Madhya Pradesh High Court
Mohmmad Ansar Ansari vs Chairman on 12 July, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No.&Parties Name W.P.Nos. 5882/17 and 12157/16.
MOHMMAD ANSAR ANSARI
S/D/W/Thru:- SHRI YASIN ANSARI,12
ARIF NAGAR, BHOPAL , Bhopal ,
MADHYA PRADESH
Vs.
CHAIRMAN
M.P. STATE WAF BOARD BHOPAL
BHOPAL , Bhopal , MADHYA
PRADESH AND OTHERS.
AND
MOHMMAD ANSAR ANSARI
S/D/W/Thru:- SHRI YASIN ANSARI,12
ARIF NAGAR, BHOPAL , Bhopal ,
MADHYA PRADESH
Vs.
THE STATE OF MADHYA PRADESH
THROUGH THE CHIEF EXECUTIVE
OFFICER NEAR TAJUL MASAAJID,
BHOPAL , Bhopal , MADHYA
PRADESH AND OTHERS
Date of Judgment 12/07/18
Bench Constituted Justice Sujoy Paul
Judgment delivered by Justice Sujoy Paul
Whether approved for No.
reporting
Name of counsels for parties Petitioner : Shri Mukesh Agarwal, Adv.
Respondent :Shri Nikhil Tiwari, Adv.
Shri Rahul Mishra, GA for State.
Law laid down -
Significant paragraph numbers -
(ORDER)
(12.07.2018)
-:- 2 -:-
W.P.Nos. 5882/17 and 12157/16.
These petitions are interconnected and, therefore, on the joint request of the parties, matters were analogously heard and decided by this common order.
W.P.No.5882 of 2017 :
This petition takes exception to the order dated 23.3.2017 (Annex.P/1) whereby in purported exercise of Regulation 37 of Waqf Regulation Act, 1964, the respondents have cancelled the order dated 21.09.2015.
2. Draped in brevity, the relevant facts are that the petitioner was appointed as Lower Division Clerk on 16.01.1987. The petitioner was placed under suspension on 08.04.2009. The petitioner was removed from service as a measure of punishment by order dated 13.05.2009. The petitioner unsuccessfully challenged the said termination order before the Waqf Tribunal. The tribunal, by order dated 26.6.2009 rejected the application of the petitioner with observation that the respondent/ Board is free to consider the representation of the petitioner in accordance with law. The said order of Tribunal was put to test by the Board before this court in C.r.No.227/09 which was dismissed having rendered infructuous on 07.03.2012.
3. Shri Mukesh Agarwal, learned counsel for the petitioner submits that the Board has taken a decision to obtain opinion of ten members regarding the claim of reinstatement of the petitioner. Reliance is placed on Annex.P/24. In turn, the ten members took a decision to reinstate the petitioner in service. Reliance is placed on the document dated 22.06.2013 (Annex.P/24). Learned counsel further contends that on the recommendation of all members of the Board, the then Chairman approved the decision of the members and passed the order to reinstate the petitioner. This order is written in Urdu language. Initially, Shri Agarwal argued that no date is mentioned as to when this note-sheet was written by the Chairman but during the course of arguments fairly admitted that the said note-sheet was written on 30.07.2013. He fairly admitted that the present petitioner himself narrated this fact during the course of hearing in his
-:- 3 -:-
W.P.Nos. 5882/17 and 12157/16.
W.P.No.14949/15 which is reduced in writing in the court order dated 11.09.2015.
4. The stand of learned counsel for the petitioner is that on 30.07.2013, the resignation of the then Chairman was not accepted and name of anybody else was not notified as Chairman as mandated in section 419 of the Waqf Act, 1995. Thus, for all practical purposes, the then Chairman was functioning on 30.07.2013. The petitioner further urged that despite taking a conscious decision to reinstate the petitioner, founded upon the decision of ten members of the Board followed by approval of the Chairman, the petitioner was not reinstated in service. It is argued that the reinstatement letter (Annex.P/10) was prepared but was never issued to the petitioner. The said letter was not issued because the Officer who had prepared this letter was expecting some gratification in lieu of issuance of the said letter. The petitioner, left with no option, filed W.P.No.14949/15 seeking direction to the Chief Executive Officer to take a decision regarding reinstatement of the petitioner. This court by order dated 11.09.2015 directed the respondents to decide the representation of the petitioner by a speaking order.
5. Shri Mukesh Agarwal, learned counsel for the petitioner further submits that in compliance of order of this court dated 11.09.2015, the C.E.O decided to reinstate the petitioner in compliance with the earlier decision of the Board with back-wages. The back-wages were paid between 2013 to 2015 but no back-wages were paid for the intervening period between 2009 to 2013. Pertinently, W.P.No.12157/16 is filed claiming the salary for the period between 2009 to 2013. It is further argued that in compliance of the decision of the Board, the C.E.O issued the order dated 21.9.2015 (Annex.P/3) which was approved by the Board in its meeting (Annexure P/4). Shri Agarwal has taken pains to contend that the alleged note-sheet of Chairman dated 17.09.2015 on which reliance is placed by the other side is not reflected in the resolution dated 09.11.2015, despite the fact that the learned Chairman was present in the meeting. Thus, the note-sheet dated 17.09.2015 is highly doubtful and appears to have been prepared as an afterthought.
-:- 4 -:-
W.P.Nos. 5882/17 and 12157/16.
6. The petitioner submits that pursuant to order dated 21.9.2015 Annexure P/3, the petitioner was reinstated back in service. The show cause notice came as a bolt from blue to the petitioner whereby the respondents intended to recall their earlier order dated 21.9.2015. The petitioner filed his detailed reply and raised serious preliminary objections. Shri Agrawal submits that reply to the show cause notice makes it clear that the decision of Chief Executive Officer dated 21.9.2015 got a stamp of approval from Members of the Board in the meeting dated 9.11.2015. The show cause notice dated 18.7.2016 is passed without obtaining approval from the Board and in absence thereto, the show cause notice is without authority, jurisdiction and competence. It is argued that the said reply of petitioner was not properly considered and impugned order dated 23.3.2017 is passed whereby the decision to reinstate the petitioner dated 21.9.2015 is cancelled.
