1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.669 OF 2009 Eknath Bayaji Gadkari, ) Chairman, Textiles Committee, ) Age 51 yrs., Off. Business, ) Residing at 3/42, B.D.D. Chawl, ) N.M. Joshi Marg, Mumbai-13. ) .. Petitioner Versus 1. Union of India, ) Through its Secretary to the ) Ministry of Textile having office ) At Udyog Bhavan, New Delhi. ) 2. Textiles Committee, ) having office at P. Balu Road, ) Prabhadevi, Mumbai-25. ) 3. Vice Chairman, Textiles Committee, ) having office at P. Balu Road, ) Prabhadevi, Mumbai-25. ) 4. The Secretary, Textiles Committee, ) having office at P. Balu Road, ) Prabhadevi, Mumbai-25. ).. Respondents -- Mr. G.S. Godbole i/by Mr. S.S. Redekar for the petitioner. Mr. R.V. Desai, Senior Advocate with Mr. A.M. Sethna, Mr. P. K. Khosla for the respondent No.1. Mr. A.J. Rana, Senior Advocate with Mr. L.S. Shetty i/by & M/s. L.S. Shetty & Associates for the respondent Nos.2 to 4. -- 2 CORAM : SWATANTER KUMAR, C.J. & A.M. KHANWILKAR, J. Judgment reserved on : 7th September, 2009 Judgment pronounced on : 15 th October, 2009 JUDGMENT (Per Swatanter Kumar, C.J.) Heard. Rule. Rule made returnable forthwith. By consent of the parties taken up for hearing and final disposal. 2. The petitioner, who is the Chairman of the Textile Committee constituted by the Ministry of Textile, Udyog Bhavan, New Delhi under the provisions of the Textile Committee Act, 1963 (hereinafter referred to as "the Act"), has approached this court under Article 226 of the Constitution of India praying that Item No. 4A and the action on part of the respondents including it in the agenda of the 100th Meeting of the Textile Committee be struck down and para 50 of the decision taken on Item 20 in its 94th meeting and Item 1 of 95th meeting held on 16th February, 2006 and 27th April, 2007 respectively, being arbitrary, unconstitutional, ultravires and contrary to the provisions of the Act and the Rules 3 framed thereunder be quashed and set aside. The petitioner has also prayed that the Office Order dated 24th March, 2009 issued by the respondents be set aside, and respondent No.2 be directed to withdraw the resolution dated 16th March, 2009. 3. The relevant facts are that the petitioner, who is chairman of the respondent No.2 committee, has referred to various provisions of the Act and Textiles Committee Rules, 1965 (hereinafter referred to as "the Rules") to contend that there is bifurcation of powers, functions, duties and authority of various functionaries in the hierarchy of the Textiles Committee. The Textiles Committee is the supreme governing body and the Chairman is responsible for conduct of the business of the Textiles Committee as per the powers vested in him under the Act and the Rules framed thereunder and/or the functions that are assigned or delegated to him by the Textile Committee. The Chairman and Vice Chairman normally act and are vested with such powers to the extent to which the Committee considers it expedient in terms of Ruls 33(1). In terms of Rule 35 of the Rules, the Secretary of the Textile Committee is to work under the general control of the Chairman or in his absence, the Vice 4 Chairman who may grant or delegate the Secretary such powers and duties as may be deemed proper by the Committee. The powers and duties of the Secretary are defined under Article 35(c) of the said Rules. The Committee under Rule 34 is to pass a resolution for the purposes of delegating its powers in terms of Rule 33(1) to the Chairman and the Vice Chairman. 4. On 6th October, 2008, an Office Memorandum was issued by respondent No.1 delegating all the executive, financial and residuary powers in the Secretary of the Textiles Committee. The memorandum also stated that the decision taken in its 94th meeting and ratified in its 95th meeting which had passed such directions of withdrawing the powers vested hitherto in the Secretary, Textiles Committee had no previous sanction of the Central Government and hence was in clear violation of the Textiles Committee Rules, 1965. These directions were challenged before this court in Writ Petition (Lodging) No.2411 of 2008 which was disposed of vide order dated 25th February, 2009 as the respondent No.1 therein agreed to withdraw the said Office Memorandum. The said order of the High Court reads as under: 5 "The learned counsel appearing for the parties have filed consent Minutes of Order signed by the learned counsel appearing for the respective parties. The same is taken on record and marked "X" for identification purposes." 2. The learned counsel appearing for the Union of India submits that the competent officer i.e. Under Secretary to the Government of India is also present in court who has approved the consented Minutes of Order. 