CASE NO.: Appeal (civil) 3187-88 of 1988 PETITIONER: UNION CARBIDE CORPORATION & ORS. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 13/03/1990 BENCH: S. MUKHARJI (CJ) & R. MISRA & K.N. SINGH & M.N. VENKATACHALLIAH & N.D. OJHA JUDGMENT:

JUDGMENT 1990 (3) SCC 115 I.A. Nos. 1-3 of 1989 (C.A. No. 3187-88 of 1988), 1 of 1989 (in R.P. No. 229 of 1989) 1 of 1989 (in W.P. No. 11708 of 1985), 1 of 1989 (in W.P. No. 420 of 1989), 1 of 1989 (In W.P. No. 281 of 1989), C.M.P. Nos. 9102, 9071 and 17930 of 1989 The Order of the Court is as follows:

Having heard the learned Attorney-General of India, and in view of the affidavit of <NAME> verified on March 12, 1990 it is directed to the recorded as follows:

1. The payment of Rs. 750 per month directed to be paid pursuant to the order dated April 21, 1989 of this Court will be continued to be paid until the commencement of the payment of a sum of Rs. 200 per month, per person in accordance with the decision of the <ORG> in the matter of interim relief. In case the amount ordered by the order dated April 21, 1989 is larger than the amount stipulated by <ORG> decision as aforesaid in respect of any family, the payment will continue to be made in accordance with the earlier order dated April 21, 1989.

2. The sum of Rs. 500 per month, directed to be paid pursuant to the order dated April 28, 1989 will be continued to the paid and will not be altered on account of the Government's decision to pay interim relief to pay Rs. 200 per month, per person and will continue to be paid at the same rate. This payment will continue to be made for three years or until further orders of this Court.

The payments made will be adjusted only against payments made to those persons who are ultimately found to be entitled and have actually received the same.

The sum of Rs. 500 per month, pursuant to the order dated April 28, 1989 will be continued to be paid over and above the maintenance of Rs. 200 as interim relief as contemplated in clause (1) of the aforesaid.

3. Persons who have been paid Rs. 3000 lump sum pursuant to the order dated April 28, 1989 will also be covered by the Government's decision to grant interim relief. No recovery or adjustment will be made in respect of Rs. 3000 lump sum already paid to these persons. Further categorisation for the payment of instalment of Rs. 3000 lump sum will now be discontinued in view of the aforesaid Government decision. No further categorisation for the purpose of interim relief only granted by this order need be done.

4. Persons who have paid Rs. 1000 lump sum, pursuant to the order dated August 25, 1989 of this Court will also be covered by the Government's decision to grant interim relief. No recovery or adjustment will be made in respect of Rs. 1000 lump sum already paid to these persons. Further categorisation for the payment of the instalment of Rs. 1000 lump sum will now also he discontinued in view of the aforesaid decision.

Other categorisation as directed by our order dated August 25, 1989 will, however, continue subject to further order of this Court.

ANNEXURE AFFIDAVIT ON BEHALF OF THE UNION OF INDIA WITH REGARD TO THE GRANT OF INTERIM RELIEF TO VICTIMS OF THE BHOPAL GAS LEAK DISASTER I, <NAME> son of <NAME> aged 55 years working as Under Secretary, <ORG> do hereby solemnly affirm and state as under

1. I say that I am dealing with the case in my official capacity, that I am conversant with the records and that I am competent and authorised to swear this affidavit.

2. I say that <ORG> has been deeply concerned about the continuing miseries of lakhs of people of Bhopal who were affected by the gas leak disaster which look place on December 3, 1984 and has been conscious of the fact that no meaningful financial assistance has been given to the victims of this biggest chemical disaster of the world even 5 years after the event. The Government of India are also conscious of and alive to their constitutional obligations and duties towards the victims under Articles 38, 39, 39-A, 41 and 47 inter alia of the Constitution and seek to effectuate the same.

3. Accordingly the Government of India have decided to give pro tempore financial assistance to the victims in the form of interim relief. Before finalising the amount and mode of disbursement of interim relief, the Government held a meeting on February 3, 1990 with representatives of the following social action groups which have been representing the victims of the gas leak disaster:

(i) Bhopal Gas Peedit Mahila Udyog Sangathan

(ii) Zahreeli Gas Kand Sangharsh Morcha

(iii) Bhopal Gas Peedit Sangharsh Sahyog Samiti

(iv) Jana Swastha Kendra, Bhopal

(v) <ORG>

(vi) Gas Peedit Sangharsh Morcha

(vii) <NAME> Evam Punarwas Front

4. <ORG> have decided to give interim relief to all the residents of the 36 severely affected wards of Bhopal who were there on the night of the disaster. This decision to cover all the residents has been taken because there is a likelihood of long term health damage to all persons who were exposed to the MIC and other toxic gases.

5. Government of India have now decided to pay an amount of Rs. 200 per month per person for a period of three years as interim relief. This would cover all the residents of the 36 severely affected municipal wards, as stated hereinabove, and will be paid to minors and adults at the same rate. Based on estimated population figures, it would appear that there were about 5 lakh people in the area on the night of the disaster and all these people need to be assisted through the scheme of interim relief. Regular monthly payments will be made to the victims through the scheduled nationalised/cooperative banks which have branches in these wards. Through this scheme of interim relief it would be ensured that the victims would continue to get regular assistance over a period of time, and this would help them to meet their medical expenses and earn their medical expenses and earn their basic livelihood on a continuous basis. The disbursement will be implemented through the administrative machinery of <ORG>. For the purpose of providing such interim relief, <ORG> have sanctioned the disbursement of an amount of Rs. 360 crores. The amount is being released shortly and payments through the Banks will start at the earliest.

6. It is also necessary to state that the social action group which have been consulted by <ORG> have expressed their satisfaction with the above arrangement. <ORG> have also decided with the concurrence of the said groups that the amounts so paid by way of interim relief will be adjusted against the final compensation available to the victims through the judicial process.

DEPONENT Verification I, the Deponent above named, do hereby solemnly verify and state that the facts stated in paragraph 1 of the above affidavit are true to my personal knowledge, while those stated in paragraphs 2 to 6 are true to my knowledge derived from my official dealings with and records of the case and I believe the same to be true. No part of the affidavit is false and nothing material has been concealed therefrom.

Verified at New Delhi this 12th day of March, 1990.

<NAME>


PETITIONER: <NAME> Vs. RESPONDENT: <ORG> & <ORG>. DATE OF JUDGMENT: 15/12/1998 BENCH: <NAME>, & <NAME> JUDGMENT:

<NAME>

Leave granted.

