JAi JAi RAM AND ORS.

THE U.P. STATE ROAD TRANSPORT CORPORATION,

LUCKNOW AND ORS.

JULY 9, 1996

[S.C. AGRAWAL AND G.T. NANAVATI, JJ.]

Service Law :

U.P. Fundamental Rules/Road Transport Corporation Act, 1950: C

Rule 9(7-B )/ss.34 & 241(2)(b )-'Govemment servant'-Disciplinary action against-Drivers/conductors of erstwhile U.P. Govemment Roadways working on deputation with U.P. State Road Transport Corporation-Termination/suspension orders passed against said employees by officers who also were on deputation with Corporation and were either appointing D authorities of such en1ployees or senior in rank to such authorities under erstwhile U.P. Government Roadways-Held, tennination/suspension orders are not violative of Article 311 of the Constitution-Definition of temt "Government servant" in rule 9(7-B) is for the purpose of the rules and is not relevant for the purpose of Article 31 /.

Constitution of India, 1950:

Article 311--Govemment employees on deputation-- Disciplinary action against-Temtination/suspension orders against employees of erstwhile U.P. Government Roadways while they were on deputation with U.P. State Road Transport Corporation-Held, officers who passed the orders also continued as government sen•ants even though they were on deputation with the Corporation and they were such officers who were either appointing authorities of such employees or senior in rank to such authorities under U.P.

Government Roadways-Disciplinary actions sustained.

The appellants were drivers/conductors in the erstwhile U.P. Government Roadways. On coming into operation of the U.P. State Road Transport Corporation w.e.1'. 1.6.1972, the appellants as well as the officers including the appointing authorities of the appellants under the erstwhile U.P. Government Roadways were deemed to be on deputation with the H 413

A Corporation w.e.f. 1.6.1972. Later, while the appellants continued to be on deputation, disciplinary actions were taken against them. Consequently services of some of the appellants were terminated and some of them were placed under suspension. The termination orders '"ere challenged before the Tribunal on the ground that as the employees were on deputation with

B the Corporation and the U.P. Government continued to be their employer, the Corporation was n.ot competent to take disciplinary action against them. The Tribunal allowed their applications. The Corporation challenged the order of the Tribunal by filing writ petitions before the High Court. The persons placed under suspension also challenged the orders of the Corporation in another writ petition. The contention of the appellants C before the High Court was that since the appellants were Government sen1ants, the Corporation or its officers including those who \\-'ere on deputation were not competent to pass the orders and only the oflicers serving under the State Government could pass such orders. The Full Hench of the High Court held that the officers who took the disciplinary D actions against the appellants were such officers who were either the appointing authorities of the appellants or senior in rank to such authorities under the State Government and were sent to the Corporation

on deputation and as such they were competent to take the disciplinary actions against the appellants. Aggrieved, the appellants filed the present appeals.

Dismissing the appeals, this Court

HELD : 1. The disciplinary actions against the appellants and the judgment of the High Court are sustained.

F 2.1. A Government servant remains a Government servant even when he is sent on deputation to foreign service. Like the ap11ellants, the officer whose actions/orders have been challenged also continued as Government servant at the time when the actions were taken. The definition of the term "Government servant" in rule 9(7-B) of the U.P. Fnndamental Rules is for G the purpose of the said rules and, therefore, not relevant for the purpose of Article 311 of the Constitution. [ 418-G, DJ

2.2. Though the appellants were government servants even while serving under the Corporation and were entitled to the protection of Article 311 of the Constitution, Article 311 gives protection to a govern- H ment servant against dismissal or removal by an authority subordinate to

JAI.IAIRAM V. U.P.STATERD.TPT. [NANAVATI, J.] 415

that by which he was appointed. It does not provide that a government A servant cannot be dismissed or removed by an authority except the appointing authority. There is no requirement that the authority which takes disciplinary action must continue to have the power of making appointment to the civil service or on a civil post under the Onion or a State. It can be any other authority so long as it is not subordinate in rank or grade to the authority by which the delinquent Government servant was appointed. [418-D, 419-G-H, 420-A]

2.3. Besides, Section 34 of the Road Transport Corporation Act, 1950 empowers the State Government to give directions to a Corporation established under the Act, inter alia, with respect to recruitment and condition> C of service of the employees of the Corporation. [ 420-F]

State of U.P. v. Ram Nareslz Lal, [1970] 3 SCC 173, relied 011.

