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2010 Supreme(UK) 670
2011 (1) UAD 698
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Tarun Agarwala and Hon’ble Mr. Justice Sudhanshu Dhulia
Writ Petition No. 102 of 2010 (S/B)
YOGENDRA PRASHAD – Petitioner
Versus
STATE OF UTTARAKHAND & ORS. – Respondents
Decided on : 30.09.2010
For the Petitioners:Mr. Anmol Ratan Siddhu, Sr. Adv., assisted by Mr. Rakesh Nagpal and Mr. H.M. Bhatia, Advocates
For the Respondent No. 1 & 2:Mr. Keshari Nath Tripathi, Sr. Adv., Sri S.N. Babulkar, Advocate General assisted by Mr. Kuldeep Pati Tripathi, Advocate
For the Respondent No. 2:Mr. Vinay Kumar, Advocate
For the Respondent No. 4:Mr. V.K. Kohli, Sr. Adv., assisted by Mr. T.C. Pande, Advocate
Headnote:(A) Service Matter — Doctrine of pleasure — Petitioner holding his office during the pleasure of the Governor — But was removed from his office without notice and without assigning any cause — Writ petition — Held that no notice was required to be given to the petitioner who had been appointed during the pleasure of the Governor — But the doctrine of pleasure did not mean that the Government could act arbitrarily, capriciously or whimsically — Held that reasons for his removal were specified and considered by the concerned authority and approved by the Chief Minister — It was based on valid reasons and no interference was warranted.
(Paras 19 to 22)
(B) Service Matter — 'Foundation' and 'Motive' — Distinction between — In relation to a termination letter — It is thin or is overlapping and at times it may be difficult to classify the order of termination in one or the other category — Whether the order of termination is based on motive or based on foundation — No strait jacket test can be laid down to distinguish "motive" and "foundation — Yet the fact remains that the two are certainly two points of one line — Consequently, it is for the courts to decide having recourse to the facts and circumstances of each case. (Para 32)
(C) Service Matter — Grave imputations — Consideration — Held that when grave imputations are made against an officer holding a high post — A need exists to enquire into the imputations because the officer is placed highly in the administrative set up — These considerations are irrelevant in the judicial approach — But, if not enquired into, by the competent authority — Effective functioning of the democratic process would be jeopardised. (Para 37)
(D) Service Matter — Pleasure of Governor — Appointment at — Such persons are chosen not to enable them to earn their livelihood, but to serve the society — Persons of calibre and experience are chosen for the post — The Government is in the ultimate charge of the administration and if it appoints a person worthy of its confidence — Government may in larger interest appoint such a person in the larger interest of administration, which does not involve violation of any legal or constitutional rights — Similarly, when the Government thinks of withdrawing its pleasure — It must keep in mind the status and the yeoman service which that person had put into public life — And, consequently, while withdrawing the pleasure, should preserve the dignity of that person rather than passing an order withdrawing the pleasure at the cost of humiliation, loss of face, harassment etc. to that person — These things to be kept in mind by the Government while withdrawing the pleasure. (Para 38)
¼v½ lsok ds izdj.k esa izlérk dk fl)kUr & ;kph jkT;iky dh izlérk ds nkSjku viuk in /kkj.k fd;s gqvk Fkk ijUrq fcuk uksfVl fn;s vkSj dksbZ dkj.k n'kkZ;s mldks in ls gVk fn;k x;k ftl ds fo#) fjV ;kfpdk nk;j dh xbZ & fu.kZ; esa dgk x;k fd ;kph dks dksbZ uksfVl fn;s tkus dh vko';drk ugha Fkh tks fd jkT;iky dh izlérk ds nkSjku fu;qDr fd;k x;k Fkk & ijUrq izlérk ds fl)kUr dk ;g vFkZ ugha Fkk fd ljdkj }kjk LoPNUnrk] vdLekr O;ogkj cnyus vFkok lud ds vk/kkj ij dk;Z dj lds & fu.kZ; esa dgk x;k fd mlds in ls gVkus ds dkj.kksa dk mYys[k fd;k x;k Fkk vkSj lEcfU/kr vf/kdkjh }kjk fopkj Hkh fd;k x;k Fkk vkSj eq[;ea=h }kjk vuqeksfnr fd;k x;k Fkk & ;g mi;qDr dkj.kksa ij vk/kkfjr Fkk ftl esa fdlh gLr{ksi dh vko';drk ugha gSA ¼izLrj 19 ls 22½
¼c½ lsok dk izdj.k & cqfu;kn vkSj izsj.kk esa varj & cj[kkLrxh i= ds lEcU/k esa ;g cgqr iryk vFkok ,d ds Åij ,d gksrk gS vkSj dbZ le; rks ;g vkns'k esa vUrj fd;k tkuk dfBu gks tkrk gS fd bls fdl Js.kh esa j[kk tk, & fd cj[kkLrxh dk i= izsj.kk ij vk/kkfjr gS vFkok cqfu;kn ij irk gh ugha yxrk & dksbZ lh/kk lPpk ,slk iz;ksx LFkkfir ugha fd;k tk ldrk ftl ls izsj.kk vkSj cqfu;kn esa varj fd;k tk lds & bl ij Hkh ;g rF; dk iz'u gS fd fuf'pr :i ls nksuksa ,d ykbu ds nks fcUnq gSa ifj.kker% ;g U;k;ky; ij fuHkZj djrk gS fd izR;sd dsl ds rF;ksa vkSj ifjfLFkfr;ksa ds vk/kkj ij gh dsl dk fu.kZ; fn;k tk,A ¼izLrj 32½
¼l½ lsok dk izdj.k & xaHkhj vkjksi fopkjk/khu & fu.kZ; esa dgk x;k fd tc xaHkhj vkjksi ,sls vf/kdkjh ds fo#) yxk;s tkrs gSa tks mPp in ij vklhu gks rks vkjksiksa dh xgurk ls tkap fd;s tkus dh vko';drk fo|eku gksrh gS ih MCY;w fd vf/kdkjh iz'kklu ds mPp in ij vklhu gS & ;s fopkj.k U;kf;d izfd;k esa fujFkZd ekus tkrs gSa & ijUrq ;fn l{ke vf/kdkjh }kjk tkap ugha djkbZ xbZ rks iztkrkaf=d izfd;k dh izHkkoh iz.kkyh gh Bi gks tk,xhA ¼izLrj 37½
¼n½ lsok dk izdj.k & jkT;iky dh izlérk ij fu;qfDr gksuk & ,sls yksxksa dk pquko mUgsa /ku dekus ds fy, ugha fd;k tkrk ijUrq lekt dh lsok ds okLrs gksrk gS & ,sls in gsrq vuqHkoh vkSj izfrHkk'kkyh yksx gh pqus tkrs gSa & ljdkj ih MCY;w fd iw.kZr;k iz'kklu dh izHkkjh gksrh gS rks og vius fo'okl ds dkfcy O;fDr dks gh fu;qDr djrh gS & ljdkj ,sls O;fDr dks iz'kklu ds o`gr LokFkZ gsrq fu;qDr djrh gS ftls fdlh dkuwuh vFkok laoS/kkfud vf/kdkj dk mYya?ku ugha djuk pkfg, & blh izdkj tc ljdkj viuh izlérk dks okfil ysuk pkgrh gS rks bls ml O;fDr ds Lrj vkSj fo'ks"k lsok dks /;ku esa j[kuk pkfg, ftls ml O;fDr }kjk ljdkj esa iznku fd;k x;k Fkk & vkSj ifj.kker% tc viuh izlérk dks lekIr djs rks ml O;fDr ds lEeku dks dk;e j[kk tk, uk fd mldk vieku djrs gq, izlérk dks okfil fy;k tk, rkfd mldh csbTtrh gks] ;k mRihM+u fd;k tk, & bu phtksa dk ljdkj dks /;ku j[kuk pkfg, tc viuh izlérk dks okfil fy;k tk,A ¼izLrj 38½
[Per : Hon’ble Tarun Agarwala, J.]
