Kottary V. Mumbai Electric Supply and Transport Undertaking

[BOMBAY HIGH COURT]

R. K. Kottary
v
(1) Mumbai Electric Supply and Transport Undertaking, Mumbai; (2) General Manager, Mumbai Electric Supply and Transport Undertaking, Mumbai; (3) M. P. Lobo, Sr. Administrative Officer (Electric Supply) Mumbai Electric Supply and Transport Undertaking, Mumbai

Swantater Kumar

26 Jun 2008
BENCH
Swantater Kumar & V . M . KANADE

CASES REFERRED TO
Union of India and Another v K.G. Soni 2006 SC 421
State of N.C.T. of Delhi and another v Sanjeev @ Bittoo 2005 SC 257
Haryana Financial Corporation and another vs. Jagdamba Oil Mills and another 2002 (3) SCC 496
M/s. Hochtief Gammon vs. State of Orissa and others [1975 (2) SCR 649]
Harpal Singh Chauhan and Othersv. State of Uttar Pradesh (Civil Appeal Nos. 722 and 723 of 1993) With Sarvesh Sharma and Others v State of Uttar Pradesh (Civil Appeal Nos. 386 and 387 of 1993) []

ACTS REFERRED
Mumbai Municipal Corporation Act, 1888
CASE NO
Writ Petition No. 2586 of 2007

The Judgment was delivered by : HON'BLE JUSTICE SWATANTER KUMAR (CJ)

1. Mumbai Electric and Transport Undertaking, established under the provisions of Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "the Act"), is engaged in distribution of power within the city of Mumbai as well as in urban transport within the territory of Greater Mumbai. The Petitioner was employed in the Undertaking and joined his service on 11th October 1984. According to the Petitioner, he had spotless service record and because of good performance he was given promotion from time to time and was working as temporary Deputy Engineer in Electric Supply Division of the said Undertaking at the relevant point of time. Several employees of the Undertaking had been contesting election of Panchayat Samiti, Zilla Parishad, Municipality including Legislative Assembly and other elections. As per the Rules applicable to the employees of the Undertaking, they were required to take previous permission of the Competent Authority for contesting such an election and they were required to resign from service of the Undertaking before contesting the election. These Rules further provided that the employees who opted to contest the election and were not elected or after completing the tenure of the elected post, could seek re-appointment in the Undertaking.

2. The Petitioner being desirous of contesting the election for Municipal Corporation from Ward No. 37 in the elections held on 2nd February 2007, sought permission of the authorities to contest the election as well as submitted a letter of resignation on 6th January 2007. The letter of resignation reads as under :-

"From

Shri Raghunatha Koraga Kottary Deputy Engineer

Check No.211782, P.S. 33/00

CAS Department

Date : 6/1/2007

To

The General Manager,

The B.E.S. & T. Undertaking,

BEST House, Colaba,

Mumbai 400 001

Through : SCAS/DGM (ES)

Sub : Resignation from the services of the undertaking

Ref : GM/DGM (A)/A/79016/92 Dt. 7.12.1992

Respected Sir,

I the undersigned Shri. Raghunatha Koraga Kottary working as Deputy Engineer, Check No. 211782, P.S. No. 33/00 with C. A. S. Department have decided to contest the forth-coming Municipal Election of Brihan-Mumbai Mahanagar Palika.

As referred in the above said Circular it is necessary to resign from the services of undertaking, accordingly, I herewith submit my resignation from the services of the Undertaking from the close of work on 11.1.2007. I further state that I will abide with all the Service Conditions/Rules & Regulations mentioned in the Service Regulations.

I (In) view of the above, you are requested to accept my resignation from the services of the Undertaking from the close of work on 11.1.2007 and also issue me the Acceptance Letter for the same.

