IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.: 173 of 2006 Date of Decision: 14.10.2009. H.P.State Forest Corporation Ltd. and another …Petitioners. Versus. Bala Ram. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? Yes. For the petitioners: Mr. Rakesh Jaswal, Advocate. For the Respondent.: Mr. Dilip Sharma, Advocate. Per Deepak Gupta, J.(Oral). This writ petition is directed against the order dated 6th December, 2005 passed by the erstwhile State Administrative Tribunal in O.A. No. 3423 of 2000. Briefly stated, the facts of the case are that the respondent was appointed as Clerk in the H.P.State Forest Corporation (here-in-after referred to as the Corporation) in the year 1971. He was promoted as Junior Assistant in November, 1984 and he was thereafter promoted on adhoc basis as Office Manager (Junior) vide order dated 11th January, 1989. His services as Office Manager (Junior) were regularized vide order dated 22.3.1990. While holding this post, the petitioner was getting the scale of Rs.1800-3500/-. It is not disputed before us that 2 all the aforesaid appointments and promotions were made by the Managing Director of the petitioner-Corporation. The respondent was charged with having committed an offence punishable under Section 409 of the IPC while performing his duties as Office Manager during September, 1994. He was convicted for the said offence by the learned Chief Judicial Magistrate, Sirmaur on 4th March, 1999. He was sentenced to undergo imprisonment till rising of the Court and to pay fine of Rs.3,000/-. The appeal filed by the appellant before the learned Sessions Judge, Sirmaur at Nahan was dismissed on 13th August, 1999. Criminal Revision No.188 of 1999 filed by the respondent was dismissed as withdrawn on 8th March, 2000. Thereafter on 11th August, 2000 the Corporation taking note of the aforesaid judgements passed against the respondent issued an order under Rule 19 of the CCS (CCA) Rules, 1965 and by the same order issued show cause notice to the respondent as to why he should not be dismissed from service. The respondent replied to the said notice and the petitioner-Corporation vide office order dated 26.9.2000 passed by a Director of the Corporation dismissed him from service. The petitioner thereafter filed O.A. No.3423 of 2000. This O.A. has been allowed solely on the ground that the termination of the petitioner is in violation of Article 311 of the Constitution of India since his termination was made by an Officer junior in rank to his appointing authority. This order of the Tribunal is under challenge before us. Article 311 (1) of the Constitution of India provides that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union 3 or a State shall be dismissed or removed by an authority subordinate to that by which he was employed. The respondent is not a member of Civil Service of the Union. He is not a member of All-India Service or a member of civil service of the State. He does not hold any Civil Post under the Union or the State. He is an employee of the Corporation, which is a Company incorporated under the Indian Companies Act. By no stretch of imagination it can be said that the respondent is covered by Article 311 of the Constitution of India. In fact, this question is no longer res integra and the Apex Court in a number of judgements has held that employees of Government controlled Corporations are not civil servants and they are not entitled to invoke the provisions of Article 311. Reference may be made to the latest judgement cited before us i.e. Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and others, (2005) 7 SCC 764. in which the Apex Court held thus :- “13. Upholding the objection and considering the ambit and scope of Article 311, this Court held that an employee of a Corporation cannot be said to have held a 'civil post' and, therefore, not entitled to protection of Article 311. According to the Court, the Corporation could not be said to be a 'department of the Government' and employees of such Corporation were not employees under the Union. The Corporation has an independent existence and the appellant was not entitled to invoke Article 311. Hindustan Steel Limited (I) has been followed by this Court in several cases. [See Sukhdev Singh & Others v. Bhagatram Sardar Singh Raghuvanshi & Another, (1975) 1 SCC 421 ; Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449 ; A.L. Kalra v. Project & Equipment Corporation of India Ltd., (1984) 3 SCC 316 ; Tekraj Vasandi v. Union of India & Others, (1988) 1 SCC 236 ; Pyare Lal Sharma v. Managing Director & Others, (1989) 3 SCC 448 ; State Bank of India v. S. Vijaya Kumar, (1990) 4 SCC 481 ; Satinder Singh Arora v. State Bank of Patiala, (1992) Supp 2 SCC 224] 4 14. In view of the above pronouncements of this Court, there is no doubt that the respondent-Corporation is right in submitting that the appellant cannot invoke Article 311 by describing him as holding 'civil post' under the Union or a State. Article 311 of the Constitution, therefore, has no application to the facts of the case.” Shri Dilip Sharma, learned counsel for the respondent, contends that notwithstanding the fact that the respondent may not be entitled to invoke the provisions of Article 311 of the Constitution of India his services could not be terminated by the Director since he was appointed by the Managing Director. In Krishan Kumar vs. The Divisional Assistant Electrical Engineer, Central Railway and others, AIR 1979 SC 1912, the Apex Court held as follows:- “6. Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter’s power to make appointments to certain posts has been delegated to him. 7. Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellant’s appointment, it must be held that respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution.” Relying on the aforesaid observation, Shri Dilip Sharma, learned counsel for the respondent, urges that merely because the junior officer has been delegated the power to appoint or remove such an employee will not make him equivalent to the appointing authority. He further contends that since the respondent was appointed by the 5 Managing Director the subsequent delegation of the powers of appointment or removal to the director would not empower the director to remove the respondent. We are not inclined to accept this argument raised by Shri Dilip Sharma, learned counsel for the respondent. It is only Article 311(1) which provides that an employee cannot be removed by a person junior in hierarchy to the appointing authority. Under the ordinary law relating to master and servant, a servant can be removed by the master himself or by a person authorized by the master. The observations made by the Apex Court and quoted here-in-above have to be read in the light of the facts of that particular case. In para 4, the Supreme Court has clearly held that the question for determination is whether the appellant could be removed from service by an authority subordinate to the authority that had appointed him but this had to be decided in the context of the Article 311 of the Constitution of India. The law laid down by the Apex Court has been laid down only in the context of Article 311 and is not applicable to other employees who are not entitled to invoke the provision of Article 311. Under ordinary law a master always has the right to delegate the authority of appointment or termination to a junior authority. In a Company, the Board of Directors may, if they so deem fit, delegate the power of appointment to the Managing Director and after some time when the work of the Company increases they may then delegate this power which had earlier been given to the Managing Director to the Director. If the Director has been delegated the power by the appropriate resolution of the Company the decision by the 6 delegatee is a decision on behalf of the Company and is deemed to be a decision of the master himself. In view of the above discussion, we are clearly of the opinion that the learned Tribunal erred in holding that the services of the respondent could not have been dismissed by the Director. We accordingly allow the writ petition, set-aside the order of the learned Tribunal. Consequently, the original application filed by the respondent shall be deemed to be dismissed. No order as to costs. ( Deepak Gupta ) Judge. 14th October, 2009 ( V.K.Ahuja ) ™ Judge.