted on the direction of some other authority, and, therefore, the applicant cannot be allowed to take any benefit of this judgment cited by him also.
20. In the case of Mount Corp. and Ors. vs. Director of Industries (supra), the grievance of the petitioner was that though under the Scheme of Import Control Regulations, the power of issuing of Essentiality Certificates and making recommendations on the applications of actual users of stainless steel and other raw materials, vests exclusively in the Sponsoring Authority (Respondent No.1), Director of Industries, but under the device of a Committee constituted by the Respondent No.2, the State Government, Commerce and Industries Department, that power had been encroached upon and usurped by the Respondent No.2, State Government, and, thereafter, after having abdicated his powers, Respondent No.1, had merely acted as the mouthpiece of the Committee constituted through the Government orders in dealing with the applications for such licenses, and that since Respondent No.1 had not exercised his own independent judgment in the matter of sponsoring the applications, it was alleged that the Committee constituted by the Respondent No.2, State Government, was incompetent to decide what the Respondent No.1 had to decide, and it was held that there has been no disposal of the applications of the petitioners, as required by law, and that they had never been disposed of in accordance with law. The Honble Karnataka High Court had held that what the State Government has done by constitution of the Committee was to encroach or trespass into a field exclusively within the jurisdiction of the Union Government, and the Union Government had in its wisdom delegated those statutory powers to an officer of the State Government, Director of Industries, to issue an Essentiality Certificate for the purpose of grant of licences of import, and, therefore, it was held that the actions taken by the Committee constituted by the State Government were illegal, without jurisdiction, and null and void. In the instant case, it is not the case of the applicant that a person not empowered to take a particular decision had taken a decision, and, therefore, the applicant cannot be allowed to derive any benefit out of this cited judgment also.
21. In the case of Rambharosa Singh vs. Government of Bihar and Another (supra), it was held in Para-12 of the judgment that the act of the District Magistrate in withdrawing the settlement of the tolls from public auction at the instance of the State Government was in breach of a statutory duty cast upon him under the Bengal Ferries Act. Therefore, when Section 7 of the said Act provided that the control of all public ferries shall be vested in the Magistrate of the District, subject to the direction of the Commissioner, it was the public duty of such District Magistrate to grant the lease through public auctions to any member of the public under Bengal Ferries Act, under Section 9 of the said Act, for such term, as the Magistrate of the District in which such ferry is situated, may, with the approval of the Commissioner, direct. Since in that case, the District Magistrate had not acted in exercise of his own vested powers, but had instead acted on the instructions of and the orders of the State Government, the Honble Patna High Court held such action by the District Magistrate not to be in consonance with the provisions of the Act.
22. In the case of Shri Ram Vilas Service vs. The Road Traffic Board, Madras, by its Secretary (supra) decided by the Gentle C.J. and Bell J on 19.11.1947, it was held by the Madras High Court that nowhere in the Act is there any express provision, by which the Central Transport Board and a Regional Transport Board must act in accordance with the orders of the Government, and there is nothing in the Act from which it can be implied that the Government can, by order, direct the two Boards in the exercise of their judicial and other functions. It was, therefore, held that Rule 150 framed by Madras Government, under Section 68 of the Motor Vehicles Act, 1939, which provides that the Road Traffic Board and the Central Board shall in all matters be subject to the orders of the Government, and shall give effect to all orders passed by the Government, is not within the rule-making powers under Section 68, and it is invalid and ultra vires, and without any force or effect. That being so, it was held that the Government Order No.3898 issued by the Madras Government on 09.12.1946 was without any right or authority, and it naked of any legality, and the Boards were under no obligation to obey it. That judgment had also upheld the law that the authority, which is supposed to perform any function, whether quasi judicial or administrative, must exercise its own discretion, and cannot be issued a direction by another authority.
23. In the case of The Purtabpore Company Ltd. vs. Cane Commissioner of Bihar and others (supra), decided by the Apex Courts Division Bench consisting of JJ S.M. Sikri and K.S. Hedge, it was held that the impugned orders, though purported to have been made by the Cane Commissioner, were, in fact, made by the Chief Minister, when the parties had represented to the Chief Minister, and it was the Chief Minister who had directed the Cane Commissioner to divide the relevant area into two portions, and to allot one portion to 5th respondent of that case, and such orders were, therefore, invalid. It was held by the Honble Apex Court in the said judgment that the powers exercisable by the Cane Commissioner were Statutory powers, which could be exercised only by him, and the said power could not have been exercised by the Chief Minister, who was not an authority under clause 6 (1) of the Sugarcane (Control) Order 1966, read with clause 11 of the order, and, therefore, impugned orders were held ultra vires. In that judgment, apart from relaying on the case of Commissioner of Police, Bombay vs. Gordhandas Bhanji (supra), the Honble Apex Court had also relied upon the case of State of Punjab vs. Hari Kishan Sharma AIR 1966 SC 1081, by stating that principle very lucidly in the following two paragraphs:
12. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve then from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.
13. In Commr. of Police, Bombay v. Gordhandas Bhanji, 1952 SCR 135 = (AIR 1952 SC 16) this Court struck down the order purported to have been passed by the Commissioner of Police in the exercise of his powers under the Bombay Police Act and the rules made thereunder as the order in question was, in fact, that of the Government. The rule laid down in that decision governs the question under consideration. This Court reiterated that rule in State of Punjab v. Hari Kishan Sharma, AIR 1966 SC 1081. Therein this Court held that the State Government was not justified in assuming jurisdiction which had been conferred on the licensing authority by Section 5 (1) and (2) of the Punjab Cinemas (Regulation) Act. For the reasons mentioned above, we hold that the impugned orders are liable to be struck down as they were not made by the prescribed authority.
24. Going by the law as laid down in the judgments in para 12 cited and discussed above, we find no merit in the OA. The OA is, therefore, rejected but there shall be no order as to costs.
(A.K.Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /kdr/