Case: Mysore State Road Transport Corporation Vs. Mirja Kasim Ali Beg &amp; Another

311(1) of the Constitution. The argument seems to overlook that both at the time coming into force of the States Reorganisation Act, 1956 and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil posts under the State. 17. The fourth contention raised by counsel for the appellant that the discretionary relief of declaration could not and should not have been granted by the lower Courts on the facts of the present suits is also devoid of merit. In Executive Committee of U.P. State Warehousing Corporation Limited v. Chandra Kiran Tyagi, [1970-I L.L.J. 32]; (1970) 2 S.C.R. 250 and Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, [1976-II L.L.J. 163]; (1976) 2 S.C.R. 1006, it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases;(i) Appropriate cases of public servants who have been dismissed from service in contravention of Art. 311; (ii) dismissed workers under industrial and labour law; and (iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute. 18. This takes us to second limb of the fourth contention raised on behalf of the appellant. While it is true that the relief of declaration is discretionary, it is well-settled that it is only if the discretion is not exercised by the lower Court in the spirit of the statute or fairly or honestly or honestly or according to the rules of reason and justice, the order passed by the lower Court can be reversed by the superior Court. Reference in this connection may usefully be made to a decision of the Privy Council in Charles Osenton & Company v. Johnston [1942] A.C. 130, where the legal post position was succinctly stated as follows :There remains the question whether, assuming that in the circumstances of this case Tucker, J. had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal. So the respondent contends, while the appellants urged that, even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibility of appeal from an official referees finding of fact, and in view of the practicability of the case being tried before a Judge without a jury. The law as to the reversal by a Court of appeal of an order made by the Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate Tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this House in Evans v. Bart am, [1937] A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows : It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine a new relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the Judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court or Appeal. Thus in Gardner v. Jay, [1885] 29 Ch. D. 50, Bowen, L.J., in discussing the discretion of the Judge as regards mode of trial says : That discretion, like other judicial discretion, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed ? 19. Bearing in mind the well-settled principles regarding interference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents. The fourth contention urged on behalf of the appellants is, therefore, overruled. 20. We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation no decree could be passed against it. The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Transport Corporation and had transferred its rights and liabilities to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. A bare perusal of sub-s.(7) of S.115 ofthe States Reorganisation Act, 1956, reproduced above, makes it clear that nothing contained in that section could, after the appointed day, i.e., November 1, 1956 affect the operation of the provisions of Chapter 1 of Part XIV of the Constitution which includes Art. 311 thereof in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State and the conditions of service applicable immediately before the appointed day to any person who is allotted to another State could not be varied to his prejudice except with the previous approval of the Central government.It follows, therefore, that the protections including the constitutional protection enshrined in Art. 311(1) of the Constitution enjoyed by persons holding civil posts under the State like the first respondents prior to the coming into force ofthe States Reorganisation Act, 1956 could not, after the appointed day, i.e., November 1, 1956, be taken away, whittled down or impaired by any legislative enactment or rule.7. Sub-section(2) of S.116 ofthe States Reorganisation Act, 1956 which is the sheet anchor of the first contention raised on behalf of the appellants but on which no reliance was rightly placed on their behalf either in the Court of the first instance or in the trial Court is of no assistance to the appellants. As observed by the learned Chief Justice while speaking for the Constitution Bench of this Court in M/s. Gammon Indian Ltd. and others v. Union of India and others, (1974) 1 S.C.C. 596, every clause of a statute is to be construed with reference to the context and other provisions of the Act to make a consistent and harmonious meaning of the statute relating to the subject-matter. The interpretation of the words has to be by looking at the context, the collocation of the words and the object of the words relating to the matters. The words are not to be viewed detached from the context of the statute. The words are to be viewed in relation to the whole context. The expression competent authority occurring in sub-s.(2) of S.116 of the Act cannot, therefore, be considered in isolation apart from the rest of the provisions of the Act. It has to be read in connection with, construed and understood as having the same meaning as the expression appropriate authority contemplated by sub-s. (1) of that section which in turn according to Art. 311(1) of the Constitution means the appointing authority or an authority equivalent to or co-ordinate in rank with the appointing authority. The Constitution being the transcendental law, the Legislature by enacting S.115(7) ofthe States Reorganisation Act, 1956 took care to see that the constitutional guarantee enshrined in Art 311(1) of the Constitution which was available to the civil servants before the State Reorganisation Act, 1956 was not destroyed or wiped away on their allotment to a new State. That the construction placed by us on the expression competent authority is in consonance with the meaning and import of the word subordinate occurring in Art. 311(1) of the Constitution is apparent from a catena of decisions.13. In the instant cases, the first respondents were undeniably appointed by the Superintendent of the Traffic Department of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State. On the coming into force ofthe States Reorganisation Act, 1956 on November 1, 1956, they were to be deemed by virtue of sub-s.(1) of S.116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by then on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or co-ordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad. The authority equivalent to or co-ordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to the appellants own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the competent authority in terms of sub-s.(2) of S.116 ofthe States Reorganisation Act, 1956. The fact that there was no post of Superintendent of the Traffic in the Mysore Government Road Transport Department in the State of Mysore is of no consequence. Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Art. 311 of the Constitution read with S.115(7) of the States Reorganisation Act 1956.first contention urged on behalf of the appellants which runs counter not only to contention No. 4 raised by the Corporation in its statement of case before this Court and the admission made by it in answer to the aforesaid interrogatories but also to S.115(7) and S.116 ofthe States Reorganisation Act, 1956, is, therefore, rejected.14. The second contention urged on behalf of the appellants that as the General Manager of the Mysore Government Road Transport Department confirmed on appeal the orders of dismissal of the first respondent that should be considered as substantial compliance with the provisions of Art. 311(1) of the Constitution is, in our judgment, devoid of substance. The original order of dismissal of the first respondents being without jurisdiction and as such void and inoperative having been passed in contravention of the provisions of Art. 311(1) of the Constitution, the order passed on appeal by the General Manager could not cure the initial defect.In similar circumstances, the appellant order passed by the Director General of Prisons was not considered by the Madras High Court in N. Somasundarams case (supra) to remedy the invalidity of the original order passed by the Superintendent of Jails. To the same effect is the decision of the Nagpur High Court in Provincial Government, Central Provinces and Berar v. Shamshul Hussain Siraj Hussain, A.I.R. 1949 Nagpur 118.16. There is also no force in the third contention of counsel for the appellants that the posts held by the first respondents not being civil posts under the State, there could be no question of violation of Art. 311(1) of the Constitution. The argument seems to overlook that both at the time coming into force ofthe States Reorganisation Act, 1956 and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the State and they could not but be treated as holding civil posts under the State.17. The fourth contention raised by counsel for the appellant that the discretionary relief of declaration could not and should not have been granted by the lower Courts on the facts of the present suits is also devoid of merit. In Executive Committee of U.P. State Warehousing Corporation Limited v. Chandra Kiran Tyagi, [1970-I L.L.J. 32]; (1970) 2 S.C.R. 250 and Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others, [1976-II L.L.J. 163]; (1976) 2 S.C.R. 1006, it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases;(i) Appropriate cases of public servants who have been dismissed from service in contravention of Art. 311;(ii) dismissed workers under industrial and labour law; and(iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute.18. This takes us to second limb of the fourth contention raised on behalf of the appellant. While it is true that the relief of declaration is discretionary, it is well-settled that it is only if the discretion is not exercised by the lower Court in the spirit of the statute or fairly or honestly or honestly or according to the rules of reason and justice, the order passed by the lower Court can be reversed by the superior Court. Reference in this connection may usefully be made to a decision of the Privy Council in Charles OsentonCompany v. Johnston [1942] A.C. 130, where the legal post position was succinctly stated as follows :There remains the question whether, assuming that in the circumstances of this case Tucker, J. had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal. So the respondent contends, while the appellants urged that, even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibility of appeal from an official referees finding of fact, and in view of the practicability of the case being tried before a Judge without a jury. The law as to the reversal by a Court of appeal of an order made by the Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate Tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate Tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this House in Evans v. Bart am, [1937] A.C. 473, where the proposition was stated by my noble and learned friend, Lord Wright, as follows : It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine a new relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the Judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge may often be of decisive importance on the final issue of the case, and one which requires a careful examination by the Court or Appeal. Thus in Gardner v. Jay, [1885] 29 Ch. D. 50, Bowen, L.J., in discussing the discretion of the Judge as regards mode of trial says : That discretion, like other judicial discretion, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed ?19. Bearing in mind the well-settled principles regarding interference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents. The fourth contention urged on behalf of the appellants is, therefore, overruled20. We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the Corporation no decree could be passed against it. The Corporation having itself made an application on September 7, 1964 before the trial Court endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Transport Corporation and had transferred its rights and liabilities to the Corporation, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it.Reference in this connection may be made to two decisions of this Court in M. D. Shukla and others, v. State of Gujarat and others, (1970) 3 S.C.R. 515 and N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore, (1964) 7 S.C.R. 549. In the latter case, it was held by this Court that the effect of sub-s.(7) of S.115 of the States Reorganisation Act is to preserve the power of the State to make rules under Art. 309 of the Constitution but the proviso imposes a limitation on the exercise of that power, the limitation being that the State cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of the person mentioned in sub-s.(1) and (2) of S.115 of the Act. In the view of the Court, the broad purpose underlying the proviso to S.115(7) of the Act was to ensure that the conditions of service of the aforesaid persons shall not be changed except with the prior approval of the Central Government, i.e., before embarking on varying the conditions of service, the State Governments should obtain the concurrence of the Central Government. Now as pointed out by the Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand, (75 I.A. 343 A.I.R 1949 P.C. 112) and by this Court in Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta High Court, (1955) 2 S.C.R. 1331 and State of Madhya Pradesh and others v. Shardul Singh, (1970) 3 S.C.R. 302, the expression conditions of service is an expression of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants. It is also well-settled legislative provision or rule to take away the guarantee provided by Art 311(1) of the Constitution which lays down that no public servant shall be dismissed by an authority subordinate to that by which he was appointed and if any such legislative provision or rule lays down otherwise, it will clearly be ultra vires. (See Rangachari v. Secretary of State (64 I.A. 40 : A.I.R. 1937 P.C. 27), North West Frontier Province v. Suraj Narain Anand (supra) and The State of Uttar Pradesh and others v. Babu Ram Upadhya, (1961) 2 S.C.R. 679.