Jai Jai
Ram & Ors Vs. The U.P. State Road Transport Corporation, Lucknow & Ors
[1996] INSC 780 (9 July
1996)
Nanavati
G.T. (J) Nanavati G.T. (J) Agrawal, S.C.
(J) Nanavati, J.
CITATION:
1996 SCC (4) 727 JT 1996 (6) 463 1996 SCALE (5)131
ACT:
HEAD NOTE:
This
appeal by special leave is directed against the judgment and order passed by
the Allahabad High Court in Writ Petition No. 150 of 1980 and Writ Petition
Nos. 168, 169, 175, 177, 178, 179, 716, 720, 724, 761, 762, 764, 765, 880, 885
and 892 of 1980.
The
question that arises for consideration in this appeal is whether disciplinary
action could have been taken against the appellants, who are/were Government
servants and who have/had been sent to the U.P. State Road Transport
Corporation on deputation, by those Government officers who have/had been sent
to the Corporation on deputation along with the appellants.There is no dispute
on the point that some of the appellants were appointed by those officers.
Other
officers whose actions have been challenged are/were superior in rank or of the
same rank but not subordinate in rank or grade to the appointing officers of
the remaining appellants.
Before
June 1, 1972, the U.P. Government was running a
passenger transport service known as the U.P. Government roadways in various
parts of the State. The said department undertaking was then headed by
Transport Commissioner. By notification dated 10th May, 1954, issued by the State Government under Article 309 of the
Constitution, the Transport Commissioner, the Deputy Transport Commissioner,
General Managers and the Assistant Regional Managers were notified as
appointing authorities in respect of those categories of posts which were
mentioned in the said notification. The Assistant Regional Managers were
designated as appointing authorities, inter alia, for the costs of conductors
and drivers. The appellants are or were holding such posts. Assistant Regional
Mangers were subsequently redesignated as Assistant General managers and w.e.f.
June 1, 1972, as Assistant Zonal Managers. The
Corporation was established w.e.f. June 1, 1972 by notification dated May 31,
1972 and all the officers and employees connected with the work of roadways
were deemed to be on deputation with the Corporation w.e.f June l, 1972.
In
course of time the Corporation appointed its own officers and employees but all
those Government officers and other employees who were sent on deputation
continued to remain on deputation and were not absorbed in the service of the
Corporation Disciplinary actions were taken against some of the employees and
they were challenged on several grounds.
In
this appeal we are concerned with those employees who had continued as
Government employees till their services came to be terminated or those against
whom disciplinary actions have been initiated or were taken by those officers
working in the Corporation who were sent on deputation and who also continued
to be on deputation till impugned actions were taken by them. Some of the
employees had filed applications before the tribunal challenging the
disciplinary actions taken against them. Those applications were allowed by the
tribunal on the ground that as the applicants had continued to be on deputation
with the Corporation the State continued to be their employer and, therefore,
the Corporation was not competent to take disciplinary action against them.
Aggrieved
by the orders passed on those applications, the Corporation had filed the above
writ petitions except writ petition No. 150 of 1980 in the Allahabad High
Court. Writ petition No. 150 of 1980 was filed by those deputationists/employees
who have been suspended pending disciplinary actions against them. In that
petition they have challenged their suspension. All those actions and orders
were challenged on the ground that the Corporation and its officers including
those officers who ware/have been sent on deputation had no power to pass such
orders as the petitioners being Government servants only the officers serving
under Government could have passed such orders. All these petitions were heard
together by the Allahabad High Court. In view of the conflicting opinions
expressed by different Benches of the High Court these petitions were heard by
a full Bench. The Full Bench, by majority (Hari Swaroop and T.S. Mishra, JJ.),
held that the disciplinary actions taken by those Deputy General Managers,
Regional and Assistant Regional Managers of the Corporation who are/were
Government servants and who have/had been sent to the Corporation on deputation
had either appointed the delinquent employees or were superior in rank or of
the same rank or grade and were not subordinate in rank to the appointing
officers and therefore competent to take the impugned disciplinary actions.
K.N. Goyal, J. in his concurring judgment held that all officers of the
Corporation who were not subordinate in rank to the appointing officers were
competent to take the impugned disciplinary action. The full Bench thus decided
the point in favour of the Corporation and against the employees and allowed
the writ petitions filed against the orders passed by the Tribunal. As the
tribunal had not decided all the questions raised before it the full Bench
directed the tribunal to decide those cases on other points in accordance with
law. So far as Writ Petition No.150 of 1980 is concerned the full Bench has
directed it to be listed before a Division Bench for disposal.
