JUDGMENT 1. SINCE it appeared to the satisfaction of the Central government that M/s. National Company ltd, Calcutta in this State (hereinafter referred to as the said Industrial undertaking), which was engaged in the scheduled industry viz. Jute Industry and by diversion of funds brought about a situation, which was likely to affect the production of articles manufactured or to produce therein and that immediate action was necessary to prevent such a situation, so in exercise of powers conferred by section 18aa (A) (1) of the Industries (Development and regulations) Act 1951 (hereinafter Deferred to as the said Act), an authorised body composing of 11 persons were directed to take over the management of the said industrial undertaking for five years, on conditions that they (i) should comply with all directions issued from time to time by the Central government, (2) should hold office for a period of five years from the date of publication in the official Gazette of the concerned order, (3) such appointment of the authorised body may be terminated by the Central Government if the same was considered necessary and (4)the order shall have effect for a period of five years as mentioned above. 2. THE petitioner has stated that he is a qualified Honours Graduate of the University of Calcutta apart from having qualifications from abroad. It was his case that in 1963, he joined M/s. Bird Hailger group of Jute Mills as Covenanted assistant and thereafter, on promotion, he held the post of administrative Officer till his appointment with the said Industrial undertaking and in the manner as stated hereinafter. It has been stated that on 13th august 1976 there was an advertisement issued for and on behalf of the said Industrial undertaking for the post of Purchase Manager (Jute) and on application being made by him, on or about 8th August 1976, the then Chairman of the authorised body of the said industrial undertaking, General J. S. Arora appointed the petitioner on 8th October 1976 in the post as advertised, at a salary of Rs. 2,000/- per month over and above the perquisites as admissible. The petitioner was also required to undergo a period of probation of six years prior to his confirmation and after joining the post in question on or about 6th May 1977, he was ultimately confirmed after satisfactory completion of such probationary period. 3. 2,000/- per month over and above the perquisites as admissible. The petitioner was also required to undergo a period of probation of six years prior to his confirmation and after joining the post in question on or about 6th May 1977, he was ultimately confirmed after satisfactory completion of such probationary period. 3. IT was the case of the petitioner that on or about 28th February 1880, the Chairman of the authorised body of the said Industrial undertaking, terminated the services of Respondent No. 1 shri B. K. Basu, from his erstwhile post of Executive Director. Such order was passed with immediate effect from 28th February 1980 and it appeared from the statements as made in this procedings, the particulars whereof would be mentioned hereinafter, that the said Shri B. K. Basu moved this Court and obtained a Civil order on or about 3rd March 1980, with a further order for, maintaining status quo as on that date and such civil order and the application was ultimately dismissed on 17th July 1980, for non prosecution and all interim orders were vacated. It has been stated by the petitioner that on or about 27th April 1980, the National Company Ltd., (Acquisition and Transfer of Undertakings) Ordinance 1980 (hereinafter referred to as the said ordinance) came into force and under section 13 of the same, every employee of that Company became employee of the Central Government and under the said ordinance the right, title and interest of the Company vested with the Central Government. It has further been stated by the petitioner that thereafter, on or about 28th April 1980, the jute Corporation of India appointed a committee for necessary management under section 5 of the said ordinance and one Shri S. K. Gupta was nominated as the Chairman of the said Committee. It was also the case of the petitioner that on or about 4th May 1980, the Chairman of the Board selected the name "national Jute Manufacturers Corporation ltd Unit National (hereinafter referred to as the said Unit), in place of National Company Ltd., and thereafter by a notification of 11th June 1980, the Central Government directed the vesting of right, title and interest of the Company in National Jute Manufacturers Corporation Ltd., (hereinafter referred to as the said Corporation ). Such ordinance was repealed on 19th July 1980 and the said Act as mentioned above, came into force. 4. Such ordinance was repealed on 19th July 1980 and the said Act as mentioned above, came into force. 4. THE petitioner has further stated that on 4th May 1980, Shri S. P. Mullick, Chairman-cum-Managing Director, informed to all concerned that shri B. K. Basu, with the approval of the Department of Textile, Government of India, was reinstated as Executive director with effect from the forenoon of 4th May 1980 and he further requested to the addressees that all help, assistance and co-operation should be extended to him, in the discharge of his responsibilities. The petitioner has stated, as the said Shri B. K. Basu had in the meantime dismissed some of the employees, they moved and obtained a rule, being Civil Rule No. 4194 (W) of 1961 from this Court and the same is still pending. It has been stated that, in that application, a prayer for the issue of a writ of Quo Warranto has also been asked for against Shri B. K. Basu. It was the further claim and allegations of the petitioner that after rejoining the services as aforesaid and in the manner as indicated, the said Shri basu became inimical with the petitioner and he frankly disclosed that he would teach the petitioner a lesson, as he thought that at the instance of the petitioner, steps were taken against him. In fact, the petitioner has stated that the said Shri B. K. Basu was not pleased with him, as he refused to make arrangements for unofficial sale of B/l Thread waste and that too according to the directions of the said Shri Basu and to his nominees. It was the categorical assertions of the petitioner that such refusal to comply with the irregular request of the said Shri Basu, made him infuriated against the petitioner and as such, he became vindictive. The petitioner has annexed as Annexure "a" a document which according to him, was addressed to him by Shri B. K. Basu and by the said document he was asked by the said Shri basu to arrange for the sale of B/l thread waste by 12th August 1981. 5. IT was also the case of the petitioner that in order to give vent to his desire to punish the petitioner without any justiciable cause or reasons, the said Shri Basu further took other steps, not only to humiliate, but also to prejudice him. 5. IT was also the case of the petitioner that in order to give vent to his desire to punish the petitioner without any justiciable cause or reasons, the said Shri Basu further took other steps, not only to humiliate, but also to prejudice him. In fact, he issued a circular dated 24th December 1081, stating that commercial Manager would be directly responsible to the Executive Director for gunny sales, stores, purchased and jute purchase division of the said, unit. These Act, the petitioner has stated, were so long performed by him. It has been stated that thereafter, on 7th January 1982, the said Shri Basu transferred the petitioner from the post of Purchase Manager (Jute) to Assistant manager, Mill, without hearing him and insisted that the petitioner should handover charge forthwith. The petitioner has stated that he had no alternative but to abide by the order of transfer as passed on protest that Shri Basu should not be so vindictive towords him. The petitioner has also alleged that Shri basu assured that the petitioner would be promoted to the post of Commercial [manager very soon and as nothing was done, the petitioner, by his letter of 14th January 1982, lodged a further protest against the order of transfer. He has althroughout claimed and still he is claiming such order of transfer, to be a case of demotion and bad because no opportunities or any hearing was given to him and as such it was also claimed that actions as taken, were against the principles of natural justice or fundamentals of fair play, apart from being that they were not bona fide. 6. IT was also stated by the petitioner that it would transpire from two circulars dated 18th January 1982 that Shri B. K. Basu, Respondent No. 1, directed that one Shri O. P. Modi, Stores incharge, would in addition to his duties, look-after store purchases and Shri S. K. Das Gupta, Incharge Jute Department (Mills), would in addition to his duties, act as Jute Purchase Officer. Such circulars were claimed by the petitioner, to have been issued in hot haste and hurry, for the purpose of victimising him without making any organisational change. Such circulars were claimed by the petitioner, to have been issued in hot haste and hurry, for the purpose of victimising him without making any organisational change. That apart, it has been stated by the petitioner that the respondent Shri Basu made untrue allegations against him on 7th January 1982, to the effect that he had taken away two daily jute register for the years 1978 and 1979 and had also directed him to hand over those registers to the senior Manager. Such allegations were not only denied by the petitioner but he also, by his letter of 16th February 1982 claimed them to be untrue. It was also alleged by the petitioner that not only the said Shri Basu but also officer under him, acted in connivance and in collusion to discredit and humiliate him and in fact, on false allegations and in pretext the said Shri Basu was out to put the petitioner into difficulty and trouble. As a result of that, the petitioner has stated that he was asked by the yesman of the said Shri Basu, to report for duty on Sundays and even, on days when he was sick. It would appear from the statement as made that as soon as the petitioner joined his duties after the expiry of sick leave on 4th March 1982, he was served with a show-cause notice by the senior Mill Manager, for unauthorised absence and leaving his quarters. Such show-cause was duly replied to by the petitioner and he has stated that thereafter, on 5th March 1982, he received a memo dated 4th March 1982 from the respondent Shri Basu to the effect that the management had decided to hold an investigation with reference to the letter dated 16th February 1982 as mentioned hereinbefore, and the petitioner was asked to report to Shri H. C. Datta, financial Controller at the Head-office. After receipt of the said memo, the petitioner on the same day asked Shri Basu to supply him the copy of the decision of the management along with reasons for the investigation and also to refer the matter to a future day, He has allegad that in fact the said Shri B. K. Basu did not accede to such prayer and directed that the Financial Controller as chairman of the Board of Enquiry, would probe into the matter. The petitioner has alleged that Respondent Shri basu had appointed one of his subordinate officers to enquire into the allegations made by him against Shri Basu and that too for the purpose of obtaining a report in his favour. 7. IT would also appear from the, statement in the petition that petitioner althroughout claimed that at all material times and before the circular dated 24th December 1982 appointing one Shri A. K. Mitra as Commercial manager, he was the Purchase Manager (Jute) and was directly under the. Executive Director and to him alone he was answerable. It was his case that the post of Assistant Manager in the Mill was and still is lower in rank though such post carries the same salary. It was the petitioner's case that by the order of transfer, he was forced to join in the lower post of Assistant Manager and that too against all existing norms and rules of natural justice and apart from the prejudices as mentioned above, the petitioner has stated that he was also deprived of various other facilities which were available to him, on such reversion. As such, he has claimed the order of reversion to be malafide. 8. IT was stated by the petitioner that the Board of Directors of the said industrial Undertaking was the appointing body of the Executive Director and the services of the Respondent No. 1 Shri B. K. Basu haying been terminated on 28th April 1980, he was not an employee on 27th April 1980 when the said ordinate came into force. It was also the case of the petitioner that the post of Executive Director was and still is a public post in view of the said ordinance and the said Act He has further stated that the untrue allegations which were available or are strewned in the pleadings would show and establish without any doubt that whatever action was taken at the behest dictates of the Respondent No. 1 was in colourable use and exerecise of power apart from being malafide and without jurisdiction. As mentioned above, the petitioner ailthroughout maintained that the investigation was sought to be conducted by the subordinate of Shri Basu and that too under his dictates and orders only for the purpose of getting favourable report and thus it jeopardized the case of the petitioner to punish by any means. As mentioned above, the petitioner ailthroughout maintained that the investigation was sought to be conducted by the subordinate of Shri Basu and that too under his dictates and orders only for the purpose of getting favourable report and thus it jeopardized the case of the petitioner to punish by any means. It was further stated by the petitioner that the said Corporation is an authority under Article 12 of the Constitution of India the affidavit -in -opposition by Shri B. K. Basu Respondent No. 1 was dated. 23rd December 1982. That affidavit would be referred to hereafter as the first affidavit. In the said first affidavit it has been stated by Shri Basu that the post of Purchase Manager (Jute), would be equivalent to the post of assistant Manager of the Mill and both the grade and scale of the said post and other benefits are equal. He has also stated that said Company was running with a huge loss, considering the capabilities and qualities of the depoent, he was appointed to resusciate the shattered economy of the said Industrial Undertaking. The deponent has further stated that because of his qualifications and other qualities he could bring about a bright trading picture of the said Industrial Undertaking of the said Company. The deponent has stated that at this stage there was a change in the chairmanship of the then authorised body of the said Company and one Shri J. L. Tripathi having resigned one Shri Salil Kumar Gupta took over charge of the then authorised body. It has been stated that on such joining the said Shri Gupta started planning all sorts of the malafide and illegal activities against the deponent. It was further alleged by the deponent that thereafter the Managing Director of the said Company being Respondent No. 3, ignoring all the existing norms and with ulterior motive asked the Financial controller, who was subordinate to the deponent, to issue certain circulars directing the stoppage of movement of all goods and materials out of the bills. Such act or actions of the said Respondent No. 3 was also claimed to be unauthorised. Such act or actions of the said Respondent No. 3 was also claimed to be unauthorised. The deponent has also given other and further particulars about the humiliation meted to him by or at the instance of the said Shri Gupta and has stated that on being so humiliated he made a representation to the hon'ble Minister in -charge of Industries and Commerce and it was at his intervention, the personal grudge and malafide intentions of the said Shri gupta could not be given further effect to and before any mischief could be done to him, the deponent moved this Court and obtained Civil Order as mentioned hereinbefore. It would appear from the statements in the said first affidavit that in that proceedings initiated by or at the instance of the said deponent, there were claims and counter claims and allegations and ultimately the deponent succeeded in obtaining an order of maintenance of status quo as on 6th march 1980 and was directed to be continued initially till 24th March 1980 and thereafter, till the disposal, of the concerned application: The deponent has also stated that as no order of the purported termination of his service was indicated before he moved the writ petition there would, in fact, no termination at all or in the eye of law and in view of the order made by this Court, he continued to be in his position as executive Director of the said unit till 17th July 1980. He has also stated that subsequent thereto the said Company decided to reinstate him and on such the concerned civil order was not proceeded with and by an order 17th July 1980, the application in question was dismissed as the petitioner did not prosecute the same. It has been stated further that after that, the deponent was reinstated by letter dated 4th May 1981 in the said unit in terms of the directions given by the Central-Government and his leave from 27th February 1980 to 3rd May 1981, without pay, but with continuation of service and benefits of provident fund and gratuity was sanctioned. As a result thereof, it was the categorical statement of the deponent that his service was never considered or taken to break but the same was a continued one. As a result thereof, it was the categorical statement of the deponent that his service was never considered or taken to break but the same was a continued one. He has also stated that the steps as taken by him against the other personnel, whose particulars the petitioner has given and who have obtained a Rule, were taken duly, legally, bonafide and in proper use and exercise of power. 9. THE deponent has denied the allegations that he took steps against the petitioner to satisfy his grudge or in a malafide manner or for the purpose of humiliating him and that too for the reasons as indicated by the petitioner. He has stated that the slip dated 12th august 1981 in question was not sent to the petitioner for the purpose of disposing of the B/l, Thread waste. It was his allegation that the petitioner intentionally and with malafide motive has made statement contrary to the above and that too for misleading this Court. It was denied by the deponent that in October 1981 he asked the petitioner to sell scraps and/or drums etc without giving any advertisement in the paper or without giving up a notice on the notice board. He has stated that he duly requested the petitioner to sell the articles in question on the basis of quotations appropriately received but there was no request by him to sell those articles to his nominated buyers. It was also the case of the deponent that on 7th August, 1981, Shri S. K. Gupta of the Jute Department of the Mill sent a note to the senior Manager Mill for sale of B/l waste yarn with a copy to the executive Director on 11th August 1981 and the said senior Manager also wrote a letter to the deponent intimating him that there was a huge accumulation of such waste in the mill. It was also intimated to the deponent that Shri S. K. Gupta was also reminding the petitioner practically every day but he was not taking any action with regard to such B/l waste yarn which was jamming up every day. It was also intimated to the deponent that Shri S. K. Gupta was also reminding the petitioner practically every day but he was not taking any action with regard to such B/l waste yarn which was jamming up every day. Under such circumstances, the deponent has stated that he as Executive Director, directed the petitioner that as per resolution of the "waste" sub-committee dated 4th August 1981, the petitioner was supposed to initiate and sell the concerned waste yarn but there was not taking any step and that was also one of the reasons" why directions were given for taking immediate steps in the matter. The petitioner has also given particular of such B/l waste yarn which would be about 22. 5 M. T. and were sold @ Rs. 3,100/- per M. T. The deponent has also stated that the petitioner was all throughout negligent of his duties and he was out to frustrate the smooth running of the said unit or its Mill and to carry out the orders duly given by his superiors. 10. THE transfer order of the petitioner was also claimed by the deponent to be due and bonafide one and he has denied that the same was issued suddenly as alleged. It has been stated that such order of transfer of the petitioner had to be issued for exigencies of business of the said Company and transfer being a condition of employment, the petitioner cannot and should not have any grievance, the more so when such transfer, in the instant case was not a penal one or as a result of which the petitioner was either reverted or demoted in rank. He has stated that the rank of the petitioner was that of Assistant Manager and on transfer as impeached he had been receiving all benefits as were available. The deponent has also stated that the petitioner had accepted the said transfer order without any protest and in fact according to him there was no occasion of such protest. The dependent has further stated that as the transfer order in the instant case was not by way of penalty or the same was not a case of demotion so there was not cause or any occasion for giving him any opportunities or to hold that such order was violative of principles of natural justice as alleged. The dependent has further stated that as the transfer order in the instant case was not by way of penalty or the same was not a case of demotion so there was not cause or any occasion for giving him any opportunities or to hold that such order was violative of principles of natural justice as alleged. He has further stated that in view of the reorganisation of the Head office and because of the policy of the said Corporation to purchase all requirements of jute from Jute Corporation of India, the post of Purchase Manager was not required at the Head office and as such, the petitioner's services were transfered to the Mill with the approval of the chairman-cum-Managing Director of the said Corporation. The deponent has alleged that it was found on investigation that the petitioner was guilty of taking away the company's/mill's property for the year 1978-79 and as soon as this was directed by letter dated 17th June 1982, he asked the petitioner to make over the said record viz the daily purchase register to the senior Mill Manager. He has also denied the statement of the petitioner that steps were aimed at him by or at the instance of the deponent as the deponent considered him to be instrumental in having his services terminated. It was further stated by the deponent that the petitioner has made bold-bare, reckless and false allegations in the petition to suit his convenience and purpose and prejudicing this court. It has also been stated that the petitioner's absence from duty as in this case was a gross misconduct and such actions was never expected of a responsible officer like him or an officer of the rank and status of an Assistant Manager. The deponent has also stated that the petitioner had left the Mill's premises and that too without obtaining necessary permission which was also a gross misconduct on his part. It has been stated that no officer subordinate to the petitioner was appointed to enquire into the offences alleged against the petitioner and as such the petitioner cannot claim to have any grievance. It has been categorically denied that the post of Assistant Manager in the Mill is lower in rank than that of the Purchase Manager (Jute) as alleged. It has been stated that no officer subordinate to the petitioner was appointed to enquire into the offences alleged against the petitioner and as such the petitioner cannot claim to have any grievance. It has been categorically denied that the post of Assistant Manager in the Mill is lower in rank than that of the Purchase Manager (Jute) as alleged. It was also the averment of the deponent that for the ends of justice and also for the interest of the administration of the said Company, the whole matter was referred to the Board of investigation and thereafter this Court was pleased to appoint an investigating officer in place of the Board of investigation, and as such also the petitioner should not have any grievance, while on this point referance may be made to an order passed by this Court; on the orders dated 10th March 1982 2nd April 1982, 2nd June 1982, and 9th august 1982 which orders, I am informed have been given effect to and the investigation has been completed and by an order dated 9th August 1982 the respondents were given liberty to take further steps in the matter, if they were; so advised, subject to the results of the rule. I am now informed that on necessary enquiry, the services of the petitioner have been terminated in terms; of the contract of agreement on 10th august 1982, but the same has not been given effect to in view of the order as mentioned above. It was the further and categorical assertions of the deponent that all allegations which have been levelled against him by the deponent in his petition were directed to lower his position before this Court and to get some order by prejudicing the mind of this Court against him. He has also stated that the officers of the Head office were and are entitled to free lunch for smooth running of the administration and that was not the perquisites of an employee like the petitioner and as such, such facility was not made available to him. It should be mentioned here that such stoppage of supply of lunch was also claimed by the petitioner to be an act of malafide use of power by the deponent. The petitioner has also stated that the facilities of car and telephone, which he was so long getting, were also interfered with. It should be mentioned here that such stoppage of supply of lunch was also claimed by the petitioner to be an act of malafide use of power by the deponent. The petitioner has also stated that the facilities of car and telephone, which he was so long getting, were also interfered with. Such allegations have been denied by the deponent by saying that in terms of his conditions of service and terms of employment the petitioner was not required to have such facilities always and it was also stated by him that whenever necessary, such facilities were available to the petitioner, on asking. 11. THE affidavit-in-reply to the opposition as indicated above was dated 10th January 1983 and therein, apart from repeating and reiterating the relevant facts as disclosed in the petition, the petitioner has denied all claims and counter claims which were contrary to his contentions. In short, the petitioner has claimed all the actions as taken against him to be improper, malafide, void and motivated. To establish that his transferred post was lower than that of the post which the petitioner was holding two charts in annexures A and A1 to the reply have been disclosed. There was another affidavit -in -opposition dated 23rd December 1982, filed on behalf of the said Unit through Shri Amiya ranjan Mukherjee, the Chief Mill Manager, of the same. He has referred to the sequences of events which are happenings regarding the sale of B/l waste yarn and has stated that the actual facts pertaining to such sale and the dispute arising over the same have been intentionally withheld or suppressed by the petitioner. 12. IN the said second affidavit the deponent has also stated that the post of Purchase Manager (Jute) is equivalent to the post of Assistant Manager, mill and both the grade and scale of the said post and other benefits are equal. As such, he claimed that in the case of the petitioner there was no demotion or any reduction in rank and whatever steps were taken, they were due, legal and proper. The deponent has also stated that after vacation or modification of the interim order the services of the petitioner have been terminated. As such, he claimed that in the case of the petitioner there was no demotion or any reduction in rank and whatever steps were taken, they were due, legal and proper. The deponent has also stated that after vacation or modification of the interim order the services of the petitioner have been terminated. He has also stated about the fact how the Respondent B. K. Basu was appointed and under what circumstances he has holding the post when the order in the case of the petitioner was passed. It has been suggested that as the said Respondent no. 1 Shri B. K. Basu was holding the post at the relevant time so there would be no cause of action for issuing a writ of Quo Warranto and it must be held and observed that the petitioner's services were duly terminated as his order of transfer was also due and proper allegations of malafide use of power by Shri Basu against the petitioner have also been denied by this deponent and he has also stated that that Shri Basu had not acted in the manner with. He has also stated that the order of transfer was duly and appropriately made and passed and hence there was no illegality or any irregularity, no interference by this court is required or necessary. He has similarly commented on the conduct of the petitioner and has also stated that the petitioner has not acted bonafide in the instant case. It is also claimed that the acts or actions as taken by the petitioner were not also conducive to maintenance of discipline in the administration. The deponent has further reiterated that the investigation which was duly initiated had been completed and the petitioner has been found guilty on appropriate consideration of the intrinsic evidence as available. It was his case that there was no malice or any irregular or arbitrary exerise of power in this case. 13. SAVE as aforesaid the deponent has made statements which are repetition of the facts alleged or stated by the deponent of the first affidavit. The affidavit-in-reply to the said second affidavit was dated 10th January 1983 and there also the relevant and material allegations have been denied apart from the fact that the petitioner has reiterated his statements as contained in the petition. 14. The affidavit-in-reply to the said second affidavit was dated 10th January 1983 and there also the relevant and material allegations have been denied apart from the fact that the petitioner has reiterated his statements as contained in the petition. 14. THE burden of proof in a proceeding for a Writ of Quo warranto is generally on the Respondents to establish the right, of a public office. Where a person is asked to show his title to an office, he must show the continued existence of every qualification necessary to its enjoyment, and the challenges as thrown, must be proved or the case as sought to be made out, must be made out in full clarity and without any ambiguity. The person charged, must set out his title specifically and show on the face of the necessary evidence that he has a valid title. A Writ of Quo warranto lies to put an end to the office as a whole, which was being occupied by the person charged, without any or due authority or if he holds such office without complying with the conditions essential to the right to hold the concerned office. In a proceeding for a Writ of Quo warranto, as a general Rule, Courts should proceed with extreme caution in the matter of forfeiture of all or any right of the person charged and rights will not be forfeited for every alleged act. A public office has a right, authority- and duty, created and conferred by law, by which an individual is vested with some portion of the subordinate functions of the Government or the Authorities to be exercised by him, for the benefit of the public, for the term and tenure as prescribed by law. It is a trust, thus conferred on public authority for a public purpose, embracing the tenure, duration, employment and duties. So, a public officer, is to be distinguished from a mere employment or agency restraining or contract, to which such power and functions are not attached. In order to obtain the concerned writ, the office must be one of the public nature. So, a public officer, is to be distinguished from a mere employment or agency restraining or contract, to which such power and functions are not attached. In order to obtain the concerned writ, the office must be one of the public nature. The determining factor or the test is, whether the office involves delegation of some of the solemn functions of the Government, whether executive, legislative or judicial, to be exercised by the holder for the public benefit and unless his powers are of such nature, he will not be a public officer. Usurpation of the public office, would be a crime and, like all other crimes could be prosecuted and when a judgement is obtained against the intruder, he should not only be ousted from his office but liable to pay fine for such usurpation. To justify resort to the extraordinary remedy by Quo warranto, there must be an office legally authorised and constituted. 