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PETITIONER: JAI JAI RAM AND OTHERS

       Vs.

RESPONDENT: THE U.P. STATE ROAD TRANSPORTCORPORATION, LUCKNOW AND OTHERS

DATE OF JUDGMENT:       09/07/1996

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) AGRAWAL, S.C. (J)

CITATION:  1996 SCC  (4) 727        JT 1996 (6)   463  1996 SCALE  (5)131

ACT:

HEADNOTE:

JUDGMENT:                     J U D G M E N T NANAVATI, J.      This   appeal by special leave is directed against  the judgment and  order passed  by the  Allahabad  High Court in Writ Petition  No. 150  of 1980  and Writ Petition Nos. 168, 169, 175,  177, 178, 179, 716, 720, 724, 761, 762, 764, 765, 880, 885 and 892 of 1980.      The question  that arises  for  consideration  in  this appeal is  whether disciplinary action could have been taken against the appellants, who are/were Government servants and who have/had  been sent  to the  U.P. State  Road  Transport Corporation on  deputation, by those Government officers who have/had been  sent to  the Corporation  on deputation along with the  appellants.There is  no dispute  on the point that some of  the appellants  were appointed  by those  officers. Other officers  whose actions  have been challenged are/were superior in  rank or of the same rank but not subordinate in rank or  grade to  the appointing  officers of the remaining appellants.      Before June  1, 1972, the U.P. Government was running a passenger transport  service known  as the  U.P.  Government roadways in  various parts of the State. The said department undertaking was  then headed  by Transport  Commissioner. By notification dated  10th May,  1954,  issued  by  the  State Government  under  Article  309  of  the  Constitution,  the Transport Commissioner,  the Deputy  Transport Commissioner, General Managers  and the  Assistant Regional  Managers were notified as  appointing  authorities  in  respect  of  those categories  of  posts  which  were  mentioned  in  the  said notification.   The   Assistant   Regional   Managers   were designated as  appointing authorities,  inter alia,  for the costs of  conductors and drivers. The appellants are or were holding  such   posts.  Assistant   Regional  Mangers   were subsequently redesignated  as Assistant General managers and w.e.f. June  1,  1972,  as  Assistant  Zonal  Managers.  The

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Corporation  was   established  w.e.f.   June  1,   1972  by notification dated  May 31,  1972 and  all the  officers and employees connected with the work of roadways were deemed to be on  deputation with  the Corporation w.e.f  June l, 1972. In course of time the Corporation appointed its own officers and employees  but all  those Government  officers and other employees who were sent on deputation continued to remain on deputation and  were not  absorbed in  the  service  of  the Corporation Disciplinary  actions were taken against some of the employees  and they  were challenged on several grounds. In this appeal we are concerned with those employees who had continued as  Government employees  till their services came to be  terminated or those against whom disciplinary actions have been  initiated or were taken by those officers working in the  Corporation who were sent on deputation and who also continued to  be on  deputation till  impugned actions  were taken by  them. Some of the employees had filed applications before the  tribunal challenging  the  disciplinary  actions taken against  them. Those  applications were allowed by the tribunal on  the ground that as the applicants had continued to be on deputation with the Corporation the State continued to be their employer and, therefore, the Corporation was not competent  to   take  disciplinary    action  against  them. Aggrieved by  the orders  passed on  those applications, the Corporation had  filed the  above writ petitions except writ petition No.  150 of  1980 in the Allahabad High Court. Writ petition   No.    150   of   1980   was   filed   by   those deputationists/employees who  have  been  suspended  pending disciplinary actions  against them.  In that  petition  they have challenged  their suspension.  All  those  actions  and orders were  challenged on  the ground  that the Corporation and its officers including those officers who ware/have been sent on  deputation had  no power to pass such orders as the petitioners being  Government  servants  only  the  officers serving under  Government could have passed such orders. All these petitions  were heard  together by  the Allahabad High Court. In  view of  the conflicting  opinions  expressed  by different Benches  of the  High Court  these petitions  were heard by  a full  Bench. The  Full Bench,  by majority (Hari Swaroop and  T.S. Mishra,  JJ.), held  that the disciplinary actions taken by those Deputy General Managers, Regional and Assistant Regional  Managers of the Corporation who are/were Government servants  and  who  have/had  been  sent  to  the Corporation  on   deputation  had   either   appointed   the delinquent employees or were superior in rank or of the same rank or  grade and  were not  subordinate  in  rank  to  the appointing officers  and therefore  competent  to  take  the impugned  disciplinary   actions.  K.N.  Goyal,  J.  in  his concurring  judgment   held  that   all  officers   of   the Corporation  who   were  not  subordinate  in  rank  to  the appointing officers  were competent  to  take  the  impugned disciplinary action. The full  Bench  thus decided the point in favour  of the  Corporation and against the employees and allowed the  writ petitions  filed against the orders passed by the  Tribunal. As  the tribunal  had not  decided all the questions raised  before it  the  full  Bench  directed  the tribunal to decide those cases on other points in accordance with law.  So  far  as  Writ  Petition  No.150  of  1980  is concerned the full Bench has directed it to be listed before a Division Bench for disposal.      The view  taken by  the High Court is challenged on the ground that  the disciplinary actions which have either been initiated or  taken are  by  those  authorities  which  were acting as officers of the Corporation and not as officers of the Government  and as  the appellants  continued to  be the

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Government servants no action could have been taken by those authorities.  In  support  of  his  contention  the  learned counsel  for  the  appellants  drew  our  attention  to  the notifications under  which the  Corporation was  established and  the  services  of  the  appellants  were  lent  to  the Corporation. He also drew our attention to the Uttar Pradesh Fundamental Rules.  It is, however, not necessary to discuss those notifications  or the  rules as it is not disputed now before us that the appellants even after their services were lent to  the Corporation  continued  to  be  the  Government servants. We  may,  however,  refer  to  Rule  9(7-B)  which defines Government  servant for  the purposes of those rules to mean  a person  appointed to  a civil  post  or  a  civil service under  the State Government in India, and serving in connection with  the affairs  of the  Uttar  Pradesh,  whose conditions of  service have been or may be prescribed by the Governor under Section 241 (2)(b) of the Act, as it has some bearing on  one of  the  submissions  made  by  the  learned counsel for  the appellants.  It is also not in dispute that as  the  appellants  were  Government  servants  even  while serving under  the Corporation  they were  entitled  to  the protection of  Article 311  of the  Constitution.  Like  the appellants the  officers,  whose  actions/orders  have  been challenged, have/had  also continued  as Government servants even though  they  have/had  been  on  deputation  with  the Corporation. Realizing  the difficulty in describing them as officers of  the Corporation  the learned  counsel  for  the appellants submitted that under Rule 9 (7-B) a person can be said to  be a  Government servant  only if  he is serving in connection with  the affairs of the Uttar Pradesh and as the said officers,  at the  relevant time,  were serving  in the Corporation which  is an  independent legal entity it cannot be said  that they  were  serving  in  connection  with  the affairs of  the Uttar  Pradesh.  Thus,  they  were  not  the Government servants  when disciplinary  action was  taken by them against  the appellants  and, therefore,  the  impugned actions taken  or orders  passed by them must be regarded as invalid and  illegal. In  our opinion, there is no substance in this contention. In the first place the definition of the term Government  servant is  for the  purposes of  the  said rules and,  therefore,  not  relevant  for  the  purpose  of Article 311 of the Constitution. Again, a Government servant remains a  Government  servant  even  when  he  is  sent  on deputation to  foreign service  and therefore the definition of the  term Government  servant  will  not  have  the  same meaning in  the context  of a  Government  servant  sent  on deputation. But  the learned counsel for the appellants drew our attention  to the  decision of this Court in S.S. Dhanoa vs. Municipal  Corporation, Delhi 1981 (3) SCC 431 wherein a Joint Commissioner  in the  Ministry  of  Agriculture  whose services were  placed at the disposal of the Corporation for his appointment  as a General Manager of Super Bazar was not considered as  a person  employed  in  connection  with  the affairs of  the Union.  In that case the Court was concerned with the question as to whether such a person can be said to be a  ’public servant’  within the meaning of clause Twelfth (b) of  Section 21 of the Indian Penal Code and was entitled to the  protection of  Section 197  of the  Code of Criminal Procedure, 1973.  In that  context it  was observed  by this Court that Legally speaking, the Super Bazaars are owned and managed by  the Society  and not  by the  Central Government and, therefore, the appellant was not employed in connection with the  affairs of the Union within the meaning of Section 197 of  the Code  of Criminal  Procedure, 1973.  This  Court pointed out  that the  Joint Commissioner who was deputed to

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work as  a General Manager of Super Bazar did not answer any of the  descriptions of  a  ’public  servant’  mentioned  in Section 21 of the I.P.C. during his period of deputation and therefore was  not entitled to the protection of Section 197 of Code  of Criminal  Procedure. This  decision,  therefore, does not  support  the  contention  raised  by  the  learned counsel for  the appellants.  As we are of the view that the officers, who  had taken  the impugned  disciplinary actions against the  appellants, were the Government servants at the time when  the said  actions were  taken,  the  decision  in Krishna Kumar  Vs. Divisional  Assistant Electrical Engineer and Others  (,979 (4)  SCC 289)  is also  of no  help to the appellants.      It was  next contented  that the officers who had taken action  against   the  appellants   had  no  power  to  make appointments in  Government service  or on civil posts while they were on deputation with the Corporation and, therefore, they could  not have taken any action against the appellants in view  of the  protection afforded  by Article 311. It was submitted that  the authority contemplated by Article 311 is the authority which should have power to appoint a person on a civil post under the Union or a State, as the case may be. We do  not find  any  substance  in  this  contention  also. Article 311  gives protection to a member of a civil service cf the Union or an all-India service or a civil service of a State or to a person holding a civil post under the Union or a  State  against  dismissal  or  removal  by  an  authority subordinate to  that by  which he was appointed. Article 311 does not  provide that  a member  of a  civil service  or  a person holding  a civil  post either  under the  Union or  a State cannot  be dismissed or removed by an authority except the appointing  authority. There  is no requirement that the authority which  takes disciplinary  action must continue to have the power of making appointment to the civil service or on a  civil post  under the  Union or a State. It can be any other authority  so long as it is not subordinate in rank or grade to  the authority  by which  the delinquent Government servant was  appointed. That  is  the  only  requirement  of Article 311  and we  cannot read  anything more  into it. In State of  U.P. vs. Ram Naresh Lal 1970(3) SCC 173 this Court has in  clear terms  held  that  there  is  nothing  in  the Constitution which debars a Government from conferring owers on an officer other than the appointing authority to dismiss a Government  servant provided he is not subordinate in rank to the appointing officer or authority.      Since the  only question  before the  full Bench of the High Court  was whether  the officers  who  had  taken  such actions were  competent to  do so  in view of the protection afforded by  Article 311  of the Constitution and as that is the only  question  which  we  have  to  decide  it  is  not necessary to  deal  with  the  decision  of  this  Court  in Manager, M/s.  Pyarchand Kesarimal  Ponwal Bidi  Factory vs. Omkar Laxman  Thange (1969  (2) SCR 272) wherein it has been held that  the right  of dismissal  vests with  the employer even though  the employer  might have lent their services to the  third  party,  as  in  spite  of  Such  arrangement  he continues to be in the employment of the employer. It may be stated that was a case of private employment. It is also not necessary to  deal  with  the  decision  of  this  Court  in Marathwada University  vs. Seshrao Balwant Rao Chavan  (1989 (3) SCC  132) as  we are  of the  opinion that  the impugned disciplinary actions and the judgment of the  High Court can be sustained  without reference  to Section  34 of  the Road Transport Corporation  Act, 1950  which empowers  the  State Government to  give directions  to a Corporation established

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under the  Act, inter alia, with  respect to recruitment and conditions of service of the employees of  the Corporation.      As  we  do  not  find  any  substance  in  any  of  the contentions raised  on behalf  of the appellants this appeal fails and is dismissed. No order as to costs.