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1972 DIGILAW 241 (ALL)

R. B. Varma v. Food Corporation of India

1972-05-19

K.N.SETH, SATISH CHANDRA

body1972
JUDGMENT K.N. Seth, J. - The appellants challenged the order of suspension passed against them through two separate petitions under Article 226 of the Constitution of India giving rise to the above noted appeals. The question involved in both the appeals is substantially the same, they may conveniently be disposed of by a common judgment. 2. The Food Corporation of India (hereinafter called the Corporation) was constituted by an Act of Parliament (Act No. XXXVII of 1964) as a body corporate and its management was vested in the Board of Directors. S. V. Badlani was appointed Assistant Director of Food in the Department of Food in the Ministry of Food and Agriculture by the President of India. R. B. Verma was a clerk in the Ministry of Food and Agriculture. Their services were placed at the disposal of the Corporation. By an order dated 11th August, 1971, S. V. Badlani was placed under suspension by the Managing Director of the Corporation. R. B. Verma was placed under suspension by an order of the Senior Regional Manager dated 1st February, 1971. They challenged the orders of suspension through petitions under Art. 226 of the Constitution which were dismissed by a learned single judge of this Court. 3. It is not disputed that the appellants are governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as Rules). Under sub-rule (1) of Rule 10 the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order may place a Government servant under suspension where a disciplinary proceeding against him is contemplated or is pending. The question for consideration is whether the order of suspension could be validly passed by the authorities concerned. It was contended that the services of the appellants were lent to the Corporation and as they continued to be in the service of the Government of India (Food Department) they could not be placed under suspension by the authorities of the Corporation. 4. It was contended that the services of the appellants were lent to the Corporation and as they continued to be in the service of the Government of India (Food Department) they could not be placed under suspension by the authorities of the Corporation. 4. Sub-rule (1) of Rule 20 provides : "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 (hereinafter in this rule referred to as 'the borrowing authority'), the borrowing authority shall have the power 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 proceeding against him : Provided that the borrowing authority shall forthwith inform the authority which lent the services of the Government Servant (hereinafter in this rule referred to as 'the lending authority') of the circumstances leading to the order of suspension of such Government servant of the commencement of the disciplinary proceeding, as the case may be." The Corporation purported to act under Rules 10 and 20 in placing the appellants under suspension. The borrowing authority must be either a department of the Central Govt. or a State Govt. or an authority subordinate to it or a local authority or some other authority. The Corporation can take recourse to Rule 20 if it can be held to be "other authority" within the meaning of this Rule. In that case it would have all powers of the appointing authority for the purposes of placing the appellants, whose services have been lent to it, under suspension. 5. The words "other authority" have not been defined in the Rules and in order to determine whether an authority like the Corporation was within the contemplation of Rule 20 some assistance is available from the interpretation put on the words "other authorities" occurring in Article 12 of the Constitution of India. In Rajasthan State Electricity Board v. Mohan Lal, ( AIR 1967 SC 1857 ) one of the principal questions raised was whether the Rajasthan State Electricity Board could be held to be a "State" as defined in Article 12 of the Constitution and the answer to the question depended on the interpretation of the words "other authorities" occurring in that Article. The Rajasthan State Electricity Board was a body corporate constituted under the Electricity (Supply) Act, 1948. Bhargava, J. delivering the majority judgment referred to the Webster's Third New International Dictionary where the meaning of the word "authority" given is 'a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue-producing public enterprise' and observed : "This dictionary meaning of the word 'authority' is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression 'other authorities' is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words 'other authorities' are used in Art. 12 of the Constitution." He then referred to the case of Smt. Ujjam Bai v. State of Uttar Pradesh, ( AIR 1962 SC 1621 ) where Ayyangar, J. interpreting the words "other authorities" held : "Again, Article 12 winds up the list of authorities falling within the definition by referring to 'other authorities' within the territory of India which cannot obviously be read as ejusdem generis with either the Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning with in the territory of India or under the control of the Government of India. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning with in the territory of India or under the control of the Government of India. There is no characterisation of the nature of the 'authority' in this residuary clause and consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws." Bhargava, J., further cited the following passage from the case of K. S. Ramamurthy Reddiar v. The Chief Commr., Pondicherry, ( AIR 1963 SC 1464 ) : "Further, all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the Government at all." The learned Judge summarised the legal position in these words : "These decisions of the Court support our view that the expression 'other authorities' in Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Art. 19 (1) (g). In part IV, the State has been given the same meaning as in Art. 12 and one of directive principles laid down in Art. 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Art. 12 is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Article 298 to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board, must be excluded from the scope of the word 'State' as used in Art. 12. The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board, must be excluded from the scope of the word 'State' as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable as a criminal offence." 6. A close study of the Supreme Court cases referred to above indicates that a body corporate, like the Food Corporation of India, carrying on commercial activities would come under "other authorities" as contemplated by Article 12 of the Constitution. Applying the same principle, it can be safely said that the expression "other authority" occurring in Rule 20 would embrace within its ambit such a body corporate as the Food Corporation of India. 7. Learned Counsel for the appellants referred to the case of Pramodrai Shamaldas Bhaysar v. Life Insurance Corporation of India, AIR 1969 Born 337 ; (1969 Lab 1C 1198) wherein the question was whether the Life Insurance Corporation of India fell within the expression "other authorities" in Article 12 of the Constitution and was a "State" within the meaning of that Article. After referring to the case of Rajasthan State Electricity Board ( AIR 1967 SC 1857 ) (supra), the Bench held : "It is not possible to read the judgment to say that 'authority' includes any and every autonomous body merely because it is constituted by a Statute, whatever be its functions and this could not be so. The very fundamental conception of an authority is that there is in it power to command and compel its obedience either by enforcing the same or by punishing disobedience. The Electricity Board had such powers while administering the law framed by the Parliament, and therefore the Court held that it fell within the meaning of Article 12. The very fundamental conception of an authority is that there is in it power to command and compel its obedience either by enforcing the same or by punishing disobedience. The Electricity Board had such powers while administering the law framed by the Parliament, and therefore the Court held that it fell within the meaning of Article 12. If the Court intended to hold that merely because it was constituted under a statute of the Parliament or of the State legislature and thus it fell within Art. 12, the subsequent discussion could not be necessary." On this reasoning it was held that the Life Insurance Corporation was only a purely autonomous business body as any other private company and could not be regarded as State. 8. The same principle has been laid down in Aftab Ram v. State of J. & K., AIR 1970 J & K 132 (FB). It may, however, be noted that the Jammu and Kashmir Industries (P) Ltd. was not created under any Statute. 9. The question whether the Life Insurance Corporation of India was a "State" as defined in Article 12 of the Constitution came up for consideration in this Court in Shyam Lal Sharma v. Life Insurance Corporation of India, (1970 All LJ 214). After a review of the authorities on the point this Court held that the Life Insurance Corporation answers the description "other authorities" mentioned in Article 12 and, therefore, constitutes the "State" as contemplated by that Article. It took into consideration the fact that the Life Insurance Corporation of India was established by an Act of Parliament; the original capital was supplied by the Central Government; the function of the Corporation was to develop the Life Insurance business to the best advantage of the community and the Corporation had been empowered to make regulations. This Court did not approve of the view expressed in Pramodrai Shamaldas Bhaysar's case, AIR 1969 Born 337 ; (1969 Lab IC 1198) (supra). 10. This Court did not approve of the view expressed in Pramodrai Shamaldas Bhaysar's case, AIR 1969 Born 337 ; (1969 Lab IC 1198) (supra). 10. It may be that on the principles enunciated in the aforesaid Bombay and Jammu and Kashmir cases, the Food Corporation of India may not be an authority so as to qualify for being included in the word "State" within the meaning of Article 12 of the Constitution but that would not lead to the inference that it would not be an "authority" within the meaning of Rule 20 of the Central Civil Services (Classification, Control and Appeal) Rules. It cannot be disputed that the services of the Government servants were lent to the Corporation and the Corporation would be a borrowing authority within the meaning of that Rule. It would not be reasonable to interpret the expression "other authority" in Rule 20 in the same sense as the expression has been used in Article 12 of the Constitution. The authority contemplated under Rule 20 may not have the power to command and compel its obedience either by enforcing the same or by punishing disobedience, but there is nothing in the Rule to suggest that it would not be an authority to whom the services of the Government servants have been lent. We are, therefore, satisfied that the Corporation is an authority as contemplated by Rule 20. 11. The learned single Judge dismiss ed the writ petitions holding that the petitioners had an alternative remedy by way of appeal. Rule 23 provides for an appeal against an order of suspension made or deemed to have been made under Rule 10. It was contended by S. V. Badlani that the order of suspension in his case must be deemed to be one passed by the President of India as he was appointed by the President and under Rule 22 no appeal lay against any order made by the President. This argument has no substance. The borrowing authority undoubtedly exercises the powers of the appointing authority for the purposes of placing under suspension the Government servants whose services are lent to it but that should not make the order of the borrowing authority as one passed by the appointing authority. This argument has no substance. The borrowing authority undoubtedly exercises the powers of the appointing authority for the purposes of placing under suspension the Government servants whose services are lent to it but that should not make the order of the borrowing authority as one passed by the appointing authority. The order of suspension passed by the Managing Director in his case would remain his order and would not become the order of the President of India only because the power of the appointing authority had been conferred on the borrowing authority. 12. The order suspending R. B. Varma, was passed by the Senior Regional Manager. It was contended on behalf of this appellant that the Senior Regional Manager was not competent to pass the order placing him under suspension as the authority had not been delegated to him. In the petition no foundation has been laid for this argument. There is no specific allegation in the petition that the power to place the clerks working in the Corporation under suspension had not been delegated to the Senior Regional Manager of the Corporation. In the absence of a clear assertion in the petition to that effect it is not open to this appellant to raise this question in the appeal. Even if it be accepted that the Senior Regional Manager was not competent to place him under suspension, this question too could be raised in appeal which could be preferred under Rule 23. 13. In the result the appeals have no merits and are accordingly dismissed with costs.