Kerala High Court
Lt.Col.(Retd)K.G.Ramachandran vs State Of Kerala on 2 June, 2009
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12551 of 2009(L)
1. LT.COL.(RETD)K.G.RAMACHANDRAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE CHIEF ELECTORAL OFFICER,
3. SHRI MULLAKKARA RATNAKARAN,
For Petitioner :SRI.P.M.MOHAMMED SHIRAZ
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :02/06/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P(C) No. 12551of 2009 -L
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Dated this the 2nd day of June, 2009.
J U D G M E N T
Heard Sri.T.M.Mohammad Youseff, the learned Senior Advocate appearing for the petitioner and Sri.Ranjith Thampan, the learned Additional Advocate General appearing for the respondents.
2. The petitioner is the Managing Director of Kerala State Warehousing Corporation, hereinafter referred to as the 'Corporation' for short. He was appointed as the Managing Director of the Corporation by Ext.P1 Government order dated 5.10.2006. In this writ petition the petitioner challenges Ext.P6 note whereby the Hon'ble Minister for Agriculture ordered that the petitioner's service as Managing Director of the Corporation is terminated with immediate effect and the General Manager (Construction) is given full additional charge of the Managing Director, until further orders. The petitioner contends that Ext.P6 has been issued in violation of the stipulations in Section 22 of the Warehousing Corporations Act, 1962, hereinafter referred to as the 'Act' for short and that before Ext.P6 was issued, he was not put on notice or heard.
3. This writ petition was presented on 20.4.2009 and it came up for admission on 21.4.2009. On that day, while admitting the writ petition this Court stayed the termination of the service of the petitioner W.P(C) No. 12551of 2009 -L 2 pursuant to Ext.P6 and allowed him to continue as Managing Director of the Corporation for a period of six weeks. The respondents have filed I.A.No. 6381 of 2009 for vacating the interim order passed by this Court on 21.4.2009. Sri.T.M.Mohammad Youseff, the learned Senior Advocate appearing for the petitioner contends that as the decision evidenced by Ext.P6 was taken without notice to the petitioner and without affording him a reasonable opportunity to show cause why he should not be removed from office, Ext.P6 is liable to be set aside. The learned Senior Advocate for the petitioner relies on the stipulations in sub section (1) of Section 22 of the Act in support of the said contention. Per Contra the learned Additional Advocate General, relying on the decision of the Constitution Bench of the Apex Court in Bachhittar Singh, V. State of Punjab & another (AIR 1963 SC 395) and the averments in para 5 of the affidavit filed in support of I.A.No. 6381 of 2009 contended that Ext.P6 has no efficacy and that the note made by the Hon'ble Minister on the file which is likely to be altered or changed, cannot be said to be an order of the Government. The learned Additional Advocate General contended that Ext.P6 has no efficacy and therefore the writ petition is premature. The learned Additional Advocate General also submitted that the Government will take a decision on the question whether the petitioner should be removed from office, only after complying with the stipulations in sub section (1) of Section 22 of the Act.
W.P(C) No. 12551of 2009 -L 3
4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Ext.P6 reads as follows:
"The ServiceState Shri.K.G.Ramachandran, Managing of Director, terminatedKerala immediate effect and Shri.A.Rajendra Ware Housing Corporation is with Panicker, General Manager (Construction) is given full additional charge of Managing Director, until further orders."
The stand taken by the learned Additional Advocate General is that Ext.P6 is only a note made by the Hon'ble Minister on the complaint filed by the Chairman of the Corporation and that as Ext.P6 is not an order of the State Government expressed in the name of the Governor as required by clause (1) of Article 166 of the Constitution of India, it cannot be said to be an order passed by the Government. The learned Additional Advocate General further contended that as no Government order removing the petitioner from service has been issued and communicated to the petitioner, the writ petition is premature. The Apex Court in Bachhittar Singh, V. State of Punjab & another (AIR 1963 SC 395) considered an identical question and held as follows:
"9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. (1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot in our opinion be regarded as bound by what was stated in the file. As long as the matter W.P(C) No. 12551of 2009 -L 4 rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh once.
10) The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution therefore requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that on the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore until such advice is accepted by the Governor whatever the Minister or the Council of Ministers say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the 'order' of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab V. Sodhi Sukhdev Singh, AIR 1961 SC 493 at p.512.
"Mr.Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent."W.P(C) No. 12551of 2009 -L 5
Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter communication the order canagainst regarded as anything more over and over and, therefore, till its not be than provisional in character."
5. The Apex Court held that before something amounts to an order of the State Government two things are necessary, (i) the order has to be expressed in the name of the Governor as required by clause (1) of Article 166 of the Constitution and (ii) it has to be communicated to the person who would be affected by that order. It was held until such an order is drawn up by the State Government, the notes made by the Hon'ble Minister on the file cannot be said to be an order of the State Government. The Apex Court also noticed that it is possible that after expressing one opinion about a particular matter at a particular stage, a Minister of the Council of Ministers may later express quite a different opinion, one which may be completely opposed to the earlier opinion and therefore to make the opinion amount to a decision of the Government it must be a final decision communicated to the person concerned. Tested in the light of the principles laid down by the Apex Court in Bachhittar Singh, V. State of Punjab & another (supra), I am pursuaded to agree with the learned Additional Advocate General that Ext.P6 cannot said to be an order of the State Government removing the petitioner from office. W.P(C) No. 12551of 2009 -L 6 The respondents have in paragraph 5 of the affidavit filed in support of I.A.No. 6381 of 2009 virtually conceded this position.
I accordingly hold that the challenge to Ext.P6 is misconceived and that the writ petition is premature. In the light of the undertaking made by the Government in paragraph 5 of the affidavit filed in support of I.A. 6381 of 2009, the petitioner cannot have any grievance that Ext.P6 note will affect his right to continue in office as Managing Director of the Corporation. Such being situation, the writ petition is dismissed as premature, leaving open the contentions of both sides and reserving liberty with the Government to pass orders in terms of Section 22(1) of the Warehousing Corporation Act, 1962, if the Government wish to proceed further in the matter.
Sd/-
P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab