Ram Kumar Kashyap and anr. Vs. Union of India (Uoi) and anr. - Court Judgment

Excerpt:
- [kuldip singh and; p.b. sawant, jj.] tenancy and land laws — m.p. ceiling on agricultural holdings act, 1960 — s. 4(1) and (4) - the object and the purpose of the m.p. ceiling on agricultural holdings act, 1960, is to provide ceiling on the agricultural holdings, acquisition of surplus land and its disposal. provisions of section 4 of the act are a check on the transfers and the partitions which are made with a view to circumvent and defeat the provisions of the act. the high court on the interpretation of section 4(4) of the act held as under: the word ‘benami’ is sub-section (4) of section 4 of the act relates to transfers which are sham, fictitious, nominal or bogus. the burden to be discharged under section 4(4) of the act is a negative burden and as such less degree of proof than is usually required is warranted. such evidence as renders existence of the negative probable, changes the burden to the other party. following four elements are mandatory to void a transfer under section 4(4)— there must be a transfer by way of sale, gift, exchange or otherwise; the impugned transfer must have taken place during the period specified under section 4(4); it must have been made in anticipation of the act, having the effect of defeating any of the provisions of the act; the impugned transfer is benami i.e. sham, fictitious, nominal or bogus. the propositions (a) and (b) above are unexceptionable. however, the high court fell into an error in holding that unless the four elements are present the transfer cannot be declared void. it is not the requirement of section 4(4) that both the elements (c) and (c) are to be present to render a transfer void. the presence of either of the two elements is sufficient to declare the transfer void under the act. the high court was not justified in reading the word ‘or’ after the word ‘benami’ as ‘and’. a bare reading of section 4(4) of the act makes it clear that in either of the eventualities — defeating any of the provisions of the act or being benami — the transfer is liable to be declared void. the facts of this case clearly show that the impugned sale was made with the clear object of defeating the provisions of the act. the sale deed having been made after january 1, 1971 it came within the mischief of sections 4(1) and 4(4) of the act. the high court in disposing of the writ petition was not justified in reversing the finding of the board of revenue that the holder made the impugned sale to defeat the provisions of the act. - this exceptional treatment is mandated by article 317. furthermore, the issuance of suspension orders is as per the `procedure established by law' and not in derogation from the same. 11. the public service commission is an institution of the utmost importance created by the constitution of india under article 315. for the efficient functioning of a democracy it is imperative that the public service commissions are manned by people of the highest skill and irreproachable integrity, so that the selections to various public posts can be immunized from all sorts of extraneous factors like political pressure or personal favoritism and are made solely on considerations of merit. the character and conduct of the chairman and members of the commission, like caesar's wife, must therefore be above board. the high constitutional trustees, like the chairman and members of the public service commission must for ever remain vigilant and conscious of these necessary adjuncts.k.g. balakrishnan, c.j.1. the chairman and 8 members of the haryana public service commission were placed under suspension on 09.08.2008 by governor of the state of haryana. a reference was made under article 317(1) of the constitution of india by the hon'ble president of india. in these writ petitions the petitioners have sought for a writ of certiorari for quashing the reference made on 31.07.2008 by the hon'ble president of india under article 317(1) of the constitution of india and also for a direction that the order of suspension dated 09.08.2008 passed by the governor of state of haryana be declared as illegal and be quashed. when the matter came up for consideration, learned senior counsel appearing for the petitioners submitted that the first prayer for the writ of certiorari to quash the order of reference under article 317(1) of the constitution of india is not pressed. therefore, the only question that arises for consideration in these writ petitions is whether the suspension of 8 members and the chairman of public service commission by the governor of haryana by order dated 09.08.2008 is liable to be set aside or not.2. we heard the learned senior counsel for the petitioners and also counsel for the respondents. the main grievance of the petitioners is that they were neither given show cause notice nor an opportunity to be heard before the order of suspension was issued and thereby the principle of natural justice has been violated. before examining their submissions, it is necessary to consider the language of the constitutional provisions which deal with the removal and suspension of the members of public service commissions. article 317 of the constitution reads as follows:317. removal and suspension of a member of a public service commission(1) subject to the provisions of clause (3), the chairman or any other member of a public service commission shall only be removed from his office by order of the president on the ground of misbehaviour after the supreme court, on reference being made to it by the president, has, on enquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the chairman or such other member, as the case may be, ought on any such ground to be removed.(2) the president, in the case of the union commission or a joint commission, and the governor in the case of a state commission, may suspend from office the chairman or any other member of the commission in respect of whom a reference has been made to the supreme court under clause (1) until the president has passed orders on receipt of the report of the supreme court on such reference.(3) notwithstanding anything in clause (1), the president may by order remove from office the chairman or any other member of a public service commission if the chairman or such other members, as the case may be,-- (a) as adjudged an insolvent; or (b) engages during his term of office in any paid employment outside the duties of his office; or (c) is, in the opinion of the president./p>(4) if the chairman or any other member of a public service commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the government of india or the government of a state or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be to be guilty of misbehaviour.(emphasis supplied)3. article 317 makes it amply clear as to how the members of the public service commission are liable to be removed from office and the founding fathers of our constitution incorporated this procedure in order to give the chairman and members security of tenure to safeguard them against motivated or wrong charges of misbehavior. the obvious intent behind the same is to protect them from undue political pressures or personal favoritism and vendetta thereby enabling the public service commissions to discharge their constitutional obligations in full measure.4. it has been argued on behalf of the petitioners that the passing of the common order of suspension by the hon'ble governor of the state of haryana would cause adverse civil consequences, they deserved a notice and an opportunity of being heard before such order was passed. the petitioners have cited several judgments of this court such as those delivered in state of orissa v. dr. (miss) bina pani dei and ors. : air 1967 sc 1269; sayeedur rehman v. the state of bihar and ors. : (1973) 3 scc 333; s.l. kapoor v. jagmohan and ors. : (1980) 4 scc 379; and olga tellis and ors. v. bombay municipal corporation and ors. : (1985) 3 scc 545, all of which affirm the principle that an adverse order cannot be passed at the back of the affected party.5. it is not necessary that principles of `audi alterem partem' rigorously followed in the domain of service law need to be applied with the same degree of rigour in proceedings involving the removal and suspension of the members of the state public service commission. this exceptional treatment is mandated by article 317. furthermore, the issuance of suspension orders is as per the `procedure established by law' and not in derogation from the same.6. it will be useful to refer to a judgment of this court in special reference no. 1 of 1983, (1990) 4 scc 262, wherein it was held that the position of a chairman or a member of a public service commission cannot be equated with that of a public servant and hence the case law pertaining to the suspension and removal of public employees has no relevance in the context of the proceedings under article 317.7. the relevant observations were made at para 9:9. the case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a member of the commission is different. the latter holds a constitutional post and is government by the special provisions dealing with different aspects of his office as envisaged by the articles 315 to 323 of chapter ii of part xiv of the constitution. in our view the decisions dealing with service cases relied upon behalf of the respondent have no application to the present matter and the reference will have to answered on the merits of the case with reference to the complaint and the respondents' deference8. furthermore this court in reference no. 1 of 2003, (2005) 6 scc 789, has held that no hearing or opportunity of showing cause against the proposed reference under article 317(1) is necessary before making the actual reference. the relevant observations are as follows (para. 2):2. we have heard the learned additional solicitor general for the union of india, as also the learned counsel for the respondent on the preliminary objections. we are of the opinion that no hearing or opportunity of showing cause against the proposed reference under article 317(1) is necessary before making the reference. the first objection is overruled.9. in sayalee sanjeev joshi, in re (2007) 11 scc 547, which concerned the removal of a member of the maharashtra public service commission under article 317 on grounds of misbehaviour, this court had observed (para. 1):1. ...since a request was made to the president of india to act in terms of article 317(1) of the constitution, the placing of the respondent under suspension under article 317(2) of the constitution was proper.10. it is clear from the perusal of the above cases that the petitioners were not entitled to an opportunity to show cause or to be heard before the point of time that the orders of suspension were passed by the hon'ble governor of haryana under article 317(2) after the president had referred the matter to the supreme court. the rationale behind empowering the governor of a state to issue such an order for suspension even before the reference is actually decided by the supreme court is to maintain the public trust and confidence in the impartial and honest working of the said public service commission. it is a prerogative given to the state executive, but the members so suspended are given the opportunity to present their cases when the actual reference is decided upon by the supreme court. it is open to the members so suspended to present their point of view at that stage. after all, it is only after the merits of the case have been examined that the supreme court arrives at an answer to the reference and communicates the same decision to the president for further action.11. the public service commission is an institution of the utmost importance created by the constitution of india under article 315. for the efficient functioning of a democracy it is imperative that the public service commissions are manned by people of the highest skill and irreproachable integrity, so that the selections to various public posts can be immunized from all sorts of extraneous factors like political pressure or personal favoritism and are made solely on considerations of merit.12. in special reference no. 1 of 1997, : (2000) 4 scc 309, this court discussed the role of the members of the public service commissions and made the following observations with regard to their duties and qualifications (para. 4):4. keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the chairman and members of the public service commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. the character and conduct of the chairman and members of the commission, like caesar's wife, must therefore be above board. they occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the chairman and members of the public service commissions.13. at para 31 of the same opinion, this court further stated:31.the credibility of the institution of public service commission is founded upon faith of the common man on its proper functioning. the faith would be eroded and confidence destroyed if it appears that the chairman or the members of the commission act subjectively and not objectively or that their actions are suspect. society expects honesty, integrity and complete objectivity from the chairman and members of the commission. the commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that the society does not loose confidence in the commission. the high constitutional trustees, like the chairman and members of the public service commission must for ever remain vigilant and conscious of these necessary adjuncts.14. it is very clear that since the public service commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said commissions. hence, we are of the opinion that the en bloc suspension of the 8 members and chairman of the haryana public service commission by the hon'ble governor of haryana by an order dated 09.08.2008 under article 317(2) of the constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed.15. the writ petitions are dismissed.