State of Assam & Ors Vs. Shri
Kanak Chandra Dutta [1966] INSC 198 (3 October 1966)
03/10/1966 BACHAWAT, R.S.
BACHAWAT, R.S.
DAYAL, RAGHUBAR RAO, K. SUBBA (CJ)
HIDAYATULLAH, M.
SIKRI, S.M.
CITATION: 1967 AIR 884 1967 SCR (1) 679
CITATOR INFO :
RF 1977 SC1677 (3) D 1979 SC 979 (12) R 1981
SC 53 (14) C 1984 SC 161 (27)
ACT:
Constitution of India, 1950, Art.
311(2)-Civil post-Mauzadar in Assam Valley, if holder of civil post entitled to
protection of Article.
HEADNOTE:
The respondent, who was a Mauzadar in the
Assam Valley, was dismissed from office without complying with the provisions
of Art. 311(2) of the Constitution. His writ petition to the High Court was
allowed on the ground that he held a civil post under the State of Assam and
was entitled to the protection of the Article.
In appeal by the State,
HELD : In the light of the system of
recruitment, employment and functions, a Mauzadar is a servant and the holder
of a civil post, under the State,, entitled to the protection of the Article.
A civil post means a post not connected with
the defence and outside the regular civil services. It is an office or a
position to which duties in connection with the affairs of the State are
attached. It is under the administrative control of the State but need not
necessarily carry "a definite rate of pay" and may involve only
part-time employment. A person holding the post is a person serving or employed
under the State. The existence of the relationship of master and servant
between the State and a person holding a post under it, is indicated by the
State's right to select and appoint the holder of the post, its right to
suspend and dismiss him., its right to control the manner and method of his
doing the work and the payment by it of his wages or remuneration. Such a
relationship may be established by -the presence of all or some of these
indicia in conjunction with other circumstances, and its existence is a
question of fact in each case. [682 G, H; 683 A. B, H] Under the Mauzadari
system of collecting revenue, prevailing in the Assam Valley, the revenue
charge of a Mauza and the responsibility for the whole revenue of it, in the
first instance, rest with the Mauzadar. Originally he may have been a revenue
farmer and an independent contractor but under the existing system, he is a
subordinate public servant working under the supervision and control of the
Deputy Commissioner. He is a Revenue Officer and ex-officio Assistant
Settlement Officer exercising delegated powers of Government, and the State has
the power and the right to select and appoint him and the power to suspend and
dismiss him. Though he may not be a whole-time employee and receives by way of
remuneration a commission on his collections and sometimes a salary he holds an
office on the revenue side of the administration to which specific and onerous
duties in connection with the affairs of the State are attached. [683 E-G]
Observations in Venkata Swamy v. Superintendent of Post Offices A.I.R. 1957
Orissa 112, that a part-time employee cannot be the holder of a civil post
disapproved.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 254 of 1964 .
6SupC.I./66-15 680 Appeal by special leave
from the judgment and order dated August 13, 1963 of the Assam and Nagaland
High Court in Civil Rule No. 387 of 1962.
S. V. Gupte, Solicitor-General and Naunit
Lal, for the appellant.
K. R. Chaudhuri, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J. This appeal raises the question whether a Mau- zadar in the Assam
Valley holds a civil post under the State of Assam, and is entitled to the
protection of Art. 311(2) of the Constitution. On March 4, 1939, respondent,
Kanak Chandra Dutta, was appointed Mauzadar of Mancotta Monza in the Dibrugarh
Sub-division of Lakhimpur District. His father also before his death was the
Mauzadar of Mancotta Monza for about 52 years from 1885 to 1938. Under the
orders of the Deputy Commissioner, Lakhimpur, the respondent was suspended on
August 22, 1949 and was dismissed from the office of the Mauzadar on July 4,
1962. It is common case that this dismissal from office was made without
complying with the provisions of Art. 311(2) of the Constitution. On a writ
petition filed by the respondent, the Assam High Court quashed the order of
dismissal. The High Court held that the respondent held a civil post under the
State of Assam, and was entitled to the protection of Art. 311(2) of the
Constitution. The correctness of this finding is challenged by the State of
Assam in this appeal by special leave.