3. Writ petition is disposed of in terms of the consent terms marked "X". We make it clear that these are merely the consented Minutes of Order agreed upon between the parties and court has not adjudicated upon any of the terms or their applications. It should be clearly understood that the court has not decided any of the terms or their merit." MINUTES OF ORDER 1. The Respondent No.1 withdraws the impugned Office Memorandum dated 6.10.2008 issued by the Joint Secretary to the Government of India, being Exhibit "H" to the Writ Petition. 2. The Petitioner withdraws the Office Note No.18/8/1993-A-D dated 10.7.08 and Office Note No. 18/8/1993-A-D dated 24.9.2008. 3. The Petitioner has assured the Court to issue instructions to the Secretary of the Textiles Committee for convening the meeting of the Textiles Committee within a period of 3 weeks and arrange to circulate the Agenda of the said Meeting amongst all 6 the members of the Textiles Committee sufficiently in advance. 4. The disposal of this Writ Petition would not come in the way of exercise of statutory powers by the Central Government, i.e. Respondent No.1. 5. The Writ Petition is disposed of with the aforesaid terms with no order as to costs. Mumbai. Dated:this day of 25th February, 2009 FOR IDENTIFICATION ONLY Sd/- Sd/- (G.S. Godbole)/(S.S. Redekar) (Kiran J. Kandpile) Advocate for the Petitioner. Advocate for Respondent No.1. Sd/- (L.S. Shetty) Advocate for Respondent No.2. 5. In the 100th meeting of the Committee which was scheduled to be held on 16th March, 2009, an item in the agenda providing for delegation of the powers of Committee was included which was not accepted by the petitioner, as according to the petitioner, such powers could not be delegated when the Chairman of the Committee was in place. Inclusion of Item 4A with regard to 7 delegation of powers was not approved by the petitioner but still the Secretary of the Committee, on 10th March, 2009, included the said item in the Agenda which the petitioner came to know only on 12th March, 2009. According to the petitioner, in the 100th meeting of the Committee held on 16th March, 2009, there was chaos when the said item No.4A was taken up for discussion. The petitioner brought to the notice of the Committee that he had disapproved the said item but it was still included in the agenda illegally and brought up before the Committee. Despite this, the said matter was discussed and the resolution was passed. In regard to this, the petitioner even served the respondents, a letter, through his advocate on 17th March, 2009, setting out the correct position and inter alia expressly stating that there was no delegation of powers of the Committee. Item No.4A and the Resolution passed thereon by the Committee on 16th March, 2009 reads thus- "Item No.4A: To consider and decide delegation of its powers of committee as per provisions of the Textiles Committee Act and Textiles Committee Rules for efficient and smooth functioning of the Textiles Committee." 8 "46. After detailed deliberations on this item the Committee passed the following resolution:- "The above agenda was discussed in the 100th Committee Meeting held on 16th March 2009 and the Committee Members deliberated on the Agenda Item at length. The members felt that the Committee deliberations and resolution regarding delegation of powers during 91st and 94th meeting of the Committee were not administratively proper and hence were not in the interest of the smooth functioning of the Committee. Also, the genuine objections raised with respect to 94th meeting decision of para 50 were not brought to the notice of the Committee. The Members also feel that the withdrawal of administrative and financial powers of the Secretary is uncalled for and not in the best interest of the organization. Hence, the Committee resolves to approve that the proposed delegation of the power should be vested to the Secretary, Vice-Chairman and Chairman as follows: (1) Wherever the powers have not been expressly stipulated/delegated under the notified service regulations of the Textiles Committee, the Secretary, Textiles Committee, be declared the Head of Department/ Controlling Officer/Sanctioning Authority, or such other authority, as may be defined in GFR and various Central Government Service Rules adopted/followed 9 by the Committee for governing the services of the officers and employees of the Textiles Committee and other administration matters; and (2) The Financial Powers of the Committee is delegated among the Secretary, Vice-Chairman and Chairman as per the details of the delegation of powers mentioned at Annexure-A." 6. After the above meeting was held contrary to law, according to the petitioner, he issued an Office Order dated 20th March, 2009 stating that there was no delegation of power to the Secretary or the Vice