Anil Garg Vs. Western Coalfields Ltd. and anr. - Court Judgment

Excerpt:
constitution - persona non grata - article 19(1)(g) of constitution of india - petitioner was lawyer - petitioner was practicing in that area where workers of respondent organistions were residing - respondent organization acquired various land of tribal - petitioner raised his voice for rehabilitation of tribal - due to dispute arose between management of organization and petitioner, respondent organization declared petitioner to be persona non grata and prohibited their employees from consulting petitioner for their grievances - respondent organization also restricted petitioner to enter in area of coalfields where market is situated or any part of coal fields - hence, present petition - whether action of respondent is just and proper and not in violation of right of petitioner granted under article 19(1)(g) of constitution? - held, if respondent organization is aggrieved from any action of petitioner then it can restrict petitioner to enter into its offices - however, respondent organization not empowered to restrict petitioner to enter into any social place and declared petitioner to be persona non grata - action of respondent organization clearly in violation of right of petitioner granted under 19(1)(g) of constitution, accordingly quashed - petition allowed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - workers have been restrained to meet petitioner failure to comply directive may result in disciplinary action for misconduct. the impugned order (p-1) declaring him persona non grata is bad in law and is violative of article 19 of constitution of india, it amounts to 'externment' from area. bhave, learned senior counsel for the petitioner, submitted that order is violative of constitutional right under article 19. petitioner has been illegally declared, persona non grata'.workers could not be prevented from meeting petitioner, he is an advocate and petitioner was well within his right to raise grievance against the w. 8. it is not in dispute that petitioner had been espousing the cause of poor tribals and has successfully set the machinery in motion at various levels. 10. the action of declaring petitioner 'persona non grata' and requiring him not to move in 'pathakhera' carries adverse civil consequences, hence it is bad for manifold reasons. 11. order (p-1) is bad in law as it does not impose restriction for temporary/short period. 12. the order is bad in law for yet different reason as it offends principles of natural justice. misra, it is held that a law of externment of internment would be void if it does not offer a right of representation or an opportunity to be heard to the person against whom an order is passed is clearly laid down in state of m. misra (supra). before passing order (p-1) principles of natural justice have not been adhered to hence order is bad in law.orderarun mishra, j.1. petitioner in this application seeks the quashment of the order declaring him 'persona non grata '.2. petitioner is a lawyer and member of district bar association, betul, free lance journalist, organiser of jila upbhokta manch and is secretary of satpuda kisan & mazdoor kalyan samiti, betul. respondent western coalfields ltd. is a company carries on coal mining operations. huge land was acquired for the coal mining operations. area of ghodadongari had 60% tribal population. petitioner took up the various causes of the tribals. petitioner pointed out to various authorities problems of tribals regarding rehabilitation, by diplere. the government machinery was put in motion by petitioner respondent got irked and decided to control activities of petitioner within coal mines area and particularly in 'pathakhera' area. restriction has been put on petitioner's movement and activities within coal mines area particularly in pathakhera. workers have been restrained to meet petitioner failure to comply directive may result in disciplinary action for misconduct. pathakhera as per petitioner's case has 1 lac population and is part of sarni municipal council with total population of 2 lacs. at pathakhera various civil amenities exists such as zonal bus stand, police station, forest check post, government hospital, post office, banks, veterinary hospital, daily & weekly markets, government tribal high schools, little flower and swami vivekanand schools, sub-office of municipal council, sarni etc. the impugned order (p-1) declaring him persona non grata is bad in law and is violative of article 19 of constitution of india, it amounts to 'externment' from area. the order is beyond jurisdiction. petitioner has no criminal tendency. since petitioner is a lawyer. workers could not be prevented to meet the petitioner. the order tarnishes the image of the petitioner.3. the respondents contest the claim of petitioner and seek to justify the order on the ground that petitioner is not a social worker. petitioner assaulted shri n.k. anand, general manager, wcl, pathakhera on 26-2-98 when he went to betul in connection of his official work. petitioner has no right to instigate workers if they are aggrieved they can approach the respondents. there are five recognized trade unions to take care of the working interest. no civil right of petitioner has been affected. the order is in the interest of wcl. petitioner creates unrest in the industry. workers have no right to approach petitioner for redressal of grievance. petitioner has made complaints for last 5 years in various offices. no worker has protested against order (p-1).4. shri p.r. bhave, learned senior counsel for the petitioner, submitted that order is violative of constitutional right under article 19. petitioner has been illegally declared, 'persona non grata'. workers could not be prevented from meeting petitioner, he is an advocate and petitioner was well within his right to raise grievance against the w.c.l. to protect interest of workers and tribals as apparent from p-2 to p-15. action is malafide. the petitioner has been deprived of using civil amenities at pathakhera of which respondents have no jurisdiction. p-1 affects civil rights of petitioner in various ways, hence order (p-1) be quashed.5. shri p.s. nair, learned senior counsel appearing for the respondents, submits that petitioner has no right to enter the premises owned by respondents. they can impose reasonable restriction in the interest of w.c.l. considering the nature of activities in which petitioner involved himself, an order has been passed which call for no interference in the writ petition.6. following questions arise for consideration :--(1) whether the order declaring petitioner as 'persona non grata' is valid and proper; (2) whether respondents have powers to restrict the movement of petitioner and to what extent; (3) whether order (p-1) imposing condition; if any worker, staff and officer keeps relation with petitioner, it will constitute a misconduct and disciplinary action will be taken against him is illegal and unconstitutional. 7. first question for consideration is whether the order declaring petitioner as persona non grata is valid and proper. the order has the effect of ousting petitioner from 'pathakhera' area which is part of 'sarni' municipal council in the area in which restriction has been imposed includes local bus stand, police station, forest check-post, govt. hospitals, veterinary hospital, post office, banks, daily & weekly market place, schools, sub-office of municipal council, sarni. the order (p-1) has the effect of restricting the movement of petitioner in the area which is open to a person of general public and have amenities of day to day utility. it is not an order restricting movement of petitioner exclusively in place of work or office where the right of entry may be restricted with permission. the validity of the order has to be gauged in the backdrop of said fact situation.8. it is not in dispute that petitioner had been espousing the cause of poor tribals and has successfully set the machinery in motion at various levels. p-2 indicates that petitioner represented to member of parliament about removal of 600 employees in the year 1992. action was requested to be initiated. member of parliament wrote a letter to ministry of coal with a copy to petitioner in his capacity as convenor of satpuda kisan and labour welfare committee, betul. p-3 and p-6 indicate that petitioner lodged complaint about possibility of damage by diplering p-7 & p-8 relates to complaint lodged of oppression of tribes and non-compliance of various directions issued by supreme court. some more documents reflect that for several years petitioner had been raising grievance before various authorities.9. it is clear that while associating with p-2 to p-15, it cannot be said that petitioner had involved himself is uncalled for activity or illegal activity in any manner nor it can be said that petitioner created unrest in the industry. the raising of grievance of the nature raised by petitioner cannot be said to be an illegal interference in the functioning of the w.c.l.10. the action of declaring petitioner 'persona non grata' and requiring him not to move in 'pathakhera' carries adverse civil consequences, hence it is bad for manifold reasons. such an order has to be treated to at par with an order of externment. right to move freely throughout india is a right guaranteed by article 19(1)(d). the rights which are ensured under article 19(1) can be curtailed as per articles 19(3) and 19(6) only by a law as laid down in kharak singh v. state of m.p. and ors., air 1963 sc 1295, such restriction is imposable by an intra vires law as laid down in narendra kumar v. union of india, air 1960 sc 430, and has held in rustom cavasjee cooper and ors. v. union of india, air 1970 sc 564, such law must be valid law. it must be within competence of legislation and must not contravene any other provisions of constitution. p-1 deals with imposition of restrictions even in public places such as bus stand, hospitals, municipal office etc. hence such restriction is capable of being imposed only by law enacted by legislation. the order (p-1) does not have sanctity of law and cannot impose restrictions at places open to public. w.c.l. can only have right to reserve entry in its offices or working place where permission may be required to enter. the order restricting free movement in entire 'pathakhera' area is patently illegal and ultra vires of power.11. order (p-1) is bad in law as it does not impose restriction for temporary/short period. in gurubachan v. state of bombay, (1952) scr 737, it was held that restriction on freedom of movement is reasonable only if it of temporary duration.12. the order is bad in law for yet different reason as it offends principles of natural justice. petitioner has not been heard. he has not been informed of grounds. communication of grounds in such a matter cannot be vague insufficient or incomplete as held in dr. n.r. khare v. the state of delhi, 1950 scr 519.13. order (p-1) is void as order has been passed without hearing him. in state of bihar v. misra, it is held that a law of externment of internment would be void if it does not offer a right of representation or an opportunity to be heard to the person against whom an order is passed is clearly laid down in state of m.p. and anr. v. thakur bharat singh, air 1967 sc 1170, gurubachan (supra) and state ofbihar v. misra (supra). before passing order (p-1) principles of natural justice have not been adhered to hence order is bad in law.14. in my opinion, the respondents have no right to check the movement of petitioner at public places. the respondents can restrict entry only in their office and actual work place where permission is required and entry is restricted. no general restriction can be ordered when entire township exist at pathakhera. thus, p-1 is void and inoperative.15. yet another aspect invalidates the order (p-1) and makes it liable for quashment. the respondents have imposed restriction on their employees to have any relation with petitioner who is a lawyer and had been representing the cause of worker/tribals. the restriction is wholly unconstitutional as respondents have no authority to impose such a restriction with whom labourers may contact for redressal of grievance cannot be restricted as sought to be done by impugned order. the petitioner being lawyer has the right to meet workmen and vice versa. the workers could not be threatened with misconduct and disciplinary proceedings. this amount to putting in jeopardy the right of petitioner to carry on profession of law and his right to have discussion enshrined under article 19. the order is illegal and void as it infringes petitioner's right conferred under article 19(1)(g) of the constitution of india.16. resultantly, the writ petition is allowed. the order (p-1) is quashed with the observations made above. costs on parties.

Judgment:
ORDER

Arun Mishra, J.

1. Petitioner in this application seeks the quashment of the order declaring him 'persona non grata '.

2. Petitioner is a lawyer and Member of District Bar Association, Betul, Free Lance Journalist, Organiser of Jila Upbhokta Manch and is Secretary of Satpuda Kisan & Mazdoor Kalyan Samiti, Betul. Respondent Western Coalfields Ltd. is a Company carries on coal mining operations. Huge land was acquired for the coal mining operations. Area of Ghodadongari had 60% tribal population. Petitioner took up the various causes of the tribals. Petitioner pointed out to various authorities problems of tribals regarding rehabilitation, by diplere. The Government machinery was put in motion by petitioner respondent got irked and decided to control activities of petitioner within coal mines area and particularly in 'Pathakhera' area. Restriction has been put on petitioner's movement and activities within coal mines area particularly in Pathakhera. Workers have been restrained to meet petitioner failure to comply directive may result in disciplinary action for misconduct. Pathakhera as per petitioner's case has 1 lac population and is part of Sarni Municipal Council with total population of 2 lacs. At Pathakhera various civil amenities exists such as zonal bus stand, police station, Forest check post, Government hospital, Post Office, Banks, Veterinary Hospital, daily & weekly markets, Government Tribal High Schools, Little Flower and Swami Vivekanand Schools, sub-office of Municipal Council, Sarni etc. The impugned order (P-1) declaring him persona non grata is bad in law and is violative of Article 19 of Constitution of India, it amounts to 'Externment' from area. The order is beyond jurisdiction. Petitioner has no criminal tendency. Since petitioner is a lawyer. Workers could not be prevented to meet the petitioner. The order tarnishes the image of the petitioner.

3. The respondents contest the claim of petitioner and seek to justify the order on the ground that petitioner is not a social worker. Petitioner assaulted Shri N.K. Anand, General Manager, WCL, Pathakhera on 26-2-98 when he went to Betul in connection of his official work. Petitioner has no right to instigate workers if they are aggrieved they can approach the respondents. There are five recognized trade unions to take care of the working interest. No civil right of petitioner has been affected. The order is in the interest of WCL. Petitioner creates unrest in the industry. Workers have no right to approach petitioner for redressal of grievance. Petitioner has made complaints for last 5 years in various offices. No worker has protested against order (P-1).

4. Shri P.R. Bhave, learned Senior Counsel for the petitioner, submitted that order is violative of constitutional right under Article 19. Petitioner has been illegally declared, 'persona non grata'. Workers could not be prevented from meeting petitioner, he is an advocate and petitioner was well within his right to raise grievance against the W.C.L. to protect interest of workers and tribals as apparent from P-2 to P-15. Action is malafide. The petitioner has been deprived of using civil amenities at Pathakhera of which respondents have no jurisdiction. P-1 affects civil rights of petitioner in various ways, hence order (P-1) be quashed.

5. Shri P.S. Nair, learned Senior Counsel appearing for the respondents, submits that petitioner has no right to enter the premises owned by respondents. They can impose reasonable restriction in the interest of W.C.L. considering the nature of activities in which petitioner involved himself, an order has been passed which call for no interference in the writ petition.

6. Following questions arise for consideration :--

(1) Whether the order declaring petitioner as 'persona non grata' is valid and proper;

(2) Whether respondents have powers to restrict the movement of petitioner and to what extent;

(3) Whether order (P-1) imposing condition; If any worker, staff and officer keeps relation with petitioner, it will constitute a misconduct and disciplinary action will be taken against him is illegal and unconstitutional.

