R A GOEL Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner was working as an Engineer in the Haryana Public Works Department and retired as Engineer-in-Chief on 28-2-1990 on attaining the age of superannuation. He was appointed Chairman of the Haryana State Pollution Control Board (hereinafter called the Board) as per notification dated 15-3-1990 and his tenure was for 3 years. The Board was superseded on 8-5-1992 and Mrs. Veena Eagleton, an IAS Officer, was appointed its Administrator. She continued till 13-1-1993 on which date a new Board was constituted for a period of 3 years with one Shri S.P.Grover as its Chairman. The term of this Board came to an end on 12-1-1996. A new Board was again constituted on 13-1-1996 for 3 years and one Shri Gurdip Singh, a retired Engineer-in-Chief, was appointed its Chairman. Shri Gurdip Singh resigned from his post on 26-6-1996. On the resignation of Shri Gurdip Singh, a casual vacancy of the Chairman arose and the same was filled up by appointing one Shri Tarsem Lal, a retired Financial Commissioner, for a period of one year with effect from 8-7-1996 by notification dated 5-7-1996. Since the term of Shri Tarsem Lal was to come to an end on 7-7-1997, the State Government by notification dated 30-6-1997 appointed the petitioner as Chairman of the Board for a period of 3 years. This appointment was made with effect from 8-7-1997. It was specified that the petitioner shall hold the post as part-time Chairman. Thereafter, another notification was issued on 12-5-1998 whereby the notification dated 30-6-1997 appointing the petitioner as the Chairman was amended and his tenure curtailed from 3 years to the period from 8-7-1997 to 12-1-1999. In other words, the tenure of the petitioner was made co-terminus with the tenure of the Board which was constituted on 13-1-1996 for a period of 3 years. The terms of appointment of the petitioner were spelt out in the memo dated 25-5-1998. In this memo, the duration of the appointment of the petitioner was once again specified for a period from 8-7-1997 to 12-1-1999 in terms of sub-section (6) of S.5 of the Water (Prevention and Control of Pollution) Act, 1974 (for short the Water Act). The petitioner made a representation to the Government of Haryana against the curtailment of his tenure and contended that he had not been appointed against a casual vacancy within the meaning of sub-section (6) of S.5 of the Water Act as his predecessor Shri Tarsem Lal had completed his term of one year whereafter he (the petitioner) had been appointed. However, before this matter could be resolved, the Board itself was superseded by the Government on 30-6-1998 in exercise of the powers conferred on it by Cl. (b) of sub-section (1) of S.62 of the Water Act. It was then that the present writ petition was filed under Art. 226 of the Constitution with a two-fold grievance; (i), that the tenure of the petitioner had been illegally curtailed from 3 years to a shorter period making it co-terminus with the tenure of the Board and, therefore, the notification dated 12-5-1998 is invalid; (ii) that the action of the State Government in superseding the Board was mala fide inasmuch as the order was passed at the behest of Smt. Sushma Swaraj the then Union Minister of Information and Broadcasting and that no circumstance existed which rendered it necessary to supersede the Board in public interest. Expanding the arguments on the above two issues, it was argued by the learned counsel for the petitioner that the petitioner had not been appointed against a casual vacancy and that his tenure was for a period of 3 years as is clear from the notification dated 30-6-1997 and the same could not be curtailed as was done by the State Government. It was also contended that the action of the State Government in superseding the Board was illegal apart from being mala fide since neither the Board nor the petitioner were afforded any opportunity of hearing before the impugned order of supersession was passed. It was further contended that no irregularity in the functioning of the Board had ever been brought to the notice of the petitioner. The petitioner referred to the letter dated 19-5-1998 by which the complaint of the Haryana Chamber of Commerce and Industry that the Board was insisting on numerous small scale industrial units to obtain a 'no objection certificate' when those had been specifically exempted by the State Government in its industrial policy announced in the year 1996 was sent for his comments. The petitioner states that he had duly furnished a proper explanation to the State Government and had not heard any further on the subject till the order of supersession was passed. According to him, if the State Government still had any objection, the same ought to have been communicated to him or to the Board. On the other hand, the learned Advocate General appearing on behalf of the State has controverted the contentions of the petitioner and submitted that the Board had been constituted for a period of 3 years on 13-1-1996 and that on the resignation of Shri Gurdip Singh, Chairman on 26-6-1996, a casual vacancy for the remaining period i.e. from 27-6-1996 to 12-1-1999 arose. This casual vacancy was filled up by appointing Shri Tarsem Lal as Chairman for one year. He further contended that on the expiry of the term of Shri Tarsem Lal the casual vacancy was filled up by appointing the petitioner and instead of appointing him till the remaining tenure of the vacancy/Board he was by mistake appointed for a period of 3 years and that when the mistake was discovered by the Government, the same was rectified by issuing the notification on 12-5-1998 whereby the tenure of the petitioner was curtailed making it co-terminus with the tenure of the Board. The learned Advocate General referred to the provisions of sub-section (6) of S.5 of the Act in support of his contention. Regarding supersession of the Board, it was submitted that no material whatsoever has been placed on record to show any mala fides on the part of respondent No. 5. He has produced the original records from the Department of Industries as well as from the Department of Environment on the basis of which he contended that Mrs. Sushma Swaraj played no role whatsoever in the decision of the State Government to supersede the Board. He has also controverted the contention of the petitioner that no irregularity on the part of the Board had ever been brought to the notice of the petitioner. He specifically referred to the circular letter issued by the Board under the Chairmanship of the petitioner to various regional offices whereby they had been asked to survey more than 4500 small scale industrial units in the State and require them to obtain the 'no objection certificate' under the Water Act. This circular letter, according to the learned Advocate General, was contrary not only to the Government instructions but also to the declared industrial policy as published by the State of Haryana for the year 1997. The learned Advocate General also brought to our notice that this circular also went contrary to the decision taken by the Board itself on 10-9-1996. By this order, the Board had clearly decided that except for the 17 categories of highly polluting industries identified by the Government of India and 19 polluting industries identified by the Board, no other industrial unit would be required to obtain the NOC/Consent to establish as well as consent to operate the unit. According to the learned Advocate General, this action of the petitioner as Chairman of the Board had resulted in great resentment amongst the small scale industrial units in the State who were not only making representations time and again but also met the then Union Minister of Information and Broadcasting who was an elected Member of Parliament from the State of Haryana and filed a detailed representation which was forwarded to the State Government. It was further argued that continued defiance by the Board to abide by the industrial policy as also by the earlier decision of the Board was likely to hamper the industrial growth of the State and, therefore, the State Government was left with no option but to supersede the Board.

(2.) In order to appreciate the contentions advanced by the parties, we directed the Advocate General to produce the records for our perusal which he did not we have gone through the same. Since we are inclined to uphold the supersession of the Board, it is not necessary for us to deal with the first contention of the learned counsel for the petitioner, namely, that the tenure of the petitioner was for a period of 3 years and the same could not be curtailed. Whatever be the fate of that contention, the petitioner cannot be put back as Chairman once the supersession of the Board is upheld.

(3.) A detailed perusal of the files of the two departments of the Government leaves no room for doubt that the action of the State Government in superseding the Board was not actuated by any mala fide intentions but was governed purely by the interest of the State for promoting its industrial growth. It is wrong to suggest that the process of supersession started with a communication received from respondent No. 5 the then Union Minister of Information and Broadcasting. As a matter of fact, it was in December, 1997 that the Haryana Chamber of Commerce and Industry through its Chairman made a complaint to the Commissioner and Secretary to the Government of Haryana, Departments of Industries and Environment complaining against the non-compliance of the Government policy by the Board. The grievance made therein was that even though the Government had decided that no NOC would be required to be obtained by a small scale industrial unit except by 17 categories of highly polluting industries identified by the Government of India and 19 categories of polluting industries identified by the Board and despite an earlier decision of the Board to the same effect, the regional offices of the Board were issuing notices to various small scale industrial units to obtain consent under the Water Act and under S.21 of the Air (Prevention and Control of Pollution) Act, 1981 (for short the Air Act) although those units neither fell in the 17 types of highly polluting industries nor in the 19 types of polluting industries as identified by the Board. The Chamber requested the State Government to issue instructions to the Board to implement the Government orders and the Government industrial policy and save the small scale industrial units from harassment being caused by this whimsical action of the Board. This complaint was received by the State Government on December 11, 1997. As is clear from the record, a copy of this complaint was forwarded to the Board for its comments. The Member Secretary of the Board sent a reply on behalf of the Board on 27-3-1998 informing the State Government that they had no right to issue such administrative orders as no such orders could be issued in infringement of the Water Act and the Air Act and also the Environment Protection Act. It was, therefore, stated that the action of the Board in requiring the industrial units to obtain the NOC was in order. It is amazing to note that the petitioner, who is the Chairman of the Board, has no knowledge about either the communication received from the State Government whereby the complaint had been sent to the Board for its comments or the reply sent by the Member Secretary on behalf of the Board. Petitioner has all along been contending that prior to the receipt of the representation through Smt. Sushma Swaraj in May, 1998, the Board never received any communication from the State Government pointing out any irregularity on the part of the former when, in fact, the complaint from the Haryana Chamber of Commerce and Industry was sent for the comments of the Board which, as already observed, were sent by the Member Secretary without the knowledge of the petitioner who was the Chairman. It is a sad reflection on the working of the Board and we wonder how it was functioning. Even the tone of the reply sent by the Member Secretary smacks of defiance and instead of trying to follow the instructions issued by the State Government which are otherwise binding under the Water Act and the Air Act, the Board was trying to justify its action in asking for NOCs from small scale industrial units in clear disregard of the industrial policy of the State Government. We may mention that by asking the small scale industrial units to produce NOC/Consent Certificates before starting their industrial units in the State was bound to hamper the industrial growth and it is for this reason that the State Government had done away with the requirement of producing such certificates. Even if for the sake of argument, the reply of the Board were held to be legally valid, we fail to appreciate as to how a functionary of the Government can call the instructions of the Government itself into question. If this was allowed to be done, no Government could function.