Skip to content


S. Jairaj Vs. the Government of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 4094 of 1981
Judge
Reported inAIR1982AP364
ActsAndhra Pradesh Khadi and Village Industries Board Act, 1959 - Sections 3, 3(2), 4, 5 and 5(2); Andhra Pradesh Khadi and Village Industries Board (Amendment) Act, 1981 - Sections 21
AppellantS. Jairaj
RespondentThe Government of Andhra Pradesh and anr.
Appellant AdvocateG. Veera Reddy, Adv.
Respondent AdvocateGovt. Pleader for Home and ;M. Venkata Subbarao, Adv.
Excerpt:
.....pradesh khadi and village industries board act, 1959 and section 21 of andhra pradesh khadi and village industries board (amendment) act, 1959 - petitioner was member of andhra pradesh khadi and village industries board - subsequently act was amended providing for new methods for various appointments to board - petitioner removed from his post vide government order (go) - validity of go questioned - act did not provided for cutting down term of membership of existing members - act provided for continuance of existing members until new members were appointed under section 21 of amendment act - new members not appointed - removing one non-official member out of five cannot be construed as appointment of other four - held, petitioner had right to continue as member of board by virtue of..........and village industries board was constituted under sec. 3 (1) of the andhra pradesh khadi and village industries board act, being act no. iv of 1959. the board is a body-corporate having perpetual succession and a common seal, and possesses all the powers which go with such incorporation. until the recent amendment, the board consisted of not more than 7 members to be appointed by the government, of whom two were to be officials - one representing the industries department and the other representing the finance department. the five non-official members were also nominated by the government, one of them as the chairman, one of the non-official members was also to be elected as secretary to the board. according to sec. 5, prior to its amendment, ' a member of the board shall hold.....
Judgment:
ORDER

1. Andhra Pradesh Khadi and Village Industries Board was constituted under Sec. 3 (1) of the Andhra Pradesh Khadi and Village Industries Board Act, being Act No. IV of 1959. The Board is a body-corporate having perpetual succession and a common seal, and possesses all the powers which go with such incorporation. Until the recent amendment, the Board consisted of not more than 7 members to be appointed by the Government, of whom two were to be officials - one representing the Industries Department and the other representing the Finance Department. The five non-official members were also nominated by the Government, one of them as the Chairman, One of the non-official members was also to be elected as Secretary to the Board. According to Sec. 5, prior to its amendment, ' A member of the Board shall hold office for a period of three years from the date of his appointment, but may resign his office earlier by giving notice in writing to the Government, and shall cease to be a member on the resignation being accepted by the Government.'

2. Because of the several irregularities in the working of the Board which came to light, Committees were appointed to investigate the causes of its unsatisfactory functioning, and for suggesting measures to improve its working. In pursuance of the recommendations so made, the Governor of Andhra Pradesh issued Ordinance NO. VI of 1981, on 4th June 1981. This Ordinance, inter alia, amended Secs. 2, 3, 4 and 5 in the following manner: the post of Secretary was abolished and, in its place, the post of Vice-Chairman was created. The composition of the Board was also changed. The Minister in charges of Khadi and Village Industries in the State was to be the ex officio member and Chairman of the Board and, besides him, the Board was to consist of eight members, four of whom were to be the officers of the Government, specified in Sec. 3 of the Ordinance. Sub-sec. (3) of Sec. 3 provided that the non-official members shall also have to be appointed by the Government. Sub-sec. (4) empowered the Chairman to nominate one of the non-Official members, to be the Vice-Chairman. The existing Sec. 5 was numbered as sub-sec. (1) and, in its place, sub-sec. (2) was introduced, empowering the Government to reduce the term of office of any member before the expiry of his term of office, without giving notice to such member, and appoint any other person as member in his place. Sec. 21 provided for the continuance of the existing members. Since the Ordinance has been replaced by Act 30 of 1981, called 'Andhra Pradesh Khadi and Village Industries Board (Amendment) Act, 1981,' the provisions whereof are identical with the provisions of the Ordinance, I would set out the provisions of the Act which are relevant for the present purpose.

