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PETITIONER: GURDIT SINGH AULAKH (DECEASED) THROUGH L.R.S

       Vs.

RESPONDENT: THE STATE OF PUNJAB & OTHERS

DATE OF JUDGMENT16/08/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ)

CITATION:  1974 AIR 2058            1975 SCR  (1) 737  1974 SCC  (2) 592

ACT: Sikh Gurdwaras Act, 1925 Sec. 12(1) and (5)--Constitution of Tribunal--Removal of member--Consequent dissolution and  re- contitution--Validity  of notification Held,  the  statutory requirement and practical expediency justified the action.

HEADNOTE: By  an  order dated September 10, 1965, A was  removed  from Membership  of  the  Sikh  Gurdwaras  Tribunal  and  K   was appointed  to the vacancy so created.  On October 18,  1966, the  order  of removal was quashed by the High  Court.   The ensuing.special  leave petition was rejected by this  Court. By  two separate notifications dated October 22,  1966,  the Tribunal was respectively dissolved and reconstituted with K as a member.  A, who challenged by a writ petition the noti- fication  of dissolution, died on July 18, 1969.  His  legal representatives  confined  their  claim  to  the  emoluments alleged  to  be due to him.  The High  Court  dismissed  the petition.   On  appeal, by certificate, to this  Court,  the appellants  contended that the notification  dissolving  the Tribunal  was  issued  for a collateral purpose  ,Ind  by  a person who had no authority to do. Dismissing the appeal, HELD : (i) Under Sec. 12(5) of the Act, it was not competent for the Government to remove a member once appointed  except on the grounds specified therein and the fact that the  High Court declared that the removal of A from the membership  of the Tribunal was bad would not have warranted the removal of K from, the membership of the Tribunal under that provision. S. 12(5) provides for all, cases of removal of a member once appointed  and since the removal of K would not,  have  been justified  on any of the grounds mentioned in that  section, the  State  Government could not have removed him  from  the membership  and,  therefore,  an  impossible  situation  was created  which  justified the dissolution  of  the  Tribunal under S. 12(1).  From the fact that the judgment of the High Court  declared  that the removal of A was bad  in  law,  it would  not follow that the appointment of K in  the  vacancy created  by  the  removal of A was  void.   K’s  appointment remained  unchallenged.  He was functioning as a  member  of the Tribunal and was participating in the decision of cases. The provisions of s. 12(1) made it essential that on removal

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of  A, there should be an appointment to the vacancy as  the business  of  the Tribunal could not have  been  carried  on without filling the vacancy created by the removal.  On  the ground of practical expediency also the appointment of K was not  void  or  nonest in the eye  of  law.   Therefore,  the dissolution  of  the  Tribunal’ was  not  for  a  collateral purpose.         [739A-740A] (ii)  The  notification  dissolving  the  Tribunal  did  not abolish  any public office of the description  specified  in sub-rule (1)(xxii) of R. 28 of the Rules of Business of  the Government of Punjab, 1953.  The Tribunal was not abolished. It  was only re-constituted.  Abolition means  "to  destroy, extinguish,  abrogate or annihilate".  The  Secretary,  Home Department was competent to issue the notification.                            [74OH-741A],

