Madras High Court
Mrs. S. Aruna And Anr. vs Secretary To The Government Of Tamil ... on 21 February, 1994
Equivalent citations: (1996)ILLJ174MAD
ORDER Baktha Vatsalam, J.
1. The prayer in W.P.No. 700 of 1993 is to issue a writ of certiorarified mandamus calling for the records relating to the impugned order Roc.No. 18879/92/K-4 dated December 30, 1992 issued to the petitioner and quash the same and direct the respondent to give all monetary benefits.
2. The prayer in W.P.No. 701 of 1993 is to issue a writ of certiorarifed mandamus by calling for the records relating to the impugned order Roc No. 18879/92/K-4 dated December 30, 1992 and quash the same and direct the respondent to regularise the service of the petitioner.
3. Both the writ petitions are preferred against the orders of termination of the respondent dated December 30, 1992.
4. The petitioner in W.P.No. 700 of 1993 alleges in the affidavit that she was appointed as a coordinator under the respondent during the Tamil Invitation Club and put on probation for a period of six months and that after successful completion of the period of probation, an order of appointment was issued as Liaison Officer with effect from July 6, 1991 in the scale of pay of Rs. 1500-125-3000 besides all other allowances. It is also alleged in the affidavit that consequent upon vacancies, proposals were sent to the Government by the respondents to promote her as Assistant Secretary in the place one Srinivasan, who was to be promoted as Deputy Secretary. It is also alleged in the affidavit that the Committee of Management of the Department of Racing, which consisting of five Government officials and five outsiders, had passed a resolution proposing to terminate the services of the temporary officials and that taking advantage of the said resolution, the impugned order has been passed by the respondent. It is also stated in the affidavit that she was qualified for being appointed as Co-ordinator, that probation was declared being satisfied with her services and that subsequently she was regularised as Liaison Officer in the regular scale of pay. It is also stated she was also put in charge of Refreshment and Central Stores additionally. It is also stated that the respondent intact recommended her name for promotion to the post of Assistant Secretary and as such the respondent cannot, without any application of mind, take advantage of the resolution of the committee of management, terminating the services of persons like the petitioner herein, who were duly regularised. It is also alleged that the petitioner has put in services of more than 240 days continuously and as such without any proper notice or without complying with the provisions contained in the Industrial Disputes Act, 1947, the respondent cannot terminate the services of the petitioner. It is also stated in the affidavit that the petitioner moved the State Administrative Tribunal in O.A.No. 24 of 1993 and the same was withdrawn since the Tribunal was of the view that the same was not maintainable. The petitioner also alleges that the action of the respondent in terminating the services of the petitioner pursuant to the impugned order is unjust, illegal and violative of Articles 14 and 16 of the Constitution of India. It is also alleged that the respondent ought to have seen that the service rendered by the petitioner was not temporary and that therefore the action of the respondent is illegal and arbitrary. It is pointed that the petitioner was recommended for promotion as Asst. Secretary and that being so the respondent cannot terminate, the services of the petitioner and that the action of the respondent is punitive. It is also stated that the impugned order in so far as it relates to the termination of the services of the petitioner is concerned, is violative of the provisions of the Industrial Disputes Act. It is also stated mat the petitioner is fully qualified to hold the post of Liaison Officer and even at the time of initial appointment the petitioner was fully qualified to hold the post.
5. The petitioner in W.P.No. 701 of 1993 alleges in the affidavit filed in support of writ petition, that he is a degree holder in Economics, that he was appointed as Junior Assistant/Clerk by the respondent and that he has been working in the said post without any interruption till date. In the affidavit it is stated that in pursuance of the resolution proposing to terminate the temporary officials working in the Department of Racing, the impugned order has been passed terminating the services of the petitioner. It is also stated that the petitioner herein has put in continuous service of more than 240 days and therefore without any proper notice or without complying with the provisions of Industrial Disputes Act, 1947, the respondent cannot propose to terminate the services of the petitioner. It is also stated that the petitioner tiled O.A. 25 of 1993 before the State Administrative Tribunal and the Tribunal was not inclined to interfere with the impugned order therein and as such the said application was withdrawn. The Petitioner also alleges that the action of the respondent is in violation of Articles 14 and 16 of the Constitution of India. It is also alleged that the respondent ought to have seen that the petitioner is duly, qualified to hold the post of Junior Assistant/Clerk and that he has rendered continuous service of more than 240 days and as such the respondent cannot terminate the service of the petitioner, without following the procedure as contemplated under the provisions of Industrial Disputes Act, 1947.
6. Though counter-affidavit has been filed in the miscellaneous petitions for the limited purpose of vacating the interim order of stay granted by this Court, it is stated by Mr. Mohan Parasaran, the learned counsel appearing for the respondent that mis counter affidavit can be taken as a counter-affidavit filed in the main writ petition.
7. It is stated in the counter affidavit that the writ petition is wholly misconceived both in law and on facts. It is also stated that the services of the petitioner were terminated with effect from December 31, 1992 and the order has been given effect to. It is also stated that the Department of Racing and the affairs of the Madras Race Club are under the control of the Committee of Management appointed by the Supreme Court of India, headed by a retired Judge of the Supreme Court and based on the decision taken by the said committee, the services of the petitioner and others were terminated for valid reasons. It is stated that the petitioner was originally appointed on September 8, 1990 as Liaison Officer with effect from September 9, 1990 to March 31, 1991 purely on temporary basis and the designation of the petitioner itself as "temporary Liaison Officer" and subsequently the designation of the petitioner was changed to that of a Coordinator for Invitation Arrangements', extending her appointment on April 1, 1991 until further orders, purely on temporary basis. It is further stated in the counter-affidavit that it was decided by the then Secretary of the Madras Racing undertaking to temporarily appoint on a fresh basis the petitioner in her capacity as a temporary administrative officer on July 28, 1991, that order was kept in abeyance and mat the petitioner was appointed by order dated September 14, 1991 as an official in the Refreshment section in the grade of Rs. 1500-155-3100 on a salary of Rs.1500/-per month with effect from September 6, 1991. It is further claimed in the counter affidavit that the appointment order itself was made purely on temporary basis and that it was mentioned in the said order itself that the service of the petitioner was liable to be terminated at any time without assigning any prior notice. It is also stated that the decision of the Department of Racing to terminate the services of the petitioner and others, who were appointed temporarily, was backed by reasons and that the termination cannot be termed as arbitrary or fanciful. It is also stated that for sometime the Committee of Management was concerned with the fall in the income of the Department of Racing and losses were mounting from time to time and the matter had come up for discussion before the Committee of Management on October 8, 1992 and after detailed discussions, the Custodian was instructed by the Committee of Management to streamline the establishment and terminate the services of the employees in a phased manner. It is also stated that in the meetings held on November 13, 1992 and on December 22, 1992, the Committee of Management, taking note of the fact of surplus employees working in temporary capacities, gave instructions to the Custodian to terminate the services of all temporary employees with effect from December 31, 1992. it is also claimed that the temporary employees were terminated from service on a policy basis, in view of mounting losses suffered by the Department of Racing and after due consideration by the Committee of Management. It is also stated that in view of the factual position and in view of the conditions and nature of appointment, the termination of the petitioner and others was passed based on the decision of the Committee of Management and that it is perfectly legal and valid in the eye of law.
8. With regard to the Writ Petition 701 of 1993, almost similar contentions raised in Writ Petition 700 of 1993, are raised.
9. A common reply affidavit has been filed by the petitioner. It is stated in the reply affidavit that the respondent cannot terminate their services without following the principles of natural, justice. It is also stated in the reply affidavit, that juniors to the petitioners have been retained in services and as such the action of the respondent is arbitrary and illegal. It is pointed out in the reply affidavit that due to the efforts of the petitioner the respondent earned considerable profits and revenue. It is also stated that the respondent was contemplating the petitioner in W.P.700 of 1993 to the post of Assistant Secretary in recognition of merit and service and as, such the action to terminate her was initiated with the mala fide intentions to satisfy the ego of the Secretary. It is also pointed out that even after the alleged termination of the petitioner and others, by proceedings of the Committee of, Management dated January 21, 1993, the service of a temporary employee Dr. M. Balakrishnan was extended and as' such the action of the respondent terminating the service of a regular employee is illegal and invalid in law.
10. An additional affidavit has been filed by the petitioner in W.P. No. 700 of 1993 on November 20, 1993 in which it is stated that the respondent has terminated the services of the petitioners without assigning reasons and that it is in violation of the provisions of Section 25F and 25N of the Industrial Disputes Act. It is pointed out that the respondent in its meeting of January 21, 1993 has held that it was necessary to continue the services of Dr. M. Balakrishnan, temporary medical officer beyond January 1, 1993 until further orders and that subsequent to the termination of the services of the petitioner, the respondent has appointed temporary typist and drivers in the place of some of them and that they have been deputed to do the work at the residence of the Chairman. It is also pointed out that the committee on May 9, 1993, decided to have six days week for all the employees in view of the workload and as such, the allegation made in the counter affidavit that the petitioners were surplus employees and their services are no longer required is a misnomer and the same is misleading. It is also pointed out that the allegation that the race club is in severe financial crisis is also false. It is also stated that the Chairman, Custodian and the Secretary representing the Department of Racing attended conference at Hong Kong spending a couple of lakhs of rupees and that the department has donated a sum of Rs. 3 lakhs for the construction of 'Nehru Stadium' at Madras. It is pointed out that the respondent in so far as the petitioner in W.P. 700 of 1993 is concerned, has been sanctioned two increments and allowed to draw arrears of pay and allowance and as such the respondent has recognised the petitioner as a regular and permanent staff and that when such is the case, the action of the respondent is arbitrary, whimsical and capricious. It is also stated that the petitioner has commenced the probation from the date of her first temporary appointment and that since the respondent Board did not prescribe any period of probation, the petitioner is deemed to have completed the probation. It is also pointed out that the tact she was recommended for promotion and appointment as Assistant Secretary lends full support to her case that she is a regular employee. It is also pointed out that under the provisions of the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 (hereinafter referred to as the Act 1986) that the undertaking of the Madras Race Club stands transferred to and vested in the Government, that under Section 6 of the Act the Government has the power to vest the undertaking vested in them with a Government company and that under Subsection (2) of Section (9) of the Act, where the undertaking has not vested in a Government company, the control, management of the Madras Race Club vests with the Custodian. It is also pointed out that since the petitioner was appointed after the appointed day, they are all employees of the Madras Race Club, as per the provisions of the Act and as such it is not open to the respondent to terminate the services of the petitioners without assigning any reasons, and such termination would be ex facie unconstitutional and void as offending Articles 14 and 16 of the Constitution of India. It is also pointed out that the respondent Board has no power or jurisdiction to issue the impugned order, in as much as the affairs of the management of the Madras Race Club are vested with the Custodian, It is also pointed out that the impugned order has been passed on account of the fact that she submitted a report during November 1992 with regard to the functioning of the canteen in which it was inter alia pointed out by her that canteen articles have been delivered at the residence of the Secretary without voucher and as such it is stated that the order of termination is mala fide and illegal.
11. The Writ petition was heard by this Court on several occasions on several dates. During the, course of the hearing, certain clarifications were asked by this Court with regard to the status of the employees of the Department of Racing as to whether they are Government employees or not, so affidavit and counter reply affidavits are, filed by parties.
12. A question was posed by this Court as to what was the status of the petitioner in W.P. 700 of 1993 whether a permanent employee or not. To that, an affidavit has been filed by an Assistant Secretary of the respondent Board stating that the petitioner in W.P. 700 of 1993 was only continued temporarily with effect from April 1, 1991 by order dated April 6, 1991 until further orders, that on July 28, 1991, she was continued temporarily and was posted as Temporary Administrative Officer, Refreshment and Central Stores with effect from August 1, 1991. It is also pointed out that she was subsequently placed in the grade of Rs. 1500-125-3100 on a salary of Rs. 1500/- per month as an official in the Refreshment section, which appointment was also temporary, with effect from September 6, 1991 by order dated September 14, 1991. It is also stated that the appointment of the petitioner in W.P. 700 of 1993 was purely contractual and was temporary and could be terminated in terms of the said appointment order itself at any time. It is also stated that the decision of the committee of management to terminate the temporary employees was taken due to financial crisis which itself worked out to Rs. 75 lakhs. It is also pointed out that in matters pertaining to the employees of the Madras Race Club including their regularisation, the Supreme Court has stayed the operation of the order of the Division Bench of this Court, as all the questions are pending before the Supreme Court of India, which is seized of the affairs of the Madras Race Club.
13. An affidavit has been filed by K. Balarama Das, who is a member of the Committee of Management of the respondent Board on December 21, 1993. It is stated that the Committee of Management of the Madras Racing undertaking was for quite some time concerned with the surplus staff who virtually had no work to perform, that the Committee of Management had therefore considered the issue at its meetings held on October 8, 1992, November 22, 1992 and on December 22, 1992. It is also stated in the affidavit that the deponent of the affidavit brought to the notice of the Committee of Management that if the services of the temporary employees were terminated, the Club would be benefited financially and that it will not have adverse effect on the administration of the affairs of the Racing Undertaking. It is also stated that the Committee of Management had unanimously resolved authorising the Custodian to terminate the services of the temporary employees. It is stated that the petitioners before this Court were temporary employees and that they are terminated based on the said policy decision. It is also stated that the order of termination was signed by the secretary of the Board, though the decision was taken by the Committee of Management and it had directed the Custodian to issue termination orders and as such the Committee of Management was aware of the termination orders. Since this Court's attentions was invited to the fact that the impugned orders had been singed by the Secretary of the respondent Board, the matter was once again placed by Circular resolution before the Committee of Management as well as the Chairman and it has been resolved to ratify and confirm the termination orders. A copy of the resolution dated December 20, 1993 has been produced, before this Court on December 22, 1993.
14. A rejoinder has been filed by the petitioner in W.P.No. 700 of 1993, countering the averments made by K. Balarama Das. It is stated that under the provisions of the Act, the general superintendence, direction control and management of the affairs of the business of the undertaking of the club vest with the Custodian appointed by the Government. It is also pointed out that as per the order of the Supreme Court in S.L.P. No. 10715 of 1986 dated October 30, 1986, it has been made clear that the Committee of Management is not to be in charge of management of the club and the Custodian is not merely to act as its Secretary. On the contrary it is stated that Custodian will be in charge of the ordinary routine administration of the affairs of the Club, that he has to consult the committee of management whenever there is administrative decision or policy decision is to be taken. It is also pointed out that even then the Custodian should consult the Committee of Management before taking any decision and he has to get on in accordance with the decision of the Committee of Management. It is also stated that it was made clear that the Custodian need not wait for the Committee of Management where any administrative decision or policy decision has to be taken. Referring the order of Supreme Court dated October 30, 1986, it is stated that all mattes of routine administration should be carried out only by the Custodian and that the role of the Committee of Management is only to decide on any administrative decision or policy decision which is not of a routine character, and as such the Custodian alone can decide about the termination of the services of the surplus temporary staff. It is also stated that the Committee by resolution in the meeting held on November 23, 1992 and December 22, 1992 assumed certain powers not vested in them. It is pointed out that the Custodian in his note with reference to the resolution in the meeting held on November 23, 1992 that 66 vacancies had arisen after the takeover by the department due to retirement, resignation and death and as such the resolution passed on November 23, 1992 required modification and that Committee of Management has no power to issue the direction to the Custodian to terminate the services of the employee. It is also pointed out that the Committee asked the Custodian to adjust the employee against 66 vacancies, by resolution dated December 22, 1992, and then ascertain the surplus staff and serve orders of termination on such alleged temporary employees. It is stated that unless and until the Custodian decides about the number of surplus temporary officials the above said resolutions cannot be implemented. It is also stated that the Custodian has not recommended the termination of her services as he has not found that she is a temporary/surplus staff. It is also stated that the resolution dated December 20, 1993, purporting to ratify the termination of her services is illegal and invalid. It is also stated that the present Custodian has not delegated the administrative powers including the power of termination to the present Secretary and as such the impugned order issued to the petitioner suffers from total lack of jurisdiction and powers. It is further stated that the resolution dated December 20, 1993 cannot cure the illegality in the order of termination issued to her. It is also stated that the Custodian is not a party to the resolution dated December 20, 1993, and that it is not preceded by any Agenda. It is also stated that the ratification shows that the Secretary is acting at the behest of some of the members of the Committee of management who are hellbent to throw the petitioner out of job. It is pointed out that on the basis of her report, the free supply of catering items to respondent and to Mr. K. Balaram Dass was stopped. It is also pointed out that during October 1992 at about 11.00 a.m. the said K. Balaram das wanted to her bring the official records to Ms residence and that she made a complaint about this to the Custodian about the same, and that it will show that the Said K. Balaram Das was biassed against her. It is also stated that it is understandable as to how the said K. Balaram Das stated that the committee of management was concerned with surplus staff when nobody had undertaken an exercise to find out the so called surplus staff and their strength. It is also stated that it was found that catering section was incurring a huge loss in the region of Rs. 7 lakhs every year, when the Committee of Management decided to lease out the refreshment section, that the said K. Balaram Das specifically wanted the cooks and kitchen staff to be continued in service and as such it is very clear that the said K. Balaram Das is in favour of cooks and kitchent staff and that the same is evident from the proceeding of the management dated January 21, 1993. It is further stated that the said suggestions were suggested after knowing that the impugned order was issued to her.
15. As the Custodian has not filed an affidavit, an affidavit is called for from the Custodian to clarify his stand. The present Custodian has filed an affidavit on January 10, 1994, and to understand the facts of this case, it is necessary to extract three paragraphs of the said affidavit and it reads as follows:
"..... I am the Custodian of the Department of Racing appointed by the Government of Tamil Nadu pursuant to the powers vested in it under the Madras Race Club (acquisition and Transfer of Undertaking) Act 1986. I am to state that the Committee of Management at the meetings held on October 8, 1992, November 23, 1992 and December 22, 1992 had resolved to terminate the services of certain temporary employees including the petitioners in the above Writ Petition viz. S-Aruna and V.R. Krishnamurthy. I was invited to the said meetings by the Chairman of the Committee of Management in view of my capacity as the Custodian of the Department of Racing.
At the said meetings, the Committee of Management had resolved to terminate the services of various temporary employees pursuant to its policy decision. I understand that certain objections were taken to the order having been issued by the Secretary of Department of Raring and not by me. I would further wish to state that in view of these objections.
I find that the Committee of Management has now ratified the action of the Secretary in terminating the services of the petitioners in W.P.Nos 700 and 701 of 1993 by the resolution dated December 20, 1993 The decision to terminate the services of the Writ Petitioners has been taken by the Committee of Management. Orders have been issued by the Secretary, Department of Racing and ratified by the committee by the said resolution. I would also further wish to state that the termination of services of certain temporary employees including the petitioners in W.P.Nos 700 and 701/93 was taken as the Committee of Management found it expedient in view of the mounting financial losses, which the Madras Racing Undertaking was incurring...."
The affidavit filed by the present Custodian seems to be only a narration of facts and he has not stated as to what are the powers of the Custodian under the provisions of the Act or the orders of the Supreme Court of India.
16. Mr. A.L. Somayaji, the learned counsel appearing for the petitioners contends that it is a misnomer to call the petitioners as temporary employees. He contends that the petitioners were appointed on regular scale of pay, that allowances were granted and that the respondent admitted them as regular employees and as such petitioners cannot be characterised as temporary employees. The learned counsel demonstrated from the sequence of events, which have been narrated in the facts stated above to show that the petitioners cannot be characterised as temporary employees. It is also stated by the learned counsel that all of them are from 1990 onwards in the service of the respondent Board and the petitioner in W.P.No. 700 of 1993 has been recommended for promotion as assistant Secretary. In the alternative, the learned counsel stated that what has been resolved by the Committee is with regard to surplus temporary employees, the respondent ought to have identified as to who are the surplus employees and that the impugned order did not identify the petitioners as temporary employees. It is also contended that no reasons are given in the impugned order and as such it is arbitrary and illegal. Learned counsel pointed out that what all the reasons stated in the impugned order are that the petitioners are temporary employees and as such their services are no longer required by the Department. According to the learned counsel, the very basis of the impugned order that the petitioners are temporary employees is misconceived. It is stated by the learned counsel that the reliance made by the respondent in Central Inland Water Transport Corporation v. Tarun Kant Sengupta (1986-II-LLJ-171)(SC) is only with regard to the power in the order of appointment and as such it is not open to them to give reasons in the counter-affidavit which were not found in the impugned order, and support the impugned order. It is also pointed out that even otherwise, the impugned order has got to be set aside as it has been passed in violation of the provisions under Section 25F or 25N of the Industrial Disputes Act, 1947. Referring to the donation offered by the respondent Board to the Nehru Stadium and the expenses incurred by the Chairman and other Committee members in touring Hongkong and other foreign countries, it is stated by the learned counsel that the statement that there is mounting of losses in the department is only a lame excuse. The learned counsel contends that the Committee of Management has passed a resolution on May 9, 1993 to have six days week in view of the workload and as such, it cannot be said that the petitioners herein are surplus staff and that they have been terminated for want of work. It is further contended by the learned counsel that the impugned order is tainted with mala fides on account of the report given by the petitioners in W.P.No. 700 of 1993 especially against Mr. K. Balaram Das, who is responsible in passing such a resolution. Learned counsel further pointed out that on May 18, 1990, a resolution has been passed stating that the Rules in respect of claiming loans and advances, general services conditions and leave travel concessions applicable to the Government servants will be made applicable to the employees of the respondent Board since they have been brought under government scale and that under this Rule, the petitioners have been appointed, probation has commenced from the date of temporary appointment. It is also pointed out by the learned counsel that the end of the prescribed extended period of probation, if no order is passed declaring probation within six months, it is deemed to have been completed probation. The learned counsel contends that it is only a formal sanction