Case: Mysore State Road Transport Corporation Vs. Babajan Conductor &amp; Anr

a direction that that option will be made available to the petitioner within fifteen days from this date."7. We also find that, after proceedings under the Contempt of Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25-1-61, the date of his dismissal which was declared to be illegal by the High Court, and 1-8-61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation.8. The State Government owed no duty to the first respondent to pay him after its transport department was wound up. No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so. We do not know what option the State Government has given to the first respondent after the writ petition was filed. If it had already given any option to him, there was no point in directing it to give another option. In order to compel the Corporation to do anything, as already indicated, only a general direction under S.34 of the Act, set out above, could be given by the Government. There neither could be a specific direction with regard to a particular case nor was any specific direction given by the Government for any such case. The High Court could not take upon itself the power of fill any gap in the provisions of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was not under any kind of obligation to do. The High Court could not give a specific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules. We can find no justification at all for such assumption of powers by the High Court.9. Mrs. Shyamla Pappu, learned counsel for the appellant has sought support from a judgment of this Court in Mysore State Road Transport Corporation v. A. Krishna Rao and another, C.A. No. 1700 of 1967 given on 6-8-1969, where this Court held as follows :"It is quite clear that the employee of the Bangalore Road Transport Service of the Government did not either under a statutory provision, as in Jestamani Gulabrai Dholakia v. The Scindia Steam Navigation Co., (1961) 2 S.C.R. 811, or automatically, become the employees of the Corporation. The Corporation was directed to take over only those of the employees who opted for its service and to give to them the same terms and conditions as were enjoyed by them while in the service of the Mysore Government. Thus, the condition precedent of an employee of the Road Transport Service of the Government of Mysore being transferred and regarded as the employee of the Corporation as from October 1, 1961, was the giving of the option to him and his exercise thereof.There is no dispute that respondent 1 was not given the notice of option, presumably because, rightly or wrongly, he was not regarded as having been in the service of the Governments Road Transport Service immediately before the Corporation came into being. It cannot also be disputed that he never asked for a notice of option on the ground that he continued to be in that service that he did not in fact exercise the option is an accepted fact. That being so, it cannot be said that under the said notification the Corporation was required to have him as its employee or that his service was transferred to the Corporation thereunder, the condition precedent to such employment or transfer not having been complied with."This Court also held there :"In our view, the Labour Court could not, on the position stated above, treat him as the Corporations employee and on that footing grant him the relief which it did. Once it is found that he did not become the Corporations employee, the Corporation could not be held liable to pay him the wages for the period from March 6, 1960, to April 19, 1962."10. The case cited by Mrs. Pappu arose out of a claim under S. 33(c)(2) of the Industrial Disputes Act, 1947, but the views expressed there accord with ours. We respectfully adopt the same reasoning.11. Indeed, in the case now before us, the Corporations legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted. That relief would, therefore, be deemed to have been refused. The first respondent did not himself go up in appeal against that decision. He cannot claim such a relief in the subsequent writ petition now before us.12. The fact set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the Government. It may be that the effect of the High Courts order, setting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent. Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up. The most he could says was that he was not dismissed. The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law.

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

Explanation:
1[ds]8. The State Government owed no duty to the first respondent to pay him after its transport department was wound up. No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so. We do not know what option the State Government has given to the first respondent after the writ petition was filed. If it had already given any option to him, there was no point in directing it to give another option. In order to compel the Corporation to do anything, as already indicated, only a general direction under S.34 of the Act, set out above, could be given by the Government. There neither could be a specific direction with regard to a particular case nor was any specific direction given by the Government for any such case. The High Court could not take upon itself the power of fill any gap in the provisions of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was not under any kind of obligation to do. The High Court could not give a specific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules. We can find no justification at all for such assumption of powers by the High Court.The case cited by Mrs. Pappu arose out of a claim under S. 33(c)(2) ofthe Industrial Disputes Act, 1947, but the views expressed there accord with ours. We respectfully adopt the same reasoning.11. Indeed, in the case now before us, the Corporations legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted. That relief would, therefore, be deemed to have been refused. The first respondent did not himself go up in appeal against that decision. He cannot claim such a relief in the subsequent writ petition now before us.12. The fact set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the Government. It may be that the effect of the High Courts order, setting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent. Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up. The most he could says was that he was not dismissed. The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law.