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Judgment
Heard Shri Dr. Th. Suresh, the petitioner-in- person and Shri K. Jagat, the learned Government Advocate appearing for the State respondents.
By the instant writ petition, the petitioner has prayed for quashing the impugned order dated 13-03-2008 issued by the Chief Secretary, Manipur and the impugned letter dated 24-08-2009 addressed to him by the Director of Health Services, Manipur.
1. According to the petitioner, the Manipur State T.B. Control Society (hereinafter referred to as "the Society") is a society registered on 12-05-2000 under the provisions of the Manipur Societies Registration Act, 1999. While the petitioner was serving as the Director of Health Services, Manipur, he was the Vice-Chairman of the Society. He retired from his service w.e.f. 31-05-2008 on attaining the age of superannuation vide order dated 27-05-2008 issued by the Under Secretary (DP), Government of Manipur. 3.2. In its emergency meeting held on 01-02-2007, the Governing Body of the Society resolved to constitute an Appointment Committee for appointment of 9 (nine) Additional Laboratory Technicians on contract basis in order to function the non-functional DMC in the State under the "State Autonomy and Responsibility" through the advertisements to be published in local newspapers and the DPC was to be held on 16-02-2007. The Appointment Committee consisted of the petitioner as the Chairman, Member Secretary and another member of the society. The said emergency meeting was to be convened by the Governing Body pursuant to a letter dated 21-01-2007 of the Chief Medical Officer, Directorate General of Health Services (Central T.B. Division), Nirman Bhawan, New Delhi conveying the approval to increase the strength of the contractual Laboratory Technicians in the State.
3.3. Pursuant to the said resolutions of the Governing Body, a notice dated 14-02-2007 was published in the local dailies for selection of Laboratory Technicians of RNTC programme from amongst the eligible candidates who have passed the 10+2 in Science with diploma in Laboratory Technicians and on the basis of a recommendation of the Selection Committee, 9 (nine) candidates were selected for appointment to the post of Laboratory Technicians, an order dated 26-02-2007 in respect thereof was issued by the Member Secretary of the Society who issued another order dated 06-03- 2007 appointing them on contract basis for a period of one year with effect from 01-03-2007 with their place of posting being shown against their names.
3.4. As regards the recruitment of the contractual staff, the Central T.B. Division, Ministry of Health & Family welfare, Government of India vide its letter dated 16-05-2007 stated that it be decided by the Society. But as per instructions contained in the letter dated 16-05-2007 from the Secretariat, Health Department, Manipur, the petitioner herein issued a Memorandum dated 16-05-2007 for disengagement of the services of the said 9 (nine) Laboratory Technicians which came to be challenged before the Hon''ble High Court by way of a writ petition being W.P. (C) No. 452 of 2007 wherein the Hon''ble High Court vide its order dated 09-07-2007 was pleased to stay the operation of the said Memorandum and in compliance thereof, the petitioners therein were allowed to continue till 29-02-2007 vide order dated 18-02-2008 issued by the Society.
3.5. In the meantime, on 19-05-2007 the petitioner herein was served with a notice along with a statement of imputations of irregularity for holding an enquiry under the provisions of the Manipur Public Servants'' Personal Liability Act, 2006 (hereinafter referred to as "the Act, 2006") and the Rules made thereunder for recovery of a total financial liability of Rs. 2,25,750/- (Rupees two lakh twenty five thousand seven hundred and fifty) only caused by the alleged irregular engagement of the said 9 (nine) Laboratory Technicians by the petitioner along with two other officers. In reply to the said notice, the petitioner submitted his written statement of defence on 30-05-2007 stating therein that such engagement can be done by the Society; that the provisions of the Act, 2006 and the rules made thereunder, are not applicable, as the Society does not receive any grant-in-aid from the State Government and is 100% funded by the Government of India and that the authority of the Society rests with the Chairman and the Member Secretary only and not with him as the Vice-Chairman.
3.6. The then Chief Secretary, Manipur issued the impugned order dated 13-03-2008 wherein it is stated that the engagement of 9 (nine) Laboratory Technicians was in violation of the existing guidelines causing a total financial liability of Rs. 2,25,750/-; that the petitioner and two other officers were personally & equally liable for it and that the said sum should be recovered from their monthly salary and the entitlements payable by the Government to them @ Rs. 75,250/- (rupees seventy five thousand two hundred and fifty) each. On coming to know about the said order dated 13-03-2008, the petitioner submitted a representation dated 26-03-2008 praying for reviewing the order dated 13-03-2008 in the facts and circumstances mentioned therein.
3.7. In the meantime, the Hon''ble High Court vide its order dated 10-03-2008 disposed of the W.P. (C) No. 452 of 2007 directing the respondents therein to release the due and outstanding pay and allowances of the petitioners therein for the period of their contract appointment. Similarly, another order came to be passed by the Hon''ble High Court on 12-03-2008 in W.P. (C) No. 604 of 2007 whereby the respondents therein were directed to pay the arrear of pay and allowances to the petitioners therein. In compliance with the order dated 10-03-2008 passed in W.P. (C) No. 452 of 2007, the Joint Secretary, Health & Family Welfare, Government of Manipur issued an order dated 24-06-2008 ordering that the remuneration for contractual engagement of 9 (nine) Laboratory Technicians in the Society would be paid w.e.f. 01-03-2007 to 29-02-2008 and accordingly, they were informed vide Memorandum dated 28-06-2008 of the Society to collect their salary for the said period.