and usual order has to be issued. Learned counsel refers to the service conditions of the respondent Board and also the order note put up by the Custodian on July 4, 1991 with regard to two employees, one of whom is the petitioner in W.P. No. 700 of 1993, contends that the order note of the Custodian mentioned above clearly shows that the petitioner in W.P.No. 700 of 1993 has been recommended for fixing her official scale of pay in the scale of pay of Rs. 1500-125-3100. It is also stated by the learned counsel for the petitioner that she was appointed on a temporary basis upto March 31, 1991 on a fixed consolidated pay and that the Committee decided to continue the services by resolution dated March 30, 1991. It is also pointed out by the learned counsel for the petitioner that in the note of the Secretary, Department of Racing dated August 30, 1991 it has been stated that services of the petitioner in W.P.No. 700 of 1993 were found to be good and useful to the department, her services have been continued that she is not on a contract basis and that since her work has been most satisfactory she should be placed in an appropriate scale of pay. Learned counsel also refers to the resolution of the Committee of Management dated September 5, 1991 (Shown as item No. 8) in which it is stated that in view of the recommendations of the Secretary, the work of the petitioner in W.P.No. 700 of 1993 and another was found to be good and they have been found useful to the department that the members present are of the unanimous view that the scale of pay recommended by the Custodian by note dated July 4, 1991 is approved. Learned counsel also pointed out that by the very same resolution it has been stated that the Custodian has been asked to place before the Committee the details of persons employed in each department and their justification. Learned counsel further refers me to the letter dated November 18, 1992 addressed to the Custodian by the Secretary, Home Department, with regard to the letter of the Custodian for promoting the petitioner in W.P.No. 700 of 1993 and two others, in the place of one Srinivasan who is to be promoted as Deputy Secretary, It is pointed out by the learned counsel, that in that letter the petitioner in W.P.No. 700 of 1993 has been appointed as Liaison Officer only on September 6, 1991 that she is drawing a salary of Rs. 1500 in the scale of pay of Rs. 1500-125-3100. As such, the learned counsel contends that it cannot be said that the petitioner is a temporary employee, though the respondent Board is taking a stand now on the basis of the appointment order that the petitioner in W.P. 700 of 1993 can be terminated at any time. Learned counsel further refers me to the provisions of the Act 26 of 1986 and contends that it is only an undertaking and that the employees cannot become the Government employees. Learned counsel also contends, referring to the decision in Babian v. Lt.Col. Offg. CoL Branch H.C.(1993)2 MadLLJ 265 for the proposition that when the employees have been in service for a long time to throw them out is arbitrary, and contends that the impugned order in this case is arbitrary and against public policy.
17. Mr. A.L.Somayaji, the learned counsel for the petitioner further contends that the impugned order is signed by the Secretary, department of Racing, that by virtue of Section 9 of the Act, the general superintendence, direction and control and affairs of the business of the Madras Race Club vests with the Custodian that the Supreme Court by order dated April 30, 1986 has clarified that the Custodian will be in charge of running of races subject to the supervision of the committee of management, that by its further order dated October 30, 1986, the Supreme Court has clarified that Custodian will be in-charge of the races subject to the Supervision of the Committee of Management and as such the order of termination could be issued only by Custodian. Referring to this, learned counsel submits that the order of termination issued by the Secretary, in this case is not valid. Learned counsel further stated that the contention that the Committee of Management by circular dated December 20, 1993 ratified the action of the Secretary, in terminating the petitioners cannot be accepted since the said ratification has been made during the pendency of stay order in the Writ Petition and the issue is sub-Judice. It is further contended that the power of termination is exclusively vested in the Custodian and not on the Committee of Management, and as such the impugned order made by the Secretary suffers from want of jurisdiction. Learned Counsel further contends that under Section 30 of the Act the Government alone is empowered to delegate the powers with regard to mattes specified therein, and as such the Custodian cannot delegate his powers. Learned counsel further contended that under the resolution of the Committee of management, it is obligatory on the part of the Custodian to have ascertained the surplus temporary staff whose services are not really required by the Department, and that no such exercise was undertaken by the Custodian to ascertain the excess and surplus staff and as such the order of termination is arbitrary and unreasonable.
18. Mr. Mohan Parasaran, the learned counsel appearing for the respondent states that in so far as the Supreme Court has not stayed the operations of the provisions of the Act, this Writ Petitioner is not maintainable, as the petitioner is a Government Employee. Learned counsel points out that the management of the affairs of the erstwhile Madras Race Club is subject to the over all supervision of a Committee of Management appointed by the Supreme Court in which both the Government and the erstwhile Madras Race Club have equal representation and that at present it is headed by a retired Judge of the Supreme Court, as its Chairman, Referring to Section 12 of the Act, learned counsel contends that merely because the Government has not framed the conditions in respect of all the employees it cannot whittle down the effect of Section 12 of the Act. Learned counsel also contended that the framing of rules pertaining to service conditions are procedural in nature and that the same have to be done by the Executives and can not have any effect on the impact of Section 12 of the Act. Learned counsel further contended that the petitioners can agitate only before the Tamil Nadu Administrative tribunal and as such this Writ Petition has got to be dismissed in limine.
19. Learned counsel further contends that even if the writ petition is maintainable, the appointment of the petitioners is still contractual in nature, that they are temporary employees, that they have not been regularised and as such the termination is a valid one. Learned counsel further contended that the order of termination is legally valid because the order of termination is 'termination simpliciter' without causing any stigma on the petitioners. He refers to the decision in Director Institute of Management Devel-opment U.P. v. Pushpa Srivastava (1993-I-LLJ-190)(SC) and also the decision in Surendra kumar Gyani v. State of Rajasthan 1993-II-LLJ-903 Learned counsel further contended that the Race Club is incurring losses and as such the Committee of Management has taken a decision to put an end to the services of the temporary employees and that when the services of the petitioner have been terminated on the ground of appointment orders, it cannot be challenged before this Court. Learned counsel further contended that even if it is taken that the probation period has started, if the work is not satisfied, there will be no automatic confirmation and relied upon the decision in Government of Tamil Nadu Rep. by Custodian Department of Racing v. Tamil Nadu Race Course Employees Union :(1992 Lab 1C 2004). Learned counsel further contended that even if the petitioners are not Government servants the services of the petitioners have been terminated only in pursuance of the conditions found in the appointment order, and as such it is valid.
20. Learned counsel further contended that the Secretary of the respondent Club has issued the order only pursuant to the decision taken by the Committee of Management. It is also contended by the learned counsel that the order of the Supreme Court dated October 30, 1986 cannot be to mean that the Committee of Management, whenever takes a decision, has to implement its decision only through the Custodian. According to the learned counsel the Supreme Court by its orders, puts a restriction on the powers of the Custodian who could not act unilaterally in the administration of the Race Club and whenver a policy decision was taken he was to always consult the Committee of Management and any decision or a routine matter was to be informed by him to the Chairman of the Committee of Management. Learned Counsel also contended that the order of the Supreme Court does not in any manner-put any restriction on the powers of the Committee of management to take decision by itself. It is also stated that the issuance of termination orders are not of statutory character but they are only administrative in nature for the internal business of the respondent Department of Racing and as such that resolution cannot be relied upon to contend that the impugned orders herein should have been issued by the Custodian and not by the Secretary. Department of Racing. It is further contended that the petitioners herein have been terminated based on the decision taken by the Committee of Management and that it does not matter whether the order has been issued by the Custodian or by some other authority, as long as the decision has been taken by the Committee of management, learned counsel also pointed out that it is nobody's case that the impugned orders have been made by the Secretary him self. Learned Counsel further contended that the subsequent ratification would only clarify that the decision of the respondent for termination was done at the instance of the Committee of Management. Learned counsel also contended that the Custodian was fully aware of the position, that he was also a participant in the Committee Meetings in which the decision was taken to terminate the temporary employees and that he was also aware of the orders passed by the Secretary of the Department of Racing, the respondent herein, in terminating the petitioners. Learned counsel further contended that the Custodian has not denied the above said fact in the affidavit filed before this Court and therefore the orders of termination, pertaining to the petitioner in these writ petitions cannot be filed even assuming that the Custodian should be a party to such decision. Learned counsel further contended that for the sake of uniformity and consistency and in order to clear ambiguity with regard to the status of employees of the respondent Club, this Court should lean in favour of the interpretation that the petitioners herein have become the Government Employees.