15. IN R Vs. Speyer, (1916) 1 K. B. 609, Quo warranto has been observed, to be an information in the nature, which took the place of the absolute writ of quo warranto, which lay against a person to claim or usurp an office, franchise or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. A writ of quo warranto according to Hallsberry's volume II Page 145, would lie in cases of abuse or long neglect of the franchise. Originally, the writ of Quo warranto was a writ of right for the King against the subject to claim for usurpation of any office, franchise or liberty, to enquire as observed in Blackstone's commentaries, 8th Edition Volume 3 page 262, by what authority is supported his claim in order to determine the right. 16. AS the writ provides a remedy for enforcing rights in India, the courts have decided that existence of right is thus, the very foundation for the exercise of entertaining any application for a writ of Quo warranto. 16. AS the writ provides a remedy for enforcing rights in India, the courts have decided that existence of right is thus, the very foundation for the exercise of entertaining any application for a writ of Quo warranto. On interpretation, the Courts in India have also found that the language of Article 226 is wide enough to emphasise and to support the contentions that the High court's power was not limited to issuing directions or writs expressly mentioned in the Article, but it could issue " any order or directions" against "any person" for "any other purpose," i.e. for "any purpose other than the enforcement of the fundamental rights." A writ of Quo warranto will issue in respect of an office, only if the office is of a public nature and the test to determine, whether the office is a public one or not, would be to find out as to whether duties of the office are public in nature. The office must be of substantive character and the same must be created by statute or by the Constitution itself. So, a writ of Quo warranto cannot go against the Managing Committee, not created by statute, as observed in the case of Shyabuddinsab Mohidineab Akki Vs. Gadag Betagri Municipal Borough and Anr, A. I. R. 1955 S. C. 314 or rules having statutory force of a private educational institution. To have a writ of Quo Warranto issued, it must also be proved that the Respondent concerned has asserted his claim to the office and he is not legally qualified to hold the same or to remain in the office, because of contravention of some constitutional or statutory provisions. 17. QUO Warranto means "by what authority. " It is a writ, issued to person usurping any public office, franchise, liberty or privilege belonging to the state, with a view to ascertain the legality of the claim and to oust the person, if not legally entitled to it. The entitlement of Quo Warranto under Article 32, as guaranteed constitutional remedy, was justified, because, the Indian decisions, though few, clearly show that the remedy, if not frequently in demand, dealt with very important matters, when demanded. The entitlement of Quo Warranto under Article 32, as guaranteed constitutional remedy, was justified, because, the Indian decisions, though few, clearly show that the remedy, if not frequently in demand, dealt with very important matters, when demanded. The Quo Warranto proceedings is a judicial remedy, by which any person who occupies or usurps an independent substantive public office, or franchise or liberty, is asked to show cause, by what right he claims it, so that the title of the office franchise or liberty may be settled and unauthorised occupants ousted, by judicial order. 18. THE Rules regarding the public offices, for the usurpation of which, a private person can complain was also. . . . . . . . and till the decision in Darly v. Ragina, 8 E. R. 1513, it was not pointed out, whether Quo Warranto will lie for an office, not created by charter, but in that year, the House of Lords decided on unanimous opinion of 10 judges that Quo Warranto will lie, far usurping any office, whether created by the charter of the Crown alone or by an Act of Parliament the office was of a public nature and a substantive office and not merely the functions of employment of a Deputy or a servant held at the will or pleasure of others. Tindel C. J. in the opinion of the House of Lords in the above case stated, that the remedy was available against intruders into offices of public nature, which were immediately or mediately derived from the Crown and existing at the Common law. The office that was in question in the case as mentioned above was one of the Treasury of the County of the City of the Dublin, which could be vacated only by death, resignation or removal for misbehaviour and the same was not under charter, to which alone Quo Warranto was argued to be. . . . . . . . . . but was under an Act of Parliament. It was, however, of a life tenure. Thereafter, in Rex V. Speyer (supra), the scope of Quo Warranto was further explained. In this case, his Majesty appointed two gentlemen to the Privy Council, who were of alien extraction but naturalised in England. . . . . . . . . . but was under an Act of Parliament. It was, however, of a life tenure. Thereafter, in Rex V. Speyer (supra), the scope of Quo Warranto was further explained. In this case, his Majesty appointed two gentlemen to the Privy Council, who were of alien extraction but naturalised in England. Doubts arose of the validity of the appointments and Sir George Magril exhibited information against them to show by what authority they claimed to be members of His Majesty's Privy Council. Ultimately, membership of the Privy Council was held to be a public office of substantive nature and it was pointed out that the argument of the office, being one at pleasure, could not apply to the case before the Court, where the personal disability of the incumbent would make a re-appointment illegal. This case certainly became a land-mark in the history of Quo warranto as a remedy in law. Even though the Rule was discharged in the case on merits, the unanimous opinion of the Court, regarding the principles for the issue of an information in the nature of Quo Warranto would remain the. . . . . . . . for the further development of such public law remedy. The present position of the remedy in England is that, it has today become completely a Civil action to decide the legal title to an office and the scope of the enquiry is unrestricted and questions of fact could be gone into completely. 19. THE writ of Quo Warranto had not; been mentioned in any of the charters as issued to the Supreme Court of india. Clauses 21, 47 and 55 of the Calcutta, Madras and Bombay High Courts' charters respectively, omitted to mention along with the writ of Prohibition; the writ of Quo Warranto. But just in the case of Prohibition, the Judges have claimed the jurisdiction to issue writ of quo Warranto on analogous arguments; the first reported case on Quo Warranto of the Indian Courts is a case of Korkhill, (1895) I. L. R. 21 Calcutta 717. The other important case in Quo Warranto was In Re : Banaurilal Ray, (1944) 48 c. W. N. 766 and on appeal, A. I. R. 1947 P. C 90. The other important case in Quo Warranto was In Re : Banaurilal Ray, (1944) 48 c. W. N. 766 and on appeal, A. I. R. 1947 P. C 90. On the basis of the determinations as made by Privy Council in the case as mentioned above, the operation of Quo Warranto was restricted within the Presidency Towns until the Constitution. Thereafter, such territorial restrictions have become only of historical importance, as under Articles; 32 and 226 of the Constitution of India, writs would be available over the whole country, 20. IN this proceeding and that too on the pleadings three questions would evolve for determination viz (1) under what authority the Respondent B. K. Basu was holding his office and if such holding of the office was improper and if a writ of Quo Warranto can be issued for that, then (2) what will be the effect and fate of the revision order that was passed against the petitioner what should also be the effect on the transfer order as inflicted on the petitioner. Mr. Chakrabartti. first dealt with the question of issuing a writ of Quo warranto and contended that in the facts and circumstances as indicated hereinafter, the Respondent Shri B. K. Basu, had no right or authority to hold the post of Executive Director of the said Unit of the Corporation in question and he really usurped the said office, without any authority, power and competence, as admittedly the Chairman of the Authorised Body of the said unit, terminated his services with effect from 28th February 1980, on due payment of three month's salary in terms of notice. The said Shri Basu was of course thereafter with the approval of the Departmental of Textiles, Government of. India and not by the Board, was, reinstated, as Executive Director with effect from 4th May, 1981. Mr. Chakravartti made a further reference to the Memorandum and Articles of association of the said Corporation and more particularly to Article 92 (21 ). The said Shri Basu was of course thereafter with the approval of the Departmental of Textiles, Government of. India and not by the Board, was, reinstated, as Executive Director with effect from 4th May, 1981. Mr. Chakravartti made a further reference to the Memorandum and Articles of association of the said Corporation and more particularly to Article 92 (21 ). Article 92 clothes the Directors with specific powers and Clause (21) thereof as referred to hereinbefore, authorises the Directors to appoint and at their discretion remove or suspend sudh general Managers, Secretaries, Accountants, Officers, Clearks, Agents and servants as they may from time to time think fit and to determine their powers and duties and fix their salaries or emoluments; and require security in such instances and to such amounts as they may think fit, provided however, that prior approval of the President shall be taken for appointment of- (i) persons who have already attained the age of 58 years, whether they be from public or private sector, with pay, including pension, pensionary equivalent, if any, of more than Rs. 2,500 per month, and (ii) foreign nationals except foreign technical personnel to any post without any ceiling of salary to such personnel and also when such appointment is in broad conformity with the policy of the Government. In view of these provisions, Mr. Chakravartti claimed and contended that it was the instant case, the Board of Directors, who had the right and authority to terminate and also to appoint or reappoint on such termination. These submissions and claims were also sought to be supplemented by Mr. Chakravartti on a reference to the provisions