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Deva Gir Vs. Delhi Transport Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 762 of 1974
Judge
Reported inILR1976Delhi534
ActsDelhi Municipal Corporation Act, 1957; Constitution of India - Article 226; Road Transport Corporation Act, 1950 - Sections 12
AppellantDeva Gir
RespondentDelhi Transport Corporation
Advocates: D.N. Vohra,; S.N. Bhandari and; K.B. Soni, Advs
Cases ReferredDiwakaran v. Circle Inspector of Police
Excerpt:
(i) delhi municipal corporation act, 1957--taking over of road transport in delhi under, through delhi transport undertaking--vesting of executive power undertaking in general manger--delegation of his powers--road transport corporation act, 1948, constitution of delhi transport corporation under--sub section (b) and (c) of section 12, effect of, regarding delegation of powers and duties and authorization to exercise and perform them--resolutions passed by corporation on 18-11-71, 25-4-73 and 2-3-74, effect of, on the taking of disciplinary action--petitioners' plea of disciplinary proceedings having been initiated and conducted by persons not duly authorised--whether and how far justified.; after the passing of the delhi municipal corporation act, 1957, road transport in delhi was run.....prakash narain, j.(1) writ petitions 762 of 1974, 1162 of 1974, 144 of 1974, 1150 of 1974, 1179 of 1974, 1200 of 1974, 1536 of 1974, 1199 of 1974, 1092 of 1974. 1458 of 1974 and 1533 of 1974 will be disposed of by this one judgment as a common question of law arises in all of them. (2) public road transport in delhi was run by the municipal corporation of delhi from 1957 under the provisions contained in chapter xiv of the delhi municipal corporation act. 1957. hereinafter referred to as the municipal corporation act. the road transport was taken away from the municipal corporation of delhi and given to a separate corporation known as the delhi transport corporation constituted under the road transport corporations act. 1948. hereinafter referred to as the act, by cnactment of the delhi.....
Judgment:

Prakash Narain, J.

(1) Writ petitions 762 of 1974, 1162 of 1974, 144 of 1974, 1150 of 1974, 1179 of 1974, 1200 of 1974, 1536 of 1974, 1199 of 1974, 1092 of 1974. 1458 of 1974 and 1533 of 1974 will be disposed of by this one judgment as a common question of law arises in all of them.

(2) Public road transport in Delhi was run by the Municipal Corporation of Delhi from 1957 under the provisions contained in Chapter Xiv of the Delhi Municipal Corporation Act. 1957. hereinafter referred to as the Municipal Corporation Act. The road transport was taken away from the Municipal Corporation of Delhi and given to a separate Corporation known as the Delhi Transport Corporation constituted under the Road Transport Corporations Act. 1948. hereinafter referred to as the Act, by cnactment of the Delhi Road Transport Laws (Amendment) Act, 1971. Prior to the transport services in Delhi being by the Municipal Corporation of Delhi, the same were operated by an authority known as the Delhi Road Transport Authority, constituted under the Delhi Road Transport Authority Act, 1950. By and large all the employees of the Delhi Road Transport Authority on the enforcement of the Municipal Corporation Act became employees of the Municipal Corporation of Delhi and on the Delhi Transport Corporation coming into existence became the employees of the Transport Corporation. It is with this historical background that the contentions in the present cases have to be viewed.

(3) It seems that disciplinary action was initiated against the petitioners in the aforesaid 11 writ petitions on various dates and they were charge-sheeted for misfeasance and malfeasance in the discharge of their duties. There are two sets of cases. In eight of these cases disciplinary action was initiated prior to March 2, 1974 and even chargesheets were served on the petitioners before that date while in the remaining three, disciplinary proceedings were initiated as well as charge-sheets were served after March 2. 1974. This aspect may be tabulated as under:

Writ Petition No. Petitioner's Name Disciplinary action initialed Charge-sheet issued C.W.I 122/74 Harbhajan Singh 22.6.1973 4.3.1973 (S.R. Dutta) C.W.1144/74 Ishwar Dutt 1.2.1974 5.2.1974 C.W.I 150/74 Jagdish Kumar 24.3.1973 26.4.1973 C.W.I 170/74 Surinder Kumar 21.11.1973 3.1.1974 C.W.I 199/74 Vinod Kumar 8.8.1973 28.8.1973 C.W.762/74 Deva Gir 31.1.1974 11.2.1974 C.W.1200/74 Jagdish Chander 14.2.1974 27.2.1974 C.W.I 536/74 Mohabat Ali 12.6.1973 9.7.1973 Action after 2.3.1i//f: C.W. 1092/74 Bhim Singh 8.4.1974 29.4.1974 C, 533/74 Ramesh Kumar 19.6.1974 26.6.1974 C.W. 1458/74 Jagan Nath Pershad 18.3.1974 20.3.1974

(4) The petitioners in the above cases contend that disciplinary proceedings against them have been ordered or commenced by persons /officers not authorised to do so and even the enquiry has been conducted by an Enquiry Officer who had no authority to act as such inasmuch as' he was appointed by an authority/officer not competent to appoint an Enquiry Officer. It is further contended that there was no legal evidence led before the Enquiry Officer on the basis of which he could give a finding. All the petitioners have been served notices to show cause as to why they should not be dismissed/removed from service or their services be not terminated. They have challenged the issue of the said notices as they contend that the impugned notices are consequent to unauthorised disciplinary action taken against them. In consequence, it is prayed that the enquiry proceedings and the disciplinary action be quashed along with the notices for the proposed punishment sought to be inflicted.

(5) It is not necessary to go into the facts of each case as it is common ground that what has to be seen is whether the disciplinary action culminating in the show cause notices was authorised in law. However, in order to appreciate the legal contentions the facts of C.W. 762 of 1974 may be noticed by way of illustration.

(6) The petitioner in this case is a Conductor who was charged on February 11, 1974 for non-issue of a ticket to a lady passenger and misappropriating the amount given by her to purchase a ticket by allowing her to alight from the bus without issuing a ticket. He was placed under suspension on January 31. 1974 under orders passed by Assistant General Manager (Vigilance). After charge-sheet was served on the petitioner the enquiry into the charges was held by Shri S. C. Singh who was nominated as the Enquiry Officer by an order of the Assistant General Manager (Vigilance). The Enquiry Officer submitted his report on a consideration of which on May 23, 1975. the General Manager of the Delhi Transport Corporation issued a notice to show cause as to why the petitioner be not removed from the service of the Corporation.

(7) Inasmuch as the petitioners are employees of the Delhi Transport Corporation constituted under the Road Transport Corporations Act. 1950 it is the provisions of that Act that have primarily to be seen to find out whether the contentions raised by the petitioners have any force. The Delhi Transport Corporation was constituted under Section 3 of the Act. Section 12 of the Act, in its application to the Union Territory of Delhi, reads as under:

'12. Power to appoint committees and delegate functions Corporation may, from time to time, by resolution passed at a meeting: (a) appoint committees of its members for performing such functions as may be specified in the resolution; (b) delegate to any such committee or to the Chairman, Vice Chairman, Chief Executive Officer, the General Manager. the Deputy General Manager or the Chief Accounts Officer of the Corporation, subject to such conditions and limitations, if any, as may be specified in the resolution, such of its powers and duties as it may think fit; (c) authorise the Chief Executive Officer or General Manager (or any other officer of the Corporation) subject to such conditions and limitations, if any, as may be specified in the resolution to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business.'

(8) Under Section 13(3) (b) the conditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer are to be such as may, subject to the provisions of Section 34, be determined by regulations made under the Act. Section 34 of the Act gives power to the Government to give directions to a Corporation constituted under the Act. The Corporation as such is to act in the manner provided by section 11 by holding meetings and passing resolutions therein. As is apparent on a reading of Section 5 of the Act subject to the rules that may he made the Corporation consists of a Chairman and such number of other members as, so far as Union Territory of Delhi is concerned, may be nominated by the State Government. The question for consideration is whether either under Section 12 of the Act or by virtue of any of the regulations framed undei the Act, or even continued in force under the Act the impugned action of the respondent is legal and authorised.

