V APPALANARASIMHAM Vs. VISAKAPATNAM PORT TRUST

JUDGEMENT

(1.) THIS writ petition has travelled from a learned single Judge to a Division Bench and then to us sitting in a Full Bench. That is because of the objection raised by the 1st respondent, viz. , the Visakapatnam Port Trust as to the maintainability of the writ petition against it. The highest Court of the land has itself spoken on the subject very many times, but not always uniformly. After several pronouncements on the question, the Supreme Court held in Sirsi Municipality v. C. K. F. Tellies 1973--I L. L. J. 226 : AIR 1973 SC 855, that though an ordinary relationship of master and servant is governed by contract, there are certain exceptions to that rule. If a dispute arises under the industrial law or if it is the case of a servant in the employment of State or public or local authority or bodies created under statute, the Court can step in if the dismissal is contrary to rules of natural justice or the provisions of the statute or mandatory procedural requirements and declare the dismissal to be a nullity. It was further held that such implication of public employment is thus distinguished from private employment in the case of master and servant. While rendering the decision the Supreme Court has distinguished its earlier decisions in Executive Committee of U. P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi 1970--I L. L. J. 32 and Indian Airlines Corporation v. Sukhdeo Raj 1971--I L. L. J. 496 : (1971) 2 SCC 192 and followed its earlier decision in S. R. Tiwari v. Dish Board, Agra (1964) 2 SCJ 300 :

(2.) BEFORE we examine what exactly are the implications of Sukhdev Singh's case (supra) let us have a look at the facts of the writ petition. The petitioner claims to be an approved candidate and to have been appointed as a temporary typist with [effect from 17-5-1965. He was declared to have satisfactorily completed the period of probation with effect from 3-7-1965. On his request he was transferred as a trains clerk in the Traffic Department. The Traffic Manager approved and appointed him as a temporary typist in the service of the Visakapatnam Port Trust (Rule 1 ). The Traffic Manager declared on 17-4-1969 that he was suitable to be appointed in a quasi permanent capacity under the Visakapatnam Port Employees (Temporary Service) Regulations, 1964. He applied to the secretary of Port Trust for confirming him in the category of typist on Port Trust seniority basis. The petitioner again applied to the Chairman that his transfer to the Secretary's Office or to any other department preserved his seniority. He specifically requested that the period of service put in by him as trains clerk should be taken into account in fixing his seniority as typist. His request was acceded to and he was posted as typist in the Office of the Chief Engineer (Project ). When five posts of typists were upgraded as senior typists, respondents 2 and 3, who were juniors, to him were promoted and his seniority was fixed after one Venkataraju. This decision was rested on his service in the category of typist only. His representation was rejected holding that his service as trains clerk could not be reckoned for the purpose of determining seniority in the category of typist. The Employees' Union took up his cause but their representations also met with the same fate. Consequently, the present writ petition is filed to quash the proceedings of the secretary dated 16-6-1971, to issue a consequential direction to the 1st respondent to restore his order of confirmation in the category of typist, to reckon his service as trains clerks for the purpose of seniority in the category of typist and to promote him as senior-typist with retrospective effect from 10-5-1971 with all consequential benefits.

(3.) THIS claim of the petitioner is opposed by the Port Trust represented by its Secretary not only on merits but also on the basis of the contention that a writ petition is not maintainable against the Visakapatnam Port Trust since it is neither a State within the meaning of Article 12 of the Constitution or any other authority contemplated by that Article or Article 226 of the Constitution. It is no better than a company authorised to carry on certain functions assigned to it under the provisions of the Major Port Trusts Act. The relationship of the petitioner with the port trust is purely that of a master and servant and thus contractual and no writ can lie for the alleged violation of purely contractual obligations.