RAM GOPAL SHARMA v. MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION, Bairagarh, Bhopal
1978-08-31
G.P.SINGH, J.S.VERMA
body1978
DigiLaw.ai
JUDGMENT : G.P.SINGH, C.J. ( 1. ) The petitioner was Accounts Officer in Madhya Pradesh State Road Transport Corporation. By order dated 17th of June 1974, issued by the General Manager of the Corporation under Regulation 69 of the Regulations made under section 45 of the Road Transport Corporations Act, 1950, the services of the petitioner were terminated with immediate effect and the petitioner was given 60 days pay in lieu of notice. It is this order which the petitioner challenges in this petition under Article 226 of the Constitution. ( 2. ) The petitioner started his career as Accountant in 1959 in Madhya Bharat Roadways (M. B. R.) which was a departmental undertaking of the Government of Madhya Bharat. After the formation of the new State of Madhya Pradesh from 1st November 1956, the M. B. R. became an undertaking of the Government of Madhya Pradesh. The petitioner was promoted as Accounts Officer on which post he was confirmed by order dated 26th April 1960. The Central Provinces Transport Service (C, P. T. S.) which was also run as a departmental undertaking of the former State of Madhya Pradesh continued to be an undertaking of the Government of the new State. The Madhya Pradesh Road Transport Corporation was established by the State Government under section 3 of the Road Transport Corporations Act, 1950, by order dated 9th of May 1962, with effect from 21st May 1962. The services of the staff employed in M. B. R. and C. P. T. S. were transferred to the Corporation from 1st of June 1962.
The Madhya Pradesh Road Transport Corporation was established by the State Government under section 3 of the Road Transport Corporations Act, 1950, by order dated 9th of May 1962, with effect from 21st May 1962. The services of the staff employed in M. B. R. and C. P. T. S. were transferred to the Corporation from 1st of June 1962. By order dated 29th of May 1962, the State Government decided that the transfer of the employee of M. B. R. and C. P. T. S. to the Corporation should be subject to the following conditions : "(a) Their pay, pay scales and conditions of service are not affected by the transfer; (b) the transfer will not be considered as an interpretation of their service; and (c) in case of employees coming under the category of Workmen, as defined under the Industrial Disputes Act, 1947, the Corporation will, in the event of their retrenchment, pay compensation on the basis that their service has been continuous and has not been interrupted by the transfer." In pursuance of this decision of the Government, the petitioner was informed by order of the General Manager, dated 31st May 1962 that his services will stand transferred to the Corporation from the fore-noon of 1st June 1962 and that the transfer will be subject to the following conditions: "(a) That your services will not be regarded as interrupted by reason of the transfer; (b) that the terms and conditions of service applicable to you after such transfer will not in any way be less favourable to you than those applicable to you immediately before the transfer; and (c) that the M. P. State Road Transport Corporation will be legally liable to pay to you, in the event of your retrenchment after the transfer of your services to the Corporation, compensation on the basis that your service has been continuous and has not been interrupted by the transfer." ( 3. ) Regulation 69 under which the order terminating the petitioners services was issued by the General Manager reads as follows : "69.
) Regulation 69 under which the order terminating the petitioners services was issued by the General Manager reads as follows : "69. The services of an employee who does not hold a permanent appointment in the State Transport or a lien on a permanent appointment in any Government Department from which his services have been obtained, are liable to be terminated by the Competent Authority by giving a calendar months notice, or a calendar months pay in lieu : Provided that the services of casual workers and part time workers may be terminated without any notice: Provided further that a permanent employee of State Transport shall be entitled to 60 days notice or 60 days pay in lieu. (Note-For the purpose of this regulation pay means the pay of the post held by the employee substantively.)" ( 4. ) The learned counsel for the petitioner has raised before us the following contentions: (i) That the security of tenure guaranteed to the petitioner being a permanent employee of the State under Article 211 of the Constitution continued even after the transfer of his service to the Corporation because the conditions of his service were not affected by the transfer in view of the order of the State Government, dated 29th May 1962, and, therefore. Regulation 69 under which the appointment of even a permanent employee could be terminated by 60 days notice or 60 days pay in lieu of notice could not be applied to the petitioner; {ii) that the General Manager was not competent to terminate the petitioners services as he was not his appointing authority; and (iii) that the petitioner has really been punished on charges of misconduct without any departmental enquiry and the order issued under Regulation 69 is merely a cloak for punishing the petitioner. ( 5. ) Having heard the learned counsel, we are of opinion that the first contention raised by the learned counsel for the petitioner must be accepted. We have already referred to the order of the State Government, dated 29th May 1962, which clearly lays down that the transfer of employees of M. B. R. and C. P. T. S. to the Corporation was subject to the condition that "their pay, pay scales and conditions of services are not affected by the transfer".
