Decided on October 01,1979



B.K.MEHTA - (1.) The two appellants herein who were drivers under transfer from Mehsana Division of the Gujarat State Road Transport Corporation hereinafter referred to as the Corporation) at the time of impugned orders challenged in the two suits filed by them in the Court of Civil Judge (S. D.) Mehsana the orders of their termination of October 11 1974 passed by the General Manager of the respondent Corporation purporting to act under Regulation No. 61 of the Gujarat State Transport Employees Service Regulations inter alia on the grounds that they were void and ineffective since they were in effect and substance orders of dismissal though apparently appear in form of orders of termination and therefore in colourable exercise of powers and also because Regulation 61 under which the power was purported to have been exercised is violative of Articles 14 and 16 of the Constitution of India and in any case the General Manager was not the Competent Authority to make such orders under the said Regulation. It should be noted that the aforesaid second ground of challenge namely the vires of Regulation 61 and the competence of the General Manager to make the impugned orders was sought to be raised by seeking amendment in the plaint in course of hearing of these two second appeals before the learned Single Judge (Ahmedi J.) who permitted the amendment sought to be made in the plaint and remanded by his order of April 5 1978 both the matters to the trial Court for enabling the parties to lead evidence in support or rebuttal of the issues arising as a result of the said amendment and directing the learned Civil Judge to certify his findings after recording the evidence. Before the order of remand was made there was only one ground of challenge namely the orders were really orders of dismissal passed in colourable exercise of powers by the General Manager mala fide and the appellants had sought declaration that the impugned orders were void and ineffective and they continue to be in service 2nd also prayed for injunct on restraining the Corporation its officers Servants and agents from removing the appellants from the premises allotted to them by the Corporation. The learned Civil Judge original before the remand granted the decree as prayed for by his order of 9th July 1976 with the result that the Corporation carried both the matters in appeal before the District Court at Mehsana by its Regular Civil Appeal Nos. 119/76 and 183/76 which were heard and disposed of by the common judgment and order of the learned Extra Assistant Judge Mehsana reversing the decree granted by the trial Court and dismissing the suits. The two appellants have therefore preferred these appeals before this Court which while admitting the appeals formulated four substantial questions of law which inter alia included the question of vires of Regulation 61 and the order being in effect and substance an order of penalty without resorting to the disciplinary proceedings. In the course of hearing of these second appeals the amendments as stated above were sanctioned and the matters were remaanded for recording the evidence and certifying the findings. The learned trial Judge has after recording the evidence reported his findings to this Court by his order of 28th August 1978 where he has opined that Regulation 61 was ultra vires Articles 14 and 16 of the Constitution and the impugned orders were orders of penalty passed by an authority not competent to do it. One more question will have to be added to the following questions formulated at the time of admission of these second appeals as question No. 5. The additional question No. 5 will he in the following terms:- question No. 5:- 5. Whether the General Manager was competent authority to pass the impugned orders ? This Court formulated the following questions: 1. Whether the Civil Court has jurisdiction to deal with this service matter of S. T. Corporation ? 2. Whether Regulation 61 of the Gujarat State Transport Employees Service Regulation can be so construed as to empower the State Transport Corporation to terminate the services of a permanent employee without abolishing the permanent post occupied by the appellant? 3. What is the true interpretation of Regulation 61 and whether it is ultra wires Articles 14 and 16 of the Constitution ? 4. Whether the impugned order is in purported colourable exercise of the powers under Regulation 61 looking to the facts and circumstances of this case ?
(2.) At the time of hearing of these appeals question No. 3 pertaining to the vires of the provision was vehemently debated since it was a matter of principle for the Corporation as well as the respondent drivers backed by their trade Union inasmuch as in submission of the Corporation the power of termination simpliciter is necessary concomitant of the employ ment of service while in submission of the respondent it is abominable in the present context of the rule of law in the status of a public servant inasmuch as it makes such an inroad in the irremovability of status of a permanent servant that it almost dangerously verges into a right of hire and fire enjoyed by a matter in the bygone days. The suggestion of the Court to sort out an amicable settlement between the parties therefore could not be responded to favourably by either side in spite of the efforts of the learned Advocates. We have therefore to examine the constitutional validity of the provision contained in Regulation 61 which in vests the Competent Authority to terminate the service of not only casual parttime or temporary worker but also permanent employee of the Corporation.
(3.) The learned Civil Judge has been impressed with the contentions urged on behalf of the respondent-plaintiffs that the power continual in Regulation 61 is so uncanalized abridged and arbitrary in its nature inasmuch as not only it does not provide any classification on the face of it but there is no broad guideline which can be ascertained either by reference to that Regulation 61 or any other provisions of the aforesaid Service Regulations or the State Road Transport Corporation Act or the Rules framed thereunder and since it does not provide any procedural safeguards thereby ensuring the principles of fair play and natural justice to an employee whose services are sought to be terminated under the said Regulation the impugned Regulation is therefore ultra vires Articles 14 and 16 of the Constitution of India.;

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