PETITIONER:
MYSORE STATE ROAD TRANSPORT CORPORATION
Vs.
RESPONDENT:
BABAJAN CONDUCTOR & ANR.
DATE OF JUDGMENT08/02/1977
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
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
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:
"(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
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
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
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