Skip to content


Mundevadi (V.R.) Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2103 of 1968
Judge
Reported inILR1968KAR1054; (1969)IILLJ460Kant; (1968)2MysLJ541
ActsStates Reorganization Act; Electricity Supply Act, 1948; Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 - Rules 2, 3, 10, 16 and 98; Constitution of India - Article 309
AppellantMundevadi (V.R.)
RespondentState of Mysore
Excerpt:
.....of government - allegedly as petitioner was employee of board and not of government there was no power in government to suspend him - whether there was relationship of master and servant between government and petitioner when he was placed under suspension - when petitioner worked as executive engineer of state he was completely under control of government in every relevant sphere - petitioner received his pay from government and performance of his duties as executive engineer was fully under control and direction of government - government became temporary masters of petitioner and petitioner became their temporary servant - petitioner did clothed government with power to make order of suspension independently of statutory power conferred by rule 10 - writ petition dismissed. -..........part is an inclusive definition which says that a person who has been temporarily lent by the state government to another authority and one whose services have been temporarily placed at the disposal of the government of mysore by another authority is also a government servant.8. when the board transferred the petitioner to the service of the state, what it did was to temporarily place his service of the disposal of government. there is no merit in the assertion to the contrary. although the board did not say so in so many words, there was a deputation of the petitioner to a department of the state, and, if as urged on his behalf, his conditions of service formulated by the board entitled him to certain advantages, such as deputation allowance and the like, that claim could be made.....
Judgment:

Somnath Ayyar, J.

1. The petitioner, Mundevadi was an Assistant Engineer in the State of Bombay before he wa allotted to the new State of Mysore under the provisions of the States Reorganization Act. On 30 September 1957, when the Mysore State Electricity Board, which will hereafter be referred to in this judgment as the Board, was constituted under the provisions of the Electricity Supply Act, 1948; he became an employee of that Board, and, as declared by Government by their notification of 20/23 September, 1957, he ceased to be a Government servant with effect that date.

2. But, on 3 March 1966, the Board transferred the petitioner as an Executive Engineer of the Public Works Department of the State, and, by an order made by Government which appeared in the gazette of 10 March 1966, he was posted as such Executive Engineer. He took charge of that post and continued in it until 10 July 1968, when Government placed him under suspension. That order of suspension was also published in the gazette, and, the petitioner asks us to quash the order of suspension and its publication in the gazette. In an application which the petitioner subsequently presented, he asks us also to declare rules 2(d) and 16 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, which will be referred to as the C.C.A. Rules, as invalid. We shall refer to the provisions of those rules at the appropriate stage.

3. The main ground on which the impugned order of suspension is impeached is that since the petitioner was an employee of the Board and not of Government, there was no power in Government to suspend him.

4. It is seen from the order of suspension that it was not made under any particular statutory provisions, but, on behalf of Government, it was maintained that the source of the power to make the order of suspension was either the power created by rule 10 of the C.C.A. Rules or the general power of a master to place his servant under suspension.

5. Rule 10 of the C.C.A. Rules authorizes the suspension of a Government servant where a disciplinary proceeding against him is contemplated or is pending, or where a case against him in respect of any criminal offence is under investigation or trial.

6. It is not disputed that a disciplinary proceeding against the petitioner was under contemplation when he was suspended. But it was contended for the petitioner that, since he was not a Government servant but was an employee of the Board, that rule had no application.

7. The expression 'Government servant' occurring in rule 10 is defined by rule 2(d) and that definition consists of more than one part. The main part of the definition says that a person who is a member of the Civil Services of the State or who holds a civil post in connexion with the affairs of the State is a Government servant. The other part is an inclusive definition which says that a person who has been temporarily lent by the State Government to another authority and one whose services have been temporarily placed at the disposal of the Government of Mysore by another authority is also a Government servant.

8. When the Board transferred the petitioner to the service of the State, what it did was to temporarily place his service of the disposal of Government. There is no merit in the assertion to the contrary. Although the Board did not say so in so many words, there was a deputation of the petitioner to a department of the State, and, if as urged on his behalf, his conditions of service formulated by the Board entitled him to certain advantages, such as deputation allowance and the like, that claim could be made in the proper way and no investigation into it could be made in this writ petition.

9. But it was said that that part of rule 2(d) which impresses upon an employee borrowed by Government the status of a Government servant, was invalid, since the Governor had no competence to make any such rule in respect of such borrowed employees under the proviso to Art. 309 of the Constitution. It was urged that the limited power bestowed on the Governor by that proviso is to make a rule to regulate the conditions of service of a person appointed to the Civil Services of the State or to a civil post in connexion with the affairs of the State and did not include the power to regulate the conditions of service of a person like the petitioner who was not so appointed but was merely borrowed.

10. The acceptance of this argument would place such borrowed employee outside the reach of the Governor's rule-making power, and, his inclusion in the definition of a Government servant which invite a reproach of unconstiutionality, and make unavailable the power of suspension under rule 10. If the source of the power in the exercise of which the C.C.A. Rules were made by the Governor is the proviso to Art. 309 of the Constitution, it should be clear that the only persons whose service conditions are governed by those rules are those who are appointed to the civil service of the State or to a civil post in connexion with the affairs of the State, and so, it is to them that the main definition of a Government servant which rule 2(d) contains refers. But the preamble to the rules declares that the C.C.A. Rules were made by the Governor in exercise of the power conferred by the proviso to Art. 309 of the Constitution and in the exercise of all other powers enabling him in that behalf, and, an argument for Government was constructed on the second part of the preamble that even if the power to incorporate the inclusive definition in rule 2(d) did not from the proviso to Art. 309, it emanated from the general executive power of the State.

11. On behalf of Government, it was maintained that the petitioner was in fact appointed to a civil post in connexion with the affairs of the State when, on his transfer by the Board, he was posted as an Executive Engineer in the State's Department of Public Works. We were also asked to say that when a person whose services are temporarily placed at the disposal of Government by another authority is posted to a civil post under the State, here is again an appointment to that civil post.

12. The acceptance of either of these submissions would take the person so appointed into the main definition, and, the constitutionality of the inclusive definition would not present itself for discussion, and his service conditions would stand regulated by the C.C.A. Rules, made under the proviso to Art. 309 of the Constitution and his suspension under rule 10 becomes unexceptionable.

13. The view pressed on us for the petitioner was that the petitioner was at no stage appointed to a civil post under the State.

14. We are of the opinion that it is not necessary in this case for us to embark on a discussion of the question whether there was at any stage an appointment of the petitioner to a civil post under the State. The question which we should decide is whether the order of suspension which was not made under any specific statutory provision was within the competence of Government. If rule 10 is not the only source of the power of suspension and if an independent power to make an order of suspension resided in Government, the question whether the petitioner was appointed to a civil post becomes academic and so does not arise.

15. In Balvantrai Ratilal Patel v. State of Maharashtra [1968 - II L.L.J. 700], the Supreme Court made the enunciation that the power to suspend an employee does not necessarily flow from any statutory provision but that it is an ordinary incident of the relationship of master and servant. It was further explained that such suspension does not suspend the employment and is no more than a direction by the master to the servant which the servant is bound to obey that he shall not perform the duties entrusted to him.

16. In that context, the Supreme Court said thus at p. 703 :

'... It is equally well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. In this connexion it is important to notice the distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the letter sense is always an implied term in every contract of service. When an officer is suspended in this sense, it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed, he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey.'

17. The authoritative statement of the law precludes us from discussing the cases cited by Sri Ayyangar in support of his postulate that an order of suspension obliterates the relationship of master and servant even if there be one.

18. So, the question is whether there was the relationship of master and servant between Government and the petitioner when he was placed under suspension. If there was, there was the general and independent power in Government to suspend the petitioner even if such suspension was not possible under rule 10 of the C.C.A. Rules.

19. The proposition that the Board was the only master of the petitioner and that Government did not become his masters even when he became an Executive Engineer of the State is in our opinion unacceptable.

20. There can be, in an appropriate case, a plurality of masters as there would be when a master places the services of his servant at the disposal of another, either on a particular occasion or during a particular period, and, the temporary employer assumes control over the lent servant or the lent servant submits himself to his direction and control. The master how lends the servant would be his general master and the borrower would become his special employer. The servant would then become provision the servant of the borrower.

21. There is abundant support for this view. In 25 Halsbury's Laws of England, 3rd Edn., p. 505, Para. 968; the law on that matter is thus stated :

'968. Duty of temporary employer towards servant. - If the general master has parted for the time being with his rights of control as master and those rights have been assumed by the temporary employer, the latter has all the responsibilities attaching to the relationship of master and servant, for example, towards the servant.'

22. The exposition made in 35 American Jurisprudence, P. 802, Para. 378, is :

'There is no doubt that the general servant of one person may, within the purview of the fellow-servant doctrine, become the employee of another by submitting himself to the control and direction of the other ... It makes no difference whether the proprietor to whom a servant is lent actually exercises his right of control and direction as to the details of the work, or simply sets the servant to do what is necessary, trusting to his expert skill for the result.'

23. In Mersey Dock and Harbour Board v. Gokgins & Griffith (Liverpool), Ltd. [L.R. 1947 A.C. 1] there was a discussion of the responsibility for the negligence of a lent servant, and Lord Simon formulated the test which he thought should be applied in that situation thus :

'I would prefer to make the test turn on where the authority lies to direct, or to delegate to, the workman, the manner in which the vehicle is driven. It is this authority which determines who is the workman's superior'.'

24. Lord Porter said :

'Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorized to do this, will, as a rule, be the person liable for the employee's negligence. But it is not enough that the task to be performed should be under his control; he must also control the method of performing it. It is true that in must cases no order as to how a job should be done are given or required. The man is left to do his own work in his own way. But the ultimate question is not what specific orders, or whether any specific orders, were given, but who is entitled to given the orders as to how the work should be done.'

25. There was an application of the same principle in subsequent cases.

See Garrade v. A. E. Southey & Co. and Standard Telephones and Cables, Ltd. [L.R. (1952) 2 Q.B. 174], O'Reilly v. Imperial Chemical Industries, Ltd. [(1955) 3 All E.R. 382] and Gibbs v. United Steel Company, Ltd. [(1957) 2 All E.R. 110].

26. In Guru Govinda Basu v. Sankari Prasad Ghosh : [1964]4SCR311 , it was explained by the Supreme Court that a multitude of factors should be taken into consideration in the determination of the question whether a person became the holder of an office of profit under Government, and, that although not all those factors need co-exist to produced an office of profit, the relative importance of each one of them must depend upon the circumstances of each case, and, the enunciation emphasizes the importance of the power to control and give directions as to the manner in which the duties of the office are to be performed.

27. So, if there was an assumption by Government of control over the petitioner and of the power to given directions about the performance of his duties when the became an Executive Engineer of the State, or, the petitioner submitted himself to such control and directions, Government became his special employers although the Board continued to be his general master. It is irrefutable that during a period of over twenty-seven months when the petitioner worked as an Executive Engineer of the State, he was completely under the control of Government in every relevant sphere. He received his pay from Government and the performance of his duties as an Executive Engineer was fully under control and direction of Government. Those duties had to be performed by him in the same way in which every other Executive Engineer of the State had to, and, governmental control in that sphere to which the petitioner clearly submitted excludes the assertion that he did not become even a temporary employee of Government. In our opinion, he did, and the fact that Government became the temporary masters of the petitioner and the petitioner became their temporary servant, clothed Government with the power to make an order of suspension quite independently of the statutory power conferred by rule 10 of the C.C.A. Rules.

