Justice K. K. Narendran v. State of Kerala — 1994 DIGILAW 429 (KER)

Judgment :- Kamat, J. The petitioner, on March 17,1990, was sworn in as a member of the Kerala Public Men's Corruption (Investigation and Inquiries) Commission by the Governor of the State of Kerala. The Commission gets constituted under the Kerala Public Men's Corruption (Investigations and Inquiries) Act, 1987 (hereinafter referred to as the said 'Commission' and 'the Act'). 2. Since at the hearing, counsel restricted his submission to the legal rights following his appointment on March 17,1990, on the basis of the legal position only, concentrating only on prayers (ii) and (iv) of the petition, shorn off all details and background stated in the petition, consideration and consequent decision would centre round the legal position, in the circumstances. 3. It is urged that the Act confers certain rights and privileges, at the same time, attaches certain disabilities to a member of the Commission appointed under the Act. Petitioner accepted the appointment as a member of the Commission in terms of the provisions contained in the Act. It is submitted that S.6 of the Act contains a clear provision that the allowances payable and other conditions of service of a member of the Commission shall not be varied to his disadvantage after his appointment. The conditions of service contained in S.6(1) of the Act prescribe that a member appointed shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of 70 years, whichever is earlier, it is urged that the petitioner is entitled to continue as a member till 22-8-1993 when he attains the age of 70 years, and he can be removed only under procedure laid down under S.7 of the said Act, for proved misbehaviour and/or incapacity. It is urged that the appointment conferred certain right and privileges, and also as well, attached certain disabilities. Therefore, it is urged, any interference with the appointment otherwise than under the provisions of the Act under which the petitioner was appointed would amount arbitrary exercise of power which is violative of Articles 14 & 16(1) of the Constitution. 4. It is urged that the appointment conferred certain right and privileges, and also as well, attached certain disabilities. Therefore, it is urged, any interference with the appointment otherwise than under the provisions of the Act under which the petitioner was appointed would amount arbitrary exercise of power which is violative of Articles 14 & 16(1) of the Constitution. 4. It is further urged that under S.6(1) of the said Act, the position which is still in-tact, the petition could legally continue for rights, advantages and privileges till August 22,1993, to have the like status and entitlement to the same salary, allowances and pension and shall be subjected to the same condition of service as a judge of the High Court and the said conditions of service cannot be varied to his disadvantage after his appointment as a member, subsequently anytime thereafter. The only exception to the above position is the removal for proved misbehaviour or incapacity. 5. In support of the above submissions, reliance is also placed on R.9 of the Rules 1990 under the said Act with regard to the entitlement on the basis of the appointment. 6. The Original Petition was filed on the basis of challenge to Ordinance No.8 of 1991. However, as the Bill became the Act 4 of 1992, on amendment by leave, the amended petition challenges the provisions of the Amending Act 4 of 1992 insofar as the said provisions affect the above urged legal rights and privileges of the petitioner with regard to the restricted submissions, indicated above, made before us. 7. It would be necessary to reproduce the relevant statutory provisions of the said Act and the Rules as well as of the Amending Act 4 of 1992 hereafter: Section: 6 "Term of office and other conditions of service of members - (1) A person appointed as member shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of seventy years whichever is earlier: Provided that: - a) a member may, by writing under his hand addressed to the Governor, resign his office; b) a member may be removed from office in the manner provided in S.7. 2) On ceasing to hold office, a member shall be ineligible for reappointment as member or for further employment to any office of profit under the Government of Kerala or in any Authority, Corporation, Company, Society or University referred to in clause 0) of S.2. Explanation:-The re-assumption of office, by a member as judge of the Supreme Court or High Court, as the case may be, on his ceasing to hold office as such member shall not be deemed to be further employment to any office of profit referred to in this sub-section. 3) A member shall have the like status, shall be entitled to the same salary, allowances and pension and shall be subject to the same conditions of service, as a judge of the High Court of Kerala: Provided mat the status, salary, allowances, pension and other conditions of service of a judge of the Supreme Court or a retired judge of the Supreme Court appointed as member shall be the same as a judge of the Supreme Court: Provided further that, if a member at the time of his appointment is in receipt of pension in respect of any previous service, as a judge under the Government of India or under the Government of a State his salary in respect of service as member shall be reduced - a) by the amount of that pension, except pension received as freedom fighter; b) if he has before such appointment, received in lieu of a portion of the pension due to him in respect of such previous service the commuted value thereof, by the amount of that portion of the pension; and c) if he has, before such appointment, received a retirement gratuity in respect of such previous service, by the pension equivalent of that gratuity; Provided also dial the allowances payable to, and other conditions of service of, a member shall not be varied to his disadvantage after his appointment. 