Narmadeshwar Singh and Others vs The State of Bihar and Others

Ashok Kumar Ganguly, J.—This writ petition was filed on 8th November, 1988 and since then it was kept pending for admission. As a matter of fact by an order dated 23rd February, 1989 a Division Bench of this Court was pleased to pass the following order in this writ petition at a preadmission stage:

Put up for Admission after disposal of C.W.J.C. No. 6813 of 1988.

Any appointment made, in the meantime shall be subject to the result of this writ application.

By an order dated 24th June, 1904 the said writ petition i.e. C.W.J.C. No. 6813 of 1988 was dismissed. Thereafter this matter was mentioned before this Court for inclusion in the list for admission and the inclusion of the matter was ordered. Then by an order detect 10th March, 1995, this Court, in the presence of the learned Counsel for the parties, made it clear that as this writ petition arises put of termination of service of about 36 employees and as the matter has not been admitted so far, the matter be finally heard at the admission stage. Thereafter directions were also given for filing of affidavits and the affidavits were accordingly filed.

A full scale hearing of the matter, therefore took place and by an order dated 7.4.1995 this matter was reserved for judgment which is being delivered today.

In this writ petition 36 Petitioners have impugned their order of termination of service passed by the Collector-cum-Administrator of Madhepura Supaul Central Co-operative Bank Limited (hereinafter referred to as the said Society).

The facts relating to the appointment of those writ Petitioners and the procedure followed before making those appointments are stated below:

(a) Pursuant to an advertisement dated 23rd April, 1988, published in ''Nav Bharat Times'', inviting applications for the post of Assistant-cum-Cashier, Typist, Peons of the said Society, the Petitioners applied. The advertisement stated that such applications must be filed within 4th May, 1988.

(b) It is not in dispute that all the Petitioners duly applied pursuant to the said advertisement within 4th May, 1988.

(c) Thereafter the Petitioners received notices that written test and interview would be held by the said Society in respect of the Applicants who applied pursuant to the said advertisement. Such written tests were held in the Town Hall of Madhepura.

(d) The notice of interview and examination which were issued to the candidates including the Petitioners contained their individual roll numbers.

(e) The written test and the interview of all the applicants including the Petitioners took place on 27th July, 1988.

(f) On or about 1st August, 1988, the Petitioners received their appointment letters issued under different notifications of the same date.

(g) From a copy of the appointment letter annexed to the said writ petition, it appears that the said appointment was made on a purely temporary basis with the usual condition that the same is terminable at any time without notice. It was also stated in the appointment letter that the seniority of the persons so appointed will be decided on the basis of the selection list. It was further stated that if the candidates so selected agree to the above conditions they may indicate their consent and accept their appointment to the place indicated in the letter of appointment.

(h) On 2nd August, 1988 the Petitioners joined their services pursuant to their letter of appointment.

Thereafter by notification dated 11th August, 1988 the Managing Committee of the said Society was superseded by the State Government in exercise of power u/s 41 of the Bihar Co-operative Societies Act (hereinafter referred to as the said Act) and the District Magistrate was appointed the Administrator to run the affairs of the said Society. The said order of super session, of course, was passed without giving the Managing Committee an opportunity to state its objection.

Be that as it may, in this proceeding we are not concerned with the validity of the said order of dissolution of the Managing Committee.

It is not in dispute that till 17th August, 1988, the Petitioners worked in respect of the posts to which they were appointed pursuant to the letter of appointment dated 1st August, 1988.

On 8th August, 1988 the impugned orders of termination of the services of the Petitioners were issued by the Administrator of the Society. The impugned orders were signed by the Collector of the district in the capacity of the Administrator of the said Society. The validity of those impugned orders is the principle and possibly the sole point at issue between the parties in this writ petition.

Assailing the validity of those impugned orders, Mr. Tara Kant Jha learned Senior Counsel for the Petitioners, raised the following contentions:

(i) The impugned orders do not contain any reason.

