JUDGMENT
N.K. Sodhi, J.
1. Petitioner was working as an Engineer in the Haryana Public Works Department and retired as Engineer-in-Chief on 28-2-1990 on attaining the age of superannuation. He was appointed Chairman of the Haryana State Pollution Control Board (hereinafter called the Board) as per notification dated 15-3-1990 and his tenure was for 3 years. The Board was superseded on 8-5-1992 and Mrs. Veena Eagleton, an IAS Officer, was appointed its Administrator. She continued till 13-1-1993 on which date a new Board was constituted for a period of 3 years with one Shri S.P. Grover as its Chairman. The term of this Board came to an end on 12-1-1996. A new Board was again constituted on 13-1-1996 for 3 years and one Shri Gurdip Singh, a retired Engineer-in-Chief, was appointed its Chairman. Shri Gurdip Singh resigned from his post on 26-6-1996. On the resignation of Shri Gurdip Singh, a casual vacancy of the Chairman arose and the same was filled up by appointing one Shri Tarsem Lal, a retired Financial Commissioner, for a period of one year with effect from 8-7-1996 by notification dated 5-7-1996. Since the term of Shri Tarsem Lal was to come to an end on 7-7-1997, the State Government by notification dated 30-6-1997 appointed the petitioner as Chairman of the Board for a period of 3 years. This appointment was made with effect from 8-7-1997. It was specified that the petitioner shall hold the post as part-time Chairman. Thereafter, another notification was issued on 12-5-1998 whereby the notification dated 30-6-1997 appointing the petitioner as the Chairman was amended and his tenure curtailed from 3 years to the period from 8-7-1997 to 12-1-1999. In other words, the tenure of the petitioner was made co-terminus with the tenure of the Board which was constituted on 13-1-1996 for a period of 3 years. The terms of appointment of the petitioner were spelt out in the memo dated 25-5-1998. In this memo, the duration of the appointment of the petitioner was once again specified for a period from 8-7-1997 to 12-1-1999 in terms of Sub-section (6) of Section 5 of the Water (Prevention and Control of Pollution) Act, 1974 (for short the Water Act). The petitioner made a representation to the Government of Haryana against the curtailment of his tenure and contended that he had not been appointed against a casual vacancy within the meaning of Sub-section (6) of Section 5 of the Water Act as his predecessor Shri Tarsem Lal had completed his term of one year whereafter he (the petitioner) had been appointed. However, before this matter could be resolved, the Board itself was superseded by the Government on 30-6-1998 in exercise of the powers conferred on it by Clause (b) of Sub-section (1) of Section 62 of the Water Act. It was then that the present writ petition was filed under Article 226 of the Constitution with a two-fold grievance; (i), that the tenure of the petitioner had been illegally curtailed from 3 years to a shorter period making it co-terminus with the tenure of the Board and, therefore, the notification dated 12-5-1998 is invalid; (ii) that the action of the State Government in superseding the Board was mala fide inas-much as the order was passed at the behest of Smt. Sushma Swaraj the then Union Minister of Information and Broadcasting and that no circumstance existed which rendered it necessary to supersede the Board in public interest. Expanding the arguments on the above two issues, it was argued by the learned counsel for the petitioner that the petitioner had not been appointed against a casual vacancy and that his tenure was for a period of 3 years as is clear from the notification dated 30-6-1997 and the same could not be curtailed as was done by the State Government. It was also contended that the action of the State Government in superseding the Board was illegal apart from being mala fide since neither the Board nor the petitioner were afforded any opportunity of hearing before the impugned order of supersession was passed, It was further contended that no irregularity in the functioning of the Board had ever been brought to the notice of the petitioner. The petitioner referred to the letter dated 19-5-1998 by which the complaint of the Haryana Chamber of Commerce and Industry that the Board was insisting on numerous small scale industrial units to obtain a ‘no objection certificate’ when those had been specifically exempted