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2002 DIGILAW 595 (JHR)

Samaresh Singh Etc. v. Syed Azmat Hussain Etc.

2002-05-10

TAPEN SEN, VINOD KUMAR GUPTA

body2002
JUDGMENT Tapen Sen, J. 1. Syed Azmat Hussain, Respondent No. 1 in LPA No. 785 of 2003 had filed a writ application under Article 226 of the Constitution, being CWJC No. 958 of 2001, inter alia challenging the order passed by the appellant asking him to proceed on leave as also the subsequent order placing him under suspension. In the writ application the very appointment of the appellant as Chairman. Board of Governors of Regional Institute of Technology, Jamshedpur was also challenged. Vide impugned judgment dated 29.11.2001, whereas the learned single Judge set aside the appointment of the appellant as the Chairman. Board of Governors. R.I.T., Jamshedpur, as made by Notification dated 9.1.2001, but he refused to grant any relief in so far as the writ petitioner (Respondent No. 1) was concerned relating to the aforesaid adverse order passed against him by the appellant. While refusing to grant relief to the respondent No. 1, the learned single Judge was of the view that even though the appointment of the appellant has been declared illegal, all actions taken by him in the capacity of the Chairman, Board of Directors, R.I.T., Jamshedpur, should not be held illegal ipso facto till some specific illegalities were pointed out with respect to such action. Even though the learned single Judge did not mention so, perhaps, he invoked the de facto doctrine and thus did not grant any relief to the respondent No. 1. In so far as the aforesaid grant of relief to respondent No. 1 is concerned. LPA No. 65 of 2002 has been filed by him. In so far as the quashing and setting aside of the appointment, of appellant as the Chairman of the Board of Governors, R.I.T., Jamshedpur is concerned. LPA No, 785 of 2001 has been filed by the said appellant. 2. LPA No. 785 of 2001 was taken up for consideration on 21.12.2001 and while the appeal was admitted, in so far as the interim relief as claimed by the appellant was concerned, the following order was passed :--"Heard the parties with regard to the stay matter. LPA No, 785 of 2001 has been filed by the said appellant. 2. LPA No. 785 of 2001 was taken up for consideration on 21.12.2001 and while the appeal was admitted, in so far as the interim relief as claimed by the appellant was concerned, the following order was passed :--"Heard the parties with regard to the stay matter. On consideration of all the relevant aspects and specially in the light of the provisions of the Bihar Reorganisation Act, 2000, as well as on consideration of the various clauses of the Articles of Association of the Society and on interpretation of various orders on the subject, we fell that status quo ante as was existing prior to the date of the pronouncement of the judgment under challenge in this appeal is required to be restored, keeping in view the spirit of the Bihar Reorganisation Act, 2000 and the need for maintaining the continuity in the functioning of the Regional Institute of Technology, Jamshedpur, Accordingly, even while we are staying the operation of that portion of the judgment of the learned single Judge as relates to the revocation of the appointment of the appellant as the Chairman of the Board of Governors, R.I.T., Jamshedpur we also direct that status quo ante as was in existence before the pronouncement of this judgment shall be restored." 3. Respondent Nos. 5 and 6 may file counter-affidavits in six weeks from today. 4. Let the matter appear in February. 2002. 5. Feeling aggrieved. Respondent No. 1 has filed the vacation application with respect to the aforesaid order. The State of Bihar being a highly interested party in the out come of this appeal has also filed a vacation application with respect to the aforesaid order dated 21.12.2001. 6. By this common order, therefore, we propose to deal with and dispose of both the vacation applications, as also the other issues involved in these appeals. 7. The R.I.T., Jamshedpur, is one of the several Regional Engineering Colleges set up and operating in the country, all under the joint venture agreements between the Centra! Government and the concerned State Governments (wherever these are located). These institutions, wherever these are located, are registered as Societies under the Societies Registration Act having their Memorandum of Association, Articles and the Rules. Since R.I.T., Jamshedpur, has also admittedly been registered as a Society under the Societies Registration Act. Government and the concerned State Governments (wherever these are located). These institutions, wherever these are located, are registered as Societies under the Societies Registration Act having their Memorandum of Association, Articles and the Rules. Since R.I.T., Jamshedpur, has also admittedly been registered as a Society under the Societies Registration Act. it also has its Memorandum. Articles and Rules. 8. The main and primary dispute which formed the groundmen of the controversy between the parties in the present litigation, revolves around the meaning of the expression "State Government". Whereas the appellant and all the other parties in this case connected with him claim that since R.I.T., Jamshedpur is located in a territory now forming part of Jharkhand State. Government of Jharkhand is the joint venture partner of R.I.T., Jamshedpur, Respondent No. 1, the State of Bihar and all others connected with them in this litigation claim that as per the Memorandum of Association, Articles. Rules and all related Bye- laws and Regulations on the subject, State of Bihar continues to be the joint venture partner along with the Central Government. 9. By virtue of Section 3 of the Bihar Reorganisation Act, 2000, State of Jharkhand came into being. This new State was carved out from the territories of the "existing State of Bihar". as has been defined in Section 2(c) of the 2000 Act. Bihar Reorganization Act. 2000 is totally and absolutely silent in so far as the ownership, management or control over R.I.T., Jamshedpur is concerned, except as is mentioned in Schedule Xth of this Act. which has to be read with Section 70 of the Act. Entry 12 in Schedule Xth relates to R.I.T., Jamshedpur. Section 70 of the 2000 Act reads thus :-- "70. Continuance of facilities in certain State institutions.--(1) The Government of State of Bihar or Jharkhand. as the case may be. which has to be read with Section 70 of the Act. Entry 12 in Schedule Xth relates to R.I.T., Jamshedpur. Section 70 of the 2000 Act reads thus :-- "70. Continuance of facilities in certain State institutions.--(1) The Government of State of Bihar or Jharkhand. as the case may be. shall in respect of the institutions specified in the Tenth Schedule to this Act, located in that Stale, continue to provide facilities to the people of the other State which shall not, in any respect, be less favourable to such people than what were being provided to them before the appointed day, for such period and upon such terms and conditions as may be agreed upon between the two State Governments before the 1st Day of December, 2001 or if no agreement is reached by the said date, as may be fixed by order of the Central Government. (2) The Central Government may at any time before the 1st day of December, 2001 by notification in the Official Gazette, specify in the Tenth Schedule any other institution existing on the appointed day in the States of Bihar and Jharkhand and on the issue of such notification, the Schedule shall be deemed to be amended by the inclusion of the said institution therein." 10. The appellant places reliance upon Section 70 of the Act and says that by virtue of Entry 12 in Schedule Xth, and by operation of law (because of separation of Jharkhand State from the existing State of Bihar) Government of Jharkhand should now be considered as the joint venture partner of R.I.T., Jamshedpur along with the Central Government, in place of "existing State of Bihar" (as was in existence prior to 15.11.2000, the "appointed day" as prescribed under the 2000 Act). As against the aforesaid legal submission, Mr. A. Allam, learned counsel appearing for the State of Bihar, submits that the R.I.T, Jamshedpur is a Society registered under the Societies Registration Act and irrespective of the fact that through the operation of 2000 Act, the physical location of the Institution may now be in a place presently being part of Jharkhand State, but as per the Memorandum of Association, Articles. Rules. Regulations and Bye-laws the State of Bihar continues to be the joint venture partner along with he Central Government. Mr. Rules. Regulations and Bye-laws the State of Bihar continues to be the joint venture partner along with he Central Government. Mr. Allam has placed heavy reliance upon a letter dated 20.3.20002 from the Central Government addressed to the Government of Jharkhand, copy whereof has been filed as Annexure 4 to the Memo of Appeal. According to Mr. Allam, the contents of this letter support his submission that unless and until the Society is duly reconstituted and unless and until the reconstituted Society registers itself newly in the State of Jharkhand, the Society as was earlier constituted would continue to function and because of its Memorandum of Association. Articles, Rules etc. the State of Bihar would continue to be the joint venture partner of this Institution. It is of course the admitted case of the parties that despite the aforesaid communication dated 20.3.2001 having been received by the Government of Jharkhand, more than a year earlier, the Government of Jharkhand has not taken any step so far as in furtherance of the said communication in as much as admittedly it has so far not taken any step either for reconstitution of the Society or in getting any such reconstituted Society registered a new in the State of Jharkhand. 11. The vital and core issue, therefore, which may fall for determination in this appeal is as to whether the State of Jharkhand has become the joint venture partner, or the State of Bihar continues to be the joint venture partner of the R.I.T., Jamshedpur. As has been noticed by us, the learned single Judge was of the view that the State of Bihar continues to be joint venture partner of the R.I.T., Jamshedpur. 12. In the interim order dated 21.12.2001, for sake of continuity and to avoid any undue interference in the functioning of the Institution, the Division Bench had allowed the appellant to continue to function as the Chairman and had ordered for the restoration of status quo ante so as to ensure continuity in all respects. In the vacation application and the supplementary affidavit filed, it has been submitted that after the Division Bench had passed the aforesaid order on 21.12.2001 the appellant started functioning in a manner which was totally and patently against and de hors the Memorandum of Association, Articles. Rules, Regulations and the principles of fair play, objectivity, equity etc. 13. In the vacation application and the supplementary affidavit filed, it has been submitted that after the Division Bench had passed the aforesaid order on 21.12.2001 the appellant started functioning in a manner which was totally and patently against and de hors the Memorandum of Association, Articles. Rules, Regulations and the principles of fair play, objectivity, equity etc. 13. We list hereinbelow some of the admitted facts which constitute the gravamen of aforesaid accusations against the appellant. These are :-- 1. Following the suspension of Respondent No. 1, disciplinary proceedings against him were on and admittedly these are continuing even uptill date. Undisputedly the proceedings have not so far been concluded. Despite this. Office Order No. R.I.T. (P)-54/2002, dated 1.3.2002 was passed by the appellant terminating the service of Respondent No. 1. The text of this order reads thus :-- "The entire discipline in the campus has been broken by you and you have been held the real schemer for disturbance in the recent days. Hence, your services in the institute is hereby terminated. You are required to be out of R.I.T., Jamshedpur campus within 48 hours from the time of issue of this order." It is the admitted case of the appellant as well as every body else that the passing of this order was not preceded by any notice to respondent No. 1, holding of any inquiry whatsoever or affording any opportunity to respondent No. 1 in any manner. This has been actually, specifically and expressly admitted by the appellant as well as the R.I.T. in the affidavits filed by them in this Court. What the appellant has to say with respect to this order is contained in his affidavit. We reproduce the same, which reads thus :-- "10. That the statements made in paragraph 6 of the application, under reply, are denied and disputed. It is denied that only to feed fat his grudge and personal bias against the respondent No. 1, the order of termination/dismissal was passed against the respondent No. 1. It is stated that the respondent No. 1, in aid and assistance of anti- social elements numbering about 30 to 40 armed with lethal weapons, gheraod the official residence of the Principal and started brick-batting. The incidence had taken such a dimension that immediate action was required to be taken and, accordingly, a 5 men committee was constituted to enquire into the matter comprehensively. The incidence had taken such a dimension that immediate action was required to be taken and, accordingly, a 5 men committee was constituted to enquire into the matter comprehensively. While making the enquiry, a number of independent persons, including students; teachers and other categories of employees, were examined who gave their written informations to the Committee. Based upon the said informations, the Committee made certain recommendations. Taking into consideration all aspects of the matter, the appellant was constrained to pass necessary orders leading to the issuance of the order as contained in Annexure A to the application under reply." What the R.I.T., Jamshedpur through the affidavit of Sri M.M. Prasad, Professor-Incharge (Legal) has to say with respect to this aspect is found in the following part of the affidavit :-- "11. That the statements made in paragraph 6 are denied and disputed. It is stated that respondent No. 1 has been issued a memorandum of charges vide office order No. RIT (P)-132/2001, dated 27.4.2001 and departmental enquiry in relation to the said charge-sheet is still under progress and same has yet not been finalised. It is denied that the said departmental enquiry has ended in the termination/dismissal of the respondent No. 1. It is denied that the order dated 1.3.2002 as contained in Annexure A to the application under reply is the final order passed on the charge-sheet dated 27.4.2001. It is stated that Annexure A has heen issued in relation to an incident which took place in the R.I.T. campus in which the respondent No. 1 was instrumental in leading a mob to the residence of the Principal, Regional Institute of Technology. Jamshedpur. The matter was brought to the notice of the Chairman, Board of Governors for consideration only in relation to the said misconduct, indiscipline who directed for passing the order which has been communicated vide letter dated 1.3.2002. It is further stated that against the said order dated 1.3.2002 as contained in Annexure A of the affidavit under reply, the respondent No. 1 has already filed a writ application before this Honble Court being W.P. (S) No. 1790 of 2002, in which notices have been issued to the respective parties to file counter affidavit and the date of hearing of the said application has been fixed for 9.5.2002. So far as the allegation relating to appointments are concerned, the same are denied and disputed. So far as the allegation relating to appointments are concerned, the same are denied and disputed. It is stated that all appointments made recently have been made legally, validly and properly. It is stated that the legality and validity of the appointment of the respondent No. 1 as Registrar, Regional Institute of Technology. Jamshedpur, is also under challenge before this Honble Court and the same is subjudice before this Honble Court," II. Post of Principal. R.I.T., Jamshedpur has been lying vacant for a long time. The incumbent Principal Dr. R. Yadav had to superannuate on 18.6.2001. On 9.4.2001 the Central Government had sent a communication for filling up this post. Dr. Janak Prasad Singh, Professor of Applied Mechanics Department. R.I.T., Jamshedpur was appointed on regular substantive basis on this post (Principal, R.I.T., Jamshedpur} vide order No. RIT (E)/631/2002, dated 5.3.2002 passed by the appellant 9.4.2001 is the date of communication of the letter from the Central Government and 5.3.2002 is the date of appointment of Dr. J.P. Singh as the Principal. "Eleven months" is the intervening period between these two events. Rules of R.I.T., Jamshedpur provide that the RIT shall be governed by a Board of Governors. The provision regarding the composition of the Board has been prescribed in Rule 6. The Chairman of the Board is required to be appointed by the State Government in consultation with the Central Government. In addition to the Chairman, the Board would have, amongst others, three members to be nominated by the State Government. As per Rule 16, the Board shall meet once in every three months. Rule 15 deals with the powers and functions of the Board. Clause (ix) of Rule 15 relates to the appointment and control of the staff. It reads thus :-- "(ix) To appoint and control such staff as may be required for the efficient management of the affairs, of the Institute and to regulate their recruitment and conditions of service." Rule 19(i) deals with the appointment of the Principal. It reads thus :-- "19. Principal--In future the principal s