Chairman. Thereafter, the minutes of the said meeting were communicated to the petitioner on 23rd March, 2009 and it was also placed on record that Item No.4A was directed to be included in the Agenda items in furtherance to the directives issued by the Vice Chairman. The Office Order dated 24th March, 2009 clearly stated that whenever powers have not been expressly stipulated, financial and administrative powers would vest in the Secretary. This circular dated 24th March, 2009 has been annexed as Exhibit 'Q' to the petition which reads as under: 10 "TEXTILES COMMITTEE (Government of India, Ministry of Textiles) P.R. Balu Road, Prabhadevi, Mumbai 400025 No.18/8/2009-AD 24th March, 2009 OFFICE ORDER The Textiles Committee in its 100th meeting held on 16th March 2009, delegated financial and administrative powers as under: a. Wherever the powers have not been expressly stipulated under the notified service regulations of the Textiles Committee, the Secretary, Textiles Committee, shall be the Head of Department/Controlling Officer/Sanctioning Authority, or such other authority, as may be defined in GFR and various Central Government Service Rules adopted/followed by the Committee for governing the services of the officers and employees of the Textiles Committee and other administrative matters; and b. The Financial Powers of the Committee is delegated as per the details of the delegation of powers mentioned at the Annexure. 2. Consequent on the above decision of the Committee, all the orders of delegation of powers issued prior to the current decision of the Textiles Committee shall stand superceded. Sd/- Pradeep Gupta Secretary 11 To: 1) All HOWs 2) All Regional Office of the Textiles Committee 3) A/C Section 4) Guard file Copy for information to: 1) The Chairman Textiles Committee, Mumbai 2) The Vice-Chairman, Textiles Committee, Mumbai 3) Joint Secretary, Government of India, Ministry of Textiles, New Delhi. 4) Director (Internal Finance) Government of India, Ministry of Textiles, New Delhi." 7. The petitioner challenges the legality and correctness of the above resolution interalia on the ground that the rule making power of the Central Government has not been exercised in accordance with the provisions of the Act as the respondents are expected to act in the manner specified in the Act alone and in no other way. The Office Memorandum dated 6th October, 2006 was subject matter of Writ Petition (Lodging) No.2411 of 2008 which has been withdrawn by the respondents by order dated 25.2.2008. The 12 present order and minutes have been passed on the same lines and are patently arbitrary. The Vice Chairman had no authority to include the item in the agenda when the Chairman was in place and he could exercise those powers only which were given to him by the Committee or the Chairman. The resolution is contrary to the provisions of Rule 37-C and places unreasonable restrictions on the powers of the Chairman. As such the action besides being arbitrary is even unconstitutional. The resolution also has the effect of setting aside the earlier duly confirmed minutes passed by the Committee in its 94th and 95th meetings which is impermissible particularly in the manner in which it was done. 8. On behalf of the respondents, separate replies were filed. By refuting the claim of the petitioner, respondent Nos.2,3 and 4, in their common reply, have stated that the Chairman was usurping the power of the Textiles Committee and has committed certain irregularities as he appointed one Satyaveer Singh as Joint Director without approval of the Committee, against whom even FIR has been registered. It is averred that the agenda item No.4A was taken up for discussion and the decision was taken to pass a resolution to 13 which the petitioner was not even willing that the issue be taken up in the meeting. The Textiles Committee is a supreme body and can take up any or all matters within its power under section 14 of the Act. Even earlier, the powers were exercised by the Secretary but were illegally withdrawn by the Chairman in the 94th Meeting of the Committee which was contrary to the provisions of section 14. The Minutes of the Meeting of 94th and 95th meeting to the extent were ineffective and to remove the illegality, these matters were deliberated upon and delegation of powers were effected to the Secretary in the 100th meeting dated 16th March, 2009. It is also stated that Item No.4A was included as per the directions received from the Ministry of Textile, Government of India. This direction of the Government has not been challenged by the petitioner in the present writ petition as such the consequential minutes are correct and are required to be implemented in the interest of the organization. 9. The respondent No.1 though has filed a different reply but primarily has taken the same stand that the minutes of the 94th and 95th meeting were illegal. The Textiles Committee is bound by 14 the directions issued by the Central Government in terms of section 4(3) of the Act. It is disputed that there was any chaos at the 100th meeting. According to the respondents, the minutes have been prepared properly, as per the decision taken in the meeting and in accordance with the rules. 10. The petitioner filed rejoinder to these replies. He reiterated the averments made in the writ petition and while placing emphasis, prima facie, to section 3, stated that the Secretary of the Committee failed to act as per his instructions and worked as per the instructions issued by the Vice Chairman of the Committee who is not the competent authority. The disputed Item 4A, according to the petitioner, could not have been part of the agenda and its placing before the Committee for consideration, therefore, was improper and unjustifiable. 11. With reference to the above factual matrix, now we must examine the relevant provisions of the Act and the Rules. As already noticed, the Committee is the highest body in terms of the Act. 15 Section 2(b) defines "Committee" which means the Committee established under section 3 of the Act, while Section 2(a) defines "Chairman" which means the Chairman of that Committee. In terms of section 3, the Central Government has to constitute the Textiles Committee which is a body corporate having perpetual succession and a common seal. The Chairman is to be appointed by the Central Government, Vice Chairman shall be the Textile Commissioner, ex- officio and Joint Secretary to the Government of India are ex-officio members of the Committee and shall consist of such other persons as appointed by the Central Government as its members. As per the provisions of section 4, the functions of the Committee shall generally be to ensure by such measures, as it thinks fit, standard quality of textiles both for internal marketing and export purposes and manufacture and use of standard type of textile machinery. The Committee is responsible for running the entire policy and decision making processes and at the same time, under section 4(3), the Committee is bound by such directions as may be issued to it by the Central Government for reasons to be stated in writing. Section 5 vests the Committee with all such powers as may be necessary or expedient for the purposes of carrying out its functions under the 16 Act. Section 14 empowers the Committee to direct to delegate its powers or duties by general or special order, in writing. It may delegate all or any of the powers or duties subject to such conditions as may be specified in the order and such powers are to be exercised or discharged by officers or employees of the Committee as specified in the order. Sections 22 and 23 give power to the Central Government to make Rules and Regulations, respectively, but both of them are to be legislated for the purposes of carrying out the purposes and giving effect to the provisions of the Act. The regulations framed should be in relation to matters which provision is necessary or expedient for the purposes of giving effect to the Act. Except stating that there shall be a Chairman of the Committee and he shall be Member of the Committee, the Act is silent with regard to the functions and powers which are to be performed by the Chairman. Section 14 obviously indicates that powers and duties are to be delegated by the Committee to its employees and officers. In furtherance to its power vested in the Central Government in terms of section 22 of the Act, the Central Government framed the rules called the Textiles Committee Rules, 1965. Rules 33 to 35 are the relevant rules which will have bearing on the matters in controversy 17 before us. They read as under:- 33. Powers of Committee: (1) Subject to the provisions of Rules 29, 30, 36 the Committee may be resolution, sanction any expenditure or enter into any contract involving expenditure from the Fund in the discharge of its functions under the Act. Provided that the Committee shall not sanction any expenditure or enter into any contract involving such expenditure in excess of the budget allotments. Provided further that the Committee shall not enter any contract involving an expenditure in excess of twenty five lakhs of rupees, or extending over a period of five years without the previous approval of the Central Government. Provided also that the Central Government may having regard to the need of the occasion, by writing, authorise the Committee to enter into contracts involving expenditure in excess of the sum or contr4acts exceeding the period specified in the preceding proviso. (2) The Committee shall have power to write off in any individual case losses upto twenty five thousand rupees. (3) The Committee may incur expenditure outside India upto an amount not exceeding fifty thousand rupees on each individual item. (4) The Committee may redesignate after 18 consultation with Central Government any of the sanctioned post or posts to meet its requirements as the work on hand may require from time to time, subject to the condition that such redesignation of posts shall not result in increasing the sanctioned staff strength or incremental expenditure in the pay and allowance. 