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Chittaranjan Roy Vs. Damodar Valley Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1973)ILLJ563Cal
AppellantChittaranjan Roy
RespondentDamodar Valley Corporation and ors.
Cases ReferredParyanibai v. Bajirao
Excerpt:
- .....at the time the petitioner joined his service his date of birth was recorded on the basis of a birth certificate issued by the rajpur municipality as november 4, 1915. this date of birth was also accepted and recorded in the gradation lists subsequently published by the corporation from time to time.2. it appears that the petitioner on the requisition of the corporation forwarded to it his matriculation certificate which showed that his date of birth as november 1,1914. the petitioner by his representations stated that the age as recorded in the matriculation certificate was incorrect and his real age was as recorded in his birth certificate issued by the municipality. under the provisions of the damodar valley corporation service regulations, the petitioner was to retire on.....
Judgment:

Salil Kumar Datta, J.

1. The petitioner is a member of Class I staff of the Damodar Valley Corporation, at the material time being an Executive Engineer in the office of the General Superintendent, Transmission, Maithon. The petitioner was originally appointed as a direct 'recruit' on May 10, 1954, and thereafter, he was appointed in the permanent post of assistant engineer, electrical, with effect from March 1, 1960. This will also appear from paragraph 6 of the affidavit-in-opposition as also the annexure 'G' (letter of the corporation dated the 16th August, 1966). At the time the petitioner joined his service his date of birth was recorded on the basis of a birth certificate issued by the Rajpur Municipality as November 4, 1915. This date of birth was also accepted and recorded in the gradation lists subsequently published by the corporation from time to time.

2. It appears that the petitioner on the requisition of the corporation forwarded to it his matriculation certificate which showed that his date of birth as November 1,1914. The petitioner by his representations stated that the age as recorded in the matriculation certificate was incorrect and his real age was as recorded in his birth certificate issued by the municipality. Under the provisions of the Damodar Valley Corporation Service Regulations, the petitioner was to retire on attaining the age of 58 years. The corporation by its letter dated March 9, 1972 (annexure L) informed the petitioner's lawyer that the age recorded in the matriculation certificate was to prevail and that the decision arrived at, on the basis of its circular providing for acceptance only of the matriculation certificate if available as the conclusive evidence of age, was final and that no alteration at this stage was permissible or practicable. Accordingly the petitioner was to retire on October 31, 1972.

3. The petitioner contended that the circular regarding verification of age (annexure 'I' to the petition) issued by the Director of Personnel on June 15, 1965 did not apply to him. There was another circular (annexure J.) dated September 29, 1965 in which the procedure to be adopted for verification of age was laid down. It provided, inter alia, that where an employee had passed the matriculation examination, the age recorded in the certificate of that examination should only be accepted. It was further provided therein that the said procedure should be observed in the cases of employees whose age had not been verified. By this circular the earlier circular referred to above was superseded. The petitioner contended that this circu lar is not legal and valid and it did not apply to him. Further, it was contended that in calculating the age on the basis of date of birth as recorded in the matriculation certificate, the respondents violated the principles of natural justice inasmuch as they did not afford the petitioner an opportunity to explain the discrepancy in age in the two certificates as the age recorded in the matriculation certificate was obviously incorrect. It was contended that the above circular was ultra vires the Service Regulations of the corporation, and, accordingly, it did not affect tenure of office of the petitioner under the corporation and the petitioner was entitled to be in service of the corporation till he attained fifty-eight years of age as provided in the service regulations on the basis of the municipal birth certificate.

4. On the above allegations the petitioner moved this Court in Constitutional Writ Jurisdiction and prayed for a writ in the nature of mandamus calling upon the respondents to annul or rescind or forbear from giving effect to the annexures 'L' and 'L-I' to the petition which showed that the corporation was purporting to act on the basis of age as recorded in the matriculation certificate, and further that the petitioner was to retire from the service of the corporation on the afternoon of October 31, 1972, the date on which, it is said, the petitioner would attain the age of superannuation. On the above application this rule was issued on April 21, 1972.