This appeal is preferred by the appellant questioning the judgment of <ORG> dated 10.12.97 (Lucknow Bench) which reversed the Judgment of <ORG>, Lucknow in claim No. 686 of TIII of 1977 dated 3.12.80.

The appellant was working in the respondent <ORG> as Senior Accountant from 27.7.1970. On 17.7.1973, he was appointed as Branch Manager and posted at the Meerut Division of the respondent <ORG> and transferred to various places. He was posted at Faizabad as Branch Manager on 3.10.1975 and while he was working there, he received a letter dated 12.1.1976 from the Managing Director on 15.1.1976 alleging that one person by name <NAME> complained that the appellant had fraudulently taken Rs. 2000/- from him and that the appellant should therefore offer his explanation. The appellant denied the allegation and submitted his explanation on 22.1.1976 was submitted by one <NAME>, General Manager (<ORG>) without issuing any Charge Memo or giving hearing. Copy of the report was also not given to the appellant. Thereafter, on 23.1.1976, a simple order of termination was passed stating that the appellant had been appointed as Branch Manager by order dated 17.7.1973, and Condition No.3 of the appointment order provided that the services of the appellant could be terminated at any time after giving one month's notice or one month's day in lieu thereof and that his services were being terminated with immediate effect in terms of the aforementioned Condition No. 3 of the appointment order. It was stated that the appellant could obtain one month's day from the General Manager (<ORG>), Lucknow.

It was the appellant's case before <ORG>, Lucknow, that though the termination order appeared to be innocuous, it was still punitive in nature inasmuch as it was based on an experts report of inquiry by the said <NAME> and that the allegation of accepting a bribe in a sum of Rs. 2000/- was not merely the motive but the very foundation of the order of termination. The appellant also raised a plea of malafides against the said Shri <NAME> who allegedly bore a grudge against the appellant as the appellant while working at <ORG> in 1973-74 had made certain serious complaints against one <NAME>, Assistant Sales Officer-I - who was a close friend of the said Shri <NAME>. In fact, soon after the appellant complained against <NAME>, a letter of transfer is said to have been engineered and the appellant was transferred to Varanasi on 9.5.74. Various details have been given to prove malafides.

<ORG>, Lucknow in its order dated 31.12.80 accepted the appellant's contention and allowed the appellant's application and quashed the termination order declaring it to be violative of principles of natural Justice and hence viod. It also held that the inquiry report of <NAME> was a malafide one. It was however stated that the respondents would be at liberty to initiate regular inquiry if they so desired and deal with the appellant's case in accordance with law.

Aggrieved by the said judgment, the respondent <ORG> filed Writ Petition No. 1591 of 1981 and the same was allowed by <ORG> on 10.12.97 holding that though an inquiry was conducted by <NAME> and a report was given against the appellant, the same was conducted "to assess the work" of the appellant as it was decided to dispense with his temporary service in terms of Condition No.3 of the order of appointment, which permitted such termination on payment of one month's salary or after giving one month's notice. That was why a simple order of termination was passed and it did not cause any stigma inasmuch as it did not refer to any disciplinary inquiry. There was "sufficient material" to indicate the unsatisfactory work and conduct of the appellant. <ORG> referred to various decisions relied upon by the appellant and said that they did not apply. It however held that the ruling of this Court in <CITATION> (1991(1) SCC 691) was in point, that whenever, the competent authority was satisfied that the work and conduct of a temporary employee was not satisfactory, it could pass a simple order of termination and such an order could not be treated as one of punishment. <ORG> also referred to <CITATION> . [1992 Suppl.(1) SCC 524] and <CITATION> [1994 (4) SCC 189]. <ORG> held as follows:

"In view of the law laid down by <ORG>, we are of the opinion that the temporary services of the respondent No.1 have not been terminated by way of punishment founded on any misconduct but on the other hand, the competent authority has found that the respondent No.1 was not fit to be continued in services on account of unsatisfactory work and conduct. There is no material to establish that the respondent No.1 had outstanding or meritorious service record."

It further observed:

"Further in view of the law laid down by Hon'ble Supreme Court, even if some parte preliminary inquiry has been conducted or disciplinary inquiry was initiated to inquire into some misconduct, it is the potion of the competent authority to withdraw the disciplinary proceedings and take the action of termination of service under the terms of appointment and the same would not be by way of punishment."

One this reasoning, the Writ Petition of the Corporation was allowed, the order of the <ORG> was set aside and the termination order was upheld.

Aggrieved by the Judgment of <ORG>, the appellant has preferred this appeal. It is contended by the learned senior counsel for the appellant Sri <NAME> that <ORG> had assumed that the inquiry was a preliminary inquiry report but it was in fact a final one which gave findings as to the quilt of the appellant in regard to the allegation of receiving a bribed of Rs. 2000/- and the said finding was arrived at by examining witnesses behind the back of the appellant and therefore there was a clear violation of principles of natural justice. In other words, the findings in the inquiry report were the 'foundation' for the termination. This was not a case where some allegations against the appellant were the 'motive'. It was permissible for the <ORG> to go behind the order and find out if it was punitive in nature. It was also argued that <ORG> was in error in not going into the question of malafides even though the <ORG> had held that the inquiry report was vitiated by malafides.

On the other hand, learned counsel for the respondent, Sri <NAME> made a vehement submission that the termination was the result of a preliminary inquiry and it was always permissible to rely on such an inquiry and pass a simple order termination by giving a one month's notice or giving one month's pay in lieu thereof. He contended that it was not permissible for the <ORG> to look into the report given by <NAME> to the General Manager as the same was confidential in nature. The <ORG> could not go behind the order.

On the basis of the above contention, the following point arises for consideration:

Whether the report of <NAME> was a preliminary report and whether it was the motive or the foundation for the termination order and whether it was permissible to go behind the order?

On this point, the question is whether the contents of the report dated 22.1.76 of <NAME> against the appellant were the motive or foundation for the termination order dated 23.1.76 issued by the General Manager?

Now, there are two lines of cases decided by this Court which deal with the question in issue. In certain cases of temporary servants and probationers, this Court has taken the view that if the experts inquiry or report are the motive for the termination order, then the termination is not to be called punitive merely because principles of natural justice have not been followed. On the other hand. there is another line of cases where this Court has held that the facts revealed in the inquiry are not the motive but the foundation for the termination of the services of the temporary servant of natural justice have not been followed, and such orders are to be declared void. This Court has held that for finding out whether a given case falls within either of these two categories, it is permissible for <ORG> or <ORG> to go behind the order and look into the record of the proceedings, the antecedent and attendant circumstances culminating in the order of termination.