(9) It has already been noticed earlier that the petitioners were, prior to the creation of the Delhi Transport Corporation, employees of the Municipal Corporation of Delhi and were governed by the provisions of the Delhi Municipal Corporation Act and rules and regulations framed there under. Accordingly, it would be advantageous to take note of the various documents in chronological order right from the time when the petitioners were serving under the Municipal Corporation of Delhi to find out the basis of the impugned powers.

(10) On March 9, 1967 an office order was issued by Shri K. L. Rathi, General Manager (Transport) in exercise of the powers conferred on him Section 491 read with Section 504(1)(a)(ii) of the Delhi Municipal Corporation Act, 1957 by which he directed that the powers vested in him under sections 64 and 95 of the Municipal Corporation Act mentioned in column 3 of the schedule annexed to the office order shall, subject to his supervision, control and revision be also exercised by officers of the Delhi Transport Undertaking of the Municipal Corporation of Delhi mentioned in column 2 in respect of the officers and other employees mentioned in the said schedule subject to their strictly observing and following all the regulations, standing orders, procedure etc. in force from time to time. By this delegation order authorised by Section 491 of the Municipal Corporation Act, Traffic superintendents including Traffic Superintendent (Headquarters) could exercise full disciplinary powers laid down in Regulation 15 of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 except imposing the penalty of removal and dismissal from service and reduction to a lower post for time scale but including suspension up to a period of three months. It is common ground that by virtue of Section 64 of the Municipal Corporation Act all the executive power of the Delhi Transport Undertaking of the Municipal Corporation of Delhi at that time vested in the General Manager (Transport) and that he could validly delegate his powers as he did. It is also common ground that an Assistant General Manager in accordance with the said office order dated March 9, 1967 had full powers to take disciplinary' action against all Class Iii and Class Iv employees working in the traffic department, depots and training school while the Traffic Superintendent had limited disciplinary powers as noticed above. As stated earlier. the Transport Corporation came into existence in 1971. A question naturally arose at that stage as to how to deal with the employees in the new situation that was created. Accordingly, on November 18, 1971 a resolution was passed by the Delhi Transport Corporation as a stop gap arrangement. It was resolved as under:

'RESOLVED that as proposed by G.M. in his letter No. GM/4171 dated 16-11-1971, the Delhi Transport Corporation hereby authorised under Section 12 of the Road Transport Cor- poration Act, 1950 read with Delhi Road Transport Laws (Amendment) Ordinance, 1971, the General Manager and other officers of the Delhi Transport Corporation who were delegated with powers under the D.M.C. Act, 1957 to continue to exercise such administrative and financial powers which they had been exercising prior to the setting up of the Delhi Transport Corporation. The offi- cers will exercise their powers subject to the general con- trol, supervision and review of the General Manager.'

(11) As will be noticed, the above resolution was passed on November 18, 1971 accepting the proposal of the General Manager contained in a communication dated November 16, 1971. In that com- munication it has been stated by the General Manager that the Cor- poration is empowered under Section 12 to delegate such of its powers and duties as is specified in the section to such officers as mentioned therein and also to authorise certain officers to carry on the day to day work. It was suggested that as some interim arrangement had to be made a resolution may be passed giving authority to certain officers to act. It was further clarified that action had been initiated to formulate detailed proposals for delegation or authorisation contemplated by Section 12 of the Act. On February 16, 1972 the General Manager made certain other proposals regarding delegation of powers which resulted in the following resolution being passed by the Corporation on February 24, 1972:

'RESOLVED that in exercise of powers vested in the Delhi Transport Corporation under Section 12 of the Road Trans- port Corporation Act, 1950 read with Section 7(1) of the Delhi Road Transport Laws (Amendment) Act, 1971 the Corporation delegates the General Manager with such powers as were exercised by him prior to the setting up of the Delhi Transport Corporation. Further Resolved that these powers may be deemed to have been delegated to the General Manager with effect from 3-11-1971 i.e. the date on which the Corporation was set up.'

(12) It seems that the final scheme regarding delegation/authorisation took considerable time to be formulated and it was only on April 25, 1973 that a final schedule of delegation of powers was adopted vide Resolution No. 271 of the Corporation. With the adoption of this delegation of powers, resolution bearing No. 271 also provided:

'IT was further resolved that the powers that are being exercised at present by the G. M. as delegated to him under various orders, statutes etc., in so far as they are inconsistent with the powers delegated under this Resolution and powers being exercised by various officers as delegated to them by the G.M. shall stand superseded with immediate effect.'

