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State of Rajasthan Vs. Kailash Chandra JaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 32 of 1968
Judge
Reported in1972WLN533
AppellantState of Rajasthan
RespondentKailash Chandra JaIn and ors.
DispositionAppeal dismissed
Cases ReferredIn Longmal and Ors. v. Superintendent of Police
Excerpt:
rajasthan service rules - rule 20--government employee on deputation to rajasthan state roadways department--option not exercised by employee--whether a workman can be transferred from roadways department to malaria eradication unit as a non workman (no).;in a contract of service ordinarily the terms of service should enable an employer to transfer the employee and in the absence of such provision no inherent right of transfer is inferable.;in our opinion a transfer which operates to substantially change the conditions of service by converting a workman into a non-workman cannot be made without consent. the benefits conferred by appropriate acts of legislature on a workman can not be denied to him by mere fits of the employer under the garb of transfer.;where a government servant has been..........to the provisions of the appropriate legislature which governed conditions of kailash chandra jain's services as a workman. in this connection it will be profitable to refer to a judgment of their lordships of the supreme court in b.s. vadera's case : (1970)illj499sc . their lordships observed in para 24 as follows:it is also significant to note that the proviso to article 309, clearly lays down that any rules so made shall have effect, subject to the provisions of any such act'. the clear and unambiguous expressions. used in the constitution must be given their full and unrestricted meaning unless hedged in, by any limitations, the rules, which have to be subject to the provision of the constitution, shall have effect, 'subject to the provisions of the constitution, shall have.....
Judgment:

B.P. Beri, J.

1. This is a special appeal directed against the judgment of a learned Single Judge of this Court dated 23-3-68, whereby he quashed the order of transfer Ex. 1 dated 1 1 9 67.

2. In the State Roadways Department of the Government of Rajasthan (hereinafter called 'the Department') Kailash Chandra Jain was appointed as a conductor on April 7, 1960. Under the Road Transport Corporation Act. 1950, Rajasthan State Roadways Corporation (hereinafter called 'the Corporation') was constituted on 1.10 64 By Notification dated November 18, 1964 employees: of the Department, including Kailash Chandra Jain, were placed at the disposal of the Corporation Clause 6 of the said Notification provided that the services of all Government employees holding whole or part-time posts in the Department shall be temporarily placed at the disposal of the Corporation on deputation for a period of three months or for such period as it may be extended from time to time by the Government on the terms and conditions then governing them till the Corporation framed its own regulations in respect of services of their employees. No deputation allowance was to be given to the employees for the period of deputation The State Government was to exercise all powers regarding disciplinary proceedings or appeals pending immediately before the 1st October, 1964 but the administrative control was to vest in the Corporation This period of 3 months was extended from time to time and it was on 15th April, 1966 that a notice was issued to all the employees of the Department deputed to the Corporation whether they would opt for the services of the Corporation or not. The time for the exercise of the option was also extended Kailash Chandra Jain found the Notification of 15.4.66 vague and sought clarification and never exercised his option to become the servant of the Corporation. On 11 9 67 the Corporation declared Kailash Chandra Jain as surplus and the State appointed him as a Surveillance worker of the National Malaria Eradication Prevention Unit, Barmer and directed him to report He never reported. He presented a writ petition under Article 226 of the Constitution contending that he was a 'workman' in an Industry governed by the Industrial Disputes Act, 1947 and by the Standing Orders framed and duly certified by the Department and he could not be transferred to an establishment which was not an industry. His submission in the alternative was that if he was an employee of the Corporation then the State of Rajasthan had no power to transfer him as a Surveillance worker. The State Roadways Workers Union, Jaipur also challenged the transfer orders of such employees by means of a writ application. The State contested the contention of Kailash Chandra Jain and that of the Union on the ground that Jain having bear declared surplus by the Corporation he was no longer its servant; that the State created supernumerary posts in the Directorate of Transport, maintained the lien of Jain and other servants and that the State in exercise of its powers under Rule 20 of the Rajasthan Service Rules (hereinafter called 'the Rules') was competent to transfer Jain and Ors. The learned Single Judge (sic)-missed the petition of the Union but allowed Jain's petition holding that the State Government was not competent to transfer him and other employees who had been employed in the Department to other establishments of the State because Jain as a workmen was entitled to certain bent fits under various statutes such as Workmen Compensation Act. (Act No VIII of 1923), the Payment of Wages Act (Act No IV of 1936), the Minimum Wages Act (Act No. XI of (1948) and conditions of services under Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 and he could not be deprived of those advantages by being transferred to a post where he would cease to be a workmen and accordingly the learned Judge quashed the order Ex 1 dated 11.9.67 whereby Jain and Ors. were absorbed to the posts indicated in the order and further restrained the State from giving effect to it. Aggrieved by this judgment the State has come up in appeal.

3. Mr. Raj Narain Munshi, learned Additional Advocate General, submitted that the rules flamed under Article 309 of the Constitution of India governed the conditions of service of Government employees including Jain and because Rule 20 empowered the State to transfer its employees from one department to another, Jain could be transferred not withstanding the fact that he was a workman within the meaning of the Industrial Disputes Act. The ground on which this action was supported was that while entry 70 of list I of Seventh Schedule of the Constitution authorised the Union and entry 41 of list II of the same Schedule authorised the State Government to make rules under Article 309 of the Constitution where as the Industrial Disputes Act was made under entry 22 of list III of the said Schedule The fields occupied by entry 41 of list II and entry 22 of list III were altogether different Therefore, even though some benefits under the Industrial Disputes Act may have been conferred on workmen those provisions had not the effect of impairing the powers which the State Government enjoyed Under Rule 20 framed under Article 309 of the Constitution. He further submitted that the transfer is an incidence of service & not a condition thereof. Lastly he argued that the relief granted by the learned Single Judge amounts to an enforcement of a contract which was not permissible in the exercise of the extraordinary jurisdiction more so because the Roadways Department had become extinct He relied on B S. Vadera v. Union of India : (1970)ILLJ499SC ; Dr. R.P. Chaturvedi V. State of Rajasthan and Ors. ILR 18 (1968) Raj. 020; Alexandre Bouzourou v. The Ottoman Bank AIR 1930 PC 118; M/s Kundan Sugar Mills v. Ziyauddin and Ors. : (1960)ILLJ266SC ; G.K. Tandan v. Judicial Commissioner, State of Ajmer AIR 1957 Raj. 230; Mir Samul Hussain v. U.O. I and Ors. AIR 1957 Assam 143 and Narayan Hosabhayya Naik v. State of Mysore AIR 1968 Mys. 73.

4. Mr. Marudhar Mridul, learned Counsel for the respondent Kailash Chandra Jain and the Union, argued that the effect of Ex. 1 was to deprive statutory benefits which were available to Jain as a workman and the State Government could not convert a workman into a non-workman by exercise of the alleged power under Rule 20. He supported the judgment of the learned Single Judge. He relied on Dr. Prem Beharilal Saksena v. Director of Medical and Health Services, Lucknow and Anr. : AIR1959All629 ; State of West Bengal and Ors. v. Hirenera Nath Banerjee : AIR1967Cal285 ; Ne w India Flour Mills and Anr. v. Sixth Industrial Tribunal, West Bengal and Ors. 1963 (1) LLJ 745; Shaw Wallace & Co v. Central Government Tribunal-cum-labour Court, Jabalpur and Ors. 1970 (1) LLJ 710 Director, State Transport v. Presiding Officer, Industrial Tribunal and Anr. 1972 (1) LLJ 88 and Bejdih Colliery v. Madan Chattoraj and 2 others 1967 (1) LLJ 689

5 Before we come to deal with the arguments of the learned Counsel for the parties we might notice that the learned Single Judge did not decide the question whether Kailash Chandra Jain and other employees of the Corporation, who did not choose to remain its servants had become the employees of the Corporation or not. The position that Jain was a workman within the meaning of the Industrial Disputes Act was not assailed before us and in our opinion rightly. The Department had flamed Standing Orders governing the conditions of service of the employees of the Department and obtained a certification of such orders from the appropriate authority as envisaged by Industrial Employment (Standing Orders) Act, 1946.

6. The short but interesting question which arises for our consideration, therefore, is whether Jain, a workman, could be transferred under Rule 20 of the Rajasthan Service Rules to a post where he would have ceased to be a workman?

7. None of the decided cases, referred to us, seem to support the view that every employer has an inherent light to transfer his employees to another place. Their Lordships of the Supreme Court in M/s. Kundan Sugar Mills' case : (1960)ILLJ266SC have observed:

In the absence of an express term of the contract of service between the employer and the employee that the latter should serve in any future concerns which the former might acquire or start, a person employed in a factory cannot be transferred to some other independent concern started by the same employer at another place at a stage subsequent to the date of his employment.

8. Their Lordships of the Privy Council in Alexandre Bouzourou's case AIR 1930 PC 118 while dealing with a bank employee observed that it was difficult to assume that the Bark would willingly agree that their employees should not be bound to serve outside the place where the contract was made except with their consent and such a condition of the contract would require to be clearly established. This case was considered by the Supreme Court in M/s. Kundan Sugar Mills v. Ziyauddin : (1960)ILLJ266SC and need not detain us any further. In a contract of service ordinarily the terms of the service should enable an employer to transfer the employee and in the absence of such provision no inherent right of transfer is inferable. On behalf of the State support is sought from Rule 20 flamed under Article 309 of the Constitution of India. Let us examine the provisions of the Article and the Rule. Article 309 reads:

309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.

Rule 20 of the Rajasthan Service Rules runs as follows:

20. (a) Government may transfer a Government servant from one post to another; provided that except-

(i) on account of inefficiency or misbehaviour, or

(ii) on his written request,

a Government servant shall not be transferred substantively to, or, except in a case covered by Rule 50 appointed to officiate in, a post carrying Jess pay than the pay of the permanent post on which he holds a lien or could hold a lien had his lien not been suspended under Rule 17.

9. The proviso to Article 309 enables the Governor of a State to frame rules which become the conditions of service. These rules must be (a) subject to the provisions of the Constitution and (b) Acts of appropriate Legislature. Rule 20 undoubtedly enables the State of Rajasthan to transfer its employees but these rules are subject to the Acts of appropriate Legislature. Can it be said that the Industrial Disputes Act and other enactments affecting a 'workman' are Acts of the appropriate Legislature subject to which Rule 20 must operate? The answer to the question, in our opinion, must be in the affirmative. The Industrial Disputes Act is a legislative step intended to shape and give content to the concept of social justice so precious to our Constitution. It regulates the relationship between an employer and employees. Its multiple and frequent changes are evidence of the adjustment that are made from time to time by Legislature to again the end of social justice in changing times. A workman as defined in the Industrial Disputes Act, which Jain undoubtedly was, has numerous benefits in that capacity, such as, the advantage of the Payment of Wages Act, the Workmen Compensation Act, the Industrial Disputes Act, the Industrial Employment (Standing Orders) Act, 1946, etc. To the extent the terms and conditions of a workman employed by the State of Rajasthan is regulated by the aforesaid Acts of legislature the rules framed under Article 309 are subject to these legislative enactments It was open to the State of Raj. to have either framed its own Industrial Disputes Act or to have made amendments to the Central Act suiting its requirements. The Raj State has apparently not done so because our attention has not been invited to any such enactment. Therefore R. 20 framed under Article 309 of the Constitution is subject to the provisions of the appropriate legislature which governed conditions of Kailash Chandra Jain's services as a workman. In this connection it will be profitable to refer to a judgment of their Lordships of the Supreme Court in B.S. Vadera's case : (1970)ILLJ499SC . Their Lordships observed in para 24 as follows:

It is also significant to note that the proviso to Article 309, clearly lays down that any rules so made shall have effect, subject to the provisions of any such Act'. The clear and unambiguous expressions. used in the Constitution must be given their full and unrestricted meaning unless hedged in, by any limitations, The rules, which have to be subject to the provision of the Constitution, shall have effect, 'subject to the provisions of the Constitution, shall have effect, 'subject to the provisions of any such Act'. That is, if the appropriate Legislature has passed an Act, under Article 309. the rules framed under the Proviso, will have effect, subject to that Act; but in the absence of any Act, of the appropriate legislature, on the matter in our opinion, the rules, made by the President or by such person as he may direct, are to have full effect, both prospectively and retrospectively.

The learned Additional Advocate General emphasised that Rule 20 has been framed covering the field of entry 41 of list II of Schedule VII of the Constitution whereas the Industrial Disputes Act was made under entry 22 of List III of the Seventh Schedule and the field of these two entries is altogether different. The Industrial Disputes Act not having been made under Article 309 could not override Rule 20 and he placed reliance on the aforesaid passage of their lordships of the Supreme Court emphasising the words that the appropriate Legislature had passed an Act under Article 309'. We are unable to accept this argument. The clause under Article 309 is that 'Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed'. These Acts need not be made under Article 309 but if they are the Acts of the appropriate Legislature which regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State they are covered by the aforesaid clause of the Constitution.

10. Kailash Chandra Jain was not a civil servant simpliciter but also a workman under the Industrial Disputes Act. We might refer in this connection to State Transport Controller, Orissa v. The Presiding Officer, Industrial Tribunal, Orissa and Anr. : AIR1966Ori109 . The Orissa State Transport Service appointed Lakshman Pradhan as a cleaner on a temporary basis. It was alleged that he misbehaved. His services were terminated with immediate effect as his services were no longer required: in the Department This gave rise to a dispute. The legality and validity of the termination of the services of this employee was strongly challenged by the workman through his Union. The matter was referred to the Industrial Tribunal which held that the aforesaid order was neither legal nor justified and he was entitled to reinstatement. A writ was presented by the State for quashing the award given by the Industrial Tribunal. The learned Judges of the High Court of Orissa inter alia observed,

In the present case as it will be presently shown that Lakhman Pradhan is not a pure and simple Government servant, but he is also a workman as defined under the Industrial Disputes Act. Therefore, in such a case that rule could not stand in the way of the Tribunal to find out whether his termination under the aforesaid order dated, 9th November, 1960 was a case of termination simpliciter only or in fact a case of termination by way of punishment.

In substance the status of Lakhman Pradhan was given due weight as against the fact| of his being a servant of the State of Orissa. In Director, State Transport Service v. Presiding Officer, Industrial Tribunal and Anr. 1972 (1) LLJ 88 the services of a conductor of the State Transport Service, Orissa were terminated. Union raised a dispute challenging the termination of service. The matter was referred to the Industrial Tribunal for adjudication and it was found that the enquiry held was imperfect and ordered the reinstatement and payment of half back wages. The Director of the State Transport sub-mined a petition under Article 226 of the Constitution. The learned Judge held that admittedly conductors under the State Transport Service were holders of civil posts under the State and were Government servants. They were also workmen coming within the definition of that term in Industrial Disputes Act Bat an Industrial Tribunal could certainly interpret and administer service rules which are in fact the Standing Orders for the employees of State Transport Service in accordance with the Industrial law & not in accordance with the law applicable to Govt. servants Jain before us was a workman under the Industrial Disputes Act but by his transfer he has how been converted into a non-workman. This amounts to a disadvantageous change into his conditions of service and it cannot be done under Rule 20. In Shaw Wallace & Cons case 1970 (1) LLJ 710 an employee working in a colliery as pump khalasi and who was a workman absented himself by way of protest against illegal change of his conditions of service by the management. He was served with a notice that as he was absent from work without prior permission he lost his lien for service under the Standing Orders. The matter went to the Industrial Tribunal and the workman was ordered to be reinstated. The learned Judge of Madhya Pradesh High Court observed that the transfer cannot be made to operate to the prejudice or detriment to the workman by way of loss in wages other monetary benefits. In our opinion a transfer which operates to substantially change the conditions of service by converting a workman into a non workman cannot be made without consent. The benefits conferred by appropriate Acts of Legislature on a workman cannot be denied to him by mere fit of the employer under the garb of transfer.

11. We might also notice another line of argument advanced by Mr. Mridul on the basis of decided cases that the general powers of transfer are only possible where there is a cadre and the post is transferable. He invited our attention to Hirendra Nath's case : AIR1967Cal285 . Petitioner in that case was permanently appointed as a Registrar of Rent Controller's Court, Calcutta He was transferred as a Certificate Officer under the Bengal Public' Demands' Recovery Act in a certain R venue Division. Although the pay of the Certificate Officer's post was less than that of a Registrar of Rent Controller's Court the petitioner was allowed to draw his pay in the Registrar's pay scale as a special case. The transfer was challenged by the petitioner on the grounds that the post of the petitioner was not transferable and, therefore, the transfer order was illegal and invalid. The learned Judge held, that where a person was appointed permanently as a Registrar by way of promotion from the post of a Deputy Registrar, it was an implied condition of the appointment that the incumbent will hold the post and no other, and as such it was not a transferable post. In Dr. Prem Beharilal's case : AIR1959All629 the facts were these Dr. Prem Beharilal Saksena was appointed by the Governor to the post of the Anaesthetist, attached to the State Hospitals at Kanpur and was confirmed in that post ultimately and the appointment order imposed no express obligation for transfer from that post, and the post did not belong to any regular service or other cadre but was an individual post attached to the two hospitals at Kanpur The circumstances which may be applicable to a Government servant belonging to some service or cadre cannot have a direct bearing on the case which in its very nature has to be judged in the background of its own terms and conditions opined the learned Judge. the appointment order did not include any condition or term wherefrom liability for transfer could be inferred even if the hospital to which the transfer was made was also run by the State. Rule 15 of the Fundamental Rules gave power to the State Government to transfer a Government servant from me post to another. But the transfer contemplated by the rule is, the learned Judge held, as its language clearly indicated from one post to another post. Before, therefore, this rule can be availed of the Government servant must belong to a category of servants which can in accordance with the terms of the employment be sent to another post. Where a Government servant has been appointed to a specific post and that post is in its very nature such that it can be performed at the particular place only he cannot under this rule be transferred to another post. Mr. Mridul argued on the basis of these authorities that Jain was a conductor and it was not. a transferable post and by invoking Rule 20 he could not be converted into a malaria Surveillence Worker as the post of a conductor, it has not been shown, was transferable as such. The argument is not without substance. Resort to Rule 20 in the case before us could not be utilized for changing the nature of employment and outside the cadre.

12. Learned Additional Advocate General argued that the State was trying to absorb and provide employment to Jain. Assuming for the sake of argument that the State was exgratia offering another employment to him, it was open to him not to accept the offer. In substance, however, what the State Government has urged is that it had power to transfer and had exercised that power and any denial of that, power was erroneous. We might observe in this context that the argument is oblivious of the changes that the Legislature has been making in recent times. We might quote Julian Huxley in this context;

Many of our old ideas must be re-translated, so to speak, into a new language. The democratic idea of freedom, for instance must lose its nineteenth century meaning of individual liberty in the economic sphere of and become adjusted to new conceptions of social duties and responsibilities. When a big employer talks about his democratic right to individual freedom, meaning thereby a claim to socially irresponsible control over a huge industrial concern and over the lives of tens of thousands of human beings whom he happens to employ, he is talking in a dying language.

This thought received judicial mention in Shree Meenakshi Mills, Ltd. v. State of Madras : (1951)IILLJ194Mad . The State Government when it enters the field of commercial enterprises such as Road Transport it has to obey legislative commands issued in that behalf touching the terms and conditions of the employees therein. The argument of the Learned Additional Advocate General of the restricted power of transfer is apparently couched in a language of yesterday.

13. Some of the authorities cited by the learned Additional Advocate General do not help in the determination of the point before us. Narayan Hosabhayya Naik's case AIR 1968 Mys 73 related to a case of transfer which was in the nature of an administrative act. There was a re-organisation of the office and some of the first division clerks working in the office were found in excess and such excess office staff had to be absorbed in other department and some disputes regarding their seniority were raised on that account. In Rajasthan (5) and Assam (6) cases it was urged that there was a reduction in rank on account of transfer. In Longmal and Ors. v. Superintendent of Police, Ajmer, and Ors. this Court held that rules under Article 309 were applicable subject to the Police Act. Bejdih Colliery's case 1967 (1) LLJ 689 also does not directly help this case because there a workman was transferred as workman elsewhere.

14. In our opinion, therefore, the conclusion of the learned Single Judge that the order Ex I was invalid because it converted a workman under the Industrial Disputes Act to a non-workman in the Malaria Department is correct and calls for no interference.

15. This appeal fails and is dismissed with costs.


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