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2062  of 1970. Appeal  from  the judgment and order dated the  23rd  April, 1970,  of the Punjab & Haryana High Court in Civil Writ  No. 2788 of 1966. R.K. Garg, S.C. Agarwal, S.S. Bhatnagar and A.K. Gupta,  for the appellants. O.P. Sharma for respondents nos. 1-4. 738 The Judgment of the Court was delivered by MATHEW J. The Governor of Punjab constituted the Sikh  Gurd- waras  Tribunal  with effect from.  April 1,  1962  and  one Gurdit Singh Aulakh (’Aulakh’ for short) was appointed as  a member of the Tribunal.  He was removed from the  membership by an order dated September 10, 1965 and one Shri S.S. Kahla (’Kahla’ for short) was appointed to the vacancy so created. Aulakh  challenged  the validity of his removal  in  a  writ petition  filed  before  the High  Court  of  Punjab.   That petition was ultimately allowed in letters patent appeal and the  order  removing  Aulakh  from  the  membership  of  the Tribunal  was  quashed.  That was on October 18,  1966.   An application  for leave to appeal to this Court  against  the decision of the Letters Patent Bench was rejected.  So  also an  application  before  this Court  for  special  leave  to appeal.  Therefore, a notification was issued on October 26, 1966 ,stating :               "In  exercise of the powers conferred by  sub-               section   (1)  of  section  12  of  the   Sikh               Gurdwaras Act, 1925, the President of India is               pleased   to  direct  the   dissolution   with               immediate  effect of the Tribunal  constituted               vide  the Punjab Government  Notification  No.               432-UP dated the 26 April, 1962". This  notification  was  challenged  by  Aulakh  in  a  writ petition.   Aulakh died on July 18, 1969 and the  appellants were impleaded as his legal .representatives.  They confined their claim to the emoluments alleged to be due to the  writ petitioner  from  September 11, 1965, till the date  of  his death.   The  High  Court dismissed the  petition  and  this appeal, ’by certificate, is from this decision. Mr.  Garg, appearing for the appellants, submitted that  the notification  dissolving  the  Tribunal  was  issued  for  a collateral purpose, viz., ,-to circumvent the effect of  the decision  of  the  High Court quashing  the  order  removing Aulakh  from the membership of the Tribunal and,  therefore, the  dissolution  was bad.  In support of  this  contention,

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,,counsel  relied  upon  the  note  written  by  the  Deputy Advocate  General ,after the writ petition filed  by  Aulakh was allowed.  In that note he said :               "If  Mr.  Aulakh is to be considered to  be  a               member  of the Tribunal then the very  working               of  the Tribunal will become impossible.   Now               there are 4 members instead of 3  contemplated               by law’ He,  therefore, recommended the dissolution of the  Tribunal by  a notification issued under S. 12(1) of the Act and  its re-constitution on the same day by another notification. Counsel contended that when the High Court allowed the  writ petition filed by Aulakh on the ground that his removal  was bad  in  law,  there  was  no  legal  vacancy  to  which  an appointment  could  have been made and for that  reason  the appointment  of Kahla as a member of the Tribunal  was  void and,  therefore,  the Government should have  ,-allowed  the Tribunal to function with Aulakh as its member in place 739 of  Kahla  and thereby given effect to the judgment  of  the High  Court  instead of circumventing it by  dissolving  the Tribunal under S. 12(1). On  the  other hand, counsel for the State of  Punjab  urged that under s.12(5) of the Act, it was not competent for  the Government  to remove a member once appointed except on  the grounds  specified therein and the fact that the High  Court declared  that the removal of Aulakh from the membership  of the Tribunal was bad would not have warranted the removal of Kahla  from  the  membership  of  the  Tribunal  under  that provision.   To  put it differently, the contention  of  the counsel  for the state of Punjab was that S. 12(5)  provides for  all cases of removal of a member of the  Tribunal  once appointed and since the removal of Kahla would not have been justified  on any of the grounds mentioned in that  section, the  State  Government could not have removed him  from  the membership  and,  therefore,  an  impossible  situation  was created  which  justified the dissolution  of  the  Tribunal under s. 12(1) of the Act. We think that the contention urged on behalf of the State of Punjab must prevail.  From the fact that the judgment of the High  Court declared that the removal of Aulakh was  bad  in law,  it would not follow that the appointment of  Kahla  in the  vacancy  created  by the removal of  Aulakh  was  void. Assuming that the appointment was void, it was void only  as against  Aulakh.  There is nothing strange in the notion  of the  appointment being void as against Aulakh only, for,  it was  his  rights that were effected by  the  appointment  of Kahla  and as Aulakh did not challenge the validity  of  the appointment,  the  appointment  became valid,  even  on  the assumption that it was originally void.  The appointment  of Kahla,  however  void in the eyes of a  court  will  prevail unless  Aulakh challenged it successfully.  Unless  the  law upheld  the  challenge,  Aulakh  must  accept  whatever  the Government  had done as valid and effectual.  The fact  that Aulakh  successfully challenged the order removing him  from the   membership  as  against  the  Government  is   of   no consequence  as Kahla was not bound by that  decision.   The validity  of his appointment was not challenged in the  writ petition filed by Aulakh; Kahla was not even made a party to that  writ petition.  His appointment,  therefore,  remained unchallenged.  That apart, he was functioning as a member of the Tribunal and was Participating in the decision of cases. Section 12(1) of the Act provides or the constitution of one or  more  Tribunals  by the State  Government  for  deciding claims  made in accordance with the provisions of  the  Act.

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The  Tribunal so constituted should consist of  a  President and  two  other members appointed by the  State  Government. Therefore,  it was essential that on the removal of  Aulakh. there  should  be  an  appointment to  the  vacancy  as  the business  of  the Tribunal could not have  been  carried  on without  filling  the vacancy created by the  removal.   We, therefore,  find  it difficult to hold on the  ground  of  a practical expediency also that the appointment of Kahla as a member  of the Tribunal was void and, therefore, non est  in the eye of law.  Kahla having been appointed as a member  of the Tribunal, he could have been 740 removed only in accordance with the provisions of s.  12(5). That section provides :-               "The  local  Government  may  by  notification               remove  any member of a Tribunal,  other  than               the President--               (i)  If  he refused to act or becomes  in  the               opinion  of the local Government incapable  of               acting, or unfit to act, as a member or               (ii) If he has absented himself from more than               three consecutive meetings of the Tribunal, or               (iii) If he is an undischarged insolvent". The  High  Court  has considered the  question  whether  the subsection  was  in  force  on the  relevant  date  and  its conclusion   was   that  it  continued  to   be   operatives notwithstanding the purported repeal.  The provisions of the sub-section did not contemplate a removal in the contingency created by the facts of the case and so the State Government had  no  power  to remove him under  the  sub-section.   The Tribunal  could  not have functioned with both  of  them  as members  in  the teeth of the provisions of S.  12(2).   The grounds  for dissolution of the Tribunal are not  enumerated in the Act.  We, therefore, agree with the view of the  High Court  that  the dissolution of the Tribunal was not  for  a collateral purpose. The  other contention raised by Mr. Garg to the validity  of the  notification  dissolving  the  Tribunal  was  that  the notification  was issued by S. K. Chhiber,  Secretary,  Home Department, and not by the Governor. At the relevant time, Punjab was under the President’s  Rule and  according  to Mr. Garg, the only  person  competent  to issue  the  notification in question was the  Governor.   In support  of this contention, he relied upon  the  Governor’s Secretariat  Order dated July 6, 1966, which  allocated  the business  of the Government among various functionaries.  in paragraph  C  of that Order, it was provided that  the  Sec- retaries  to  the Government would dispose of  the  business relating to their respective Departments except cases which, under  the  Rules of the Government of  Punjab,  1953,  were required  to  be submitted to the Governor, the  Council  of Ministers  or  the Chief Minister, and as  the  business  in question  should have been submitted to the  Chief  Minister before  issuing orders, the Governor alone was competent  to sanction  the issue of the notification.  Counsel relied  on Rule 28, sub-rule (1) (xxii) of the Rules of Business  which reads :               "28.(1)  The following classes of cases  shall               be submitted to the Chief Minister before  the               issue of orders :               (xxii) Propsals for the creation, for a period               exveeding  six  months  or  abolition  of  any               public  office,  the maximum  remuneration  of               which is between Rs. 800 and Rs. 2,000/-" We  do  not  think  that  the  notification  dissolving  the

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Tribunal  abolished  any public office  of  the  description specified in the sub-rule. 741 The Tribunal was not abolished.  It was only  reconstituted. There  was  no abolition of any  public  office.   Abolition means,  "to  destroy, extinguish, abrogate  or  annihilate". We, therefore overrule tile contention of the counsel. The result is that the appeal has to be dismissed and we  do so with costs. S.B.W.                         Appeal dismissed 742