(13) The resolution regarding authorisation given to depot mana gers, Assistant Engineer, Traffic Superintendent and Assistant Traffic Superintendent was passed by the Corporation on March 2, 1974 while the resolution No. 271 regarding delegation of Chairman, Vice-Chairman and General Manager was passed on April 25, 1973. The interesting question of law that now arises is how to appreciate the distinction between delegation of power and authorisation contemplated by Section 12 of the Act and the effect of the delegated powers being exercised by various officers by virtue of the delegation made by the General Manager (Traffic) when road transport was being controlled by the Municipal Corporation of Delhi. Along with the above question it is also to be construed as to what is the effect of the various resolutions of the Road Transport Corporation either delegating power or giving authorisation under Section 12 of the Act.

(14) Under Section 12(b) of the Act the Transport Corporation can delegate its powers and duties only to (i) A Committee, (ii) Chairman, (iii) Vice-Chairman, (iv) Chief Executive Officer, (v) General Manager, (vi) the Deputy General Manager and (vii) the Chief Accounts Officer and to no one else. Under Section 12(c) of the Act the Corporation may authorise Chief Executive Officer or the General Manager or any other officer to exercise such power-, and perform such duties as it may deem necessary for the efficient day to day administration of the Corporation. There is thus an essential distinction between the powers exercised by an officer by virtue of the authorisation contemplated by Section 12(c). 'Delegation' of power connotes, according to the dictionary meaning (Chambers' Twentieth Century Dictionary), to entrust or commit. 'Authorisation' according to the dictionary meaning, is, to give authority, to sanction, to justify. In legal parlance by delegation is meant the devolution from an agent upon another person of a power or duty entrusted to the agent by his principal. As Lord Esher, M.R. said in Claxton '. Mowlem & Co. (1888) 4 T.L.R. 756: (1) 'Delegation, as the word is generally used, docs not imply a parting with powers by the person 'who grants the delegation, but points rather to a conferring of an authority to do things which otherwise the person would have to do himself. The best illustration of the use of the word is afforded by the maxim, Delegates non potest delegare, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law of contracts: it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights. If it is correct to use the word in the way in which it is used in the, maxim as generally understood, the word 'delegate' means little more than an agent.' 'Authorisation' has a different connotation altogether. To quote the words of Herring, C.J. in an Australian case, Winstone v. Wurlitezer Automatic Phonograph Co., (1946) A.L.R.422, 'the word 'authorise' should be read in its ordinary sense of sanction, approve or countenance. Thus, when power is delegated the person in whose favor the delegation is made exercises the power as an agent of the person delegating the power as if the power is exercised by the latter himself. In the case of authorisation the identity of the person authorised and the person authorising remain distant and the former only signifies his agreeing to countenance and accept what the authorised person may do within limits of the authorisation. thereforee, the delegation postulated by Section 12(b) of the Act is clearly to be distinguished from the authorisation contemplated by Section 12(c). Indeed, the powers conferred under Section 12(b) would, perhaps, be on a higher plain than the authorisation envisaged by Section 12(c). This is made clear by the phraseology of the two clauses. In clause (b) delegation is contemplated to only very senior officers or authorities. While in clause (c) authorisation has been permitted even at a somewhat lower level. This itself gives an indication of the legislative intent in making a distinction of the type of powers to be exercised by a delegated authority or by officers who are merely authorised. Be it as it may, what has to be seen is whether in the present cases disciplinary action was commenced by a competent authority or officer who may either have been delegated powers under Section 12(b) or authorised under Section 12(c).

(15) It is common ground that disciplinary action was not initiated in the case of any of the petitioners by the Transport Corporation or its General Manager. It is also common ground that disciplinary action was initiated and charge-sheets were issued in the case of the petitioners in the various writ petitions by officers acting under authorisation or delegation made to them by the General Manager at the time when road transport was under the Municipal Corporation of Delhi and the exercise of which power by such officers was continued by resolution of November 16, 1971 passed by the Transport Corporation. It has further been urged that the enquiry officers appointed in the disciplinary proceedings against the petitioner were appointed by an unauthorised officer inasmuch as the Assistant General Manager had no power to do so. So, despite lengthy arguments addressed by the learned counsel on both sides, the short point for consideration is he effect of Resolution No. 271 dated April 25, 1973 on the resolution of November 18,1971. In other words, were the officers other than the General Manager divested of the powers by the resolution of April 25, 1973 which they had been exercising by virtue of the resolution of November 16, 1971.

