Case: Gurdit Singh Aulakh (Deceased) Through L.R.S Vs. The State Of Punjab &amp; Others

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. 5. 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 by the removal of the 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 affected 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 for the constitution of one or more Tribunals by the State Government for deciding claims made in accordance with the provisions of the Act. 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 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 removed only in accordance with the provisions of Section 12 (3). That section provides: The local Government may be 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 sub-section was in force on the relevant date and its conclusion was that it continued to be operative 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 Section 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. 6. The other contention raised by Mr. Garg to the validity of the notification dissolving the Tribunal was that the notification dissolving the Tribunal was that the notification was issued by S. K. Chibber, Secretary, Home Department, and not by the Governor. 7. At the relevant time, Punjab was under the Presidents 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 Governors Secretariat Order dated July 6, 1966, which allocated the business of the Government among various functionaries. In paragraph 3 of that Order, it was provided that the Secretaries to the Government would dispose of the business relating to their respective Departments except cases which, under the Rules of Business 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 26, 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) Proposals for the creation, for a period exceeding six months or abolition of any public office, the maximum remuneration of which is between Rs.800 and Rs.2,000/-. 8.We do not think that the notification dissolving the Tribunal abolished any public office of the description specified in the sub-rule. The Tribunal was not abolished. It was only re-constituted. There was no abolition of any public office. Abolition means, to destroy, extinguish, abrogate or annihilate. We, therefore overrule the contention of the counsel.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. 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 by the removal of the 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 affected 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 for the constitution of one or more Tribunals by the State Government for deciding claims made in accordance with the provisions of the Act. 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 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 removed only in accordance with the provisions of Section 12 (3)The High Court has considered the question whether the sub-section was in force on the relevant date and its conclusion was that it continued to be operative 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 Section 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 purpose8.We do not think that the notification dissolving the Tribunal abolished any public office of the description specified in the sub-rule. The Tribunal was not abolished. It was only re-constituted. There was no abolition of any public office. Abolition means, to destroy, extinguish, abrogate or annihilate. We, therefore overrule the contention of the counsel.