In what situations the allrgations of misconduct will be the motive and in what cases they will be the foundation, it is argued, is not clear enough.

In fact, <NAME>, J. his characteristic style described the words 'form' substance, motive and foundation as the face of an inscrutable sohink, baffling lawyers and judges alike. [See <NAME> vs. State of Punjab 1974 (2) SCC 831 (at 889)]. According to him, the need in this branch of law is to lay down a simple test which can be grasped by the administrator or Civil servant without much subtlety.

<NAME> says, as to procedural fairness where preliminary inquiries are conducted (See 5th Ed., 1995 (page 491, para 10.027) that the question of "proximity between investigation and act or decision" depends on the degree of proximity so far as the person affected claiming a right of hearing is concerned. He says:

"Thus, a person empowered or required to conduct a preliminary investigation with a view to recommending or deciding whether a formal inquiry or hearing (which may lead to a binding and adverse decision) should take place, is not normally under any obligation to comply with rules of fairness (Beetham vs. <ORG> 1960 A.C.. 132; <ORG> vs Byme College of Physicians, ex P Samuels (1996) 58 D.L.R.(2ND) 622; Re; Drummoyne M.C. (1962). S.R. (N.S.W.) 193. But he may be placed under such an obligation if his investigation is an integral part of a process which may terminate in action adverse to the interest of a person claiming to be heard before him. ( <CITATION> 1971 AC 297). Re:<ORG> and <ORG> (1986)

26.D.L.R (4th) 677."

The above principles stated in <NAME> are, as we shall presently see, very close to what is laid down in <NAME> case and other cases decided by this Court.

It is, therefore, necessary to refer to the development of the law in this branch between 1958 to 1974 in the first phase - a development which was noticed by <NAME> J. in the above case and also by <NAME>J. (as the then was) in <CITATION> (1984 (2) SCC 369).

There are atleast seven Constitution Bench Judgments and & Judgment of seven Judges of this Court on this issue. It will be seen that form stage to stage the law has been developed.

The first decision of <ORG> was in <CITATION> [AIR 1958 SC 826]. There a twin test was laid down - whether the order in terms of the appointment gave a right to terminate and whether the order was punitive in nature. If misconduct was motive, the order was not punitive but if it was the foundation it was punitive. In that case, the employee was working in a higher post in an officiating capacity and that appointment was terminated and he was reduced in rank. <NAME>, C.J. stated (para 28) (p49) that misconduct, negligence, inefficiency or other disqualification might be the motive or the inducing factor which influenced the <ORG> to take action under the terms of the contract of employment or the specific service rule, and the motive was irrelevant. But if the termination was 'founded' on misconduct, negligence, inefficiency or other disqualification, it would have to be treated as a punishment. It was also held that the use of the word 'termination' or 'discharge' was not conclusive. In spite of the use of such innocuous expressions, the Court could still hold it be punitive. On the facts of the case the termination of the officiating appointment was based upon certain adverse remarks and it was held that it was not by way of punishment.

Next came the decision of the Constitution Bench in <CITATION> [AIR 1960 SC 689]. Here a test of 'inquiry' was laid down. That was a case probationer. The Government had come to the conclusion, on inquiry, that the respondent was unsuitable for the post held on probation. Because of the inquiry, <NAME>, C.J. held this to be "clearly by way of punishment." Termination (without notice) but after holding an inquiry into the alleged misconduct or inefficiency or some similar reason would be punitive. Government could not, "brand him dishonest and incompetent without inquiry." If it did so, it would be by way of punishment, but not if the position "was that he was found unsuitable', without holding an inquiry. Both <NAME> and <NAME> were decided when the law in this branch was just developing.

However <NAME>,<NAME> (as he then was) in <CITATION> [1961 (1) SCR 606] gave a new dimension to the legal principles. That case also related to a probationer but was governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which was a special provision and which stated that "where it is proposed to terminate the employment of a probationer, whether during or at the and of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity for show cause against it, before orders are passed by the authority competent to terminate the employment." if the test of 'industry' laid down by <NAME>, CJ was to be applied, every termination of a probationer made by following the rule and conducting an inquiry would become punitive. The 'industry test' (as pointed out by <NAME>, <NAME> in <NAME> case broken down. A new test had to invented. Therefore <NAME>, <NAME> (as he then was) laid down a new test which required that one should look into "object or purpose or the inquiry" and not merely hold the termination to be punitive merely because of an antecedent industry. <NAME>C. <NAME>, J (as he then was) said:

"Whether it amounts for an order of dismissal depends upon the nature of the inquiry, if any, the proceedings taken therein and the substance of the final orders passed on such inquiry."

The learned Judge pointed out that the employed being a probationer, "the inquiry against the respondent was for ascertaining whether he was fit to be confirmed." His Lordship pointed out that this inquiry was not of the same nature as an inquiry into charges of misconduct, negligence, inefficiency or other disqualification. On the facts of thee case, the termination of a probationer was upheld inasmuch as the purpose of the inquiry was to find out if the employee could be confirmed. The purpose of the inquiry was not to find out if he was guilty of any misconduct, negligence, inefficiency or other disqualification.

We then come to the third case decided by the <ORG> in <CITATION> (AIR 1963 SC 5312. Here <NAME>, J. (as he then was), applied the same principle laid down earlier by him out in this case he held the order was punitive. That was a case of a temporary employee. There was a report of the Settlement Officer about the 'misconduct' of the employee and the termination was based on the said report. It was, therefore, held that though the order of termination was an order simpliciter still the Court could go behind the same and further if thee foundation was the finding as to misconduct, then the order was punitive. The termination order was quashed, even though the employee participated therein because the statutory procedure for a regular departmental inquiry was not followed. Emphasis was again made on the "purpose of the inquiry". The distinction between the earlier case and this case was that while in <NAME> Case, the inquiry was made to find out if the probationer could be continued and confirmed and was, therefore, not punitive, the position in <NAME> case was that the inquiry by the Settlement Officer was to find out if the employee was guilty of misconduct. In fact the termination order was based on the inquiry held behind his back and was held to be punitive. <CITATION> (AIR 1963 SC 1552), being a case of a probationer to whom Rule 55-B of the Central Rules applied, <NAME> (as he then was) upheld the order on the ground that the limited purpose of the inquiry was to find out whether he could be 'retained or not' in the service. In other words, the inquiry was not with a view to see if the employee had misconducted in his duties. This case was similar to <NAME> case.

