judgement:
ivil Appeal No. 3704 of 1989.
From the Judgment and Order dated 11.3.1987 of the Bombay High Court in Second Appeal No. 725 of 1980.
437 U.R. Lalit, G.A. Shah, V.N. Ganpule for the Appellants.
D.A. Dave, R. Karanjawala, Ms. M. Karanjawala and Jatin der Sethi for the Respondents.
The Judgment of the Court was delivered by SAWANT.J.
This is a case where the High Court in second appeal has interfered with a pure finding of fact recorded by the First Appellate Court for no worthwhile reason, and ignoring the mandatory provisions of Section 100 of the Civil Procedure Code.
The only question which was involved in the suit was whether the suit properties in which the plaintiff claimed one fifth share, were the ancestral joint family properties or whether they were the self acquired properties of his father, Ramchandra.
The relevant facts are: defendant No. 1, Ramchandra had four sons including the plaintiff, and a daughter.
The three other sons and the daughter are defend ants Nos. 2 to 5.
One of the sons, defendant No. 3 appears to support the plaintiff.
During the pendency of the suit, Ramchandra died and his sons including the plaintiff have been brought on record as his heirs and legal representa tives.
The suit properties consisted of lands being (i) Survey No. 21/1 admeasuring 14 acres 3 gunthas, (ii) Survey No. 20/2 admeasuring 2 acres 36 gunthas, (iii) Survey No. 20/1 admeasuring 3 acres 30 gunthas and two houses all situated at Nizampur, Taluka Saaki, District Dhuiia.
It was the case of the plaintiff in his plaint that a joint family consisting of his father Ramchandra and his brother, Supadu owned several houses, and a land comprised in Survey No. 71 admeasuring about 14 acres.
In the partition between Ram chandra and Supadu, two houses and Survey No. 71 came to the share of Ramchandra The said two houses are included in the suit properties and it is not disputed on behalf of the respondent defendants that they are ancestral properties and the plaintiff has one fifth share in the same.
However, the case of the plaintiff that Survey No. 71 was the ancestral property was vehemently disputed and that has been the sheet anchor of contention of both the parties while the plaintiff claims that rest of the suit properties were purchased by Ramchandra out of the income and subsequently the sale proceeds, of the said land (since admittedly the said land was sold by Ramchandra in 1953), it is the case of the defendants that the said land was in fact purchased jointly by Ramchandra and his brother, Supadu out of their own earnings, and in the partition between Ramchandra and Supadu that land came to the share of Ramchandra.
Hence, according to the defendants, even 438 assuming that the rest of the suit properties were purchased with the help of the income from Survey No. 71, they were the self acquired properties of Ramchandra.
In support of his case that Survey No. 71 was the ancestral property, the plaintiff relied upon the fact that the said survey No. had come to the share.
of Ramchandra in a general partition between him and his brother, Supadu in 1918.
As against this, the defendants contended that Ram chandra 's father Pandu died in 1904 and since the property all along stood in the name of Supadu it showed that it was purchased after Pandu 's death in 1904.
They also relied upon the fact that Ramchandra was a skilled goldsmith and was well known for his artisanship and commanded good business.
His brother was also a goldsmith and both of them had pur chased the said land with the earning in goldsmithery.
It was also their case that Ramchandra 's father, Pandu had only two houses and no other property nor did he carry on any business even of goldsmithery.
Hence, there was no question of purchasing Survey No. 71 out of the income from the ancestral property by Ramchandra and Supadu and the purchase was with the help of the income which they had earned from the business which they were carrying on by their own skill.
It was also shown by the defendants that when Survey No. 71 was sold in 1953, no objection whatsoever was taken to the sale nor permission of any of the sons including that of the plaintiff was deemed necessary for the same.
They further contended that they had hardly any income from Survey No. 71 and the properties which were purchased prior to 1953 could not have been purchased with the help of any such income assuming that it was an ancestral land.
According to them, therefore, the suit properties were purchased only from the income from the business of goldsmithery.
The three of the properties were purchased prior to 1953 while the rest were purchased long after 1953, i.e. in 1961, 1965 and 1967.
Hence, their purchase had no relation to the sale of Survey No. 71 in 1953, again assuming that it was an ancestral property.
It is for these reasons, according to them, that the suit properties except the two houses which were admit tedly the ancestral properties were not the joint family properties in which the plaintiff could claim his share.
The relevant issues were framed including the issue as to whether defendants proved that the suit properties were self acquired and plaintiff had no share in it.
The Trial Court answered the said issue in favour of the plain tiff and decreed the suit against the defendants.
Against the said decision, the defendants appealed and the First 439 Appellate Court after reappreciating the evidence and point ing out the infirmities in the conclusions arrived at by the Trial Court, dismissed the suit except to the extent of the plaintiff 's share in the two ancestral houses.
It may be mentioned here that although Ramchandra, defendant No. 1 died during the pendency of the suit, he had willed out his properties in favour of the defendants and, therefore, the plaintiff had no share in the self acquired properties of Ramchandra which could have been granted to him otherwise.
The First Appellate Court held that the following circumstances showed that the suit properties except the ancestral houses were the self acquired properties of Ram chandra.
The first circumstance was that Survey No. 71 was purchased in the name of Supadu which showed that in all probability the property was purchased after the death of Ramchandra 's father, Pandu.
Secondly, since there was no record to show that Pandu had any lands or was carrying on any business, Survey No. 71 must have been purchased by Ramchandra and Supadu with the help of their earnings.
It was not disputed and in fact it was admitted that Ramchandra was a skilled goldsmith and was carrying on business of goldsmithery along with his brother, Supadu and was earning sufficient income with the help of which he could purchase the properties.
Survey No. 71 further was sold in 1953 without obtaining the consent of the other members of the family.
Had it been the joint family property the vendee would have insisted upon such consent.
The High Court interfered with these findings on grounds which were not even made out by the plaintiff either in the plaint or in his evidence and which were contrary to the admissions of the plaintiff himself.
The High Court held that since the property had come to the share of Ramchandra in general partition, it must be held that it was an ances tral property.
The High Court further held that Survey No. 71 was yielding sufficient income with the help of which the other properties would have been purchased and further the goldsmithery business was an ancestral business and, there fore, the properties purchased with the help of such income should also be held to be joint family properties.
It may be stated here that the learned counsel appearing for the appellant defendants wanted to produce before us documents to show that in fact Survey No. 71 was purchased in the year 1907 by Ramchandra and his brother Supadu after the death of their father, Pandu in 1904, and that in the Revenue records the property always 440 stood in the name of Supadu.
We did not permit him to pro duce the said documents since no explanation whatsoever was available as to why the documents were not produced before the courts below.
However, it was not disputed at any time that the property had all along stood in the name of Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of Pandu cannot be said to be unreasonable.
Secondly, there is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No; 71.
In fact, the uncontroverted evidence on record shows that Ramchandra who had entered the witness box had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labour ers who brought their own implements and bullocks.
This shows that the family derived less than normal income from the said land.
Secondly, it was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such, and was doing his business as goldsmith and earning sufficient income.
It was not his case further that the goldsmithery was the ancestral business.
However, the High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so.
What is further, the plaintiff 's case was that the suit properties were purchased with the income from Survey No. 71.
Thus it is obvious that the conclusions ' which were arrived at by the first Appel late Court were reasonable and legal besides being conclu sions of facts.
There was, therefore, no question of law involved in the second appeal.
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved a substantial question of law it could not entertain it and that before it could entertain it, the Court had to formulate such question.
We are, therefore, more than satisfied that the High COurt has erred in law in interfering with the decree passed by the First Appellate Court.
We, therefore, allow the appeal, set aside the decision of the High Court and restore the decree passed by the First Appellate Court.
Since the parties belong to one family we pass no order as to costs.
G.N. Appeal al lowed.

summary/full:
S and R were brothers who carried on the business of gold smithery, and a partition took place between them in 1918.
R got 2 houses and land in Survey No. 71.
Later on, one of the sons of R instituted a suit claiming that Survey No. 71 was an ancestral property and that some of the suit properties were purchased by R out of the income, and subsequently the sale proceeds, of the land.
The defendants, viz., the other children of R contended that Survey No. 71 was purchased by S and R with the income they derived from gold smithery and the suit properties except the two houses which were admittedly the ancestral properties, were not the joint family properties in which the plaintiff could claim his share.
The Trial Court decreed the suit in favour of the plain tiff.
On appeal by the defendants, the First Appellate Court reappreciated the evidence, found infirmities in the conclu sions arrived at by the Trial Court and dismissed the suit except to the extent of plaintiff 's share in the two ances tral houses, on the basis of its finding that the other properties were self acquired properties of R. During the pendency of the suit R died.
By virtue of his will the self acquired properties of R went to the defend ants and the plaintiff was left out.
The plaintiff preferred an appeal before the High Court against the order of the First Appellate Court.
The High Court interfered with the said findings of facts and held that since Survey No. 71 had come to the share of R in general partition, it was ancestral property.
it further observed that since the said property was yielding income with the help of which the other properties could have been purchased and since 436 further the gold smithery business was an ancestral busi ness, the properties purchased with the help of such income should be held to be joint family properties.
Aggrieved, the defendants have filed this appeal.
Allow ing the appeal, HELD: 1.
There was, no question of law involved in the second appeal.
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved substantial question of law it could not entertain it and that before it could entertain it, the Court had to formulate such question.
[440F] 2.1 It was not disputed at any time that the property in Survey No. 71 had all along stood in the name of Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of his father cannot be said to be unreasonable.
There is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No.71.
In fact, the uncontroverted evidence on record shows that Ramchandra had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labourers who brought their own implements and bullocks.
This shows that the family derived less than normal income from the said land.
It was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such, and was doing his busi ness as goldsmith and earning sufficient income.
[440A D] 2.2 The High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so.
What is further, the plaintiff 's case was that the suit properties were purchased with the income from Survey No. 71.
Thus it is obvious that the conclusions which were arrived at by the First Appellate Court were reasonable and legal besides being conclusions of facts.
[440D E]


judgement:
ivil Appeal Nos.
3392 3394 of 1990.
From the Judgment and Order dated 30.11.
1989 of the Andhra Pradesh High Court in W.A. No. 269/89, dated 30.8.1988 in W.P. No. 12041/84 and dated 26.11.1987 in W.P. No. 194 of 1983.
P.K. Goswamy, Additional Solicitor General, M.K. Ramamurthy, C. Sitaramaiya, M.L. Paul, Kailash Vasdev, Ms. M.M. Rasaily, M.A. Krishnamurthy, Mrs. C. Ramamurthy, T.V.S.N. Chari, Mrs. B. Sunita Rao and Ms. Majula Gupta for the Appearing Parties.
The Judgment of the Court was delivered by KASLIWAL, J.
Special leave granted.
All the above cases are disposed of by one single order as identical questions of law are involved in all these cases.
In order to appreciate the controversy, facts in brief are stated of all these cases.
SLP No. 4176 of 1988: The respondent Vijaya Kumar was appointed as a Proba tionary Officer (Gr.
I Officer) by an Order of the Executive Committee of the Central Board of the State Bank of India on 7.12.71.
The respondent was charge sheeted in respect of gross irregularities and corrupt ?401 practices and was ultimately dismissed from service by an order dated 22.12.88 passed by the Chief General Manager of the Bank.
Shri Vijay Kumar filed a writ petition No. 194/83 before the Andhra Pradesh High Court challenging his order of dismissal.
A Division Bench of the High Court heard the writ petition alongwith writ appeal No. 141/86 and allowed the writ petition but dismissed the writ appeal by order dated 26.11.87.
The State Bank aggrieved against the afore said order of the High Court passed in writ petition No. 194/83 has filed this special leave petition.
The High Court has allowed the writ petition only on one ground that the appointing authority of Vijaya Kumar was Executive Committee of the Bank and as such Chief General Manager being an authority lower than the appointing authority was not compe tent to pass an order of dismissal.
SLP No. 15235 of 1988: In this case the respondent T. Dayakar Rao was appointed as a Clerk in the State Bank of India in the month of Octo ber, 1962.
In the month of July, 1971 he was selected as a Trainee Officer and was given job training at various branches of the Bank for two years.
While he was working as a Bank Manager he was chargesheeted for irregularities committed by him during the period 1.9.79 to 15.6.80.
Disci plinary proceedings were initiated on 29.7.82.
On 6.3.84 the Chief General Manager in the capacity of disciplinary au thority passed an order of dismissal.
T. Dayakar Rao filed a writ petition No. 1204/84 in the High Court.
The Division Bench of the High Court by an order dated 13th August, 1988 allowed the writ petition following the decision of Division Bench given in writ appeal No. 141/86 dated 26.11.87.
The Bank aggrieved against the aforesaid order has filed the Special Leave Petition under Article 136 of the Constitu tion.
SLP No. 2069 of 1990: In this case Shri A.K. Soundararajan appellant was appointed as Technical Officer by an order dated 14.6.68 of the Executive Committee of the Central Board of the Bank.
It was mentioned in the Order that Shri Soundararajan would be governed by the State Bank of India (Officers & Assistants) Service Rules.
Post of Technical Officer was considered equivalent to Staff Officer Grade III under the Rules.
He was suspended and given a chargesheet on 23.4.82 and was dismissed by an order dated 31.3.83 passed by the Chief General Manager.
Shri Soundararajan filed a writ petition No. 7108/85 in the High Court challenging his order of dismissal.
Learned Single Judge of the High 402 Court by order dated 31.10.88 allowed the writ petition by following the decision given by the Division Bench in writ petition No. 1204/84 in the case of T. Dayakar Rao.
The State Bank aggrieved against the order of the learned Single Judge filed an appeal before the Division Bench.
The Divi sion Bench in this case took into consideration an amendment made in Regulation 55 by a resolution dated 25.8.88 made applicable with retrospective effect.
The Division Bench by Order dated 30th November, 1989 allowed the appeal filed by the Bank.
Shri A.K. Soundararajan aggrieved against the Order of the High Court has filed this Special Leave Peti tion.
It would be necessary to narrate the facts of SLP (C) No. 5139/88 (State Bank of India vs Hanumantha Rao) disposed of by an order of this Court dated 30th January, 1990.
Hanumantha Rao was promoted as Grade I Officer on 1.4.1973 by the Executive Committee of the Central Board of State Bank of India.
In 1979 he was posted as the Manager of a branch of the Bank in Warangal District.
In respect of certain alleged acts of misfeasance/malfeasance he was suspended on 17.8.81.
On 4.5.82 a memo of charges was served on Hanumantha Rao by the Chief General Manager of the Bank.
The Chief General Manager of the State Bank of India, local head office Hyderabad dismissed Hanumantha Rao by an order dated 7.1.84.
Hanumantha Rao filed a writ petition No. 5509/84 in the High Court.
Learned Single Judge allowed the writ petition declaring the order of dismissal as incompe tent and invalid.
The Bank aggrieved against the order of the Learned Single Judge filed a Letters Patent Appeal No. 141/86 before the Division Bench.
The Division Bench heard and disposed of the writ appeal No. 141/86 and writ petition No. 194/83 by a common order.
The Division Bench agreed with the conclusion of the learned Single Judge that the order of dismissal passed by the Chief General Manager is incompetent and invalid being violative of the guarantee contained in the proviso to Regulation 55(2)(a) of the State Bank of India General Regulations, 1955.
While dealing with the cross objections filed by Shri Hanumantha Rao the Bench took notice of the fact that the writ petitioner had died on 24.11.87 and as such gave the following direction: "On account of the death of the writ petitioner it is unnec essary for us to go into the merits of the contentions urged by way of cross objections.
There is no question of 403 any enquiry or further enquiry hereafter.
We may mention in this connection that the learned counsel for the petitioner (respondent in this Writ Appeal) offered to file a petition to bring on record the legal representatives of the deceased writ petitioner as respondents in this Writ Appeal since, according to him, they would be entitled in any event to claim the monetary benefits flowing from the orders of this Court.
Now that we have agreed with the learned single Judge that the order of dismissal was incompetent and invalid, we direct that the writ petitioner shall be treated to be under suspension pending enquiry till 24.11.
1987 and all the monetary benefits that he is entitled to on that basis, including the arrears of suspension allowance, shall be paid over to his legal representatives.
Mr. Prasad will file the legal representatives petition within two weeks from today.
Post this Writ Appeal for orders after two weeks.
The Writ Appeal, accordingly, fails and is dis missed, but, in the circumstances, without costs.
" The Bank aggrieved against the aforesaid order filed the SLP No. 5139/88 before this Court.
Taking note of the facts and circumstances of the case of Hanumantha Rao having died on 24.11.87 leaving behind 14 children, this Court on 30th January, 1990 did not consider if fit to interfere with impugned order of the Division Bench.
It was further made clear that even though this Court was not interfering with the impugned order, the questions raised on behalf of the Bank were left open.
The Bank was directed to treat Hanuman tha Rao in service and pay the dues, arrears of salary and other terminal benefits in accordance with law to his legal representatives.
With these observations, the SLP was dis missed.
The question which calls for consideration in all these cases is whether the order of dismissal could be passed by the Chief General Manager who was lower in rank to the Executive Committee who was the appointing authority in these cases.
In order to appreciate this controversy, it would be proper to give reference of the relevant provisions of the (hereinafter referred to as the Act), State Bank of India General Regulations, 1955 (hereinafter referred to as the Regulations) and the State Bank of India (Supervising Staff) Service Rules, 1975 404 (hereinafter referred to as the Rules).
Section 43 of the Act empowers the State Bank to appoint such number of officers, Advisors and Employees as it con siders necessary or desirable for the efficient performance of its functions and to determine the terms and conditions of their appointments and service.
Section 49 of the Act confers power on the Central Government,in consultation with the Reserve Bank to make rules to provide for all matters in which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act.
Section 50(1) of the Act confers powers on the Central Board of Directors of the Bank to make regulations.
Sub section (3) of the Section 50 of the Act empowered the Reserve Bank to make the first regulations with the previous sanction of the Central Government.
In exercise of the powers conferred by sub section (3) of Section 50 of the Act, the Reserve Bank of India with the previous sanction of the Central Government made the State Bank of India General Regulations, 1955.
These regulations have been amended from time to time by the Central Board of Directors by making regulations under subsection (1) of Section 50 of the Act.
Regulation 55(2)(a) deals with the initial appointments and promotions to various categories of employees in the bank.
Initially the appointments of Officers used to be made only by the Executive Committee as provided in Regulation 55(2)(a).
As the bank grew larger in branches, the bank thought fit to vest the power of appointment and promotion to various functionaries of the bank and also gave power to delegate their power of appointment also.
Regulation 55(2)(a) was thus substituted by a resolution dated 18th August, 1971 of the Central Board.
After this resolution for Officers Grade I & II,the appointing authorities were speci fied as the Secretary and Treasurer or the Managing Director respectively depending upon whether the appointment/promo tion is for service in the Circle or the Central office.
The State Bank of India Officers & Assistants Rules which govern the service conditions of Grade I Officer whether they were Probationary Officers or Trainee Officers and Staff Officers followed the scheme of "appointing authority" laid down in the Regulations.
Regulation 55(2)(a) was again amended by a resolution of the Central 405 Board on 11th July, 1972.
By this amendment there was only a terminological regrouping of the earlier regulation rather than any qualitative change.
The State Bank Laws (Amendment) Act, 1973 introduced various amendments and one of the amendments was relating to change of designation of Secre tary and Treasurer as Chief General Manager.
Hence the Central Board vide its resolution dated 29.3.74 for the words "Secretary & Treasurer" substituted "Chief General Manager.
" The service conditions of all Officers came to be brought under a single set of service rules viz. the State Bank of India (Supervising Staff) Service Rules which came into force on 1.7.75.
It would be important to mention that Regulation 55(2)(a) at all relevant period for our purpose recognized the right of the officers or employees of the Bank under the following clause "such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority.
" Clause (f) of Rule 3 of the State Bank of India (Supervising Staff) Service Rules which is relevant for our purposes reads as under: (f) "Appointing Authority" means (i) in the case of Officers Grade II and Grade I and of other employees to whom the salary scales applicable to Officers Grade II and Grade I generally apply with or with out modification, the Chief General Manager concerned or the Managing Director according as the employee is serving in the Circle or in or under Central Office; (ii) in the case of Staff Officers of various grades and of other employees to whom the salary scales applicable to Staff Officers generally apply with or without modification, the Managing Director; (iii) in the case of Senior Staff Appointments and of em ployees to whom the salary, scales applicable to Senior Staff Appointments generally apply with or without modifica tion, the Executive Committee; Sub Rule (1) of Rule 50 relevant for our purposes is also reproduced below: 50(1)(i) The Disciplinary Authority may itself, or shall when so directed by its superior authority, institute disci plinary proceedings against an employee.
406 (ii) The Disciplinary Authority or any Authority higher than it may impose any of the penalties in rule 49 on an employ ee.
It may be further noted that an amendment in Regulation 55 was approved by Central Board at its meeting dated August 25, 1988 which reads as under: 55(1) Save as provided in sub regulation (2) and as may be directed the Central Board, a Local Board may exercise all the powers of the State Bank in respect of the Staff serving in the areas in its jurisdiction.
2(a) The appointing and/or promoting authority for various categories/grades of officers and employees shall be such as the Executive Committee may by general or special order designate from time to time.
(b) No officer or employee of the Bank shall be dismissed, discharged, removed or retired from the service of the Bank or reduced to a lower grade or post or to a lower stage in a time scale by an authority lower than the appointing author ity.
Explanation (For the purpose of clause (b) the term 'appointing authority ' shall mean and include the authority who has been designated as such in respect of such class or grade of officers or employees to which the officer or employee concerned, as the case may be belongs at the time when such Order is passed or any proceeding leading to such Order or termination is initiated. ) (c) Nothing in this sub regulation shall affect the powers of a disciplinary authority appointed or notified under any award, settlement under the , governing, affecting or regulating the service conditions of workmen of the Bank, and for the purpose of clause (b) above, the appointing authority shall be deemed to have been substituted by such disciplinary authority.
(d) The salary and other emoluments to be granted to offi cers and other employees shall be as laid down in the Rules of Service approved by the Central Board and, where no such rules have been laid down, as fixed by the Executive Commit tee.
407 (e) The power to grant pensions to officers and other em ployees leaving the service of the State Bank, other than pensions provided for under the Rules of pension funds respectively applicable to them, shall be reserved to the Central Board.
(f) The grant of gratuities or other financial assistance, either temporary or permanent, to widows, children or other dependents of deceased officers or other employees shall be made by the Executive Committee of the Central Board except where grant of any such gratuity or financial assistance is authorised by any general direction given by the Central Board.
Explanation (The term 'Officers ' in this regulation shall include any employee to whom the rules of service generally applicable to officers, apply with or without modification.) (Sub regulation (2) substituted with effect from 1.10.79).
" The Executive Committee of the Bank passed the following resolution on August 30, 1988: In exercise of the powers conferred by sub section (1) of Section 43 of the (23 of 1955) and amended sub regulation (2)(a) of Regulation 55 of the State Bank of India General Regulations, 1955, the Executive Committee of the Central Board of the State Bank of India hereby makes the following order: The initial appointments and/or promotions to various categories of officers and other employees in the Bank set out in Column I here under shall be made by the authority specified in Column II.
Column I Column II Employees working at branches i) Employees other a) Subordinate the concerned than officers Staff Branch Manager and deputy General Manager ii) Clerical the concerned Staff Regional Manager and Dy.
General Manager.
b) Employees working at LHOs/ 408 Regional Offices and their establishments The concerned Office Manager/ Admn.
Officer at Staff Colleges or Insti tutes Manager Dy.
Chief Manager or, where there is no post of above descrip tions the head of con cerned dept/office.
ii) Officers in The Chief General Manager junior management for appointments/promotions in the Grade Scale I Circle and the Chief General and Middle Manager (Personnel & HRD) in Management Central Office for Central Grade Scale II Office establishment.
iii) Officers in The Deputy Managing Director Middle Management Grade Scale III iv) Officers in The Managing Director Senior Management Grade Scale IV, V v) Officers in Top Recommending Authority: Executive Grade Scale VI, VII The Directors Promotion Committee and special consisting of the Chairman, the scales Managing Director and the Director nominated by the Central Government in terms of clause (e), sub section (1) of Section 19 and the Director nominated by the Reserve Bank of India in terms of clause (f) of sub section (1) of Section 19 of the Act.
Promoting/Appointing Authority: The Executive Committee of the Cen tral Board.
409 All authorisations in respect of appointing authority and/or promoting authority made by the Executive Committee from time to time after 1.10.79 shall be deemed to have been done under the amended regulation 55.
Appointments autho rised by the Chief General Manager (Personnel & HRD) in respect of JMGS I after 1.10.79 are also confirmed hereby.
All the employees of the bank in the cases before us where appointed by the Executive Committee.
Order of dis missal in their cases has been passed by the Chief General Manager.
It is an admitted position that on the date of passing the order of dismissal the Chief General Manager was the appointing authority.
According to the Bank though the employees were appointed by the Executive Committee, but at the time when inquiry was held and the order of dismissal passed, the Chief General Manager had become the appointing authority.
On the other hand the contention on behalf of the employees is that the Executive Committee being the appoint ing authority, no authority lower than the Executive Commit tee can pass the order of dismissal in their cases.
Accord ing to their contention the Chief General Manager, being a lower authority than the Executive Committee, he had no competence to pass the order of dismissal.
Learned counsel for the employees in this regard referred to Article 311 of the Constitution of India and placed reliance on a plethora of cases decided on the basis of guarantee enshrined under Article 311 of the Constitution.
The guarantee clause under Article 311(1) of the Consti tution of India which is relevant for our purpose reads as under: "No person who is a member of a Civil Service of the Union or an All India Service or a Civil Service of a State or holds a Civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
" Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority.
Thus a comparison of the provi sions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions.
Under Arti 410 cle 311(1) the words used are "by which he was appointed." In Regulation 55(2)(a) there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority.
Thus the right guaran teed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an au thority lower than the appointing authority.
A perusal of the relevant Regulations and Rules mentioned above clearly go to show that the Chief General Manager had become the appointing authority of the employees in question under Regulation 55(2)(a) with effect from 1.7.74.
Admittedly the orders of dismissal have been passed long after these amend ments when the Chief General Manager had already become their appointing authority under the Regulations and the Rules.
The right that an officer or employee of the State Bank of India cannot be dismissed from service by an author ity lower than the appointing authority is a creation of statutory rules and regulations.
So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a Civil Post under the Union or a State.
Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protec tion under Article 311(1) of the Constitution.
The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regula tions.
The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authori ty.
With the risk of repetition it may be stated that on the date when the order of dismissal has been passed, Chief General Manager had already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority.
Apart from the view taken by us as mentioned above the Regulation 55 has been amended by a resolution of the Cen tral Board dated August 25, 1988 with retrospective effect.
It has now been made clear in the explanation that for the purpose of clause (b) the term appointing authority shall mean and include the authority who has been designated as such in respect of such class or grade of officers or em ployees to which the officer or employee concerned, as the case may be belongs at the time when such order is passed or any proceedings leading to such order or termination is initiated.
This provision now concludes the controversy if any and clearly provides that the appointing authority shall mean and include the authority who has 411 been designated as such at the time when such order is passed.
It was contended on behalf of the Learned counsel for the employees that the Bank had no power to amend the Regulations with retrospective effect.
We see no force in this contention.
Section 50(2)(a) of the Act clearly pro vides that all regulations made under this section shall have effect from such earlier or later date as may be speci fied in the regulation.
Thus the regulations can be made to give effect from earlier dates also as may be specified in the regulations.
We find no force in the contention of learned counsel for the employees that they had vested right in this regard and the same could not have been taken away by making regulations with retrospective effect.
There cannot be any vested right in such a matter.
As already mentioned above it was a right conferred under Regulation 55(2)(a) and the same can be amended with retrospective effect also in case the authority competent to make regula tions has been given a right to make regulations with retro spective effect.
It has been held in State of Jammu & Kash mir vs Triloki Nath Khosa & Ors., S.C.R. 1974 Vol.
1771 that it is well settled that a Government servant acquires a 'status ' on appointment to his office and as a result his rights and obligations are liable to be determined under statutory or constitutional authority which for its exercise requires no reciprocal consent.
In Bishun Narain Misra vs The State of Uttar Pradesh and Others, AIR 1965 Vol.
52 SC 1567 it was held that new rule reducing the age of retire ment from 55 years to 53 years could not be said to be retrospective.
The proviso to the new rule and the second notification were only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule.
The new rule therefore, could not be struck down on the ground that it was retrospective in operation.
In Roshan Lal Tandon vs Union of India & Anr., and Kunj Behari vs Union of India & Ors., AIR 1967 SC Vol.
541889 it was held that the legal position of Government servant is more one of status than of contract.
The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement by the parties.
Emolu ment of the Government servant and his terms of service are governed by statute or statutory rules which may be unilat erally altered by he Government without the consent of the employee.
It was further held in the above case that the petitioner had no vested contractual right in regard to the terms of his service and that the same can be altered uni laterally.
We may further add that the prohibition if any to alter the terms and conditions can be found only under the Constitution of India and in case power of the rule or law making authority is not circumscribed or limited by any constitutional 412 mandate then it has power to amend such terms and conditions of service unilaterally without the consent of the employee.
In the cases in hand before us the right whatsoever con ferred on the employees of the State Bank was on the basis of Regulation 55(2)(a) and the Central Board of the Bank was authorised to amend such regulations from any date under Section 50(2)(a) of the Act.
In the result the appeals filed by the State Bank of India in the case of Vijaya Kumar and T. Dayakar Rao are allowed, the impugned orders passed by the High Court are set aside and the cases are remanded to the High Court for deciding the writ petitions on other points in accordance with law.
Now so far as the appeal filed by Sh.
A.K. Sunda rarajan is concerned, the point decided by us shall remain concluded but the appellant would be free to raise other points before this Court which are left undetermined.
This case may now be listed for further hearing and final dispos al at an early date.
In the facts and circumstances of the case, the parties shall bear their own costs.
Y. Lal C.A. No. 3392 & 3393 of 1990 allowed.
C.A. No. 3394 of 1990 ordered to be listed for final heating.

dataset_name: IN-Abs

summary/full:
A common question of law viz., whether an order of dismissal against an employee, could validly be passed by an authority lower than the appointing authority of the Bank, arises for determination in these three appeals, two by the State Bank of India and the third by an employee.
Respondent, Vijaya Kumar in Civil Appeal 3392 of 1990, was appointed as Probationary Officer by an order of the Executive Committee of the Central Board of the State Bank of India.
He was charge sheeted for gross irregularities and corrupt practices and was dismissed from service by an order passed by the Chief General Manager of the Bank, whereupon, he flied a writ petition before the Andhra Pradesh High Court, challenging the order of dismissal passed against him.
A Division Bench of the High Court heard the writ petition, alongwith writ appeal No. 141 of 1986 (involving a similar point).
The High Court allowed the writ petition.
The State Bank being aggrieved by the said order has filed this appeal after obtaining special leave.
T. Dayakar Rao, respondent in Civil Appeal No. 3393 of 1990 was appointed as a Clerk in the State Bank in October, 1962 and while he was working as a Bank Manager he was chargesheeted for irregularities committed by him during the period from 1.9.1979 to 14.6.80.
He was dismissed under orders of the Chief General Manager being the disciplinary authority.
Mr. Rao flied a writ petition in the High Court and the High Court allowed the writ petition following its decision in writ appeal No. 141 of 1986.
Being aggrieved the State Bank has filed the instant appeal with special leave of the Court.
Civil Appeal No. 3394 of 1990 has been filed ,by an employee A.K. 399 Soundararajan, who was appointed as Technical Officer by the Executive Committee of the Central Board of the Bank.
It was specifically mentioned in the Order of appointment that Shri Soundararajan would be governed by the State Bank of India (Officers & Assistants) Service Rules.
Shri Soundararajan was chargesheeted and dismissed under orders passed by the Chief General Manager Thereupon he filed a writ petition in the High Court challenging his order of dismissal.
Learned Single Judge of the High Court allowed the writ petition.
The Bank filed an appeal before the Division Bench.
The Division Bench in this case took into consideration an amendment made in Regulation 55 by a resolution dated 25.8.1988 made applicable with retrospective effect.
Accord ingly the Division Bench allowed the appeal filed by the Bank, Aggrieved against this order.
Shri Soundararajan has flied Civil Appeal 3394 of 1990 with special leave.
The contention urged by the employees is that the Chief General Manager, being a lower authority than the Executive Committee, he had no competence to pass the order of dis missal whereas the Bank contends that the Chief General Manager had, by virtue of the amendment of Regulation 55(2)(a) made retrospectively, become the appointing author ity of employees in question and as such the orders of dismissal passed by him against the employees long after the amendment are valid.
Allowing the appeals by the State Bank and remanding the two cases to the High Court and directing that the appeal by Soundararajan be listed for final hearing, this Court, HELD: The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement by the parties.
Emolu ment of the Government servant and his terms of service are governed by statute or statutory rule which may be unilater ally altered by the Government without the consent of the employee.
[411F G] Under Article 311(1) of the Constitution, the words used are "by which he was appointed" In regulation 55(2)(a) there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the ap pointing authority.
[410A] Thus the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot he passed by an 400 authority lower than the appointing authority.
[410B] The right whatsoever conferred on the employees of the State Bank was on the basis of Regulation 55(2)(a) and the Central Board of the Bank was authorised to amend such regulations from any date under Section 50(2)(a) of the Act.
This provision now concludes the controversy if any and clearly provides that the appointing authority shall mean and include the authority who has been designated as such at the time when such order is passed.
[412B; 410H] State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; ; Bishun Narain Misra vs The State of Uttar Pradesh & Ors., A.I.R. 1965 Vol.
52 S.C. 1567; Roshan Lal Tandon vs Union of India & Anr. and Kunj Behari vs Union of India & Ors., A.I.R. 1967 S.C. (Vol. 54) 1889, referred to.


judgement:
Criminal Appeal No. 387 of 1990.
From the Judgment and Order dated 12.1.1984 of the Gujarat High Court at Ahmedabad in Misc.
Application No. 48 of 1982.
S.H. Sheth and S.C. Patel for the Appellant.
B. Datta, Sunil Dogra and P.H. Parekh for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Leave granted.
The appellant is aggrieved by the judgment of the High Court holding that sanction of the State Government as required under Section 197, Cr.
P.C., is not necessary for taking cognizance of the offences against the appellant on the basis of the complaint filed by the respondent.
The appellant is an employee of the Municipal Corporation, Ahmedabad.
While holding the post of Laboratory Officer, the State Government by a Notification dated 21.12.1966.under Section 8 of the Food Adulteration Act, 1954 appointed the appellant as a Public Analyst for the local area comprised within the limits of the Corporation.
The complaint was filed by the respondent before the Magistrate for the of fences punishable under Sections 465,468 and 201, I.P.C., alleged to have been committed by the appellant while exer cising the functions as Public Analyst.
513 The appellant moved the High Court under Section 482, Cr.
P.C., for quashing the criminal proceedings on the ground that, he being a public servant removable from office only by the State Government the Magistrate could not take cogni zance of the offence alleged to have been committed while discharging the duties as Public Analyst without the requi site sanction under Section 197, Cr.
The High Court rejected this contention and dismissed the petition.
Under Section 197(1), Cr.
P.C., when a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government.
The section extends immunity from irre sponsible, frivolous and vexatious prosecution.
The privi lege of immunity from prosecution without sanction extends only when the accused is a public servant of the kind men tioned therein.
He must be a public servant as defined in Section 21 of the Indian Penal Code and not removable from his office save by or with the sanction of the State Govern ment or the Central Government as the case may be.
The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty.
Section 21, I .P.C., reads as under: 21.
"Public servant" The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely: Twelfth .
Every person (a) in the service or pay of the Government or remu nerated by less or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by Or under a Central, Provincial or State Act or a Government company as defined in Section 6 17 of the ( 1 of 1956).
Section 197, Cr.
P.C., clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks 514 should the sanction of the government to their prosecution be necessary.
While a public servant holding an office of the kind mentioned in the Section is as such public servant appointed to another office, his official acts in connection with the latter office will also relate to the former of fice.
The words "removable from office" occurring in Section 197 signify removal from the office he is holding.
The authority mentioned in the section is the authority under which the officer is serving and competent to terminate his services.
If the accused is under the service and pay of the local authority, the appointment to an office for exercising functions under a particular statute will not alter his status as an employee of the local authority.
The appellant herein is admittedly the Laboratory Offi cer in the service and pay of the Municipal Corporation of Ahmedabad.
The appointment as Public Analyst by the Govern ment does not confer on him the status of a public servant or an officer under the service and pay of the Government.
He is not remunerated by any fee by the Government.
The appellant was not the employee of the State Government and was not employed in connection with the affairs of the State.
He was not holding any public office in connection with the affairs of the State.
The State Government had merely entrusted him with the functions of a Public Analyst which could be granted and taken by an administrative act.
It was on account of his being employed by the Municipal Corporation that he was appointed as a Public Analyst by the Government.
He is not appointed as Public Analyst in the cadre against any post.
The Prevention of Food Adulteration Act also does not contain any deeming provision to treat the Public Analyst as a public servant.
The appellant is holding an office from which he is removable by the Local Authority and not by the Government.
The cancellation of the appointment as Public Analyst would not amount to removal from office.
Section 197, Cr.
P.C., in this context contemplates the removal of the appellant from the office of the Laboratory Officer and not his transfer or removal from the office of the Public Analyst.
The removal of the appellant from the office of Public Analyst would not affect his office as a Laboratory Officer under the Local Authority and would not amount to removal from office.
The appellant is not therefore a public servant removable only by the State Government.
The High Court was right in its view.
We accordingly dismiss the appeal.
Y. Lal Appeal dismissed.

summary/full:
The appellant, an employee of the Municipal Corporation Ahmedabad was holding the post of Laboratory Officer and while he was so holding the post, he by a Notification dated 21.12.1966, issued by the State Government, was appointed as a Public Analyst for the local area within the municipal limits of the Corporation.
The respondent filed a complaint before the Magistrate for offences punishable under Sections 465, 468 and 20 1.
I.P.C. alleged to have been committed by the appellant while exercising his functions as a Public Analyst.
The appellant moved the High Court under Section 482, for quashing the criminal proceedings sought to be initiated against him by the said complaint.
His principle contention was that he being a public servant removable from office only by the State Government, the magistrate could not take cognizance of the alleged offences and that previ ous sanction of the State Government as contemplated under section 197, Cr.
P.C. was necessary.
The High Court rejected the contention of the appellant and dismissed the petition.
He has filed this appeal after obtaining special leave from the Court.
Dismissing the appeal, this Court, HELD: The privilege or immunity from prosecution without sanction extends only when the accused is a public servant of the kind mentioned in Section 197, Cr.
He must be a public servant as defined in Section 21 of the Indian Penal Code and not removable from his office save by or with the sanction of the State Government or the Central Government as the case may be.
The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty.
Section 197, Cr.
P.C. clearly intends to draw a line between public servants and to pro vide that only in the case of the higher ranks should the sanction of the Government to their prosecution be neces sary.
[513C D, H] 512 The words "removable from office" occurring in Section 197 signify removal from the office one is holding.
[514B] In the instant case, the appellant was not holding any public office in connection with the affairs of the State.
The State Government had merely entrusted him with the functions of a Public Analyst which could be granted and taken by an administrative Act.
It was on account of his being employed by the Municipal Corporation that he was appointed as a Public Analyst in the cadre against any post.
The Prevention of Food Adulteration Act also does not con tain any deeming provision to treat the Public Analyst as a public servant.
[514D E] The appellant is not therefore a public servant remova ble only by the State Government.
[514G]