Under the Mauzadari system of collecting
revenue prevailing in the Assam Valley, the revenue charge of a Monza and the
responsibility for the whole revenue of it in the first instance rest with the
Mauzadar. The Mauzadar is spoken of as a "revenue contractor", see
Baden-Powell's Land Systems of British India, Vol. 3, p. 459. A brief
description of the Mauzadari system is given at pp. 56 and 57 of the
Introduction to the Assam Land Revenue Manual, 6th Edn. The executive
instructions appearing in paragraphs 115 to 159 and 167(a) at pp. 203 to 215
and 217 to 222 give the method of selection, appointment and dismissal of a
Mauzadar, the duties and emoluments of the office and the registers to be kept
and maintained by him. The Mauzadar is generally an influential and well-to-do
resident of his Monza. lie may be appointed and dismissed by the Deputy
Commissioner subject to the Commissioner's approval and suspended by the Deputy
Commissioner on his own authority. A Mauzadar's successor is ordinarily
selected from amongst the members of his family. If a suitable heir of the
deceased Mauzadar is a minor, the post may be kept open for him for a period
not exceeding three years, an agent being appointed in the meantime to carry on
the duties of the Mauzadar. Every Mauzadar before his appointment has to
execute a written 681 agreement (kabuliyat) in the prescribed form. He is also
required to furnish security to the satisfaction of the Deputy Commissioner.
A Mauzadar is a public servant whose primary
duty is to collect land revenue and other Government dues with the collection
of which he is entrusted. He is responsible for the collection of poll-tax,
house-tax, tauzi bahir revenue, grazing fees and forest dues. He undertakes to
pay into the treasury the full amount of all installments of land revenue and
local rates included in the Jamabandi and of house-tax, poll-tax and grazing
fees within one month of the date on which they fall due for payment. In regard
to land revenue, his duties are confined to collection and he is not concerned
with its assessment, the settlement of land and the checking of maps or
assessment papers.
He is charged with the special duties of
supervising the performance of duties by Gaonburas, to receive applications for
waste lands which he is authorised to entertain and to submit them with a
report to the proper revenue authority, to submit reports of cases sent to him
by special order for local enquiry, to assist the district authorities in the
assessment of income-tax, to report, when so directed, upon the sufficiency of
the security offered by the lessees of Government or Local Board ferries,
fisheries etc., to submit weekly reports upon the condition of crops, the
prevalence of epidemics amongst men or cattle, the loss of life caused by wild
animals and the appearance of insect pests, to compile and submit to the Civil
Surgeon a monthly return of vital statistics, to check the Gaonburas' reports
of births and deaths by local inspection, to effect field mutations and field
partitions in uncontested cases, to assist Government in any work connected
with the village organi- sation system, to warn persons not to allow their
cattle to stray on or damage the roads, to report offenders and encroachments
on roadside lands and to submit weekly returns of collections. Generally, a
Mauzadar is required to act as the Deputy Commissioner's assistant in all
administrative matters within his Mouza so far as he may be called upon to do
so.
In order to deal properly with mutation and
other work, the Mauzadar has free access to the settlement papers in the hands
of mandals, and it is the duty of the mandals to attend upon him, when
required, during such investigations as are conducted by him. The Mauzadar is
required to keep and maintain a number of official registers, and minute details
of keeping the accounts and the registers are prescribed. The criminal
prosecution of a Mauzadar requires the Commissioner's sanction. In exceptional
cases, the Deputy Commissioner may impose upon him an executive fine of an
amount not exceeding Rs. 200/-.
682 The Mauzadar is permitted to address his
correspondence with Government offices "service bearing", and is
given a small annual allowance for the provision of stationery. I* is
responsible for the payment of process fee on all processes issued at his
instance. His remuneration as Mauzadar is generally by a commission on the
revenue, local rates and grazing dues collected by him, but he may also be paid
a fixed salary.
The Mauzadar may be invested with the power
of attachment and sale of movables under s. 69 of the Assam Land and Revenue
Regulation 1886 (Regulation No. I of 1886).
Mauzadars are appointed Revenue Officers
under s. 124 of the Regulation. All Mauzadars in the Assam Valley and in the
case of Mauzadars who are minors, their Sarbarahkars have been appointed
ex-officio Assistant Settlement Officers and invested with the powers to effect
registration under s. 53(A) in uncontested cases and to dispose of under Chap.
VI of the Regulation all applications for partition of revenue- paying estates
in which no objection is preferred. See footnotes to ss. 124, 133 and 137 of
the Regulation at pp.
41, 44 and 45 of the Manual.
A Mauzadar may own a tea garden and other
landed property and engage in trade or politics, but if any of his extraneous
occupations interferes seriously. with his primary duties as a Mauzadar, the
Deputy Commissioner is required to consider whether he should be retained in
his office.
