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Ashis Kanti Saha v/s The Tripura Khadi & Village Industries Board, Represented by its Chairman, Agartala & Others


Company & Directors' Information:- TRIPURA INDUSTRIES LIMITED [Strike Off] CIN = U15137TR2009PLC008265

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- K K SAHA AND CO PVT LTD [Strike Off] CIN = U51109WB1938PTC009499

Company & Directors' Information:- KANTI INDUSTRIES PVT LTD [Active] CIN = U74999RJ1958PTC001058

Company & Directors' Information:- L C SAHA PVT LTD [Strike Off] CIN = U32305WB1935PTC008249

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- VILLAGE INDUSTRIES PRIVATE LIMITED [Dissolved] CIN = U29299KL1947PTC001322

    WP(C). No. 650 of 2017

    Decided On, 04 December 2017

    At, High Court of Tripura

    By, THE HONOURABLE MR. JUSTICE S. TALAPATRA

    For the Petitioner: C.S. Sinha, Advocate. For the Respondents: T.D. Majumdder, G.A, P.K. Pal, Advocate.



Judgment Text

Oral:

1. Heard Mr. C. S. Sinha, learned counsel appearing for the petitioner as well as Mr. T. D. Majumder, learned G.A. appearing for the respondent No. 3 and Mr. P. K. Pal, learned counsel appearing for the respondents No. 1 and 2.

2. By means of this petition, the petitioner who has been serving as the Assistant Organizer (Khadi) under the Tripura Khadi & Village Industries Board has challenged the order No. F.TKB/Estt/DP (AKS)/1(59)/2017-18/4060-62 dated 14.02.2017 (Annexure-1 to the writ petition) whereby he has been placed under suspension with immediate effect in contemplation of a departmental proceeding for negligence or dereliction of duties and refusal to carry out the orders of the authority. The petitioner has also challenged the memorandum No. F. NO. TKB/Estt/DP/AKS/1(59)/2017-18/1114-16 dated 03.05.2017 (Annexure-2 to the writ petition) whereby against him the article of charge has been framed.

3. Mr. Sinha, learned counsel appearing for the petitioner has submitted that the Executive Officer who issued both the impugned orders does not have any authority to issue such orders inasmuch as, he has not been delegated such power by the board to act as the disciplinary authority, at least the respondents by filing the reply could not place any record that such delegation is or was in force.

4. Mr. Sinha, learned counsel appearing for the petitioner has referred to the provisions of the Tripura Khadi & Village Industries Board Rules, 1967 as published in the Tripura Gazette dated 08.04.1967 to show that unless such power is assigned to the Executive Officer, the Executive Officer cannot act. He has referred particularly to the provisions of Rule-13 of the said rules to outline the general powers of the Executive Officer and those powers are catalogued. Any power so assigned does not include the power for placing any employee under suspension or to draw disciplinary proceeding. Though there is a provision under Rule-13(vi) as under:

'.....undertakes such other duties and exercise, such other powers as may be assigned to him by the Board, or the Chairman.'

5. Mr. Sinha, learned counsel appearing for the petitioner has further submitted that at the relevant point of time when those impugned orders were issued there was no Board. The Board was constituted by the notification under No. F.VI-6(5)/PLG/DI/88/Part- II/9930-39 dated 23.06.2017 (Annexure-R/2 to the reply filed by the respondents).

6. To this position of fact as stated by Mr. Sinha, learned counsel, neither Mr. Pal, learned counsel appearing for the respondent, Tripura Khadi & Village Industries Board nor Mr. T. D. Majumder, learned G.A. appearing for the respondent No. 3 have raised no opposition.

7. Mr. Pal, learned counsel having referred to the reply filed by the respondents No. 1 and 2 has contended that at the relevant point of time there was a constituted Board and the disciplinary authority has exercised power in consultation with the Chairman of the valid Board. The suspension order dated 14.02.2017 was issued in contemplation of a disciplinary proceeding by the memorandum dated 03.05.2017.

8. There is no dispute again that the previous Board was constituted by the notification under No. F.VI-1(34)/PLG/DI/90-II Pad file (A)/3704-11 dated 25.03.2013 (Annexure-5 to the petition) until further orders. Apparently such constitution is contrary to the Rule-3 of the Tripura Khadi & Village Industries Board Rules, 1967. However, the proviso below the said rule which provides that the member of the board shall hold office for 3 years as stipulated as under:

'Provided further that the State Government may for reasons to be recorded in writing extend the term of the office of the members of the board for a period not exceeding 7 months.'

9. Even if the 7-months is added to the earlier notification, the period within which the impugned orders were passed cannot be said to have been passed during the existence of a valid board. In this respect, Mr. Pal, learned counsel appearing for the respondents could not add anything as regards the existence of a valid board during the period when the impugned orders were passed.

10. However, Mr. T. D. Majumder, learned counsel appearing for the respondent No. 3 has, contended that the disciplinary proceeding has been diverted by the Chairman and the Executive Officer has only issued the same.

11. Having appreciated the submission of the learned counsel appearing for the parties as well as the averments and the documents placed with the writ petition, this Court is confronted with the two pertinent questions for decision viz (i) whether in absence of any valid board, the Chairman can continue? and (ii) whether in absence of the board the Executive Officer does have any power to place an employee under suspension or commence a disciplinary proceeding? This Court is of the considered view that the Chairperson/Chairman cannot survive if there is no valid board.

12. The Chairman is no doubt is a member of that board but he or she is designated as the Chairman of the board, without the board, the Chairman does not have any position to continue or decide. If there is no valid board, the Chairman cannot exercise any power whatsoever. However, if bona fide such power is exercised, there shall be ratification by the subsequent board to validate such action. No ratification resolution has been produced before this Court for showing that the act of validation was adopted.

13. That apart, it is an admitted position that the Executive Officer without the advice of the Chairman cannot act as the disciplinary authority or place some employee under suspension. Since this Court is of the view that during the months of February to May 2017, there was no valid board, the impugned orders were issued by the Executive Officer without any authority. The statement made by the respondents that there was authentication by the Chairman is hardly of any value when there is no ratification by the subsequent board.

14. Accordingly, the impugned order of suspension dated 14.12.2017 (Annexure-1 to the writ petition) and the memorandum dated 03.05.2017 (Annexure-2 to the writ petition) are set aside and quashed. However, the Tripura Khadi & Village Industries Board may

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consider the allegation brought against the petitioner afresh and if they are of the view that any proceeding is really required to be drawn, they may draw such proceeding against the petitioner. 15. The respondents shall allow the petitioner to resume the duties forthwith, since the suspension order has been declared invalid. He shall be paid the entire pay and salary for the period of suspension after adjusting the subsistence allowance. With these observations and direction, this petition stands allowed to the extent as indicated above. There shall be no order as to costs. A copy of this order be furnished to Mr. Pal, learned counsel appearing for the respondents No. 1 and 2.
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