Municipal Board, Allahabad v. Jagmohan Prasad — 1960 DIGILAW 291 (ALL)

JUDGMENT Mootham, C.J. - This is an appeal from an order of a learned Judge dated the 8th February, 1957. The short point raised in the appeal is whether a Municipal Board has the power to discharge a Ward Inspector whose services it no longer wishes to retain. 2. The respondent entered the service of the Municipal Board of Allahabad in the year 1923 as a Ward Inspector. On the 12th November, 1955, he was served with a notice which reads thus: "I have the honour to inform you that your services being no longer required by the Allahabad Municipal Board will determine with effect from March 1, 1956. This may be treated as three months notice for the same." 3. The respondent then filed a petition in this Court in which he challenged the validity of the notice terminating his services and prayed that it be quashed by a writ of certiorari. The learned Judge, following a decision of Mehrotra, J., held that the Board could not terminate the respondent's services except by way of punishment, and that in that case it must comply with the regulations printed at page 654 of the 1952 Edition of the Municipal Manual. The requirements of those regulations were admittedly not complied with. The learned Judge, accordingly allowed the petition and directed the Board to treat the respondent as still in its service. It is from that order that the Municipal Board, subsequently replaced by the Nagar Mahapalika, now appeals. 4. In our opinion this appeal must be allowed. 5. It is contended on behalf of the Board that it has an inherent power to terminate the services of employees in the position of the respondent at any time on giving the employee reasonable notice of its intention to do so. 4. In our opinion this appeal must be allowed. 5. It is contended on behalf of the Board that it has an inherent power to terminate the services of employees in the position of the respondent at any time on giving the employee reasonable notice of its intention to do so. The respondent's case is that under a Regulation made by the Local Government and printed at p. 454 of the Manual he was entitled to hold his post, subject to good behaviour, until he attained the age of sixty years; that the Municipalities Act conferred no power on the Board, expressly or by implication, to dispense with the respondents services, (otherwise than by way of punishment) until he attained the age of superannuation and that in any case there had been a failure by the Board to comply with the mandatory provisions of its "regulations regarding dismissal of Municipal employees" to be found at p. 654 of the Manual. 6. We think there is no force in the first of these submissions which was not indeed strongly pressed. The Regulation at p. 454 provides that "No Municipal employee shall ordinarily be retained in the service of the Board after he attains the age of 60 years, and in no case after he attains the age of 65 years." The Regulations place a ban on the employment by the Board of any employee after he has attained a certain age; it does not provide expressly, nor in our opinion by implication, that an employee is entitled to remain in the service of the Board until he reaches the age of 60. 7. The more important question is whether the Board, which is a statutory body, had power under the Act to dispense with the services of its employees. The question arose in Municipal Board, Shahjahanpur v. Sardar Sukha Singh, AIR 1937 Allahabad 264 : ALJ 153. The respondent in that case had been the secretary of the appellant board for a number of years. In 1930 an executive officer was appointed, and as the board considered that it was unnecessary to have a secretary and an executive officer it terminated the services of the former. The Secretary filed a suit for a declaration that he had not been legally dismissed, that he was still the board's servant and entitled to continue drawing his salary; and he obtained a decree. The Secretary filed a suit for a declaration that he had not been legally dismissed, that he was still the board's servant and entitled to continue drawing his salary; and he obtained a decree. On appeal this Court set aside the decree, holding that the board was entitled to discharge the plaintiff. In 1930, Section 71 of the U. P. Municipalities Act was in these terms: "A Board may by resolution determine what servants (other than the executive officer, secretaries appointed under Section 66, engineers, the health officer or temporary servants appointed under Section 70) are required for the discharge of the duties of the Board and the salaries paid to them respectively." 8. The Court was inclined to the view that this section by implication empowered the Municipal Board to discharge servants whose services were no longer required; but it held that: "Apart altogether from Section 71 we are satisfied that the Municipal Board like any other employer of labour is entitled to discharge servants it no longer desires to employ. It is true that while specific provision is made in the Act for the dismissal or punishment of a servant there is no provision for the discharge of an employee whose services are no longer required. Without special statutory provision however a Municipal Board is clearly entitled to perform all the acts necessary in the conduct of its business. The discharge of servants whose offices have been abolished as a matter of policy is in our judgment clearly a step which a Municipal Board is entitled to take in the conduct of its business." 9. This decision substantially concludes this point against the respondent. It is however urged that as the appellant is a statutory body its powers are to be found only in the Act by which it was created and it cannot have recourse to the general law of master and servant. Assuming for the sake of argument that this be correct the answer to the contention is to be found, we think, in Section 74 of the Act which provides that: "Subject to any provisions to the contrary contained in Sections 57 to 73 servants on or drawing a monthly salary exceeding Rs. 50, or in a city Rs. Assuming for the sake of argument that this be correct the answer to the contention is to be found, we think, in Section 74 of the Act which provides that: "Subject to any provisions to the contrary contained in Sections 57 to 73 servants on or drawing a monthly salary exceeding Rs. 50, or in a city Rs. 75 shall be appointed and may be punished or dismissed by the President: Provided that an appeal shall lie (a) in the case of dismissal or removal to the State Government, and (b) in the case of any other punishment to the prescribed authority . . ." 10. It is common ground that Sections 57 to 73 have no relevance to the present dispute; but it is argued for the respondent that proviso (b) to this section makes it clear that the reference to dismissal or removal means dismissal or removal as a punishment, and that therefore while the President has a power to punish, he has not been given the power to terminate an employee's services otherwise than by way of punishment. We think that the argument overlooks the provision to be found in Section 16 of the U. P. General Clauses Act that a power to appoint will, unless a different intention appears, include power to terminate the appointment. The power which is expressly given to the President by Section 74 of the Act is to appoint servants of the board and to punish such servants whether by dismissal, removal or otherwise. We do not think that there can properly be read into this section an intention on the part of the legislature that the power of appointment conferred on the President is not to include the power to terminate appointments so made otherwise than by way of punishment. The respondent appears in fact to be in the horns of a dilemma. Either the word "dismissed" in this section includes the termination of services otherwise than by way of punishment, or it does not. If it does, the respondent clearly has no case; if it does not then we can see no adequate reason why the power conferred on the President to appoint should not include the power to discharge. Either the word "dismissed" in this section includes the termination of services otherwise than by way of punishment, or it does not. If it does, the respondent clearly has no case; if it does not then we can see no adequate reason why the power conferred on the President to appoint should not include the power to discharge. We have not overlooked the observations of the Supreme Court made in Shrimati Hira Devi v. District Board, Shahjahanpur, 1952 SCR 1122 : 1952 ALJ 717 where at p. 1130 the Court said: "When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under Section 16 of the U. P. General Clauses Act." 11. The question which arose in that case was however very different to that which is now before us. The District Board of Shahjahanpur had passed a resolution dismissing its secretary. Under Section 71 of the U. P. District Boards Act that resolution would not take effect (the secretary having filed an appeal to the State Government) until the appeal was decided. The District Board however at the same time as it resolved to dismiss its secretary resolved also that he be placed under suspension pending the disposal of his appeal, and the question was whether that latter resolution was valid. The Supreme Court held that it was not. A power to suspend an employee as a punishment or pending enquiry was conferred on the Board of Section 90 of the Act. No power was conferred on the Board to suspend an employee after the Board had resolved that he should be dismissed pending the disposal of his appeal, and the Court held that in view of the express confer judgement by the Act of certain specific powers of suspension on the Board it was not permissible to imply a further power of suspension in a case not falling with in the ambit of Section 90. The power to suspend or dismiss a person conferred upon an appointing authority by Section 16 of the U. P. General Clauses Act is operative "unless a different intention and in Shrimati Hira Devis case the Supreme Court held that it was clearly not the intention of the legislature that the District Board should have any power of suspension other than that expressly conferred by Section 90. That case is therefore distinguishable. The question whether the legislature intended that the provisions of Section 16 of the U. P. General Clauses Act should not apply must be determined in each case in the light of the enactment under consideration. The position would be anomalous if the Board had no power to terminate an employees services, except by way of punishment, prior to his attaining the age of superannuation. Reorganisation of duties involving the abolition of certain posts may be necessary in the interest of efficient Municipal administration; financial stress may make it essential for the Board to retrench a number of posts. If the Board has no power in such circumstances to terminate an employee's services it is clear that the Municipal administration will suffer. In our opinion the Board has the power, subject to its rules and regulations and to the terms of any contract of service, to discharge its employees upon giving them reasonable notice. 12. It should also be observed that there is authority of this Court Roshan Lal v. District Board of Aligarh, AIR 1935 Allahabad 802; Banarsi Das v. Municipal Board, Moradabad, AIR 1939 Allahabad 310 : 1939 ALJ 9 for the proposition that the servant of a local authority holds his office at pleasure. It is not however necessary for us in this appeal to consider whether these authorities are still good law. 13. It is however further contended on behalf of the respondent that his services could not in any event be determined unless the Regulations printed at page 654 of the Manual were complied with. Those regulations read thus: "1. No officer or servant shall be dismissed, removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him. Any written defence tendered shall be recorded and a written order shall be passed. 2. Those regulations read thus: "1. No officer or servant shall be dismissed, removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him. Any written defence tendered shall be recorded and a written order shall be passed. 2. Every order of dismissal, removal or reduction shall be in writing and shall specify the charge or charges brought, the defence and the reasons for the order." There was some argument before us as to whether these regulations have a valid statutory basis, but we think it unnecessary to examine that question as we are satisfied that they do not apply to a case in which a municipal employee is discharged otherwise than as a punishment. This was so held by this Court in the case of a regulation in identical terms made under the U.P. District Boards Act: District Board, Jhansi v. Banmali, (Special Appeal No. 193 of 1954, decided on the 18th May, 1960. It was there pointed out that "The first sentence of the regulation is in terms which are very similar to Article 311 of the Constitution, and it is well established that the words "dismiss or remove or reduce in rank" in that Article have the technical meaning of dismissal, removal or reduction for some misconduct or fault on the part of the persons concerned. The reference in the latter part of the regulation to the tendering of a written defence and the provision that every order made under the regulation shall specify the charge brought and the defence makes it clear that the regulation is intended to apply to cases in which action is proposed to be taken for some misconduct or other fault on the part of the District Boards officer or servant." A similar view was, we observe, taken by the Bombay High Court in Gokak Municipality v. Rajaram Shridhar Kilka, AIR 1940 Bombay 386 where the rule under consideration was substantially in the same terms as the regulation we are now considering. 14. We are therefore of opinion that the Municipal Board had an implied power to terminate the services, otherwise than by way of punishment, of the respondent. This appeal is accordingly allowed with costs and the order of the learned Judge dated the 8th February, 1957, is set aside.