Skip to content


Rameshwarlal and ors. Vs. Rajasthan State Road Transport Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petitions Nos. 70 and 106 of 1868 and 193 and 264 of 1971
Judge
Reported in1972WLN553
AppellantRameshwarlal and ors.
RespondentRajasthan State Road Transport Corporation and ors.
DispositionPetition dismissed
Cases ReferredRoshanlal Tandon v. Union of India and Anr.
Excerpt:
constitution of india - article 226 and rajasthan civil services (classification, control & appeal) rules, 1958--rules adopted by corporation--writs by employees of state roadways corporation and life insurance corporation--held, petitioners are not public officers and writs are not maintainable.;section 45 of the act, however, deals only with the power of the corporation to make regulations, and if the corporation decided to adopt the rajasthan civil services (classification, control and appeal) rules for the time being, these rules were really in the nature of regulations in so far as the corporation was concerned, and there is no justification for the argument that any obligation imposed by them was a mandatory obligation imposed by statute.;moreover, as the funds out of which they.....p.n. shinghal, j.1. as a common question of law arises in these four petitions under article 226 of the constitution, they have been heard together at the request of the learned counsel and will be disposed of by a single judgment.2. petitioner rameshwarlal (in s.b. civil writ petition no. 70 of 1968) was an employee of the state government as a lower division clerk in the rajasthan state roadways department. he passed the accounts clerk's qualifying examination in 1964. the rajasthan state road transport corporation was constituted, and the petitioner's name appeared in the seniority list of the lower division clerks of the corporation. he was selected for promotion as a commercial accounts clerk, against a temporary post, by order ex. 3 dated august 7, 1965, and was posted in that.....
Judgment:

P.N. Shinghal, J.

1. As a common question of law arises in these four petitions under Article 226 of the Constitution, they have been heard together at the request of the learned Counsel and will be disposed of by a single judgment.

2. Petitioner Rameshwarlal (in S.B. Civil Writ petition No. 70 of 1968) was an employee of the State Government as a lower Division clerk in the Rajasthan State Roadways Department. He passed the Accounts Clerk's qualifying Examination in 1964. The Rajasthan State Road Transport Corporation was constituted, and the petitioner's name appeared in the seniority list of the lower division clerks of the Corporation. He was selected for promotion as a Commercial Accounts Clerk, against a temporary post, by order Ex. 3 dated August 7, 1965, and was posted in that capacity at Udaipur. The State Government issued a notification on April 15, 1966 by which the employees were asked to exercise their option whether they wanted to continue in the service of the Corporation or of the State. The petitioner exercised the option to serve as an employee of the Corporation, and his service was thereafter transferred to the Corporation. The Corporation, however, issued order Ex. 5 dated December 29, 1967 reverting him as a lower division clerk on the ground that his work was not reported to be satisfactory as he had made some forged entries in the cash book. The petitioner has challenged that order on the grounds that it was made in violation of the principles of natural justice and the provisions of Article 311 of the Constitution. He has also urged that there was violation of the Civil Service (Classification, Control and Appeal Rules, which are said to have been adopted under a resolution of the Corporation dated September 24, 1965. Some other grounds have also been taken, but it is not necessary to refer to them as they have not been referred during the course of the arguments. The petitioner has prayed that the order (Ex. 5) of his reversion dated December 29, 1967 may be quashed and the respondents may be directed not to interfere with his work as an Accounts Clerk in the service of the Corporation.

3. Mahesh Bahadur Barnie (petitioner in S.B. Civil wit petition No. 106 of 1968) was working as a Development Officer in the service of the Life Insurance Corporation when he was dismissed by order Ex. 14 of the Zonal Manager of the Corporation dated July 15, 1967. It has been urged by him that the order of his dismissal was passed in breach of Regulation 39(1) of the (Staff) Regulations, 1960, and that certain other procedural irregularities were committed. He has urged further that the charges were not established against him and that a perverse view was taken of the evidence. He has also complained that his appeal against the order of his dismissal was wrongly rejected. He has therefore prayed for quashing the aforesaid order of his dismissal from the service of the Corporation

4. H.L. Bansal (petitioner in S.B. Civil Writ Petition No. 193 of 1971) was also Development Officer in the service of the Life Insurance Corporation, but he was removed from service by order Ex. 12 dated January 24, 1970. He has urged that his dismissal was ordered in breach of the Regulations of the Corporation and the principles of natural justice, that the authorities concerned were biased against him, and that there was failure to consider some of the relevant evidence. He has also complained that certain terminal benefits were not allowed to him, and has prayed that the order of his removal may be quashed and he may be given all the benefits as it that order had never been passed.

5. Om Prakash Sharma (petitioner in S.B. Civil Writ Petition No. 264 of 1971) was also a Development Officer in the service of the Life Insurance Corporation, but was removed from service by order Annexure 13 dated December 12, 1969. He has challenged that order on the grounds that it was made in breach of the Regulations of the Corporation, the inquiry against him was a farce, the conclusions which were drawn against him were not based on any evidence, and no adequate or reasonable opportunity was given to him to defend himself. He has therefore prayed that the order of his removal may be quashed and he may be reinstated in his employment from the date of removal.

6. It will thus be seen that while petitioner Rameshwarlal was an employee of the Rajasthan State Road Transport Corporation, the other three petitioners were employees of the Life Insurance Corporation. I shall refer to the Corporations cumulatively as 'the Corporations' and individually as 'the Corporation'.

7. Some of the respondents have filed replies to the writ petitions in which they have traversed the claims of the petitioners altogether. A preliminary objection has been raised on their behalf that, even on the basis of the averments made by the petitioners, the petitions are not maintainable because the relationship between the petitioners and the corporations was pure master and servant relationship so that their remedy, if any, lay by way of damages as there would be no specific performance of such contracts by virtue of Section 14 of the Specific Relief Act. The question at the threshold therefore is whether the petitions are maintainable on the admitted facts.

8. A number of decisions have been rendered by their Lordships of the Supreme Court in which the question has been examined, and it will be proper to refer to them in chronological order.

9. I shall start with S.R. Tewari v. District Board, Agra and Anr. : (1964)ILLJ1SC . S.R. Tewari was an employee of the District Board of Agra, but the Board resolved to terminate his service by paying him salary in lieu of notice. He preferred an appeal to the Government of U.P., but it was dismissed, and he then submitted a petition to the High Court of Allahabad under Article 226 of the Constitution for quashing the resolution of the Board and the order by which his appeal was dismissed. He also prayed for the issue of a writ of mandamus commanding the Board and the State Government to treat him as the lawfully appointed employee of the District Board. The High Court dismissed the petition, and S.R. Tewari took on appeal to the Supreme Court. Their Lordship examined the contention of the Board that the relief claimed by the petitioner could not be granted as his remedy lay by way of claim for damages, and stated the law as follows-

Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well-recognised exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Act. 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ, Similarly under the industrial law jurisdiction of the labour and industrial tribunal to compel the employer to employ a worker, whom he does desire to employ, is recognised. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do.

As their Lordships reached the conclusion that the Board had the power to determine the employment of the appellant and purported to exercise that power, they dismissed his appeal.

10. A similar point came up for consideration before their Lordships of the Supreme Court in Life Insurance Corporation of India and Ors. v. Sunil Kumar Mukherjee and Ors. : (1964)ILLJ442SC There a group of fifteen appeals was considered by their Lordships, and the common question before them was about the validity of the orders passed by the Corporation terminating the services of its employees. Then Lordships examined the provisions of Section 11(2) of the Life Insurance Corporation Act 1956, and held that the provisions of the Order which was made by the Central Government under the section was a 'self contained code' in regard to the material terms and conditions of service of the employee of the Corporation, and would prevail over the Corporation's own Regulations. They therefore dismissed the appeals of the Corporation and upheld the decision of the Calcutta High Court by which the impugned orders were quashed and a mandamus was issued directing the respondents not to give effect to them. The learned Counsel for the petitioners have placed considerable reliance on their Lordships decision in this case.

11. I have gone through the decision and it appears that although it was given on a later date, the earlier decision of their Lordships of the Supreme Court in S.R. Tewari's case : (1964)ILLJ1SC was not brought to their notice. Their Lordships, however, had an opportunity of considering the decisions in Life Insurance Corporation of India and Ors. v. Sunil Kumar Mukherjee and Ors. : (1964)ILLJ442SC in Executive Committee of U.P. State Warehousing Corporation, Lucknow v. Chandra Kant Tyagi AIR 1970 SC 244 and explained it in the following manner:

It will be seen that the services, as pointed out by this Court of the employees whose case were under consideration, had been crystallised by the statute-the Insurance Act-in Sections 11(1) and 11(2). By virtue of the powers conferred by Section 11(2), the Central Government issued the Order on December 30, 1957. Clause 10 of this order had clearly indicated the procedure to be adopted for terminating the services of such employees. Therefore the employees had their rights safeguarded by the Insurance Act read with the Order issued by the Central Government and it cast a statutory obligation on the Life Insurance Corporation to adopt a particular procedure if the services of these employees were to be terminated. By not comploying with the provisions of the Clause 10 of the order of the Central Government, which is really related to Section 11 of the Insurance Act, the Life Insurance Corporation must be considered to have acted in gross violation of the mandatory provisions of the statute. Therefore it was not as it that the employees were there seeking to enforce a contract of personal service, but their grievance which was accepted by the Court was that the order terminating their services was a nullity as it had not been effected in terms of the statute. In our opinion, therefore, this decision does not support the contention of the respondent.

(Emphasis added).

While thus explaining the decision in Life Insurance Corporation of India and Ors. v. Sunil Kumar Mukherjee and Ors. : (1964)ILLJ442SC , their Lordships relied heavily on their earlier decision in S.R. Tewari's case : (1964)ILLJ1SC , and went to the extent of extracting that very portion of that judgment which has been reproduced by me the above. When the matter again came up before them in Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC , their Lordships again distinguished the decision in Life Insurance Corporation of India and Ors. v. Sunil Kumar Mukherjee and Ors. : (1964)ILLJ442SC on the ground that the order of the Central Government under Section 11(3) in that case was a 'self sustained code' so that 'the impugned dismissal made inconsistently with the provisions of the said order was without jurisdiction, and therefore, a nullity'. Their Lordships once again upheld their decision in S.B. Tewari's case and pointed out that it was not brought to the notice when the decision was taken in Sunil Kumar Mukherjee's case : (1964)ILLJ442SC . It is therefore quite clear that the decision of their Lordships of the Supreme Court in Life Insurance Corporation of India and Ors. v. Sunil Kumar Mukherjee and Ors. : (1964)ILLJ442SC can not be said to detract from the full vigour and operation of their earlier decision in S.R. Tewari's case : (1964)ILLJ1SC .

12. The matter again came up for consideration before their Lordships of the Supreme Court in Mafatlal Narandas Barot v. J.D. Rathod, Divisional Controller, State Transport Mehsana and Anr. AIR 1966 SC 1064. That, was a case relating to the Gujrat State Transport Corporation. There the service of a permanent employee of the Corporation was terminated without giving him an opportunity of showing cause, in contravention of a regulation of the Corporation. Their Lordships quashed the order, and great reliance has therefore been placed on their decision by the learned Counsel for petitioner Rameshwarlal. The real nature of that decision was however, considered by their Lordships of the Supreme Court in Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC when it was cited as their Lordships' authority, in case of the dismissal of an employee of the Indian Airlines Corporation, and they explained it away with the following observation-

But decision in Barot v. S.T. Corporation 1965 AIR 1970 SC 244 SCR 40 : AIR 1966 S.C. 1064 would seem to support the respondent. There, the order of termination of the appellant's service by the Corporation a body set up under the Road Transport Corporations Act, 1960, was held to be bad in law on account of its being in contravention of Clause (4)(b) of the Regulations containing service conditions framed by, the Corporation under the power given to it by the Act. But the question whether the said Regulations constituted a statutory obligation subject to which only the power to terminate the employment could be exercised or not, or the question whether they took out the employment out of master and servant relationship was not canvassed. Neither the decision in S.R. Tewari's case : (1964)ILLJ1SC nor any other similar decision was also, it seems, brought to the notice of the Court.

The decision in Mafatlal Narandas Barol's case AIR 1966 SC 1064 cannot therefore be said to express the final view of the Supreme Court and it also does not detract from the pronouncement of the law in S.R. Tewari's case : (1964)ILLJ1SC .

13. The next case is Rajasthan State Electricity Board, Jaipur v. Mohan Lal and Ors. : (1968)ILLJ257SC . But that was an altogether different case for there the employer was the Rajasthan State Electricity Board which was held by their Lordship to be 'other authority' within the meaning of Article 12 of the Constitution, as it was, iter alia, invested by status with the power to give directions, the disobedience of which was punishable as a criminal offence. As such there is nothing in that judgement to detract from the view taken and enunciated in S.R. Tewari's case : (1964)ILLJ1SC .

14. I then came to Executive Committee of U.P. State Warehousing Corporation v. Chandra Kant Tyagi AIR 1970 SC 244, to which reference has been made already. The petitioner there was an employee of the UP Warehousing Corporation, which was constituted under the Agricultural Produce (Development and Warehousing) Corporations Act, 1966. Their Lordships of the Supreme Court examined the question as to when and under what circumstances a relief by way of declaration regarding continuity of service could be given and, after making a reference to the observation of Lord Keith of Avomholm in Vine v. National Dock Labour Board (1956) 3 All ER 939, Barbar v. Manchester Regional Hospital Board and Ors. (1952) 1 All. ER 382, they referred to their own two earlier decisions including the decision of S.R. Tewari's case : (1964)ILLJ1SC , and stated the law in the following terms -

From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311(2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.

Their Lordships reached the conclusion that a violation of the relevant regulation could only result in the order of dismissal being held to be wrongful and, in consequence, making the Corporation liable for damages, but it could not be held to be one which had not terminated the service, albeit wrongfully, or which entitled the respondent to ignore it and ask for being treated as still in service. Their Lordship therefore allowed the appeal and dismissed the claim of the employee.

15. Then I come to Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC , to which also I have made a passing reference already. That was a case relating to the dismissal of an employee of the Corporation in contravention of the Regulations made under the Air Corporation Act, 1963. Their Lordships held that such a dismissal could not be declared to be null and void, and expressed their view as follows-

The regulations contain the terms and conditions which govern the relationship between the Corporation and its employee. Though made under the power conferred by the statute, they merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with its servants or the grounds on which it can terminate them. That being so, and the Corporation having undoubtedly the power to dismiss its employees, the dismissal of the respondent was with jurisdiction, & although it was wrongful in the sense of its being in breach of the terms and conditions which governed the relationship between the Corporation and the respondent, it did subsist. The present case, therefore, did not fall under any of the three well recognised exceptions, and therefore, the respondent was only entitled to damages and not to the declaration that his dismissal was null and void.

This decision of their Lordships of the Supreme Court was thus based on what they called 'the three well-recognised expectations' which they had set out in S.R. Tewari's case : (1964)ILLJ1SC . It may be mentioned that their Lordships made a reference to Vine v. Nation Dock Labour Board (1956) 3 All ER 939, Barbar v. Manchester Regional Hospital Board and Anr. (1952) 1 All. ER 382 and Ridge v. Baldwin and Ors. (1963) 2 All ER 66 among the cases which were taken by them into consideration for arriving at their decision.

16. The last case of their Lordships of the Supreme Court is Vidya Ram Misra v. Managing Committee, Sri Jai Narain College and Anr. : (1972)ILLJ442SC . That was a case relating to a lecturer of the Jai Narain College, Lucknow, whose service was terminated by a resolution of the Managing Committee of the College. Their Lordships held that as the cause of action was not on breach of the law, but only on contract, the remedy was by a suit and not by a petition under Article 226 of the Constitution. In reaching this conclusion their Lordships relied on S.R. Tewari v. District Board Agra and Anr. : (1964)ILLJ1SC Executive Committee of U.P. State Warehousing Corporation, Lucknow v. Chandra Kant Tyagi AIR 1970 SC 244 and Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC , and expressly referred and extracted the same portion of their decision in S.R. Tewari's case : (1964)ILLJ1SC to which reference has been made above, for the purpose of reiterating the three well-recognised exceptions to the rules in the case of master and servant relationship. Their Lordships made a reference to the decisions in Vine v. National Dock Labour Board (1956) 3 All ER 939, Barbar v. Manchester Regional Hospital Board and Anr. (1952) 1 All. ER 382, Ridge v. Baldwin and Ors. (1963) 2 All ER 66, and Mallech v. Abardeen Corporation (1971) 2 All ER 1276.

17. It is therefore abundantly clear that the decision of their Lordships of the Supreme Court in S.R. Tewari's case : (1964)ILLJ1SC has held the field throughout and the present cases must be examined with reference to it.

18. Before doing so I may, however, refer to the decisions which have been cited by the learned Counsel for the petitioners to the contrary. They have made a reference to state of Uttar Pradesh and Ors. v. Babu Ram Upadhya : 1961CriLJ773 for the purpose of showing that the Police Regulations were held to be operative and formed the basis of relief in a petition under Article 226 of the Constitution. The decision was however considered and explained by their Lordships of the Supreme Court in U.P. State Warehousing Corporation, Lucknow v. Chandra Kant Tyagi AIR 1970 SC 244. Their Lordships, did not consider it as laying down a contrary proposition because it dealt with a member of the public service to whom protection had been given under the Constitution. Such cases, according to their Lordships, 'stand apart'. R.V. Raman v. Madras State Warehousing Corporation : AIR1971Mad431 was a case relating to the State Warehousing Corporation in which it was held that the Corporation enjoyed quasi governmental functions and its order removing an employee was amenable to writ jurisdiction. The decision appears, however, to have been based on Life Insurance Corporation of India and Ors. v. Sunil Kumar Mukherjee and Ors. : (1964)ILLJ442SC and Mafatlal Narandas Barot v. J.D. Rathod and Anr. AIR 1966 SC 1064, while their Lordships' decision in S.R. Tewari's case : (1964)ILLJ1SC was not noticed at all although, as has been shown, that was the leading case on the subject and had held the field all through. In fact even their Lordships' decision in U.P. States Warehousing Corporation, Lucknow v. Chandra Kant Tyagi AIR 1970 SC 244 was not noticed even though it related to a Warehousing Corporation. So also, the decision in Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC was also not noticed. In these circumstances, with all respect, I am unable to subscribe to the view taken in S.V. Raman v. Madras State Warehousing Corporation : AIR1971Mad431 . The learned Counsel for the respondents have relied on two decisions of their Lordships of the Andhra Pradesh High Court in Kailash Pati v. Governing Council of Sri Ramchandra Arts and Science College, Kothagudam and Ors. (1971) II An WR 362 and Muvvala Narasinha Rao v. Works Manager, Andhra Pradesh State Road Transport Corporation, Vijayawada and Ors. (1972) I An WR 76. The first of these two cases appears to have no bearing on the present controversy, and so far as the second case is concerned it will be sufficient to say that the decision was based mainly on Mafatlal Narandas Barot v. J.D. Rathod, Divisional Controller, State Transport Mehesna and Anr. AIR 1966 SC 1064, but, if I may say so with respect, the learned Judges did not take note of the view which their Lordships of the Supreme Court took of that case in Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC .

19. These cases cannot therefore avail to the petitioners and the only proper course for me is to examine the present cases in the light of the decision in S.R. Tewari's case : (1964)ILLJ1SC which contains the considered view of their Lordships of the Supreme Court.

20. It will be recalled that their Lordships have enunciated and set out the aforesaid three well recognised exceptions to the general law of master and servant. The learned Counsel for the petitioners have frankly conceded that they are not in a position to bring the cases of the petitioners within the purview of Article 311 of the Constitution, or to contend that the impugned orders have been passed in violation of any Industrial law, within the jurisdiction of the Labour and Industrial Tribunals. It therefore remains to consider whether the Corporations have acted in breach of 'a mandatory obligation imposed by statute'.

21. All that the learned Counsel for petitioner Rameshwarlal has been able to argue in this connection is that even though the Corporation passed a resolution, in the exercise of its powers under Section 45(c) of the Road Transport Corporation Act. 1950, that the Rajasthan Civil Services (Classification, Control and Appeal) Rules should apply to its employees until the Corporation framed its own Regulations, the Corporation committed a breach of those Rules, and that amounted to the breach of a statute. Section 45 of the Act, however, deals only with the power of the Corporation to make regulations, and if the Corporation decided to adopt the Rajasthan Civil Services (Classification, Control and Appeal) Rules for the time being, those Rules were really in the nature of regulations in so far as the Corporation was concerned, and there is no justification for the argument that any obligation imposed by them was a mandatory obligation imposed by statute.

22. In so far as the remaining three cases are concerned, it will be sufficient to say that the petitioners have alleged a breach of certain regulations of the Corporation, and not of any statute, and a breach of such regulations will not therefore be open to collection by a petition under Article 226 of the Constitution. I am fortified in this view by the decisions in S.R. Sheshadri and Ors. v. Managing Director Life Insurance Corporation of India and Anr. AIR 1972 Mys 13 and Life Insurance Corporation v. Nilratan Banerjie 1971 1 LLJ (Cal) 1 Reference in this connection may also be made to U P State Warehousing Lucknow v. Chandra Kant Tyagi AIR 1970 SC 244 where their Lordships of the Supreme Court have taken the view that the regulations made under Section 54 of the Agriculture Produce (Development and Warehousing) Corporations Act, 1956, do not impose any statutory obligation even though they lay down the terms and conditions of the relationship between the Corporation and its employees.

23. It follows therefore that it is not possible for any of the petitioners to contend, with any justification, that the Corporations have acted in breach of a mandatory obligation imposed by statute, as none of these four petitions falls under any of the exceptions to the general rule of master and servant enunciated in S.R. Tewari's case : (1964)ILLJ1SC , there is every justification for the objection of the learned Counsel for the respondents that they are not maintainable and should be dismissed.

24. As has been stated, their Lordships of the Supreme Court have, in their three judgments afterwards quoted, namely, Executive Committee of U.P. State Warehousing Corporation, Lucknow v. Chandra Kant Tyagi AIR 1970 SC 244, Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC and Vidhya Ram Misra v. Managing Committee, Sri Jai Narain College and Anr. : (1972)ILLJ442SC , referred with approval to the one or the other of the following English cases (i) Vine v. National Dock Labour Board (1956) 3 All ER 939, (ii) Barber v. Manchester Regional Hospital Board and Anr. (1952) 1 All. ER 382, (iii) Ridge v. Baldwin and Ors. (1963) 2 All ER 66 and (iv) Mallech v. Aberdeen Corporation (1971) 2 All ER 1276, for the purpose of arriving at their decisions. The learned Counsel for the parties have also referred to them during course of their arguments. I have therefore gone through them. Broadly speaking, they may be said to lay down the following rules or principles of general application in such cases -

(1) Normally, and apart from the intervention of statute, there would never be a nullity in terminating an ordinary contract of master and servant. Courts will not therefore declare such a wrongful dismissal to be invalid even though it may give rise to a right of action for breach of contract; Vine v. National Dock Labour Board (1956) 3 All ER 939, per Lord Keith of Avenholm

(2) But it is the function of the courts to keep 'public authorities' within the limits of their statutory powers and therefore if a public authority purports to dismiss its employees otherwise than in accordance with the mandatory procedural requirements, or on grounds other than those sanctioned by statute, the courts have jurisdiction to declare it a nullity; Vine v. National Dock Labour Board (1956) 3 All ER 939.