The theory of 'object of the inquiry' was further emphasised by the Constitution Bench in <CITATION> . [AIR 1964 SC 449]. That was a case of a temporary employee. The discharge from service was by way of an order 'simpliciter'. But there, an inquiry was held and the termination order was based on it as it stated on its face that it was 'found undesirable' to retain the employee and hence his services were being terminated. The order was held to be punitive on its face and was quashed. <NAME>, J. (as he then was) discussed the earlier cases and held that in every case the purpose of the inquiry was crucial. If the inquiry was held 'only for the purpose of deciding whether the temporary servant should be continued or not, it could not be treated as punitive and that the motive operating in the mind of the authority was not relevant. But "the from in which the order terminating the service is expressed will not be decisive." It was held that "what the <ORG> will have to examine in each case would be, having regard to the material facts existing upto the time of discharge, is the order of discharge in substance one of dismissal". Therefore, the 'form' was not of importance but the 'substance' was.

Finally, we come to the seventh case, <CITATION> [AIR 1964 SC 1854], a case strongly relied upon by the learned counsel for the respondent, <NAME>. Here, it was the case of a preliminary inquiry which was intended to find out if a prima facia case was made cut to start a regular departmental inquiry. The question was whether a termination order passed soon after the completion of the preliminary inquiry could be treated as punitive. <NAME>, J. (as he then was) held that it could not be as held. Once the preliminary inquiry was over, it was open to the employer not to make a regular inquiry for proving the quilt of the employee. The employer could stop at that stage and pass a simple order of termination. The facts as gathered or revealed in the preliminary inquiry would be the motive and not the 'foundation' since there was no inquiry as to their correctness made. The order could not be quashed as being punitive.

We finally come to the seven Judge Judgment rendered in <NAME> vs. State of Punjab [1974 (2) SCC 831] to which we made a brief reference at the beginning of this Judgment. The case concerned two Judicial Officers. So far as the termination order passed against Sri <NAME> was concerned, it was quashed holding it to be punitive as it was based on the report of an Inquiry Officer appointed by the Director of Vigilance. The Inquiry Officer recorded statements of witnesses behind the back of the officer and definitive findings therein were the basis for the termination. It was not a preliminary inquiry. <ORG> held that the object of the said inquiry was (see p

055) (para 79 and 80) "to ascertain the truth of the allegation of misconduct. Neither the report nor the statements recorded by the Enquiry Officer reached the appellant. The Inquiry Officer gave his findings of misconduct. ... The order of termination was because of the recommendation in the report.

The order of termination of the services of <NAME> is clearly by way of punishment in the facts and circumstances of the case.... The form of the order is not decisive as to whether the order is by way of punishment. Even an innocupusly worded order terminating the service may, in the facts and circumstances of the case establish that an inquiry into allegation of serious and grave character of misconduct involving stigma has been made in infraction of Article 311. In such a case, the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of <NAME>. The order of termination is illegal and must be set aside."

<NAME>, <NAME>.. wrote the opinion for himself and five other learned Judges, <NAME>, <NAME> wrote a separate but concurring Judgment where he referred to the new dimension to the law given by <NAME>, <NAME> (as he than was) in the sixties. The learned Judge said that the words 'form', 'substance', 'motive' and 'foundation' were baffling and the need of the hour was a simple test.

If there was any difficulty as to what was 'motive' or 'foundation' even after <NAME> case, the said doubts, is our opinion, where removed in <CITATION> (1980 (2) SCC 593) again by <NAME>, J. No doubt. it is a <ORG> matter but the distinction so far as what is 'motive' or 'foundation' is common to <ORG> cases and cases of employees in government or public sector. The learned Judge again referred to the criticism by <NAME> in this branch of law as to what was 'motive' or what was 'foundation', a criticism to which reference was made in <NAME> case. The clarification given by the learned Judge is, in our opinion, very instructive, It reads as follows (at page 616-617):

"Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psygnic by terminological cover-ups or by appeal to psycnic reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put if slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceedings from the formal order does not detract from is nature. Nor the fact that, after being satisfied of the quilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-inqurious terminology is used.

On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his quilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive peculary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here.

In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wise to go into their truth out besides merely not to continue a dubious employee. The master does not want to decide or to direct a decision about the truth of the allegations, but if he conducts an inquiry only for purpose proving the misconduct and the employee is not heard, it is a case where the inquiry is the foundation and the termination will be bad.

Subsequent to the above cases, there have been a number of other cases where the above principles have been applied. We shall refer to a few of them where some more principles have been discussed. <CITATION> {1997 (1) SCR 462] the employee's service were terminated as he allowed some other employee to impersonate him in an examination. The order was innocuous put the case was preceded by an inquiry and it was held that the petitioner in his pleadings had not made out a case for calling for departmental records to examine if it was a case of punishment. That was how this case was explained by <NAME>, J. (as he then was) in <CITATION> [1971 (4) SCC 466]. <CITATION> [1984 (2) SCC 369] it was held while quashing the order of termination, that it was open to the <ORG> to go behind the order and find out if the report/recommendation of the superior authority was a camouflage and if that was the basis or foundation for the order the report/recommendation, then it should be read along with the order for the purpose of determining the true character of termination. If on a reading of the two together, the <ORG> reached the conclusion that the alleged finding of misconduct was the cause or basis of the order, and that but for the report containing such a finding, the order would not and could not have been passed, the termination order would have to fall to the ground as having been passed without the officer being afforded a reasonable opportunity. It was also held that it was wrong to presume that an order would be punitive only if a regular inquiry was conducted exparte or behind the back of the officer. Even if it was not a regular inquiry, any other inquiry where evidence was taken and findings were arrived behind the back of the officer, would make the subsequent termination bad. <NAME>, J. (as he then was) pointed out in the above case the shift in the law as brought about by <NAME> case.

So far as <CITATION> . [1992 Suppl. (1) SCC 524] and <CITATION> , [1994 (4) SCC 189], relied upon by <ORG> are concerned, in the former case, the termination order was a simple order which did not cast any stigma and there were several adverse entries in his confidential reports. The termination was as per rules. In the latter case the employee's superiors complained that the employee was not regular in her work, and was in the habit of leaving office during office hours. A simple order of termination appointment. There was no prior inquiry. In both these cases, the termination orders were upheld.

