Dr. Harbhajan Singh Awla vs Union Of India (Uoi) And Ors. on 21 November 2003

Delhi High Court
Dr. Harbhajan Singh Awla vs Union Of India (Uoi) And Ors. on 21 November, 2003
Equivalent citations: 2003VIIIAD(DELHI)337, AIR2004DELHI172, 108(2003)DLT628, 2004(72)DRJ146, AIR 2004 DELHI 172, (2004) 72 DRJ 146 (2003) 108 DLT 628, (2003) 108 DLT 628
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT

Vikramajit Sen, J.

1. Rule.

2. By consent of all the learned counsel for the parties, final arguments have been addressed on the Petition, which shall be finally disposed of. The question which arises is whether the nomination of the fourth (4th) Respondent as a Director of the Central Warehousing Corporation (CWC) carried out by the Central Government is proper and legal, and is the consequence of a bona fide exercise of the discretion vested in the Central Government.

3. The Order that has been impugned before me is cryptic and reads thus:-

“No. 6-11/2003-SG Government of India Ministry of Consumer Affairs, Food & Public Distribution Deptt. of Food & Public Distribution Krishi Bhawan, New Delhi, Dated June 11, 2003 In pursuance of Sub section (3) of Section 7 of the Warehousing Corporation Act, 1962 (W.C. Act, 1962) the Central Government hereby nominate Shri Suresh Niranjan Bhaiyaji as Director of the Board of Central Warehousing corporation (CWC) with effect from the date he joins in place of Shri Harbhajan Singh Awla whose term of two years as Director in the Board of Directors (BOD) of the CWC expired on 30th January, 2003.
2. Shri Suresh Niranjan Bhiayaji will continue as Director on the BOD of CWC till the Director is elected by Co-operative Societies under Rules 7(1)(e) of the W.C. Act, 1962 or till the Government Orders, whichever is earlier.”
( Anju Nigam ) Director”

4. The Board of the Central Warehousing Corporation is constituted and governed by Section 7 of the Warehousing Corporation Act, 1962 (hereinafter referred to as `the Act`). The controversy in the present case is generated in the context of the elected Director. The relevant provision reads thus:

“7. (1) The board of directors referred to in section 6 shall consist of the following, namely:-
…..
(e) one director to be elected by co-operative societies;
…..

(3) If, within the period prescribed in this behalf, or within such further period as the Central Government may allow, the institutions referred to in clause (d) or clause (e) or clause (f) of sub-section (1) fail to elect a director, the Central Government may nominate a director to fill the vacancy”.

(underlining added)

5. Rule 3, 4, 7 and 8 of The Warehousing Corporation Rules, 1963 (hereinafter referred to as `the Rules`) are also relevant and are reproduced below:

“3. Nomination of directors:
The Central Government shall nominate the following persons as directors under clause (a) of sub-section (1) of Section 7, namely:-
(i) a representative of the Ministry of Food and Civil Supplies (Department of Food), Govt. of India,
(ii) a representative of the Ministry of Finance (Department of Expenditure) Government of India, or the Financial Advisor of the Department of Food,
(iii) a representative of the Central Board of Excise and Customs, Ministry of Finance (Department of Revenue),
(iv) the Managing Director of Food Corporation of India, and
(v) two non-officials, preferably representing farmers or experts in marketing, management or administration.
4. Term of office of directors and filling of casual vacancies among director:

(1) The terms of office of non-official Directors nominated under clause (v) of rule 3 shall be two years from the date of the nomination of such Directors and they shall hold office during the pleasure of the Central Government.
(2) The term of office of a Director nominated by the Central Government under the proviso to sub-section (1) of section 7, for the first constitution of the Board shall be two years;
Provided that the Central Government may extend the term of office of such director for a further period not exceeding one year.

(3) A director nominated under clause (b) or clause (c) of sub-section (1) of section 7, or subject to the provisions of that sub-section, a director elected under clause (d), clause (e) or clause (f) thereof, shall hold office for a period of two years from the date of his nomination or election, as the case may be, or until a successor is nominated or elected in his place, whichever is later.

(3A) The term of office of the Managing Director appointed under clause (g) of sub-section (1) of section 7 shall be as determined by the Central Government;

Provided that an outgoing Managing Director shall be eligible for re-appointment for such period as may be decided by the Central Government from time to time;

Provided further that every person holding the office of the Managing Director immediately before the commencement of this amendment shall continue to hold his office by the same tenure as he held such office immediately before such commencement”.