(16) The powers that were being exercised by officers other than the General Manager were as given to them by Office Order No. 9 dated April 1, 1971 and Office Order No. 31 dated March 9, 1967 by the then General Manager of Delhi Transport Undertaking of the Municipal Corporation of Delhi. The powers that were given by Office Order No. 9 and Office Order No. 31, afore-mentioned were a conferment by virtue of the provisions of See. 491 read with Seclion 504(1)(a)(ii) and Sections 64, 92 and 95 of the Delhi Municipal Corporation Act. Section 491 of the Municipal Corporation Act provides that the Commissioner may by order direct that any power conierred or any duty imposed on him by or under the Act shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any municipal officer or other municipal employee specified in the order. Section 504(1)(a)(ii) lays down that any reference in the Municipal Corporation Act to the Commissioner shall be construed; in relation to any matter pertaining to the Delhi Transport Undertaking as a reference to the General Manager of that Undertaking. Section 64 of this Act spells out the functions of the General Manager and vests the entire executive power of the Delhi Transport Undertaking of the M.C.D. in the General Manager. Section 92 gives the power to make appointments and it is not in dispute that in the case of the petitioner this power was in the General Manager. Section 95 sets out the power and procedure for inflicting punishments and taking disciplinary action against officers and employees. There is thus no doubt and it is not disputed that the powers of the General Manager of the Delhi Transport Undertaking of the M.C.D. could be delegated by him to various officers by the said office orders Nos. 9 and 93, referred to above. If these office orders are effective and operative, there can be no doubt that the disciplinary proceedings as initiated or commenced against the petitioners were valid. As I have said earlier, the only question substantial is to find out the effect of the Resolution No. 271 dated April 25, 1973 on the exercise of powers by officers other than the General Vanager of the Transport Corporation.

(17) In my opinion. Resolution No. 271 dated April 25, 1973, though not very happily worded, admits of only one interpretation. The import of the resolution is, specially in the context of the historical background noticed by me earlier, that April 25, 1973 onwards the General Manager of the Transport Corporation was to exercise only such powers as were delegated to him by Resolution No. 271 and none else. Further, all powers exercised by any other officer were taken away with immediate effect and officers who were exercising delegated powers of the General Manager of the Delhi Road Transport Undertaking of the M.C.D. by virtue of Transport Corporation's resolution of November 16, 1971 were divested of all powers. It is unfortunate that the authorisation contemplated by section 12 (c) of the Road Transport Corporation Act, was. made as late as on March 2, 1974. Be it as it may, in between April 25, 1973 and March 2, 1974 it is only the Transport Corporation or the General Manager who could initiate and take disciplinary action and no one c!'e. thereforee, the proceedings against Harbhaian Singh. ishwar Dutt, Jagdish Kumar, Surinder Kumar, Vinod Kumar, Jagdish Chander and Mohabat Ali must be held to be without jurisdiction and ultra virus the authorities who initiated the disciplinary action or issued the charge-sheet. This infirmity, however is not attracted in the case of Bhim Singh, Ramesh and Jagan Nath Pershad.

(18) It has been urged on behalf of the respondents that the disciplinary action against the various petitioners should, in any case, not be struck down for two other reasons. First, that they acquiesced in the proceedings and did not raise any objection about jurisdiction at any earlier stage, and secondly, because no final order has yet been passed in their case and only show cause notices have been issued. It is submitted that the alleged illegalities should be pointed out in reply to the show cause notice and if an adverse final order is passed first a statutory appeal should be preferred and the court be approached only thereafter, if necessary.

