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2012 DIGILAW 212 (KAR)

Khusro Quraishi v. State Of Karnataka

2012-03-08

DILIP B.BHOSALE, L.NARAYANA SWAMY

body2012
Judgment :- 1. This writ appeal and the writ petition, in view of the order dated 09.08.2011 passed by the Honourable Chief Justice, were heard together and since the questions / issues involved and raised are similar, they are disposed of by this common Judgment. 2. The appellant and the petitioner in both these matters is one Khusro Quraishi, hereinafter referred to as ‘the petitioner'. 3. The appeal is directed against the order dated 22nd November, 2010, passed in Writ Petition No.26273/2010 (GM-RES), whereby the writ petition was dismissed. The writ petition (w. p. No.26273/2010) was filed by the petitioner apprehending his removal as a Chairman of the Karnataka State Minorities Commission (for short ‘the Commission'). In the petition, the petitioner had prayed for declaration that section 4(1) of the Karnataka State Minorities Commission Act, 1994 (for short 'the Act’), to the extent that it incorporates the expression "subject to the pleasure of the Government" is void and unconstitutional and be deleted from the section. Petitioner also prayed for an order against the respondents restraining them from taking any steps to interfere with continuance of the petitioner as Chairman of the Commission till completion of his tenure. 4. Insofar as the first prayer in the writ petition No.26273/2010 is concerned, it was not considered by the learned single Judge in view of the Judgment of this Court in SYED MUDIR AGHA versus STATE OF KARNATAKA. & ORS. -ILR 2008 (2) KAR. 1722wherein a validity of the impugned expression in section 4 (1) of the Act was upheld. In this appeal, Mr. Jayaram, learned senior counsel appearing for the petitioner fairly submitted that he is not pressing the appeal insofar as the first prayer is concerned. It appears, even the second prayer was not considered and granted by the learned single Judge since the petition was filed in anticipation of removal. In other words, the learned single Judge, in the writ petition, held that the second prayer was premature and it need not be considered at that stage. It appears, even the second prayer was not considered and granted by the learned single Judge since the petition was filed in anticipation of removal. In other words, the learned single Judge, in the writ petition, held that the second prayer was premature and it need not be considered at that stage. While disposing of the writ petition as premature, the learned Judge, after considering the Judgment of the Supreme Court in SHIMNIT UTSCH INDIA PRIVATE LIMITED AND OTHERS versus WEST BENGAL TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED AND OTHERS (2010)6 SCC 330,in the concluding paragraph observed that the State Government should follow the conclusions of the Apex Court in the aforementioned Judgment strictly while removing a person from the office who is holding the post during the pleasure of the Government. It was further observed whether such removal would be arbitrary, malafide, capricious or whimsical could be looked into only after the order of removal is passed and not prior to it. 5. After dismissal of the writ petition vide order dated 22.11.2010, impugned in the present appeal, the State Government on 25.11.2010 cancelled the appointment of the petitioner as Chairman of the Commission and appointed respondent no.4 Sri. Anwar Manippady, in his place. In view thereof, the petitioner filed W.P. No.38946/2010 and prayed for declaration that the order dated 25.11.2010 is ultra vires the powers of the Government under the provisions of the Act being arbitrary, unreasonable and opposed to the principles of fairness and natural justice. Admittedly, no interim order was passed either in the writ petition or in the writ appeal and as a result thereof, respondent no.4 Sri. Anwar Manippady continued as a Chairman of the Commission and is holding the charge till this date. 6. The facts, sans unnecessary details, leading to these two matters are as follows: the petitioner was appointed as Chairman of the Commission vide order dated 25.2.2009 issued in the name of Governor of Karnataka under sub-section (2)(a) of section 3 and section 4 of the Act with immediate effect 'until further orders’. Along with the petitioner, six other persons were also nominated as members of the Commission. Thus, the Commission was constituted vide order dated 25.2.2009, as provided for under section 3, with immediate effect until further orders. Along with the petitioner, six other persons were also nominated as members of the Commission. Thus, the Commission was constituted vide order dated 25.2.2009, as provided for under section 3, with immediate effect until further orders. Thereafter, it is alleged that respondent no.3 who was Minister for Minority Affairs at the relevant time started making statements to the media, the print as well as electronic, making his intention clear to remove the petitioner from the Chairmanship and to appoint respondent no.4 Anwar Manippady as Chairman of the Commission. The petitioner, therefore, apprehending his removal in view of the statements made by respondent no.3 to the media, had filed writ Petition No.26273/2010. Initially, on 5.10.2010, an interim order was passed by this Court protecting him for a period of six weeks. In view thereof, the respondent-State had filed application for vacating the interim order on 26.10.2010. The petition, as aforementioned, was ultimately dismissed as premature on 22.11.2010. Respondent no.3 -Minister in his reply to the writ petition, on affidavit had denied the allegation regarding statements made to the media. 