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2017 DIGILAW 300 (UTT)

Diwakar Chamoli v. State of Uttarakhand

2017-05-30

SUDHANSHU DHULIA

body2017
JUDGMENT : Sudhanshu Dhulia, J. 1. There are two petitioners before this Court, both are members of Badrinath Kedarnath Temple Committee (from hereinafter referred to as the “Committee”), which is a statutory committee created under the law for management of the holy Badrinath and Kedarnath shrines. The Committee is constituted under the Uttar Pradesh Shri Badrinath and Shri Kedarnath Temples Act, 1939 (from hereinafter referred to as the “Act”). 2. The Committee along with its President, Vice-President and office bearers of the Committee are constituted under Section 5 of the Act. Section 5 of the Act reads as under: “5. The Committee – (1) The administration and the governance of the Temple and the Temple fund shall vest in a committee which shall be comprised as follows: (a) Omitted (b) Two persons to be elected by the Hindu members of the Uttar Pradesh Legislative Assembly and one person to be elected by the Hindu members of the Uttar Pradesh Legislative Council; (c) One person residing in the district of Garhwal to be elected by the Hindu members of the Zila Parishad of that district; (d) One person residing in the district of Tehri Garhwal to be elected by the Hindu members of the Zila Parishad of that district’ (e) one person residing in the district of Chamoli to be elected by the Hindu members of the Zila Parishad of Chamoli and for so long as there is no Zila Parishad in Chamoli to be nominated by the Collector of that district; (f) one person residing in the district of Uttar Kashi to be elected by the Hindu members of the Zila Parishad to Uttar Kashi and for so long as there is no Zila Parishad in Uttar Kashi to be nominated by the Collector of that district; and (g) The President of the Committee and seven members to be nominated by the State Government. (2) The State Government may appoint any member of the Committee as Vice-President thereof. (2) The State Government may appoint any member of the Committee as Vice-President thereof. The Vice President shall exercise such powers as may, with the previous approval of the State Government, be delegated to him by the President; (3) The Constitution of the Committee shall be notified by the State Government in the official Gazette: Provided that the State Government may notify the Constitution of the Committee at any time after the President and not less than eight members of the Committee have been elected or nominated, as the case may be, and the Committee so constituted shall be deemed to be a constituted Committee. (4) No person who is subject to any disqualification referred to in sub-section (1) of section 10 shall be eligible for membership or for the office of the President or Vice-President of the Committee.” 3. The term of the office of the President and other members as well as the Committee of Management is for a period of three years as per Section 8 of the Act. Section 8 of the Act reads as under: “8. Terms of office of President and members – The President, the Vice President or any other member of the Committee shall, subject to the provisions of section 10 and 11, hold office for a term ending with the expiration of three years from the date of notification under sub-section (3) of section 5: Provided that the State Government may by notification in the Gazette, extend the term of the President, Vice-President and other members of the Committee, whether it has already expired or not, for a period not exceeding three months at a time and six months in the aggregate.” 4. Under Section 11 of the Act, the Committee can be dissolved or superseded by the State Government. Section 11 of the Act reads as under: “11. Dissolution and super session of Committee – (1) If in the opinion of the State Government the Committee is not competent to perform, or persistently makes default in performing the duties imposed on it under this Act, or exceeds or abuses its powers, the State Government may, after due enquiry, by notification dissolve or supersede the Committee and direct the constitution of another Committee, in accordance with the provisions of this Act. (2) Before issuing a notification under subsection (1) the State Government shall communicate to the Committee the grounds on which they propose to do so, fix a reasonable time for the Committee to show cause against the proposal, and consider its explanation or objections, if any. (2-A) Without prejudice to the power of the State Government under sub-section (1) the State Government may, on being satisfied that it is necessary in the interest of the Temple and its efficient management, by a notification dissolve, the Committee and direct the reconstitution of another Committee in accordance with the provisions of this Act. (3) Where a Committee is dissolved or superseded under this section the State Government shall appoint a person to perform the functions and exercise the powers of the Committee until the constitution of another Committee. Provided that so far as may be, the other Committee shall be constituted within a period of six months from the date of such dissolution or super session: Provided further that consequent upon the dissolution of the Committee by the State Government on June 3, 1986, the other Committee may be constituted by December 31, 1991. (4) The State Government may fix a remuneration for such officer, and the same shall be paid from the temple fund.” 5. The case of the petitioners before this Court is that the Committee itself was constituted in the year 2016 on 20.12.2016 when the members and office bearers of the Committee were constituted vide order dated 20.12.2016. The term of the Committee of Management is for a period of three years. All the same, in the recent Assembly elections, since the new political party has assumed powers, the Committee has been dissolved for wholly political reasons, vide order dated 01.04.2017 which has been passed by the Secretary to the Government of Uttarakhand, wherein it has been stated that in exercise of powers under Section 11 (2-A) of the Act the Committee is being dissolved and the concerned Secretary is being appointed as the Administrator. 6. The argument of the petitioners is that the provisions given under Section 11 (2-A) are clear and unambiguous. The State Government can dissolve a Committee and direct the reconstitution of another Committee but only “on being satisfied”, that it is necessary in the interest of the temple and efficient administration. The argument of the learned Senior Counsel for the petitioners, Mr. The State Government can dissolve a Committee and direct the reconstitution of another Committee but only “on being satisfied”, that it is necessary in the interest of the temple and efficient administration. The argument of the learned Senior Counsel for the petitioners, Mr. V.B.S. Negi would be that there is no satisfaction of the State Government on record and, hence, the order dated 01.04.2017 has been passed without any application of mind and therefore it is in violation of the statutory provisions contained under Section 11 (2-A) of the Act. 7. On the other hand, the learned Advocate General for the State Sri S.N. Babulkar assisted by learned Chief Standing Counsel Sri Paresh Tripathi has brought on record, by means of supplementary counter affidavit, certain notings of the file of the concerned Secretary, where reasons have been given for taking a decision for dissolution of the Committee, which is that the State Government had earlier inducted many members in the Committee in violation of Section 5 of Act. These members were included as special invitee whereas there was no such provision of special invitee being included in the Committee, etc. Learned Advocate General would further argue that the provisions as contained in Section 11 (2-A) have been complied with inasmuch as there has been a satisfaction on record which is a valid reason for dissolving the Committee. Admittedly the reasons have not been communicated to the President, Vice-Presidents or the members of the Committee, as that would not be a requirement since this has not been specifically stated in the provisions under Section 11 (2-A) of the Act. 8. In fact, the main thrust of the argument of the learned Advocate General is that there are two methods given under the law for dissolving a Committee. The first is contained in sub-sections (1) & (2) of Section 11 and the other is contained in Section 11 (2-A). Both are independent and different provisions. 8. In fact, the main thrust of the argument of the learned Advocate General is that there are two methods given under the law for dissolving a Committee. The first is contained in sub-sections (1) & (2) of Section 11 and the other is contained in Section 11 (2-A). Both are independent and different provisions. In the first provision i.e. under Section 11 (1) & (2) if in the opinion of the State Government the Committee is not competent to perform or has persistently made default in performing its duties or it has abused the power, then the State Government, after a due enquiry by a notification can dissolve or supersede the Committee and direct the reconstitution of another Committee but before doing so, the State Government must communicate the grounds to the Committee on which it proposes to take such an action i.e. action for dissolving the Committee. In other words, under the first method for dissolution of a Committee, principles of natural justice and fair play have to be adopted i.e. a notice and opportunity of hearing has to be given before dissolution of the Committee but under the second method which is contained in Section 11 (2-A) of the Act, there is no such provision. Therefore, the learned Advocate General would argue that in the present case it is the second method which has been adopted where there is no requirement to follow the principles of natural justice and fair play and there is nothing wrong in the same. 9. Having heard the learned Senior Counsel for the petitioners, Mr. V.B.S. Negi assisted by Mr. Vivek Shukla, Advocate and Mr. S.N. Babulkar, learned Advocate General of the State assisted by Mr. Paresh Tripathi, learned Chief Standing Counsel, this Court is of a considered view that although the principle of natural justice and fair play, as far as notice and opportunity of hearing is concerned, is not given in Section 11 (2-A) of the Act but even here the Legislature has been cautious enough to incorporate that a dissolution order can only be passed on satisfaction of the Government under Section 11 (2-A) of the Act. The Government must therefore record its satisfaction. The Government must therefore record its satisfaction. This satisfaction has to be recorded in the order itself as recording the reasons for dissolving the Committee if done on a note sheet or file and not communicated to the concerned persons solves no purpose. The purpose of recording the reason is that it enables the person concern to prepare the grounds of challenge, in case he has to challenge the order. Moreover, by now it is again settled that principles of natural justice and fair play are not merely the two principles of “bias” and “audi alterem partem” but the third principle would also be where an administrative authority is duty bound “to assign reasons”. Assigning reasons in the order is the third principle of Administrative Law. This being the third principle of natural justice and fair play, which has been specifically incorporated by the Legislature has clearly been violated. 10. Learned Advocate General, however, would argue that though recording of reasons is mandatory, but it is not mandatory to communicate the reasons to the concerned persons. He has relied upon the celebrated decision of Union of India and another v. Tulsiram Patel reported in (1985) 3 SCC 398 , in his favour. 11. All the same, firstly Tulsiram Patel’s case is on a different aspect altogether, where out of many issues before the Apex Court, one was when under Article 311 (2) (b) to the second proviso when a departmental inquiry has to be dispensed with, whether reasons have to be recorded and if so whether they have to be communicated to the concerned person or not. As regarding recording of reasons, the Hon’ble Apex Court has stated as under: “133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.” 12. This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.” 12. As regarding communication of the order, the learned Advocate General would cite the following observations made by Hon’ble Apex Court in para 135 of the Tulsiram Patel’s case: “It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons.” 13. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons.” 13. It is possible that in a given case communication of the reasons may not be necessary, but when the matter is before the Court, the Court can always ask the State to reveal the reasons as to why they were not communicated to the persons concerned. In the present case, the reasons assigned are that the State Government had inducted members in violation of law. In case this was so, such members could have been removed or at least even if the Committee was to be dissolved, such reasons could have been easily stated in the impugned order itself. Withholding of the reasons altogether from the petitioners is clearly in violation of principles of natural justice and fair play. 14. Another argument of the learned Advocate General is that even if the reasons have not been assigned that will not cause any prejudice to the petitioners. This argument is not tenable. Once it is made in the statute itself that the reasons have to be assigned before passing the order for dissolution of the Committee, it is not a question whether any prejudice has been caused to the petitioners or not. Admittedly prejudice has been caused in law to the petitioners inasmuch as they are now not in a position to rebut or counter the grounds on which such dissolution has been made. This is clearly in violation of principles of natural justice and fair play. 15. In view of the above, the order impugned cannot be allowed to sustain. Writ petition is allowed. Order dated 01.04.2017 is hereby quashed and set aside. 16. Having made the above determination, it is made clear that an appropriate action can always be taken by the State Government, but only in accordance with law.