Skip to content


Ganga Pershad Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition Appeal No. 462 of 1970
Judge
Reported inILR1977Delhi111
ActsCentral Civil Services (Conduct) Rules, 1955; Control and Appeal Regulations, 1959 - Regulation 6
AppellantGanga Pershad
RespondentMunicipal Corporation of Delhi and ors.
Advocates: G.D. Gupta and; T.C.P. Lal, Advs
Cases ReferredIn Collector of Customs v. Nathella Sampathu Chetty
Excerpt:
.....of delhi by amendment dated 19-9-1972--service regulations of 1959--whether were concerned with conduct rules of 1959 and did not refer to any subsequent amendment or repeal--words, 'from time to time' absent from unamended service regulation of 1959--significance of--doubt in mind of government at the time of amendment (on 19-9-1972)--whether petitioner entitled to benefit of doubt--whether section 8 of the general clauses act applicable when provisions of one act incorporated as integral part of other act, and not merely referring to the first act--whether repeal of first act affects the second--reg. 2(b)(iii) controlling reg. 4--effect of.; the petitioner was an employee of the municipal corporation of delhi in the superintendent's grade. he was charged with lack of devotion to..........the central civil services (conduct) rules, 1955 of the government of india (hereinfater called conduct rules of 1955) which were applicable to him under the service regulations of 1959 of the corporation there was no prohibition against his acting as the founder and managing director of a co-operative society. in the second place it is said that the charge sheet purports to have been signed by a deputy commissioner of the corporation who had no authority and jurisdiction to serve a charge sheet on the petitioner, his salary being in the scale of rs. 350-475. i will deal with these two defenses separately. (8) as regards the first defense the question is : is there a prohibition in the conduct rules of 1955 on which the petitioner relies rule 12 of conduct rules of 1955 in so far as.....
Judgment:

Avadh Behari Rohatgi, J.

(1) In this writ petition we are concerned with a municipal employee. The Municipal Corporation of Delhi brought a charge against him. He has brought this petition under Article 226 of the Constitution for quashing the charge.

(2) These are the facts. The petitioner Ganga Pershad was appointed as Secretary of the Notified Area Committee, Narela on January 7, 1956. On April 7, 1958, the Municipal Corporation of Delhi was established by the Delhi Municipal Corporation Act. 1957 (the Act). By s. 511 the functions of Narcia Notified Area Committee were taken over by the Corporation.

(3) On October 14, 1960, the petitioner was appointed as superintendent in the scale of Rs. 350-20-450-EB-25-475. On October 14, 1965, he was suspended. On October 15, 1965, a charge-sheet was given to him. This was the first charge-sheet. The inquiry under the first charge-sheet ended in his favor. On June 20. 1970, he was cleared of the charge.

(4) While the inquiry on the first charge-sheet of 1965 was pending, a second charge-sheet was served on the petitioner. This was on January 7, 1970. This charge-sheet reads as under :- 'DELHI Municipal Corporation Service (CONTROL & APPEAL) Regulations, 1959. Statement of Charge framed against Shri Ganga Pershad, Supdt., Municipal Corporation of Delhi. Charge. That the said Shri Ganga Pershad while functioning as Superintendent, Municipal Corporation of Delhi during the period 1964 onwards failed to maintain absolute devotion to duty in as much as he did not obtain sanction of the Department for having been the Honorary Managing Director of the Narela Transport Co-operative Society and a founder Member with 25 shares of Rs. 100 each valued at Rs. 25000 and for accepting Rs. 100 per meeting he attends and other occasional gifts thereto. He thereby contravened Rule 15 of the C.C.S. (Conduct) Rules, 1964 read with the C.C.S. (Conduct) Amendment Rules, 1967 as made applicable to the employees of the Municipal Corporation of Delhi. sd/- Deputy Commissioner(E)'

(5) In a word the charge against the petitioner is that he is the founder and managing director of the Narela Transport Co-operative Society. In this way he is said to have contravened Rule 15 of the Central Civil Services (Conduct) Rules, 1964. This is the substance of the charge.

(6) The petitioner does not dispute that he was a founder 'of the Narela Transport Co-operative Society. Nor does he deny that he had been acting as the managing director of the society from November 27, 1959 to June, 1970. thereforee at the relevant time, viz., when the charge-sheet was served on him on January 7, 1970. he was the managing director of the society.

