Case: A. S. T. Arunachalam Pillai Vs. M/S. Southern Roadways (Private) Ltd

133A of the Act making the Regional Transport Authority subordinate to the State Transport Commissioner. The only material available to us is that the Commissioner was appointed by the State Government as Chairman of the Central Road Traffic Board. Under the Act and the rules framed thereunder, there are certain statutory duties and functions allotted to the Central Road Traffic Board. But no separate powers are conferred on the Chairman of the Board apart from his being a part of the Board. It is, therefore, clear that under the Act and the rules framed thereunder the Regional Transport Officer is not made subordinate to the State Transport Commissioner.24. But what is contended is that though between the Commissioner and the Regional Transport Officer, there is no statutory subordination, the latter was made by the Government administratively subordinate to the Commissioner. There is no order of the Government making the Regional Transport Officer a subordinate to the Commissioner placed before us. The only material is a notification issued by the Government dated October 20, 1955, on which reliance is placed to indicate that the Regional Transport Officer is subordinate to the Commissioner. But obviously it had no relevance to the present enquiry, for the notification was issued on a date subsequent to the date of the impugned order. If there was an earlier notification, the State or the appellant would have produced it, but from its non-production it may be assumed that there was no such notification. If that is excluded, the only two remaining documents are, (i) the Madras Financial Code giving a list of the heads of departments of the Madras State, and (ii) the Half-Yearly list of Gazetted Officers in the Madras State Government. The former shows the Transport Commissioner as one of the heads of departments. It does not in itself show that the Regional Transport Officer is his subordinate. The mere mention of the Regional Transport Officers in the list of Gazetted Officers in the department is not decisive of the fact that they are subordinate to the Transport Commissioner. In this state or record, it is not possible to hold that even administratively the Regional Transport Officer is subordinate to the State Transport Commissioner.25. I shall assume for the purpose of this case that the Regional Transport Officer is treated by the Government as a subordinate officer to the Commissioner. The question in this case is whether such administrative treatment in utter disregard of the statutory provisions can confer upon the Regional Transport Officer a right to function under S. 44A of the Act.26. The foregoing provisions relevant to the present enquiry may be summarised thus: The Act is a self-contained one.Under specific provisions it empowers the Government to constitute a State Transport Authority, the Regional Transport Authorities and a State Transport Commissioner. Section 44A does not authorize the Government to appoint subordinate officers to the Commissioner, but only enables it to confer statutory powers on an officer subordinate to the Commissioner. In exercise of the powers conferred under S. 133A of the Act, the State Government created a Motor Vehicles Department and appointed in that Department a Commissioner, Regional Transport Officers and others. But the State Government has not made any rules making the Regional Transport Officer a subordinate to the Commissioner. Indeed, the rules made him the executive officer of the Regional Transport Board indicating thereby that he is a subordinate to the Board. It is, therefore, manifest that either under the statute or under the rules made thereunder the Regional Transport Officer is not subordinate to the Commissioner.27. Learned Attorney General contends that S. 133A of the Act only confers a discretionary power on the State Government to make rules indicating the authorities to which the officers appointed shall be subordinate and, therefore, it is not bound to do so. Assuming that the word "may" in the section confers a discretionary power on the State Government, is it permissible to contend that the Government is entitled to do administratively what it is empowered to do by rules? If the Government decides not to exercise the powers conferred under sub-s. (3) of S. 133A, it may withhold from doing so; but it cannot bring about the same result administratively, i.e., by a process other than by way of rules. If the contention were accepted, it would be attributing to the legislature an intention to make an unnecessary provision. If the State Government could act administratively in regard to matters covered by sub-s. (3), why should the said sub-section be made at all? Either by making rules or without making rules, the Government can achieve the same object.28. There is an understandable reason for the legislative preference to a statutory rule.Statutory rules are placed before Parliament for its approval, while administrative regulations are entirely in the discretion of the executive government. Statutory authorities under the Act are empowered to exercise powers affecting valuable rights of citizens. The power to issue permits and modify the conditions thereof affects large interests and it may well be that the legislature in insisting upon statutory rules seeks to exercise supervision to prevent abuse of powers. The only reasonable construction of S. 133A is that the State can create subordination of one officer to another by only statutory rules and not otherwise. I would,. Therefore, hold that if the Government seeks to make a particular officer of the Department subordinate to an other, it can only do so by making a statutory rule, under sub-s. (3) of S. 133A of the Act.29. The result is that negatively there is no statutory rule making the Regional Transport Officer subordinate to the State Transport Commissioner, and positively there is a rule making him subordinate to the Regional Transport Authority (R.T.A.), If that be so, I must hold that the Regional Transport Officer is not a subordinate to the State Transport Commissioner within the meaning of S. 44A of the Act.30. In the result, the appeal fails and is dismissed with costs.

