Bombay State Road Transport Corporation vs Kamruddin Sadruddin Kazi

The facts giving rise to this second appeal, broadly stated, are that the plaintiff-respondent was employed as a conductor by the State Road Transport Corporation in the grade of Rs. 40-2-70 on 1 December, 1952 and that at the relevant period he was serving at Santrampur. On 18 January, 1955, he was asked to go to Sant Road Station as controller and he proceeded in the State Transport bust to go there. It appears that the security and checking staff of the corporation gave a signal to the bus at Metral stand to stop at Metral stand but he did not stop there. The allegation of defendant-respondent in that respect was that he was not stopping as the plaintiff-appellant was driving the said bus unauthorizedly on

18 January, 1955. On the basis that some other person such as Haribax was driving the bus and as he did not stop that bus, he and one other person Chhagan Virji, the conductor in that bus, came to be chargesheeted on 28 January, 1955 for departmental inquiry. On 3 February, 1955 the conductor Chhagan Virji came to state and that it was this plaintiff-appellant who was driving the bus up to Agwarwada stand and that started an enquiry against him. On 21 February, 1955 he was thereupon chargesheeted on the grounds that he drove the bus without authority; that he drove the bus very fast on seeing the security staff near Metral bus stand and thereby endangered the life of the members of the public; and that he did not stop the bus at Metral stand in spite of a signal given by the security staff of the defendant-respondent corporation. By that notice he was called upon to give his explanation and produce his evidence. The plaintiff-appellant thereupon filed his written statement on 28 February, 1955 and by that he denied the charges levelled against him. The plaintiff had also filed affidavits of some persons in support of his explanation. The Divisional Traffic Superintendent of the corporation considering his explanation, etc., passed an order on 10 March, 1955 whereby he came to be dismissed from service on the charges found to have been established against him. The plaintiff-appellant thereafter moved the higher authorities against the order of dismissal passed against him and since he did not succeed, after giving the requisite notice to the defendant-corporation, filed the Civil Suit No. 7 of 1956 in the Court of the Civil Judge, Junior Division, Santrampur, for a declaration that the order dated 14 March, 1955 dismissing him from service was illegal and void and that he should be deemed to continue in service with the defendant-corporation and for a mandatory direction to reinstate him in service.

The allegations made by the plaintiff-appellant in his plaint were that he was a permanent servant of the defendant-corporation; that the defendant-corporation had framed rules regulating the conditions of service such as Discipline and Appeal Procedure Rules; that the inquiry which was held in respect of the chargesheet given to him was not in consonance with the rules framed by the corporation; that in fact it was in violation of the rules as also the principles of natural justice; that consequently the order of dismissal passed against him was illegal and ultra vires and that the defendant-corporation was bound to reinstate him in service.

The defendant-corporation resisted the suit inter alia contending that the Court had no jurisdiction to try this suit, that the civil Court cannot interfere in the internal affairs of the corporation and that it cannot revise the final decision of the corporation; that the plaintiff was only a temporary employee; that the allegations made by the plaintiff were not true; that the plaintiff was given an opportunity to defend his case; that the defendant-corporation has framed the Discipline and Appeal Procedure Rules; that they were followed during the inquiry against the plaintiff; that the inquiry thus held was proper and in accordance with the rules; that the order of dismissal passed against him was neither improper nor in any way illegal or ultra vires as alleged; and that the suit may be dismissed with costs.

On those pleadings, the learned civil Judge raised the issues at Ex. 11 in the case and, in his opinion, the Court and jurisdiction to hear the suit; that the notice given to the plaintiff was valid; that the order of dismissal passed against the plaintiff by the defendant-corporation was not legal and was void; that the plaintiff was entitled to the declaration sought for except in respect of the prayer that he continues in service and that in the result, he passed a decree declaring the order of dismissal dated 14 March, 1955 as illegal and void, and directed the defendant-corporation to reinstate him in service. The parties were directed to bear their own costs. Feeling dissatisfied with that order dated 15 September, 1958, the defendant-corporation filed Regular Civil Appeal No. 56 of 1958 in the Court of the District Judge, Panchmahals at Godhra. The plaintiff had also preferred Regular Civil Appeal No. 55 of 1958 in respect of a declaration which was not allowed by the learned trial Judge about his continuance in service.

