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Shadaksharappa (G.) Vs. State of Mysore (by Its Chief Secretary, Vidhana Soudha, Bangalore) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2113 of 1964
Judge
Reported inILR1967KAR988; (1970)ILLJ171Kant
ActsConstitution of India - Articles 226, 227, 311 and 311(1); Road Transport Corporations Act, 1950 - Sections 45
AppellantShadaksharappa (G.)
RespondentState of Mysore (by Its Chief Secretary, Vidhana Soudha, Bangalore) and ors.
Excerpt:
.....society. the proposal to lease a sugar factory is a development programme undertaken by the state government keeping in view the state of affairs of the sugar factory and the society is bound to comply with the direction issued under section 30-b of the act. even if the general body of the co-operative society has not passed a resolution to lease the sugar factory the same can be done by the state government under section 30-b of the act-hence, the direction issued by the state government is in accordance with section 30-b of the act and the same is justified. - 311 of the constitution of india, strong reliance was placed by sri k. there are further observations (not reported) in the said decision which are as follows :what is to be considered is, when the government took over..........the government of mysore. under the provisions of the road transport corporations act, 1950, the mysore state road transport corporation (hereinafter called the corporation) came into existence with effect from 1 august, 1961. the petitioner by a notice issued by the government of mysore dated 23 june, 1961 was given an option to enter the service of the corporation or retire from service under government, as, with the establishment of the corporation, the post held by the petitioner would be abolished. the petitioner exercised his option and from 1 october, 1961 he became an employee of the corporation. 3. in the affidavit filed in support of the petition, the petitioner does not say which officer of the company appointed him, but he merely states that he was appointed by the.....
Judgment:

Gopivallabha Ayyangar, J.

1. This is a petition filed under Arts. 226 and 227 of the Constitution of India by the petitioner seeking the quashing of the show-cause notice issued by respondent 3 marked Ex. A dated 1/3 December, 1964 and bearing MST/ BTS/TRF/DFL/D4 : 479/3833.

2. The petitioner is a conductor of the erstwhile Bangalore Transport Company, Ltd. He appears to have been appointed prior to 1 October, 1956 when the State Government took over the entire undertaking of the Bangalore Transport Company, Ltd., under the provisions of Mysore Act 8 of 1956 which came into force on 27 September, 1956. By virtue of this Act all persons employed by that company and still employed immediately before 1 October, 1956, became as from that date, the employees of the Government of Mysore. Under the provisions of the Road Transport Corporations Act, 1950, the Mysore State Road Transport Corporation (hereinafter called the Corporation) came into existence with effect from 1 August, 1961. The petitioner by a notice issued by the Government of Mysore dated 23 June, 1961 was given an option to enter the service of the Corporation or retire from service under Government, as, with the establishment of the Corporation, the post held by the petitioner would be abolished. The petitioner exercised his option and from 1 October, 1961 he became an employee of the Corporation.

3. In the affidavit filed in support of the petition, the petitioner does not say which officer of the company appointed him, but he merely states that he was appointed by the Bangalore Transport Company prior to 1 October, 1956. The counsel appearing for respondent 2 who is the General Manager of the Corporation stated that the petitioner was appointed on 26 September, 1956 by the Secretary of the Bangalore Transport Company and after the transfer of the same to the Mysore Government Road Transport Department the petitioner was a Government servant and after the undertaking became one with the Mysore State Road Transport Corporation, the petitioner became an employee of the Corporation. Respondent 3's submission that he was appointed by the Secretary of the Bangalore Transport Company, is not denied by the petitioner.

4. As can be gathered from the affidavit filed by the petitioner, the disciplinary action has been taken against the petitioner after enquiry and he has been served with the impugned notice Ex. A dated 1/3 December, 1964 by the Deputy General Manager calling upon the petitioner to show cause within seven days of the receipt of the said notice as to why the punishment proposed, namely, dismissal, should not be imposed on him. It is the validity of this show-cause notice that is challenged by the petitioner in this writ petition.

5. His only contention in this case is that the Deputy General Manager who has styled himself as the competent authority is, in fact, not the competent authority constitutionally and legally empowered to issue the notice. It is submitted that it is only the General Manager of the Corporation who is competent to issue the notice, as, he is the appointing authority and it is he alone that can dismiss the employee; the Deputy General Manager who is an authority subordinate to the General Manager cannot issue the show-cause notice. The basis of this contention is that the principle underlying Art. 311 of the Constitution of India applies to the employees of the Corporation also.

6. In view of these submission two questions arise for consideration. The first is whether Art. 311 or the principle underlying it applies to the petitioner. It is not contended by the petitioner's counsel that Art. 311 in terms apply to the petitioner. So it is to be considered as to whether the petitioner can seek the benefit of the principles underlying Art 311. It is undisputed that on the date of the chargesheet and the date on which the show-cause notice was issued, the petitioner was not a person holding a civil post under the State. He was only an employee of the Corporation. In support of his contention that the petitioner is entitled to the benefit of what is referred to as the principle underlying Art. 311 of the Constitution of India, strong reliance was placed by Sri K. Jagannatha Shetti, the learned counsel for the petitioner, on the observations made by this Court in Hutche Gowda v. State of Mysore [A.I.R. 1963 Mys. 66 at 76].

7. In that case, the validity of certain orders passed against the employees by an officer of the Mysore Government Road Transport Department in disciplinary proceedings instituted against them came up for consideration, and the competency of the officer who issued the orders was questioned. The orders were contended to be invalid in the light of Art. 311(1) of the Constitution, the argument being that the officer who purported to remove or dismiss the employee appointed by the General Manager or other authority, was subordinate in rank to the General Manager. The relevant observations on which reliance is placed are on p. 76. The observations are that in view of Art. 311(1) of the Constitution, the Deputy Manager cannot remove or dismiss any employee appointed by the General Manager or other authority to whom he is subordinate in rank.

There are further observations (not reported) in the said decision which are as follows :

'What is to be considered is, when the Government took over the company and amalgamated its business with its own Road Transport Department, who was the authority in that department who had power to appoint persons like the petitioners It is conceded that at that time, i.e., on 1 October, 1956, the only officer having such power of appointment was the General Managers. Therefore, these petitioners for purposes of Art. 311(1) must be treated in the same manner as persons appointed by the General Manager of the Mysore Government Road Transport Department ...'

8. The petitioner cannot derive any help from the above-referred observations in this decision for the reason that the employees concerned in that case were at the relevant time employees of the Mysore Government Road Transport Department which was a department of the State Government, and, therefore, the employees were civil servants holding civil posts under the State and therefore came within the purview of Art. 311 of the Constitution of India. The aforesaid observations on which the petitioner relies should be read with reference to the facts of the case in which they are made. If so done, the aforesaid decision cannot be of any assistance to the petitioner. The petitioner in this case is not one who holds a civil post under the State. He is only an employee of the Corporation.

9. The respondent's counsel placed reliance on the decision of this Court in Writ Petition No. 2 of 1962 (Mysore) in which the question as to whether Art. 311 of the Constitution or the principle underlying it could apply to an employee of the Corporation came up for consideration. This Court held that Art. 311 or the principle underlying it could not apply. The same view has been taken in another petition, viz., Writ Petition No. 755 of 1961 (Mysore) also.

10. We may further point out that the petitioner in Writ Petition No. 755 of 1961 invoked the terms of the notice issued on 23 June, 1961 giving option to the employees of the Transport Department either to serve the Corporation or to retire from service, to support the contention that the employees of the Corporation stood in the same position as those in the civil service of the State. The notice stated that the benefits regarding seniority, leave and other conditions of service that are available to the employees immediately prior to the date of the transfer will be continued. The above contention was also considered by this Court and it was held that this cannot be sustained.

11. It further observed that if Art. 311 of the Constitution is inapplicable to the petitioners for the reason that when he became an employees of the Corporation he was no longer a civil servant of the State, it is not easy to understand how the protection of the principle incorporated in that article could nevertheless be claimed. The conditions of service applicable to the petitioner's post after he became a servant of the Corporation are those which are incorporated in the regulations which may be made under S. 45 of the Corporations Act and the standing orders of the Corporation subject, of course, to the guarantee referred to in the notice dated 23 June, 1961.

12. In this case it is pointed out by the counsel for the Corporation that under the standing orders as they are at the relevant time the Deputy General Manager is the authority empowered to take disciplinary action against the employees. This is not disputed. As mentioned already, what is contended is that the Deputy General Manager is not entitled to issue the notice because he was not the authority entitled to appoint the petitioner. This contention cannot be sustained as the petitioner is not a civil servant of the State. In these circumstances, we are unable to accept the contentions of the petitioner.

13. In the result, this writ petition is dismissed. Each party shall bear his own costs.


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