(3) Where the relationship, despite the 'strong statutory flavour' attaching to the contract, appropriates, in substance, to an ordinary contractual relationship between master and servant, the courts would still he disinclined to award a declaratory relief; Barbar v. Manchester Regional Hospital Board and Anr. (1952) 1 All. ER 382.

(4) The more closely the relationship approximates to one in which a special statute is conferred upon the employee, the more readily will the Courts be pursuaded to grant a declaration in favour of a wrongfully dismissed employee; Vine v. National Dock Labour Board (1956) 3 All ER 939 and Ridge v. Baldwin and Ors. (1963) 2 All ER 66.

(5) Pure master and servant cases mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of status which is capable of protection. If any of these elements exists, then irrespective of the terminology used, and even though in same inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed and failure to observe them may result in the dismissal being declared void; Mallech v. Aberdeen Corporation (1971) 2 All ER 1276-per Lord Wilberforce.

25. In applying these general rules or principles, it is necessary to consider the substance of the relationship between the employer and employee in order to decide whether the latter held a public office, or the employer passed an order in breach of a mandatory requirement of a statute, or the relationship between the two was in the nature of status.

26. The first question therefore is whether the petitioner could be Paid to hold a public office at the time when the impugned orders were passed against them? The question must be answered in the negative for the simple reason that they were not discharging any duty in the discharge of which the public was interested. Moreover, as the funds out of which they were paid belonged to the Corporations as provided in Section 27 of the Road Transport Corporation Act, 1950 and Section 24 of the Life Insurance Corporation Act, 1956, the petitioners were not paid out of any public fund. The petitioners did not hold any public office.

27. The next question whether the Corporations passed the impugned orders in breach of a mandatory procedural requirement of statute, has already been considered and answered in the negative. It may be mentioned that Mr. M.B.L. Bhargava has argued that a regulation is also statute, and he has tried to support his argument by a reference to Willingale v. Norris (1909) 1 KB 57, Wicks v. Director of Public Prosecutions (1847)1 All ER 208 and Rathbone v. Sandeck (1962) 3 All ER 2(SIC)7. It will be sufficient to say that although the regulations were held in these cases to be binding it was not held that they were statutes. There is in fact no room for doubt about the meaning of the expression 'statute' in English law for, as has been stated in Craies on Statute Law, seventh edition, at page 50-

The word 'statute' in English law is now synonymous with 'an Act of Parliament'.

The nature of a statute has been stated as follows in Halsbury's Laws of England, third edition, volume 36, paragraph 530-

A statute, or Act of Parliament, is a pronouncement by the sovereign in Parliament, that is to say, made by the Queen by and with the advice and consent of both Houses of Parliament, or, in certain circumstances, the House of Commons alone, the effect of which is either to declare the law, or to change the law (normally for the future only, but sometimes with retrospective effect, or to do both.

28. The remaining question is whether the relationship of the petitioners with the Corporations was in the nature of status? The characteristics of 'status' have been stated as follows in Roshanlal Tandon v. Union of India and Anr. : (1968)ILLJ576SC

The hall mask of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties.

As no such legal rights and duties are alleged to have been imposed by any public law, the relationship of the petitioners with the Corporations cannot be said to be in the nature of 'status'.

29. It follows, therefore, that it cannot be held in the present cases that the petitioners hold a public office, or that the Corporations concerned passed the impugned orders in breach of any mandatory procedural requirement of a statute, or that the relationship of the petitioners with the Corporations was in the nature of status. The irresistible conclusion therefore is that the relationship was an ordinary master and servant relationship, and so even if there was breach of the contracts, that could only found in damages.

30. The present petitions cannot thus be maintained and are dismissed with costs.


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