Satyanarayana Raju, J.
1. These two petitions, filed under Article 228 of the Constitution of India, raise identical question for decision, and it will be convenient to dispose of them in a common judgment.
2. The petitioner in the former of the petitions was a mechanic in the service of the Road Transport Department of the erstwhile State of Hyderabad ; and the petitioner in the other petition was a conductor. The respondent in both the petitions is the Chief Executive Officer of the Andhra Pradesh State Road Transport Corporation (hereinafter referred to, for the sake of convenience, as 'the Corporation'),
3. For a better appreciation of the contentions raised before us, it will be convenient to set out in brief outline the antecedent history of the Corporation. Originally, the Road Transport Department of the erstwhile Hyderabad State was providing road transport services in the territories which formed part of that State. The Department was there functioning as a State Transport Undertaking under the provisions of the Motor Vehicles (Hyderabad Amendment) Act, 1956. While so, the States Reorganisation Act, 1956 was enacted by Parliament and became law on 31st August 1958. Section 3 of that Act provided that as from the appointed day, there should be added to the State of Andhra the area comprised in about eight of the Districts of the former State of Hyderabad (popularly called 'the Telangana area'). By virtue of the provisions of that section, the said territory ceased to form part of the State of Hyderabad and became the part of the State of Andhra, which has been re-named the State of Andhra Pradesh. The Road Transport Department) which had till then been functioning as a statutory authority for the Hyderabad State began to function as a State Transport Undertaking for the State of Andhra Pradesh under the Motor Vehicles Act, 1939, as amended.
The Constitution (First) Amendment Act, 1951, which came into force on 18th June 1951, preserved to the State the power to make any law relating to the carrying on by the State, or by a Corporation, owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or others. After the coming into being of the State of Andhra Pradesh, the State Government established a Road Transport Corporation under the Road Transport Corporations Act (64 of 1950), called the Andhra Pradesh Road Transport Corporation, with effect from 11th January 1958. The Corporation was empowered to take over the management of the erstwhile Road Transport Department. The result of these legislative measures, coupled with the formation of the Corporation under the Central enactment, was to transform what was till then a Department of the Government into an autonomous body.
4. In G. O. Ms. No. 93, dated 11th January 1958, the Government of Andhra Pradesh, in exercise of the powers conferred by Section 34 of the Road Transport Corporations Act, 1950, made an order directing that certain administrative arrangements should come into force. Clause 3 (c) of the Government Order provided : --
'Where immediately before the 11th January 1958, the State Government are subject to any liability in respect of any actionable wrong committed by any employee of the Road Transport Department in the discharge of the duties, such liability shall be the liability of the Corporation.'
Clause 4 provided :--
'The Corporation shall arrange for defending or prosecuting any suit or other legal proceedings filed or commenced by or against the State Government or any employee of the Road Transport Department before the 11th January 1958, and pending on that day.'
5. Every employee of the former Road Transport Department was, by notice, required to intimate in writing his or her willingness or otherwise to take up service under the Corporation before a specified date and any employee of the Road Transport Department who failed to give such intimation, it was provided, should be deemed to have elected to serve under the Corporation. The employees of the Department, who did not wish to opt for service under the Corporation, were allowed to retire on proportionate pension and were extended certain other benefits.
6. In this context, it is necessary to state that in Clause (5) of the Government Order above referred to, it is provided that the members of the staff of the Road Transport Department, who have opted to serve under the Corporation in pursuance of the notices issued to them by the General Manager and the Financial Adviser and Chief Accounts Officer, Road Transport Department, shall be employed by the Corporation subject to such regulations as may be made by it under Section 45(2)(c) of the Road Transport Corporations Act, 1950, and subject to such assurances as had been given to them by Government in their letter No. 104023/57 dated the 27th December, 1957. It is further provided in Clause (6) of the Government order that in respect of all disciplinary proceedings or appeals arising therefrom, pending immediately before the 11th January, 1958, the Corporation shall exercise all the powers of the State Government, under the relevant rule applicable to each case.
7. With this background, we shall now proceed to State briefly the facts which have given rise to the petitions. The petitioners were in the service of the Road Transport Department of the erstwhile State of Hyderabad. In 1954, a Leyland Commet Mark I new radiator was alleged to have been removed by some of the employees from the Stores belonging to the Road Transport Department at Musheerabad. In or about August 1954, an enquiry with regard to the loss of the radiator was conducted by three Officers :-(1) Sri M. Rama Reddy, the Works Manager; (2) Sri K.B. Krishnan, the Labour Welfare Officer; and (3) Sri K.V.K. Nair, the Stores Officer. As a result of their investigation, certain charges were framed against the two petitioners. The charge-sheet against each of them consisted of four counts. The count which was common to both of them was that each pi them had conspired with the other and also certain, other persons mentioned in the charge, for the illegal removal of the radiator. The other three counts showed the specific part each of the petitioners was alleged to have played in removing the radiator. It is not necessary to set out the charges except to state that both the petitioners were placed under suspension by the orders passed by the then Mechanical Engineer on January 24, 1955. As a result of the enquiry, which was later held, the petitioners were dismissed from service, and their appeals against the orders of dismissal, were rejected.
8. The petitioners then moved the High Court for a writ of Certiorari, originally against the State of Andhra Pradesh, to quash the orders of dismissal passed against them. During the pendency of the above proceedings in this Court, the petitioners filed C. M. P. Nos. 696 and 637 of 1958, to bring on record the Corporation on the ground that the assets and liabilities of the erstwhile Road Transport Department had, since the filing of the writ petitions, been taken over by the Corporation. Having regard to the principal contention raised in the present petitions, it is necessary to set out the averment in the affidavits filed in support of the above applications. Paragraph 2, which, is in terms identical in both the affidavits, reads :
'The respondent Government have formed a Road Transport Corporation, Andhra Pradesh, on 11th January, 1958. All the assets and liabilities were taken over by the said Corporation from the R. T. D. and the State Government. It is functioning under a Chairman and he should be brought on record as successor instead of the respondents.
It is therefore just and necessary that this Hon'ble Court may be pleased to bring the Road Transport Corporation as party-respondent in the place of respondents 1 and 2 and pass such other orders.'
9. These applications were duly ordered by this Court. The record of the earlier writ petitions discloses that necessary amendments in the cause-titles were carried out. The legal consequence of the substitution of the Corporation in the place of the Government, which was till then respondent in the writ petitions, was to clearly recognise the fact that the assets and liabilities of the erstwhile Department had devolved on the Corporation. We shall revert to this aspect of the matter a little later.
10. The earlier writ petitions filed by the petitioners were disposed of by a Division Bench of this Court, consisting of the learned Chiet Justice and Mohamed Ahmed Ansari, J., by their judgment dated April 4, 1958, which is reported in Narayana Rao v. The State of Andhra Pradesh, A I R 1958 Andh-Pra 636. The learned Judges, while observing that they were not impressed with most of the grounds taken in the petitions, sustained the complaint made by the petitioners that the rules of natural justice had not been observed in view of the fact that one of the members of the Committee, which was originally constituted to investigate into the loss of the radiator from the Stores of the Department, was also a member of the Committee which disposed of the appeals preferred by the petitioners against the orders of their dismissal from service. The learned Judges observed that by reason of the fact that one of the members of the Tribunal had already pre-judged the issue by reason of his participation in the investigation, the orders were vitiated for want of compliance with the rules of natural justice. The ultimate order of the learned Judges was as follows :
'We therefore hold that these writ petitions must be allowed and the impugned orders of dismissal are set aside. Our judgment will not preclude the Government from proceeding with the enquiry against the writ petitioners afresh according to law.'