21. Mr. A.L. Somayaji. learned counsel for the petitioner, replying to the arguments advanced by the learned counsel appearing for the respondent Board refers to Section 15 of the Tamil Nadu Administrative Tribunals Act 1985 contends that the petitioners herein were not appointed to any civil service of the State or any civil post under the State and as such the petitioners cannot be deemed to be a Government servant, in view of the provisions of the Act, mentioned above. Learned Counsel also stated that it had been resolved by the members that the manpower in the respondent Department has to be reviewed, and that the Custodian will place before the Committee at its next meeting the details of persons employed in each department and their jurisdiction. So according to the learned counsel for the petitioners, with regard to the requirement to find out the surplus staff, no action has been taken to identify the number of persons. It is also stated that when the resolution has been passed on December 22, 1992, in the Custodian's note with reference to Resolution No. 1 of the meeting held on November 23, 1992, it is seen that the Custodian has stated that 66 vacancies had arisen after 'take over' by the respondent Department due to retirement, resignation and death and as such, the resolution directing termination of services of all the remaining staff requires modification. It was stated that the Custodian was asked to adjust the employees, against the aforesaid vacancies and work out the number of temporary employees to be terminated from service with effect from December 31, 1992. According to the learned counsel, the exercise of Custodian has not been done when the resolution has been passed and the impugned order has been passed within ten days and there is no basis for such order of termination. Learned counsel also replied that two increments have been granted to the petitioner in W.P. No. 700 of 1993, that the petitioner in W.P. No. 700 of 1993, deemed to have completed the probation satisfactorily. Learned Counsel contended that the Committee of Management was appointed along with Custodian in pursuance of the orders of the Supreme Court and as such virtually the operation of the Act has been stayed. It is also stated that a reading of the impugned order shows that the employees like that of the petitioners have been appointed by the Committee of Management and as such the administrative Tribunals Act will not apply as they are not Government servants.
22. During the course of arguments and after going in to the provisions of the Act 1986, this Court wanted to ascertain the Stand of the State, as to whether the petitioners are Government employees or whether the Act has been given effect in toto, when no proper answer was forthcoming from the learned counsel appearing for the respondent, the Department of Racing, this Court requested the learned Advocate-General to assist the Court and state the exact status of the employees of Racing Club in law as on date.
23. Learned Advocate-General appeared before this Court and took me through various provisions of the Act, 1986. Learned Advocate-General referred to Section 9(1) of the Act and stated that on and from the appointed date, the general superintendence, direction, control and management of the affairs and business of the undertaking of the Club, vest in the Custodian, appointed by the Government, under Sub-section (2) of Section 9 of the Act. The Custodian was appointed on April 9, 1986. It is also stated that the provisions of the Act were not stayed by the Supreme Court, and as such the Management of the Madras Race Club vests with the Custodian. Learned Advocate-General refers to Section 12(1) of the Act and states that all club employees, on and from the appointed day, become the employees of the Government Learned Advocate-General then referred to the orders of the Supreme Court passed on April 30, 1986. Learned Advocate-General pointed out that as per the orders of the Supreme Court in W.P. Nos. 665 and 666 and 726 of 1986, dated April 30, 1986, mentioned above, rule nisi was issued returnable by August 19, 1986, It is also pointed out that by order dated April 30, 1986 the Supreme Court has ordered that pending hearing and final disposal of the Writ petition, the Custodian will be in charge of running the races but he will do so subject to the supervision of a Committee of Management consisting of 12 persons, six being nominated by the Government of Tamil Nadu and the other six being elected by the members of Madras Race Club and requested Ismail, Chief Justice, to act as Chairman of the Committee. Learned Advocate General then referred to the clarification issued on October 30, 1986 by the Supreme Court, where a Special Leave Petition was riled by the State against the order of a learned single Judge of this Court, where a direction was given to the Custodian not to take any decision thereafter pending further orders. Learned Advocate- General pointed out that the Custodian will be in charge of running the races but he would be subject to the supervision of the Committee of management and that it has been directed by the Supreme Court that the Custodian, where an administrative decision not of a routine character or any policy decision has to be taken the Custodian must consult the Committee of Management before taking any action. It is also stated that in routine matters the Custodian need not consult any one prior to taking action though the action taken by him even in such matters must be intimated forthwith to the Chairman of the Committee of Management. Learned Advocate-General refers to G.O. Ms. No. 973 Home (Forensic Sciences) Department dated April 9, 1986 and points out that a new department to give effect to the provisions of the Act has been created which is called the 'Department of Racing, Government of Tamil Nadu'. Learned Advocate-General also pointed out that orders regarding the issue of amendments to the business rules and secretariat instructions had not been issued by the Government in Personnel and Administrative Reforms Department separately. Learned Advocate-General also pointed out the Government Order in G.O. Rt. No. 1715 Public (Special-A) Department dated April 9, 1986, by which sanction has been accorded to the creation of a temporary post of Custodian of the Department of Racing in the supertime scale of the IAS, for a period of one year from the date of appointment. Learned Advocate-General also referred to G.O.Ms. No. 1786 Home dated August 16, 1988 by which the Government has declared the Department of Racing as a commercial department and also letter dated February 28, 1989, by which the Joint Secretary to Government has informed the Custodian to avoid the usage of the heading 'Madras Racing Undertaking' and use the correct heading as' Department of Racing (A Commercial Department), Government of Tamil Nadu, Madras 600 032; the learned Advocate-General then refers to G.O.Ms.No. 1314 Home (Forensic Science) Department dated July 13, 1989 by which the Custodian, Department of Racing will be the Drawing Officer attached to pay and accounts office (South) Madras-35. However, the learned Advocate-General has pointed out that no action has been taken by the Government to frame Rules, on the misconception on the part of the Government and due to the opinion of the then Advocate-General. Learned Advocate-General also referred to various changes in the personnel in the office of the Custodian and also referred to the order dated July 28, 1991 by which the Custodian has delegated the power, stating that the day to day affairs of the Department of Racing will be fully looked after by the Secretary of the department. Learned Advocate-General printed out that by order dated January 2, 1992, the present Custodian has been appointed. According to the learned Advocate-General the Government order in G.O. Ms. No. 1786 dated August 16, 1988 was not acted upon in view of the orders of the Supreme Court appointing the Committee of Management. At the same time the learned Advocate-General also pointed out the post of Custodian has been up graded in the post of Chief Secretary to Government of Tamil Nadu by G.O. RT No. 4 Public (Special - A) Department dated January 2, 1992. Learned Advocate General fairly stated that the operation of the order of the Division Bench of this Court has been stayed by the Supreme Court except the appointment of the Custodian nothing has been done to give effect to the provisions of the Act by the Government. According to the learned-Advocate-General, the management of the Race Club is being managed now by the Committee of Management appointed by the Supreme Court as well as along with the Custodian, who is an officer under the Act.
