IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4511 of 2009 Rama Raman Singh, Son of Sri Rajdeo Singh, resident of village- Momindpur, P.O.-Fatuha, P.S.-Fatuha, District-Patna. -Petitioner. VERSUS 1. The State Of Bihar. 2. The Principal Secretary, Industry Department, Government of Bihar, Patna. 3. The Bihar State Textile Corporation Limited, though its Managing Director, having its office at 5th Floor, Lalit Bhawan, Bailley Road, Patna. 4. The Managing Director, The Bihar State Textile Corporation Limited, having its office at 5th Floor, Lalit Bhawan, Bailley Road, Patna. 5. The Siwan Co-operative Spinning Mills through its Managing Director, having its office at 5th Floor, Lalit Bhawan, Bailley Road, Patna. 6. The Managing Director, The Siwan Co-operative Spinning Mills, having its office at 5th Floor, Lalit Bhawan, Bailley Road, Patna. -Respondents. **** For the Petitioner : Mr. V.K. Singh, Adv. Mr. Pankaj Kr. Singh, No.1, Adv. For the State : Mr. Nivedita Nirvikar. For the Corporation : Mr. Bipin Bihari Singh. **** 05 10.09.2009 The petitioner is an employee of the Siwan Co-operative Spinning Mills Limited (hereinafter referred to as the Spinning Mills). His prayer and the reliefs sought for is simple and straightway. His grievance is that as the Spinning Mills had become defunct, other co- employees (workers) were absorbed, pursuant to policy decision taken, in other government service/post, why he has been left out. This simple question is sought to be contested tooth and nail not by showing why this hostile discrimination was carried out but each one concerned shrunk his liability and responsibility and disowning their share of responsibility in the matter in reckless and shameless manner. Why this Court is using these strong expression would be apparent from the conduct of Senior responsible Officers of this Court in this small matter. First, it is stated on behalf of the State that it does not recognize the - 2 - existence of the Spinning Mills and it has nothing to do with it, a deliberately made false statement to the knowledge of all concerned. The State of Bihar formed the Bihar State Textile Corporation, which was a 100% State Government undertaking. There is no dispute about this. The Bihar State Textile Corporation then formed a subsidy in the shape of Siwan Co-operative Spinning Mills, which is a 100% subsidy of the Bihar State Textile Corporation. If these be the facts, can the State refuse to even recognize the existence of the Spinning Mills? In my view, it cannot nor can it disassociate from itself from the same. Strenuous arguments and efforts to disassociate are only for the purposes of defeating the legitimate grievance of the petitioner. The fact does not end there. While the State takes a firm stand and vehemently argues that it has nothing to do with the Spinning Mills to the extent of refusing to recognize its existence, in the same breath, it now accepts that it is the Industrial Development Commissioner who is the sole Administrator of the Spinning Mills. This Court previously was pained to notice the affidavit of the Industrial Development Commissioner where a deliberate attempt was made to mislead the Court into giving a finding that the State had to do nothing with the Spinning Mills till the petitioner pointed out that it was the same very Industrial Development Commissioner who was the Administrator of the said Corporation. Ordinarily, this Court would have initiated contempt proceedings for deliberate false and misleading facts but gave a chance to rectify the position. Regrettably, the stand remains the same. I wonder that on whose advice and with what - 3 - purpose, because the facts are undisputed that Industrial Development Commissioner, Government of Bihar is the Administrator of the Spinning Mills which was set up as a unit of the State of Bihar. To this Court, there cannot be anything more absurd which is coming from a responsible Officer, who is supposed to know law. It is all the more surprising and even after warning by this Court is further regrettable. It is a fit case in which forgery proceeding can be started against the Industrial Development Commissioner but that does not get relief which the petitioner seeks that is the purpose of the writ petition. The Industrial Development Commissioner made reasons which this Court well being do for taking such a diabolical stand in this Court and divert the attention of this Court to a fruitless discussion. As the Administrator of the Spinning Mills, he assumes all powers and jurisdiction of the Board of Directors/Managing Committee thereof, what is the effect. Is it not that the State controls the Corporations? Before it is misunderstood, I must clarify that State control of Corporation does not mean that it becomes State for all purposes. It is State for the limited purpose of Article-12 and Part-III of the Constitution. It is not State for the purposes of Article-309 or 311, but is State within the meaning ascribed to it and Articles 14 & 16 would apply to it, if not Articles 19 & 21 of the Constitution. The objection of the State in trying to disassociate itself it thus frivolous, fraudulent and misconceived. It is rejected outright. As to the grievances of the petitioner, various justifications which were being given but first one basic fact is not in dispute nor is - 4 - denied. Other employees of the Spinning Mills pursuant to a policy of State Officials as Administrator of the said mill and as Administrator of the Bihar State Textile Corporation, whose subsidy is the Siwan Co- operative Spinning Mills, have been absorbed in other government services. Petitioner’s case in spite of repeated protest and attempt has not even been considered. No reason much less valid reason based on valid consideration