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K.V.R. Shetty Vs. Secretary to Government, Home Department and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 12001/78
Judge
Reported inILR1979KAR2280; 1979(2)KarLJ429; (1980)ILLJ265Kant
ActsKarnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971 - Regulation 2-A; Constitution of India - Article 226; Road Transport Corporation Act, 1950 - Sections 3, 34(1), 34(2), 45 and 45(2); Industrial Employment (Standing Orders) Act, 1946 - Sections 13B; Fundamental and Supplementary Rules; Civil Services (Classification, Control and Appeal) Rules; Civil Service (Temporary Service) Rules; Revised Leave Rules; Civil Service Regulations; Civilians in Defence Service (Classification, Control and Appeal) Rules; Indian Railway Establishment Code; Mysore State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971
AppellantK.V.R. Shetty
RespondentSecretary to Government, Home Department and ors.
Excerpt:
.....they submitted that in the electricity board case the supreme court called for the records of the state government and after perusal thereof were satisfied that there had been an application of mind by the state government before the notification under s. 1896, dated the 27th and 28th july, 1971, approved the 'mysore state road transport corporation servants (conduct and discipline) regulations, 1971' and have recommended them to government for approval. 14 of the constitution because they do not apply to a casual or 'badli' employee who is still governed by the certified standing orders which give better rights than the impugned regulations. in other words, it was contended that giving better rights to a casual or 'badli' employee than to a permanent employee, is discriminatory. as the..........regulations, 1971 (in short, 'regulations') made by the corporation with the sanction of the state government and published in the karnataka gazette dated 8-4-1972 by notification no. hd 109 tre 71 dated 15-3-1972. the petitioner is an employee of the corporation. for a certain alleged misconduct, by an order dated 18-11-76, he was kept under suspension pending enquiry into the alleged misconduct. the order further stated that during the period of suspension he should be paid a subsistence allowance of an amount equal to fifty per cent of his gross pay or wages. the order was issued by the competent authority under the regulations, i.e., the deputy general manager respondent no. 3). thereafter, by a notice dated 13/17-10-1978, the enquiring authority, acting under the relevant.....
Judgment:
ORDER

Bopanna, J.

1. This is the third round of litigation between the management and employees of the Karnataka State Road Transport Corporation (in short 'Corporation') touching the standing orders for taking disciplinary proceedings against the employees of the Corporation. The first case decided by the Supreme Court is reported in Mysore State Road Transport Corporation v. Gopinath Gundachar, [1968-II L.L.J. 144], and the second case is reported in General Manager, Mysore State Road Transport Corporation v. Devaraj Urs, [1976-II L.L.J. 306]. Both these cases related to the standing orders touching the service conditions of the employees of the Corporation more, specifically the standing orders applicable to disciplinary proceedings against the employees for misconduct.

2. In this writ petition, the petitioner has challenged the validity of Part-III if the Regulations known as the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971 (in short, 'Regulations') made by the Corporation with the sanction of the State Government and published in the Karnataka Gazette dated 8-4-1972 by notification No. HD 109 TRE 71 dated 15-3-1972. The petitioner is an employee of the Corporation. For a certain alleged misconduct, by an order dated 18-11-76, he was kept under suspension pending enquiry into the alleged misconduct. The order further stated that during the period of suspension he should be paid a subsistence allowance of an amount equal to fifty per cent of his gross pay or wages. The order was issued by the competent authority under the Regulations, i.e., the Deputy General Manager respondent No. 3). Thereafter, by a notice dated 13/17-10-1978, the enquiring authority, acting under the relevant Regulations, intimated the final date of hearing and enclosed a copy of the proceedings of the earlier date on which the petitioner had remained absent. On receipt of this notice the petitioner has approached this Court under Art. 226 of the Constitution of India, praying inter alia, for issue of a writ in the nature of certiorari quashing the provisions of Part-III of the Regulations under which the enquiry was sought to be held against him for the alleged misconduct and for quashing the entire proceedings instituted against him by the Deputy General Manager, the third respondent, under Ext. C, i.e., the chargesheet. At the time of hearing, the petitioner filed an application for urging certain additional grounds which are as follows :

