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Patit Paban Bose Vs. the Commissioners for the Port of Calcutta - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 52 of 1955
Reported inAIR1957Cal720
ActsConstitution of India - Articles 226, 311 and 311(2); ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 2; ;Calcutta Port Act, 1890 - Section 31(1); ;Civil Service (Classification Control and Appeal) Rules - Rule 55
AppellantPatit Paban Bose
RespondentThe Commissioners for the Port of Calcutta
DispositionAppeal dismissed
Cases ReferredPotnay v. Union of India
- chakravartti, c.j. 1. the appellant, patit paban bose, commencedhis employment under the commissioners for the port of calcutta on the 20th of september, 1921, as a ticket collector in their perry service. by 1950, he had risen to be one of the forwarding clerks at the calcutta jetties of his employers. 2. in 1950, the commissioners came to detect certain cases of theft of goods lying in their jetties. it was found that on the 13th of april, 1950, a wagon had been loaded from the import warehouse (south) of the calcutta jetty without any proper document and that it had been drawn out without any shunting order being issued therefor. on the next day, the wagon had been placed before the compartment of a firm called prayagdas mathuradas at the strand warehouse and the contents of the wagon.....

Chakravartti, C.J.

1. The appellant, Patit Paban Bose, commencedhis employment under the Commissioners for the Port of Calcutta on the 20th of September, 1921, as a Ticket Collector in their Perry service. By 1950, he had risen to be one of the Forwarding Clerks at the Calcutta Jetties of his employers.

2. In 1950, the Commissioners came to detect certain cases of theft of goods lying in their jetties. It was found that on the 13th of April, 1950, a wagon had been loaded from the Import Warehouse (South) of the Calcutta Jetty without any proper document and that it had been drawn out without any shunting order being issued therefor. On the next day, the wagon had been placed before the compartment of a firm called Prayagdas Mathuradas at the Strand Warehouse and the contents of the wagon delivered to a representative of the firm without any invoice at all. Similarly, on the 9th of June, 1950, another wagon had been loaded, drawn out and delivered to the same firm without any authority. The detection of these thefts and the modus operandi adopted in committing them led the Commissioners to suspect that a serious conspiracy was afoot for removing goods from their jetties and that some of their own employees were involved in the conspiracy. Accordingly, they started an investigation.

3. On the dates of the two detected thefts, the appellant was one of the Forwarding Clerks on duty at the Import Warehouse (South) of the Calcutta Jetty. On the 1st of December, 1950, he was asked by the Personal Assistant to the Truffle Manager to answer certain written questions relating to the incidents as also to the checks usually made by him to ensure the loading of wagons and the local delivery of their contents under genuine documents. There is a dispute between the parties as to whether a formal notice was served on the appellant or whether he was simply sent for by the Personal Assistant, but which ever procedure was followed, it is not disputed that he answered the questions on the same day. His answers were found unsatisfactory. On the 14th of December, 1950, a notice was issued to him by theTraffic Manager whereby he was asked to show cause in writing through the Superintendent Jetties and Works by the 20th of December, 1950, why disciplinary action should not be taken against him for gross neglect of duty. In compliance with that notice he submitted an explanation on the 20th of December, 1950. His main defence was that, as a Forwarding Clerk, his duty was only to look after the loading of stocks for which he had himself sent in indents and that he had had no concern with the wagons which had been used in the thefts.

4. Thereafter, on the 19th of February. 1951, the appellant was asked to appear in person before Mr. D. K. Guha, Personal Assistant to the Traffic Manager and Mr. Windle, Deputy Superintendent, Transportation. According to the Commissioners an Enquiry Committee, consisting of the said two persons, had been constituted for the purpose of an investigation into the circumstances in which thefts were being committed at the Jetties and also into the charges brought against certain employees and that it was before that Committee that the appellant was asked to appear. According to the appellant, he was simply asked to see the Personal Assistant to the Traffic Manager and on going to his office, he found Mr. Windle also seated there. Be that as it may, it is the common case of the parties that the appellant was asked certain questions which he answered and his answers were taken down by a typist whose transcript he signed. According to the Commissioners, the Committee made a report on the 26th of February, 1951, and their finding was that the appellant also was a member of the conspiracy. Thereafter, the appellant was informed by a letter, dated the 14th of March, 1951, that he was being placed under suspension with effect from the next day and he was next informed by a letter, dated the 20th of March, 1951, that he had been dismissed from service with effect from the 19th of March. 1951.