by the State Government in its industrial policy announced in the year 1996 was sent for his comments. The petitioner states that he had duly furnished a proper explanation to the State Government and had not heard any further on the subject till the order of supersession was passed. According to him, if the State Government still had any objection, the same ought to have been communicated to him or to the Board. On the other hand, the learned Advocate General appearing on behalf of the State has controverted the contentions of the petitioner and submitted that the Board had been constituted for a period of 3 years on 13-1-1996 and that on the resignation of Shri Gurdip Singh, Chairman on 26-6-1996, a casual vacancy for the remaining period i.e. from 27-6-1996 to 12-1-1999 arose. This casual vacancy was filled up by appointing Shri Tarsem Lal as Chairman for one year. He further contended that on the expiry of the term of Shri Tarsem Lal the casual vacancy was filled up by appointing the petitioner and instead of appointing him till the remaining tenure of the vacancy/ Board he was by mistake appointed for a period of 3 years and that when the mistake was discovered by the Government, the same was rectified by issuing the notification on 12-5-1998 whereby the tenure of the petitioner was curtailed making it co-terminus with the tenure of the Board. The learned Advocate General referred to the provisions of Sub-section (6) of Section 5 of the Act in support of his contention. Regarding supersession of the Board, it was submitted that no material whatsoever has been placed on record to show any mala fides on the part of respondent No. 5. He has produced the original records from the Department of Industries as well as from the Department of Environment on the basis of which he contended that Mrs. Sushma Swaraj played no role whatsoever in the decision of the State Government to supersede the Board. He has also controverted the contention of the petitioner that no irregularity on the part of the Board had ever been brought to the notice of the petitioner. He specifically referred to the circular letter issued by the Board under the Chairmanship of the petitioner to various regional offices whereby they had been asked to survey more than 4500 small scale industrial units in the State and require them to obtain the ‘no objection certificate’ under the Water Act. This circular letter, according to the learned Advocate General, was contrary not only to the Government instructions but also to the declared industrial policy as published by the State of Haryana for the year 1997. The learned Advocate General also brought to our notice that this circular also went contrary to the decision taken by the Board itself on 10-9-1996. By this order, the Board had clearly decided that except for the 17 categories of highly polluting industries identified by the Government of India and 19 polluting industries identified by the Board, no other industrial unit would be required to obtain the NOC/ Consent to establish as well as consent to operate the unit. According to the learned Advocate General, this action of the petitioner as Chairman of the Board had resulted in great resentment amongst the small scale industrial units in the State who were not only making representations time and again but also met the then Union Minister of Information and Broadcasting who was an elected Member of Parliament from the State of Haryana and filed a detailed representation which was forwarded to the State Government. It was further argued that continued defiance by the Board to abide by the industrial policy as also by the earlier decision of the Board was likely to hamper the industrial growth of the State and, therefore, the State Government was left with no option but to supersede the Board.
2. In order to appreciate the contentions advanced by the parties, we directed the Advocate General to produce the records for our perusal which he did not we have gone through the same. Since we are inclined to uphold the supersession of the Board, it is not necessary for us to deal with the first contention of the learned counsel for the petitioner, namely, that the tenure of the petitioner was for a period of 3 years and the same could not be curtailed. Whatever be the fate of that contention, the petitioner cannot be put back as Chairman once the supersession of the Board is upheld.