The question is whether a Mauzadar is a
person holding a civil post under the State within Art.311 of the Constitution.
There is no formal definition of "post" and "civil post".
The sense in which they are used in the Services Chapter of Part XIV of the
Constitution is indicated by their context and setting. A civil post is
distinguished in Art. 310 from a post connected with defence; it is a post on
the civil as distinguished from the defence side of the administration, an
employment in a civil capacity under the Union or a State.See marginal notet of
Art.311. In Art.311,a member of a civil service of the Union or an all-India
service or a civil service of a State is mentioned separately, and a civil post
means a post not connected with defence outside the regular civil services.
A post is a service or employment. A person
holding a post under a State is a person serving or employed under the State.
See the marginal notes- to Arts. 309, 310 and 311.
The heading and the subheading of Part XIV
and Chapter I emphasise the element of service. There is a relationship of
master and servant between the State and a person holding a post under it. The
existence of this relationship is indicated by the State's right to select and
appoint the holder of the post, its right to suspend and dismiss him, its right
to control the manner and method of his doing the work and the payment by it of
his wages or remuneration. A relationship of master and servant 683 may be
established by the presence of all or some of these indicia, in conjunction
with other circumstances and it is a question of fact in each case whether
there is such a relation between the State and the alleged holder of a post.
In the context of Arts. 309, 310 and 311, a
post denotes an office. A person who holds a civil post under a State holds
"office" during the pleasure of the Governor of the State, except as
expressly provided by the Constitution. See Art.
310. A post under the State is an office or a
position to which duties in connection with the affairs of the State are
attached, an office or a position to which a person is appointed and which may
exist apart from and independently of the holder of the post. Article 310(2)
contemplates that a post may be abolished-and a person holding a post may be
required to vacate the post, and it emphasises the idea of a post existing
apart from the holder of the post. A post may be created before the appointment
or simultaneously with it.
A post is an employment, but every employment
is not a post.
A casual labourer is not the holder of a
post. A post under the State means a post under the . administrative control of
the State. The State may create or abolish the post and may regulate the
conditions of service of persons appointed to the post.
Judged in this light, a Mauzadar in the Assam
Valley is the holder of a civil post under the State. The State has the power
and the right to select and appoint a Mauzadar and the power to suspend and
dismiss him. He is a subordinate public servant working under the supervision
and control of the Deputy Commissioner. He receives by way of remuneration a
commission on his collections and sometimes a salary.
There is a relationship of master and servant
between the State and him. He holds an office on the revenue side of the
administration to which specific and onerous duties in connection with the
affairs of the State are attached, an office which falls vacant on the death or
removal of the incumbent and which is filled up by successive appointments.
He is a responsible officer exercising
delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue
Officers and ex-officio Assistant Settlement Officers. Originally, a Mauzadar
may have been a revenue farmer and an independent contractor. But having regard
to the existing system of his recruitment, employment and functions, he is a
servant and a holder of a civil post under the State.
Counsel for the State stressed the fact that
normally a Mauzadar does not draw a salary. But a post outside the regularly
constituted services need not necessarily carry "a definite rate of
pay." The post of a Mauzadar carries with it a remuneration by way of a
commission on collections of Government dues. Counsel stressed the fact that a
Mauzadar is not a whole-time employee. But a post 684 outside the regularly
constituted services may be a part- time employment. The conditions of service
of a Mauzadar enable him to engage in other activities.
In Venkata Swamy v. Superintendent of Post
Offices(l), the Orissa High Court held, on a consideration of the relevant
conditions of employment, that a temporary extra- departmental branch
post-master was not a person holding a civil post, but the observation in that
case that a part- time employee cannot be the holder of a civil post outside
the regularly constituted services is too wide and cannot be supported. In Sher
Singh v. State of Rajasthan(2), the Rajasthan High Court held that a chaudhari
appointed under the Land Revenue Act of Bikaner is not entitled to the
protection of Art. 311. The report of the case does not disclose the functions
of the chaudhari and the regulations governing his employment. In Bindu Nath v.
State of Assan(3), the Court found that the applicant was never appointed to
the post of a Mauzadar, and no question of the protection of Art. 311 could
arise in the circumstances.
The appeal is dismissed with costs.
V.P.S.
Appeal dismissed.
(1) A.I.R. 1957 Orissa, 112.
(2) I.L.R. [1956] 6 Rai. 335, 339-340.
(3) A.I.R. 1959 Assam. II S.
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