9911796707
TMI Blog1972 (11) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment issued a notice under Section 38 of the Road Transport Corporation Act, 1950 (Central Act LXIV of 1950) to the Rajasthan State Road Transport Corporation on 18th April, 1972 to show cause why it should not be superseded; AND whereas the State Government after considering the explanation and objections of the Corporation is of the opinion that the Corporation is unable to perform and has persistently made default in the performance of the duties imposed on it by or under the provision of the Road Transport Corporations Act and has further abused its powers. Now, therefore, in exercise of the powers conferred upon it under Sub-section (1) of Section 38 of the Road Transport Corporations Act, 1950 (Central Act LXIV of 1950) the State Government with the approval of the Central Government, hereby supersedes the Rajasthan State Road Transport Corporation for a period of six months. By Order of Governor Sd/- Ram Singh Commissioner for Home Affairs, & Secretary to Government." 2. In exercise of its powers under Section 3 of the Road Transport Corporations Act, 1950 (Act No. LXIV of 1950) the Government of Rajasthan established a Road Transport Corporation some time i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g his tenure of office as Chairman the Corporation greatly improved its financial position and working, yet by a notice dated 18-4-72 the Government of Rajasthan called upon the Corporation to show cause why it should not be superseded. The notice Annex. 3 runs as follows:-- "GOVERNMENT OF RAJASTHAN Home (Gr. VII) Department No. F. 7. (3) (3) Pari/72, Dated 18-4-72 NOTICE Whereas the State Government, on grounds specified in the Annexure hereto, is of opinion that the Rajasthan State Road Transport Corporation is unable to perform and has persistently made default in the performance of the duties imposed on it by or under the Road Transport Corporations Act, 1950 (Central Act LXIV of 1950) and further has abused its powers: And whereas the State Government, on the basis of these grounds, proposes to supersede the said Corporation for a period of six months. The State Government, therefore, hereby requires the Rajasthan State Road Transport Corporation to show cause within 7 days from the date of receipt of this notice why it should not be superseded. Notice issued on this the 18th day of April, 1972. By Order of Governor Sd/- R.S. Kumat Deputy Secretary to Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solving these problems for the following reasons: (i) The meeting of the Corporation which was fixed for 25th February, 1972 was cancelled without any valid reason, (ii) Even in the special meeting of the Corporation held on 28th February, 1972 no definite decision to tackle with the situation was taken. (iii) Despite the reported failure of mediation efforts made by the Labour Commissioner and submission of the report of the Sub-Committee for rationalisation of the Pay Scales, the Chairman did not show any readiness to convene even though by that time the strike period had entered its 13th day and in view of this inaction on the part of the Chairman, the Corporation failed to take any effective steps to meet the grave situation which resulted in heavy losses to Corporation and great inconvenience to the general public. (iv) In view of the fact deteriorating situation a procedure of calling a requisitioned meeting had to be resorted to. Even this requisitioned meeting was not convened expeditiously. (b) The Corporation was compelled to withdraw the powers of its Chairman by a formal resolution which is indicative of the failure of the Corporation to administer its own af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 38 of the Act, with the previous approval of the Central Government superseded the Corporation for a period of six months by the notification dated 20-5-72, already reproduced above. By another notification dated 20-5-72 (Annex. 6) the Government of Rajasthan directed that all the powers and duties which may be exercised or performed by or on behalf of the Corporation would during the period of supersession be exercised and performed by Shri Raj Kumar Sastri, I. A. S. 6. The main points argued at length by the learned counsel for the petitioner in support of the petitions are as follows:-- (1) Since as provided under Section 36 of the Act the State Government had not appointed any person to make enquiries into the activities of the Corporation and to report to the State Government the result of such enquiry, the State Government had no material before it to form an opinion that the Corporation is unable to perform or has persistently made default in the performance of the duties imposed upon it or has exceeded or abused its powers as envisaged by Section 38 of the Act, and consequently the order of supersession is bad. (2) That the impugned order is mala fide on the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. It has been urged by him that the impugned order was voidable and not a nullity and even though the petitioner was Chairman of the Corporation at the time of its supersession but that does not give him any right to complain independently of the Corporation. It has been argued that the petitioner has nowhere shown that he is representing the Corporation or filing this petition on its behalf. In support of his contention the learned Advocate General placed strong reliance on Alfred Thangarajah Durayappah v. W.J. Fernando, 1967-2 AC 337; K. Narasimha v. State of A. P. 1970 1 Andh WR 322; Nazla Rob v. Commissioner of Wakf, West Bengal, AIR 1972 Cal 389; Peru Paltu Gho.si v. Asst. Custodian, Mathura, AIR 1961 All 299; Charanjit Lal v. Union of India, AIR 1951 SC 41 and Ayodhya Prasad v. State of U. P., AIR 1968 SC 1344. Another ground urged in this connection is that the Corporation or its members have not been joined as parties to the case. On the other hand, the learned counsel for the petitioner has argued that the impugned order is a nullity, and, therefore, the petitioner is entitled to maintain the action. It has also been contended by him that the petitioner is not altogeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the verdict in Durayappah's case (1967) 2 AC 337 dismissed the writ application as not maintainable. 