State & others vs Kiranpal Balmiki & others

PER: RAJIV SHARMA, J.

ALOK SINGH, J.

Since common questions of law and facts are involved in the above-titled special appeals, hence the same are being taken up together and

adjudicated by this common judgment.

These special appeals have been preferred against the common judgment dated 11.07.2017, rendered by learned Single Judge in WPMS No.709 of

2017 and analogous matters.

‘Key facts’, necessary for the adjudication of these appeals are that in SPA No.809 of 2017, respondent no.1 was appointed as Chairperson

of the Uttarakhand State Safai Karamchari Commission on 22.04.2015. He assumed the charge on 19.05.2015. His tenure was fixed on 27.05.2015.

He was removed on 29.03.2017. He filed the writ petition bearing WPMS No.709 of 2017 against the order of his removal dated 29.03.2017.

In SPA No.810 of 2017, respondent no.1 was appointed as Vice-Chairperson of the Uttarakhand State Safai Karamchari Commission on

22.04.2015. He assumed the charge on 18.05.2015. His tenure was fixed on 06.07.2015. He was removed on 29.03.2017. He filed the writ petition

bearing WPMS No.710 of 2017 against the removal order dated 29.03.2017.

In SPA No. 814 of 2017, respondent no.1 was appointed as Vice-Chairperson of the Uttarakhand State Safai Karamchari Commission on

22.04.2015. He joined his duties on 18.05.2015. His tenure was fixed on 06.07.2015. He was removed from the office on 29.03.2017. He challenged

his removal by way of filing writ petition bearing WPMS No.708 of 2017.

The State Government has issued memorandum on 27.01.2009 constituting the Uttarakhand State Safai Karamchari Commission. The constitution

of Commission is provided under Clause 2(1) of the memorandum dated 27.01.2009. The appointment of Chairperson, Vice-Chairperson and members

is provided under Clause 2(2) of the memorandum dated 27.01.2009.

Clause 2(3)(1) of the memorandum dated 27.01.2009 reads as under:-

“The Chairperson/Vice-Chairperson/ Members (temporary) shall be temporarily appointed for a period of three years from the date of joining of

their post or in public interest, as per the discretion of the State Govt., for a fixed period. The State Govt. shall be duly empowered to decrease and

increase the period of appointment of the Chairperson/Vice-Chairperson/ temporary Member of the Commission.â€​

Clause 2(3)(2) of the memorandum dated 27.01.2009 provides that the State Govt. can remove the person from the office of Chairperson, Vice-

Chairperson or the Member of the Commission if that person:-

a) becomes an undischarged insolvent,

b) is convicted and sentenced to imprisonment for an offence which, in the opinion of the Central Government, involves moral turpitude;

c) becomes of unsound mind and stands so declared by a competent court;

d) refuses to act or becomes incapable of acting;

e) is, without obtaining leave of absence from the Commission, absent from three consecutive meetings of the Commission; or

f) in the opinion of the Central Govt. has so abused the position of Chairperson, Vice-Chairperson or Member as to render that person’s

continuance in office detrimental to the public interest:

Provided that no person shall be removed under this clause until the person has been given a reasonable opportunity of being heard in the matter.

Respondent no.1 in all the special appeals were appointed as Chairperson and Vice-Chairperson respectively vide order dated 22.04.2015. They

have joined their duties. The tenure was fixed in the case of Chairperson on 27.05.2015, in the case of Santosh Gaurav and A.K. Sikandar Pawar on

06.07.2015 respectively. The Chairperson, Vice-Chairperson started discharging their duties after assuming their respective offices. They were

removed vide order dated 29.03.2017. They have not been given reasonable opportunity of being heard in the matter. There is violation of principle of

natural justice.

In the counter affidavit filed by the appellant-State also, no cogent and convincing reasons have been assigned why the Chairperson, Vice-

Chairperson have been removed. It is arbitrary exercise of power. The discretion vested must be exercised judicially and not according to humor.

It is also not the case of the appellant-State that the respondent no.1 in all the special appeals have incurred any of the disqualifications as per

Clause 2(3)(2) of the memorandum dated 27.01.2009. Though, there is a clause under which tenure can be increased or decreased but it can only be

done after due application of mind and on justifiable grounds.

The Chairperson, Vice-Chairperson have been removed immediately after assuming the offices by the new Govt. All the decisions taken by the

previous government cannot be nullified by the new government. The government functions in continuity. There should not be any arbitrariness or

unreasonableness while removing the incumbent holding the public office. The procedure laid down must be scrupulously followed.

Learned Single Judge, while disposed of the writ petitions, has rightly relied upon the judgment rendered on 06.10.2012 in WPMS No. 777 of 2012.

This Court dealt with the removal of Chairperson and Vice-Chairperson under the G.O. dated 27.01.2009. The relevant portion of the judgment reads

as under:-

“This Court is clearly of the view that the State Government has no powers to do what it has presently done midstream, particularly in the manner

in which it has been done. It has powers to remove the Chairman or the Vice-Chairman as provided under the provision of 3 (2) of the Government

Order dated 27.01.2009, but it has chosen not to do so. What has instead been done is that the State has removed the Chairman and Vice-Chairman,

vide its impugned orders, which is wholly illegal. In fact the State Government has done indirectly what it cannot do directly. It is definitely an abuse of

its powers.

Moreover, it is not a case of the respondents that by the said impugned order dated 16.4.2012 a group of people or a large number of people have

been affected. This affects only the two persons, the petitioners as Chairman and Vice-Chairman of the Commission. If this order is not quashed

presently, this will only encourage the State to pass such order in future and justify their arbitrariness which is presently a clear case of naked

discrimination.

While quashing the two orders dated 16.4.2012, this Court also takes strength from two seminal decisions of the Hon’ble Apex Court. The first is

Dinnapati Sadasiva Reddi, Vice-Chancellor, Osmania University v. Chancellor, Osmania University and others reported in AIR 1967 SC 1305

whereby the particular amendment as Section 13-A in Osmania University (Second Amendment) Act, 1966 which curtailed the tenure of the

incumbent Vice-Chancellor of Osmania University was held to be violative of the Constitution of India on the touchstone of Article 14 of the

Constitution of India, as it created an unjust classification and there was no reasonable differentia of making such classification nor was there any

nexus between such classification and the object sought to be achieved. In the present case though the facts are somewhat different but basically the

present petitioners have been victims of arbitrariness on the hands of the respondents who have without assigning any reasons curtailed the period of

their tenure from three years to one and a half years.â€​

In 2001 (1) SCC 182, in the case of “Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant & othersâ€, their Lordships of the Hon’ble

Supreme Court have held that object of the doctrine of the natural justice is not only to secure justice but to prevent miscarriage of justice.

In 2004 (2) SCC 590, in the case of “Union of India vs. Kuldeep Singhâ€​, their Lordships of the Hon’ble Supreme Court have explained the

meaning of word “discretionâ€​ as under:-

“20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound

discretion, and according to law. (See Tomlin’s Law Dictionary.) In its ordinary meaning, the word “discretionâ€​ signifies unrestrained exercise

of choice or will; freedom to act according to one’s own judgment; unrestrained exercise of will; the liberty or power of acting without control

other than one’s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting

officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of

others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and

law. (See Tomlin’s Law Dictionary.)

Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person

to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment;

soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance,

between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that

something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according

to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within

the limit, to which an honest man, competent to the discharge of his office ought to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield).

(Also see S.G. Jaisinghani v. Union of India.)

Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive

rights. The matters which should regulate the exercise of discretion have been stated by eminent judges in somewhat different forms of words but

with substantial identity. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law,

and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (per Willes, J. in Lee v. Bude and Torrington

Junction Rly. Co. and in Morgan v. Morgan)â€​.

In 2008 (5) SCC 1, in the case of “P. Venugopal vs. Union of Indiaâ€, their Lordships of the Hon’ble Supreme Court have declared that

curtailment of term of five years could only be made for justifiable reasons and compliance with principles of natural justice for premature termination

of term of a Director of AIIMS squarely applied also to the case of the writ petitioner. Premature termination was also without following the

safeguards of justifiable reasons and notice. Their Lordships have held as under:-

“36. From the aforesaid discussion, the principle of law stipulated by this Court is that curtailment of the term of five years can only be made for

justifiable reasons and compliance with principles of natural justice for premature termination of the term of a Director of AIIMS squarely applied also

to the case of the writ petitioner as well and will also apply to any future Director of AIIMS. Thus there was never any permissibility for any artificial

and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the

premature termination of the term of office of the Director. Such an impermissible overclassification through a one-man legislation clearly falls foul of

Article 14 of the Constitution being an apparent case of “naked discrimination†in our democratic civilised society governed by the rule of law and

renders the impugned proviso as void ab initio and unconstitutional.