3. A detailed perusal of the files of the two departments of the Government leaves no room for doubt that the action of the State Government in superseding the Board was not actuated by any mala fide intentions but was governed purely by the interest of the State for promoting its industrial growth. It is wrong to suggest that the process of supersession started with a communication received from respondent No. 5 the then Union Minister of Information and Broadcasting. As a matter of fact, it was in December, 1997 that the Haryana Chamber of Commerce and Industry through its Chairman made a complaint to the Commissioner and Secretary to the Government of Haryana, Departments of Industries and Environment complaining against the non-compliance of the Government policy by the Board. The grievance made therein was that even though the Government had decided that no NOC would be required to be obtained by a small scale industrial unit except by 17 categories of highly polluting industries identified by the Government of India and 19 categories of polluting industries identified by the Board and despite an earlier decision of the Board to the same effect, the regional offices of the Board were issuing notices to various small scale industrial units to obtain consent under the Water Act and under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (for short the Air Act) although those units neither fell in the 17 types of highly polluting industries nor in the 19 types of polluting industries as identified by the Board. The Chamber requested the State Government to issue instructions to the Board to implement the Government orders and the Government industrial policy and save the small scale industrial units from harassment being caused by this whimsical action of the Board. This complaint was received by the State Government on December 11, 1997. As is clear from the record, a copy of this complaint was forwarded to the Board for its comments. The Member Secretary of the Board sent a reply on behalf of the Board on 27-3-1998 informing the State Government that they had no right to issue such administrative orders as no such orders could be issued in infringement of the Water Act and the Air Act and also the Environment Protection Act. It was, therefore, stated that the action of the Board in requiring the industrial units to obtain the NOC was in order. It is amazing to note that the petitioner, who is the Chairman of the Board, has no knowledge about either the communication received from the State Government whereby the complaint had been sent to the Board for its comments or the reply sent by the Member Secretary on behalf of the Board. Petitioner has all along been contending that prior to the receipt of the representation through Smt. Sushma Swaraj in May, 1998, the Board never received any communication from the State Government pointing out any irregularity on the part of the former when, in fact, the complaint from the Haryana Chamber of Commerce and Industry was sent for the comments of the Board which, as already observed, were sent by the Member Secretary without the knowledge of the petitioner who was the Chairman. It is a sad reflection on the working of the Board and we wonder how it was functioning. Even the tone of the reply sent by the Member Secretary smacks of defiance and instead of trying to follow the instructions issued by the State Government which are otherwise binding under the Water Act and the Air Act, the Board was trying to justify its action in asking for NOCs from small scale industrial units in clear disregard of the industrial policy of the State Government. We may mention that by asking the small scale industrial units to produce NOC/Consent Certificates before starting their industrial units in the State was bound to hamper the industrial growth and it is for this reason that the State Government had done away with the requirement of producing such certificates. Even if for the sake of argument, the reply of the Board were held to be legally valid, we fail to appreciate as to how a functionary of the Government can call the instructions of the Government itself into question. If this was allowed to be done, no Government could function.
4. It would be pertinent to mention here that in order to promote the industrial growth in the State, the Government announced its industrial policy for the year 1997 and gave an assurance therein that no NOC shall be required to be obtained by an industrial unit except, for the 17 highly polluting industries identified by the Government of India and 19 polluting industries identified by the Board. In spite of this declaration and rather in defiance thereof, the petitioner by his circular letter dated 26-12-1997 issued directions in contravention of the said policy to the regional offices of the Board requiring them to make a detailed and proper survey of polluting or law infringing activities in the State and ensure their pollution control. A list of as many as 4548 units was enclosed along with the circular letter and the regional offices were required to find out and report particulars of any other industrial units which were also defaulters in the matter. These industrial units were, however, claiming that they were neither amongst the 17 highly polluting industries identified by the Government of India nor amongst the 19 polluting industries as identified by the Board and yet the Board was harassing them to obtain NOCs under the Water Act, Air Act and the Environment Protection Act. We are clearly of the view that the Board in demanding NOCs from such large number of industrial units in the State was acting in contravention of the declared policy of the State Government in the matter of industrial growth and its action was bound to impede the same.