24. I have considered the arguments of Mr. A.L. Somayaji, the learned counsel appearing for the petitioners and of Mr. Mohan Parasaran, the learned Counsel appearing for the respondent Board and also of the learned Advocate-General, who assisted the Court at the instance of the Court, to explain to this Court regarding the status of the employees of the respondent Board, like that of the petitioners herein,
25. First of all, it is to be decided as to whether the petitioners herein can be considered as Government servants, in view of the provisions of the Act. If at all the petitioners are to be considered as Government Servants, it will be only in view of Section 12 of the Act, 1986. Section 12 of the Act 1986, reads as follows;
"Continuance of employees:
(1) Every employee of the club employed in connection with the undertaking shall become, on and from the appointed day, an employee of the Government and where such undertaking is vested in a Government company, an employee thereof and shall hold office or service under the Government or the Government company, as the case may be, with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if there had been no such vesting and shall continue to do so, unless and until his employment under the Government or the Government company, as the case may be, is terminated by giving him notice of not less than one month in writing, or one month's pay and allowances in lieu of such notice, or until his remuneration and other conditions of service are altered by the Government or the Government company, as the case may be.
(2) Notwithstanding anything contained in the Industrial Disputes Act, 1947 (Central Act XIV of 1947) or in any other law for the time being in force, the transfer of the services of any officer other person employed in, the undertaking of the club to the Government or the Government Company shall not entitle such officer or other employee to any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority...."
This section, in my view, will not apply to the case of the petitioners herein who are appointed with the appointed day after the interim order of Supreme Court. As has been pointed out by the learned Advocate-General, no follow up action has been taken, except the appointment of Custodian under Section 9 of the Act, and as such the petitioners cannot be considered as Government Servants. Learned Advocate-General has clarified this position that it is in view of the pendency of the case before the Supreme Court and in view of the interim orders passed by the Supreme Court superimposing a Committee of Management along with the Custodian. It is also pointed out by the learned Advocate-General that no rules have been framed by the Government except stating that the Department of Rcing has been created. As such, I do not think that the contention of Mr. Mohan Parasaran, the learned counsel appearing for the respondent Board that since the Supreme Court had not stayed the operation of the Act, the petitioners herein should be considered as Government Servants, can be accepted. It cannot be disputed that the first petitioner has been appointed by letter dated September 8, 1990 on a consolidated salary of Rs. 3000/- p.m. from September 9, 1990 as a temporary Liaison Officer from September 9, 1990 to March 31, 1991. In the said letter, it has been stated that during the said period, the services of the petitioner can be terminated after giving 15 days notice on either side. This appointment was continued by order dated April 6, 1991, in which it is seen that the petitioner's temporary service is continued with effect from April 1, 1991 on the same terms and conditions until further orders. A note to the Chairman has been produced before this Court, in which it is seen that with regard to two officials, one of whom is the petitioner in W.P. No, 700 of 1993, who have been appointed up to March 31, 1991. This office note is dated July 4, 1991. In this, it is seen that a recommendation to fix the official's scale of pay is made, instead of consolidated pay. On August 30, 1991, a note to the Secretary, Department of Racing has been made in which it is seen that Chairman was concerned about the unusual number of employment and consequential burden on the finances of the undertaking and as such, the matter has to be placed before the Committee for a decision. In that note, it is seen that the Secretary, Department of Racing has stated that two officials one of whom is the petitioner in W.P. 700 of 1993 were found to be good and they have been useful to the Department, their services had been continued and that as they are not on a contract basis and also since their work had been most satisfactory, it is but natural that they be placed in an appropriate scale of pay. The Committee of Management, has accepted in its meeting dated September 5, 1991 the recommendations of the Secretary with regard to the petitioner in W.P. 700 of 1993 and resolved unanimously to approve the scale as recommended by the Custodian on July 4, 1991 and in the very same resolution it is that the members present, thought fit to review the man power and the Custodian has to place before the committee at its next meeting the details of persons employed in each department and their jurisdiction. On September 14, 1991, an order has been issued to the petitioner in W.P. 700 of 1993 stating that she has been placed in the grade of Rs. 1500 -125-3100 on a salary of Rs. 1500/- per month with effect from September 6, 1991, apart from certain other allowances as applicable to other officials, in the officials grade at present, such as house rent allowance, gas and electricity allowance, telephone allowance, car maintenance, scooter maintenance etc. However, there is a condition therein, and it is to the following effect:
"......Your appointment will be on purely temporary basis and your services are liable to be terminated at any time without any reason or prior notice....."
The Committee of Management seems to have met on October 8, 1992 in which the Custodian was instructed to streamline the establishment and terminate the services of the surplus temporary employees in a phased manner be case of the mouting losses incurred by the Department of Racing. In its meeting held on November 23, 1992, the Committee has again considered about the reduction of temporary staff and the urgent necessity for terminating the services of surplus temporary staff whose services are not really required by the Department of Racing. It is also seen that in the next Committee meeting dated December 22, 1992, the Custodian's note dated November 23, 1992 stating that 66 vacancies have arisen after the 'take over' by the Department due to retirement, resignation and death, has been taken up for consideration. In the said meeting, the Custodian was asked to adjust those employees against the vacancies mentioned above and work out number of temporary employees to be terminated, from service with effect from December 31, 1992 and have termination Orders served accordingly on the surplus staff and on all temporary officials for termination of service with effect from December 31, 1992. So, on a perusal of the materials placed before this Court, it is seen that the Committee of Management has decided to terminate the services of the temporary employees and the Custodian has been asked to identify the surplus temporary employees. At this stage, the impugned orders seem to have been passed terminating the services of the petitioners in these writ petitions. As I have already stated, since the petitioners cannot be considered to be Government servants, no question of driving them to the Administrative Tribunal, arises, against the order of termination. Factually, the petitioners herein are appointed only in pursuance of the resolution of the Committee of Management and approved by the Committee of Management, which is the Committee appointed by Supreme Court of India to look after the affairs of the Custodian. So, I am of the view that the petitioners herein are not Government servants and they need not be asked to approach the Administrative Tribunal.
26. The next question that has to be decided in these Writ Petitions is whether on the basis of the appointment orders issued to the petitioners, can they be terminated considering that they are temporary employees and whether the petitioners can challenge the orders of termination on the ground that no notice has been issued as per the provisions of the Industrial Disputes Act.
27. Admittedly, in the case on hand, the orders of termination had been issued by the Secretary, department of Racing, the respondent herein, on December 30, 1992. It is seen that only after the hearing of the Writ petition commenced and part heard the Committee of Management thought it fit to ratify the action of the Secretary, by way of a resolution dated December 20, 1993. That is, the resolution has been passed by the Committee of Management, when the matter is sub judice. I am of the view that before entering into the question as to whether the order issued by the Secretary, terminating the services of the petitioner is correct, it is to be seen that whether the petitioner has got a right to continue in the said post. It depends upon the nature of appointment made and the terms contained therein. The order of appointment issued to the petitioner in W.P. 700 of 1993, on September 14, 1991 states as follows:
"..... Your appointment will be on purely temporary basis and your services are liable to be terminated at any time without assigning any reason or prior notice..."
