Jammu & Kashmir High Court
Jagat Pal Cheema vs Cantonment Board And Ors. on 15 February, 2006
Equivalent citations: 2006(2)JKJ631
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. The facts which are not in dispute are as under:
That the petitioner was working as a Sectional Officer with the respondent. He was subjected to a departmental inquiry. After the completion of the inquiry, he was removed from service. He challenged the order of removal from service before the Appellate authority. The Appellate authority dismissed the appeal of the petitioner, vide its order dated 22.11.1998. Petitioner challenged the dismissal order dated 22.11.1998, by way of filing SWP No. 1960 of 1998, on various grounds, including that the Punishing Authority before imposing the punishment did not furnish him a copy of the inquiry report. This Court disposed of the aforesaid writ petition by passing the following order;
.... this petition as such is allowed. The punishing authority would re-decide the matter. The petitioner would be afforded reasonable opportunity of hearing and this hearing would be prospective in nature. As to what relief the petitioner is entitled to, would depend upon the decision which the concerned authority takes now. The relationship of master and servant shall stand revived for this limited purpose i.e for giving opportunity of hearing to the petitioner. As indicated above, what benefit he is to get would depend upon the decision which the respondents may ultimately take. Let the hearing be given on 2nd May, 2001. On this date, the petitioner would appear before the punishing authority. The said authority would take the decision on this date or on any other date to which the hearing is adjourned. Effort be made to settle the issue before 31st May, 2001.
2. In pursuance of the aforesaid order passed by this Court, the matter was placed before the Cantonment Board and the Cantonment Board in its meeting held on 18-05-2001, afforded an opportunity of hearing to the petitioner. After hearing the petitioner, the members present in the meeting by majority decision decided to re-instate the petitioner in service. However, the President of the Board and Major Anil Negi, GE, Ex-Officio Member voted against re-instating the petitioner in service by stating that earlier punishment imposed was correct. In the Board meeting, CEO advised the Board President that the matter be referred to GOC-in-C, Northern Command. Accordingly, the matter came to be referred to GOC-in-Chief. The GOC-in-C, Northern Command, on receipt of the matter, issued a show cause notice dated 06-08-01 to the Cantonment Board, Jammu, while exercising the powers vested under Section 52 of the Cantonment Act, 1924 (hereinafter called the Act) in respect of a decision taken by the Board by their Cantonment Board Resolution (hereinafter called the CBR) dated 18th May, 2001. The Cantonment Board, filed a reply to the show cause notice. The GOC-in-C, vide impugned order set aside the order of CBR dated 18/05/01, re-instating the petitioner in service and approved the earlier penalty of dismissal.
3. The petitioner has filed this petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu & Kashmir for quashing Order No. 6/33/B/Appeal/Cantt./JPS/DE/NC dated 22nd November, 2001 passed by General Officer Commanding in Chief, Northern Command, respondent-3.1 have heard the learned Counsel for the parties and perused the record.
4. The primary question which falls for determination in this petition is whether the Board President can override the majority decision and GOC-in-Chief on reference can set aside the majority view.
5. Before considering the submissions of the learned Counsel for the parties, it will be appropriate to notice the relevant provisions of the Statute. The procedure to hold the meeting has been laid down in Sections 37, 39, 40, 43 and 51 of the Act. These are reproduced below:
Section 37. Meetings:
I/Every Board shall ordinarily hold at least one meeting in every month on such day as may be fixed, and of which notice shall be given in such manner as may be provided, by regulations made by the Board under this chapter.
2/The President may, whenever he thinks fit, and shall, upon a requisition in writing by not less than one-fourth of the members of the Board, convene a special meeting.
3/Any meeting may be adjourned until the next of any subsequent day, and an adjourned meeting may be further adjourned in like manner.
Section 38....
Section 39. Quorum:
1/The quorum necessary for the transaction of business at a meeting of a Board (in which there is more than the elected member) shall be five or one half of the number of members of the Board actually holding office at the time, whichever is the greater number ;
(1-A) The quorum necessary for the transaction of the business at a meeting of a Board constituted under Sub-section (5) of Section 13 or under Sub-section (1) of Section 14 shall be two) (2) If a quorum is not present, the President (or in the absence of the President, the Vice-President or in the absence of both the President and Vice-President, the Secretary) shall adjourn the meeting and the business which would have been brought before the original meeting if there had been a quorum present thereat shall be brought before, and may be transacted at an adjourned meeting, whether there is a quorum present or not.
Section 40. Presiding Officer-
In the absence of -
a/ both the President and the Vice-President from any meeting of a Board in which there is more than one elected member, b/ the President from a meeting of a Board constituted under Sub-section (5) of Section 13 or Sub-section (1) of Section 14, the members present shall elect one from among their own number to preside.
Section 43 Methods of deciding questions:
1/A11 questions coming before a meeting shall be decided by the majority of the votes of the members present and voting.
2/In the case of equality of votes, the (person presiding over the meeting) shall have a second or casting vote.
3/The dissent of any member from any decision of the Board shall, if the member so requests, be entered in the minutes, together with a short statement of the grounds for such dissent.
