Patna High Court
Brij Bihari Singh vs State Of Bihar And Anr. on 18 April, 1989
Equivalent citations: 1989(37)BLJR219
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT
P.S. Mishra and S.B. Sinha, JJ.
1. Petitioners in the two writ applications have a few contentions in common. They belonged to different establishments employers are different, impugned actions are different, yet since main 'issues are common, we propose to dispose of their respective applications by a common judgment.
2. In C.W.J.C. No. 7439 of 1988 the orders impugned has been made by the respondent No. 2 cancelling an out of turn promotion granted to the petitioner by the Board of Directors of the Bihar State Co-operative Marketing Union Limited, a Society registered under the Provision of the Bihar and Orissa Co-operative Societies Act, 1935 (hereinafter referred to as the Act"). Petitioner has been served with a Memo dated 22-8-1988 staling that an out of turn promotion given to him by the Resolution No. 18 of the Board of Directors at its meeting dated 14-2-1987 and communicated to him vide Memo No. M/4735 dated 9-6-1987 was cancelled. Petitioner in C.W.J.C. No. 2076 of 1989 has impugned the order of the respondent No. 2 therein made on review of the Resolution of the Board of Directors of Land Development Bank, Bihar, a Society registered under Bihar and Orissa Co-operative Societies Act reverting him to his substantive lower post after cancelling the out of turn promotion granted to him vide Resolution No. 4 at the meeting of the Board of the Development Bank dated 4-12-1986.
3. Many details of the facts stated by the petitioners in their respective applications and the respondents in their respective counter-affidavits are not. required for the disposal of their respective applications. It is, however, not in dispute that when the petitioners were given out of turn promotion by their respective employers, they were holding appointment and accordingly a contract of service with Co-operative Societies which had no obligation of a State under Article 12 of the Constitution of India and which determined their rules of business by such bye-laws which were framed by them or requisition which had no force of a Statute. Petitioners, thus, served their out of turn promotion under their respective employers who were not a State under Article 12 of the Constitution of India. The State Government, however, entered upon the administration of the two Societies by appointing Administrators and superseding the Societies under Section 41(6) of the Bihar and Orissa Co-operative Societies Act, 1935. The State Government then promuglated the Bihar Ordinance 17 of 1988 repealing some of the provisions of the Act including Section 41(6) thereof and introducing certain new provision including one re-numbered as Section 14 Sub-section (5) stating, "notwithstanding anything contained in any provisions of this Act, rules made thereunder and the bye-laws of the Society, the existing Managing Committee of a registered Society in respect of which the State Government has power to nominate Chairman and other members of the Managing Committee in accordance with proviso (i), (ii) and (iii) of Sub-section (4) shall cease to exist from the date of promulgation of this Ordinance and its management shall vest in the State Government. The State Government shall appoint an Administrator for the management of the affairs of such registered Society till elections are held in accordance with provisions of this Act." Exercising its power, the State Government took over the management of the aforementioned two Societies and appointed Administrators namely respondent No. 4 in C.W.J.C. No. 7439 of 1988 and respondent No. 2 in C.W.J.C. No. 2076 of 1989. The two Administrators holding management of the two Societies in their hands on behalf of the respondent-State issued the aforementioned impugned orders demoting the petitioners in one case after cancelling the out of turn promotion granted to the petitioners and in the other after reviewing the resolution of the superseded Board to grant out of turn promotion to the petitioner.
4. We are not required to detain ourselves to go into question whether a writ shall issue in the instant case or not for the reason that whatever little argument was possible on behalf of the respondents to resist exercise of this Court's power to issue writ under Article 226 of the Constitution of India on the ground that notwithstanding the supersession of the Societies and the appointment of an Administrator under Section 41(6) of the Act. Administrator after all exercised powers and functions of the Board of Directors of a Society, which is not a state is lost on account of the aforementioned amendment Ordinance which has clearly spelt out that management would vest in the State Government and that the State Government would appoint an Administrator for the management of the affairs of such register Society till elections were held in accordance with the provisions of the Act. Even with respect to the actions of the Administrator appointed under Section 41(6) of the Act as it stood before the amendment Ordinance came into force, this Court has in a Division Bench in the case of Nand Kishore Rai and Ors. v. The State of Bihar and Ors. reported in 1988 PLJR 1065 stated that this Court can interfere with the orders passed by such Administrator and that a writ application will be maintainable.
