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Laxmi Chand Agarwal Vs. the State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2103 of 1959
Judge
Reported inAIR1962All117
ActsConstitution of India - Article 226; Uttar Pradesh Municipalities Act, 1916 - Sections 58, 69A and 69A(4)
AppellantLaxmi Chand Agarwal
RespondentThe State of Uttar Pradesh and anr.
Appellant AdvocateS.N. Kacker, ;B.D. Agarwal and ;S.S. Bhatnagar, Advs.
Respondent AdvocateS.C. Khare, Adv. and ;Shambhu Pd., Standing Counsel
DispositionPetition dismissed
Excerpt:
.....ac 508 a fullbench of the madras high court, in the matter of hayles, (s) air 1955 mad 1 held that it is well settled that when a statute specifically provides for the exercise of a power by a named authority, the ambit and location of that power is thereafter tobe sought within the limits prescribed by that statute. section 69-a clearly provides that the president has to submit the record and his recommendations either to the state government or to the board and the ultimate decision has got to be taken by the authority to whom it has been submitted. in my judgment this submission is also not well founded the power to hold an enquiry was not subject to the rules. it was only the manner in which the enquiry was to be conducted which was to be governed by the ruler and the right to..........after completing the enquiry, has submitted the record of the case with his recommendations to the state government before whom the matter is pending at present. the state government has issued a notice calling upon the petitioner to show cause why he should not be dismissed from service. on these facts the petitioner has came to this court and has prayed for the issue of a writ ofcertiorari quashing the proceedings of enquiry including the charge sheet. there is also a prayer for the issue of a writ of prohibition commanding the state government not to proceed against the petitioner on the basis of the recommendations of sri mittal.2. i have heard mr. s. n. kakkar for the petitioner and mr. s. c. khare and the learned senior standing counsel mr. shambhu prasad for the respondents. mr......
Judgment:

Jagdish Sahai, J.

1. The petitioner Laxmi Chand Agarwal is the Executive Officer of the Municipal Board, Hapur (hereinafter referred to as the Board), having been appointed to that post in the year 1931. Sri K. C. Mittal was the President of the Board in January, 1958. On 23rd of November, 1958, Sri Mittal served on the petitioner a charge sheet and started proceedings against him under Section 69-A of the U. P. Municipalities Act (hereinafter called the Act). The petitioner did not participate in the enquiry held against him, and Sri Mittal, after completing the enquiry, has submitted the record of the case with his recommendations to the State Government before whom the matter is pending at present. The State Government has issued a notice calling upon the petitioner to show cause why he should not be dismissed from service. On these facts the petitioner has came to this Court and has prayed for the issue of a writ ofcertiorari quashing the proceedings of enquiry including the charge sheet. There is also a prayer for the issue of a writ of prohibition commanding the State Government not to proceed against the petitioner on the basis of the recommendations of Sri Mittal.

2. I have heard Mr. S. N. Kakkar for the petitioner and Mr. S. C. Khare and the learned Senior Standing Counsel Mr. Shambhu Prasad for the respondents. Mr. Kakkar has made only one submission before me and it is that there is Overwhelming evidence to show that Sri K. C. Mittal had a bias against and was hostile to the petitioner and consequently, according to the principles of natural justice, he was incompetent to hold an enquiry against the petitioner. No other submission has been made before me.

3. Counter and rejoinder affidavits have been filed in the case. The petitioner has made a very large number of allegations with a view to show that Sri K. C. Mittal was biased against him. The reason why according to the petitioner Sri K. C. Mittal was very displeased with him was that the relations between one Sri Tara Chand Modi (now deceased) and Sri K. C. Mittal had been very strained for a long time past. Sri Tara Chand Modi was the President of the Board for a fairly long time. The petitioner was even at that time the Executive Officer of the Board. The petitioner's complaint is that Sri K. C. Mittal thought that the petitioner was a right hand man of Sri Tara Chand Modi and that was the main reason why he (Sri Mittal) got displeased with the petitioner. Most of the allegations made bv the petitioner showing bias have been controverted in the counter affidavit filed on behalf of some of the respondents.