Thanking you,

Yours faithfully,

(R.K. Kottary)" *

3. It is evident from the above quoted letter of resignation that the Petitioner had resigned only for the purposes of contesting an election. This resignation was accepted by the Competent Authority of the Undertaking and vide letter dated 12th January 2007, it was so communicated to the Petitioner. However, the Petitioner did not succeed in the election held on 2nd February 2007 and thereafter, vide letter dated 5th February 2007, submitted another application for withdrawal of his resignation and re-induction into the service. He even opted to get re-employment by treating the intervening period as leave with or without pay as may be admissible under the Rules. This letter of the Petitioner annexed to the Petition as Annexure "D" reads as under :-

"From

Shri Raghunatha Koraga Kottary Deputy Engineer

Check No.211782, P.S. 33/00

CAS Department.

Electric Supply Branch

5th February 2007

The Superintendent/C. P. O.. D. G. M. S. Consumers Advisory Services Electric Supply Branch B. E. S. & T. Undertaking.

Sub.: Withdrawal of resignation

Respected Sir,

Vide my application dated 6.1.2007, I have submitted my resignation for the purpose of contesting the election to the Mumbai Municipal Corporation. My resignation has been accepted as was communicated to me vide letter dated 12th January 2007.

The election results are declared now but, I could not succeed. I, therefore, humbly request you to please treat my resignation as withdrawn by treating the intervening period as leave with or without pay, as admissible, under the rules in force.

Submitted for sympathetic consideration, please.

Thanking you,

Yours faithfully

Sd/-( R.K. Kottari)" *

4. This request of the Petitioner was considered by the authorities as per Rules and Policy in force and vide letter dated 9th April 2007, the Petitioner was informed that his request cannot be considered favourably and was required to collect his dues. The letter dated 9th April 2007 reads as under : -

"The Brihan Mumbai Electric Supply & Transport Undertaking (OF THE BRIHAN MUMBAI MAHANAGARPALIKA)

Our Ref. No. ESO/ Sr. AOES/ EST-9/214/2007 Date : 9/4/2007

Shri R.K. Kottari

Ex-Dy. Engineer (Temp.) Ch. No. 211782

204, E Wing, Sandya Suchidham CHS Ltd.

Filmcity Road, Malad (E)

Mumbai 400 097

Sub.: Resignation

Ref.: Your Application dated 5.2.2007 for withdrawal of resignation. Sir,

With reference to your referred application, the undertaking has been directed by the DGM (ES) to inform you that your request for withdrawal of resignation cannot be acceded to.

You are, therefore, requested to collect your final bills.

Yours faithfully

Sd/-(M.P. Lobo)

Sr. Administrative Officer (Electric Supply)" *

5. The propriety, legality and correctness of this order passed by Respondent No.3 is questioned by the Petitioner in this Writ Petition, amongst others, primarily on the following grounds :-(a) In terms of the Circular dated 7th December 1992 which has the force of the law, the Respondents ought to have accepted the request of the Petitioner for withdrawal of resignation and induction into the service.

(b) No reasons have been given in the impugned order and thus it suffers from non-application of mind.

(c) The action of the Respondents is arbitrary and is contrary to the record. The authorities concerned have not taken into consideration relevant factors and even the remarks which had been set aside by the Appellate Authority have been looked into. As such the order is vitiated in law. Reliance in this regard is placed on the judgment of the Supreme Court in the case of M/s. Hochtief Gammon vs. State of Orissa and others, 1975 (2) SCR 649.

6. The Respondents have vehemently contested the claim of the Petitioner. In the present case, facts are not much in dispute, but the Respondents have taken a specific plea that in furtherance to the above referred Circular stated that the resignation of the Petitioner was duly accepted that too unconditionally by the Competent Authority vide order dated 12th January 2007 and the Petitioner thereafter ceased to be an employee of the Undertaking. Thus the Respondents could not withdraw his resignation as it had been accepted and acted upon between the parties. However, the request of the Petitioner still was considered by the Competent Authority and keeping in view his service record which was found to be totally unsatisfactory, the request of the Petitioner was not acceded to by the Competent Authority. Referring to the service record of the Petitioner, the Respondents stated as under :-

" ...... As far as Petitioner is concerned, his service record is not at all satisfactory. He initially joined the services of the Corporation in the year 1984 and a perusal of his service record indicate the following entires :-(a) By communication dated 27th June, 1989, the Petitioner was cautioned for late attendance on 8 occasions in the month of April, 1989. A Copy of the said communication is annexed and marked as Exhibit "A". *

(b) Again vide communication dated 17th August, 1989, the Petitioner was cautioned for late attendance on 7 occasions in the month of June, 1989. A Copy of the said communication dated 17th August, 1989 is annexed hereto and marked as Exhibit "B".

