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2014 DIGILAW 314 (CHH)

Narayan Sharma v. State of Chhattisgarh

2014-08-20

PRASHANT KUMAR MISHRA

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ORDER 1. The petitioner is seeking issuance of writ of quo warranto and has prayed for setting aside the order dated 11-7-2012 (Annexure – P/10) by which the tenure of the respondent No. 3 as Deputy Labour Commissioner (for short DLC) has been extended for a further period of two years. 2. The challenge has been thrown on the ground that the respondent No.3 is an usurper of the office of the DLC because under the Chhattisgarh Labour (Gazetted) Service Rules, 1985 (for short the Rules, 1985), Schedule II, the office of the DLC in the Department of Labour, Government of Chhattisgarh is to be filled up 100% by way of promotion, however, in special cases the said office can be filled up by deputation or transfer from other departments, however, the respondent No.3 is not an employee of any other department of the State Government. 3. According to Shri Payashi, learned counsel for the petitioner, the respondent No.3 is working as Assistant General Manager (Marketing) in Raipur Sahakari Dugdh Utpadak Sangh Maryadit (for short Dugdh Sangh), which is an autonomous body, being a Co-operative Society and is not the department of Government, therefore, the respondent No.3 does not fulfill the eligibility criteria for his appointment by transfer as envisaged under the Rules, 1985. Learned counsel would further submit that the respondent No.3 being wholly ineligible to hold the office of the DLC, he is an usurper of the office and he deserves to be removed by issuance of writ of quo warranto. 4. Per contra, Shri Sharma, learned counsel for the respondent No.3, would submit that Dugdh Sangh is a department of Government, therefore, neither the initial appointment nor the extension of the respondent No.3 is contrary to the Rules. Learned counsel would submit that the petitioner is wrecking vengeance and is settling personal scores with the respondent No.3 because the petitioner being a journalist, was issuing false and malicious news item concerning the respondent No.3 and two Hon'ble Ministers of the State Government vide Annexure – P/5 for which the respondent No.3 lodged the First Information Report (FIR) against him. Learned counsel would also submit that the petitioner was aware of the initial appointment of the respondent No.3, which was made in the year 2010, yet the writ petition has been filed in the year 2014 and, as such, it suffers from delay and laches. Learned counsel would also submit that the petitioner was aware of the initial appointment of the respondent No.3, which was made in the year 2010, yet the writ petition has been filed in the year 2014 and, as such, it suffers from delay and laches. Learned counsel placed reliance upon the decisions rendered by the Supreme Court in The U.P. State Electricity Board and Another v. Hari Shankar Jain and Others, (1978) 4 SCC 16 , Deoraj v. State of Maharashtra and Others, (2004) 4 SCC 697, B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn. and Others, (2006) 11 SCC 731 (II) and Arun Kumar Agrawal v. Union of India and Others, (2014) 2 SCC 609 . 5. Shri Thakur, learned Govt. Advocate for the State, has also opposed the prayer made in the writ petition. 6. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 7. This Court shall first dwell upon the issue concerning maintainability of the writ petition. The respondent No.3 has made two fold submissions on this count i.e. firstly; the writ petition is on account of personal vengeance; and secondly; it suffers from delay and laches. 8. Both the arguments need not detain this Court for long in view of the law laid down by the Supreme Court in Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Others, (2014) 1 SCC 161 . In the said case, the Supreme Court has considered its earlier judgments rendered in The University of Mysore v. C.D. Govinda Rao & Another, AIR 1965 SC 491 , High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 and Centre for PIL v. Union of India, (2011) 4 SCC 1 and thereafter, held in paras 21 & 22 as under: “21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority. 22. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on the one hand and an interest by a citizen as a relator to the court on the other. The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds.” (Emphasis supplied) 9. In view of the above, it is now settled that neither the concept of locus standi nor the ground of delay and laches would be used for throwing a petition seeking writ of quo warranto because when the contest is between larger public interest and good governance on the one side and the interest of an individual on the other side, the balance has to tilt and the Court has to make all possible effort to uphold the larger public interest rather than throwing out the petition on technical ground. 10. 10. Before proceeding further to consider the core issue as to whether in the given set of facts and the law applicable thereto, a writ of quo warranto is required to be issued, this Court would remind itself to the principle defining the nature of writ of quo warranto. The following has been held by the Supreme Court in The University of Mysore (supra) the Supreme Court held thus: 6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings. 7. As Halsbury has observed: "An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. (Emphasis supplied) 11. This Court shall now proceed to deal with the seminal question for consideration as to whether the respondent No.3 is an usurper of the office of the DLC, Government of Chhattisgarh. Recruitment to the post of DLC is governed by the Rules, 1985. Rule 6 thereof makes provision regarding methods of recruitment. Schedule II referring to Rule 6 provides that the post of DLC is 100% promotional post, however, in special cases it can be filled up by deputation or transfer from other departments. 12. Referring to a gazette notification dated 20-5-2002 (Annexure – R3/2), learned counsel for the respondent No.3 has argued that the affairs of dairy services in the State is looked after by the Animal Husbandry and Dairy Department. Therefore, it comes within the meaning of the Department of the State Government. 13. 12. Referring to a gazette notification dated 20-5-2002 (Annexure – R3/2), learned counsel for the respondent No.3 has argued that the affairs of dairy services in the State is looked after by the Animal Husbandry and Dairy Department. Therefore, it comes within the meaning of the Department of the State Government. 13. When this Court directed the State Government on 6-8-2014 to produce any notification issued under Rule 2 (c) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short 'the Rules, 1966') treating the Dugdh Sangh as a department of the State Government, if any, learned counsel for the State informed this Court during the course of argument that there is no such notification issued under the said provision. 