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

Explanation:
1[ds]5. In our opinion, although the respondent had submitted to the jurisdiction of the Regional Transport Officer and had not in his petition under Art. 226 in the High Court taken the objection that that officer had no jurisdiction to vary the conditions of a permit, the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of a permit. It was not until the decision of the High Court in Writ Appeal No. 107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the laws was so declared by the High Court it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Art. 226 the point had not been taken. This was obviously because the decision of the High Court in Writ Appeal No. 107 of 1955 had not been given at the time of the filing of the petition. Since the question went to the root of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under S. 64A of theour opinion, S. 64A is a power vested in the State Government by way of revision of orders passed under Chapter IV of the Act by any authority or officer subordinate to it. This is not a power which the State Government could exercise by way of original jurisdiction which was vested elsewhere. In our opinion, although the words "may pass such order in reference thereto as it thinks fit" are wide in expression, they do not mean that the State Government could pass an order in exercise of revisional jurisdiction which the authority whose order the Government was revising had no jurisdiction to pass. The State Government could undoubtedly set aside an order of an authority or officer subordinate to it who had no jurisdiction to pass the order in question under Chapter IV but it could not substitute for that order its own order directing the variation in the conditions of the permit of the appellant.It is significant that S. 43 which deals with the power of the State Government to control Road Transport does not mention that such a Government has the power to vary the conditions of a permit, although the various powers conferred by that section are fully specified, including the power to vary the notification issued; under the section. If the Act had intended to give the power to the State Government to vary the conditions of a stage carriage permit granted to a particular person it would have specified such a power in this section. The authority which is empowered to vary the conditions of a permit is stated in S. 48A which certainly is not the State Government. Under the Act, therefore, no such authority was vested in the State Government and the words in S. 64A "as it thinks fit" must mean within the ambit of the provisions of the Act.It will be seen from what has been stated that it is the State Transport, Authority and no other which is authorised under S. 48A to vary the conditions of a permit of a stage carriage. Section 44A, however, authorises the State Government to appoint a State Transport Commissioner. It further provides that notwithstanding anything contained in the Act the State Government may by notification authorize the State Transport Commissioner or any officer subordinate to him to exercise and discharge in lieu of any other authority prescribed by or under the Act such powers and functions as may be specified in the notification. By this section, although under S. 48A it is the State Transport Authority which can vary the conditions of a stage carriage permit, the State Government could, notwithstanding the provisions of that section, authorise the State Transport Commissioner to exercise such powers in lieu of the State Transport Authority. It could also confer such power on an officer subordinate to the State, Transport Commissioner. The vital question for determination is, how are the words "any officer subordinate to him" to be construed. In construing these words the provisions of S. 133A will have to be kept in mind as it was contended on behalf of the respondent that these sections should be read together. It was urged on behalf of the respondent that under S. 133A (3) as to who was subordinate to whom in the Motor Vehicles Department had to be prescribed by rules. As no rules had been framed it could not be said that the Regional Transport Officer was subordinate to the State Transport Commissioner.In paragraph 6 of the statement of the case filed by the respondent it was stated that in the exercise of the powers conferred under S. 44(1) of the Act the Government of Madras constituted Provincial and Regional Transport Authorities. It also set up a Motor Transport Department with a Transport Commissioner as its head and officers in that Department, in the lower scale, were the Regional Transport Officers who functioned as the Secretaries of the respective Regional Transport Authorities called the Road Traffic Board. It was further stated in paragraph 7 that although a Regional Transport Officer was a subordinate of the Transport Commissioner on the administrative side he could not be held to be a subordinate officer within the meaning of S. 44A. The State Government may establish a Motor Vehicles Department and appoint officers