Mewa
Singh & Ors Vs. Shiromani Gurdwara Prabandhak Committee [1998] INSC 600 (10 December 1998)
S. Saghir
Ahmad, D.P. Wadhwa. D.P.Wadhwa. J.
Leave
granted.
There
are 4 appellants. All are employees of the respondent Shiromani Gurdwara Prabandhak
Committee (SGPC), a body constituted under the Sikh Gurdwara Act, 1925 (for
short, the 'Act'). They were, however, dismissed from service by order dated January 13, 1996. They approached the Punjab and Haryaba High Court under
Articles 226 and 227 of the Constitution. High Court, by the impugned judgment
dated April 18, 1998, refused to grant any relief to
them and rather told them to avail alternative remedy provided under Section
1.42 of the Act by filing appeal against the orders of dismissal to the Sikh Gurdwara
Judicial Commission. Aggrieved these four employees have approached this Court.
Appellants
contend that not only that the High court wrongly refused to exercise its
jurisdiction but the impugned judgment is contrary to its earlier Division
Bench decision in Ajaib Singh vs. The Shiromani Gurdwara Prabhandhak Committee
(CWP No. 7236 of 19960 decided on October 3, 1996 wherein the High Court held
that Section 142 did not provide any alternative remedy to dismissed employee
of the respondent.
It is
alleged that on June 3,
1995 appellants were
given the duty of taking pious saroop from Darbar Sahib to Calcutta. They were issued charge sheets on November 9, 1995 for committing had acts during
journey to Calcutta and for consuming liquor. The
appellants filed their reply to the charge sheets explaining therein that the
charge of taking liquor etc. was not true. President of the respondent after
considering the replies filed by the appellants passed and order on December 16, 1995 imposing a fine on them. The
appellants, it is stated, deposited the fine. In pursuance to the order of the
President of respondent the appellants were re-instated in the service.
When
the matter stood concluded, the Executive Committee of the reapondent, it
appears, book up the matter again and without holding any further proceedings
by order dated January 30, 1996 dismissed the appellants from service.
Appellants
state that their dismissal is wrong as it is against the service rules framed
by the respondent and by filing writ petition in the High Court they sought
quashing of their orders of dismissal. They submitted that under Rule 4 of the
Service Rules an appeal lies to the Executive Committee against the order of
punishment by the Preesident of the respondent. Under the Rules Executive Committee
of the respondent is Appellate authority, The appellants did not file any
appeal before the Executive Committee and it, therefore, could not assume
jurisdiction and order punishment of dismissal, particularly when no inquiry as
contemplated under Rule 4 was held. Respondent said that it was not amenable to
the jurisdiction of the High Court and that the appellants, id they felt
aggrieved, could challenge the orders of the Executive Committee by approaching
the Judicial Commission under Section 142 of the Act. It is also stated that
appeal lies to the Judicial Commission under Rule 4(b) of the Service Rules
framed under Section 132 which have been framed in exercise of powers of the
respondent under Section 69 of the Act. The respondent then says that Rule 4(b)
was wrongly translated by the appellants and that its correct translation is as
under :- "(b) any employee under the control of management any department
and Gurdwara may prefer an appeal against any order of any punishment,
(suspension, dismissal, fine, warning etc,) within 30 days from the date that
order is passed.
(i)
any employee of the Shiromani Committee can be dismissed or degraded for his
bad character, drinking or becoming a 'Patit' but before he dismissed or
degraded, the allegations in the form of written charge sheet shall be supplied
to him along with the statement of allegations, on the basis of which the
charges are levelled against him.
Representation
against these charges shall be received from the employee within reasonable time
and in case he denies these charges and prays for holding an enquired into in
the presence of the employee and for each item of the charge sheet, which has
not been admitted, evidence shall be recorded in his presence and the employees
shall be entitled to cross-examine these witnesses. In case an employee wishes
to produce his defence, the same shall be entertained, but in case if the
inquiry committee feels that certain witnesses are not necessary for evidence,
it shall not be permitted to be produced for the reasons to be recorded in
writing. Action shall be taken against the employees only when the charge is
established.
The
appreciate rival contentions of the parties it may be useful to refer to
certain provisions of the Act. Under Section 40, for the purpose of the Act
there shall be constituted a Board and for every Notified Sikh Gurdeara a
committee of management and there shall also be constituted from time ti time a
Judicial Commission in the manner provided in the Act. The management of every
Notified Sikh Gurdwara shall be administered by the Committee constituted
thereof, the Board and the Commission in accordance with the provisions
contained in Part III of the Act. Chapter VI in Part III provides that the
Board shall be known by such name as may be decided upon at the general meeting
of the first Board constituted under the provisions of the Act. This Chapter
contains provisions for the composition and constitution of the Board. Section
62 provides as to how Executive Committee of the Board is to be constituted.
Under
Section 64, the Executive Committee of the Board shall exercise on behalf of
the Board all powers conferred on the Board by the provisions of the Act which
are not expressly reserved to be exercised by the Board in its general meeting.
There is also provision for delegation of powers of the Committee to
sub-committee. Then under Section 69, the Executive Committee is empowered to
appoint employees and prescribe their duties. Section 42, 64, 69, 132 and 142
are as under :-
"42.
Name of Board. –
(1)
The Board shall be known by such name as may be decided upon at a General
Meeting of the 1st Board constituted under the provisions of this Act, provided
that not less than three-fifths of the members present at the meeting have
voted in favour of the name selected, and that such name has been approved by
the State Government.
(2) If
the Board fails to select a name in accordance with the provisions of
sub-section (1) or the name selected is not approved by the State Government
the Board shall be designed the Central Board.
(3)
The Board shall by such name be a body corporate and shall have a perpetual
succession and a common seal and shall by such name sue and be sued.
64.
Powers of executive committee of Board The Executive Committee of the Board
shall exercise on behalf of the Board all powers conferred on the Board by the
provisions of this Act which are not expressly reserved to be exercised by the
Board in general meeting. But the Executive Committee may, if it so decides by
a majority of three-fourth of its members present in the meeting delegate any
of its powers to a Sub-Committee consisting of one or more of its members.
69.
Servants of the Board, their appointment and punishment.- The Executive
Committee of the Board may appoint such servants as it may deem to be necessary
for the due performance by itself of its duties, and may from time to time
determine the number, designations, grades and scales of salary, or other
remuneration of such servants, and may at any time fine, reduce, suspend or
remove any servant.
123.
Power of Board to make by laws:-
(1)
The Board may in general meeting make by -laws, not inconsistent with this Act,
regulating its procedure, and the fees to be levied under the provisions of
sub-section (8) of section 137, provided that the Board shall not, without the
previous section of the State Government, make any by-law—
(a)
Prescribing the form in which the budgets of the Board and of committees shall
be presented;
(b) providing
for the custody and investment of the funds of the Board and prescribing the
procedure by which sanction of the Board may be accorded to the deposits of
surplus funds in specified banks;
(c)
Prescribing the qualification of candidates for membership of the Board and
committees; and provided further that no by-law falling within the purview of
clause (c) shall impose any disqualification upon a Sikh only because he is a Sahjdhari
Sikh.
(2)
All by-laws framed under this section shall have force of law.
142.
Right of interested person to complain to commission in respect of Misfeasance
etc. (1) Notwithstanding anything any thing contained in Section 92 of the Code
of Civil procedure, 1908, or in the Specific Relief Act, 1877, any of the
person having interest, in a Notified Sikh Gurdwara may, without joining any of
the other persons interested therein, make an application to the Commission,
against the Board, the Executive Committee of the Board, or the Committee or
against any member or past member of the Board, of the Executive Committee or of
the Committee or against any office-holder or past officeholder of the Gurdwara
or against any employee past or present of the Board or Gurdwara in respect of
any alleged malfeasance, misfeasance, breach of trust;
neglect
of duty, abuse of powers conferred by this Act or any alleged expenditure on a
purpose not authorised by this Act and the Commission if it funds any such
malfeasance, misfeasance, breach of trust neglect of duty, abuse of powers or
expenditure proved, may consistently with the provisions of this Act and of any
other law or enactment in force for the time being, direct any specified act to
be done or forborne for the purpose of remedying the same and amy award damages
or costs against the person responsible for the same, and may order the removal
of any office-holder or member of the Board Executive Committee or Committee
responsible for the same and may also disqualify any member of the Board,
Executive Committee, or Committee, thus removed from such membership for a
period not exceeding five years from the date of such removal;
Provided
that no such application shall be entertained by the Commission, if it is made
more than six years after the date of the act or omission from which the right
to make an application under this subsection accrues and, in the case of an
application against a member of the Board, the Executive Committee of the Board
or the Committee, if it is made after such period or after six years of the
date of his ceasing to be a member, whichever is later.
(2)
The Board may make a similar application to the Commission which may, in like
manner, dispose of it.
(3)
The Board or any person aggrieved by an order passed by the Commission under
the provisions of sub-section (1) or sub-section (20 may, within ninety days of
the orders, appeal to the High Court." Executive Committee of the Board in
exercise of its powers has framed Service Rules for the employees of SGPC
prescribing their service conditions which include their appointment and
removal from service. Rules 4 and 5 provided for dismissal and termination of
services of the employees of the SGPC and they are as under :
"4.
Dismissal-
(a)
The employee can be dismissed in accordance with the below mentioned rule by
this appointment authority, but appeal against the dismissal by the president
shall lie to the Executive Committee within 30 days from the date of dismissal.
(b)
Any employee under control of Management of any Department of Gurdwara Under Shiromani
Gurdwara Prabandhak Committee may prefer an appeal against any punishment of
suspension, dismissal, fine, warning etc, within 30 days from the date of
issuance of the order :- (i) any employee of the Shiromani Committee can be
dismissed or degraded for his bad character, dishonesty, drinking or becoming a
"patit" but before he is dismissed or degraded, the allegations in
the form of written charge sheet shall be supplied to him along with the
statement of allegations, on the basis of which the charges are levelled
against him.
Representation
against these charges shall be received from the employee within reasonable
time and in case he denied these charges shall be got inquired into in the
presence of the employee and for each item of the charge sheer, which has not
been admitted, evidence shall be recorded in his presence and the employee
shall be entitled to cross examination these witnesses. In case an employee
shall be entitled to cross examination these witnesses. In case if the
inquiring Committee feels that certain evidence is not necessary, it shall not
be permitted to be produced for the reasons to be recorded in writing. Action
shall be taken against the employees only when the charge is established.
(ii)
In case the employees wish to produce any record or document in their defence,
he shall be permitted to do so end if he asks for the copies of these
documents, the same shall be supplied to him without any objection and he shall
be permitted to inspect the record free of cost.
(iii)
Every employee, who has been dismissed or degraded or removed shall be supplied
with the copies of the report of inquiry committee and also final decision of
the Executive Committee free of cost.
(iv)(a)
The record pertaining to the dismissal or degradation of an employee shall not
be destroyed for three years, rather it shall be kept in safe custody.
(b) If
an employee is reinstated on exoneration after his suspension he shall be
entitled to the arrears of salary of the suspension period.
5. Termination
:-
In
case the Shiromani Committee at any time terminates permanent employee, the Committee
shall be responsible to give him a notice of one month or the salary for one
month along with the admissible allowances. In the same way, in case an
employee wishes to leave his service, he shall give a notice of one month to
the Committee or shall pay one months salary along with the admissible
allowance." In the case of Ajaib Singh vs. The Shiromani Gurdwara Prabhandhak
Committee the services of the petitioner, who was working as Assistant Manager
in the service of the respondent, were terminated by order dated May 2, 1996. There were certain allegations against the
petitioner that he was responsible for the disappearance of the wife of an
employee of the respondent. Certain news items also appeared in local
newspapers of Amritsar. The Executive Committee of the
respondent thereupon made an inquiry. Certain statements were said to have been
recorded during the course of inquiry and thereafter the petitioner was served
with the termination order. He was given one month's salary in lieu of notice. He
challenged his order of termination by filing writ petition in the High Court.
He
pleaded that no show-cause notice or charge-sheet was served upon him and Rule
4 of Service Rules was violated and that by not given an opportunity of being
heard principles of natural justice were violated inasmuch as he was condemned
without being heard. Respondent raised objections that the writ petition was
not maintainable as it was not amenable to the writ jurisdiction of the High
Court even though it was created under statute and that petitioner did not
avail alternative remedy against his order of termination as provided under
Section 142 of the Act. High Court referred to the provisions of Section 42,
43, 64, 69 and 142 of the Act and also to Rules 4 and 5 of the Service Rules.
It also referred to certain decisions of this court showing that writ would lie
against the respondent. High Court, however, said that controversy before it
was not whether respondent was an instrumentality or even an agency of the
State or whether it was the creation of the statute and that the real
controversy was whether service of an employee could be terminated in violation
of the rules framed by the respondent which rules had been framed under an
authority conferred by the Act. It held that petition filed under Articles 226
and 227 of the constitution was maintainable. As to alternative remedy under
Section 142 of the Act, High Court said as under :- "Section 142 of the
Act, on a plain reading, does not appear to be relevant for the purposes of the
present controversy. It confers a right on a person who has any interest in a
notifies Sikh Gurdwara to make an application to the Commission of the Board.
This application may be in respect of any alleged malfeasance, breach of trust,
neglect of duty, abuse of powers or any alleged expenditure on a purpose not
authorized by the Act. On such an application, the Judicial Commission,
constituted under the Act, may look into the matter and order the removal of
any office holder or member of the Board or the Executive Committee responsible
for the Act. It may also disqualify any member of the Board or the Executive
Committee. It is thus clear that section 142 does not deal with the right of an
employee in respect of filing an appeal against an order of termination or
dismissal. The plea raised by the respondent that an alternative remedy is
available under Section 142 of the Act has no force and is rejected." A
mere reading of various provisions of the Act and Rules set out above
unmistakably show that SGPC is a creation of the statute and Service Rules
framed by it exercise of its statutory power have force of law. Any violation
of the provision of the Act and the Rules will certainly make SGPC amenable to
writ jurisdiction of the High Court under Article 226 of the constitution. We
do not find any basis for the SGPC to contend that no writ can be issued
against it even if its action is contrary to the provision of law and the Rules
framed thereunder. SGPC is a creation of the statute. It has to act within the
four corners of the law constituting it and the rules framed by it under the
powers conferred upon it under the Act. We do not think any discussion is
needed to dispel this argument by the SGPC that it is immune from the writ
jurisdiction of the High Court. Language of Article 226 does not admit of any
limitation on the powers of the High Court for the exercise of its jurisdiction
thereunder. Subba Rao, J. in Dwarkanath vs. ITO 1965 (3) SCR 536) said that
Article 226 "is couched in comprehensive phraseology and it ex facie
confers a wide power on the High Court to reach injustice wherever it is found.
The Constitution designedly used a wide language in describing the nature of
the power, the purpose for which and the person or authority against who it can
be exercised." We have examined the provisions of Section 142. It does not
provide any alternative remedy to an employee of the SGPC, who has been
dismissed or whose services have been terminated. Section 142 does not cover
any such type of case. In our view High Court in Ajaib Singh case rightly held
that Section 142 of the Act was inapplicable in the case and that petitioner
therein could not seek remedy under Section 142, which does not provide any
alternative remedy.
In the
impugned judgment we find that unfortunately High Court side tracked the issues
raised before it which were fully covered by its earlier decision in Ajaib
Singh case. High Court in Ajaib Singh case had said that writ did lie against
SGPC in case where its employee was dismissed in violation of the service rules
and further that Section 142 did not provide any alternative remedy. In spite
of this clear statement of law laid by the earlier Bench High Court dismissed
the writ petition by the impugned judgment and asked the appellants to seek
alternative remedy under Section 142 of the Act. High Court, in our view, was
unnecessarily swayed by irrelevant consideration while interpreting statutory
provisions. Impugned judgment of the High Court, therefore, does not stand any
further scrutiny and is liable to be set aside.
We,
therefore, set aside the impugned judgment dated April 18, 1998 of the High Court and allow the writ petition filed by the
appellants in the High Court. Orders of the SGPC dismissing the appellants are
set aside. They shall stand reinstated with all consequential benefits.
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