4. In my opinion the case can be decided on a question of law without very much going into questions of fact. The question of law that arises for consideration is whether, considering the language of Section 69-A of the Act, it was possible for any one else than Sri Mittal (the then President) to have conducted the enquiry against the petitioner and submitted his recommendations to the State Government under that section.

5. It is true that it is one of the accepted principles of natural justice that no one should be a judge in his own cause and that a person who has a bias against another person should not try him. The principle is so well known that no authorities need be mentioned in support of it. The House of Lords in the case of Dimes v. Proprietors of Grand Junction Canal, (1852) 3 HL 759 reiterated the rule with great force. Our Own Supreme Court has emphasised its importance in the cases, of State of U. P. v. Mohd. Nooh, AIR 1958 SC 86 and Nageswarrao v. State of Andhra Pradesh, AIR 1959 SC 1376 and other cases and also held that it applied not only to Courts of Justice or Judicial Tribunals but also to other authorities who have to act judicially in deciding the rights of others i. e., authorities who are empowered to discharge quasi-judicial functions.

6. This general rule, however, has an exception and that is that a Judge who would otherwise be disqualified may act in a case of necessitywhere no other Judge has jurisdiction (see Natural Justice by H. H. Marshall, 1959 edition, p. 38). In the case of Serjeant v. Dale, (1877) 2 QBD 558, it was observed as follows:

'By the common law, a Judge who has an interest in the result of a suit is disqualified from acting except in cases of necessity, where no other Judge has jurisdiction.'

If there is an alternative forum it is obvious that the exception would not apply. In modem times the doctrine of necessity is not usually applied by Courts and the same result is sometimes obtained by statutory authorisation later given for interested parties to adjudicate (see Natural Justice by H. H. Marshall, 1959 Ed. p. 41). In the ultimate analysis there is no difference between the doctrine of necessity and statutory authorisation later given because the principle in both the cases is that the principles of natural justice yield place to statutory provisions. In the first case the intention of the Legislature is gathered by the fact that no other Tribunal is provided; in the second case the intention is apparent from the statutory authorisation itself. In other words, if the statute itself confers a power on an authority and imposes a duty on it which may have the effect of making him a Judge in his own cause or to decide a dispute in which he has an official bias, the doctrine of bias stands qualified to the extent of the statutory authorisation.

In Halsbury's Laws of England, Simmonds Edition, Vol. 11, p. 67, paragraph 123, the law of bias has been summarised in the following words:-

'It is an elementary principle, that (in the absence of statutory authority or consensual agreement) no man can be a judge in his own cause. Therefore where persons who have a direct interest in the subject-matter of an enquiry before an inferior Tribunal take part in adjudicating upon it, the tribunal is improperly constituted and is without jurisdiction, and the Court will grant an order of prohibition to restrain it from adjudicating, or an order of certiorari to quash a determination arrived at by it.''

7. The words within brackets in the abovenoted passage themselves would show that the general rule that a person cannot be a judge in his own cause has an exception and that is that in case where there are statutory provisions which have the result of making a person a Judge in his own cause, the principles of natural justice would not defeat the provisions of the statute but would themselves stand abrogated in that case.

8. The question, therefore, that arises for consideration is as to whether, in the circumstances of the present case, the statute required Sri K. C. Mittal to have conducted the enquiry, assuming that the principles of natural justice applied not only to trials but also to enquiries wherein the enquiring officer has no jurisdiction to pass ultimate orders but only to make recommendations to another authority. The answer to that question would depend upon the proper interpretation of Section 69-A of the Act. The said section reads as fqllows:-

'69-A. (1) If the President has reasons to believe that the executive officer or the secretary orany of the other officers of the board appointed under Section 68, is corrupt or has persistently failed in the discharge of his duties or is otherwise guilty of misconduct, he may frame charges against him and where he is satisfied that it is so necessary, he may, for reasons to be recorded, suspend him pending the completion of the enquiry.