7. Thereafter, on 25.11.2010 the State Government issued an order/notification in the name of Governor of Karnataka in exercise of the powers conferred under the provisions of the Act canceling the petitioners nomination as Chairman of the Commission and in his place nominated respondent no.4 -Anwar Manippady with immediate effect. This order is impugned in W.P. No.4761/08. 8. We have heard learned counsel for the parties at length and with their assistance gone through the entire material placed before us for consideration. The grounds of challenge, as submitted by Mr. Jayaram, learned senior counsel appearing for the petitioner are two fold. Firstly, he submitted that the State Government did not follow the procedure contemplated by section 5 of the Act for removal of the petitioner from the post of Chairman of the Commission. In other words, he submitted that no reasonable opportunity of being heard was given to the petitioner before issuing the impugned notification / order dated 25.11.2010. Secondly, he submitted the impugned action of removal was malafide exercise of power and that the action taken by the State Government invoking doctrine of pleasure was arbitrary, capricious and unreasonable. In other words, he submitted that no reasonable opportunity of being heard was given to the petitioner before issuing the impugned notification / order dated 25.11.2010. Secondly, he submitted the impugned action of removal was malafide exercise of power and that the action taken by the State Government invoking doctrine of pleasure was arbitrary, capricious and unreasonable. He submitted, merely because the provisions contained in section 4 of the Act use the expression "subject to the pleasure of the Government", the Government cannot invoke the doctrine of pleasure in arbitrary, capricious and unreasonable manner and it has to be exercised only in rear and exceptional circumstances, for valid and compelling reasons. While dealing with the questions/issues raised and involved in the petition, we will make further reference to the submissions advanced by Mr. Jayaram, learned senior counsel and so also to the submissions made by the learned counsel for the respondents. 9. At the outset, we would like to consider the submission that the impugned notification / order is illegal since it was issued without giving an opportunity of being heard as provided for under section 5 of the Act. In support of this submission learned senior counsel for the petitioner invited our attention to the provisions contained in sections 3, 4 and clause (d) (g) of sub-section (1) of section 5 and the proviso thereto of the Act. 10. We have gone through the relevant provisions of the Act. The Act was brought on the statute book to constitute a state commission for minorities and to provide for matter connected therewith or incidental thereto. Section 3 of the Act provides for constitution of the Commission consisting of Chairman and six other members to be nominated by the State Government, from amongst persons of eminence, ability and integrity. Out of seven persons five persons including the Chairman need to be from amongst the minorities communities. Section 4 specifies about the term of office and conditions of service, of the Chairman and the members appointed under sub-section (2) of section 3. The Chairman and members of the Commission, under this provision, subject to the pleasure of the Government, shall hold office for a term of three years from the date they assume their office. Section 4 specifies about the term of office and conditions of service, of the Chairman and the members appointed under sub-section (2) of section 3. The Chairman and members of the Commission, under this provision, subject to the pleasure of the Government, shall hold office for a term of three years from the date they assume their office. Section 5 provides that a person shall be disqualified for being appointed as and for being continued as the Chairman or a member, as the case may be, if he acquires disqualification as provided for in clauses (a) to (g) of sub-section (1) thereof. Clause (g) of sub-section (1) of section 5 provides that a person shall be disqualified for being appointed as and for being continued as the Chairman or a member, as the case may be. if he has in the opinion of the Government, so abused the position of chairperson or member as to render that person's continuance in office is detrimental to the interests of the minorities or the public interest. No person, as provided for in the proviso to sub-section (1) of section 5, shall be removed under clauses (a) to (g) until that person has been given a reasonable opportunity of being heard in the matter. It would be relevant to re-produce the relevant provisions with which we are concerned in these matters, which read thus: "3. Constitution of the Commission-(1) As soon as may be after the commencement of this Act, the Government shall constitute a body to be called as the Karnataka State Minorities Commission to exercise the powers conferred on and to perform the function assigned to it under this Act with its headquarters at Bangalore. (2) The Commission shall consist of,- (a) a Chairman and six other members to be nominated by the Government, from amongst persons of eminence, ability and integrity: Provided that five members including the Chairman shall be from amongst the minorities communities; and (b) …… 4. Term of office and conditions of service of the Chairman and members.-(1) Subject to the pleasure of the Government, the Chairman and members of the Commission shall hold office for a term of three years from the date they assume their offices. (2) ............... (3) ............... (4) ............... (5) ............... 5. Disqualification for office of membership. Term of office and conditions of service of the Chairman and members.-(1) Subject to the pleasure of the Government, the Chairman and members of the Commission shall hold office for a term of three years from the date they assume their offices. (2) ............... (3) ............... (4) ............... (5) ............... 5. Disqualification for office of membership. -(1) A person shall be disqualified for being appointed as and for being continued as the Chairman or a member as the case may be, if he,- (a) ............... (b) is of unsound mind and stands so declared by a competent court; or (c) ............... (d) ............... (e) ............... (f)............... (g) has in the opinion of the Government, so abused the position of chairperson or member as to render that person's continuance in office is detrimental to the interests of the minorities or the public interest: Provided that no person shall be removed under this clause until that person has been given a reasonable opportunity of being heard in the matter. (2) Any person who is disqualified under sub-section (1) shall be removed by the Government.” From bare perusal of the aforementioned provisions, it is clear, in the present case, the petitioner was appointed under sub-section (2) (a) of section 3 and the order / notification of his appointment dated 25.2.2009 was cancelled by the notification / order dated 25.11.2010 issued under sub-section (1) of section 4 of the Act. The cancellation of the petitioner's appointment as Chairman of the Commission which resulted in his removal was indubitably issued under section 4 and not under section 5 of the Act. It would be relevant to re-produce the notification dated 25.11.2010 which reads thus: "As per Government Notification No.SaKaE 34 Bamaraa 2007, dated 25.02.2009, Shri. Khusro Qureshi, No.571. 8th Block, 1st Main Road, Koramangala, Bangalore-560 095, was nominated as Chairman of Karnataka State Minorities Commission. The Government of Karnataka by virtue of the powers conferred under Sec (3) Sub Sec (2) Clause (1) and Sec (4) of Karnataka State Minorities Commission Act-1994 (Karnataka Act 31 (1994), hereby cancels the nomination of Shri Khusro Qureshi as Chairman Karnataka State Minorities Commission and in his place nominates Shri. Anwar Manippady S/o Late Sri. The Government of Karnataka by virtue of the powers conferred under Sec (3) Sub Sec (2) Clause (1) and Sec (4) of Karnataka State Minorities Commission Act-1994 (Karnataka Act 31 (1994), hereby cancels the nomination of Shri Khusro Qureshi as Chairman Karnataka State Minorities Commission and in his place nominates Shri. Anwar Manippady S/o Late Sri. M. S. Manippady, High-point Apartment, Nantoor, as Chairman -Karnataka State Minorities Commission, with immediate effect and until further orders." (emphasis supplied) From perusal of the notification, it is clear, that it was not a removal as contemplated by the provisions of section 5 of the Act. It is not the case of the Government that in their opinion the petitioner abused the position of chairperson so as to render his continuance in the office detrimental to the interest of the minorities or the public interest. A plain reading of the notification dated 25.11.2010 shows, as claimed by the State Government in their reply, it was issued by invoking the doctrine of pleasure as provided for under section 4 of the Act. 11. From perusal of sections 4 & 5 of the Act, it is clear that the field of these two provisions are separate. Section 5 provides for disqualification resulting in removal of the Chairman or a member as the case may be, whereas cancellation of order of nomination resulting in removal made under section 4 of the Act is by invoking doctrine of pleasure without any stigma. In short, removal of the Chairman or a member by the Government is based on the principle of doctrine of pleasure and it does not attach stigma. As against this, removal of the Chairman or a member under section 5 is with penal consequences attaching stigma and therefore, the procedure contemplated by the proviso to sub-section (1) of section 5 must be followed. If the contention urged by Mr. Jayaram, learned senior counsel for the appellant is accepted, viz. Section 4 empowers and section 5 lays down the conditions and procedure to remove, then removal of the Chairman or a member could only be for penal consequences and not otherwise. We are unable to concede to this submission. If that was so, there was no reason to enact section 4 providing for the doctrine of pleasure and that section 5 would have taken care of all such cases. We are unable to concede to this submission. If that was so, there was no reason to enact section 4 providing for the doctrine of pleasure and that section 5 would have taken care of all such cases. Rights of the Chairman and members nominated under section 3 (1) (a) r/w section 4, either for a period of 3 years or until further orders, subject to the pleasure of the Government are the rights created under a statute and hence that very creator can always limit or curtail such rights. In such case, if the Chairman or a member is removed, he cannot project any grievance that no opportunity was given to him. In other words, if any right which is a creature of statute, is limited or curtailed by that very statute, in the absence of any other right under the Constitution of India, the person whose right is curtailed, cannot claim any right based on the principle of natural justice. (See KRISHNA Versus STATE OF MAHARASHTRA & OTHERS (2001) 2 SCC 441 ) Moreover, removal in the present case, in our opinion, neither casts any stigma nor leads to any penal consequences. This clearly reveals the doctrine of pleasure, which is implicit in section 4 of the Act. 12. In the present case, the petitioner was appointed as Chairman of the Commission "until further orders" and not for a fixed term of 3 years as provided for under section 4. The petitioner does not dispute right of the State Government to nominate either the Chairman or a member of the Commission until further orders. The petitioner accepted his appointment with open eyes. In other words, the petitioner accepted his appointment though it was not made for fixed terms of 3 years. It clearly shows that the Government reserved its right to, either continue the petitioner or to appoint any other person in his place. The petitioner, therefore, cannot contend that in view of section 4 of the Act, he cannot be discontinued / removed by the Government till he completes the period of 3 years. If the petitioner claims that his appointment ought to have been made for a period of 3 years, he should have, when nominated, insisted the Government to fix his tenure before assuming charge. He did not do so. If the petitioner claims that his appointment ought to have been made for a period of 3 years, he should have, when nominated, insisted the Government to fix his tenure before assuming charge. He did not do so. The notification / order by which he was nominated clearly speaks that he could hold the post until further orders of the Government and therefore, it was open to the Government to appoint any other person in place of the petitioner by exercising the power of pleasure doctrine. In such eventuality, the Government is not required to furnish the reasons nor the petitioner had right to know the reasons for his removal under section 4 of the Act. Once the doctrine of pleasure is invoked, neither the principles of natural justice would step in nor any question of giving an opportunity before removal would arise. It is pertinent to note when stigma is cast, then sub-section (1) of section 5 specifically provides for giving an opportunity before passing an order of removal under that provision. There is no such corresponding subsection under section 4 providing an opportunity of being heard before removal under this provision. (See B.P. SINGHAL Versus UNION OF INDIA AND ANOTHER (2010) 6 SCC 331 ; UNION OF INDIA AND ANOTHER Versus SHARDINDU (2007)6 SCC 276 ; UNION OF INDIA AND ANOTHER Versus TULSIRAM PATEL (1985) 3 SCC 398 ; and OM NARAIN AGARWAL Versus NAGAR PALIKA, SHAHJAHANPUR (1993) 2 SCC 242 ). 13. Thus, in our view the provisions containing section 4 neither offend any article of Constitution nor the same is against public policy or democratic schemes enshrined in the Constitution. There is no question of any violation of principles of natural justice in not affording any opportunity to the nominated members including the chairman before their removal nor their removal under the pleasure doctrine contained in section 4 of the Act puts any stigma on their performance or character. At this stage, we cannot overlook that such appointments are purely on political considerations. In the circumstances, the first submission of Mr. Jayaram, learned counsel for the petitioner must be rejected. 14. We may now turn to the ground of challenge based on malafide exercise of power. At this stage, we cannot overlook that such appointments are purely on political considerations. In the circumstances, the first submission of Mr. Jayaram, learned counsel for the petitioner must be rejected. 14. We may now turn to the ground of challenge based on malafide exercise of power. It is true that no reason need to be assigned for discontinuance of the pleasure resulting in removal, but such power cannot be exercised in an arbitrary, capricious or unreasonable manner. In other words, such power needs to be exercised for valid and compelling reasons. What would be compelling reason, would depend upon the facts and circumstances of each case. If a person such as the petitioner is able to demonstrate prima facie that his removal was either arbitrary, or capricious, or unreasonable, or whimsical, the Government could be called upon to disclose the material upon which the decision to withdraw the pleasure was taken. If the Government cannot disclose any reason or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical or malafide, the Court has enough power to interfere. (See 15. Mr. Jayaram invited our attention to the acts/incidents, which, according to the petitioner, clearly show that the impugned decision was arbitrary and malafide. All the acts or the instances quoted in the petition and to which our attention was invited, according to the petitioner, show malafide exercise of power on the part of respondent No.3-Minister. The act/incidents are in the nature of statements made to the media during the last week of October, 2010, i.e. just 2-3 weeks before the impugned notification was issued expressing the desire or intention of the Government to change the chairman resulting in his removal, and appointing respondent no.4 in his place. It is alleged that respondent no.3 made statements to the print media, so also to the TV channel stating that "an order dismissing the petitioner as Chairman of the Commission had already been passed but would come into effect after three weeks in view of the stay granted by the High Court". Except the said statement appeared in the news papers / T.V. channel there is nothing on record to infer that such decision was taken by the Government. We find, the statements appeared in different newspapers and so also in the news telecast on TV channel "Khas Baat" on 21.10.2010 at 7.30 p.m. are consistent. Except the said statement appeared in the news papers / T.V. channel there is nothing on record to infer that such decision was taken by the Government. We find, the statements appeared in different newspapers and so also in the news telecast on TV channel "Khas Baat" on 21.10.2010 at 7.30 p.m. are consistent. The respondent-minister denied the allegations or the fact of issuing statements to the media. The denial by respondent-minister does not appear to be correct insofar as T.V. clipping is concerned. We viewed the T.V. clipping in the open Court, which, showed that such statement was made by the petitioner to the channel. Then, in support, our attention was invited to the relevant paper cuttings and invitation cards printed by Karnataka State Haj Committee, Bengaluru. On the Invitation card dated 6.11.2009, the petitioner's name was printed as a chief guest by the said Committee, whereas for the subsequent year, for the similar function of Haj flights, held in October, 2010, the petitioner's name was deleted. Similarly, our attention was also drawn to the correspondence addressed by respondent no.3 in 2009-2010 to the petitioner and the Commission, in support of his case. The petitioner has re-produced a translation of one of the letters to support the allegation of malafide, which reads thus: SHIMNIT UTSCH INDIA PRIVATE LIMITED(supra). "It states that "(BJP) party is supreme …… Because of the party we are enjoying our positions. You are not paying respect to the local party leaders….. We must all work for the growth of the party….. expenditure in some area is excess…. You have to file reports of the work and tour of the Commission as and when they are undertaken…. The Commissioner has to work properly under the control of the Government… The Commission should work under the scope of the Government of which it is an indivisible part and not an independent department…. The status and privileges of a Minister have been given to the Chairman….. It is your duty to give details of every tour made and every meeting held and to report the same to the Government…. The status and privileges of a Minister have been given to the Chairman….. It is your duty to give details of every tour made and every meeting held and to report the same to the Government…. You have to report regularly full details of all your activities." On the basis of the contents of the letter it was contended that respondent no.3 minister was treating the Commission as a Department of the Government and subordinate to it and this approach of the minister rendered the Commission as a limb of the Government and took away its legal status of independent functioning contemplated under the Act and the Rules. 