4) II Section 7 "Removal of member - (1) A member shall not be removed from his office except by an order of the Governor passed after an address by the State Legislative Assembly supported by a majority of the total membership of the House and by a majority of not less than two-thirds of the members of the Legislative Assembly present and voting has been presented to the Governor in the same session for such removal on the ground of proved misbehaviour or incapacity. (2) The procedure of the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of the member under sub-section (1) shall be as provided in the judges (Inquiry) Act, 1968 (central Act 51 of 1968), in relation to the removal of a judge and accordingly, the provisions of that Act shall, mutatis mutandis, apply in relation to the removal of a member as they apply in relation to the removal of a judge." Rule 9 'Right of a member for salary and allowances and other benefits: -A member appointed on his assuming charge becomes entitled to the salary and allowances and other benefits conferred by the Act and these rules including pensionary benefits for the whole of the term to which he is entitled to continue as a member as per S.6 of the Act. In case a member is not able to complete his full term of office as per the terms of his appointment otherwise than by resignation or by removal under S.7 of the Act or by his death, he shall be entitled to get the salary, allowances and other benefits for his full term of office had be continued as member but for the termination of appointment for any reason whatsoever". S.10 of the Amending Act: "Dissolution of the existing Commission:-(1) Notwithstanding anything contained in the principal Act, on and from the date of commencement of this Act, the existing Commission constituted under the provisions of the principal Act, shall by virtue of this Act stand dissolved and on such dissolution the Chairman and the other members of the Commission shall be deemed to have vacated their offices as such. 2) A Commission shall be constituted in accordance with the provisions of the principal Act as amended by this Act within a period of six months from the date of commencement of this Act. 2) A Commission shall be constituted in accordance with the provisions of the principal Act as amended by this Act within a period of six months from the date of commencement of this Act. 3) During the interval between the dissolution of the Commission and the constitution of the Commission under sub-section (2) the Secretary and such other officers and employees of the Commission referred to in S.8 of the principal Act shall be subject to the exclusive administrative control and direction of the Secretary to Government, Home Department or such other officer as the Government may by notification in the Gazette appoint in this behalf. 4) The members of the Commission who cease to hold office by virtue of this Act shall be entitled to pension and other retirement benefits based on the period they had been members of the Commission. 5) All investigations, inquiries or other proceedings pending before the Commission on the date of commencement of this Act and which have not been disposed of shall stand transferred to, and be continued by, the Commission constituted under the principal Act as amended by this Act as if they were commenced before it". 8. Considering the above statutory provisions, it would be clear that the appointment of the petitioner on March 17,1990, clothes him with the legal rights that are conferred on him by S.6 of the said Act. It gives him a fixity of tenure, in these circumstances, till he attains the age of 70 years - August 22,1993. Along with this fixity of tenure, S.6(2) makes him ineligible for the positions stated therein. At the same time by reason of the said appointment, S.6(3) confers status entitling him to the same salary, allowances and pension and conditions of service as a judge of the High Court of Kerala. The provisions of S.7 also provide the occasions and the manner in which a member can be removed. There is no doubt that the petitioner has not been removed in accordance with the above provision of law. The status that is made available to the petitioner by the above provisions of law which also remains intact inspite of the amending Act 4 of 1992, has come to an end by virtue of S.10 of the amending Act4 of 1992. The status that is made available to the petitioner by the above provisions of law which also remains intact inspite of the amending Act 4 of 1992, has come to an end by virtue of S.10 of the amending Act4 of 1992. These provisions of S.10 of the amending Act No. 4 of 1992, there is no doubt, are directly at tangent with the retained provisions of Ss.6 and 7 of the Act. It need not be stated specifically that Rule 9, which is also still on the statute book further guarantees entitlement to the salary and allowances and other benefits under the Act The question is as to whether the change thus brought about by the amending Act 4 of 1992 would be justifiable in law as would change the nature of the status conferred on the petitioner on his appointment on March 17,1990. 9. In other words the question is as to what would be the position of the rights and liabilities that are declared as anterior to or before the amending Act with regard to the petitioner as such. The provisions of Ss.6 and 7 create rights in their own, in. view of the fact that the provisions appoint the petitioner with a fixed tenure on permanent basis as a member of the commission of a statutory body. Therefore the appointment has to come to an end only by the procedure established by law. The procedure that is established by law is well set in S.7 of the Act. The provisions of the Act, on the date of the appointment, ensures a security of tenure ensuring to the-benefit of the petitioner. The manner in which the appointment of the petitioner has come to an end is against the principles of a right to security of tenure which is essential to inculcate the sense of belonging to the service or organisation. It is a valuable right which is to be duly put an end as per the valid law. 10. It is well established that this motion of security of employment is guarded by the notions affording definite and known methods of removal. Anyone who is legally appointed, receiving legal status as well as the binding nature of the constraints along with it gets a legal right with regard to his exit only by the procedure established by law. 10. It is well established that this motion of security of employment is guarded by the notions affording definite and known methods of removal. Anyone who is legally appointed, receiving legal status as well as the binding nature of the constraints along with it gets a legal right with regard to his exit only by the procedure established by law. It is obvious that the petitioner had to see the end of his appointment as result of dissolution of the Commission itself by the amending Act in question. 