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2009 DIGILAW 1546 (PAT)

Saira Bano Wife Of Ali Raza v. State Of Bihar

2009-12-10

NAVANITI PRASAD SINGH

body2009
JUDGEMENT 1. Though various issues have been raised in the writ petition, in my view, except one, none else need to be decided. The two petitioners were members of the Bihar Womens Commission. The Commission is constituted under the Bihar Womens Commission Act, 1999. It is a statutory body where the non-Governmental members are appointed for three years fixed. It is only with fixed remuneration. It is not in dispute that the two petitioners were duly appointed by the State Government as two of the non-Governmental members of the said Commission. Section 4 of the Act prescribes the grounds on which a member of the Commission can be removed. The relevant ground would be found in Section 4(2) (chha) as no other ground is available. The said ground is where the Government is satisfied that the conduct of any member is such as is not in public interest. It so happened that in several newspapers, certain advertisement for recruitment of some persons was issued. It was purported to be issued under the authority of the two petitioners. The two petitioners denied having any hand in issuing the said advertisement. It seems that the Chairman of the Commission asked for explanation from the petitioners and petitioners immediately informed that they had nothing to do in the matter. In fact, subsequently petitioners got newspaper advertisements issued denying the earlier advertisement. It appears that the Chairman sent a report to the State Government in the Department of Welfare, which is the nodal controlling Department. The Department being fully satisfied as to the undesirability of petitioners to continue as members of the Commission issued the impugned order by which there was premature termination of the tenure of the petitioners specifically mentioning that their tenure could not be permitted to continue as that would be against public interest. Two things are undisputed. Firstly, the manner in which the petitioners are removed or the premature termination of their tenure creates a great stigma on their character. Secondly before taking such an action, the State Government which took the action, did not issue any notice or grant any opportunity of hearing at all to the petitioners. Learned counsel for the State is unable to contest these two factual positions. Secondly before taking such an action, the State Government which took the action, did not issue any notice or grant any opportunity of hearing at all to the petitioners. Learned counsel for the State is unable to contest these two factual positions. Thus, the fact remains that even though removal is by way of punishment and causing stigma, it was not preceded by any proceedings or show cause in that regard. 2. Having considered the matter and heard the parties, the writ petition is being disposed of at this stage itself. 3. In my view, the principle of the pleasure doctrine will not apply. The appointment is for a fixed term of three years which is not at the pleasure of the Government. Thus, any curtailment of the fixed tenure would affect the civil rights of a person. Secondly, removal with stigma again affects the character of a person and has civil consequences. Thus, in such a situation, it is too late in the day to submit that no show cause is at all necessary before such an action is taken. In my view, various aspects in this regard has already been considered and settled by the Apex Court in the case of S.L. Kapoor V/s. Jagmohan and Others since reported in AIR 1981 Supreme Court 136. The termination, admittedly, being with stigma and without show cause notice, thus, cannot be sustained. It is submitted by the learned counsel for the State that the Chairman had sought an explanation and sent its report. That cannot be a defence to failure to follow the principles of natural justice. One, who has to decide, has to initiate the proceedings and to hear the matter. That is a well settled principle. It cannot be that one issues the show cause, hears the matter and another decides. 4. Thus, on all scores, the impugned order terminating the tenure of the two petitioners as members of the Commission cannot be sustained in law. It is, accordingly, quashed. The writ application is allowed.