5. Section 14(5) of the Act as amended by the amendment Ordinance, however, has made a specific mention of the vesting of the management in the State Government and the appointment of the Administrator by the State Government. This has made the Administrator a servant of the State Government, impugned actions of the Administrators, therefore, are acts of the officers of a State under Article 12 of the Constitution of India. The writ applications for the said reason are maintainable.
6. Both the petitioners have questioned their demotion on the ground of violation of the principles of natural justice. It is well-settled that any action taken in violation of the principles of natural Justice is arbitrary and discriminatory and hit by Article 14 of the Constitution of lndia. Petitioners, therefore, have invoked this Court's jurisdiction under Article 226 of the Constitution on the ground of violation of their fundamental right under Article 14 of the Constitution.
7. In C.W.J.C. No. 2076 of 1989, the Administrator ostensibly issued' a notice calling upon the petitioner to show cause stating, inter alia, that the basis adopted for granting out of turn promotion was violative of natural justice, that figures relating to demand and recovery which were made the basis for out of turn promotion were, on enquiry, found incorrect (ASHUDH) and because such out of turn promotion was granted without taking into consideration seniority, etc. and without examining the record of service, it had caused adverse effect upon the administration and aptitude and efficiency of other employees. The notice has then stated that when earlier the Development Bank had notified awards for satisfactory debt recovery, there was no justification for taking a decision to grant to the petitioner an out of turn promotion, petitioner was accordingly called upon to show cause within seven days.
8. It appears that the petitioner, thereafter, demanded certain documents' and some correspondence finally brought to fore such materials which were available in the Development Bank to the knowledge of the petitioner except one set of documents about which controversy remained unresolved until the impugned order demoting the petitioner was passed. The impugned order attempts to reason why the petitioner be not demoted and states that it was not proper to accept demand of a particular year as the basis for granting promotion as it violated the equality of opportunity of employment of other employees that the demand of the year 1988-89 included the arrears of the year 1987-88 which, when examined with reference to recovery in the year 1986-87, 1985-86 and 1984-85, show that figures mentioned for the year 1984-85, 1985-86 were wrong and, accordingly, percentage of recovery worked out on the said basis was wrong; rules of public administration which governed any proceeding for promotion and required considerations such as seniority, experience, qualification and remarks on work done as the basis were not taken into account while granting out of turn promotion to the petitioner and Bank's Resolution vide letter No. 5802 dated 15-1-1986 had provided for award for satisfactory recovery of loans and not out of turn promotion. Having so reasoned the Administrator decided to recall the resolution of the Board granting out of turn promotion to the petitioner. In C.W.J.C. No. 7439 of 1988, however, there is no such exercise done by the Administrator. He has just used his pen to record the order that the out of turn promotion granted to the petitioner vide Resolution No. 18, dated 14-2-1987 of the Board of Directors was cancelled.
9. Learned Advocate General, who has appeared for the respondents in both the cases has advanced his arguments which are generally common in both the cases, but accepted in principle that notwithstanding the fact that the petitioners were employed by the respective managements of the two Co-operative Societies in which they were employed since they have been subjected to the impugned orders by the Administrators appointed by the State Government, the writ applications filed on their behalf are not maintainable.
10. There are several contentions raised on behalf of the petitioners but one to which our attention immediately goes is the submission that the impugned orders are violative of the principles of natural justice and thus are without jurisdiction. No one can dispute that the impugned orders visit the petitioners with civil consequences. They were given out of turn promotion and hold their respective appointments accordingly for quite some time but by the impugned orders they have been reverted to their previous appointments affecting both their status and emoluments. Impugned orders do have the penal consequences. In the Board of High School and Intermediate Education, U.P. and Ors. v. Kumart Chitra Srivastava and Ors. , the Supreme Court has said:--
That whether a duty arises in a particular case to issue a show cause notice inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.
