Case: The Management Of D.T.U Vs. Shri B. B. L. Hajelay &amp; Anr

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 64 Ind. App. 40 = (AIR 1937 PC 27 ). 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 person in the Civil Service of the Crown in India holds office during his Majestys 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 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 wipe out 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.12. 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 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 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. The proviso places an embargo on any subordinate of the appointing authority from removing or dismissing an employee from service and, therefore, the High Court was right in holding in the present case that the removal of respondent no. 2 by the Assistant General Manager (Transport) was illegal.13. 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 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.

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

Explanation:
0[ds]10. 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 takeover 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. Therefore, 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 inapplicable.In our opinion, the contention is not well founded. The proviso to section 95(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 is 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.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 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(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. The proviso places an embargo on any subordinate of the appointing authority from removing or dismissing an employee from service and, therefore, the High Court was right in holding in the present case that the removal of respondent no. 2 by the Assistant General Manager (Transport) was illegal.13.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 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.