B. Mukhthar Pasha Vs. the General Manager, Personnel Administration, Bharat Heavy Electrials Ltd. and ors. - Court Judgment

Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has jurisdiction to pass interim orders under section 17 of the securitisation act in appropriate cases. the tribunal is empowered to grant interim stay subject to such conditions as may be deemed proper including condition of deposit. even under section 69 of the transfer of property act, the only remedy of the borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the action of the bank was in accordance with the provisions of the act and legally sustainable. however, while considering the question of validity of the action of the bank, it is not necessary for the tribunal to adjudicate the exact amount due to the secured creditors. in other words, the purpose of an application under section 17 is not the determination of the quantum of claim per se as the tribunal is concerned with the issue of the validity of the measures taken by the banks/financial institutions under section 13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the action taken already is in accordance with the provisions of the securitisation act and the rules made thereunder. use of the word if does not connote a condition precedent. it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature. the provisions of section 17 must, therefore, receive such construction at the hands of the court as would advance the object and at any event not thwart it. in other words, the principle of purposive interpretation should be applied while construing the said provisions. the securitisation act is enacted to provide a speedy and summary remedy for recovery of thousands of crores which were due to the banks and financial institutions. ordera.s. anand, c.j.1. the appellant at the relevant time, was serving as sub inspector in the security force with the bharat heavy electricals limited, trichy. he applied to the second respondent, the senior security officer, bharat heavy electricals limited, trichy, for permission to grow a beard as he intended to perform haj pilgrimage and to sport the beard thereafter also. permission was granted for a specified period of 45 days, vide letter dated 17th january, 1985. that permission for the specified period, however, was not considered sufficient by the appellant and vide his letter, dated 25th january, 1985, he sought permission to keep the beard beyond the period of 45 days which in any case had lapsed. in his letter, he submitted that muslims employed in police, military and other forces as also in other walks of life were allowed to grow beard and that, therefore, he should not be denied the right to grow beard. the appellant, however, was informed by the third respondent, vide communication dated 6th february, 1985, that being an employee of the security force, he was not permitted to keep a beard. he was told that his conduct was subject to service rules and discipline and any disobedience thereof would be viewed seriously. the appellant made representations to respondents 2 and 3 and on 15th in february, 1985, the third respondent informed she appellant that he could not keep a beard and should come to duty clean shaven, failing which necessary disciplinary action would be taken. aggrieved, the appellant filed w.p. no.1363 of 1985 which was dismissed by a very elaborate order by the learned single judge on 13th july, 1986. the learned single judge concerned himself only with the question whether the refusal by respondents 2 and 3 to the appellant to grow a beard interfered with the appellant's religious lights and was violative of article 25 of the constitution of india and finding that it was not so, dismissed the writ petition thereby upholding the validity of the communication dated 15th february, 1985, impugned in the writ petition. 2. before proceeding to consider the case of the appellant in the light of the findings recorded by the learned single judge, we consider it appropriate to extract the communication dated 15th february, 1985, which was called in question through the writ petition, so as to test its validity. the communication reads thus:you have been clearly instructed in this office letter no. bhe/sso/2112515 dt. 6.2.1985 that you are not permitted to cult beard for more than 45 days which was already lapsed on 13.1:1985 and advised to come for duty with clean shave and that there is no concession to be given as muslim who is working in a disciplined force. being a sub inspector working in an uniformed force, you must adhere to rules and regulations of this department and be an example to others. in spite of following the instructions given to you vide this office letter cited above, you are still growing beard disobeying the orders lawfully issued to you.' 'you are hereby advised to remove the beard, on or before 22.2.1985, failing which necessary disciplinary action will be taken against you.3. cursory look at the above communication shows that disciplinary action was threatened against the appellant in case he did not remove the beard on or before 22nd february, 1985. it is stated in the communication that since the appellant was working in a disciplined, uniformed force, he had to adhere to the ' rules and regulations' of the department and the failure to do so could result, in disciplinary action being taken against him. 4. undoubtedly, if there are any rules, regulations, standing orders or even executive instructions prohibiting the keeping of beard by members of the security force, the respondents would be well within their rights to direct the employees not to keep a beard. whether such rule or regulation, etc., would be sustainable in the face of article 25 of the constitution of india is a different question. therefore, in the first instance it would be necessary to examine as to whether there are any rules, regulations, standing orders or executive instructions, having the force of rules/law of the department governing the matter under consideration which prohibit the members of the security force serving with bharat heavy electricals limited to keep a beard. 5. that the appellant, while serving with bharat heavy electricals limited as sub-inspector, grade ii, is governed by the central/industrial security force act, 1968 (hereinafter called the act) is not a matter in dispute. it also is not in dispute that there are no provisions in the act laying down that members of the security force cannot keep a beard. section 22 of the act empowers the central government, by notification in the official gazette, to make rules for carrying out the purpose of the act. in exercise of those powers, central industrial security force rules, 1969 have been framed. besides the act and the rules, there are also standing orders of bharat heavy electricals limited governing the service conditions of the employees.6. neither under the act or the rules framed thereunder, or the standing orders, is there any provision which prohibits the members of the security force to keep a beard. learned counsel for the respondents was unable to refer to any provision prescribing the norms of personal appearance in the act, rules or standing orders. in vain did we search for even an executive instruction which could be supplemental in character, prohibiting the keeping of beard by the members of the security force. according to learned counsel for the respondents, however, it is open to the respondents to issue reasonable instructions to its employees and their failure to carry out those instructions could invite disciplinary action. on principle, there can be no quarrel with the proposition that reasonable instructions can be given by the management to the employees. the question, however, is whether the instruction not to keep a beard, which does not have the sanction of any of the provisions of the act, rules, standing orders or executive instructions, can be treated as 'reasonable'. in our opinion, it cannot be so. in the absence of rules, regulations, etc., executive instructions can be given to fill in the gap, but if there are no executive instructions also governing a field, we fail to see how any direction can be given, which is not in furtherance of any of the provisions of the act, rules, regulations, etc. no disciplinary action can be initiated against an employer for an act of commission or omission, unless there are provisions in the service rules, etc., prohibiting that act of commission or omission. vide the impugned communication itself, what the appellant was told was that he has bound by the 'rules and regulations' of the department and had. to adhere to the same and in case he disobeyed the rules and regulations and did not come clean shaven, he would have to suffer disciplinary action. since neither any rule nor any regulation or instruction of the department prohibits the keeping of a beard, the question of the appellant violating any such rule or regulation or instruction by keeping a beard and thereby to invite disciplinary action does not arise. the direction given to the appellant to shave off his beard on the assumption that the 'rules and regulations',of the department prohibited the keeping of a beard cannot be said to be either reasonable or lawful direction since no rules or regulations exist prohibiting the keeping of a beard while in service. the direction given to the appellant, under the circumstances, was whimsical and arbitrary without any sanction of the act, rules, standing orders, regulations or executive instructions governing the service conditions of the appellant. learned counsel for the respondents fairly conceded that there was no provision in the service rules, regulations, standing orders, etc., prohibiting the keeping of a beard or providing any specific norms of personal appearance. he however, made an attempt to sustain the impugned direction by urging that since under the central industrial security force rules, 1969, rules had been framed with regard to 'dress regulation' of the members of the security force, the direction issued in the impugned communication was traceable to that rule. we cannot agree. keeping or not keeping a beard has nothing to do with the 'uniform' or the 'dress regulations' of the members of the security force as it restricts itself to prescribing the description and quantity of arms, accoutrements, clothing and other necessary articles like badges, etc., furnished to the members of the force and the manner of wearing the same. the rule relating to the prescription of uniform, thus, cannot be extended to include within its ambit the keeping or not keeping of a beard. we are unable to agree with the learned counsel for the respondents that the impugned direction itself be treated as a 'rule' made under she act prescribing that members of the security force cannot keep a beard. under section 2(g) of the act, 'prescribed' means 'prescribed by rules under the act', the impugned direction cannot, therefore, be equated with a 'rule' framed under the act. section 22(3) of the act provides:every rule made under the section shall be laid as soon as may be after it is made, before each house of parliament while it is in session for a total period of thirty days, which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, both houses agree in making any modification in the rule, or both houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. and the above provision itself exposes the futility of the argument raised by the learned counsel for the respondents. learned counsel for the respondents was even unable to refer to any policy declaration of bharat heavy electricals limited, in furtherance whereof, the third respondent had the authority to issue the impugned direction. since it is not a part of the service discipline of the to which the appellant belongs that he should be clean shaven only and that being the position, the threat held out to the. appellant to suffer disciplinary proceedings in the event he does not have off his beard in the communication, which contains the impugned directions, cannot be sustained. the learned single judge did not deal with this aspect of the matter at ail and went on to consider as to whether or not the direction in question was violative of the fundamental rights guaranteed by' article 25 of the constitution of india. strictly speaking, that question was required to be considered only if there was any rule, regulation, etc authorizing- the issuance of the impugned direction and without adverting to that aspect, it was not necessary to deal with, the constitutional question.7. since we have found that the impugned direction no to keep a beard has no sanction of, any rule, regulation or executive instruction we decline the invitation to decide the question or express any opinion as to whether the direction contained in the impugned communciation is violative of the fundamental rights guaranteed by article 25 of the consiitution of india. in refusing the invitation to deckle that question which, in our opinion, does not really arise for determination in this case, we are influenced by the guidelines given by the apex court in naresh v. state of maharashtra : [1966]3scr744 wherein their lordships observed:we have referred to these respective arguments just to indicate the extent of the field which has been covered by learned counsel who assisted us in dealing with the present petitions. as this court has frequently emphasised, in dealing with constitutional matters, it is necessary that the decision of the court should be confined to the narrow points which a particular proceeding raises before it. often enough, in dealing with the very narrow point raised by a writ petition wider arguments are urged before the court, but the court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it. obiter observations and discussion of problems not directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them. but this requirement becomes almost compulsive when the court is dealing with constitutional matters. that is why we do not propose to deal with the. larger issues raised by the learned counsel in the present proceedings, and we wish to confine our decision to the narrow points which these petitions raise.8. thus, for what we have said above, we allow this writ appeal and set aside the order of the learned single judge. as a consequence, the writ petition is allowed to the extent that the direction contained in the impugned communication dated 15th february, 1985 issued by the third respondent, is held as arbitrary and invalid and is hereby quashed. in the peculiar circumstances of this case, there shall be no order as to costs.

Judgment:
ORDER

A.S. Anand, C.J.

1. The Appellant at the relevant time, was serving as Sub Inspector in the Security Force with the Bharat Heavy Electricals Limited, Trichy. He applied to the second respondent, the Senior Security Officer, Bharat Heavy Electricals Limited, Trichy, for permission to grow a beard as he intended to perform Haj Pilgrimage and to sport the beard thereafter also. Permission was granted for a specified period of 45 days, vide letter dated 17th January, 1985. That permission for the specified period, however, was not considered sufficient by the appellant and vide his letter, dated 25th January, 1985, he sought permission to keep the beard beyond the period of 45 days which in any case had lapsed. In his letter, he submitted that Muslims employed in police, Military and other forces as also in other walks of life were allowed to grow beard and that, therefore, he should not be denied the right to grow beard. The appellant, however, was informed by the third respondent, vide communication dated 6th February, 1985, that being an employee of the Security Force, he was not permitted to keep a beard. He was told that his conduct was subject to service rules and discipline and any disobedience thereof would be viewed seriously. The appellant made representations to respondents 2 and 3 and on 15th in February, 1985, the third respondent informed she appellant that he could not keep a beard and should come to duty clean shaven, failing which necessary disciplinary action would be taken. Aggrieved, the appellant filed W.P. No.1363 of 1985 which was dismissed by a very elaborate order by the learned single Judge on 13th July, 1986. The learned single Judge concerned himself only with the question whether the refusal by respondents 2 and 3 to the appellant to grow a beard interfered with the appellant's religious lights and was violative of Article 25 of the Constitution of India and finding that it was not so, dismissed the writ petition thereby upholding the validity of the communication dated 15th February, 1985, impugned in the writ petition.

2. Before proceeding to consider the case of the appellant in the light of the findings recorded by the learned single Judge, we consider it appropriate to extract the communication dated 15th February, 1985, which was called in question through the writ petition, so as to test its validity. The communication reads thus:

You have been clearly instructed in this office letter No. BHE/SSO/2112515 dt. 6.2.1985 that you are not permitted to cult beard for more than 45 days which was already lapsed on 13.1:1985 and advised to come for duty with clean shave and that there is no concession to be given as Muslim who is working in a disciplined force. Being a Sub Inspector working in an uniformed force, you must adhere to rules and regulations of this department and be an example to others. In spite of following the instructions given to you vide this office letter cited above, you are still growing beard disobeying the orders lawfully issued to you.' 'You are hereby advised to remove the beard, on or before 22.2.1985, failing which necessary disciplinary action will be taken against you.

3. Cursory look at the above communication shows that disciplinary action was threatened against the appellant in case he did not remove the beard on or before 22nd February, 1985. It is stated in the communication that since the appellant was working in a disciplined, uniformed force, he had to adhere to the ' rules and regulations' of the department and the failure to do so could result, in disciplinary action being taken against him.

4. Undoubtedly, if there are any rules, regulations, Standing Orders or even executive instructions prohibiting the keeping of beard by members of the Security Force, the respondents would be well within their rights to direct the employees not to keep a beard. Whether such rule or regulation, etc., would be sustainable in the face of Article 25 of the Constitution of India is a different question. Therefore, in the first instance it would be necessary to examine as to whether there are any rules, regulations, Standing orders or executive instructions, having the force of rules/law of the department governing the matter under consideration which prohibit the members of the Security Force serving with Bharat Heavy Electricals Limited to keep a beard.

5. That the appellant, while serving with Bharat Heavy Electricals Limited as Sub-Inspector, Grade II, is governed by the Central/Industrial Security Force Act, 1968 (hereinafter called the Act) is not a matter in dispute. It also is not in dispute that there are no provisions in the Act laying down that members of the Security Force cannot keep a beard. Section 22 of the Act empowers the Central Government, by notification in the Official Gazette, to make rules for carrying out the purpose of the Act. In exercise of those powers, Central Industrial Security Force Rules, 1969 have been framed. Besides the Act and the Rules, there are also Standing Orders of Bharat Heavy Electricals Limited governing the service conditions of the employees.

