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Kanhaiya Lal Vs. Municipal Board - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1200 of 1973
Judge
Reported in1978WLN(UC)31
AppellantKanhaiya Lal
RespondentMunicipal Board
DispositionPetition dismissed
Cases ReferredIn Gullapolli Nageswara Rao and Ors. v. Andhra Pradesh State Road. Transport Corporation and Ors.
Excerpt:
.....is not improper.;writ dismissed - - thereafter, the petitioner was sent for training for the post of sanitary inspector and was eventually appointed as sanitary inspector by the resolution of the board dated may 9, 1962 while he was asked to perform the duties of the post of revenue clerk as well. it cannot be disputed that laduram, who was the first cousin of the petitioner had a bias in favour of, the petitioner and, it can very well be assumed in such circumstances that he exercised his influence and utilised his position as chairman of the board at the relevant time for securing an employment for his close relative. therefore what we have to see is whether there is reasonable ground forbelieving that he was like, to have been biased. as the re-appointment of the petitioner by..........facts were misrepresented as it was stated that the petitioner was removed from the service of the board earlier not on account of any fault on his part but because of mutual ill will. it cannot be disputed that laduram, who was the first cousin of the petitioner had a bias in favour of, the petitioner and, it can very well be assumed in such circumstances that he exercised his influence and utilised his position as chairman of the board at the relevant time for securing an employment for his close relative. in a.k. kraipak and ors. v. union of india and ors. : [1970]1scr457 it was observed by their lordships of the supreme court:it is against all canons of justice to make a man judge in his own cause. it is true that he cid not participate in the deliberations of the committee when his.....
Judgment:

D.P. Gupta, J.

1. The petitioner was appointed as a Gumashta in the service of the Municipal Board, Rajaldesar (hereinafter called 'the Board') on July 18, 1946. While he was working in that capacity, he was found guilty of negligence and embezzlement of public fund and was dismissed from the service of the Board by the order dated August 18, 1951 passed by the Director of Local Bodies, Rajasthan. Jaipur. The petitioner filed an appeal before the State Government but the Government rejected his appeal and confirmed the order of dismissal of the petitioner, which fact was communicated to the petitioner by the Director of Local Bodies vide his letter dated November 4, 1952. The petitioner again applied to the Board for fresh employment on the post of a Clerk on December 9, 1959. At that time, Laduram cousin brother of the petitioner happened to be the Chairman of the Board & by a resolution of the Board passed at its meeting held on December 11, 1959 and over which Laduram presided, the petitioner was again employed as a Revenue Clerk in the service of the Board. In the resolution of the Board dated December 11, 1959 (Ex. 8) it was observed that the petitioner was earlier 'removed' on the ground of ill-will but he was not at fault. Thereafter, the petitioner was sent for training for the post of Sanitary Inspector and was eventually appointed as Sanitary Inspector by the resolution of the Board dated May 9, 1962 while he was asked to perform the duties of the post of Revenue Clerk as well. The Administrator of the Board wrote a letter to the Collector, Churu on July 12, 1963 informing him that the Board at its general meeting held on May 9, 1962 promoted the petitioner as Sanitary Inspector and that administrative sanction for the creation of the post of Sanitary Inspector be accorded, as also for the appointment of the petitioner against the aforesaid post. The Collector, Churu by his letter dated July 17, 1963 gave administrative sanction for the appointment of the petitioner on the post of Sanitary Inspector with effect from the date he started working on that post. The petitioner continued in the Municipal Board for a few years. But after the lapse of some time it came to the notice of the Board that the petitioner had earlier been dismissed from the service of the Board. On July 10, 1967, the then Administrator of the Board, after obtaining the explanation of the petitioner, wrote to the Director of Local Bodies, Rajasthan, that the petitioner was a dismissed employee and that he had obtained fresh employment in the Board by suppressing the true facts and that it would be proper to remove such a person from the employment of the Board who obtained employment by practicing deception and by not disclosing the fact of his earlier dismissal from the service of the Board. The Director of Local Bodies agreed with the view of the Administrator. Thereupon, the Chairman of the Board by his order dated May 26, 1971 (Ex. 16) directed that the services of the petitioner may be put to an end with immediate effect. The petitioner preferred an appeal against this order passed by the Chairman of the Board to the Collector, of Churn, who by his order dated September 7, 1971 remanded the matter to the Board with the direction that the petitioner should be given an opportunity of hearing before his se vice is terminated. Thereafter, the Board by its letter dated October 23, 1971 gave an opportunity to the petitioner to show cause why his service should not be terminated in the aforesaid circumstances an after obtaining the petitioner's explanation, the Chairman of the Board confirmed the earlier order dated May 26, 1971 terminating the service of the petitioner. It appeals that soon thereafter, the Board was reconstituted and Goverdhanlal Sharma became the new Chairman of the Board and then the Hoard in its meeting dated November 15, 1971, held under the Chairmanship of Goverdhanlal Sharma, set aside the proceedings taken by the earlier Chairman of the Board and decided to restore the petitioner to his post in accordance with the appointment order dated December 11, 1959 and to make payment to him of all arrears of his salary. Sometime later, one Bhanwarlal Purohit took over as the new Chairman of the Board and then on October 31, 1972, the Board again considered the question of retention of the petitioner in the service of the Board and held that the fresh appointment of the petitioner made on December 11, 1959 was illegal because Shri Laduram a close relation of the petitioner was then the Chairman of the Board and the fact of earlier dismissal of the petitioner from the service of the Board was also not brought to the notice of the Board at that time. Similarly, on November 15, 1971, Goverdhanlal Sharma appended to be the Chairman of the Board, who was also a close relative of the petitioner and this time again the fact that the petitioner was dismisses from the service of the Board on grounds of gross negligence and embezzlement of public funds was not brought to the notice of the Board. The Board thereupon could not be re employed and as he necessary facts regarding his earlier dismissal from the se vice of the Board, on grounds of gross-negligence and embezzlement of funds on his part, were not brought to the notice of the Board at the relevant time, the Board held that the fresh appointment of the petitioner was improper and set aside the same. An appeal preferred by the petitioner before the Collector, Churu was dismissed on March 27, 1973.

2. The petitioner, having felt aggrieved from the order of the Board dated October 31, 1972 terminating the service has filed the present writ petition in this Court. The main submission of the petitioner's learned Counsel is that the earlier dismissal of the petitioner from the service of the Board did not coinstitute a legal bar against his re-employment, and as such, the Board was not competent to terminate the services of the petitioner on the ground that his reappointment was illegal. On the other hand learned Counsel for the Board submitted in the first instance that the dismissal of the petitioner from the service of the Board was a disqualification for his future employment by the same Board and in the second place, it was submitted by him that the re-employment of the petitioner was illegal as it was brought about by practicing deception and by deliberate misrepresentation in rot disclosing the true facts about his earlier dismissal before the Board of the time of re-employment by the Board on December 11, 1919. In the third place, it was submitted by the learned Counsel for the Board that both the orders of the Board dated December 11, 1959 and November 15, 1971 were invalid void on the ground that the then Chairman of the Board were close relations of the petitioner and as they had a bias in favour of the petitioner, they were disqualified from taking part in the aforesaid meetings of the Board and from presiding over the said meetings of the Board It was then argued by the learned Counsel for the petitioner that the petitioner was appointed as a Sanitary Inspector on May 9, 1962 and that appointment could not be set aside by the Board subsequently as it was also confirmed by the Collector on behalf of the State.

3. I have considered the rival contentions. There can be no doubt that the petitioner was dismissed from the service of the Board on the ground that he was found guilty of gross negligence and embezzlement of public fund, and an appeal in respect thereof preferred by him to the State Governs was also rejected, It is also apparent from a perusal of the record placed before this Court by the parties that the fact of petitioner's dismissal on serious charges of misconduct was not disclosed at the time when the petitioner was appointed afresh try the resolution of the Board dated December 11, 1959. On the other hand, it was misrepresented by the petitioner in his application dated December 9, 1959 (Ex. 2) that he was removed from the service of the Board on a trivial mistake on his part. It is also not in dispute that the then Chairman of the Board, Sri Laduram was the cousin of the petitioner being his fathers elder brother's son. In view of these glaring facts, it is a matter of no consequence as to whether there was any legal bar against the re-employment of a dismissed employee by the Board. The question whether the previous dismissal of the petitioner from the service of the Board could constitute a legal bar to his fresh employment by the same Board, would have arisen only if this fact that the petitioner had been dismissed earlier by the Board on grounds of gross, negligence and embezzlement would have been brought to the notice of the Board and then the Board would have with full knowledge of the relevant facts, proceeded to appoint the petitioner as a clerk in its service. The petitioner was himself responsible for not disclosing the true facts before the Board at the time of his fresh appointment on December 11, 1959. As a matter of fact, it appears from a perusal of the petitioner's application Ex. 2 that it was presented by him to his cousin brother Laduram, who then happened to be the Chairman of the Board on December 11, 1959 itself and on that very day, the meeting of the Board took place. Moreover, it is clear that the facts were misrepresented as it was stated that the petitioner was removed from the service of the Board earlier not on account of any fault on his part but because of mutual ill will. It cannot be disputed that Laduram, who was the first cousin of the petitioner had a bias in favour of, the petitioner and, it can very well be assumed in such circumstances that he exercised his influence and utilised his position as Chairman of the Board at the relevant time for securing an employment for his close relative. In A.K. Kraipak and Ors. v. Union of India and Ors. : [1970]1SCR457 it was observed by their Lordships of the Supreme court:

It is against all canons of justice to make a man judge in his own cause. It is true that he cid not participate in the deliberations of the committee when his name was considered But then the very fact that he was a member of the selection, board must have had its own impact on the decision of the selection board. Further adnscrlu participated in the deliberations of the selection board when the claim of his rivals particularly that of Basu was considered He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground forbelieving that he was like, to have been biased. We agree with the learned. Attorney General that a mere suspicion of bias is not sufficient. There must be a reason able likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.

In the case before their Lordships of the Supreme Court, one of the candidates for selection was himself made a member of the Selection Board. In the present case, the first cousin of the petitioner was a member of the Beard, which constiuted the lection body. As observed by their Lordships human probabilities have to be taken into consideration for coming to the conclusion as to whether there was a reasonable likelihood of bias or not in a given case. The circumstances disclosed it the present case do give an impression to my mind that Laduram, who was then the Chairman of the Board, was instrumental in securing the re-employment of the petitioner, without disclosing the I true facts relating to the earlier dismissal of the petitioner from the service of the Board en charges of gross-negligence, including that of embezzlement. If Laduram would rot have taken pail in the proceedings of the Board in its, meetings held on December 11, 1959 and if the true facts would have been discussed to the members of the Board that the petitioner was earlier dismissed from the service of the Board for gross-negligence and embezzlement of public funds, it is very probable that the Board would not have considered him as a fit person for re-employment in the service of the Board. It cannot be denied that Laduram was certainly a highly interested person in obtaining employment for the petitioner and it is difficult to believe that being a very close relative of the petitioner he might not have known the fact that the petitioner had been earlier dismissed horn the service of the Board on charges of gross-negligence and embezzlement of public funds. Further, the petitioner himself was guilty of not disclosing the true facts in his application dated December 9, 1939, which appears to have been submitted by him to Laduram on December 11, 1959, the date on which the meeting if the Boat d took place. All the aforesaid facts and circumstances considered together lead to the conclusion that there is reasonable likelihood of bias in this case and it appears probable that Laduram acted with bias in favour of the petitioner. He was not only a member of the Board but he was the Chairman there of and presided over the meeting of the Board held on December 11, 1959 and his personal bias in favour of the petitioner appears to be responsible for obtaining re employment for the petitioner. The appointment of the petitioner by the Board on December 11, 1959 was, therefore, vitiated en account of bias.

4. In Gullapolli Nageswara Rao and Ors. v. Andhra Pradesh State Road. Transport Corporation and Ors. : AIR1959SC308 , their Lordships of the Supreme Court were pleased to observe as under,.It is also a matter of fundamental importance that a person interested in one party or the other should not, even formally take part in the proceedings though in fact he does not influence the mind of the person, who finally derides the case. This is on the principle that justice should not only be done, but should manifestly and undoubtedly be seem to be done....