5. About the same time, the matter of thefts from the jetties was placed in the hands of the police. The appellant was arrested on the 2nd of April, 1951, but released on bail on the same day, pending further investigation. On the 20th of September, 1951, the police submitted a charge sheet against some employees of the Commissioners, but recommended the discharge of the appellant and two other employees on the ground that there was no evidence to warrant the framing of any charge against them. Accordingly, the appellant and the two other employees were discharged on the same day.

6. Thereafter, on the 3rd of November. 1951, the appellant sent a petition to the Chairman of the Commissioners and thereby prayed for his reinstatement. It was stated in the petition that on the 15th of May, 1951, there had been a discussion between the Traffic Manager and some representatives of the Calcutta Port Trust Employees Association when the Traffic Manager had stated that the appellant and another employee had been dismissed after a full departmental enquiry, but he had also given an assurance that their cases would be reconsidered if they were honourably acquitted by a Court of law. According to the appellant, he received no reply to the petition, whereas according to the Commissioners, he was informed even in November 1951 that his case could not be reopened and reconsidered.

7. The present appeal has arisen out of an application under Article 226 of the Constitution which the appellant made to this Court on the 17th of March, 1954. The prayers in the petition were singularly ill-framed, but a Rule nisi was issued on the Commissioners, requiring them to show cause why they should not be directed by an order in the nature of a writ of mandamus to for-bear from giving effect to the order of the appellant's dismissal or why an order in the nature of a writ of certiorari should not be made, directing the Commissioners to certify and produce before this Court the records relating to the order of dismissal in order that the order might be quashed. At the final hearing of the Rule on the 26th of August, 1954, it was discharged. Thereafter, the appellant preferred the present appeal.

8. It was contended before us on behalf of the respondent-Commissioners that apart from its lack of merits, the appellant's application was liable to be thrown out at sight on account of the inordinate delay in making it. I am inclined to accept that contention. The appellant was dismissed on the 19th of March, 1951 and informed of the dismissal on the next day and yet he did not move this Court till the 17th of March, 1954. It is true that, after his dismissal, certain criminal proceedings were taken against him and after those proceedings had resulted in his discharge on the 20th of September, 195l, he made a representation for his reinstatement to which, he says, he never received any reply. Assuming that also to be true, it by no means explains the further delay of over two years. The representation was made on the 3rd of November, 1951. Even if the appellant received no reply to it, as alleged by him, he had no good cause for not coming up to this Court after a reasonable period of time from the submission of his representation had elapsed and no justification for waiting indefinitely, irrespective of what changes in the circumstances might occur in the meantime. By way of an explanation of the delay, it was stated before us that the appellant had placed his case in the hands of his Association and till the Association was informed by a letter of the Secretary of the respondent-Commissioners, dated the 24th of December, 1953, that his case could not be reopened, he was expecting to obtain redress at the hands of the Commissioners themselves. That explanation does not accord with what the appellant himself stated in his petition. What he states in paragraph 24 of the petition, affirmed on the 2nd of March, 1954, 19 not that he had approached the Association for opening or carrying on negotiations with the Commissioners for his reinstatement and was waiting for the result, but that he 'has been informed that the Calcutta Port Trust Employees Association had taken up the matter' of his dismissal with the Traffic Manager. He states further that he came to know of the letter of the 24th of December. 1953 from a copy of it supplied to him by the Association. I cannot, therefore, sep that in such circumstances the Intercession of the Association on his behalf provided any excuse for his not coming up to this court earlier. In the affidavit-in-reply, he does go further and say that between November. 1951 and December, 1953, he was persistently trying to bring about a reconsideration of his case through the Association, but nothing is referred to in proof of such attempts made by him. The allegation appears to be an afterthought. But even assuming that the appellant had approached the Association and the Association was occupied with carrying on negotiations on his behalf between 1951 and 1953 I amof opinion that a party, desiring to invoke the assistance or this Court by way of a writ, cannot be allowed to carry oh private negotiations for the reversal of the order complained of for years and years and then when such negotiations fall, come up to this Court at long last with an application under Article 226. We are informed that the appellant was born on the 1st of February, 1902, so that by the time, he came up to this Court, he was very near reaching the age of superannuation. The appellant's application, in my view, was liable to be thrown out on the ground of delay alone, but as the point does not appear to have been actually canvassed before the learned Judge, although raised in paragraph 33 of the affidavit-in-opposition. I shall proceed to a consideration of the merits of the case.