We have already referred to the order of the State Government, dated 29th May 1962, which clearly lays down that the transfer of employees of M. B. R. and C. P. T. S. to the Corporation was subject to the condition that "their pay, pay scales and conditions of services are not affected by the transfer". It was in pursuance of this order of the State Government that in the order issued to the petitioner by the Corporation on 31st May 1962 it was specifically mentioned that the terms and conditions of service applicable to him after the transfer will not in any way be less favourable to him immediately before the transfer. The expression "conditions of service" has a very wide connotation. Security of tenure of an employee is a very important condition of his service. The circumstances under which the employer is entitled to terminate the service of the employee pertain to his conditions of service. [See N. W. F. Province v. Suraj Narain(AIR 1949 PC 112. p. 114.), The petitioner was a permanent employee of the State Government before his services were transferred to the Corporation. Being a permanent employee of the State, the petitioner could not be removed from service by giving one or two months notice. The petitioner had a right to continue in service till the age of superannuation. The petitioners services could be terminated before the age of superannuation only after a departmental enquiry on a charge of misconduct or in accordance with a rule, if any, relating to compulsory retirement on completion of a certain number of years of service. This security of tenure was a part of the conditions of service of the petitioner. This condition of service was continued even after the transfer because of the order of the State Government issued on 29th of May 1962. Regulation 69, which we have earlier quoted, allows the Corporation to terminate the employment of even a permanent employee after 60 days notice or after payment of 60 days pay in lieu of notice. The regulation, if applied to the petitioner, would be clearly destructive of the security of tenure which he enjoyed before his services were transferred to the Corporation and which was guaranteed to him by the conditions of transfer. The only question is whether Regulation 69 would prevail over the conditions of services so guaranteed to the petitioner. ( 6.
The regulation, if applied to the petitioner, would be clearly destructive of the security of tenure which he enjoyed before his services were transferred to the Corporation and which was guaranteed to him by the conditions of transfer. The only question is whether Regulation 69 would prevail over the conditions of services so guaranteed to the petitioner. ( 6. ) Under the scheme of the Road Transport Corporations Act and as provided in section 14, a Corporation has to have a Chief Executive Officer or General Manager and a Chief Accounts Officer appointed by the State Government. Section 14 further provides that a Corporation may appoint such other officers and servants as it considers necessary for the efficient performance of its functions. The conditions of appointment and service and the scales of pay pertaining to the Chief Executive Officer or General Manager and the Chief Accounts Officer can be prescribed by rules framed under section 44 of the Act. As regards other officers and servants, section 14 (3) provides that the conditions of appointment and service and the scales of pay "shall be such as may, subject to the provisions of section 34, be determined by regulations made under this Act". Section 34 empowers the State Government to issue directions to a Corporation relating to the recruitment, conditions of service and training of its employees and wages to be paid to the employees. Subsection (2) of section 34 specifically provides that the Corporation shall not depart from the general instructions, which include directions, except with the previous permission of the State Government. The order of the State Government, dated 29th of May 1962, protecting the conditions of service of the employees of M. B. R. and C. P. T. S. who were transferred to the Corporation is really an instruction or direction under section 34 of the Act and the Corporation is bound to obey it. Indeed, it was for this reason that in the order issued to the petitioner by the Corporation it was specifically mentioned that the terms and conditions of his service after the transfer will not in any way be less favourable than those applicable to him immediately before the transfer.