(Underlining is mine) This order has been passed obviously after the petitioner was appointed as a temporary Liaison Officer from September 9, 1990 to March 31, 1991, on a consolidated salary of Rs. 3000/-per mensem. A decision has been taken by the Committee of Management by its proceedings dated September 5, 1991, in which this has been shown as item 8, to put the petitioner in the official scale of pay, recommended by the Custodian in his note dated July 4, 1991. So the decision has been taken to continue the petitioner's services, after taking into account the note of the then Secretary, Department of Racing, passing a resolution to that effect. However, the appointment order of the petitioner, as extracted above, shows mat the petitioner has been appointed on temporary basis and on the terms and conditions stated above, Though in the resolution of the Committee of Management it is seen that after being satisfied about the work of the petitioner in W.P. No. 700 of 1993 has been, put up in a suitable scale of pay, as the resolution which was put up before the Committee of Management on September 5, 1991 was to consider the note of the Custodian dated July 4, 1991 yet the appointment is only temporary. Since I am, of the view that the appointment of the petitioners is only temporary, I do not think that the petitioners can claim any right to the said post. Even in a case of Government servant, it has been held that if by contract, express or implied or under the rules, it has the right to terminate the employment at any time, then such termination in the matter provided by the contract or the rules is prima facie and per se, not a punishment and does not attract the provisions of Article 311 of the Constitution of India. It has been held so by the Supreme Court in Director, Institute of Management Development U.P. v. Pushpa Sri-vastava (Supra) and also in Surendra Kumar Gyani v. State of Rajasthan (Supra). In the above mentioned case, the Supreme Court has held that the appointment being contractual and ad hoc which came to an end by efflux of time, the employee, the respondent therein had no right to continue in the post and to claim regu-larisation in a service in the absence of any rule providing for regularisation after a specified period of service. But this is the case where the appointment is purely on temporary basis and as such though the period has been extended by a resolution, it can be put an end as stated in the condition stated above. In Champaklal Chiman-lal v. Union of India (1964-I-LLJ-752) (SC) with regard to the termination of temporary Government servant, the Supreme Court has held as follows (at page 761).
"....It is also not disputed that the mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions the Court has to apply the two tests mentioned in Parshotam Lal Dhingra's case: 1958-I-LLJ-544 (SC) namely - (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. It is on these principles which have been laid down in Parshotam Lal Dhingra's case, (supra) that we have to decide whether the appellant was entitled to the protection of Article 311(2) in this case...."
This has been followed in State of Nagaland v. G. Vasantha, AIR 1970 SC 537 : wherein the Supreme Court has held that if temporary Government servant's appointment was made purely on a temporary basis, then such termination by a notice is not by way of punishment and that Article 311 could not be attracted. It will also be useful to refer to the decision of the Division Bench of this Court in Dr. C. Srihari v. The Madras Dock labour Board (1980-I-LLJ-105) (MAD), in which the Division Bench of this Court has considered the issue, with regard to the termination of services of a temporary employee under terms of contract of an employee of the Dock Labour Board and held (at pages 109 -110) as follows:
"...The weakness of the appellant's case lies in the fact that he was appointed only on a temporary basis and his appointment was governed by the terms of contract contained in the appointment order. As per the order of appointment, the service of the appellant was temporary in nature and was liable to termination on 24 hours notice. The appellant would say that because he acted for nine months as medical officer, the initial order of appointment must be deemed to have become defunct. We are unable to accept this contention, for, the parties had never acted on those lines at any stage of the matter. As a matter of fact, the appellant when he was dissatisfied with the non payment of charge allowance, wanted to be reverted back as Assistant Surgeon and this request was complied with, he was given salary and allowance permissible for the post of Assistant Surgeon held by him, all though, only in accordance with the initial order of appointment. In such circumstances, there is no scope whatever for the appellant to contend that he ceased to be a temporary employee and the terms of employment were not contractual. Once we hold that the appellant's service was on contractual basis, then, as pointed out by the Supreme Court in Champaklal Chimanlal Shah v. union of India, (supra) when an order of appointment provides for termination of services of a temporary employee by giving him notice of a particular duration, then the temporary services can be terminated by the employer giving such notice and the employee cannot put forth a contention that the termination order is discriminatory and should therefore, be set aside. We are, therefore unable to accept the argument that the impugned order of termination of service passed by the first respondent, which has been subsequently sustained by the second respondent, is discriminatory in nature, and is, therefore violative of Article 16 of the Constitution of India and also opposed to the principle of natural justice...."
In Manager, Government Branch Press v. D. B. Belliappa, (1979-I-LLJ-156-SC) it has been held as follows (paras 23 and 24 at page 161):
"....The principle that can be deduced from the above analysis is that if the services of a temporary Government servant are terminated in accordance with the condition of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16.
Conversely, if the services of a temporary Government servant are terminated, arbitrarily and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in that same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imported to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action excepting, perhaps, in cases analogous to those covered by Article 311(2), proviso (c) the authority cannot withhold such information from the Court on the lame excuse, that impugned order is purely administrative and not judicial, having been passed in exercise of administrative discretion under the rules governing the conditions of the services...."
So it is well settled that if on the basis of termination no stigma is caused, then such an order is a valid one, if it has been passed in accordance with the conditions of service. As such, it cannot be said on the facts and circumstances of the cases on hand, that the impugned orders of termination are bad in law for want of notice to the petitioners.
28. So the next question to be decided on the facts of these cases is whether the impugned orders issued by the Secretary in these cases, are valid in law. On the facts narrated above, it can be seen that the orders have not been issued by the Custodian. It is true that the Committee of Management has passed a resolution in November, 1992 to put an end to the surplus temporary staff. In that resolution dated December 22, 1992, the Custodian has been asked to identify the surplus temporary staff. But the Custodian has not taken any step. I am not able to agree; with the learned counsel for respondent that the petitioners herein are surplus temporary staff. No material has been placed before this Court to show that either the Custodian or the Committee of Management had taken steps to identify the petitioners as surplus temporary staff. On a perusal of the files, itis seen that within a short span of time, that is within three weeks, the impugned orders came to be passed and I do not find any material to support the orders of termination. It is true that it is a policy decision taken by the Committee of Management but in my view, it should be taken fairly, taking into consideration the fact that the Committee of Management itself has approved the appointment of the petitioner in W.P. 700 of 1993 by way of a resolution and fixed the scale of pay as Official pay, after being satisfied about the work of the petitioner. The order of the Supreme Court dated October 30, 1986 can be usefully referred to, which reads as follows"
".....This is a petition for special leave to appeal against an order made by a learned single Judge of the Madras High Court giving an interim direction to the Custodian of the Madras Race Club "not to take any decision hereafter without consulting the Committee pending further orders." This order made by the learned single Judge is an interlocutory order and we would not therefore ordinarily interfere with the same, but since it raises a question of interpretation of the order made by us on April 30, 1986 in Writ Petition No. 1067 of 1986, it would be desirable to clarify that we have said in that order lest it may give rise to doubt or controversy with regard to its true meaning and effect.