of clause 97 viz. subject to the provisions of the Act, the Board may delegate any of their powers to Committees consisting of such member or members of their body as they think fit and may, from time to time, revoke such delegation. Any Committee so formed shall in the exercise of the powers so delegated conform to any regulations that may, from time to time, be imposed upon it by the Board. The proceedings of such a Committee shall be placed before the Board at its next meeting as contained in Article 97 of the said Articles of Association. Mr. Any Committee so formed shall in the exercise of the powers so delegated conform to any regulations that may, from time to time, be imposed upon it by the Board. The proceedings of such a Committee shall be placed before the Board at its next meeting as contained in Article 97 of the said Articles of Association. Mr. Chakravartti, in fact and in short contended, that such being the position and corresponding power, it was the Board and not the Chairman or the Managing director, who had authority to reinstate the Respondent Shri Basu and that not having been admittedly done, his appointment was void abinitio, irregular, unauthorised and bad. 21. THERE is no doubt that "officer" under the Companies Act, 1956 means and includes any director, managing agents, secretaries, treasurers, manager or secretary, or any person in accordance with whose directions and instructions the Board of directors or any one or more of the directors is or are accustomed to act, and also includes :- (a) where the managing agent, the secretaries and treasurers or the secretary is or are a firm, any partner in the firm; (b) where the managing agent, or the secretaries and treasurers is or are a body corporate, any director or manager of the body corporated. (c) where the secretary is a body corporte, any director, managing agent, secretaries and treasurers or manager of the body corporate; but, save in sections 477, 478, 539, 545, 621 and 633, does not include an auditor; and the Act as involved under the Articles of Association would be the Companies Act, 1956. There cannot be any doubt about the efficiency and administrative capabilities of the Respondent shri B. K. Basu and it has been alleged by him that considering such character and capabilities, he was reappointed, for the purpose of restoring the viability and survival of the said company. Shri Basu has also stated that being satisfied with his work, he was ultimately raised to the position of the Executive Director of the said Company and it has also been stated that due to his efforts, the said Company has been pulled up to be a profit earning concern from a loosing one. Shri Basu has also stated that being satisfied with his work, he was ultimately raised to the position of the Executive Director of the said Company and it has also been stated that due to his efforts, the said Company has been pulled up to be a profit earning concern from a loosing one. It has been contended that even inspite of the overall improvement of the said Company being achieved at the instance of Shri basu, after the change in the chairmanship of the then Authorised body of the said Company on or about 8th February 1980 and as soon as one Shri Salil kumar Gupta, took over as chairman, he stated taking malafide, illegal and irregular actions against the said Shri basu and such action was initiated as the said Shri Gupta had prior grudge against the Respondent Shri Basu, However, against acts or actions or threats to terminate his services, Shri Basu moved and obtained Civil Order No. 7082 (W) of 1980 on 3rd March 1980, with a further order amongst others that status quo in respect of petitioner's service as the Executive Director of national Go. Ltd., he maintained for a period of one week from date. " The learned Judge issuing the said Civil Order, directed the same to appear as an application on 5th March 1980 when the parties will have liberty to ask for vacating or varying the "interim order. Them, on 6th March 1980, the Court was informed on instructions by the learned Advocates appearing for Respondent Nos. 2 and 3 in that Civil' Order that "the service of the petitioner has been terminated oh 27th February 1980 and the fact of such termination had been communicated to the petitioner on 29th February 1980 by Registered Post. " Such fact was not of course admitted on behalf of the petitioner and it was stated on his behalf, that no order was received by him. The Court, on that date gave directions for affidavits and further directed that the petitioner in that Civil Order viz the said Shri Basu, should not attend office of the mills or the factory in the meantime and in the event any one else is appointed in place of the petitioner Shri basu, such appointment would be subject to the results of the application and without prejudice to the rights of the parties. It was of course ordered that the status quo in respect of the said Shri 'basu's quarters, was to be maintained till 26th; March 1980 The said order in respect of the quarters was thereafter extended till the disposal of the application, by the Order dated 10th March 1980 and thereafter, on 17th July 1993 the following order was made :-" learned advocate for the petitioner States on instructions that he does not want to proceed with this application. " hence this application is dismissed for non prosecution. ' there will be no order as to costs. All interim order stand vacated. Other application filed in connection with this application in the matter of contempt of Court need not call for any further order in view of above. " Mr. Chakravartti, after placing the affidavit-in-opposition of the said Shri Salil Kumar Gupta, dated 26th March 1980, and as filed in the said CO. No. 7082 (W)of 1980 (Biraj Krishna Basu Vs. Union of India and Ors.), stated that there was a termination order duly passed in respect of the said Shri Basu and at least, he had knowledge of the same as would appear from the statements made in paragraph 38 of that affidavit-in-opposition, and the knowledge thereof was sufficient to mean that the status quo order as was passed in CO. No. 7082 (W)of 1980 and in the manner and circumstances as indicated hereinbefore, established that the service of the said Shri basu was really terminated and he could not claim any protection of the order of status quo as was passed. 22. WHILE on the question of effect of knowledge, Mr. Chakravartti, apart from claiming that the dispatch of the order in this case was sufficient, made on a further reference to the case of state of Punjab Vs. Khemi Ram, A. I. R. 1970 S. C 214. In that case it has been observed that where a Government servant, being on leave preparatory to retirement, an order suspending him is communicated to him by the authority by sending telegram to his home address before the date of his retirement, the order is effective from the date of communication and it is immaterial when he actually receives the order and the ordinary meaning of the word "communicate" is to impart, confer or transmit information. It is the communication of the order which is essential and not its actual receipt by the officer concerned and such communication is necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it, apart from holding that the word "communicate" cannot be interpreted to mean that the order would become effective only on its receipt by the concerned servant Unless, the provision in question expressly so provides. Actually knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of certain consequences. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there; is no question of his doing any act or passing any order and such act or order being challenged as invalid. It was thus contended that the said Shri Basu, who was admittedly holding a "public office", could not take any advantage that the order was not communicated to him. In fact, it was also claimed by Mr. Chakravartti that the relevant authorities, who on being duly impleaded, have ejected not to appear or the Respondent union of India, who looks after those authorities, have not produced any decision to reinstate the said Shri Basu, so it must be held the said Shri basu was not holding the concerned office, at the relevant time. It should be noted that Annexure "d" to the petition was appropriately stated by Mr. Chakravartti to be the only document produced and the same again, as mentioned earlier, has not been issued by the board and the text of that document also established that there was a termination earlier. In answer to the submissions of Mr. Chakravartti, on the question of quo Warranto, Dr. Chakravartti to be the only document produced and the same again, as mentioned earlier, has not been issued by the board and the text of that document also established that there was a termination earlier. In answer to the submissions of Mr. Chakravartti, on the question of quo Warranto, Dr. Mukherjee contended that so far as the post of Executive director was concerned, the Board of directors of the said Corporation, were the appointing authority and the said shri Basu, in view of section 13 of the national Company Limited (Acquisition and Transfer of Undertakings) Act, 1980, which is quoted as under :-Section 13 (1) Every employee of the Company in connection with any undertaking owned by it, shall become, on and from the appointed day, an employee of the Central Government, and where such undertaking is vested to an existing, or a new, Government company under this Act, become, on and from the date of such vesting in such Government company, an employee thereof and shall hold office or service under the Central Government or the existing, or new, 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 shaft continue to do so unless and until his employment under the Central Government or the existing, or new, Government company, as the case may be, is duly terminated or until his remuneration and other conditions of service are duly altered by the Central Government or the existing, or new, Government company, as the case may be. (2) Notwithstanding anything contained in the Industrial Disputes act 1947, or in any other law for the time being in force the transfer of the services of any officer or other person employed in any undertakings owned by the Company to the Central Government or the existing, or new, Government company shall not entitle such officer or other employee to any other pensation, 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 will not be a public servant. Dr. Dr. Mukherjee contended that under section 13 of this act of 1980 as quoted hereinbefore, the said Shri Basu's service was transferred pure and simple and so also the case of transfer of the petitioner as impeached and as such, there was no break of service of either of them and in any event the said Shri Basu, for the holding of the concerned post could not be treated as a public servant or he could be deemed to be a public officer, which according to Legal and