(ii) The Petitioners having been appointed validly and after following the due procedure for such appointment, there is no justification for passing the impugned orders.

(iii) The Petitioners were appointed against existing vacancies and those vacancies still exist.

(vi) There is no a legation of any sort against the Petitioners but their services were un-ceremoniously terminated.

Relying on the aforesaid major contentions, the learned Counsel for the Petitioners, advanced the following subsidiary contentions also

(v) The impugned orders of termination are wholly un-reasonable and arbitrary and has been passed in a mechanical manner.

(iv) No reason, has been assigned even in the counter Affidavit justifying the order of termination.

Learned Counsel for the Petitioners also contended that against the said impugned orders of termination, the Petitioners have no other effective or efficacious remedy except to come to this Court under Article 226 of the Constitution of India.

Mr. D.N. Singh, learned Government Pleader No. IV appearing for the said Administrator of the said Society, who had passed the impugned orders, supported the impugned orders, inter alia, on the following grounds:

(A) The Managing Committee of the said Society was superseded and pursuant thereto the Administrator appointed under the order of suppression joined the Bank on 13th August, 1988 and made investigation and decided to terminate the service of those employees.

(B) The Administrator of the said Society, Respondent No. 4 has the power to pass the order of termination.

(C) It has been stated in the counter affidavit that in the Board''s meeting held on 17.8.1988, the Board discussed the process of appointment of the Petitioners and found them to be full of irregularities and as such illegal. The proceeding of such meeting has been annexed to the counter affidavit.

This Court is unable to appreciate what is meant by Board''s meeting dated 17th August, 1988. In the context of the dissolution of the Managing Committee of the said Society by an order dated 11th August, 1988, the meeting which was held by the Administrator on 17th August, 1988 cannot be called a Board Meeting of the said Society. However, in the affidavit no particulars about the alleged irregularities in making the appointment has been mentioned. In the counter affidavit also reference has been made to an order issued by the Registrar, Co-operative Societies, Bihar, Patna under Rule 33 of the Bihar Co-operative Societies Rules, 1959 (hereinafter referred to as the said Rules). The said order was issued under memo No. 5112 dated 4th May, 1988 and it has been stated that in the said order a ban has been imposed and the impugned appointments have been made ignoring the said ban. The said ban has been disclosed as Annexure-5 to the writ petition by the writ Petitioners. From a perusal of the said ban it would appear that in respect of the appointment of daily rated workmen made without following the procedure, a ban has been imposed by the Registrar under Rule 33 of the said Rules and in the said order imposing ban it has been stated that if any appointment is made ignoring the said ban, the additional expenditure will have to be borne by the Society itself. In this connection Rule 33 of the said Rules under which the said ban has been imposed is set out below:

Appointment of paid employees. (1) The appointment of a paid employee in any registered society shall be subject to such conditions as to qualifications, designation, scale of pay and traveling allowances, furnishing of security, compulsory contribution to provident fund, grant of leave, salary increment, transfer, punishment, suspension, removal or dismissal as may from time to time be determined by the Registrar by general or special order.

(2) A registered society aggrieved by any order of the Registrar under Sub-rule (1) may within sixty days of the receipt of such order, prefer an appeal against the order to the State Government and the decision of the State Government thereon shall be final.

(3) Any appointment made hereinafter in contravention of the conditions determined by the Registrar under Sub-rule (1) shall be void as if no such appointment ever existed and salary and other allowances paid, if any, to such persons shall be recoverable u/s 40 of the Act.

It has not been stated in the counter affidavit filed by the Respondents that the order of termination of the Petitioners has been passed under any direction of either the Registrar or of the State Government. No other positive stand has been taken by the learned Counsel appearing for the Respondents in support of the orders of termination. Of course vague allegations have been made in the counter affidavit about the alleged irregularities in the matter of appointment but no specific case of any irregularity has been either pointed out in the counter affidavit or in the course of argument by the learned Counsel for the Respondents.

From the un-disputed facts narrated above relating to the appointment of the Petitioners, it cannot be denied that a medium of procedure was followed prior to such appointment. There was issuance of advertisement, inviting of applications and thereafter holding of written test and interview and then sending of appointment letters to those who were selected. It may be that on purely temporary basis the appointments were made.

Even when appointment on purely temporary basis is made and such appointment is subsequently sought to be cancelled, the cancellation may, if challenged, become justiciable. In this connection reference may be made to the judgment of the Full Bench of this Court in the case of Bijoy Kumar Bharti and Others Vs. State of Bihar and Others, where it has been stated that even in a case of termination of temporary appointment, it is open to the person affected to satisfy the Court that his initial appointment on temporary basis was not illegal. The same has been done here, namely, the Petitioners have made out a case that their appointments, though made initially on a temporary basis, were not illegal in the sense that a regular procedure for such appointment was followed and the appointment was made by the person who was authorized under the law to make the appointment. Under such facts and circumstances when the said appointment is subsequently cancelled, the issue of cancellation becomes justifiable, even though the person concerned may have a temporary appointment and his termination may not cast a stigma on him.

In this case the order of termination was not passed by the Managing Committee but by the Administrator who is the nominee of the Registrar which is a statutory authority and who must act in conformity with the principles of fairness which are enshrined in Article 14 of the Constitution. The traditional concept of the rule of master and servant in the field of public employment, like the present one, has long been eroded and even in cases of private employment ''much of it has passed into the fossils of time''. In a significant judgment in the case of the The Manager, Government Branch Press and Another Vs. D.B. Belliappa, of page 486, paragraph 25, the present position in service jurisprudence has been indicated in the following poignant words:

Another fact of Mr. Veerappa''s contention is that the Respondent had voluntarily Centered into a contract of service on the terms of employment offered to him. One of the terms of that contract, embodied in the letter of his appointment is theft his service was purely temporary and was liable to termination at the will and pleasure of the appointing authority, without reason and without notice. Having willingly accepted the employment on terms offered to him, the Respondent cannot complain against the impugned action taken in accordance with those mutually agreed terms. The argument is wholly misconceived. It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to Government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. "This rule held the field1 at the time when the master and servant were taken more literally than they are now and when as in early Roman law, the rights of the servant like the rights of any other member of the household, were not his own, but those of his pate families. The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalized the employer''s absolute right to discharge the employee. "Such a philosophy", as pointed out by K.K. Mathew, J., (vide his treatise : "Democracy, Equality and Freedom", page 326), "of the employer''s dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers". To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation.

(emphasis added.)

No body can say that the employment of the Petitioners has no public element. In any event they are entitled to the protection of Articles 14 and 21 of the Constitution before their services can be terminated which has a direct and disastrous effect on their livelihood.

In view of the above principle, this Court finds that when a challenge has been thrown in the writ petition that the appointment of the Petitioners is legal and valid and the termination order is bad and the said challenge has not been properly rebutted by Respondent No. 4 in his counter affidavit, the conclusion which becomes irresistible is that the termination order cannot be sustained.

The three objections which have been taken in the counter affidavit of the Respondents, as stated above, are not, for the reasons given below, acceptable to this Court.

The mere fact that the Managing Committee of the said Society was superseded some time after the appointments were made, does not and cannot by itself make the appointments per se illegal and without jurisdiction and especially when it is not disputed that at the time of making the appointments the Managing Committee validly existed. The second objection about the irregularities in the procedure of such appointments is totally, vague, indistinct and undefined and against such blurred and diffused allegations of irregularity, the specific case made-out, by the Petitioner in support of the regular procedure being adopted prior to such appointment, this Court is unable to accept the said objection sought to be made out by the Respondent.

Thus the only surviving objection taken in the counter affidavit is that these appointments have been made ignoring the ban dated 4th May, 1988. On a perusal of the said ban it has already been noted that the same applies only to cases of appointment of daily wages appointed without following any procedure and in the said case also the ban does not go to the extent of invalidating such appointment but merely says that in case of such appointment of daily wagers in violation of any procedure the expenditure of paying salary to the said daily wager will be fastened upon the Managing Committee of the Society making such appointment. In that view of the matter, the said ban cannot and does not invalidate the appointment made in respect of the Petitioners after following a regular procedure and especially when such appointments are not made on daily wage basis.

