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Kasturi Rangachary Vs. Chairman, Food Corporation of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberW.A. Nos. 311, 312, etc., of 1979 and W.P. No. 6323 of 1979
Judge
Reported in(1981)IILLJ237AP
ActsFood Corporation Act, 1964 - Sections 6, 7, 7(3), 12, 12-A, 12-A(3), 37, 45 and 57; Food Corporation of India (Staff) Regulations, 1971 - Regulations 66 and 90
AppellantKasturi Rangachary
RespondentChairman, Food Corporation of India and ors.
Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer.....muktadar, j. 1. these three writ appeals and the writ petition are being disposed of by this common judgment, as the parties in these appeals and the writ petition are the same and the questions of law involved are common. 2. these three appeals have been filed against the order dated 13-8-1979 of our learned brother b. p. jeevan reddy, j., dismissing writ petitions nos. 3937, 4247 and 4420 of 1979, writ appeal 311 of 1979 is filed against the order in writ petition 3937 of 1979; writ appeal 312 of 1979 is against the order in writ petition 4420 of 1979 and writ appeal 313 of 1979 is against the order in writ petition 4272 of 1979. it is stated that writ petition 6323 of 1979 was filed after the other writ petitions were disposed of. 3. the facts giving rise to these matters are these :.....
Judgment:

Muktadar, J.

1. These three writ appeals and the writ petition are being disposed of by this common judgment, as the parties in these appeals and the writ petition are the same and the questions of law involved are common.

2. These three appeals have been filed against the order dated 13-8-1979 of our learned brother B. P. Jeevan Reddy, J., dismissing Writ Petitions Nos. 3937, 4247 and 4420 of 1979, Writ Appeal 311 of 1979 is filed against the order in Writ Petition 3937 of 1979; Writ Appeal 312 of 1979 is against the order in Writ Petition 4420 of 1979 and Writ Appeal 313 of 1979 is against the order in Writ Petition 4272 of 1979. It is stated that Writ Petition 6323 of 1979 was filed after the other writ petitions were disposed of.

3. The facts giving rise to these matters are these : The petitioner in all the writ petitions was appointed as an Assistant Direct (Food) in the Food Department of Government of India, in the year 1959. He was promoted as Deputy Director in 1964. Thereafter his services were transferred to Food Corporation of India (hereinafter referred to as the Corporation), in March, 1969. While working in the Corporation, he was promoted as Joint Manager (Port Operations) on 23rd December. 1976 and put on probation for a period of one year with effect from the date of promotion. His probation was not declared after the expiry of one year; but it was extended from 23rd December, 1977 to 23rd September, 1978 (for nine months), by an order dated 17th August, 1978 of Managing Director of the Corporation. However, it was declared on 8th November, 1978. At the time of extension of the period of probation the petitioner preferred an appeal on 24th August, 1978 to Chairman for cancellation of the order of the extension of the period of probation. It is the case of the petitioner in the writ petitions that respondent 2 ordered the extension on the grounds of mala fides and prejudice towards the petitioner. Moreover, respondent 2 made remarks against the petitioner in a letter dated 29th January 1978 on the basis of the same prejudice entertained by him against the petitioner. Further respondent 2 was bent upon harassing the petitioner and with this idea served a charge-memo dated 5th February, 1979 with incorrect allegations. This charge-memo will be referred to as the first charge-memo, against which Writ Petition 6323 of 1979 was filed. The petitioner made representation to the Chairman and other authorities against the issue of the charge-memo on the ground of prejudice being entertained by respondent 2 against the petitioner with a prayer to revoke the charge memo. Respondent 2 once again served another notice with respect to the allegations made by the petitioner in his representations dated 16th February, 1979 against the First charge-memo, calling upon the petitioner to show cause as to why action should not be taken against him for using indecent language towards his superiors. The petitioner was then transferred to Kandla by respondent 2 and when the petitioner applied for leave on the ground of his wife's illness, respondent 2 refused to sanction leave The petitioner made a representation to respondent I who did not interfere in the matter. While so, Respondent 2 suspended the petitioner, pending enquiry, on 27th April, 1979. The case of the petitioner is that respondent 2 has no power to initiate disciplinary proceedings to enquire into the charges against the petitioner and that respondent 2 has no jurisdiction to suspend him pending enquiry because those powers lie with the Executive Committee of the Corporation.

4. Writ Petition 3937 of 1979 was filed to quash the first charge memo and also the order of suspension; but the prayer was modified to one of quashing of the order of suspension alone. After Writ Petition 3937 of 1979 was admitted and interim suspension of the order of suspension pending enquiry was granted another charge-memo (herein) after referred to as the second charge memo was served on the petitioner on 15th May, 1979. Once again, the petitioner filed Writ Petition 4272 of 1979 to quash the second charge-memo on the same grounds, viz, that respondent 2 did not have jurisdiction to issue the charge-memo and to appoint an enquiry officer. On 30th May, 1979 another set of charge-memo (hereinafter referred to as the third charge-memo) was served on the petitioner and Writ Petition 4420 of 197 was filed to quash the third charge-memo.