The
view taken by the High Court is challenged on the ground that the disciplinary
actions which have either been initiated or taken are by those authorities
which were acting as officers of the Corporation and not as officers of the
Government and as the appellants continued to be the Government servants no
action could have been taken by those authorities. In support of his contention
the learned counsel for the appellants drew our attention to the notifications
under which the Corporation was established and the services of the appellants
were lent to the Corporation. He also drew our attention to the Uttar Pradesh
Fundamental Rules. It is, however, not necessary to discuss those notifications
or the rules as it is not disputed now before us that the appellants even after
their services were lent to the Corporation continued to be the Government
servants. We may, however, refer to Rule 9(7-B) which defines Government
servant for the purposes of those rules to mean a person appointed to a civil
post or a civil service under the State Government in India, and serving in
connection with the affairs of the Uttar Pradesh, whose conditions of service
have been or may be prescribed by the Governor under Section 241 (2)(b) of the
Act, as it has some bearing on one of the submissions made by the learned
counsel for the appellants. It is also not in dispute that as the appellants
were Government servants even while serving under the Corporation they were
entitled to the protection of Article 311 of the Constitution. Like the
appellants the officers, whose actions/orders have been challenged, have/had
also continued as Government servants even though they have/had been on
deputation with the Corporation. Realizing the difficulty in describing them as
officers of the Corporation the learned counsel for the appellants submitted
that under Rule 9 (7-B) a person can be said to be a Government servant only if
he is serving in connection with the affairs of the Uttar Pradesh and as the
said officers, at the relevant time, were serving in the Corporation which is
an independent legal entity it cannot be said that they were serving in
connection with the affairs of the Uttar Pradesh. Thus, they were not the
Government servants when disciplinary action was taken by them against the
appellants and, therefore, the impugned actions taken or orders passed by them
must be regarded as invalid and illegal. In our opinion, there is no substance
in this contention. In the first place the definition of the term Government
servant is for the purposes of the said rules and, therefore, not relevant for
the purpose of Article 311 of the Constitution. Again, a Government servant
remains a Government servant even when he is sent on deputation to foreign
service and therefore the definition of the term Government servant will not
have the same meaning in the context of a Government servant sent on
deputation. But the learned counsel for the appellants drew our attention to
the decision of this Court in S.S. Dhanoa vs. Municipal Corporation, Delhi 1981
(3) SCC 431 wherein a Joint Commissioner in the Ministry of Agriculture whose
services were placed at the disposal of the Corporation for his appointment as
a General Manager of Super Bazar was not considered as a person employed in
connection with the affairs of the Union. In that case the Court was concerned
with the question as to whether such a person can be said to be a 'public
servant' within the meaning of clause Twelfth (b) of Section 21 of the Indian
Penal Code and was entitled to the protection of Section 197 of the Code of
Criminal Procedure, 1973. In that context it was observed by this Court that
Legally speaking, the Super Bazaars are owned and managed by the Society and
not by the Central Government and, therefore, the appellant was not employed in
connection with the affairs of the Union
within the meaning of Section 197 of the Code of Criminal Procedure, 1973. This
Court pointed out that the Joint Commissioner who was deputed to work as a
General Manager of Super Bazar did not answer any of the descriptions of a
'public servant' mentioned in Section 21 of the I.P.C. during his period of
deputation and therefore was not entitled to the protection of Section 197 of
Code of Criminal Procedure. This decision, therefore, does not support the
contention raised by the learned counsel for the appellants. As we are of the
view that the officers, who had taken the impugned disciplinary actions against
the appellants, were the Government servants at the time when the said actions
were taken, the decision in and Others (,979 (4) SCC 289) is also of no help to
the appellants.
It was
next contented that the officers who had taken action against the appellants
had no power to make appointments in Government service or on civil posts while
they were on deputation with the Corporation and, therefore, they could not
have taken any action against the appellants in view of the protection afforded
by Article 311. It was submitted that the authority contemplated by Article 311
is the authority which should have power to appoint a person on a civil post
under the Union or a State, as the case may be.
We do
not find any substance in this contention also.
Article
311 gives protection to a member of a civil service cf the Union or an all-India service or a civil service of a
State or to a person holding a civil post under the Union or a State against dismissal or removal by an
authority subordinate to that by which he was appointed. Article 311 does not
provide that a member of a civil service or a person holding a civil post
either under the Union or a State cannot be dismissed or
removed by an authority except the appointing authority. There is no
requirement that the authority which takes disciplinary action must continue to
have the power of making appointment to the civil service or on a civil post
under the Union or a State. It can be any other
authority so long as it is not subordinate in rank or grade to the authority by
which the delinquent Government servant was appointed. That is the only
requirement of Article 311 and we cannot read anything more into it. In State
of U.P. vs. Ram Naresh Lal 1970(3) SCC 173
this Court has in clear terms held that there is nothing in the Constitution
which debars a Government from conferring owers on an officer other than the
appointing authority to dismiss a Government servant provided he is not
subordinate in rank to the appointing officer or authority.
Since
the only question before the full Bench of the High Court was whether the
officers who had taken such actions were competent to do so in view of the
protection afforded by Article 311 of the Constitution and as that is the only
question which we have to decide it is not necessary to deal with the decision
of this Court in Manager, M/s. Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar
Laxman Thange (1969 (2) SCR 272) wherein it has been held that the right of
dismissal vests with the employer even though the employer might have lent
their services to the third party, as in spite of Such arrangement he continues
to be in the employment of the employer. It may be stated that was a case of
private employment. It is also not necessary to deal with the decision of this
Court in Marathwada University vs. Seshrao Balwant Rao Chavan (1989 (3) SCC
132) as we are of the opinion that the impugned disciplinary actions and the
judgment of the High Court can be sustained without reference to Section 34 of
the Road Transport Corporation Act, 1950 which empowers the State Government to
give directions to a Corporation established under the Act, inter alia, with
respect to recruitment and conditions of service of the employees of the
Corporation.
As we
do not find any substance in any of the contentions raised on behalf of the
appellants this appeal fails and is dismissed. No order as to costs.
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