thereto under S. 133A, but mere appointment of officers in that Department could not invest them with statutory functions to be discharged under the Act and under the Rules. Section 133A contemplates framing of rules to regulate the discharge by officers of the department of their functions as also to state the authorities to whom such officers shall be subordinate and the duties to be performed by them. It was not suggested that any duties or powers of a statutory nature had been vested in the Transport Commissioner; nor was there any rule showing that the Regional Transport Officer is a subordinate of the Transport Commissioner for the purposes of the Rules. The statement of the case further stated that S. 44A required a functional subordination and not merely an administrative one.13. The Madras Financial Code Vol. II Appendix I shows the list of Heads of Departments of the Government of Madras. The Transport Commissioner is shown as the Head of a Department. The Half-Yearly List of Gazetted Officers in the Transport Department corrected upto the 31st July, 1955, shows that the Transport Commissioner is also the Chairman, Central Road Traffic Board, Madras, and subordinate to him are the Secretary, Central Road Traffic Board, Madras, Assistant Secretary, Road Traffic Board, Madras and Regional Transport Officers. There can be no question therefore that the Regional Transport Officers are officers subordinate to the Transport Commissioner. It is perhaps for this reason that the respondent admits that the Regional Transport Officers, administratively, are subordinate to the Transport Commissioner.Section 44A speaks merely of an officer subordinate to the Transport Commissioner to whom by notification the Government of Madras may confer the authority in lieu of any other authority prescribed by or under the Act to discharge the powers and functions of thatwas worthy of notice that S. 44A authorized the State Government, notwithstanding anything contained in the Act, to authorize any officer subordinate to the Transport Commissioner to exercise and discharge in lieu of any other authority such powers and functions as may be exercised by that authority. The section did not depend upon any rules to be framed under S. 133A. Furthermore, S. 133A was an enabling section by which a State Government could, if it so wished, for the purpose of carrying into effect the purposes of the Act establish a Motor Vehicles Department. Untile such a Department was established the question of framing rules under the section did not arise.14. There is no clear material on the record or in the Madras Road Traffic Code from which it can be ascertained precisely as to when the Madras Government established a Motor Vehicles Department. It is significant, however, by a notification dated December 20, 1955, cl. (m) was added to rule 3 of the Rules and this stated that "Transport Department" means the Motor Vehicles Department set up under S. 133A. of the Act. Apparently, until this date Transport Department was something other than the Motor Vehicles Department set up under S. 133A of the Act. It is clear, therefore, that on February 14, 1953, when the notification G. O. Ms. No. 527 was issued by the Government of Madras the Regional Transport Officers were officers subordinate to the Transport Commissioner. Even if at some time or the other a Motor Vehicles Department had been set up by the Government of Madras admittedly the Government of Madras had framed no rules under S. 133A (3).If rules had been framed under that section and they showed that the Regional Transport Officers were not subordinate to the Transport Commissioner then a question might well have arisen as to how the words "any Officer subordinate to him" should be construed owing to a conflict between the Regional Transport Officer being administratively subordinate to the Transport Commissioner and yet not subordinate to him by virtue of the rules framed under S. 133A. Since, however, no rules have been framed under this section so far as S. 44A is concerned, any officer who is subordinate to the Transport Commissioner in any way must include the Regional Transport Officers in the Transport Department.The words of the section are wide enough for this interpretation and they are incapable of being given the restricted meaning suggested on behalf of the respondent. It was, however, suggested that anomailes may occur in S. 44A is construed so widely; because a Regional Transport Officer was a Secretary of a Regional Transport Authority and therefore subordinate to that authority and yet he could be empowered to vary the conditions of a permit which the State Transport Authority, to which the Regional Transport Authority is subordinate, may have declined to do. In the matter of interpretation such considerations cannot be of much assistance. If the words of S. 44A are wide enough to mean any officer subordinate to the Transport Commissioner they must be given effect to. In the matter of interpretation a Court could not, if the words were plain enough, proceed on the basis that possibly the Government of Madras may misuse its powers.