9. The main contention of the appellant is that as regards the conditions of service of persons employed under them, the Commissioners for the port of Calcutta duly adopted the Fundamental Rules as long ago as in 1921, but in his case he was denied the benefit of those Rules, inasmuch as no charges had been framed against him, nor any hearing given on such charges, nor any opportunity given to him, after any charges had been found proved, to show cause against the penalty proposed to be imposed in respect of them. The case of the respondent-Commissioners is that although they did in fact purport to adopt the Fundamental Rules in 1921, as alleged, they had at that time no power in law to frame any rules regarding the taking of disciplinary action against their employees and, therefore, the purported adoption of the Fundamental Rules, so far as they related to disciplinary action, was of no effect. The further case of the Commissioners is that, in any event, they also introduced certain further conditions of service one of which is that in the case of misconduct, the services of any of the officers or servants can be terminated without notice, and that the appellant agreed in writing to abide by those conditions. The Commissioners also contend that even assuming that the Fundamental Rules were applicable to the case of the appellant, there was only a technical non-compliance with those Rules The substance of the Rules was followed and the appellant was given sufficient opportunity for placing his case before the authorities mifl was fully heard. The learned trial Judge gave effect to the first contention of the Commissioners and therefore, found it unnecessary to consider the ether two.

10. The Fundamental Rules are said to have been adopted by the Commissioners by a resolution passed at their 1831st Meeting, held on the 12th of December, 1921 A report of the meeting is to be found at page 1131 of Volume 55 of the Proceedings of Meetings of the Port Commissioners. If we had to go by the resolution alone, we would not have found it easy to hold either that the Commissioners had purported to adopt all the Fundamental Rules or that, if even they did so. Government had confirmed the Rules, so adopted, in toto as required by Section 31(3) of the Calcutta Port Act (III of 18901. The proposal to adopt the Fundamental Rules appears to have originated in a note by the Chief Accountant, dated the 26th of November, 1921, in which he suggested that the sanction of the Commissioners should be obtained for the adoption of the Fundamental Rules with effect from the 1st of January, 1922, when they would come into effect.

'in supersession of existing rules and orders regulating the grant of leave, pay, and leave allowances.'

He was thus thinking of only those of three matters. The Chief Accountant's note was followed by a note of the Chairman, dated the 29th of November, 1921, in which he also mentioned only the powers which the Commissioners had under Section 31 to frame rules

'For regulating the conditions of service of their employees in respect of leave and other matters.'

Since he was dealing with the note of the Chief Accountant, it is reasonable to presume that the 'other matters'' he was thinking of were the other matters mentioned by the Chief Accountant, namely, pay and leave allowances. There was next a report by the Finance and Establishment Committee, dated the 6th of December, 1921, 'with reference to the Chairman's note, dated 29th November' and the recommendation was that the rules framed by Government might be adopted, subject to two exceptions, both relating to leave, which the Chairman and the Chief Accountant had proposed. The resolution of the Commissioners was to adopt the report, subject to the sanction or Government. In that state of the facts it seems to me to be at least doubtful whether the Commissioners were adopting any of the Fundamental Rules other than the rules relating to leave, pay and leave allowances. It is true that both the Chairman and the Chief Accountant used the expression 'en bloc' and' the Committee used the expression 'in general', but those expressions might well have been used to comprehend all the rules relating to the three particular subjects Lastly even assuming that the whole body of the rules were adopted by the Commissioners, there is nothing to show that the adoption of all of them was sanctioned by Government.

11. We are, however, relieved of the task of coming to a decision of our own on this subject, because on behalf of the Commissioners, it was admitted before us that the resolution was intended to cover all the Fundamental Rules and that, in actual practice, the Commissioners had been applying those rules since their adoption, subject only to the further conditions of service introduced by themselves. Government must, therefore, have approved of the adoption of the whole body of the rules.

12. In view of the admission made on their behalf, the plea, of a public body like the Port Commissioners that though they had adopted the Fundamental Rules with the sanction of Government as long ago as in 1921 and though, at the time the appellant's case arose, they had been applying those rules uniformly for about sixtyone years, they were yet entitled to disregard the rules in the appellant's case, because they had adopted them without any power in law to do so, would not appear to be a very proper or becoming plea. But the law allows a party to take any defence which is open to him and excent where there is a question of estoppel, the ethics of a party's conduct are not relevant. The plea taken on behalf of the Commissioners had, therefore, to be examined.

