Md. Mahmudul Hasan vs The State of Bihar and Others

A.K. Ganguly, J.—The subject matter of challenge in this writ petition is an order of punishment dated 25.6.1996 passed by the Deputy Secretary, Water Resources (Irrigation) Department, Government of Bihar, Patna. By the said order two punishments have been imposed upon the Petitioner. The first one is of censure for the year 1995-96 and the second one is one of withholding of salary for the period of un-authorised absence, namely, from 22.4.1995 to 9.5.1995. Prior to the passing of the said order, a show cause notice was served upon the Petitioner. The said show cause notice is dated 4.5.1995 at An nexure-7. By the said show cause notice dated 4.5.1995 it was stated that the, Petitioner proceeded on leave on verbal permission on 22.4.1995 and was not present In a particular meeting on 25.41995 held Patna and the Petitioner was absent from 22.4.1995 to 4.5.1995. An explanation was called for from him why a report be not submitted to take disciplinary action against the Petitioner. Pursuant to the said, show cause notice the Petitioner reply and in the reply the Petitioner gave various reasons for remaining absent from the office from 22.4.1995 to 4.5.1995 and the main ground is that his son was suffering from jaundice and the Petitioner found that there was chance of the said disease relapsing and that there was evidence that the disease of the Petitioner�s son was aggravating. The Petitioner also submitted several other documents to show that the Petitioner was present on 6.5.1995 at the Headquarter i.e. at Motihari and the, Petitioner has also annexed a document dated 15.6.1995 issued by the Superintending Engineer, Motihari whereby it has been stated that the Petitioner�s be sympathetically considered.

In the counter affidavit filed by the Respondents, it has been stated that after issuing the show cause notice against the Petitioner, action was taken against him by passing the impugned order under Rule 55A of the Civil Services (Classification Control and Appeal) Rules, 1930 (herein after referred to as the said Rules). It further states that the Petitioner was absent in an un-authorised manner and there Is nothing wrong in the impugned order of punishment imposed upon the Petitioner.

Learned Counsel for the Petitioner has raised two principal contentions. The first contention is that Rule 55A of the said Rules has been omitted from the statute book and has been substituted by Rule 55B of the said Rules as would appear from the notification No. 7/1/77 dated 27.4.1977. Therefore, on the date when the impugned order was passed, Rule 55A of the said Rules was not existing and thus the impugned order is wholly bad and illegal in the eye of law. The second contention is, assuming that Rule 55-A of the said Rules was there, even then the impugned order which has been passed is not in accordance with Rule 55A of the said Rules and thus the same should be quashed.

Learned Counsel for the Respondents has also submitted that the impugned order of punishment passed against the Petitioner is an appealable one and since the Petitioner has not filed any appeal under Rule 56 of the said Rules, this writ petition is not maintainable.

This Court proposes to deal with the aforesaid contentions one after Anr. . In so far as the first contention is concerned, it appears that the said 1930 Rules have been accepted by the State of Bihar by issuing a notification under Article 309 of the Constitution of India and it has been stated that the said Rules will apply mutatis mutandis to the classes of Government servants under the State Government and this will apply in respect of Class I and Class II employees of the said State Government. The said notification has been issued on 3rd July, 1963 to be effective from 22nd December, 1956. Therefore, as a result of the said notification, the aforesaid Rules which were framed in 1930 are continuing. As the Court directed the learned Counsel for the Respondents to make inquiries about the notification No. 7/1/77 dated 27.4.1977, the learned Counsel for the Respondents has carried out the said instruction and obtained information and submitted before this Court on the basis of a communication dated 17.9.1997 to the effect that 1930 Rules were repealed by the Central Civil Services (Classification, Control and Appeal) Rules, 1957 and the said 1957 Rules were subsequently repealed by the 1965 Rules. Therefore, the Government of India has not issued any notification in 1977 amending 1930 Rules.

Therefore, it is clear that the said 1930. Rules are continuing so far as the employees of the State of Bihar are concerned and in so far as the Central Government employees are concerned, the said 1930 Rules are not continuing but the same has been repealed by 1957 Rules and subsequently by 1965 Rules. But since the Petitioner is admittedly an employee of the State Government, we are not concerned either with 1957 or 1965 Rules. Therefore, this Court is of the opinion that the said Rule 55A of 1930 Rules still remains in existence. The amendment to which the attention of this Court has been drawn by the learned Counsel for the Petitioner is confined to the employees of the State of Uttar Pradesh as it appears from the preface to 1930 Rules on which reliance has been placed which is set out below:-

These Rules were made by the Secretary of State in Council u/s 96B of the Government of India Act, 1919, and continue in force by virtue of Section 276 of the Government of India Act, 1935, and Article 313 of the Constitution of India. In the case of persons serving in connexion with the affairs of Uttar Pradesh, these Rules have effect as if the word "State" was substituted for the word "Local", Provincial" and , "Province" wherever they occur.

The Appointment (B) Department, Notification No. 2993/11-B-1976-53, dated May 17, 1955 has laid down that:

In that view of the matter, this Court does not find any force in the first point urged by the learned Counsel for the Petitioner.