11. What happened subsequent to the successful termination of the writ petitions filed by the petitioners in this Court can be briefly narrated. On 5th April 1958, both the petitioners wrote letters to the Chief Executive Officer of the Corporation stating that by the judgment rendered by the High Court, the orders of dismissal passed against them were set aside and that they were offering themselves for duty even from that date. On 9th May 1958, the petitioners were directed to report themselves to Sri N.R.K. Doss, Divisional Engineer (Enquiries), who had been appointed as Enquiring Officer and directed to hold a fresh enquiry in accordance with the directions of the High Court. Sri N.R.K. Doss (hereinafter referred to as the Enquiring Officer) conducted a fresh enquiry and eventually by orders dated 17th November 1958, the petitioners were removed from service. The petitioners preferred appeals to the Corporation against the orders of removal from service. It would appear that their appeals were rejected by orders dated 18th December 1959, It is, however, stated by the respondent -- and this is not contradicted -- that the Appellate Committee of the Corporation reached the conclusion that the orders of removal had been passed on valid grounds but that as an act of clemency, the petitioners should be re-appointed in a lower capacity as cleaner and helper respectively, and that if their service and conduct during the first year of their re-appointment was found to be satisfactory, they would be considered for promotion to their original posts in accordance with the rules in force. It is stated before us that neither of the petitioners has taken advantage of these orders.
12. In the present writ petitions, the learned counsel for the petitioners has raised several grounds. At the outset it is contended that the disciplinary proceedings taken by the Corporation subsequent to the judgment of this Court are void for the reason that it was the Government that was empowered to initiate fresh proceedings and not the Corporation. This incidentally raises the question as to whether the petitioners were employees of the Government which they would be put for the devolution of the right, title and interest of the Road Transport Department of the erstwhile State of Hyderabad on the Corporation, which is an autonomous body formed under the provisions of the Road Transport Corporations Act. That there was a devolution of interest is outside the pale of controversy for it was the petitioners themselves that moved this Court to bring on record the Corporation in the place of the Government, which was till then the respondent on record, in the earlier writ petitions. We have already adverted to the fact that in the affidavits filed by them, the petitioners stated that by reason of the devolution of interest, the Corporation should be brought on record in the place of the Government. However by some inadvertence this fact was not brought to the notice of the Court when the earlier writ petitions were allowed. It was, therefore, that we find that the writs eventually issued by this Court proceeded on the footing that the respondent on record was the Government and not the Corporation. Had the fact of this Corporation having been substituted in the place of the Government been brought to the notice of this Court, we have no doubt that the operative portion of the order issuing the writs would have been directed against the corporation, and so too the order would have empowered the Corporation to initiate fresh proceedings in accordance with law, if the Corporation was so minded. We are of opinion that it is not open to the petitioners to take advantage of the eventual order for the simple reason that it was they that had sought the substitution of the Corporation in the place of the Government.
13. It is to be noted that at no stage of the anterior proceeding till the filing of the present writ petitions in this Court, was any objection raised by the petitioners to the initiation of the fresh proceedings by the Corporation. That apart we find that on 13th May 1958, the Government wrote a letter to the Chief Executive Officer of the Corporation stating, inter alia that as the Corporation was the competent authority to enquire into all disciplinary cases, he should place the cases of the two petitioners before the Corporation for necessary action in the light of the judgment of the High Court. The Government, therefore, treated the petitioners as the employees of the Corporation which position the petitioners themselves accepted without demur by their writing letters to the Corporation to re-entertain them in service pursuant to the judgment of the High Court.
14. There are two other facts, which require to be mentioned in this context, as they have a vital bearing on the contention now raised before us, and they are that the petitioners were paid their salaries by the Corporation from 1st January 1955, till 17th May 1958, that they also, drew their subsistence allowance from the Corporation from 17th May 1958, till 17th November 1958, which they could not have done but for the fact that they treated themselves as employees of the Corporation. The petitioners could not have requested the Chief Executive Officer of the Corporation to reinstate them in service except on the basis that they were the employees of the Corporation. The payment by the Corporation of the arrears of salary and the subsistence allowance, which the petitioners receive without protest, furnishes proof positive of the fact that they were willing to be treated as employees of the Corporation. The acceptance of their salaries and subsistence allowances by : the petitioners from the Corporation would debar them from now turning round and claiming that all along they were employees of the Government and that the Corporation had no jurisdiction to take disciplinary action against them.
15. As pointed out by a Full Bench of the Madras High Court in Latchmanan Chettiar v. Corporation of Madras, ILR 50 Mad 130 ; (AIR 1927 Mad 130) (FB), where an applicant armed with a point either of law or fact, which would oust the jurisdiction of the lower Court, has elected to argue the case on its merits before that Court, he has submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate. The petitioners have in the past so conducted themselves as to preclude this Court from exercising in their favour the discretionary jurisdiction vested in this Court under Article 226 of the Constitution. It may be incidentally mentioned that this Full Bench decision of the Madras High Court was affirmed by their Lordships of the Supreme Court in Pannalal Binjraj v. Union of India. (S) : 1SCR233 .
19. Apart from the rule of estoppel which, in our opinion, operates against the petitioners in raising this ground of objection to the jurisdiction of the Corporation to take disciplinary action against them there is the fact that the Road Transport Department of the erstwhile Hyderabad State ceased to exist as a Department of the Government from January 11, 1958. Before the Corporation came into existence as a separate legal entity, the Government gave individual notices to all the employees of the Road Transport Department calling upon them to intimate the Government whether they would opt out for the service of the Corporation. In the event of the employees opting out for the service of the Corporation, they became its employees subject to the regulations, to be framed by the Corporation governing the terms and conditions of their service. Those employees, who did not opt out for the service of the Corporation, were allowed to retire with certain specified benefits. There was no question, therefore, of any of the employees of the former Road Transport Department continuing to be the employees of the Government, on and after January 11, 1958. The notices clearly gave all the employees of the Road Transport Department intimation that their failure to opt out for the service of the Corporation would involve the termination of their services as and from the date of the coming into existence of the Corporation.
So much is conceded. But what is stated by Sri S. Suryaprakasam, learned counsel for the petitioners, is that when the notices were served on the other employees of the Corporation, the petitioners were agitating their rights in this Court and before the date of the creation of the Corporation, they were not given any notice by the Road Transport Department. This must be so because by the orders passed by the Road Transport Department, the petitioners were dismissed from service in the year 1955. Their writ petitions were allowed by this Court on April 4, 1958, i.e., about three months after the coming into existence of the Corporation. This would not, however, make any difference having regard to the fact that subsequent to the successful termination of their writ petitions in this Court on the former occasion, the petitioners themselves offered their services to the Corporation and indeed made written requests to the Chief Executive Officer of the Corporation to reinstate them in service. That they were actually reinstated in service would appear from the fact that their names were restored to the muster rolls of the Corporation. The fact that they had offered their services to the Corporation and requested the Corporation to reinstate them in service would, in any case, tantamount to the petitioners having exercised option to join the service of the Corporation. For this reason also, it is not now open to them to deny the fact that they were employees of the Corporation on the date on which disciplinary proceedings were initiated against them afresh.
17. Before dealing with the other points raised in these writ petitions, it will be convenient to state a few more facts. Subsequent to the petitioners joining the service of the Corporation, as disclosed by the fact that their names were restored to the muster rolls of the Corporation, they were informed that they were placed under suspension. One of the contentions raised before us is that the Enquiring Officer, Sri N.R.K. Doss, had no jurisdiction to conduct the enquiry on the ground that he is subordinate to the Chief Executive Officer, by whom they were appointed. We have, with the help of the learned counsel, investigated the facts. On a perusal of the records produced before us, we find that the show-cause notices issued to the petitioners did, in fact, emanate from the Chief Executive Officer though Sri N.R.K. Doss had signed those notices for and on behalf of the Chief Executive Officer. The original records also disclose the fact that the Chief Executive Officer it was that issued orders that the enquiry should be started afresh and that show cause notices should issue to the petitioners. Whatever doubt there might be in this behalf is resolved by the fact that the petitioners themselves addressed all their communications during the course of the enquiry to the Chief Executive Officer and not to Sri N.R.K. Doss, the Enquiring Officer. Therefore, there can be little doubt that the petitioners themselves were aware that the enquiry was initiated by the Chief Executive Officer and that Sri N.R.K. Doss was merely conducting the enquiry for and on his behalf.
18. That the actual conduct of an enquiry could be delegated by the head of the department concerned, though the power as such is not susceptible of delegation, has been laid down by their Lordships of the Supreme Court in Pradyat Kumar v. Chief Justice of Calcutta, (S) AIR 1958 S C 285 at p. 291. The following observations of their Lordships at page 291 are pertinent in the present context :
'It is well recognised that a statutory functionary exercising such a power can be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides -- is the ultimate responsibility for the exercise of such power.'
19. Their Lordships also cited with approval a passage from the speech of the Lord Chancellor in Local Government Board v. Arlidge, 1915 A C 120 at p. 133 that unlike a Judge in a Court, a Departmental Head is not only at liberty but is compelled to rely on the assistance of his staff. In view of the above clear statement of the law by the Supreme Court, the objection to the validity of the impugned order on the ground that the delegation of enquiry amounts to delegation of power, is without any substance and must be rejected.
20. It is then said that the Divisional Officer (Enquiries) is a subordinate officer in the Corporation and in the very nature of things, cannot be expected to take an independent view. This ground of objection can be easily answered. The Enquiring Officer is not entrusted with the power of imposing the punishment. His duties commence and end with finding the facts. In other words, he is merely a fact finding authority. Therefore, the question as to whether Enquiring Officer--in this case, the Divisional Officer (Enquiries) was capable of arriving at independent conclusions, does not realty arise.
21. It is then argued that the disciplinary proceedings against the petitioners initiated by the Government could not be continued by the Corporation. Support for this contention is sought by the learned counsel for the petitioners from the absence of any provisions in the Road Transport Corporations Act similar to those found in Section 58 of the Andhra State Act, Section 125 of the States Reorganization Act and Sections 55 and 56 of the Advocate Act, 1961, as also Section 11 of the Life Insurance Corporation Act. We may, however, point out that the Government of Andhra Pradesh after establishing the Road Transport Corporation with effect from January 11, 1958, transferred the business of the erstwhile Road Transport Department to the said Corporation for management. Thus this Corporation has become a successor to the Road Transport Department that originally initiated the disciplinary proceedings against the petitioners. As such, the Corporation is legally entrusted with the duty of carrying on the business which the Department was till then carrying on. As already mentioned, on January 9, 1958, in exercise of the powers conferred by Section 34 of the Road Transport Corporations Act, 1950, the Government of Andhra Pradesh, made an order which inter alia provided that 'the Andhra Pradesh Road Transport Corporation shall take over the management of the existing Road Transport Department of Andhra Pradesh.' Section 34 itself provides :
'(1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to he paid to the employees, reserves to be maintained by it and disposal of its profits and stocks.
(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under Sub-section (1) except with the previous permission of the State Government.'
It was pursuant to the power conferred by Section 34 that the Government passed G. O. Ms. No. 93 dated 11th January 1958, which inter alia provided for the continuance of any legal proceedings, initiated by the Department against any of its employees, by the Corporation. By reason of the specific instructions issued by the Government under Section 34 of the Road Transport Corporations Act, the Corporation was entitled to continue the disciplinary proceedings already initiated by the Road Transport Department. That apart, we have already mentioned, there was also a specific direction issued by the Government transferring the cases of the petitioners to the Corporation for necessary action subsequent to the judgment of this Court in the earlier writ petitions. We are not, therefore, persuaded that there is any merit in the above objection.
22. We shall now deal with the other subsidiary contentions raised by the learned counsel for the petitioners. It is stated that Shri Guru Prasad who had accepted the findings of the Divisional Officer (Inquiries) and passed the final orders removing the petitioners from service, was biased because he had committed himself to a particular view in a collateral proceeding which arose under the Payment of Wages Act. This contention is found upon the following facts :
23. There was an application by one K.V.S. Prakasa Rao under the provisions of the Payment of Wages Act before the authority constituted under that Act. In the said proceedings, the Chief Executive Officer filed a counter affidavit wherein he referred to the confessional statements said to have been made by the said Prakasa Rao in the preliminary investigation. It is said that the averments contained in the said counter affidavit disclose that Shri Guru Prasad had really prejudged the case o the petitioners. It may be stated that the present petitioners were not parties to the proceedings before the Authority under the Payment of Wages Act, and there was no direct or indirect reference to the case of the petitioners therein. It may also be stated that the alleged statement from which bias is sought to be deduced was made in a counter affidavit filed by the Chief Executive Officer subsequent to the date of the order passed by him in the earlier proceedings and before the matter was disposed of by the High Court in the judgment already referred to.
24. It is then stated that the confessional statement of K.V.S. Prakasa Rao made in the course of the preliminary investigation could not be looked into by the Enquiring Officer for the purpose of recording a finding in the present enquiry. The Enquiring Officer did in fact hold a fresh enquiry. Each person, whose evidence was relevant to the enquiry, was called in the course of the fresh enquiry, the circumstances of the case were put to him and he was specifically asked whether on a previous occasion he did or did not give a particular statement and he either admitted or denied it. The report of the Enquiring Officer has not been placed before us, and so far as we are able to gather, the disputed confessional statement does not appear to have been made the basis for the findings recorded by the Enquiring Officer.
25. The next point raised before us is that assuming that the petitioners were guilty of complicity in the theft of the radiator, the proper course for the department would have been to institute criminal proceedings against them inasmuch as the alleged theft would amount to an offence under the Penal Code. As pointed out by the Divisional Bench of this Court consisting of Subba Rao, C. J., and Bhimasankaram J., in Joga Rao v. State of Andhra, 1956 Andh L T 979, at p. 990 : ( (S) A I R 1957 Andh Pra 197 at p. 203):
''A particular act may be so grave and reprehensible that it calls for a criminal prosecution. Another act may be trivial enough to be disposed of by departmental enquiry. A particular act, though grave in its nature, there may not be sufficient evidence to establish it in a Court of law, whereas the material may be sufficient to take departmental action. It cannot be stated that an enquiry in a criminal Court and disciplinary proceedings can be equated, for, in one the offence should be brought home to the accused, but in the other grave and suspicious circumstances may end in a removal of the servant.'
28. The fact that a particular act attributed to the delinquent officer amounts to an offence under the Penal Code does not necessarily entail a duty on the part of corporation to take proceedings in a criminal Court. It is left to the choice of the corporation either to prosecute the delinquent or to proceed against him departmentaly. The choice is left to the employer and not to the employee. The same was the view taken in Karuppa Udayar v. Madras State, A I R 1956 Mad 460 where Mr. Justice Rajagopalan observed as follows :
'The fact that the charges framed against a public servant make out the ingredients of an offence punishable under the Penal Code and that the person can be prosecuted in a criminal Court does not affect the jurisdiction of his superior officers to enquire into the truth of the charge in a departmental enquiry or to punish him, if the charges are proved, without recourse to a criminal Court.'
27. The last of the points raised before us relates to a supposed procedural irregularity at the enquiry, which is that under Rule 13.10 (d), a deanite charge or charges in writing should be framed and explained to the servant in respect of each offence which has not been admitted by him. What appears to have been done was that a preliminary show-cause notice was given to the petitioners and after the receipt of their explanations, charges were framed against them. Thus there was no departure from the procedure envisaged by Rule 13.10 (d). This disposes of all the points raised in these writ petitions.
28. As a result of the conclusions reached by us, it follows that the petitioners are not entitled to any of the reliefs sought for by them.
29. As already stated, in an earlier part of this judgment, while disposing of the appeals preferred by the petitioners, the appellate committee of the corporation, as an act of clemency, offered to rein-state them as helper and cleaner respectively. The appellate committee also observed that if their conduct was found to be satisfactory, the question of their reinstatement in their former posts would be considered. Nothing stated in this judgment shall have the effect of affecting this portion of the order passed by the appellate committee.
30. In the result, the writ petitions are dismissed with costs. Advocate's fee in each petition is fixed Rs. 100/-.