The General Manager, Pepsu Road Transport Corporation, Patiala vs S. Gurdip Singh and Others

H.R. Khanna, J.—This Letters Patent Appeal filed by the General Manager, Pepsu Road Transport Corporation, Patiala, is directed against the order of the learned Single Judge, whereby he accepted the petition under Article 226 of the Constitution of India of Gurdip Singh respondent (hereinafter referred to as the respondent), and set aside the order terminating the services of the respondent.

The brief facts of the case are that the respondent was appointed a temporary Inspector of Pepsu Roadways by Traffic Manager, Pepsu Roadways, Patiala, on the 13th January, 1955. The respondent continued to work as a temporary Inspector till he was suspended from service on the 11th March, 1960. A show cause notice was issued to the respondent on the 31st May, 1960 as to why his services should not be terminated. Ultimately on the 4th July, 1960 the General Manager passed an order terminating the services of the respondent with immediate effect. The respondent thereafter filed the present petition under Article 226 of the Constitution on the ground that the order about the termination of his services was void and without jurisdiction as it infringed the mandatory provisions of Article 311 of the Constitution of India and the principles of natural justice.

The petition was resisted by the Pepsu Road Transport Corporation inter alia on the ground that the respondent was not a Government servant and Article 311 of the Constitution did not apply to his case. The order of termination of the services of the respondent was stated to have been validly made. The learned Single Judge held that the appellant could not raise an objection about the applicability of Article 311 of the Constitution. It was further held that the services of the respondent had been terminated on unsubstantiated grounds. The order terminating the services of the respondent was, accordingly, set aside.

In appeal it has been vehemently contended on behalf of the appellant that the respondent is not a Civil servant and as such cannot invoke the benefit of Article 311 of the Constitution. In this connection I find that Pepsu Roadways at the time the respondent was employed was a Government concern. Subsequently, Pepsu Roadways became a Corporation under the Road Transport Corporation Act, 1950 (64 of 1950), aid Mr. Nehra, learned counsel for the respondent, has frankly conceded that Pepsu Roadways was a Corporation under the above mentioned Act at the time proceedings culminating in the termination of the services of the respondent were commenced. His contention, however, is that as Pepsu Roadways was a Government concern at the time the respondent was employed, the respondent is entitled to the protection of Article 311. In my opinion this contention is devoid of force. In order to see whether a person is entitled to the benefit of Article 311 of the Constitution we have to look to the post he is holding at the time disciplinary action is taken against him Article 311 applies only to a person who is a member of a Civil service of the Union or an All India service or in Civil service of a State or holds a Civil post under the Union or a State. The respondent, was admittedly an employee of the corporation formed unper the Road Transport Corporation Act at the time the disciplinary action was taken against him. In the circumstances he could not be deemed to be a Civil servant or one belonging to any of the categories mentioned in Article 311. The fact that Pepsu Roadways was at one time a Government concern would also be of no avail to the respondent because the respondent, who was a temporary employee, ceased to be a Government servant as soon as the Pepsu Roadways became a Corporation under the above mentioned Act. t is also nobody''s case on the present record that the respondent, who was a temporary employee, holds any lien, after the formation of the Road Transport Corporation, on a Civil post.

There can also, in my opinion, be no doubt on the point as to whether the employees of a Corporation formed under the Road Transport Corporations Act can be deemed to hold Civil posts. Section 3 of the Act authorises the State Government to establish by notification in the official Gazette a Road Transport Corporation for the whole or any part of the State. u/s 4 every Corporation shall be a body corporate by the name notified u/s 3 having perpetual succession and a common seal, and shall by the said name sue and be sued. Chapter IV of the Act makes provision for the creation of a separate capital and funds for the Corporation and the Corporation has been authorised to borrow, to make budget for receipt and expenditure, to spend and distribute the net profits. These circumstances show that Corporation is an entity distinct and separate iron the State. There are two case Mahammad Ali Vs. The State, and Domodar Valley Corpora ion v. Provat Roy 60 C.W.N. 1023, relating to Damodar Valley Corporation which was set up by the Government for the purpose of discharging certain functions of the Union and State Governments. In both these cases it was held that Damodar Valley Corporation being an independent statutory body, its employees could not be deemed to hold civil posts and as such entitled to protection of Article 311 of the Constitution Subodh Ranjan Ghosh Vs. Sindri Fertilisers and Chemicals Ltd. and Another, , was a case relating to Sindri Fertilisers and Chemicals Limited. The shares of that Company were held by the President of India and the Secretary of the Production Department. The President was also authorised to remove any of the Directors from his office in has absolute discretion. It was held that the Company was a separate legal entity and had a separate legal existence and could not be said to be a department of the Government. It was further observed that the Court was not entitled to "pierce the well of the Corporate entity and to examine the reality beneath." A Full Bench of the Allahabad High Court in Mohammad Ahmad Kidwai Vs. Chairman, Improvement Trust, Lucknow, . held that the employees of as Improvement trust could not claim the benefit of Article 311 of the Constitution. In Life Insurance Corporation of India Vs. Sunil Kumar Mukherjee and Others, the Court assumed that the employees of the Life Insurance Corporation were not entitled to the benefit of Article 311 of the Constitution and were governed by the Rules and Regulations of the Corporation. A case practically on all fours is reported in Prafulla Kumar Sen Vs. Calcutta State Transport Corporation and Others, . The petitioner in that case was appointed in the year 1949 when road transportation was a department of the Government of West Bengal. On 15th June, 1960 the Government of West Bengal, established a Road Transport Corporation, known as the Calcutta State Corporation, in exercise of its powers u/s 3 of the Road Transport Corporation Act. The services of the petitioner then stood transferred to the Calcutta State Transport Corporation. An enquiry was held against the petitioner on certain charges of misconduct and he was dismissed. The petitioner then approached the High Court by means of a petition under Article 226 of the Constitution and it was urged on his behalf that he held a civil post and was entitled to the benefit of Article 311 of the Constitution. This contention was repelled. I thus find that there is a consensus of opinion and overwhelming authority for the proposition that the employees of a Corporation like the Pepsu Road Transport Corporation are not persons holding civil posts and as such entitled to the benefit of Article 311 of the Constitution.

The learned Single Judge held that the appellant was not entitled to raise an objection about the non-applicability of Article 311 of the Constitution because there was reference to Article 311 in the order dated the 4th July, 1960 by which the services of the respondent were terminated. In my opinion a mistaken reference to Article 311 by the General Manager of the Corporation would not debar the appellant from taking the plea that Article 311 does not apply in the case of the respondent. It is well settled that there can be no estoppels on a question of law.

Mr. Nehra on behalf the respondent has argued that respondent''s services were not terminated in accordance with the rules and regulations on the subject. There is neither any reference to those rules and regulations in the writ petition nor were they placed before us at the hearing of the appeal, and in view of that it cannot be held on the material on record that there has been any infraction of such rules and regulations.

The appeal is, accordingly, accepted. The order of the learned Single Judge is set aside and the respondent''s petition is dismissed. In the circumstances of the case I make no order as to costs of the appeal.

Grover, J.

I agree.