(2) Whenever the President takes action under Sub-section (1) he shall inform the State Government and also forward to it a copy of the charges framed.

(3) The enquiry under Sub-section (1) shall be carried on in such manner as may be prescribed by rules.

(4) After the inquiry is completed, the President shall submit the record with his own recommendation to the State Government or to the board as he may consider fit. The State Govt. or the board, as the case may be, shall thereupon, notwithstanding anything contained in Sub-section (1) of Section 58, or 67 or 69, proceed to consider the report and may, after such further inquiry as it may deem necessary, punish, dismiss, remove or exonerate the executive officer or the secretary or such other officer to whom Section 69 applies, as the case may be.

(5) Whenever the board acts under Sub-section (4) the condition prescribed in Section 58 shall apply and an appeal shall lie to the State Government in the manner and to the extent provided in the said section.'

9. It is true that in the section itself it has not been stated to very clear words as to who would conduct the enquiry. It is however clear that proceedings under Section 69-A can be started only by the President who alone can frame the charges and suspend the Executive Officer and who alone can make recommendations to the State Government and submit the record. Unfortunately Section 69-A has not been very happily worded, but it appears to me that the intention of the Legislature was clear that the enquiry must be conducted by the President, for it would be inconceivable that even though he alone could initiate the proceedings, frame the charges, make the recommendations to the State Government and submit the record, somebody else should hold the enquiry. Apart from it, the last words of Sub-section (1) of Section 69-A 'suspend him pending the completion of the enquiry' do in my opinion render some assistance in holding that it is the President who has to conduct the enquiry.

It would be noticed that before the word 'enquiry' is the word 'the'. As the word ''enquiry' has not been used in Sub-section (1) earlier than at the end, the question would be as to why was the word 'the' used and to particularize what. To my mind the words 'the enquiry' have got to be connected with the words 'may frame charges', and the word 'the' was used before the word 'enquiry' in order to emphasise that it was the enquiry which had followed and was connected with the charges. Inasmuch as admittedly the President alone can frame charges and the enquiry being connected with the charges, it appears to me reasonable to infer that the actual enquiry wag also to be conducted by the President. In fact theenquiry starts with the framing of the charges and ends with the making of the recommendations, and the framing of the charges as also the making of the recommendations are integral parts of the enquiry. Inasmuch as Section 69-A definitely assigns the opening and the closing functions in respect of the enquiry to the President, it is only reasonable to hold that he has also to perform the intermediate functions. It is inconceivable that whereas he has to open and close the enquiry, somebody else has to act at the intermediate stage.

It is true that in Sub-section (4) of Section 69-A the opening words are 'after the inquiry is completed, the President shall submit . . . .' and not 'after completing the inquiry, the President shall submit ......' If the opening words had been just as mentioned above and not as they exist in Sub-section (4) of Section 69-A there would have been no difficulty, and it cannot be denied that the use of the words 'after the inquiry is completed'' cannot itself exclude the possibility of some one else completing or holding the inquiry. We have however to interpret the various provisions of Section 69-A and the various sentences occurring in it in harmonious manner. It requires citation of no authority to point out that while interpreting a statute or a statutory provision harmonious interpretation must be given to its various parts. Besides, a provision should be read in such a manner as to make it explicit and not to render it vague.

I have already said above that there can be no manner of doubt that the language of Section 69-A is clear that the President alone can initiate proceedings under that section, he alone can frame charges, he alone can suspend and he alone can make recommendations and submit the record to the State Government or the Board, as the case may be. Therefore it is absolutely safe to conclude that the Legislature intended that he alone should conduct the enquiry. I have, therefore, come to the conclusion that it was the President alone, and since Sri K. G. Mittal happened to be the president it was he alone who could have conducted the enquiry under Section 69-A of the Act even though it may be assumed that he has some bias against the petitioner.

