DILIP KUMAR SETH, J - (1.) The writ Petitioner had unsuccessfully challenged the order of termination dated May 6, 1999 in exercise of clause 20(VI) of the standing order for the Haldia Refinery of the Indian Oil Corporation Limited (Refineries and Pipelines Division) certified under the Industrial Employment (Standing Orders) Act, 1946 in Writ Petition No. 10667(W) of 1999 since dismissed by an order dated July 9, 2002 passed by the learned single Judge, which is under challenge in this appeal. Submission on behalf of the appellant:
(2.) Mr. K. K. Moitra, learned senior counsel, appearing on behalf of the appellant/ petitioner had assailed the judgment on four principal grounds: first, the provisions contained in sub-clause (VI) of clause 20 of the standing orders is an exception, which can be exercised only in an extremely exceptional case, the test whereof has not since been satisfied in the case of the petitioner. Relying on Motiram Deka and Ors. v. General Manager, North East Frontier Railway AIR 1964 SC 600 : 1964- II-LLJ-467 he contended that right to continue in permanent service cannot be invaded. According to him, this principle has been followed in Paresh Chandra Dutta v. Collector of Calcutta & Ors., 1978 (2) CLJ 316. The dismissal of the petitioner was effected on the ground of his misconduct subject to Clause 20 of the standing orders in a manner contrary to Article 311(2) of the Constitution of India, which is to be exercised only in special circumstances in view of the power conferred on the authority under clause (V)(a). Inasmuch as, the allegations under which the dismissal was effected could be met by putting the petitioner under suspension pending enquiry. Second, the grounds disclosed in support of the exercise of the extraordinary power itself goes to show that the power was exercised in a manner mala fide. Inasmuch as, several witnesses were examined before the order of dismissal was passed. The enquiry so held is itself an indication that the enquiry was practicable and could be held. Third, out of the same allegation, a criminal case was also initiated against the appellant/ petitioner. After trial, the appellant/petitioner was acquitted from the case. Therefore, on the self same allegation, the dismissal could not be sustained in view of the ratio decided in the decision in Captain M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. AIR 1999 SC 1416 : 1999 (3) SCC 679 : 1999- I-LLJ-1094. Fourth, the standing order has a statutory force and it has to be applied only in the manner as prescribed. In support of his contention that the standing order has statutory force, he relied on D.K. Yadavv. J.M.A. Industries Ltd., 1993(3) SCC 259 : 1993-II-LLJ-696 a three Judge Bench decision. He relied on the decision in Hukam Chand Shyam Lal v. Union of India & Ors., AIR 1976 SC 789 : 1976 (2) SCC 128 to contend that the power prescribed by a statute has to be exercised in that particular manner and no other.
(3.) While elaborating the fourth point, Mr. Moitra contended that the special power under sub-clause (VI) of clause 20 can be exercised by the General Manager, which in this case is GM(I/C), under whom the General Manager (Project) [GM(PJ)] was working. The impugned order has since been passed by the GM(PJ). The exercise of this special power embraces a policy decision. Unless the statute provides for delegation of power involving policy decision, such power could not be delegated. GM(PJ) was acting as GM(I/C). A . person acting cannot exercise statutory powers as was held in T.R. Pandey v. Chief Commissioner, Andaman & Nicobar Islands & Ors., 1978 Lab 1C 41. When a statute provides that a particular action is to be taken or exercised in a particular manner, the same is to be exercised in that manner alone, as was held in Marathwada University v. Seshrao Balwant Rao Chavan, AIR 1989 SC 1582 : 1989 (3) SCC 132 : 1989-II-LLJ-161. With regard to this point, his second limb of argument was that the letter of authorization empowered GM(PJ) to co-ordinate. This co-ordination does not include conferring of special power. According to him, delegation was impermissible. The special power is not an emergency power. There is a distinction between emergency power and special power. In this case, no emergency was pleaded to show that the matter could not wait till May 15, when GM(I/C) was expected to come back. He also contended that GM(I/C) is the appellate authority, so this power conferred on the appellate authority cannot be exercised by an officer from whose order appeal lies to GM(I/C). The hot-haste in which the action was taken, itself indicates mala fide inasmuch as the GM(PJ) could wait for six days when GM(I/C) was due to return. The expression co-ordination used in the Letter of Authorization has to be interpreted following the principles of interpretation avoiding the principle of surplus age and superfluity, which, according to him, in this case, would exclude the special power within the scope of the alleged delegation. If in interpreting the provisions contained in the clause adversely affects the fundamental right of a citizen, in that event, either the clause has to be struck off or to be read down as was held in the case of Delhi Transport Corporation v. D.T.C, Mazdoor Congress & Ors., AIR 1991 SC 101 : 1991 Supp (1) SCC 600 : 1991-I-LLJ-395.;