7. Criticizing the aforesaid order, learned counsel for the petitioner placed heavy reliance on the statutory regulations namely; the Madhya Pradesh Waqf Board Regulations, 1963 (for short 'Regulations'). Shri Agrawal by placing reliance on Regulation 55 submits that appeal of an employee against the punishment order needs to be considered by the Board and decision of Board becomes final. On the strength of this provision, the argument of Shri Agrawal is of two fold. Firstly, it is contended that all ten Members of the Board have taken a decision to reinstate the petitioner on 22.6.2013. This decision, in the teeth of Regulation 55 has attained finality. This decision could not have been modified by Chairman or even by the Board at a subsequent stage. Secondly, even assuming for the sake of arguments, that the petitioner has not preferred any appeal, the non-quoting of provision or non-mentioning it as appeal will not make any difference because admittedly, while dismissing the application of petitioner the Waqf Board permitted the petitioner to prefer representation and gave liberty to the Waqf Board to decide it expeditiously. Thus, the representation of the petitioner seeking reinstatement must be treated as an appeal which was duly considered and
-:- 5 -:-
W.P.Nos. 5882/17 and 12157/16.
decided by the Board on 22.6.2013 which was approved by the Chairman on 30.7.2013.
8. Shri Agrawal further submits that since the reinstatement order of petitioner dated 21.9.2015 is based upon the decision of the Board and approval of the Chairman, the said order by no stretch of imagination, can be recalled or cancelled. In addition, learned counsel for the petitioner contended that the Chief Executive Officer has infact implemented the order of the Board and has not passed any order of his own. No proper departmental enquiry was conducted before passing the order of termination dated 13.5.2009. The defence regarding submission of resignation by the then Chairman is not trustworthy because there is no reference of the same in the note-sheet of respondents between 3.1.2014 and 31.1.2014. The note-sheet dated 17.9.2015 Annexure R/2 was written suo-moto and; therefore, appears to be fabricated document. Lastly, it is urged that petitioner was given clean chit by Lokayukt Organisation which is evident from Aannexure Rj/1 and Annexure RJ/2. All adverse allegations made against the petitioner are factually incorrect and legally improper.
9. On the other hand, Shri Rahul Mishra, GA and Shri Nikhil Tiwari, learned counsel for the Waqf Board opposed the said contention and urged that petitioner committed serious misconduct and; therefore, subjected to a disciplinary proceeding. The serious allegations of misappropriation of money/embezzlement were proved against the petitioner and; therefore, by order dated 13.5.2009 he was removed from service. By taking this court to the document dated 22.6.2013 (page 94), it is urged that no decision of any nature was taken by the ten Members of the Board to reinstate the petitioner. By placing reliance on the note-sheet dated 30.7.2013 Shri Tiwari submits that on 29.7.2013, the Chairman tendered his resignation and on 30.7.2013 itself the State Government appointed the Administrator. The tenure of the Board itself expired on 30.7.2013. Thus, it cannot be said that Board had taken any decision on reinstatement of petitioner which got stamp of approval by the Chairman.
-:- 6 -:-
W.P.Nos. 5882/17 and 12157/16.
10. Shri Tiwari placed heavy reliance on document at page 57 the document dated 30.07.2013 allegedly written by the then Chairman wherein the then CEO mentioned that before issuance of any order, the legal opinion may be sought for. Thus, it is clear that no order was passed on the said date to reinstate the petitioner by the Chairman. Learned counsel for the respondents also placed reliance on note-sheet of the CEO dated 20.8.2014 wherein he himself mentioned that the petitioner can be reinstated by applying principle of "no work no pay" as per the erstwhile decision of the Chairman. The C.E.O clearly mentioned that a decision needs to be taken on this aspect in the next Board Meeting. The stand of Shri Tiwari is that as per the note-sheet of the CEO itself it is clear that the decision regarding reinstatement was yet to be taken on 20.8.2014 and for this purpose, it was proposed that the matter may be placed before the Board. The said note-sheet was placed before the Chairman of the Board on 2.1.2015. The Chairman directed that since original service record of petitioner is not placed before him and only record of departmental enquiry was placed before him, he directed to place the entire record before him. Reliance is also placed on the note-sheet dated 3.6.2015 wherein the CEO himself recorded that the matter is required to be placed before the Board so that decision may be taken on the merits of the case. Next reliance is on the note-sheet dated 17.9.2015 which shows that legal opinion was obtained from Senior Advocates and then Chairman decided to close the file. On the basis of this document, it is urged that at no point of time Board had taken any decision to reinstate the petitioner. Thus, the basic contention of the petitioner is without any basis.
11. So far document Annexure P/10 is concerned, Shri Tiwari submits that even if this note-sheet was prepared, it was never translated into reality by issuing an order. There is no date or issuance number in the document and this document was admittedly never issued as per the contention of petitioner also. By placing reliance on AIR 2009 SC 904 (Sethi Auto Service Station & Anr. vs. Delhi Development Authority), it is submitted that such a document which was never issued is not binding on the respondents. He also relied upon AIR 2010 SC 433 (Shanti Sports Club &
-:- 7 -:-
W.P.Nos. 5882/17 and 12157/16.
Anr. vs. Union of India & Ors.) and 2011 (8) SCC 670 (State of Uttaranchal and another Vs. Sunil Kumar Vaish and aothers). The common string as projected by Shri Tiwari in these judgments is that unless a note-sheet is converted into an order which is duly passed and issued in favour of the employee, the said note-sheet is of no assistance to the petitioner.
12. The learned counsel for the Waqf Board further submits that Regulation 55 clearly provides that a decision of the Board shall be final. In the instant case, there exists no decision of the Board to reinstate the petitioner. Thus, Regulation 55 is of no assistance to the present petitioner.
13. It is submitted that the Chief Executive Officer who has passed the order dated 21.09.2015 was not substantively holding the post of Chief Executive Officer of the Board. The Officer who has passed the order dated 21.09.2015 is an IAS Officer and was holding the substantive post of Secretary, Minority Commission. In addition to the said post, the additional charge of CEO was given to him by the Government. The stand of the petitioner is that the said work has been given to him by way of notification whereas Shri Tiwari placed reliance on the recent order passed by this Court in R.P. No.1299/2017 and W.P. No.17846/2015 to bolster the submission that this Court in clear terms opined that the CEO at the relevant time was not holding the post on substantive basis. Thus, for this reason also, the reinstatement order is bad in law. Shri Nikhil Tiwari submits that the order dated 21.09.2015 (Annexure-P/3) is passed in purported exercise of power under Regulation 65(3) whereas a plain reading of that provision shows that it has not even a thread relation with the aspect of reinstatement of a terminated employee.
14. Lastly, it is submitted that the CEO has not reinstated him in the original file. The relevant file, as noticed, has already been closed by the order of the Chairman. He parallelly opened yet another file and in that file decided to reinstate the petitioner. The course adopted by the CEO is wholly impermissible and arbitrary in nature. He in the said file declared that he is the competent authority as per Regulation 65(3) whereas the said provision does not give him any such power to reinstate the petitioner.
-:- 8 -:-
W.P.Nos. 5882/17 and 12157/16.
15. Shri Tiwari, during the course of argument, vehemently contended that at no point of time, the Board has taken decision to reinstate the petitioner. The petitioner has erroneously placed reliance on Annexure-P/4 whereas a careful reading of this document shows that it is in two parts. In the left side of it, the proposal was given on which decision is taken in the right side. The petitioner has tried to mislead this Court by placing reliance on the proposal portion whereas a conjoint reading of proposal and decision shows that the question of reinstatement was never approved by the Board. Indeed, certain members have raised objection on the claim of the petitioner.
16. No other point is pressed by learned counsel for the parties.
17. I have heard learned counsel for the parties at length and perused the record.
18. Before dealing with rival contentions of the parties, it is apposite to quote the relevant portion of the Regulations on which reliance is placed by the learned counsel for the parties. Regulation 55 reads as under:
"55. Appeal and review.- (1) An employee of the Board may appeal, against an order of suspension or an order imposing any penalties specified in regulation 52 to the Board within one month from the date of such order. The decision of the Board shall be final.
(2) No appeal shall lie against an original or appellate order passed by the Board. In such case the aggrieved servant may submit an application for review and the Board may pass such orders as it thinks fit. Copy of the last orders against which the review or appeal is submitted shall be attached to the application."
19. Regulation 65 reads as under :
"65. Controlling Officer.- (1) The Chairman shall be the Controlling Officer in respect of his own traveling and daily allowance bills.
(2) The Chairman shall be the Controlling Officer in respect of the traveling allowance and daily allowance bills of the Secretary and members of the Board.
(3) The Secretary shall be the Controlling Officer in respect of the traveling allowance and daily allowance bills of the employees of the Board and non-officials other than the members of the Board."
-:- 9 -:-
W.P.Nos. 5882/17 and 12157/16.
20. As noticed, the bone of contention of the petitioner is based on alleged decision of ten members of the Board dated 22.06.2013. The said document is annexed as Annexure-P/24 (Page 132) which reads as under:
"izfr] Jheku eq[; dk;Zikyu vf/kdkjh] e0iz0 oDQ cksMZ] Hkksiky fo"k; %& Jh vUlkj vUlkjh ds izdj.k es jk; nsus ckcr~A laanHkZ %& dk;kZy;hu i= Ø0 1932&44 ,oa i= fnukad 23@3@2013 egksn;] fo"k;karxZr Jh vUlkj vUlkjh ds izdj.k esa dk;kZy; }kjk iwoZ esa izsf"kr fjdkMZ ds voyksdu ,oa izdj.kksa dh orZeku [email protected]; ls izrhr gksrk gS fd fdjk;snkjh ds izdj.k esa fdjk;snkj ftEesnkj gS tks mlds 'kiFk i= ,oa ekuuh; yksdk;qDr ds fu.kZ; ls Li"V gSA nqljk izdj.k tks fdjk;snkjh lacaf/kr gS o9g Hkh fdjk;snkj Jh vuhl vgen ls lacaf/kr gS tks orZeku esa Hkh yafcr gS] rFkk mlesa dksbZ fu.kZ; ugha gqvk gSA vU; vkjksiksa ds fjdkMZ ls ;g Hkh ik;k x;k fd Jh valkj valkjh }kjk l{ke vuqefr ds ckn gh dk;Z fd;s x, gSa vr% lsok cgkyh ij fopkj fd;k tkdj mfpr fu.kZ; fy;k tkuk U;k; laxr gksxkA"
21. In the said documents, certain members of the Board have just put their signatures. A careful reading of the documents shows that no decision has been taken by the members of the Board to reinstate the petitioner. On the contrary, they have only observed that it will be proper to take a decision regarding reinstatement of the petitioner. Thus, I am unable to hold that the document Annexure-P/24 can be treated to be a decision/resolution/approval of the Board for reinstating the petitioner.
22. The alternative argument of Shri M.K. Agrawal was that the CEO's decision dated 21.09.2015 was also approved by the Board in its meeting dated 09.11.2015 (Annexure-P/4). This point also requires a serious consideration. Before dealing with the alleged Board's resolution (Annexure-P/4), it is apposite to consider the decision of CEO dated 21.09.2015. In this decision (Para 10), the CEO gave a finding that earlier Waqf Board had taken a decision for reinstatement of the petitioner. In preceding paragraph, this Court clearly held that no such decision to reinstate the petitioner was taken by the Board at earlier point of time. Similarly in Para 13 of this order, the CEO again opined that the Board is the competent authority which had taken a majority decision to reinstate the petitioner. Thus, petitioner deserves to be reinstated. At the cost of
-:- 10 -:-
W.P.Nos. 5882/17 and 12157/16.
repetition, no such decision was taken by the Board and document (Annexure-24) (Page 132) does not support the finding and stand of learned CEO.
23. In Para 24 of the said order, the CEO again opined that the then Chairman passed an order on the basis of the majority decision of the members of the Board. No such decision (as held hereinabove) was taken by the members of the Board. Thus, the very foundation of this order goes and decision taken by the CEO cannot sustain judicial scrutiny.
24. The order dated 21.09.2015 cannot be countenanced for yet another reason. He has derived the source of power from Regulation 65(3). A plain reading of said provision reproduced hereinabove leaves no room for any doubt that it has nothing to do with the question of entertaining an appeal of a terminated employee. Reliance on this provision by CEO is totally misconceived.
25. I will be failing in my duty if I do not consider the argument of Shri M.K. Agrawal that this order of learned CEO dated 21.09.2015 was approved by the Board in its meeting dated 09.11.2015 (Annexure-P/4). A bare perusal of this document (Annexure-P/4) makes it clear that it is divided in two parts. Left side of column is a note prepared for consideration before the Board whereas on the right site, the decision of the Board is given. Learned counsel for the petitioner has placed heavy reliance during the course of argument on the left side of the portion, which is a note prepared for consideration before the Board.
26. A careful reading of decision portion of the Board shows that the Board has not taken any decision to reinstate the petitioner. The relevant portion which deals with the decision of the Board reads as under:-
^^Jh valkj valkjh dh cgkyh ds laca/k esa cksMZ ds eq[; dk;Zikyu vf/kdkjh } kjk izdj.k dh foLr`r tkudkjh izLrqr dh xbZA muds }kjk cksMZ dks ;g Hkh vcxr djk;k x;k fd Jh valkjh ds izdj.k esa rRdkyhu ps;jesu Jh xqQjku vkte }kjk lHkh izdkj ls lw{e v/;;u cksMZ ds 10 eSEcjku ds vfHker] fof/kd jk; rFkk rF;ksa dks n`f"Vxr j[krs gq;s ;g vkns'k ikfjr fd;k x;k fd eSEcjku cksMZ dh jk; ds is'ks utj vkfQl vkMZj 3257 eqofjZ[kk 13-05-2009 dks ealw[k fd;k tkrk gSA Jh valkjh dks cgky fd;k tkrk gSA bUgsa nQ~rj TokbZu djkdj rU[kokgksa dh vnk;xh dh tk;sA mDr vkns'k 30-07-2013 dks iznku fd;k x;k ijUrq rRdkyhu eq[; dk;Zikyu vf/kdkjh }kjk vkns'k tkjh
-:- 11 -:-
W.P.Nos. 5882/17 and 12157/16.
djus ds ctk; fof/kd o vU; dkj.kksa dks cgkuk cukdj vkns'k fudkyus esa Vky eVksy dh xbZ rFkk ufLr dks isfUMax dj fn;k x;kA lh-bZ-vks- }kjk cksMZ dks ;g Hkh crk;k x;k fd mdr ekeys esa fof/kor fdlh foHkkxh; tkap vf/kdkjh dh fu;qfDr ugha dh xbZ Fkh] foHkkxh; tkap ds nkSjku fu;ekuqlkj xokgksa dk izfrijh{k.k vkjksih deZpkjh }kjk ugha djk;k x;k] vafre dkj.k crkvks uksfVl ugha fn;k x;k] foHkkxh; tkap fjiksVZ miyC/k ugha gSA vr% lqizhe dksVZ ds fn'kk funsZ'k ,oa 'kklu ds fu;eksa ds vuqlkj lsok lekfIr fu;e fo:) gSA rRdkyhu v/;{k des vkns'k dk ikyu u gksus ds dkj.k Jh valkjh }kjk fnukad 04-08-2015 dks ekuuh; eq[;ea=h egksn; dks vkosnu izLrqr fd;k x;kA ftls izeq[k lfpo ekuuh; eq[;ea=h }kjk i= Ø- 739@lh-,e-,l-@,l-ds-@,e-@15 fnukad 11-08-2015 }kjk vij eq[; lfpo e-iz- 'kklu dks izsf"kr dj 15 fnol esa leqfpr dk;Zokgh dj voxr djkus ds funsZ'k fn;s x;sA e-iz- 'kklu }kjk vk;qDr fiNM+k oxZ rFkk vYila[;d dY;k.k ds i= Ø- 715@706@2015@54&2 fnukad 02-09-2015 dk;Zokgh dj voxr djkus ds vkns'k fn;s x;sA vk;qDr fiNM+k oxZ }kjk Hkh e-iz- oDQ cksMZ dks dk;Zokgh gsrq i= izsf"kr fd;k x;kA vr% izdj.k ps;jesu e-iz- oDQ cksMZ ds laKku esa ykus gsrq fnukad 14-08-2015 dks izLrqr fd;k x;k ijUrq ps;jesu }kjk fu.kZ; ysus ds ctk; vuko';d Vhi gafdr dh xbZA tcfd v?;{k oDQ cksMZ dks iwoZ v/;{k ds vkns'k dk iquokZyksdu djus dk vf/kdkj ugha gSA blh nkSjku ekuuh; mPp U;k;ky; esa Jh valkj valkjh } kjk izLrqr ;kfpdk 14949@2015 ij fnukad 11-09-2015 dks vkns'k ikfjr fd;k x;k ftldh lR;kfir izfr Jh valkjh us dk;kZy; dks izLrqr dh gSA ekuuh; mPp U;k;ky; esa Jh valkj valkjh us fuEukuqlkj ;kfpdk dh ftldk laf{kIr fuEukuqlkj gS %& "It is contended by the learned counsel for the petitioner that the petitioner was terminated from the post of LDC by order of the respondent No.3 Thereafter, the Board Members, the then Chairmen has been passed an order dated 30.07.2013 in the note sheet by revoking the order dated 13.06.2009 and directed that the petitioner is reinstated in service. However, no action has taken by the respondent No.3 in favor of the petitioner. He therefore, prays that an appropriate direction may be issued to respondent No.3 to consider and decide the representation Annexure P/17 within stipulated period of time."
mDr vkns'k esa ekuuh; mPp U;k;ky; us eq[; dk;Zikyu vf/kdkjh (Res No.3) dks fuEukuqlkj funsZ'k iznku fd, gSaA ftldk Operating iSjk fuEukuqlkj gS %& "In view of the aforesaid submissions made by learned counsel for the petitioner, the present writ petition is disposed of with a direction to the repondent No.3 to consider and decide the representation dated 22.05.2014 Annexure P/17 submitted by the petitioner, within a period of one month the date of receipt of certified copy of this order, by a speaking order. It is made clear that this Court has not expressed any opinion on merits of the case" Jh valkj valkjh us vius vH;kosnu esa crk;k fd mUgsa vkjksi i= esa fcuk nLrkost miyC/k djk;s rFkk lk{;ksa dk izfr ijh{k.k dj fn;s fcuk ,d ekg ikap fnu dh vof/k vFkkZr ek- 35 fnuk esa lsok lekfIr dk vkns'k dj fn;k x;kA fcuk tkap fd;s] fcuk vkjksi i= fn;s] fcuk lk{; izfr ijh{k.k dk volj fn;s 8-4-2009 dks fuyafcr djus ds
-:- 12 -:-
W.P.Nos. 5882/17 and 12157/16.
i'pkr 13-5-2009 dks lsok ls inP;qr ¼VfeZusV½ dj fn;kA ,d ekg ikap fnu dh vof/k esa fuyacu ek= 35 fnu ls lsok lekfIr rd dk ekxZ r; dj fy;k x;kA ekuuh; mPp U;k;ky; ds mijksDr vkns'k ds ifjikyu esa rRdkyhu v/;{k e-iz- oDQ cksMZ ds }kjk ikfjr mDr vkns'k fnukad 30-07-2013 ds ikyu esa tokfcr e/;izns'k oDQ cksMZ ¼jsX;wys'ku½ 21 flrEcj] 1964 dh /kkjk 65 ¼3½ ds varxZr lsdsVªh oDQ cksMZ dks vQljs fuxjka ¼dUVªksfyax vkfQlj½ dh gSfl;r ls iznRr vf/kdkjksa ds varxZr Jh valkj valkjh dks dk;Zy;hu vkns'k Ø- 4063&70 fnukad 21-09-2015 }kjk lsok esa cgky fd;k x;k gS rFkk lsok lekfIr fnukad 13-05-2009 ls vkns'k fnukad 21-09-2015 rd dks lsok vof/k ekU; dh xbZ gSA dk;kZy;hu vkns'k Ø- 4070 fnukad 21-09-2015 ds vuqlkj Jh valkj valkjh dks iwoZ v/;{k }kjk ikfjr vkns'k fnukad 30-07-2013 ds ikyu esa blh fnukad 30-07-2013 ls 21-09-2015 rd ds osru HkRrksa dk iwoZ osrueku esa 25 ekg 21 fnu dh ldy jkf'k :i;s 278536@& dk Hkqxrku fd;k x;kA pwafd lsok cgkyh vkns'k esa valkj valkjh dks fnukad 13-05-2009 ls gh lsokdky esa ekuk x;k gS blfy;s fnukad 30-07-2013 rd 50 ekg 19 fnu ds osru HkRrksa ds :i esa ldy jkf'k :i;s 548764@& Hkqxrku ds laca/k esa fopkj fd;k tkuk gSA eq{; dk;Zikyu vf/kdkjh }kjk izLrqr tkudkjh ls cksMZ voxr gqvkA bl laca/k esa cksMZ ds ekuuh; v/;{k tukc 'kkSdr eksgEen [kku }kjk cksMZ dks crk;k x;k fd mUgksaus Jh ueu ukxjFk ,oa Jh iq:"kksRre dkSjo ls jk; yh gS rFkk mud }kjk cgkyh dks xyr crk;k x;k gSA bl ij lh-bZ-vks- us dgk fd ekuuh; v/;{k dks Lo;a O;fDrxr rkSj ij vius Lrj ls ,Mh'kuy ,-th-] Jh ueu ukxjFk ls jk; ysus dk vf/kdkj ugha gSA cksMZ us jk; ysus dk dksbZ Qslyk ugha fd;k u gh v/;{k dks vf/kd`r fd;k x;k FkkA lh-bZ-vks- us dgk fd O;fFkr i{kdkj Jh valkj dks fcuk lqus ,-th-@Jh ueu ukxjFk us dSals ,d i{kh; jk; ns nhA eq[; dk;Zikyu vf/kdkjh ds }kjk izLrqr tkudkjh ls cksMZ voxr gqvk rFkk ekuuh; mPp U;k;ky; ds mDr vkns'k dks cksMZ ds le{k i<+k x;kA ftl ij fopkj ds i'pkr tukc 'kkSdr eksgEen [kku v/;{k e-iz-
oDQ cksMZ }kjk lsok cgkyh ds vkns'k dk fojks/k djrs gq;s dgk x;k fd muds }kjk iwoZ esa fy[kh xbZ uksV'khV vuqlkj tkap ugha gqbZA mUgsa mnwZ esa rRdkyhu v/;{k }kjk fy[kh xbZ Vhi lafnX/k o dwVjfpr izrhr gks jgh gSA lkFk gh fnukaad 29-07-2013 dks Jh xqQjku vkte }kjk tc bLrhQk ns fn;k x;k Fkk rks og dSls 30-07-2013 dks uksV'khV vafdr dj ldrs gSA bLrhQk izdj.k ekuuh; mPp U;k;ky; esa Hkh pyk FkkA oDQ vf/kfu;e esa fufgr izko/kkuksa esa lh-bZ-vks- dks deZpkjh ij fu.kZ; ysus dk vf/kdkj ugha FkkA vxj ekuuh; mPp U;k;ky; dks dksbZ vkns'k Fkk rks mldks cksMZ ds le{k j[kdj vuqeksnu djkuk FkkA tgka rd mUgsa nLrkostksa ls Kkr gS fd foxr cksMZ dk dksbZ fu.kZ; ugha gSA dsoy eSEcjku ds }kjk ,d vkosnu ij la;qDr gLrk{kj djuk cksMZ dh ehfVax ugha gksrkA mDr izdj.k iwoZ esa Hkh yksdk;qDr esa pyk FkkA ftl ij jkT; 'kklu Lrj ij ;g vk'oklu fn;k x;k fd Jh valkj valkjh dks nks"kh ikrs gq, lsok ls i`Fkd dj fn;k x;k gSA mijksDr ifjfLFkfr ds izdk'k esa Jh valkj valkjh dks lsok esa cgky ugha fd;k tk ldrk FkkA mudks fd;s x;s Hkqxrku fu;ekuqlkj ugha gSA orZeku esa tks Hkqxrku fd;k x;k gS og vekU; gSA Hkfo"; esa dksbZ Hkqxrku fd;k tkuk mfpr ugha gksxkA izLrko ls vlger gwaA orZeku esa izdj.k dh f'kdk;r yksdk;qDr esa gks pqdh gSA ps;jesu 'kksdr eksgEen [kku us Jh valkj valkjh dh cgkyh ds laca/k esa izdj.k dh foLr`r tkudkjh cksMZ ds le{k izLrqr djrs gq;s lHkh cksMZ ds lnL;ksa dks voxr djk;k fd esjs le{k nks rhu ckj eq[; dk;Zikyu vf/kdkjh ds }kjk QkbZy izLrqr dh xbZA bl laca/k esa eSaus mUgsa voxr djk;k fd rhu pkj rF; lansgkLin izrhr gks jgs gS ftldh tkap gksuk pkfg;sA bl
-:- 13 -:-
W.P.Nos. 5882/17 and 12157/16.
laca/k esa vafre i=kpkj fnukad 26-10-2015 dks gqvkA Jh valkj valkjh ds cgkyh vkns'k esa eq[; vk;Zikyu vf/kdkjh }kjk vkjksi yxk;k x;k fd v/;{k dks iquokZyksdu djus dk dksbZ vf/kdkj ugha gS ijarq muds }kjk vkjksi esa ;g Li"V ugha fd;k x;k fd fdu fu;e izko/kkuksa ds varxZr rRdkyhu cksMZ v/; {k }kjk fy;s x;s fu.kZ; dk iquZokyksdu dk vf/kdkj v/;{k dks ugha gSA pwafd izdj.k dezpkjh dh lsok cgkyh dk gS ,oa r`rh; Js.kh deZpkfj;ksa dh cgkyh dk gS ,oa r`rh; Js.kh deZpkfj;ksa dh fu;qfDr ds vf/kdkj cksMZ jsxqys'ku ,oa 'kklu vkns'kkuqlkj v/;{k dks gSA vr% fdlh Hkh dezpkjh dh fu;qfDr ,oa lsok cgkyh ds laca/k esa orZeku v/;{k dks vf/kdkj gSA fo'ks"kdj mu ifjfLFkfr;ksa esa tcfd fu.kZ; iwoZ cksMZ v/;{k }kjk fy;k x;k gks vkSj og lafnX/k] vfrlaosnu'khy] Hkz"Vkpkj rFkk dk;kZy; dks foRrh; {kfr dkfjr djus ls lacaf/kr gksA ekuuh; mPp U;k;ky; }kjk dksbZ esfjV ij vkns'k ugha fn;k x;k u gh lsok cgkyh ds laca/k esa lh-bZ-vks- dks vf/kdkj fn;s x;s gS u gh mlesa osru HkRrksa ds Hkqxrku dk vkns'k gSA dsoy fiVh'kuj ds vkosnu ds fujkdj.k ds funsZ'k gSA ekuuh; eq[;ea=h ds lfpo }kjk Hkh izdj.k dk fu;ekuqlkj fujkdj.k ds laca/k esa Vhi vafdr dh gSA lsok cgkyh dk vkns'k ugha fn;k x;kA iwoZ esa eq[; dk;Zikyu vf/kdkjh }kjk dk;Z ugha osru ugha ,oa xq.k nks"k ds vk/kkj ij izdj.k dk fujkdj.k djus gsrq fy[kk x;kA bl laca/k esa esjs }kjk fofHkUu uksV'khVksa ds ek/;e ls eq[; dk;Zikyu vf/kdkjh dk /;ku vkdf"kZr djk;k x;k vkSj lnL;ksa dks ps;jesu }kjk ;g Hkh crk;k x;k fd Jh valkj valkjh ds laca/k esa rRdkyhu cksMZ v/;{k dh Vhi tks fd fnukad 30-07-13 vafdr gS o ml ij tks gLrk{kj gSA Vhi o gLrk{kj eq>s QthZ izrhr gks jgs gSA esjs }kjk bl laca/k esa rRdkyhu eq[; dk;Zikyu vf/kdkjh ls Li"Vhdj.k fy;k x;k muds }kjk crk;k x;k fd Lo0 xqQjku vkte cksMZ dh vof/k lekIr gksus ls rhu fnu igys ls vkWfQl ugha vk;s Fks uLrh esa ;g mYys[k gS fd mDr fnukadksa esa uLrh LFkkiuk 'kk[kk esa miyC/k ugha Fkh uLrh LFkkiuk fyfid ls ,d vU; deZpkjh vius lkFk ys x;k FkkA D;ksafd fnukad 29-07-13 dks rRdkyhu v/;{k Jh xqQjku vkte vius in ls bLrhQk ns pqds Fks] ftl xcu dh jkf'k ds vkjksi esa Jh valkj valkjh dks cgky fd;k x;k gS og jkf'k vkt fnukad rd vkSdkQ vkEek dks vizkIr gSA Jh valkj valkjh dk ,d izdj.k yksdk;qDr esa pyk ftl ij 'kklu ds izeq[k lfpo] milfpo] vk;qDr eq[; dk;Zikyu vf/kdkjh] vkfn dbZ vf/kdkfj;ksa }kjk vius dFku esa ekuuh; yksdk;qDr egksn; dks ;g voxr djk;k fd bl f'kdk;r ij 'kklu us fu.kZ; ysrs gq, Jh valkj valkjh dks lsok ls c[kkZLr dj fn;k gSA mijksDr 'kklu Lrj ij dh xbZ dk;Zokgh oDQ cksMZ esa miyC/k gS vkSj vxj ekuuh; mPp U;k;ky; dk dksbZ vkns'k Fkk rks og v/;{k o cksMZ ds le{k j[kdj eq[; dk;Zikyu vf/kdkjh dks bl ij dk;Zokgh dh tkuh pkfg, FkhA lkFk gh ekuuh; mPp U;k;ky; us mudks Hkqxrku djus ds laca/k esa dksbZ vkns'k ugha fn;s FksA ekuuh; lHkh lnL;ksa ls esjk vuqjks/k gS fd bl xaHkhj ,oa xcu ds izdj.k esa lHkh lnL; viuh viuh jk; cksMZ ds le{k j[k nsa] rkfd vkxkeh Hkqxrkuksa ds laca/k esa fu.kZ; fy;k tk ldsA tukc ,e-vkj-[kku lkgc eSEcj oDQ cksMZ dk bl ekeys esa ;g er Fkk fd eq[; dk;Zikyu vf/kdkjh dk vkns'k ekuuh; mPp U;k;ky; ds vkns'k ds ifjizs{; esa v)ZU;kf;d gSA blfy;s orZeku cksMZ cSNd esa ml ij fopkj fd;k tkuk mfpr ugha gSA tgka rd osru HkRrksa ds Hkqxrku dk iz'u gS] ;g ns[k fy;k tk;s fd ;fn foHkkxh; tkap es ;g funksZ"k ik;s x;s gSa ;k fu;fer foHkkxh; tkap ugha gqbZ gS rks fu;fer foHkkxh; tkap dh tkdj mles deZpkjh funksZ"k ik;k tk;s rks gh mDr osru HkRrksa ds Hkqxrku ij fopkj fd;k tk ldrk gSA
-:- 14 -:-
W.P.Nos. 5882/17 and 12157/16.
tukc vkfjQ vdhy lkgc eSEcj cksMZ us lh-bZ-vks- ds }kjk izLrqr fooj.k ,oa ekuuh; mPp U;k;ky; ds vkns'k ds vuqlkj osru Hkqxrku fd;s tkus gsrq viuk er izdV fd;kA tukc esgcwc galjh lkgc eSEcj oDQ cksMZ ds }kjk ekuuh; mPp U;k;ky; ds vkns'k fnukad 11-09-2015 dks ns[kk x;k vkSj cksMZ ds le{k i<+dj lquk;k x;kA ftlds vuqlkj ekuuh; mPp U;k;ky; esa fjLikUMsUV ua- 03 vFkkZr lh-bZ-vks oDQ cksMZ dks vknsf'kr fd;k gS fd og ,d ekg ds Hkhrj Jh valkj valkjh }kjk izLrqr fjizhtsUVs'ku ftls ekuuh; mPp U;k;ky;
esa ,usDtj ih&17 mafdr fd;k gS dk fof/kor fujkdj.k djsaA dksVZ ds Qlys dk ikyu djus gsrq cksMZ ck/; gSA vkns'k ds vuqlkj osru Hkqxrku fu;ekuqlkj fd;k tkuk pkfg;sA tukc esgccwc gqlSu lkgc eSEcj cksMZ us izdj.k esa ekuuh; mPp U;k;ky; ds vkns'kkuqlkj ,oa fu;ekuqlkj dk;Zokgh djds tks Hkqxrku curk gks oks fd;k tk;sA^^
27. A microscopic reading of the decision of the Board shows that the different members of the Board have expressed their opinion but no decision was taken to reinstate the petitioner. I am unable to read order/decision of Board (Annex.P/4) in the manner suggested by Shri Agrawal. I am constrained to hold that the Board has nowhere taken the decision to reinstate the petitioner nor approved the order dated 21-09-2015 passed by the then C.E.O.
28. Reverting back to Regulation 55, it will be apposite to recollect that an order of punishment is appellable before the Board. The Board needs to take the decision which shall be final. In the instant case, the Board has never taken a decision to reinstate the petitioner. Thus, the question of finality of any such decision does not arise.
29. The show-cause notice issued to the petitioner clearly shows that the basic reason on the strength of which the said show-cause notice was issued is the question of competence of the C.E.O. On more than one occasion, in the said notice it is mentioned that the order dated 21-09-2015 is passed without authority of law. In clear terms, it is alleged that Regulation 65(3) does not give any power to the C.E.O. to reinstate the petitioner by order dated 21-09-2015. More so, when various note-sheets shown by Shri Nikhil Tiwari i.e. 20-08-2014, 03-06-2015 and 17-09-2015 clearly shows that the C.E.O. himself was aware that the matter of reinstatement needs consideration and decision in this regard by the Board. The relevant portion of these note-sheets are reproduced for ready reference :-
-:- 15 -:-
W.P.Nos. 5882/17 and 12157/16.
fnukad 20-08-2014 ,slh fLFkfr esa Jh valkj valkjh dh lsok ls i`Fkd gksus okys ,oa cgkyh ds e/;
dh vof/k dk Þdke ugha osru ugha ß ds fl)kar ds vk/kkj ij rRdkyhu v/;{k ds fu.kZ; vuqlkj cgkyh dh tk ldrh gSA cgkyh gsrq laiw.kZ izdj.k vkxkeh cksMZ dh cSBd esa j[kk tkdj fu.kZ; fy;k tkuk izLrkfor gSA vkns'kkFkZA v/;{k egksn; lgh@20-8-14 fnukad 02-01-2014 ufLr ds voyksdu ls izFke n`"V;k izdV gksrk gS fd ;g Jh valkj valkjh ewy lsok ufLr ugha gSA cfYd tkap ufLr gSA vr% Jh valkjh dh ewy lsok ufLr ,oa yksdk;qDr tkap izdj.k dh ufLr Hkh ijh{k.k gsrq vko';d gSA vr% Jh valkjh dh ewy lsok ufLr ,oa yksdk;qDr izdj.k dh ufLr Hkh dqi;k izLrqr djsaA lgh @ 2-1-15 ¼'kkSdr eks- [kku½ v/;{k e-iz- oDQ cksMZ Hkksiky fnukad 3-6-15 izdj.k cksMZ dh ehfVax esa j[kdj xq.knks"k ds vk/kkj ij fu.kZ; fy;k tkuk mfpr gksxkA Jh valkj ds cgkyh izdj.k esa vR;f/kd foyEc gks pqdk gS vr% ekuuh;
n`f"Vdksa.k ls 'kh?kz fu.kZ; fy;k tkuk izLrkfor gSA v/;{k egks0 lgh@03-06 fnukad 17-09-2015 vr% vfrfjDr egkf/koDrk e-iz- 'kklu Jh iq:"ksUnz dkSjo ,oa lhfu;j vf/koDrk ek- mPp U;k;ky; Jh jeu ukxjFk }kjk fn, x, vfHker ,oa mijksDr ifjfLFkfr;ksa ds en~ns utj j[krs gq, ,oa yksdk;qDr ds le{k 'kklu }kjk Jh valkj valkjh ,oa vU; nks deZpkfj;ksa ij dk;Zokgh ds laca/k esa fn, x, v'okluksa rFkk mu ij dh xbZ dk;Zokfg;ksa dks n`f"Vxr j[krs gq, vc bl izdj.k esa vkxs dksbZ dk;Zokgh dh vko';drk ugha
-:- 16 -:-
W.P.Nos. 5882/17 and 12157/16.