I find support from some other provisions of the Act for the view that I have taken. Under Section 51 of the Act the President is the Executive head of the Board and under Clause (b) of that section has to superintend the executive administration of the Board. Under Section 50, he has to exercise a large number of powers of the Board, and under Section 51-A he alone has got the power to address the State Government or any Department of the State Government on any question of general public interest. Admittedly he is the highest authority functioning in the Board and it is inconceivable that the Legislature would have intended the conduct of the actual enquiry under Section 69-A by any other person to the exclusion of the President especially when admittedly he has to do all other acts in connection with the enquiry.

In the present case if the contention of the petitioner is accepted no enquiry can be held against him at all, because it has not been suggested on his behalf as to who else could hold the enquiry, and I have already taken the view that it is thePresident alone who could hold it. If the President alone could hold it but he is precluded from doing so on the ground of bias the result inevitably is that however gross the misconduct of the petitioner may be no action under Section 69-A of the Act can be taken against him. In my judgment.a position like this is not contemplated by law and the doctrine of bias cannot be stretched to the extent of rendering a statutory provision ineffective. It was held in the case of Mukhtar Singh v.State of U. P., AIR 1957 All 297 at p. 301 as follows :

'If a certain procedure is prescribed by law then unless it contravenes the provisions of Article 14, it cannot be challenged as invalid upon any supposed principles of natural justice.'

10. It may be stated that by means of the present petition the validity of Section 69-A of the Act is not being challenged either on the ground of infringement ot Article 14 of the Constitution or on any other ground. It is true that unlike England where the Parliament is supreme and a statutory law however repugnant to the principles if natural justice is valid, in our country every law has to stand the test of fundamental rights declared in Part III of the Constitution. I can see no ground to hold and none has been suggested to me that Section 69-A of the Act infringes any of the fundamental rights guaranteed by our Constitution. In fact, as already said above, it was never contended that that section was ultra vires. The submission that was made was a very limited one, being that the particular President was excluded frm conducting the enquiry on the ground of bias. In this connection I have already said above .that the doctrine of bias cannot be stretched to the limit of rendering the provisions of Section 69-A of the Act completely ineffective and thus result in immunity to the petitioner against action however gross his misconduct may be.

11. Following the case of Attorney General v. De Keyser's Royal Hotel, 1920 AC 508 a FullBench of the Madras High Court, In the matter of Hayles, (S) AIR 1955 Mad 1 held that it is well settled that when a statute specifically provides for the exercise of a power by a named authority, the ambit and location of that power is thereafter tobe sought within the limits prescribed by that statute. In other words, if an authority has been given to a particular person by the Statute he alone can exercise it.

12. Learned counsel in this connection submitted that even though the petitioner may not be proceeded against under Section 89-A, the Board had full power to proceed against him under Section 58 of the Act and therefore it was not a case where no action against the petitioner could be taken at all. Section 69-A of the Act is wider in scope than Section 58 and the procedure provided by Section 58 is more dilatory. Suspension of an Executive Officer cannot be brought about under Section 58 of the Act or any other provision except Section 69-A. The two provisions were made to meet two different situations and it is obvious that Section 69-A was introduced into the Act with the sole object of not only providing for the power of suspension which is not otherwise provided for by the Act but also to provide a more speedy procedure fortermination of services of the Executive Officer and other municipal servants mentioned in that section.

13. The other matter that requires consideration while dealing with the question of the principles of natural justice is does Sri Mittal reallybecome a Judge in his own cause? Section 69-A clearly provides that the President has to submit the record and his recommendations either to the State Government or to the Board and the ultimate decision has got to be taken by the authority to whom it has been submitted. In other words, the President has not got the power to pass any order to the detriment of an Executive Officerhimself. He can neither punish, nor dismiss, nor remove, nor exonerate the Executive Officer and that function has got to be performed either by theState Government or by the Board whomsoever the matter has been referred to. The President not having any power to decide the matter himself, can it be said that ho becomes a Judge, much less a Judge in his own cause, assuming that he is prejudiced or biased against the Executive Officer? Has he any power beyond the making of the recommendations which may or may not be accepted? In my opinion even, in this view of the matter it cannot be said that he becomes a Judge in his own cause, and consequently I see no reason to hold that the principles of natural justice have been infringed in the present case. I am supported in my view by the case of Hari v. Dy. Commr. of Police, Bombay, (S) AIR 1956 SC 559, para 9.