We shall now refer to a different type of cases where a departmental inquiry was started, then dropped and a simple order of termination was passed. <CITATION> [1968 (3) <ORG>R 234], the charge memo was served, reply given and at that stage itself, the proceedings were dropped and a termination order was passed. <ORG> felt that the 'object of departmental inquiry, being to punish the employee, the order of termination must be treated as punitive. This was not accepted by a three Judge Bench consisting of Justice <NAME> (as he then was) who had laid down in <NAME> case (AIR 1963 <ORG> 531) the principle of 'object of the inquiry'. This court reversed the <ORG> Judgment and held that neither <NAME> case nor <NAME> case (AIR 1964 <ORG> 449) applied. This was because in the case before them the inquiry did not go beyond the stage of the explanation. No findings were given and no inquiry report was submitted as in the above two cases. In that case (i.e. <NAME>) this Court felt that the decision in <NAME> vs. <ORG> (Civil Appeal No. (341 of 1966 dated 13.12.1966) (<ORG>) was more direct. In <NAME>'s case, a charge memo was issued, explanation was received and an Enquiry Officer was also appointed but before the inquiry could be completed, the proceedings were dropped stating that: 'departmental proceedings will take a much longer time and we are not sure whether after going through all the formalities, we will be able to deal with the accused in the way he deserves." There also, the order was held not to be punitive. Following the above case, this court in <NAME>'s case stated that the position before them was similar to what happened in <NAME>'s case and concluded as follows:

"the departmental inquiry did not proceed beyond the stage of submission of a chargesheet followed by the respondent's explanation thereto. The inquiry was not preceded with, there were no sittings of any inquiry officer, no evidence recorded and no conclusion arrived at in the inquiry."

The underlined words are very important and demarcate the line of distinction. If the inquiry officer held no sittings, did not take evidence nor record any conclusions and if at that stage the inquiry was dropped and a simple order of termination was, passed, the same would not be punitive.

In <NAME> vs. State of U.P. (1988 (3) SCC 370) a three Judge Bench held the order to be punitive as it was passed after issuing a charge memo, a reply received, even though no evidence was adduced and no findings were given. But in a latter three Judge Bench case in <CITATION> , [1991 (1) SCC 691], <NAME>'s case was not followed as being a judgment rendered per incuriam as it did not consider <NAME> case (AIR 1964 SC 1854). Of course, the above case, i.e. <NAME> case was one where there was an adverse entry and only a preliminary report and then a simple order of termination was issued. That order was upheld. Similarly, in <CITATION> [1994 (5) SCC 177]. the facts were that the departmental inquiry was started and dropped and this Court held the order not to be punitive.

It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as stated by <NAME>, J. (as he then was) in <NAME> case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in <NAME>'s case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, thee same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in <NAME> case and in <NAME>'s case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the quilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by <NAME>, J. in Gujrat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.

But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases.

Coming now to the facts of the case before us, the inquiry officer, <NAME> examined witnesses and in his report dated 22.1.76 has said: "I conclude that <NAME> took a sum of Rs.2000/- from <NAME>, thereafter referring to certain facts said they 'go to prove the correctness of the complaint". Not only that, he concluded "I therefore suggest that service of <NAME> may be terminated and one month salary may be given to him in lied of the notice". The very next day, the impugned simple order of termination followed.

In our view, it is an absolutely clear case where the inquiry officer examined witnesses, recorded their statements and gave a clear finding of the appellant accepting a bribe and even recommended his termination. All these were done behind the back of the appellant. The Managing Director passed the termination order the very next day. It cannot in the above circumstances be stated, by any stretch of inspection that the report is a preliminary inquiry report. It's findings are definitive. It is not a preliminary report where some facts are gathered and a recommendation is made for a regular departmental inquiry. In view of the principles laid down in the cases referred to above, this case is an obvious case where the report and its findings are the foundation of the termination order and not merely the motive. The <ORG> was right in its conclusion. <ORG> was in grave error in treating such a report as a preliminary report.

For all the above reasons, we set aside <ORG> Judgment and restore the <ORG>'s order. There will be no order as to costs.


IRSHAD AHMADV/SEXECUTIVE DIRECTOR- HEAD HAZIRA PLANT C/SCA/23936/2007 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 23936 of 2007 With SPECIAL CIVIL APPLICATION NO. 23937 of 2007 ================================================================ IRSHAD AHMAD & 119....Petitioner(s) Versus EXECUTIVE DIRECTOR- HEAD HAZIRA PLANT & 2....Respondent(s) ================================================================ Appearance: MR MUKUL SINHA, ADVOCATE for the Petitioner(s) No. 1 - 120 MR AJAY R MEHTA, ADVOCATE for the Respondent(s) No. 1 SERVED BY RPAD - (R) for the Respondent(s) No. 2 - 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 17/12/2013 ORAL ORDER

In present matters, on 2.12.2013, below mentioned order was passed:-

In view of the separate order dated 2.12.2013 passed in group of petitions being Special Civil Application No.23938 of 2007 to Special Civil Application No.24055 of 2007 and Special Civil Application No.24556 of 2007 to 24560 of 2007 the hearing of present petitions being Special Civil Application No.23936 of 2007 and Special Civil Application No.23937 of 2007 is required to be adjourned.

Furthermore, On the ground of ill-health of Mr. <NAME>, learned Counsel for the petitioners in Special Civil Application No. 23936 of 2007 and Special Civil Application No.23937 of 2007, Mr. <NAME>, learned advocate requested for time.

Therefore at the request of Mr. <NAME>, learned advocate for the petitioners hearing of Special Civil Application No. 23936 of 2007 and Special Civil Application No.23937 of 2007 is adjourned with the clarification that on the next date of hearing, the petitioners may make alternative arrangement if Mr. <NAME>, learned advocate for the petitioners is not in position to attend the hearing.

For sake of convenience a copy of the order passed in Special Civil Application Nos. 23938 of 2007 to Special Civil Application No.24055 of 2007 and Special Civil Application No.24556 of 2007 to 24560 of 2007 may be retained on record of these petitions as well and also on record of Special Civil Application No. 24555 of 2007.

S.O. to 16.12.2013.

2. After the aforesaid order, the petitions were listed for hearing yesterday, i.e. on 16.12.2013. Yesterday also, no one attended the hearing, therefore, below mentioned order was passed:-

1. In the present order, on previous occasion, below mentioned order was passed:-

S.O. to 16.12.2013.

2. Despite the said order, no one has appeared today at the time of hearing.

3. Mr.<NAME>, learned advocate for the petitioners has filed leave note today.

4. Having regard to the said possibility, the order dated 02.12.2013, was passed and petitioners were instructed that the petitioners may make alternative arrangement, if <NAME><NAME>, learned advocate for the petitioners is not in position to attend the hearing.

5. However, no one has attended the hearing today. As a last chance, hearing is adjourned. S.O. to 17.12.2013.

3. On the above mentioned occasions, Mr. <NAME>, learned counsel, was present. The Court requested Mr. <NAME>, learned counsel, to make submissions, however, on the ground of no instructions he declined to make submissions.

4. Today, when the petitions are called out and taken up for hearing, Mr. <NAME>, learned advocate for the petitioners, is not present. Mr. <NAME>, learned counsel, is present. It is informed that Mr. <NAME>, learned counsel, has filed leave note. Mr. <NAME> submitted that Mr. <NAME>, learned advocate for the petitioners, due to his ill health, is not able to attend the hearing and he may be able to attend the hearing only after 15.1.2014.

5. Having regard to the said aspect, on earlier occasions, hearing was adjourned with clarification that the petitioners may make alternative arrangement. Though the <ORG> would not have declined the request for adjournment in ordinary circumstances, the above mentioned orders were passed having regard to the fact that the petitions are pending since 2007.

6. Today also, Mr. <NAME>, learned counsel, is requested to make submissions on merits. However, he has again declined to make submissions.

7. In this view of the matter, more particularly in view of the fact that the <ORG> has passed above mentioned two orders and granted sufficient opportunity to the petitioners, it appears that it is not proper to keep on adjourning the matters which is pending since 2007. Therefore, present petitions are dismissed for non prosecution. Notice is discharged.

(K.M.THAKER, J.) kdc Page


CASE NO.: Writ Petition (civil) 105 of 1958 PETITIONER: SRI DWARKA NATH TEWARI & ORS. RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT: 13/10/1958 BENCH: S.R. DAS (CJ) & N.H. BHAGWATI & B.P. SINHA & K. SUBBARAO & K.N. WANCHOO JUDGMENT:

JUDGMENT AIR 1959 SC 249 The Judgment was delivered by : <NAME>, J. : This petition under Art. 32 of the Constitution is directed against certain orders passed by officers of <ORG> in <ORG>, in respect of <ORG>, and prays for an appropriate writ, direction or order restraining them from taking possession of the school, or in any way, interfering with the internal management of the said school. The first petitioner, <NAME>, M. P., claims to be the President of <ORG> of the school, the second petitioner, <NAME>, to be the Secretary, and the petitioners 3 to 6 to be members of <ORG> of the school. The 7th and the last petitioner is <ORG> through the Secretary, Managing Committee. The State of Bihar is the first respondent, and <ORG>, Bihar, is the second respondent. Respondents 3, 4 and 5 are officers of the <ORG>, who have been constituted an ad hoc Committee pending the constitution of <ORG> of the school, according to the rules laid down in the Education Code.

2. The application is founded on the following allegations : In 1931, in pursuance of a unanimous resolution of the local public of Parsa, Thana head-quarters in the District of Saran in Bihar, <ORG> was formed with the first petitioner as its Secretary and other persons as members of the <ORG>, to raise subscriptions for, and to manage, the proposed High English School at Parsa. The school was started in 1932, by subscriptions raised from amongst the residents of villages round about the Parsa police station. The first petitioner claims to have made a substantial contribution to the funds of the school, in several instalments totalling over Rs.11, 000. The day-to-day management of the school was entrusted to <ORG> consisting of 11 members, including teachers' representatives, the Head Master for the time being, and subscribers' representatives. The Managing <ORG> purchased several plots of land in the name of the Secretary on behalf of the Managing <ORG>, and constructed the school building on the said land. Thus, the Managing <ORG> claim to be the owners of the school and of the land and buildings. The school is open to persons of all castes and creeds, and nominal tuition fees were charged, 10 per cent., of the total strength of the students, were granted free student ships. In 1935, the school was given recognition by <ORG>. In 1950, the Managing <ORG> of the school was asked by the <ORG> not to charge any fees from Harijan students, and to raise the percentage of free studentships from 10 to 15 per cent, of the total strength of the school. The <ORG> also requested the school not to charge any fees from students in the 4th and 5th classes (Primary classes). The <ORG> gave an annual grant to the school, amounting to between two and three thousand rupees. In 1952, the <ORG> also requested the school authorities that higher salary should be paid to the teachers, the <ORG> undertaking to meet the extra cost thus to be incurred. Prior to June 1954 the Managing <ORG> of the school did not contain any nominees. After June 1954, <ORG> Education Code was amended so as to require the inclusion of <ORG> nominees, guardians' representatives, subscribers' representatives and donors in the Managing <ORG> of the school. About the same time, changes were made in the service conditions of teachers in the schools, enabling a teacher, who is punished by <ORG>, to prefer an appeal to <ORG>. The said change was made without any consultation with the school authorities who were not apprised of the changed rules. The then Head Master of the school, named <NAME>, on coming to know of the new changed rules about the service conditions of teachers, "began to show discourtesy to the members of the Managing <ORG> and began to neglect his duties and mismanage the School affairs. After several warnings to the Head Master to be of good behaviour and on his failure to do so, he was suspended by the Managing <ORG> towards the end of December 1955. After framing charges against him, and after receiving his explanation and hearing him, the Managing <ORG> found him guilty of the charges, and ordered his discharge. Soon after, on 2nd January 1956, the Managing <ORG> duly appointed another Head Master in his place. The discharged Head Master moved the Inspector of Schools, Tirahut Division, against the order of discharge. Under orders of the Director of Public Instruction, who is the President of <ORG>, an inquiry was held by the Acting Secretary of the Board, who submitted his report, but no. orders appear to have been passed thereon. The Director of Public Instruction ordered a fresh joint inquiry by the Secretary of the Board and a Deputy Director of Public Instruction. They heard the President and the Secretary of the school and the Head Master, and submitted a report. On a consideration of the second report, <ORG> held that the discharge of the former Head Master was not justified, and ordered his reinstatement. About 12th December 1957, <ORG> addressed a letter through the Inspector of Schools, to the Secretary of the school, ordering that"

<NAME> should take charge of his duties as Head Master of <ORG>, Parsa by 16th December 1957 without fail.

"It also contained consequential orders as regards his salary during his period of suspension, his increment and provident fund contribution. It also required the re-constitution of the Managing Committee of the school with all possible speed. The letter ended with the following paragraph :

In case the authorities of the school flout the orders of Government an ad hoc committee be appointed to take over the management of the School and present managing committee be dissolved.

The discharged Head Master thereafter turned up to take charge of the school, in pursuance of the aforesaid order of the <ORG>, but he was not allowed to do so, and was informed by the President of the school that a meeting of <ORG> had beep called on 31st December 1957, to consider the letter aforesaid. On December 22, 1957, the District Inspector of Schools, <NAME>, wrote to <NAME>, Tirahut Division, informing him that the school authorities had failed to carry out <ORG> orders contained in the letter aforesaid, and suggesting that an ad hoc committee consisting of the respondents 3 to 5 aforesaid, may be constituted to look after the management of the school. A copy of that letter was forwarded to the school authorities. On December 31, 1957, the Deputy Inspector of Schools, one of the three officers of the <ORG>, constituting the ad hoc Committee came to the school, and asked for charge being handed over to him. He was informed that the order of the <ORG> was illegal, and the decision of <ORG>, which was to meet that very day, will be communicated to the authorities in due course.

3. It is not necessary for the purposes of this case to refer in detail to the infructuous proceedings taken in <ORG> under Art. 226 of the Constitution, and to the attempts by the school authorities to obtain a temporary injunction against the members of the ad hoc committee and the discharged Head Master who had been ordered to be reinstated, by way of interlocutory petitions in the suit instituted by the second petitioner in <ORG> of Chapra (headquarters of District Saran). The <ORG>'s order refusing such a temporary injunction restraining the defendants from taking charge of the school, was upheld by <ORG> in its revisional jurisdiction, by its order dated May 13, 1958. After the petitioners had failed to get any relief from the <ORG>s aforesaid in those proceedings, they got into touch with the officials of <ORG>, for explaining their position vis-a-vis the management of the school, and the legal position of the Managing Committee of the school. Ultimately, on July 31, 1958, the first petitioner received a letter dated July 28, 1958, from the third respondent to the effect that in view of the <ORG>'s refusal to issue any injunction against the ad hoc committee, he, as the President of that committee, proposed to take charge of the school on August 14, 1958, and he requested him to hand over complete charge of the school to the ad hoc committee. In view of the letter aforesaid, the petitioners moved this <ORG> under Art. 32 of the Constitution, for the protection of their alleged fundamental rights to property. They alleged that they apprehended"

that if charge is not given over as requested in the said letter. possession will be taken by force with the aid of the police and local executive authorities.

"They also moved this Court for an ex parte order staying the handing over of the school and its property to the respondents. By its order dated August 11, 1958, this Court granted ex parte stay till the hearing of the Notice of Motion. In answer to the Notice of Motion, the 4th respondent swore an affidavit to the effect that it was not sought to interfere with the property, of the school, but with the management thereof, in the interest of the public; that the order dated July 28, 1953, was in accordance with the provisions of the Bihar Education Code which had the force of law; that the petitioners had failed to obtain an injunction or order from the Courts below in a pending suit in which identical questions has been raised; that by the order aforesaid of the Government, it was not intended to take over the management of the school, but to re-constitute an efficient Committee of management. After hearing the parties, this Court made the following order on September 8, 1958, in the stay matter :

Interim order is made absolute until the disposal of Article 32 Petition which is fixed for final disposal on 23rd September 1958 subject to part heard.

4. Several affidavits have been filed on each side. On behalf of the respondents, the 4th respondent, who is the Deputy Inspector of Schools, <NAME>, swore the affidavit in opposition to the petitioners' allegations in their several affidavits. It is not necessary to set out the allegations made on behalf of the respondents in their affidavit relating to the part played by the first petitioner in founding and running the school, or to the proceedings taken against the Head Master, or to the many acts of mismanagement on the part of the Managing Committee, most of whom are petitioners in this case, because this Court is not concerned with the merits of those controversies. The only question directly before this Court, is whether the petitioners have made out any fundamental right which has been infringed or is threatened to be infringed by the respondents or any one of them.

5. At the outset, we must make it clear that we wish to say as little as we can, in disposing of this writ petition, in view of the fact that the <ORG> has not been placed in possession of all the relevant facts of the case, or the rules and regulations relating to the constitution, duties and powers of <ORG> vis-a-vis <ORG>. Though the arguments at the bar have ranged over a large field, and covered questions which do not properly arise in a proceeding of the kind we have before us, we have to confine our observations to the main point in controversy, namely whether the petitioners have made out any fundamental right and any actual or threatened invasion of that right, entitling their to a writ under Art. 32 of the Constitution.

6. The learned counsel for the petitioners relied upon the following allegations made in para. 4 of their petition, in support of their contention that they had a right of property in the premises of the school, which stand on the land purchased by them in the name of the Secretary of the Managing Committee :

The Managing Committee purchased several plots of land and the conveyances were taken in the name of the Secretary on behalf of the Managing committee and the said Committee built the School building on the said land and the said Committee was and is the owner of the School and of the land and buildings and was entitled to be in possession thereof.

The petition runs into as many as 38 paragraphs. Most of those paragraphs have been traversed in the affidavits filed on behalf of the respondents, either admitting or denying or partly admitting and partly denying, the allegations made on behalf of the petitioners. But curiously enough, the most important paragraph, namely, para. 4, quoted above has not been traversed or specifically denied on behalf of the respondents. The counsel for the respondents was not able to point out any allegations in their affidavits denying those allegations. It must, therefore, be taken, for the purposes of this case, that the fact is admitted on behalf of the respondents that <ORG> purchased the land, and constructed the building for the school on that land, and that the <ORG> is the proprietor of the building and the land on which the building stands. But it is a little difficult to appreciate in what way the <ORG> can claim to be the "owner of the School," apart from the land and the building. We must, therefore, proceed on the assumption that the petitioners are the proprietors of the land and the building of the school as trustees but certainly not as beneficial owners in the sense in which property ordinarily is owned and possessed-that was not even claimed on behalf of the petitioners. The petitioners are, therefore, entitled, on that assumption, to hold the land and the building of the school as trustees for the purposes of the school. It is also clear, on the affidavits, that <ORG> of the Bihar Government, purported to divert the petitioners of their character as trustees in respect of the land and the building of the school.

7. The next question, therefore, arises whether the respondents can deprive the petitioners of their proprietary rights a the properties aforesaid, and whether they have purported to do so by any process known to law. It is claimed on behalf of the respondents that due to the failure of <ORG> to carry out the directions of <ORG> and the <ORG>, the <ORG> appointed an ad hoc Committee to take over the management of the school, and that this step was taken by the <ORG> in accordance with the amended Art. 182 of the Code. Article 182 of the Code is headed "withdrawal or withholding of recognition," and runs as follows :

Recognition shall only be withdrawn or withheld for reasons to be recorded in writing and on one of the following grounds :

(a) that the school does not follow the course of study prescribed or approved by the department;

(b) that it has committed a willful breach of the transfer rules;

(c) that it has not attained or does not attain to a reasonable standard of efficiency :

(d) that it does not maintain a satisfactory standard of discipline, or employs any teacher who takes part in political agitatiun directed against the authority of Government or who endeavours to inculcate opinions tending to excite feelings of political disloyalty or disaffection among the pupils, or to create hatred between the different classes at His Majesty's subjects; or

(e) that it appears to the authority empowered to grant recognition for any other reason to be injurious to the interest of education.

NOTE. - These rules apply to such middle and primary schools (including primary Sanskrit schools and primary Urdu schools as are not under the control of district boards, the district committee in the Santal Parganas and special schools such as Sanskrit to is and madrasas. If recognition is refused to a school under the control of a municipality, a copy of the orders should be sent to the chairman of the municipality. The recognition of schools under the control of the district boards, the district committee in the Santal Parganas is governed by the statutory rules framed for those bodies.

The amendment relied upon in support of the Government's right to displace the Managing Committee, is Annexure 'B', and is in these terms :

Amendment :

Clause (e) will be renumbered as clause (f) and the following will be published in the place-

(e) The Managing Committee of the school is not functioning to a way conducive to the proper maintenance or discipline among the teachers and public and is not carrying out the directions of the Board and administering the finances of the school properly.

The following clause may be added after rule (f) :

For reasons specified in clause (e) the <ORG> instead of withdrawing or withholding recognition may withdraw its approval of the constitution of the managing committee and make such arrangement for the management of the school as it considers suitable peading reconstitution of <ORG>.

8. It is not necessary for us to pronounce upon the controversy raised on behalf of the petitioners, founded on the Note under the original Art. 182 , that the rules contained in that article did not apply to <ORG>, like the one in question. We shall proceed on the assumption that Art. 182 of the Code, as a amended, applied to the school in question. Nor have we thought it necessary to refer, in detail, to the decision of <ORG> of <ORG> in <CITATION> ) 1956 AIR(PAT) 81, because we are basing our judgment on the admissions made either in the pleadings or at the bar.

9. As already indicated, proceeding on the assumption that the land and the building of the school, are vested in the petitioners as <ORG> of the school, have the petitioners been divested of their rights by authority of law, under Art. 31 (1) of the ConstitutionIf the amended Art. 182 of the Code, extracted above, is law within, the meaning of the article aforesaid of the Constitution, the petitioners cannot have any just complaint if they have been or are being deprived of those properties, because it is clear that the petitioners are holding the properties not in their individual absolute rights but only as trustees, for the purposes of the school. They have the properties vested in them because they are <ORG>. If they have been divested of those rights by the authority of law, this petition under Art. 32 of the Constitution must stand dismissed. If, on the other hand, the amended Art. 182 of the Education Code, is not law within the meaning of Art. 13 of the Constitution, then the petitioners cannot be deprived of their right to hold the properties as trustees, by a mere fiat of the officials of <ORG>. Though, in the affidavits sworn on behalf of the respondents, it was claimed that the provisions of the Bihar Education Code, had the force of law, it has been conceded by the learned Solicitor- General, appearing on behalf of the respondents, that he could not justify that contention. The preface to the latest edition (7th Edition) printed in 1957, of the Bihar Education Code (1944), contains the following statement by the then Director of Public Instruction, Bihar :

The Bihar Education Code is compiled in the office of the Director of Public Instruction, Bihar, and is issued under his authority. Those articles, below which no. reference to higher authority is cited, have the same authority as circular and other orders of the Director.

It is clear, therefore, from the portion of the preface extracted above, that Art. 182 of the Code has no. greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no. such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid.

10. The only other question which remains to be determined, is whether the petitioners have made out any grounds for interference by this <ORG> with the orders passed by the respondents and impugned in this case. In para. 34 of the petition, it is stated that"

The petitioners further apprehend that if charge is not given over as requested in the said letter, possession will be taken by force with the aid of the police and local executive authorities.

"That this apprehension on the part of the petitioners is not a mere figment of imagination, is brought out by the following endorsement dated December 25, 1957, on the letter of that date, from the Inspector of Schools, Tirahut Division, to the Secretary, <ORG>, Bihar, which may better be reproduced in extenso :

From The Inspector of Schools, Tirahut Division.

To The Secretary, <ORG>, Patna.

Muzaffarpur, the 25th December, 1957.

Sub : Appeal case of <NAME>.

Sir, I am to refer you to letter No. 1245 dated the 22nd December 1957 from the District Inspector of Schools, Saran, regarding flouting of the Government orders by the authorities of <ORG>. Consequent upon this action of the <ORG>, it is dissolved and an ad hoc committee consisting of the following persons formed to look after the management of the school :

1. Circle Officer, Parsa President

2. Dy. Inspector of Schools, <NAME>

3. Distt. Superintendent of Education, SaranMember It may be approved.

Yours faithfully, Sd./. H. N. Chaudhary.

Inspector of Schools, Tirahut Division.

Memo. No. 4965 Muzaffarpur, the 25th December, 1957.

Copy forwarded to the District Inspector of Schools, Saran, Distt. Superintendent of Education, Saran, Dy Inspector of Schools, Sadar, <NAME> and Circle Officer, Parsa, for information and guidance. They are requested to see that the <ORG>. order is implemented. The District Inspector of Schools, Saran will please take the help of local Executive, in case of necessity.

Sd./- Illegible. 25. 12 Inspector of Schools, Tirhut Divn."

11. The endorsement aforesaid to the District Inspector of Schools and other officers mentioned therein, shows that they were authorized by the Inspector of Schools to seek the aid of the local executive authorities in the event of the Managing Committee not making over complete charge of the School which, in the context, includes the buildings also. As no. legal justification is forthcoming on the side of the respondents for depriving the petitioners of their rights, whatever they are, in those properties, it follows that the petition has to be allowed, and the respondents have to be prohibited from interfering with the petitioners' properties aforesaid, except by authority of law. The respondents must pay the petitioners the costs of this petition. Senior counsel certified.