5. The corporation has entered appearance through Mr. Dhruba Kumar Mukherjee and has opposed this rule, by filing affidavit-in-opposition in which it has been stated inter alia that the decision of retiring the petitioner on October 31,1972 was legal and valid. It was stated that the publication of the date of birth in the corporation gradation list which is not a statutory document, did not give any right to the petitioner in respect thereof nor was it in any way a conclusive proof about the date of birth of the petitioner. It was further stated that a resolution was adopted by the corporation being resolution No. 1494 passed at its 308th meeting (annexure X to the said affidavit), in which it was, inter alia, decided that where an employee has passed matriculation or its equivalent examination, the age recorded in the certificate of such examination should only be accepted and, it appears, the impugned circular was on the basis of this resolution. In deciding the retirement of the petitioner on that basis the corporation was acting within its powers by the statute of its incorporation. The propriety or the legality of the above resolution could not also be challenged, as the adoption of such resolution is implicit within the functions and powers of the corporation. It was further stated that the petition for issuance of a writ is not maintainable as the staff regulations are not statutory and no writ for violation of any of such regulations could be issued by this Court. It is also contended that there is no violation of the principles of natural justice, as the statute did not provide for giving a hearing before adopting the impugned resolution.

6. Mr. Mukherjee raised a preliminary objection, relying on the decisions of the Supreme Court contending that no writ lies for infringement, if any, of the service regulations as such regulations are not statutory. Reliance was placed on the decision in Executive Committee of U. P. State Warehousing Corporation Ltd. v. C.K. Tyagi : (1970)ILLJ32SC . The corporation in this case had powers to frame service regulations under the statute. The respondent was dismissed without following procedure of Regulation 16(3). Even so, it was held, that he was not entitled to a declaration that termination was invalid or void, as it was not a breach of a statutory obligation subject to which the power could be exercised, though it was wrongful on account of breach of the regulations. Reliance was also placed on the decision of Indian Airlines Corporation v. Sukhdeo Rai : (1971)ILLJ496SC , in which it was held that the service regulations made under statutory provisions embody merely the terms and conditions of service but do not constitute statutory restrictions as to kind of contracts it can make with its servants or grounds on which it can terminate them. So that the dismissal was within jurisdiction and not in violation of a mandatory provision of statute, though wrongful on account of breach of service regulations and it did subsist. The respondent was accordingly entitled to damages but not. to the declaration that his dismissal was null and void. This judgment reversed the decision of this Court in Indian Airlines Corporation v. Sukhdeo Rai 72 C.W N. 205, which upheld the declaration granted by the trial Court that the dismissal was illegal and void. On the above proposition of law it was contended that there was no question of violation of mandatory provision of a statute and even a breach of the service regulation, if any, would not entitle the petitioner to any relief by issuance of writs in this jurisdiction.

7. Damodar Valley Corporation is a statutory corporation established by the Damodar Valley Corporation Act 1948, (Act XIV of 1948). Apart from the powers and functions of the corporation provided in the Act, Section 60 provides as follows:

S. 60. Power to mike regulations-(1) The Corporation may, with the previous sanction of the Central Government, by notification in the Gazette of India, make regulations for carrying out its functions under this Act.

(2) In particular and without prejudice to the generality of the foregoing power, in such regulation the corporation may make provision for-

(a) making of appointments and promotions of its officers and servants ;

(b) specifying other conditions of service of its officers and servants ;

* * *(g) prescribing punishment for breach of any regulation.

(3) All regulations made under Sub-sections (1) and (2) shall, as soon as possible, be published also in the official Gazettes of the Provincial Governments.

8. In pursuance of the said authority the corporation framed the Damodar Valley Corporation Service Regulations, the relevant provisions whereof are quoted below:

In exercise of the powers conferred by Section 60 of the Damodar Valley Corporation Act, 1948 (XIV of 1948), the corporation hereby makes, with the previous sanction of the Central Government, the following regulations to govern the recruitment, condition of service, pay, allowances, discipline, conduct, and retiring benefits of the employees of the corporation. * * *

Regulation 7. The services under the corporation shall be classified as

Class I-posts carrying pay, or the maximum pay if it is in a time-scale, exceeding Rs. 575 p.m.

