Patna High Court
Krishnadeo Misra vs State Of Bihar And Ors. on 22 May, 1987
Equivalent citations: AIR1988PAT9, 1987(35)BLJR784, AIR 1988 PATNA 9, (1987) BLJ 787, 1987 BLJR 784, (1987) PAT LJR 854, 1987 BBCJ 658, 1988 BLT (REP) 78
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT S.S. Sandhawalia, C.J.
1. In this reference to the Full Bench, the collateral and minor issues now pale into relative insignificance and the salient issue which frontally comes to the fore is -- Whether Section 8 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, empowering the State Government to remove difficulties in giving effect to its provisions can be used as a cloak for subordinate legislation and as a substitute for the express rule making power under Section 7 of the said Act?
2. The facts giving rise to the aforesaid pristinely legal issue may be noticed with relative brevity. The petitioner was appointed on the 17th September, 1960 in a primary shcool and thereafter on the 24th January, 1962 was promoted as a Headmaster of a Middle School At the material time in the year 1986, he had been transferred as the Headmaster of the middle school, Bijaipur in the district of Gopalganj. It has been averred on behalf of the petitioner that by virtue of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, (hereinafter called the Act), all primary and middle schools of the State were taken over by the State Government. As a necessary consequence, the services of the petitioner and other employees of such schools stood transferred to the Government. By Section 7 of the said Act, power was conferred on the State Government to frame rules for carrying out the purposes of the Act, but it is common ground that despite the passage of eleven years not a single statutory rule under the said section has been framed.
3. In the writ petition, the case sought to be set up on behalf of the petitioner was that a comprehensive notification vide Memo No. G/M-7-074/76- Education 4557 dated 15th December, 1976 was purported to be issued under Section 8 of the Act. Clause 7 of the said notification made provision for disciplinary proceedings and removal from service and provided that such disciplinary proceedings against the teachers will be taken by the District Superintendent of Education with the approval of the District Education Officer. A copy of the relevant Clause 7 is Annexure 2 to the writ petition. It is then the petitioner's case that he is a strict disciplinarian and to enforce the same and curb what is described as unauthorised activities and politicking of one Braj Kishore, who was physical teacher of the school at Bijaipur, he made series of complaints against him to the authorities which apparently went unheeded. However, the petitioner suddently learnt about the impugned order dated 20th August, 1986 (Annexure 1) by which he was placed under suspension. It is averred that on the basis of some vague enquiry conducted by the Block Development Officer of Bijaipur upon a complaint made by the aforesaid Braj Kishore, the Collector of Gopalganj had himself ordered the aforesaid suspension of the petitioner. In compliance therewith the District Superintendent of Education passed the impugned order (Annexure 1) in which itself it is stated that the order is being issued in pursuance to the order of the Collector, Gopalganj.
4. It is the petitioner's case that no approval of the order of suspension of the District Superintendent of Education has been given by the District Education Officer as required by the relevant Clause 7 of Annexure 2. It is the case that, therefore, the said order is in clear violation of the statutory instructions. Reliance on behalf of the petitioner is sought to be placed of Civil Writ Jurisdiction case No. 5358 of 1984 (Smt. Bela Rani v. The State of Bihar) decided on 10th July, 1986.
5. In the counter-affidavit filed on behalf of the respondents, the basic stand taken is that the earlier notification dated 15th December, 1976 (extract whereof is Annexure 2) has been superseded by a subsequent circular Memo No. 3388 dated the 2nd December; 1980 (vide Annexure A) According to the respondents, by virtue of the said circular the District Magistrate has been made the Chairman of the District Establishment Committee and it has been further mandated that the District Superintendent of Education will take disciplinary action against teachers after obtaining order from the Chairman of District Establishment Committee. The impugned order of suspension is, therefore, said to be in compliance with the circular and thus suffers from no infirmity. Some of the factual assertions, namely, that the petitioner met respondent No. 4 or respondent No. 5 after the suspension are controverted and denied. It is asserted that the suspension order has been duly communicated to the petitioner by registered post.
6. A somewhat detailed supplementary affidavit has then been filed on behalf of the petitioner in reply making a change in the original stance and seeking to bring on the record a number of purported statutory notifications issued by the Government under the Act either under Section 8 or otherwise. It is admitted that the earlier notification No. 4557 dated 15th December, 1976 now stands superseded by the later notification No. 3388 dated 2nd December, 1980 issued in the name of the Governor. Thereafter a further notification under Section 8 of the Act, in the name of the Governor, No. 2625 dated 19th November, 1981 (vide Annexure 7) has been issued which, according to the petitioner, removed the District Collectors from the District Establishment Committees and instead Chairman of the Zila Parishad was appointed as its Chairman. Yet again, another notification No. 1532 dated 30th July, 1982 (vide Annexure 8) is said to have been issued whereby some amendments have been made in the constitution of the District Establishment Committee and the Collector was reappointed as its Chairman in place of the Chairman of the Zila Parishad. This in turn, was followed by notification No. 1607 dated 20th July, 1983 (vide Annexure 9) which reconstituted the District Establishment Committee and further broadened by the inclusion of the Chairman of the Zila Parishad or his representative who would attend its meeting in his absence. Further notification No. 2149 the 29th September, 1981 (vide Annexure 10) was then issued under Section 8 of the Act which sought to clarify the administrative arrangements regarding the working of the taken over schools. Lastly, Notification No. 2593 dated 11th October, 1985 was issued by the Government under Section 8 of the Act making significant addition and clarifications with regard to the powers of the District Establishment Committee (vide Annexure 11).
7. On the aforesaid premises, the stand taken on behalf of the petitioner is that the impugned order of suspension was not passed by the District Establishment Committee, Gopalganj, which is alleged to have not even been consulted nor is said to have approved the suspension order.
8. Learned counsel for the petitioner, Mr. Thakur Prasad, now placed basic reliance on Annexure 11 issued under Section 8 of the Actand in particular para 5 and clause 'gha' thereof. It was contended that even though not expressly, yet by necessary implication, this notification would now supersede all earlier instructions on the point and the disciplinary power, including the power of suspension, thus vested alone in the District Establishment Committee as a whole. Consequently, it was argued that the impugned Annexure 1, on the face of it, not having been issued by the District Establishment Committee, was not valid and such powers of suspension did not vest in the District Magistrate alone. In the alternative, Mr. Thakur Prasad contended that in the earliest notification also issued under Section 8, the relevant Clause 7 whereof is Annexure 2, the District Magistrate does not figure at all as the disciplinary authority whereunder the disciplinary power and suspension was entrusted to the District Superintendent of Education after prior approval or, in any case, consultation with the District Education Officer. On the these premises, it was contended that the District Magistrate in either case had no authority to suspend and the impugned order Annexure 1 would come neither under the ambit of Annexure 11 nor within Annexure 2 and consequently it must fall.
9. In order to appreciate the aforesaid submissions and the notifications issued under the Act, it is necessary to briefly scan the scheme of the few provisions thereof. As the preamble of the Act indicates, the object thereof was to provide for better organisation and development of elementary education in the State of Bihar by taking over of non-Government elementary schools under the control of the State. Section 3 provided for the categories of the non-Government elementary schools to be so taken over, whilst Section 4 enumerated legal consequences of such take over. A District Education Fund and Municipal Education Fund were created by Section 5 Elementary Education Committee was constituted under Section 6. The material provisions of Sections 7 and 8 which call for pointed notice are as under : --
"7. (i) The State Government may make rules not inconsistent with this Act for carrying out the purposes of this Act.
(ii) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before expiry of the session immediately following both the Houses agree in making any modification in the rule or both the Houses agree that the rule should not be made the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
8. If any difficulty arises in giving effect to the provisions of this Act, the State Government may take such action or pass such order as appears to it necessary for the purposes of removing the difficulty."
10. It was common ground before us that despite the passage of eleven years since the enforcement of the Act and, perhaps, even more since the preceding Ordinance, as yet no statutory rules whatsoever have been framed under the express power conferred therefor by Section 7 of the Act. On the other hand, there is no dispute that there is a plethora of circulars and notifications purporting to have been issued under Section 8 of the Act providing for the removal of difficulties.
11. It is in the aforesaid context that one has to analyse the import and scope of the provisions of the afore-quoted Section 8. It is somewhat manifest that this provision is typical of the residuary power that the Legislature may sometime think necessary to vest in the Government whilst enacting a new statute which might present some unforeseen difficulties in its actual and practical application. As is evident from its plain language, the power vested in the Government to take action or pass orders is only for removing difficulties in giving effect to the provisions of the statute. It is only in such an eventuality that Section 8 is to be invoked and either necessary action may be taken or requisite orders passed. However, the scope and the role of such a provision which is not uncommon for the initial implementation of a new statute is too well-known to require an exhaustive elaboration. Plainly enough, such a provision is not to be made into a cloak or a camouflage for colourable exercise of power for making statutory rules which flows from an altogether different section and for which altogether different procedure is prescribed. Section 8, therefore, cannot masquerade as a rule making power under the Act nor as the fountainhead of binding statutory instructions. Since it appears to me that the scope and import of a provision for removing difficulties in giving effect to an Act had been authoritatively elaborated by their Lordships in the following terms in the binding precedent of Madeva Upendra Sinai v. Union of India, AIR 1975 SC 797, it is unnecessary to dilate on the matter any further : --
"For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a "removal of difficulty clause" and the power conferred by it on the Government.
