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PETITIONER: MYSORE STATE ROAD TRANSPORT CORPORATION

       Vs.

RESPONDENT: BABAJAN CONDUCTOR & ANR.

DATE OF JUDGMENT08/02/1977

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) KAILASAM, P.S.

CITATION:  1977 AIR 1112            1977 SCR  (2) 925  1977 SCC  (2) 355

ACT:            Constitution  of India Art. 226--Inherent powers  of  the         High Court to grant relief in individual cases of  hardship,         when permissible--Road Transport  Corporation Act, 1950--And         Notification made by the Mysore Government u/s  34(1)--Scope         of--  Winding up of a department operates as a discharge  of         its servants.

HEADNOTE:             Respondent  1, a conductor  of the   Mysore   Government         Road  Transport Department was dismissed. for misconduct  on         25-1-1961.   The legality of  the said dismissal  order  was         questioned  in the High Court under Art. 226 with a  further         prayer to declare that he had continued in service since the         date  of  his suspension and  commencement  of  disciplinary         proceedings.   The High  Court allowed the writ petition  on         11-9-1964  and quashed the dismissal order with an  observa-         tion viz. "It is further ordered that this is without preju-         dice  to the holding of fresh enquiry if they  consider  the         same necessary".  On 1-8-1961.  the Road Transport  Corpora-         tion  was  constituted  and the  Government  Road  Transport         Department  was  abolished.  Such of the employees  who  had         exercised  their option as per the notice  dated  23-6-1961,         were   taken  over by  the appellant corporation.   The  re-         spondent No. 1 was not given the option as he was  dismissed         by that date.  On a complaint under the. Contempt of  Courts         Act  against respondent 2 and the appellant, that there  was         disobedience to the order of the High Court dated 12-9-1964,         the  respondent 1 was paid ,,he salary by the State  Govern-         ment  for the period 25-1-1961 to 31-7-1971.  Since  he  was         not paid back salary and allowances and also the salary  due         from  1-8-1961,  the  respondent filed a writ  petition  No.         1579/66  which was again allowed.  On a  concession made  by         the counsel for the State Government that the State  Govern-         ment  was  willing to make available to  the  petitioner  an         option  to become an employee of the appellant  corporation,         the  High Court held:  "Notice shall be in the same form  in         which  it was served on other employees and with  a  month’s         time  to exercise his option. If he exercises his option  to         become  an employee of the corporation the  petitioner  will         have  all.  the  benefits. such as  continuity  in  service,         seniority,  the  benefit of the old  conditions  of  service

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       applicable  in Mysore Government Road Transport  Department.         The  petitioner will also be entitled to the salary for  the         period’ between August 1, 1961 and the date of his  appoint-         ment  as  an  employee of the corporation".   On  appeal  by         special leave by the corporation, the Court,             HELD:   (1) The order of the High Court dated  11-9-1964         could  not possibly amount to a declaration that  the  first         respondent had continued in the service of either the Mysore         Government or had become the servant of the appellant corpo-         ration, a separate legal entity which came into existence by         means  of  a Notification under s. 3 of the  Road  Transport         Corporation Act, 1950. As a separate legal entity the corpo-         ration could not be said to have stepped automatically  into         the  shoes  of the Mysore Road Transport  Department,  there         being  no provision of the Act or Rules made  thereunder  to         that effect.                                                   [927 A-D]             (2)  The  declaratory relief asked for not  having  been         granted,  that relief would be deemed to have been  refused.         Failure to go in appeal against that decision operates as  a         bar  for  claiming  such a  relief in the   subsequent  writ         petition. [931 B]             (3)  The effect of the High Courts’ order setting  aside         the  dismissal was that the stigma of dismissal was  removed         from  the  record of  the first respondent. The  winding  of         the  department on the facts of the case,  operates  as  the         discharge  of  the  respondent.  The  respondent  cannot  be         deemed  to be the corporation’s employee inasmuch as he  has         not  exercised  any option nor did be ask for  a  notice  of         option in the original writ petition filed by him. [931 D-E]         926             Mysore  State Road Transport Corporation v.  A.  Krishna         Rao & Anr., C.A. No. 1720 of 1967 S.C. decided on  6-8-1969,         followed.             (4) Neither the Act nor the two notifications  under  s.         34(1) of the  Act contain any provision. which could entitle         an employee of the Mysore Government Road Transport  Depart-         ment to get a notice automatically.  The notifications could         apply  only  to those persons who, on 1-8-1961  had  already         exercised an option to serve under the corporation in pursu-         ance  of  notice issued to them. It makes no  provision  for         persons  to whom  for any  considerable  reason,  no  notice         has been issued. [928 D-F]             (5) When the first respondent applied in the High  Court         for  another writ or direction under Art. 226 in  1966,  the         High Court over-stepped the limits of mere interpretation or         application of the law and indulged in what is nothing short         of legislation by directing the State Government to serve  a         notice  calling  upon the first respondent to  exercise  his         option   on  the  question  whether he wanted to  become  an         employee  of the Mysore State Road Transport Corporation  in         the  same  way  in which other employees  of  the  Transport         Department had been asked to exercise their option. [929  C-         E]             (6)  The  State  Government owed no duty  to  the  first         respondent  to pay him after transport department was  wound         up  in the  absence of any contract  10 show what  duty  the         Government  could have to employ the first respondent  after         its  transport  department was wound up or  to   direct  the         corporation  to do so. [929 G-H]             (7)  In order to compel the corporation to  do  anything         only a general direction u/s 34 of the Act could be given by         the Government.  There neither could be a special  direction         with  regard  to a  particular case nor   was  any   special         direction  given by the Government for any such  case.   The

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       High Court could not take upon itself the power to fill  any         gap in the provision of the. Act, even if there be one,  and         compel  the Government to perform a function which the  Gov-         ernment was not under any kind of  obligation to  discharge.         The  High Court could not give a specific direction to  make         a  provision  to   meet what it thought was  required  in  a         particular  or individual case if such a case  fell  outside         the  provisions made by the Act and the rules. There  is  no         justification  at for such assumption of powers by the  High         Court. [929 H, 930 A-B]

JUDGMENT:         CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No..  1919  of         1968.             Appeal  by Special Leave from the Judgment   and   Order         dated  15-12-1967 of the Mysore High Court in Writ  Petition         No. 1579 of 1966.         Shyamla (Mrs.) Pappu and E.K. Joseph for the Appellants         R.B. Datar for Respondent No. 1.         N. Nettar for Respondent No. 2.         The Judgment of the Court was delivered by             BEG.  C.J.  The Mysore State Road Transport  Corporation         is   the  appellant by special leave before us.   The  first         respondent, a conductor in the Mysore Government Road Trans-         port  Department,  had petitioned in the  High  Court  under         Article  226 against the appellant and the State  of  Mysore         and asked it to quash an order of his  dismissal, passed  on         25-1-1961, in disciplinary proceedings taken against him  at         a  time when he was a servant of the Mysore Government  Road         Transport  Department.  The Government Department was  abol-         ished  on  1-8-1961.  But, before this event  happened,  the         Mysore  Government  had  sent notices to  its  employees  on         23-6-61  proposing  to transfer all those persons  who  were         actually in its service on the date of issue of         927         these  notices  and had accepted offers  of  appointment  as         employees  of the Corporation. The first respondent,  having         been already dismissed for misconduct on 25-1-1961, was  not         the recipient of one of these notices to exercise an option.             In  his  writ  petition, questioning the  order  of  his         dismissal, the first respondent had also asked for a  decla-         ration  that he had continued in service since the  date  of         his suspension and commencement of disciplinary proceedings.         The  High  Court of Mysore merely   quashed   the  dismissal         order  of  25-1-1961 and the  order  of   suspension   dated         23-7-1960.  It did not grant the declaratory  relief   asked         for.   It  observed:  "It is further ordered  that  this  is         without  prejudice to the holding of fresh enquiry  if  they         consider the same necessary".  This order could not possibly         amount  to a declaration that the first respondent had  con-         tinued in the service of either the Mysore Government or had         become the servant of the appellant Corporation, a  separate         legal entity which came into existence by means of a Notifi-         cation  under section 3 of the Road Transport  .Corporations         Act,   1950  (hereinafter referred to as ’the Act’).   As  a         separate legal entity, the Corporation could not be said  to         have stepped automatically into the shoes of the Mysore Road         Transport  Department.   No. provision of the Act  or  rules         made  thereunder has been shown to us which could have  that         effect.         The  first respondent, however, relied upon a   Notification         under  section  34 of the Act which contains,  inter   alia,         clause  3  which preserves:

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                           "(3).  All rights and liabilities  which                       have  accrued  or are incurred  or  which  may                       accrue  or may be incurred under any  contract                       made by the State Government or by any Officer                       of  the Road. Transport Department,  excepting                       the Bangalore Transport Service Division prior                       to the First August  1961,                       which would have been the rights and  liabili-                       ties of the Corporation."                       He also cites another Notification which reads                       as follows :--                             "1. The employees of the Mysore  Govern-                       ment  Road Transport Department who have opted                       to serve under the Corporation in pursuance of                       the  Notices issued to them by the  Government                       shall  be employed by the Corporation  subject                       to such regulations as may be made by it under                       section 45(2)(c) of the Road Transport  Corpo-                       rations  Act,   1950 and also subject  to  the                       following conditions, namely :--                          (a)  The  transfer of the  service  of  the                       employees of the Mysore Government Road Trans-                       port  Department to the Corporation shall  not                       amount  to interruption of service  and  shall                       not  entail any loss of  seniority  previously                       held by such employees.                           (b)  The terms and conditions  of  service                       applicable   to  such  transferred   employees                       including  those  relating  to                       928                       Provident  Fund, Gratuity and  other  benefits                       shall  not in any way be less favourable  than                       those  applicable to them  immediately  before                       the transfer.                            (c)  Benefits regarding leave  and  other                       conditions of service available to such trans-                       ferred   employees   immediately  before   the                       transfer shall be continued.                            (d)  In  the event  of  retrenchment   of                       such   transferred employees,  in  determining                       the retrenchment compensation, if any,  length                       of  service   rendered  by   such  transferred                       employees  before the transfer shall  also  be                       considered.                            (e) Changes in the conditions of  service                       of  the  transferred employees  shall  not  be                       effected  to  their  disadvantage without  the                       prior approval of the Government.                              In respect of all disciplinary proceed-                       ings  or  appeals  arising  therefrom  pending                       immediately  before  1st   August,  1961,  the                       Corporation or such Officer or Officers as may                       be designated by it shall be the  disciplinary                       authority competent to pass appropriate orders                       in  accordance  with the  relevant  rules  ap-                       plicable to them before the transfer."             It  is clear that the last mentioned notification  could         apply  only to those persons who, on 1-8-1961,  had  already         exercised an option to serve under the Corporation in pursu-         ance  of notices issued to them. It makes no  provision  for         persons  to whom, for any conceivable reason, no notice  had         been issued.  Neither the Act nor the two notifications u/s.         34(1)  of the Act mentioned above contained  any  provisions         which  could  entitle an employee of the  Mysore  Government         Road Transport Department to get a notice automatically.  It

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       appears that the notices were issued only in exercise of the         executive power of the Government. Clause (7) of one of  the         two notifications of 1-8-1961 laid down:                             "(7)  The  members of the staff  of  the                       Mysore  Government Road Transport  Department,                       excepting those who are serving in  connection                       with  the affairs of the  Bangalore  Transport                       Service  Division,  who have  opted  to  serve                       under   the Corporation with effect  from  1st                       August, 1961, in response to the notice issued                       to them by Government shall be employed by the                       Corporation  subject  to such  regulations  as                       may  be made by it under section 45(ii)(c)  of                       the  Road   Transport  Corporations  Act   and                       subject to such assurances as have been  given                       to them by Government in their notice No. HD 8                       TRC 60 dated 23rd June 1961."              This provision also relates to persons who had  already         exercised options under notices issued to them already.   It         may be that there was a lacuna in the rules or in the Act so         that  cases  like  those of the first  respondent  were  not         provided for at all in the Act or in the rules.         929             Learned counsel for the first respondent relied strongly         on s. 34 of the Act which lays down as follows :--                             "34(1). The State Government may,  after                       consultation with a Corporation established by                       such  Government,  give  to  the   Corporation                       general  instructions  to be followed  by  the                       Corporation, and such instructions may include                       directions relating to the recruitment, condi-                       tions  of service and training of its  employ-                       ees,  wages to be paid to the  employees,  re-                       serves to be maintained by it and disposal  of                       its profits or stocks.                             (2)  In the exercise of its  powers  and                       performance of its duties under this Act,  the                       Corporation shall not depart from any  general                       instructions  issued  under  sub-section  (’1)                       except  with  the previous permission  of  the                       State Government."         This section enables only general directions to be given.           When  the first respondent applied in the High  Court  for         another  writ or direction under Art 226 in 1966,  the  High         Court  seems to us to have over-stepped the limits  of  mere         interpretation  of  application of the law and to  have  in-         dulged  in  what is nothing short of legislation.  The  High         Court directed the State Government to serve a notice  call-         ing upon the first respondent to exercise his option on  the         question  whether  he wanted to become an  employee  of  the         Mysore  State Road Transport Corporation in the same way  in         which  other employees of the Transport Department  of  that         State  had  been asked to exercise their options.  The  High         Court observed :--                             "It  is clear that the State  Government                       were  under  a duty to make available  to  him                       that  option when the  order  by which he  was                       illegally dismissed was set aside.  Government                       are therefore, in our opinion, right in making                       available  to  the petitioner that  option  at                       least  now.  We, therefore, issue a  direction                       that that option will be made available to the                       petitioner  within  fifteen  days  from   this                       date".             We  also  find  that,  after   proceedings   under   the

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       Contempt   of Courts Act against the Government  of  Mysore,         the petitioner had been paid his salary between 25-1-61, the         date of a dismissal which was declared to be illegal by  the         High  Court,  and 1-8-61, when the  Mysore  Government  Road         Transport  Department was abolished and its place  taken  by         the State Road Transport Corporation.             The State Government owed no duty to the first  respond-         ent to pay him after its transport department was wound  up.         No term of  any contract was placed before the Court to show         what  duty  the Government could have to  employ  the  first         respondent after its transport department was wound up or to         direct the Corporation to do so.  We do not know what option         the  State  Government has given to.  the  first  respondent         after the writ petition was filed.  If it had already  given         any  option  to him, there was no point in directing  it  to         give   another option.  In order to compel  the  Corporation         to   do   anything,  as already indicated,  only  a  general         direction u/s. 34 of the Act, set out above, could be  given         by the Government.  There neither could be a         930         specific direction with regard to a particular case nor  was         any specific direction given by the Government for any  such         case. The High Court could not take upon itself the power to         fill any gap in the provision of the Act, even if we were to         assume that there was one here, and compel the Government to         perform  a function which the Government was under any  kind         of  obligation to do.  The High Court could not give a  spe-         cific  direction to make provision to meet what it   thought         was  required in a particular or individual case if  such  a         case  fell  outside the provisions made by the Act  and  the         rules. We can find no justification at all for such  assump-         tion of powers by the High Court.             Mrs. Shyamla Pappu learned counsel for the appellant has         sought support from a judgment of this Court in Mysore State         Road  Transport Corporation v. Krishna Rao & Anr.(1),  where         this  Court  held  as follows :--                             It  is  quite clear the   employees   of                       the   Bangalore Road Transport Service of  the                       Government did  not  either under a  statutory                       provision,  as in Jestamani Gulabrai  Dholakia                       v. The Scindia Steam Navigation Co. [1961  (2)                       SCR 811], or automatically, become the employ-                       ees  of the Corporation.  The Corporation  was                       directed  to take over only those of  the  em-                       ployees who opted for its service and to  give                       to them the same terms and conditions as  were                       enjoyed  by them while in the service  of  the                       Mysore Government. Thus, the condition  prece-                       dent  of  an employee of  the  Road  Transport                       Service  of  the Government  of  Mysore  being                       transferred   and regarded as the employee  of                       the Corporation as    from   October 1,  1951,                       was the giving of the option to him  and   his                       exercise thereof.                             There  is no dispute that  Respondent  1                       was not given the notice of option, presumably                       because,  rightly or wrongly, he was  not  re-                       garded  as having been in the service  of  the                       Government’s Road Transport Service immediate-                       ly before the Corporation came into being.  It                       cannot  also be disputed that he  never  asked                       for  a notice of option on the ground that  he                       continued to be in that service.  That he  did                       not in fact exercise the option is an accepted                       fact.   That being so, it cannot be said  that

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                     under  the said notification the   Corporation                       was  required to have him as its  employee  or                       that his service was transferred to the Corpo-                       ration thereunder, the condition precedent  to                       such employment or transfer  not  having  been                       complied with."                       This Court also held there:                             In our view, the Labour Court could not,                       on the position stated above, treat him as the                       Corporation’s   employee and on  that  footing                       grant him the relief which it did. Once it  is                       found  that he  did not  become the   Corpora-                       tion’s                       (1) C.A. No. 1720 of 1967 given on 6-8-1969.                       931                       employee,  the Corporation could not  be  held                       liable  to  pay him the wages for  the  period                       from March 6, 1960, to April 19, 1962."             The case cited by Mrs. Pappu arose out of a claim  under         section  33(c)(2) of the  Industrial  Disputes  Act,   1947,         but  the  views .expressed there accord with ours.   We  re-         spectfully adopt  the  same reasoning.             Indeed,  in  the case now before us,  the  Corporation’s         legal  position rests on a stronger footing than it  did  in         the  case  cited above inasmuch as  the  declaratory  relief         asked  for by the first respondent against  the  Corporation         had  not  been granted.  That relief  would,  therefore,  be         deemed  to have been refused.  The first respondent did  not         himself  go up in appeal against that decision.   He  cannot         claim  such  a relief in the subsequent  writ  petition  now         before us.             The  facts  set  out above show that  there  were  ample         grounds for discriminating between a person against whom  an         order of dismissal had been passed, so that he was no longer         serving in the transport department, and others who were not         in the same position but were actually in the service of the         transport department of the. Government.  It may be that the         effect of the High Court’s order, setting aside the dismiss-         al, .was that the stigma .of dismissal was removed from  the         record  of the first respondent.  Nevertheless, as no  order         granting   a  declaratory relief he had asked for was  given         to  the  first respondent, he could not be deemed  to  be  a         servant even of the State Government after the department in         which  he was working was wound up.  The most he  could  say         was  that  he  was not dismissed.  The  winding  up  of  the         department would, on the facts stated above, operate as  the         discharge  of the respondent who could, if so advised,  seek         whatever  other  means  of redress he may still  have  under         the law.             Consequently,  we  allow  this  appeal,  set  aside  the         judgment   and  order of the High Court.  The  parties  will         bear their own costs.         S.R.                                                  Appeal         alllowed.         932