(4) Subject to the provisions of sub-rule (7) a casual vacancy in the office of director shall be filled by election or nomination or appointment by the authority competent to elect or nominate or appoint and a director so elected or nominated or appointed shall hold office for so long until as the director whose place he fills, would have been entitled to hold office if the vacancy had not occurred;

Provided that no casual vacancy occurring within three months of the date of expiry of the normal term of office of a director shall be filled under the sub-rule.

(5) A non-official director nominated under clause (VI) of rule 3 may resign his office by writing under his hand addressed to the Central Government and such resignation shall be effective from the date of which it is accepted by the Central Government or on the expiry of a period of one month from the date of its receipt by the Central Government, whichever is earlier.

(6) A director nominated under clause (b) or clause (e) or a director elected under clause (d), clause (c) or clause (f), of sub-section 1 of section 7, may resign his office by writing addressed to the Chairman and such resignation shall be effective from the date on which it is accepted by the Chairman or on the expiry of a period of one month from the date of its receipt by the Chairman, whichever is earlier;

Provided that every resignation of a director nominated under the said clause (b) or clause (e) shall be addressed to the Chairman through the authority which nominated him as director.

(7) A casual vacancy occurring amongst the directors nominated by the Central Government for the first constitution of the Board in pursuance of the proviso to sub-section (1) of section 7 shall be filled by the Central Government.

7. Sub-Committee:

The Board may appoint as many sub-committees from among its directors as it may deem necessary for the efficient performance of its functions.
8. Filling of Vacancies:

Any vacancy arising among directors elected in pursuance of clauses (d), (e) and (f) of sub-section (1) of section 7 shall be filled within three months from the date when vacancy occuRs. ”
6. The Petitioner was elected in 2001 for a period which would ordinarily have expired on 31.1.2003. To fill up this vacancy on the Board elections were held, but it was found that some of the proxies/authorised representations relied upon by one of the candidates were forged. This finding was reached on the commissioning by the Central Warehousing Corporation of an Enquiry, the relevant conclusions/findings of which are as follows:
“In all these 7 cases picked up on random basis for verification, the proxies in favor of Shri Virendra Singh were not found to be genuinely made. All the Proxies/ARs which were randomly verified being found fraudulently made, inevitably points to a large scale fabrication and bogus proxies having superseded the genuine ones.
In view of the above facts and large scale forgery in proxies, I recommended that the election process be countermanded and fresh process be initiated in order to ensure free and fair election which is essential to uphold the democratic right to the shareholding institutions.”
The Central Warehousing Corporation has acted on this Report in terms of the impugned Order, as a consequence of which the election has been countermanded. This resulted in the filing of a Writ Petition No. 2266/2003 by Shri N. Balaji, one of the candidates apart from the Petitioner and Shri Virendra Singh. That Petition was disposed of by Orders dated 31.3.2003 in which it was observed that since the elections are likely to be held shortly, as per the submissions of the Respondents, the Petition need not be entertained. It was dismissed in liming. Even the present Petitioner has also filed Writ Petition No. 3017/2003 assailing the countermanding of the elections. It is in the light of the extracted provisions of the Act and Rules, which have been relied by counsel for the parties, that the present dispute would have to be resolved. So far as the countermanding of the election is concerned the facts and complaints are not attributable to the Petitioner. As far back as on 31.3.2003 the Court was informed by the Respondents that an election was to be held shortly. However, instead of doing so, the impugned Order has been passed.

7. On a reading of sub-section (3) of Section 7 of the Act it is evident that the Central Government would be empowered to nominate a Director only on the failure of the election process. Since the election process has been duly commenced, and the election has been countermanded with the intention and resolve to be initiated again, the phrase “fails to elect a director” cannot have application. There may be instances where the Institution concerned does not start the election process with the consequence that the person whose term would have expired in the ordinary sequence of events contrives to continue on the Board. Here the Central Government may intervene and nominate a director. This provision must be read in conjunction with Rule 4(3) which clearly specifies that an elected director shall hold office for a period of two years from the date of election or until a successor is elected in his place, whichever is later. The impugned Order of the Respondent could be sustainable if the word `earlier’ is substituted in place of the word `later’. Sub-Rule (3) of Rule 4 of the Rules deals with both types of Directors, namely, nominated and/or elected, but the provision would be misconstrued if it is understood to sanction a nomination in respect of an elected Director. If a casual vacancy occurs in connection with an elected Director, the normal consequence is to hold a fresh election for the unfinished term of two years unless, as per the proviso to Sub-rule (4) of Rule 4 of the Rules this event transpires within the last three months of the two year period. Sub-Rule (4) of Rule 4 of the Rules, which deals with a `casual vacancy` would, in my view, not apply to the facts of the present case since this event has not transpired. Furthermore, if the term has come to an end a casual vacancy cannot possibly occur. Provisions of the genre of such envisaged events would be the death or resignation of the elected incumbent concerned. Rule 8 of the Rules, which also deals with vacancies, enjoins that the Respondents initiate appropriate steps within three months to fill up the casual vacancy. This provision has been infracted by the Respondents, who should not be permitted to take advantage of their own wrong. As has already been observed, over six months have elapsed since the normal tenure of the elections became due on 31.1.2003 but the Central Government has not exercised its power to grant any extension.

