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The Management of Delhi Transport Undertaking Vs. B.B.L. Hajeley and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 719 of 1969
Judge
Reported inILR1971Delhi568
ActsDelhi Municipal Corporation Act, 1957 - Sections 95(1) and 491
AppellantThe Management of Delhi Transport Undertaking
RespondentB.B.L. Hajeley and ors.
Advocates: S.N. Chopra,; R.L. Roshan and; D.N. Vohra, Advs
Cases ReferredNetranunda Bank v. Stale
Excerpt:
(i) delhi municipal corporation act (1957) - sections 95(1) proviso to & 491--scope of--protection of proviso not nullified by delegation of functions under section 491. ; that respondent no. 2 (an employee of the delhi transport undertaking) who was appointed by the general manager of the transport authority has to be deemed to have been appointed by the general manager (transport) of the undertaking on combined reading of sections 516, 511 and 92 of the corporation act. where, thereforee, the said respondent no. 2 was removed from service by the assistant general manager : ; that such removal was invalid, inasmuch as the proviso (1) to section 95(1) prohibits any employee from being removed or dismissed by any authority subordinate to that by which he was appointed, and the.....rajindar sachar, j.(1) this is a writ petition filed by the management of the delhi transport undertaking (hereinafter called the'undertaking') against the order of the labour court, delhi, dated february 8, 1969, by which it rejected the application filed by the petitioner under section 33(2)(b) of the industrial disputes act for approving the removal of the respondent no. 2 from the service. (2) respondent no. 2 was originally employed as a driver under the delhi road transport authority (hereinafter called the transport authority) which had been constituted under the delhi road transport authority act, 1950. respondent no. 2 later on became an b employee under the undertaking of the delhi municipal corporation (hereinafter called the corporation) by virtue of the second schedule to the.....
Judgment:

Rajindar Sachar, J.

(1) This is a writ petition filed by the management of the Delhi Transport Undertaking (hereinafter called the'Undertaking') against the order of the Labour Court, Delhi, dated February 8, 1969, by which it rejected the application filed by the petitioner under Section 33(2)(b) of the Industrial Disputes Act for approving the removal of the respondent No. 2 from the service.

(2) Respondent No. 2 was originally employed as a driver under the Delhi Road Transport Authority (hereinafter called the Transport Authority) which had been constituted under the Delhi Road Transport Authority Act, 1950. Respondent No. 2 later on became an B employee under the Undertaking of the Delhi Municipal Corporation (hereinafter called the Corporation) by virtue of the Second Schedule to the Delhi Municipal Corporation 'Act, 1957, (hereinafter called the Corporation Act) read with Sections 511, 516, 53 and 64, An enquiry was started against respondent No. 2 and he was served with a charge sheet on 7-8-1962. After holding an enquiry a show cause notice was issued to respondent No. 2 by the Assistant General Manager on 8-1-1963. Cause was shown by respondent No. 2, but the Assistant General Manager was not satisfied with the reply and decided to remove respondent No. 2, from service with effect from 16-5-1963. As there was an Industrial Dispute pending against the petitioner an application was made by the petitioner before respondent No. 1 for approval of the action of removal as provided under Section 33(2)(b) of the Industrial Disputes Act. Respondent No. 1 by the impugned order has held that the application could only have been 'made by the employer who acco-ding to respondent No. 1 was the General Manager, Transport. Another objection taken by respondent No. 2, before respondent No. 1 and which has also been accepted by respondent No. 1 was that respondent No. 2 had been appointed by the General Manager of the Transport Authority and, thereforee, could have been removed only by the General Manager of the Undertaking. Respondent No. 1 accepted this objection and has held that the removal of respondent No. 2 by the Assistant General Manager was invalid and ineffective in view of the first proviso to Section 95(1) of the Corporation Act. Respondent No. 1 in view of these two legal grounds did not consider it necessary to decide on merits the enquiry against respondent No. 2. He consequently by the impugned order rejected the application filed by the petitioner. Aggrieved against that decision the petitioner filed this writ petition in this court.

(3) The matter in the first instance came before Deshpande J. who noticed that there was a conflict of views in the decision taken by Tatachari J. in C.W. 1234 of 1967 decided on 16-5-1969; whereby his lordship had held that the delegation made by the General Manager to the Assistant Genera] Manager was permissible and valid and the decision of the Division Bench of Punjab High Court sitting in Circuit at Delhi consisting of Mehar Singh C.J. and Mahajan J. reported as 1967 S.L.R. 56 wherein they had taken a contrary view. In view of this Deshpande J. by his order dated 16-9-1970 referred this matter for consideration by a larger bench. The matter thereafter came up before my lord the Chief Justice and Deshpande J. who in view of the conflicing decisions mentioned above and in view of the importance of the question involved referred the case to a larger bench. It is in these circumstances that this matter has been placed before us for decision.

(4) Respondent No. 1 has held that the Assistant General Manager who filed the application before it was not an employer and was, thereforee, not competent to move the application turn approval. Now Section 33(2)(b) of the Industrial Disputes Act provides that an application in this behalf may be moved by an employer. An employer is defined in Section 2(g)(ii) of the Industrial Disputes Act as in relation to an industry carried on or behalf of a local authority the Chief Executive Officer of that authority. Section 64(b) of the Corporation Act provides that the entire executive power for the purposes of carrying out the provisions of this Act pertaining to the Delhi Transport Undertaking shall vest in the General Manager (Transport). Respondent No. 1, thereforee, took the view that as the executive power was vested in the General Manager he alone was competent to file an application before it. Mr. Chopra, learned counsel for the petitioner contended that there was delegation made by the General Manager in favor of the Assistant General Manager wherein the latter has been permitted to act on behalf of the General Manager and was, thereforee, competent to file the present application and also to act as the Chief Executive Officer. Unfortunately there is nothing on record to support this contention of Mr. Chopra. Mr. Chopra did suggest that there was an office order which purported to have given such power to the Assistant General Manager, In view. however, of the fact that the material is not on record, it is not possible for us to decide this point. Had we been inclined to dis-agree with the finding of respondent No. 1 on the other point it might have been necessary to investigate this matter further. But as we are inclined to agree with the view taken by respondent No. 1 on the other point we do not feel that it is necessary for us to decide this point. We would, thereforee, leave this point open and our judgment should not be construed as in any manner having up-held the finding of respondent No. 1 on this point.

(5) The main arguments by the learned counsel for the petitioner were addressed on the second point; namely whether the removal of respondent No. 2 by the Assistant General Manager was legal and valid, Mr. Chopra strongly contended that the view taken by respondent No. 1 that the Assistant General Manager, in spite of the delegation of power of removal had been made to him by the General Manager (Transport), was not competent to remove respondent No. 2, was not warranted in law. Mr. Chopra did not dispute that originally respondent No. 2 had been appointed by the General Manager of the Transport Authority in the year 1952. He also did not dispute that respondent No. 2 was a class Iii employee. Now the Transport Authority was constituted by virtue of the Delhi Road Transport Authority Act, 1950. Section 53 of the Delhi Road Transport Authority Act provides that the Authority may frame regulations amongst others for the conditions of appointment and service and the scales of pay of officers and servants of the Authority other than the General Manager and the Chief Accounts Officers. In exercise of the powers conferred by Section 53 of the Delhi Road Transport Authority Act, 1950, Regulations were framed known as the Delhi Road Transoort Authority (Conditions of Appointment and Service) Regulations, 1952, Regulation 6 of these Regulations indicated the appointing authority for different classes of employees and provided that for class Iii and class Iv employees, the General Manager was the appointing authorityit, thereforee, has to be held that respondent No. 2 was appointed by the General Manager of the Transport Authority. In fact, in fairness to Mr. Chopra, we may mention that he did not challenge this part of finding of respondent No. 1.

(6) Now Section 511 of the Corporation Act provides that every officer and other employee of each of the bodies and local authorities specified in the Second Schedule shall, on the establishment of the Corporation be transferred to and become an officer or other employee of the Corporation with such designation as the Commissioner may determine. Item 12 of the Second Schedule lists Delhi Road Transport Authority. By virtue of this provisions, thereforee, respondent No. 2 who was an employee of the Transport Authority was transferred and became an employee of the Corporation from the date of the establishment of the Corporation since 1958. Section 516 of the Corporation Act provides that from the date of the establishment of the Corporation notwithstanding the repeal of the Delhi Road Transport Authority Act any appointment, notification...... made and in force immediately before the establishment of the Corporation shall in so far as it is not inconsistent with the provisions of the Act continue in force and be deemed to have been made under the provisions of this Act. The result is that respondent No. 2 who had been appointed under the Transport Authority is deemed to have been appointed under the provisions of this Act in. so far as is is not inconsistent with the provisions of the Corporation Act. Section 92(l)(b) of the Corporation Act provides that power of appointment of municipal officers and other municipal employees to a post carrying a minimum monthly salary (exclusive of allowances) of less than three hundred and fifty rupees, shall vest in the General Manager (Transport). It is not disputed that respondent No. 2 is in a post carrying a minimum monthly salary of less than Rs. 350.00. Thus according to Section 92(l)(b) of the Corporation Act the appointment of persons like respondent No. 2 vests in the General Manager. A combined reading of Section 516(1)(b), 511 and Section 92(l)(b) will show that respondent No. 2 who was appointed by the General Manager of the Transport Authority by virtue of powers of appointment given under the Delhi Road Transport Authority Act is to be deemed to have been appointed under the provisions of Section 92(l)(b) of the Corporation Act. The appointment of respondent No. 2 by the General Manager of the Transport Authority cannot be said to be in any manner inconsistent with the provisions of the Corporation Act, and, thereforee, the appointment made by the General Manager of the Transport Authority has to be taken to be an appointment made by the General Manager (Transport) under the Corporation Act. Mr. Chopra sought to contend that Section 516 of the Corporation Act was not applicable as, according to him, clause (2) only dealt with the appointment and notifications etc. made under clause (a) of sub-section (2) of Section 286 and did not relate to any appointments or orders made under the provisions of Delhi Road Transport Authority Act. In our view this contention is without any force. A reference to Section 516(1)(a) of the Corporation Act will show that it clearly states that as from the date of the establishment of the Corporation, the Delhi Joint Water and Sewage Board Act, 1926. and the Delhi Road Transport Authority Act, 1950, shall stand repealed. Clause (b) of sub-section (1) of Section 516 of the Corporation Act also repeals the various enactments mentioned in Thirteenth Schedule to the Act namely Punjab Municipal Act, 1911.

(7) The Punjab District Board Act, 1883, the provisions of the City of Bombay Corporation Act, 1888, and the provisions of the United Provinces Municipalities Act, 1916. Sub-section (2) of Section 516 further states that notwithstanding the provisions of sub-section ( 1 ) or of clause (a) of sub-section (2) of Section 286 any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued, and any license or permission granted under any of the Acts or enactments referred to in sub-section (1) of this Section or under the Act referred to in clause (a) of sub-section (2) of Section 286 and in force immediately before the establishment of the Corporation, shall, in so far as it is not inconsistent with the provisions of the Act continue in force and be deemed to have been made, issued or granted under the provisions of this Act. . . . A reading of Section 516 of the Corporation Act, thereforee, does not support the contention of Mr. Chopra that sub-section 2 when it talks of appointments was only restricting itself to the provisions of sub-section (2) of Section 286. If the only intention was to refer to the appointments etc. made under the provisions of sub-section (2) of Section 286 namely the Electricity (Supply) Act, 1948, it is not understood how it would be in harmony with the provision of sub-section (2) of Section 516 which talks of any appointment etc. having been made under any of the Acts referred to in sub-section (1) of Section 516 (which includes the Delhi Road Transport Authority Act). In our opinion this provision was necessary as without it all appointments, notifications and orders issued under the various repealed Acts would be non-existent and would have created a vacuum. Mr. Chopra suggested that as the provision has been made in Section 511 of the Corporation Act for continuance of the employees and, thereforee, transfer to the Corporation from the date of the establishment of the Corporation, the provision of Section 516 had no relevancy in that connection. In our view there is no force in this connection. Section 511 of the Corporation Act provides for the continuance of the employees of those bodies mentioned in the Second Schedule and makes them as employees of the Corporation from the date of the establishment of the Corporation. This provision is a provision for the continuity of the service of the employees. The saving of orders of appointment .and other notifications and orders issued under the repealed Acts have not been provided in Section 511 but in Section 516 .of the Corporation Act. We, thereforee, hold that respondent No. 2 who was appointed by the General Manager of the Transport Authority has to be , to have been appointed by the General Manager (Transport) of the Underaking on combined reading of Sections 516, 511 and 92 of the Corporation Act. The position, thereforee, that emerges is that respondent No. 2 has to be taken to have been appointed by the General Manager (Transport) of the Undertaking. It is not disputed that he has been removed from the service by the Assistant General Manager. Respondent No. [I has found that removal by the Assistant General Manager was invalid. It is the correctness of this view that was further canvanssed by Mr. Chopra.

(8) Section 95(1) and Section 491 of the Corporation Act on which much of the arguments were based may at this stage be reproduced and are as :-

'95(1): Every municipal officer or other municipal employee shall be liable to have his increments or promotion with-held or to be censured, .reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by. regulations :- Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed: Provided further that the Corporation may by regulations provide that municipal employees belonging to such classes or categories as may be specified in the regulations shall be liable also to be fined as such authority as may be specified therein.'

491: The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this 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.'

(9) Now if proviso (1) of Section 95(1) was to be read it is quite clear that it prohibits any employee from being removed or dismissed by any authority subordinate to that by which he was appointed. The first question, thereforee, that arises is whether the Assistant General Manager who has ordered the removal of respondent No. 2 is an authority subordinate to the General Manager (Transport) of the Undertaking by which respondent No. 2 was appointed. Mr. Chopra contended that the Assistant General Manager was not an authority in any way subordinate to the General Manager of the Transport Authority. He contended that as the General Manager of the Transport Authority had ceased to exist by virtue of the repeal of the Delhi Road Transport Authority Act, it was not possible to find out the equivalent of the General Manager of the Transport Authority, and accordingly it was submitted, that there was no measure by which it could be held that the Assistant General Manager of the Undertaking was in any manner subordinate to the General Manager of Transport Authority. One fallacy in this argument is obvious. It ignores the fact which we have found above that by virtue of Sections 516, 511 and 92 respondent No. 2 is to be deemed to have been appointed by the General Manager (Transport) Undertaking. It cannot be contended that the Assistant General Manager of the Undertaking is not subordinate to the General Manager of the Undertaking. The argument of Mr. Chopra was apparently based on the assumption that the appointment of respondent No. 2 has to be taken to be by the General Manager of the Transport Authority and unless it was shown that the Assistant General Manager of the Undertaking was subordinate to the General Manager of the Transport Authority it cannot be held that respondent No. 2 had been removed by an authority subordinate to that by whom he was appointed. In view of our finding that respondent No. 2 must be deemed to be appointed by the General Manager of the Undertaking this argument is not valid. Even if the appointment of respondent No. 2 is taken to be by the General Manager of the Transport Authority. the position of the petitioner does not improve. In that case also, in order to up-hold the validity of the order of removal passed by the Assistant General Manager of the Undertaing it will be essential for the petitioner to show that the Assistant General Manager of the Undertaking is not subordinate authority to the General Manager of the Transport Authority. This is because the word 'subordinate' in proviso to Section 95(1) means subordinate in rank and not with reference to the functions exercised. Accordingly the only persons who could in terms of proviso (1) to Section 95(1) remove or dismiss respondent No. 2 would be a person who was equal in rank to the General Manager of the Undertaking or the General Manager of the Transport Authority. If it could be shown that the Assistant General Manager of the Undertaking was equal in rank to the General Manager of the Transport Authority then obviously proviso (1) to Section 95(1) of the Corporation Act would not be violated. It is obvious that it cannot be contended with any degree of plausibility that the Assistant General Manager of the Undertaking is equal in rank to the General Manager of the Transport Authority. As a matter of fact as already noticed above the appointing authority of persons like respondent No. 2 under the Delhi Road Transport Authority Act was the General Manager of the Transport Authority and it is the General Manager of the Undertaking who is also the appointing authority by virtue of Section 92(1)(b) of the Corporation Act. The fact that the authority to appoint persons like respondent No. 2 under the Delhi Road Trans port Authority Act and also under the Corporation Act is the General Manager shows unmistakably that it is the General Manager of the Undertaking alone who could be an authority of equal rank to the General Manager of the Transport Authority. Any other authority subordinate to the General Manager of the Undertaking would obviously also be an authority subordinate to the General Manager of the Transport Authority. Mr. Chopra, however, contended that as the previous post of the General Manager of the Transport Authority has ceased to exist it was not necessary to comply with the requirements of proviso (1) to Section 95(1) of the Corporation Act. He referred us to Dulal Ranjan Adetya v. R. K. Base and others : (1959)ILLJ22Cal . In that case the employee had been originally appointed by the Director of Administration in the Directorate of Transport and was removed by the Depot Manager. P. B. Mukherji, J. in repelling the argument that the employee had been removed by an authority subordinate to the one by whom he was appointed noticed that the original appointing authority namely the Director of Administration no longer existed. But the decision further was based on the finding that the Depot Manager by virtue of the notification had been given the same power to make appointments and, thereforee, it could not be held that the employee was removed by an authority subordi- nate to the one by whom he was appointed. This authority, thereforee, is of no assistance to Mr. Chopra.

(10) The next authority referred to is Raghunath Singh v. State of Madhya Bharat : (1959)IILLJ187MP . In that case the employee had been appointed originally by I.G. of Police of the erstwhile Gwalior State. Gwalior State having been merged with Madhya Bharat he was later on removed from service by the D.I.G., Northern Range, Madhya Bharat. In dealing with the challenge that he had been removed by an authority subordinate in rank by whom he was appointed it was observed that it was well nigh impossible task to prove this as the authority has ceased to exist. It was also noticed that the petitioner in that case had not been able to show that the D.I.G. Northern Range, Madhya Bharat was subordinate in rank to the I.G. of erstwhile Gwalior State. It was in these circumstances that it was held that there was no violation of the provision of Article 311 of the Constitution.

(11) Similarly the judgment referred to as Autarsingh Bapursing v State of Madhya Pradesh : AIR1960MP254 does not in any manner support the contention of Mr. Chopra. In that case it was held that it had not been proved that there was any subordination of a superintendent of police in the District of Indore to the D.I.G. of Police of the erstwhile Indore State.

(12) It will be seen that in all these authorities it was no where suggested that because the appointing authority had ceased to exist, thereforee, the requirement of Article 311 of the Constitution which also require that no person shall be dismissed or removed by the authority subordinate to that by which he was appointed was not necessary to be complied with. Obviously it could not have been argued nor has it been held in these cases that the Constitutional mandate of Article 311 could be disregarded by the simple devise of change of the designation of the appointing authority.

(13) The argument of Mr. Chopra that simply because an authority 'which appointed respondent No. 2 is no longer existing, the requirement of proviso (1) to Section 95(1) of the-Corporation Act has not to be complied with is without any merit. The words of Proviso (1) to Section 95(1) are similar to those found in Article 311 of the Constitution. The argument that because the original appointing authority has ceased to exist, the provisions of Article 311 could be dispensed with have been consistently rejected vide Gurmukh Singh s/o Gulab Singh Delhi v. Union of India, New Delhi , Ramratan Balchand v. The State of Madhya Pradesh : AIR1964MP114 and Mysore State Road Transport Corporation through its Chairman, Central Office, Bangalore and another v. Khaja Mohiddin and others (A.I.R. 1969 Mysore 41). It cannot be suggested with any degree of plausibility that simply because the appointing authority has ceased to exist the guarantee given to the employee by proviso (1) to Section 95(1) of the Corporation Act would become a dead letter. It is common occurrence in government departments that many of the departments are reorganized and different resignation come into existence during the course of the service of an employee. If the argument of Mr. Chopra was to be accepted the startling result would be that the guarantee given to the employee would be nullified by simply changing the designation of the officers. We are. thereforee, unable to accept the contention of Mr. Chopra that proviso (1) to Section 95(1) was not applicable simply because the original authority i.e., the General Manager of the Transport Authority has ceased to exist. We are of the opinion that in spite of there being no General Manager of the Transport Authority in existence at the time when respondent No. 2 was removed, the only authority competent to remove him would be authority not subordinate in rank to an officer by which he was appointed, namely the General Manager of the Transport Authority. We have already expressed our opinion above that the equivalent person in rank to the General Manager of the Transport Authority was the General Manager of the Undertaking under the Corporation.

(14) Mr. Chopra then contended that removal of respondent No. 2 had been ordered, in fact, by a person not subordinate to the authority by which he was appointed i.e., the General Manager of the Transport .Authority. This argument was supported by invoking the provisions of Section 491 of the Corporation Act which provides that Commissioner may by order direct that any power conferred by or duty im- posed on him under the Act shall be exercised and performed by any municipal officer or municipal employee specified in the order. Sec- corporation 504(l)(a)(ii) of the Corporation Act provides that any refer- ence in the Act to the Commissioner shall be construed in relations to any matter pertaining to the Delhi Transport Undertaking as a refer- ence respectively to the General Manager (Transport)- Mr. Chopra drew our attention to annexure 'B' to the writ petition wherein the General Manager in exercise of the powers under Section 491 of the Corporation Act delegated powers under the various provisions of the Sections to the officers specified therein. Mr. Chopra contended that as powers of appointment, punishment and disciplinary action, removal and dismissal of the employee of class Iii from the service have been delegated by means of this notification the result is that the Assistant General Manager is lifted up to the rank of the General Manager (Transport) Undertaking and any action taken by the Assistant Gene- ral Manager should be considered to be an action taken by the General Manager. The result, it is submitted, is that if the action of the Assist- ant Genera] Manager is considered to be action by the General Manager (Transport) Undertaking, the removal from service of respondent No. 2, should be taken to be by the General Manager of the Under- taking and, thereforee, there has been compliance with the proviso (1) to Section 95(1) of the Corporation Act. The fallacy in the argument of Mr. Chopra is that he assumes that the subordination that is men- tioned in proviso (1) to Section 95(1) of the Act is a subordination of functions. Now this is legally not correct. The subordination mentioned in the proviso means a subordination in rank and not with reference to the functions exercised. The office order annexure 'B' to the writ petition shows that by the delegation of powers mentioned in the Schedule the rank of the Assistant General Manager is not being equated with the rank of a General Manager of the Undertaking. In fact this order itself states that the power delegated by the General Manager will be exercised by the officers of the Undertaking subject to his supervision, control and revision. The power of delegation given under Section 491 o the Corporation Act also contemplates that the functions which have to be performed by the General Manager (Transport) may be delegated by him to the officers named by him All this shows that the officer to whom this delegation is done is not placed on equal rank to the General Manager (Transport). The argument, thereforee, that merely because the powers have been dele- gated by the General Manager (Transport) to the Assistant General Manager so as far as the functions are concerned, the latter should be deemed to be equated in rank with the General Manager (Trans- port) Undertaking is not valid. All that delegation signifies is that the Assistant General Manager who is subordinate in rank to the General Manager (Transport) Undertaking performs the functions and exercises the powers which a person higher in rank, that is the General Manager (Transport) has been given under the Act. But this fact does not have an automatic effect of investing the subordinate authority like the Assistant General Manager with the rank of the General Manager (Transport). The Assistant General Manager (Transport) who is subordinate in rank to the General Manager (Transport) continues to remain subordinate in rank in spites of the fact that he may be performing the same functions by virtue of delegation which the General, Manager (Transport) is competent to perform under the Act. This is because the subordination that is contemplated in proviso (1) to Section 95(1) of the Corporation Act is a subordination in rank and not of functions. We are, thereforee, unable to accept the contention of Mr. Chopra that because delegation of functions has been made to the Assistant General Manager, he must be deemed to be of an equal rank to the General Manager (Transport) and, thereforee, the removal of respondent No. 2 should be deemed to be a removal by a person of equal rank to the one who appointed him.

(15) In the alternative, Mr. Chopra contended that Section 491 of the Corporation Act gave unrestricted powers to delegate all the powers and duties conferred on the General Manager (Transport) to any officer specified in the order and as the Assistant General Manager had been delegated the power to remove and dismiss from service all persons like respondent No. 2 belonging to class III. the removal by the Assistant General Manager was legal and valid. This brings into forefrpnt the question whether the power of delegation given by Section 491 of the Corporation Act en compasse the power to delegate the powers of removal so as to destroy and nullify proviso (1) of Section 95(1) of the Corporation Act. Now Section 95(1) provides that every municipal officer or other municipal employee shall be liable to be removed or dismissed by such authority as may be prescribed by the regulations provided that no such officer or employee shall be ...... removed or dismissed by an authority subordinate to that by which he was appointed. It was conceded that no refulations had been framed under Section 95(1) of the Corporation Act. Proviso (1) of Section 95(1) of the Corporation Act, however, further gives a mandate that no employee shall be removed or dismissed by an authority subordinate to that by which he was appointed. The vast power given in Section 95(1) to proceed against an employee by an authority prescribed by the regulations is cut down by the proviso which specifically prohibits the removal or dismissal of an employee by an authority subordinate to that by which he was appointed. This is a clear mandate in unmistakable terms and unless it was specifically so provided it is difficult to accept the argument that this mandate can be set at naught by merely exercising power of delegation under Section 491 Of the Corporation Act- Mr. Chopra contended that because in the notification attached as annexure 'B' to the petition, the General Manager (Transport) has purported to delegate the powers of removal and dismissal under Section 95(1) of the Corporation Act no difficulty arises and it must be assumed that the removal of respondent No. 2 is by an authority as provided under the Act. But this argument assumes that it is open to the General Manager to split up and delegate only the power of removal to a subordinate authority even in cases in which appointment has been made by an authority higher in rank.

(16) Now Section 92(1) of the Corporation Act gives power to make appointment to the various officers including the General Manager (Transport) to various posts in the Corporation. This power of. appointment could be and has been delegated by the General Manager Transport to the Assistant General Manager in case of class Iii and Class Iv posts. If, thereforee, respondent No. 2 had been appointed after the powers of appointment had been delegated to the Assistant General Manager then he could have been removed by the Assistant General Manager and there would have been no violation of proviso (1) to Section 95(1) of the Corporation Act because in that case he would not have been removed by an authority subordinate to that by which he was appointed. In this connection it is well to remember that the power to terminate flows naturally and as a necessary consequence from the power to create. This power is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of, that power, the authority to call such officer into being necessarily implies the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions or for other causes shown. Power of removal is a consequential power flowing from the power of appointment. It is not a power separate and distant or divorced from the power of appointment. Section 16 of the General Clauses Acts has also recognised this well understood rule of law. Section 16 of the General Clauses Acts reads as under :-

'WHERE,by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.'

(17) If, thereforee, the original appointment of respondent No. 2 had not been made by the General Manager of the Transport Authority who, we have held, must be considered to be equal in rank to the General Manager (Transport) Undertaking, there would have been no difficulty in the way of Mr. Chopra. The difficulty arises from the fact that proviso (1) to Section 95(1) has expressed a different intention clearly prohibiting any employee to be removed or dismissed by an authority subordinate to that by which he was appointed. The legilature never contemplated that this protection could be nullified by recourse to the power of delegation under Section 491 of the Corporation Act. If we were to accept the argument of Mr. Chopra it will create untenable situation wherein though the mandate of proviso (1) to Section 95(1) prohibits removal of an employee by an authority subordinate to that by which he was appointed, yet by virtue of delegation made in pursuance of Section 491 of the Corporation Act the subordinate authority's order of removal would have to be upheld. Mr. Chopra, however, submitted that though the protection given under Section 311 of the Constitution to an employee of not being removed by an authority subordinate to that by which he was appointed cannot be ignored by recourse to delegation made under the rules as (according to him that is a constitutional provision) the same is permissible in the present case because both the provisions of Section 95 and the power to delegate in Section 491 of the Corporation Act are to be found in the same statute. The argument being that the same legisiature which provided for the proviso to Section 95(1) has also provided for the delegation to subordinate authority by virtue of Section 491. The question, thereforee, is whether it is possible to read in the power of delegation given under Section 491 the power to nullify and reduce to naught the protection given by the proviso (1) to Section 95(1). Now it cannot be disputed that the requirement that the removing authority should not be subordinate to the appointing authority is a very important safeguard in favor of the employee and is based on the sensible view that the order of the superior authority appointing him should not be allowed to be nullified by one subordinate to that authority by dismissing the employee as this will be deterimental to the morale and security of the service. When Section 95(1) of the Corporation Act talks of prescribing of the authority by which action of removal could be taken against an employee and further by a proviso limiting that power, it is obvious that no regulation could be framed so as to provide that an employee could be removed by an authority subordinate to that by which he was appointed. Sub-section (1) of Section 98 of the Corporation Act provides for the powers of the Corporation to make regulations. Clause (d) of sub-section (1) of Section 98 lists the regulations which may be made in connection with the procedure to be followed in imposing any penalty under sub-Section (1) of Section 95 of the Corporation Act. The Corporation, thereforee, if it was a frame regulations under Section 98 of the Corporation Act cannot frame a regulation providing that an employee could be removed by an authority subordinate to that by which he was appointed. If the Corporation cannot do so it passes one's comprehension how a General Manager (Transport) who admittedly cannot be said to be an authority superior to the Corporation should have this power merely by virtue of the provision empowering him to delegate any of his functions under Section 491 of the Corporation Act. This is a strong circumstance which shows that powers given under Section 491 does not include the power of delegation to a sulxrdinate authority to remove an employee appointed by an higher authority so as to wipe out the protection of proviso (1) to Section 95(1) of the Corporation Act. It is well settled that it is the duty of the court whenever it is possible to do so to construe provisions which are conflicing in such a manner so that they may harmonies. It is equally well settled that if two constructions are possible the court must adopt that which will implement and which ensures smooth and harmonious working of the Act and the rules and reject that which will stultify the appearent intention and, thereforee, eschew the other which leads to absurdity or gives right to practical inconvenience or makes well established provision of law negatory. The rule of harmonious working also requires that where there are in an enactment two provisions which cannot be reconciled with each other they should be so interpretted that if possible effect should be given to both. Craies on Statute Law, sixth edition, states the rule regarding general and specific enactment as follows:-

'THErule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which: it may properly apply.'

(18) Applying these tests if the contention of Mr. Chopra was to be accepted this will result in completely nullifying and wiping out of proviso (1) to Section 95(1). But if on the other hand it is held as we do, that the power of delegation given in Section 491 can be exercised only in a manner so as not to conflict and negative the protection given by proviso (1) to Section 95(1) it will be possible to avoid a conflict and to give effect to the provision of both the Sections. We also do not see any difficulty in practical working if this nterpretaton is given to both these provisions. If the General Manager is of the view that the volume of work does not permit him to make appointment himself it is open to him by virtue of Section 491 Corporation Act to delegate power of appointment to any officer, which he may himself specify- Once an officer who has been delegated the power of appointment makes any appointment the power of removal necessarily would be available to him and the objection that an employee was being removed by an authority subordinate to that by which he was appointed would not arise. Thus there would be no question of conflict with proviso (1) to Section 95(1). This is so because difficulty only arises in those cases where at the time of appointment there was no delegation, and subsequently by virtue of delegation the power of removal is exercised by authority subordinate to that by which the employee was. appointed.

(19) Mr. Chopra also contended that at the time respondent No. 2 was removed from service the Assistant General Manager had been given the power to appoint and, thereforee, necessarily had the power to remove class Iii employee. In this contention there is an obvious fallacy. The delegation is said to have been given by the General Manager some time in 1961. Admittedly respondent No. 2 became an employee of the Undertaking in 1958 when the Corporation came into force. Obviously, thereforee, respondent No. 2 in 1958 had to be treated to have been appointed by some authority and this could either be the authority which originally appointed him under the Transport Authority i.e., the General Manager of the Transport Authority in 1952 or the authority which by virtue of the provisions of Sections 511, 516 and 92 of the Corporation Act would be the General Manager of the Underaking. In either case the Assistant General Manager in 1958 had no authority either to appoint a class Iii employee or to remove him. Respondent No. 2, thereforee, had been appointed even after the coming into force of the Corporation Act in 1957 by an authority higher in rank than that of the Assistant General Manager. The protection, thereforee, in proviso (1) to Section 95(1) of the Corporation Act of not being removed by an authority subordinate to the authority by which he was appointed could not be nullified by invoking the power of removal under a purported delegation given in pursuance of Sec .ion 491 of the Corporation Act. This contention also, there- fore, fails.

(20) A similar matter came up for decision before a Division Bench of the Punjab High Court, Circuit Bench, consisting of Mehar Singh C.J. and Mahajan J. in Manna Lal Gupta v. Delhi Municipal Corporation of Delhi 1967 SLR. 56. The Bench held that the intention of the framer of Section 491 was not to nullify the proviso to Section 95(1). They also held that the power conferred on the Commissioner by proviso (1) to Section 95(1) cannot be delegated by him by recourse to Section 491. The decision was given on 11-10-1966. This case was referred with approval in Division Beach of this Court in Criminal Appeal No. 133 of 1967 (M. L. Bagai v. State) decided on 19-9-1968. Jn that case the question of delegation was raised ard though on facts it was found that as the employee had been appointed by the Deputy Commissioner by virtue of the delegation made in his favor he could be removed by the Deputy Commissioner without in any manner infringing the proviso to Section 95(1). Dealing with the question whether the Deputy Commissioner who gave the sanction for prosecution against the employee was competent to do so which he would not be if he was also not competent to remove him It was observed by S. K. Kapur J. speaking for the bench :-

'UNDERregulation 7 of the Control and Appeal Regulations 1959, read with the Schedule, the Deputy Commissiouer is competent to remove the employees in the category of the appellant. He himself having appointed the appellant, the first proviso to Section 95(1) 'of the Municipal Corporation Act is not violated. The Deputy Commissioner, thereforee, would be competent authority to remove the appellant. Of course different situation would arise if appointment of the appelland had been made by the Commissioner and thereafter the power of removal had been delegated to an authority subordinate to him. Such delegation would not be permissible in view of the first proviso to Section 95(1) of the Municipal Corporation Act. Since the appellant had been appointed by the Deputy Commissioner, a delegate of the Commisioner, proviso to Section 95(1) will not stand in the way of delegation to the Deputy Commissioner of the power to remove.'

(21) His lordship also referred to Munna Lal Guptus case and found that it was distinguishable on facts. Referring to this case. however, it was observed :-

'THATdecision is of no assistance to Mr. Anthony because in that case it was admitted that the employee concerned had been appointed to the post after coming into force of the Act and that appointment could be made only by She Commisisoner. In that situation, the power could not, of course, be delegated in view of the bar of the proviso to Section 95(1) to an authority subordinate to the Commissioner.

(22) This decision also is, thereforee, an authority for the proposition that if appointment of an employee had been made by the Commissioner the power of removal could not be delegated to an authority subordinate to him in exercise of the powers under Section 491 of the Corporalion Act.

(23) There is, however, a decision in which contrary view has been taken. Civil Writ 1234 decided on 16-5-1969 in which the learned judge has held that by virtue of power of delegation given in Section 491, it was open to the General Manager to delegate the power of removal to the Assistant General Manager and the latter was competent to pass the impugned order of removal against the petitioner even though he had originally been appointed by the General Manager of the Transport Authority. This authority is not doubt in favor of the petitioner. But with very great respect to the learned judge, it is not possible for us to accept the correctness of this view. Before the learned judge the previous decisions of the Division Benches mentioned above, namely Manna Lal Gupta's case and M. L. Bagai's case were not cited, with the result that the learned judge did not have the benefit of the views expressed in these judgments- We also' find that the aspect of nullification of proviso (1) to Section 95(1), if Section 491 was to be interpretted so widely, was not adverted to in the judgment. We, thereforee, regret our inability to accept the correct- ness of this view.

(24) Mr. Chopra referred us to Netranunda Bank v. Stale, of Orissa and another : AIR1970Ori227 . In our opinion this case is of no assistance. All that was held in that case was that if the State Government had conferred the power on Registrar and Deputy Registrar it was open to the latter to entertain the dispute himself rather than refer it to the Registrar. In that case the only question was whether in view of Section 71 of Orissa Co-operative Societies. Act 1951, which required that on receipt of reference under Section 71 the Registrar was to decide the dispute himself or to refer the dispute or transfer the dispute to the person authorised. Powers of the Registrar had been conferred on the Deputy Registrar and the question was whether in spite of this power having been conferred on Deputy Registrar, it was necessary for him to refer the matter to the Registrar. It was held that it was not so. This case has no parallel with the present case because in that case all that was held was that if delegation had been made to the Deputy Registrar to exercise the power of the Registrar he could so function. Similarly in the present case if the delegation had been made to make appointments on the Assistant General Manager it would be open to him to do so and no objection could be found with that. The difficulty has arisen, when the General Manager purporting to Act under Section 491 purports to delegate the power of removal on a subordinate authority and when the same comes in conflict with the proviso to Section 71 of Orissa Co-operative Societies. Act 1951. In our view, thereforee, this case docs not advance the Case of Mr. Chopra any further. We cannot, thereforee, accept the contention of Mr. Chopra that by virtue of the delegation given to the Assistant General Manager it was open to him to remove respondent No. 2 even though he had been appointed by the General Manager of the Transport Authority who was equal in rank to the General Manager of the Undertaking. This power to remove is not encompassed in the power of delegation under Section 491 of the Corporation Act. It must, thereforee, be held that the Tribunal took a correct view that the removal of respondent No. 2 was void and consequently there could be no question of his approving the removal which was invalid. We thereforee, are of the view that decision given by respondent No. 1 is correct and call for no interference-

(25) We, thereforee, dismiss the writ petition, but in the circumstanees of the case with no order as to costs.


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