In so far as the second point is concerned, this Court is of the view that while passing an order under Rule 55A of the said Rules, it is incumbent upon the authority concerned to consider the representation made by the employees and such consideration means a conscious application of mind and also a consideration of the explanation given by the employees in an objective basis. This point is, no doubt, concluded by a Division Bench judgment of this Court in the case of Dr. Rabindra Nath Singh v. The State of Bihar and Ors. reported in 1983 P.L.J.R 92. In paragraph 10 of the said judgment the learned Judges hold that as no reason has been assigned as to why the show cause reply is un-satisfactory, the same was quashed and the learned Judges held that giving reasons in support of the order which affects a person is also the basic need of the principles of natural justice. In coming to the said conclusion in the case of Dr. Rabindra Nath Singh (supra) the learned Judges of the Division Bench have considered various authorities of the Supreme Court. This Court is in respectful agreement with the said judgment in Dr. Rabindra Nath Singh (supra) and holds that in the instant case also the impugned order suffers from the same infirmity inasmuch as the impugned order does not at all consider objectively or otherwise the explanation given by the Petitioner. Therefore, the impugned order has to be quashed and this Court does quash it as being wholly without jurisdiction.

Learned Counsel for the Respondents has, however, submitted that in any event, the impugned order is an appealable one and the appeal having not been filed, this writ petition is riot maintainable.

Learned Counsel for the Petitioner submitted that the impugned order being wholly without jurisdiction and not having been passed in accordance with the terms of the requirement of Rule 55-A of the said Rules, the same is a nullity and the writ petition is maintainable without filling any appeal against the same. Therefore, this Court is to consider the question as to whether the impugned order has been passed by the authority within its jurisdiction or not.

This Court is of the view that merely because the authorities have the jurisdiction to pass an order under Rule 55A of the said Rules and it has passed the order under the said Rules, it cannot be argued that in. passing the order the authority has not acted beyond its jurisdiction.

In legal parlance the word ''jurisdiction'' is one of protean significance. Several years ago, Hon''ble Mr. Justice Asutosh Mookerjee, Acting Chief Justice, speaking for the Court, in a Full Bench decision of Calcutta High Court in Hriday Nath Roy v. Ramchandra Barna Sarma reported in ILR Cal 138, the learned Judge explained the concept of ''jurisdiction'' in the following words:

the authority by which the judicial officers take cognizance of and decide causes; the authority to hear and decide a legal controversy "the power to hear and determine the subject matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them; the power to hear, determine and pronounce judgment on the issues before the Court".

The said elucidation of the concept of ''jurisdiction'' by the learned Judge received express and respectful approval of the Supreme Court when Justice Wegde, as His Lordship then was, speaking for the Court in Official Trustee, West Bengal and Others Vs. Sachindra Nath Chatterjee and Another, observed in page 827 of the report that in explaining the said concept, His Lordship can "do no better then quote" the ''words'' of the Acting Chief Justice.

Subsequently Mr. Justice Mathew while delivering a very leading judgment dealing with the question to ''jurisdiction'' in the case of Shri M.L. Sethi Vs. Shri R.P. Kapur, , observed in page 2384 of the report that the word ''jurisdiction'' is a verbal cast of many colours. These decisions are of course dealing with the jurisdiction of Courts. But almost the same considerations barring a few exceptions, apply while dealing with the jurisdiction of tribunals or authorities who are to act in a quasi judicial capacity.

This aspect has been considered in considerable details in the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission and Anr. reported in (1969) 2 App. Cas. 147. of the report Lord Pearce has addressed the issue as follows:

Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.

(Emphasis added)

This speech of Lord Pearce has been quoted with approval in M.L. Sethi (supra).

Similar observation will also appear from the judgment in old English decision reported in Short v. Poole Corporation reported in (1926) 1 Ch. Division 66 which is set out below:

It may be also possible to prove that an act of the public body though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and, there fore, in-operative. It is difficult to suggest any act which would be held ultra vires under this Head, though performed bona fide.

(Emphasis added).

So it is clear from the aforesaid enunciation that if a public body acts on alien or irrelevant grounds which is outside the authority conferred upon the body under the law, such a decision is inoperative as being outside its jurisdiction.

Here also this Court holds that the decision of the authorities concerned, while purporting to act under Rule 55A of the said rules in a manner which is not contemplated under the said Rules is acting without jurisdiction. The authority was directed under the relevant rules to take into consideration the representation of the Petitioner in order to give him ''adequate opportunity''. But the authority in passing the order has not taken that representation into consideration as is clear from the impugned order. Apart from that the show cause notice dated 4.5.1995 charged the Petitioner with un-authorised absence from 22.4.1995 to 4.5.1995, but in the impugned order the finding is that the Petitioner is un-authorisedly absent upto 9.5.1995. This is certainly outside the scope of enquiry initiated by the show cause notice. So the decision impugned is founded on ''alien'' grounds. And, as such, it is inoperative being without jurisdiction.

When an authority is acting beyond its jurisdiction a writ Petitioner, without exhausting the statutory remedy of appeal, is maintainable. For the purpose of the aforesaid proposition, reliance can be placed on the Constitution Bench judgment of the Supreme Court in the case of State of U.P. v. Mohammed Nooh reported in AIR 1958 S.C. 86. The relevant observations of the Court, on a consideration of various authorities, were expressed by Chief Justice S.R. Das, thus:

There may conceivably be cases where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior Court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision.

Therefore, this Court holds that this writ petition is maintainable even without filing an appeal. As such the objection by the learned Counsel for the Respondents is overruled.

This writ petition is accordingly allowed. The impugned order at Annexure-1 is hereby quashed but this, however, will not prevent the Respondents authorities, if they are so advised, from proceeding in accordance with law in respect of any allegation touching the Petitioner. There will be no order as to cost.