28. There is nothing in rule 16 of the C.C.A. Rules which can transport us to a contrary conclusion. That rule which regulates the imposition of punishments on borrowed officers says that while minor punishments enumerated in Cls (i) to (iv) of rule 8 could be imposed in consultation with the lending authority in a case where any of the major punishments referred to in Cls. (v) to (vii) of that rule has to be imposed, the lent servant should be placed at the disposal of the lending authority. It is difficult to understand how a provision to that effect can have any relevance to the question whether in a given case a borrowed servant has or has not become a temporary employee of Government. Rule 16 operates only at the stage of the imposition of punishment and that is so, far from negativing the concept of employment, reinforces it since that stage as to be preceded by an enquiry in the disciplinary proceeding.

29. But it was said that even so, there was a cessation of the special relationship of master and servant between Government and the petitioner sometime before the impugned order of suspension was made. In support of this submission, dependence was placed on an order of transfer made by the Board on 10 June, 1968, by which he was transferred from the Department of Public Works as an Executive Engineer of the Board at Sirsi.

30. We do not accept this argument. The transfer made by the Board could not result in a cessation of the petitioner's temporary employment under Government until the petitioner disengaged himself from his temporary employment in manner directed by the order of transfer. That direction was that he should get himself relieved by handing over charge to an Assistant Engineer, and, it is admitted that he did not get himself so relieved, and that, when he was placed under suspension, he had not yet handed over charge to that Assistant Engineer and so, was still a temporary employee of Government.

31. The complaint that the petitioner was not allowed by Government to extricate himself from Government service or that he was prevented from getting himself relieved is quite unfounded. Nor is there any allegation about it in the petitioner's affidavit.

32. In the view that we take, the challenge to the constitutionality of the inclusive definition in rule 2(d) or of rule 16 of the Classification, Control and Appeal Rules does not survive for determination and we say nothing about it.

33. The enunciation made by the Supreme Court in Patel case [1968 - II L.L.J. 700] (vide supra) that an order of suspension which does not suspend employment but is no more than a direction which the servant is bound to implement that he shall not perform his duties, is a complete answer to the argument pressed on us at one stage that the order of suspension by its own force obliterated the temporary employment of the petitioner. That employment continued until it came to an end by a permissible process.

34. What was next assailed was that part of the impugned order by which there was a direction that the petitioner should be paid only a subsistence allowance. Although the impugned order does not state the statutory provision under which that direction was made, it is obvious that it was made in the exercise of the power bestowed by rule 98 of the Mysore Civil Services Rules. The argument constructed was that that rules has application only to case where the suspended employee is a Government servant and that the petitioner was not. It was contended that even the more comprehensive definition which rule 2(d) of the Classification, Control and Appeal Rules contains, cannot assist the exercise of power under rule 98 of the Civil Services Rules since the definition in the Classification, Control and Appeal Rules is a definition only for those rules and not one for the Civil Services Rules which do not themselves define a Government servant.

35. We do not think we should embark upon an investigation of this aspect of the matter for reasons to be presently stated. The petitioner who asks us to quash the impugned orders, one of which contains a direction that he should be paid a subsistence allowance, does not ask us for a direction or order in the nature of a writ of mandamus that he should be paid his full salary during the period he is under suspension, and, so if we quash the direction for the payment of subsistence allowance, the only consequence emanating from our order would be that the petitioner could not claim even the subsistence allowance, and, the question whether he would be entitled to claim the whole of his salary or not would be debatable. The claim to the whole of the salary would be irresistible only if we make a direction for its payment, and, that direction we cannot make when there is no prayer for its issue. Further, the petitioner does not state that there was a demand for its payment and its refusal.

36. In the view that we take, it becomes unnecessary to discuss rule 3(d) of the Classification, Control and Appeal Rules which it was said excluded from the operation of those rules a person whose appointment is governed by a contract or by a special law. Our conclusion in this case which rests on the recognition of an independent power in Government to make an order of suspension and our elucidation as to the effect of such suspension, render inconsequential the argument that the petitioner's service under Government was regulated by a contract or that his service under the Board was governed by the special regulations made by it. Moreover, the special law to which rule 3(d) refers is a law which governs employment under Government and the Board's regulations which do not and cannot control or regulate the petitioner's temporary employment under Government, can have no relevance to its provisions.

37. We dismiss this writ petition. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //