Patna High Court
Dr. Jagannath Mishra vs State Of Bihar And Ors. on 17 April, 1989
Equivalent citations: AIR1990PAT11, 1989(37)BLJR514, AIR 1990 PATNA 11
JUDGMENT Binod Kumar Roy, J.
1. The petitioner has come up before this Court through this application under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari for quashing the Notification No. 99/C, dated 21-4-1986, as contained in Annexure 2, issued by the Secretary, Education Department, Government of Bihar, dispensing with the services of the petitioner as the Chairman-cum-Director General of Lalit Narayan Mishra Institute of Economic Development and Special Change, Patna (hereinafter referred to as the Institute), and further for issuance of a consequential writ in the nature of mandamus directing and commanding respondent Nos. I and-2 to pay the petitioner his salary and other admissible allowances with effect from the date of the aforementioned notification and also to restrain them from interfering in any manner with the functioning of the petitioner as Chairman-cum-Director General of the Institute.
2. The portrayal of the facts are short and simple. Intheyear 1973, under the Chairmanship of the petitioner the Bihar Institute of Economic Development was started as a Research Institute, which was later on renamed as 'Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna to commemorate the memory of Late Lalit Narayan Mishra, once upon, Minister for Railways in the Union Cabinct. In the year 1974. the Institute was recognised by the Magadh University and subsequently the Universities of Ranchi, Patna and the Bihar granted recognition to it as a Research Institute. In March, 1977 the Magadh University declared it as an autonomous institute under Section 73 of the Bihar State Universities Act, 1975. At its meeting dated 8-6-73, the governing council of the Institute decided to upgrade . the permanent post of the Director as a permanent post of Director General and appointed the petitioner to that post on a monthly salary of Rs. 3500/- besides other facilities, such as telephone, peronal staff, conveyance and allowances, viz. D. A. and Housing etc. and a communication was sent to the petitioner by the Diiector of the Institute by letter No. 29/83, dated 31 -8-1983, a copy of which has been attached as An-nexure I to this petition.
3. The Government of Bihar promulgated an Ordinance No. 15 of 1986, dated 19lh April, 1986, taking over the Institute and as a follow up action terminated the services of the petitioner and its Registrar, namely Sri Jag-danand Jha, by a Notification, Annexure 2 purported to be under Section 6 of the Ordinance, issued by the order of the Governor, Bihar under the signature of the Secretary, Education Department, Government of Bihar.
4. The Institute and the Registrar moved this Court through two separate writ applications challenging the Constitutional validity of the Ordinance as well as the order of termination of his services both of which were finally dismissed by a common judgment of a Full Bench. The matter was taken to the Supreme Court in Civil Appeals Nos. 4142 of 1986 and 4141 of 1986, by the Institute and the Registrar, respectively, who also filed two separate writ petitions before the Supreme Court, being Writ Petition (Civil) 55/87 and Writ Petition (Civil) No. 87/87 respectively, all of which were heard and disposed of by a common judgment dated 23rd March, 1988 (reported in AIR 1988 SC 1 136) a copy of which has been appended as Annexure 3 to the writ petition upholding the validity of the Ordinance, but quashing the order of termination of the services of the Registrar, giving liberty to the State Government to consider the question of termination of his services, after giving him a reasonable opportunity of making representation. While quashing the termination order of the Registrar, the Supreme Court held as follows (at P. 1149):--
"Sub-paragraph (4) of paragraph 6 of the Ordinance does not contain any direction for the termination of services of the members of non-teaching staff, even in spite of that, if the Stale Government wants to terminate the services of the petitioner, Dr. Jha, it cannot be done without giving him a reasonable opportunity of being heard for such act on the part of the State Government would be jis administrative act."
5. It was asserted on behalf of the petitioner that he being the Director General of the Institute was never a member of the teaching staff of the Institute and comes within the expression other than the category of the staff under paragraph 6(4) of the Ordinance and thus the Stale Government has proceeded on a wrong assumption that under that paragraph it has power to consider the question of termination of the services of the members of the non-teaching staff also. The petitioner further asserts that no notice whatsoever was issued to him before issuance of the impugned notification and no opportunity of being heard having been given before passing of the termination order the principles of natural justice have been violated and the impugned notification cannot be sustained, after the declaration of the law by the Supreme Court, quoted above.
