PACHU v. CHIEF ENGINEER — 1987 DIGILAW 161 (KER)

Judgment :- 1. This writ petition throws a flood of light on some shady areas in the working of the Electricity Department and the Electricity Board of this State. 2. The facts speak for themselves. 3. The writ petitioner owned a building, a storied one, with a plinth area of 2000 square feet, close to the Bus stand, 'situated in the heart of the Tellicherry Town'. Years back, it had been rented out to West Coast Electrical Works. That concern was taken over by the Board. The Board is the present tenant and the rent is only Rs.250/ per month. This understandably caused anguish for the landlady, a widow. She made a request to the Board for surrender of the building. It was in the year 1980. There was a stream of representations thereafter, which got dried up on the sandy stretch of time. The petitioner says: "1980 onwards she was making personal contacts and was also filing representations before the respondents." (The respondents are the Chief Engineer, Trivandrum, the Executive Engineer, Tellicherry, and the Superintending Engineer, Cannanore.) The Board had a sphinx-like silence. (That appears to be the pattern of its functioning, judged by the various matters brought to the notice of this Court.) 4. A "desperate situation may prompt a man (or a woman) to digress from the right path. Such appears to have been the present case as regards the petitioner. On 28-11-1983 the petitioner filed a representation, Ext. P1 before the Minister for Electricity. Her prayer therein was for a surrender of the building occupied by the Board. The Minister for Electricity entertained it. Not only that. He passed on the very representation, the following order in his own hand: "E.E. Tellicherry. Try to vacate the building as early as possible after shifting this office to a new building. 30-11-83." The petitioner has produced a photostat copy of the representation, wherein the order of the Minister is his own hand appears to have been issued. 5. The order of the Minister, however, did not give any relief to the petitioner. The omission of the Board in surrendering the building despite the passage of nearly three years time, was again brought to the notice of the Minister by the petitioner by her representation, Ext. P2 dated 7-7-1986. There was no response to that representation. 6. 5. The order of the Minister, however, did not give any relief to the petitioner. The omission of the Board in surrendering the building despite the passage of nearly three years time, was again brought to the notice of the Minister by the petitioner by her representation, Ext. P2 dated 7-7-1986. There was no response to that representation. 6. The petitioner then apparently felt that the road to relief runs through the party office. In her own words this is what happened: "On 11-7-1986 the Secretary of Kerala Congress, District Committee filed a representation before the Minister for Electricity in which it is pointed out that in the possession of the Electricity Board" . (emphasis supplied) A photostat copy of that petition has been produced marked Ext.. P3. The petition was addressed to the Hon'ble Minister for Electricity, Shri. R. Balakrishna Pillai, by Jose Chemberi, "Cannanore District Secretary." The petition is in Malayalam. A rough translation would, be as follows: "In pursuance of a representation submitted by the land owner, Pachumma, a widow, for a surrender of the Section Office situate at Nadapuram, Tellicherry, you had issued orders to the E. E. Tellicherry, to surrender the building by about the end of 1984. But the building but not been surrendered so far. The concerned authorities say that the reason for non-implementation of the above order is the difficulty in obtaining other buildings. But, a big storied building which had been taken on a rent of Rs. 1.000/ situate in the National Highway about 1 k.m. away from the Tellicherry Town, which had been used for the Division Stores is now lying idle. If the existing divisional office is shifted to that building, the major section and the billing unit. Narangapuram could be shifted to the Division office at the heart of the Tellicherry Town. This would be advantageous to the public and profitable to the Board. Necessary orders are requested for." (emphasis supplied) 7. The Minister, as per Ext. P3 passed an order on that petition in his own handwriting. The order was to shift the office. It was passed on 12-7-1986. 8. The Chief Engineer minuted on the self same representation on 13-7-1986: "Issue instructions accordingly." In similar terms were the minutes of the Deputy Chief Engineer on 16-7-1986: "Issue direction." No formal order of the Government or of the Board has been produced by the petitioner. The order was to shift the office. It was passed on 12-7-1986. 8. The Chief Engineer minuted on the self same representation on 13-7-1986: "Issue instructions accordingly." In similar terms were the minutes of the Deputy Chief Engineer on 16-7-1986: "Issue direction." No formal order of the Government or of the Board has been produced by the petitioner. There is no reference to such orders even in the subsequent official communications issued by the officers of the Board. 9. This was followed by a formal communication, Ext.P4, from the Chief Engineer, dated 16-7-1986 to the Superintending Engineer, Electrical Circle, Cannanore. The communication referred to: "Letter No. dated 1-7-1986 of Sri. Jose Chemperi addressed to the Hon'ble Minister for Electricity." The letter reads as follows: "The Electrical Division Office, Tellicherry may be shifted to the former Electrical Division Store building. The Electrical Section office and B.S. Unit, Narangappuram may be shifted to the present Division office building. A copy of the letter dated 11-7-1986 is also enclosed." 10. The petitioner appears to have had hopes in the matter, in the wake of the orders in her favour. She waited; and for a reasonably long period; her hopes were dashed. 11. According to the petitioner, "the non-compliance with the orders, Ext.P1, P3 and P4 passed by the 1st respondent and the Honourable Minister for Electricity causes great mental agony and financial loss to the petitioner." A writ of mandamus was sought for compelling compliance with the above orders. 12. In the course of the arguments addressed in the case, the competence of the Minister for Electricity to issue the orders, was raised. The competence of a District Secretary of a political party to act as an attorney as it were on behalf of a citizen was also raised as an issue meriting consideration. 