(19) In support of the second contention my attention was invited to clause 17 of the standing orders. The plea is really a pica regarding alternate remedy. Relying on a bench decision of this court in Gee Vec Enterprise v. Additional Commissioner of Income Tax, : [1975]99ITR375(Delhi) it was urged that a writ petition complaining against the order of a statutory authority would not be entertained in the absence of an adequate Explanationn why the petitioner does not avail himself of the appeal provided against the impugned order by the statute itself. In my opinion, reliance on the decided case is misplaced. In the case of at least those petitioners against whom action was taken prior to March 2, 1974 the question is one of jurisdiction of the authority to initiate action and proceed with it. The aspect about the statutory appeal etc. does not arise in such a case. Furthermore, even the bench in the above noted case laid down the rule as a normal rule and not a rule of universal application or a total bank. Where the question is one of jurisdiction I see no reason why the affected party should wait for the passing of a final order before putting forth its challenge to the very maintainability of the impugned proceedings. My attention was also invited to dismissal in liming by a bench of this court in similar petitions on more or less similar facts. The bench in C.W. 851 of 1975, Randhir Singh v. Delhi Transport Corporation (4) etc. and some other matter, declined to issue rule nisi after perusing the reply to the show cause notice issued to the respondent. It was observed that petitioner should avail himself of the two opportunities, viz., 'firstly, before the passing of the final order and, secondly, if necessary, after the passing of the final order...' The non-availing of the above two opportunities resulted in the civil writ petition not being entertained. The exercising of the discretion not to issue rule nisi is not of persuasive force to decline to decide a petition in which rule nisi has been issued. There is thus no force in this contention. Indeed if the issue of the charge-sheet or initiation of disciplinary proceedings is void, no question about the petitioners being premature or an alternate statutory remedy being available arises. If disciplinary proceedings were not initiated by a competent authority, all proceedings thereafter are vitiated and no question of making a representation or filing an appeal arises. I expressed this view in Onkar Singh v. Union of India, 1975 (2) S.L.R. 135 and reiterate the same.

(20) It was also urged that the petitioners could avail of the remedy under the Industrial Dispules Act instead of coming under Article 226 of the Constitution. The contention has to be stated to be rejected. Apart from the fact that such a remedy, if it is a remedy at all, is more cumbersome, the constitutional rights cannot be subordinated to statutory rights and remedies.

(21) With regard to the acquiescence also. I feel there is no case made out by the respondents. In any case, acquiescence cannot confer jurisdiction. Mr. Bhandari, learned counsel for the respondents, contends that (a) the tribunal whose jurisdiction is now challenged should have had the opportunity to deal with objection as to its jurisdiction, and (b) not questioning the jurisdiction of the tribunal and taking the chance of a favorable verdict from it disentitles the petitioners to invoke this court's powers under Article 226 of the Constitution. A number : AIR1963MP216 .

(22) In Syed Hassan Ali v. State of Mysore, 1965 (2) LL.J. 583 the bench declined to interfere on the ground of acquiescence at that stage and observed that the petitioner should have come to court earlier and not after the departmental proceedings were over including the appeal. On facts the court had found no infirmity in the appointment of the Inquiry Officer.

(23) M/S Pannalal's case, : [1957]1SCR233 was one decided on its own facts. As an additional feature it was pointed out that since the petitioners had acquiesced in the order of transfer of cases and submitted to the jurisdiction of the Income-tax Officer, they were estopped from challenging the jurisdiction of the Income-tax Officer by a petition under Article 32 of the Constitution and by taking ad- vantage of a subsequent decision of the Supreme Court in Bidi Supply Co. v. Union of India, : [1956]29ITR717(SC) .

(24) In Diwakaran v. Circle Inspector of Police, Munnar and others, 1963(1) L.L.J. 342 a learned Single Judge of the Kerala High Court was dealing with the writ petition in which a challenge was made to the order of dismissal as being vocative of Article 311 of the Constitution and the departmental inquiry being vocative of Rules as well as principles of natural justice. The learned Single Judge dilated at length on the scope of a departmental inquiry. On facts, he held that the inquiry officer was validly appointed and had no bias against the petitioner. The learned Judge went on to observe that the petitioner did not object the Inquiry Officer proceeding with the disciplinary inquiry against him on the ground that he was biased or that he was not nominated by the competent authority to hold the inquiry. The said objections were sought to be raised for the first time in the writ petition. The petitioner should have raised these objections before the inquiring authority and having not raised the grounds of attack there, could not be allowed to raise them now.

(25) In Balkishan Chaturvedi v. The Chief Secretary, Government of Bhopal and another, 10 Air 1963 M.P. 216, the Gwalior bench of that High Court was, inter alia, considering an objection on the ground of prejudice of the Inquiry Officer. It was held that such an objection must be raised as soon as the public servant receives the note about enquiry. Where the public servant actually acquiesces and assists in the enquiry and raises the objection for the first time after the report of enquiry turns out to be adverse, the objection was held as one which could not be taken into consideration.

(26) In Diwan Badri Das and others v. Industrial Tribunal, Punjab and others, 1962(1) L.L.J. 526(11), a learned Single Judge of the Punjab High Court observed that the conduct of the workman in participating in the enquiry without any objection would disentitle him from challenging the same subsequently that it was unauthorized in respect of certain charges. The rule applied was one of acquiescence and it was observed that the workman could not sit on the fence to adopt the enquiry if it went in his favor and to impugn it if it went against him.

(27) In Nanjundappa (B.N.) v. State of Mysore, 1966(1) L.L.J. 260 (12) a bench of the Mysore High Court held that complaint of personal bias of the Enquiry Officer, if not raised at the earlier stage nor in the representation to the Government, would amount to a waiver of that objection.

(28) In Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court, : [1955]2SCR1331 the Supreme Court was, inter alia, considering the argument that the Chief Justice, if he had the power to dismiss, could not in exercise of that power delegate to another Judge the enquiry into the charges but should have made the enquiry himself. This contention was negatived.

(29) None of the cases relied upon, thereforee, really touch the basic question with which I am concerned, namely, that where the enquiry is commenced without jurisdiction the conduct of the person facing enquiry cannot confer jurisdiction or legalise the enquiry. The only case where some observations to support the case of the respondents have been made was the decisions of the Diwan BadriDass and others and of the Kerala High Court in Diwakaran v. Circle Inspector of Police, Munnar and others (9). A careful study of that decision, however, shows that the observations were really in the nature of obiter and so, cannot be said to have laid down a rule of law.

(30) I now come to the cases of Bhim Singh, Ramesh Kumar and Jagan Nath Pershad where there is no lack of jurisdiction. In these cases, in my opinion, the petitioners have not made out any case for interference. It has been urged that the Depot Managers even in these three cases were not properly conferred powers to proceed as they did. My attention was invited to the agenda note dated January 21, 1974 in which the recommendation of the General Manager was that the Depot Managers be delegated with powers to take disciplinary action. It is urged that no powers could be delegated to Depot Managers or an Assistant General Manager and that they could only be authorised under Section 12(c) as distinguished from the delegation contemplated by Section 12(b) of the Transport Corporation Act. It is urged that inasmuch as the Transport Corporation delegated powers to the Assistant General Managers and Depot Managers etc. it was beyond their competence and ultra virus the statute. The recommendation of the General Manager dated January 21, 1974 is not happily worded nor is the resolution No. 408 dated March 2, 1974. All the same, One cannot lose sight of the fact that the schedule attached to the proposal refers clearly to authorisation as opposed to delegation and the proposal that was adopted was as per the proposed schedule. thereforee, it cannot be held that the Transport Corporation acted under Section 12(b) and not under Section 12(c) of the Road Transport Corporation Act. The schedule that has been published refers to authorisation and not to delegation. Although I have upheld the authorisation, yet I cannot but comment upon the desirability of statutory bodies being more careful in the phraseology that they use while taking action under statutory rules or provisions of an Act. The intention of the Corporation is what I have gone on and so, I uphold the authorisation contemplated by the resolution of March 2, 1974, particularly because the schedule published mentions 'authorisation' and not 'delegation'.

(31) The result is that writ petitions Nos. 1122/74, 1144/74, 1150/74, 1179/74, 1199/74, 1200/74 and 1536/74 are accepted and the disciplinary proceedings right up to the notice to show cause or any subsequent action are hereby quashed while writ petitions Nos. 1092/74, 1533/74 and 1458/74 are dismissed. .There will be no order as to costs.


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