Section 51.
Power to override decision of Board :- If the President dissents from any decision of the Board, which he considers prejudicial to (the health, welfare, discipline or security of the Forces) in the cantonment, he may, for reasons to be recorded in the minutes by order in writing, direct the suspension of action thereon for any period not exceeding one month and, if he does so, shall forthwith refer the matter to the Officer Commanding-in-Chief, the Command, (the reference being made, save in cases where the Officer Commanding the (Area) is himself the Officer Commanding-in-chief, the Command for the purposes of this Act), through the Officer Commanding the (Area) who may make such recommendation thereon as he thinks fit.
6. A perusal of Section 43, noticed above, makes it clear that all the questions coming in the Board meeting shall be decided by majority of the votes of the members present and voting. In the case of equality of votes, the person presiding over the meeting shall have a second or casting vote and in case of dissent of any member from any decision of the Board, it shall, at the request, be entered in the minutes, together with a short statement of the grounds for such dissent.
7. When the President dissents from the decision of the Board which he considers prejudicial to the health, welfare, discipline or security of the Forces, the procedure which he has to follow has been laid down in Section 51 of the Act.
8. A perusal of Section 51 of the Act, noticed above, shows that it is incumbent upon the President who has to preside over the meeting, if he dissents that he should record the reasons in the minutes of the meeting and also direct suspension of the action and refer the matter to the Officer Commanding-in-Chief.
9. The power of General Officer Commanding in Chief on a reference has been laid down under Section 52 of the Act, which reads as under:
Section 52 Powers of Officer Commanding-in-Chief, the Command, on reference under Section 51 or otherwise:
1/The Officer Commanding-in-Chief, the Command, may at any time a/ direct that any matter or any specific proposal other than which has been referred to the (Central Government) under section (2) of Section 51 be considered or reconsidered by the (Board); or b/ direct the suspension, for such period as may be stated in the order of action on any decision of a (Board), other than a decision which has been referred to him under Sub-section (1) of Section 51, and thereafter cancel the suspension or (after giving the Board a reasonable opportunity of showing cause why such direction should not be made), direct that the decision shall not be carried into effect, or that it shall be carried into effect with such modifications as he may specify.
2/When any decision of a Board has been referred to him under Sub-section (1) of Section 51, the Officer Commanding-in-Chief, the Command, may by order in writing;
a/ cancel the order given by the President directing the suspension of action; or b/ extend the duration of the order for such period as he thinks fit; or c/ after giving the Board a reasonable opportunity of showing cause why such direction should not be made, direct that the decision shall not be carried into effect or that it shall be carried into effect by the Board with such modifications as he may specify.
10. When a reference is made under Sub-section (1) of Section 51, the General Officer Commanding in Chief has a limited power to the extent that the General Officer Commanding-in-Chief can direct the Board to consider or re-consider the matter, but he has no absolute power to set aside the decision of the Board which has been taken by the majority in the meeting as per Section 43 of the Act. The object of Section 52 of the Act is to give powers to General Officer Commanding-in-Chief to suspend the operation of any decision or regulation of the Board considering the same as adverse to the Military interest and that would also include any policy decision taken by the Central Government.
11. In the instant case, the General Officer Commanding in Chief has not recorded any reason for setting aside the decision of the Board. The General Officer Commanding in Chief, has simply observed as under;
NOW THEREFORE, I Lt. Gen. R.K. Nanavatty, PVSM, UYSM, AVSM, GOC in C, Northern Command, in exercise of the powers vested in me under Section 52(1) of the Cantonment Act, 1924 do hereby make absolute the revocation of the decision taken by the Cantonment Board, Jammu in their meeting on 18th May, 2001 in so far as it relates to the reinstatement of Shri JPS Cheema, Ex S.O. The original decision of Cantonment Board, Jammu imposing the major penalty of dismissal on Sh. JPS Cheema shall stand.
12. It is also to be noticed that when the reference was made, the President in the meeting has not applied his mind before making a reference to the General Officer Commanding in Chief under Section 51 of the Act. It is clear from the following observation made in the minutes of the meeting;
------CEO advised the Board that the earlier enquiry conducted by the Board was a proper enquiry as per the rules and the High Court vide order dated 04-04-2001 has directed the punishing authority to re-decide the matter, and the petitioner would be afforded reasonable opportunity of hearing and this hearing would be prospective in nature...
In the minutes of the meeting, it has been further observed as under;
At this stage CEO advised the President that since matter was referred to the appellate authority i.e, GOC-in-C, Northern Command. The matter be referred to them for necessary directions.
13. This shows that the President has acted under the advice of the CEO. When the Board meeting is to be held, the members and the President have to apply their own minds, but they have not to act under the advice of the CEO.
14. For the reasons mentioned above, this petition is accepted, the impugned Order No. 6/33/B/Appeal/Cantt./JPS/DE/NC dated 22nd November, 2001 passed by General Officer Commanding in Chief, Northern Command, respondent-3 is set aside and the resolution dated 18-05-2001 of the CBR is restored.
15. Parties are left free to bear their own costs.