11. The above provisions of law as governing the position of the petitioner are crystal clear to the effect that his appointment as a member of the Commission was of a permanent character with a fixed tenure and a public employment entitling him to continue in law till the attainment of 70 years - till August 22,1993, giving him status, salary, allowances and pension as those of a judge of the High Court of Kerala. These rights and privileges could not be varied to his disadvantage afterwards. It is obvious that under the guise of dissolution of the said Commission, under S.10 of the Amending Act 4 of 1992, the summary removal of the petitioner as a member of the Commission, is not justifiable in view of the aspect that it is firstly not by the procedure established by law and secondly, it results into disruption of vested rights and privileges on his appointment retrospectively by necessary implication, which is not also legislatively permissible. 12. A permanent appointment with a fixed tenure or incumbent gets a legal right or a lien on the post till its stated tenure and termination or its end in any manner requires to be only in accordance with the known and set procedure of law. The Court has, if necessary to lift the veil to view the reality or the substance of the situation. In this situation, it is the effect of the law and its consequence upon the rights already vested that attract the jurisdiction of the Writ Court to view the situation as a consequence of his removal. The right to Public Employment is a constitutional right under Art.16(1) of the Constitution and infringement becomes violative of Arts.14,19(1)(g) and 21 of the Constitution. 13. The right to Public Employment is a constitutional right under Art.16(1) of the Constitution and infringement becomes violative of Arts.14,19(1)(g) and 21 of the Constitution. 13. From precedent to precedent of the Supreme Court, the horizons of the rights of the incumbents of the public posts have been broadened and as a consequence security of tenure and ensured protection against arbitrariness and discrimination in discharge or termination is also available as protected. 14. The factual situation here is that on the dissolution of the Commission by the Amending Act 4 of 1992, the petitioner's right to continue as a member has abruptly ended. Even then, a justifiable complaint would lie for consideration that other rights like salary and perks would continue to have cloak of original preservation due to protection and guarantee in view of the unquestionable position of law, as discussed above, on the date of appointment - on March 17,1990. In support of the above positions, with justification, the learned counsel placed reliance on two decisions of the Supreme Court A.I.R 1991 SC 101 - Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1992 Suppl. (2) SCC 351 - State of Himachal Pradesh v. Kailash Mahajan and others. The principles deduced from these decisions in the above paragraphs aptly govern the consequential situation that although the appointment of the petitioner came to an abrupt and unjustifiable end by the dissolution of the Commission, all other rights would be in tact for enforcement under the circumstances. 15. The learned Additional Advocate General urged relying on S.10(4) of the Amending Act 4 of 1992 urged that the petitioner can claim thereunder only upto the date of the ordinance-December 11,1991. It was contended that the Court has its own limits of restraint and power of not going behind the enactment. It must be made clear that we are aware of our limits and it is only because of this awareness that although the factual matrix is laid in the averments of the petition, we have not even by a whisper referred to it, lest a lurking cast would occur that we attempted to lift up the veil to visualise and see the legally prohibited arena for us. This is the reason why the decisions cited on behalf of the State by the learned counsel need to be mentioned. This is the reason why the decisions cited on behalf of the State by the learned counsel need to be mentioned. Reliance is placed on the Full Bench decision of this Court, 1967 KLT 853 (FB) - M. Srinivasan v. State of Kerala, regarding the validity of amendment altering the age of retirement. Reliance is also placed on another decision of this court, 1970 KLT 1008 M. Ramanatha Filial v. State of Kerala, relating to the abolition of post and consequent termination having no nexus with Art.311(2) of the Constitution. Reliance was also placed on the decision of the Supreme Court A.I.R 1984 SC 161 - State of Gujarat v. Ramanlal Keshav Lai Soni and others, in support of the contention regarding legislative competence for retrospective legislation. On going through the said decision it would be clear that it is held that since the laws are made under a written constitution and have to conform with the do's and dont's of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. We have already held, as above, that the enactment of the Amending Act 4 of 1992 cannot affect the vested legal rights and privileges conferred on the petitioner on his appointment on March 17,1990 and they would be available to him upto the attainment of his 70 years - August 22,1993, although his appointment has come to an end abruptly on December, 11, 1991, by virtue of the Ordinance. 16. The result of the above discussion leads to the conclusion that the petitioner is entitled to reliefs in terms of prayers (ii) and (iv) of the petition. During the pendency of the petition, a statement showing details of amounts is filed on 4-10-94. We have not considered this aspect as we have no doubt that the respondents would consider the consequential aspects within a reasonable time in terms of the grant of the petition as per prayers (ii) and (iv) thereof. We accordingly allow the petition, as above, in terms of prayers (ii) and (iv). There shall be no order as to costs. Ordered accordingly.