Since both the appeals were out of a common judgment, they were heard together, and a common judgment in Civil Appeal No. 55 of 1958 was recorded by the learned District Judge. The appeal preferred by the defendant-corporation came to be dismissed. The other appeal filed by the plaintiff came to be allowed and that way the declaration that the plaintiff continues to be in service of the defendant-corporation was given in addition to the declaration given by the lower Court which was also confirmed. While the appellant was directed to pay the costs of the respondent in Appeal No. 55 of 1958, the parties were directed to bear their own costs in Appeal No. 56 of 1958. The learned District Judge found that the plaintiff-respondent was officiating as conductor from 1 December, 1952 in the employment of the appellant-corporation and in his opinion there is not even a semblance of inquiry and the order of dismissal passed against him cannot be supported even on the grounds of natural justice. In Para.

10 of his judgment, he, however, observed that the rules beginning from p. 98 of the State Transport Manual, Vol. II, showed certain dates in the margin of each rule showing that on those dates they were either notified or those clauses were added and came into effect. All those dates shown therein were subsequent to the date on which the order of dismissal of the plaintiff was passed, viz., on 14 March, 1955. It was that way that he observed that

It is not clear that these rules were in force on the date of the inquiry and in this view I have viewed the matter from the point of view of the principles of natural justice.

In the circumstances, he found that the order of dismissal passed by the appellant was illegal and void. Against that decision, the appellant-defendant has come in appeal.

The point made out by Sri Shah, the learned advocate appearing for the appellant-corporation, is that the plaintiff-respondent has taken out the action the allegation that he was bound by the rules and regulations made by the corporation, and for the purpose of any action on account of his misconduct has to be taken against him, under the Discipline and Appeal Procedure Rules made by the State Road Transport Corporation (sic).

The further allegation is that the inquiry held against him in respect of his misconduct was in contravention of those rules and regulations, and when that is so, it was incumbent upon him not only to produce those rules and regulations, that governed him, but to establish as a fact as to which of those rules had come to be violated by the enquiry officer who had passed the order of dismissal against him. The issue raised in the trial Court was also to the effect as to whether the order passed against him was shown to be illegal, and it is that way that the onus of proof before he is entitled to claim any reliefs sought for in the suit, is on the plaintiff and he has to prove the same. That position can hardly be challenged having regard to the rules of evidence as contemplated under Ss. 101 to 103 of the Indian Evidence Act. It is no answer to say as urged by Sri Barot for the respondent, that the defendant-corporation ought to have produced the said rules and regulations or that since the defendant-corporation states that it has followed the rules and regulations in initiating and holding the inquiry against the plaintiff's misconduct, it should not only produce the same but show that it has in fact followed and not violated nay rules. The initial burden obviously lies on the plaintiff, and it is only after he is able to show that certain rights accrued to him under those rules, and certain obligations are imposed on the corporation thereunder and that it has ignored them in acting in violation thereof so as to entitle him to have any order passed by the corporation set aside, that the onus of proof would change on to the corporation. While one would no doubt expect the corporation to produce such rules, but one cannot say that it was bound to do so.

The plaintiff could have called upon the corporation to produce the same, and point out as how and in respect of which rules, the enquiry officer committed any error. In fact, some time was obtained from me for that purpose and the matter had come to be adjourned on that account. But no use appears to have been made that way the matter has to be judged on the evidence as it stands on record of the case. The plaintiff has not been able to show any such thing in the case.

It was then urged by Sri Shah for the appellant that the relations between the plaintiff and the defendant-corporation could be taken as that of a servant and master and on that basis, it is hardly necessary to have any such judicial or even quasi-judicial type of inquiry before taking action against such a person who was in its temporary employment. No rules of natural justice as are required to be followed in case of a civil servant in the employment of the State or Union Government have to be followed. The inquiry was held in the sense that he was informed of the charges against him, and was asked to state what he had to say in that respect. He had offered his statement and even affidavits of his witnesses, and it was on consideration of all that, that the enquiry officer had passed the order of dismissal against him. Such an inquiry can be said to be enough. On the other hand, it was said that he was a servant of the statutory corporation and that under S. 35 of the Act 25 of 1950, he was a public servant. He was, thus, not an ordinary domestic servant having relations of a servant and master as urged by Sri Shah, and that rules of natural justice must be followed before his services can be terminated by an order of dismissal as done against the plaintiff.

Now it is true that the defendant-appellant is a statutory corporation. Under S. 3 of the Road Transport Corporations Act, the State Government is empowered to establish a road transport corporation in the State. It is that way that the defendant-corporation has come into existence under Bombay Act 25 of 1950 and since the plaintiff was the employee of the defendant-corporation his services would be governed by the provisions of the said Act. Section 35 of the Act provides that all the members of the board of the corporation and also officers, and servants of the corporation whether appointed by the Central Government or the State Government or the corporation, shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of S. 21 of the Indian Penal Code. It is, therefore, no doubt true that the defendant-corporation is a statutory corporation and as authorized under S. 45(c) of the principal Act to frame rules and regulations in relation to the servants, officers, etc., it has framed the case, such as the Discipline and Appeal Procedure Rules governing persons in its employment. It is also true that the officers and servants of the corporation are public servants as contemplated under S. 21 of the Indian Penal Code. All this, however, does not make the plaintiff a civil servant either of the Union or the State Government so as to entitle him to have the benefit arising under Act. 311 of the Constitution of India. That position has not been disputed before this Court and consequently on that basis or even on its analogy, he cannot claim the type of quasi-judicial inquiry following particular rules of evidence and procedure, as we find various decisions governing cases of such Government servants. All decisions cited by the learned appellate Judge relate to orders passed against such a servant under Art. 311(3) of the Constitution of India, and he has also proceeded on that basis in the belief that the plaintiff must get an inquiry of that character and if it suffers from any of such rules of natural justice as referred to in the case referred to herebelow, he is entitled to have the order of dismissal set aside. I would refer the principles of natural justice required to be followed in such inquiry as laid down in a case of State of Madhya Pradesh v. Chintaman Sadashiva Waishampayam [A.I.R. 1961 S.C. 1623]. Those principles, as laid down by their lordships of the Supreme Court, are that rules of natural justice require :

(a) that a party should have the opportunity of adducing all relevant evidence on which he relies,

(b) that the evidence of the opponent should be taken in his presence,

(c) that he should be given the opportunity of cross-examining the witnesses examined by that party, and

(d) that no materials should be relied on against him without his being given an opportunity of explaining them.

The case further lays down that the opportunity must be afforded firstly at the stage of the enquiry after the charge is supplied to him, as also after, i.e., at the second stage when punishment is about to be imposed on him. With these principles there can be on dispute whatever but, as urged by Sri Shah, they would apply in a case where the person affected is a Government servants as contemplated under Art. 311 of the Constitution of India and not such as the one as we have in this case, not falling thereunder, though no doubt he may happen to be a public servant under S. 35 of the Act, when he was alleged to have committed misconduct while in discharge of his duty as servant of the corporation.

The point that arises to be considered is as to how such a person who was serving in the defendant-corporation would be governed and what would be the position in case such principles referred to in the case cited hereabove have not been fully observed. As already pointed out hereabove, it is an undisputed fact that there existed some rules and regulations such as Discipline and Appeal Procedure Rules framed by the corporation governing the enquiries, etc., in respect of the person serving in the corporation. On the evidence and material as it is before this Court, these rules and regulations are not before the court. From the judgment of the learned District Judge it appears that a reference is made to the State Transport Manual, but, as observed by him, the rules referred to therein could not have been in force on the date of the inquiry and, thus, it is not possible to find out as to what type of inquiry was required to be made and what rules and procedure were to be followed therein. Thus, it cannot be said that the defendant-corporation or its officer acted in utter disregard or in violation of any such rules, so as to say that the order passed by the enquiry officer is illegal or improper. The learned District Judge also does not appear to hold the order of his dismissal illegal on that account.

The basis of the suit, therefore, substantially falls through. The plaintiff may obviously have to suffer for having taken no suitable steps and remaining negligent having regard to the rules of evidence. The non-production of these rules by the defendant-corporation may not be appreciated by the Court, but after all rules of evidence govern the case and it is the party who wants to claim the reliefs on the basis of some such rules, has to satisfy the Court by production there of and by establishing the breach or violation of the same by the defendant-corporation. This is not a case where no rules existed in relation to the enquiries to be made against the servants of the corporation that one is required to go to consider as to whether the rules of natural justice can apply.

