Umesh Kumar Sinha v. State Of Bihar — 1992 DIGILAW 141 (PAT)

Judgment Radha Mohan Prasad J, J. 1. Initially, the petitioner in this writ application had sought for a direction to the respondents to accept his joining as Managing directing of the Bihar State Pharmaceutical and Chemical Development corporation Limited (hereinafter referred to as the ( orporaticn) and to consider his case for confirmation to the post of Managing Director on the basis of the recommendation made by the Board of Directors of tte Corporation in their 31st meeting held en 11th March, 1987. A Division Bench of this Court, while admitting the writ application on 25-1-1989 ordered that the joining report of the petitioner which bad been forwarded by the Boardd to the State Government should be deemed to have been accepted by the Board on that date. The said order was made subject to the result of this application. Later, a petition for amendment of the writ application was filed challenging the Government Order dated 1st December, 1989 photo copy where of has been annexed as Annexure-IS to the said petition) wherein it was mentioned that on the expiry of five years frcro 8-9-1984 the petitioners service would stand termination under Article 92 read with Article 129 of the articles of Association of the Corporation. This Court by order dated 13-12-1989 allowed the prayer for amendment of the writ application but declined to grant stay of operation of the aforesaid order, as contained in in Annexure-19 to the petition. 2. The case of the petitioner is that in April, 1984, an advertisement was published in the National Newspapers by the Bureau of Public Enterprises, government of Bihar, for recruitment of Managing Director of the Corporation, which is wholly owned by the State Government. From Article 4 (b) of the articles of Association, referred to above, it will be clear that the Corporation is a Government public Company, 100% share of which is owned by the State government. Under the aforesaid advertisement the qualification required for the pest was a degree in Chemical Engineering with minimum ten years experience in the line. According to him, he is a first class degree-holder in chemical Engineeing with 23 years experience in Chemical Industry (Central government Undertaking), namely, Engineers (India) Limited and fulfilled all the criteria and applied for the same. Under the aforesaid advertisement the qualification required for the pest was a degree in Chemical Engineering with minimum ten years experience in the line. According to him, he is a first class degree-holder in chemical Engineeing with 23 years experience in Chemical Industry (Central government Undertaking), namely, Engineers (India) Limited and fulfilled all the criteria and applied for the same. According to the petitioner, the interview was conducted by the High Power Committee in which the petitioner also appeared and finally on his selection was appointed as Managing Director of the Corporation on 4-9-1984 with two years probation clause for confirmation to the post. The Industries Department issued the appointment letter to this effect on 8-9-1984, a photo copy of which has been annexed annexure-1 to the writ petition. The petitioner joined as Managing Director of the Corporation on 12-10-1984. The petitioner completed bis probationary on 11-10-1986 and thereafter on 11-3-1987 the Board of Directo rs of the Corporation in view of his high commendable performance as Managing Director strongly recommended to the State Government for his permanent absorption on the post of Managing Director from the date he completed the probation period as per the terms of his appointment order. A relevant extract copy of the said resolution of the Board of Directors has been annexed as Annexure-3 to the writ petition. 3. It has been stated that in the meantime, the lien of the patitioner with previous employer i. e. Engineers (India) Limited expired on 28-2-1987. Before any decision could be taken on the aforesaid recommendation of the board of Directors, the petitioner was given another assignment as Expert/consultant (Chemicals) to Pariyojana Sangathan, a wing under the administrative control of the State of Bihar, under the Department of Project, planning and Institution Finance by order dated 9-10-1987. a photo copy of which is Annexure-5 to the writ petition. According to him, though the said order was illegal, yet he being a disciplined officer acted on the same and joined his new assignment on 12-10-1987. This appointment was for a period of one year, on expiry of which he returned back to the Corporation and submitted his joining report on 12-10-1988. In the meantime, Mr. According to him, though the said order was illegal, yet he being a disciplined officer acted on the same and joined his new assignment on 12-10-1987. This appointment was for a period of one year, on expiry of which he returned back to the Corporation and submitted his joining report on 12-10-1988. In the meantime, Mr. T. Nand Kumar, the then Director, Industries was appointed with an additional charge of the office of the Managing Director of the Corporation on 9-10-1987 and later, the newly added respondent No.6 was appinted as managing Director of the Corporation while he was also posted as Director, industries. When the joining of the petitioner of his return to the Corporation was not being accepted, he filed the present writ application for the reliefs, as already mentioned above. 