Krishnadevaraya Education Trust and anr. Vs. L.A. Balakrishna - Court Judgment

Excerpt:
hon'ble judges: mr. b.n. kirpal and mrs. ruma pal, jj. - [ a.k. sarkar,; j.r. mudholkar,; k. subbarao,; n. rajgopala ayyangar and; raghubar dayal, jj.] under a. 413 of the calcutta municipal act, 1951, no person shall without a licence granted by the corporation of calcutta, keep open any cinema house for public amusement in calcutta. under s. 548(2), for every licence under the act, a fee may be charged at such rate as may from time to time be fixed by the corporation. in 1948, the appellant (corporation) fixed fees on the basis of annual valuation of the cinema house. the respondent, who was the owner and licensee of a cinema theatre, had been paying a licence fee of rs. 400 per year on that basis. in 1958, the appellant, by a resolution, changed the basis of assessment of the fee. under the new method the fee was to be assessed at rates prescribed per show according to the sanctioned seating capacity of the cinema house; and the respondent had to pay a fee of rs. 6,000 per year. the respondent, therefore moved the high court for the issue of a writ quashing the resolution and the application was allowed. in the appeal to the supreme court the appellant contended that (i) the levy was a tax and not a fee in return for services and (ii) s. 548(2) does not suffer from the vice of excessive delegation; while the respondent contended that (i) the levy was a fee in return for services to be rendered and not a tax, and as it was not commensurate with the costs incurred by the corporation in providing the services, the levy was invalid; (ii) if s. 548 authorised the levy of a tax, as distinct from a fee in return for service rendered, it was invalid, as it amounted to an illegal delegation of legislative functions to the appellant to fix the amount of a tax without any guidance for the purpose and (iii) the levy was invalid as violating art. 19(1) (f) and (g) of the constitute. held (per sarkar, raghubar dayal and mudholkar jj) : (i) the was not a fee but a tax. [490 f] the act does not intend to use the word "fee" as referring only to a levy in return for services, for, the levies authorised by some other sections of the act are really "taxes", though called "fees". besides, the words used are "fee for the licence" and these words do not necessarily mean a "fee in return for services" as is apparent from arts. 110(2) and 199(2) of the constitution, where both expressions are used indicating that they are not the same. [483 g-h] the word "fee" in s. 548 must be read as referring to a tax as any other reading would make the section invalid, and in interpreting a statute, it ought to be made valid if possible. [484 b-c] the decisions of this court establish that in order to make a levy a fee for services rendered, the levy must confer special benefit on the persons on whom it is imposed. the levy under s. 548 (2) is not a "fee in return for services" as the act does not provide for any services of a special kind being rendered, resulting in benefits to the person on whom it is imposed. s. 527(43) permits by laws to be framed for regulating the inspection, supervision and control, among others, of cinema houses; but it is not obligatory to make such by laws and therefore, there may be no services to render. even the by law made provides only for inspection, and the work of inspection done by the appellant was only to see that the terms of the licence were observed by the licensee. it was not a service to him, and so, no question arises of correlating the amount of levy to the costs of any service. the levy therefore is not a fee and must be tax. [485 b-c, f; 488 e; 490 e-f] the commissioner, hindu religious endowments, madras v. shri lakshmindra thirtha swamiar of sirur mutt, [1954] s.c.r. 1005, h. h. sudhindra thirtha swamiar v. commissioner for hindu religious and charitable endowments, [1963] supp. 2 s.c.r. 302 and the hingir rampur coal co. ltd. v. the state of orissa and ors. [1961] 2 s.c.r. 537, referred to. whether a particular levy is a fee or a tax has to be decided only by reference to the terms of the section. its position in the act cannot determine its nature ; an imposition which is by its terms a tax and not a fee, cannot become a fee by reason of its having been placed in a certain part of the statute. [489 b] it is not right to say that s. 443 does not impose any duty on the appellant and that therefore, the licence fee leviable under s. 548, should be fixed only with reference to rendering of services. the corporation has been set up only to perform municipal duties and its powers are for enabling it to perform those duties. but, since there is no provision for service being rendered, the levy cannot be a fee and would indisputably be a tax. [490 b, c, d] (ii) the fixing of the rate of a tax is not of the essence of legislative power and the fixing of rates may be left to a non legislative body. when it is so left to another body the legislature must provide guidance for such fixation. since there is sufficient guidance in the act as to how the rate of the levy under s. 548 is to be fixed, the section is valid. [492 d, f; 493 g-h; 497 b] the appellant is an autonomous body. it has to perform various statutory functions. it is given power to decide when and in what manner the functions are to be performed. for all this it needs money and its needs will vary from time to time with the prevailing exigencies. its power to collect tax is necessarily limited by the expenses required to discharge the functions. it has, therefore, where rates have not been specified in the statute, to fix such rates as may be necessary to meet its needs, and that would be sufficient guidance to make the exercise of its power to fix the rate, valid. [496 d-f] case law reviewed. (iii) the challenge to the levy on the ground that it amounts to expropriation is wholly unfounded. no doubt the increase in the rate of fee was large but considering the available seating capacity of the respondent, it cannot be said to be unreasonably high. [482 e-f] the contention of the appellant that even if no guidance for taxation has been prescribed the section would still be valid, because, the act may be said to have been passed under entry 5 of list ii of the seventh schedule to the constitution and that entry authorises the passing of a law concerning the powers of a municipal corporation and that such powers must necessarily include the power to levy a tax, was left open. [497 d-e, h] per subba rao and ayyangar, jj (dissenting) (i) if on a proper construction of the act one reached the conclusion that part iv of the act was not exhaustive of the range of levies permitted by the act, and the fees permitted to be levied by s. 548(2) were also taxes, there would be nothing in s. 127(3) or (4) to militate against that construction. but, an examination of the provisions of the act makes three matters abundantly clear; (a) that the act draws a sharp and clear distinction between taxes properly so called and fees; (b) that the division into parts and chapters is logical and clear cut and no matter which properly falls under a subject set out under a part or chanter heading, is dealt with in any other; and (c) that taxes, by whatever designation they might be called, are all comprehended and dealt with by part iv and by part iv alone, and that what is permitted to be imposed by s. 548(2) is only a fee as distinguished from a tax. as admittedly there is no correlation between the fee charged and the service rendered, the impugned levy was not authorised and the high court was right in granting relief to the respondent. [525 b-c; 526 d-g] to say that to enable a fee strictly so called to be levied, an immediate advantage measurable in terms of money should be conferred on the payer is to take too narrow a view of the concept of a fee. the word "services" in the context has to be understood in a wide sense, as including supervision and control over the activities for the excess of which the fee is charged. the judgements of this court in the shirur mutt case, [1954] s.c.r. 1005, and the cases following it, do not lay down that where an activity is regulated by licenses, the imposition of charges for the inspection, supervision and control of the activity to ensure compliance with the regulation is not a benefit conferred on the licensee, so as to render the amount charged for such a licence not a fee in the real sense, but a tax, whose constitutional validity could be sustained by reference to the taxation entries in lists i and ii. [508 a; 515 f-g; 517 h; 518 a] case law considered. also, art. 110(2) of the constitution far from supporting the appellant's contention, negatives it. if pure taxation measures, employing the machinery of licences and fees, would be money-bills, then the fees for licences which are outside the definition, would be those fees which are imposed to meet the cost of regulation and supervision of an activity which is controlled by the requirements of a licence and compliance with its terms. besides, if the levy of such licence fees on various activities which form the subject of legislative control or regulation under the various non-taxation entries in the lists were treated as tax, entries 96 and 66 in the respective lists would have to be read as taxation entries, because, such a levy is permitted only by those entries. this however would be con- trary to the entire scheme on which the several entries in the lists are made, namely, setting out the exclusive general legislative powers the enumeration of taxes which could be imposed and finally the power to, impose fees in respect of any of the matters in the list. [502 c; 519 b-c, e, g] (ii) viewed as a tax the delegation in s. 548(2) is unconstitutional, as essential legislative functions are parted with to the municipality, a subordinate law making body, and therefore the provision is unconstitutional. [546 b] essential legislative functions cannot be delegated but where the law lays down the principles and affords guidance to the subordinate lawmaking authority details may be left for being filled up by the executive or by other authorities vested with quasi-legislative power. the power to fix a rate of tax is an essential legislative function and therefore, unless the subordinate law-making authority is afforded guidance by the policies being formulated, principles enunciated and standards laid down, the legislation will suffer from the vice of excessive delegation and would be void as arbitrary and unconstitutional. the _provisions of the act do not afford any guidance to the municipal corporation to fix the rate of levy. no doubt, the municipal government of calcutta was vested in the corporation under s. 24 of the act, but the expression "government" does not gather within its fold all powers necessary for administration nor does it create an independent sovereign body entitled to legislate in any manner it likes for the purpose of carrying on civic government. the corporation is still a subordinate body which is the creation of the legislature and can only function within the framework of the powers conferred upon it by the act. no assistance is derived in this regard from the powers of supervision which the state government has over the municipal affairs under a. 42 and 47. if no standards have been laid down by the act for the corporation to afford it a guidance for the fixation of a rate, the fact that supervisory power is conferred upon the executive would not obviate that objection, for the government itself would have no guidance from the legislature as to the policy to be adopted in exercising the supervision. [541 e--g; 542 c-g; 545 a] it cannot be said that as a result of as. 115, 117 and 126 no taxes could be raised except such as were needed for the expenditure for which provision had been made in the budget and the rate of tax was, therefore, determined by the needs of the corporation. if the amount of money which a municipality needs for discharging its functions, affords any guidance, then the need of a state or the union ought to afford sufficient guidance to sustain the validity of any skeleton legislation. [545 a-c] the orissa ceramic industries ltd. v. executive officer, jharsuguda municipality a.l.r, 1963 orissa 171 disapproved. the quantum of power which a law could bestow upon an institution or body of its creation is determined, first, by the view of the legislature to what are necessary for achieving the purposes for which the institution or body is created and, secondly, by the overall limitations imposed by the constitution by the distribution of legislative power. nothing therefore turns on the use of the word "powers" in entry 5 of the list 11 which deals with the constitution and powers of municipal corporations for the purpose of local self-government. the state legislature cannot, therefore, authorise a municipal body which it creates, even though, it be for the purpose of local self-govemment, to exercise a power higher than what it itself possesses. any legislative practice prevailing before 1st april, 1937 when india was under a unitary form of government or prevailing before the constitution, does not serve as a guide for interpreting the legislative entries in the constitution and any such legislative practise cannot prevail over the limitations imposed by the distribution of legislative power in respect of post-constitution legislation. [527 f-g;530 d, g; 532 f-g ; 533 e-f; 534 c] the analogy of american decisions also cannot afford any guidance for the application of a different rule as to what constitutes excessive delegation in the case of legislation creating municipal bodies. the rule to limits of delegation by the legislatures constituted in india, by the consti- tution, has been the subject of elaborate consideration by this court and the decisions have not laid down that a different rule applies when the delegation of legislative power is in favour of a municipal corporation. [535 c-d, e] case law considered.   - 8. we, accordingly, allow this appeal and set aside the decision of the tribunal as well as that of the high court.order1. special leave granted. 2. the respondent was appointed to the post of assistant professor on 22nd september, 1990 on probation. within the probationary period, by order dated 16th june, 1991, his services were terminated. in the order terminating the services, it was mentioned as follows:'as a matter of policy, as usual, a committee was constituted to go into the general performance of each staff. the committee after having gone through the records of each individual right from the date of his/her inception into the institute, is of the opinion that your on the job proficiency is not upto the mark. hence, the institution feels that your services are no longer required.'3. the aforesaid order was challenged before the educational tribunal on the ground that the order terminating the appointment cast a stigma and, therefore, such an order could not be passed without holding a departmental inquiry.4. before the tribunal, the appellants herein conceded and the said order of termination was set aside. subsequently again, within the period of probation, a fresh order of termination was passed which was as follows:'sri l.a. balakrishna, assistant professor, department of mechanical engineering will be relieved of his duties with effect from 1.8.1991. he may be paid his dues if any.'this order was again challenged and the tribunal came to the conclusion that the real reason for passing this order was that his services were found to be unsuitable and, therefore, this was by way of punishment. the order was set aside and the high court upheld the decision of the tribunal. hence, this appeal.5. there can be no manner of doubt that the employer is entitled to engage the services of a person on probation. during the period of probation, the suitability of the recruit/appointee has to be seen. if his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. if the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. if the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. we do not say that such a contention will succeed. normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.6. if such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. the probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.7. in the instant case, the second order which was passed terminating the services of the respondent was innocuously worded. even if we take into consideration the first order which was passed which mentioned that a committee which had been constituted came to the conclusion that the job proficiency of the respondent was not upto the mark, that would be a valid reason for terminating the services of the respondent. that reason cannot be cited and relied upon by contending that the termination was by way of punishment.8. we, accordingly, allow this appeal and set aside the decision of the tribunal as well as that of the high court. no costs.

Judgment:
ORDER

1. Special leave granted.

2. The respondent was appointed to the post of Assistant Professor on 22nd September, 1990 on probation. Within the probationary period, by order dated 16th June, 1991, his services were terminated. In the order terminating the services, it was mentioned as follows:

'As a matter of policy, as usual, a committee was constituted to go into the general performance of each staff. The committee after having gone through the records of each individual right from the date of his/her inception into the Institute, is of the opinion that your on the job proficiency is not upto the mark. Hence, the Institution feels that your services are no longer required.'

3. The aforesaid order was challenged before the Educational Tribunal on the ground that the order terminating the appointment cast a stigma and, therefore, such an order could not be passed without holding a departmental inquiry.

4. Before the Tribunal, the appellants herein conceded and the said order of termination was set aside. Subsequently again, within the period of probation, a fresh order of termination was passed which was as follows:

'Sri L.A. Balakrishna, Assistant Professor, Department of Mechanical Engineering will be relieved of his duties with effect from 1.8.1991. he may be paid his dues if any.'

This order was again challenged and the Tribunal came to the conclusion that the real reason for passing this order was that his services were found to be unsuitable and, therefore, this was by way of punishment. The order was set aside and the High Court upheld the decision of the Tribunal. Hence, this appeal.

5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.

6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.

7. In the instant case, the second order which was passed terminating the services of the respondent was innocuously worded. Even if we take into consideration the first order which was passed which mentioned that a Committee which had been constituted came to the conclusion that the job proficiency of the respondent was not upto the mark, that would be a valid reason for terminating the services of the respondent. That reason cannot be cited and relied upon by contending that the termination was by way of punishment.

8. We, accordingly, allow this appeal and set aside the decision of the Tribunal as well as that of the High Court. No costs.