Commercial dictionary by Mitra, means a person falling under any of the following descriptions, namely - (a) every Judge, (b) every member of the Indian Civil Service, (c) every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under' the Government, (d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of justice to perform any of such duties, (e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement, (f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety and convenience, (g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the government, or to make any survey, assessment or contract on behalf of the government or to execute any revenue-process, or to investigate, or to report on, any matter effecting the pecuniary interest, of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the government, or to prevent the infraction of any law for the protection of the pecuniary interest of the Government, and (h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty. Code of Civil Procedure, 1908, section 2 (17). Code of Civil Procedure, 1908, section 2 (17). "public servant" according to the said Dictionary denotes a person falling under any of the descriptions hereinafter, namely-Second - Every commissioned officer in the Military, Naval or Air Forces of India; third - Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; fourth - Every officer of a court of justice including a liquidator, receiver or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any, or to take charge or dispose of any property or to execute any judicial process or to administer any oath, or to interpret, or to preserve order in the court; and every person specially authorized by a Court of Justice to perform any of such duties; fifth - Every juryman, assessor, or member of a panchayat assisting a court of Justice or public servant; sixth - Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority; seventh-Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; eighth-Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; ninth-Every officer whose duty it is, as such officer, to take, receive, keep or expand any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the government or to execute any revenue process, or to investigate, or to report on any matter affecting the pecuniary interests of the Government, or to make authenticate or keep any document relating to the pecuniary interests of the government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; tenth-Every officer whose duty it is, as such officer, to take, receive, keep or expand any property, to make out survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; eleventh-Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; twelfth-Every person- (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State act or a Government company as defined in section 617 of the Companies Act (1 of 1956); indian Penal Code, 1860, section 21; prevention of Corruption Act, 1947, section 2. 'public servant' includes any public servant as defined in the Indian Penal Code (45 of 1860) and any servant of any local authority and any person engaged in any employment or class of employment which the State Government may, from time to time, declare to be employment or class of employment essential to the life of the community. West Bengal Maintenance of Public order Act, 1970, section 2 (f ). 23. ON the basis of the meaning of "public Servant" and "public officer" as indicated above, Dr. Mukherjee claimed that the Respondent Shri Basu was not holding the post of a Public office and was not a Public Officer and ;as such, a prayer for the issue of a writ of quo Warranto as made against him, was not maintainable. Some of the instances, when such a writ can go or can be issued, have been indicated hereinbefore. Dr. Mukherjee further claimed that the two terms as mentioned above, would also denote and mean different category of employees or class of officials. In the case of The University of Mysore vs. Govinda Rao, A. I. R. 1965 S. C. 491, to which a reference was made, it has been observed that broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the balder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other wards, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. In other wards, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its; active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. Dr. Mukherjee could not of course contend otherwise. In fact, he could not do so that a writ of Quo Warranto will issue in respect of an office in case the office be a public one and the tests of public office, as observed in the case of shyabudinsab vs. Municipality, A. I. R. 1955 S. C. 314, would be whether the duties of such office are public in nature. Such office must also be substantive in character and created by statute or by the Constitution. That apart, the authority concerned, should be bound to be asserting his claim to the said office and must also be found to be not legally qualified to hold such office or to remain in possession of the same. It was claimed and contended by Dr. Mukherjee that the Executive Director, in terms of the statutes relevant for this proceedings, was not a public officer. 24. FOR the scope of a writ of Quo warranto. Dr. It was claimed and contended by Dr. Mukherjee that the Executive Director, in terms of the statutes relevant for this proceedings, was not a public officer. 24. FOR the scope of a writ of Quo warranto. Dr. Mukherjee referred to the Full Bench determinations of the delhi High Court, in the case of P. L. Lakhanpal vs. Ajit Nath Ray and Ors, A. I. R. 1975 Delhi 66, where it has been observed that the scope of the power of the High Court to issue a writ of quo warranto under Article 226 of the Constitution is not wider than it is in England and courts in this country have followed the principles including the limitation which have been well established in England. In that case, the petitioner, Chairman All India Democratic (Janatantra) Party, prayed for writ of quo warranto against the Chief justice of India. The case of the petitioners was that the appointment was in violation of the provisions of Article 124 (2) of the Constitution of the mandatory consultation comprehended was not made and as the rule of seniority which inheret in that Article was not followed and that the appointment was mala fide. The Judges of the Supreme court who were senior to the Chief justice had resigned by the time the writ petition was filed and it has been held that the issue of a writ of quo warranto by the High Court would be futile because as a result of the resignations of the Judges who were senior to him. Justice A. N. Ray became the senior most puisne Judge and not only could be re-appointed but would be entitled to be re-appointed as Chief Justice of india, if the contention that the convention of seniority was a rule of law and was inherent in Article 124 (2) be correct. The basis of such reasonings was that on his appointment as Chief Justice of India, a Judge of the Supreme Court does not cease to be a Judge of the Supreme Court and this will be so even if the requirement of consultation under article 124 (2) is mandatory. Justice a. N. Ray does not look in the necessary qualifications mentioned in Article 124 (3), and he 'could' be re-appointed as chief Justice after the requirement of consultation under Article 124 (2) is fulfilled. Justice a. N. Ray does not look in the necessary qualifications mentioned in Article 124 (3), and he 'could' be re-appointed as chief Justice after the requirement of consultation under Article 124 (2) is fulfilled. It has further been observed in that case that the mala fides of the appointing authority or, in other words, the motives of the appointing authority in making the appointment of a particular person are irrelevant in consider in the question of issuing a writ of quo warranto. Dr. Mukherjee claimed that a writ of Quo Warranto should not also be issued if the defect as alleged can be cured. Such submissions were made by Dr. Mukherjee in the perspective that even if the defects as alleged, in the appointment of the said Shri Basu have been committed, they can now be cured by the Board and on such the steps or actions as taken by the said Shri basu, even if they were bad, void, irregular, without jurisdiction or unauthorised, would be perfect. In a matter like this and also in the matter of issuing a writ of Quo Warranto, Dr. Mukherjee claimed, the public convenience should be considered, the more so when there is no legal impediment to appoint the said Shri Basu. As such it was contended, that no interference should be made. Dr. Mukherjee also contended that the remedy in a proceeding for a writ of Quo Warranto being discretionary, the Court will have to consider whether the relator is a fit and proper person to apply for and claim such writ. The issue of such writ again, in this case according to Dr. Mukherjee was barred as there has been an alternative remedy by way of a suit and in fact the petitioner has asked for appropriate reliefs or has gone in for or threatened of the other proceeding in the City Civil Court at Calcutta, the more so when relief and remedy in that suit, would be equally effective. It was further contended by DR. It was further contended by DR. Mukherjee that since a writ of Quo Warranto is issued to prevent as continued exercise of unlawful authority and the same cannot be used to quash things already done, so, no interference should also be made for the acts already taken or done and when, as mentioned hereinbefore, the defect in the appointment of Shri basu, if any, can also be cured now and particularly when the Court should not issue a writ, which would be futile. Dr. Mukherjee produced a letter dated 4th may 1981, issued by Shri S. K. Mullick, showing that the Respondent Shri Basu was reinstated, if not retrospectively, but at least prospectively from that, date and as such, the defect in the concerned appointment was cured. On the question of reversion Mr. Chakravartti, after placing the order dated 8th October 1976, wanted to establish that the petitioner was appointed as Purchase Manager (Jute) by the chairman who signed for and on behalf of the authorised body of the said Company. He then referred to the order dated 7th January 1982 as issued by-Respondent Shri Basu as Executive Director and whereby, the petitioner was; informed that it was decided to transfer him to the Mills as an Assistant Manager in No. 1 Mill with immediate: effect. This action was claimed by the petitioner to be a case of reversion, while the answering Respondents contended the same to be a case of usual and due transfer. It would appear from the pleadings that on 15th November 1976, the petitioner joined in the concerned post of Purchase Manager (Jute) in the Head office at 18a, Bra-bourne Road, Calcutta and on 6th May 1977, he was confirmed. It has been claimed that such confirmation was made as the petitioner duly completed the probationary period satisfactorily. Such