Andhra HC (Pre-Telangana)
B. Issac Prabhakar (Petitioner In ... vs Government Of Andhra Pradesh, Rep. By ... on 30 November, 1995
Equivalent citations: 1995(3)ALT695
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
ORDER M.N. Rao, J.
1. Common questions of facts and law arise for adjudication in this batch of five writ petitions and so they are disposed of by this common judgment. The seven petitioners in these five writ petitions were appointed by the Government of Andhra Pradesh by a notification issued in G.O.Ms.No.122, Transport, Roads and Buildings (Tr.III) Department, dated 28-7-1985 as Directors in the Andhra Pradesh State Road Transport Corporation under Section 5 of the The Road Transport Corporations Act, 1950 (for short "the Act"), for a period of two years from the date of the issue of the order. By another order in G.O.Ms.No.123 of the same date all the seven were appointed as Chairmen of Zonal Advisory Councils, the term of which was co-terminus with the term of the Board of Directors. By separate orders in the form of letters dated 25-9-1958 (sic. 25-9-1995, the Secretary to Government of Andhra Pradesh informed each of the petitioners as follows:
"I am directed to state that it has been decided by Government to reconstitute the existing Board of Directors of the Public Sector Undertakings. In pursuance of the above decision you are hereby given notice under sub-section (2) of Section 8 of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950) that on the expiry of the one month from the date of this letter, your appointment as Director of Andhra Pradesh State Road Transport Corporation and as Chairman, Zonal Advisory Council, Hyderabad City Zone of A.P. State Road Transport Corporation stands terminated."
Challenging the legality of the aforesaid orders, the present writ petitions have been filed.
2. In the affidavit filed in support of each of the writ petitions, it is averred in brief that the third respondent Sri N. Chandrababu Naidu, Chief Minister of Andhra Pradesh "engineering a coup and manoeuvred to become Chief Minister of our State by removing Sri N.T. Rama Rao on whose image the 3rd respondent and 213 other M.L.As. were elected on behalf of Telugu Desam party", and as all of them protested, the third respondent bore grudge against them and therefore, the third respondent" decided to remove all the Chairman and members of various Corporations who are still loyal to Sri N.T. Rama Rao. The 3rd respondent has also "lured several Telugu Desam M.L.As. and other important persons to support him promissing that he would appoint them as Chairmen and members of various Corporations after replacing the Chairmen and members who are loyal to Sri N.T. Rama Rao." It is further averred that on the instructions of the third respondent the impugned order were issued and that the third respondent "is on record that he will remove such of those Chairmen who refuse to resign. The third respondent is bent upon passing such an order immediately removing me and appointing men of his choice simultaneously."
3. In the counter affidavit filed by the third respondent Sri N. Chandrababu Naidu it is denied that he engineered a coup and manoeuvred to become the Chief Minister, and he stated "it only demonstrates the blind faith and passion with which the petitioner supports Sri N.T. Rama Rao." After adverting to the statutory position with regard to the Zonal Advisory Councils and the Rules framed under the Road Transport Corporations Act, it is averred in para 7 of the counter affidavit that "in view of the above mentioned facts a decision was taken to terminate the appointment of the petitioner herein, as continuation of the petitioner and others who are questioning the very legitimacy of the Government would create unnecessary friction in the administration of the State and hamper the implementation of the policies and the decisions of the Government." The Chief Minister further asserted in para 8 of the counter affidavit that" I have no personal ill-will towards the petitioner and the decision to remove him has been taken in the interest of the administration of the state."
4. In the affidavit filed on behalf of the Government seeking vacation of the interim stay granted by this Court, it is asserted, inter alia, that the statute conferred power on the Government and in exercise of the discretionary power the impugned orders were made taking into consideration the exigencies of the situation. The allegations made by the petitioners that the impugned orders were vitiated due to mala fides and that they are the result of the extraneous considerations, are specifically denied.
5. Sri M. Chandrasekhara Rao, the learned counsel for the petitioners has urged before us that under Section 8(2) of the Road Transport Corporations Act, the power conferred on the State Government to terminate the appointment of any director cannot be exercised in an arbitrary manner. The notice period of not less than one month for terminating the appointment would come into play only when a Rule was made in that behalf and not otherwise with the consequence that the Government has no power to terminate the appointment of any person as director in the absence of a Rule. Rule 4 of the Rules made under the Act specified the tenure as two years and until that period expires no incumbent can be removed from the office and it was in the legitimate expectation of every one appointed under Section 5(2) read with Rule 4 to continue in office for the said period of two years and if they were to be removed, the same must be preceded by notice showing the reasons and an opportunity to submit explanation. As the third respondent, the Chief Minister, bore grudge against the petitioners for their support to the former Chief Minister Sri N.T. Rama Rao, the impugned orders have been issued activated by extraneous considerations and mala fides. It is also urged by the learned counsel that Section 8(2) has to be interpreted in the light of the statement of objects and reasons, which indicate that Section 8(2) was introduced in the statute "for removal of the Chairman or any other Director on grounds of misconduct (including abuse of power and corruption)."