16. According to the petitioner, the various acts/incidents set out by him in the petition, clearly show malafide exercise of power. It would not be out of place to observe that respondent no.3-minister being a part of the Government, if true, was in the wrong in issuing such statements to the media about the petitioner. He ought to have, had observed some restraint in approaching the media or making public statements or even treating the Commission as a dependant of the Government or its subordinate. The question, however, is whether such acts/incidents would be sufficient to hold malafide intention on the part of the petitioner. A glance at the statements, made to the media, would show that the minister conveyed the proposed decision of the Government to change the Chairman of the Commission. Similarly, the correspondence placed on record, in particular, the aforesaid letter addressed to the petitioner and the Commission would further show that whatever was stated in the letter was in the nature of advise or conveying expectations from the petitioner being a person appointed by BJP Government. The statements made to the media and the correspondence referred to, would at the most show that respondent no.3 crossed his limits. He, out of over enthusiasm, conveyed the decision / intention of the Government to change the Chairman even before the decision was taken and / or it was officially declared. These acts undoubtedly constitute gross acts of mal-administration or it would amount to obstruction in the duties of the Chairman or it would at the most show that respondent no.3 was annoyed with the petitioner and that he wanted to remove him from the post of Chairman. These acts undoubtedly constitute gross acts of mal-administration or it would amount to obstruction in the duties of the Chairman or it would at the most show that respondent no.3 was annoyed with the petitioner and that he wanted to remove him from the post of Chairman. The question is whether annoyance or making statements to the media or writing letters would amount to malafide exercise of power? It was strenuously argued that all the acts of respondent no.3 would show that respondent no.3 was hostile and had animus against the petitioner. As observed earlier, in our opinion, the acts or the material relied upon by the petitioner in support of the allegation of malafides would at the most constitute acts of mal administration. But we are not called upon to investigate into acts of mal administration either by respondent no.3 or the Government of which he was a part at the relevant time. That is not the scope of enquiry before us and we decline to enter upon any such enquiry. It is one thing to say that respondent no.3 was guilty of mis rule and another to say that he had malus animus against the petitioner, which was the operative cause of his removal from the post of Chairman. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the petitioner to side-track the issue and escape the burden of establishing hostility and malus animus on the part of respondent no.3 by diverting our attention to the incidents quoted in the petition. In our opinion, none of the incidents/actions taken by respondent no.3 includes any component of malafides against the petitioner. It is well settled that the burden of establishing malafides is very heavy on the person who alleges it. The allegation of malafides are often more easily made than proved and the very seriousness of such allegation demands proof of a high order of credibility. 17. In the present case, when we made a specific query to learned senior counsel appearing for the petitioner as to whether there was any reason for respondent no.3 to have grudge or to have hostility or malus animus against the petitioner. In all fairness his reply was in the negative. 17. In the present case, when we made a specific query to learned senior counsel appearing for the petitioner as to whether there was any reason for respondent no.3 to have grudge or to have hostility or malus animus against the petitioner. In all fairness his reply was in the negative. In other words, he stated that he did not know the reasons as to why the minister was bent upon to remove him as a Chairman. The only material to which our attention was invited by him was that respondent no.3 minister being a part of the BJP Government, never wanted the petitioner to act contrary to the policies of the State Government and / or to implement the policies of the Central Government of Congress and / or wanted to entertain party workers so as to make their party strong. Thus, in our opinion, the second ground of challenge also deserves to be rejected. Order accordingly. In the result, the writ appeal as well as the writ petition fall and dismissed as such. No costs.