4. The petitioner, baving learnt about the appointment of respondent no.6 as Managing Director, filed a petition on 9-3-1989 for adding him as respondent No.6 and, further, to restrain him from functioning in the office. In the meantime, after the Interim order was passed on 25-1-1989 by which the joining report of the petitioner was deemed to have been accepted, the industry Secretary, who was also the Chairman of the Corporation, held the meeting of the Board of the Corporation and designated the petitioner as managing Director II while respondent No.6 as Managing Director I by its resolution dated 30-1-1989. A relevant extract photo copy of the same has been annexed as Annexure-11 to the writ petitioner. The Bench healing the aforementioned petition held that both the petitioner as well as respondent no.6 had equal status and enjoying the same dignity and, that, two will work independently and, accordingly, disposed of the petition. Thereafter the petitioner was sought to be posted as Managing Director of the North Bihar industrial Area Development Authority where again as a disciplined officer he reported for work on 22-4-1989 but on 21-4-1989 the said appointment was withdrawn retrospectively. On 1-12-1989 the order contained in Annexure 19 to the writ petition was passed, against which the petitioner moved this court with a prayer for amendment of the writ petition, which was allowed, as already stated above. 5. On 1-12-1989 the order contained in Annexure 19 to the writ petition was passed, against which the petitioner moved this court with a prayer for amendment of the writ petition, which was allowed, as already stated above. 5. A counter-affidavit has been filed on behalf of respondent Nos.1 and 2 in which, for the first time, a plea was sought to be raised that in course of probation period complaints with regard to many charges of omissions and commissions were received against the petitioner by the State Government which were enquired into and found to be true. Thus, his service was found to be unsatisfactory and as such he was not confirmed on the post of Managing director. Accordingly, his appointment as Managing Director automatically stood terminated in terms stated in his appointment letter, whereafter the State Government, vide letter dated 9-10-1987, appointed Shri T. Nand kumar as Incharge Managing Director of the Corporation and on 11-10-1987 the petitioner pursuant to the order contained in Annexure-5 to the writ petition joined as Expert/consultant (Chemicals) in Pariyojana Sangathan, lalit Bhawan, an another organisation, on a contract for one year which, according to them, was a fresh appointment. 6. The petitioner filed a reply to the said counter-affidavit in which he has denied about the stand of respondent Nos.1 and 2 for his termination and has further stated that even alter the completion of the probation period of two years he continued as Managing Director of the Corporation for about a year. He has further stated that no charge has ever been framed nor any enquiry was held with respect to the same. It has also been stated that he has never been given any notice about the same and the allegations are false and have been denied by the petitioner. In fact, he has referred to the recommendation of the Board of Directors, as contained in Annexure-3 to the writ petition, wherein the Board found his performance to be highly commendable and strongly recommended for his absorption to the State government. 7. Mr. In fact, he has referred to the recommendation of the Board of Directors, as contained in Annexure-3 to the writ petition, wherein the Board found his performance to be highly commendable and strongly recommended for his absorption to the State government. 7. Mr. Thakur Prasad, learned Senior Counsel appearing for the petitioner, submitted that the order, contained in Annexure-19 to the writ petitioner, is arbitrary and based on non est ground inasmuch as neither in the advertisement inviting applications for appointment to the post of Managing director nor in the appointment letter there was any stipulation that the tenure of appointment will be for five years. According to him, the appointment of the petitioner to the post of Managing Director was regular, in support of which ha has referred to the Government Memorandum, as contained in Annexure-15 to the writ petition, in Clause 4 of the said memorandum it was stated as follows :- This memorandum would show that the advertisement, contained in Annexure 20 to the supplementary affidavit, had been issued by the State of Bihar through the Bureau of Public Enterprises and not by the Corporation. Further it will be evident that the appointment of the petitioner had been made to the post of Managing Director of the Corporation oa the basis of the recommendation of the Bureau and after due sanction by the Counsel of ministers A relevant extract true copy of the decision of the Board of directors is contained in Annexure-16. Learned counsel also referred to the very appointment letter contained in Annexure-1 to the writ petition in which no tenure of appointment was fixed, except the two years probationary period and if on completion of the same the petitioners service was found to be satisfactory, he would be confirmed on the post of Managing Director. According to him, the petitioner who had completed the probationary period and his servre was found to be satisfactory and, further, no order with regard to his confirmation or extension of probation period was passed by the State government, it should be presumed that his service was confirmed by allowing him to continue in service after the probationary period. In support of this submission learned counsel has relied on A. I. R.1968 S. C.1210 : 1968 S. L. R.247 (The State of Punjab V/s. Dharam Singh ). In support of this submission learned counsel has relied on A. I. R.1968 S. C.1210 : 1968 S. L. R.247 (The State of Punjab V/s. Dharam Singh ). In this case the Supreme Court was considering the cases of the teachers initially appointed on one year probation against the permanent post under the rules, three years of maximum period of probation was prescribed. No order with regard to their confirmation and extension of their probation period was passed by the government and their services were terminated on expiry of three years treating him as temporary employee. The Supreme Court held that (i) though the appointing authority did not pass formal orders of confirmation in writing, it should be presumed to have passed orders of confirmation by so allowing them to continued on their posts after three years : (ii) after such confirmation, the authority had no power to dispense with their services on the ground that their work or conduct during the period of probation was unsatisfactory and (iii) the impugned order amounted to removal from service by way of punishment and, accordingly. the High Courts decision quashing of the impugned order was upheld by the Supreme Court. On the other hand, Mr. Janardan Prasad Singh, learned counsel appearing for the Corporation submitted that the very appointment of the petitioner which did not prescribe the tenure was illegal being in contravention of Article 129 of the articles of Association which provides five years as maximum tenure for such appointment. 8 I do not find any substance in this submission of the learned counsel for the Corporation for the reason that the Corporation cannot be allowed to take this plea on the face of its own resolution contained in Annexure-3 by which the performance of the petitioner was found to be highly commendable and it strongly recommended to the Government of Bihar for permanent absorption to the post of Managing Director. 9. As regards the scope of Article 129 of the Articles of Association of the Corporation, the restriction over fixing of maximum tenure of five years for appointment of the Managing Director contained in therein was only upon the Company and its Directors and not upon the Governor. 9. As regards the scope of Article 129 of the Articles of Association of the Corporation, the restriction over fixing of maximum tenure of five years for appointment of the Managing Director contained in therein was only upon the Company and its Directors and not upon the Governor. Article 129 of the Articles of Association itself vests power of appointment of Managing and/or whole-time Directors in the Company by the ordinary resolution or the Directors or in the Directors subject to the provisions of Sections 268 and 269 of the Act and subject to any direction that may be given by the governor, from time to time. I am of the view that Article 129 of the articles of the Association has no application to the present case inasmuch as Article 129 read with Article 124 (a) (ii) makes it clear that the decision regarding creation of and appointment to all posts whose maximum salary exceeds Rs.2,000/- shall vest in the Governor. Here is a case in which the appointment of the petitioner was made in the scale of Rs 3000-3500 and thus, I am of the view that the power to appoint the petitioner as Managing director in the aforesaid scale was exercised by the Governor through the council of Ministers for whom no limitation regarding the tenure under any of the provisions contained in the Articles of Association has been pointed out by the learned Counsel for the Corporation. 10. Mr. Prasad, learned counsel appearing for the petitioner, has rightly submitted that the plea in the counter-affidavit that the appointment of the petitioner to the post of Managing Director automatically stood terminated in terms stated in his appointment letter is wholly untenable and, further, the submission that the service of the petitioner was never found to be satisfactory and that there was complaint against him in course of the probationary period is also not tenable inasmuch as the impugned order (Annexure-49) is not based on such grounds. 11. It is well-setteled that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. 11. It is well-setteled that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out This is supported by the decision of the Supreme Court in Mohinder Singh Gill and another. The Chief Election Commissioner, New delhi and others reported in AIR 1978 SC 851 . The ground mentioned in annexure19 is entirely different. Petitioners service is sought to be terminated by the said order on the ground that under Article 129 of the Articles of association the tenure of appointment of the petitioner as Managing Director of the Corporation was for five years and no renewal of the same was made and, therefore, his service was terminated. I have already held that Article 29 of the Articles of Association has no application to the facts of the present case and thus, the reasons for termination is absolutely non est which is sufficient to vitiate the order contained in Annexure-19. 12. Mr. Government Advocate appearing for respondent Nos.1 and 2. however, submitted that by the fresh appointment of the petitioner as Expert/ consultant in the Department of Project, Planning, Government of Bihar under Annexure-5 to the writ petition, his earlier appointment as Managing director in the Corporation stood ceased to which the petitioner also never objected and rather gladly accepted the same. I cannot appreciate this submission of the learned Government Advocate. In fact, the petitioner had raised objection against the said appointment about which he has stated in paragraph 24 of the writ petition. He filed a number of representations before the respondents addressed to the Chief Minister. This fact has not been denied in the counter-affidavit. Moreover, I am of the view that as a disciplined officer he followed the direction of his employer and acted upon it though it might howsoever has been unfair and unreasonable. Tbis cannot be used as a weapon against the petitioner who was not equal in bargaining power inasmuch as he was weak in his position to oppose the same in order to continue with his livelihood. Tbis cannot be used as a weapon against the petitioner who was not equal in bargaining power inasmuch as he was weak in his position to oppose the same in order to continue with his livelihood. In fact, he had no choice but to accept the same and go there as a disciplined officer. In any case, the aforementioned submission of the learned Government Advocate is fit to be rejected also on the ground that the very impugned order, as contained in Annexure-19 to the writ petition, would show that he was continued as Managing Director of the Corporation inasmuch as in the impugned order the period during which he was posted as Expert/consultant, Pariyojana Sangathan, has also been counted for the purpose to show that he completed the alleged maximum tenure of five years as stipulated under Article 129 of the Articles of Association. 13. Be that as it may, if the grounds for termination, as mentioned in paragraph 5 of the counter affidavit, are because of complaints against the petitioner were serious charges of omissions and commissions by him, then also the impugned order of termination must be held to be bad 0s the petitioner was undisputedly not given any show cause or opportunity to defend himself against the same. The Supreme Court in the decision reported in AIR 1974 SC 423 , State of Uttar Pradesh and others V/s. Sugar Singh, while noticing the submission of the Standing Counsel that the order of reversion was a result of the adverse entry made in the appellants confidential character roll, held the order of reversion to be an order of punishment and struck down the same for non-compliance with the requirement of Article 311 of the Constitution. In the present case also, in view of the stand of respondent Nos.1 and 2 as contained in paragraph 5 of the counter-affidavit that the charges against the petitioner having been found to be true, his service stood terminated, in my opinion, this is sufficient to hold that the order contained in Annexure-19 is in complete violation of thj principles of natural justice as it would appear from the facts of this case that the respondents held an enquiry behind the back of the petitioner and also found him guilty without even giving him an opportunity to defend. 14. 14. Besides this, I am unable to appreciate the aforementioned plea which has been taken for the first time in the counter-affidavit against the petitioner. On the one band, it has been alleged that serious charges of omissions and commissions against the petitioner were found to he true whereas on the other hand, the petitioner was offered appointment as Expert/consultant (Chemicals) to Pariyojana Sangathan by the notification contained in Annexure-5 to the-writ petition, which is a wing under the administrative control of the respondent State of Bihar under the Department of Project, planning and Institution Finance. I, therefore, hold that the order of termination, as contained in Anaexure-19 to the writ petition, is based on erroneous grounds and the same is fit to be quashid. 15. In the result, the writ application is allowed and Annexure 19 to the writ petition is hereby quashed. However, in the facts and circumstances, there will be no order as to costs. Writ Petition allowed.