14. The word other departments or department has not been defined under the Rules, 1985, however, Rule 2 (c) of the Rules, 1966 defines the word department of the Government of Chhattisgarh, which reads as under:- “2 (c) Department of the Government of Chhattisgarh means any establishment or organisation declared by the Governor by a notification in the Official Gazette to be a department of the Government of Chhattisgarh.” 15. One of the principle of interpretation is that related provisions in different Acts but having bearing on the same subject have to be read together has been illustrated by the Supreme Court in Common Cause A Registered Society v. Union of India and Others, AIR 1996 SC 3081 . 16. Yet again, the Supreme Court reiterated the above principle of interpretation in State of M.P. v. Swaropchandra, (1996) 11 SCC 175 . The said matter related to the construction of Section 22 of the MP Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969. The Adhiniyam applies to certain specified forest produce and provides for their seizure along with receptacle or vehicle used for transportation in contravention of the provisions of the Act and Rules. The Adhiniyam provides for release of receptacle or vehicle on payment of its value but not for confiscation in case the value is not paid. Section 22 further provides that nothing contained in the Indian Forest Act, 1927 shall apply to specified forest produce in matters for which provision is made in the Adhiniyam. The Adhiniyam provides for release of receptacle or vehicle on payment of its value but not for confiscation in case the value is not paid. Section 22 further provides that nothing contained in the Indian Forest Act, 1927 shall apply to specified forest produce in matters for which provision is made in the Adhiniyam. The Supreme Court held that the provision for confiscation made in the Forest Act would apply to seizures made under the Adhiniyam as this was a matter for which no provision was made in it. Thus, the Act and the Adhiniyam dealing with allied subjects were treated forming part of the same system and were read by the Supreme Court as complementary to each other. 17. Similarly, the Supreme Court in Board of Trustees of the Port of Bombay and Others v. Sriyanesh Knitters, (1999) 7 SCC 359 , held that it is permissible to read the provisions of two Acts together when the same are complementary to each other. 18. It is equally settled that where the definition of word has not been given, it must be construed in its popular sense if it is a word of every day use. In this regard, the following has been held by the Supreme Court in The Commissioner of Income-tax, Andhra Pradesh v. M/s Taj Mahal Hotel, Secunderabad, AIR 1972 SC 168 : “6. Now it is well settled that where the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use. Popular sense means "that sense which people conversant, with the subject matter with which the statute is dealing, would attribute to it". In the present case, s. 10(5) enlarges the definition of the word "plant" by including in it the words which have already been mentioned before. The very fact that even books have been included shows that the meaning intended to be given to "plant" is wide. The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute." When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. The word "include" is also susceptible of other constructions which it is unnecessary to go into.” 19. Since the Rules, 1966 governs the services of the Government servants working in the State and the Rules, 1985 has also been framed in exercise of power under Article 309 of the Constitution of India concerning recruitment of employees and officers in the Department of Labour, Government of Chhattisgarh, this Court has no hesitation in considering the definition of the word department occurring in the Rules, 1966 for the purpose of appreciating the meaning of the word department, in the Rules, 1985. 20. In reaching to the above conclusion, this Court would profitably refer to the observation made by the Supreme Court in State through Narcotics Control Bureau v. Kulwant Singh, (2003) 9 SCC 193 , wherein it has been held thus: “23. The word department by its very nature, is not capable of a precise definition. Given its ordinary meaning in the context of governmental functions, it connotes a branch or division of government administration. For the sake of convenience the government work is divided subject wise or function wise, and each such division may be called a department. The word "department" is capable of a wider meaning as also a narrower meaning. The meaning of the word may differ having regard to the context in which it is used. Rule 2 of the Government of India (Allocation of Business) Rules 1961 provides-- "The business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to these rules (all of which are hereinafter referred to as departments)." 24. In the absence of any precise definition of the word department it must be given its natural and ordinary meaning, unless the legal context in which the word is used requires a different meaning.” 21. On a reading of the definition of the word 'department of the Government of Chhattisgarh' occurring in the Rules, 1966 it becomes clear that any establishment or organization of the Government is considered to be a department of Government of Chhattisgarh only when it is declared so by issuing gazette notification. The notification pointed out by the respondent No.3 is not a notification issued under Rule 2 (c) of the Rules, 1966. The notification pointed out by the respondent No.3 is not a notification issued under Rule 2 (c) of the Rules, 1966. It is a general notification as to what would be the subject matter for which policy shall be laid down by the department. It has not declared that the Dugdh Sangh will be treated as part of the department. 22. Even otherwise, there is no dispute about the fact that Dugdh Sangh is a Cooperative Society registered under the Chhattisgarh Cooperative Societies Act, 1960 and is governed by its own bye-laws. It has a Board of Directors and its affairs and business is of autonomous character having no control of the Government of Chhattisgarh. Even in the return filed by the State Government, it has not been stated that the Dugdh Sangh is a department of the State Government. 23. From the above discussion, the following can be carved out: (i) Respondent No.3 is an officer, being Assistant General Manager (Marketing) in Dugdh Sangh, which is a Cooperative Society and is not a department of the State Government. (ii) Under the Rules, 1985 the appointment by transfer or deputation on the post of DLC can be made by bringing any officer of any other department of the Government. (iii) Since the Dugdh Sangh is not the department of the State Government, the respondent No.3 is not eligible for appointment as DLC, as he is an usurper of the office of the DLC. 24. In view of the above, the respondent No.3 is ousted from the office of the DLC, Government of Chhattisgarh by issuing a writ of quo warranto. 25. As an upshot, the writ petition is allowed but with no order as to costs. 26. Learned counsel for the State shall inform about this order to the State Government today itself.