Amarendra Nath Mukherjee v. D. V. C. — 1970 DIGILAW 148 (CAL)

Judgment 1. THIS Rule, issued on an application under Article 226 (1) of the Constitution, arises out of a disciplinary proceeding now pending against the petitioner at the instance of the Damodar Valley Corporation and involves a short and interesting question of law as to whether the statutory body could proceed with a disciplinary proceeding against a person who ceases to be its employee pending the proceedings. 2. THE respondent No. 1, the Damodar valley Corporation (hereinafter referred to as the said Corporation) is a statutory body and a body corporate incorporated under Section 3 of the Damodar Valley Corporation Act, 1948 (hereinafter referred to as the said Act. Under Section 6 (3) of the said Act, the Corporation appoints officers and servants and Section 7 provides : "the pay and other conditions of service of the officers and servants of the corporation shall. . . . . . (b) as respects the other officers and servants be such as may be determined by regulations. " The said Corporation in exercise of its powers under Section 60 of the said Act had framed statutory regulations with the previous sanction of the Central government governing the recruitment, conditions of service, pay, allowance, discipline, conduct and retiring benefits of the employees of the corporation. Such Regulation is called Damodar Valley Corporation Service Regulations (hereinafter referred to as the said Service Regulations. Chapter 8 of the said Service Regulations provide for the rules regarding conduct and discipline including the procedure to be followed for imposition of any penalty. The petitioner entered the service of the said Corporation in the year 1951. He was appointed as an Assistant purchase Officer on a contract for a term of three years with effect from March 20, 1951. The relationship between the parties was to be governed primarily by the terms of the agreement. There was no term in the contract providing how the Corporation can take any disciplinary action but Clause 13 of the agreement provided as follows : "in respect of any matter for which provision has not been made in this agreement, the provisions of the relevant rules or regulations of the Corporation shall apply. There was no term in the contract providing how the Corporation can take any disciplinary action but Clause 13 of the agreement provided as follows : "in respect of any matter for which provision has not been made in this agreement, the provisions of the relevant rules or regulations of the Corporation shall apply. " By a fresh agreement dated August 28, 1958 service of the petitioner was extended for a further term of two years on a higher pay as Assistant Controller of Purchase but on same terms and conditions as incorporated in the earlier agreement of 1951 subject, however, to the agreement for its extension. It is not disputed that by similar successive agreements petitioner's service under the said Corporation was extended from time to time and gradually on higher scale of pay and on higher ranks. Last of such extension was made in terms of an officer dated March 21, 1964. By the same petitioner's service was extended from March 1, 1964 to December 1, 1966. Such extension was made not only on existing basis, but it was further provided that in all matters concerning the service under the renewal offer the petitioner would be governed by the Damodar Valley corporation Service Regulations and other relevant regulations and orders of the corporation for the time being in force. There is no dispute between the parties that in matters of discipline the parties are to be governed by the provisions of Chapter 8 of the said Service Regulations. 3. ON September 30, 1965 a chargesheet was issued against the petitioner for failure to maintain absolute integrity and devotion to duty for certain alleged irregularities in the matter of placing certain orders for supply of spare parts with Messrs. Eastern machinery and Trading Corporation. In this Rule we are not concerned with the merits of the allegation made against the petitioner. The chargesheet itself indicates that the said corporation was proceeding under Chapter of the said Regulations. The petitioner submitted an explanation to the charge-sheet on February 25, 1966. The General Manager of the Corporation by an order dated August 10, 1966 appointed the fourth respondent to enquire into the charges in accordance with procedure laid down in Regulation 98 of the said Service Regulations. The petitioner submitted an explanation to the charge-sheet on February 25, 1966. The General Manager of the Corporation by an order dated August 10, 1966 appointed the fourth respondent to enquire into the charges in accordance with procedure laid down in Regulation 98 of the said Service Regulations. Respondent No. 4 issued several notices intimating sitting of the said disciplinary enquiry but it is not disputed that no effective proceeding was taken prior to December 1, 1966. In the meantime however the said Corporation served a notice upon the petitioner on August 20, 1966 intimating that it had decided to release the petitioner from service on the expiry of his present term of employment on December 1, 1966. It is also not disputed that with effect from the said date the petitioner's service came to an end and the petitioner ceased to remain a servant of the said Corporation. 