7. First question for consideration is whether the order declaring petitioner as persona non grata is valid and proper. The order has the effect of ousting petitioner from 'Pathakhera' area which is part of 'Sarni' Municipal Council in the area in which restriction has been imposed includes local bus stand, police station, forest check-post, Govt. hospitals, veterinary hospital, post office, banks, daily & weekly market place, schools, sub-office of Municipal Council, Sarni. The order (P-1) has the effect of restricting the movement of petitioner in the area which is open to a person of general public and have amenities of day to day utility. It is not an order restricting movement of petitioner exclusively in place of work or office where the right of entry may be restricted with permission. The validity of the order has to be gauged in the backdrop of said fact situation.

8. It is not in dispute that petitioner had been espousing the cause of poor tribals and has successfully set the machinery in motion at various levels. P-2 indicates that petitioner represented to Member of Parliament about removal of 600 employees in the year 1992. Action was requested to be initiated. Member of Parliament wrote a letter to Ministry of Coal with a copy to petitioner in his capacity as Convenor of Satpuda Kisan and labour Welfare Committee, Betul. P-3 and P-6 indicate that petitioner lodged complaint about possibility of damage by diplering P-7 & P-8 relates to complaint lodged of oppression of tribes and non-compliance of various directions issued by Supreme Court. Some more documents reflect that for several years petitioner had been raising grievance before various authorities.

9. It is clear that while associating with P-2 to P-15, it cannot be said that petitioner had involved himself is uncalled for activity or illegal activity in any manner nor it can be said that petitioner created unrest in the industry. The raising of grievance of the nature raised by petitioner cannot be said to be an illegal interference in the functioning of the W.C.L.

10. The action of declaring petitioner 'persona non grata' and requiring him not to move in 'Pathakhera' carries adverse civil consequences, hence it is bad for manifold reasons. Such an order has to be treated to at par with an order of externment. Right to move freely throughout India is a right guaranteed by Article 19(1)(d). The rights which are ensured under Article 19(1) can be curtailed as per Articles 19(3) and 19(6) only by a law as laid down in Kharak Singh v. State of M.P. and Ors., AIR 1963 SC 1295, such restriction is imposable by an intra vires law as laid down in Narendra Kumar v. Union of India, AIR 1960 SC 430, and has held in Rustom Cavasjee Cooper and Ors. v. Union of India, AIR 1970 SC 564, such law must be valid law. It must be within competence of legislation and must not contravene any other provisions of Constitution. P-1 deals with imposition of restrictions even in public places such as bus stand, hospitals, municipal office etc. hence such restriction is capable of being imposed only by law enacted by legislation. The order (P-1) does not have sanctity of law and cannot impose restrictions at places open to public. W.C.L. can only have right to reserve entry in its offices or working place where permission may be required to enter. The order restricting free movement in entire 'Pathakhera' area is patently illegal and ultra vires of power.

11. Order (P-1) is bad in law as it does not impose restriction for temporary/short period. In Gurubachan v. State of Bombay, (1952) SCR 737, it was held that restriction on freedom of movement is reasonable only if it of temporary duration.

12. The order is bad in law for yet different reason as it offends principles of natural justice. Petitioner has not been heard. He has not been informed of grounds. Communication of grounds in such a matter cannot be vague insufficient or incomplete as held in Dr. N.R. Khare v. The State of Delhi, 1950 SCR 519.

13. Order (P-1) is void as order has been passed without hearing him. In State of Bihar v. Misra, it is held that a law of externment of internment would be void if it does not offer a right of representation or an opportunity to be heard to the person against whom an order is passed is clearly laid down in State of M.P. and Anr. v. Thakur Bharat Singh, AIR 1967 SC 1170, Gurubachan (supra) and State ofBihar v. Misra (supra). Before passing order (P-1) principles of natural justice have not been adhered to hence order is bad in law.

14. In my opinion, the respondents have no right to check the movement of petitioner at public places. The respondents can restrict entry only in their office and actual work place where permission is required and entry is restricted. No general restriction can be ordered when entire township exist at Pathakhera. Thus, P-1 is void and inoperative.

15. Yet another aspect invalidates the order (P-1) and makes it liable for quashment. The respondents have imposed restriction on their employees to have any relation with petitioner who is a lawyer and had been representing the cause of worker/tribals. The restriction is wholly unconstitutional as respondents have no authority to impose such a restriction with whom labourers may contact for redressal of grievance cannot be restricted as sought to be done by impugned order. The petitioner being lawyer has the right to meet workmen and vice versa. The workers could not be threatened with misconduct and disciplinary proceedings. This amount to putting in jeopardy the right of petitioner to carry on profession of law and his right to have discussion enshrined under Article 19. The order is illegal and void as it infringes petitioner's right conferred under Article 19(1)(g) of the Constitution of India.

16. Resultantly, the writ petition is allowed. The order (P-1) is quashed with the observations made above. Costs on parties.