S.S. D/zanoa v. Mwzicipal C01poration, Delhi, [1981] 3 SCC 431 and Krishna Kumar v. Divisional Assistant Electrical Engineer and Ors., (1979] 4 sec 289, held inapplicable.

Manager, Mis. Pyarclzand Kesa1inzal Ponwal Bidi Fact01y v. Omkar Laxnzan 77zange, [1969] 2 SCR 272 and Maratlzwada Univmity v. Seslzrao Ba/want Rao Clzavan, [1989] 3 SCC 132, cited.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2267 of 1981.

From the Judpnent and Order dated 24.12.80 of the Allahabad High Court in W.P. Nos.150, 168, 170, 175-80, 716-720, 722-729, 733-40, 742, 743, 746, 759-767, 880, 881, 883-885, 888-90, 892 and 893 of 1980.

Anil Kumar Gupta for the Appellants.

Raju Ramachandran, T.Mahipal, Pradeep Misra, K.S. Chauhan and

R.B. Misra for the Respondents .

The J ud!,'Illent of the Court was delivered by

NANAVATi, J. This appeal by special leave is directed against the judgment and order passed by the Allahabad High Court in Writ Petition

No. 150 of 1980 and Writ Petition Nos. 168, 169, 175, 177, 178, 179, 716, H

A 720, 724, 761, 762, 764, 765, 880, 885 and 892 of 1980.

Te question that arises for consideration in this appeal is whether disciplinary action could have been taken against the appellants, who are/were Government servants and who have/had been sent to the U.P.

State Road 1Transport corporation on deputatlon 1 by those Government officers who have/had been sent to the Corporation on deputation along with the appellants. There is no dispute on the point that some of the appellants were appointed by those officers. Other officers whose actions have been challenged are/were superior in nnk or of the same rank but not subordinate in rank or grade to the appointing officers of the remaining C appellants.

Before June 1, 1972, the U.P. Government was running a passenger transport service known as the U.P. Government roadways in various parts of the State. The said department undertaking was then headed by D Transport Commissioner. By notification dated 10th May, 1954, issued by the State Government under Article 309 of the constitution, the Transport Commissioner, the Deputy Transport Commissioner, General Managers and the Assistant Regional Managers were notified as appointing authorities in respect of those categories of posts which were mentioned in the said notification. The Assistant Regional Managers were designated E as appointing authorities, inter a/ia, for the posts of conductors and drivers.

The appellants are or were holding such posts. Assistant Regional Managers were subsequently redesignated as Assistant General Managers and w.e.f. June 1, 1972, as Assistant Zonal Managers. The Corporation was established w.e.f. June 1, 1972 by notification dated May 31, 1972 and all F the officers and employees connected with the work of roadways were deemed to be on deputation with the Corporation w.e.f. June, 1, 1972. In course of time the Corporation appointed its own officers and employees but all those Government officers and other employees who were sent on deputation continued to remain on deputation and were not absorbed, in G the service of the Corporation. Disciplinary actions were taken against some of the employees and they were challenged on several grounds. In this appeal we are concerned with those employees who had continued as Government employees till their services came to be terminated or those against whom disciplinary actions have been initiated or were taken by those officers working in the Corporation who were sent on deputation and H who also continued to be on deputation till impugned actions were taken

JAIJAIRAM v. U.P.STATERD.TPT. [NANAVATI, J.] 417

by them. Some of the employees had filed applications before the tribunal A challenging the disciplinary actions taken against them. Those applications were allowed by the tribunal on the ground that as the applicants had continued to be on deputation with the Corporation the State continued to be their employer and, therefore, the Corporation was not competent to take disciplinary action against them. Aggrieved by the orders passed on B those applications, the Corporation had filed the above writ petitions except writ petition No. 150 of 1980 in the Allahabad High Court. Writ petition No. 150 of 1980 was filed by those deputationists/employees who have been suspended pending disciplinary actions against them. In that petition they have challenged their suspension. All those actions and orders were challenged on the ground that the Corporation and its officers C including those officers who were/have been sent on deputation had no power to pass such orders as the petitioners being Government servants only the officers serving under Government could have passed such orders.

All these petitions were heard together by the Allahabad High Court. In view of the conflicting opinions expressed by different Benches of the High D Court these petitions were heard by a full Bench. The Full Bench, by Majority (Hari Swroop and T.S. Misra, .J.1.) held that the disciplinary actions taken by those Deputy General Managers, Regional and Assistant Regional Managers of the Corporation who are/\Verc Government servants and who have/had been sent to the Corporation on deputation had either appointed the delinquent employees or were superior in rank or of the E same rank or grade and were not subordinate in rank to the appointing officers and therefore competent to take the impugned disciplinary actions.

KN. Goyal, J. in his concurring judgment held that all officers of the Corporation who were not subordinate in rank to the appointing officers were competent to take the impugned disciplinary action. The full Bench F thus decided the point in favour of the Corporation and against the employees and allowed the writ petitions filed against the orders passed by the Tribunal. As the tribunal had not decided all the questions raised before it the full Bench directed the tribunal to decide those cases on other points in accordance with law. So far as Writ petition No. 150 of 1980 is concerned the full Bench has directed it to be listed before a Division G Bench for disposal.

The view taken by the High Court is challenged on the ground that the disciplinary actions which have either been initiated or taken are by those authorities which were acting as officers of the Corporation and not H

A as officers of the Government and as the appellants continued to be the Government servants no action could have been taken by those authorities.

In support of his contention the learned counsel for the appellants drew our attention to the notifications under which the Corporation was established and the services of the appellants were lent to the corporation. He

B also drew our attention to the Uttar Pradesh Fundamental Rules. It is,

hov.1cver, not necessary to discuss those notifications or the rules as it is not disputed now before us that the appellants even after their services were lent to the Corporation continued to be the Government servants.

We may, however, refer to Rule 9(7-B) which defines Government servant for the purposes of those rules to mean a person appointed to a civil post C or a civiJ service under the State Government in India, and serving in connection with the affairs of the U ttar Pradesh, whose conditions of service have been or may be prescribed by the Governor under Section 241 (2)(b) of the Act, as it has some bearing on one of the submissions made by the learned counsel for the appellants. It is also not in dispute D that as the appellants \Vere Government servants even \vhile serving under the Corporation they were entitled to the protection of Article 311 of the Constitution. Like the appellants the officers, whose actions/orders have been challenged, have/had also continued as Government servants even though they have/had been on deputation with the Corporation. Realising the difficulty in describing them as officers of the Corporation the learned E counsel for the appellants submitted that under Rule 9(7-B) a person can be said to be a Government servant only if he is serving in connection with the affairs of the Uttar Pradesh and as the said officers, at the relevant time, \vere serving in the Corporation which is an independent legal entity it cannot be said that they were serving in connection with the affairs of F the Uttar Pradesh. Thus, they were not the Government servants when disciplinary action was taken by them against the appellants and, therefore, the impugned actions taken r orders passed by them must be regarded as invalid and illegal. In our opinion, there is no substance in this contention. In the first place the definition of the term !!Government Servant" is for the purposes of the said rules and, therefore, not relevant for the G purpose of Article 311 of the Constitution. Again a Government servant remains a Government servant even \Vhen he is sent on deputation to foreign service and therefore the definition of the term Government servant \vill not have the same meaning in the context of a Governn1ent servant sent on deputation. But the learned counsel for the appellants drew our H attention to the decision of this Court in S.S. Dhanoa v. Municipal Car-

JAIJAIRAM v. U.P.STATERD.TPT.[NANAVATI, J.] 419

poration, Delhi [1981] 3 SCC 431 wherein a Joint Commissioner in the Ministry of Agriculture whose services were placed at the diposal of the Corporation for his appointment as a General Manager of Super Bazar was not considered as a person employed in connection with the affairs of

the Union. In that case the Court was concerned with the question as to whether such a person can be said to be a 'public servant' within the meaning of clause Twelfth (b) of Section 21 of the Indian Penal Code and was entitled to the protection of Section 197 of the Code of Criminal Procedure, 1973. In that context it was observed by this Court that "Legally speaking, the Super Bazaars arc owned and managed by the Society and not by the Central Government and, therefore, the appellant was not employed in connection with the affairs of the Union within the meaning of Section 197 of the Code of Criminal Procedure, 1.973." This Court pointed out that the Joint Commissioner who was deputed to work as a General Manager of Super Bazar did not answer any of the descriptions of a 'public servant' mentioned in Section 21. of the l.P.C. during his period

of deputation and therefore was not entitled to the protection of Section D 197 of Code of Criminal Procedure. This decision, therefore, docs not support the contention raised by the learned counsel for the appellants. As we are of the view that the officers, who had taken the impugned disciplinary actions against the appellants, \Vere the Government servants at the time \Vhen the said actions \Vere taken, the decision in 161.shna Ku111ar v.

Divisional Assistant Elect1ical Engineer and Others, [1979] 4 SCC 289 is also E of no help to the appellants.

It was next contented that the officers who had taken action against the appellants had no power to make appointments in Government service or on civil posts while they were on deputation with the Corporation and, F therefore, they could not have taken any action against the appellants in view of the protection afforded by Article 311. It was submitted that the authority contemplated by Article 311 is the authority which should have power to appoint a person on a civil post under the Union or a State, as the case may be. We do not find any substance in this contention also.

Article 311 gives protection to a member of a civil service of the Union or G an all-India service or a civil service of a State or to a person holding a civil post under the Union or a State against disn1issal or removal by an authority subordinate to that by which he was appointed. Article 311 does not provide that a member of a civil service or a person holding a civil post either under the Union or a State cannot be dismissed or removed by an H

A authority except the appointing authority. There is no requirement that the authority which takes disciplinary action must. continue to have the power of making appointment to the civil service or on a civil post under the Union or a State. It can be any other authority so long as it is not subordinate in rank or grade to the authority by which the delinquent B Government servant was appointed. That is the only requirement of Article 311 and we cannot read anything more into it. In State of U.P. v. Ram Naresh Lal, [1970] 3 SCC 173 this Court has in clear terms held that there is nothing in the Constitution which debars a Government from conferring powers on an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appoint- C ing officer or authority.

Since the only question before the full Bench of the High Court was whether the officers who had taken such actions were competent to do so in view of the protection afforded by Article 311 of the Constitution and D as that is the only question which we have to decide it is not necessary to deal \vith the decision of this Court in Managei; Mis. Pyarchand Kesmimal Pomval Bidi Facto1y v. Omkar Laxman Thange, [1969] 2 SCR 272 wherein it has been held that the right of dismissal vests with the employer even though the employer might have lent their services to the third party, as in spite of such arrangement he continues to be in the employment of the E employer. It may be stated that that was a case of private employment. It is also not necessary to deal with the decision of this Court in Marathwada University v. Seshrao Ba/want Rao Chavan, [1989] 3 SCC 132 as we are of the opinion that the impugned disciplinary actions and the judgment of the High Court can be sustained without reference to Section 34 of the Road F Transport Corporation Act, 1950 which empowers the State Government to give directions to a Corporation established under the Act, inter alia,

\Vith respect to recruitment and conditions of service of the employees of the corporation.

As we do not find any substance in any of the contentions raised on G behalf of the appellants this appeal fails and is dismissed. No order as to

costs.

R.P.

Appeal dismissed.