In such circumstances, a broad and general proposition laid down in a case of Ram Piara v. Municipal Committee [A.I.R. 1955 Pun. 125] would be of assistance in the present case. The pertinent observations run thus :

The relationship of master and servant comes into existence when a person known as the master and a person known as the servant come to an agreement, the one to employ, the other to serve. The agreement, whether express or implied usually contains stipulation both in regard to the period of employment and the remuneration to be paid therefor. If the contract is for a fixed period, it is not open to the master to discharge the servant before the end of the stipulated period unless he is able to satisfy the Court that the servant has violated the provisions of the contract or has failed to discharge the duties which were required of him, is guilty of misconduct or that there is some other good reason for his dismissal. If, however, the contract is not for a particular period and if there is no contractual or statutory restriction on the power of the master to terminate the services of the employee, the master enjoys an absolute power to put an end to the personal relations created by the employment at any time and for any cause without rendering himself liable to the payment of damages. It may thus be stated as a general proposition that in the absence of a contractual or statutory provision to the contrary, a right vests in the master to terminate the services of his servant at any time without giving him any reasons for the same.

This principle has been later on quoted with approval in another case of Kishori Lal Batra v. Punjab State [A.I.R. 1958 Pun. 402] wherein it has been observed that : such a right can be circumscribed only by a contract or statutory provision to the contrary and that since there is none, master is not bound to afford opportunity for showing cause to a servant whom he wants to remove.

In other words, the position of his plaintiff who, as already pointed out hereabove, is in the service of the statutory corporation, would be governed by the rules and rules and regulations and if no such rues or regulations are before us, their position cannot be better than that of an ordinary master and servant and it would, in that event, be perfectly open for master to terminate his services or even dismiss him from service without assigning any reasons for the same.

In this connexion, I will refer to a case of Bibhuti Bhusan Ghosh Vs. Damodar Valley Corporation and Others, . In that writ petition, the petitioner was an assistant engineer appointed by the corporation on certain terms and conditions contained in the agreement. One of the terms was that the service of the petitioner might be terminated by the corporation without previous notice if the corporation was satisfied that the employee was unfit and was likely to continue as such for a considerable period by reason of ill-health, or if the corporation or its offices having proper authority, found the petitioner to be guilty of insubordination, intemperance or other misconduct or breach or non-performance of any of the provisions of the agreement. Some time thereafter he had committed misconduct and was called upon to show cause why he should not be dealt with for the same. An oral enquiry was held and ultimately he came to be dismissed from service. It so happened that the corporation had not framed any rules or regulations in respect of disciplinary and departmental proceedings likely to be taken against its officers. The question arose as to what would be the effect or as to how he can be dealt with in such circumstances. The observations of their lordships in the case serve as an answer to the point involved in this case and they run thus :

There can be no doubt, however, that the respondent-corporation is a statutory and public body entrusted with the discharge of public duties. But the question is whether in holding a departmental enquiry into the conduct of one its officers it is under any duty to act judicially or quasi-judicially.

The Damodar Valley Corporation Act has not expressly imposed any such duty. It is only in the case of a dismissal of members of the corporations that an obligation of such a nature has been cast upon the Central Government by S. 51 of the Act. The Act however contemplates making of regulations under S. 60 of the Act but no regulation has been framed as yet although about four years have elapsed since the commencement of the Act. It is clear from the terms and conditions of service of the petitioner that it was contemplated by the petitioner and the corporation at the time the agreement of service was entered into, that regulations framed would govern matters which were not provided for in the contract of service. But there is nothing in the Act which makes it incumbent upon the corporation to make regulations imposing a duty on the corporation to hold a judicial or quasi-judicial enquiry into the charges of misconduct of its officers. The regulation, if framed, might have provided for an enquiry of a very summary nature or might not have provided for any enquiry at all or might have provided for an enquiry merely for informing the minds of the authorities of the corporation concerned. It is true that the corporation is at the present moment following the procedure analogies to that provided by the Government rules, but there is no obligation on it created by state to do so. It may refuse to do so at any time.

In other words, it was said that since there was no duty either express or implied in the corporation to act judicially or quasi-judicially in matters of dismissal of its employees, no such writ can be issued against the order passed. The same position might as well arise in the present case as we do not down as to whether there was any duty or obligation placed on the enquiry officer by any such rules or regulations framed under the Act that the shall act judicially or quasi-judicially in relation to any such enquiry. The enquiry may have been even provided for the satisfaction of the head of the department under whom the plaintiff was in service, and thus in the absence of any such rules or regulations pointed out, the enquiry officer can be said to have been justified in acting as is done in the present case. In fact a notice containing the allegations regarding his misconduct was issued to the plaintiff. It gave out the details, as already stated hereabove,

(1) about his driving the bus without authority,

(2) about his driving the bus with great speed so as to endanger the life of the members of the public,

(3) about his having not stopped the bus near Metral stand in spite of a signal by the security staff as he thought that he would be caught redhanded in the act of driving the bus unauthorizedly.

By that notice he was called upon to give his explanation and produce his evidence. He had submitted his written explanation and produced evidence in the form of affidavits of some persons in support thereof. The Divisional Traffic Superintendent had with him also the report of the Assistant Traffic Superintendent who had held a preliminary enquiry in that connexion. Taking all that into account, he came to the conclusion and passed an order dismissing the plaintiff from service. In the circumstances, as already pointed out hereabove, it cannot be said that this enquiry was violative of any of the rules and regulations governing the plaintiff while in service of the defendant-corporation and further he cannot justifiably claim to have all those principles of natural justice referred to in the Supreme Court case referred to hereabove, in the same manner as contemplated in respect of public servants in the service of a State or Union having regard to the provisions contained in Art. 311(2), Constitution of India. The only thing that he would, in fairness, be entitled to claim and that too provided that there were no such rules and regulation, would be just a notice or an intimation calling upon him to show cause as to why he should not be dealt with as deemed proper by the defendant-corporation in respect of the misconduct alleged against him. That would be on the principle that a man should not be condemned upheard. It cannot be said that he is entitled to the full hearing in the sense that he was before a judicial or quasi-judicial body in relation to an enquiry. To that he would become entitled provided, as I said above, the rules and regulations laid down that the enquiry shall be held in the manner so as to justify the Court to style it as a judicial or quasi-judicial enquiry. Reliance was placed by Sri Barot, the learned advocate for the respondent, on a case of Mohandas Mulji Sicka v. Collector of Bombay [49 Bom. L.R. 414], to say that the enquiry officer has to act in accordance with natural justice and he has failed to do so, viz., not examining the witnesses in his presence on whom reliance was placed by the enquiry officer, or about considering their statements recorded behind his back, giving that way no opportunity to cross-examine them. Now the principles laid down in that case may not involve any controversy. What was held in that case was that where a non-judicial body or person is saddled by the legislature with quasijudicial duties, it or he must, first of all, follow the procedure, if any, which the legislature has prescribed for it or him, and if and in so far as no such procedure is prescribed, it or he must act ""in accordance with natural justice,"" that is to say, that it or he must hear the parties, or, at all events, the party against whom it or he is giving a decision fairly and must decide the matter itself or himself after due consideration. Now, in the present case the enquiry was to be carried out in pursuance of any of the rules and regulations framed under the Corporation Act, and since there is no material on record to know as to what was provided therein with regard to any such enquiry, or as to any violation of the procedure prescribed in an enquiry to be made, the question of following rules of natural justice would not arise. That would arise if no rules were framed by the defendant-corporation. The rules of natural justice would arise in the absence of any rules or regulations, and even that has been followed by the enquiry officer in a certain measure, as to give him an opportunity to show cause why he should not be dealt with on grounds of misconduct, and in response, he had filed his statement supported by affidavits of his witnesses, and all that was considered by enquiry officer and decisions

given. That may well be enough in the circumstance of a case in the absence of any specific procedure provided for the purpose. Both the Courts herebelow have lost sight of this aspect of the case and have proceeded on the basis that the rules of natural justice as applied to the Government servants falling under Art. 311 were as well applicable as the plaintiff was in service of a statutory corporation. In these circumstances, the order passed by the Courts herebelow cannot be sustained and shall be set aside. In the result, the appeal shall be allowed and the decree passed in the suit shall be set aside. The plaintiff's suit shall stand dismissed. In the circumstances of the case, there shall be no order as to costs in all the Courts.

The appeal is allowed and the decree passed in the suit is set aside. The plaintiff's suit shall stand dismissed. There shall be no order as to costs in all the Courts.