11. In AIR 1972 Cal 389 the petitioner was the President of an Administrative Committee appointed in respect of Hazi Belayet Hussain's Kstate of Arna. The Administrative Committee was dissolved by the Commissioner of Wakfs. The petitioner challenged propriety and validity of the order of the Commissioner by an application under Article 226 of the Constitution. It was held that the Administrative Committee had no vested right as such in the wakf estate, and consequently the petitioner could not maintain the petition. 12. In AIR 1968 SC 1344 their Lordships distinguished the earlier case decided by their Lordships: Ram Dial v. State of Punjab, AIR 1965 SC 1518 and observed that in Ram Dial's case the Punjab Municipality Act which was under consideration contained two provisions for the removal of a Pramukh in the public interest: by one provision he was entitled to a hearing and by the other not, and, therefore, the Court held that as it was open to choose one method rather than the other and that there was room for arbitrary action, but as against that with refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, unless the question of the existence of any mala fide intention is determined. It is of course well established that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution, Reference may usefully be made to the observations of His Lordship Kania, C.J., in State of Orissa v. Madan Gopal, AIR 1952 SC 12: "The language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore, the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article." 15. It is obvious that in the present case the petitioner's right to act as Chair-man of the Corporation has been undoubtedly infringed. He is being deprived of pecuniary benefits. In these circumstances he cannot be said to be a busy body at whose instance the validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whether a third party can challenge a void Governmental act not aimed primarily at himself is governed by settled rules which vary according to remedy sought. These rules have long been in operation without any such question as 'void or voidable' being thought relevant"; (c) "It is erroneous to suppose that an unlawful administrative act can have legal effect only if it is called voidable as opposed to void. If not challenged in law, or if the Court will not grant a remedy under the usual rules, a void act may have the effect of a valid act, since it cannot be opposed." (83 L Q R 529); aud (d) "The Courts have always held that failure to give a fair hearing makes (no decision void, not voidable," (84 L Q R115.) In State of Orissa v. Binapani Dei, AIR 1967 SC 1269 at p. 1271, a case which is in line with the decision of the House of Lords in 1964 AC 40 (supra), the Supreme Court held that a Governmental order made without following the requirements of natural justice was a nullity. In AIR 1962 SC 1694 at p. 1701, it was held that an administrative order, which could be made only "for reasons to be recorded," would be void if no reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates an enquiry into the merits of the petition. We may point out here that the learned Advocate-General strongly pressed upon us that the petition should be dismissed on the short ground that the action is not maintainable by the petitioner, and the petition need not be examined at all on merits. In view of what we have stated above we are unable to accede to the submission made by the learned Advocate-General. It may not be out of place here to mention that the petitioner seeks to show that the order of supersession is invalid and null and void. Whether in the circumstances of the present case we would be inclined to interfere at the instance of the petitioner is a different question which we would answer later. Suffice it to say that the petitioner is not liable to be nonsuited on the short ground that he cannot maintain this action. 19. We, therefore, propose to deal with the objections raised by the petitioner to the impugned order on merits. 20. The first objection of the petitioner is that it was obligatory for the State Government to have first inquired into the working and the activities of the Corporation and then to have acted after receiving the result of such inqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit, comply with the order of the State Government. (3) Every notification issued under this section together with a report on the circumstances leading to its issue shall be laid before the Legislature of the State, as soon as may be, after it is issued. 