(7) The petitioner has raised two defenses to the charge-sheet dated January 7, 1970. In the first place he says that under the Central Civil Services (Conduct) Rules, 1955 of the Government of India (hereinfater called Conduct Rules of 1955) which were applicable to him under the Service Regulations of 1959 of the Corporation there was no prohibition against his acting as the founder and managing director of a co-operative society. In the second place it is said that the charge sheet purports to have been signed by a deputy commissioner of the Corporation who had no authority and jurisdiction to serve a charge sheet on the petitioner, his salary being in the scale of Rs. 350-475. I will deal with these two defenses separately.

(8) As regards the first defense the question is : Is there a prohibition in the Conduct Rules of 1955 on which the petitioner relies Rule 12 of Conduct Rules of 1955 in so far as it is material reads : (2) No Government servant shall except 'With the previous sanction of the Government take part in the registration, promotion or management of any bank or other company registered under the Indian Companies Act 1913 (VII of 1913), or any other law for the time being in force : Provided that Government servant may take part in the registration, promotion or management of a co-operative society registered under the Co-operative Societies Act 1912 (II of 1912), or any other law for the time being in force. or of literary, scientific or charitable society registered under the Societies Registration Act, 1860 (XXI of 1860), or any corresponding law in force.'

(9) It is clear from this rule that a Government servant can lake part in the registration, promotion or management of a co-operative society registered under the Co-operative Societies Act 1912. This is exactly what the petitioner was doing. He founded and promoted the Narela Transport Co-operative Society in 1959. He was managing the same as its honorary managing director. Under the proviso he was clearly entitled to do so.

(10) But the charge sheet refers to Central Civil Services (Conduct) Rules 1964 (hereinafter called the Conduct Rules of 1964). In 1964 the rule was altered. The relevant rule of 1964 is Rule 15 which says : (3) No Government servant shall, without the previous sanction of the concept in the discharge of his official duties, take part in the registration, promotion or management of any bank or other company which is required to be registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force or any co-operative society for commercial purposes : Provided that a Government servant may take part in the registration, promotion or management of a co-operative society substantially for the benefit of Government servants registered under the Co-operative Societies Act, 1912 (2 of 1912) or any other law for the time being in force, or of a literary, scientific or charitable society registered under the Societies Registration Act, 1960 (21 of 1960). or any corresponding law in force.'

(11) Under the Conduct Rules of 1964 a Government servant can take part in the registration, promotion and management of a co-operative society provided 'it is substantially for the benefit of Government servants.' Admittedly this is not the case hero. Narela Transport Co-operative Society is being run for commercial purposes. It is not substantially for the benefit of Government servants. If the Conduct Rules of 1964 apply to the petitioner he is certainly guilty of breach of sub-rule (3) of Rule 15 which I have quoted above. The chief issue is : which of the Rules apply-the Conduct Rules of 1955 or 1964 The petitioner's case is that Rules of 1955 apply to him. The case of the Corporation on the contrary is that the Rules of 1964 apply. This is the question I have to decide.

(12) The Service Regulations of 1959 were framed by the Government of India under clause (a) and (e) of sub-s. (1) of s. 98 read with sub-s. (1) of s. 480 of the Act. These were published in the Delhi Gazette dated April 4. 1959. These Regulations are called the Delhi Municipal Corporation Service Regulations of 1959. Reg. 2 in so far as it is material reads as under :- 2. In there regulations unless the content otherwise requires:- (b) Rules means :-

(III) the Central Civil Services (Conduct) Rules, 1955; and includes orders issued there under by the Central Government or the instructions issued by the Comptroller and Auditor General of India from time to time;'

Reg. 4 reads as under :

''4.(1) Unless otherwise provided in the Act or these regulations, the Rules for the time being in force and applicable to Government servants in the service of the Central Government shall, as far as may be, regulate the conditions of service of municipal officers and other municipal employees........................'

(13) On September 19, 1972, the Corporation amended the Service Regulations of 1959. The following amendment was made in Reg. 2(b) :- 'For the existing regulation 2(b) of the said Regulation the following shall be substituted, namely :- 'Rules' means :- (iii) the Central Civil Services (Conduct) Rules as applicable to Central Government Employees from time to time and orders issued by the Central Government there under including instructions issued by the Comptroller and Auditor General of India from time to time,

(14) The amendment came into force on September 19, 1972 when it was published in the Gazette Notification of that date. By the amendment of Reg. 2(b) the Conduct Rules of 1964 became applicable to the municipal employees. A new expression'-'from time to time' was introduced in Reg. 2(b) (iii) to denote the change. If the' amended Reg. 2(b) came into force on September 19, 1972, as the gazette notification shows the petitioner cannot be held guilty of the charge brought against him. On January 7, 1970, when the charge was brought against him he cannot be said to have been guilty of the charge because under the Regulations of 1955 founding and managing a co-operative society was not prohibited. The prohibition came into force on September 19, 1972. If that is so, that is the end of the matter. No other question will arise.