5. The reply furnished by the Member Secretary of the Board to the State Government was still under consideration when the representatives of the Haryana Chamber of Commerce and Industry met Smt. Sushma Swaraj, respondent 5 — the then Union Minister of Information and Broadcasting during one of her visits to Ambala and submitted a detailed representation to her in regard to the various grievances which the industrial units had in the State of Haryana. One of the grievances made therein was that the Chairman of the Board had recently issued a circular letter to his field staff to procure the addresses of all the small scale industrial units in the State and to serve them with notices to apply for consent if there was any trade effluent which is drained in sewerage irrespective of its quantity. Such notices, according to the industrial units, were totally against the spirit of the policy of the State Government whereby it was decided that such action would be taken only against the already identified 36 polluting industries. It was pointed out that the decision was taken in a meeting presided over by the Chief Minister in which the Chief Secretary and the Financial Commissioner and Secretary for Industries and Environment were also present. It was also pointed out that the small scale industries were to be governed by the instructions already issued by the Ministry of Environment, Government of India and the Central Pollution Control Board to the effect that mere applications from them and the acknowledgment of the same shall be deemed to be consent which will be neither renewable nor will attract any annual fee. It was further pointed out that the decision taken was that cases registered against the small scale industrial units not engaged in any of the 36 categories of polluting industries would be withdrawn and the grievance made was that Shri R.A. Goel who was the Chairman of the Board was not complying with the decision of the State Government inasmuch as he was refusing to withdraw those cases. Smt. Sushma Swaraj addressed a DO letter dated May 6, 1998 to Shri Bansi Lal, the then Chief Minister of Haryan and forwarded the memorandum submitted by the Haryana Chamber of Commerce and Industry to him for sorting out the issues raised by the Chamber in that memorandum. On receipt of this letter along with the memorandum the Chief Minister marked the same to the Secretary, Industries and Environment Department who ordered that the comments be obtained by 19-5-1998 and the memorandum was referred to the Director of Industries. The Director of Industries then addressed a communication dated 19-5-1998 to the Chairman of the Board requiring him to furnish his comments by the following day so that the same could be placed before the Chief Minister. The relevant extract of the memorandum concerning the Board was also sent along with this communication. In his comments the petitioner stated that no small scale industry exempted by the Government of India or by the Government of Haryana had been issued any notice by the Board. He has also stated that cases once filed against the small scale industries could not be withdrawn. He also disputed whether the small scale industries could operate dehors the pollution control parameters. It was suggested that those parameters apply to all industries. The petitioner joined issue with the State Government by questioning the correctness of its policy and justified the action of the Board which according to him was the correct position in regard to the Water Act and Air Act. It was also pointed out to the Government that if any specific standards were notified by the Government of India under the Environment Protection Act such notification would govern the industrial units of the State and if no such standards had been notified the notifications issued by the Central Pollution Control Board would apply. In the end it was pointed out that the Board was not adopting any standards of its own but only the binding directives of the Government of India and the Central Pollution Control Board were being applied to all industrial units in the State.
6. In the meantime, the Director of Industries, Haryana addressed a communication dated 26-6-1998 to the Commissioner and Secretary to Government of Haryana highlighting the problems faced by the industry at the hands of the functionaries of the Board. It was pointed that the Board had become the single largest source of harassment to the existing and particularly the new upcoming industrial units and various industrial associations in the State had brought to the notice of Industries Department instances of harassment whereby a general atmosphere of disenchantment and fear amongst the small scale entrepreneurs in the State had been created. It was suggested that the Government should take some immediate remedial measurers to restore the confidence of the industry. The Director of Industries invited the attention of the Government to the new industrial policy under which it was decided that no NOC shall be required to be obtained by industrial units except the 17 types of highly polluting industries identified by the Government of India and 19 polluting industries identified by the Board. Reference was also made to the decision of the Board dated 10-9-1996 wherein the Board under the Chairmanship of the predecessor of the petitioner had ordered consistent with the Government policy that only 36 categories of polluting industries shall be required to obtain mandatory consent to establish under the Water Act and the Air Act and that no other industry shall be required to obtain a NOC/consent to establish. The grievance of the Haryana Chamber of Commerce and ‘Industry was also brought to the notice of the State Government and it was pointed out that the Board had issued a circular letter to the field staff to issue notices to all industrial units to apply for consent if any trade effluent was being discharged into a municipal sewer irrespective of the quantity of such effluent. In the end it was stated that the functioning of the Board vis-a-vis industry in the State had been highly unsatisfactory and it had eroded the confidence of the new entrepreneurs. It will not be out of place to mention that the Industries Department has been making constant endeavour to accelerate the pace of industrial development of the State by attracting additional and new investment by facilitating ground linkages and expediting the