8. Learned counsel for the Petitioner has reiterated the position that the Petitioner would abide by the results of the countermanded elections since he is confident that he has succeeded in that election, provided the proxies are correctly counted. Mr. Rohtagi, however, submits that the issue of the countermanding of the election has become final, which thus foreclosing any consideration on those lines.

9. On a consideration of the Sections and Rules mentioned above it appears to me that the removal of the Petitioner from the Board and his replacement by a Government nominee has resulted for no fault ascribable to the Petitioner who, because of the delays which have been caused, stands to be deprived of his legitimate rights. The reasons for the assailed nomination are not available in the Order itself as they should be. The law prescribes that every order must sustain itself. It should not only indicate the decision but should also contain the reasons which had weighed in the mind of the decision taker to arrive at the challenged conclusion. Law frowns on the presentation of reasons post the decision since it is easy to amplify upon and justify it when it is challenged and the knowledge, acumen and genius of eminent counsel is available to the Authority concerned. This exposition of the law can be found in the celebrated decision of the Apex Court in Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others, of which reads as follows:

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji :
“Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”.
Orders are not like old wine becoming better as they grow older.

A Caveat”.

The relevance of these observations are poignantly manifest in the present case since numerous points in support of the decision have been argued by the eminent Senior Counsel who have appeared for the Respondents. The official records have been made available to the Courts for its perusal, in order to see if any other aspects can be found to have been considered, although not explicitly mentioned in the impugned Order.

10. Mr. Anand, learned Senior Counsel appearing for the C.W.C. has contended that too much emphasis has been placed on the `nomination’ carried out in the present case. On a perusal of Section 7 of the Act, it will be apparent that out of the Board of Directors of C.W.C., six Directors can already be nominated by the Central Government, and one each by the National Cooperative Development Corporation and the State Bank. In the case of the elected representatives of the Cooperative Societies, the election is to be carried out by over 70 societies and it has been the experience that problems are faced perennially since there are a vast multitude of proxies which are filed and require scrutiny. He has also adumbrated, and with justification, that the nomination under Section 7(1)(e), with which we are concerned, will not tilt the balance of power in the working of the Board of Directors. There are only three elected members on the Board of Directors out of a total of twelve and in the present case we are concerned with merely one person. Mr. Anand has ardently argued that the nomination should not be looked at with circumspection, suspicion and doubt, since the Central Government can have its say in the Board of Directors even in the presence of any opposition presented by the Petitioner. It has also been submitted on behalf of the Respondents, and with substance, that the countermanding of the election was a sequel to the Petitioner’s complaint and, therefore, the Authorities cannot be viewed as being inimical or antagonistic towards him. It has further been contended that the initial stand of the Petitioner was calculated to stay declaration of the result of the elections. It is only as the litigation has progressed that the Petitioner has shifted stands and made bold that he would have won the elections if a proper count had been taken. Counsel for the Respondents have also emphasised that the Petitioner has found fault with all and sundry even though the unbiased attitude of the Chairman was initially lauded and appreciated by the Petitioner. Senior Counsel for the Respondents have also argued that the Court ought not to interfere with the exercise of discretion unless it is palpably mala fide or capricious.

11. So far as the ambit of jural interference in matters of discretion is concerned, there is unanimity amongst Senior Counsel that its parameters have been succinctly stated in decisions of the Hon’ble Supreme Court including U.P.State Road Transport Corporation and Another v. Mohd. Ismail and Others, (1991) 3 Supreme Court Cases 239 in the following words:

“There are two aspects to be borne in mind in exercising the discretion. Firstly, there are constraints within wahich the Corporation has to exercise its discretion. The Corporation is a public utility organisation where mediating motion is efficiency and effectiveness of public service. Efficiency and effectiveness of public service are the basic concepts which cannot be sacrificed in public administration by any statutory corporation. The Corporation has to render this public service within the resource used and allocation. It is within these constraints the Corporation has to exercise its discretion and perform its task. The second aspect relates to the manner in which statutory discretion is to be exercised. The discretion allowed by the statute to the holder of an office, as Lord Halsbury observed in Susannah Sharp v. Wakefield is intended to be exercised “according to the rules of reason and justice, not according to private opinion; … according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”. Every discretion conferred by statute on a holder of public office must be exercised in furtherance of accomplishment of purpose of the power. The purpose of discretionary decision making under Regulation 17(3) was intended to rehabilitate the disabled drivers to the extent possible and within the above said constraints. The Corporation therefore, cannot act mechanically. The discretion should be exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment with fairness and equity. Those drivers would have served the Corporation till their superannuation but for their unfortunate medical unfitness to carry on the driver’s job. Therefore, it would not be improper if the discretion is exercised with greater concern for and sympathetic outlook to the disabled drivers subject of course to the paramount consideration of good and efficient administration.”
12. In A.P.Aggarwal v. Govt. of NCT of Delhi and Another, the Apex Court was concerned with the legal propriety of a nomination of the appointment of a Member, Sales Tax Appellate Tribunal. Only two persons including the Petitioner therein had been empanelled, and upon the first candidate having demitted office consequent upon his appointment as the Income-tax Appellate Tribunal, instead of appointing Shri A.P.Aggarwal, the Government had initiated the process for fresh selection. This was struck down and a direction was issued by the Court to appoint Shri A.P.Aggarwal as the Member, Sales Tax Appellate Tribunal. The observations in the judgment are of great reliance to the case in hand.

“11. In our opinion, this is a case of conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. Even if it is to be said that the instructions contained in the office memorandum dated 14-5-1987 are discretionary and not mandatory, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also satisfy the mandatory requirement of the statute. It is not therefore open to the Government to ignore the panel which was already approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same. It is not the case of the Government at any state that the appellant is not fit to occupy the post. No attempt was made before the Tribunal or before this court to place any valid reason for ignoring the appellant and launching a fresh process of selection.
12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us”.
13. In de Smith, Woolf & Jowell, Judicial Review of Administrative Action, the recommended approach is that “if the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account, a court will normally hold that the power has not been validly exercised. It may be immaterial that an authority has considered irrelevant matters in arriving at its decision if it has not allowed itself to be influenced by those matters; and it may be right to overlook a minor error of this kind even if it has affected an aspect of the decision. The influence of extraneous matters will be manifest if they have led the authority to make and order that is invalid ex facie, or if the authority has set them out as reasons for its order or has otherwise admitted their influence. …….. If the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence. ……. If the ground of challenge is that relevant considerations have not been taken into account, the court will normally try to assess the actual or potential importance of the factor that was overlooked, even though this may entail a degree of speculation.”

14. By Memorandum dated 28.2.2003, the Chairman, CWC had countermanded the elections. All the parties have relied on this document and it, therefore, justifies reproduction and reads thus:-

“While the polling was in progress on 31.01.2003 complaints were received from Shri Sudhansh Pant, IAS, District Collector, Jaipur and one of the candidates Dr. Harbhajan Singh Awla. To determine the authenticity of these complaints I directed the Returning Officer to seal the ballot box, withhold the result and hold an enquiry into the veracity of proxies.
I have gone through the recommendations of Returning Officer, who selected seven different cases from three different States viz. Assam, Madhya Pradesh and Rajasthan and on the basis of this random sample verification came to the conclusion that fabricated and bogus proxies had superseded the genuine ones. He also observed that both the proxies i.e. the genuine one and the later forged one issued in supercession confirm to the requirement set out in the CWC Rules and Regulations in this regard and, therefore, it was difficult to check the malpractice during scrutiny. Further, any inquiry could have been initiated only if any incident was specifically pointed out as done by the candidate on 31.01.2003 and also by Shri Sudhansh Pant, IAS, District Collector, Jaipur. In view of the use of forged proxies, he recommended that the election process be countermanded and fresh process be initiated.
I have also perused the opinion dated 12.02.2003 of the Additional Solicitor General of India, who has also agreed with the recommendations of the Returning Officer of Central Warehousing Corporation that the election be countermanded because of the use of bogus and forged proxies.
The Learned Additional Solicitor General has further advised to follow certain safeguards for the new process of elections lest the same thing occurs again. He has advised that Central Warehousing Corporation should print its own proxy forms, duly numbered and bearing the stamp and signature of the Returning Officer. In addition to the above, he has also advised that there should be about ten days time for verification before the date of polling as also recommended by the Returning Officer, Central Warehousing Corporation.
I also observe that instances of forgery were largely in cases of plain paper proxies/ARs. Further considering that the enquiry has resulted in confirming the forgery and instances of bogus proxies/ARs, I am of the view that instances of forged and bogus proxies were sufficiently large. I, therefore, direct countermanding of the elections held on 31.01.2003. I further direct that process of elections be initiated de novo and in the fresh notification adequate time be kept for verification of proxies as recommended by the Returning Officer and as advised by the Learned ASG, CWC to have its own proxy forms printed, duly numbered and bearing the stamps and signatures of the Returning Officer. Each society would further be put to notice that only proxies printed, numbered and signed by the Returning Officer shall be entertained.
I have also received the Order dated 26.2.2003 passed by the Secretary, Department of Food & Public Distribution disposing the representation dated 3.2.2003 by Dr. Harbhajan Singh Awla and remanding the matter relating to the use of forged proxies/resolutions to me for disposal after satisfying myself in such manner as I may deem fit and appropriate.
In view of my decision as above, no further direction/action is necessary. A copy of this Order be sent to Dr. Harbhajan Singh Awla.”
(underlining added)

15. The Letter dated 10.4.2003 has been substantially relied upon by the Petitioner to make good the submission that extraneous consideration had been planted in the mind of the officer of the Central Government, on the prompting of the CWC in the direction of replacing the Petitioner with any other persons such as Respondent No. 4. This letter makes interesting reading and demands reproduction:-

“The Joint Secretary(Storage) Ministry of CAF & PD, Krishi Bhawan, New Delhi.
Sir, Dr. Harbhajan Singh Awla was elected as a Director on the Board of the Corporation representing co-op. Class of shareholders under section 7(1)(e) on 31.1.2001. His term of two years expired on 30.1.2003. Accordingly the Election of Director under Section 7(1)(e) was held on 31.1.2003 as per the laid down procedure so as to elect a new director amongst the co-op, class of shareholdeRs. The Election held on 31.1.2003 has been countermanded by the Presiding Officer i.e. Chairman, CWC on the complaint of use of large scale forged proxies/ARs.
As per rule 8 of the CWC Rules 1963 any vacancy arising amongst the directors elected in pursuance of clause (d), (e) and (f) of Sub-Section 1 of the Section 7 shall be filled within 3 months from the date when vacancy occuRs. In view of this, the vacancy is therefore, required to be filled up within 3 months i.e. latest by 30.4.2003.
The Chairman while countermanding the Election held on 31.1.2003 has also directed to conduct the Election de-novo. As per Regulation 20 of CWC (General) Regulations 1965, at least 45 days notice from the date of the Election meeting is required to be given to the shareholdeRs. In addition, ASG and others have made certain suggestions in this regard involving additional requirement of time. In view of this, holding of the election de-novo will take sufficient time and the vacancy therefore, is not likely to be filled up within mandatory stipulation of 3 months i.e. by 30.4.2003. It is submitted that as per section 7(3), if within the period prescribed in this behalf or within such further period as the Central Govt. may allow, the institutions referred t in clause (d) or clause (e) or clause (f) of sub-section 1 of Section 7 fail to elect a director, the Central Govt. may nominate a director to fill the vacancy.
Since the vacancy is not likely to be filled up by 30.4.2003 by holding fresh elections as stated above, the mater was placed before the Chairman for requesting the Central Govt. to nominate a director ti fill the vacancy as per provision of section 7(3). However, the Legal Consultant of the Corporation has opined, in view of the observations made by Hon’ble High Court Delhi on the last writ petition bearing No. CWP/2266/03 filed by Sh.N.Balaji which was dismissed on 31.3.2003 that it shall be appropriate for CWC to request the Govt. to extend the time as per provisions of the Section 7(3). It has been thus decided with the approval of the MD/Chairman that we may request the Govt. to extend the time limit of another 3 months from 30.4.2003. As such you are requested to kindly grant extension of 3 months more time w.e.f. 30.4.2003 to fill up the vacancy by holding election de-novo as per the provisions of the Section 7(3) so as to enable the Corporation to hold the election and fill up the vacancy within the extended time limit.
It is also submitted that in terms of Rule 4(3) of the CWC Rules, 1963, Dr. Harbhajan Awla continues to be a Director on the Board of the Corporation, by default even after the expiry of his two years’ term.
It is, however, relevant to mention here that Dr. Harbhajan Singh Awla as well as Sh. N. Balaji the candidates for Election held on 31.1.2003 had filed several writ petitions in the Hon’ble High Court of Delhi inter alia challenging not only the election/acceptance of nominations/ countermanding of elections, wherein Central Govt. was also a party, but also making allegations against the officers of the Corporation as well as the Board of the Corporation. The copies of the writ petitions/orders of the Hon’ble High Court available with us are enclosed for your kind perusal please.
An early decision in the matter is solicited please Yours Sincerely, (S.C. Batra)”
(underlinging added.)

16. Mr. Anand had also contended that the nomination of Respondent No. 4 is for a period of two years, in consonance with the Act and Rules. Mr. Bhushan on the other hand has been quick to point out that this is contrary to the impugned Order itself, since Respondent No. 4 was to continue as Director on the Board of Directors of CWC till the Director is elected by Co-operative Societies under Rules 7(1)(e) of the Act, 1962 or till the Government Order, whichever is earlier. The Respondents cannot be allowed to somersault out of the avowed decision to conduct fresh elections.

17. The official records have been produced and have been perused by me. Their gravamen is the urgent requirement to conduct fresh election. Although there is no mention of the intention to amend Section 7 in the impugned Order, the records do indicate that this consideration was in the thought process. I would not therefore ignore this aspect altogether. Mr. Anand had contended that notices of fresh elections could not have been dispatched in the time available, in order that the entire process could have been completed within the statutory period. But this does not answer the question why the Central Government did not take into contemplation Section 7(1)(3) which empowers it to extend the period within which the elections are to be completed. On a perusal of all the material place before me, including the confidential file, the position that emerges is that the main recommendation was for the grant of an extension in conformity with this Rule. The submission that Respondent No. 4 has been nominated for a period of two years leaves no alternative but to conclude that there has been a violation of Section 7 of the Act. There appears to have been confusion between Section 7(3) and Rule 4 (4); but even on a careful reading of the latter provision it will be evident that a nomination cannot be made in substitution of the obligations contained in Section 7 of the Act. Furthermore, this Section envisages the continuance of the elected Director and not a substitution by a nominee. The decision to nominate Respondent No. 4, assuming that there are no mala fides of the other Respondents, emanates from nothings in which a reference has been made to the litigation initiated by the Petitioner Under our Constitutional framework no citizen can be faulted or discriminated against only on the grounds of his having approached the Court of law. If litigation is frivolous or an abuse of the legal process adequate remedy to recompense is available to the Court, such as dismissal of the lis with costs. This approach has in fact been adopted so far as the Petitioner is concerned. However, even if a majority of litigation turns out to be frivolous or misconceived it cannot taint each and every case filed. There can be no justification for replacing the Petitioner by another person predicated on such considerations. There is a difference between the removal of a person because of his litigious propensity and a preference for another who has not demonstrated such an inclination. If the Petitioner and Respondent No. 4 were to be independently considered for nomination, and assuming this power to be available to the Authority concerned, the non-preference of the Petitioner may be justifiable. However, what has transpired in this case is that the Petitioner has been removed from the Board although Section 7 of the Act envisages and/or facilitate or enable his continuance till the fresh incumbent emerges. The fact that an amendment to the Section was on the anvil is also no ground for non-adherence to the existing provisions of the Statute.

18. In CCP 406 of 2003 I had ordered that the decisions of the Board Meeting held on 28.7.2003 shall be treated as null and void. The annals leading up to this order need not be recounted. It has been contended that Respondent No. 4 had to all intents and purposes assumed the mantle of the interim order dated July 18, 2003. The explanation put forward is plausible one and I find no reason to reject it.

19. In this analysis the impugned Order dated June 11, 2003 is quashed as it is in violation to the provisions of Section 7 of the Act. The Petitioner should have been retained till a fresh election was concluded within the extension allowed by the Central Government. It also does not manifest a proper exercise of the discretion vested with the Central Government, assuming that an occasion had arisen for the Central Government to nominate a Member on the Board vice the Petitioner. The question of the legality of the decisions taken in the Board Meeting held on 28.7.2003 does not call for a decision in this petition.

20. The petition is disposed of in the above terMs. The parties shall bear their respective costs.