To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexity. Under conditions of extreme pressure, with heavy demands on the time of the legislature and the endurance and skill of the draftsman, it is well -- nigh impossible to foresee all the circumstances to deal with which a statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law. This is particularly true when Parliament undertakes legislation which gives a new dimension to socio economic activities of the Stale or extends the existing Indian laws to new territories or areas freshly merged in the Union of India. In order to obviate the necessity of approaching the legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time consuming amendatory process, the legislature sometimes thinks it expedient to invest the Executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective without touching its substance. That is why the "removal of difficulty clause" once frowned upon and nicknamed as Henry VIIT Clause in scornful commemoration of the absolutist ways in which that English King got the "difficulties" in enforcing his autocratic will removed through the instrumentality of a servile Parliament, now finds acceptance as a practical necessity in several Indian statutes of post independence era."
12. It would be manifest from the above that the very purpose and scope of provision like Section 8 is to remove difficulties when encountered in the enforcement of the Act and to obviate the time consuming amendatory process which may become necessary for its actual working. It is certainly not the fountainhead for the framing, issuance a nd enforcement of statutory rules for which the express power has been conferred by an altogether different Section 7 and the procedure for the valid enactment of such rules. As has been picturesquely noticed by their Lordships above, a provision of the nature of Section 8 was in fact named as the Henry VIII clause and I am compelled to comment that herein the respondent State has been using it in an identically arbitrary and absolutist fashion. The notifications purporting to issue under Section 8 are indeed very far from removing any difficulty in the enforcement of the Act. Indeed, it could not even remotely be contended that the Act itself faced any major problem of enforcement. However, the notifications purporting to emanate from Section 8 far from removing difficulties appear to me as creating further and virtually insoluble difficulties of their own creation. This is evident when even a bare reference is made to Annexures 2, 7, 10 and 11 which are perhaps only a few of the welter of confusing directions and instructions issued by the respondent State purportedly under Section 8 and sought to be enforced in lieu of statutory rules. Thereby far from removing any difficulty in giving effect to the provisions of the Act an amalgam of contradictory instructions have been issued and empirical directions given which not only in some but in most cases seem to be in headlong conflict with each other and appear impossible of a satisfactory resolution or harmonious construction. For instance, department committees and their personnel arc sought to be created in the garb of removing difficulties for giving effect to the provisions of the Act. The forum for suspension and transfer etc. and other routine matters of day to day administration is again sought to be derived from Section 8. It is unnecessary to get lost in the maze and the bye-lanes of the details of the jumble of notifications issued from time to time and purporting to be under Section 8 and it suffices to say that the few aforenoticed annexures lay down a host of instructions and directions purporting to be statutory under the cloak of Section 8 which are at loggerheads with each other. It seems somewhat plain to me on the language of Section 8 itself and the authoritative pronouncement of their Lordships in Madeva Upendra Sinai's case, AIR 1975 SC 797, that this provision authorises no such power and all the notifications (Annexures 2, 7, 10 and 11) are thus devoid of any valid statutory source and, therefore, must fall under their own weight. As will be manifest from the counter-affidavit and equally from the absence of any meaningful representation on behalf of the respondent State, not the least difficulty in giving effect to the provisions of the Act could even remotely be pointed out to us which could warrant the issuance of any one of the aforesaid notifications.
12A. To conclude, the answer to the question posed at the very outset is rendered in the negative and it is held that Section 8 of the Act empowering the State Government to remove difficulties in giving effect to its provisions cannot be used as a cloak for subordinate legislation and as a substitute for the express rule making power under Section 7 thereof.
13. Once it is held as above that Section 8 cannot be camouflaged as the fountainhead for the purpose of framing rules or statutory instructions, it is self evident that the contradictory and jumbled directions given by Annexures 2, 7, 10 and 11 without any coherence and showing a complete absence of any larger scheme or method or consistency are unsustainable in the eye of law. All of them are, therefore struck down hereby.