6. In opposition to this, it is urged by Sri Chalameshwar, the learned Additional Advocate-General that the Chief Minister bears no ill-will or animosity against any of the petitioners, but when the legitimacy of the Government was challenged by the petitioners who are entrusted with important statutory functions bearing on the implementation of the policy decisions concerning providing efficient transport facilities to the needy general public, it would not be in the public interest to continue them any longer. There is no requirement under Section 8(2) to issue notice and afford an opportunity before determining the tenure of any director or chairman. The absence of Rule under Section 8(2) prescribing notice period is not a factor disabling the Government from exercising the power to terminate an appointment under that provision.
7. Sri Raghuram, the learned counsel appearing for the third respondent, while confining his arguments, very rightly, to the question of mala fides, has urged that unnecessarily the aspect of mala fides was brought in, and he has drawn our attention to the counter affidvit filed by the Chief Minister in which these allegations are specificially denied. The averments in the affidavits filed by the petitioners, according to the learned counsel, clearly point to the hostile attitude of the petitioners to the Government, and so, the Government cannot afford to leave them to continue in offices without jeopardising the public interest. The petitioners cannot invoke the doctrine of legitimate expectations since as part of the spoils system they secured entry into these offices and when they are directed to leave they cannot put up any resistance.
8. Before considering the rival contentions urged by the learned counsel on both sides, it is necessary to notice the relevant statutory provisions. By Section 3 of the Act, the State Government was empowered to establish a road transport corporation for the whole or any part of the State. By sub-section (1) of Section 5, the management of the corporation is vested in Board of Directors. Sub-section (2) lays down that the Board shall consist of a Chairman and such other Directors, being not less than five and not more than seventeen, as the State Government may think fit to appoint. Section 6 specifies disqualifications' for being chosen as, or for being a director of a corporation. Section 8(1) prior to the Amendment Act No. 63 of 1982, conferred power on the State Government to remove from office chairman or any director of the corporation if he becomes subject to any of the disqualifications mentioned in Section 6; or without excuse sufficient in the opinion of the State Government, is absent from more than four consecutive meetings of the Board. Sub-section (2), which is relevant, is in the following terms:
(2) The State Government may terminate the appointment of any Director after giving him notice for such period (being not less than one month) as may be prescribed:
Provided that the appointment of a Director appointed by the Central Government shall not be terminated under this sub-section without the concurrence of that Government.
Section 8, as it original stood, did not contain any sub-sections. The present subsection (1) was the original Section 8. The Act was in several respects amended by the Act 63 of 1982. By Section 5 of the Amendemnt Act, Section 8 of the principal Act was re-numbered as sub-section (1), and by clause (b) of Section 5, the aforesaid sub-section (2) was inserted in Section 8 of the Principal Act. The statement of objects and reasons appended to the bill, inter alia, says:
"(c) Section 8 of the principal Act is being amended, inter alia, for including therein provisions for removal of the Chairman or any other directors on grounds of misconduct (including abuse of power and corruption) (vide Clause 5(b))."
Section 44 confers on the State Government power to make Rules for giving effect to the provisions of the Act. In exercise of that power Rules have been made entitled The Andhra Pradesh State Road Transport Corporation Rules, 1958. Rule 4 concerning term of office says "Save as otherwise provided in these Rules, the term of office of a director shall be two years from the date of his appointment." It is provided in the first proviso that a director shall notwithstanding the expiration of his term continue to hold office until his successor enters upon his office.
9. The first aspect to be considered is whether the power conferred under Section 8(2) of the Act is subject to any limitations ? From a reading of the provisions extracted supra, it will be clear that it contains no limitations. It confers power on the State Government to terminate the appointment of any director after giving him notice. Sub-section (1) of Section 8 concerns with removal from office of a chairman or any director who incurs disqualifications specified in Section 6, or who abstains without sufficient cause from more than four consecutive meetings of the Board. It is only in respect of the matters falling within the ambit of sub-section (1) i t could be legitimately said that cause should be shown for removal which necessarily implies adherence to the principles of natural justice in the form of a notice and an opportunity. In contra-distinction to sub-section (1), the statute confers by sub-section (2) the power of termination on the Government without the requirement of stating reasons. This power is analogous to the power to determine a contract of employment by notice. What type of notice is contemplated ? The requirement is "for such period being not less than one month, as may be prescribed". It is admitted that no Rule has been made prescribing notice period. Could it be said that in the absence of a Rule in this behalf the power under sub-section (2) is unavailable to the State ? Our answer is a definite "no". What all sub-section (2) lays down is that if a Rule is made, it may incorporate more than one month as the notice period. But, if no Rule at all is made, it will not disable the State Government from exercising the power unless the notice period is not less than one month. Stated differently, by issuing a notice of one month, the State Government is fully empowered to terminate the appointment of any director under Section 8(2). We do not think that it was the intention of the legislature that unless a Rule was made prescribing the notice period of more than one month, the power would be unavailable; prescription of notice period was not a condition precedent for the exercise of the power.
10. Our opinion in this behalf is fully supported by several precedents. Section 46(1) of the Electricity (Supply) Act, 1948 in specific terms lays down that grid tariff shall be fixed from time to time by the electricity board " in accordance with any regulations made in this behalf". Interpreting that Section in the context of the contention advanced that the absence of regulations would deprive the board of the power to fix the grid tariff, the Supreme Court Ruled in U.P.S.E. Board v. City Board, Mussorie, that "it only provides that the Grid Tariff shall be in accordance with any regulations made in this behalf. That means that if there were any regulations, the Grid Tariff should be fixed in accordance with such regulations and nothing more." Citing the above case, it was held by another division Bench of the Apex Court in Surinder Singh v. Central Government, that "where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to Rules, the exercise of power conferred by the statute does not depend on the existence of Rules unless the statute expressly provides for the same. In other words, framing of the Rules is not condition precedent to the exercise of the power expressly or unconditionally conferred by the statute. The expression "subject to Rules" only means, in accordance with the Rules if any. If Rules are framed, the powers so conferred on an authority could be exercised in accordance with these Rules. But if so Rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute."
11. We do not want to multiply the authorities for this well settled proposition. We, therefore, reject the contention advanced for the petitioners that absence of Rules is a vitiating factor for the exercise of power under Section 8(2).
12. We now come to construction of Section 8(2). The power conferred is not hedged in by any limitations; it is unconditional and express. Is it open for us to read into this statutory provision any limitations when none has been specified ? Where the language is plain and unambiguous no additional aids are required to understand the meaning of the words, nor is it open to embark upon an enquiry into the intention of the law-making body. This is an accepted principle of statutory interpretation (see State of U.P. v. Vijayananda Maharaj . "When language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises, for the Act speaks for itself" was the view of the Supreme Court in that case.
13. It is true that paragraph 2(c) of the statement of objects and reasons appended to the bill which ultimately emerged as Act No. 63 of 1982 by which sub-section (2) was inserted in Section 8 of the principal Act, says that the amendment was brought in for including provisions for removal of the chairman or any director on grounds of misconduct. Prima facie, this gives an impression that the original intention was to confer power on the State Government to remove chairman or a director only on grounds of misconduct. But, the Statement of objects and reasons cannot alter the plain meaning of the words of the Statute. By looking into the statement of objects and reasons, it is not open to the Court to interpret any statutory provision couched in specific and unambiguous language. It is only when the language is ambiguous or the plain interpretation leads to absurdity or perversity, resort could be had to other external aids and that too only for the limited purpose of understanding the background of the legislation so as to give effect to the legislative intention. We. have the authoritative pronouncement of the Supreme Court on this question in State of West Bengal v. Union of India, :
"It is however well-settled that the statement of objects and reasons accompanying a bill, when introduced in Parliament, cannot be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietory right vested in the State or in any way to effect the State Government's rights as owners of minerals. A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute."
14. In order to ascertain the correct position, we asked the learned Additional Advocate-General to get a copy of the bill introducing the amendment. He placed before us Bill No. 167 of 1981 in which Section 5(b) read as under:
(b) after sub-section (1), as so re-numbered, the following sub-sections shall be inserted, namely:-
"(2) The State Government may remove from office the Chairman or any other Director of the Corporation who is guilty of misconduct \ (including abuse of power or corruption):
Provided that no person shall be removed under this sub-section except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided further that the preceding proviso shall not apply-
(i) where such person is removed on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) where the State Government is satisfied for some reasons to be recorded by that Government in writing that it is not reasonably practicable to hold such inquiry; or
(iii) where the State Government is satisfied that in the interests of the security of the State it is not expedient to hold such inquiry.
Explanation:-If in respect of any such person aforesaid a question arises whether it is reasonable practicable to hold such inquiry as is referred to in this sub-section, the decision thereon of the State Government shall be final.
Provided also that no Director appointed by the Central Government shall be removed from office under this sub-section without the concurrence of that Government.
(3) Nothing in sub-section (2) shall apply in relation to any Director who is also the Managing Director, or an officer or employee of the Government or of any Corporation".
A comparison of this provision as introduced, with the provision as enacted, extracted above, is enough to indicate that the Section as enacted, was quite different from what was intended to reflect the stated objects and reasons. Clearly, the original intention at the time of introduction to make a provision for removal for misconduct or corruption had been replaced by the enacted provision which was in the nature of termination by giving notice without the need for citing any reasons or holding an inquiry. Such termination simpliciter made under Section 8(2) carries no stigma.
15. No arbitrariness is involved in the action. The constitutional mandate incorporated in Article 14 that all administrative or statutory actions should be free from arbitrariness, has no application, in our considered opinion, in respect of appointments made or terminations effected on political consideration which is part of the spoils system. When persons are appointed as chairmen of different public corporations, political considertions undoubtedly weigh to a very large extent. When such incumbents cannot be compared with holders of civil posts, in the matter of qualifications, method of appointment and conduct in office, can it be said that their mode of termination alone should be analogous to civil servants? We do not think so. Politicians owing allegiance to the party in power very often are appointed to fill offices of the present type. They retain the liberty to canvass for the party in office and also openly criticise the opposition parties. Normally, only persons, who in the opinion of the Chief Minister, lend support to the party in power, are appointed to such offices. They last as long as they retain the confidence of the Chief Minister. When the confidence is shaken, they cannot expect to remain in office. Equality of opportunity in matters of public employment enshrined in Article 16 of Constitution has absolutely no relevance to this type of appointments. The petitioners owed their appointments because of their allegiance to the former Chief Minister, which is self-evident from the averments in the affidavits filed by them in support of the present writ petitions. It was not even their contention that on the basis of their merit evidenced by any special qualifications, they were chosen to fill these posts. Obviously, such a contention was unavailable to them. In such a situation would it be open for them to question the order of termination on the ground that they became victims of arbitrary action? The observations of the Supreme Court, although made in a different context concerning the removal of standing counsel for the High Court at Allahabad, are opposite. In State of U.P. v. State Law Officers Association, the Supreme Court observed:
"The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be no considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door.".
16. As the posts in question are not akin to civil posts in any way under Articles 309 and 310 of the Constitution, the protection guaranteed to the holders of civil posts under Article 311, is not available to the petitioners. The doctrine of pleasure incorporated in Article 310 in respect of members of civil service or holders of civil posts is regulated by the protections guaranteed under clauses (1) and (2) of Article 311. We cannot, therefore, in judging the legality of the impugned orders, go by the analogy of the pleasure doctrine incorporated in part XIV of the Constitution of India.
17. As members of the Board of Directors of the Andhra Pradesh State Road Transport Corporation, the petitioners have a large role to play in the decisions taken by the Corporation, in which the management superintendence and control of the entire corporation is vested. The powers of the corporation under Section 19, inter alia, encompass acquisition and holding of property, preparation of schemes, purchase of vehicles, entering into contracts besides operating road transport service in the State. To a large extent the prestige of the Government depends upon the successful management of the corporation by the Board of Directors. On their own showing the petitioners have challenged the legitimacy of the present Government in power. Nothing more is needed to infer the disinclination of the petitioners to strive for successful functioning of the corporation. The clash of interests between the party in power and the petitioners is thus self-evident. When the office does not impose any constraints on them to indulge in political activity, it does not require any indepth inquiry or analysis to conclude in what light the Government would be shown by the petitioners. No Government can afford to allow any person to remain in office and criticise its policies and challenge its legitimacy.
18. The orders of termination cannot be characterised an undemocratic on the ground that criticism is stifled. No one can stop the petitioners from criticising the Government, but occupying the present office they cannot do so. When services of certain persons occupying civil posts were terminated on the ground that they were indulging in subversive activities, the contention advanced by them that they have the fundamental right to form associations under Article 19(1) (c) of the Constitution, was rejected by the Supreme Court in P. Balakotaiah v. Union of India, :
"The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their services have been terminated; but that involves, apart from Article 311, no infringement of any of their constitutional rights. The appellants have no doubt a fundamental right to form associations under Article 19(1)(c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Article 311 arises. The contention of the appellants must also be rejected.".