(15) Counsel for the Corporation says that the new Conduct Rules were promulgated by the Central Government in 1964. Under Rule 25 of 1964 Rules the Conduct Rules of 1955 were repealed. The only rules which were applicable, he says, to the Government servants from 1964 were the Conduct Rules promulgated in 1964. The counsel maintains that the same is the position with regard to municipal employees and by virtue of the unamended Reg. 2(b)(iii) read with Reg. 4 the Conduct Rules of 1964 became applicable to the municipal servants at once. He has referred me to s. 8 of the General Clauses Act and N. S. Thread Co. v. James Chadwick & Bros.. : [1953]4SCR1028 in support of his submission.

(16) I cannot accept the submission of the counsel for the Corporation. In my opinion the Conduct Rules of 1955 were applicable to the petitioner till the Conduct Rules of 1964 were extended to the Corporation by means of amendment. That was done on September 19, 1972. The Conduct Rules of 1964 thereforee became applicable to the municipal employees including the petitioner on September 19, 1972 and not earlier. This is clear from the gazette notification of the Delhi Administration itself. If this was not so there was no need to make the amendment and publish it in the gazette.

(17) Counsel for the Corporation says that the gazette notification of September 19, 1972, is redundant. He places reliance on the unamended Reg. 2(b)(iii) read with Reg. 4 which, he says. will bring in its comprehension the Conduct Rules of 1955 as well as the Conduct Rules of 1964. He has laid great stress on Reg. 4 where the words are 'the rules for the time being in force applicable to Government servants in the service of Central Government shall, as far as may be, regulate the service of municipal officers and other municipal employees............' The submission is that by reason of the words 'for the time being in force' such other rules as are applicable to Government servants in future will also apply to municipal employees.

(18) In, my opinion this argument is not well founded. In Reg. 2(b)(iii) the Rules were defined as the Conduct Rules of 1955. It is true that in Reg. 4 'the rules for the time being in force' are referred to but there is an important proviso, i.e. 'unless otherwise provided in the Act or these Regulations'. The crux of the matter thereforee is that the Service Regulations of 1959 as originally framed on April 4, 1959 were concerned with the Conduct Rules of 1955 and did not refer to any subsequent amendment or repeal of those rules in future. The words 'from time to time' appearing in the amendment of September 19, 1972 were conspicuous by their absence in, the unamended Service Regulations of 1959. That makes all the difference.

(19) REG. 2(b)(iii) is the definition clause and will thereforee in my view control Reg. 4. This means that even if the Conduct Rules of 1955 are repealed they will continue to govern, the municipal employees unless the definition clause is amended as was actually done on September 19, 1972. The Conduct Rules of 1955 were for all purposes incorporated into the Service Regulations of 1959 and instead of setting out the Rules of 1955 at length the definition clause made it clear that no addition to these rules can be deemed to be incorporated in it even if subsequently they are repealed or amended by the Central Government. (See Secretary of State v. Hindustan, Cooperative Insurance Society Ltd., .

(20) A repeal or anamendment of the Conduct Rules of 1955 was not in the contemplation of the rule-making authority in April 1959. The definition clause shows this [Reg. 2(b)(iii)]. A difficulty was felt in the subsequent years and this is why on, September 19, 1972 Reg. 2(b)(iii) was amended.

(21) Counsel says that the amendment dated September 19, 1972, is merely declaratory and does not change the original legal position as set out in the Service Regulations of 1959 as enacted in April 1959. I do not agree. If that was so the Government would not have felt the necessity of amending Reg. 2(b). One thing at least is quite clear. There was doubt in the mind of the Government. The Regulation was amended to remove doubt and to clarify the position. Taking this at the least to be a case of doubt I think the petitioner is entitled to the benefit of doubt and Reg. 2(b) (iii) must be construed in his favor. Any other construction will plainly mean infustice to him.

(22) There is nothing false in the petitioner's defense. The Corporation referred the complaint against the petitioner to the anti-corruption branch of the Delhi Administration. The anti-corruption branch reported on December 19, 1964 that the petitioner was in truth working in an honorary capacity. Everybody testified to it in the inquiry made by them. On a consideration of the proviso to Rule 12(2) of the Conduct Rules 1955 the anti-corruption branch came to the conclusion that the petitioner

'HAS done no wrong, and has not contravened any rules or regulations by engaging himself in honorary work relating to the co-operative society.'