Class II-Posts other than than those in Class I carrying pay, or the maximum pay if it is in a time-scale exceeding Rs. 110p.m.

Class III-Posts, the maximum pay of which does not exceed Rs. 110 p.m.

* * *Regulation 21 (it). The date of compulsory retirement of an employes, other than an employee in the Class III Service, shall bi the date on which he attains the age of 58. The service of an employee, who has completed the age of 58, may, however, be extended by the corporation, beyond the age of 58 subject to his fitness and suitability for work, on public grounds which should be recorded in writing, by not more than one year at a time.

9. There is no dispute that the service regulations are applicable to the petitioner and the petitioner is a Class I staff under the corporation and also further that the petitioner has to retire on attaining 58 years of age. But the real difference between the parties is about the date of the birth of the petitioner as the to certificates in question do not tally with each other. While corporation is relying on the matriculation certificate, which, according to the petitioner, Is Incorrect about age, according to the petitioner the correct date of his birth has been recorded in the municipal birth certificate being true copy of the Register of Births of the municipality.

10. It is well-known that a pattern of public undertakings in India today are the statutory corporations formed under different statutes providing also the rules for working, management and control of such corporations and these are almost all of uniform pattern. There are provisions in the relevant statutes giving powers to the corporations to frame regulations to provide for all matters for the purpose of giving effect to the provisions of such Acts creating the corporation. These regulations must, however, have the prior approval of the Central Government and can be made by notifications in the Gazette of India or State Gazettes. These regulations, inter alia, provide for terms and conditions of services of its employees and such regulations are almost invariably called the 'staff' or 'service regulations'. The question whether such 'staff regulations' have any statutory force came up for consideration before the Supreme Court in the case of U.P. State Warehousing Corporation (supra) in a suit asking a declaration that the order dismissing an employee from service was null and void. It was held that a contract for personal service cannot be enforced by an order for specific performance of contract, unless a statutory status was given to an employee like the case of public servants falling under Article 311, or where reinstatement is provided in industrial law, or where there has been a violation of the mandatory obligation imposed by a statute in terminating the service of such an employee as was laid down in the decision in S.R. Tewari. District Board, Agra 1964-1 L.L.J. 1 : A.I.R. 1964 S.C. 1680. It was held that though there was a breach of a particular article of the service regulations that breach would not be a breach of any statutory obligation. The Court proceeded on the basis that the order of dismissal was passed by competent authority under the regulations though there was a breach of procedure in respect of other regulations for which damages may be available. In the case of Indian Airlines Corporation (supra) it was held following the above decisions that the regulations are not statutory and no relief was available for breach thereof. It was held that the dismissal was within jurisdiction and though wrongful in breach of terms and conditions of service, it did subsist. It was observed that the regulations governed the relationship between the corporation and its employees and though framed under the powers conferred by the statute, they merely embody th; terms and conditions of service under the corporation and it did not create statutory restrictions as to the kind of contracts which the corporation could make with its servants or the grounds upon which it could terminate their services. In Ram Babu Rathur v. Life Insurance Corporation A.I.R. 1961 A. 502, it was held that though the corporation was a statutory body, the relations between it and its employees were governed by contract and were of master and servant and n Jt subject to statutory obligation although the corporation had framed under its power under the Act regulations containing conditions of service in the corporation. In Airlines Corporation case (supra) the above proposition of law was also approved.

11. In the above decisions the case of Prabhakar Ramkrishna Jodh v. A. L. Pandey and Anr. reported in : [1965]2SCR713 , which was of a larger Bench, was not produced before the Court for its consideration. This case was concerned with the University of Saugar Act, 1946 which gave powers, under Section 32, to make Ordinances consistent with the Act and the rules made thereunder This Ordinance called the 'College Code' was framed by the university in exercise of the powers conferred by Section 32 read with Section 6(6) of the Act. The Clause (8) of the College Code deals with the conditions of service of the teachers of affiliated colleges and its Sub-clause(VI) lays down the procedure for enquiry and termination of service of the teachers. The Court by unanimous judgment held that the College Code has the force of law, conferring legal rights on the teachers. It was had that even though under Clause (VII) such teachers shall be appointed on a written contract in schedule form, it did not mean that the teachers had merely contractual remedy against the governing body of the college. It was further held that Clause (8) relating to security of tenure of teachers is part and parcel of their service conditions and the provisions of the College Code validly made by the university in exercise of statutory powers have the legal force and effect of law creating legal rights in favour of the teachers The High Court's view that the College Code merely prescribed conditions for affiliation of colleges and no legal rights were created by the College Code with regard to their teachers was set aside. The case was sent back for investigation as to whether there his been a violation of the procedure of Clause 8 (VI) of the College Code and the order of the governing body consequently is illegal and ultra vires, and on such a finding, whether the appellant is entitled to a writ under Article 226 of the Constitution.

12. This case was considered in the case of Vidya Ram Misra v. The Managing Committee, Sri Jai Narayan College : (1972)ILLJ442SC and it was observed that whereas the terms and conditions of service embodied in Clause 8 (VI)(a) of the 'College Code' in Prabhakar's case (supra) had the force of law apart from the contract and conferred rights on the appellant, in Vidya Ram's case, the terms and conditions mentioned in the Statute 151 have no efficacy unless they are incorporated in a contract. Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in contract, so Clause 5 of the contract can, in no event, have any statutory flavour and for its breach the appellant's remedy lay elsewhere. This latest decision of the Supreme Court has in effect approved the decision in Prabhakar's casa while considering the other decisions on the subject including those referred to above.

13. The 'College Code' framed by a statutory corporation-'the university-under powers conferred by the Act is strikingly similar to the 'service' or 'staff' regulations framed by the statutory corporations referred to above under powers conferred by the respective statutes. On the above authority such regulations have the legal force and effect of law creating legal rights in favour of the employees governed by them and are thus enforceable by issuance of writ under Article 226(1) of the Constitution in event of any breach on the part of the corporation of a material or mandatory provision of such regulations. There can be little doubt that the provisions of the regulations which contained the tenure of service of its employees are mandatory.

14. Mr. Mukherjee has referred to the decision in Life Insurance Corporation v. Nilratan Banerjee, reported in 75 C.W.N. 26, in which an appeal Bench of this Court held that no writ would lie for enforcement of provisions of the staff regulations framed by the Life Insurance Corporation following Warehousing Corporation's case. Mr. Mukherjee has also drawn my attention to the decision of Banerjee, J. in C. R. 6195(W) of 1968, Ranjit Kumar Base and Ors. v. Damodar Valley Corporation and Ors., in which following the decision of the Indian Airlines' case, it was held that the rules regarding the promotion are nothing but conditions of service between the employer and its servants and they are not amenable to writ jurisdiction even though the promotions are to be governed by the service regulations of the corporation.

15. In view of the above decisions I am unable to follow the decisions referred to above which would be otherwise binding on me. I feel myself bound by the decision of the Supreme Court in Prabhakar's case which was again referred and in effect approved in the subsequent case of Vidyaram, The present application, in the circumstances, is maintainable against the corporation as contended by Mr. Dutta, learned advocate for the petitioner, if it is established that there has been a violation of the mandatory statutory provisions of the regulations. The preliminary objection is accordingly overruled.

16. Coming to the merits of the case it appears that the corporation has relied on a resolution passed at its 308th meeting held on August 24, 1965 which according to Mr. Dutta has no application to the petitioner's case. This resolution relates to the verification of age of the 'recruits' and the word 'recruit' has been denned in the Oxford Dictionary as 'a newly enlisted soldier, not yet fully trained as such'. It is admitted by the corporation in its affidavits-in-opposition that the petitioner is a permanent and confirmed employee with effect from March 1, 1960, and as such, he cannot be said to be a 'recruit' in 1965 in the service of the corporation. Mr. Mukherjee, however, contends that 'recruit' includes employees newly recruited as also persons already in the service of the corporation. Such meaning is, however, not warranted by the dictionary and literal meaning is otherwise and even recruitment in Regulation 9 implies appointment. The authorities, accordingly, would have used an appropriate word to include in the said resolution all employees if it was so -intended. I must, accordingly, hold that the resolution referred to above has no application to the employees already confirmed in the service of the corporation before the 24th August, 1965. The corporation's stand for enforcing the conclusive-ness of proof of age referred to in the matriculation certificate in respect of such employees on the basis of the above resolution, in this state of affairs, cannot be sustained.

17. There is no dispute that as the corporation acted on the above resolution it did not take into consideration the municipal birth certificate containing the entry as to the date of birth produced by the petitioner. There is no express provision in the staff regulations about the procedure in case there is any dispute relating to the age of any particular incumbent in the service of the corporation. None-the-less it is always implicit in the power of the corporation to determine the age of its employees in such a manner as is consistent with the principles of natural justice in absence of any specific provisions. The petitioner under the regulation has a right to be in service till he attains the age of fifty-eight years. Such a right, prima facie, cannot be decided unilaterally by the corporation in the case of any dispute, without affording the incumbent-petitioner an opportunity to establish his case and to explain discrepancy, if any. The corporation, however, has elected not to give any such opportunity to the petitioner; on the other hand, the corporation has taken the stand that the petitioner is governed by the resolution referred to above attaching conclusiveness to matriculation certificate which resolution as we have seen is not applicable to the petitioner.

18. In support of his claim about the date of birth the petitioner has relied on the certificate granted by the municipality recording the date of birth. The municipal record only shows that a child was born on that date and this does not by itself establish the identity of the claimant with the child mentioned in the certificate. It was held in the case of Hemanta Kumar Das v. Alliantz Und Stuttgarter Life Insurance Company Ltd. A.I.R. 1938 Cal. 120, that the entries of the person named in the register of births or deaths or marriages cannot be positive evidence of such birth, death or marriage of persons mentioned therein unless the identity of the said persons is fully proved. This decision was followed in the case of Paryanibai v. Bajirao, reported in A.I.R. 1963 Bona. 25, where it was held that the petitioner merely by filing the municipal register cannot claim to have proved that the certificate recording the birth or age relates to him, and that is to be proved by further or other materials, if available. It is, therefore, to be established that the person referred in the birth certificate relates to the petitioner. The corporation accordingly must give an opportunity to the petitioner to substantiate his date of birth, as claimed, by producing such further evidence, as the petitioner may elect to produce.

19. For the reasons as aforesaid, this rule succeeds and is made absolute. The orders retiring the petitioner from service with effect from October 31, 1972, (being annexures H and L-I) must be quashed on the ground that the decision was based on a resolution not applicable to the petitioner and was also arrived at without affording an opportunity to the petitioner to establish his date of birth.

20. Let a writ in the nature of mandamus accordingly issue forbearing the respondents from giving effect to the said orders and also let a writ in the nature of certiorari issue quashing the said orders.

21. The petitioner is directed to produce such evidence about date of his birth as he may elect to produce before the general manager and secretary of the corporation who, it is stated by Mr. Mukherjee, is the competent authority, at Bhabani Bhaban, Calcutta by 10th October, 1972, and the said authority will take into consideration such evidence, if any, and will give his decision determining the age of the petitioner within 26th October, 1972, and also pass consequent orders' as may be necessary, so that no prejudice is caused to any party.

22. In default of compliance with the direction given above by the petitioner, the general manager and secretary of the Damodar Valley Corporation will be entitled to pass order determining the age of the petitioner on consideration of the materials before him and to pass consequent orders.

23.There will be no order for costs in this rule.


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