15-A.. The notification No. HD 109 TRE 71 dated 15th March, 1972 issued by the Government was under the Road Transport Corporation Act only and the petitioner learns reliably that S. 13B of the Industrial Employment (Standing Orders) Act was not at all in the contemplation of the Government at the time of issue of the said Notification. The above Notification, it may please be seen, has been issued by the Home Department of the I Respondent Government and not by the concerned Labour Department when S. 13B was not at all in the contemplation of the I Respondent Government. When they issued the above said Notification, S. 13B cannot be read into the Notification at all. A Notification under S. 13B was, therefore, absolutely necessary to validate the above said Regulations.

15-B. It is further submitted that even while exercising its power in issuing the order dated 15-3-72, the I respondent, has not at all applied its mind to the facts and circumstances as well as the contents and implications of the impugned Regulations. Further, it, is submitted that the I respondent Government has mechanically and without application of mind, has merely accorded sanction to the Regulation.

15-C. Regulation 2-A makes a hostile discrimination between employees and employees and vest an unguided power in the II respondent-Corporation in the, matter of selection of employees for special treatment by agreement. The above provision seeks to keep away certain types of employees from the operation of the Regulations and thus has the effect of different conditions of service to different groups of employees. This hostile discrimination offends the provisions of Art. 14 of the Constitution of India rendering the Regulations invalid.'

Presumably these additional grounds have been taken up by the petitioner in view of the decision of the Supreme Court in U. P. State Electricity Board v. Hari Shankar Jain, A.I.R. 1978 S.C. 65 (in short, 'Electricity Board case')

3. A few facts culminating in the promulgation of the Regulation will be setout for a proper appreciation of the contentions of the petitioner. The Corporation was created under the provisions of the Road Transport Corporation Act, 1950, (in short the Act). Prior to the formation of the Corporation the nationalised transport service in the former State of Mysore was directly run by the Department of the State Government called the Mysore Government Road Transport Department (M.G.R.T.D.). At that time, in and around the City of Bangalore, buses for commuters were operated by a company known as the Bangalore Transport Company. After the nationalisation of this Company on and from 1-10-1956, the management of its erstwhile business was placed under a separate unit of M.G.R.T.D. known as Bangalore Transport Service (B.T.S.).

4. The M.G.R.T.D. had a set of certified standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (in short, the Standing Orders Act). Likewise, the B.T.S. had a set of certified standing orders. On reorganisation of States on 1-11-56 the units of nationalised transport services in the integrating areas came under the control of M.G.R.T.D. and were functioning as Divisions of the M.G.R.T.D. In 1961 the entire transport business was taken over by the Corporation constituted under S. 3 of the Act. The Corporation consisted of various Divisions and the petitioner was an employee of the Bangalore Division. Prior to the formation of the Corporation, the M.G.R.T.D. which operated the nationalised load transport service in the State, had adopted clause XIII of the Standing Orders which were applicable to the Bangalore Division for taking disciplinary proceedings against its employees. The said standing order reads as follows :

'No order of fine, suspension, discharge or dismissal shall be executed unless so ordered by the Deputy General Manager, Bangalore Division. The Deputy General Manager may order such enquiry as he thinks fit before passing orders provided that in cases where punishment of dismissal is involved, the Deputy General Manager shall hold an independent enquiry and pass orders.'

On 1-8-61, in exercise of the powers conferred under S. 34(1) of the Act, the State Government gave directions to the Corporation in relation to recruitment, conditions of service and wages to be paid to the employees of the M.G.R.T.D. who had opted to serve under the Corporation. Clause (2) of the said direction reads as follows :

In respect of all disciplinary proceedings or appeals arising therefrom pending immediately before 1st August, 1961, the Corporation or such officer or officers as may be designated by it shall be the disciplinary authority competent to pass appropriate orders in accordance with the relevant rules applicable to them before the transfer.'