(23) Again in 1969 the matter was referred to the Centra' Vigilance Commission of the Government of India. In their letter dated December 9, 1969, the commission took the view that the Conduct Rules of 1955 did not prohibit a Government servant from taking part in the promotion and management of a co-operative society. On the Rules of 1964 the petitioner could be held guilty, they thought, but only after the Corporation had formally adopted them.

(24) S. 8 of the General Clauses Act would not be applicable to a case where the provisions of another Act have been incorporated as an integral part of the other Act. It can only apply if the: Act can be regarded as containing only a reference to the provisions of the other Act. In Secretary of State v. Hindustan Cooperative Insurance Society Ltd., (Supra) it was accepted as a settled rule or construction that where a statute is incorporated by reference into a second statute the repeal of the first statute does not affect the second.

(25) The definition of the 'Rules' in Reg. 2(b)(iii) clearly snows that Rules means the Conduct Rules of 1955 and none other. It is a case of bodily lifting the Rules as it were and incorporating them as an integral part of the Service Regulations of 1959. It is a case of adoption of the Conduct Rules of 1955. The reason is plain. The Government of India which framed the Service Regulations extended the then Conduct Rules of 1955 to the municipal officers '.and employees for they wanted them to be governed by the same conditions of service as their own employees.

(26) In Collector of Customs v. Nathella Sampathu Chetty, : 1983ECR2198D(SC) the Supreme Court examined at length the meaning and effect of 'incorporation' by reference of one statute into another and discussed the Privy Council case referred to before. S. 8(l) of the General Clauses Act, it was pointed out, deals with reference or substitution of one enactment in another without incorporation.

(27) The words 'for the time being in force' in Reg. 4 might be said to lend colour to the contention of the counsel for the Corporation. The counsel referred me to Stroud's Judicial Dictionary (4th ed.) Vol. 5 p. 2773 where it is said :

'THE words 'for the time being' may, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may (and probably will) vary from time to time.'

(28) It must not be forgotten that the collocation of paitieular words may be the same but the context differs. Here Reg. 2(b)(iii) is a controlling Regulation. It governs Reg. 4, as I have said. The Conduct Rules of 1955 may be changed, amended and repealed by the Central Government but their independent existence under the Service Regulations of 1959 remains unaffected. As the Privy Council has said :

'DESPITE the death of the parent Act. its offspring survives in the incorporating Act.'

My conclusion, thereforee, is that till the amendment of September 19, 1972. the Rules in Reg. 2(b)(iii) of 1959 mean the Conduct Rules of 1955 and not any subsequent amendment thereof.

(29) If tins is so I find there is no case for the petitioner to answer. He has entitled under the Conduct Rules of 1955 to found and promote a cooperative society. There is nothing unbecoming or blameworthy in his conduct as a municipal employee of which he can properly be accused. He must be acquitted of the charge.

(30) The second defense is that under the Control and Appeal Regulations 1959 which were framed by the Government of India under clauses (d) and (c) of sub-s. (1) of s. 98 read with sub-s. (1) of s. 480 of the Act published in the Delhi Gazette Extraordinary dated 4th April 1959) the 'Disciplinary Authority' of the petitioner was the Corporation as appears from the schedule thereto. In respect of 'posts whose minimum monthly salary (exclusive of allowance) is Rs. 350 or more' the Corporation is the disciplinary authority. This is the Authority competent to impose all the penalties on a municipal employee specified in Reg. 6. The Deputy Commissioner is also shown to be a disciplinary authority competent to impose penalties on a person holding such a post. But his power is not limitless. His authority is limited to the imposition of penalties (i) and (ii) of Reg. 6, namely, censure and withholding of increments or promotion. He cannot impose more drastic penalties such as reduction in rank, compulsory retirement, removal from service and dismissal from service also specified in Reg. 6.

(31) The petitioner to begin with when he was appointed as superintendent in 1960 was in receipt of salary in the scale of Rs. 350--475. His post would thereforee clearly fall in the category of posts whose minimum monthly salary is Rs. 350 or more. His disciplinary authority is thereforee the Corporation. It will be the Corporation in his case which can issue the charge sheet and impose all the penalties on him. The disciplinary authority frames the charge (Reg. 8). It imposes the penalty. In Re', 2(c) the :

'DISCIPLINARY Authority in relation to imposition of a penalty in the case of municipal officers and other municipal employee means the authority competent under these regulations to impose on them that penalty.'