13. It is not the contention of the appellant that employees of the Commissioners for the Port of Calcutta are members of a Civil Service of Government and that, consequently, they are entitled to the benefit of Article 311(2) of the Constitution or that the Fundamental Rules apply to them of their own force. The only contention is that the Fundamental Rules apply, because they were adopted by the Commissioners. It may be conceded at once that even if the Commissionersadopted the Fundamental Rules, which is admitted, disregard of the rules, so adopted, cannot be amenable to correction by means of a writ, unless it can be shown that they have become statutory rules. In order that any rules framed or adopted by the Commissioners may acquire the force of statutory rules or indeed may become valid rules, it is necessary that the framing or adoption of them should be required or warranted by the relevant law. That is because the Commissioners are a body corporate, created by a statute, and unless the statute creating them has vested them with authority to exercise a certain power, they are not competent in law to exercise it. The rule-making power of the Commissioners is contained in Section 31 of the Calcutta Port Act (in of 1890) by which they were created as a body corporate. It must, therefore, be conceded that unless the power to frame rules for regulating the conditions of service of the employees, particularly in regard to disciplinary action that may be taken against them, can be found in Section 31 of the Act, the Commissioners cannot be said to have had power to frame such rules or adopt, as their own, rules framed by some other authority. If they still framed any rules, such rules would not be binding on anyone, including themselves.

14. Section 31 was amended in 1951 by the Port Trusts and Ports (Amendment) Act by which all the three Acts, relating to the Ports of Calcutta, Bombay and Madras, were extensively amended: One of the amendments of Section 31 was the addition of a new clause, termed (i)', by which power to frame rules 'for regulating the recruit-ment, promotion, conduct, discipline, punishment and any other matter relating to the terms and conditions of service applicable to the employees of the Commissioners' was expressly conferred on the Commissioners. Prior to the amendment, there was no express provision in the section for the framing of rules relating to disciplinary action against the employees. But the appellant's contention is that such provision was implied in clause (d) which, in 1921, read as 'for regulating the period of service of all such officers and servants' and, since the amendment of 1951, reads as 'for regulating the period, of service of such employees'. The learned trial Judge has repelled that contention and in doing so has referred to an earlier judgment of himself in Nagendra Kumar Rov v. The Commissioners for the Port of Calcutta, : AIR1955Cal56 (A). In that judgment, he did not specifically deal with clause (d) of the section, but he has done so on the present occasion and has held that the clause cannot be read as covering disciplinary action against employees.

15. I cannot say that on a plain reading of the words of Clause (d). the view taken by the learned Judge could not at fill be taken, but view-ins Section 31 as a whole and reading it along with Sections 30 and 39. I am inclined to hold that the contention of the appellant is correct. It is quite true that 'reflating the period of service' is not a particularly apt expression for conveying the meaning of regulating the terms and conditions of service. The words at first sight do seem toconnote only regulation of the duration of an em-ployees's service, comprising such matters as laying down the age of superannuation or prescribing the period of contracts in, the case of contractual employment. But the context appears to confer a wider meaning on the words. What was the position? The Legislature was constituting an important Public body with perpetual succession which, it knew, would be an employer in a large way and would have to maintain a large staff. By Section 30 it was empowering that body to prepare from time to time a schedule of the establishment it wished to maintain and to sanction the salaries, fees and allowances payable to each member of the staff -- I am leaving aside the exception made in respect of artisans, porters and labourers who are not to be treated as included in Section 30 or Section 31. By Section 31, the Legislature was empowering the Commissioners to frame rules regarding the grant of leave, payment of leave allowances, payment of remuneration to acting personnel grant of pension, gratuities and compassionate allowances, either on retirement or in the case of injury or death in the execution of duty and, lastly, contribution to Provident Funds by the employees and themselves. It is not easy to believe that while the Legislature was carefully providing for those several matters, covering practically every incidence or exigency of employment, it yet did not intend to provide for the vital matter of the control of the employees as to due and loyal performance of their duties by disciplinary action, without which it was hardly possible to. run, a large establishment. If the Commissioners were given no power to frame any rules for regulating the conduct of the employees by disciplinary action, it was leaving the conduct of the employees wholly without control and creating conditions which could only lead to chaos. In : AIR1955Cal56 (A), Sinha, J., held that although the Commissioners had no power under Section 31 to frame rules for the dismissal of their employees by way of disciplinary action, he was not prepared to hold that they had no power of dismissal at all. The learned Judge added that though it was not easy to trace the source of that power, it perhaps lay in Section 30, read with Sections 32 and 34, as also in the implied power of the Commissioners to do all such acts as were necessary for carrying out the purposes of their incorporation. If the Commissioners had the power of dismissal by way of punishment, but no power to frame rules in that regard, they were obviously left with an arbitrary power which they themselves could not control by rules. On the other hand, if any case of misconduct occurred, the Commissioners could deal with it only by dismissing the delinquent officer, whatever the nature or gravity of his delinquency might be. Neither position would be satisfactory. I should be slow to read a statute in a sense which leads to such a result, but if the language in which it is expressed leaves no alternative but to adopt such a construction, the incongruity of the consequence could be no valid reason for refraining from adopting it. I think, however, that there is sufficient indication in the Act before us that Section 31 was intended to cover the power of framing rules for the taking of disciplinary action against employees. The indication is to be found in Section 32. That section as it stood before the amendment of 1951 read as follows :

