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Mazhar HussaIn Vs. Madhya Pradesh State Road Transport Corporation (by Divisional Manager) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1968)IILLJ287MP
AppellantMazhar Hussain
RespondentMadhya Pradesh State Road Transport Corporation (by Divisional Manager)
Cases ReferredState of Andhra Pradesh v. S. Sri Rama Rao
Excerpt:
- - he became an employee of an incorporated body constituted under a central act and ceased to hold a civil post under the state within the meaning of article 311. speaking generally, the legal position is that employees of statutory corporations like the damodar valley corporation, the calcutta port trust, improvement trust, the state co-operative bank, the state bank of india, a district board or municipality, which are separate legal entities having independent existence, do, not hold such civil posts-bibuii bhusan v......passed on 4 february 1963 whereby he was dismissed from the service of the madhya pradesh state road transport corporation.2. the facts of the case are these. the petitioner was employed as an assistant traffic inspector under the central provinces transport services, which was a state-owned transport undertaking, till 1 june 1962 when the madhya pradesh state road transport corporation constituted under section 3 of the road transport corporation act, 1950 (64 of 1950), took it over. the petitioner agreed to his services being transferred to the corporation on the following conditions:(i) his existing pay and scale and the conditions of his service will not be affected by the transfer.(ii) the transfer of his service will not be treated as an interruption of his service. in other.....
Judgment:
ORDER

K.L. Pandey, J.

1. This is a petition under Article 226 of the Constitution to call up and quash by certiorari the departmental enquiry proceedings drawn up against the petitioner, including the final order therein passed on 4 February 1963 whereby he was dismissed from the service of the Madhya Pradesh State Road Transport Corporation.

2. The facts of the case are these. The petitioner was employed as an assistant traffic inspector under the Central Provinces Transport Services, which was a State-owned transport undertaking, till 1 June 1962 when the Madhya Pradesh State Road Transport Corporation constituted under Section 3 of the Road Transport Corporation Act, 1950 (64 of 1950), took it over. The petitioner agreed to his services being transferred to the corporation on the following conditions:

(i) His existing pay and scale and the conditions of his service will not be affected by the transfer.

(ii) The transfer of his service will not be treated as an interruption of his service. In other words, he will be entitled to leave and other benefits on the same basis as if his service under the corporation was a continuation of the total uninterrupted service under the Central Provinces Transport Services.

3. By an order, dated 6 December 1961, a departmental enquiry was held against the petitioner on the following two charges relating t misconduct which, it was alleged, he had committed on 29 June 1961:

(i) Gross negligence in checking duty.

(ii) Abetting dishonesty in connexion with the business of the concern.

The enquiry was duly held and the report dated 13 April 1962 to the effect that both the charges were proved against the petitioner was submitted to the authority competent to punish him. Thereupon, as usual, a show-cause notice dated 10 July 1962 was issued to the petitioner and he submitted thereto his reply dated 21 July 1962. Finally, by the impugned order dated 4 February 1962, the Divisional Manager dismissed the petitioner.

4. The petitioner has called in aid Article 311 to support this petition for a writ under Article 226 of the Constitution. It is not disputed before us an is otherwise obvious that, while the petitioner was employed under the Central Provinces Transport Services, which was a State undertaking, he was a member of a civil service of this State and was, therefore, entitled to the protection afforded by Article 311-Central provinces Transport Services v. Ishwari Prasad Tiwari (Letters Patent Appeal No. 2 of 1959, decided on 27 July 1961) and Nawab Ali and Anr. v. State of Madhya Pradesh and Anr. Miscellaneous Petition No. 246 of 1961, decided on 14 December 1961. There was a radical change in that position when, with the consent of the petitioner, his services were transferred to the Madhya Pradesh State Road Transport Corporation. He became an employee of an incorporated body constituted under a Central Act and ceased to hold a civil post under the State within the meaning of Article 311. Speaking generally, the legal position is that employees of statutory corporations like the Damodar Valley Corporation, the Calcutta Port Trust, Improvement Trust, the State Co-operative Bank, the State Bank of India, a district board or municipality, which are separate legal entities having independent existence, do, not hold such civil posts-Bibuii Bhusan v. Damodar Valley Corporation : AIR1953Cal581 ; Damodar Valley Corporation v. Prooat Roy 60 C.W.N. 1028; Nagendra Kumar v. Commissioner, Pori of Calcutta : AIR1955Cal56 , Mohammad Ahmad Kidwai v. Chairman, Improvement Trust 1958-II L.L.J. 281 (F.B.); Baleswar Prasad v. Agent, State Bank of India, Gaya Branch I.L.R. 37 Patna 431; Suprasad Mukherjee v. State Bank of India and Anr. 1961-II L.L.J. 736; and Ramnath Sharma v. State of Madhya Bharat and Ors. 1959-I L.L.J. 618. In regard to the employees of a company, the shares of the employees of a company, the shares of which are wholly owned by Government, the position is not different-Subodh Ranjan Ghosh v. Sindri Fertilizers and Chemicals, Ltd. 1957-II L.L.J. 686 and K.M. Shrivastava v. General Manager, Hindustan Steel (Private), Ltd. (Miscellaneous Petition No. 225 of 1957, decided on 19 November 1958). The principle underlying these decisions applies, and has been extended to corporations constituted under the Road Transport Corporations Act, 1950 (64 of 1950); Andhra Pradesh State Road Transport Corporation v. Income-tax Officer A.I.R. 1962 A.P. 323 and Prafulla Kumar v. Calcutta State Transport Corporation : AIR1963Cal116 . In view of these authorities, which in our opinion, correctly state the law, the petitioner cased to hold a civil post under the State as soon as his services were transferred to the Madhya Pradesh State Road Transport Corporation and he could not, thereafter, claim the protection afforded by Article 311.

5. It is, however, urged that, since the conditions of the petitioner's service remained unaffected by the transfer, he cannot be regarded as having forfeited the constitutional protection under Article 311. We are unable to accept this contention if it implies that, notwithstanding the transfer of the petitioner's service, he contained to remain under the disciplinary control of the authority which initially appointed him. In our opinion, as soon as he, by reason of his transfer, cased to hold a civil post under State, he became disentitled to invoke the protection afforded by Article 311 even though, by one of the stipulations governing the transfer, the conditions of his service remained unaffected. The reason is that the protection under the article, as conceived and made available, attached to certain persons employed in civil capacities under the Union or any State, and cannot be the subject-matter of any contract. In this situation, the most that the stipulation retaining unaffected the conditions of the petitioner's service can mean is that the authority duly and legally substituted in place of the old employer will substantially make available to him condition not less favourable than those applicable to him immediately before the transfer.

6. The learned Counsel for the petitioner further urged that the conclusions about the petitioner's guilt were reached without a fair and proper consideration of the evidence fair and proper consideration of the evidence led in the enquiry and the final order passed was also vitiated because it was grounded upon a consideration of the pass service record without giving to the petitioner any opportunity to show that it was not really adverse or that it could not be used against him. In the end the counsel argued that the Madhya Pradesh State Road Transport Corporation could not punish the petitioner for a fault committed before his service was transferred to the corporation. To each of these contentions, there is an answer. Even in a case properly falling under Article 311, there can be no interference with findings of fact recorded in the departmental enquiry if there be some legal evidence on which the conclusions can be based-State of Andhra Pradesh v. S. Sri Rama Rao 1964-II L.L.J. 150. Again, if the past service record is not made available to the delinquent employee, the punishment awarded to him is not vitiated where, as in this case, such record is used only to see whether a lesser punishment could be awarded. Finally, we are of the opinion that since the corporation took over all the assets and liabilities of the Central Provinces Transport Services and the petitioner's services were continued uninterrupted (Rules 2 and 3), it had the right to proceed with pending disciplinary proceedings. In any event, as was pointed out in K.M. Shrivastava case Miscellaneous Petition No. 225 of 1957, decided on 19 November 1958), whatever other remedy the petitioner, who doss not hold any civil post, may have, he cannot bring before this Court a dispute of this character for a writ under Article 226 of the Constitution.

7. The result is that the petition fails and is dismissed. The petitioner shall bear his own costs and pay out of the security amount those incurred by the respondent. The remaining amount of security shall be refunded. Hearing fee Rs. 100.


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