It was further held in D.S. Reddi that such a classification was not founded on an intelligible differentia and was held to be violative of Article 14

of the Constitution of India. Accordingly, the provision of Section 13-A was held to be ultra vires and unconstitutional and hit by Article 14 of the

Constitution. Similarly in the present case, the impugned proviso to Section 11(1-A) itself states that it is carrying out premature termination of the

tenure of the writ petitioner. It is also admitted that such a premature termination is without following the safeguards of justifiable reasons and notice.

It is thus a case similar to D.S. Reddi and other decisions cited above that the impugned legislation is hit by Article 14 as it creates an unreasonable

classification between the writ petitioner and the future Directors and deprives the writ petitioner of the principles of natural justice without there being

any intelligible differentia.â€​

In 2008 (14) SCC 151, in the case of “Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central-I & anotherâ€, their Lordships

of the Hon’ble Supreme Court have held that even a purely administrative order which entails civil consequences, must be consistent with the

rules of natural justice. Their Lordships have held as under:-

“26. In the light of the aforenoted legal position, we are in respectful agreement with the decision of this Court in Rajesh Kumar2 that an order

under Section 142(2-A) does entail civil consequences. At this juncture, it would be relevant to take note of the insertion of proviso to Section 142(2-

D) with effect from 1-6-2007. The proviso provides that the expenses of the auditor appointed in terms of the said provision shall, henceforth, be paid

by the Central Government. In view of the said amendment, it can be argued that the main plank of the judgment in Rajesh Kumar to the effect that

direction under Section 142(2-A) entails civil consequences because the assessee has to pay substantial fee to the special auditor is knocked off.

In Rajesh Kumar it has been held that in view of Section 136 of the Act, proceedings before an assessing officer are deemed to be judicial

proceedings. Section 136 of the Act, stipulates that any proceeding before an Income Tax Authority shall be deemed to be judicial proceedings within

the meaning of Sections 193 and 228 of the Penal Code, 1860 and also for the purpose of Section 196 IPC and every Income Tax Authority is a court

for the purpose of Section 195 of the Code of Criminal Procedure, 1973. Though having regard to the language of the provision, we have some

reservations on the said view expressed in Rajesh Kumar case, but having held that when civil consequences ensue, no distinction between quasi-

judicial and administrative order survives, we deem it unnecessary to dilate on the scope of Section 136 of the Act. It is the civil consequence which

obliterates the distinction between quasi-judicial and administrative function. Moreover, with the growth of the administrative law, the old distinction

between a judicial act and an administrative act has withered away. Therefore, it hardly needs reiteration that even a purely administrative order

which entails civil consequences, must be consistent with the rules of natural justice. (Also see Maneka Gandhi v. Union of India and S.L. Kapoor v.

Jagmohan.)

As already noted above, the expression “civil consequences†encompasses infraction of not merely property or personal rights but of civil

liberties, material deprivations and non-pecuniary damages. Anything which affects a citizen in his civil life comes under its wide umbrella.

Accordingly, we reject the argument and hold that since an order under Section 142(2-A) does entail civil consequences, the rule audi alteram partem

is required to be observed.â€​

In 2010 (9) SCC 496, in the case of “Kranti Associates Private Ltd. & another vs. Masood Ahmed Khan & othersâ€, their Lordships of the

Hon’ble Supreme Court have held as under:-

“47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done

as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial,

quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on

relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one

common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the

litigants’ faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person

deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons†is not to be equated with

a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only

makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial

Candor.)

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a

component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v.

University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and

intelligent reasons must be given for judicial decisionsâ€​.

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement

of giving reasons for the decision is of the essence and is virtually a part of “due processâ€​.â€​

We have gone through the record produced before us. No reasons have been recorded why the Chairperson and Vice-Chairperson have been

removed. They could only be removed by assigning justifiable reasons.

There is no illegality or perversity in the impugned judgment dated 11.07.2017, rendered by learned Single Judge in WPMS No.709 of 2017 and

analogous matters. Accordingly, the special appeals are dismissed with costs quantified at Rs.25,000/- each. Respondent no.1 in all the special appeals

shall be deemed to be in office with all consequential benefits.

Pending application, if any, stands disposed of.