Indeed, it was for this reason that in the order issued to the petitioner by the Corporation it was specifically mentioned that the terms and conditions of his service after the transfer will not in any way be less favourable than those applicable to him immediately before the transfer. The power of making regulations on the subject of conditions of service under section 14 (3) of the Act is expressly subject to the provisions of section 34, which means that instructions and directions issued under section 34 will prevail over the regulations. The general power to make regulations is conferred by section 45 which says that "a Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation", Although the regulations have to be made with the previous sanction of the State Government, yet they have to be not inconsistent with the Act. The Act includes section 14 which subjects the regulations relating to the conditions of appointments and service to the provisions of section 34, that is, the instructions and directions issued by the State Government under that section. When provision A is subject to provision B, a case falling under provision B is taken out of provision A. [See Punjab Sikh Regular Motor Service, Raipur v. Regional Transport Authority, Raipur(A I R 1966 SC 1318)]. The phrase "subject to" is a simple provision which merely subjects the provisions of the subject section to the provisions of the master-section, "where there is no clash, the phrase does nothing : if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision." C. and J. Clark Ltd. v. Inland Revenue Comrs((1973) 2 All E R 513, p. 520.). In our opinion, as regulations made under section 14 (3), read with section 45, are subject to the instructions and directions issued under section 34 of the Act on the subject of conditions of service, the directions and instructions must prevail over the regulations in case of conflict. There is, however, no presumption of conflict and, therefore, directions and regulations are to be read together and effort is to be made, as far as possible, to give effect to both. ( 7.
There is, however, no presumption of conflict and, therefore, directions and regulations are to be read together and effort is to be made, as far as possible, to give effect to both. ( 7. ) Learned counsel for the respondents relied upon The General Manager, Mysore State Road Transport Corporation v. Devraj Urs( AIR 1976 SC 1027 ) in support of his submission that a direction or instruction issued under section 34 of the Road Transport Corporations Act will be effective only till regulations are made. In our opinion, the case relied upon cannot be read as an authority for the submission. In that case, the regulations had not at all been made and, therefore, the point whether in case of conflict regulations will prevail over a direction or instruction issued under section 34 relating to conditions of service did not arise for consideration. ( 8. ) As a result of the above discussion, it is clear that the conditions of service protected by the direction issued by the State Government cannot be taken to be overridden by Regulation 69. The direction contained in the order of the State Government and Regulation 69 should be read together. Regulation 69 is a general provision, whereas the direction of the State Government is only in respect of those employees who were previously in the service of the State Government and whose services were transferred to the Corporation on its formation. Construing them together, Regulation 69 should be held to be not applicable to those employees of the Corporation who were previously permanent employees of the State Government and whose services were transferred to the Corporation on the condition that the terms and conditions of service applicable to them after the transfer shall not be less favourable than those applicable to them immediately before the transfer unless the State Government permits the Corporation to disregard the direction protecting the conditions of service of such employees or unless the State Government modifies or withdraws the direction. Regulation 69 was thus not applicable to the petitioner. The petitioners services were, therefore, wrongly terminated in exercise of the power conferred by Regulation 69. ( 9. ) Learned counsel for the respondents submitted, relying upon R. C. Sharma v. Govt. of M. P.5, that conditions of service will not include security of tenure of .service.
Regulation 69 was thus not applicable to the petitioner. The petitioners services were, therefore, wrongly terminated in exercise of the power conferred by Regulation 69. ( 9. ) Learned counsel for the respondents submitted, relying upon R. C. Sharma v. Govt. of M. P.5, that conditions of service will not include security of tenure of .service. The case relied upon had nothing to do with the question whether security of tenure is included in conditions of service. As earlier pointed out by us, the expression "conditions of service" has a very wide connotation; and security of tenure is one of the most important conditions of service. ( 10. ) As we have accepted the first contention raised by the learned counsel for the petitioner, it is not necessary to decide the other contentions raised by him. ( 11. ) The petition is allowed. The order, dated 17th June 1974, terminating the petitioners services is quashed. There shall be no order as to costs. The security amount be refunded to the petitioner. Petition allowed.