Management Of D. T. U. vs B. B. L. Hajelay

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1972 Supreme(SC) 420

SUPREME COURT OF INDIA
J.M. SHELAT, D.G. PALEKAR, S.N. DWIVEDI, JJ.
The Management of D.T.U., Appellant
Versus
Shri B. B. L. Hajelay and another, Respondents.
Civil Appeal No. 1518 of 1971, D/- 6-9-1972.
Advocates appeared
Mr. M. C. Chagla, Sr. Advocate, (Mr. S. K. Dholakia, Advocate, with him), for Appellant; M/s. R. K. P. Shankardass, D. N. Vohra, H. K. Puri and S. K. Dhingra, Advocates, for Respondent No. 2.

Advocates:
D.N.Vohra, H.K.PURI, M.C.CHAGLA, R.K.P.SHANKAR DAS, S.K.DHINGRA, S.K.DHOLAKIA

Headnote:
Delhi Municipal Corporation Act, 1957 – Section 516(1)(a),511(1),516(2)(a) and 95 - Industrial Disputes Act – Section 33(2)(b) - Government of India Act, 1919 – Section 96(b) - Removed from service – Transferred - Respondent was originally employed as a Driver in Delhi Road Transport Authority which had been constituted under Delhi Road Transport Authority Act, 1950 - Delhi Municipal Corporation Act, 1957 came into force - By section 516 (1) (a) of Corporation Act, Delhi Road Transport Authority Act, 1950, stood repealed and in virtue of several other sections of Corporation Act functions of Delhi Road Transport Authority were taken over by Corporation - Under section 511 every officer and employee of Transport Authority stood transferred to and became an officer and employee of Corporation - Thus respondent became an employee of the Corporation from January, 1958 Assistant General Manager decided to remove respondent from service with effect - At that time an Industrial dispute was pending before respondent Presiding Officer of Labour Court, and hence an application was made under section 33 (2) (b) of Industrial Disputes Act for approval of proposed action of removal of respondent no. 2 from service - Whether Assistant General Manager of Delhi Transport Undertaking of Municipal Corporation of Delhi was a competent authority to remove respondent from service – Held, it is therefore, clear that a protection which is given to an employee by the statute cannot be nullified by rules and regulations authorised by statute itself - In other words, any regulation made by the Corporation which would have authorised Assistant General Manager to remove respondent from service would have been inoperative qua respondent as his appointing authority was General Manager (Transport) – Learned counsel then contended that by reason of delegation, Assistant General Manager had become an agent of General Manager and the act of Assistant General Manager must be deemed to be act of the General Manager himself – Court are not concerned here with the law of agency - It is implicit in the statutory prohibition debarring removal by a lesser authority, that appointing authority has to personally apply its mind to question of removal and cannot delegate such a function - Since the authority which can remove an employee is appointing authority or its superior in office, protection thus provided cannot be destroyed by importing concepts of agency- Appeal dismissed.

Judgment

PALEKAR, J.:- This is an appeal from the judgment and Order dated January 21, 1971 of the Delhi High Court in Civil Writ Petition No. 719/1969.

2. Respondent no. 2 Ved Prakash was originally employed as a Driver in the Delhi Road Transport Authority which had been constituted under the Delhi Road Transport Authority Act, 1950. The Delhi Municipal Corporation Act, 1957 came into force in January, 1958. By section 516 (1) (a) of the Corporation Act, the Delhi Road Transport Authority Act, 1950, stood repealed and in virtue of several other sections of the Corporation Act the functions of the Delhi Road Transport Authority were taken over by the Corporation. Under section 511 every officer and employee of the Transport Authority stood transferred to and became an officer and employee of the Corporation. Thus respondent no. 2 became an employee of the Corporation from January, 1958.

3. A disciplinary enquiry was started against respondent no. 2 by the Assistant General Manager (Transport) in 1962 and the Assistant General Manager decided to remove respondent no. 2 from service with effect from 16-5-1963. At that time an Industrial dispute was pending before respondent no. 1 the Presiding Officer of the Labour Court, and hence an application was made under section 33 (2) (b) of the Industrial Disputes Act for approval of the proposed action of removal of respondent no. 2 from service. Respondent no. 1 did not approve of the action on the ground that the Order for removal was made by the Assistant General Manager and not the General Manager who alone could have removed him from service. That order was challenged in the High Court which, however, agreed with the view taken by respondent no. 1. Hence the present appeal.

4. The short point with which we are concerned is whether the Assistant General Manager of the Delhi Transport Undertaking of the Municipal Corporation of Delhi was a competent authority to remove respondent no .2 from service.

5. There is no dispute that under S. 511(1) of the Corporation Act, respondent no. 2 became an employee of the Corporation from January, 1958. By reason of section 516 (2) (a) his appointment continued in force and was deemed to have been made under the provisions of the Corporation Act. Section 92 which comes under Chapter VI of the Corporation Act dealing with Municipal officers and other Municipal employees, so far as is relevant, is as follows:

"92 (1) Subject to the provisions of section 89 the power of appointing municipal officers and other municipal employees, whether temporary or permanent,----

(b) to posts carrying a minimum monthly salary (exclusive of allowances) of less than three hundred and fifty rupees, shall vest in...the General Manager (Transport).

The minimum monthly salary of respondent no 2 was less than Rs. 350/- and hence the appropriate authority under the Corporation Act to appoint respondent no .2 would be the General Manager (Transport).

6. Section 95 deals with disciplinary actions against municipal officers and employees. Sub-section (1) provides.

"every municipal officer or other municipal employee shall be liable to have his increments or promotion withheld or to be censured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by regulations. The first proviso to the above sub-section reads "Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed.

7. In view of the proviso referred to above it was contended on behalf of respondent no. 2 that he cannot be removed by any authority subordinate to the General Manager (Transport) and since the Assistant General Manager was a subordinate of the General Manager, the Order of removal was unauthorised and il

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