S.S. Dhavan, J.
1. This is a petition under Article 226 of the Constitution praying for the quashing of an order of the Collector of Fatehpur disapproving of the re-employment of the petitioner as a Tahvildar. The petitioner also asks for an order directing his re-instatement as a Tahvildar. The facts, as alleged in the affidavit supporting the peiition, are these:
The petitioner was appointed a Tahvildar by the Government Treasurer, Fatehpur on 14-1-1949. He was involved in an embezzlement case which led to his prosecution. This resulted in the discharge of the petitioner and the termination of his appointment as Tahvildar. Subsequently the learned Magistrate, who tried the criminal case held that the petitioner was not technically guilty of any offence under Section 409 of the Indian Penal Code and discharged him. He, however, observed that the conduct of the petitioner might afford good ground for any departmental action against him.
2. After he had been discharged in the criminal case the petitioner made an application for his re-instatement as Tahvildar. The application was forwarded by the Government Treasurer, but the Collector, in the exercise of his powers under R. 47 of the Sub-Treasury Manual refused to approve of his re-employment. Consequently the Government Treasurer did not re-employ him. Aggrieved by the decision of the Collector withholding his approval, the petitioner has come to this Court for relief under Article 226 of the Con-stitution.
3. The petition is opposed by the State and a counter-affidavit has been filed. It is denied that the petitioner is a Government servant or entitled to the protection of Article 311 of the Constitution. It is stated on behalf of the State that Tahvildars are not Government servants. No Character Roll of Tahvildars is maintained. It is conceded by the State that the Collector refused to accord his approval for the petitioner's re-employment, but it is contended that the petitioner was not removed from his post by any order of the Collector, who merely withheld his approval of his re-appointment. According to the State the petitioner's services were terminated by his own employer that is, the Government Treasurer.
4. Learned counsel for the petitioner, Miss N. A. Rahman, who argued this case with great force and ability, submitted the following arguments:
5. The petitioner was the holder of a civil post under the State within the meaning of Article 311(1) of the Constitution. Therefore, he could not have been removed from his post without having been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
6. Miss Rahman relied upon a decision of Mehrotra, J. in the case of Audh Narain Singh v. Collector, AIR 1957 All 779. In that case the learned Judge held that a Tahvildar, though employed by the Treasurer, is under the control of the State Government and is therefore, entitled to protection under Article 311 of the Constitution. As the judgment of the learned Judge did not contain a full statement of the facts relating to that case, I sent for the file and perused the affidavits in that case. The petitioner in that case was a Tahvildar. There were some complaints against him.
The Collector directed the Government Treasurer to replace the man. Consequently one day he was told, when he went to the Treasury, that orders had been received for his removal and that he should give charge of his office to another person. The Tahvildar then filed the writ petition which was allowed by the learned Judge. The petition was opposed by the State and a counter-affidavit was filed. It was stated therein that Tahvildars are not Government servants, and that the post of Tahvildar had been abolished by an orderdated 25th July 1927. (This obviously meant that the post of Tahvildar, as a Government post was abolished).
It was further stated in the counter-affidavit of the State that, before the decision to abolish the post, Tahvildars were paid from the general revenues of the State, but after November 1, 1927, they were appointed by the Government Treasurers and were their employees. It was further stated that the Government had taken steps to ensure that the Government Treasurer should properly disburse the salaries of employees under him. With this object in view, they had adopted the praetice of paying the salaries of Tahvildars direct to them and deducting it from the allowance paid to the Government Treasurer. It was further stated that the Government Treasurers had full control over the Tahvildars to enable them to appoint reliable persons or to remove any one who had lost their confidence.
A Government order of the year 1932 was attached to the counter-affidavit in which it was explained that the object of abolishing the posts of Tahvildars and dispensing with their services was to give Government Treasurers full control over Tahvildars. Paragraph 8 of the counter-affidavit in that case was as follows:--
'That the tahvildars are appointed and controlled by the Government Treasurer as they are his employees except this that the Government Treasurer must not employ any person in the treasury or sub-treasury without the approval of the District Officer, who can also ask the Government Treasurer to remove any person so appointed by him. The appointment, removal, dismissal, leave and other conditions of service of tahvildars are determined by the Government Treasurer himself though the treasurer has, however, followed the instructions of the District Officer if in his opinion it is not necessary to remove, or transfer the tahvil-dar from one tahsil to the other.'
7. On these facts the learned Judge held that Tahvildars were subject to the control of State Government. To quote from the judgment, 'having considered all the circumstances of the case I am of the opinion that, although the petitioner was employed by the Treasurer, he is under the control of the State Government. The petitioner is, therefore, entitled to protection under Article 311 of the Constitution.'
8. Miss Rahman made this judgment as the sheet-anchor of her case and strongly urged that I have no option but to follow it.
9. In coming to the conclusion that the petitioner was entitled to the protection of Article 311 of the Constitution, the learned Judge based his decision almost entirely on a decision of the Supreme Court in Shivnandan Sharma v. Punjab National Bank Ltd., (S) AIR 3955 SC 404. The facts of that case were these. The Punjab National Bank appointed a certain firm, Messrs. Rai Bahadur Karam Chand Puri and Brothers, as the Bank's treasurers at the Head Office of the Bank and other places in and outside the Punjab.
Subsequently the Bank decided to close down its office at Una and informed the Treasurers of this decision. They, in turn, wrote a letter to their employees that the Una Branch would cease to function from a certain date and that their services would no longer be required. One of the employees. Shivnandan Sharma, who was employed as a cashier of the Treasurers, claimed relief under the Industrial Disputes Act of 1947. He alleged that he was an employee of the Bank and that there-fore the Bank could not remove him. The dispute was referred by the Government of India for adjudication to the Industrial Tribunal at Calcutta.
10. The Punjab National Bank contended that the firm Messrs. Rai Bahadur Karam Chand Puri and Brothers had been their contractors at the Head Office and some other Offices, that according to a written agreement executed between the Bank and the firm, the Bank had nothing to do directly with the employment of Cashiers and other workers in the Cash Department, such matters being in charge of the treasurers who were described as contractors of the Bank. The Industrial Tribunal held that the termination of the services of Shivnandan Sharma was wrongful.
On appeal to the Labour Appellate Tribunal by the Bank, this decision was reversed and it was held that the Cashier was not an employee of the Bank but of the Treasurers and that, therefore, the Tribunal had no jurisdiction to give any relief to the complainant before it. The employee then filed an appeal to the Supreme Court against the decision of the Appellate Tribunal.
11. Their Lordships held that if a master employed a servant and authorised him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master. They rejected the contention of the Bank that, even if the Treasurer-firm were held to be the servants of the Bank and were authorised to appoint and dismiss the ministerial staff of the Cash Department, the legal position of the employees of the Cash Department vis-a-vis the Bank would be the same, and that these employees would be in law the servants of the Treasurers.
In rejecting this argument, their Lordships observed that if the relationship between the treasurer-firm and the Bank was that of servant and master, simply because the servants were authorised to appoint and dismiss the ministerial staff of the Cash Department, would not make the employees in the Cash Department independent of the Bank, Their Lordships further observed that, in that situation, the ultimate -employer would be the Bank through the agency of the treasurers.
12. Their Lordships closely examined the relationship between the Bank and the treasurer-firm. They scrutinised the agreement between the Bank and the firm. Nearly two pages of the Law reports are devoted to an analysis of this agreement. After a careful consideration of all the relevant facts, including the agreement, their Lordships arrived at the conclusion that the treasurer-firm were the servants of the Bank. This inevitably lead to the further conclusion that the employees appointed by the servants were equally with their employer the servants of the common master. Their Lordships, therefore, held that Shivnandan Sharma was the employee of the Bank and that the Industrial Tribunal had the jurisdiction to make the award which it did.
13. Applying the principles laid down in Shivnandan's case, (S) AIR 1955 SC 404, Mehrotra J. examined the question whether the Government Treasurer employing a Tahvildar is an employee of the State Government or not. The learned Judge observed as follows:
'The treasurers themselves are under the control of the State Government.
'It is not stated in the counter-affidavit that the treasurers are not employees of the State Gov-ernment. If they are employees and are not in the position of independent contractors, any person employed by them in order to carry out the work entrusted to the treasurers by the Government cannot be different from the treasurers themselves and they also cannot be any thing but employees of the State Government, merely, on account of the fact that they are directly appointed by the treasurers.
'Nothing has been pointed out by the Standing counsel in the counter-affidavit which would go to show that the treasurers are not employees of the State Government but they are in the nature of independent contractors.'
14. From this observation it would appear that the learned Judge held that, in the absence of any statement by the State to the contrary, the Government Treasurer must be held to be an employee of the State Government. There is nothing in the judgment to show that the relationship between the Government Treasurer and the State Government Was analysed. The petitioner's affidavit had made no allegation that the Government Treasurer, his employer, was an employee of the State. In paragraph 5 of the affidavit it was stated as follows:--
'That the system prevailing in the treasuries is that the contract of the cash department of the treasuries is given to a person who is called the Government Treasurer and who is paid certain amount for it. The Government Treasurer is responsible for the loss and it is through the Government Treasurer that the Tahvildars are employed, But as has already been stated the payment of salary and other emoluments, their conditions of service, appointment, removal, dismissal and leave are all under the direction of the Collector and the Government Treasurer.'
15. Thus the petitioner in that case had expressly stated that the contract of the Cash Department of the treasuries is given to a person who is called a Government Treasurer and who is paid certain amount for it'. Thus the petitioner's own case was that the Government Treasurer was a Contractor. It was, therefore, not incumbent on the respondent State in that case to deny something which had not even been asserted. If the petitioner's argument had been, 'My employer, the Government Treasurer, is a State employee, and therefore I, his servant, am also the State employee', it would have been necessary for the State to deny this fact. But it was not incumbent upon them to deny an allegation which had not been made.
However, the learned Judge appears to have made this absence of denial the basis of his finding that the Government Treasurers are employees and not in the position of an independent contractor. With due respect, it is difficult for me to see how, on the material on the record in that case, it is possible to analyse the relationship between the Government Treasurer and the State or to conclude that that relationship is that of master and servant.
16. It is also noteworthy that the learned Judge based his finding that the petitioner in that case was entitled to the protection of Article 311 of the Constitution not on the ground that his employer was a servant of the State but on the ground that the petitioner himself, as Tahvildar, was subject to the control of the State Government. To quote from the judgment of the learned Judge,
'Applying these tests it is clear that the Tahvil-dars were subject to the control of the State Government. Having considered all the circumstancesof the case I am of the opinion that although the petitioner was employed by the treasurer, he is under the control of the State Government. Thepetitioner is, therefore, entitled to protection under Article 311 of the Constitution.'
17. It would, therefore, appear that the question whether the Tahvildar could be a State employee simply because of the fact that his own employer was a servant of the State was not decided by the learned Judge. He started with the discussion of this question but arrived at no definite conclusion. In the end he held that Tahvildars were entitled to the protection of Article 311 of the Constitution because they were subject to the control of the State Government.
18. With very great respect, I am unable to hold that Tahvildars are entitled to protection under Article 311 of the Constitution merely because the Government has retained the control over their appointments, removal, and transfers by the Government. This control expressly states that Tahvildars are not Government servants. Para 47 of the Sub-Treasury Manual issued by the State Government is as follows :
'47. (1) Tahvildars at sub-treasuries are not Government servants. They are employed by the treasurer who receives an allowance from the Government to cover their pay and leave salary. The treasurer, however, shall not employ any person as a tahvildar without the approval of the district officer. The treasurer shall remove a tahvildar or transfer him from one tahsil to another if required by the district officer to do so on any ground which in the hitter's opinion justifies such a step.'
19. I see nothing in this rule to justify the conclusion that Tahvildars are civil servants and entitled to protection under Article 311 of the Constitution. On the contrary, their status as employees of the Treasurer is clarified by this very rule. The Government has merely retained a measure of control over the powers, of the Government Treasurer in the matter of removal, transfer and appointment of Tahvildars. Prom this one fact alone it is not possible to conclude that Tahvildars are employees of the State. It must be considered in the light of others. It is stated in the counter affidavit of the State that Tahvildars are not Government servants and, therefore, no Character Roll in respect of them is maintained.
20. Learned counsel for the petitioner in this petition conceded that the petitioner had placed no material before the court to enable it to decide whether the relationship between the Government Treasurer and the State is that of servant and master. That being so the decision of the Supreme Court in Shivnandan's case, (S) AIR 1955 SC 404, is of no avail to the petitioner, as the basis of that decision was the principle that if a master employs a servant and authorised him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees appointed by the servant would bo equally with the employer, servants of the master.
21. Miss Rahman then relied upon a decision of the Supreme Court in the case of G. A. Monterio v. State of Ajmer, 1957 All LJ 5 : (S) AIR 1957 SC 13. In that case the question involved the interpretation of the phrase 'officer of the Government' as used in Section 21(9) of the Indian Penal Code. A person had been convicted of Section 161 of the Indian Penal Code for the offence of having accepted illegal gratification. He was a Class III servant employed as a Metal Examiner. The chargeagainst him was that he accepted a sum of Rs. 150/- as illegal gratification for securing a job for another man.
In defence it was argued on his behalf that he was not an Officer within the meaning of that term as used in Section 21(9) of the Indian Penal Code, as he was not employed to exercise to any extent or in any circumstances the delegated functions of Government. It was further argued that he was neither armed with any authority or representative character nor responsible for duties immediately auxiliary to those of some one who was so on.
Their Lordships of the Supreme Court held that the accused was an Officer within the meaning of Section 21(9) and therefore, a public servant within the meaning of Section 21 of the Indian Penal Code, and being such a public servant, he came within the definition of this term as used in Section 2 of the Prevention of Corruption Act No. II of 1947.
22. I am afraid this decision has no relevance to the question whether the present petitioner is or is not a member of a civil service of the State or holder of a civil post under the State. It was conceded by Miss Rahman that the definition of the words 'public servant' in Section 21, including Clause (9) is much wider than a member of a Civil Service or a holder of a civil post.
23. Miss Rahman lastly contended that a Government Treasurer must be deemed to be a servant of the State because he cannot employ any person as a Tahvildar without the approval of the Collector and is bound to remove a Tahvildar or transfer him from one tahsil to another if the Collector requires him to do so. I am afraid I do not agree. Rule 47 of the Government Sub-Treasury Manual, on which Miss Rahman's argument is based, starts by stating that Tahvildars are not Government servants. The mere fact that the Government exercises some control over the Government Treasurers in the matter of appointment of Tahvildars is not of itself sufficient to make the Tahvildar as an employee of the State.
If governmental control, in the matter of removal or dismissal or punishments of employees is enough to make an employer a servant of the State, many industrial concerns would be included in the definition of employee of the State, for under the modern industrial laws the State exercise a strict control over the right of employers to dismiss, remove or punish their workmen. An employer remains an employer even if his right to appoint, dismiss, remove or punish his employees is controlled by the State. Such control does not make the employer an employee of the State.
24. For these reasons, I hold that the petitioner, as Tahvildar, was not a member of the Civil Service of the State nor was he a holder of a civil post under the State. I am also unable, on the material before me, to hold that his employer, the Government Treasurer, was an employee of the State. The petitioner is, therefore, not entitled to the protection of Article 311 of the Constitution. The petition is dismissed with costs.