6. Neither under the Act or the Rules framed thereunder, or the Standing Orders, is there any provision which prohibits the members of the Security Force to keep a beard. Learned Counsel for the respondents was unable to refer to any provision prescribing the norms of personal appearance in the Act, Rules or Standing orders. In vain did we search for even an executive instruction which could be supplemental in character, prohibiting the keeping of beard by the members of the Security Force. According to learned Counsel for the respondents, however, it is Open to the respondents to issue reasonable instructions to its employees and their failure to carry out those instructions could invite disciplinary action. On principle, there can be no quarrel with the proposition that reasonable instructions can be given by the management to the employees. The question, however, is whether the instruction not to keep a beard, which does not have the sanction of any of the provisions of the Act, Rules, Standing Orders or executive instructions, can be treated as 'reasonable'. In our opinion, it cannot be so. In the absence of rules, regulations, etc., executive instructions can be given to fill in the gap, but if there are no executive instructions also governing a field, we fail to see how any direction can be given, which is not in furtherance of any of the provisions of the Act, Rules, regulations, etc. No disciplinary action can be initiated against an employer for an act of commission or omission, unless there are provisions in the service rules, etc., prohibiting that act of commission or omission. Vide the impugned communication itself, what the appellant was told was that he has bound by the 'rules and regulations' of the department and had. to adhere to the same and in case he disobeyed the rules and regulations and did not come clean shaven, he would have to suffer disciplinary action. Since neither any rule nor any regulation or instruction of the department prohibits the keeping of a beard, the question of the appellant violating any such rule or regulation or instruction by keeping a beard and thereby to invite disciplinary action does not arise. The direction given to the appellant to shave off his beard on the assumption that the 'rules and regulations',of the department prohibited the keeping of a beard cannot be said to be either reasonable or lawful direction since no rules or regulations exist prohibiting the keeping of a beard while in service. The direction given to the appellant, under the circumstances, was whimsical and arbitrary without any sanction of the Act, Rules, Standing Orders, regulations or executive instructions governing the service conditions of the appellant. Learned Counsel for the respondents fairly conceded that there was no provision in the service rules, regulations, Standing Orders, etc., prohibiting the keeping of a beard or providing any specific norms of personal appearance. He however, made an attempt to sustain the impugned direction by urging that since under the Central Industrial Security Force Rules, 1969, rules had been framed with regard to 'dress regulation' of the members of the Security Force, the direction issued in the impugned communication was traceable to that rule. We cannot agree. Keeping or not keeping a beard has nothing to do with the 'uniform' or the 'dress regulations' of the members of the Security Force as it restricts itself to prescribing the description and quantity of arms, accoutrements, clothing and other necessary articles like badges, etc., furnished to the members of the force and the manner of wearing the same. The rule relating to the prescription of uniform, thus, cannot be extended to include within its ambit the keeping or not keeping of a beard. We are unable to agree with the learned Counsel for the respondents that the impugned direction itself be treated as a 'rule' made under she Act prescribing that members of the Security Force cannot keep a beard. Under Section 2(g) of the Act, 'prescribed' means 'prescribed by rules under the Act', the impugned direction cannot, therefore, be equated with a 'rule' framed under the Act. Section 22(3) of the Act provides:

Every rule made under the Section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days, which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

and the above provision itself exposes the futility of the argument raised by the learned Counsel for the respondents. Learned Counsel for the respondents was even unable to refer to any policy declaration of Bharat Heavy Electricals Limited, in furtherance whereof, the third respondent had the authority to issue the impugned direction. Since it is not a part of the service discipline of the to which the appellant belongs that he should be clean shaven only and that being the position, the threat held out to the. appellant to suffer disciplinary proceedings in the event he does not have off his beard in the communication, which contains the impugned directions, cannot be sustained. The learned single Judge did not deal with this aspect of the matter at ail and went on to consider as to whether or not the direction in question was violative of the fundamental rights guaranteed by' Article 25 of the Constitution of India. Strictly speaking, that question was required to be considered only if there was any rule, regulation, etc authorizing- the issuance of the impugned direction and without adverting to that aspect, it was not necessary to deal with, the constitutional question.

7. Since we have found that the impugned direction no to keep a beard has no sanction of, any rule, regulation or executive instruction we decline the invitation to decide the question or express any opinion as to whether the direction contained in the impugned communciation is violative of the fundamental rights guaranteed by Article 25 of the Consiitution of India. In refusing the invitation to deckle that question which, in our opinion, does not really arise for determination in this case, we are influenced by the guidelines given by the apex Court in Naresh v. State of Maharashtra : [1966]3SCR744 wherein their Lordships observed:

We have referred to these respective arguments just to indicate the extent of the field which has been covered by learned Counsel who assisted us in dealing with the present petitions. As this Court has frequently emphasised, in dealing with constitutional matters, it is necessary that the decision of the Court should be confined to the narrow points which a particular proceeding raises before it. Often enough, in dealing with the very narrow point raised by a writ petition wider arguments are urged before the Court, but the Court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems not directly involved In any proceeding should be avoided by Courts in dealing with all matters brought before them. But this requirement becomes almost compulsive when the Court is dealing with constitutional matters. That is why we do not propose to deal with the. larger issues raised by the learned Counsel in the present proceedings, and we wish to confine our decision to the narrow points which these petitions raise.

8. Thus, for what we have said above, we allow this writ appeal and set aside the order of the learned single Judge. As a consequence, the writ petition is allowed to the extent that the direction contained in the impugned communication dated 15th February, 1985 issued by the third respondent, is held as arbitrary and invalid and is hereby quashed. In the peculiar circumstances of this case, there shall be no order as to costs.