5. Respondent 2 has filed a counter-affidavit denying the allegations made against him as false and baseless. The Corporation also has filled a counter-affidavit denying the allegation made in the writ petition and explaining the circumstances under which probation of the petitioner was extended and as to why the charges were framed and orders of transfer and refusal of leave were passed against the petitioner. The allegations of mala fides have also been controverted in the counter-affidavit filed by the respondents which will be discussed at the appropriate place in the course of this judgment.

6. Mr. A. Panduranga Rao, the learned advocate for the appellant, has advanced practically, the same contentions which he had advanced before the learned single Judge and were rejected by him. The learned advocate contends that passing of the order of suspension and initiation of disciplinary proceedings by respondent 2 are without jurisdiction for the following reasons :

(1) Under S. 45 of the Food Corporation Act, 1964 (hereinafter referred to as the Act), power to make regulations is given to the Corporation. In exercise of this power the Corporation framed The Food Corporation of India (Staff) Regulations, 1971, which will hereinafter be referred to as the 1971, Regulations. Regulation 66 of these regulations provided that the appointing authority or an authority to which it is subordinate or the disciplinary authority or any other authority, empowered in that behalf by the Board of Directors by general or special order, may place an employee under suspension during the pendency of disciplinary proceedings. The learned advocate contends that it is not in dispute that the petitioner belongs to Category-I of the officer and the appointing authority is the the Board of Directors. Therefore, under the 1971 Regulations it was either the Executive Committee or the Board of Directors that could have suspended the petitioner during enquiry. There is no delegation under the 1971 Regulations by either of these authorities or respondent 2 delegating the power to suspend the Officer or an employee of the Corporation.

(2) Respondent 2 was relying on a resolution dated 19th February, 1969 passed by the Board of Directors delegating the powers of suspension to the Managing Director. The learned advocate submits that this Resolution is of an anterior date, viz., 19th February, 1969 to the Regulations which came into force on 8th May, 1971. Therefore, that delegation is of no consequence.

(3) Even if the Resolution dated 19th February, 1969 is considered to have been legally passed, then that Resolution will lose its force in view of the 1971 Regulations which came into force on 8th May, 1971.

(4) Power of delegation under S. 37 of the Act, does not specifically refer to the powers of suspension but provides that what could be delegated are powers and functions. As a corrollary the learned advocate submits that the power to suspend an employee visits him with civil consequences which affect his service, prestige and finance. therefore, that authority is akin to quasi-judicial authority, as such that power cannot be delegated except by express provision in the statute or by clear implication giving that delegates the power to suspend. In order to strengthen his argument that the authority is a quasi-judicial authority, the learned advocate submits that before passing the order of suspension pending enquiry a show-cause notice was issued.

(5) That Ss. 12, 12-A, 45(2) (a) and (b) of the Act, deal specifically with service conditions, submits the learned advocate that when specific provisions have been made in a statute giving powers to a particular body, then such special powers cannot be delegated by general delegation. They should be delegated expressly.

(6) Sections 12 and 45 provide specifically for conditions of service and, therefore, S. 37 should have also expressly provided for delegation in these specific matters.

(7) The petitioner is a Government of India employee and transferred to the Corporation, as such, his service conditions are dealt with under S. 12-A of the Act and sub-s. (3) of S. 12-A provides that his service conditions should be '...... governed by Regulations', therefore, it is submitted that the petitioner cannot be governed by the Act. Section 12-A(3) are special provisions hence delegation should have been specific.

(8) Even assuming that the Board has the power to delegate; such a delegation can be done by delegating the power to an authority not lower than the appointing authority.

7. The second contention of Mr. Pandurangarao is that it was out of prejudice and a biased mind that respondent 2 initiated disciplinary proceedings and suspended the petitioner pending enquiry and issued the impugned charge-memos. In other words, the second ground of attack is mala fide on the part of respondent 2.

8. Mr. Suryanarayana Murthy, the learned Standing Counsel for the Corporation, endeavors to justify the impugned order of suspension and impugned chargememos by contending that under S. 6 of the Act, the power of the Corporation and the power of the Board of Directors are co-extensive; that under S. 37 of the Act, the Corporation can delegate its powers and functions to any other member of the Board of Directors or other officer of the Corporation and, therefore, it should be concluded that the Board of Directors also had the power to delegate its powers and functions to any other member of the Board of Directors or other officer of the Corporation. Even otherwise, it is submitted that under S. 7(3) of the Act, the Board of Directors has the power to entrust or delegate the powers and duties of the Board of Directors to the Managing Director. Therefore, the Board of Directors, in exercise of its powers under S. 7(3) of the Act, has delegated its powers and functions to the Managing Director by the resolution dated 19th February, 1969. In other words, Mr. Suryanarayana Murthy traces the power of the Board to delegate its powers and functions to S. 6 read in conjunction with S. 37 or S. 7(3) of the Act. It is to be noted at the outset that the Board of Directors by the resolution dated 19th February, 1969 have delegated the powers of suspension pending enquiry and the power to initiate disciplinary proceedings to the Managing Director. It is to justify this delegation that Mr. Suryanarayana Murthy traces the sources of power to S. 7(3), or, S. 6 read in conjunction with S. 37 of the Act. Mr. Suryanarayana Murthy contends that in the year 1965, the Corporation framed staff Regulations dealing with the service conditions of the officers and employees of the Corporation; and that it was in exercise of the powers conferred by these draft Regulations read in conjunction with S. 7(3) of the Act, the Board of Directors entrusted or delegated powers of suspension pending enquiry and initiation of disciplinary proceedings to respondent 2. In other words, what Mr. Suryanarayana Murthy contends is that the Resolution dated 19th February, 1969 passed by the Board was in furtherance of the powers given to the Board under S. 7(3) of the Act and, therefore, it should be held that the resolution was a valid resolution.

9. Before we proceed to deal with the contentions of the learned advocates, it is necessary to state the manner in which the arguments of the learned advocates proceeded. In the beginning the arguments of the learned counsel for the respondents proceeded on the assumption that the draft regulations of 1965 were not published in the Gazette and, therefore, they did not have the force of law, as such, it should be held that the resolution dated 19th February, 1969 passed by the Board was in furtherance of the provisions of either S. 7(3) or S. 37 of the Act, delegating or entrusting powers to respondent 2 for suspending an employee pending enquiry and for initiating disciplinary proceedings. While the arguments were being proceeded on this line, viz., that the draft regulations of 1965 did not have the force of law, the learned counsel for the respondents received an intimation from his clients to the effect that the 1965 regulations had in fact, received sanction of the Government of India and were published in the Gazette, as such, they had the force of law. Finally, when the appeals were reserved for judgment, once again, Mr. Suryanarayana Murthy made a representation to the effect that the 1965 regulations were only draft regulations and were not at all published in the Gazette and, therefore, they did not, have the force of law. In support of this statement, an affidavit of an officer, viz., Mr. Rajendralal, Deputy Manager, Vigilance Regional Office, Hyderabad, dated 20th August, 1980, was filed. In these circumstances, it would not be worthwhile to consider all the arguments that were advanced by the learned advocates on the premise that the draft regulations of 1965 had the force of law. Therefore, we would confine our judgment only to those contentions which proceeded on the basis that the draft regulations of 1965 did not have the force of law.

10. In the light of what is stated above and the contentions advanced by the learned advocates. The points that arise for consideration would be as to what would be the effect of the draft regulations of 1965 on the impugned orders passed by respondent 2; whether, in the light of the draft regulations of 1965, the board of Directors could pass the Resolution dated 19th February, 1969 entrusting or delegating the powers to suspend pending enquiry and initiating disciplinary proceedings to respondent 2; if the draft regulations of 1965 do not give powers to the Board of Directors to delegate the powers of suspension and initiation of disciplinary proceedings, could it be said that the Board of Directors had these powers under the various provisions of the Act so that the Board could delegate them to respondent 2; and finally, whether the resolution dated 19th February, 1969 is saved by the 1971 Regulations so that it could be held that the impugned orders of respondent 2 were justified and according to law.

11. It would now be appropriate to see the relevant provisions of the Act. The Act was passed in the year 1964 which brought the Corporation into being. Section 6 of the Act provides for the general superintendence, direction and management of the affairs and business of the Corporation to vest in a board of directors which may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation under the Act. It would mean that the powers of the Board of Directors as well as the Corporation are co-extensive and concurrent. Whatever acts the Corporation could do under the Act, the Board of Directors also could do. Section 7 of the Act provides that the Board of Directors of the Corporation shall consist of the following :

'(a) ... ... ...(b) ... ... ...(c) ... ... ...(d) a managing director;(e) ... ... ...

Sub-section (3) of 7 of the Act, provides that the Managing Director shall exercise such powers and perform such duties as the Board of Directors may entrust or delegate to him. We are not concerned with the rest of the Section. A plain reading of the relevant portion of S. 7 would show that the Managing Director has to exercise such powers and duties which the Board of Directors might entrust or delegate to him. Therefore, it is clear from a reading of S. 7(3) of the Act, that the Board can entrust or delegate its powers to the Managing Director. Then S. 12(3) gives powers to the Corporation to frame regulations determining the methods of appointment, the conditions of service and the scales of pay of the officers and other employees of the Corporation. The next relevant Section is 37 of the Act, which gives power to the Corporation to delegate in the following manner :

'A Food Corporation may, be general or special order in writing, delegate to the Chairman or any other member of the board of directors or the Secretary or other officer of the Corporation, subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions under this Act as it may deem necessary.'

A reading of this Section would also show that the Corporation can delegate to the Chairman or any other member of the Board of Directors or the Secretary or other officer of the Corporation subject to such conditions and limitations, if any, as specified in the order, such of its powers and functions under the Act as it may deem necessary. It is to be noted that S. 37 specifically provides that the Corporation could delegate in writing to any other member of the Board of Directors and, as pointed out hereinabove, under S. 7(1) of the Act, the Managing Director is one of the members of the Board of Directors or, even the Managing Director could come within the ambit of the words 'other officer of the Corporation'. Therefore, S. 37 deals with the power of the Corporation to delegate its powers and functions as provided in the Section which, if read in conjunction with S. 6 of the Act, it could be said that the Board of Directors also could delegate likewise. Finally, S. 45 of the Act, gives power to the Corporation to make regulations not inconsistent with the Act and the Rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. Sub-s. (2) of S. 45 specifically provides for the framing of regulations for subjects such as the methods of appointment, 'the conditions of service and scales of pay of the employees and officers of the Corporation; the functions and duties which might be entrusted or delegated to the Managing Director, or, as the case might be, the General Manager of the Corporation. Therefore a reading of S. 45 would show that the Corporation has been given powers to make regulations dealing with service conditions of the officers and employees of the Corporation and also specifically provides under clause (c) of sub-s. (2), for the making of regulations dealing with the functions and duties which may be entrusted or delegated to the Managing Director or the general manager. Therefore, the power to delegate lies not only in the Corporation but also with the Board of Directors. Section 7(3) specifically provides for entrustment or delegation by the Board of Directors to the Managing Director such powers and duties as the Board would consider necessary under the Act. Apart from S. 7(3), S. 37 also gives power to the Corporation to delegate to any other member of the Board of Directors or other officer of the Corporation such of his powers and functions as it deems necessary. Finally, S. 45(2)(c) gives power to the Corporation to make regulations with regard to the functions and duties which may be entrusted or delegated to the Managing Director. Therefore, a combined reading of all these Sections would show that ample power is given to the Board of Directors and also to the Corporation to delegate such of the powers and functions as the Board of Directors or the Corporation, as the case might be, deems necessary to do so. The delegation of powers by the Board of Directors to the Managing Director, which was brought to our notice, was a Resolution of the Board of Directors dated 19th February, 1969. Mr. Panduranga Rao attacks this Resolution of 1969 passed by the Board of Directors delegating the power of suspension to the Managing Director on the ground that before the framing of the 1971 regulation there were other draft regulations known as the Food Corporation of India (Staff) Regulations 1965 (hereinafter referred to as the Draft Regulations). Mr. Panduranga Rao contends that although the 1965 Draft Regulations were only draft regulations they did not have the force of law; nevertheless, they were binding on the Corporation and the Board of Directors as administrative instructions. Hence, when those administrative instructions. Hence, when those administrative instructions did not give power to the Board to suspend pending enquiry or initiate disciplinary proceedings, the Board could not entrust or delegate under S. 7(3) of the Act. He further attacks the observations of our learned brother Jeevan Reddy, J., in his judgment wherein the learned Judge referred to the Resolution of the Board of Directors of 1969, as under :

'In pursuance to Regulation 57 the Board of Directors at its 28th meeting held on 19-2-1969 passed the following resolution.'

The learned judge then quoted the resolution The learned advocate contends that Regulation 57 which the learned single Judge obviously is referring to in his judgment is of 1971 and Regulation 57 of 1971 could not be taken advantage, of for the passing of the Resolution of the Board of Directors dated 19th February, 1969, because at that time the 1971 Regulations were not at all in force. It is true that by oversight the learned single Judge had referred to Regulations 57 as the source of authority for the Board of Directors to pass the Resolution dated 19th February, 1969. To the resolution of the Board of Directors dated 19th February, 1969 obviously the 1971 Regulation will not apply unless the Resolution is saved by express or by necessary implication by the 1971 Regulations. It would have to be seen as to under what powers the Board passed the Resolution dated 19th February, 1969. But, before we enter into this discussion, it would be appropriate to quote the Resolution of the Board of Directors dated 19th February, 1969, viz :

'Item No. 7 : Power to suspend Category-1 Officers in the Service of the Corporation - Delegation of power to Chairman/Managing Director :

The Board accords its approval to the proposal for delegating powers to suspend or initiate disciplinary proceedings against Heads of Divisions/any category of officers (excluding Heads of Divisions) to the Chairman/Managing Director and a report being submitted thereafter to the Board/Executive Committee, as the case may be, for ratification'.

It would be noticed that the Resolution dated 19th February, 1969 quoted above, gave the power to initiate disciplinary proceedings and also to order suspension pending such proceedings to the Chairman/Managing Director. Even then the delegate has to submit a report to the Board/Executive Committee 'as the case may be, for ratification'. It is now necessary to find out as to whether the Board of Directors had the power to pass the above Resolution.

12. It is to be remembered that the draft 1965 Regulations do not have the force of law but are merely administrative instructions which bind the Corporation. Therefore, a look into the material draft Regulations is necessary. Regulation 4.57, found in Chapter 4, of the Draft Disciplinary and Appeal Regulations, provides that the authorities specified in column 3 of table set out in Appendix 4.57 shall in respect of an employee of the description specified in column 2 thereof, be competent to impose penalties specified in column 4 thereof. A perusal of Appendix 4.57 shows that with regard to Category-I Officers, i.e., to say Officers other than the Heads of the Divisions, the authority competent to impose penalty and the penalties which it may impose, is the Managing Director, i.e., for minor penalties. So far as major penalties are concerned it is the Executive Committee which can impose them. Therefore, reading regulation 4.57 with its Appendix, it becomes clear that the appointing authority in the case of the petitioner is the Executive Committee. It is also not in dispute that the petitioner is Category - I Officer coming under the category of Officers other than Heads of Divisions. Therefore, it becomes evident that the Executive Committee is the proper authority to impose major penalties. No power is given under those draft regulations to the Board of Directors to impose major penalties.

13. Regulation 4.63 of the Draft Regulation, provides for suspension pending enquiry to the effect that the appointing authority or any authority to which it is subordinate may place an employee under suspension where a disciplinary proceedings against him is contemplated or is pending In Chapter 43, of the Draft Regulations, which deals with delegation of financial and cognate powers, S.1, Serial No. 6, would show that for minor penalties, the Managing Director has been delegated with powers to deal with minor penalties so far as category-I Officer other than Heads of Divisions are concerned. But so far as major penalties are concerned, it is the Executive Committee to which the delegation has been made as per the Draft Regulations in relation to Category-I Officer other than Heads of Divisions are concerned. A reading of the relevant Regulations mentioned hereinabove, would show that the Executive Committee, which is the appointing authority and to which also the power to impose major penalties has been delegated by the draft regulations is the only authority which could impose penalties and, therefore, that is the only authority which could pass orders of suspension pending enquiry against category-I Officers other than Heads of Divisions.

14. It is the case of the respondents that the Board of Directors as per the draft regulations of 1965 had the power to suspend the petitioner and initiate disciplinary proceedings and it is this power which the Board has delegated by the resolution dated 19th February, 1969 to the Managing Director.

15. It is now well-settled that delegation could take place only when the delegator has the power to delegate; but when the delegator does not have power to delegate, we fail to appreciate how it could delegate to any other officer the powers which it did not possess. As pointed out hereinabove, according to regulation 4.57 read in conjunction with the Appendix, it is only the Executive Committee which is the competent authority to impose penalties. It is also not in dispute that it is the Executive Committee which is the appointing authority, so far as the petitioner is concerned. Therefore, when the draft Regulations, which have been framed under S. 45 of the Act, gave powers to the Executive Committee to impose major penalties, so far as the petitioner is concerned, then we fail to understand how the Board of Directors which was not given any such powers under the Regulations, could pass the Resolution dated 19th February, 1969 delegating its powers and functions with regard to suspension and initiation of disciplinary proceedings to the Managing Director. In other words, since the draft regulations noted herein above gave power only to the Executive Committee to appoint the petitioners and also to impose major penalties the Board of Directors, which was not given any such powers under the draft regulations, could not delegate such powers to the Managing Director by its Resolution dated 19th February, 1969.

16. Mr. Suryanarayana Murthy submits that in 1971, the Corporation promulgated another set of Regulations called the Food Corporation of India (Staff) Regulations 1971. Mr. Suryanarayana Murthy, contends that Regulation 54 of these Regulations of 1971 deals with the penalties. Regulation 56 deals with disciplinary authority which is the Board or the authorities specified in Appendix 2, or, any other authority higher than the authority specified in Appendix 2, empowered in this behalf by general or special order of the Board, to impose all the penalties mentioned in Regulation 54. A perusal of Appendix 2 would show that for Category I Officers other than Heads of Divisions, the appointing authority and the authority to impose penalties is the Executive Committee, i.e., minor penalties and the Board of Directors for the imposition of all penalties. Therefore, he submits that the Board of Directors have now been given the power to impose all penalties for Category-I Officers, other than Heads of Divisions. As such the Board also is the disciplinary authority. He further contends that according to Regulation 57, the Board or any other authority empowered by it by general or special order, may institute disciplinary proceedings against an employee of the Corporation. Therefore, submits the learned counsel that under the 1971 Regulations, the Board of Directors is not only the disciplinary authority but is also the authority to institute disciplinary proceedings. According to Regulation 66, the Board of Directors also is the authority to suspend an employee pending disciplinary proceesings. Therefore, as per the 1971 Regulations the Board of Directors had the power to suspend an employee pending disciplinary proceedings. The learned counsel further contends that in Regulation 66 the words 'empowered in this behalf' would denote that action taken prior to 1971 would be saved because Regulation 90 saves any order made or action taken by the Corporation or any of its officers in accordance with the provisions contained in the draft regulations which were in force before the commencement of the 1971 regulations, and it should be considered that the Regulation dated 19th February, 1969 passed by the Board of Directors has been saved by Regulations 90. But it could be said that, since the draft regulations of 1965 were only administrative in nature, therefore, the resolution of the Board of Directors, dated 19th February, 1969, should also be considered to be administrative order could override another administrative order viewed from this angle it could be said that, no doubt the 1965 Draft Regulations were administrative in nature and binding on the Corporation, nevertheless, the Regulation of the Board dated 19th February, 1969 was also administrative in nature and, therefore, this Resolution can override the material provisions of the draft regulations and that power is given to the Board of Directors under S. 7(3) of the Act. It was by means of this Resolution of 19th February, 1969 the Board of Directors delegated the power of suspension pending enquiry and initiation of disciplinary proceedings to the Managing Director under sub-s. (3) of S. 7 of the Act. To our mind, it could be said that the Resolution of the Board of Directors dated 19th February, 1969 could be considered to be an administrative order of the Board of Directors overriding the material provisions of the draft regulations which were also administrative in nature, in spite of the fact that the Board did not have any such power under the Draft Regulations and it was the Executive Committee which had the power to suspend pending enquiry and initiate disciplinary proceedings. It is now to be seen as to whether this Resolution dated 19th February, 1969 of the Board of Directors could be sustained, because, in the year 1971, the Corporation promulgated the 1971 Regulations. It is not in dispute that the 1971 Regulations have the force of law and have already received previous sanction of the Government and published in the Gazette. It is also not in dispute that under the 1971 Regulations, the Board of Directors has the power to suspend pending enquiry and to initiate disciplinary proceedings. Regulation 57 gives power to the Board or any other authority empowered by it general or special order to initiate disciplinary proceedings against an employee of the Corporation or direct the disciplinary authority to institute disciplinary proceedings against an employee of the Corporation on whom that disciplinary authority is competent to impose any of the penalties specified in Regulation 52 Regulation 66 gives power to the appointing authority or any authority to which the appointing authority is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Board by general or special order to place an employee under suspension where a disciplinary proceeding is contemplated or is pending. Therefore, there can be no doubt that under the 1971 Regulations the Board of Directors do have the power to suspend an employee pending enquiry and to initiate disciplinary proceedings. But it is to be noted that there is no delegation by the Board of Directors under the 1971 Regulations. The respondents rely upon the Resolution of 1969 passed by the Board of Directors and, therefore, the powers given to the Board of Directors under the 1971 Regulations cannot help the respondents, because there is no delegation or entrustment by the Board of Directors to respondent 2 under the 1971 Regulations To our mind, in the light of 1971 Regulations, the Regulation passed by the Board of Directors in 1969 which could be sustained as an administrative order overriding another administrative provision cannot be made use of by the respondents to justify the impugned orders and the impugned charge memos, because Regulation 90 of the 1971 Regulations provides that nothing contained in the Regulations shall invalidate any order or action taken by the Corporation or any of its Officers in accordance with the provisions contained in the draft regulations which were in force before the commencement of the 1971 regulations. A plain reading of regulation 90 would show that only those orders passed or actions taken by the Corporation or any of its officers are saved which were in accordance with the provisions contained in the draft regulation of 1965. It has already been pointed out above that under the 1965 Regulations it was the Executive Committee which had the power to suspend and employee pending enquiry or initiate disciplinary proceedings, and that the Board of Directors did not have any such powers. But the Resolution dated 1th February, 1969 was considered to be valid only as an administrative order overriding another administrative order although that Resolution was not a resolution in accordance with the provision contained in the draft regulations because, as stated above, the Board of Directors did not have power to suspend an employee pending enquiry or to initiate disciplinary proceeding under the draft regulations. Therefore, we are constrained to hold that the Resolution dated 19th February, 1969 passed by the Board of Directors cannot now be sustained in the light of Regulation 90 of the 1971 Regulation. It might be that in exercise of the powers under S. 7(3) of the powers under Act, the Board of Directors had passed an administrative order by its Resolution dated 19th February, 1969 entrusting or delegating powers to the Managing Director and that could be considered to be an administrative order but under no circumstance it could be considered to be an order in accordance with the provisions contained in the draft regulations. It might be that the Board of Directors by now, have the power under the 1971 Regulations to suspend pending enquiry and initiate disciplinary proceedings, but there is nothing to show that this power has been entrusted or delegated to respondent 2. We are, therefore, constrained to hold that the Resolution passed by the Board of Directors, dated 19th February, 1969, delegating or entrusting the powers to the Managing Director cannot give power to respondent 2 to pass the impugned order of suspension pending enquiry and issue the impugned charge-memos against the appellant. Therefore, the impugned orders of suspension pending enquiry and the impugned charge-memos will have to be set aside.

17. It was next contended by Mr. Suryanarayana Murthy that the orders of suspension pending enquiry and the issue of the charge-memos by respondent 2 have been ratified by the Board of Directors and, therefore, the same should be considered to have been made by the Board of Directors. In support of this contention the learned counsel for the respondents cited. H.L.M. Biri Works v. Sales Tax Officer, : AIR1959All208 , We regret we cannot accede to this contention. The first order of the Managing Director is dated 27th April, 1979 placing the appellant under suspension pending enquiry and the impugned charge-memos issued on 5-2-1979, 13-5-1979 and 15-5-1979 are signed by the Managing Director. At that point of time, undoubtedly, the Managing Director had no jurisdiction to pass those orders, because the 1971 Regulations did not give any powers to the Managing Directors to pass any such orders, nor, as pointed out hereinabove, there is any delegation by the Board of Directors to the Managing Director to pass such orders Therefore, in these circumstances, the impugned orders are non est and void and they are ultra vires and, therefore, in cases of such void ab initio orders subsequent ratification cannot cure the defect because it has total lack of power. To our mind, the ruling relied upon by the learned counsel has no relevancy whatsoever to the circumstances of the case under consideration. It is only when the competent authority passing the resolution without following the procedure that could be saved by ratification. Moreover, in this case, the Allahabad High Court held that the Legislature was competent to pass any enactment making any particular provision. It could validate a similar provision made under its delegated authority because it was competent to pass a valid legislation covering that subject. This would show that it is only the Legislature which could validate an improper delegation. But in the instant case, the question involved is one of subordinate legislation and subordinate legislation cannot give any retrospective effect.

18. Mr. Suryanarayana Murthy next contended that the resolution dated 19th February, 1969 passed by the Board of Directors, has statutory force. In support of this contention he has cited Harla v. The State of Rajasthan, : [1952]1SCR110 , But to our mind, this case does not at all support the contention of the learned counsel for the respondents. It was held in that case that mere passing of a resolution by a Council of Minister (which was not a sovereign body nor functioning of its own) purporting to enact the Jaipur Opium Act in the year 1924 without promulgation or publication in the Gazette or other means to make the Act known to the public is not sufficient to make it law. For, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation will not be sufficient to make a law operative. It would be clear that it is not necessary for us to enter upon the consideration of the various arguments advanced by the learned advocates on the premise that the 1965 Regulations had the force of law. We have, therefore, considered the position of law and its effect on the premise that the 1965 Regulations did not have the force of law and what would be its effect on the impugned orders.

19. The next contention of Mr. Panduranga Rao deals with mala fides. The learned advocate points out six circumstances which would go to show the respondent 2 had passed the impugned orders of suspension pending enquiry and issued the impugned charge-memos on the basis of mala fides. They are :

(i) Extension of Probation of the appellant by order dated 17-8-1978.

(ii) Letter dated 29-1-1979 addressed to the Zonal Officer, Madras;

(iii) The appellant applied for leave on the ground of his wife's illness and leave was refused by respondent 2;

(iv) Charge Memo dated 5-2-1979 would show that respondent 2 had signed it for and on behalf of the Executive Committee, which would go to show that he signed it in a callous way without applying his mind as to whether the Executive Committee delegated power to him or not;

(v) Show-cause notice dated 26-3-1979 which deals with the issue of telex message by the appellant, which was sent directly to the higher authorities, and with the contents of the telex message. So far as this circumstance is concerned, the learned advocate submits that respondent 2 cannot as a Judge in a matter in which he has been accused by the appellant. Therefore, this circumstance should be considered as a circumstance to show mala fide.

(vi) The impugned order dated 27-4-1979 also has been signed by respondent 2 for and on behalf of the Executive Committee.

20. The arguments that are advanced on circumstance No. (iv) would apply with equal force to circumstance No. (vi) Mr. Panduranga Rao submits that it is very difficult for the appellant to prove mala fides and that what he has to establish is the circumstances which show that respondent 2 entertained a prejudiced mind against the appellant and if he could show them then the Court would draw a conclusion that respondent 2 entertained mala fides against the appellant. It is true that there can be no direct evidence to prove the allegations of mala fide and it is only a matter of inference to be drawn from various relevant facts and circumstances. It is, therefore, not necessary to examine the circumstances pointed out by Mr. Panduranga Rao to see whether these circumstances established the plea of mala fides.

21. Before we proceed to discuss these circumstances, it would be appropriate at the outset to state that the learned single Judge had discussed in detail these circumstances, in his lengthy judgment and has also examined the record produced before him and finally gave a finding that these circumstances do not at all establish mala fides. With regard to the extension of probation, the case of the petitioner was that it was respondent 2 who with a prejudiced and biased mind extended the probation period of the appellant which was commenced with effect from 23-12-1976; of course, the period of probation was for one year. Shri A. K. Dutt in his probation report for the half year ending with 22-12-1977 made the following remarks as the Managing Director at the relevant time.

'Work not uniformally satisfactory. May be watched for three months more before confirmation.'

The period of one year of probation of the appellant came to an end on 23-12-1979 but because of the above quoted remarks by the then Managing director Sri A. K. Dutt, probation of the appellant was not declared. Even in the probation report for the quarter ending with 22-3-1978, it was observed in respect of the integrity of the appellant : 'There have been far too many complaints which have got to be enquired into'. The observations of the Reporting Officer were approved by Sri A. K. Dutt who was the Managing Director at the relevant time. When the probation report came up for approval respondent 2 had assumed charge as the Managing Director and he agreed that the work in Vizag Port has been better than that in Madras and, therefore, the appellant should be confirmed in view of his work. To be exact, it was in pursuance of this good report that the Corporation declared the probation of the appellant with effect from 23-9-1978. Therefore, in these circumstances, it cannot be said that it was respondent 2 who had extended the period of probation. We have gone through the reasoning given by the learned single Judge and we see absolutely no reason to disagree with the conclusion arrived at by him on this circumstances of extension of probation. To our mind, it was the previous Managing Directors Sri A. K. Dutt who observed that the petitioner should be watched for three more months after the expiry of one year's period of probation. The second report about too many complaints against the petitioner was also approved by Sri A. K. Dutt and the Chairman, and respondent 2 had nothing to do with the extension of probation. Hence, we find that there are no circumstances to show that respondent 2 had a biased mind against the appellant and with that biased mind had extended the period of probation of the appellant.

22. With regard to the circumstances dealing with the letter dated 29-1-1979, it is to be noted that is letter was written by one Sri Narayanswamy, Manager (IR) to the Zonal Manager (South) Food Corporation of India, Madras. It is contended by Mr. Panduranga Rao that three cases are mentioned in this letter but the appellant was concerned only with one case at Visakhapatanam Port. It is submitted that the second respondent only considered the case of the appellant at the Visakhapatanam Port and did not consider the incidents at two other places in dealing with the appellant. It is to be noted that respondent had already expressed a favourable opinion in favour of the appellant while reviewing the probation of the appellant in September, 1978. Nothing occurred during September, 1978 and January, 1979, i.e., until the letter dated 29-1-1979, for respondent 2 to develop any prejudice or bias against the appellant. No facts are mentioned in the writ petitions to show that during this period the attitude of respondent 2 had changed. On the other hand, there are no specific allegations to prove the charge of mala fides and only a general allegation is made to the effect that respondent 2 developed prejudice against the appellant. No specific instance are mentioned from which it could be concluded that bad relations between respondent 2 and the appellant has occurred. Therefore, so far as the circumstance of the letter dated 29-1-1979, it can safely be concluded that from this circumstance it cannot be said that respondent 2 acted in prejudicial manner against the appellant.

23. The third circumstance deals with the refusal by respondent 2 to grant leave to the appellant. It is the case of the appellant that he was transferred Kandla and that his wife was seriously ill. Therefore, he filed an application for the grant of leave which was refused by respondent 2 out of spite and enmity. The learned single Judge has discussed the various circumstances which lead to the transfer of the appellant to Kandla and that thereafter the appellant, while he was Vizag, was endeavoring to put political pressure on the Corporation to make him stay at Visakhapatanam. From a perusal of the record the learned single Judge found two letters one written by Sri T. Tenneti Viswanadham dated 8-2-1979 and another from Sri M. V. S. Subba Raju, M.L.A., President, Andhra Pradesh Janata Party dated 3-4-1979 addressed to the then Union Minister for Food and Agriculture, requesting for retention of the appellant at Vizag only. The learned single Judge having gone through the note of Brig. Harnam Singh, Manager Vigilance, which refers to the petitioner's bringing undue pressure upon the management for obtaining cancellation of the transfer order, found that the refusal to grant leave does not indicate any malice or bias on the part of respondent 2. We do not see any reason to disagree with this finding.'

24. So far as the fourth circumstance which deals with the issue of charge-memo dated 5-2-1979 is concerned, it is to be noted that the said charge-memo was signed by respondent 2 without disclosing as to on whose behalf he had sighed the same. It was only at the time of communication that the following is endorsed : 'for and on behalf of the Executive Committee'. It is to be noted that this charge-memo was a result of independent investigation and verification and it was only on the basis of a report that the first charge-memo was issued. We have also gone through the reasoning given by the learned single Judge with regard to this circumstance and we fully agree with the reasoning and finding given by him.

25. Similarly, with regard to the fifth and sixth circumstances, the learned single Judge has discussed in detail the reasons which prompted the show-cause notice dated 26-3-1979, which forms the basis for the fifth circumstance, and the impugned order of suspension dated 27-4-1979, which forms the basis for the sixth circumstance : and we see no reason to interfere with the conclusion arrived at by the learned single Judge. Therefore, so far as the allegations of mala fides are concerned, we confirm the findings arrived at by the learned single Judge and do not see any reason to interfere with the same.

26. Since we have already held on contention No. 1 that the impugned order of suspension pending enquiry and the issue of the charge-memos forming the basis of the appeals and the writ petition, were beyond the jurisdiction of respondent 2, we have no hesitation in allowing the writ appeals and the writ petition, and quash the impugned orders of suspension pending enquiry and also the impugned charge-memos. However, nothing said hereinabove will preclude the Board of Directors from taking fresh action against the appellant according to law.

27. These writ appeals are, therefore, allowed the impugned order of suspension pending enquiry forming the basis of Writ Petition 3937 of 1980 and the impugned charge-memos which form the subject-matter of Writ Petitions 4420, 4272 and 6323 of 1979 are quashed. Advocates fee Rs. 150 in each. No costs.

28. We are unable to certify that these matters involve such substantial questions of law of general importance, as require consideration by the Supreme Court. Accordingly we refuse the oral request for grant of leave to the Supreme Court.


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