VINOD KUMAR Vs. H.R.T.C.

JUDGEMENT

(1.) Whether the respondent Himachal Road Transport Corporation (Corporation for short) is a Corporation controlled by the State Government, is the basic question requiring decision of this Full Bench. In case the answer to this question be in the affirmative, the decision of the Us raised in this petition would require decision by the State Administrative Tribunal constituted under the Administrative Tribunal Act, 1985 (hereinafter referred to as the Act) and this Court will have no jurisdiction to deal with it because of section 28 of the said Act. Since during the hearing of this writ petition before a Division Bench, a Full Bench judgment of the Andhra Pradesh High Court was cited to submit that section 28 of the Act, to the extent it divests jurisdiction of this Court under Article 226 of the Constitution, was ultra vires, it was thought fit and proper to got the controversy decided by a Full Bench of this Court. That is how the Full Bench has been constituted and is deciding the aforesaid question in this writ petition. It may also be noticed that this Court vide its interim order dated 30 -4 -1999 , directed the respondent -Corporation to re -engage the petitioner and the respondent Corporation had challenged the validity of the said order by filing Civil Misc. Appeal in the Supreme Court, The aforesaid jurisdiccional question was specifically raised before the Supreme Court but was not decided by the said Court because writ petitions were pending for final disposal of this Court. The Supreme Court has, however, directed that these petitions be heard and disposed of before the commencement of winter vacation.

(2.) The petitioner is admittedly an employee of the respondent - Corporation discharging duties of a bus conductor. His bus was checked on 2 -10 -1990 by the Inspector of the respondent Corporation when it was found that the petitioner was carrying certain passengers without tickets, though fare from the said passengers had already been collected. A charge -sheet was, therefore, issued against the petitioner seeking his explanation. Thereafter an enquiry was held in which he (petitioner) was found guilty of the charges. Thereafter the petitioner was given a show cause notice to which he submitted reply and on consideration of the same together with the material collected during the departmental enquiry, he was removed from the employment by order dated 27 -4 -1993 (Annexure PE). The legal validity of this order is under challenge in this petition filed under Article 226 of the Constitution of India.

(3.) It appears that the State Government exercising its power under section 15 (2) of the Act, specified the first September, 1986 as the date from which the provisions of section 15 (3) of the said Act shall apply to the local or other authorities and Corporations or Societies controlled or owned by the State Government. Because of the aforesaid notification, it is submitted that the dispute regarding removal of the petitioner has been included within the exclusive jurisdiction of the State Administrative Tribunal and hence this Courts jurisdiction under Article 226 of the Constitution is excluded by section 28 of the Act. The submission of the learned Counsel for the petitioner is that section 28 of the Act is unconstitutional inasmuch as it takes away constitutional jurisdiction of this Court under Article 226 which cannot be done except by amendment of the aforesaid Article in accordance with the provisions of the Constitution The aforesaid submission is based on the Full Bench judgment of the Andhra Pradesh High Court dated 26th October, 1993 in a batch of writ petitions. A copy of the said judgment has been made available to us for our perusal. According to the Full Bench of the said High Court, Article 323 -A (2) (d) of the Constitution is itself unconstitutional to the extent it empowers the Parliament, by law, to exclude the jurisdiction of the High Court under Art. 226. Consequently, section 28 of the Act was also held to be unconstitutional and invalid We are informed that an appeal against this decision has been filed in the Supreme Court and the said Court has been pleased to stay the operation of this judgment In view of the stay of the aforesaid judgment, this Court cannot rely on the same As far as constitutional validity of the Act and various provisions thereof is concerned, the same remains decided by the Supreme Court in S P Sampath Kumar v. Union of India, (1987) 1 SCC 124; J. B. Chopra and others v Union of India and others, (1987) 1 SCC 422; and Union of India v. Deep Chand Pandey, (1992) 4 SCC 432. Though the learned Counsel for the petitioner submitted that the decision in Sampath Kumars case (supra) is likely to be reconsidered by a larger Bench, we would for that reason not hold that the law declared by the Supreme Court in that case has ceased to be binding. In this view of the matter, it is the considered view of this Court that the constitutional validity of section 28 of the Act is not open to challenge in view of the aforesaid Supreme Court decision. This is also the decision of this Court in Jeet Ram Thakur v H P. University, 1988 (2) Sim LC 51. The notification dated 29 8 -1986 issued by the State Government under section 15 (2) of the Act without doubt makes the provision of section 15 (3) of the Act applicable to the ¢local and other authorities and Corporations and Societies controlled and owned by the State Government. According to this notification if the respondent Corporation is covered by the word "other authorities" or is held to be a "Corporation controlled by the State Government" the proper forum for adjudication of the dispute raised in this writ petition would be the State Administrative Tribunal and not this Court. The Corporation according to the learned Counsel for the petitioner, is constituted and established under section 3 of the Road Transport Act, 1950 (referred to as the Transport Act), and is a body -corporate having its own independent existence. Relying on the decision of the Andhra Pradesh High Court in Andhra Pradesh State Road Transport Corporation represented by its Chief Executive Officer, Hyderabad. Income Tax Officers, B\, B Ward Hyderabad and another, AIR 1962 AP 323, it is submitted that the respondent -Corporation is neither owned nor controlled by the State Government It is therefore, submitted that the aforesaid notification would not be applicable to service matters relating to respondent -Corporation Learned Counsel for the respondents, however, submitted that the Corporation is no doubt a body -corporate having its own independent existence, but inspite of the same, it is controlled by the State Government. It is, therefore, submitted that the said notification would be applicable and this Court will have no jurisdiction to deal with the present dispute. The learned Counsel for the respondents frankly conceded that the Corporation is not owned by the State Government and hence this question would not require our decision.