Gobind Ram etc. vs Mandi-Kulu Transport Corporation etc.

Chet Ram Thakur, J.—This revision petition has been filed by Gobind Ram and two others against the judgment and order of the District Judge, Mandi, accepting the appeal of the Mandi-Kulu Road Transport Corporation against the stay order in an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC passed by the Senior Sub-Judge, Mandi, on 5-7-1972, restraining the Corporation from retiring the present Petitioners and some other persons who have not joined as Petitioners for the purpose of this revision.

The Petitioners alongwith others were drivers in the Himachal. Pradesh Government Transport till 1959, when their services were transferred to the Mandi-Kulu Road Transport Corporation (hereinafter referred to as the Corporation) probably on the understanding that they would be governed by the service conditions including pay scales, increments, allowances, promotions and other rights, privileges, pensionary and other pecuniary benefits, as they accrued from time to time in Himachal Pradesh Government Transport Department. But it appears that the Petitioners were not given the same conditions of service. They, therefore, filed a suit in the court of the Senior Sub-Judge for a declaration against the Corporation, Union of India and the Himachal Pradesh Government to the effect that they were on foreign service with Defendant No. 2 and hold lien on their respective substantive posts in the Himachal Pradesh Government Transport and were entitled to the rights of reversion to such substantive posts as they would, now have been entitled to hold, had they not been transferred to the said foreign service, together with all attendant rights of promotions, privileges and other benefits as are admissible under the Fundamental Rules to the employees. In the alternative they prayed for a declaration in their favour against Defendant No. 2 to the effect that they were entitled to a guarantee of the same conditions of service in regard to pay, etc., and for the enforcement of the aforesaid rights they prayed for a mandatory injunction by way of consequential relief directing Defendant No. 2 to fulfil all their obligations in this behalf by giving to the Plaintiffs the said conditions of service including pay scales, allowances, increments and other rights in the same manner as they would have by now been entitled to in Himachal Pradesh Government Transport, had they not been transferred to the said foreign service with Defendant No. 2, with retrospective effect.

This suit, it appears, was filed somewhere in the year 1963 and was decreed only in the year 1967. Thereafter an appeal was preferred to the District Judge by the Union of India and the Himachal Pradesh Government. The appeal was allowed and the case was remanded with specific directions to admit certain documents and to re-write the Judgment as the same did not conform to the requirements of Order 22, Rule 5, Code of Civil Procedure

Thereafter the case had been concluded before the Senior Sub-Judge and arguments had partly been heard when the present Petitioners along with some others, who were also Plaintiffs in the main suit, filed an application under Order 39, Rules 1 and 2 read with Section 151, Code of Civil Procedure, out of which this revision petition has arisen, for an order restraining the Defendant No. 2, i.e. the Corporation from retiring them before the conclusion of the suit. This application was allowed by the learned Senior Sub-Judge on the ground that it might take some months for the conclusion of the case as the matter was a lengthy one and accordingly granted the injunction prayed for. On appeal by the Corporation, the District Judge accepted the appeal and hence this revision by three of the persons out of the Plaintiffs.

It appears that before the learned District Judge the point agitated was that after the superannuation age, an employee retires automatically without any formal order being issued by the employer and he held that the retirement was automatic. Further, he held that the Petitioners, who were Respondents before him, were governed by the Fundamental Rules of the Central Government and in the matter of their retirement the F.R. 56 (a) was applicable, and as such their retirement on superannuation was automatic. Further that in the main suit it was never their contention that they apprehended premature retirement nor was there any such allegation in the injunction application and as such it was not a fit case for issuance of a temporary injunction. The injunction order granted had rather been misused by the Respondent-Plaintiffs, inasmuch as two of them have been able to continue in service beyond their date of retirement which took place on 26-11-1972 and 15-5-1973. Thus what they could not secure under the ordinary rules of service they have been able to secure by obtaining the illegal order regarding stay of their retirement.

I have heard the learned Counsel for the parties. The contention of the Plaintiffs in the main suit was that they were the employees of the Himachal Pradesh Government on deputation to the Corporation, whereas the case of the Corporation was that they were its employees. Any way the Court is not concerned at this juncture to make any observation on this point. It is for the trial Court to decide whether the Petitioners were employees of the Himachal Pradesh Government Transport on deputation to the Corporation or their services were transferred permanently to the Corporation.

Learned Counsel for the Petitioners contends that the Petitioners are drivers and as such they are workmen, and that they are entitled to continue in service upto 60 years under F.R. 56(b). He has also drawn my attention to Rule 56(d) and (j) of the Fundamental Rules and on the basis of these clauses of the Rule he contends that age of superannuation in respect of persons other than the workmen is 58 years and in respect of workmen the age of retirement is 60 years. It is also, in my opinion, not for this Court to determine whether the Petitioners are workmen for the purpose of F.R. 56 (b) because it is not the case which in fact is filed by the Petitioners before the Court. They have come to the Court only for a declaration that they are employees of the Himachal Pradesh Government on deputation and are entitled to be governed by the Civil Service Rules and that they are entitled to the benefits available to the Government servants. In the alternative they have prayed that if they are held not to be the employees of the Himachal Pradesh Government then in that case they shall be entitled to all the benefits and shall be governed by the same rules and conditions of service under which they were governed while they had been in the employment of the Himachal Pradesh Government Transport Department. Therefore, from this it would follow that there is no question of any declaration for retirement age and this question, in my opinion, cannot be decided whether the Petitioners are workmen and that they are entitled to continue in service till they attain the age of 60, as contemplated under F.R. 56 (b) and (d).

The learned District Judge has held that as soon as an employee attained the superannuation age, the retirement is automatic and there was no need for employer to pass any formal orders the learned Counsel for the Petitioner submits that this view is incorrect and he has cited State of Assam and Others Vs. Padma Ram Borah, and Kailash Chandra Vs. Union of India (UOI), But in my view, these authorities are not applicable. The former authority is distinguishable inasmuch as the Government servant was to attain the age of superannuation on 1-1-1961 and before that he was suspended pending the departmental enquiry and this order had the effect of retaining him in service till the enquiry against him was finalised. On 6-1-1961 the Government modified the earlier order made on 22-12-1960 inasmuch as it fixed a period of three months from 1-1-1961 or till the disposal of the departmental proceedings whichever was earlier for retaining the Respondent in service and the period of three months fixed by the order expired on 31-3-1961. Thus the effect of the order of 6-6-1961 was that the service of the Respondent was to come to an end on 31-3-1961 unless the departmental proceedings were disposed of on a date earlier than 31-3-1961. But the proceedings were not concluded before that date and, therefore, his retirement came to an end because the Government had fixed that period. In case departmental enquiry had not been concluded then there was no question of any order and the employee would have retired on 1-1-1961 without any order. There was a specific order retiring him from a particular date. Therefore, it was held that the retirement was automatic and that the service came to an end automatically on 31-3-1961. The latter authority is also distinguishable inasmuch as it says that after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant, and there is no right in the servant to be retained, even if he continues to be efficient. It is true that if the Government does not want to retain a person after the age of 55 then he has to be given a notice. The ordinary age of retirement is 58 years and on attaining this age of 58 years, I am doubtful if the authority is required to give any notice because that is the age of superannuation and it is only in case the Government wants to retain him that it may pass an order giving reasons for his retention in service, otherwise the the retirement is automatic.

The further authority is Chotila Gram Panchayat Chotila v. Jatashankar N. Dave and Ors. 1973 (1) S.L.R. (Guj.) 801. It has been cited to show that so long as the contract of service of Government servant whose services are transferred is not terminated the employee continues to be the State Government servant and the liability of the State Government continues to pay his wagest. The employee has the right to claim his wages from the employer and not from the Municipality or the Panchayat to which his services are lent or hired. Further, it is the State Government which alone can terminate his services and the Municipality or the Panchayat is merely loanee taking benefit of loaned services and has no jurisdiction whatever to put an end to the service of such Government servant. The very point whether the Petitioners in the present case are Government servants or not is involed for which a declaration has been sought and, therefore, this authority at this stage will not be applicable.

