Full Judgment Text
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PETITIONER:
THE MANAGEMENT OF D.T.U.
Vs.
RESPONDENT:
SHRI B. B. L. HAJELAY & ANR.
DATE OF JUDGMENT06/09/1972
BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
SHELAT, J.M.
DWIVEDI, S.N.
CITATION:
1972 AIR 2452 1973 SCR (2) 114
1972 SCC (2) 744
CITATOR INFO :
RF 1976 SC2301 (2)
D 1977 SC 567 (12)
RF 1977 SC 965 (14)
ACT:
Disciplinary proceedings-Delhi Municipal Corporation Act,
1957--Ss. 92, 95(1) and proviso, 491 and 504--Removal by
officer subordinate to the appointing authority-Effect of
delegation of functions by the appointing authority-
Subordination is of rank and not flinctions--Protection
cannot be destroyed by the concept of agency.
HEADNOTE:
By the Delhi Municipal Corporation Act, 1957 the Delhi Road
Transport Authority Act, 1950, was repealed and the
functions of the Authority were taken over by the
Corporation. Every employee-. of the Authority stood
transferred to and became an employee of the Corporation
from January 1958.
Under s. 92 of the Corporation Act the power of appointing
municipal officers and other municipal employees to posts
carrying a (minimum monthly salary of Rs. 350/- vest in the
General Manager (Transport). Section 95(1) dealing with
disciplinary matters provides that every officer or other
employee shall be liable to be punished by such authority as
may be prescribed by regulations. By the proviso to
subsection (1) of s. 95 no officer or employee shall be
reduced in rank, compulsorily retired, removed or dismissed
by any authority subordinate to that by which he was
appointed. Section 491 read with 504 empowers the General
Manager (Transport) to direct by order that any power con-
ferred or any duty imposed on him by or under the Act shall
be exercised and performed also by any municipal officer
specified in the order.
Respondent No. 2 was originally employed as a driver in the
Delhi Transport Authority. He became an employee of the
Corporation from January 1958. The minimum monthly salary
drawn by him was less than Rs. 350/-. After a disciplinary
enquiry the Assistant General Manager removed the respondent
from service with effect from May 16, 1963. The Labour
Court, in an application under s. 33 (2) (b) of the
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Industrial Disputes Act, did not grant approval of the
action on the ground that the General Manager alone could
have removed him from service. The High Court confirmed
this view. It was common ground that the General Manager
(Transport) had by order issued in 1961 delegated his power
to the Assistant General Manager to appoint and
consequently, to remove from service a driver like
respondent No. 2. In the appeal to this Court it was
contended by the appellant Undertaking that the respondent
was originally employed by the Manager of the Road
Transport Authority constituted under the 1950 Act and on
the repeal of that Act and the take over of the authority by
the Corporation any officer of the appellant Undertaking
competent to appoint or remove a driver was entitled to
remove him from service; that the Assistant General Manager
of the Undertaking could not be described as an authority
subordinate to the Manager of the Delhi Road Transport
Authority; and that in army event the Assistant General
Manager had become an agent of the General Manager.
Dismissing the appeal.
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HELD : (i) Respondent No. 2 at the time of his absorption in
January 1958, would be deemed to have been appointed under
s. 92(1) (b) which would mean that he was appointed by the
General Manager (Transport). Being so, appointed, no
subordinate of his including the Assistant General Manager
would be entitled to remove him in view of s. 95(1) proviso.
The only consequence of the delegation of functions of the
General Manager to the Assistant General Manager would be
that if after 1961 the Assistant General Manager makes the
appointment of a driver like respondent No. 2 he would no
doubt be entitled to remove him from service. [118D-E]
(ii)A protection which is given to an employee by statute
cannot be nullified by rules and regulations authorised by
the statute itself. If the Corporation itself could not
have by a regulation destroyed the protection given by the
statute to respondent No. 2, it would be inappropriate to
say that General Manager by an order delegating his
functions to the Assistant General Manager under s. 491 read
with 594 the Corporation Act could destroy the protection.
The true position in law is that while sections 491 and 504
read together authorised the General Manager (Transport) to
delegate his powers-and functions to a subordinate they did
not authorise delegation of his rank. What is involved in
matters of appointment and removal is the status and rank of
the employee and the status and rank of the authority taking
action. When the proviso to sub-section (1) of s. 95 says
that an officer and an employee shall not be dismissed by
any authority subordinate to that by which he was appointed
the subordination is of tank and not functions. [120D-H]
R.T. Rangachari v. Secretary of State, 64 Indian Appeals,
40, referred to.
Itis implicit in the statutory prohibition debarring
removal by a,lesser authority, that the appointing authority
has to personally apply its mind to the question of removal
and cannot delegate such a function. The protection
provided cannot be destroyed by importing concepts of
agency. [121C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1518 of
1971.
Appeal by special leave from the judgment and order dated
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the 21st January 1971 of the Delhi High Court in Civil Writ
Petition No. 719 of 1969.
M. C. Chagla, and S. K. Dholakia, for the appellant.
R. K. P. Shankardass D. N. Vohra, H. K. Puri and S. K.
Dhingra, for respondent No. 2.
The Judgment of the Court was delivered by
PALEKAR, J. This is an appeal from the judgment and Order
dated January 21, 1971 of the Delhi High Court in Civil Writ
Petition No. 719/1969.
Respondent no. 2 Ved Prakash was originally employed as a
Driver in the Delhi Road Transport Authority which had been
constituted under the Delhi Road Transport Authority Act,
1950.
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The Delhi Municipal Corporation Act, 1957 came into force in
January, 1958By section 516(1)(a) of the Corporation Act,
the Delhi RoadTransport Authority Act, 1_50, stood repealed
and in virtue ofseveral other sections of the
Corporation Act the functions of the Delhi Road Transport
Authority were taken over by the Corporation. Under section
511 every officer and employee of the Transport Authority
stood transferred to and become an officer and employee of
the Corporation. Thus respondent no. 2 became an employee
of the , Corporation from January, 1958.
A disciplinary enquiry was started against respondent no. 2
by the Assistant General Manager (Transport) in 1962 and the
Assistant General Manager decided to remove respondent no. 2
from service with effect from 16-5-1963. At that time an
Industrial dispute was pending before respondent no. 1, the
Presiding Officer of the Labour Court, and hence an
application was made under section 3 3 (2) (b) of the
Industrial Disputes Act for approval of the proposed action
of removal of respondent no. 2 from ,service. Respondent
no. 1 did not approve of the action on the ground that the
Order for removal was made by the Assistant General Manager
and not the General Manager who alone could have removed him
from service. That order was challenged in the High Court
which, however, agreed with the view taken by respondent no.
1. Hence the present appeal.
The short point with which we are concerned is whether the
Assistant General Manager of the, Delhi Transport
Undertaking of the Municipal Corporation of Delhi was a
competent authority to remove respondent no. 2 from service.
There is no dispute that under section 511(1) of the Corpo-
ration Act, respondent no. 2 became an employee of the
Corporation from January, 1958. (By reason of section 516(2)
(a) his appointment continued in force and was deemed to
have been made under the provisions of the Corporation Act).
Section 92 which comes under Chapter VI of the Corporation
Act dealing with Municipal officers and other Municipal
employees, so far as is relevant, is as follows :
"92(1) Subject to the provisions of section 89
the power of appointing municipal officers and
other municipal employees, whether temporary
or permanent,.
(b)to posts carrying a minimum monthly
salary (exclusive of allowances) of less than
three hundred and fifty rupees. shall vest
in.......... the General Manager (Transport)."
117
The minimum monthly salary of respondent no. 2 was less than
Rs. 350/- and hence the, appropriate authority under the
Corporation Act to appoint respondent no. 2 would be the
General Manager (Transport).
Section 95 deals with disciplinary actions against municipal
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officers and employees. Sub-section 6 provides "every
municipal officer or other municipal employee shall be
liable to have his increments or promotion withheld or to be
censured, reduced in rank, compulsorily retired, removed or
dismissed for any breach of any departmental regulations or
of discipline or for carelessness, unfitness, neglect of
duty or other misconduct by such authority as may be
prescribed by regulations." The first proviso to the above
sub-section reads "Provided that no such officer or other
employee as aforesaid shall be reduced in rank, compulsorily
retired, removed or dismissed by any authority subordinate
to that by which he was appointed."
In view of the proviso referred to above it was contended on
behalf of respondent no. 2 that he cannot be removed by any
authority subordinate to the General Manager (Transport) and
since the Assistant General Manager was a subordinate of the
General Manager, the- Order of removal was unauthorised and
illegal. That contention has been upheld by the High Court.
Two more provisions of the Corporation Act have to be
noticed at this stage. They are sections 491 and 504 in
Chapter XXV entitled "Miscellaneous". Section 491 is as
follows
"The Commissioner may by order direct that any
power conferred or any duty imposed on him by
or under this Act shall, in such circumstances
and under such conditions, if any, as may be
specified in the order, be exercised and
performed also by any municipal officer or
other municipal employee specified in the
order."
Section 504 so far as is relevant is as
follows
"Save as expressly provided in this Act and
unless the context otherwise requires,-
Any reference in this Act to the
Commissioner............. shall be construed.
(ii) in relation to any matter pertaining to
the Delhi
Transport Undertaking, as a reference to the
General Manager (Transport).......... "
Reading these two provisions together one sees that the
General Manager (Transport) is entitled by order to direct
that any power conferred or any duty imposed on him by or
under the Act shall be exercised and performed also by any
municipal
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officer or other municipal employee specified in the order.
It is common ground that the General Manager (Transport) has
by an order issued in 1961 delegated his power to the
Assistant General Manager to appoint and, consequently, to
remove from service a driver like respondent no. 2.
Mr. Chagla, appearing on behalf of the, appellant
Undertaking, contended that respondent no. 2 had been
actually appointed by the Manager of the Delhi Road
Transport Authority constituted under the Delhi Road
Transport Authority Act, 1950 and on the repeal of that Act
and the take over of the Authority by the Corporation, any
officer of the appellant Undertaking, competent to appoint
or remove a driver, was entitled to remove him from service.
The Assistant General Manager of the Undertaking could not
be described as subordinate to the Manager of the Delhi Road
Transport Authority because factually he was not. There-
fore, he contended, the provision ’that he shall not be
removed by the authority subordinate to that by which he was
appointed’ found in section 95 of the Corporation Act was
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inapplicable. In our opinion, the contention is not well
founded. The proviso to section 95 sub-section (1) gives
protection to every officer and employee of the Undertaking
that he may not be removed or dismissed from service by an
authority subordinate to that by which he was appointed. It
may be that in 1961 the functions of the General Manager
(Transport) had been delegated to the Assistant General
Manager. The only consequence is that if after 1961 the
Assistant General Manager makes the appointment of a driver
like respondent no. 2, he would no doubt be entitled to
remove him from service. But so far as respondent no. 2 is
concerned his individual position will have to be determined
with reference to the time when he was absorbed in
Corporation Service. That was in January, 1958. Section
516 while repealing the Delhi Road Transport Authority Act,
1950 by clause (a) of sub-section (1) protects the
appointments made under that Act. Sub-section 2(a) provides
"Notwithstanding the provisions of sub-section (1) of this
section (a) any appointment............ made and in
force immediately before the establishment of the
Corporation, shall, in so far as it is not inconsistent with
the provisions of this Act, continue in force and bedeemed
to have been made under the provisions ofthis Act,
unless and until it is superseded by any appointment made
under the said provisions."Since under section 92 (1) (b)
already referred to the power of appointing municipal
employees to posts carrying a minimum monthly salary of Rs.
350/- vested in the General Manager (Transport), Respondent
no. 2, at the time of his absorption in January, 1958 would
be deemed to have been appointed under
119
section 92 (1) (b) which would mean that he was appointed by
the General Manager (Transport). Being so appointed, no
subordinate of his including the Assistant General Manager
(Transport) would be entitled to remove him from service in
view of section 95(1) proviso.
Section 95(1) dealing with disciplinary action against muni-
cipal officers and employees specifically provides that
every officer or other municipal employee shall be liable to
be punished in the several ways referred to in that section
by such authority as may be prescribed by regulations. The
definition of the word ’ regulation’ given in clause 48 of
section (2) is as follows : "Regulation" means regulation
made by the Corporation under this, Act by notification in
the official gazette. In other words, the power of making
regulations is vested in the Corporation and it is open to
the Corporation to prescribe by regulation who would be the
authority to punish any municipal officer or employee for
his delinquency. Such a regulation may provide that an
employee of the status of respondent no. 2 can be removed,
for example, by the Assistant General Manager. And yet by
virtue of the proviso to that sub-section respondent no. 2
would be protected against any such action of the Assistant
General Manager because his appointing authority was the
General Manager and the Assistant General Manager was his
subordinate. A similar situation had arisen in R. T.
Rangachari v. Secretary of State(1). The appellant
Rangachari had been appointed by the Inspector General of
Police but his dismissal was ordered in 1928 by an official
lower in rank than the Inspector General. Rangachari
claimed protection under section 96(b) of the Government of
India Act, 1919 which so far as we are concerned was as
follows
"Sub-section (1) Subject to the provisions of
this Act and the rules made thereunder every
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person in the Civil Service of the Crown in
India holds office during his Majesty’s
pleasure and may be employed in any manner
required by a proper authority within the
scope of his duty but no person in that
service may be dismissed by any authority
subordinate to that by which he was
appointed."
Since rules had been framed by which the power of dismissal
had been delegated by the Inspector General of Police to a
subordinate authority it was contended, though with certain
amount of hesitation, that the dismissal of Rangachari was
proper. Lord Roche delivering the judgment in the case
observed "The courts below held that the power of dismissal
was in fact delegated and
(1) 64 Indian Appeals, 40.
120
was lawfully delegated to the person who purported to
exercise it. Counsel for the respondent candidly expressed a
doubt as to the possibility of maintaining this view and
indeed it is manifest that if power to delegate this power
could be taken under the rules, it would wipeout a proviso
and destroy a protection contained not in the rules but in
the section itself. Their Lordships are clearly of opinion
that the dismissal purporting to be thus ordered in February
was by reason of its origin bad and inoperative. It is
manifest that the stipulation or proviso as to dismissal is
itself of statutory force and stands on a footing quite
other than any matters of rule which are of infinite variety
and can be changed from time to time. It is plainly
necessary that this statutory safeguard should be observed
with the utmost care and that a deprivation of pension based
upon a dismissal purporting to be made by an official who is
prohibited by- statute from making it rests upon an illegal
and improper foundation."
It is, therefore, clear that a protection which is given to
an employee by the statute cannot be nullified by rules and
regulations authorised by the statute itself. In other
words, any regulation made by the Corporation which would
have authorised the Assistant General Manager to remove
respondent no. 2 from service would have been inoperative
qua respondent no. 2, as his appointing authority was the
General Manager (Transport). The question now is whether,
if the Corporation itself by any regulation could not have
destroyed the above protection given by the statute to
respondent no. 2, it would be appropriate to say that the
General Manager by an order delegating his functions to the
Assistant General Manager under sections 491 r/w 504 of the
Corporation Act could destroy the protection. Since the
General Manager (Transport) is an officer of the Corporation
and subordinate to the Corporation, it will amount to saying
that what the Corporation could not do by a regulation could
be done by an officer of the Corporation by merely
delegating his functions to the Assistant General Manager.
The position would look ridiculous. The true position in’
law is that while sections 491 & 504 read together
authorised the General Manager (Transport,) to delegate his
powers and functions to a subordinate, they did not
authorise delegation of his rank. , What is involved in
matters of appointment and removal is the status and rank of
the employee and the status and rank of the authority taking
action. When the proviso to subsection (1) of section 95
says that an officer and an employee shall not be dismissed
by an authority subordinate to that by which he was
appointed the subordination is of rank and not of functions.
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The proviso places an embargo on any subordinate of the
appointing authority from removing or dismissing an employee
from service and, therefore, the High
121
Court was right in holding in the present case that the
removal of respondent no. 2 by the Assistant General Manager
(Transport) was illegal.
Mr. Chagla then contended that by reason of the delegation,
the Assistant General Manager had become an agent of the
General Manager and the act of the Assistant General Manager
must be deemed to be the act of the General Manager himself.
We are not concerned here with the law of a agency. It is
implicit in the statutory prohibition debarring removal by a
lesser authority, that the appointing authority has to
personally apply its mind to the question of removal and
cannot delegate such a function. Since the authority which
can ’remove an-employee is the appointing authority or its
superior in office, the protection thus provided cannot be
destroyed by importing concepts of agency.
In the result the appeal fails and is dismissed with costs.
K.B.N. Appeal
dismissed.
122