sudden transfer of the petitioner was further claimed to be void, unauthorised, illegal and irregular and it has been claimed that even inspite of such character of the concerned order of transfer, the Respondent Shri Basu insisted on the petitioner to hand-over the charge, which the petitioner did, on the assurance received from the said shri Basu that he would be promoted to the post of Commercial Manager. It has further been stated that prior to the circular dated 24th December 1981, whereby Shri A. N. Mitra was appointed as Commercial Manager, the petitioner was holding his post as mentioned -above and was directly under the Executive Director and answerable to him. It has been claimed by him that the post of Assistant Manager in which he was reverted, was lower in rank, though the petitioner was allowed to draw the same salary. The petitioner has further claimed to have been forced to join such lower post, as he anticipated that on his refusal to join, departmental proceedings might be started against him. The petitioner has further given instances as to how discriminatory treatments were received by him on such post in which were in derogation of the earlier perquisites and conditions as were available to him. The answering respondents have stated that the two posts of Purchase Manager (Jute) and the Assistant Manager of the Mill were equivalent, having the same grade and scale and so also the necessary benefits. The said Shri Basu has further stated that the order of transfer on the petitioner was issued for exigencies of the business of the said Company and such transfer was a condition of employment or terms of service of the petitioner. It has been claimed that the petitioner has been duly transferred in accordance with such terms and conditions. It has also been stated that the order of transfer was issued for the smooth running of the Mill and after the petitioner was transferred to the post of Assistant Manager, he was receiving all benefits including increment, leave, travelling allowance etc and in fact, it has been claimed that the petitioner was not reduced in rank either by way of penalty or, with any stigma. In any event, it has further been denied that the post of Assistant Manager in the Mill is lower in rank than the post which was held by the petitioner and it has been claimed that on such transfer the petitioner has not at all been forced to join in a lower post or in a post carrying lesser emoluments or facilities and privilege. The handing over of the charge as mentioned above, by the petitioner to the Commercial manager has been accepted. The handing over of the charge as mentioned above, by the petitioner to the Commercial manager has been accepted. It has also been reiterated that for the ends of justice and also for the interest of administration of the said Company, the whole matter and that too because of the conduct of the petitioner, it had to be referred to the Board of Investigation and thereafter, in terms' of the" order as made by this Court, to an Investigation officer, for necessary investigation. It has also been stated that in the said investigation, the petitioner has failed to prove his case and it was also established that he made false and concocted allegations against the said Shri Basu, for the purpose of fulfilling his malafide design. The circumstances under which such an investigation was directed is not required to be restated here, but that would appear from the earlier orders as passed and made by this court. In any event, it would transpire from the defence as taken that the petitioner, because of his transfer as indicated hereinbefore, which of course has been claimed by him to be a case of reversion, had not been deprived of any prequisites which he was entitled to under his terms of service or conditions of employment. It has been stated that under no circumstances the terms and conditions of services of the petitioner, have been changed. 25. IN his reply, the petitioner, after denying the relevant allegations, have stated that the statements as made by said Shri Basu were false and made, not only to cloud the issue but also with the purpose and object of misleading this Court. It has been claimed that the Managing Director and other functional Directors get salary of about rs. 3,500/- per month, whereas the Executive Director get the salary of about rs. 5,000/- per month, still the Managing and the functional Directors are superior in rank than the Executive Director. He has also referred to a chart as filed in C. O. No. 7082 (W) of 1980 (Biraj Krishna Basu V. Union of India), for the purpose of establishing the above fact and also the fact that the post of Purchase Manager (Jute) was not the same as Assistant Manager but the said post of Purchase Manager was equal in rank to the senior Manager in the mills. On the basis of the said chart, the petitioner has stated that even, the mill Manager would be subordinate to senior Manager and an Assistant Manager Mills, would be still subordinate to the said Mill Manager. He has further claimed that the revised organisational chart dated 4th January 1979, which he has disclosed as Annexure "a" and "a1" to his affidavit-in-reply, would show that - the Purchase Manager (Jute), Head office is equal in rank to senior Mill Manager, who again is superior to Mill Manager and who in his turn is also superior to the Assistant Manager. The petitioner has further stated that the Respondent Shri basu had no authority to Transfer him, in view of Article 92 (21) of the Articles of Association as quoted hereinbefore and under the said Article, the Board of directors were and are competent to determine the power and the duties of officers and the power to transfer was delegated for the first time under Article 97 as indicated hereinbefore of the said Articles of Association, to the Executive Chairman on 12th October 1982, by the Board of Directors. It was also the case of the petitioner that in fact, the actions as taken against him was not a case of transfer but one of demotion, taken under colourable exercise of power and the circumstances for which such transfer has been claimed to have been given effect to, was nothing but an afterthought. Mr. Chakravartti categorically claimed that the respondent Shri Basu, in view of his own chart in Annexure "h" as filed in civil Order No. 7082 (W) of 1980, well knew or was aware of the fact that the post of Purchase Manager (Jute) in the head office would be equal in rank to the senior Mill Manager and the other-statements as made by him were, as; mentioned hereinbefore, meant to mislead this Court and to give a picture, as if the action in the instant case, was a transfer and not a ease of demotion, or reduction in rank. It has been claimed that the Respondent Shri Basu has untruly stated that Shri A. N. Mitra was appointed as Commercial Manager and his statement that the petitionee was not forced to join in his transferred or demoted post against his will was far from being true. It has been claimed that the Respondent Shri Basu has untruly stated that Shri A. N. Mitra was appointed as Commercial Manager and his statement that the petitionee was not forced to join in his transferred or demoted post against his will was far from being true. The statements as made on such aspects and other aspects touching the question of perquisites, have been claimed to be false and reckless. 26. IN view of the above set of pleadings and the provisions of Articles of association as referred to hereinbefore, Mr. Chakravartti claimed that if the two posts as mentioned above, were equalled or equavalent, then there was no case of demotion or reduction, but if that was not so, it was certainly a case of reversion and that too, not by the Directors, but by a subordinate viz Executive Chairman who is admittedly inferior in rank. As mentioned hereinbefore, it was all throughout contended and claimed by the petitioner that his case was not a case of transfer. He has further claimed and contended that even if such order dated 7th January 1982, is 'claimed and construed to be one of transfer, the same was without authority, in excess of power, illegal and irregular, as on that date, there was no delegation made in favour of the said shri Basu who signed the record as executive Director and delegation, if any, was made on or about 12th October 1982. While on this point Mr. Chakravartti referred to the schedule of delegation of powers of the said Corporation and after making a pointed reference to that and more particularly at the Annexure at page 74 of the said affidavit -in -reply dated 10th January; 1983, he contended that in fact, there was no delegation in the instant case. 27. DR. While on this point Mr. Chakravartti referred to the schedule of delegation of powers of the said Corporation and after making a pointed reference to that and more particularly at the Annexure at page 74 of the said affidavit -in -reply dated 10th January; 1983, he contended that in fact, there was no delegation in the instant case. 27. DR. Mukherjee, after referring to the order of transfer dated 7th January 1982 and the letter dated 17th January 1982, on the question of handing over charge by the petitioner to Shri A. N. Mitra, addressed to the petitioner by respondent Shri Basu and also the letter dated 14th February 1982 as in Annexure "h" to the petition, which was in reply to a letter dated 7th January 1982 and addressed to the Executive director by the petitioner, claimed that the conduct of the petitioner would be apparent from those documents and because of such conduct, the steps in transferring him as taken and that too for the circumstances as disclosed earlier by the Respondent Shri Basu, was justified. In a case of transfer Dr. Mukherjee claimed that the conduct of the officer concerned must also be considered and due weight should be given to the same. A question arose as to whether, here was a case of demotion or whether the petitioner was in fact transferred. Dr. Mukherjee, on the basis of the pleadings as indicated, hereinbefore, state that the petitioner was not demoted, but he was required to be transferred for exigencies of service. It was further stated by Dr. Mukherjee that organisational chart as disclosed and the particulars whereof have been indicated hereinbefore, would not itself establish or show that the step as taken against the petitioner, was a case of demotion. It was further claimed by Dr. Mukherjee that since, on the basis of the leave as granted by this Court, the enquiry proceedings has been completed and the petitioner's service has been terminated, so the order of, transfer, at this stage, cannot be agitated or challenged. In fact, he stated that the termination order has already been challenged in a proceeding before G. N. Ray, j. and the said proceeding is pending. Dr. In fact, he stated that the termination order has already been challenged in a proceeding before G. N. Ray, j. and the said proceeding is pending. Dr. Mukherjee further claimed that the writ petition in the instant case was filed on apprehension of the termination and as such, in view of the subsequent; happenings viz the petitioner's service: has been terminated, no further interference should or need be made and that too when the order of termination has been impeached in another proceeding; as indicated above. 