11. In the instant case, the two Administrators thought differently. In the case of the petitioner in C.W.J.C. No. 2076 of 1989 the respondent-Administrator did give a notice calling upon the petitioner to show cause. In the case of the petitioner in C.W.J.C. No. 7439 of 1988, the respondent-Administrator did not think it necessary. On the principle aforementioned the order passed by the respondent-Administrator demoting the petitioner in C.W.J.C. No. 7439 of 1988 is evidently one made in violation of the principles of natural justice. In response to the notice served upon him the petitioner in C.W.J.C. No. 2076 of 1989 made demands of certain documents, copies of some of the documents demanded by him were supplied to him. Some, however, were not supplied to him. Petitioner has alleged that he was directed to inspect those documents and accordingly he presented himself before the custodian of those documents, but no inspection was permitted. The law on the subject of the principles of natural justice and/or fair play does not and at issuing notice calling upon to show cause. In Kashinath Dikshita v. Union of India and Ors. , the Supreme Court has held "that non-supply of the documents to the delinquent relied upon by the disciplinary authority vitiates the enquiry." It is, however, not possible upon this only to say that the enquiry upon which the respondent-Administrator decided to review the resolution of the Board of Directors and accordingly to demote the petitioner in C.W.J.C. No. 2076 of 1989 is vitiated.
12. Learned Advocate General appearing for the respondents has taken us through the correspondent between the petitioner on the one hand and the Administration of the Land Development Bank on the other hand and persuaded us to examine whether the documents which were not made available to the petitioner in C.W.J.C. No. 2076 of 1989 were those which were relied upon by the respondent-Administrator or not. Since we have refrained from going into this aspect of the matter in any detail, we do not at this stage holl that the enquiry was vitiated on account of non-supply of the documents to the petitioner of the said case. There are, however, two features emerging from the notice and the order demoting the petitioner in C.W.J.C. No, 2076 of 1989 which deserve attention. The notice has emphasised upon two things (i) that out of turn promotion was given to the petitioner on a wrong principle and that there was no justification for granting out of turn promotion when in previous years only award had been given to those who had shown satisfactory loan recovery, and (ii) that the figures upon which decision to give out of turn promotion to the petitioner was taken were incorrect.
13. In the order demoting petitioners it is stated that granting out of turn promotion to the petitioner violated constitutional rights of other Officers of the Bank; that a verification of the figures of the loan recovery in previous years disclosed that figures upon which out of turn promotion was given to the petitioner were incorrect and thus percentage of recovery of loan prepared on the said basis was also wrong, that out of turn promotion was given to the petitioner violating the policies of public administration and that in previous years the Board had decided to grant only award to those who gave satisfactory work
14. A mere glance to the contents of the two documents, that is to say, the notice (Annexure-11) and the order demoting the petitioner (Annexure-1) will show that the petitioner was not called upon to show cause with respect to the policy decision taken by the then Board of Directors of the Bank nor he could be called upon to show cause with respect to any policy decision. It is not possible for this Court to take notice of the fact whether policy decision was correct or not. At the time when Directors had decided to give out of turn promotion and adopted the policy for the said purpose, the Society was not obliged to extend guarantees when Articles 14 and 16 of the Constitution of India. It was not a State when policy decision to grant out of turn promotion was taken by the Board of Directors of the Bank It was upon to the Administrator who, it appears, has been vested with all the powers of the Board of Directors of the Bank to revise the policy. Nothing has been brought before us to show that any decision, was taken to revise the policy. Any revision of the policy, however, cannot affect what accrued to the petitioners by dint of the policy decision of the Board of Directors of the Bank. The ground that the policy adopted for granting out of turn promotion was unconstitutional, thus is irrelevant for deciding whether out of turn promotion given to the petitioner was valid or not. Once it is found that one of the grounds stated to review the decision granting out of turn promotion to the petitioner is irrelevant, the Court is required to examine whether on the said ground only or other grounds stated in the order demotion of the petitioner could be justified or not. In our attempt to analyse the impugned orders we tried to segregate the ground as to the validity of the policy decision taken by the Board of Directors of the Bank, but the impugned order only after accepting as bad the policy decision of the Board of Directors, has taken notice of figures of demand recovery to state that the basis upon which decision was taken to give out of turn promotion to the petitioner was wrong It is, thus, not possible to bifurcate the grounds and hold that the decision demoting the petitioner is justified on one of the grounds stated in the impugned order.
15. In the State of Maharashtra v. Babulal Kriparam Takkamore and Ors. , it has been pointed out by the Supreme Court that "where an order is based on several grounds, some of which are irrelevant, then if there is nothing to show that the authority would have passed the order on the basis of relevant and existing grounds that order cannot be sustained". The impugned order is squarely covered by the law stated by the Supreme Court. A more serious error, however, is noticed in the statement of fact in the counter affidavit filed on behalf of the respondent-Administrator. Had there been no counter-affidavit, the Court would have remained unaware of the said infirmity. The counter-affidavit has proceeded to state several facts, but has also stated that "...the petitioner...on submission of wrong figures submitted through his agency, i.e. Branch Bank, Rohtas got out of turn promotion on the basis of wrong and misleading figures". This statement implies that the petitioner was guilty of misconduct of bringing wrong figures through his agency before the Board of Directors and on that basis misleading the Board of Directors to grant out of turn promotion to him. Nowhere in the notice there has been any such allegation. Even the impugned order has not referred to any such conduct of the petitioner. The said statement in the counter-affidavit thus shows that the respondent-Administrator had entertained in his mind a ground which he neither disclosed in the notice nor in the impugned order.
16. Although considering in the context of an enquiry under Article 311 of the Constitution of India in Samsher Singh v. State of Punjab the Supreme Court has said "no abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination, then that the services are terminated it can never amount to a punishment in the facts and circumstances of the case if a probationer is discharged on the ground of misconduct, or in efficieny or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against this discharge. It may in a given case amount to removal from service". Proceeding further to examine whether in a case where the order of termination of service is innocuous looking nonetheless some sort of motive guided the authority passing the order, the Supreme Court has said in the said case:--
The need, in this branch of jurisprudence, is not so much to reach perfect justice but to lay down a plain test which the Administrator and civil servant can understand without subtlety and apply without difficulty....And, over the years, in the rulings of this Court, the accent has shifted, the canons have varied and predictability has proved difficult because the play of legal light and shade has been baffling.
The said judgment has after stating law as above has said that on piercing the veil if it is found that an innocuous order in reality was one intended to punish then the rule that enquiry must not only be within a notice and a show cause but beyond to let the employee know that there was a misconduct for which he has been punished has to be applied.
17. The above principle of law thus, in our view, is attracted to the facts of the instant case and we hold that the Administrator in not communicating to the petitioner the ground of alleged misconduct and not calling upon him to show cause with respect to the said ground has denied to the petitioner opportunity of being heard. In a recent judgment, this Court in Ram Awatar Singh v. The Bhojpur Rohtash Gramin Bank and Ors. reported in 1988 PLJR 793 has taken notice of various steps to be taken in course of any disciplinary enqiry and has said that any want of compliance with the rules of audi alteram partem shall render the imposition of punishment invalid.
18. Since we are of the opinion that for the reason of the alleged misconduct as mentioned in the counter affidavit the respondents Administrator intended to punish the petitioner, the order demoting him is a punishment. The said punishment has been imposed upon the petitioner violating the principles of natural justice Action taken by the respondents Administrator does not fully satisfy the rules of fairplay.
19. We have not entered into the facts and the meaning of the vesting of the managements of the two Co-operative Societies in the State Government and the nature of employment other than one the petitioners had with their employers until the appointment of the Administrators. We have proceeded on the principle that the Administrator representing the State has to act in accordance with the principles of natural justice as violation thereof will be a violation of Article 14 of the Constitution of India. Since, however, in our conclusion the two respondent Administrators have acted in violation of the principles of natural justice, the impugned orders are unconstitutional and thus without jurisdiction.
20. In the result, the aforementioned two writ applications are allowed The impugned orders therein that is to say Annexure-1 in C.W.J.C. No. 7439 of 1988 and Annexures-1 and 2 in C.W.J.C. No. 2076 of 1989 in so far as the petitioners therein are concerned are quashed. The petitioners shall be treated to have continued in the post from which they were demoted by the impugned orders in their respective appointments and they shall accordingly be entitled to their respective emoluments. It shall be open to the respondents to initiate fresh enquiry, if any, against any one of them in accordance with law. If any such enquiry is initiated against any one of them, it is expected that they shall co-operate without any unnecessary delay in disposal thereof. There shall, however be no order as to costs.