(c) Again by communication dated 5th October, 1989, the Petitioner was called upon to submit his explanation for late attendance on 6 occasions in the month of July, 1989 and 5 occasions in the month of August, 1989. A Copy of the said communication 5th October, 1989 is annexed hereto and marked as Exhibit "C".

(d) Vide communication dated 15th February, 1993, the Petitioner was again asked to show sustained improvement in performance with immediate effect for the reasons set out herein. A Copy of the said communication dated 15th February, 1993 is annexed hereto and marked as Exhibit "D".

(e) On 8th August, 1996, the Petitioner was issued a Memorandum to improve his performance as it was noticed that his performance was continuously below good level particularly as regards the knowledge of work and quality of work. A Copy of the said Memorandum dated 8th August, 1996, is annexed hereto and marked as Exhibit "E".

(f) By order dated 17th May, 2002, the Petitioner was severely warned for misconduct under Service Regulations 10.2(i) for remaining absent without following rules and regulations laid down for taking leave. A Copy of the said Order dated 17th May, 2002 is annexed hereto and marked as Exhibit "F".

(g) In the Calendar Year 2002, there was adverse remark in the Confidential Record of the Petitioner that his attendance was irregular which was communicated to him vide communication dated 12th March, 2003. A Copy of the said communication dt. 12th March, 2003, is annexed hereto and marked as Exhibit "G". The Petitioner made a representation dated 10th April, 2003 against the said adverse remark which was however, confirmed by the Competent Authority and was communicated to the Petitioner vide communication dt. 16th June, 2003. A Copy of the said communication dated 16th June, 2003 is annexed hereto and marked as Exhibit "H"."

7. The Respondents have annexed to their reply, at Exhibit "A" to Exhibit "G", documents to show that the service record of the Petitioner was totally unsatisfactory and there was no reason for the Corporation to take the Petitioner into service after acceptance of his resignation. It is further stated in the reply that the Circular dated 7th December 1992 did provide for an opportunity for re-employment to an employee who had resigned for the purpose of contesting an election, but this is only a discretionary power vested in the authorities which has to be exercised in the interest of the institution and keeping the service record of the officer in question in mind. This does not give any indefeasible right to an applicant. It is worthwhile to refer to the Circular dated 4th May 2007, which reads as under :

"The Brihan Mumbai Electric Supply & Transport Undertaking (OF THE BRIHAN MUMBAI MAHANAGARPALIKA) Ref. No. GM/CPO/A/24231/2007 Date : 4/5/2007

Sub: Permission for contesting elections and subsequent requests for withdrawal of resignation, re-employment, etc.

Ref: Administrative Order No.126 dated 7.12.1992

In supercession of Administrative Order No. 126 dated 7.12.1992 referred above, not it is directed that :

Once the member of the staff who resigns from the Undertaking for contesting election to Panchayat Samiti, Zilla Parishad, Municipality, Assembly, Parliament, etc. and contests such election after tendering resignation, will not be considered for re-employment if he thereafter requests for such re-employment for whatsoever reason may be.

Sd/-

(Uttam Khobragade)

GENERAL MANAGER

ALL HEADS OF BRANCHES/DEPARTMENTS" *

It is argued on the strength of the above Circular that due to economic pressures and constraints on the Corporation, there have been losses and the Corporation has decided to take economic measures to regulate its affairs and have, therefore, even given up the scheme itself as contemplated under the earlier Circular dated 7th December 1992 and the above Circular is in force. Thus, in any event, the Petitioner has no case and the Writ Petition should be dismissed.