'Subject to the provisions of the said rules, and of the schedule, for the time being in force, framed by the Commissioners under Section 30, the power of appointing, promoting suspending, dismissing, fining, reducing or granting leave to the officers and servants of the Commissioners shall be exercised by the Chairman or the Deputy Chairman in the case of officers and servants whose monthly salary does not exceed two hundred rupees; and in every other case by the Commissioners in meeting.'

If the power of Suspending, dismissing, finding and reducing was to be exercised 'subject to theprovisions of the said rules', that is to say, subject to the rules framed under Section 31, it seems clear that, in the view of the Legislature the rules framed under Section 31 could cover all such matters or, in other words, there was authority in Section 31 to frame rules in regard to them. It was contended that what the prefatory clause 'subject to the provisions of the said rules', meant . was that the exercise of the powers, in regard to the sevpral matters mentioned in Section 32, would be subject to rules framed under Section 31 only where, in regard to any of the matters, rules could be framed under that section and had in fact been framed, if, in regard to any or the matters, there was no power in Section 31 to frame rules, there would be no rules, subject to which the powers given in Section 32 would have to he exercised. I can see no reason to adopt that restricted construction of the prefatory clause in Section 32. Of the several matters mentioned in Section 32, only the granting of leave is expressly provided for in clause (a) of Section 31 (1). Not a single one of the other matters is expressly mentioned anywhere in that section. If the view of the Legislature was that of the several matters mentioned in Section 32, rules could be framed under Section 31 only with regard to the granting of leave, it is hardly reasonable to think that in order to make the power of the Chairman, the Deputy Chairman and the Commissioners subject to the rules framed under Section 31 in that single case, the Legislature would use the restrictive expression 'subject to the provisions of the said rules' at the beginning of the section, while providing in the body of it for the exercise of powers in regard to that and six other matters. To my mind, the opening clause of Section 32 is a clear pointer to the true scope and nature of Section 31. It is implicit in that clause that rules framed under Section 31 (1) can relate to each one of the various matters specifically mentioned in the section, namely, appointment, promotion suspension, dismissal, imposition of a fine, reduction and granting of leave. Except grant of leave, which is expressly provided for in clause (a) of Section 31 (1), pro-vision for the rest can only he read as implied in clause (d). I have already commented on the infelicity of the clause as a vehicle of expressing the idea of regulating the conditions of service, particularly as respects control by disciplinary action, but, at the same time. I do not consider it altogether incanable of bearing that meaning. In my view, having regard to the considerations to which I have adverted, 'regulating the period of service' must be read as meaning 'control-line by regulations the service of employees dur-ing the period of their incumbency.' If that be the true meaning of Clause (d), the Commissoners had power even under the old section to frame rules regarding the taking of disciolinary action against their employees and if. instead of framing their own rules they adopted the Fundamental Rules framed by Government, the rules so adopted were valid and statutory rules

16. The only argument I ean think of against such construction of clause (d) is that, in 1951, the Legislature amended Section 31 (1) by inserting Clause (i) and it must have done so in the view that the matters provided for in the new clause were not covered by the section, as it stood prior to the amendment. Clause (d) was not repealed and yet clause (i) was added. It may, therefore, he said that if clause (d) already covered the matters mentioned in the new clause (i), then by Inserting another clause dealing with the samematters, the Legislature was making itself guiltyof unnecessary tautology. I do not, however, con-sider this argument sufficient to outweigh the considerations I have mentioned. What the Legis-lature of a later day thinks of a provision of an earlier statute is not always decisive of its true meaning. Besides, I find no difficulty In holding that by enacting clause (i), the Legislature only clarified the true scope of Section 31 (1). It made explicit what was implicit in clause (d) and committed the implied connotation of a clause to be a separate provision, leaving the old clause to bear thenceforward only the plain meaning of the words. Such clarification was necessary, because the right to exercise the several powers mentioned in Section 32 being indubitably there and the power to make rules regarding them being a necessary concomitant of such right and such power having been recognised in the prefatory clause of that section, the power had to be read In clause (d) of Section 31 (i) which was, as a matter of language, not very clear Or explicit. It was thus necessary to draw out the latent meaning of clause (d) and set it out in clear terms and that was what was done by means of inserting the new clause (1).

17. I have forgotten to mention one argument advanced by Mr. Mukherjee who appeared on behalf of the appellant. He referred to the Oxford Dictionary and pointed out that among the various meanings of the word 'period', 'termination' was included. The argument was that if the word 'period' could be taken to mean 'termination' in an appropriate context, the phrase regulating the period of service' might well be construed without any violence to the natural import of the language as meaning 'regulating the termination of service'. I do not think that the word 'period', as used in clause (d), can properly be construed as meaning termination. The word. does mean 'termination' when it is intended to signify 'closure', but that also in contests which are not usual. The illustrations given in the Oxford Dictionary of the use of the word 'period' as meaning termination are mostly drawn from old writings, but two have been extracted from comparatively modern writers who are noted for their sensitiveness to the flavour of language and the care taken by them to use words in correct and precise senses. The last but one illustration is from Dr. Johnson's 'Rambler' and the sentence quoted is 'A man accustomed to trace things from their origin to their period.' The last illustration is from Stevenson's 'New Arabian Nights' and the sentence quoted is 'I mean to put a period to this prodigality.' In the second case, the meaning obviously is that the speaker would set a limit to the time during which the prodigality he was referring to could last. In the first case, the expression has been used, if I may correctly say so, in a passive sense, meaning 'end'. Neither illustration, it seems to me would Justify us in taking the word 'period', as used in Section 31 (1) (d), to mean the termination of the tenure of the officers and servants of the Commissioners in the sense of causing such termination. To my mind, the true meaning of the clause is to be found not in the word 'period' taken separately, but in the phrase 'period of service' which, as I have endeavoured to explain, means service during the period of the incumbency of the officers and servants concerned.

18. In the view of Section 31 (1) which I am taking, the Commissioners had power to frame rules for the taking of disciplinary action against em-plbvees and since they adopted the relevant Fundamental Rules, those rules came to be statutorywiles, observance of which could be enforced by a writ. The appellant has pointed out that at the time of his dismissal, he was an officer or servant, drawing a salary of Rs. 132/- per month -- (according to the Commissioners, Rs. 140/-) -- and since he was not either an artisan or a porter or a labourer, he was entitled to the benefit of the rules. On that point I am unable to hold in his favour, although I have held that the Commissioners had power to frame rules for the taking of disciplinary action.

19. I have already stated that, besides adopting the Fundamental Rules, the Commissioners introduced certain further conditions of service which their employees or such of them as were required to accept them, had to accept in writing. The appellant signed the Service Register on the 2nd of January, 1923 when he stated that he had read the further conditions of service of which a copy had been handed over to him and that he was subscribing to them. In his affidavit-in-reply, the appellant, said that he did not admit that the alleged conditions of service were in force at the time he signed the Service Register and that, in any event, the conditions were subject to the Fundamental Rules. If the conditions of service were conditions which could be validly imposed and they were introduced after the Fundamental Rules had been adopted, there is no meaning in saying that they were subject to the Fundamental Rules, Unfortunately, the conditions of service have not been printed in the paper-book of this appeal, but a copy of them was produced before the learned trial Judge and the most important provision has been set out in the affidavit-in-opposition. In the paper-book of Appeal No. 10 of 1955, arising out of a case which was heard by the learned trial Judge at the same time as the present case, the conditions of service have been set out in full. At the production of the conditions, it was not objected that those were not the conditions which the Appellant had accepted or that the conditions accepted by him did not include the condition on which the Commissioners were relying. The most important of the conditions which, as I have said, was set out in the affidavit-in.opposi-tion and was also quoted by the learned trial Judge in his earlier judgment in : AIR1955Cal56 (A), read as follows :

'The services of any officer or servant may be terminated with a month's notice or a month's pay in lieu of notice in any case and without notice in the case of misconduct.'

We are concerned only with the last part of this condition. It is true that the condition does not in terms say that where an employee's services are terminated without notice in the case of misconduct, no opportunity for a hearing need be given to him before such termination, but the meaning appears to be that an employee, found guilty of misconduct by the employers, shall be liable to summary dismissal. If that condition was binding on the appellant, he cannot obviously contend that, in dismissing him, the procedure laid down in Rule 55 of the Civil Service (Classification, Control and Appeal) Rules ought to have been followed and that in the absence of compliance with that Rule, his dismissal was bad in law. It is true that the further conditions have not been shown in this case to have been adopted by the Commissioners at a meeting, nor has it been shown that they ever received the approval of Government. In his judgment in : AIR1955Cal56 (A), the learned trial Judge, however, pointed out that certain revised conditions were passed by the Commissioners at ameeting held on the 24th of August, 1945 and so far as the condition I have just referred to is concerned, it was substantially the same, both in the old and the revised conditions. The adoption at a meeting is not in evidence in this case and, in any event, since the approval of Government has not been proved, the conditions cannot be said to have acquired the force of rules. I am, however, inclined to think that if the Commissioners had power to appoint persons under them, which they undoubtedly had, they would necessarily have to appoint them on some terms or other and, therefore, they had power to include among the terms of appointment the further conditions of service which, upon being accepted by the appointees, would become binding on them. Where the employer is the Union or a State and the employee is a Civil Servant to whom Article 311(2) of the Constitution applies, no conditions of service, inconsistent with the Constitution, can be validly imposed on the employee as terms of his contract of service. The Government and a citizen, desiring employment under them, cannot agree between themselves that the Constitution shall not apply to the contract of employment. But the Commissioners were not the State, nor was the appellant a Civil Servant in the employ of Government and, therefore, there was no room for the application of Article 311(2) at all. The question whether a Civil Servant to Whom Article 311(2) applies can waive the benefit of the Article does not, therefore, arise in the present case: Nor does the restriction under which the State as an employer would be, in regard to the provisions of 'Article 311(2), apply in the case of an employer like the Port Commissioners. It may, however, be said that if the Commissioners had power under Section 31 (1) (d) to frame rules for regulating the conditions of the service of their employees and had, in fact, framed such rules, they could not vary or alter such rules, except by other rules, similarly framed in exercise of the same power. That may be true, but if Article 311(2) does not apply, it seems to me that although the Commissioners might have adopted the Fundamental Rules, there was no bar to their attaching some conditions of service of a different character to contracts with individual employees and thereby modifying the Fundamental Rules to that extent in their application to such employees. Mr. Roy, who appeared on behalf of the Commissioners, referred us to Section 48 of the Calcutta Port Act and contended that the Commissioners had power under that section to enter into contracts with persons whom they took into their service. I do not think that the contracts contemplated by Section 48 include service contracts, but since the Commissioners had undoubtedly the power of employing persons under them, they necessarily had the power of entering into contracts of service and if they had the power to enter into such contracts, they had necessarily the power to lay down the conditions which should govern such contracts. The further conditions of service, not being conditions having the force of statutory rules, could not apply to all employees generally and of their own force; but the Commissioners could include them in the contract of service with individual employees and they not being the State end the employees under them not being members of a civil service of the Government, they could include even such of the conditions as mere repugnant to Article 311(2) of the Constitution or to the Fundamental Rules to the same effect adopted by them; and if, an employee entered into a contract of service which included such conditions among its terms, he couldnot be heard to say that the conditions did not bind him. I am accordingly of opinion that the further conditions of service which the appellant accepted in writing had the effect of excluding the operation of the Fundamental Rules inconsistent with them and that the appellant is not entitled to insist that a charge sheet should have been framed against him and he should have been given the opportunities provided for in Rule 55 of the Civil Service (Classification, Control and Appeal) Rules, before he could be dismissed.

20. In view of the conclusions which I have reached, it is not necessary to consider the further contention of the Commissioners that even assuming that the Fundamental Rules applied, the substance of them had been followed and that since the appellant had been given opportunities for defending himself, natural justice had not been denied to him. From the way in which his interrogation on two different occasions is presented in the petition, It might seem that the enquiry was of a very summary character, but it is pertinent to point out that in the explanation Submitted by him on the 20th of December, 1950, the appellant himself stated that at the earlier interview on the 1st of December, 1950, he had explained 'the matter threadbare.' It is not, however, necessary for me to pursue this point further.

21. Mr. Roy, who appeared on behalf of the Commissioners, cited the decision of the Supreme Court in Gopal Krishna, Potnay v. Union of India, : AIR1954SC632 (B). At first sight, it does seem to have taken an extreme view against employees in the same condition as the appellant before us, but a closer examination of the judgment shows that it has no application to the present case. The proceeding in which the decision of the Supreme Court was given was a suit and the case was one to which Section 240 of the Government of India Act, 1935, applied. That distinction, however, would make no difference, because, in all essential respects, Article 311 is a virtual reproduction of Section 240 of the Government of India Act, 1935. The plaintiff was a railway servant and the railway which he served appears to have been a Government railway. Section 240(3) would, therefore, apply to him. But all that the Supreme Court decided was that the plaintiff had executed a service agreement under which he could be removed from service on a month's notice and since it was in terms of that agreement and with such notice that his service had been terminated, no question of the violation of Section 240(3) arose, it appears that, at an earlier stage, the plaintiff had been placed under suspension, but subsequently he had been reinstated, but the notice served upon him made no reference to misconduct and Indeed, as the Supreme Court pointed out, the plaintiff had received gratuity which he could not have received under the Rules except with the sanction of the controlling officer, if he had been dismissed or removed from service by reason of any misconduct. No such sanction had apparently been proved. The case, therefore, was a case of the termination of the service of an employee in terms of a special agreement executed by and between the railway and the employee and since it was not a case of removal or dismissal for misconduct, there could be no question of framing any charge sheet or giving any opportunity to the plaintiff for defending himself against any charge or for showing cause against any proposed penalty. All that the Supreme Court had to consider was whether or not a service agreement had been executed by the plaintiff and whether or notthat agreement was in the terms alleged. They answered both these questions against the plaintiff and having done so, observed as follows:

'In this view of the matter, the plaintiff cannot be heard to complain that no charge sheet had been formulated against him and proceedings had not been taken thereunder.'

Tile obvious meaning of that passage is that since the plaintiff had not been removed or dismissed from service by way of disciplinary action taken against him for misconduct and since his services had only been terminated in terms of an agreement executed by himself, there could be no question of framing any charge sheet or giving any opportunity to him for his defence and consequently no question of the violation of any Constitutional guarantee. That decision can, in my view, have no application to the present case where the special condition, relied upon, itself presupposes misconduct and it was for misconduct that the service of the appellant was admittedly terminated without notice.

22. I have, however, already given my rea-sons for holding that the plaintiff was not entitled to any relief on his application and that the learned trial Judge was right in holding that he was not so entitled, although we do not agree with all the reasons given in the judgment appealed from. The appeal must, therefore, fail.

23. I cannot part with this case without commenting on the lack of care which is writ large on every page of the paper-book prepared on behalf of the appellant. . I have been noticing for some time with deep concern the gradual deterioration in the quality of the paper-books prepared on the Original Side of this Court. Not only have we ourselves found it extremely difficult to follow a, case from the paper-book, but Counsel at the Bar have often complained that they felt seriously handicapped in preparing their cases by reason of the mistakes with which the paper-book teemed. In the present case, a great deal of our time was wasted by reason of the very serious mistakes occurring in the dates of the various acts and events, as printed in the paper-book. I think that it is no longer possible to overlook the growing carelessness in preparing paper-books for the purposes of appeals to this Court from the Original Side and that measures ought to be taken to check the evil, if it can be checked at all.

24. In the result, the appeal fails and is dismissed. There will be no order as to costs against the appellant, but we direct that, as between attorney and client, no costs of the paper book shall be allowed to the appellant's attorney in the taxation.

Das Gupta, J.

25. I agree.

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