6. Rule was issued to the respondents but no counter-affidavit/show cause was filed by them.
7. Mr. Tarakant Jha, learned counsel for the petitioner pressed before us a very short point, namely that in view of the declaration of the law by the Supreme Court that a reasonable opportunity of being heard must be given while terminating the services of the members of the non-teaching staff, the impugned notification, Annexure 2 is liable to be quashed and the petitioner is entitled for the reliefs claimed. Learned, Addl. Advocate General submitted on the other hand that the petitioner is not entitled to the relief prayed for especially when the instant writ application has been filed belatedly and the conduct of the petitioner amounts to intentional relin-quishment and the petitioner has waived his rights. He also further contended that the petitioner's case is not covered by the judgment of the Supreme Court.
9. In my view, the contention of Mr. Jha has got sufficient force and must be accepted. The Supreme Court after following its own case in K.L. Shepherd v. Union of India, (1987) 4 SCC 431 : (AIR 1988 SC 686) laid down that in spite of the fact that paragraph 6(4) does not contain any direction for termination of the services of the members of the non-teaching staff, termination cannot be done without giving a reasonable opportunity of being heard, inasmuch as the same would be an administrative act, on the part of the State Government. In that view of the matter, the said ratio applies with full force in the case of the petitioner also.
8. In the case of State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86, at page 94 paragraph 11 S.R. Das, C.J. speaking for the majority held to the effect that an order passed contrary to the rules of natural justice and all accepted rules and procedure is .ex facie a nullity.
10. In Star Diamond Company v. Union of India, AIR 1987 SC 179, it was held to the effect that the judgments of the Supreme Court laying down the principles of law are binding on all even on a person who was neither a party nor was served with any notice of the proceedings resulting in the said judgment of the Supreme Court. The irresistible inference in law is that the respondents have committed an apparent error of law in not following the law laid down by the Supreme Court and in not applying it in the case of the petitioner.
11. Coming to the contention of the learned Additional Advocate General that the petitioner is not entitled to the reliefs claimed on account of waiver, it must be rejected as no such pleading has been put forth by the respondents by filing any counter-affidavit and/ or show cause to the Rules issued by this Court.
12. In Motilal Padampat Sugar Mills v. State of U.P., AIR 1979 SC62I, in paragraph 5 it was held as follows :--
"......... It is elementary that waiver is a question of fact and it must be properly, pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the Slate Government in the affidavit filed on its behalf, in reply to the writ petition, nor was it indicated even vaguely in such affidavit, it was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea."
13. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180,it was held at paragraph 47 that "the proposition that notice need not be given of a proposed action because there can possibly be no answer to it, is contrary to the well recognised understanding of the real import of the rule of hearing. The proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuse one for the other. The appearance of injustice is the denial of justice."
14. In view of the aforementioned declaration of law, the point of waiver sought to be raised by the learned Add. Advocate General is not at all permissible and is hereby rejected.
15. Coming to the next point argued by the learned Addl. Advocate General that the writ petition should be thrown out on account of latches this too has to be rejected as the Supreme Court in State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 : (AIR 1987 SC 251) has laid down as follows : - -
".........this rule of laches or delay is not a rigid rule which can be cast in a straight jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interference and grant relief to the petitioner."
16. In Narayan Devi Khaitan v. State of Bihar C.A. No. 140 of 1964 decided by the Supreme Court on 22-9-1964: (reported in 1964 SC (Notes) 259) it was laid down that "no hard and fast rule can be laid down as to when High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches."
17. In P.B. Roy v. Union of India, AIR 1972 SC908 the Supreme Court itself had laid down that the "delay in filing the petition under Article 226 may be overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is "positively good."
18. In my view the writ petition having been admitted, and the case of the petitioner being "positively good" as it is squarely covered by the decision of the Supreme Court it self (Annexure 3) and the respondents being bound by that judgment ought to have given a notice to the petitioner. I accordingly overrule the second contention of the learned Addl. Advocate General also.
19. For the reasons aforementioned, I am of the view that the petitioner is entitled to the reliefs claimed by him.
20. In the result impugned notification Annexure 2 is quashed by grant or a writ in the nature or certiorari and the petitioner is held to be entitled to the salary and other admissible allowances with effect from 21-4-1986 and continuance thereof until determined in accordance with law.
21. This writ application is allowed in the above terms with costs. Hearing fee assessed at Rs. 550/-.
P.S. Mishra, J.
22. I agree.
U.P. Singh, J.
23. I agree.