14. It was next contended that inasmuch as rules have not been framed under Sub-section (3) of Section 69-A the enquiry could not be held. In my judgment this submission is also not well founded The power to hold an enquiry was not subject to the rules. It was only the manner in which the enquiry was to be conducted which was to be governed by the ruler and the right to hold the enquiry cannot be defeated only because no rules have been framed. I find support in the view that I am taking from a Division Bench decision of the Madhya Pradesh High Court in the case of State of M. P. v. M. Hossonjee and Sons, 1957 MPC 412 : (AIR 1957 Madh Pra 135).

15. Nothing prevents the petitioner from representing to the State Government that Sri. K. C. Mittal was biased against him and that his recommendations should not be accepted. In fact the State Government has provided him an opportunity of doing so by calling for an explanation from him. It is only reasonable to assume that if such a submission is made to the State Government, it will consider it on merits. The State Government is not bound to act upon the enquiry made by Sri Mittal. In fact Sub-section (4) of Section 69-A provides that the State Government can hold any further enquiry, and the petitioner may, if so advised, move the State Government to have a further enquiry into the matter. Inasmuch as in the present case the State Government alone has got the power to pass orders in the matter of the petitioner and it is free not to act upon the recommendations of Sri Mittal, I do not see how the petitioner's case is likely to be affected by the recommendations of Sri Mittal and how the latter becomes a Judge in his own cause.

16. After all, what is the effect of thedoctrine of bias? Bias only affects the jurisdiction of an authority to decide a case. There is goodauthority for the proposition that if a committee which had no jurisdiction whatsoever and hadbeen wrongly constituted made a recommendationto the Administrator of a District Board the orderof the Administrator of the Board did not become void only because he acted on the recommendation of the committee (see Badri Prasad Rastogi v. President, District Board, Mirzapur, 1952 All LJ 56 : (AIR 1952 All 681). In the case of Jagannath Prasad v. State of U. P., AIR 1954 All 629 a Division Bench of this Court took the view thateven though it be admitted that the provisions of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules were void the order of theGovernor who admittedly had jurisdiction to pass that order would not stand vitiated only because he acted on the recommendations of the said Tribunal. The point that I wish to emphasise is that it is the Government and Government alone who can punish, dismiss, remove or exonerate the petitioner, and unless it is shown that the Government has got a bias it cannot be precluded from deciding the matter only because the recommending authority i.e. Sri Mittal is supposed to have a bias against the petitioner. In that view of the matter it appears to me that the present petition is a misconceived one.

17. At any rate it is inconceivable to me how a writ of prohibition can go in the present case, It is not the petitioner's case that the State Government has no jurisdiction to decide the matter. In fact Mr. Kakkar had to concede this and the entire argument proceeded on the assumption that the State Government has the jurisdiction, to pass the ultimate order. The writ of prohibition that is sought is not that the State Government may refrain from deciding the matter but that it may refrain from looking at a particular paper i.e., the recommendations of Sri Mittal. So far as I am aware no Court has ever issued a writ of prohibition for a limited purpose like the one prayed for in the present case. I am quite clear in my mind that as the law stands with regard to writs of prohibition no such relief can be granted. Either the tribunal has jurisdiction or it has no jurisdiction. If it has jurisdiction a writ of prohibition cannot be issued to it not to look into a particular paper or not to rely upon a particular piece of evidence. In that view of the matter also it appears to me that the petition is devoid of all merits.

18. The result is that the petition is dismissed but the parties are directed to bear their own costs. The interim order is vacated.


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