Thus the order of re-employment of the petitioner was void ab initio, being brought about as a result of bias and on account of the non-disclosure of relevant and important facts relating to the previous dismissal of the petitioner from the service of the Board.

5. So far as the submission of the learned Counsel for the petitioner that the petitioner was eventually appointed as a Sanitary Inspector by the resolution of the Board dated May 9, 1962 is concerned, it would be sufficient to say that the petitioner was not appointed afresh as a Sanitary Inspector As disclosed in the letter of the Board (Ex. 6) that it was only a promotion which was given to the petitioner, who was formerly employed as a clerk and in that capacity he had been sent for training for the post of Sanitary Inspector After he was trained, the Board proceeded to appoint him as a Sanitary Inspector. It cannot beheld in these circumstances that the appointment of the petitioner as a Sanitary Inspector was a fresh appointment. As a matter offset, it was merely by way of promotion and was continuation of his earlier appointment as Revenue Clerk, which was brought about by the resolution of the Board dated December 11, 1959. As the resolution of the Board dated December 11, 1959 was void and illegal on account of bias and on misrepresentation practiced on the Board, theft the further appointment of the petitioner on the post of Sanitary Inspector by way of promotion cannot be justified It is not the case of the petitioner that any applications were invited by the Board for the post of Sanitary Inspector from any person or any selection was made for that post But the fact is that he was appointed as a Sanitary Inspector only because he was continuing in the employment of the Board & had undergone training for the post in persuance of the earlier resolution of the Board dated 15-1-1961, which again was passed at a meeting presided over by his cousin Ladurara Sharma. Even the petitioner has not alleged in his writ petition that his appointment on the post of Sanitary Inspector was an independent one. The fact that petitioner was promoted to the post of Sanitary Inspector appears from the tenor of the resolution dated May 9, 1972 its. If as it proceeds to say that besides working on the post of Sanitary Inspector, the petitioner shall also continue to perform the duties of the post of Revenue Clerk.

6. With regard to the resolution of the Board dated November 15 1971, it his been mentioned in the subsequent resolution of the Board dated October 31, 1972 that Goverdhanlal Sharma, who presided over the meeting of the Board on November 15, 1971 and was at that time officiating as the Chairman of the B and was also a close relative of the petitioner. The petitioner in his rejoinder has stated that Goverdhanlal was riot a close relative of the petitioner, But again it appears from a perusal of the resolution of the Board dt. Nov. 15, 1971 that the facts relating to the previous dismissal of the petitioner on grounds of gross misconduct were not brought to the notice of the Board. Moreover, if the earlier order regarding the fresh appointment of the petitioner by resolution dated December 11, 1959 was invalid and void, the resolution dated November 15, 1971 could not have the effect of restoring the illegal resolution dated December 11, 1959. It is surprising that again it was stated before the Board that the petitioner was removed earlier briefly on account of a trivial mistake. The Board in its meeting dated October 31, 1972 appears to have considered the matter in its proper perspective and at considerable length and I do not find any reason to interfere with the decision of the Board dated October 31, 1972 which has been affirmed in appeal by the Collector Churu by his order dated March 27, 1973.

7. In view of the fact, that I have found that the order of reappointment of the petitioner dated December 11, 1959 was invalid and was vitiated on account of bias and that his subsequent appointment on the post of Sanitary inspector by the order dated May 9, 1972 was by was of promotion in a temporary capacity, I do not consider it necessary to decide other questions raised by learned Counsel fir the parties. As the re-appointment of the petitioner by the order dated December 11, 1959 was itself invalid and void on account of bias, the Board was perfectly justified in putting an end to the service of the petitioner as soon as it was discovered that the initial appointment suffered from the vice of bias and non-disclosure of important facts relating to his previous dismissal from the service of she Board, on grounds of gross-negligence and embezzlement of public funds.

8. In view of all that has been said above, the writ, petition has no merit and is dismissed. The parties are, however, left to bear their own costs.


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