clearances required by the entrepreneurs from various departments/ agencies of the State. Periodic interaction sessions are being held with the industry at various for a at individual level, group level and association level to redress their grievances and also to remove the bottle-neck. In this process, the Industries Department has been acting as the nodal agency and providing a convenient platform to the industry to directly interact with the different departments. This department has also been monitoring the progress of the redressal of grievances through State level grievances committee. It was receiving complaints/suggestions to improve the working and it was pointed out by the Director of Industries that the number of complaints regarding the malfunctioning by the Board had increased “in the recent past. The Commissioner of Industries considered the DO letter received from the Director of Industries and taking note of the various acts and omissions of the Board including its defiant attitude in not following Government policies came to the conclusion that circumstances existed which rendered it necessary to supersede the Board in public interest by invoking the provisions of Section 62(1)(b) of the Water Act. Accordingly, a recommendation was made to the Minister concerned. The Minister for Environment then recorded his own note fully agreeing with the recommendations of the Commissioner of Industries and after the same was approved by the Chief Minister, the Board was superseded by notification dated 30-6-1998. We too, after hearing counsel for the parties and having gone through the matter in depth and after examining the record, are satisfied that the Government was left with no option but to supersede the Board in public interest. No Government would tolerate a defiant Board throwing to winds its declared industrial policy by putting impediments in the growth of industrial development in the State. It was with a view to attract small scale industries and to give impetus to them that the Government at its highest level had decided not to ask for NOCs from them except from the 36 highly polluting industries identified by the Government of India and the Board. The conduct of the Board in insisting for such NOCs from all the industries against Government policy was bound to adversely affect industrial growth in the State. This was leading to discontent in the industry and numerous complaints against the Board were being received by the Government. The Government was, thus, justified in forming an opinion that circumstances existed which necessitated supersession of the Board.
7. As regards the allegations of mala fides made by the petitioner against respondent No. 5-Smt. Sushma Swaraj the then Union Minister of Information and Broadcasting they, to say the least, are wholly baseless and misconceived. It is averred that the petitioner as Chairman of the Board had initiated action against the alleged offending industries in the State and issued notices to show cause why action be not taken against them for non-compliance of environmental laws and that the representatives of the industry wanted only the 36 highly polluting industries identified by the Government of India and the Board to comply with the environmental laws and that they wanted the other industries to be exempted from such compliance in accordance with the declared policy of the State Government. Since, according to the petitioner, this was not possible the industrialists approached Smt. Sushma Swaraj who is said to have addressed a letter to the Chief Minister of Haryana on the basis of which it is alleged that the State Government took action to supersede the Board. According to the petitioner, Smt. Sushma Swaraj was instrumental in getting the Board superseded because the latter did not accede to her desire to exempt all industries other than the 36 industries identified as highly polluting industries. We have perused the original files as produced by the learned Advocate General and are of the view that Smt. Sushma Swaraj played no role whatsoever in the decision of the State Government in superseding the Board and that the allegations of mala fides made against her are wholly uncalled for. Smt. Sushma Swaraj had been elected to Parliament from the State of Haryana at the relevant time and during one of her visits to Ambala the representatives of the industry in the State met her and presented to help a memorandum regarding problems faced by the industries in the State. The memorandum submitted was a detailed one wherein the Chamber of Commerce and Industry had pointed out their grievances pertaining to various departments of the State Government including the Board. She addressed a DO letter dated 6-5-1998 to the then Chief Minister of Haryana and forwarded the memorandum submitted to her by the Haryana. Chamber of Commerce and Industry. She pointed out in her letter the problems which were being faced by the industry in the State and suggested to the Chief Minister to take a quick decision on the grievances made by the Haryana Chamber of Commerce and Industry. She did not even remotely suggest that any action be taken against the Board muchless that the same be superseded. In fact she did not even suggest as to what action was to be taken on the memorandum. All that she suggested was that the Chief Minister should discuss the issues raised by the industry in the memorandum with the concerned officers and take a quick decision thereon so that the issues which had been pending for long could be resolved and this is what any well meaning representative of the people would do. To say that because of this letter she was instrumental in getting the Board superseded is not only absurd but the suggestion itself is a figment of imagination of the petitioner which has no basis. No doubt, she suggested in her letter that only the 36 highly polluting industries identified as such be required to comply with the environmental laws and that the small scale units be exempted but there was nothing wrong in this suggestion as this was the policy of the State as declared by it in its industrial policy announced for the year 1997 according to which small scale units were not required to obtain NOCs/consents under the Water Act and the Air Act. Some other suggestions were also made by her concerning other departments but we are not concerned with them. We have, therefore, no hesitation in rejecting the plea of mala fides.
