TMI Blog1994 (6) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal filed by Dr Rash Lal Yadav, hereinafter called 'the appellant'. The appellant was the Head of the Department in Maithili in Kunwar Singh College, Lakhisarai, before his selection and appointment as Chairman of the Bihar School Service Board, hereinafter called 'the Board', for a term of three years from the date he assumed charge of his office, vide notification dated 18-11-1990. Prior to his appointment this office was occupied by the other two petitioners Dr Radha Krishna Poddar and Shri Ambika Prasad Pandey. Both of them had been removed from the Chairmanship of the Board on account of several charges of mismanagement which were the subject-matter of vigilance inquiries. However, after the appellant took over as the Chairman of the Board, he too took certain actions the propriety whereof came to be questioned. Notwithstanding the difficult financial condition of the Board, he, it was alleged, decided to shift the Board's office to another premises on a monthly rent of ₹ 16,000 as against ₹ 8000 paid for the premises where the Board's office was earlier situate. It was also alleged that he withdrew ₹ 1 lakh and paid the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysics, Chemistry, Maithili and Ancient History. Despite this clear instruction the appellant called the candidates for interview for selection in the subject of Geography. This was clearly in defiance of the Government's direction contained in the letter of 18-2-1991. The appellant also enhanced application fee and interview fee to ₹ 25 and ₹ 100 respectively and invited applications for subjects for which no clearance was obtained from the Government, thus collecting a sum of approximately ₹ 40 lakhs, four times the sum he would have collected under the old rates which would have been sufficient to meet the expenses of the Board. Even though earlier a grant of ₹ 6 lakhs was withheld because the then Chairmen were facing prosecutions, a grant of ₹ 5 lakhs was released on the appellant taking over as Chairman to defray the expenses relating to the salary and allowances of the staff and other expenditures. In view of the above, the Government felt that there was no option but to remove the appellant forthwith before he caused any further embarrassment to the Government and harassment to the other members of the Board. The appellant was, therefore, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious posts. Lastly it was contended by the appellant that since he was appointed on a tenure post he was entitled as of right to continue on the post till the expiry of the period for which he was appointed and could not be removed in an arbitrary and summary manner. He also denied the allegation made by Smt Saroj Bala, Dr Lakha and other members of the Board about his abrasive or rude behaviour. In short the appellant denied all the allegations made against him in the State's counter which were not specifically admitted. 3.On the first question regarding the application of the pleasure doctrine, the High Court, departing from the view expressed in the case of R.P. Raja V. State of Bihar (1987 PUR 215), held that it was difficult to subscribe to the view that the application of the doctrine is limited only to members of public service and cannot be extended to other offices such as the Chairman of the Board. In the view of the High Court there was nothing in the doctrine to inhibit the State Legislature to treat it as a pure service concept limited in its application to public service under the State. It was, therefore, open to the Legislature to extend it to the office in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such material did exist to justify the Government's action. The High Court also found as a fact that the material placed before it did not prove the allegation of malice or lack of bona fides. In this view of the matter the High Court dismissed the writ petition. Hence this appeal by special leave. 4.The Act was preceded by an Ordinance called the Bihar Non Government Secondary Schools (Taking-over of Management and Control) Ordinance, 1974. Prior to the enactment of the said Ordinance No. 113 of 1974 which was made effective from 21-5-1974 all High Schools in the State of Bihar, save and except those established by the State Government, were managed and controlled by the Managing Committees appointed for that purpose by the school managements which also acted as the appointing and disciplinary authority for the teaching and non-teaching staff of such schools. Once the ordinance was promulgated an autonomous Board came to be created which was conferred certain powers in regard to the management and control of non-Government High Schools. This Ordinance was converted into an Act known as the Bihar Secondary Board Act, 1976 whereunder the State Government was invested with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man or any member of the Board, but the total period of such term of office shall not exceed six years. (7) If the State Government is satisfied that the Chairman or any member of the Board is incapable of working, or refuses to work, or works in a manner which, in the opinion of the State Government, is detrimental to the interest of the Board, then the State Government by issuance of a notification in the Official Gazette at any time remove such Chairman or member by giving him one month's written notice or one month's pay in lieu of notice with effect from the date mentioned in the notification. The language of sub-section (6) shows that the pleasure doctrine was incorporated in the statute for the first time and sub-section (7) empowered the State Government, if satisfied that the Chairman or any member of the Board is incapable of working or refuses to work or works in a manner which is detrimental to the interest of the Board, to remove such Chairman or member, as the case may be, by giving him one month's written notice or one month's pay in lieu of notice with effect from the date to be specified in he notification. It is important to note that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity to show cause before the exercise of the removal power for the reason that having regard to the sensitive functions assigned to the Board immediate action may become necessary to arrest the fall in the credibility of the Board. Situations may develop which cannot brook delay and prompt action alone would serve the interest of the Board. In such a situation if the need to issue a show-cause notice before taking action is insisted upon, such a procedure may prove to be time-consuming and consequently injurious to the interest of the Board. Presumably for this reason and from experience the State Legislature took a conscious decision to do away with the requirement of prior show-cause notice. However, contended counsel, it must be home in mind that the power can be exercise only if the condition precedent for the exercise of that power exists, namely conduct which is detrimental to the interest of the Board. Unless there it material before the State Government to enable it to come to the conclusion that the conduct is detrimental to the interest of the Board no such action, a is permitted by sub- section (7) of Section 10, can be taken. If that be so and if that is the correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) while retaining the duration of initial appointment as three years the words or during the pleasure of the State Government came to be added. Thus the sub- section provided that the term of the office of the Chairman/Member shall be three years or during the pleasure of the State Government extendable up to six years. In sub- section (7) two changes were introduced; firstly in the body of the sub-section it was provided that the Chairman/Member could be removed by giving one month's notice in writing or one month's pay in lieu of notice and secondly the proviso which incorporated the requirement of the rule of natural justice, namely, of giving the Chairman/Member a reasonable opportunity of showing cause, was totally deleted. By these two changes introduced in sub-sections (6) and (7) of Section 10 of the Act the Legislature made it clear that the appointment of the Chairman/Member could be terminated at any time during the pleasure of the State Government by one month's notice or on payment of one month's salary in lieu of notice, notwithstanding the tenure contemplated thereunder. Secondly by omitting the proviso to sub-section (7) of Section 10 of the Ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of its arbitrary use can be controlled of checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision-making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice ha, thus' secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case. This Court in A.K. Kraipak V. Union of India (1969) 2 SCC 262: AIR 1970 SC 150: (1970) 1 SCR 457) after referring to the observations in State of Orissa V. Dr (Miss) Binapani Dei (1967) 2 SCR 625: AIR 1967 SC 1269) observed a, under.:(SCC p. 272, para 20) The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms such an opinion, the correctness of that opinion cannot be assailed before court, though it may be open to the government servant to contend that no such requisite opinion was in fact formed or that the decision was based on Collateral considerations or was arbitrary in character. This Court did not read the requirement of the principles of natural justice in the rule permitting compulsory retirement as in the opinion of the Court compulsory retirement did not entail loss of retrial benefits. 8. This concept was examined in greater detail in Swadeshi Cotton Mills V. Union of India (1981) 1 SCC 664). Sarkaria, J. speaking for the majority reviewed the cases on the subject, approved the observations made in Kraipak case2 and reiterated in the case of J.N. Sinha4, extracted hereinbefore, and then proceeded to add as under: (SCC p. 685, para 33) We have already noticed that the statute conferring the power, can by express language exclude its application. Such cases do not present any difficulty. However, difficulties arise when the statute conferring the power does not expressly exclude this rule but its exclusion is sought by implication due to the presence of certain fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Judge differed with the majority on the limited question whether under Section 18-AA the requirement of natural justice could be met by a post- decisional hearing. There was no difference of opinion so far as the ratio laid down in the cases of Kraipak2 and J.N. Sinha4 was concerned. Even though the majority came to the conclusion the order was null and void, it refrained from striking it down on the assurance of the learned Solicitor General that the Central Government will give full and effective hearing on all aspects touching the validity and/or correctness of the order and/or action of take over within a reasonable time. 9.What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences. However, in this case, the High Court has, having regard to the legislative history, concluded that the deliberate omission of the proviso that existed in sub-section (7) of Section 10 of the Ordinance (1980) while re-enacting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statutory Board from harm that may be caused to it by a Chairman/Member who, is incapable of working or who refuses to work or conducts himself in a manner injurious to the Board's interest. The matter is left to the subjective satisfaction of the State Government which subjective satisfaction must be reached on relevant material on record and not on the whim and sweet will of the Government. The power cannot be exercised unless relevant material is placed before the State Government on the basis of which the State Government as a reasonable person is able to conclude that one or more of the conditions mentioned in the sub-section exists and therefore, it is necessary to exercise power of removal to safeguard the Board from harm. The power is clearly coupled with the twin duty, firstly to ensure that circumstances do exist for the exercise of the power of removal of the Chairman or Member, as the case may be, and secondly to safeguard the institution from harm that may be caused by the continuance of such Chairman or Member on the Board. In the ultimate analysis the power has to be exercised in public interest and for public good because the State Government is duty bound to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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