3.8. On 24-08-2009 the Director of Health Services, Manipur addressed a letter to the petitioner herein informing that under the Manipur Public Servants'' Personal Liability Rules, 2006, the amount of Rs. 75,250/- had to be recovered from his pension at 1/3rd of monthly pension till the recovery of the said amount. Being aggrieved by the said impugned order dated 13- 03-2008 and the letter dated 24-08-2009, the instant writ petition has been filed by the petitioner.
In order to contest the writ petition, an affidavit-inopposition on behalf of the respondent Nos. 1, 2 and 3 has been filed wherein it is stated that the Act, 2006 was enacted with a view to avoid accumulation of unauthorised liabilities to the State through irregular activities of the public servants and to ensure financial discipline; that the petitioner while working as the State T.B. Officer, Manipur-cum-Member Secretary of the Society issued an order dated 06-03-2007 engaging 9 (nine) Laboratory Technicians on contract basis for a period of one year and on examination thereof, it was found that certain irregularities and illegalities were committed and therefore, a letter dated 16-05-2007 was addressed to the petitioner directing him to terminate the engagement of the said 9 (nine) Laboratory Technicians; that as per the guidelines of the Government of India, the engagement of persons on contract basis was to be done by the District T.B. Control Societies and the engagement of 9 (nine) Laboratory Technicians vide order dated 06-03-2007 suffered from serious lacuna as no designation or the rate of remuneration was indicated therein and no roaster of reservation was followed by the petitioner and other two officers. It is also stated that when the High Power Committee constituted under the Manipur Public Servants'' Liability Rules, 2006 considered the case of the petitioner along with two other officers, it felt that the District T.B. Control Societies were the competent authorities to engage the contractual staff and therefore, the engagement of 9 (nine) Laboratory Technicians by the Society was in violation of the guidelines and accordingly, the amount of Rs. 75,250/- was directed to be recovered from the monthly salary of the petitioner.
The main contention of the petitioner-in-person is that the provisions of the Act, 2006 are not applicable at all for the reason that the Society of which the petitioner was the Vice- Chairman at the relevant time, does not receive any grant-in-aid from the State Government and is 100% funded by the Government of India. In order to appreciate and advert his contention, the provisions of the said Act, 2006 are required to be examined by this court. The said Act extends to the whole of the State of Manipur. The expressions "irregular actions", "liability", "public servant" and "State Government" are defined in Section 2 of the Act and the same are reproduced herein below for ready reference:
"2(d) "irregular actions" means actions in form of appointment, engagement, work order, supply order, contract, Memorandum of Understanding, grant or commitment to grant a benefit, relief, grant-in-aid or compensation, whether in exercise of a statutory power or otherwise, that are not consistent with or in accordance with the rules, specific orders; and instructions of the Government and procedures as laid down and amended from time to time;
(e) "liability" means the liability for payment of salary, wages, allowances, leave salary, leave encashment, medical benefits and other service entitlements, pension, gratuity, family pension, special pension and other retirement benefits, grantin- aid, compensation for land, buildings, damages, injury & death, payment of bills, works, and supply orders from the Consolidated Fun of the State and the Public Account of the State or the Fund of the agencies set up by the Government;
(g) "public servant" means all functionaries, officers and employees of the State of Manipur appointed by and in the name of the Governor and includes Ministers, officers and employees of the State Government and its agencies and the autonomous bodies including statutory bodies, public sector undertakings, companies, aided institutions, societies and bodies receiving grant-in-aid from the Government;
(i) "State Government" means the Government of Manipur and its agencies"
Section 4 of the Act which provides for liability for irregular action of Public Servant, is given as under:
"4. Liability for irregular action of Public Servant:- Any Public Servant who appoints or engages a person or persons, enters into a contact or Memorandum of Understanding with another person, awards a work, places a supply order, or grants or commits to grant a benefit, relief, grant-inaid or compensation or payment of a sum for any bill, work, supply, entitlement, benefit, relief, grantin- aid or compensation on behalf of the Government to any person or a body of persons whether in exercise of a power conferred under a Statute or otherwise, in violation of the existing instructions and orders of the Government and procedures as laid down, and without approval of the competent authority will be entirely and personally liable for payment and liquidation of the financial liability arising out of his action."