3. The newly substituted sub-sections (2), (3), and (4) of Sec. 3 read as follows :-

'(2) The Board shall consist of the following members, namely :-

(a) the Minister in charge of Khadi and Village Industries in the State, ex officio member, who shall also be the Chairman:

(b) not more than eight persons appointed by the Government, of whom four members shall be the following officials, namely :-

(i) the Additional Director of Industries, Andhra Pradesh in charge of Khadi and Village Industries;

(ii) the Joint Secretary or Deputy Secretary to Government in the Industries and Commerce Department, in charge of Khadi and Village Industries;

(iii) the Joint Secretary or Deputy Secretary to Government in the Finance and Planning (Finance-Wing) Department, in charge of Khadi and Village industries;

(iv) the Chief Executive Officer.

(3) The Government shall appoint such non-officials to be members, as have shown an active interest in the production and development of Khadi or in the development of village industries.

(4) The Chairman shall nominate a member, from among the non-official members to be the Vice-Chairman for such term as he deems fit. The Vice-Chairman shall exercise such powers and perform such functions as may be prescribed or as may be delegated to him by the Board.'

After the amendment, the two sub-sections of Sec. 5 read as follows:-

'5. (1) : a member of the Board shall hold office for a period of three years from the date of his appointment, but may resign his office earlier by giving notice in writing to the Government, and shall cease to be a member on the resignation being accepted by the Government.

(2) Notwithstanding anything in sub-sec. (1), the Government may reduce the term of office of any member before the expiry of his term of office, without giving any notice to such member, and appoint any other person in his place.'

Section 21 reads to the following effect :-

'21. Not withstanding anything in the principal Act, the members of the board holding offices at the commencement of this Act shall continue to hold their offices until new members are appointed under the provisions of Sec. 3 of the principal Act as amended by this Act, and enter upon their offices'.

It may be mentioned that the Act has been brought into force with effect from 4th June , 1981 i.e. , the date on which Ordinance No. VI of 1981 was issued.

4. Coming to the facts of the present case, the petitioner - a former M. L.A. - and four other non-officials and two officials were appointed by the Government as members of the Board, under G.O. Ms. No. 515, dated 7-10-1980. This appointment was made under S. 3 (2) of the Act, as it then stood. After the issuance of the Ordinance, the Government issued G. O. Ms. No. 347, dated 5-6-1981, containing three statutory notifications. By the first notification contained in the Go O., it was declared that the Minister in charge of Khadi and Village Industries, who is also the ex officio member of the Board, shall be the Chairman of the said Board with effect on and from 4th June, 1981. Consequently, Sri B. Rama Subba Reddy, M. L. A., who was the Chairman until then, was declared to have ceased to be the Chairman. Under the second notification contained in the said G. O., it was declared that, inasmuch as Sec. 4 of the Act has been deleted by the Ordinance, Sri S. Jayaraj (petitioner herein), Ex-M. L. A., shall cease to be the Secretary of the board with effect on and from 4th June, 1981. By the third notification contained in the G. O., the petitioner's membership was terminated. Since this is the relevant notification for the purpose of the writ petition, it would be appropriate to set it out in full :-

NOTIFICATION-III.

Whereas Sri. S. Jayaraj, Ex-M. L. A., has been a non-official member and Secretary of the Andhra Pradesh Khadi and Village Industries Board, immediately before the commencement of the Andhra Pradesh Khadi and Village Industries Board (Amendment) Ordinance, 1981 (Andhra Pradesh Ordinance 6 of 1981) :-

And whereas by virtue of sub-sec. (20 of Sec. 3 of the Andhra Pradesh Khadi and Village Industries Board Act, 1958, as amended by Sec. 3 of the said Ordinance, out of eight persons to be appointed by the Government to the Board, four members shall be official members;

And whereas under sub-section (2) of Sec. 3 of the Act, as amended by the said Ordinance, non-official members exceeding four shall not continue to be in the Board;

And whereas Sec. 4 of the said Act relating to the Secretary of the Board has been omitted by the said Ordinance;

Now, therefore, in exercise of the powers conferred by sub-sec, (2) of Section 5 of the Andhra Pradesh Khadi and Village Industries Board Act, 1958 as amended by the said Ordinance the Governor of Andhra Pradesh hereby reduces the term of office of Sri S. Jayaraj, member such that his term of service expires with immediate effect.'

5. In this Writ Petition, the petitioner is calling in question the validity of the said G. O. Sri G. Veera Reddy, the learned counsel for the petitioner, raised two contentions before me: (1) that by virtue of Sec. 21 of the Act, the petitioner continues to hold the office till new members are appointed under Sec. 3 of the Act, as amended by the Amendment Act, and they enter upon their offices. There has been no such appointment of members under Sec. 3, nor have they entered upon their offices. If so, the petitioner's membership cannot cease. Sub-sec. (2) of Sec. 5 introduced by the Amendment Act, cannot be resorted to for curtailing the term of the petitioner, inasmuch as no new member is appointed in the petitioner's place, nor is the impugned action one contemplated by the said sub-section. Further, Sec. 5 (2) is unconstitutional, being inherently discriminatory and arbitrary, inasmuch as it confers on unguided and uncanalized power on the Government to curtail the term of office of any member, without notice; and (ii) that, the petitioner has been discriminated against, inasmuch as, out of five non-official members, he was picked up for being dropped. It is not shown in what manner, and for what reasons, the petitioner was picked up for being dropped.

6. On the other had, the learned Government pleader appearing for the Government, and Sri M. Venkata Subbarao, appearing for the Board, justified the inpugned action as fully warranted by the Amendment Act; and in particular, sub-sec. (2) of Sec. 5. They submitted that the impugned G. O., in effect, brings about the reconstitution of the Board. According to them, what was done, in effect, was to appoint new members to the Board under Sec. 3 of the principal Act, as amended by the Amendment Act. The learned Government Pleader further explained that, inasmuch as, out of five-non-official members, four were M. L. As. and the petitioner alone was a non-M. L. A., he was chosen for being dropped. His contention is that, in law, the impugned action is unobjectionable.

7. For appreciating the validity of the impugned notification, it is necessary to keep certain aspects in mind. First among them is that, neither the Ordinance, which came into force on 4th June 1981, nor the Amendment Act, which has been given retrospective effect from 4-6-1981, says that the existing members of the Board shall forthwith cease to be the members. There is also no provision which says that their term of office is cut down to the tenure already served. On the contrary, s. 21 expressly declares that the present members of the Board, holding the office at the commencement of the Ordinance/Act 'shall continue to hold their offices until new members are appointed under the provisions of Sec. 3 of the Principal Act, as amended by this Act, and enter upon their offices.' The second aspect to be borne in mind is that, the Ordinance or the Amendment Act does not, by itself, bring about the appointment of new members. It only empowers the Government to appoint them. The Government has to appoint eight members, of whom four have to be the specified officials, and the other four-non-officials. It is true that the Minister in charge of the Khadi and Village Industries in the State is made the exofficio member and Chairman of the Board, by force of the ordinance/Amendment Act itself; but this, in the scheme of things can come into being only when new members are appointed under Sec. 3 of the Act, as amended by the Ordinance/Amendment Act. The third relevant aspect is that, there has been no appointment of new members, as contemplated by Sec. 21 of the Act. It must be remembered that, even the officials designated in sub-sec. (2) of Sec. 3, as introduced by the Amendment Act, have to be 'appointed by the Government,' just as the four non-official members have to be appointed by the Government, under sub-sec. (3). There has been no such appointment, at any rate of non-official members.

8. Now what has been done under the three notifications contained in G. O. Ms. No. 347, which was issued on the next day of the promulgation of the Ordinance, is this; the Minister in charge of Khadi and Village Industries, was declared as the ex officio member and Chairman of the board, in place of the existing Chairman. The post of Secretary was abolished, because Sec. 4 of the Act has been deleted. Thirdly, inasmuch as, according to the Amendment Act, the non-officials should only be four, the Government dropped one of the five existing non-official members, namely, the petitioner herein, on the ground that he is the only non-M. L. A., among the five non-official members. This carries the assumption that the four officials specified in sub-sec. (20 of S. 3 automatically become the members; because it is not brought to my notice that any separate notification has been issued appointing the four designated officers as members of the Board. In other words, though the Ordinance, or the Act, does not provide for cutting down the term of membership of the existing members, including its Chairman and Secretary and indeed expressly provides for the continuance of the existing members until new members are appointed under Sec. 3 and they enter upon their offices - the G. O., in an indirect way, seeks to bring about the reconstitution of the Board, or what may be called re-composition of the Board. In my opinion, the impugned action is violative of Sec. 21 of the Ordinance/amendment Act. The existing members of the Board have a right to continue to hold the office 'until new members are appointed under the provisions of Sec. 3 of the Principal Act, as amended by this Act, and enter upon their offices'. Admittedly, no such new members were appointed. Dropping one, out of five non-official members, cannot be construed or understood as appointment of the remaining four as new members, under Sec. 3 of the Act, as amended by the Ordinance/Amendment Act. It must be remembered that both under the original Act, as well as the Amendment Act, the term of a member is three years. The term of three years of the remaining four members cannot be said to have commenced on 5-6-1981, because they were not appointed as members on that date. Their term had commenced on 7-10-1980 when they, along with the petitioner and two other official-members, were appointed as members of the Board. Similarly, the four official members also have not been appointed by any notification or proceeding issued under sub-sec. (2) of Sec. 3, as introduced by the Ordinance/amendment Act.

9. Strong reliance is placed by the counsel for the respondents upon sub-sec. (2) of Sec. 5, to sustain the impugned G. O. Indeed, the impugned notification expressly claims to have been issued under sub-sec. (2) of Sec. 5. It is, therefore, necessary to examine whether the said prevision warrants and justifies the impugned action.

10. Read in its proper context, sub-sec 920 merely empowers the Government to substitute a member on the Board, at any time, without giving any reasons, Sub-sec. (1) provides that the term of office of a member shall be three years while sub-sec. (2) empowers the Government to reduce the term of a member at any time, without giving any reasons, and appoint another person in his place. It must be noticed that sub-sec. (2) of Sec. 5 is not a transitory provision like Sec. 21. It is a permanent feature of the Act, unlike Sec. 21, which is merely a transitory provision. Now, in this case, no other person has been appointed in the place of the petitioner and, therefore, sub-sec. (2) can have no application. Counsel for the respondents argued that the word 'and' in sub-sec. (2) should be read as 'or.' In other words, the contention is that the power to reduce the term of office of a member and the power to appoint any other person in his place, may be read distinctively. I see no reason to bend the provision in Sec. 5 92) merely to uphold the impugned action of the Government. In any event, one must read the power under sub-sec. (2) of Sec. 5 and the provision in Sec. 21 in their proper on text and if so read, it would be clear that until the new members are appointed under Sec. 3 of the principal Act, as amended by the Amendment Act, and they enter upon their offices, the previous members continue in their office. Admittedly, no such new members have been appointed under Sec. 3 of the Principal Act, as amended by the Amendment Act, nor have any such members entered upon their offices. If so, the petitioner has a right to continue in his office by virtue of Sec. 21, and that right cannot be defeated by resorting to Sec. 5 (2). In so far as the continuance of the membership of the existing members is concerned, it is Sec. 21 that prevails and their term can be put an end to only by taking action in terms of Sec. 21, i.e., by appointing new members under Sec. 3 of the principal Act as amended by the Amendment Act and in no other manner. The indirect and round about method by which the said object is sought to be achieved is invalid and ineffective in law.

11. In view of my conclusion on the first question, it is not necessary for me to express any opinion on the second contention urged by Mr. Veera Reddy. Once it is held that the impugned actions not relatable to, and cannot be sustained by relying upon Sec. 5 (2) of the Act, it is unnecessary to enquire into the question whether the picking out of the petitioner for being dropped, is arbitrary. For the same reason, it is equally unnecessary to consider the constitutional validity of Sec. 5 (2) of the Act.

12. It is not necessary for the purpose of the present writ petition to decide any other question except the petitioner's right to continue as a member of the board by virtue of Section 21. Counsel for the petitioner did not also press the relief in so far as the post of Secretary held by the petitioner is concerned, probably for the reason that the post itself has been abolished. I need not, therefore, express any opinion whether the post of Secretary continues until the new members are appointed and/or, whether the petitioner is entitled to hold that post.

13. The writ petition is, accordingly, allowed and it declared that the petitioner continues to be the member of the Andhra Pradesh Khadi and Village Industries Board, and that he shall continue to hold the said office until new members are appointed under Sec. 3 of the Andhra Pradesh Khadi and Village Industries Board Act, as amended by the Andhra Pradesh Khadi and Village Industries Board (Amendment) Act, 1981. Notification No. III contained in G. O. Ms. 347, dated 5-6-1981 is, accordingly, declared to be incompetent and void. In the circumstances of the case, there shall be no order as to costs. Advocate's fee Rs. 150/-.

Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //