P.N. Mookerjee, J.
1. Two questions - both of sufficient intricacy and importance-are involved in this appeal, which arises out of a said for inter ail certain declaratory relieves against a declaration, made by the Chairman, Calcutta Dock Labour Board, and consequential relief's in the shape of appropriate injunction.
2. The plaintiff, whose suit has been decreed by the Court below and who is the contesting respondent before as, was a registered dock worker in the reserve pool of the Calcutta Dock Labour Board. His employment was governed by the Calcutta Dock Workers (Regulation of Employment) Scheme, 1956, framed under Dock Workers (Regulation of Employment) Act, 1948. On 2 March 1959, appellant 2, Chairman, Calcutta Dock Labour Board, made the following declaration under Clause 46(1) of the Calcutta Dock Workers (Regulation of Employment) Scheme aforesaid:
Whereas the undersigned is satisfied that a ' go-slow ' has been resorted to by some gangs of registered dock workers and some individual, workers and is being continued and is being repeated by the same gang and workers as also by different ships;
The undersigned, therefore, hereby declares that a 'go-slow' has been resorted to by gangs of registered dock workers and individual workers and is being continued and repeated by the same gang and workers as also by different gangs and workers in the same and different ships.
and, on 4 March following, the plaintiff received a charge sheet calling upon him to show cause why he should not be dismissed This action appears to have been taker under Sub-clauses (2) and (3) of the aforesaid Clause 46. The plaintiff submitted his explanation in the Behave of written defense, objecting inter ail to the validity of the above declaration, which was an essential prerequisite to the legality and validity of the above disciplinary proceeding against him. He had meanwhile been placed under suspension on and from 4 March aforesaid. In the circumstances, the plaintiff came to Court with the present suit, claiming inter ail the following reliefs:
(a) For a declaration that the declaration, dated 2 March 1959, fully set out in the body of the plaint issued by defendant 1 under Clause 46 of the Dock Workers (Regulation of Employment) Scheme, 1956, and the departmental proceedings, started there under and based thereon eluding the show-cause notice, dated 4 March 1959, being No. DLB/SCN/208/369 and the order of suspension dated 4 March 1959, being No. DLB/3CN/208/370. and the complaint, dated 2 March 1959, by defendant 3 are illegal, invalid, void, without Jurisdiction and ultra vireos the Dock Workers (Regulation of Employment) Act, 1943, and the Scheme (1956 Scheme) framed there under, and the Constitution of India and is not binding on the plaintiff.
(b) For a deliration that the plaintiff 1b continuing as an active regular registered dock worker in the reserve pool under the Calcutta Dock Labour Board with effect from 4 March 1959.
(c) Permanent injunction restraining the defendants, particularly defendant 1, from proceeding any further and/or taking any further steps in connation with the purported departmental enquiry and giving effect to the declaration, made under Clause 46(1) of the scheme by the defendant 1 and/or enforcing the same and/or giving directions and/or order and/or interfering with the plaintiff's service in any way.
(d) For costs,
(e) Such other or further relief as he may be entitled to under the law.
3. The suit was instituted on 20 March 1959, imploding therein, as defendants, the present appellants, namely, the Calcutta Dock Labour Board, as defendant 1; Chairman, Calcutta Dock Labour Board, as defendant 2; and Administrative Body, Calcutta Dock Labour Board, as defendant 3. The suit has been decreed by the learned trial Judge and the defendants have appealed.
4. To the suit, the material defiance was that it was bad in the absence of the statutory notice under Section 80 of the Code of Civil Procedure upon defendant 2, that the impugned declaration was perfectly legal, valid and in due accordance with law and that the pending disciplinary proceeding against the plaintiff was fully justified on the merits. All these defences were over-ruled by the learned trial Judge.
5. The appellant's challenge to the decree under appeal is comprehensive and it embraces all the above questions but the basic points are two. The first is whether any notice under Section 80 of the Code was necessary for the Instant suit, and second, whether the impugned declaration and disciplinary pro-ceding were valid in law in the sense that they could be validity made and validly taken under the law. If any of these two questions-the first or the second above-mentioned-be answered in the affirmative, the defense would succeed and the instant suit would fail, as, in our opinion, the other questions, touching, as they do, the merits of the above disciplinary proceeding against the plaintiff-respondent, would not be open for discussion in the civil Court. If, however, both the above questions are answered in the negative, this appeal would fall and the learned trial Judge's decision of the plaintiff's suit will have to be affirmed.
6. Now, the point under Section 80 of the Code arises in this way:
The Chairman (defendant 2), Sri R K. Malta, who made the impugned declaration, was a member of the Indian Civil Service and held his substantive appointment under the Government, when his services were lent to the Port Commissioners as the Chairman of that body and, as such Chairman, he became also the Chairman of the Dock Labour Board. The defense contends that, under the above circumstances, this defendant 2 is entitled to a notice under Section 80, read with Section 2(17), Clauses (h) and/or (h), of the Code. The learned trial Judge has overruled this objection, relying, inter alia, on a decision of the Patna High Court, in Dr. Maenad Parsed and Ors. v. Administrator, Patna Corporation AIR 1955 N U C. Patna 4575, We agree with the said view and we proceed to give oar reasons.
The relevant statutory provisions may, now, be conveniently quoted here as follows:
Sections 80 and 2(17)(b) and 2(17)(h) of the Code of Civil Procedure.
Section 80. ' No suit shall be instituted against the Secretary of State for laid in council, or against a public officer in respect of any act, purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been, in the oasis of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to the local Government or the Collector of the district, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
Section 2(17) ' ' public officer' means a person falling under any of the following descriptions, namely:
* * *Clause (b),' every member of the Indian Civil Service';
* * *Clause (h),' every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty; * * *
7. Official capacity, mentioned in Section 80, has, in our opinion, reference to his (the officer's) substantive appointment and that appointment, again, must be referable to that status, contemplated in Section 2(17), that is, member, Indian Civil Service, and/or Government servant, as the case may be under the relevant Sub-clauses (b) and/or (h), and the act complained of must be referrable to it. This test is not satisfied in the instant case. We do not think that, in the circumstances, Section 80 would have any application here and make the notice under it imperative for the instant suit. The appellant's objection on this point is accordingly overruled.
8. On the question of the impugned declaration and disciplinary proceeding, the plaintiff's challenge requires a threefold consideration or consideration from a threefold angle of vision. This threefold attack is on Clause 46 of the aforementioned Calcutta Dock Workers (Regulation of Employment) Scheme. The plaintiff has attacked the validity of this clause; first, on the ground that It is unconstitutional as it offends Articles 14, 16 and 19 of the Constitution, this last submission, embracing also the point that It violates the principles of natural justice; secondly, that it goes beyond the parent statute, under which it has been made; in the third place, that the said parent Act itself is unconstitutional.
9. For our present purpose, it is not necessary to go into any of the above aspect except the point under Article 14 of the Constitution, although we may just indicate that, on a proper and liberal reading of the clause in question, it may not be found to be offending either the principles of natural Justice or any provision of the Constitution save and except Article 14, nor can it be said to have traveled beyond the scope of the parent Act. We do not think also that the said Act is unconstitutional. On Article 14, however, as involved in plaintiff's first attack aforesaid, the position appears to be clearly against the appellants, upon the contrast, so boldly presented by the two Clauses 45 and 46 in the light of Clause 48(1). This is clear from the said clauses, which may, at once and very pertinently, be quoted as follows:
45. Disciplinary procedure-
* * *[Sub-clause (1) is omitted, as it deals with 'registered employers' and with 'registered' dock-workers in the reserve pool,' to which category the plaintiff belongs.]
(2) A registered dock worker in the reserve pool, who falls to comply with any of the provisions of the scheme, or commits any act of indiscipline or misconduct, may be reported in writing by the administrative body, on receipt of information to the personnel officer, who may, after investigating the matter, take any of the following steps as regards that worker, that is to say, he may-
(a) Determine that, for such periods as he thinks proper, that worker shall not be entitled to any payment or part-payment under Clause 43 in respect, of the wage-period in which such failure, commission or misconduct occurred or continued;
(b) Give him a warning in writing; or
(c) Suspend him without pay for a period not exceeding three days.
(3) (a) Where, in a case reported to him under Sub-clause (2), the personnel offload is of opinion that the act of indiscipline or misconduct is so serious that the worker should not be allowed to work any longer, the personnel offload may, pending investigation of the matter, Suspend the worker and report immediately to the Deputy- Chairman, who, after preliminary investigation of the Matter, shall pass order thereon whether the worker should, pending final orders, remain suspended or not ;
(b) Where a worker has been suspended by an order under item (a), he shall be paid for each day of suspension a subsistence allowance equivalent to the attendance allowance provided in Clause 32 or one-fourth of his dally wage including diarrhea allowance, which-ever is greater: provided that, for the period of suspension in excess of a month, the Chairman may, in exceptional cases, grant a higher subsistence allowance not exceeding half the total daily wage including dearneas allowance;
(c) the subsistence allowance so paid shall not be recoverable or liable to forfeiture in any case whatsoever;
(d) Where a worker is found not guilty, he shall be entitled to such payments as the administrative body certifies that the worker would have received on the time-rate basis or under Clause 32 had he not been suspended, provided that the amounts so payable shall be reduced by the amount of subsistence allowance payable or already paid during a particular period.
(4) Where, in the opinion of the personnel officer, a higher punishment than that provided in Sub-clauses (2) and (3), is merited, he shall report the case-to the Deputy Chairman.
(5) On receipt of the written report from the personnel officer under Sub-clause (4) or from the administrative body that a registered dock worker in the reserve pool has failed to comply with any of the provisions of the scheme or has committed an act of indiscipline or misconduct or has consistently failed to produce the standard output or has been inefficient in any other manner, the Deputy Chairman may mike or cause to be made such further investigation as he may deem fit, and thereafter take any of the following steps, as regards the worker concerned, that is to say, he may impose any of the following penalties;
(a) determine that, for such period as he thinks proper, the worker shall not be entitled to any payment or part-payment under Clause 43 in respect of the wage-period in which such failure, commission or misconduct occurred or continued;
(b) give him a warning in writing;
(c) Suspend him without pay for a period not exceeding three months;
(d) terminate his services after giving 14 days' notice or 14 days' wages inclusive of dearness allowance in lieu thereof; or
(e) dismiss him.
(6) Before any action is taken under this clause the person concerned shall be given an opportunity to show cause why the proposed action should not be taken against him.
(7) The administrative body shall be informed simultaneously about the action taken under this clause,
(8) Notwithstanding anything contained in Clauses 44 and 46, the powers vested in the authority specified in Col. (1) of the table below under the provisions specified in Clause (2) of the said table, shall also be exercisable by the authority specified in the corresponding entry in Clause (3), in such cases as the last named authority may specify in writing in this behalf:
TABLEAuthority empowered Authority empowered to taketo take action Power given under action in specified cases(1) (2) (3)1. Personnel officer ... Clauses 44 and 45. ... Depnty Chairman2. Deputy OhaJrman ... Clause 45. ... or Chairman.Clause 46.
46. Special disciplinary powers of the board -(1) Notwitstanding any thing contained in the scheme if the Chairman is satisfied that a ' go-slow' has been resorted to by any gang of registered dock workers or by any such individual worker and is being continued or repeated by the earns fang or worker or different gangs or workers on the as me or different shipa, he may make a declaration in writing to that effect.
(2) When a declaration under Sub-clause (1) has been made, it shall be lawful for the Chairman-
(i) in the case of monthly workers, to take without prejudice to the rights of the registered employers, such disciplinary action, including dismissal, against such workers, as he may consider appropriate; and
(ii) in the case of registered dock workers in the reserve pool to take such disciplinary action including dismissal against each workers as he may consider appropriate and also to order forfeiture of their guaranteed minimum wages and attendance allowance for the wage-period or periods in which the 'go-slow' has been resorted to.
(3) The Chairman may take disciplinary action,
(i) where the ' go-slow' is resorted to by a gang, against all the members of the gang; and
(ii) where the ' go-slow' is resorted to by a worker, against) the worker concerned.
(4) Before any disciplinary action is taken under this clause against any worker or any gang or workers, such worker or gang shall be given an opportunity to show cause why the proposed action should not be taken against him or it:
Provided that the Chairman may, before giving an opportunity to show cause under this sub clause, suspend from work any worker or gang or workers immediately after a declaration has been made under Sub-clause (1).
(4-A) (a) Whera a worker has beam suspended pending enquiry, he shall be paid for each day of suspension a subsistence allowance equivalent to the attendance allowance provided in Clause 32 or one fourth of his dally wage including dearness allowance, whichever is greater; provided that for the period of suspension in excess of a month, the Chairman may, in exceptional cases, grants higher subsistence allowance not exceeding half the total daily wage including dearness allowance;
(b)the subsistence allowance to be paid shall not be recoverable or liable to forfeiture in any case whatsoever;
(c) where a worker is found not guilty, he shall be entitled to such payments in respect of the period of his suspension as the administrative body may certify that the worker would have received on the time-rare basis or under Clause 32 had he mat been suspended, provided that the amounts so payable shall be reduced by the amount of subsistence allowance already paid during that period.
(5) A declaration by the Chairman of the board that a 'go-slow' hat been resorted to by a worker or a gang of workers shall be final and shall not be liable to be questioned on any ground or In any manner whatsoever.
48. Appeals by workers.-(1) Save as otherwise provided in this clause, a worker in the reserve pool, who is relived by an order passed by an authority specified in Col. (1) of the table below under the provisions specified in Col (2) of the said table, may prefer an appeal against such order to the authority spoiled in Col. (3) of the said table: TABLEAuthority passing order Order made under Appellate authority(1) (2) (3)Personnel Officer ... ... Clause 44 or 45 ... Deputy Chairman.Deputy Chairman ... ... Do. ... Chairman.Chairman ... ... Do. ...Central Government,
10. Thus, under either of the above two Clauses 45 and 46, the Chairman has, or can give, himself, authority to take disciplinary action for a delinquency of the present type. While however, his action under Clause 45 will be subject to appeal to the Central Government under the above Clause 48(1), hla order under Clause 46, which may involve more serious consequence, will be final. Delinquents of the same type may thus be proceeded against discriminatingly at the decretion of the Chairman. This is offensive discrimination under Article 14. It is excessive delegation in one form and it permits discrimination, which offends Article 14 Direct support for this view, so far its underlying principle is concerned, is to be found in the Supreme Court case of State of Orissa v. Dhirendra Nath Das A.I.R. 1961 S.C. 1715. In view of the decision and Its undoubted authority and binding force, we do not deem it necessary to refer to any other decision on the point. In the premises, we hold that Cl 46, as it stands now, violates the Constitution and action, taken under it cannot be valid under the law. and so cannot be sustained or upheld.
11. An argument is possible that the above reasoning would not apply to invalidate Sub-clause (1) of Clause 48, which merely permits the Chairman to make a declaration of 'go-slow' but, in our opinion, the entire Clause (Cl. 46) must be read as a whole and as a single scheme and the above declaration is merely a part of the Bazne, constituting the requisite preliminary to the disciplinary proceeding contemplated thereunder. In that view, Sub-clause (1) cannot be severed from the other sub-clauses and Clause 46 must be read as an integrated whole and cannot escape invalidity in any of its parts on the theory of severability. Even otherwise the provision for the disciplinary proceeding at least as contained in Clause 46, must be struck down and such proceeding must accordingly fall.
12. In the above view, we dismiss this appeal but, as the learned trial Judge's decision was based on somewhat different reasonings, we direct the parties to bear their own costs in this Court.
13. We may add also that nothing in this Judgment will preclude the authorities concerned from proceeding against the plaintiff-respondent under Clause 45 of the scheme, if they are so advised and if they have proper case under that clause.
N.K. Sen, J.
14. I agree.