Section 4 of the said Act, 2006 provides that any public servant who does any of the acts mentioned therein in violation of the existing instructions, orders, procedures and without approval of the competent authority, will be entirely and personally liable for payment and liquidation of the financial liability arising out of his action. A "public servant" has been defined in Section 2(g) as the officer of the State of Manipur and the autonomous bodies including societies and bodies receiving grant-in-aid from the Government. The expression "societies" is specifically mentioned therein and is qualified by the words "receiving grant-in-aid from the Government". What does the expression "Government" mean? Does it mean "Government of Manipur" or "Government of India" or both? On the one hand, the expression "Government" is not defined in the Act, although it has been used while defining the expressions "irregular action", "liability" and "public servant" in Section 2 and in the provisions of Section 4 of the Act as well. On the other hand, the expression "State Government" is defined in the Act as the Government of Manipur and its agencies. Do the expressions "Government" and "State Government" mean one and the same? On careful examination of the provisions of the Act, the answer appears to be "yes" for the reason that if the expression "Government" is really intended to mean the "Government of India" as well, it could have been specifically incorporated in the Act itself. The fact that the expression "Government of India" is nowhere used in any provisions of the Act, shows that the expression "Government" will mean only the State Government and not the Government of India. The provisions of the Act, 2006 cannot be construed to mean something which is consciously omitted in the Act itself. Therefore, the provisions of the Act, 2006 will apply to societies receiving grant-in-aid from the State Government only and not to societies receiving 100% grant-in-aid from the Government of India. In the present case, admittedly the Society is 100% funded by the Government of India and therefore, the conclusion that can be arrived at is that the provisions of the Act, 2006 will not apply to it.
Having held as aforesaid that the provisions of the Act, 2006 will not apply to the society 100% funded by the Government of India, no any other issues need be considered and decided by this court but since the petitioner-in-person has contended vehemently that even assuming that the Act, 2006 would apply, the petitioner was not liable at all for the reason that he was simply carrying out the orders/ instructions of the Governing Body of the Society, this court proposes to consider and decide the issue arising out of it. It has further been contended by him that the authority as defined in the bye-laws of the Society, is the Chairman and the Member Secretary and since he was neither the Chairman nor the Member Secretary of the Society, he could not have been fastened to any liability. As per rule 4 of the bye-laws of the Society, the Governing Body consisting of the Chairman, the Vice-Chairman, Member Secretary and seven members, is the apex body and as has been stated hereinabove, rule 5 specifically provides that the following shall be the authorities of the Society/Governing Body: (i) the Chairman; (ii) the Member Secretary. In the present case, it is not in dispute that the petitioner was the Vice-Chairman of the Governing Body. In its emergency meeting held on 01-02-2007, it was resolved by the Governing Body that the Appointment Committee would consists of three persons of which the petitioner be the Chairman and it was further resolved that the Appointment Committee would appoint 9 (nine) additional Laboratory Technicians after the notice being widely published in the local newspapers and the DPC being held on 16-02-2007. In terms of the said resolutions, notice was duly published in the newspaper on 14-02-2007 and after the DPC being held, a recommendation was submitted on the basis of which the appointment order dated 06-03-2007 was issued by the Member Secretary of the Society after obtaining approval from the Chairman. On receipt of the instructions from the Secretariat, Health department, the petitioner issued the Memorandum dated 16-05-2007 for disengagement of the aforesaid contract employees. In view of the above, the contention of the petitionerin- person that if any irregularity or illegality was committed by the Society, it was the collective responsibility of the Governing Body or of the Chairman/the Member Secretary individually as the authority, has some force for the reason that since he was merely carrying out the resolutions, he could not be held personally liable for it. At this juncture, one aspect which the petitioner-in-person emphasised and needs to be considered, is that the impugned order & letter are liable to be quashed on the ground of the conduct of the respondents. According to him, the respondents had allowed the contract employees to continue till 29-02-2008 in compliance with the court''s order dated 09-07-2007 and if the respondents were really of the view that the engagement was irregular or illegal, they could have preferred an appeal against the interim order of the High Court but they appear to have failed to do so and ultimately, the writ petition being W.P. (C) No. 452 of 2007 was disposed on 10-03-2008 with the observation that the respondents were bound to pay the pay and allowances to them. It appears that the respondents had chosen to comply with the said court''s order by issuing an order dated 24-06-2008 rather than preferring an appeal against the said court''s order dated 10-03-2008. It is thus seen that the engagement of the said 9 (nine) Laboratory Technicians was the subject matter in issue before the Hon''ble High Court and when the High Court was ultimately of the view that they be allowed to continue till 29-02-2008 with payment of their pay and allowances and the State Government felt satisfied with the court''s orders, there is no reason as to why the petitioner still be penalised for no fault of his individually. Therefore, even assuming for the sake of argument that the provisions of the Act, 2006 will apply to the societies receiving grant-in-aid from the Government of India, the same will not be applicable to the facts and circumstances of the present case as narrated hereinabove and in other words, no enquiry under the provisions of the Act, 2006 ought to have been held against the petitioner. At the most, a disciplinary proceeding could have been initiated against the petitioner in accordance with law, if the State Government was of the view that there was prima facie misconduct on the part of the petitioner in the discharge of his duties which it failed to do so. That is all and nothing else can be done at this stage keeping in mind the fact that the petitioner has already retired a decade''s ago.
For the reasons stated hereinab01ove, the instant writ petition is allowed and consequently, the Government order dated 13-03-2008 issued by the then Chief Secretary, Manipur and the letter dated 24-08-2009 of the Director of Health Services, Manipur are quashed and set aside with no order as to costs.