8. It will not be out of place to mention that the memorandum submitted by the Haryana Chamber of Commerce and Industry to the then Union Minister of Information and Broadcasting contained grievances in regard to the different departments of the State Government including the Board. It was strenuously urged on behalf of the petitioner that the Board had been superseded only to remove him whereas the State Government did not take any notice of the grievances made against other departments. In order to satisfy ourselves as to how far the contention of the petitioner in this regard was well based, we sent for the original records relating to other departments referred to in the memorandum which were produced by the learned Advocate General. We are satisfied on perusal of the records, that most of the other grievances made in the memorandum were referred to the concerned departments and appropriate decisions taken thereon removing the grievances wherever possible. Therefore, it is not a case where the State Government took note only of the grievances made against the Board and took action against it. The State Government, in fact, has tried to redress all the grievances of the industry made in the memorandum which goes to show that the Government acted bona fide.
9. It was then contended by the learned counsel for the petitioner that the impugned order of supersession was illegal as the Board was not afforded any opportunity of hearing before the same was passed. Reliance was placed on a Division Bench judgment of the Delhi High Court in N. S. Tewana v. Union of India, C.W.P. 263 of 1992 decided on 24-3-1994 a copy of which was supplied to us during the course of arguments. As already observed, the State Government superseded the Board as according to it circumstances existed which rendered it necessary in public interest to do so. Before we deal with this contention of the learned counsel, it is necessary to refer to the provisions of Sub-section (1) of Section 62 of the Act under which the power of supersession has been exercised. This provision reads as under :–
“(1) If at any time the State Government is of opinion-
(a) that the State Board has persistently made default in the performance of the functions imposed on it by or under this Act; or
(b) that circumstances exist which render it necessary in the public interest so to do,
the State Government may, by notification in the Official Gazette, supersede the State Board for such period, not exceeding one year, as may be specified in the notification :
Provided that before issuing a notification under this sub-section for the reasons mentioned in Clause (a), the State Government shall give a reasonable opportunity to the State Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the State Board.
(2) …..”
10. A plain reading of the aforesaid provision makes it clear that the State Government can supersede a Board under Clause (a) if it persistently makes defaults in the performance of the functions imposed on it by or under the Water Act and also under Clause (b) if circumstances exist which render it necessary in public interest to do so. A proviso is then added to Sub-section (1) according to which an opportunity of hearing has to be given to the Board only if the notification superseding it is to be issued for the persistent defaults made by it in the performance of its functions imposed on it by or under the Water Act as referred to in Clause (a). The proviso does not require any such opportunity to be given when a State Board is to be superseded for reasons mentioned in Clause (b). It is true that rules of natural justice have to be read in all statutory provisions unless they are excluded specifically or by necessary implication but in the present case the legislature in its wisdom has not provided for an opportunity of hearing to the Board when it is sought to be superseded under Clause (b). In other words, by not referring to Clause (b) in the proviso, the Parliament has by necessary implication excluded the principles of natural justice when the Board is to be superseded in public interest for reasons stated in Clause (b). We, therefore, hold that where the State Government on an examination of the material available with it comes to the conclusion that circumstances exist which render it necessary in public interest to supersede the Board, it is not necessary to issue any show cause notice either to the Board or to any member thereof. A similar view has been taken by a Division Bench of this Court in G.S. Oberoi v. State of Punjab, 1999 (1) RSJ 464 : (AIR 1998 P & H 67) with which we respectfully agree. In this view of the matter, we are unable to subscribe to the view expressed by the Division Bench of the Delhi High Court in N.S. Tewana’s case (supra).
11. For the reasons recorded above, we find no merit in the writ petition and the same stands dismissed with no order as to costs.