Attention has also been invited to Rules 20 to 22 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. Rule 20 makes provisions regarding officers lent to State Governments, etc. It says that (1) where the services of a Government servant are lent by one department to another department or to a State Government or an authority subordinate thereto or to a local or other authority, the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceedings against him. Provided, that the borrowing authority shall forthwith inform the authority which lent the services of the Government servant of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be. Similarly Rule 21 makes provisions regarding officers borrowed from State Governments, etc. These rules, in my opinion, are also not attracted at this stage as the matter is still pending to the effect whether the Petitioners are employees of the State Government or the Corporation. The Corporation, however, says that they are its employees. Therefore, unless the case is decided the Corporation has got a right to take action for retirement, etc. But this is a matter which is not the subject-matter of the suit, and, therefore, in these circumstances no injunction could issue when it was not a matter of the suit pending before the Court.

The further authority is Nanak Saran Srivastava v. State of U.P. and Ors. 1971 (1) S.L.R. (All.) 168. In this case it was held that the appointing authority alone is competent to give notice of retirement and that the authority superior to the appointing authority cannot exercise the power of appointing authority. By this authority, the learned council intends to show that it is only the State Government which is the competent authority, which can retire the Petitioners, and not the Corporation. But, I am afraid, if this point can be decided by this Court, because there is no such case pending adjudication. It is only a miscellaneous application for injunction restraining the Defendants in the suit from retiring the Petitioners. In fact this is not at all a subject-matter of the suit nor is there any prayer in the main suit. Therefore, in the absence of any prayer or any averment in the plaint the Petitioners cannot be heard to say that they are entitled to any injunction because, as stated before, there is no suit in which this prayer can be granted to them. The only things in injunction matters which require consideration by the Court are whether a person has got a prima facie case, he will suffer irreparable injury in the event of not giving a stay order, and in whose favour the balance of convenience is. But these ingredients can only be considered when there is a suit with regard to that particular relief or claim. In the instant case the Petitioners have not come to the Court on the ground that they cannot be retired before the age of 60 or they are workmen to whom the provisions of Industrial Employment (Standing Orders), 1946 apply, or that they are governed under F.R. 56 (b) and as a matter of right they are entitled to continue in service till they attain the age of 60 and that they should not be retired before they attain this age. Their prayer is only for a declaration that they are Government servants and are entitled to all those service conditions under which the Government servants are governed. Therefore, in the absence of any plea, it is not necessary to consider this point whether the Petitioners have got a prima facie cast or that they will suffer irreparable injury, etc. In view of this the authority Gopal Krishan Kapoor and Ors. v. Ramesh Chander Nijhawan and Ors. 1973 D.L.T. 390, is not relevant.

Mr. Bhawani Singh appearing for the Corporation has also contended that the revision is not maintainable inasmuch as there is no question of law involved in the case. Further that there is no plea taken by the Petitioners before the lower Court that the Corporation was an industry so as to avail of the benefit under F.R. 56(b). In my opinion, it is no use to comment whether there any law point is involved so as to to say that the revision petition is competent, because, I have already stated that the petition has arisen out of a miscellaneous application, the subject-matter of which does not form part of the suit nor is there any prayer in the main suit itself. It appears to be quite an independent application inasmuch as the subject-matter is not the same as in the main suit. Unless there is a suit this petition by itself is not competent and on that score also the petition fails.

In view of the above, I am of the opinion, that the learned District Judge was right in accepting the appeal and vacating the stay order passed by the Senior Sub-Judge, which was not a proper order passed in any proceeding in a case, rather, it was a miscellaneous application, quite independent of the suit as the subject-matter was not the same. On these grounds, I, therefore, do not fined any merit and dismiss this revision petition.

No order as to the costs.