ORDER
M.Y. Eqbal, J.
1. The petitioner, who is a permanent member of Dhanbad Club (in short ‘the Club’), has challenged the authority of the Deputy Commissioner and has prayed for quashing the orders dated 27.1.2005 and 31.1.2005 issued by the Deputy Commissioner, Dhanbad whereby the petitioner has been suspended from the membership of the Club and an inquiry has been ordered against the petitioner. The petitioner has further prayed for issuance of a direction upon respondent No. 2, the Deputy Commissioner, Dhanbad not to disturb the validly elected Committee from discharging its function.
2. The petitioner is a permanent member and the Secretary of the Club, which was established in 1991 and was revived in 1999. The Club is registered under the Companies Act and under Articles of Association the Deputy Commissioner would always be the ex-officio President of the Club. The petitioner was holding the post of Honorary Secretary of the Club. Petitioner’s case is that on 25.1.2005 the Income-tax Department conducted a survey of the Club. Although the petitioner was not in Dhanbad but the Deputy Commissioner, as an ex-officio President, issued show cause notice to the petitioner and without convening any meeting of the Managing Committee of the Club, suspended the petitioner from the membership of the Club. The Deputy Commissioner also constituted a three men inquiry committee who are non-else but one of them is an unsuccessful candidates for the post of Honorary Secretary and the two others are ADM, law and order Dhanbad and the District Accounts Officer, Dhanbad. Thereafter the Deputy Commissioner hurriedly held election and declared the respondents as newly elected officer bearers and also lodged FIR against the petitioner.
3. This writ petition was filed on 7.2.2005. On 17.2.2005 the State Counsel was directed to seek instruction from the Deputy Commissioner, Dhanbad and to file counter affidavit. After filing of the writ petition on 8.2.2005 the Deputy Commissioner appointed three members” ad hoc inquiry committee and suspended the members of the Executive Committee who had not resigned. The Deputy Commissioner herridly held election and declared its result on 10.2.2005, On 17.2.2005 FIR was lodged against the petitioner alleging commission of the offence. On 8.2.2005 a notice was issued for extraordinary tender meeting on 16.2.2005 and it was only thereafter, on 28.2.2005 a counter affidavit has been filed.
4. The Deputy Commissioner, respondent No. 2, filed counter affidavit wherein the first stand taken by him is that the writ petition is not maintainable as the Club is a private limited company registered under the Companies Act, 1956. It is stated that under Clause 17(a) of the Articles of Association the ex- officio President of the Club shall always be the Deputy Commissioner, Dhanbad and in that capacity he has taken all steps. It is stated that the Managing Committee requested respondent No. 2, the Deputy Commissioner to issue show cause notice against the petitioner and, accordingly, he issued show cause notice on 29.1.2005 calling upon the petitioner as to why action should not be taken against him for his illegal act i.e. for non-filing of T.D.S. and non obtaining of PAN number from the Income-Tax Department. On receipt of the show cause notice the petitioner submitted his show cause and the same was not found satisfactory and hence he was suspended from the post of Secretary. The Deputy Commissioner, thereafter, appointed respondent Nos. 11, 12 and 13 to conduct inquiry against the petitioner. Since the irregularity was also in respect of financial matter, hence the Accounts Officers was requested to join the Committee and concludes its finding. On inquiry a huge amount of money of the Club was found to have been misappropriate by the petitioner and hence FIR was lodged against him.
5. Mr. A.K. Sinha, learned Advocate General appearing on behalf of the Deputy Commissioner-cum-Ex-Officio President of the Club raised a preliminary objection with regard to maintainability of the writ petition. He submitted that admittedly the Club, is a company registered under the Indian Companies Act and whatever action taken by the Deputy Commissioner, was in the capacity of ex-officio President of the Club and, therefore, his action cannot and shall not be subject to judicial review. In this connection learned counsel relied upon a decision of the Supreme Court in the case of Zee Tele Films Ltd. and Anr. v. Union of India and Ors., 2005 (1) Supreme Today 886.
6. There is no dispute with regard to the settled law that a writ is not maintainable against the Company registered under the Companies Act, but in the instant case, the Deputy Commissioner, Dhanbad has been impleaded as party-respondent and his action alleged to have been taken, not only in the capacity of ex-officio President of the Club, but also in the capacity of Deputy Commissioner has been challenged. I am, therefore, of the opinion that if it is found that the Deputy Commissioner has misused his official power and instead of acting only in the capacity of ex-officio President of the Club, with the limits of his power vested in him under the Articles of Association, he has exceeded his jurisdiction and in the capacity of Deputy Commissioner has done any act unfairly, then his action shall be subject to judicial review.
7. Now in order to find out whether the entire acts done by the Deputy Commissioner in the capacity of ex-officio President of the Club, or in the capacity of Deputy Commissioner exercising his official power, I would first like to refer the relevant clauses of Articles of Association. A copy of the Articles of Association has been annexed as annexure 1 to the writ petition. Clause 9 provides that during his posting at Dhanbad the Deputy Commissioner along with others shall be the ex-officio members of to the Club. Clause 12 lays down the provisions for termination of membership of the Club. Clause 12 reads as under :
“12. Termination of membership.–A member shall cease to be a member of the Club in any of the following ways :
(a) By voluntary resignation from a prospective date by a letter addressed to the Secretary.
(b) If adjudicated insolvent.
(c) If dismissed from Government Service.
(d) By being found of unsound mind.
(e) By being found of guilty by a competent Court of any immoral Act, offence involving in the opinion of Committee is gross misconduct.
(f) By expulsion by vote of majority of not less than two third of the members present at an Extraordinary General Meeting convened for the purpose under Articles 24 of which at least 150 members shall be present in person.
(g) By his or her admission being cancelled under Article 4(C).
(h) If member default in payment of Club bills after due warning in terms provided in Article 25.”
8. Clause 17 is the provision with regard to management of the Club. According to this provision management, all affairs and concerns of the Club shall be vested in the Committee which shall consist of President, Senior Vice President, Vice President, Honorary Secretary, Joint Secretary, Honarary Treasurer and 10 Directors. By virtue of Clauses 20, 21 and 22 all powers with respect to holding of election, calling annual general meeting, taking any action against the office bearers and the members of the Club, have been vested in the Committee.
9. From bare reading of the different clauses of the Articles of Association of the Club, it is manifestly clear that even for termination of membership of the Club decision has to be taken by the committee at an extraordinary general meeting by the majority vote of not less than 2/3rd of the members present in the meeting. The entire power with respect to holding of election calling annual general meeting taking any action against the office bearers and members of the Club have been vested in the Committee and not in the ex-officio President of the Club.
10. Ignoring all the norms and the procedure provided in the Article of Association and also ignoring the procedure provided in the Companies Act, the Deputy Commissioner in the capacity of the ex-officio President, Dhanbad Club, has acted in the following manner :
(i) On 27.1.2005 he as an ex-officio President-cum- Deputy Commissioner issued show cause notice against the petitioner as to why action be not initiated for doing some irregularities.
(ii) On 28.1.2005 petitioner submitted show cause but on 31.1.2005 he issued order suspending membership of the petitioner. The said order containing Memo No. 250/C reads as under :
“OFFICE OF THE DY. COMMISSIONER, DHANBA-CUM-EX-OFFICIO PRESIDENT, DHANBAD CLUB.
Memo No. 205/C Dated 31.1.2005
ORDER
In light of serious allegations reported an enquiry has been ordered. You are hereby suspended from the membership of Dhanbad Club until completion of this enquiry.
Sd/
Ex-Officio President Dhanbad Club-Cum-Deputy
Commissioner, Dhanbad.
Memo No. 250/Dhanbad dated the 31 January, 2005.
Copy forwarded to Shri Ashwani Beotra, Secretary, Dhanbad Club, Dhanbad for information and necessary action.
Copy forwarded to all concerned for information and necessary action.
Sd/-
Ex-Officio President Dhanbad Club-Cum-Deputy Commissioner, Dhanbad.
(iii) On 9.2.2005 petitioner rushed to this Court and filed writ petition after serving copy to the State counsel on 7.2.2005.
(iv) On 8.2.2005 he issued letters to all the members and appointed ad hoc Committee to run the affairs of the Club.
(v) On 10.2.2005 another letter was issued notifying the date of election of the Club on 20.3.2005.
(vi) The Deputy Commissioner also constituted three member’s committee of the Additional District Magistrate of Dhanbad and District Accounts Officer and one unsuccessful candidate for the post of Honorary Secretary, Dhanbad for holding inquiry against the petitioner and for lodging FIR.
11. Surprisingly, counter affidavit was filed on 1.3.2005 but the Deputy Commissioner did not disclose in the counter affidavit about the letter dated 10.2.2005 issued for holding of election on 20.3.2005.
12. When the matter was taken up on 14.3.2005 this Court was informed about the hastily decision taken by the Deputy Commissioner for holding election. The hearing of writ petition was however adjourned to 29.4.2005. But interim order was passed restraining the respondents from taking any coercive steps against the petitioner including holding of election. The order dated 14.3.2005 reads as under :
“Heard the parties.
It is not possible for the Court to hear this writ petition at this stage. Let the matter be listed on 29th April, 2005.
In the meantime, no coercive steps shall be taken against the petitioner including the holding of election.”
13. On 3.3.2005 counter affidavit was filed by respondent No. 3 wherein besides other facts, he has stated that he being the senior Vice President of the Club was never consulted by the ex-officio President before taking any action independently. It is further stated that he is still holding the post of senior Vice President of the Club and he has neither been suspended nor he has resigned.
14. On 2.3.2005, petitioner filed amendment petition challenging the order of the Deputy Commissioner whereby he has called for extraordinary general meeting of the Club. On 3.3.2005 respondent No. 4 and 8 filed counter affidavit stating that they are duly elected members of the Managing Committee for the tenure valid till May, 2005. However, respondent No. 2 Deputy Commissioner asked these respondents to tender their resignation. They have never been asked or consulted or taken into confidence by the Deputy Commissioner before passing order of suspension of the petitioner from the membership of the Club. Even the Committee was constituted by the Deputy Commissioner at his own instance and without any consultation with these respondents.
15. Surprisingly, on 3.3.2005 notice allegedly taken out by one Dr. A.K. Jha claiming himself to be the Honorary Secretary in view of his unopposed election and assumption of charge with effect from 13th March, 2005.
16. On 5.4.2005 the abovenamed Dr. A.K. Jha intervened in the case by filing intervention petition. He has stated that as per the notification nominations were filed for all the posts but there were no contest due to withdrawals. For the post of Vice-President, Honorary Secretary, General Secretary, Honorary Treasurer there were only one candidate in each post and due to that the Presiding Officer declared them elected uncontested in the all the posts. The intervener claims to have been declared as Honorary Secretary of the Club.
17. From the aforementioned sequence of events took place at the instance of the Deputy Commissioner as an Ex-Officio President, it is manifestly clear that the Deputy Commissioner crossed all limits of high handedness and in utter disregard of the interim order passed by this Court on 14.3.2005 he held election on 23.3.2005 and picked up her own team to run the Club by using her official position.
18. I have no doubt, therefore, in my mind in holding that the Deputy Commissioner has misused his official position. Notwithstanding the fact that she is ex-officio President of the Club, has no independent power vested in her in the Article of Association but by using her official position as Deputy Commissioner she not only dictated her whimsical action but also did not care to the interim order passed by this Court restraining her from holding any election till disposal of the writ petition.
19. It is well settled that in our democracy Government of rule of law and the judiciary have been expressly entrusted with power of judicial review of administrative action of the authorities of the State. Judicial review of administrative action is an essential part of the rule of law. The doctrine of “full faith and credit” applies to the acts done by the officers. In this connection reference may be made to a supreme Court decision in the case of State of Bihar and Ors. v. Subhash Singh, (1997) 4 SCC 430.
20. Fairness as a development of natural justice postulates that an Officer even if not acting in a judicial or quasi-judicial capacity, he must nevertheless act fairly. Sometimes the concepts appear to be equated, as when natural justice is described as ‘fair play in action.’ In O’Reilly v. Mackman, (1983) 2 AC 237 at p 275, Lord Diplock said :
“It had acted out with its powers including… failure to observe the rules of natural justice : which means no more than to act fairly towards the complainant in carrying out that body’s decision-making process, and I prefer so to put it.”
21. The rules of natural justice–or of fairness–are not cut and dried. They vary infinitely. In Lloyd v. McMahon, (1987) AC 625 at 702 Lord Bridge said :
This so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expressed the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates’.
22. Merely because of the stand taken by respondent No. 2 Deputy Commissioner-cum-Ex-Officio President that the writ is not maintainable against the club registered under the Companies Act she has no right to disregard and disobey the interim order passed by this Court specially when she is holding a responsible post of Deputy Commissioner. The action of respondent No. 2 is a serious contempt of this Court. She has no authority to misuse her official position and violate the Rule of law. The entire action of Deputy Commissioner-cum-Ex-Officio President of the Club is illegal, arbitrary unfair and malafide.
23. Mr. A.K. Sinha, learned Advocate General submitted that the Deputy Commissioner has no objection if fresh election of the office bearer of the members of the Club is held in accordance with the procedure provided in the Article of Association. The submission of the learned Advocate General at the instruction of the Deputy Commissioner will not absolve her from the mischief done by her.
24. Disobedience of High Court’s order is a serious matter. It is well settled that rightness or wrongness of the order can not be urged in a contempt proceeding. Right or wrong, the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. Even the contempt Court can not traverse beyond the order. It can not test the correctness or otherwise of the order. (2004) 7 SCC 261.
25. Mrs. Ritu Kumar learned counsel appearing for the intervenor submitted that the newly elected office bearers including her client are not agreeable for holding a fresh election. I do not find any force in the submission of the learned counsel. As a matter of fact holding of election inspite of the interim order passed by this Court was malafide and unfair.
26. In the facts and circumstances of the case, this Court is constrained to invoke its extraordinary jurisdiction under Article 226 of the Constitution of India and quash the entire action and the steps taken by respondent No. 2 suspending the petitioner from the membership, holding election and declaring newly elected office bearers and the members of the Club.
27. This writ application is, therefore, allowed and the orders passed by the Deputy Commissioner-cum-Ex-Officio President of the Club including suspension of the petitioner and also declaration of election and declaring new office bearers and the members are quashed. It is directed that the Club shall hold fresh election in accordance with the procedure provided in the Articles of Association.