Allahabad High Court
Arvind Kumar vs State Of U.P. And 2 Others on 5 February, 2024
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:19144 Court No. - 4 Case :- WRIT - A No. - 21710 of 2023 Petitioner :- Arvind Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Krishna Mohan Misra Counsel for Respondent :- C.S.C.,Mahesh Narayan Mishra Hon'ble Saral Srivastava,J.
1. Heard Sri Krishna Mohan Misra, learned counsel for the petitioner, Ms. Anuradha Sundaram, learned Additional Chief Standing Counsel for the State and Sri Mahesh Narayan Mishra, learned counsel for respondent nos.2 & 3.
2. The petitioner by means of the present writ petition has assailed the order dated 02.12.2023 passed by the respondent no.3 by which petitioner has been suspended.
3. The petitioner is Cadre Secretary of a primary society. The petitioner has been suspendedby order dated 02.12.2023 passed by the Assistant Registrar on the ground that he has failed to comply with the order passed by this Court in Writ-C No.10601 of 2023 in anticipation of approval of Committee of Management.
4. The aforesaid suspension order has been assailed by the petitioner on the ground that Assistant Registrar/Member, Secretary, District Administrative Committee, Bulandshahar has no power to suspend the petitioner inasmuch as appointing authority is District Administrative Committee of the Centralised Services, and since, there is no resolution of the District Administrative Committee to take any disciplinary action against the petitioner or to suspend him, therefore, suspension order is without jurisdiction. In this regard, learned counsel for the petitioner has placed reliance upon the Full Bench judgement of Lucknow Bench of this Court in the case of Ram Chandra Pandey Vs. District Administrative Committee and Others (1997) 3 U.P.L.B.E.C. 1747.
5. He further contends that the reading of suspension order discloses that charges in the impugned order are not such which may entail major punishment, and therefore, in such view of the fact, the suspension order has been passed mechanically and without jurisdiction.
6. Per contra, learned counsel for the respondents has placed reliance upon the resolution of the District Administrative Committee dated 03.01.2024 by which the District Administrative Committee has ratified the action of the Assistant Registrar/Member, Secretary, District Administrative Committee and thus, it is contended that once the action of the Assistant Registrar/Member, Secretary, District Administrative Committee has been ratified by the District Administrative Committee, the ratification would relate back to the date of action taken by the Assistant Registrar/Member, Secretary, District Administrative Committee against the petitioner. Thus, it is submitted that the argument of learned counsel for the petitioner in respect to the jurisdiction of Assistant Registrar/Member, Secretary, District Administrative Committee to pass suspension order is not sustainable. In this respect, learned counsel for the respondents has placed reliance upon the judgement of this Court in the case of Narendra Pratap Singh Vs. State of U.P. & Others passed in Writ-A No.12943 of 2020.
7. He further contends that the charge sheet has been issued to the petitioner, and if petitioner submits his reply to the charge sheet and participate in the enquiry proceeding, the enquiry shall be concluded against the petitioner expeditiously. Accordingly, it is submitted that it is not a case where this Court should interfere with the order of suspension as the suspension order is not a punishment.
8. Be that as it may, so far as the first argument of learned counsel for the petitioner is concerned, though, it has been held by the Full Bench of this Court in paragraph 8 of the judgement in the case of Ram Chandra Pandey (supra) that Assistant Registrar/Member, Secretary, District Administrative Committee has no jurisdiction to pass suspension order in the absence of any resolution of the District Administrative Committee to initiate any disciplinary proceeding or suspend an employee, but said judgement is not applicable in the facts of the present case in view of the judgement of this Court in the case of Narendra Pratap Singh (supra) inasmuch as in the case of Narendra Pratap Singh (supra), the Court has held that if the action of the Assistant Registrar/Member, Secretary, District Administrative Committee has been ratified subsequently by the District Administrative Committee, the ratification would relate back to the date of action, and illegality in passing such order is removed. Paragraphs 16 & 17 of the judgement of this Court in the case of Narendra Pratap Singh (supra) are reproduced herein below:-
"16. In the facts of the present case however a decision has susequently been taken by the District Administrative Committee to rectify the decision of the Member Secretary to place the petitioner under suspension and to appoint the inquiry officer. This resolution dated 25.1.2021 has been placed before the Court and has been taken cognizance of vide order dated 28.1.2021. This decision of committee, however, is questioned on the ground that no specific decision has been taken by the District Administrative Committee to initiate disciplinary proceedings against the petitioner and that the only resolution is to confirm the order of suspension. This contention does not appear to be correct inasmuch as the District Administrative Committee has taken note of the charges levelled against the petitioner and has categorically approved not only the suspension of the petitioner but has also approved the appointment of the inquiry officer. Although the resolution does not specifically states about the decision taken to initiate disciplinary action but a composite reading of the resolution would make it explicit that the District Administrative Committee has resolved to approve initiation of disciplinary action also. The resolution to appoint inquiry officer would clearly include the decision to initiate disciplinary action against the petitioner. In such circumstances, even if the decision of the Member Secretary was without an authority of law insofar initiation of disciplinary action against the petitioner is concerned but such act clearly stands ratified by the subsequent decision of the District Administrative Committee.