14. In view of the fact that all the relevant notifications purporting to be under Section 8 have been invalidated it becomes not unnecessary but indeed wasteful to go now into the issue which was sought to be raised before us by the learned counsel for the petitioner that the procedure of suspension under Annexure 2 was mandatory and not directory in its nature and further whether Annexure 11 superseded the earlier directions vide Annexure 2 or similar notifications or was merely supplemental of the same. In the light of the firm findings arrived at above these issues are therefore, rendered purely academic and merit no further adjudication.
15. In the welter of confusion raised by directions purporting to be from the invalid source of Section 8, all that can possibly survive in this context is Annexure 6 which ex facie does not purport or pretend to be rooted in Section 8. In the admitted absence of any statutory rule whatsoever which should have been framed under Section 7, it would be permissible for the respondent-state to issue instructions in view of the ratio laid down by the Constitution Bench in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 in the following terms : --
"It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
In the light of the authoritative enunciation it has to be held that Annexure 6 does not ex facie suffer from any patent vice or infirmity. Thereby the District Magistrate is the designated Chairman of the constituted Committee thereunder. Paragraph 4 of Annexure 6 (as translated) is in the following terms : --
"The District Superintendent of Education will dispose of disciplinary proceedings against teachers after getting orders of the Chairman of the Committee."
Now, the impugned order of suspension under Annexure 1, on the petitioner's own showing has been issued at the behest of the District Magistrate and, therefore, is in substantial compliance with the provisions of Annexure 6.
16. Even otherwise, the power of the employer to suspend an employee pending an enquiry or administrative action against him is too well settled to be easily negatived. The Full Bench in Bhup Narayan Jha v. State of Bihar, 1984 BBCJ 586: (1984 Lab IC 1155) adverted to this aspect in the following terms with regard to suspension by way of a procedural aid to the holding of disciplinary proceedings :
"There is thus no finality or irrevocability attaching to an order of suspension, which as already noticed retains its character of being interim or interlocutory, in nature ;
** ** ** Just as criminal procedure is intended to subserve the basic cause of a free and fair trial, similarly, suspension, as an interim measure in aid of disciplinary proceeding, is directed to the larger purpose of a free and fair inquiry. It would thus seem that the power of suspension is not only necessary, but indeed a salutary power, if reasonably exercised either during the pendency or in contemplation of a disciplinary proceeding."
In the light of the above, the Writ Court would ordinarily be loath to interfere with what has been described by the Full Bench as an order of interim or interlocutory nature subserving to the cause of a free and fair inquiry unless the impugned action can be shown as being in the teeth of the law. I find not even remotely such a situation here. Consequently on either of the grounds the challenge to the order for suspension must falter and fail. The writ petition consequently is hereby dismissed, but without any order as to costs.
17. Before parting with this judgment I cannot help noticing with considerable regret that even an issue of considerable significance and in matters of moment which govern the running of the vast network of the elementary schools in the whole of Bihar, no appearance worth the name was put in on behalf of the respondent State before this Full Bench. We were thus deprived of the assistance on behalf of the respondents which, to our mind, was necessary in an issue of this nature. In a case which exhibited what appears to us as a blatant misuse of the power under Section 8 and a failure to perform the virtually statutory duty of framing the rule under Section 7, the matter seems to have been treated by the .respondents counsel in a somewhat cavalier fashion. In this situation, we are compelled to notice that the Act enforced in 1976 in succession to an earlier Ordinance enacted in its preamble the object of better organisation and development of elementary education in the State of Bihar. The grave failure of not framing any rule at all therefor under the power vested by Section 7 for wellnigh 11 years is thus manifest. It is well settled that the rules under a statute become an integral part thereof and the framing thereof is virtually a legislative function. It was, therefore, that Section 7 provides it as a mandatory duty that these rules be laid, as soon as may be, before each of the house of legislature for a period of 14 days so that the legislature may, in its wisdom, if necessary, make any requisite modification therein. Now that the matter has come up for pointed notice, the least that can be expected from the respondent State is to proceed with the utmost expedition to act under Section 7 for the proper governance, management and development of the elementary education within the State. It goes without saying that this provides the foundation of the educational system and if the very base remains on the shifting sands of contradictory and ambivalent instructions purporting to issue from the unwarranted source of Section 8, then there can be little hope to build any meaningful super structure of higher and technical education thereon. We hope that these observations will be well heeded and will meet prompt compliance.
B.P. Jha, J.
18. I agree.
Nagendra Prasad Singh, J.
19. I agree.