1. The petitioner retired from the post of Chairman-cum-Managing Director, National Hydro-Electric Power Corporation in the year 2005. The petitioner was appointed in an honorary capacity as a Special Advisor (Energy) on 07.01.2006 by the Government of Uttarakhand. In addition to the above, the Government subsequently appointed the petitioner as a part time Director of the Corporation and also appointed the petitioner as Chairman of Uttarakhand Jal Vidyut Nigam Ltd. w.e.f. 24.05.2007. It is alleged that the petitioner was appointed to ensure the commissioning of the Maneri Bhali Project within the stipulated period. The appointment of the petitioner was extended by the Government from time to time.
2. Things were moving smoothly, but from January 2010, the seeds of discontent started germinating. The petitioner contends that he came to know about the irregularities, indiscipline and corrupt practices being adopted by a certain section of the people and, accordingly, he brought such irregularities to the notice of the State Government.
3. The petitioner made a complaint against Mr. B.C.K. Mishra, Director (Operation), UJVNL about his corrupt practices and actions causing loss of image of the Nigam as well as the State Government and intimated the Principal Secretary (Energy) by a letter dated 07.01.2010 recommending that Mr. B.C.K. Mishra should be sent on three months leave pending enquiry against him. It is alleged that an intimation was also submitted to the Chief Minister inspite of which no action was initiated against him.
4. It is alleged that the petitioner’s complaint against Mr. Mishra made the Energy Department turn against him which, in turn, started a chain reaction. It is submitted that a meeting of the Board of Directors was scheduled to be held on 21.05.2010. The Additional Secretary, Department of Energy wrote a letter dated 18.05.2010 to the petitioner to postpone the meeting on account of the non-availability of the Secretary, Energy. In response to the aforesaid letter, the petitioner intimated respondent no. 5, by a letter dated 19.05.2010, that the decision to call a meeting of the Board of Directors vests with the Board of Directors and that the said meeting could not be adjourned at the behest of Secretary, Energy.
5. It is alleged that the Company Secretary of the Nigam, respondent no. 4 received a phone call from respondent no. 3, namely, the Additional Secretary, Department of Energy threatening respondent no. 4 to cancel the meeting of the Board of Directors, failing which his services would be terminated. It is further alleged that respondent no. 4 again rang up respondent no. 3 directing him to send the intimation about the cancellation of the meeting, by fax, within 15 minutes. Respondent no. 4 submitted the details of the conversation to the petitioner in writing, a copy of which has been enclosed as Annexure P-7/C. Since the meeting was not adjourned, it is alleged that respondent no. 3 carried out the threat and an order dated 19.05.2010 was issued terminating the services of the petitioner with immediate effect. By an order of the same date, respondent no. 5 was appointed as the Chairman. The petitioner, being aggrieved by the aforesaid order, has preferred the writ petition.
6. Heard Dr. Anmol Ratan Siddhu, the learned senior counsel duly assisted by Mr. Rakesh Nagpal and Mr. H.M. Bhatia, the learned counsel for the petitioner, Mr. Keshari Nath Tripathi, the learned senior counsel, Mr. S.N. Babulkar, the learned Advocate General assisted by Mr. Kuldeep Pati Tripathi, the learned counsel for the respondent nos. 1 & 2, Mr. Vinay Kumar, the learned counsels for the respondent no. 3 and Mr. V.K. Kohli, the learned senior counsel assisted by Mr. T.C. Pande, the learned counsel for the respondent no. 4.
7. The learned senior counsel for the petitioner submitted that the impugned order was malafide and was passed in a colourable exercise of power. The lea