17. Law with regard to ratification of decision has been examined by the Supreme Court in the case of National Institute of Technology (supra). The law on the subject has been noticed in para Nos. 35 to 41 of the judgment which are reproduced:-
"(35) The expression "Ratification" means "the making valid of an act already done". This principle is derived from the Latin maxim "ratihabitio mandato aequiparatur" meaning thereby "a subsequent ratification of an act is equivalent to a prior authority to perform such act." It is for this reason; the ratification assumes an invalid act, which is retrospectively validated.
(36) The expression "ratification" was succinctly defined by the English Court in one old case, Hartman Vs. Hornsby reported in 142 Mo 368 44 SW 242, 244 as under:
'''Ratification' is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance."
(37) The law of ratification was applied by this Court in Parmeshwari Prasad Gupta Vs. U.O.I (1973) 2 SCC 543. In that case, the Chairman of the Board of Directors had terminated the services of the General Manager of a Company pursuant to a resolution taken by the Board at a meeting. It was not in dispute that the meeting had been improperly held and consequently the resolution passed in the said meeting terminating the services of General Manager was invalid. However, the Board of Directors then convened subsequent meeting and in this meeting affirmed the earlier resolution, which had been passed in improper meeting. On these facts, the Court held, "Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on 17-12-1953."
(38) This view was approved by this Court in High Court of Judicature for Rajasthan Vs. P.P. Singh & Anr. (2003) 4 SCC 239.
(39) The aforesaid principle of law of ratification was again applied by this Court in Maharashtra State Mining Corpn. Vs. Sunil (2006) 5 SCC 96. In this case, the respondent was an employee of the appellant Corporation. Consequent to a departmental enquiry, he was dismissed by the Managing Director of the appellant. The respondent then filed a writ petition before the High Court. During the pendency of the writ petition, the Board of Directors of the appellant Corporation passed a resolution ratifying the impugned action of the Managing Director and also empowering him to take decision in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs. 4700 p.m. Earlier, the Managing Director had powers only in respect of those posts where the maximum pay did not exceed Rs.1900 p.m. The respondent at the relevant time was drawing more than Rs.1800 p.m. Therefore, at the relevant time, the Managing Director was incompetent to dismiss the respondent. Accordingly, the High Court held the order of dismissal to be invalid. The High Court further held that the said defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court set aside the dismissal order and granted consequential relief. The appellant then filed the appeal in this Court by special leave. Justice Ruma Pal, speaking for three- Judge Bench, while allowing the appeal and setting aside of the Court held as under :
"The High Court rightly held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act could not be subsequently "rectified" by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, "a subsequent ratification of an act is equivalent to a prior authority to perform such act." Therefore, ratification assumes an invalid act which is retrospectively validated." "In the present case, the Managing Director's order dismissing the respondent from service was admittedly ratified by the Board of Directors unquestionably had the power to terminate the services of the respondent. Since the order of the Managing Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it."
(40) Applying the aforementioned law of ratification to the facts at hand, even if we assume for the sake of argument that the order of dismissal dated 16.08.1996 was passed by the Principal & Secretary who had neither any authority to pass such order under the Rules nor there was any authorization given by the BOG in his favour to pass such order yet in our considered view when the BOG in their meeting held on 22.08.1996 approved the previous actions of the Principal & Secretary in passing the respondent's dismissal order dated 16.08.1996, all the irregularities complained of by the respondent in the proceedings including the authority exercised by the Principal & Secretary to dismiss him stood ratified by the Competent Authority (Board of Governors) themselves with retrospective effect from 16.8.1996 thereby making an invalid act a lawful one in conformity with the procedure prescribed in Rules.
(41) In such circumstances, the respondent's grievance that the dismissal order had not been passed by the competent authority, i.e., the BOG is no longer survived."
9. In such view of the fact, the first submission of learned counsel for the petitioner in respect to jurisdiction of Assistant Registrar/Member, Secretary, District Administrative Committee to pass the impugned order is misconceived and is rejected.
10. So far as the second submission of learned counsel for the petitioner is concerned, the allegation against the petitioner that he has failed to comply with the order of this Court passed in Writ-C No.10601 of 2023 whereas according to petitioner, the power to reinstate an employee is with the Committee of Management or with the Chairman, and the petitioner was not competent to reinstate the concerned employee, this Court is also of the prima facie opinion that allegation against the petitioner as is evident from the impugned order is not such which may entail major punishment
11. In such view of the fact, this Court considering the nature of order to be passed in the present case does not invite counter affidavit.
12. Accordingly, writ petition is disposed off with a direction to the Disciplinary Authority to conclude the enquiry against the petitioner within a period of three months from today in accordance with rules. It is made clear that petitioner shall participate in the enquiry proceeding, and if petitioner does not participate in the enquiry proceeding, the Disciplinary Authority shall conclude the disciplinary enquiry exparte.
13. It is further provided that the suspension order dated 02.12.2023 shall remain stayed till the conclusion of disciplinary enquiry against the petitioner, and shall abide by the order passed by the Disciplinary Authority.
Order Date :- 5.2.2024 Sattyarth