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PETITIONER: THE MANAGEMENT OF D.T.U.

       Vs.

RESPONDENT: SHRI B. B. L. HAJELAY & ANR.

DATE OF JUDGMENT06/09/1972

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. SHELAT, J.M. DWIVEDI, S.N.

CITATION:  1972 AIR 2452            1973 SCR  (2) 114  1972 SCC  (2) 744  CITATOR INFO :  RF         1976 SC2301  (2)  D          1977 SC 567  (12)  RF         1977 SC 965  (14)

ACT: Disciplinary  proceedings-Delhi Municipal  Corporation  Act, 1957--Ss.  92,  95(1) and proviso, 491 and  504--Removal  by officer  subordinate to the appointing  authority-Effect  of delegation   of  functions  by  the  appointing   authority- Subordination  is  of rank  and  not  flinctions--Protection cannot be destroyed by the concept of agency.

HEADNOTE: By the Delhi Municipal Corporation Act, 1957 the Delhi  Road Transport   Authority  Act,  1950,  was  repealed  and   the functions   of  the  Authority  were  taken  over   by   the Corporation.   Every  employee-.  of  the  Authority   stood transferred  to  and became an employee of  the  Corporation from January 1958. Under  s. 92 of the Corporation Act the power of  appointing municipal  officers and other municipal employees  to  posts carrying a (minimum monthly salary of Rs. 350/- vest in  the General  Manager  (Transport).  Section 95(1)  dealing  with disciplinary  matters provides that every officer  or  other employee shall be liable to be punished by such authority as may  be  prescribed  by  regulations.   By  the  proviso  to subsection  (1)  of s. 95 no officer or  employee  shall  be reduced in rank, compulsorily retired, removed or  dismissed by  any  authority  subordinate  to that  by  which  he  was appointed.   Section 491 read with 504 empowers the  General Manager  (Transport) to direct by order that any power  con- ferred or any duty imposed on him by or under the Act  shall be  exercised  and performed also by any  municipal  officer specified in the order. Respondent No. 2 was originally employed as a driver in  the Delhi  Transport  Authority.  He became an employee  of  the Corporation  from January 1958.  The minimum monthly  salary drawn by him was less than Rs. 350/-.  After a  disciplinary enquiry the Assistant General Manager removed the respondent from  service  with effect from May 16,  1963.   The  Labour Court,  in  an  application  under s.  33  (2)  (b)  of  the

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Industrial  Disputes  Act,  did not grant  approval  of  the action  on the ground that the General Manager  alone  could have  removed  him from service.  The High  Court  confirmed this  view.  It was common ground that the  General  Manager (Transport) had by order issued in 1961 delegated his  power to   the   Assistant   General  Manager   to   appoint   and consequently,   to  remove  from  service  a   driver   like respondent  No.  2.  In  the appeal to  this  Court  it  was contended  by the appellant Undertaking that the  respondent was  originally  employed  by  the  Manager of  the   Road Transport  Authority constituted under the 1950 Act  and  on the repeal of that Act and the take over of the authority by the  Corporation  any officer of the  appellant  Undertaking competent  to  appoint or remove a driver  was  entitled  to remove him from service; that the Assistant General  Manager of  the Undertaking could not be described as  an  authority subordinate  to  the  Manager of the  Delhi  Road  Transport Authority;  and  that in army event  the  Assistant  General Manager had become an agent of the General Manager. Dismissing the appeal. 115 HELD : (i) Respondent No. 2 at the time of his absorption in January  1958, would be deemed to have been appointed  under s.  92(1) (b) which would mean that he was appointed by  the General  Manager  (Transport).   Being  so,  appointed,   no subordinate  of his including the Assistant General  Manager would be entitled to remove him in view of s. 95(1) proviso. The  only consequence of the delegation of functions of  the General  Manager to the Assistant General Manager  would  be that  if after 1961 the Assistant General Manager makes  the appointment  of a driver like respondent No. 2 he  would  no doubt be entitled to remove him from service. [118D-E] (ii)A  protection which is given to an employee by  statute cannot  be nullified by rules and regulations authorised  by the  statute  itself.  If the Corporation itself  could  not have  by a regulation destroyed the protection given by  the statute  to respondent No. 2, it would be  inappropriate  to say  that  General  Manager  by  an  order  delegating   his functions to the Assistant General Manager under s. 491 read with  594 the Corporation Act could destroy the  protection. The true position in law is that while sections 491 and  504 read together authorised the General Manager (Transport)  to delegate his powers-and functions to a subordinate they  did not  authorise delegation of his rank.  What is involved  in matters of appointment and removal is the status and rank of the employee and the status and rank of the authority taking action.   When the proviso to sub-section (1) of s. 95  says that  an officer and an employee shall not be  dismissed  by any authority subordinate to that by which he was  appointed the subordination is of tank and not functions. [120D-H] R.T. Rangachari v. Secretary of State, 64 Indian Appeals, 40, referred to. Itis  implicit  in the statutory  prohibition  debarring removal by a,lesser authority, that the appointing authority has to personally apply its mind to the question of  removal and  cannot  delegate  such  a  function.   The   protection provided  cannot  be  destroyed  by  importing  concepts  of agency. [121C]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1518  of 1971. Appeal  by special leave from the judgment and  order  dated

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the 21st January 1971 of the Delhi High Court in Civil  Writ Petition No. 719 of 1969. M.   C. Chagla, and S. K. Dholakia, for the appellant. R.   K. P. Shankardass D. N. Vohra, H. K. Puri and S. K. Dhingra, for respondent No. 2. The Judgment of the Court was delivered by PALEKAR,  J.  This is an appeal from the judgment and  Order dated January 21, 1971 of the Delhi High Court in Civil Writ Petition No. 719/1969. Respondent  no. 2 Ved Prakash was originally employed  as  a Driver in the Delhi Road Transport Authority which had  been constituted  under the Delhi Road Transport  Authority  Act, 1950. 116 The Delhi Municipal Corporation Act, 1957 came into force in January, 1958By section 516(1)(a) of the Corporation Act, the Delhi RoadTransport Authority Act, 1_50, stood repealed and in virtue ofseveral    other   sections    of    the Corporation  Act the functions of the Delhi  Road  Transport Authority were taken over by the Corporation.  Under section 511  every officer and employee of the  Transport  Authority stood  transferred to and become an officer and employee  of the  Corporation.  Thus respondent no. 2 became an  employee of the , Corporation from January, 1958. A disciplinary enquiry was started against respondent no.  2 by the Assistant General Manager (Transport) in 1962 and the Assistant General Manager decided to remove respondent no. 2 from  service with effect from 16-5-1963.  At that  time  an Industrial dispute was pending before respondent no. 1,  the Presiding  Officer  of  the  Labour  Court,  and  hence   an application  was  made  under section 3 3  (2)  (b)  of  the Industrial Disputes Act for approval of the proposed  action of  removal of respondent no. 2 from  ,service.   Respondent no.  1 did not approve of the action on the ground that  the Order for removal was made by the Assistant General  Manager and not the General Manager who alone could have removed him from  service.  That order was challenged in the High  Court which, however, agreed with the view taken by respondent no. 1. Hence the present appeal. The  short point with which we are concerned is whether  the Assistant   General   Manager  of   the,   Delhi   Transport Undertaking  of  the Municipal Corporation of  Delhi  was  a competent authority to remove respondent no. 2 from service. There is no dispute that under section 511(1) of the  Corpo- ration  Act,  respondent  no. 2 became an  employee  of  the Corporation from January, 1958. (By reason of section 516(2) (a)  his  appointment continued in force and was  deemed  to have been made under the provisions of the Corporation Act). Section  92 which comes under Chapter VI of the  Corporation Act  dealing  with Municipal officers  and  other  Municipal employees, so far as is relevant, is as follows :               "92(1) Subject to the provisions of section 89               the power of appointing municipal officers and               other  municipal employees, whether  temporary               or permanent,.               (b)to  posts  carrying  a  minimum  monthly               salary (exclusive of allowances) of less  than               three  hundred  and fifty rupees.  shall  vest               in.......... the General Manager (Transport)." 117 The minimum monthly salary of respondent no. 2 was less than Rs.  350/-  and hence the, appropriate authority  under  the Corporation  Act  to appoint respondent no. 2 would  be  the General Manager (Transport). Section 95 deals with disciplinary actions against municipal

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officers  and  employees.   Sub-section  6  provides  "every municipal  officer  or  other municipal  employee  shall  be liable to have his increments or promotion withheld or to be censured, reduced in rank, compulsorily retired, removed  or dismissed for any breach of any departmental regulations  or of  discipline  or for carelessness, unfitness,  neglect  of duty  or  other  misconduct  by such  authority  as  may  be prescribed  by regulations." The first proviso to the  above sub-section  reads "Provided that no such officer  or  other employee as aforesaid shall be reduced in rank, compulsorily retired,  removed or dismissed by any authority  subordinate to that by which he was appointed." In view of the proviso referred to above it was contended on behalf of respondent no. 2 that he cannot be removed by  any authority subordinate to the General Manager (Transport) and since the Assistant General Manager was a subordinate of the General Manager, the- Order of removal was unauthorised  and illegal.  That contention has been upheld by the High Court. Two  more  provisions  of the Corporation  Act  have  to  be noticed  at  this stage.  They are sections 491 and  504  in Chapter  XXV  entitled "Miscellaneous".  Section 491  is  as follows               "The Commissioner may by order direct that any               power conferred or any duty imposed on him  by               or under this Act shall, in such circumstances               and  under such conditions, if any, as may  be               specified  in  the  order,  be  exercised  and               performed  also  by any municipal  officer  or               other  municipal  employee  specified  in  the               order."               Section  504  so  far as  is  relevant  is  as               follows               "Save  as expressly provided in this  Act  and               unless the context otherwise requires,-               Any    reference   in   this   Act   to    the               Commissioner............. shall be construed.               (ii)  in relation to any matter pertaining  to               the Delhi               Transport  Undertaking, as a reference to  the               General Manager (Transport).......... " Reading  these  two provisions together one  sees  that  the General  Manager (Transport) is entitled by order to  direct that  any power conferred or any duty imposed on him  by  or under  the Act shall be exercised and performed also by  any municipal 118 officer or other municipal employee specified in the  order. It is common ground that the General Manager (Transport) has by  an  order  issued in 1961 delegated  his  power  to  the Assistant  General Manager to appoint and, consequently,  to remove from service a driver like respondent no. 2. Mr.   Chagla,   appearing  on  behalf  of   the,   appellant Undertaking,  contended  that  respondent  no.  2  had  been actually  appointed  by  the  Manager  of  the  Delhi   Road Transport   Authority  constituted  under  the  Delhi   Road Transport Authority Act, 1950 and on the repeal of that  Act and  the take over of the Authority by the Corporation,  any officer  of the appellant Undertaking, competent to  appoint or remove a driver, was entitled to remove him from service. The Assistant General Manager of the Undertaking could  not be described as subordinate to the Manager of the Delhi Road Transport  Authority because factually he was  not.   There- fore,  he  contended, the provision ’that he  shall  not  be removed by the authority subordinate to that by which he was appointed’  found in section 95 of the Corporation  Act  was

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inapplicable.   In our opinion, the contention is  not  well founded.   The proviso to section 95 sub-section  (1)  gives protection to every officer and employee of the  Undertaking that  he may not be removed or dismissed from service by  an authority subordinate to that by which he was appointed.  It may  be  that in 1961 the functions of the  General  Manager (Transport)  had  been delegated to  the  Assistant  General Manager.   The  only consequence is that if after  1961  the Assistant General Manager makes the appointment of a  driver like  respondent  no. 2, he would no doubt  be  entitled  to remove him from service.  But so far as respondent no. 2  is concerned his individual position will have to be determined with  reference  to  the  time  when  he  was  absorbed   in Corporation  Service.  That was in January,  1958.   Section 516 while repealing the Delhi Road Transport Authority  Act, 1950   by  clause  (a)  of  sub-section  (1)  protects   the appointments made under that Act.  Sub-section 2(a) provides "Notwithstanding  the provisions of sub-section (1) of  this section   (a) any appointment............    made    and  in force   immediately   before  the   establishment   of   the Corporation, shall, in so far as it is not inconsistent with the provisions of this Act, continue in force and bedeemed to have been made under the provisions ofthis       Act, unless and until it is superseded by any appointment    made under  the said provisions."Since under section 92  (1)  (b) already  referred  to  the  power  of  appointing  municipal employees to posts carrying a minimum monthly salary of  Rs. 350/- vested in the General Manager (Transport),  Respondent no. 2, at the time of his absorption in January, 1958  would be deemed to have been appointed under 119 section 92 (1) (b) which would mean that he was appointed by the  General  Manager (Transport).  Being so  appointed,  no subordinate  of his including the Assistant General  Manager (Transport) would be entitled to remove him from service  in view of section 95(1) proviso. Section 95(1) dealing with disciplinary action against muni- cipal  officers  and employees  specifically  provides  that every officer or other municipal employee shall be liable to be punished in the several ways referred to in that  section by such authority as may be prescribed by regulations.   The definition  of the word ’ regulation’ given in clause 48  of section  (2) is as follows : "Regulation"  means  regulation made  by the Corporation under this, Act by notification  in the  official gazette.  In other words, the power of  making regulations  is vested in the Corporation and it is open  to the Corporation to prescribe by regulation who would be  the authority  to punish any municipal officer or  employee  for his  delinquency.   Such a regulation may  provide  that  an employee  of the status of respondent no. 2 can be  removed, for  example, by the Assistant General Manager.  And yet  by virtue  of the proviso to that sub-section respondent no.  2 would be protected against any such action of the  Assistant General  Manager  because his appointing authority  was  the General  Manager and the Assistant General Manager  was  his subordinate.   A  similar  situation had  arisen  in  R.  T. Rangachari   v.  Secretary  of  State(1).    The   appellant Rangachari  had been appointed by the Inspector  General  of Police but his dismissal was ordered in 1928 by an  official lower  in  rank  than  the  Inspector  General.   Rangachari claimed protection under section 96(b) of the Government  of India  Act,  1919 which so far as we are  concerned  was  as follows               "Sub-section (1) Subject to the provisions  of               this  Act and the rules made thereunder  every

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             person  in the Civil Service of the  Crown  in               India   holds  office  during  his   Majesty’s               pleasure  and  may be employed in  any  manner               required  by  a proper  authority  within  the               scope  of  his  duty but  no  person  in  that               service  may  be dismissed  by  any  authority               subordinate   to   that  by   which   he   was               appointed." Since rules had been framed by which the power of  dismissal had  been delegated by the Inspector General of Police to  a subordinate authority it was contended, though with  certain amount  of hesitation, that the dismissal of Rangachari  was proper.   Lord  Roche delivering the judgment  in  the  case observed "The courts below held that the power of  dismissal was in fact delegated and (1)  64 Indian Appeals, 40. 120 was  lawfully  delegated  to the  person  who  purported  to exercise it. Counsel for the respondent candidly expressed a doubt  as  to the possibility of maintaining this  view  and indeed  it is manifest that if power to delegate this  power could  be taken under the rules, it would wipeout a  proviso and  destroy a protection contained not in the rules but  in the section itself.  Their Lordships are clearly of  opinion that the dismissal purporting to be thus ordered in February was  by  reason of its origin bad and  inoperative.   It  is manifest that the stipulation or proviso as to dismissal  is itself  of  statutory force and stands on  a  footing  quite other than any matters of rule which are of infinite variety and  can  be  changed  from time to  time.   It  is  plainly necessary  that this statutory safeguard should be  observed with the utmost care and that a deprivation of pension based upon a dismissal purporting to be made by an official who is prohibited by- statute from making it rests upon an  illegal and improper foundation." It is, therefore, clear that a protection which is given  to an employee by the statute cannot be nullified by rules  and regulations  authorised  by the statute  itself.   In  other words,  any regulation made by the Corporation  which  would have  authorised  the Assistant General  Manager  to  remove respondent  no. 2 from service would have  been  inoperative qua  respondent no. 2, as his appointing authority  was  the General  Manager (Transport).  The question now is  whether, if  the Corporation itself by any regulation could not  have destroyed  the  above  protection given by  the  statute  to respondent  no. 2, it would be appropriate to say  that  the General Manager by an order delegating his functions to  the Assistant General Manager under sections 491 r/w 504 of  the Corporation  Act  could destroy the protection.   Since  the General Manager (Transport) is an officer of the Corporation and subordinate to the Corporation, it will amount to saying that what the Corporation could not do by a regulation could be  done  by  an  officer  of  the  Corporation  by   merely delegating  his functions to the Assistant General  Manager. The  position would look ridiculous.  The true position  in’ law  is  that  while  sections  491  &  504  read   together authorised the General Manager (Transport,) to delegate  his powers  and  functions  to  a  subordinate,  they  did   not authorise  delegation  of his rank. , What  is  involved  in matters of appointment and removal is the status and rank of the employee and the status and rank of the authority taking action.   When the proviso to subsection (1) of  section  95 says that an officer and an employee shall not be  dismissed by  an  authority  subordinate  to  that  by  which  he  was appointed the subordination is of rank and not of functions.

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The  proviso  places an embargo on any  subordinate  of  the appointing authority from removing or dismissing an employee from service and, therefore, the High 121 Court  was  right in holding in the present  case  that  the removal of respondent no. 2 by the Assistant General Manager (Transport) was illegal. Mr. Chagla then contended that by reason of the  delegation, the  Assistant  General Manager had become an agent  of  the General Manager and the act of the Assistant General Manager must be deemed to be the act of the General Manager himself. We  are not concerned here with the law of a agency.  It  is implicit in the statutory prohibition debarring removal by a lesser  authority,  that  the appointing  authority  has  to personally  apply  its mind to the question of  removal  and cannot delegate such a function.  Since the authority  which can  ’remove an-employee is the appointing authority or  its superior  in office, the protection thus provided cannot  be destroyed by importing concepts of agency. In the result the appeal fails and is dismissed with costs. K.B.N.                                                Appeal dismissed. 122