34. Delegation of powers to Chairman and Vice-Chairman: The Committee may by a resolution, delegate its powers under sub-rule (1) of Rule 33 of the Chairman and the Vice-Chairman to the extent it considers expedient. 35. Powers and duties of Secretary : The Secretary shall work under the general control of the Chairman or in his absence the Vice-Chairman, who may delegate to him such powers and duties as the Committee may consider necessary. The Secretary shall: (a) Implement all decisions taken by the Committee or any Standing Finance Committee or Ad hoc Committee; (b) Co-ordinate the work of other officers and establishment of the Committee; (c) Convene, under the instructions of the Chairman or the Vice-chairman meetings of the Committee, Standing Committee or Ad hoc Committee and draw up the agenda for each meeting under the directions of the 19 Chairman or Vice-Chairman and supply the same to the members of the Committee, Standing Committee or Ad hoc Committee alongwith the notes of the meeting; (d) Maintain the Minute Books; (e) Furnish to the Central Government all reports, returns and other documents required to be furnished by or under the Act. (f) Prepare the budget estimates of the Committee; (g) Sanction re-appropriation of grants under such powers as may be delegated by the Committee and within such limits as may be prescribed by the Committee; (h) Maintain accounts of receipts and expenditure of the Committee as provided for in sub-section (1) of Section 13 of the Act; (i) Sanction tours of officers and staff working under the Committee and necessary advance to them for such tours and countersign all bills relating to pay, travelling allowances, contingencies and the like as may be3 authorised by the Chairman or the Vice-Chairman. (j) Exercise and perform such other powers and duties as may, from time to time, be delegated to him by the Chairman or the Vice-Chairman. 20 12. As is evident from the above-referred provisions, as far as functioning of the Committee is concerned, the Committee has a power mainly to manage the finance with particular reference to sanctioning the expenditure or contract involving expenditure from the fund in discharge of its functions under the Act and Rule 34 requires the Committee to pass a resolution vide which it can delegate its powers under sub-rule (1) of Rule 33. Though this rule relates primarily to delegation of exercise of financial powers but in terms of section 14, the Committee is vested with general powers of delegation of its powers and duties to any of its employees and officers on such terms and conditions as it may consider fit and proper. Regulation 35 deals with the powers and duties of the Secretary. Either under the provisions of the Act or the Rules framed thereunder, the Secretary is not empowered to perform any duty or functions which have not been delegated to him by the competent authority and he has to work under the general control of the Chairman or in his absence, the Vice Chairman who may delegate to him such powers and duties as the Committee may consider necessary. Under these rules, Secretary is responsible for 21 implementing the decision of the Committee or by the standing Finance Committee or ad hoc committees, coordinate the working of the work and establishment committees, convene under the instructions of the Chairman or Vice Chairman the Meetings of the Committees or other committees, maintain books and perform other functions. In terms of section 35(j), he can exercise and perform such other powers and duties as may, from time to time, be delegated to him by the Chairman and the Vice Chairman. Similarly, regulations have been framed by the Central Government which do not relate to the performance of duties and functions but primarily provide for the matters relating to recovery, issuance of notice etc. 13. We have already noticed that Section 14 of the Act is a general provision which embodies in itself authority to the Committee to delegate its functions and requires its officers or employees to exercise or discharge the duties which are delegated to them by a specific order. The financial powers of sanction of any expenditure or entering into any contract involving expediture from the Fund and for any expenditure to