28. APART from the points as indicated above, another salient point which, is required to be considered is, whether writ or writs as asked for or the prayers as made, would be available against the said Corporation or the said Company. The said Company was initially an ordinary Company dealing with jute goods and thereafter, with effect from 30th July 1976, the management of the same, was taken over by the Government under section 18aa of the industries Development Regulations Act. After that by an ordinance the undertaking of the said Company vested in the central Government on and from 27th april 1980 and then the Central Government, by notification vested the concerned undertaking with the Jute Corporation of India Ltd., with effect from 28th April 1980. Such vesting was made under section 5 of the said Act. After this, under section 6, the said Corporation vested in the National Jute Manufacturers Corporation Ltd., on 11th June 1980. This National Jute Manufacturers corporation Ltd., was incorporated on 3rd June 1980. The ordinance as mentioned hereinbefore, was replaced by the national Company Ltd (Acquisition and transfer of Undertakings) Act, 1980, on 19th July 1980. Admittedly, the appointed day as mentioned above, would be 27th April 1980. On the basis of the above mentioned dates and incorporations, it cannot now be said that writ or writs as asked for, will not go or will not be available against the said Corporation or the said Company and that too in view of the determinations of the Supreme court of India. 29. ON the basis of the determinations in the case of The Managing Director, U. P. Warehousing Corporation and ors v. Vijay Narayan Vajpayee, A. I. R. 1980 S. C. 840, which was cited by Mr. 29. ON the basis of the determinations in the case of The Managing Director, U. P. Warehousing Corporation and ors v. Vijay Narayan Vajpayee, A. I. R. 1980 S. C. 840, which was cited by Mr. Chakravartti, the said Corporation would be a Government Company and an 'authority' under or within the meaning of Article 12 of the Constitution of India. The fact that the said Corporation would be an authority under or in terms of Article 12, do also gets support from the tests as indicated in the case of Som Prakash Rekhi vs. Union of India and Anr, a. I. R. 1981 S. C. 212, which was also referred to and relied on by Mr. Chakra-vartti. He further claimed and contended that the Respondent Shri Basu, not; only usurped the office, but there has; also been no evidence of curing the defect in his appointment, which was apparent. It was further claimed by Mr. Chakravartti and that too on the basis of the determinations as made in the case of Mahabir Prasad Sharma vs. Prafulla Chandra Ghose and Ors, A. I. R. 1969 cal 198, where it has been observed that it was not enough for a person holding a public office, whose appointment is challenged in a quo warranto proceeding, merely to produce the warrant or the notification of the appointment -He must go further and satisfy the Court, that the appointment is legal and valid, that in this case, the said Shri Basu has thus failed to discharge the onus, which lay on him, by production of relevant materials and evidence and on the other hand, the plaint in Title Suit no. 387 of 1980 (Sri B. K. Basu vs. M/s. National Company Ltd and Anr), in the court of the learned XIII Bench of the city Civil Court at Calcutta, conclusively proved and established, that he had due knowledge of the termination of his services. 30. THE case of P. L. Lakhan Pal vs. Ajit Nath Ray and Ors. 387 of 1980 (Sri B. K. Basu vs. M/s. National Company Ltd and Anr), in the court of the learned XIII Bench of the city Civil Court at Calcutta, conclusively proved and established, that he had due knowledge of the termination of his services. 30. THE case of P. L. Lakhan Pal vs. Ajit Nath Ray and Ors. (Supra), would not appropriately apply to the facts of this case and in fact, said determination on the findings therein are distinguishable on facts and more particularly when, the two of the learned Judges, who claimed to be seniors to Justice A. N. Ray had resigned and as such, were not entitled to be appointed as Chief justice of India and on such resignations, justice A. N. Ray became the seniormost puisne Judge and not only could be reappointed, but would be entitled to be reappointed as Chief Justice of India. The determinations in that case as made were on consideration of the rule of seniority as was claimed to be inherent and involved in Article 124 (2). The basis of the reasonings of the Court was that, on his appointment as Chief Justice of India, a Judge of the Supreme court does not cease to be a Judge of the Supreme Court and that will be so even if the requirements of consultation under Article 124 (2) is mandatory and furthermore when, Justice A. N. Ray does not lack in the necessary qualifications mentioned in Article 124 (3), and he 'could' be reappointed as Chief Justice after the requirement of consultation under Article 124 (2 ). Such being the position and in this case there having no due and legal evidence available, for the necessary appointment of the respondent Shri Basu at the relevant time, the steps which were taken by him claiming to have such a purported appointment, should be deemed to be unauthorised and on usurpation of a power, which did not vest in him and as such following the salient principles as indicated above, a writ of Quo Warranto, as prayed for, can be issued or would be available. The Respondent Shri Basu had no right at the material time to hold the post of Executive Director of the said Unit of the Corporation and he in fact, clearly usurped that office or the incidents attached to the same, without any authority, power and competence, the more so when, his services were terminated with effect from 28th February 1980, on payment of three month's salary in lieu of notice and it would appear from the intrinsic evidence as available in this case and so also the plaint in t. S. 387 of 1980 as mentioned hereinbefore, that he had due knowledge and intimation of such termination. The order of maintenance of status quo as was obtained in C. O. No. 7082 (W) of 1980 would not thus be of any assistance to the Respondent Shri Basu, on the basis of the determinations in State of Punjab Vs. Khemiram (Supra) and the said Shri Basu, who was holding a "public office", could not take any advantage of the alleged non communication of the order of termination. There were also substance in the submissions of Mr. Chakravartti that the Respondent Shri Basu was not in fact and appropriately appointed by the Board,, who had the authority to reinstate him in terms of article 92 (21) read with Article 97 of the articles of Association as referred to hereinbefore. It must be held on the legal evidence as available, that on the Relevant dale and time, the Respondent Shri Basu was not holding the concerned "public, office" and the holder of the post would be a "public servant" or "public officer". In view of the character and incidents of the office, which the Respondent Shri Basu was claiming to hold, there cannot be any doubt that the petitioner would be entitled to ask for a writ of Quo warranto on the basis of the celebrated decisions as cited at the Bar Even though the issue of a writ of quo warranto is discretionary, I have no hesitation in issuing such a writ in the facte of this case and as I feel and am of the opinion that if such writ is not issued or the discretion is not exercised in favour of the petitioner, justice would be denied to him. Such and above being the. position, the submissions as made or put forward by Dr. Such and above being the. position, the submissions as made or put forward by Dr. Mukherjee on the availability of alternative remedy as a bar to the issue of the concerned writ, would be of no avail or assistance. It cannot also be accepted as submitted by Dr. Mukherjee that by a writ of Qua Warranto only prevention of continued exercise, of unlawful authority is possible and permissible and not such wrong, which has already been done or commuted, even it this defect in the appointment of the Respondent Shri Basu is cured subsequently, that in my view and that too in the facts of this case, would not takeaway the power of this Court to interfere by the issue of appropriate writ or writs or orders to set right the wrong that has been committed at a stage when the said Shri Basu had no power, authority, competence and jurisdiction. Transfer is an incident of service and from the order as impeached in this case, it cannot be said that the same was an order of reversion or demotion as and by way of penalty or with stigma. In fact, the order in question was one of transfer simpliciter. The Respondent Shri Basu, as appeared from the pleadings and the submissions was reinstated, if not retrospectively, atleast prospectively from 4th May 1981 and the order of transfer was issued by the said Shri Basu as Executive Director on 7th January 1982. The petitioner had admittedly joined in that post, of course for reasons and circumstances as recorded earlier. This Court, in my view, would not be justified and that too on the facts as available, to go into the question of discriminatory treatment received by the petitioner. But one thing is certain, that when the transfer order was duly passed, this Court, in the facts and circumstances as pleaded, would not be justified and authorised to interfere with the same. But one thing is certain, that when the transfer order was duly passed, this Court, in the facts and circumstances as pleaded, would not be justified and authorised to interfere with the same. It is to be noted further that over the issue of transfer, in terms of the leave as granted by the Court, departmental proceedings were initiated and I and informed that on investigation, the petitioner has been found guilty and his services have been terminated, which order again has become subjudice in another proceedings in this Court and more particularly before G N. Ray J. Such being the position I express no final opinion on the question of transfer or reversion or demotion in whichever terms parties intend to express themselves, as that may have some repercussion over the pending lis between the parties on termination. 31. THE above being the position, the Rule should succeed in part by issuing a writ of Quo Warranto against the Respondent Shri B. K. Basu in respect of Annexure "d" and is disposed of in respect of the other prayers with the observations and in the circumstances as stated hereinbefore. There will be no order as to costs. Stay of operation of the order as prayed for is refused. Writ of Quo Warranto issued.