'On the same day, the Corporation passed a resolution to the following effect :

'In view of the fact that considerable time and attention would be required to scrutinise the various rules, regulations procedures, precedents and conventions, it is hereby resolved that all rules, regulations, procedures, precedents and conventions - in force as on 31-7-1961 in the Mysore Government Road Transport Department be continued by the Corporation until further orders.'

5. In Devaraj Urs' case (supra) the, Supreme Court found that for the purpose of dismissal of an employee, Standing Order 13 was kept alive and was applicable to the employees not only of Bangalore Division but also of all other Divisions which had no separate standing order or rule in regard to that matter. Accordingly, the Supreme Court held that until regulations were made under the Act, Standing Order No. XIII continued to apply to the employees of all the Divisions where there was no corresponding standing order or rule in the matter of dismissal or discharge from service.

6. In the light of this background, Standing Order No. XIII which comes into play in the present case also, has to be examined a relation to the impugned Regulations contained in Part-III of the Regulations. Those Regulations were issued under a notification of the State Government dated 15-3-72 and published in the Mysore Gazette dated 8-4-1972.

7. Part-III of the Regulations (filed as annexure to Ext. B) which govern disciplinary proceedings against employees of the Corporation in all the Divisions were impugned on the following grounds :

(1) that the standing orders which were applicable to the employees of the Corporation prior to the coming into force of the Regulations, were certified standing orders and in the light of the pronouncement of the Supreme Court that the Standing Orders Act is a special Act, the Regulations which had been made under the Act which is a general Act, must yield to the standing orders framed under the Standing Orders Act;

(2) that in view of the fact that the Standing Orders Act and the certified standing orders framed thereunder are applicable to the disciplinary action against the employees of the Corporation, the impugned Regulations could not be made in respect of matters covered by the standing orders and that since S. 45 of the Act generally provides for the making of Regulations providing for the conditions of service of the employees of the Corporation, these general provisions must yield to the special provisions of the Standing Orders Act and, therefore, Standing Order No. XIII should prevail over the provisions of Part-III of the Regulations framed under S. 45 of the Act, and

(3) that Regulation No. 39 which repeals the M.G.R.T.D. Standing Orders, etc., in so far as they relate to conduct and disciplinary proceedings and imposition of penalties provided for in the impugned Regulations, is ultra vires of the provisions of the Act.

8. The Corporation, in its statement of objection, pleaded as follows :

(1) The Standing Orders which were applicable to the erstwhile BTS and the M.G.R.T.D. under the Standing Orders Act, stood repealed by the Regulations which came into force on 19-6-1974, by virtue of Regulation No. 39 of the Regulations and, therefore, the petitioner's conditions of service were regulated by the Regulations.

(2) The petitioner had joined service in the B.T.S. as a 'Badli' conductor on 28-10-1966, and subsequently he was selected and appointed as a probationer for two years in the B.T.S. on 23-5-1970 as a conductor. After the extension of the probationary period by one year, he was confirmed on 30-1-1974 with effect from 4-12-1973 conditional upon his being controlled by the Regulations to be framed in respect of his conditions of service.

(3) By notification in Government Order No. HD 29(2) TRC 61 dated 30-9-1961 the employees of the Bangalore Division of the M.G.R.T.D. who had opted to serve under the Corporation in pursuance of the notices issued to them by the Government had been employed by the Corporation subject to such regulations as might be made by it under S. 45(2)(c) of the Act. By subsequent notification published in the Mysore Gazette dated 30-9-61 it was announced that the Corporation would take over the management of the existing B.T.S. of the road transport undertaking of the Govt. of Mysore from 1-10-1961. The notification further envisaged that the members of the staff of the B.T.S. who had offered to serve under the Corpn. with effect from 1-10-61 would be employed by the Corporation subject to such regulations as may be made by it under S. 45 of the Act. Hence the petitioner had accepted the employment in the Corporation subject to his conditions of service being regulated by the regulations to be framed in future and such regulations came into fore from 19-6-1974.

(4) Sections 14(3)(b), 34(1) and (2)(c) of the Act confer power on the Corporation to frame regulations regarding the conditions of appointment and service of its employees. Regulations 39 provides that the erstwhile standing orders of B.T.S. and M.G.R.T.D. are repealed and, therefore, the petitioner having not sought for quashing of Regulation No. 39 in this writ petition, cannot expect any remedy since he has sought for the quashing of the regulations contained in Part-II of the Regulations.

(5) By virtue of S. 13B of the Standing Orders Act, the Regulations framed under S. 45 of the Act had repealed the existing Standing Orders that were applicable to the petitioner.

(6) In case of repugnancy between two statutes, such as the Standing Orders Act and the Act, which invest two public bodies with powers which are consistent with the object of these two enactments the earlier statute must necessarily yield to the subsequent statute. On this principle, it was contended that the power conferred under S. 45 of the Act should prevail over the provisions of the Standing Orders Act and, therefore, the contention of the petitioner that the Standing Order Act being a special Act should prevail over the Regulations framed under the Act, must necessarily fail.

It is not necessary to deal with the various other contentions taken by the Corporation since, in our view, the matter could be decided on the applicability or otherwise of the decision of the Supreme Court in the Electricity Board case (supra) to the present case.

9. Messrs. M. C. Narasimhan and G. B. Raikar, who appear for some of the petitioners and appellants in cases in which similar questions arise, sought for permission to intervene in this case and we permitted them to intervene and to address arguments.

10. Apart from adopting the arguments of Mr. Srinivas, both Mr. Narasimhan and Mr. Raikar submitted that unlike in the Electricity Board case (supra) the notification contemplated under S. 13B of the Standing Orders Act had not been issued in the present case. They submitted that in the Electricity Board case the Supreme Court called for the records of the State Government and after perusal thereof were satisfied that there had been an application of mind by the State Government before the notification under S. 13B was issued whereas in the present case the notification of the State Government dated 15-3-1972 under which the Regulations were brought into force after obtaining approval of the Government, did not disclose that the State Government had in mind S. 13B of the Standing Orders Act. Before we proceed to consider this argument, we shall fast set up S. 13B of the Standing Orders Act and then the notification issued by the State Government in the present case.

11. S. 13B of the Standing Orders Act reads as follows :

'S. 13B. Act not to apply to certain Industrial establishments - Nothing in this Act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control & Appeal) Rules, Civil Service (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.'

12. The notification issued by the State Government (first respondent) reads as follows :

'G.S.R. 153. The Corporation Board of the Mysore State Road Transport Corporation have in their resolution No. 1896, dated the 27th and 28th July, 1971, approved the 'Mysore State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971' and have recommended them to Government for approval. The General Manager, Mysore State Road Transport Corporation in his letter dated 17th January, 1972 referred to above has requested approval of Government for the said regulations.

(2) Under S. 45 of the Road Transport Corporations Act, 1950, (Central Act 64 of 1950), sanction is hereby accorded to the 'Mysore State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971' made by the Corporation.

(3) A copy of the Regulations sanctioned by Government is enclosed to this order.

By order and in the name of the President of India,

V. Bhadraiah,

Under Secry. to Govt., Home Dept.'

13. In the Electricity Board case (supra) the facts on which the Supreme Court held that the Standing Orders Act was a special Act in relation to the U.P. State Electricity (Supply) Act, 1948, may be briefly noted. The two workmen in that case were originally the employees of a private electricity undertaking which was acquired by the U.P. State with effect from 15-12-1964 whereupon the employees of the private undertaking became the employees of the U.P. Electricity Board. Admittedly, the U.P. Electricity Board had no certified standing orders of its own as required by the Standing Orders Act. But by virtue of certain executive orders the Standing Orders applicable to the private undertaking were followed by the Board in regard to the employees of that undertaking. However, in those standing orders, there was no provision as to the age of superannuation though that was one of the matters in respect of which, an employer to whom the Standing Orders Act, applied was bound to make Standing Orders and get them certified. On May 28, 1970, the Governor of U.P. notified under S. 13B of the Standing Orders Act a regulation made by the U.P. State Electricity Board under S. 79(c) of the Electricity (Supply) Act, 1948. That regulation provided, inter aria, that notwithstanding any rule or an order or practice hitherto followed, the date of compulsory retirement of an inferior servant of the Board shall be 60 years.

14. The learned counsel for the petitioner and the intervening counsel contended that because in the Electricity Board case the notification specifically mentioned that it was in pursuance of the provisions of S. 13B of the Standing Orders Act, the Supreme Court held that the regulation made under S. 79(c) of the Electricity (Supply) Act, 1948, fixing the age of retirement of its employees at 58 years was valid, notwithstanding the fact that the certified Standing Orders applicable to the establishment did not provide for the age of superannuation. Though this contention may appear to be plausible, a closer scrutiny of the impugned Regulations would negative the same.

15. The learned Advocate General, who appeared for the State Government (the first respondent), met this argument on the following grounds :

(1) The notification of the State Government dated 15-3-1972 under S. 45 of the Act should be construed as having been made in exercise of the powers conferred by S. 13B of the Standing Orders Act.

(2) S. 79(c) of the Electricity (Supply) Act, 1948, under which the regulations were made by the U.P. Electricity Board determining the age of retirement of its employees at 58 years, did not require the approval of the Government and the Board itself could make such regulations and therefore notification under S. 13B of the Standing Orders Act was necessary for superseding the standing order but in the present case the impugned Regulations were made by the Corporation after obtaining the previous sanction of the State Government under S. 45 of the Act and that while according such sanction the Government notified the impugned Regulations under S. 13B of the Standing Orders Act.

In other words, the contention of the learned Advocate General was that the notification of the State Government dated 15-3-1972 was, in pith and substance, also a notification under S. 13B of the Standing Orders Act and that the absence of express mention of S. 13B in that notification was not material. He maintained that S. 13B enables the State Government to take out of the protective wing of the Standing Orders Act certain establishments which would ordinarily come within the purview of that Act. He argued that the words 'in this behalf' occurring is S. 13B of the Standing Orders Act after the words 'any other rules or regulations that may be notified' mean 'by reference to and for the purpose of the provisions of' the Standing Orders Act. Reliance was placed on the observations of the Supreme Court in Bijoy Cotton Mills Ltd. v. Its Workmen, : (1960)ILLJ262SC . There the question that arose was whether textile industry was a controlled industry as may be specified in this behalf by the Central Govt. for the purpose of S. 2(a)(i) of the Industrial Disputes Act, 1947. The Supreme Court observed that the specification must be made by the Central Government by reference to, and for the purpose of the provisions of the Industrial Disputes Act in order that the Central Government may itself become the appropriate Government qua such industry under S. 2(a)(i) of that Act.

16. On the other hand, Mr. Raikar invited our attention to Ss. 5, 13B and 14 of the Standing Orders Act and submitted that in order to make regulations under S. 45 of the Act superseding any of the Standing Order the Government should issue two separate notifications, on granting previous sanction under S. 45 of the Act and another under S. 13B of the Standing Orders Act and that in the absence of such latter notification the impugned Regulations could not have the effect of superseding the corresponding Standing Order.

17. He maintained that the notification of the Government dated 15-3-1972 did not disclose that there was any application of the mind by the State Government which is necessary for a notification under S. 13B of the Standing Orders Act and therefore Regulation 39 could repeal the existing Standing Orders.

18. There is no reason why there should be two separate notifications one under S. 45 of the Act and another under S. 13B of the Standing Orders Act, and why only one notification cannot perform both the functions, firstly according previous sanction of the Government under S. 45 of the Act for the Regulations framed by the Corporation and secondly notifying those Regulations for the purpose of S. 13B of the Standing Orders Act. The real question is whether the Government Notification dated 15-3-1972 can be regarded as one under S. 13B of the Standing Orders Act, though there is no express mention of that Section in that notification. In other words, the question is whether that notification manifests the intention of the State Government that the impugned Regulations should supersede the certified Standing Orders in regard to the employees of the Corporation.

19. The relevant portion of Regulation 39 reads :

'39. Repeal and Saving. - The Mysore Govt. Road Transport Department Standing Orders, B.T.S. Standing Orders, the Bombay S.R.T. Employees' Service Regulations, the Hyderabad Civil Services (Classification, Control and Appeal) Rules and the rules contained in the Nizam State Railway Establishment Code which were adopted by the Corporation in its Resolution No. 8 in so far as they relate to conduct and disciplinary proceedings and imposition of penalties, provided in these Regulations are hereby repealed .....'

When the State Government accorded its previous sanction to the Regulations, it must have been aware of Regulation 39 which expressly provides for repeal of the certified Standing Orders applicable to the employees of the Corporation. Hence, it is reasonable to infer that the State Government intended that the Regulations should supersede the certified Standing Orders in regard to disciplinary control over the employees of the Corporation. It follows that that notification should be regarded as being made also with reference to and for the purpose of, S. 13B of the Standing Orders Act. We are unable to accept the contention of Messrs. Srinivas, Raikar and Narasimhan that there was no notification in 'this behalf' as contemplated by S. 13B of the Standing Orders Act to make the Regulations applicable to the employees of the Corporation in supersession of the certified Standing Orders and that such employees were still governed by the certified Standing Orders in disciplinary matters.

20. Mr. Srinivas submitted that the certified Standing Orders were more favourable than the impugned Regulations to the employees of the Corporation on the following points :

(1) that under the Standing Orders there was no provision to keep the employees under suspension without wages whereas Regulation 21 of the Regulations provided for such suspension with only some subsistence allowance;

(2) that a second show-cause notice should have been issued under the Standing Orders before issue of order of discharge or dismissal, if any, but under the Regulations there was no such provision; and

(3) that the disciplinary authorities and the appellate authorities under the Regulations are minor officers of the Corporation as against the Deputy General Manager and the General Manager under the Standing Orders.

Mr. Srinivas also contended that the order of suspension and the purported action under the final show-cause notice were illegal, inoperative and liable to be quashed.

21. Once we hold that the impugned Regulations are valid and have superseded the certified Standing Orders of the Corporation, it follows that the order of suspension and the show-cause notice which are not shown to be not in accordance with the impugned Regulations, cannot be quashed even if those Regulations are less favourable than the certified Standing Orders to the employees of the Corporation.

22. Lastly, it was contended for the employees that the impugned Regulations are violative of Art. 14 of the Constitution because they do not apply to a casual or 'Badli' employee who is still governed by the certified Standing Orders which give better rights than the impugned Regulations. In other words, it was contended that giving better rights to a casual or 'Badli' employee than to a permanent employee, is discriminatory.

23. The reason for not including casual employees and 'Badli' employees within the ambit of the Regulations, appears to be that the services of a casual employee or a 'Badli' employee need not be continued if his work and/or conduct are found to be unsatisfactory and there may not be any need to take disciplinary proceedings against him to terminate his services. Even if such differential treatment of casual or 'Badli' employees amounts to discrimination, it is so insignificant and marginal and would not be sufficient to render the Regulations invalid on the ground of violation of Art. 14 of the Constitution.

24. As the impugned Regulations provide for payment of only subsistence allowance and not the full salary or wages during the period of suspension, the petitioner can have no legitimate grievance in this regard. As the appointment of the enquiring officer and the show-cause notice issued to the petitioner are not shown to be not in accordance with the impugned Regulations, we find no good ground to interfere, at this stage, with the disciplinary proceedings against the petitioner.

25. In the result, this petition fails and the rule is discharged.

26. In the circumstances of the case, we direct the parties to bear their own costs.


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