Full Judgment Text
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PETITIONER:
U.P.STATE ROAD TRANSPORT CORPORATION AND ANR.
Vs.
RESPONDENT:
MOHD. ISMAIL AND ORS.
DATE OF JUDGMENT11/04/1991
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
VERMA, JAGDISH SARAN (J)
RAMASWAMI, V. (J) II
CITATION:
1991 AIR 1099 1991 SCR (2) 274
1991 SCC (3) 239 JT 1991 (2) 292
1991 SCALE (1)734
ACT:
U.P.State Road Transport Corporation Employees (other
than Officers) Service Regulations, 1981: Regulations 17(2)
and 17(3)--Drivers--Medically examined--Found unsuitable
because of ill health or poor eye-sight-Whether services to
be dispensed with or to be offered alternative jobs--
Discretion vested in the Corporation--Exercise thereof.
HEADNOTE:
The respondents were employed as drivers in the
U.P.State Road Transport Corporation. The Corporation has
framed the U.P.State Road Transport Corporation Employees
(other than Officers) Service Regulations, 1981, Regulations
17(2) inter alia requires the drivers to undergo medical
test particularly vision test every year and under
Regulation 17(3) services of those drivers who fail to pass
the fitness test are to be dispensed with, with the proviso
that such drivers may, in the discretion of the Corporation,
be offered alternative jobs. Pursuant to these Regulations,
the Managing Director of the Corporation issued two
circulars dated December 19, 1986 and March 12, 1987
directing the Regional Managers to terminate the Services of
the drivers who are medically found unfit to drive the
vehicles with the further direction that such drivers should
be paid benefits like retrenchment compensation under
Section 6(N) of the U.P.Industrial Disputes Act.
The respondents were subjected to medical examination
and it was found that their eye-sights were defective.
Consequently, the Corporation discharged the respondents
with immediate effect by paying them one month salary in
lieu of notice and also retrenchment compensation under the
U.P. Industrial Disputes Act. The respondents challenged
their retrenchment by means of writ petitions before the
High Court. The High Court allowed the writ petitions
directing the Corporation to offer alternative jobs to the
respondents. Being aggrieved, the Corporation has preferred
these appeals to this Court.
Allowing the appeals, the Court,
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HELD: 1. Regulation 17(2) requires that the drivers
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have to undergo medical test particularly vision test every
year, or at such intervals as may be prescribed by the
General Manager of the Corporation. Regulation 17(3) has two
branches. The first branch provides power to the Corporation
to remove the driver from the service who fails to pass the
medical test. The second branch of Regulation 17(3) though
styled as proviso is an independent and substantive
provision providing discretion to the Corporation to offer
an alternative job to the retrenched driver. [278B-D]
2. The discretion conferred by Regulation 17(3) confers
no vested right on the retrenched workmen to get an
alternative job in the Corporation. Like all other statutory
discretion in the administrative law, Regulation 17(3)
creates no legal right in favour of a person in respect of
whom the discretion is required to be exercised other than a
right to have his case honestly considered for an
alternative job by the Corporation. [279B]
3. The High Court was in error in directing the
Corporation to offer alternative jobs to the respondents
because the Court cannot direct the statutory authority to
exercise the discretion in a particular manner not expressly
required by law and that it could only command the statutory
authority by a writ of mandamus to perform its duty by
exercising the discretion according to law. The Court cannot
command the Corporation to exercise discretion in a
particular manner and in favour of a particular person. That
would be beyond the jurisdiction of the Court. [279E]
In the instant case, the Corporation has denied itself
the discretion to offer an alternative job which the
regulation requires it to exercise in individual cases of
retrenchment. Although it is open to an authority to which
discretion has been entrusted to lay down the norms or rules
to regulate exercise of discretion, it cannot however deny
itself the discretion which the statute requires it to
exercise in individual cases. The concerned authority of the
Corporation therefore are required to consider the cases of
retrenched drivers for alternative jobs.[279F-G;280A]
4.1 There are two aspects to be borne in mind in
exercising the discretion. Firstly, there are constraints
with which the Corporation has to exercise its discretion
and perform its task. The Corporation is a public utility
organisation where mediating motion is efficiency and
effectiveness of public service. Efficiency and
effectiveness of public
276
service are the basic concepts which cannot be sacrificed in
public administration by any statutory corporation. The
Corporation has to render this public service within the
resource use and allocation.[280D]
4.2 The second aspect relates to the manner in which
the statutory discretion is to be exercised. Every
discretion conferred by statute on a holder of public office
must be exercised in furtherance of accomplishment of
purpose of the power. [280E-G]
Sharp v. Wakefield, [1891] AC 173 at 179, referred to.
5. The Corporation therefore cannot act mechanically.
The discretion should not be exercised according to him,
caprice and ritual. The discretion should be exercised
reasonably and rationally. It should be exercised faithfully
and impartially. There should be proper value judgment with
fairness and equity. [280H]
Therefore, it would not be improper if the discretion
is exercised with greater concern for and sympathetic
outlook to the disabled drivers subject of course to the
paramount consideration of good and efficient
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administration. [281A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1756-59
of 1991.
From the Judgment and Order dated 17.1.1990 of the
Allahabad High Court in C.M.W.P. Nos.10962,10901, 10902 and
10903 of 1987.
Raju Rama Chandran for the Appellants.
Prem Malhotra for the Respondents.
The Judgment of the Court was delivered by
K.JAGANNATHA SHETTY,J. We grant Special Leave and
proceed to dispose of these appeals.
These appeals preferred against the decision of the
Allahabad High Court raise common questions as to the scope
of Regulations 17(2) and 17(3) of the U.P. State Road
Transport Corporation Employees (Other than officers)
Service Regulations, 1981 (‘the Regulations’).
277
The respondents were appointed as drivers in the
erstwhile U.P. Government Roadways. Upon the formation of
the U.P.State Road Transport Corporation (‘Corporation’)
they were absorbed in the services of the Corporation. The
Corporation has framed the Regulations inter alia
prescribing medical test to drivers every year for the
purpose of assessing their suitability for the job. Pursuant
to these Regulations, the Managing Director of the
Corporation issued a circular dated December 19,1986 stating
that all drivers should be medically examined and those
found unsuitable either because of ill health or poor eye-
sight, be not given duty and their services be dispensed
with. This was followed by another circular dated March 12,
1987 by which the Managing Director directed the Regional
Managers to terminate the services of the drivers who are
medically found unfit to drive the vehicles. It was also
directed in the circular that such employees whose services
are dispensed with should be paid benefits like retrenchment
compensation under Section 6(N) of the U.P. Industrial Act.
In the beginning of 1987, all the respondents were
subjected to medical examination and it was found that their
eye-sights were defective. In view of the medical report,
the Corporation discharged them with immediate effect by
paying them one month salary in lieu of notice and also
retrenchment compensation under the Industrial Disputes Act.
The respondents challenged their retrenchment by means
of writ petitions before the Allahabad High Court. The High
Court has allowed the writ petitions directing the
Corporation to offer alternative jobs to the respondents.
The Corporation being aggrieved by the decision of the
High Court has appealed to this Court.
Regulations 17(2) and 17(3) read as follows:
"17(2) A person, appointed to the post of driver,
will be required to undergo medical test,
particularly vision test, every year or at such
intervals as may be prescribed by the General
Manager from time to time.
17(3) The service of a person who fails to pass
the fitness test, referred to in the sub-
regulation (2), may be dispensed with:
278
Provided that the persons, whose services are so
dispensed with may, in the discretion of the
Corporation, be offered alternative job."
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Regulation 17(2) requires that the drivers have to
undergo medical test particularly vision test every year, or
at such intervals as may be prescribed by the General
Manager of the Corporation. Regulation 17(3) has two
branches. The first branch provides power to the Corporation
to remove the driver from the service who fails to pass the
medical test. The second branch of Regulation 17(3) though
styled as proviso also appears to be an independent branch.
It is not proviso. The proviso ordinarily carves out an
exception from the general rule enacted in the main
provision. However, sometimes the insertion of a proviso by
the draftsman is not strictly adhered to its legitimate use
and it may be in substance a substantive provision adding to
and not merely excepting something out of or qualifying what
goes before it. The proviso with which we are concerned in
Regulation 17(3) does not carve out an exception from the
general rule contained in the first branch. It is an
independent and substantive provision providing discretion
to the Corporation to offer an alternative job to the
retrenched driver. This offer is to be made after the
exercise of power under the first branch of Regulation
17(3). There is therefore, no doubt that the second branch
of Regulation 17(3) is a substantive provision and not in
the nature of a proviso to first branch thereof.
The first branch of Regulation 17(3) appears to be in
the public interest. The driver who is found medically unfit
to drive the vehicle on the public road certainly cannot be
permitted to continue as a driver. His driving licence is
liable to be revoked. His continuance as driver would,
perhaps be perilous to the interests of passengers and
pedestrians. The Corporation therefore, has been empowered
to remove him from service as driver. At the same time, the
second branch to Regulation 17(3) shows concern for the
person who has been removed from service for want of medical
fitness. It confers discretion on the Corporation to offer
him an alternative job.
What does this mean in practical terms? Does it mean
that the retrenched driver has a statutory right to get an
alternative job? Is it obligatory for the Corporation to
offer an alternative job to the driver who is certified to
be medically unfit for the driver’s job? The High Court has
expressed the view that the Corporation before terminating
the service of a driver who fails to satisfy the medical
test, is obliged to offer him an alternative job and that
offer shall be in writing. In other
279
words, the High Court seems to be of the opinion that the
proviso to Regulation 17(3) imposes an obligation on the
Corporation to offer an alternative job to all those who are
found medically unfit to carry on their duties in the
existing jobs.
The view taken by the High Court appears to be
fallacious. The discretion conferred by Regulation 17(3)
confers no vested right on the retrenched workmen to get an
alternative job in the Corporation. Like all other statutory
discretion in the administrative law, Regulation 17(3)
creates no legal right in favour of a person in respect of
whom the discretion is required to be exercised other than a
right to have his case honestly considered for an
alternative job by the Corporation.
The High Court was equally in error in directing the
Corporation to offer alternative job to drivers who are
found to be medically unfit before dispensing with their
services. The Court cannot dictate the decision of the
statutory authority that ought to be made in the exercise of
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discretion in a given case. The Court cannot direct the
statutory authority to exercise the discretion in a
particular manner not expressly required by law. The Court
could only command the statutory authority by a writ of
mandamus to perform its duty by exercising the discretion
according to law. Whether alternative job is to be offered
or not is a matter left to the discretion of the competent
authority of the Corporation and the Corporation has to
exercise the discretion in individual cases. The Court
cannot command the Corporation to exercise discretion in a
particular manner and in favour of a particular person. That
would be beyond the jurisdiction of the Court.
In the instant case, the Corporation has denied itself
the discretion to offer an alternative job which the
regulation requires it to exercise in individual cases of
retrenchment. As earlier stated, the Managing Director has
issued two circulars: (i) dated December 19, 1986 and (ii)
dated March 12 1987 directing the Regional Managers to
dispense with the services of the drivers who are found to
be medically unfit to drive the vehicles. It is directed in
the circulars that such drivers should be paid benefits like
retrenchment compensation which they are entitled to under
the U.P.Industrial Disputes Act. The circulars thus leave no
scope for exercising discretion to consider the individual
cases of retrenched drivers for any alternative job. It may
be stated that the statutory discretion cannot be fettered
by self-created rules or policy. Although it is open to an
authority to which discretion has been entrusted to lay down
the norms or rules to regulate exercise
280
of discretion it cannot, however, deny itself the discretion
which the statute requires it to exercise in individual
cases. The concerned authority of the Corporation therefore,
notwithstanding the said circulars are required to consider
the cases of retrenched drivers for alternative jobs.
Counsel for the respondents argued that the object of
Regulation 17(3) was to rehabilitate the drivers who are
found to be medically unfit to drive vehicles and it is
therefore, obligatory for the authority or Officer of the
Corporation to exercise discretion in favour of such drivers
by offering them alternative jobs. But counsel for the
Corporation considers that it is an absolute discretion of
the Corporation to offer or not to offer an alternative job
to such drivers and there is no compulsion in the matter.
These are, in our opinion, extreme contentions which
are not sustainable under law. There are two aspects to be
borne in mind in exercising the discretion. Firstly, there
are constraints within which the Corporation has to exercise
its discretion. The Corporation is a public utility
organisation where medicating motion is efficiency and
effectiveness of public service. Efficiency and
effectiveness of public service are the basic concepts which
cannot be sacrificed in public administration by any
statutory corporation. The Corporation has to render this
public service within the resource use and allocation. It is
within these constraints the Corporation has to exercise its
discretion and perform its task. The second aspect relates
to the manner in which the statutory discretion is to be
exercised. The discretion allowed by the statute to the
holder of an office, as Lord Halsbury observed in Sharp v.
Wakefield, [1891] AC 173 at 179 is intended to be exercised
"according to the rules of reason and justice, not according
to private opinion; according to law and not humor. It is to
be, no arbitrary, vague and fanciful but legal and regular.
And it must be exercised within the limits to which an
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honest man competent to the discharge of his office ought to
confine himself." Every discretion conferred by statute on a
holder of public office must be exercised in furtherance of
accomplishment of purpose of the power. The purpose of
discretionary decision making under Regulation 17(3) was
intended to rehabilitate the disabled drivers to the extent
possible and within the above said constraints. The
Corporation therefore, cannot act mechanically. The
discretion should not be exercised according to whim,
caprice or ritual. The discretion should be exercised
reasonably and rationally. It should be exercised faithfully
and impartially. There should be proper value judgment with
fairness and equity. Those drivers would have served
281
the Corporation till their superannuation but for their
unfortunate medical unfitness to carry on the driver’s job.
Therefore, it would not be improper if the discretion is
exercised with greater concern for and sympathetic outlook
to the disabled drivers subject of course to the paramount
consideration of good and efficient administration. These
are some of the relevant factors to be borne in mind in
exercising the discretion vested in the Corporation under
Regulation 17(3).
In the result we allow these appeals. In reversal of
the judgment of the High Court, we direct the Corporation to
consider the cases of respondents in the light of the
observations made.
In the circumstances of the case, however, we make no
order as to costs.
D.R.L. Appeals allowed.
282