- (1.) AS a common question of law arises in these four petitioners under article 226 of the Constitution, they have been heard together at the request of the learned counsel and will be disposed of by a single judgment.
(2.) PETITIONER Rameshwarlal ( in S. B. Civil Writ Petition No. 70 of 1968 ) was an employee of the State Government as a lower division clerk in the Rajasthan State Roadways Department. He passed the Accounts Clerk's qualifying Exmina-tion in 1964. The Rajasthan State Road Transport Corporation was constituted, and the petitioner's name appeared in the seniority list of the lower division clerks of the Corporation. He was selected for promotion as a Commercial Accounts Clerk, against a temporary post, by order Ex. 3 dated August 7, 1965, and was posted in that capacity at Udaipur. The State Government issued a notification on April 15, 1966 by which the employees were asked to exercise their option whether they wanted to continue in the service of the Corporation or of the State. The petitioner exercised the option to serve as an employee of the Corporation, and his service was thereafter transferred to the Corporation. The Corporation, however, issued order Ex. 5 dated December 29, 1967 reverting him as a lower division clerk on the ground that his work was not reported to be satisfactory as he had made some forged entries in the cash book The petitioner has challenged that order on the grounds that it was made in violation of the principles of natural justice and the provisions of article 311 of the Constitution. He has also urged that there was violation of the Civil Services (Classification, Control and Appeal) Rules, which are said to have been adopted under a resolution of the Corporation dated September 24, 1966. Some other grounds have also been taken, but it is not necessary to refer to them as they have not been referred during the course of the arguments. The petitioner has prayed that the order (Ex. 5) of his reversion dated December 29, 1967 may be quashed and the respondents may be directed not to interfere with his work as an Accounts Clerk in the service of the Corporation. Mahesh Bahadur Barnie (petitioner in S. B. Civil writ petition No. 106 of 1968) was working as a Development Officer in the service of the Life Insurance Corporation when he was dismissed by order Ex. 14 of the Zonal Manager of the Corporation dated July i5, 1967. It has been urged by him that the order of his dismissal was passed in breach of regulation 30 (1) of the (Staff) Regulations, 1960, and that certain other procedural irregularities were committed. He has urged further that the charges were not established against him and that a perverse view was taken of the evidence. He has also complained that his appeal against the order of his dismissal was wrongly rejected. He has therefore prayed for quashing the aforesaid order of his dismissal from the service of the Corporation. H. L. Bansal (petitioner in S. B. Civil writ petition No. 193 of 1971) was also a Development Officer in the service of the Life Insurance Corporation, but he was removed from service by order Ex. 12 dated January 24, 1970. He has urged that his dismissal was ordered in breach of the Regulations of the Corporation and the principles of natural justice, that the authorities concerned were biased against him, and that there was failure to consider some of the relevant evidence. He has also complained that certain terminal benefits were not allowed to him, and has prayed that the order of his removal may be quashed and he may be given all the benefits as if that order had never been passed. Om Prakash Sharma (petitioner in S. B. Civil Writ Petition No. 264 of 1971) was also a Development Officer in the service of the Life Insurance Corporation, but was removed from service by order Annexure 13 dated December 12, 1969. He has challenged that order on the grounds that it was made in breach of the Regulations of the Corporation the inquiry against him was a force, the conclusions which were drawn against him were not based on any evidence, and no adequate or reasonable opportunity was given to him to defend himself He has therefore prayed that the order of his removal may be may be quashed and the reinstated in his employment from the date of his removal. It will thus be seen that while petitioner Rameshwarlal was an employee of the Rajasthan State Road Transport Corporation, the other three petitioners were employees of the Life Insurance Corporation. I shall refer to the Corporations cumulatively as "the Corporations", and individually as "the Corporation". Some of the respondents have filed replies to the writ petitions in which they have traversed the claims of the petitioners altogether. A preliminary objection has been raised on their behalf that, even on the basis of the averments made by the petitioners, the petitions are not maintainable because the relationship between the petitioners and the Corporations was pure master and servant relationship so that their remedy, if any, lay by way of damages as there would be no specific performance of such contracts by virtue of sec. 14 of the Specific Relief Act. The question at the threshold therefore is whether the petitions are maintainable on the admitted facts ? A number of decisions have been rendered by their Lordships of the Supreme Court in which the question has been examined, and it will be proper to refer to them in a chronological order. I shall start with S. R. Tewari vs. District Board, Agra (l ). S. R. Tewari was an employee of the District Board of Agra, but the Board resolved to terminate his service by paying him salary in lieu of notice. He preferred an appeal to the Government of U. P. , but it was dismissed, and he then submitted a petition to the High Court of Allahabad under article 226 of the Constitution for quashing the resolution of the Board and the order by which his appeal was dismissed He also prayed for the issue of a writ of mandamus commanding the Board and the State Government to treat him as the lawfully appointed employee of the District Board. The High Court dismissed the petition, and S. R. Tewari took an appeal to the Supreme Court. Their Lordships examined the contention of the Board that the relief claimed by the petitioner could not be granted as his remedy lay by way of a claim for damages, and stated the law as follows, - "under the common law the Court will not ordinarily force an employer to retain the services of an employee when he no longer wishes to employ. But this rule is subject to certain well-recognised exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Art. 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognised. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do. " As their Lordships reached the conclusion that the Board had the power to determine the employment of the appellant and purported to exercise that power, they dismissed his appeal. Similar point came up for consideration before their Lordships of the Supreme Court in Life Insurance Corporation of India vs. Sunil Kumar Mukherjee (2 ). There a group of fifteen appeals was considered by their Lordships, and the common question before them was about the validity of the orders passed by the Corporation terminating the services of its employees. Their Lordships examined the provisions of sec. 11 (2) of the Life Insurance Corporation Act, 1956, and held that the provisions of the Order Which was made by the Central Government under that section was a "self-contained code" in regard to the material terms and conditions of service of the employees of the Corporation, and would prevail over the Corporation's own Regulations. They therefore dismissed the appeals of the Corporation and upheld the decision of the Calcutta High Court by which the impugned orders were quashed and a mandamus was issued directing the respondents not to give effect to them. The learned counsel for the petitioners have placed considerable reliance on their Lordships' decision in this case. I have gone through the decision and it appears that although it was given on a later date, the earlier decision of their Lordships of the Supreme Court in S. R. Tewari's cased) was not brought to their notice. Their Lordships, however, had an opportunity of considering the decision in Life Insurance Corporation of India vs. Sunil Kumar Mukherjee 2) in Executive Committee of U. P. State Warehousing Corporation, Lucknow vs. Chandra Kiran Tyagi (3) and explained it in the following manner, - "it will be seen that the services, as pointed out by this Court of the employees whose cases were under consideration, had been crystallised by the statute the Insurance Act - in Ss. 11 (1) and 11 (2); By virtue of the powers conferred by Sec. 11 (2), the Central Government issued the order on 30-12-1957. Cl. 10 of this order had clearly indicated the procedure to be adopted for terminating the services of such employees. Therefore the employees had their rights safeguarded by the Insurance Act read with the order issued by the Central Government and it cast a statutory obligation on the Life Insurance Corporation to adopt a particular procedure if the services of these employees were to be terminated. By not complying with the provisions of the Clause 10 of the order of the Central Government, which is really related to sec. 11 of the Insurance Act, the Life Insurance Corporation must be considered to have acted in gross violation of the mandatory provisions of the statute. Therefore it was not as if that the employees were there seeking to enforce a contract of personal service, but their grievance which was accepted by the Court was that the order terminating their services was a nullity as it had not been effected in terms of the statute. In our opinion, therefore, this decision does not support the contention of the respondent. " (Emphasis added ). While thus explaining the decision in Life Insurance Corporation of India vs. Sunil Kumar Mukherjee (2), their Lordships relied heavily on their earlier decision in S. R. Tewari's case (l), and went to the extent of extracting that very portion of that judgment which has been reproduced by me above. When the matter again came up before them in Indian Airlines Corporation vs. Sukhdeo Rai (4), their Lordships again distinguished the decision in Life Insurance Corporation of India vs. Sunil Kumar Mukherjee (2) on the ground that the order of the Central Government under sec. 11 (2) is that case was a "self-contained code" so that "the impugned dismissal made inconsistently with the provisions of the said order was without jurisdiction, and therefore, a nullity. " Their Lordships once again upheld their decision in S. R. Tewari's case and pointed out that it was not brought to the notice when the decision was taken in Sunil Kumar Mukherjee's case (2 ). It is therefore quite clear that the decision of their Lordships of the Supreme Court in Life Insurance Corporation of India vs. Sunil Kumar Mukherjee (2) can not be said to detract from the full vigour and operation of their earlier decision in S. R. Tewari's case (l ). The matter again came up for consideration before their Lordships of the Supreme Court in Mafatlal Narandas Barot vs. J. D. Rathod, Divisional Controller, State Transport Mehsana (5 ). That was a case relating to the Gujarat State Transport Corporation. There the service of a permanent employee of the Corporation was terminated without giving him an opportunity of showing cause, in contravention of a regulation of the Corporation. Their Lordships quashed the order; and great reliance has therefore been placed on their decision by the learned counsel for petitioner Rameshwarlal. The real nature of that decision was, however, considered by their Lordships of the Supreme Court in Indian Airlines Corporation vs. Sukhdeo Rai (4) when it was cited as their Lordships' authority, in the case of the dismissal |of an employee of the Indian Airlines Corporation, and they explained it away with the following observation, - "but the decision in Barot vs. S. T. Corporation, 1966 (3) SCR 40 - (AIR 1966 S. C. 1364) would seem to support the respondent. There, the order of termination of the appellant's service by the Corporation, a body set up under the Road Transport Corporation Act, 1950, was held to be bad in law on account of its being in contravention of cl. (4) (b) of the Regulations containing service conditions framed by the Corporation under the power given to it by the Act. But the question whether the said Regulations constituted a statutory obligation subject to which only the power to terminate the employment could be exercised or not, or the question whether they took out the employment out of master and servant relationship was not canvassed. Neither the decision in S. R. Tewari's case (1964) 3 S. C. R. 65 - (AIR 1964 S. C. 1680) nor any other similar decision was also, it seems, brought to the notice of the Court. " The decision in Mafatlal Narandas Barot's case (5) cannot therefore be said to express the final view of the Supreme Court and it also does not detract from the pronouncement of the law in S. R. Tewari's case (l ). The next case is Rajasthan State Electricity Board, Jaipur vs. Mohan Lal (6 ). But that was an altogether different case for there the employer was the Rajasthan State Electricity Board which was held by their Lordships to be "other authority" within the meaning of article 13 of the Constitution, as it was, inter alia, invested by statute with the power to give directions, the disobedience of which was punishable as a criminal offence. As such there is nothing in that judgment to detract from the view taken and enunciated in S. R. Tewari's case (l ).
(3.) I then come to Executive Committee of U. P. State Warehousing Corporation vs. Chandra Kiran Tyagi (3), to which reference has been made already. The petitioner there was an employee of the U. P. Warehousing Corporation, which was constituted under the Agricultural Produce ( Development and Warehousing ) Corporations Act, 1956. Their Lordships of the Supreme Court examined the question as to when and under what circumstances a relief by way of declaration regarding continuity of service could be given and, after making a reference to the observation of Lord Keith of Avomholmin Vine vs. National Dock Labour Board (7), and Barber vs. Manchester Regional Hospital Board (8), they referred to their own two earlier decisions including the decision of S. R. Tewari's case (l), and stated the law in the following terms,. . . "from the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are : To grant such a declaration in appropriate cases regarding (l) a public servant, who has been dismissed from service in contravention of Art. 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute. " Their Lordships reached the conclusion that a violation of the relevant regulation could only result in the order of dismissal being held to be wrongful and in consequence, making the Corporation liable for damages, but it could not be held to be one which had not terminated the service, albait wrongfully, or which entitled the respondent to ignore it and ask for being treated as stilt in service. Their Lordships therefore allowed the appeal and dismissed the claim of the employee. Then I come to Indian Airlines Corporation vs. Sukdeo Rai (4), to which also I have made a passing reference already. That was a case relating to the dismissal of an employee of the Corporation in contravention of the Regulations made under the Air Corporation Act, 1963, Their Lordships held that such a dismissal could not be declared to be null and void, and expressed their view as follows - "the regulations contain the terms and conditions which govern the relationship between the Corporation and its employees. Though made under the power conferred by the statute, they merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with its servants or the grounds on which it can terminate them. That being so, and the Corporation having undoubtedly the power to dismiss its employees, the dismissal of the respondent was with jurisdiction, and although it was wrongful in the cause of its being in breach of the terms and conditions which governed the relationship between the Corporation and the respondent, it did subsist. The present case, therefore, did not fall under any of the three well recognized exceptions, and therefore, the respondent was only entitled to damages and not to the declaration that his dismissal was null and void. " This decision of their Lordships of the Supreme Court was thus based on what they called "the three well recognized exceptions" which they had set out in S,r. Tewari's case (l ). It may be mentioned that their Lordships made a reference to Vine vs. National Dock Labour Board (7), Barber vs. Manchester Regional Hospital Board (8) and Ridge vs. Baldwin (9) among the cases which were taken by them into consideration for arriving at their decision. The last case of their Lordships of the Supreme Court is Vidya Ram Misra vs. Managing Committee, Sri Jai Narain College (lo ). That was a case relating to a lecturer of the Jai Narain College, Lucknow, whose service was terminated by a resolution of the Managing Committee of the College. Their Lordships held that as the cause of action was not on breach of the law, but only on contract, the remedy was by a suit and not by a petition under article 226 of the Constitution. In reaching this conclusion their Lordships relied on S. R. Tewari vs. District Board Agra (l), Executive Committee of U. P. State Warehousing Corpo-tion, Lucknow vs. Chandra Kiran Tyagi (3) and Indian Airlines Corporation vs. Sukhdeo Rai (4), and expressly referred and extracted the same portion of their decision in S. R. Tewari's case (l) to which reference has been made above, for the purpose or reiterating the three well recognized exceptions to the rule in the case of master and servant relationship. Their Lordships also made a reference to the decisions in Vine vs. National Dock Labour Board (7), Barber vs. Manchester Regional Hospital Board (8), Ridge vs. Baldwin (9), and Malloch vs. Aberdeen Corporation (ll ). It is therefore abundantly clear that the decision of their Lordships of the Supreme Court in S. R. Tewari's case (l) has held the field throughout; and the present cases must be examined with reference to it. Before doing so I may, however, refer to the decisions which have been cited by the learned counsel for the petitioners to the contrary. They have made a reference to State of Uttar Pradesh vs. Babu Ram Upadhya (l2) for the purpose of showing that the Police Regulations were held to be operative and formed the basis of relief in a petition under article 226 of the Constitution. The decision was however considered and explained by their Lordships of the Supreme Court in U. P. State Warehousing Corporation, Lucknow vs. Chandra Kiran Tyagi (3 ). Their Lordships did not consider it as laying down a contrary proposition because it dealt with a member of the public service to whom protection had been given under the Constitution. Such cases, according to their Lordships, "stand apart". S. V. Raman vs. Madras State Warehousing Corporation (13) was a case relating to the State Warehousing Corporation in which it was held that the Corporation enjoyed quasi-governmental functions and its order removing an employee was amenable to writ jurisdiction. The decision appears, however, to have been based on Life Insurance Corpn. of India vs. Sunil Kumar Mukherjee (2) and Mafatlal Narandas Barot vs. J. D. Rathod (5), while their Lordships' decision in S. R. Tewari's case (l) was not noticed at all although, as has been shown, that was the leading case on the subject and had held the field all through. In fact even their Lordships' decision in UP. State Warehousing Corporation, Lucknow vs. Chandra Kant Tyagi (3) was not noticed even though it related to a warehousing corporation. So also the decision in Indian Airlines Corporation vs. Sukhdeo Rai (4) was also not noticed. In these circumstances, with all respect, I am unable to subscribe to the view taken in S. V. Raman vs. Madras State Warehousing Corpn. (13 ). The learned counsel for the respondents have relied on two decisions of their Lordships of the Andhra Pradesh High Court in Kailas Pati vs. Governing Council of Sri Rama-chandra Arts and Science College, Kothagudem 14) and Muvvla Narasimha Rao vs. Works Manager, Andhra Pradesh State Road Transport Corporation, Vijaya-wada (15 ). The first of these two cases appears to have no bearing on the present controversy, and so far as the second case is concerned it will be sufficient to say that the decision was based mainly on Mafatlal Naraindas Barot vs. B. D. Rathod, Divisional Controller, State Transport Mehsana (5), but, if I may say so with respect, the learned Judges did not take note of the view which their Lordships of the Supreme Court took of that case in Indian Airlines Corporation vs. Sukh Deo Rai (4 ). | These cases cannot therefore avail to the petitioners and the only proper course for me is to examine the present cases in the light of the decision in S. R. Tewari's case (l) which contains the considered view of their Lordships of the Supreme Court. ;