Shanti Sarup v. Municipal Board — 1958 DIGILAW 362 (ALL)

JUDGMENT Jagdish Sahai, J. - One Nabi Husain occupied the post of octroi inspector in the municipality of Pilibhit. He tendered his resignation. The post was advertised. The petitioner applied for it and was appointed as an octroi inspector on 29-5-1950 and was confirmed in the appointment on 29-11-1950. In the meantime Sri Kishori Lal Sondhi, who was the head clerk of respondent no. 1, the Municipal Board of Pilibhit (hereinafter referred to as the Board) was dismissed. One Rameshwar Dayal who was one of the octroi inspectors, in the employment of the Board was appointed as head clerk in the vacancy caused by the dismissal of Sri Kishori Lal Sondhi and in place of Rameshwar Dayal aforesaid one Ram Kirti Lal was promoted as an octroi inspector in the vacancy caused by the promotion of Rameshwar Dayal. In the meantime Kishori Lal filed a suit against his dismissal on the ground that the same was wrongful. The learned Munsif who tried the suit dismissed it. An appeal was filed by Kishori Lal before the learned District Judge and in appeal the decree of the learned Munsif was reversed and the suit was decreed. Thereafter a second appeal was filed by the Board in this Court. The second appeal was pending in this Court on 22nd October 1956. On that date the Board passed a resolution reinstating Kishori Lal. A copy of that resolution has been filed along with this petition and marked as annexure C. Kishori Lal took over charge as the head clerk in view of the resolution of the Board mentioned above. Rameshwar Dalal was then reverted to his original post of Octroi Inspector. The Board was then faced with a difficulty and that was that whereas there were only two posts of octroi inspectors, they had three persons to work on those two posts: they were Rameshwar Dayal, the petitioner, and Ram Kirti Lal. The respondent no. 3, the executive officer of the Board sent a letter to the petitioner informing him that his services have been terminated in accordance with the spirit of the resolution of the Board dated 22-10-1956, mentioned above. Later on he sent another letter dated 23-3-1957 informing the petitioner that his services have been terminated under the orders of the President of the Board. On these facts the petitioner has come to this Court under Article 226 of the Constitution. Later on he sent another letter dated 23-3-1957 informing the petitioner that his services have been terminated under the orders of the President of the Board. On these facts the petitioner has come to this Court under Article 226 of the Constitution. The prayer in the petition is for the issue of a writ of certiorari quashing the notice terminating the services of the petitioner. 2. A counter affidavit has been filed on behalf of the Board. It is not necessary to mention all the allegations made in the counter affidavit. It is stated in the counter affidavit that the petitioner's appointment dated 29-5-1950 was made by the Acting President of the Board who was the Senior Vice President and the appointment was subject to the approval of the President. According to the counter affidavit the approval was given to the appointment of the petitioner on 11-6-1951. It is not denied that the petitioner was confirmed on 29-11-1950, but what is stated in the counter affidavit is that that confirmation was wrong. According to the counter affidavit the petitioner was confirmed later on. It is also stated in the counter affidavit that Ram Kirti Lal was confirmed on 22-7-1952 with retrospective effect from 8-4-1950, and it is further stated that Ram Kirti Lal is senior to the petitioner as an Octroi Inspector. A rejoinder affidavit has also been filed. It is not necessary to maintain the various allegations made in the rejoinder affidavit because in my opinion this petition can be decided on a very short point. On 1-9-1958 a supplementary counter affidavit has been filed on behalf of the respondents, along with which a copy of the order of the President of the Board dated 25-1-1957 has been filed. The concluding portion of that order runs as follows: - "I would appreciate and I think there is no harm if you find yourself unable to agree with the office report. You are the Executive Officer and it is not necessary that you should always agree with the reports of your subordinates but your contrary conclusions should be based on concrete grounds and rules and regulations be reported to support your view point. You are the Executive Officer and it is not necessary that you should always agree with the reports of your subordinates but your contrary conclusions should be based on concrete grounds and rules and regulations be reported to support your view point. Under the circumstances I think that there is no other alternative but to remove the junior employee and serve him with a proper notice according to rules with immediate effect, if need be L. A. be consulted, as to all the legal difficulties which are likely to arise and prevent the Board being involved into unnecessary litigation. Sd: Chandrawati President 25-1-1957. 3. In the counter affidavit the case taken up by the respondents is that the post on which the petitioner was working had been abolished and consequently the services of the petitioner were terminated. 4. Mr. Brij Lal Gupta, learned counsel for the petitioner has urged three grounds before me. His first submission is that the services of the petitioner could be terminated only by the Board and not by the President as has been done in the present case. In this connection Mr. Gupta has also submitted that even if it be held that the services of the petitioner could be validly terminated by the President his client was entitled to the show cause notice on the basis of the principles of natural justice, which was not given to him. His second submission is that in fact the petitioner has been removed from service and before he was removed from service no opportunity was given to him of showing cause against the action proposed and the last submission of the learned counsel for the petitioner is that the allegation of the Board that the petitioner is junior to Ram Kirti Lal is totally incorrect and in any case under the circumstances in which the petitioner was appointed he could not be deemed under law to be junior to Ram Kirti Lal. 5. I will take the first submission of the learned counsel for the petitioner first. I asked Messrs. 5. I will take the first submission of the learned counsel for the petitioner first. I asked Messrs. Shanker Sahai Verma and Prabhat Kumar, learned counsel for the respondents, to point out to me as to whether their case was that the services of the petitioner had been terminated by the Board or by the President and they have answered by saying that the services of the petitioner have been terminated by the Board and alternatively by the President of the Board. In the first place it is not possible to accept such an inconsistent plea. Either the services of the petitioner were terminated by the Board or they were terminated by the President and I cannot see how can there be an alternative case in such a matter. However I first proceed on the assumption that the petitioner's services have been terminated by the Board. It is admitted that the salary of the petitioner at the time when his services were terminated was Rs. 78/- per month. Sec. 74 of the U.P. Municipalities Act runs as follows :- 74. Subject to any provisions to the contrary contained in Secs. 57 to 73 servants on a monthly salary exceeding Rs. 50/- or in a city Rs. 75/- shall be appointed and may be punished or dismissed by the President subject in the case of dismissal or removal to an appeal to the State Government which must be presented to the State Government within one month of the date upon which the order of dismissal or removal is communicated to the person in respect of whom the order is made: Provided that an appointment on a monthly salary of Rs. 250 or over in the case of cities and Rs. 100 or over in other cases shall be subject to confirmation by the board." 6. The Pilibhit municipality is a non city municipality, and it cannot be denied that the President could dismiss the petitioner under Sec. 74 of the U.P. Municipalities Act but the question is whether the petitioner has been dismissed? It is now well established that the words "dismissal" and "removal" have been used in technical sense and do not embrace in their ambit the termination of service either under a statutory provision or under a contract. It is now well established that the words "dismissal" and "removal" have been used in technical sense and do not embrace in their ambit the termination of service either under a statutory provision or under a contract. The power given to the President under Sec. 74 of the U.P. Municipalities Act is to dismiss or remove an employee for some fault by way of punishment. It is nobody's case that the petitioner was removed or dismissed for some fault by way of punishment. Even according to the counter affidavit and the argument submitted by the learned counsel for the respondents the petitioner has neither been dismissed nor removed for any fault, therefore the President, to my mind, had no jurisdiction to terminate the services of the petitioner. Under Sec. 71 of the U.P. Municipalities Act it is the Board alone which has got power to regulate the number of its employees and under that provision the Board can reduce or retrench its staff. Though under Sec. 50 of the U.P. Municipalities Act certain functions of the Board have got to be performed by the President and not otherwise, the powers given under S. 71 are not those of the powers mentioned in Sec. 50 of the U.P. Municipalities Act. The result is that the power to reduce or retrench the staff of the Board could not be exercised by the President of the Board and must have been exercised by the Board itself. There is no resolution of the Board either retrenching the post of the petitioner or terminating his services. All that we have got is the resolution of the Board contained in annexure C to this petition. Directly or indirectly, there is no reference about the termination of the petitioner's services or about retrenchment of his post in the resolution. That resolution is confined to the case of Kishori Lal and does not touch in any manner the services of the petitioner. It must, therefore, be held that there is no resolution of the Board terminating the petitioner's services. That being so, the services of the petitioner cannot be deemed to have been terminated by the Board. I have already said that the President could not terminate the services of the petitioner. It must, therefore, be held that there is no resolution of the Board terminating the petitioner's services. That being so, the services of the petitioner cannot be deemed to have been terminated by the Board. I have already said that the President could not terminate the services of the petitioner. There is therefore nothing in the alternative case of the respondents because the services of the petitioner could not have been terminated by the President under Sec. 74 of the U.P. Municipalities Act. The executive officer of a municipal board can only punish or dismiss an employee under Sec. 76 of the U.P. Municipalities Act. Sec. 76 of the Act runs as follows:- "76. Except as otherwise provided the executive officer may punish or dismiss (a) servants on a monthly salary not exceeding Rs. 40 or in a city Rs. 50; and (b) servants on a monthly salary exceeding Rs. 40 but not exceeding Rs. 50 or in a city exceeding Rs. 50 but not exceeding Rs. 75 but in such case each order of dismissal or order imposing a fine exceeding in amount one month's pay of the person fined, or order of suspension for a period exceeding one month, or order of reduction by way of punishment shall be appealable to the President. Provided that in case there is no executive officer the powers conferred by this section may be exercised by the President." 7. The petitioner is not one of the persons who can be removed or dismissed by the executive officer of the Board under Sec. 76 because admittedly his pay was over Rs. 50/-. The executive officer, therefore, had no jurisdiction to issue notice terminating the petitioner's services. In that view of the matter the services of the petitioner have been wrongly terminated and since the notice terminating his services has been issued by an authority who had no jurisdiction to issue the same, it must be quashed. It is now not necessary to decide the other points raised by the learned counsel for the petitioner. 8. The petition is accordingly allowed and the notice dated 9-2-1957 is quashed. In the circumstances of the cases however, I make no order as to costs.