Sita Ram Goel v. Municipal Board — 1957 DIGILAW 304 (ALL)

JUDGMENT Beg, J. - This is a Plaintiff's appeal arising out of the dismissal of his suit for a declaration that the resolution of the Municipal Board, Kanpur dated 3-3-1951 purporting, to dismiss him was ultra vires, illegal and void. The Plaintiff's further claim for recovery of arrears of salary and damages etc has also been dismissed. 2. The suit was brought by the Plaintiff Sita Ram Goel of the allegation that he was appointed as a qualified Drainage Overseer by Defendant No. 1, the Municipal Board, Kanpur,on 5-3-1937 with the approval of the Superintending Engineer, Public Health Department, Lucknow. It was alleged by the Plaintiff that during the discharge of his duties, the Plaintiff had incurred the displeasure of Sri S.B. Gupta, Defendant No. the Municipal Engineer, Kanpur Municipality, Shri Brahma Nand, Misra, Defendant No. 3, the then Chairman, Kanpur Municipality, and the members of the Municipal Board, Kanpur. Defendants Nos. 2 and 3 bore malice against the Plaintiff, While the Plaintiff was supervising, the construction of Jawaharnagar School Building, he was asked by Defendant No. 12 to prepare a false bill. On the Plaintiff's refusal to do it, Defendant Nos. 2 and 3 got annoyed which him and they got a resolution passed by the Municipal Board, Kanpur to the effect that charges be framed against him. Accordingly, Defendant' No. 2, Sri S.B. Gupta framed five charges against-the Plaintiff. Thereupon the Plaintiff applied to Shri Brahma Nand Misra, the Chairman Municipal Board, Kanpur, that an opportunity the given to him to be heard person ally by the Board. The Chairman rejected this prayer of the Plaintiff and himself conducted the enquiry against him. The Chairman found the explanation submitted by the Plaintiff as unsatisfactory, and directed the Executive Officer to ask the Plaintiff to show cause why his case should not be recommended to the Board for dismissal. The Executive Officer forwarded a copy of the aforesaid order to the Plaintiff compliance and explanation within three days. The Plaintiff submitted his explanation on 6-2-1951. on 19-3-1951, a copy of resolution. No. 1723 passed by the Board on 5-3-1951, purporting to dismiss the Plaintiff was handed over to him. The Plaintiff filed a departmental appeal to the U.P. Government, Defendant No. 4, on 7-4-951, but he was informed by a G.O. dated, 7-4-1952 that the said appeal was rejected. This information was received by the Plaintiff on 8-4-1952. No. 1723 passed by the Board on 5-3-1951, purporting to dismiss the Plaintiff was handed over to him. The Plaintiff filed a departmental appeal to the U.P. Government, Defendant No. 4, on 7-4-951, but he was informed by a G.O. dated, 7-4-1952 that the said appeal was rejected. This information was received by the Plaintiff on 8-4-1952. On 8-12-1952, the Plaintiff filed the present suit impleading the Municipal Board, Kanpur, Shri S.B. Gupta, Municipal Engineer, Kanpur, Shri Brahma Nand Misra, Chairman, Municipal Board, Kanpur, and the Government of UP. In this suit, he challenged the legality of the dismissal order on the ground that the previous approval of the Superintending Engineer for his dismissal was not taken as required by the Rules, that the Plaintiff was denied an opportunity of being heard by the Board, that no notice to show cause against the proposed punishment was issued to him by the Board nor were the charges framed by it, that the dismissal order did not specify the charges, that some of the grounds on which he was dismissed did not, form the subject-matter of the charges at all and that, in any cast, the charges were false and malicious. The Plaintiff, accordingly, prayed-for a declaration that the order of dismissal was ultra vires and void and claimed a total amount of Rs. 10,131 in respect of damages, allowances for doing officiating work, bonus, arrears of salary and provident fund. 3. The main contesting Defendant Was Defendant No. 1, Defendant No. not Put in appearance. Defendant No. Adopted the pleas of Defendant No 1. Defendant No. 4 did not admit the plaint allegations and contended that it had been unnecessarily impleaded. 4. The suit was contested mainly on the grounds that the order of dismissal was not vitiated on the ground of illegality or irregularity, that the Plaintiff was not a qualified Drainage Overseer, and, in any case, the suit was barred by limitation. 5. The trial court's findings were to the effect that the Plaintiff's substantive post was that of an overseer and not of a Drainage Overseer and the approval of the Superintending Engineer for his dismissal was not, therefore, necessary. 5. The trial court's findings were to the effect that the Plaintiff's substantive post was that of an overseer and not of a Drainage Overseer and the approval of the Superintending Engineer for his dismissal was not, therefore, necessary. The trial court further held that the order of dismissal of the Plaintiff was ultra vires and bad on the ground that the Plaintiff was not given an opportunity of being personally heard by the Board, that no notice to show cause against the proposed punishment was issued by the Board, that the order of dismissal was based on certain grounds which were not the subject-matter of the charge and that the Chairman of the Board was not competent to try the Plaintiff. On the question of limitation, however, the trial court came to the conclusion that the Plaintiff's suit was barred by time. The Plaintiff's suit was, accordingly, dismissed with costs on parties. The Plaintiffs suit having been filed in for-pauperis, he was called upon to pay the court fee within three months. 6. Dissatisfied with the said judgment and decree, the Plaintiff filed this appeal in the High Court. He was allowed to appeal in forma pauperies. He appeared personally before us and argued the case at length. At the stage of appeal, the main subject-matter of controversy between the parties has been the question of limitation. It was strenuously argued by the Plaintiff-Appellant that his suit was within limitation. On the other hand, on behalf of the Respondents, it was contended before us that the suit was barred by limitation. Having heard the parties and given our earnest consideration to the matter, we have come to the conclusion that the Plaintiff's suit is barred by limitation. 7. There is no dispute between the parties about the various dates relevant to this issue. The Plaintiff was admittedly appointed on 5-3-1937. He was dismissed by a resolution of the Board dated 5-3-1951. A copy of this resolution was handed over to the Plaintiff on 19-3-1951. On 7-4-1951, the Plaintiff filed a departmental appeal to the UP Government. This appeal was dismissed by the Government by an order dated 7-4-1952. The order of dismissal was communicated to the Plaintiff on 8-4-1952, and the Plaintiff filed the present suit on 8-12-1952. 8. A copy of this resolution was handed over to the Plaintiff on 19-3-1951. On 7-4-1951, the Plaintiff filed a departmental appeal to the UP Government. This appeal was dismissed by the Government by an order dated 7-4-1952. The order of dismissal was communicated to the Plaintiff on 8-4-1952, and the Plaintiff filed the present suit on 8-12-1952. 8. The section of the UP Municipalities Act (Act No. II of 1916) that is relevant to the point at issue is 326. It runs as follows: 326(1). No suit shall be instituted against a board, or against a member, officer, or servant of a board in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been in the case of a board, left at its office and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending Plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2).... (Omitted) (3) No action such as is described in Sub-section (1) shall unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. (4) .... (Omitted) 9. If the above provision applied to the present case, under Sub-section (3) of Section 326 of the UP Municipalities Act this suit should have been filed within six months next after the accrual of the cause of action. Adding two months required for notice u/s 326(1), the suit should have been filed within eight months of the accrual of the cause of action. The Plaintiff was dismissed on 5-3-1951, and the order of dismissal was communicated to him on 19-3-1951. Even if the date of communication of the order to the Plaintiff be considered to be the date of the accrual of the cause of action, the suit should have been filed on or before 19-11-1951. It was, however, not filed till 8-12-1952. It is, therefore, obviously beyond limitation. Even if the date of communication of the order to the Plaintiff be considered to be the date of the accrual of the cause of action, the suit should have been filed on or before 19-11-1951. It was, however, not filed till 8-12-1952. It is, therefore, obviously beyond limitation. The Plaintiff, however, argued that the date of the accrual of the cause of action was not 5-3-1951, the date when he was dismissed by the Board, or 19-3-1951, when the order of dismissal by the Board was communicated to the Plaintiff, but the date on which the order of dismissal of the appeal by the UP Government was communicated to the Plaintiff, i.e. 8-4-1952, and the suit having been filed just on the date of expiry of the period of eight months from that date, i.e. 8-12-1952, it was within limitation. Having given our earnest consideration to this aspect of the matter, we find ourselves unable to endorse this line of reasoning. There is no doubt that the Plaintiff was dismissed by the Board on 5-3-1951. This order of dismissal was communicated to the Plaintiff on 19-3-1951. The cause of action in favour of the Plaintiff had, therefore, accrued on or before 19-3-1951. The cause of action in a suit is constituted by the bundle of facts that would enable a Plaintiff to sustain the suit. The crucial question, therefore, that arises is whether, if the Plaintiff had brought the present suit on or after 19-3-1951, could it be dismissed on the ground that no cause of action had accrued in favour of the Plaintiff. The answer to this question should be given in the negative. In our opinion a suit of this nature filed after 19-3-1951, could not have been dismissed on the ground of the absence of cause of action. 10. It is important in this connection to note that under the UP Municipalities Act (Act No II of 1916) once, the Board passed an order of dismissal of an officer, such an order is complete in itself. It comes into operation and takes effect immediately. Its operation is not dependent on the decision of the appeal by the Government, nor is it subject to any condition. Further, its operation is not kept in abeyance for any further period of time. This point is elucidated in greater detail in the subsequent portion of our judgment. It comes into operation and takes effect immediately. Its operation is not dependent on the decision of the appeal by the Government, nor is it subject to any condition. Further, its operation is not kept in abeyance for any further period of time. This point is elucidated in greater detail in the subsequent portion of our judgment. Once it is held that the cause of action had accrued in favour of the Plaintiff on or before 19-3-1951, the period of limitation would commence to run from that date and would continue to run until the date of limitation had expired, unless it is obstructed or suspended by virtue of any express statutory provision. No such statutory provision exists in the present case. For the above reasons, we are of opinion that the Plaintiff's suit is barred by limitation. 11. The Plaintiff, however, has strongly relied on a Bench decision of the Allahabad High Court in District Board, District Board Vs. Kailashi Nath Kapoor, AIR 1948 All 199 . That was a case which arose under the UP District Boards Act (Act No. 10 of 1922) as amended in 1933. It was held in that case that if an appeal to to the Government against an order of dismissal passed by a (District Board is filed the resolution of the District Board is kept in abeyance until orders have been passed upon it by the Provincial Government. The order of dismissal by the District Board therefore, would take effect not from the (sic) of dismissal of the officer by the District (sic) from the date of the decision of the appeal by the Government. This case was reversed by the Supreme Court in Shrimati Hira Devi and Others Vs. District Board, Shahjahanpur, AIR 1952 SC 362 although on a different ground. We have however, looked into this case carefully, and we are of opinion that this case is distinguishable from the present one. It is important to note in this connection that the question in District Board Vs. Kailashi Nath Kapoor, AIR 1948 All 199 arose in connection with Section 71 of the UP District Boards Act. The corresponding section of the UP Municipalities Act which is relevant in the present case is Section 53. The two sections are differently worded. It is important to note in this connection that the question in District Board Vs. Kailashi Nath Kapoor, AIR 1948 All 199 arose in connection with Section 71 of the UP District Boards Act. The corresponding section of the UP Municipalities Act which is relevant in the present case is Section 53. The two sections are differently worded. Section 71 of the UP District Boards Act, as it stood at the time, ran thus: A Board may by special resolution punish or dismiss its secretary: Provided, firstly, that such resolution is passed by a vote of not less than two thirds of the total number of members of the board for the time being: Provided, secondly, that the secretary of a board shall have a right of appeal to the State Government against such resolution within one month from the date of the communication of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until the State Government have passed orders on any appeal preferred by him. 12. Dealing with the above provision of law, the learned Judge of the Bench of the Allahabad High Court in AIR 1948 Alld. 199 observed as follows: An examination of the provisions of Section 71, UP District Boards Act, (1322), particularly proviso 2 to it, would make it clear that the 'special' resolution of the Board inflicting any 'punishment' or even 'dismissal', on the Secretary cannot take effect until the period of one month has expired or until the Provincial Government have passed orders on an appeal preferred by the Secretary. It follows, therefore that in a case where a District Board passes a special resolution of dismissal of the secretary but takes no other step the resolution cannot take effect immediately. It has to be kept in abeyance for one month obviously to enable the Secretary to make up his mind whether he will go up in appeal against the resolution to the Provincial Government. If an appeal is actually filed, the resolution kept in abeyance until orders have been passed upon it by the Provincial Government. In a case of this character, normally the Secretary would continue to be the Secretary and would be discharging his duties as such till orders of the Provincial Government on the appeal are passed and communicated to him. If an appeal is actually filed, the resolution kept in abeyance until orders have been passed upon it by the Provincial Government. In a case of this character, normally the Secretary would continue to be the Secretary and would be discharging his duties as such till orders of the Provincial Government on the appeal are passed and communicated to him. If the appeal is finally dismissed and thus the resolution of the Board is confirmed, it would be the date of the decision of the appeal, and not the date when the resolution was passed, that the dismissal of the secretary would come into effect. (p. 201, col. 2) 13. Section 58 of the UP Municipalities Act (Act No. 11 of 1916) with which we are concerned runs as follows: 58. A board may punish, dismiss or remove its Executive Officer by a special resolution supported by not less than two-thirds of the members constituting the Board, subject to his right of appeal to the State Government within thirty days of the communication to him of the order of punishment or dismissal. (2) The State Government may suspend the Executive Officer pending the decision of an appeal under Sub-section (1), and may allow, disallow or vary the order of the Board. (3).... (not relevant). It will be observed that as contrasted with Section 71 of the UP District Boards Act cited above, there is no provision here for postponing the operation of the effect of the resolution passed by the Municipal Board. The resolution passed by the Municipal Board as observed above takes effect immediately. It is an order that is complete and effective by itself, and its operation is not postponed for any further period, nor its effect suspended until the State Government have passed any orders on appeal. No doubt the resolution passed by the Board against an officer is "subject to his right of appeal to the State Government," but it is to be noted that the fact that it is subject to any such right does not have the effect of postponing the immediate operation of the resolution of the Board. The provision that the special resolution of the Municipal Board is subject to a right of appeal to the State Government only means that such a resolution can be set aside, varied or confirmed by the State Government. The provision that the special resolution of the Municipal Board is subject to a right of appeal to the State Government only means that such a resolution can be set aside, varied or confirmed by the State Government. It does not mean that the exercise of such a right has the effect of keeping the operation of the resolution of the Board in abeyance. If the intention of the legislature was to postpone the effect of the resolution there is no reason why, as in the District Boards Act so in the Municipal, Boards Act, the legislature would not have made an express provision to the effect "that the resolution shall not take effect until the period of one month has expired or until the State Government have passed orders on any appeal preferred by him." The absence of these words in Section 58 of the UP Municipalities Act clearly indicates that the intention of the legislature was that the resolution passed by the Municipal Board should take effect immediately. 14. Reliance is also placed on behalf of the Appellant on Sub-section (2) of Section 58. It is argued that Sub-section (2) makes a provision that the State Government may suspend the officer pending the decision under Sub-section (1). It is contended that the use of the word 'suspend' implies that the officer dismissed is deemed to be in service. We are unable to accept this contention. It is to be observed that Sub-section (1) relates not only to dismissal, but also to punishment. In cases where a punishment is imposed by the State Government, the State Government is empowered under this provision to suspend the operation of the said order. Even in such a case, it is to be noted that suspension is not automatic, nor is it a necessary consequence of the order of the Municipal Board. It takes place only when an express order to that effect is passed by the State Government under Sub-section (2) of Section 58 Further, it is to be noted that Section 58 of the UP Municipalities Act does not say that the resolution of the Board is subject to confirmation by the Government. It only says that such resolution is subject to the right of the dismissed officer to appeal to the Government. It only says that such resolution is subject to the right of the dismissed officer to appeal to the Government. For the above reasons, we are of opinion that Section 71 of the UP District Boards Act can provide no analogy to a case u/s 58 of the UP Municipalities Act, and AIR 1948 Alld. 199 which was a case u/s 71 of the UP District Boards Act has no application to the present case. 15. In the present, case, therefore, a complete cause of action is furnished by the resolution of dismissal passed by the Municipal Board u/s 58 of the Municipalities Act (Act No. II of 1916). Such a cause of action is not suspended for any length of time in the absence of an appeal to the State Government, nor does the filing of such an appeal have the effect of suspending it. We are, accordingly, of opinion that the Plaintiff's suit is barred by limitation, and was rightly dismissed on that ground by the trial court. In this view of the matter it is not necessary for us to express any opinion on the other aspects of the case which have been decided in favour of the Plaintiff-Appellant by the trial court. 16. This appeal is, accordingly, dismissed with costs. The Appellant is directed(sic) pay the court fee which he would if not permitted to (sic)as pauper. The amount shall be specified in the decree. 17. Let a copy of the (sic) be forwarded to the Collector for necessary action.