38. Power to supersede a Corporation--(1) If the State Government is of opinion that a Corporation established by that Government is unable to perform or has persistently made default in the performance of the duties imposed on it by or under the provisions of this Act or has exceeded or abused its powers, the State Government may, with, the previous approval of the Central Government, by notification in the Official Gazette, supersede the Corporation for such period as may be specified in the notification: Provided that before issuing a notification under this sub-section the State Government shall give a reasonable time to the Corporation to show cause why it should not be superseded and shall consider the explanation and objections, if any, of the Corporation. (2) Upon the publication of a notification under Sub-section (1) superseding a Corporation- (a) All the members of the Corporation shall, as tram the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion that the power under Section 38 is not governed by Section 36 of the Act and the impugned order cannot be struck down because the State Government did not get any inquiry made against the Corporation under Section 36 of the Act. 23. Then we come to the next question whether the impugned order is liable to be struck down as being mala fide? It is no doubt established that interference by the Court will be warranted by law when the executive authority is not exercising its powers bona fide for the purposes contemplated by law or is influenced by extraneous and irrelevant considerations. The petitioner's allegation in this connection is contained in para (ay) of the writ petition (at page 107). It is submitted that Shri Barkatullah Khan, Chief Minister of Rajasthan, is hostile to the petitioner because during the period 1957-67 when the petitioner was a member of the Rajasthan Legislative Assembly, on a number of occasions the petitioner criticised the conduct of Shri Barkatullah Khan who was then a Minister in the Rajasthan State Cabinet. It is averred that the petitioner condemned the purchase of wheelbarrows by the Local Self-Government Department of the Government of Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an as Chairman or on account of any hostility against the petitioner. In face of this denial of Shri Barkatullah Khan the ground taken by the petitioner that the supersession was motivated by ulterior considerations also fails and the objection of the petitioner that the impugned order is liable to be struck down on the ground of mala fides must be overruled. 26. The next point urged by the learned counsel for the petitioner is that the power of supersession conferred upon the State Government under Section 38 is of a quasi judicial nature and since the impugned order is not a speaking order and does not record reasons, it is invalid. In this connection it has also been argued that the impugned order was passed after the receipt of the inquiry report from the Home Commissioner Ram Singh and since a copy of the report made by Shri Ram Singh was not made available to the Corporation, the order is void for that reason also. A lot of case law has been placed before us by learned counsel on both the sides on the question as to what is a quasi judicial function? It has been an endeavour of the petitioner to show by reference to case law that since there is a provision under Section 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been fulfilled. 28. The contention of the petitioner however is that the impugned notification Annex. 5 does not record the reasons for supersession but it merely produces the language of the section. In this connection some cases were cited before us where the impugned order was struck down on the ground that it did not contain the reasons for making the order and the direct authority relied in this connection is MANU/MP/0029/1970. In our opinion that authority has no application to the present case inasmuch as in that case Section 422 of the Madhya Pradesh Municipal Corporation Act. 1956 under which the order of supersession was passed itself provided that "such order shall be published in the Gazette and the reasons for making it shall be stated therein." A bare look at Section 38 of the Act relevant to the present case shows that there is no provision for recording reasons in the notification. At this stage we may also point out that even though the notification does not record the reasons, the same have been given in detail in the statement of Grounds supplied to the Corporation along with the show cause notice and also in the notings prepared by the Deputy Secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment was bound to supply a copy of the inquiry report to the petitioner. There is indeed a serious objection raised by the learned Advocate General to the petitioner being permitted to argue this point as this point was not taken in the writ petition. The learned counsel for the petitioner conceded that such an objection had not been taken in the petition, but he has urged that the same has been taken in the rejoinder and the facts giving rise to this objection have been revealed by the State Government itself in its reply to the writ petition. Our attention was invited to the following paragraph contained in the reply of the State of Rajasthan (at Page 168 of the Paper Book). "That while all this was being looked into, the Home Commissioner also visited the Corporation Office and had discussions with the General Manager and two members of the Corporation. As a result of this he was of the opinion that the conditions in the Corporation had become so chaotic that normal functioning of the Corporation had become difficult. There was complete indiscipline among the staff and the Corporation was running under heavy losses. A large number of new buses were lying unutilised. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Shri Ram Singh, Commissioner for Home Affairs and Secretary to the Government of Rajasthan in the Home Department dated 26-10-1972 have been filed to clarify the position on behalf of the Government. At one stage the learned counsel for the petitioner raised an objection to these affidavits being admitted but later on he did not press his objection and himself referred to them in the course of arguments, and thereby gave an impression that he had no objection to these affidavits being looked into by us. That apart, in the circumstances we are inclined to admit these affidavits and have taken them on record. 31. After reading the relevant averments in the reply as well as the affidavit of Shri Ram Singh we are convinced that no preliminary inquiry was ordered by the Government before passing the impugned order nor any report was submitted by the Home Commissioner. It appears to us as stated by Shri Ram Singh that he happened to visit the Corporation Office in connection with the meeting of a committee of the Corporation and made a note of Ms impressions and the discussions, he had with some members of the Corporation. He has further clarified that the question regarding inquiry i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsible to Parliament like other Ministers, He is responsible not only for what he himself does but for all that is done in his department The volume of work entrusted to him is very great and he cannot do the great, bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff." 34. The above observations. In our opinion, can aptly be applied to the present case. On the explanation to the show cause having been submitted by the Corporation a detailed note with respect to the grounds supplied with the notice was prepared by the Dy. Secretary, Home Department of the Government. The matter was then laid before the Law Department and the Legal Remembrancer agreed to the views expressed by the Dy. Secretary. Thereafter the Home Commissioner and the Chief Secretary also went into the matter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it was a fit case wherein the necessary approval may be accorded- It has also been stated by Shri Narayanan that in this connection the views of the Ministry of Railway were also sought and they also concurred and had no objection to the State Government's proposal for the supersession of the Corporation for a period of six months. 37. An argument was made by the learned counsel for the petitioner that it has nowhere been stated in the affidavit of Shri Narayanan as to which particular officer had examined the matter and which had accorded the sanction. It is important to note in this connection that no such objection was taken by the petitioner in his writ petition that the approval had not been given by a competent authority. If any such objection had been taken then only the opposite party would have been bound to show that the competent person had accorded the sanction. It is trite that there is a presumption of legality attached to official acts and in absence of any express challenge in the writ petition as to the approval being by not a competent person we cannot penalise the State Government or the Central Government for having not disclosed the particular officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departments to the charge of a Minister provided that nothing in this rule shall prevent the assigning of one department to the charge of more than one Minister. In the first schedule 'the State Owned Motor Transport' appears at Item No, 13, under the Head (iii) Home Department. We are told by the learned Advocate General, and a Gazette Notification was also shown to us that the State Owned Motor Transport Was assigned to the charge of Shri Hardeo Joshi, though the Home Department was in the charge of the Chief Minister. This according to us, could legitimately be done under the proviso to Rule 5 referred to above. 40. Article 166 provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. It further provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. In view of this provision also it is clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (at page 77 of the writ petition) that about 100 new vehicles are lying idle at present. Similarly it is not controverted that the Corporation failed to implement the third party liability Insurance Fund Rules, inasmuch as it is admitted at page 77 of the writ petition by the Corporation that in many cases the reports were not regularly made to the District Magistrate as contemplated by the Rules. It is also incontrovertible that the employees of the Corporation went on strike from 22-2-72 and the strike lasted till 27-3-1972. It is not necessary to multiply the various grounds relied upon by the State Government as if not all most of them are not controverted. It is true that the petitioner has come forward with an explanation with respect to each of the grounds and has tried to justify his stand, but it was for the State Government, to form an opinion in the matter. After having heard learned counsel for the parties at length and after having applied our own scrutiny to the several grounds relied upon by the State Government in support of its order of supersession of the Corporation we are of opinion that the Impugned order is not liable to be quashed on the ground of mala fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