4. IT is at this stage on January 14, 1967 that the petitioner made a representation that as he ceased to remain any longer a servant under the said Corporation, the Corporation has no further jurisdiction to proceed with the disciplinary proceedings against the petitioner. The Corporation, however, did not agree with the view taken by the petitioner or accept such a position in law. The petitioner was informed by a letter dated February 4, 1967 that in view of certain Government of India's decision under Article 351 of the Civil Service Regulations the Corporation is within its rights to proceed with the disciplinary proceedings. The decision of the Government of India referred to in the said letter is really nothing else than the provisions of Article 351a of the Civil Service Regulations. The relevant part of the said Regulation is set out hereinunder. The decision of the Government of India referred to in the said letter is really nothing else than the provisions of Article 351a of the Civil Service Regulations. The relevant part of the said Regulation is set out hereinunder. "the President further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if in a departmental or a judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement Provided that- (a) such departmental proceedings if instituted while the officer was in service whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this Article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. . . . . . ". It is in the background of the aforesaid facts that the petitioner moved this Court and obtained the above Rule disputing the authority and jurisdiction of the respondents to proceed with the disciplinary proceedings and praying for setting aside the charge-sheet, the order for enquiry and the notices fixing the enquiry. This Rule is being contested by the respondents who have filed an affidavit-in-opposition. The facts set out hereinbefore, however, are not disputed by the parties. 5. MR. Sen appearing in support of this Rule has raised two points. In the first place, Mr. Sen has contended that the entire disciplinary proceeding is liable to be set aside inasmuch as it had not been validly initiated. Or in other words, Mr. Sen contends that the petitioner being a Class I Officer drawing a scale minimum whereof is Rs. 600, the competent authority is the Corporation and as such the Director of Personnel and the Deputy Secretary had no jurisdiction to issue the chargesheet. So, according to him, a proceeding based on such a charge-sheet is wholly without jurisdiction. Mir. Sen contends that the petitioner being a Class I Officer drawing a scale minimum whereof is Rs. 600, the competent authority is the Corporation and as such the Director of Personnel and the Deputy Secretary had no jurisdiction to issue the chargesheet. So, according to him, a proceeding based on such a charge-sheet is wholly without jurisdiction. Mir. Sen has in the second place contended that a disciplinary proceeding can proceed so long as there exists a relationship of master and servant or where, under any statutory Rule the master is otherwise authorised, even after lapse of relationship pending such proceedings. According to Mr. Sen, the respondents have no authority to proceed against the petitioner when he ceased to be a servant under the Corporation but still they are proceeding on an erroneous misreading of the provisions of Regulation 351a in holding that the said Regulation conferred an authority on the Corporation to proceed with a disciplinary proceeding against an employee whose contract of service had come to an end. 6. MR. Mukherjee appearing on behalf of the respondents has contested each of these two points raised by Mr. Sen and has further raised a preliminary objection that an application under article 226 (1) of the Constitution is not maintainable as against the said Corporation. If Mr. Mukherjee succeeds in his preliminary objection then this application must fail on the ground of its non-maintainability; so it is necessary to dispose of this objection at the very outset. Mr. Mukherjee's preliminary objection is based on two grounds. Firstly according to him, the Corporation is not in any way amenable to the writ jurisdiction of this Court and secondly, when the dispute centres round the terms of contract between the parties an application under Article 226 of the Constitution is not an appropriate remedy. Neither of those two objections raised by Mr. Mukherjee impresses me in any manner. Mr. Mukherjee's objection that a Corporation like the present one is not at all amenable to writ jurisdiction is too wide a proposition to be accepted. In my view the law is now well settled that such a Corporation can very well be subjected to a writ to compel it to discharge its statutory obligations or to act within the limits of the statute by which it is incorporated. In my view the law is now well settled that such a Corporation can very well be subjected to a writ to compel it to discharge its statutory obligations or to act within the limits of the statute by which it is incorporated. If any authority is needed reference may be made to the decisions of the Supreme Court in the cases of (1) S. R. Tewari v. District Board, Agra, AIR 1964 SC 1680 , (2) Life Insurance Corporation of India v. Sunil Kumar, AIR 1964 SC 847 and (3) Dock Labour Board v. Jaffar Imam, AIR 1966 SC 280. The following observation in a still later case of (4) Praga Tools Corporation v C. V. Imanual, AIR 1969 SC 1306 would be a complete answer to this objection of Mr. Mukherjee "an order of mandamus is, in form, a command directed to a person, Corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of public duty. It is however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus ran issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or Corporations to carry out duties placed on them by the statutes authorising their undertakings. " 7. MR. Mukherjee relies on a bench decision of this Court in the case of (5) Life Insurance Corporation v. Nilratan Banerji (F. MA. 18 of 1970 disposed of on 26.6.70) 75 CWN 26 to support this contention of his. But this decision has not gone so far as to hold that no writ lies against a corporation like the present one, it has only been held that when a servant is dismissed by the Corporation in breach of its regulation it cannot be said that dismissal is in breach of such statutory obligation as would entitle this Court to set aside the same by issuing a writ the said decision really proceeds on the decision of the Supreme Court in the case of (6) Executive Committee of 17. P. Warehousing Corporation v. C. R. Tyagi (Civil Appeal No. 559 of 1967 disposed of on 8. 9. 69. If we analyse the Supreme Court decision we only find that what the Supreme Court has substantially laid down is that when a Corporation dismisses an employee in breach of a regulation framed by it under the statute, such dismissal however wrongful would not be a nullity and as such beyond the purview of the bar under Section 14 (1) (b) of the specific Relief Act. The distinguishing aspect is the existence of relationship of master and servant on the date of dismissal and the relief being directed to the restoration of such relationship although such a relief is normally barred by the Specific Relief Act. 8. BUT in the present case the petitioner contends that he is no longer a servant of the Corporation and the Corporation is acting without jurisdiction in trying to proceed against him in discipline : The petitioner is disputing the decision of the Corporation as ultra vires. I am unable to hold that when such is the challenge, the application under Article 226 of the Constitution would still be not maintainable. Petitioner's challenge is not solely based on the regulation; according to him under Section 7 of the Act of incorporation, the Corporation may proceed with a disciplinary proceeding as under the regulation against an employee but such regulation itself would be inapplicable to a person who is no longer en employee and such a conclusion follows from the terms of the said Section 7. In. my view Mr. Sen can rightly rely on the decision in the case of (7) Vine v. National Dock Labour Board (1956) 3 All. E. R. 939 to support the maintainability of this application. The other part of Mr. Mukherjee's preliminary objection is equally unsubstantial. It is true that the petitioner was serving the Corporation under an agreement which agreement governed a part of the relationship between the parties. It is also true that one of the terms of the said agreement provided that in matters not provided for in the agreement the parties would be governed by the statutory regulations. There is no dispute between the parties that there is nothing in the agreement which provides how a disciplinary action can be taken by the employer Corporation against the employee, the petitioner, except under the Regulations. Mr. There is no dispute between the parties that there is nothing in the agreement which provides how a disciplinary action can be taken by the employer Corporation against the employee, the petitioner, except under the Regulations. Mr. Mukherjee contends that when such service Regulations had been invoked by the agreement itself the obligations become contractual and non-fulfilment of such regulations by the Corporation would only mean non-fulfilment of a part of the contractual obligation for the enforcement whereof there can be mo writ issued as against the Corporation. I am unable however to accept this contention of Mr. Mukherjee. In my view in the present case, petitioner's objection is for more fundamental; his objection is not limited even to a claim that the Corporation is not fulfilling its obligations under the regulation whether statutory or contractual as pointed out earlier he is disputing the very jurisdiction in law of the statutory body to proceed against him in discipline. On my conclusions as above I must overrule the preliminary objection raised by Mr. Mukherjee. 9. GOING on to consider the first point raised by Mr. Sen it now appears from the relevant documents disclosed by the respondents in their affidavit in opposition that the Corporation had validly delegated its power regarding disciplinary action in favour of the General Manager and the Secretary. So under and by virtue of this delegation it was lawful for the General manager to initiate the proceeding for disciplinary action as against the petitioner and that has exactly been done in the present case because it appears from paragraph 16 of the affidavit-in-opposition that the Director of Personnel, and Deputy Secretary issued the charge-sheet in terms of the direction of the General Manager as embodied in the office order dated September 25, 1965. In this view there is little substance in the first point raised by "Mr. Sen and I must overrule the same. 10. THE second point raised by Mr. Sen is, in my view, a point of great substance. It is but fundamental that the master has the authority to proceed with a disciplinary proceeding against its servant so long as the servant remains in service. Sen and I must overrule the same. 10. THE second point raised by Mr. Sen is, in my view, a point of great substance. It is but fundamental that the master has the authority to proceed with a disciplinary proceeding against its servant so long as the servant remains in service. If the servant goes out of service and the relationship of master and servant ceases to exist, the master can no longer proceed against the servant