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

2. Respondent no. 2 Ved Prakash was originally employed as a Driver in the Delhi Road Transport Authority which had been constituted under the Delhi Road Transport Authority Act, 1950. The Delhi Municipal Corporation Act, 1957 came into force in January, 1958. By section 516 (1) (a) of the Corporation Act, the Delhi Road Transport Authority Act, 1950, stood repealed and in virtue of several other sections of the Corporation Act the functions of the Delhi Road Transport Authority were taken over by the Corporation. Under section 511 every officer and employee of the Transport Authority stood transferred to and became an officer and employee of the Corporation. Thus respondent no. 2 became an employee of the Corporation from January, 1958.3. A disciplinary enquiry was started against respondent no. 2 by the Assistant General Manager (Transport) in 1962 and the Assistant General Manager decided to remove respondent no. 2 from service with effect fromAt that time an Industrial dispute was pending before respondent no. 1 the Presiding Officer of the Labour Court, and hence an application was made under section 33 (2) (b) of the Industrial Disputes Act for approval of the proposed action of removal of respondent no. 2 from service. Respondent no. 1 did not approve of the action on the ground that the Order for removal was made by the Assistant General Manager and not the General Manager who alone could have removed him from service. That order was challenged in the High Court which, however, agreed with the view taken by respondent no. 1. Hence the present appeal.

Reasoning:
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.