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Madhya Pradesh High Court · body

2000 DIGILAW 745 (MP)

Jagdish And Etc v. M. P. And Ors.

2000-08-01

C.K.PRASAD

body2000
ORDER C.K. Prasad, J. 1. In these writ petitions filed under Arts. 226 and 227 of the Constitution of India, prayer made by each of the petitioners is to quash the orders of the State Government whereby prayer made by them for their release on licence under Section 6(6) of the M.P. Prisoner's Release on Probation Rules 1964, have been rejected. 2. Facts lie in a very narrow compass. Petitioners are convicts and while in incarceration they filed applications for their release on licence under Rule 6 of the M.P. Prisoner's Release on Probation Rules, 1964 (hereinafter referred to as the 'Rules'). Their cases were considered by the State Probation Board consisting of only two members and on the recommendation of the Board, the State Government declined to release the petitioners on licence. It is the assertion of the petitioners that the State Probation Board which considered the petitioners' case consisted of only two members and in the meeting of the Board held on 31-3-2000, non-official member did not participate. This assertion of the petitioners has not been denied by the respondents. Therefore, one has to proceed on the assumption that the cases of petitioners were considered by the State Probation Board, in the absence of a non-official member. 3. Mr. D.D. Bhargava appears on behalf of the petitioners. Respondents are represented by Shri Vivekanand Awasthy, Govt. Advocate, Mr. Bhargava, counsel for the petitioners contends that absence of a member in the State Probation Board shall vitiate its opinion and consequently decision taken by the State Government, on consideration of the recommendation of the Board shall ipso facto become illegal. Mr. Awasthy, Govt. Advocate, however, submits that notwithstanding the absence of a member in State Probation Board, same shall not vitiate its recommendation and as such, decision of the State Government, not to release the petitioners on licence, cannot be struck down, on this ground. 4. In order to appreciate the rival submission it is apt to reproduce Rule 6(5) and (6) of the Rules which reads as follows :-- 6. Procedure.-- (1) to (4) xxxx xx 5. 4. In order to appreciate the rival submission it is apt to reproduce Rule 6(5) and (6) of the Rules which reads as follows :-- 6. Procedure.-- (1) to (4) xxxx xx 5. The applications received from the Districts by the Inspector General of Prisons shall be considered by a Board consisting of the Home Secretary to the Government of Madhya Pradesh, in the Home Department or any other Officer empowered in this behalf by the Government, the Inspector-General of Prisons, Madhya Pradesh or the Deputy Inspector General of Prisons, as the case may be, and a non-official member to be appointed by the Government. Meeting of the Board shall be held ordinarily once every month to make necessary recommendations. The Secretary to the Government in the Home Department or any other officer empowered in this behalf, by the Government shall be the Chairman of the Board. A non-official member shall unless the State Government terminates his appointment earlier hold office for a term of three years. 6. The Government shall, on the receipt of recommendation of the Board pass such orders as it may deem proper. A plain reading of Rule 6(5) of the Rules makes it abundantly clear that the application for release on licence is required to be considered by the Board consisting of the Home Secretary to the Government of M.P., in the Home Department or any other officer empowered in this behalf by the Government, the Inspector General of Prisons Madhya Pradesh, or the Deputy Inspector General of Prisons, as the case may be and non-official member to be appointed by the Government. Here, in the present case, application for release on licence was considered by the Board in the absence of a non-official member. It is well settled that when a statute requires an act to be done in a particular manner, it has to be done in that manner and for that, no other mode is permissible. State has not provided any other mode and has not contemplated the decision by the Board in the absence of any member. It has to be borne in mind that constitution of the Board is by a statute and it is not administrative in nature. That being the position, recommendation of the Board is vitiated in the eye of law. State has not provided any other mode and has not contemplated the decision by the Board in the absence of any member. It has to be borne in mind that constitution of the Board is by a statute and it is not administrative in nature. That being the position, recommendation of the Board is vitiated in the eye of law. Reference in this connecl ion can be made to a decision of the Constitution Bench of the Supreme Court in case of United Commercial Bank Ltd, v. Their Workmen, AIR 1951 SC 230 , wherein it has been held as follows (para 8) :-- It was contended that although no provision is made in Section 8(1) about what is to 2001 Cri. L.J./82 IV happen if the Govt. did not fill up the vacancy, it is implied that in that event the remaining members can continue the work. We are unable to accept that argument. In the first place, as pointed out above the object of Section 8 is to provide in what cases vacancies must be filled up and how the proceedings should continue on the vacancy being filled up. It does not deal at all with the situation arising from the not filling up of the vacancy by the Govt. In this connection, provisions of Sub section 5(4) & 6(3) have been already noted. When the Legislature wanted to provide that in spite of the temporary absence or permanent vacancy the remaining members should be authorised to proceed with the work they have made express provision to that effect. If in the case of Board or Ct. of inquiry, neither of which is adjudicating any disputes, such a provision was considered necessary to enable the remaining members to. act as a body, we think that the absence of such provision in respect of the Tribunal, which adjudicates on the disputes & whose quasi-judicial work is admittedly of a joint character & responsibility leads to the irresistible conclusion that in the absence of one or more members the rest are not competent to act as a Tribunal at all. Again the provisos to Section 5(4) & 6(3) are important. Under those provisos when the Govt. intimates to the remaining members that the services of one "have ceased to be available", the rest have no right to act as the Board or Ct. Again the provisos to Section 5(4) & 6(3) are important. Under those provisos when the Govt. intimates to the remaining members that the services of one "have ceased to be available", the rest have no right to act as the Board or Ct. It appears under the circumstances proper to hold that in respect of a Tribunal when the services of a member have ceased to be available the rest by themselves have no right to act as the Tribunal. 5. The State Government has taken the decision to reject the petitioners' applications for release on licence on the recommendation of the Board. I have found the recommendation of the Board to have been vitiated in law. Hence, action taken by the Government in rejecting the applications of the petitioners for release on licence cannot be allowed to stand. 6. The State Government is hereby directed to appoint a non-official member to the Board within six weeks from the date of receipt/production of a copy of this order. Cases of the petitioners for release on licence shall thereafter be placed before the entire Board and the State Govt. on consideration of the recommendation of the Board shall pass orders, as it may deem proper, in accordance with law. It is made clear that I have not expressed any opinion on the merits of the case of the parties, in this regard. 7. In the result, all writ petitions are allowed. Orders of the State Government declining to release the petitioners on licence are quashed and the respondents are directed to proceed in the manner, as indicated above. In the facts and circumstances of the case, there shall be no order as to cost.