in disciplinary proceedings unless, of course he is entitled to do so under the provisions of a statute or statutory rules. Reference may be made to the Special Bench decision of this Court in the case of (8) M. N. Bagchi v. Chief Secretary, 65 CWN page 361. It appears to me that the respondents themselves did not dispute this principle so that when the petitioner raised an objection to the continuity of the disciplinary proceedings after December 1, 1966 the respondents fell back on Regulation 351a of the Civil Service Regulations referred to hereinbefore. There is some dispute between the learned Advocates as to whether the said Article 351a of the Civil Services Regulation is at all applicable in governing the relationship between the said Corporation and its employees. Mr. Mukherjee, however relies on Regulation 6 of the Service Regulations of the Corporation which provides "that any matter not provided for in the said Service Regulations shall, until requisite provisions in that behalf are made in" the said Regulations be dealt with and disposed of in accordance with the Rules and the orders issued from time to time by the central Government in relation to similar matter." I shall assume for the present purpose that Regulation 6 of the said Service Regulation does invoke Article 351a of the Civil Service regulations. But even then, I am of the view, that the said Article confers no authority to the said respondent corporation to proceed with the disciplinary proceedings against the petitioner. I have come to this conclusion because Article 351a on its terms can have no application whatsoever to a case like that of the petitioner. Article 351a proviso (a) no doubt authorises continuance of a disciplinary proceeding started against a Government servant before he had gone on retirement. I have come to this conclusion because Article 351a on its terms can have no application whatsoever to a case like that of the petitioner. Article 351a proviso (a) no doubt authorises continuance of a disciplinary proceeding started against a Government servant before he had gone on retirement. Undoubtedly this proviso is a clear authority which confers jurisdiction to proceed with a disciplinary proceeding notwithstanding the fact that the employee concerned ceases to remain in service and goes on retirement. But the proviso should not be read bereft of the main Article. That provision reserves in the President two-fold rights, namely (a) withholding or withdrawing a pension or a part of it and (b) ordering recovery from pension any pecuniary loss caused to the Government if in a departmental proceeding the pensioner is found guilty of grave misconduct or negligence. Therefore Clause (a) of the proviso contemplates a case of a departmental proceeding referred to in the main provision. Necessarily where the departmental proceeding is not one of the character as referred to in Article 351a the proviso ran have no application. Or in other words the scheme of Article 351a read with the proviso is that as a result of a disciplinary proceeding carried on against a Government servant even after his retirement, if he is found guilty of grave misconduct or negligence, the president can still impose the penalty of withholding the pension or realising the pecuniary loss out of the pension. It is only for the enforcing of this obligation that clause (a) of the proviso empowers continuance of the disciplinary proceedings even after the Government servant has gone on retirement. In my view, Mr. Sen is perfectly right when he contends that bow can this clause be made applicable to an employee of the said Corporation who has not gone on any retirement and who is not entitled to any pension whatsoever. According to Mr. Sen. by the provision of this Article 351a neither any penalty can be imposed nor anything realised from the petitioner who has ceased to remain a servant of the Corporation. I am in complete agreement with Mr. Sen that Article 351a of the Civil Service Regulation can have no application to a case like that of the petitioner and the decision in this respect of the respondents is clearly erroneous in law Further Mr. I am in complete agreement with Mr. Sen that Article 351a of the Civil Service Regulation can have no application to a case like that of the petitioner and the decision in this respect of the respondents is clearly erroneous in law Further Mr. Sen very rightly points out that the Corporation though proceeding with a disciplinary proceeding under the Regulations, is oblivious of the position that it can impose no penalty whatsoever on the petitioner. Mr. Mukherjee appearing for the Corporation too is unable to controvert this position. Taking all these matters into consideration I have come to the conclusion that corporation's right to proceed with the disciplinary proceedings has come to an end under Section 7 of the Act as soon as the petitioner ceased to be an employee under the Corporation and the present proceeding is wholly ultra vires its powers under the statute. On the conclusion as above this application succeeds and the Rule is made absolute. Let a writ in the nature of certiorari issue quashing the decision of the respondents to the effect that the disciplinary proceedings as against the petitioner still proceed. Let a writ in the nature of mandamus do issue commanding the respondents to forbear from proceeding any further with the disciplinary proceedings started on the charge-sheet dated September 30, 1965 as against the petitioner any further. This order, however, will not affect any such disciplinary proceedings as against other persons. There will be no order for costs.