In this connection reference has been made by the learned Counsel for the Respondents to the decisions of this Court in the case of Satish Kumar and Others Vs. State of Bihar, In that case the temporary appointments were made ignoring jail procedure as would appear from the following facts recorded in the judgment:

It has also been pointed out that no advertisement was made inviting applications for appointment to the posts against which the Petitioners were appointed. Regarding the claim of the Petitioners that such advertisement was published in ''Magadh Dharti'' it has been stated that it could not be ascertained whether this Magadh Dharti is a daily, weekly or a monthly magazine and from where it is published. It was also been said on behalf of the Administrator that the Petitioners had been appointed on buff-sheets issued by the then Honorary Secretary ignoring all procedures prescribed for appointments.

The fact situation was, therefore, totally different and as such the decision has no application here.

Learned Counsel for the Respondents, however, neither in his argument nor in the counter affidavit raised any objection about the maintainability of this writ petition in view of the fact that the Co-operative Society is not a State within the meaning of Article 12 of the Constitution of India. The said quarry was raised by this Court and in answer to that learned Counsel for the Petitioners referred to the decision of this Court in the case of Nand Kishore Rai and Others Vs. The State of Bihar and Others, where in paragraph 13 at page 1070 it has been held by the learned Judges of the Division Bench as follows:

According to me the principle laid down by a Bench of this Court in the case of Harender Narain Banker (supra) shall not be applicable when the Managing Committee of a Co-operative Society has been superseded and a Special Officer has been appointed by the Registrar to manage the affairs of such Societies. The Special Officer has to be held to be an Authority within the meaning of Article 12 of the Constitution who shall be amenable to the writ jurisdiction of this Court.

Here also the impugned orders have been passed by the Administrator appointed by the Registrar and as such he is an authority within the meaning of Article 12 of the Constitution and the writ petition is, therefore, maintainable. Reference in this connection may be made to the decision of the Supreme Court in the case of The Nayagarh Co-operative Central Bank Ltd. and Another Vs. Narayan Rath and Another, In the said decision also the Supreme Court has accepted the position that when the impugned order of termination is not in effect made by the Co-operative Society in question but in effect is made under the direction of the Registrar, Co-operative Society who is a statutory authority, the writ petition is maintainable. The said observations have been made in paragraph 5 of the said judgment.

In view of the aforesaid principle, this Court holds that the writ petition in this case is maintainable in view of the fact that the Impugned order of termination have been passed not by the Managing Committee of the said Society but by the District Magistrate-cum-Administrator who is the nominee of the Registrar. This Court, however, does not, as it is not called upon to, decide whether or not the Co-operative Society is an authority within the meaning of Article 12 of the Constitution of India.

For the reasons aforesaid, this writ petition succeeds. The impugned orders of termination at Annexure-4 series are hereby quashed. The Management of the said Society whether it is in the hands of the Administrator or in the hands of a Managing Committee must, within a period of seven days from the date of receipt/presentation of a copy of this judgment, allow the writ Petitioners to work in terms of the appointment letter dated 1st August, 1988 issued to them which have been disclosed in this writ proceeding. It is, however, made clear that these writ Petitioners are not entitled to be paid any salary for the period from 18th August, 1988 till the date of reinstatement pursuant to the judgment of this Court but, however, they will be paid their salary for the period they worked during 2nd August, 1988 and 17th August, 1988. The Respondents authority are directed to reinstate the Petitioners pursuant to this judgment within a period of one week form the date of production/receipt of a copy of this judgment and pay the salary of the Petitioners for the period 2nd August, 1988 and 17th August, 1988 within a period of one month after their reinstatement.

This writ petition is thus allowed. There will be no order as to cost.