gS] ;fn cksMZ mijksDr ifjfLFkfr;ksa ds dkj.k dksbZ fu;e fo:) dk;Zokgh djrk gS rks orZeku cksMZ ds lnL;ksa rFkk vf/kdkjh@deZpkfj;ksa ij Hkh voS/kkfud dk;Zokgh djus ds vkjksi yx ldrs gSaA vr% lsok cgkyh dk dk;Zokgh ufLrc) dh tkrh gS ,oa izdj.k esa rRdkyhu v/;{k dh Vhi] gLrk{kj langkLizn gksus ds dkj.k mudh tkap djkbZ tkosA lgh@17-09-2015 ¼'kkSdr eksgEen [kku½ v/;{k (emphasis supplied) Thus, there was no occasion for him to pass the order of reinstatement. Such an order is without authority of law and is a nullity in the eye of law.
30. The argument of Shri Nikhil Tiwari that the note-sheet (Annexure P/10)alone is of no help to the petitioner unless the same is reduced in writing in the shape of an order and is actually issued, needs consideration.
In 2009(1) SCC 180 (Sethi Auto Service Station Vs. DDA (Delhi Development Authority), the Supreme Court opined as under :-
"14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicatedto the person concerned.
16. To the like effect are the observations of this Court in Laxminarayan R. Bhattad v. State of Maharashtra [(2003) 5 SCC 413] , wherein it was said that a right created under an order of a statutory authority must be communicated to the person concerned so as to confer an enforceable right.
22.From the afore-extracted notings of the Commissioner and the order of the Vice-Chairman, it is manifest that although there were several notings which recommended consideration of the appellants' case for relocation but finally no official communication was addressed to or received by the appellants accepting their claim. After the recommendation of the Technical Committee, the entire matter was kept pending; in the meanwhile a new policy was formulated and the matter was considered afresh later in the year 2004, when the proposal was rejected by the Vice- Chairman, the final decision-making authority in the hierarchy. It is, thus, plain that though the proposals had the recommendations of the State Level Coordinator (Oil Industry) and the Technical Committee but these did not ultimately fructify into an order or
-:- 17 -:-
W.P.Nos. 5882/17 and 12157/16.
decision of DDA conferring any legal rights upon the appellants. Mere favourable recommendations at some level of the decision- making process, in our view, are of no consequence and shall not bind DDA. We are, therefore, in complete agreement with the High Court that the notings in the file did not confer any right upon the appellants as long as they remained as such. We do not find any infirmity in the approach adopted by the learned Single Judge and affirmed by the Division Bench, warranting interference.
Reference may be made to 2009(15) SCC 705 (Shanti Sports Club and ano. Vs. Union of India and others):-
"48.The issue was recently considered in Sethi Auto Service Station v. DDA[(2009) 1 SCC 180] . In that case, the appellant had claimed relocation of two petrol pumps which had become non-
profitable on account of construction of eight-lane express highway between Delhi and Gurgaon. The appellants relied on the notings recorded by the Technical Committee headed by the Vice-Chairman, DDA. It was urged that the Technical Committee had recommended relocation of the petrol pumps, it was not open to DDA to do a volte face and reject the representation of the appellants. On behalf of the respondents, it was urged that mere notings and proposal recorded in the files of DDA did not create any right in favour of the appellants and the final decision taken by DDA against relocation of petrol pumps was consistent with the policy in vogue. This Court in Sethi Auto Service Station case [(2009) 1 SCC 180] approved the High Court's refusal to interfere with DDA's decision and observed: (SCC pp. 185-86, para 14) "14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned."
"52. As a result of the above discussion, we hold that the notings recorded in the official files by the officers of the Government at different levels and even the Ministers do not become decisions of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may be, authenticated in the manner provided in Articles 77(2) and 166(2) and is communicated to the affected persons. The notings and/or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a court nor made basis for seeking relief. Even if the competent authority records a noting in the file, which indicates that some decision has been taken by the authority concerned, the same can always be reviewed by the same authority or reversed or overturned or overruled by higher functionary/authority in the Government."
-:- 18 -:-
W.P.Nos. 5882/17 and 12157/16.
(Emphasis supplied in original) As per the principles laid down in the aforesaid cases, I find substance in the argument of Shri Tiwari that the document Annexure P/10 is of no use to the petitioner because admittedly it was never issued and sent by the Waqf Board. In other words, the said document, at best, is a note-sheet which never took shape of an administrative order. Thus, the said document is of no assistance to the petitioner.
31. In view of aforesaid analysis, no fault can be found in the impugned order whereby the respondents have cancelled the illegal and without jurisdiction order of C.E.O dated 21.09.2015. Consequently, the writ petition is dismissed.WP. No.12157/2016
32. In this petition, the petitioner has prayed for grant of backwages between 2009 to 2013. Since this Court disapproved the decision of C.E.O. regarding reinstatement of petitioner, the question of grant of backwages to the petitioner does not arise. The petition is devoid of substance and is hereby dismissed. No cost.
(Sujoy Paul) Judge MKL/YS/Biswal/mohsin Digitally signed by MANOJ KUMAR LALWANI Date: 2018.07.13 17:03:40 +05'30'