We directed by our order, dated April 30, 1986 that pending the hearing and final disposal of Writ Petition No. 1067 of 1986, the Custodian will remain incharge of the running of the Club but would be subject to the supervision of the Committee of Management consisting of 12 members, six of whom are to be nominated by the State Government and the other six by the Club. The question is as to what is the scope of the power conferred on the Custodian under this order and how far and to what extent he is bound to take the approval of the Committee of Management. The learned single judge has stated in the order that according to his interpretation of this order, the Committee of Management is to be incharge of the management of the Club and the Custodian is merely to act as its Secretary. This interpretation is clearly erroneous because we never intended that the Custodian should merely act as Secretary of the Committee of Management. We made it amply clear that the Custodian will be incharge of running the races but he would be subject to the supervision of the Committee of Management. This means that ordinary routine administration of the affair of the club should be carried by the Custodian but whenever administrative decision is to be taken, he must consult the Committee of Management, because otherwise the supervision of the Committee of Management would become illusory. There are many routine matters of administration which would have to be attended to in the course of the Management of the Club and those obviously must be at-tented to by the Custodian and in these matters he need not consult the Committee of management, but where any administrative decision which is not of a routine character or any policy decision to be taken, he must consult the Committee of Management, before taking any action and he would be bound to act according to the decision of the Committee of Management.
Having heard the arguments of the parties, we think it necessary to slightly modify the order made by us on April 30, 1986 by providing that if any administrative decision not of a routine character or any policy decision has to be taken which is of an urgent nature, the Custodian shall consult the Chairman of the Committee of Management because in such cases delay which might be occasioned in taking decision by reason of the meeting of the Committee of Management having to be convened, might affect the interest of the Club and therefore a machinery has to be devised by which urgent decisions can be taken. We would therefore direct the Custodian that where any administrative decision not of a routine character or any policy decision has to be taken, as for example, entering into contract or cancellation of a contract or any such similar matter, the Custodian must consult the committee of Management he-fore taking any action and if the matter is of an urgent character, the Custodian need not wait for the Committee of Management to meet but he must consult the Chairman of the Committee of Management and act according to the decision of the Committee of Management or the Chairman as the case may be. But in routine matters the Custodian need not consult any one prior to taking action though the action taken by him even in such matters must be intimated by him forthwith to the, Chairman of the Committee of Management....."
So even if the Committee of Management has taken a decision, it has to be enforced only by the Custodian and not by the Secretary. If the order of the Secretary is tested at the backdrop of the provisions of the Act, and the interim order of Supreme Court I am of the view that the Custodian alone has to act and pass orders with regard to the employees of the Race Club. Admittedly, it has not been done in these cases.
29. Whether the subsequent ratification made by the Committee of Management is valid, is the next question to be considered. I do not think that the subsequent ratification by the Committee of Management is valid, in view of the fact that it has been done only after the hearing the Writ Petitions had started and especially when the matter was part-heard and when a question was raised by this Court as to whether the Secretary has got the power to terminate the services of the employees of Race Club. It is also well settled that when the proceedings are pending in appeal or revision before the appellate or revisional authorities or pending in revision in this Court or for that matter when a Writ Petition is admitted and rule nisi is issued, it cannot be said that order had become final. (See Satyanarayana v. Venkata Ratnamma : . In Ali Abbas v. Khuda Baksh (1979) 1 Serv LR 749 a Division Bench of the Patna High Court, almost in similar circumstances, has held that a ratification passed by the Board is valid, even though the Executive Committee has no jurisdiction to pass an order to remove an employee/petitioner therein, from service. So it cannot be disputed that the Committee of Management has got jurisdiction to ratify an order of termination. Yet, in my view, the ratification which has been made by way of a resolution in this case, is not valid in the eye of law as it has been passed after the issuance of rule nisi by this Court and when the matter is Sub judice. In the King v. Parmanand, AIR 1949 Patna 222 a Full Bench of the Patna High Court has held as follows (at page 229):
"......His a cardinal principle that when a matter is pending for decision before a Court of justice nothing should be done which might disturb the free course of justice and this Court will discountenance any attempt on the part of any executive official, however high he may be, to prejudge the merits of a case and to usurp the functions of the Court which has got seisin of the case. Such a practice is fraught with immense danger, and I was surprised to hear the learned advocate contending that a parallel enquiry could be started by the Government. If we accede to the argument of the learned Advocate-General that a parallel enquiry can be started, we will be opening the door for contempt and impediment in the course of justice. Once the principle is accepted that the Government are tree to hold a separate enquiry, it would be impossible to impose any limit as to the nature and the scope of such an enquiry....."
This principle has been followed and approved by a Division Bench of the Andhra Pradesh High Court in D.J. Shield v. Ramesam, . Subba Rao, C.J. (as he then was) speaking for the Division Bench, with regard to the point raised in the above mentioned case, as to whether a parallel enquiry conducted by the enquiry officer, while the matter was sub judice would amount to contempt of Court, held as follows (at page 159):
"....It must be pointed out that any enquiry with regard to a matter which is 'subjudice' is bound to interfere with the even and ordinary course of justice...."
It has been held by a Full Bench of this Court in Century Flour Mills Ltd. v. Suppaiah , that where in violation of a stay order or injunction against a party, something has been done, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In this case, a stay of the impugned order has been ordered and it is in force. If a resolution is passed by the Committee of Management, while the writ petition is pending and the stay order is in operation it will amount to allowing the perpetuation of the wrong doing. In my view it cannot be allowed. Heavy reliance is placed upon by Mr. Mohan parasaran, the learned counsel appearing for the respondent, on the following decisions;
(1) AIR 1955 Madhya Bharat 245 (sic); (2) ; (3) AIR 1958 Mysore 102.
In support of this contention that the rectification made in this case, when the matter was pending before this Court, is valid. The decision of the Supreme Court, referred to by Mr. Mohan Parasaram, the learned counsel for the respondent, reports Security and Finance v. Dattatraya, , in my view, will not apply to the facts of this case. That was a case where a reference to arbitrator is made by a party in terms of the arbitration clause long before the institution of a suit by another party to the suit and even after the notice of the institution of the said suit, the proceedings before the arbitrator were continued. In such circumstances, the Supreme Court has held that no contempt is committed holding that an authority holding an enquiry in good faith in exercise of the powers vested in it by a statute is not guilty of contempt of Court, as there is no prohibition under Section 35 requiring the arbitrator not to carry on the arbitration proceedings after the receipt of notice. The facts of the case reported in C.P. Appanna v. State of Coorg, AIR 1958 Mysore 102 are entirely different. The question raised before that case was as to whether the Court is entitled to take in to account legislative changes during the pendency of the litigation. The question decided in that case was, that if pending a litigation or pending in appeal some relevant legislation was enacted by the appropriate legislative authority, deciding Tribunal must give effect to it. That is all. It will not apply to the facts of this case. So on the fact of the case the principle viz, that when the matter is pending for a decision, nothing should be done which might disturb the widening course of justice, has to be applied. In the present case, the resolution passed by the Committee of Management is void ab initio and I am of the view that it is suffice to ignore the ratification on that ground.
30. With regard to the allegations made by the petitioner in W.P. No. 700 of 1993 that the impugned order has been tainted with mala fides, I am of the view that no sufficient materials have been placed before this Court to prove the same, In such circumstances, I am not able to accept the contentions raised by Mr. A.L. Somayaji, the learned Counsel appearing for the petitioner in W.P. No. 700 of 1993 that the order of termination is tainted with mala fide and that it has been passed at the instance of one Sri Balarama Das.
31. Since I take the view that the ratification, which is made by way of a resolution, has got to be ignored, the order of termination issued by the Secretary, Department of Racing is illegal and void ab initio and accordingly the impugned orders in these petitions are liable to be set aside.
32. In view of the conclusions arrived at, as staled above, the impugned orders are set aside and the writ Petitions stand allowed. However, it is open to the Committee of Management to take action according to law. No costs.