8. First and the foremost question that arises for consideration of the Court is the nature of right which is given to the parties in terms of the Circular dated 7th December 1992. The present Petition is based upon this Circular. The Administrative Order No.126 dated 7th December 1992 is a detailed Circular considering the need for granting permission to its employees to contest elections after resigning and a possibility of their re-induction into the service. The relevant Rules read as under :-

"3. Under these circumstances, following rules are framed to deal with such cases :

(a) The members of the staff of the Undertaking permitted to contest the elections to the Panchayat Samiti, Zilla Parishad, Municipality, Assembly, Parliament etc. subject to the condition that they will have to resign from the services of the Undertaking on getting elected to these Statutory Bodies and if they fail to do so, it will amount to breach of conditions/rules/regulations of the Undertaking and consequently, they will be liable for disciplinary action as provided under the Standing Orders and/or Service Regulations as may be applicable to them;

(b) The members of staff who resign from the services of the Undertaking on their getting elected to Panchayat Samiti, Zilla Parishad, Municipality, Assembly, Parliament, etc. and desire re-employment in the services of the Undertaking on they ceasing to be a members of these Statutory Bodies, their requests for re-employment will be considered sympathetically, subject to their previous service record being found satisfactory and subject to availability of vacancies.

(c) The members of staff of the Undertaking who seek elections to the Municipal Corporation of Greater Bombay after submitting their resignations from the services of the Undertaking, desire re-employment in the services of the Undertaking on their not getting elected or on ceasing to be a members of the Municipal Corporation of Greater Bombay, their requests for re-employment will be considered sympathetically, subject to their previous service record being found satisfactory and subject to availability of a vacancy.

4. The members of staff of the Undertaking committing breach of these rules/regulations will be liable for disciplinary action as provided under the Standing Orders and Service Regulations, as may be applicable to them.

5. These rules should be kept on the Administrative Order File and should be implemented from the date of issue of this Administrative Order." *

9. The Court is primarily concerned with the interpretation of Clause (c) of paragraph 3 of the said Circular. A member of the staff of the Undertaking who contests an election after submitting his resignation from the service of the Undertaking, desires re-employment in the service of the Undertaking on his/her not getting elected or ceasing to be member of the Corporation, his/her request for re-employment will be considered sympathetically subject to their service record being found satisfactory and subject to availability of a vacancy. In other words, no absolute right or indefeasible legal right is vested in the employee to seek re-employment. It is only a right being considered and may be sympathetically. The discretion of the authorities while considering such an application is to be guided by three factors, namely, (a) previous service record being satisfactory; (b) subject to availability of a vacancy and (c) the consideration has to be sympathetic and in consonance with the settled economics of administrative decisions # .

10. The discretion vested in the authorities thus is a well guided discretion and cannot be said to be arbitrary or absolute discretion capable of being exercised contrary to the settled principles of law. The Petitioner himself relies upon this rule and the onus to show that the power or discretion has been exercised arbitrarily, is discriminatory or without any plausible basis lies upon the Petitioner. The Petitioner has not disputed that the service record entries above stated except entry at clause (f) which has been set aside by the Appellate Authority, all other entries exist in his service record. It was for the authorities to arrive at a conclusion on the basis of such record. Once a discretion is vested in the authorities and it is exercised in a manner acceptable in law, in that event, the Court will not interfere just because it was possible to take a view other than the one taken by the authorities concerned. # The Court cannot go into the question whether the entires made in the service record of the Petitioner ought or ought not to have been recorded.

These entries have been recorded over a long period i.e. from 1989 to 2003.

11. Judicial review of administrative action is inevitably sporadic and peripheral. Administrative process is not and cannot be a succession of justiciable controversies. Public authorities are set up to govern and administer and their actions cannot be stated to be reviewable unrestrictedly. Thus, the power of judicial review is limited. The prospect of judicial review cannot be held out to every person whose interests may be adversely affected by administrative action. The use of various sanctions and remedy under judicial process have to be used cautiously and the law being relatively complex and technical, every administrative action may not fall within the scope of judicial review. Of course, with the development of law, the judicial review has become less technical, less compartmentalised, more imaginative, but not easier to expound in a consecutive and coherent form, wider discretion is vested in the Court. The scope of judicial review having been expanded, greater discretion is vested in the Court, but still it appears fair and reasonable to exercise the discretion within well defined limitations and without ignoring the restrictive rules fashioned in an earlier era, past precedence with some emphasis. The broader areas of governmental activity has to have its latitude and freedom for achieving administrative goals and mere exercise of discretion may not invite judicial intervention. (Reference can be made to "de Smith's Judicial Review of Administrative Action" Fourth Edition).

12. Coming to the aspect of arbitrariness in administrative action, the onus is again on the Petitioner and he must spell out by specific allegations the circumstances on which he claims arbitrariness in the action of the authorities # . In the present case, except a bald allegation that the action is arbitrary or discretionary, no detailed facts have been stated in the Petition. The Respondents have taken a view keeping in mind the guidelines stated in the Circular and have arrived at a conclusion. The said decision cannot be termed as based on irrelevant or ex facie arbitrary considerations. The concept of fairness in administrative action was discussed by a Division Bench of this Court in a recent judgment in the case of Vijay Kumar Gupta vs. State of Maharashtra and others, Writ Petition No.1889 of 2007 decided on 13th March 2008, where the Court has stated as under :-

"7. Another facet of fairness in administrative action is whether the action suffers from the vice of arbitrariness. The courts while exercising the powers of judicial review within the prescribed limitation are bound to examine this aspect of executive actions. The executive besides taking decisions effecting its powers are expected to act in consonance with the rule of fair play. Normally, such actions could be examined by the court on the touchstone of Wednesbury's principles. This doctrine has emerged from English Law and has now been accepted in India as well. The judicial pronouncements now, for a considerable time, have applied this principle with all its rigours. Normally, it will be impermissible for a State to exercise its discretion free of any checks and balances and without any objectivity in their decisions. As already noticed, it is the fairness of decision making process which squarely falls within the ambit of judicial review and if such a decision making process suffers from basic infirmities land it unreasonably denies the principles of equality of participation as well as infringes fair competitiveness in contractual matters with the State, the judicial intervention in such cases may be justified. Noting reasonableness in State action relating to distribution of State largesse particularly, in the field of trade would have its own consequences. Primary onus would be, on the party pleading discrimination or arbitrariness, to establish the same before the court and within the concept of probable preponderance but once such a burden is discharged, onus will shift to the State to justify its decision making process and objectivity of the decision to exclude arbitrariness, unreasonableness and unfairness in State action. . ..... " *

13. Judicial review is a process by which the Courts would determine the correctness of an action. In exercise of its writ jurisdiction, the Court could issue various writs and mandates and thus the scope of judicial review expands itself to the scope of the writ of certiorari, prohibition, mandamus and other directives which the Court can issue in exercise of its extraordinary powers. Despite the fact that judicial review covers a wide range, in the present times, still we cannot rely on the powers of an appellate court or an appellate authority. (Reference : "Administrative Law" by Sir William Wade, Ninth Edition).

14. In the case of Union of India and another vs. K.G. Soni, 2006 SC 421, the Supreme Court clearly stated the principle that Court should not interfere with administrative decision unless it was illlogical or suffer from procedural impropriety or was shocking to the conscience of the court, in the sense it was in defiance of logic and moral standards. In view of what has been stated in Wednesbury case, the Court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision. In other words, interference in the decision of the administrative authority may be least called for when the process of decision making cannot be faulted. Once the decision making process is in conformity with rules, guidelines and is not hit by principle of absurdity, in that event the decision itself may fall beyond the limitation of juridical review. #

15. Similar view was taken by the Supreme Court in the case of Haryana Financial Corporation and another vs. Jagdamba Oil Mills and another, 2002 (3) SCC 496, where the Court stated the scope of judicial review in regard to administrative action and defined the limitations of administrative law as under :- " The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin. .... Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an Appellate Authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administration action, it is well known, more than one choice is available to the administrative authorities, they have a certain amount of discretion available to them. ..... The court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervene." *