(32) Counsel for the Corporation submits that the petitioner was holding a post the minimum salary of which was less than Rs. 350 and thereforee in his case it is the deputy commissioner who is the disciplinary authority competent to frame a charge and impose penalties He says that deputy commissioner can impose all the penalties on the petitioner without any distinction. This is why the deputy commissioner gave the charge sheet to the petitioner on January 7, 1970, he says. This is also the case of the Corporation, in the return.

(33) Counsel for the Corporation says that though it is true that the post of a superintendent in 1960 when the petitioner was appointed carried a salary of Rs. 350-475, in 1962 acting on the advice of the second pay commission the Corporation revised the scale of pay and reduced the salary of the superintendents from Rs. 350-475 to Rs. 275-575. What happened is this. The Corporation in 1962 wanted to amalgamate the scales of superintendents and accountants into one uniform scale of pay. Accountants were getting much less than the superintendents. The Corporation wanted to uplift them. They thereforee thought of a uniform scale. But the new uniform scale, that is, of Rs. 275-575 was not to have a retrospective effect it was to apply in the future. It did not affect those such as the petitioner who had joined service in the old scale of Rs. 350--475. Of course among the superintendents the old incumbents were given an option to elect for the new uniform scale which the Corporation proposed. All this is clearly said in resolution No. 922 dated February 27, 1962, of the Corporation. They new uniform scale was beneficial in some cases as the maximum pay in this scale was Rs. 575 as compared to Rs. 475 in the old scale. It was thereforee open to old incumbents to opt for the new scale if they so desired. The petitioner did not exercise the option. He agreed to be governed by the original terms of appointment, namely, the scale of Rs. 350-475. thereforee the petitioner's post is a post whose minimum monthly salary is Rs. 350 or more. In that case clearly the Corporation was the disciplinary authority. The deputy commissioner is not his disciplinary authority. The deputy commissioner is also a disciplinary authority but only in relation to minor penalities, that is, censure and withholding of increments. [Reg. 6(i) and (ii)].

(34) The counsel for the Corporation claims and this is his case in the return that the deputy commissioner is the disciplinary authority in respect of all the penalties. This argument will lead us into a blind alley, a cul-de-sac. Suppose the deputy commissioner begins the inquiry. Ultimately he finds that he cannot impose the penalty of dismissal or reversion in rank which the circumstances of the case require him to impose. In that case the counsel suggested that either the deputy commissioner will close the file and go home or he will refer the case to the Corporation for imposing a severe penalty. This cannot be so for the disciplinary authority has to frame the charge (Reg- 8). There is no provision for referring the case from one disciplinary authority to another.

(35) The counsel suggested that the salary of the post and not of the incumbent has to be seen at the time of the framing of the charge. In this case the relevant date is January 7, 1970. On that date the scale of pay of the petitioner's post was reduced in view of the recommendation of the second pay commission, he submits. thereforee, he said, the petitioner's post falls in the category of those posts which carry less than Rs, 350. I cannot accept this argument. Assuming this to be so even on January 7, 1970, the petitioner's post remained the same as before, namely, it carried Rs. 350 and more. The petitioner was not affected by the new uniform scale. The new uniform scale was not retrospective. It was to affect either the incumbents in the future or those who elected to be governed by it though they were appointed earlier. The petitioner's case is not governed by resolution No. 992 dated February 27. 1962 and thereforee his salary remained as before.

(36) My conclusion on the second defense is that the Corporation was the disciplinary authority competent to impose all the penalties on the petitioner. The deputy commissioner who issued the charge sheet dated January 7, 1970 had no authority to do so. It is not the case of the Corporation that the deputy' commissioner was appointed as the disciplinary authority of the petitioner in order to impose en him minor penalties of censure and withholding of increments and promotion in case he found him guilty of the charge. Such a case has neither been pleaded nor can it be supported on the definition of the term 'disciplinary authority' as given in Reg. 2(b). If the deputy commissioner wanted to impose penalties (i) and (ii) of Reg. 6 as he is clearly entitled to, the petitioner had to be told that the deputy commissioner was appointed for the limited purpose of imposing penalties (i) and (ii) of Reg. 6 on the petitioner. The charge sheet does not say this. Nor is it pleaded in the return.

(37) For these reasons I would allow the writ petition and quash the charge sheet dated January 7, 1970- The petitioner will be entitled to his costs. Counsel's fee Rs. 250.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //