Full Judgment Text
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PETITIONER:
JAI JAI RAM AND OTHERS
Vs.
RESPONDENT:
THE U.P. STATE ROAD TRANSPORTCORPORATION, LUCKNOW AND OTHERS
DATE OF JUDGMENT: 09/07/1996
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
AGRAWAL, S.C. (J)
CITATION:
1996 SCC (4) 727 JT 1996 (6) 463
1996 SCALE (5)131
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI, J.
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
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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
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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
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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
Krishna Kumar Vs. Divisional Assistant Electrical Engineer
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
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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.