16. The other ground taken by the Petitioner is that the impugned order dated 9th April 2007 does not state any reasons for passing it. It is true that the impugned order does not give any detailed reasoning as to why the request of the Petitioner has been rejected. However, in the Reply-Affidavit filed on behalf of the Respondents, reasons have been stated and majority of such reasons are not even in dispute except to the extent of clause (f) of paragraph 4 of the Reply. In the Writ Petition, the Petitioner has averred that one Shri Kubal was given such permission and was re-appointed in the year 1992 and nothing else has been averred in the Writ Petition. The application of the Petitioner was one for withdrawal of resignation. The Circular provided for re-employment and not reinstatement as such. Re-employment cannot be equated in law to withdrawal of resignation per se. Besides that the request was not stated in proper language. The reasons for arriving at a decision has been given in the Reply-Affidavit which is duly supported by the service record of the Petitioner right from 1989 to 2003 and except to the limited extent stated above, the same is not even in dispute. In the case of M/s.Hochtief Gammon (supra), though the Supreme Court indicated the need of surveillance or control which judiciary will have while considering the validity of the orders of the Government or its officers in exercise of judicial review. But the Court itself noticed that power of judicial review is not affected by the fact that the order is a non-speaking order. It will be open to judicial review, but once the reasons for arriving at such a decision has been taken and the decision making process was in conformity with Rules and could not be faulted per se with reference to the regulations and guidelines, the Court could hardly judicially intervene. (Reference : State of NCT of Delhi and another vs. Sanjeev alias Bittoo, 2005 SC 257. We may also notice that in the case of Harpal Singh Chauhan and others vs. State of U.P. and others, 1993 SC 1184, the Supreme Court also noticed that merely because there is a provision for extension or renewal of term, the same cannot be claimed as a matter of right. In other words, these are discretionary powers vested in the Competent Authority and they do give a right of consideration of the request to the applicant, but certainly do not vest an applicant with an indefeasible legal right to claim re-employment. We may notice here that it is merely a benefit which may or may not be available to the employee in the discretion of the employer and such decision cannot be faulted with if it is inconformity with rules and settled principles of law # .

17. We may also notice the arguments advanced on behalf of the Respondents on the basis of the Circular dated 4th May 2007 (Administrative Order No.329) to which no challenge has been raised by the Petitioner in the present Writ Petition. It is an Administrative Order which has the effect of completely over-riding Administrative Order No.126 dated 7th December 1992. The concerned authorities have taken a policy decision keeping in view its heavy losses to adopt proper economic measures including stopping of re-employment due to which the scheme as a whole is stated to have been given up. This is a policy decision taken by the Competent Authority in its wisdom and the Court normally will not disturb the policy decision of the State or its instrumentalities. It is a settled principle of law that policy making squarely falls within the domain of the State or the concerned Authority and except for a very limited sphere, policy making is not open to judicial review. In the present case, there is no challenge to the Circular dated 4th May 2007 and in any case we find nothing wrong with the implementation of the said Circular which further supports the decision taken by the Respondents vide their letter dated 9th April 2007.

18. To conclude, it can safely be stated that, as of present, hardly any claim on the basis of the Circular dated 7th December 1992 can survive in the present Writ Petition in view of the Circular dated 4th May 2007. Normally, cause of action should subsist from the institution of the Petition till grant of leave. Furthermore, the criteria laid down in the earlier Circular has been taken into consideration by the Respondents as per the detailed reasons given in the Reply-Affidavit and, in our opinion, it does not suffer from the vice of arbitrariness or discrimination. As already discussed, lack of stating of reasons has hardly caused any prejudice to the Petitioner as there is no real dispute to the facts stated in the Reply-Affidavit except to the extent of clause 4 (f) which remarks were admittedly set aside by the Appellate Authority. The authorities have taken a view which does not appear to be based on irrelevant considerations or on the material ought not to have been taken into consideration. The view of the authorities is in line with settled principles of law, therefore, needs no interference.

19. In the result, we do not see any merit in the Writ Petition and the same is dismissed, leaving the parties to bear their own costs.