The same analogy in a slightly different form applies to the petitioners. Their political activity and their right to criticise the Government is in no way affected by the impugned orders.
19. The next argument advanced for the petitioners concerns the application of the doctrine of legitimate expectations. The contention put forth before us in that when the petitioners were appointed for a period of two years in accordance with Section 5(2) read with Rule 4, it was in their legitimate expectation to continue for the full term and their removal could be valid only if it fell within the ambit of sub-section (1) of Section 8 which speaks of disqualifications, but if power is sought to be exercised under Section 8(2), it could only be as a measure of punishment. The contention, in our view, is untenable. We have already held that an order passed under Section 8(2) does not carry any stigma, since it is not the result of any inquiry into the conduct of the incumbent. The power of the State Government under Section 8(2) to terminate the appointment of any director, cannot be read as subject to the provision contained in Rule 4 specifying the tenure as two years. The Rule cannot override the Act or curtail the ambit of power conferred by the Statute. The specification of tenure as two years under the Rules cannot, therefore, confer on the petitioners any right to continue in office once the Government has invoked the power under Section 8(2) by terminating their appointments. In Union of India v. Hindustan Development Corporation, the Supreme Court quoted with approval, the views of the High Court of Australia in Attorney General for New South Wales' case (1990 (64) Aus. LJR 327):
"To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Courts adrift on a featureless sea of pragmatism. Moreover, the notion of a letigimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law."
Sounding a note of caution, the Supreme Court observed:
"If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-Known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the Court must lift the veil and see whether the decision is violative of these principles warranting interference."
We have already held that no element of arbitrariness was involved when the impugned orders were issued by the State Government and, therefore, the petitioners have no fundamental right to remain in office. That being the case, there is no warrant to apply the doctrine of legitimate expectation. One of the recognised tests for application of this doctrine is whether the circumstances call for a fair procedure (6-A), See: Legitimate Expectations: A conceptual Analysis - Law Quarterly Review - 0I.IO8 (January 1992) P.79. Principles of natural justice are only means to an end and not an end in themselves. Where the statute does not provide for application of principles of natural justice, the Court will infer their application to avoid unfairness and injustice. What fairness requires "depends on the nature of the investigation and the consequences it may have on persons affected by it." (see (1975) 1 WLR 1686). No unfairness, we are sure, ensues in the absence of notice to the petitioners in the present case. Judged by the nature of the office the petitioners are occupying, the manner in which the office was filled in and the statutorily ordained mode of termination coupled with their attitude to the legitimacy of the Government headed by the third respondent, termination without notice to show cause and enquiry can hardly be termed unfair.
20. We now come to the contention concerning mala fides. The argument advanced for the petitioners is that no lapses were pointed out in their functioning and their termination was for extraneous reasons amounting to legal mala fides. We find it hard to accept this contention.The termination was brought about not because of any misconduct or inefficiency. The petitioners do not canceal the fact that they are still loyal to Sri N.T. Rama Rao, the former Chief Minister .While denying the allegation of any personal animosity or ill-will the third respondent (Chief Minister) has given the reason for termination as "continuation of the petitioner and others who are questioning the very legitimacy of the Government would create unnecessary friction in the administration of the State and hamper the implementation of the policies and the decisions of the Government." In the reply affidavit, this has not been denied by the petitioners. The petitioners have not reconciled to the legitimacy of the Government in power, and this attitude of theirs renders their continuance in the present office untenable. The stated ground in the counter affidavit by the third respondent cannot, therefore, in the context of the offices in question, be considered to be an extraneous one.
21. The learned counsel for the petitioners has relied upon the following passage in S.R. Venkataraman v. Union of India, :
"..............it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or bad faith. As was stated by Lord Goddard C.J. in Pilling v. Abergele Urban District Council (1950)1 KB 636 where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the Court to which an appeal lies can and ought to adjudicate on the matter."
The present fact-situation is not governed by the above principle of law. We have already analysed Section 8(2) and found that it is not subject to any limitations nor does it obligate the Government to give reasons for the termination. When the termination is legally justified by the petitioners' own conduct and attitude, the exercise of power under Section 8(2) cannot be faulted on the ground of mala fides on the part of the third respondent.
22. For these reasons, all the writ petitions fail and accordingly, they are dismissed. The interim orders passed earlier in all the writ petitions stand vacated. No costs.