13. Apparently, realising the legal and constitutional position, counsel then sought to withdraw the original petition. The request can be readily granted. The writ petition will stand dismissed in that view of the matter. 14. Notwithstanding the withdrawal of the writ petition, it appears to be necessary and desirable to comment upon some unhealthy trends and unsatisfactory features disclosed in the conduct of the authorities involved in the transaction. Courts have not hesitated to expose such undesirable practices, even when the petitioners were found to be disentitled to reliefs in the writ jurisdiction. 14. Notwithstanding the withdrawal of the writ petition, it appears to be necessary and desirable to comment upon some unhealthy trends and unsatisfactory features disclosed in the conduct of the authorities involved in the transaction. Courts have not hesitated to expose such undesirable practices, even when the petitioners were found to be disentitled to reliefs in the writ jurisdiction. It was Raman Nair, J. as he then was, who made forceful observations, about the casual and culpable manner in which the Commissioner for Hindu Religious Endowments had dealt with Pulpally Devaswom and its forest lands. (See Madhavan Nair v. Commissioner For H.R. & C. E., 1963 KLT 480) (The judgment was pronounced on 19-2-1963. The officer was placed under suspension on 8-3-1963. The rest is history. The decisions of the High Court in Govinda Menon v. State of Kerala, 1963 KLT 1162, Govinda Menon v. Union of India, 1966 KLT 519, and of the Supreme Court in Govinda Menon v. Union of India, 1967 KLJ 459, would demonstrate what all could be unearthed as a result of efficient and prompt action of Government interested in effective follow up action in a meaningful and systematic way.) Students of law would also know the internationally sensational case, which happened a century back, where a court declined permission to withdraw a claim, when the plea for withdrawal came at a stage when the claimant was desperately convinced that his criminal acts and concoctions of evidence, had been really exposed. We all remember the case by its name 'The Titchborne case. 15. The way in which the Minister for Electricity has been unauthorisedly interfering with the routine functions of the Electricity Board, bad been commented upon in many decisions and orders, including the reported judgments. Except in matters relating to policy matters, the Government does not have any power to issue directions to the Board. This legal position is settled. (See A. M. Mani v. KSEB 1967 KLT 885) It is unfortunate that this clear and plain statutory position was ignored, alike by the Minister and by those who happen to be running the Board, in recent times. This Court bad occasion to point out one such instance where the Minister had passed orders in relation to another routine matter like the duty payable by the organisers of a Foot Ball tournament. This Court bad occasion to point out one such instance where the Minister had passed orders in relation to another routine matter like the duty payable by the organisers of a Foot Ball tournament. (See Organisation Committee v. KSEB,1985 KLT SN 13, Case No. 20) As to how the Minister had unjustifiably imposed himself in the working of the Board has been again commented upon by Bhat J. in CMP No. 12271 of 1986 in OP No. 3856 of 1986. Para.15 is particularly relevant. It reads: "The Minister for Electricity could at best represent the State Government and nothing more. He could not have taken any decision or issued any direction which the State Government could not have taken or issued. The Board is constituted by notification issued by the State Government under S. S of the Electricity Supply Act, 1948. The Board is an autonomous statutory Board subject only to control as envisaged by the statute. Its functions and duties are enumerated in the Act. The powers of the State Government vis-a-vis Board are also defined in the Act. These powers are found only in Chapter VI of the Act dealing with the finance, accounts and audit; particularly S.59,61 and 66A and 69: S.78 confers on the State Governments power to make Rules to give effect to the provisions of the Act. The only other power that the State Government could exercise to relation to the Board is power to issue directions under S.78A of the Act. S.78 A states that "in the discharge of its functions. Board shall be guided by such directions on questions of policy, as may be given to it by the State Government." State Government cannot interfere in the day to day affairs of the Board or issue any direction under S.78 A other than on questions of policy and cannot do any act other than what is permitted under the other provisions referred to above. The State Government cannot treat the Board as a department of the Government. To do say would totally defeat the very purpose and scheme of the Act. Prima facie it does not appear that any matter of policy is involved in the decision reflected in Ext.P3. The State Government cannot treat the Board as a department of the Government. To do say would totally defeat the very purpose and scheme of the Act. Prima facie it does not appear that any matter of policy is involved in the decision reflected in Ext.P3. Therefore the State Government could not have issued any directive in this regard; that being so, the Minister for Electricity, particularly without any processing in the concerned department and in the absence of any decision of the State Government, could not have issued any directive to the Board or the Officers of the Board." When the Minister for Irrigation issued such an illegal order to the Water Authority, this Court condemned that act too. (See K. P. Pankajakshan v. State of Kerala, 1986 KLT 901). 16. A perusal of Ext.P1 and P3 would show that the Minister had not processed the applications even according to the rules applicable to Governmental functioning. There is no indication about the representation and the order of the Minister having been even seen or perused by the Secretary, Power Department. Nor is there any indication about the Minister having forwarded the representation to the Board and/or obtained the comments or remarks of the Board on the matter. Impropriety and unconstitutionality are writ large on those orders. It is unnecessary to comment more than that on that aspect. Whether it is not indicative of a despotic dispensation, is a matter for evaluation by persons concerned with a clean and constitutional administration. It is better viewed more as an institutional malaise than an individual aberration. It is very difficult to resist the enticement of power. "Great men in public life love power. That is what stamps them. They fight to get it and they use it ruthlessly when it is in their hands." (See A. J. P. Taylor; Europe, Grandeur and Decline, page 61). But under our constitutional set up, power cannot be used, ruthlessly or benevolently, without express authority and sanction of the legal and constitutional provisions. 17. A further question and perhaps a more serious one is the espousal of a cause by the functionary of a political party. Ext.P3 petition did not raise a matter of general or public importance. The grievance is essentially a personal one. 17. A further question and perhaps a more serious one is the espousal of a cause by the functionary of a political party. Ext.P3 petition did not raise a matter of general or public importance. The grievance is essentially a personal one. An authorised agent of the person, an Advocate, or a power of attorney, for example, can act on behalf of the party affected, and take all steps, legal and otherwise, necessary for the vindication of grievances. Whether a party functionary, particularly an official of a party whose Minister is in charge of the portfolio connected with the grievance, should be permitted to knock at the Minister's mansion and get instantaneous orders, is a matter which raises graver issues. Such a pattern of functioning, had been condemned, even in the early years after India attained freedom. The Prime Minister of independent India used to write to Chief Ministers of the various States, periodically. He had taken care to indicate the healthy trends, and proper conduct to be observed in the democratic functioning in the country. The Prime Minister wrote: "Whatever" policies we may pursue, it is of the highest importance that we should fight the evils that are cording our public life. How can we fight them, if we ourselves are not above suspicion or if we harbour and shelter those who are suspected of indulging in those evil deeds? There can be no compromise with evil or else we will be swamped by that evil ourselves." And he continued: "There is one matter which is bad In itself and which also leads to evil consequences. That is the interference of MLAs in the administration. Members of the Assembly have no business to interfere in this way with the local administration If MLAs interfere in appointments, in transfers, in the grant of licences, etc. then all responsibility vanishes and nepotism and corruption creep in." (See Jawaharlal Nehru Letters to Chief Ministers 1947-1964, Pages 419-20). 18. If nepotism and corruption could creep in by interference in routine administration even when made by the elected representatives of the people, the calamitous proportions which they may assume if party workers are permitted to have their sway and way in influencing routine administration, can be easily imagined. 18. If nepotism and corruption could creep in by interference in routine administration even when made by the elected representatives of the people, the calamitous proportions which they may assume if party workers are permitted to have their sway and way in influencing routine administration, can be easily imagined. A prominent newspaper which made a survey of three decades of administrative experience of the new born Kerala State cautioned against such unhealthy trends noticed on the part of the political workers. The caution and counsel have application irrespective of the party or parties that may be in power for the time being. Public functionaries should have the preparedness to understand and appreciate such messages of enduring values. 19. As regards the members, officers, and other employees of the Board, the implementation of such orders without authority of law will have a larger effect and impact. Under S.82 of the Electricity (Supply) Act, 1948, do suit, prosecution or other legal proceeding shall lie against any member or officer or other employee of the Board for anything which is in good faith done or intended to be done under the Act. Mark that the protection is available only when there is good faith. A thing is done in good faith when it is done with due care and caution (See S.2(14) of the Interpretation of General Clauses Act.) The members, officers and employees of the Board will, therefore, take due care and caution to ensure that the orders they are asked to carry out are, at least on the face of them issued with authority and in conformity with law. An order of the Government under the Constitution has to be expressed in the name of the Governor as expressly provided under Art.166 of the Constitution. However, when there is not even a formal order of the Government which could have the protective insulation of S.78 A, the matter may be entirely different. An order passed by a Minister on a paper slip, will not 'have even the appearance, let alone the efficacy of a formal order of the Government. This aspect has necessarily to receive particular attention of the functionaries of the Board; They will have to remind themselves that the statutory protection for actions done in good faith may not be available, if they overlook these salient features. This aspect has necessarily to receive particular attention of the functionaries of the Board; They will have to remind themselves that the statutory protection for actions done in good faith may not be available, if they overlook these salient features. The Government may do well to apprise itself and the Electricity Board, about constitutional and legal position in relation to the discharge of their duties. It would be helpful, in the larger interests of a properly ordered administration, both for the Government and the Board, to evolve useful guidelines in this matter. A copy of the judgment will be forwarded to the Chief Secretary to Government for considering, if so deemed necessary appropriate measures in this regard. A copy will also be sent to the Chairman of the Electricity Board, who will take such steps as are necessary to bring the relevant aspects to the notice of its members, officers and employees.