is forthwith coming that only gives a presumption that the reasons for this hostile discrimination is other than bona fide. What is sought to be justified in course of argument is that the petitioner was not qualified to be considered for absorption. Firstly, it is not shown anywhere with reference to any document that petitioner’s case was at all considered by any authority. It is now hypothetically being argued that consideration was not of any consequence as he was not qualified. That brings to this Court to the question of qualification. Learned counsel for the State refers strenuously to the qualification being persons should be intermediate and persons intermediate with Math, Science or Computer application would be preferred. She points out that petitioner is intermediate with non Math, Science or Computer application. He has, thus, disqualified or not qualified. The argument is noted only to be rejected for its absurdity. The qualification, as noted, does not say that intermediate pass persons other than Math, Science or Computer application are incompetent for absorption. It only talks of preference being given. The common understanding of a Clause granting preference is all other conditions being equal to Math, Science or Computer application would be - 5 - preferred which does not either logically or legally lead to the conclusion that other persons are disqualified. I may further note that it is stated that the Committee of District Magistrate, Bhagalpur did consider petitioner’s case for absorption. I must then also note that they did not reject him. They sought clarification from the Administrator of the Siwan Co-operative Spinning Mills (IDC), Government of Bihar as to the appointment of petitioner and conditions associated therewith. Up to this learned counsel for the State accepts but thereafter fails to explain why and for what reason the Administrator of the Siwan Co-operative Spinning Mills then went into deep slumber, having no “incentive” to act. It is well submitted that the reasons for this abandonment was a circular which then came about stopping such arrangements being made. What is now being said is had the petitioner being considered prior to that circular. It was a different matter because then he could have been absorbed like others. But, having not so considered within that time the right of petitioner to be treated in similar manner as other employees is lost. This submission again is only to be noted for the purpose of being rejected. I may only refer to the law in this regard, as referred to by Chief Justice Chagla in the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that - 6 - because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” That is a complete answer to the submission of the State. If what is submitted is accepted then it would be putting premium on the right to a different default. This Court cannot countenance such an action that would be contra Constitution. Why there was delay in consideration of petitioner’s case is not explained nor even attempted to be explained because of inaction on part of the Administrator, who is non else but a Senior government Official. The petitioner has lost everything with penniless and on roots and the Administrator maintains that he is not responsible for the employees whom he is administering. This human aspect and this inhuman treatment everyone in the - 7 - bureaucracy has lost sight off. It is regrettable that right from beginning to the end every effort has been made by the State to deny the petitioner equal treatment to that of his co-employees. The purpose and the reason is not for this Court to discover, suffice to say that no valid reason for the same has been put forward. Thus, it is accepted that petitioner was treated with not only discrimination but gross hostile discrimination for no fault of his and now it is being said that he could have done something earlier but now nothing can be done. Regrettably, failing to appreciate that when something could have been done nothing was done not because of any default on the part of the petitioner but all defaults on part of State and its Officials. The stand of the State which professes to be a welfare State, is total abandonment of people like petitioner. In fairness to the learned counsel for the State, reliance has been placed on a recent decision of the Supreme Court in the case of State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha (2009)5 SCC 694. In my view, the reliance is totally misconceived. The question is not of payment of salary by the State to the employees of the Corporation created by it. The question here is, why and how was the petitioner given a step motherly treatment when his co- employees were absorbed in the State, he was left out. That was never the issue before the Supreme Court nor any such issue was decided. The case has absolutely no application. In the result, all that can be said is that because of reasons best known to the authorities the human problems remains to be solved and - 8 - the petitioner has been virtually thrown out of the wolf because of the inaction of the Senior Official of the State in the welfare State. This is not to be accepted. Having thus held that there was gross hostile discrimination, so far as petitioner is concerned, I am left with no option but to direct that the petitioner be forthwith absorbed in the same manner as other co- employees have been absorbed. Such decision to absorb and absorbing the petitioner be done within one month from today positively by the respondents. The Administrator of the Siwan Co-operative Spinning Mills shall be responsible for compliance of orders of this Court. I say no more. The writ petition is, accordingly, disposed of. Trivedi/ (Navaniti Prasad Singh, J.)