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Chandra Kishore Vs. Accountant-general and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1967)IILLJ758All
AppellantChandra Kishore
RespondentAccountant-general and anr.
Excerpt:
.....merely assisting his father and he could not be said to be engaged directly or indirectly in the trade or business. he bad helped his wife, who had started an identical business, in her business by introducing her to the bankers, by obtaining a lease of the shop in her name, by introducing her to wholesale merchants and by writing a circular inviting old customers to come to the shop. i agree that this is evidence which might well lead to the inference that the business was in reality his, and not his wife's, or partly his and partly hers, which would suffice to constitute a breach of covenant by the husband, for he would then have an interest in the business. if the husband had performed similar acts in like circumstances for a stranger who was betting up business on his own account,..........petitioner was not interested in the business though he had interested himself on behalf of his father. engaged in or carrying on a trade or business means to carry it on one's own amount, so that one should have the profits or a portion of the profits of it. that is cot the finding in the present case. the petitioner had no share in the profits of the shop. a servant or any other person doing the work of a servant cannot be said to be carrying on the business. therefore, on the facts as found in the present case, there la no room for doubt that the petitioner was not himself engaged directly or indirectly in any trade or business and had not committed any breach of rule 12.4. the second contention of the learned counsel for the petitioner that the petitioner could not be removed on a.....
Judgment:

G.C. Mathur, J.

1. The petitioner was a lower division clerk working In the office of the Accountant-Genera, Uttar Pradesh, Allahabad. A charge-sheet, dated 13 February 1963, was served upon him and he was required to submit his written statement to the charge. The charge levelled was In these words:

That the said Chandra Kishore, while functioning as lower division clerk, office of the Accountant-General, Uttar Pradesh, Allahabad, during the year 1962, without the previous sanction of the Government, engaged himself in the business of chemists and druggists at Allahabad with effect from 13 August 1962 Inasmuch as he himself ran the shop, Raman Chemists and Drugglsts, in the name of his father, Sri Chauharja Prasad, under licence Nos. 23 and 18 dated IS August 1963 obtained from the District Officer of Health, Allahabad, in favour of the said firm, and he sold medicines and Issued cash memoranda in respect of such sale at the said shop.

He thereby contravened Rule 12 of the Central Civil Services (Conduct) Rules, 1955.

The petitioner submitted hid written statement and, after Inquiry, the inquiry officer gave his findings on 11 July 1963. On 6 November 1963, the Accountant-General gave show-cause notice to the petitioner stating that he was In fall agreement with the findings of the Inquiry officer and required the petitioner to show cause why the penalty of removal from service should not be Inflicted upon him. The petitioner showed cause but, by order, dated 25 January 1964, the Accountant-General removed the petitioner from service with effect from the date of his order. Against the order of the Accountant-General, the petitioner preferred an appeal to the Comptroller and Auditor-General of India, New Delhi. He was Informed by a communication, dated 21 May 1966, that his appeal had been rejected. Thereupon he filed this writ petition.

2. Two main contentions have been raised by the learned Counsel for the petitioner: The first la that, on the charge as framed and on the finding on that charge, the petitioner has not contravened the provisions of Rule 12. The second is that the Inquiry officer having found the charge levelled to be disproved, the petitioner could not be punished on the basis of some other charge of which the petitioner had not been given any notice.

3. The relevant portion of Rule 12 (1) of the Central Civil Services (Conduct) Rules, 1955 (hereinafter referred to as the rules), reads thus:

12. (1) No Government servant shall, except, with previous sanction of the Government, engage directly or Indirectly in any trade or business or undertake any employment:Provided that a Government servant may, without such sanction, undertake honorary work of social or charitable nature or occasional work of a literary, artistic or scientific character, subject to the condition that his official duties do not thereby suffer; but he shall not undertake or shall discontinue, such work If so directed by the Government.

The charge against the petitioner was that he had engaged himself directly or indirectly In a business. He was not charged with undertaking any employment. The inquiry officer has recorded the following findings:

(1) The charge that the petitioner was himself running the shop In the name of he father was not proved.

(2) The petitioner participated in the business of his father by regularly writing cash memoranda and initialling them on occasions.

(3) The petitioner used to be in charge of the shop during the period of his father's absence from the shop though he did not handle cash.

(4) Since the petitioner was a member of the joint family of his father, he derived benefit from the profits of the shop since the profits were utilized for the common purpose of the joint family.

The main charge that the petitioner was himself running the business was held not to be proved. The only fact which was found against him, was that he was assisting his father by regularly writing cash memoranda and occasionally signing them. The question which arises for consideration is whether, in doing so, the petitioner could be said to have bean engaged directly or indirectly In any trade or business. I am clearly of the opinion that the petitioner was merely assisting his father and he could not be said to be engaged directly or Indirectly In the trade or business. The work, which the petitioner was doing, was a work which an employee of the shop could have done. The utmost that could be said is that, on amount of doing this work, the petitioner's father had not to keep an employee for this purpose. The enquiry officer has not found that the petitioner had invested any amount In the business or that he was indenting the medicines to be sold at the shop or that he was handling the sale-proceeds of the medicines. Nor has ho found that the petitioner had a share in the profits of the shop. Is fact, there is no finding: that the petitioner was doing any such work as would indicate that he was himself engaged in the business. The finding is that he was not himself directly engaged in the business but was participating in it by writing cash memoranda. By writing cash memoranda, the petitioner may have been acting as an employee but the charge against him was not that he had undertaken any employment. Learned Counsel for the petitioner has referred to several English decisions where the words similar to the words ' engaged in any trade or business ' have been considered. In Smith v. Hancock (1894) 2 Ch. D. 377, Hancock had sold his business to Smith and the agreement provided that he shall not ' carry on or be in anyway interested in' any similar business. He bad helped his wife, who had started an Identical business, In her business by Introducing her to the bankers, by obtaining a lease of the shop In her name, by Introducing her to wholesale merchants and by writing a circular Inviting old customers to come to the shop. It was held that Hancock was not carrying on any business, A.L. Smith, L.J., observed:

I agree that this is evidence which might well lead to the inference that the business was In reality his, and not his wife's, or partly his and partly hers, which would suffice to constitute a breach of covenant by the husband, for he would then have an Interest in the business. But, when this Inference, is disproved, as, In my judgment, it is In this case, how do the acts of the husband constitute a breach of the agreement sued on? He has of Interest whatever in the business Itself, which Is that of his wife, carried on by her for her own purposes, though he has taken an interest In her succeeding therein, which these act,; of his show that he has done. If the husband had performed similar acts in like circumstances for a stranger who was Betting up business on his own account, in my judgment It could not be said that he was in any wise interested In the business, though ho had interested himself on behalf of the stranger; and so now the same result follows If he does the same acts for his wife ...

It can equally be said in the present case that the petitioner was not Interested in the business though he had Interested himself on behalf of his father. Engaged in or carrying on a trade or business means to carry It on one's own amount, so that one should have the profits or a portion of the profits of It. That is cot the finding In the present case. The petitioner had no share In the profits of the shop. A servant or any other person doing the work of a servant cannot be said to be carrying on the business. Therefore, on the facts as found In the present case, there la no room for doubt that the petitioner was not himself engaged directly or Indirectly in any trade or business and had not committed any breach of Rule 12.

4. The second contention of the learned Counsel for the petitioner that the petitioner could not be removed on a charge other than that which had been levelled against him does not really arise In this case as the petitioner has not been removed on the charge of taking employment. What the authorities have held is that, though the petitioner was not himself carrying on the trade or business, he was participating In It and, therefore, he violated the rule. I have already held above that, by merely assisting his father by writing cash memoranda, the petitioner could not be said to be engaged in the trade or business and could not be said to contravene Rule 12. There being in law no contravention of Rule 12, the removal of the petition from service for contravention of Rule 12 is illegal.

5. For the reasons set out above, I allow this writ petition and quash the order of the Accountant-General, dated 25 January 1964, and the order of the appellate authority communicated in the letter, dated 21 May 1066. The petitioner will be entitled to his costs of this petition.


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