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TMI Blog1963 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... it in the nature of mandamus commanding the Board and the State of U.P. to treat the appellant as the lawfully appointed Engineer of the District Board and not to give effect to the resolution terminating the services of the appellant passed by the Board on October 18, 1954. The appellant averred that he had as Engineer of the Board rendered "flawless service" but a member of the Board named Tota Ram felt 'annoyed with' him 'for reasons which had nothing to do with the proper discharge of his duties as an Engineer,, and the President of the District Board was not "very happy with the" appellant for "reasons best known to" the President, that "he had spent the best part of his life in the service of the District Board and even though he has been honest and faithfull in the discharge of his duties the District Board, has capriciously and without any justification terminated" his services, and therefore the resolution of the Board terminating his services was invalid. On behalf of the Board an affidavit was filed stating that the appellant was guilty of "negligence, and unfaithfulness, and he was censured, his annual increment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of employment unlawful, and a consequential order for restoration in service. Reliance was placed in support of this plea upon Municipal Board, Shahjahanpur v. Sardar Sukha Singh (1), Ram Babu Rathaur v. Divisional Manager. Life Insurance Corporation of India (2) and Dr. S.B. Dutt v. University of Delhi (3). In our judgment none of these cases can be used to support the view that the High Court has no power to declare ,the statutory obligations of a statutory body. Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized 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 recognized. The Courts are also invested with the power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The rights and obligations of the parties rested in contract, and the award of the arbitrator that the dismissal of the employee was "ultra vires" was a mere flourish of language, having no meaning in the context of the dispute between the parties. The award was therefore declared to be one contrary to the rule contained in s. 21 (b)of the Specific Relief Act and hence void. The question whether the Court would be justified in granting a declaration about the invalidity of the action of a statutory body terminating the employment of a servant was raised before the House of Lords in Vina v. National Dock Labour Board L. R. [1957] A.C. 488. The plaintiff a dock worker in the reserved pool, under the scheme set up under the Dock-Workers (Regulation of Employment) Order 1947 failed to obey an order to report for work with a company of stevedores and the local board instructed their disciplinary committee to hear the case against the plaintiff. The committee terminated the employment of the plaintiff giving seven days' notice, and this decision was confirmed by the appellate board. The plaintiff then claimed in an action instituted by him a declaration that his purporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave, pay, allowances and privileges of servants of the board, who are employed whether temporarily or permanently, on a monthly salary of more than ₹ 40 and the power to appoint, grant leave of absence to, punish, dismiss, transfer and control such servants of the board, shall vest in the President, and the said powers in the case of all other servants of the board shall vest in the secretary' :" This clause is followed by four provisos, the last of which is material. It provides: "Provided fourthly, that the power to appoint and dismiss the engineer, the tax officer and the accountant of the board shall vest in the board, subject, in the case of dismissal, to a right of appeal to the State Government within one month of the order of dismissal." By s. 84 the provisions of ss. 79., 73, 80 and 82 are subject to the provisions of: (a) xxx (b) any rule imposing any conditions on the appointment of persons to offices or to any particular office requiring professional skill and on the punishment or dismissal of persons so appointed, and on their liability to service under the orders of any Government on the occurrence of any emergency: (c) xxx (d) any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieu of notice where his pay exceeds ₹ 15 and in other cases, not less than one month's notice or a sum equal to one month's pay in lieu of notice." The other material rule framed by Notification issued by the Government of U.P. dated March 25, 1946, is headed "Regulation regarding dismissal, removal or reduction of officers and servants of District Boards". It provides: "No officer or servant shall be dismissed, removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him. Any written defence tendered shall be recorded and a written order shall be passed thereon. Every order of dismissal, removal or reduction shall be in writing and shall specify the charge brought, the defence and reasons for the order." Even though this is designated a regulation it is conceded, and in our judgment rightly, by the Board and the State of U.P. that it is a rule framed in exercise of the powers conferred by s. 179 (2) and is not a regulation made in exercise of powers under s. 173, for the Act does not confer any power upon the State Government under cl. (2) of s./73 to fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith it the power to terminate appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint. The power to terminate employment is therefore to be found in s. 82 and the method of its exercise is prescribed by the rules referred to in s. 84. The rules deal with the conditions under which an officer or servant maybe dismissed (the dismissal being by way of punishment and also under which determination of employment may take place. It was urged that rule 3A does not indicate the authority by whom termination is to be effected. But in terms provides that the period of office of a permanent servant of the Board shall not determine until he has been given by the authority competent to appoint his successor notice of the duration specified. It is the notice which terminates the employment and the authority competent to give the notice is the authority competent to appoint the successor of the servant concerned. We are however unable to agree with the High Court that the expression "dismissal" in the fourth proviso to s. 82 includes termination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal, has by virtue of the rules framed under cl. (d) of s. 84 to be exercised consistently with rule 3A, and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under s. 84 (b) & (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contended that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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