SINHA, C.J. - (1.) The facts in this case are shortly as follows: The respondent in this case was at all material time employed as a sub-gunner by the Port Commissioners, a statutory body formed under the Calcutta Port Act, 1890 (hereinafter referred to as the "said Act"). On the 5th of January, 1961 the respondent and several other employees of the Port Commissioners were convicted under Ss. 147 and 323 of the Indian Penal Code. Section 147 deals with rioting and S. 323 is voluntarily causing hurt. The respondent was sentenced to a fine of Rs.30 under S. 147 I.P.C. in default to undergo rigorous imprisonment for three weeks and a fine of Rs.30 and under S. 323 I.P.C. in default to undergo rigorous imprisonment for three weeks. On the 28th of March 1963 the respondent was suspended from service and on the 9th April, 1963 he was served with an order passed by the Traffic Manager dated 4th April, 1963 removing him from service. The said order is set out below. "Whether Sri Baleswar Singh, Sub-Gunner was convicted on a criminal charge under Ss.147 and 323 I.P.Cd and sentenced to pay a fine or in default to undergo rigorous imprisonment on 5.1.61 which was confirmed by the Appellate Court. and whereas it is considered that the conduct of the said Sri Baleswar Singh which led to his conviction is such as to render his further retention in service undesirable. Now therefore, the Dy. Chairman directs that the said Sri Baleswar Singh, Sub-Gunner should be removed from service." On or about the 30th April, 1963 the trade union to which the petitioner belongs wrote a letter to the Deputy Chairman of the Port Commissioners making a request that the said order be reconsidered on the ground that the offence of which the petitioner had been convicted did not involve moral turpitude, nor relate to his work or his place of work. In answer to this letter, a reply was given by the Secretary to the Port Commissioners on the 26th August 1963 stating, that the procedure followed by the Commissioners in dealing with cases of employees convicted of a criminal charge was in line with the procedure adopted by Government and an employee convicted on a criminal charge is removed from service only when the offence considered is such as to render further retention in the service prima facie undesirable. It was rightly pointed out that conviction for rioting and voluntarily causing hurt did involve moral turpitude. Thereupon, the respondent made an application to this Court under Article 226 of the Constitution, and a Rule was issued on the 10th December, 1963 calling upon the respondents to the said Rule to show cause why an appropriate writ should not be issued directing the withdrawal or cancellation of the said order of removal and whether other reliefs mentioned in the petition should not be granted. This matter having come before Basu, J. he held by his judgment dated 9th March, 1966: (i) that on the relevant date the Port Commissioners had not framed any rules and there could not be any removal. (ii) that there was a violation of the rules of natural justice and as such the order was invalid. The rule was made absolute.
(2.) It is against this order that this appeal is directed. In the first place it will be necessary to consider the provisions of the said Act. The said Act is an Act to consolidate and amend the law relating to the Port of Calcutta and to the appointment of the Commissioners for the said Port. Under Section 4, the duty of carrying out the provisions of the said Act is vested in a body of Commissioners called "Commissioners for the Port of Calcutta" which is a body corporate Section 30 of the said Act is in the following terms: "30. (1) The Commissioners shall, from time to time prepare, and in meeting sanction, a schedule of the staff of employees whom they shall deem it necessary and proper to maintain for the purposes of this Act. (2) Such schedule shall also set forth the amount and nature of the salaries, fees, and allowances which the Commissioners in meeting sanction for each such employee. Provided that artisans, porters and labourers, and sirdars of porters and labourers shall not be deemed to be employees within the meaning of this section or Section 31, (except clauses (g) and (h) thereof) Section 32 or Section 33 of this Act." The power to frame rules is contained in Section 31. The relevant provision is as follows: "31(1) the Commissioners in meeting shall, from time to time, frame rules - xx xx xx (i) for regulating the recruitment, promotion, conduct discipline, punishment and any other matter relating to the terms and conditions of service applicable to the employees of the Commissioners, or allotment of premises to them or their rights and their privileges, not covered by any of the foregoing clauses". Section 32(1) of the said Act is in the following terms: "Subject to the provisions of the Schedule, for the time being in force, sanctioned by the Commissioners under S. 30 and of the rules framed under S. 31 and also to the provisions of s. 34, the power of appointing, promoting, granting leave to, suspending, fining, reducing or dismissing, or of disposing of any other question relating to the services of the employees of the Commissioners including the power of disposing with the services of any such employee otherwise than by reason of the misconduct of such employee shall be exercised, in the case of employees whose maximum monthly salary exclusive of allowances is less than one thousand rupees, by the Chairman or the Deputy Chairman and in every other case by the Commissioners in meeting." I think that it cannot be disputed that the Commissioners for the Port of Calcutta, being a statutory body must act according to the statute of incorporation. See London County Council v. Attorney General, (1902) AC 165 and S. R. Tewary v. Dstrict Board of U.P., AIR 1964 SC 1680.In the last mentioned case. Shah, J. said as follows: "Powers of the statutory body are always subject to the statute which has constituted it, and must be exercised consistently with the statute, and the courts have, in appropriate cases, power to declare a body illegal or ultra vires, even if the Section relates to the determination of employment of a servant." Let us now come to the facts of the present case. The respondent was employed by the Commissioners for the Port of Calcutta. He was convicted under Ss. 147 and 323 of the Indian Penal Code and sentenced to a fine of Rs.30 under S. 147 I.P.C. in default to undergo rigorous imprisonment for the three weeks, and a fine of Rs.30 under S. 323 I.P.C., in default to undergo rigorous imprisonment for three weeks. He was first of all suspended and then by an order issued by the Traffic Manager was removed from his service. It is not disputed that he was not given any notice to show cause or in any way heard in his defence. That this is a violation of the rules of natural justice is obvious. The question is whether by such violation, the order of termination of the respondent's service has been vitiated and whether he can ask for redress in the writ jurisdiction.
(3.) That at the relevant time the Commissioners for the Port of Calcutta had not framed any rules under s. 31(1) is not disputed. The question is whether the appellants had adopted the rules that have been promulgated by the Central Government Prima facie an employee of a statutory body but not of a Government or a Government authority. He is, therefore, not a "civil servant". A civil servant is entitled to protection under Article 311 of the Constitution. The rules which are applicable to civil servants are also in conformity with it. Normally, a civil servant cannot be dismissed or removed without being given an opportunity of showing cause in his defence. If the appellants adopted these rules, then no employee of the Commissioners could be dismissed from service without giving him a like opportunity. As regards Civil Servants (Classification, Control and Appeal) Rules, 1957. The relevant rule is Rule 18 and is set out below: "Special procedure in certain cases - Notwithstanding anything contained in Rules 15, 16 and 17 - (i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules: or (iii) Where the President is satisfied that in the interest of the security of the State. It is not expedient to follow such procedure, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit. Provided that the Commission shall be consulted before passing such order in any case in which such consultation is necessary." The "commission" means the public service Commission.;