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1961 DIGILAW 148 (ALL)

Municipal Board Soron v. Gopi Nath

1961-07-24

DAYAL, SRIVASTAVA

body1961
JUDGMENT Srivastava, J. - The following question has been referred to us for answer: Does the issue of a notification by the State Government u/s 60B of the U.P. Municipalities Act, 1916 (Act No. 2 of 1916) empowering the Head of the Education Department to exercise with reference to the said Department, powers under Cl. (2), Sub-section (1) of Section 60 of the said Act have the effect of divesting the Executive Officer of his powers u/s 60-B and Section 76 of the U.P. Municipalities Act, 1916 (Act No. 2 of 1916)? 2. The circumstances in which the question arose can be briefly stated. Sri Gopi Nath was working as a teacher in the Sant Tulsi Das Memorial Higher Secondary School, Soron, district Etah. He was getting a salary of less than Rs. 50 per mensem. The School was a Municipal School under the management of the Municipal Board of Soron. The Municipal Board was a non-city Municipality. On the 17th of December 1952 in the purported exercise of his powers u/s 76 of the UP Municipalities Act (II of 1916) the Executive Officer of the Municipal Board passed an order dismissing Sri Gopi Nath. Before this order of dismissal was passed Government had issued a notification u/s 60-B of the Municipalities Act directing that in the Municipality in question the Superintendent of the Education Department was to exercise the powers under Cl. (e) of sub.S. (1) of Section 60. The order of dismissal was, however, not passed by the Superintendent of the Education Department but was passed by the Executive Officer. Sri Gopi Nath then filed the suit out of which this second appeal has arisen claiming a declaration that the order of dismissal passed against him by the Executive Officer was ultra vires, null and void. The point he raised was that in view of the notification issued by the Government u/s 60-B of the Municipalities Act the Executive Officer had no power left to dismiss the Plaintiff u/s 76 of the Act. The suit was dismissed by the trial Court and Sri Gopi Nath went up in appeal. The appellate Court came to the conclusion that the dismissal of the Plaintiff was bad in law and, therefore, decreed the suit. Against that decree the Municipal Board has filed the present second appeal. When it was being argued before Mr. The suit was dismissed by the trial Court and Sri Gopi Nath went up in appeal. The appellate Court came to the conclusion that the dismissal of the Plaintiff was bad in law and, therefore, decreed the suit. Against that decree the Municipal Board has filed the present second appeal. When it was being argued before Mr. Justice Beg the question we have already quoted was raised and the learned Judge being of opinion that the question was important enough to deserve consideration by a Division Bench referred it to a Division Bench. That is how the case has come to us. 3. Primarily the power to dismiss its servant vests in the Municipal Board Under 60, however, some of the powers of the Municipal Board can be exercised by the Executive Officer appointed u/s 57 or 65. The powers which can thus be exercised by the Executive Officer include as mentioned in Cl. (e) of Sub-section (1) of Section 60. In respect of servants of the board, the powers vested in the executive officer by Sections 75 and 76, and the power to grant leave of absence to the holder of any post to which he has power to appoint; 4. In view of this delegation of power, u/s 76 the Executive Officer can pass certain orders against servants of the kinds specified in the section. That section reads as follows: 76. Except as otherwise provided the executive officer may punish or dismiss: (a) servants on or drawing a monthly salary not exceeding Rs. 40, or in a city Rs. 50; and (b) servants on or drawing a monthly salary exceeding Rs. 40 but not exceeding Rs. 50 or in a. city exceeding Rs. 50 but not exceeding Rs. 75; but 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 or reduction by way of punishment, in respect of servants mentioned in Cls. (a) and (b) above 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. 5. By Section 51 of UP Act VII of 1949 Section 60-B was introduced in the Municipalities Act and as it was originally enacted. (a) and (b) above 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. 5. By Section 51 of UP Act VII of 1949 Section 60-B was introduced in the Municipalities Act and as it was originally enacted. It read like this: 60-B. The Provincial Government may, by notification in the official Gazette, direct that in any Municipality the principal officers of Electrical, Public Works, Education and Water Works Departments shall exercise, with reference to their departments, power under Cl. (e) of Sub-section (1) of Section 60, and anything done in exercise of the powers conferred under the provisions of this section shall be deemed to be thing done and power exercised by the executive officer. 6. Subsequently by the Adaptation of Laws Order, 1950 the word "Provincial" in the section was substituted by the word "State" and by Section 24 of UP Act VII. of 1953 the word "Education" was deleted from the section. We are, however, not concerned with the latter amendment in the present case because here the order of the Plaintiff's dismissal was passed in 1952 when the word "Education" was there in the section. The State Government in due course issued a notification contemplated by Section 60-B and empowered the principal officer of the Education Department to exercise the powers mentioned in Cl. (e) of Sub-section (I) of Section 60 in respect of the persons employed in that department. 7. The contention raised by the Plaintiff was that the power of punishment which originally stood delegated in view of Ss. 60(1)(e) and 76 of the Municipalities Act to the Executive Officer were delegated to the principal officer of the Education Department by the notification u/s 60-B. On account of this subsequent delegation the earlier delegation stood cancelled and in case of officials covered by the notification issued u/s 60-B the Executive Officer could not exercise his powers of punishment conferred under Ss. 60(l)(e) and 76 of the Act. 8. On behalf of the Appellant it was not disputed that the notification u/s 60-B had the effect of conferring on the head of the Education Department in the Municipal Board the powers which had originally been delegated under Ss. 60(1)(e) and 76 to the Executive Officer of the Board. 60(l)(e) and 76 of the Act. 8. On behalf of the Appellant it was not disputed that the notification u/s 60-B had the effect of conferring on the head of the Education Department in the Municipal Board the powers which had originally been delegated under Ss. 60(1)(e) and 76 to the Executive Officer of the Board. It was, however, contended that the delegation was an alternative one and the powers conferred on the principal officer of the Education Department and the Executive Officer were concurrent with the result that the power could be exercised either by the principal officer of the Education Department or by the Executive Officer. In the present case the power having been exercised by the Executive Officer no exception, it was contended, could be taken by the Plaintiff to that exercise on the ground that the principal officer of the Education Department also possessed that power. 9. We may mention at this stage that there is a slight inaccuracy in the question framed by the learned Judge. At the end of the question while referring to the powers of the Executive Officer which were alleged to have been divested, Section 60B has been mentioned along with Section 76. Section 60-B does not, however, confer any power on the Executive Officer. The reference should therefore, have been not to Section 60-B but Section 60(1)(e). We shall, therefore, proceed to answer the question so amended. 10. There are two considerations which lead us to answer the question referred to us in the affirmative. The first is that the very opening words of Section 76 show that the section is subject to the other provisions of the Act, including. Section 60-B. The words "Except as otherwise provided" can have no other meaning. Section 76 will, therefore, be effective only if there is nothing else provided elsewhere in the Act. Section 60-B is there in the Act and provides that the powers of the Executive Officer u/s 76 can be exercised with reference to the employees of a particular department by the principal officer of that department provided a notification is issued to that effect by the State Government. That notification having been issued there came into existence another provision under the Act to which Section 76 became subject. That notification having been issued there came into existence another provision under the Act to which Section 76 became subject. Section 76 continued to be operative and the powers conferred by it on the Executive Officer could be exercised by him only in respect of the employees of departments not mentioned in Section 60-B or in respect of employees of departments regarding which notification has been issued under that section. Once the necessary notification u/s 60-B was issued Section 76 being subject to Section 60-B the powers of the Executive Officer got suspended and could be exercised only by the principal officer of the department concerned. This opinion of ours is strengthened if reference is made to the last few words of Section 60-B. They provide that the powers exercised by the principal officer of the department mentioned in that section will be deemed to be the powers of the Executive Officer. From this it follows that the power which the principal officer of the department will be exercising will be the identical power which the Executive Officer could have exercised u/s 76 had it been open to him to exercise it. We have, therefore, no doubt that once the notification u/s 60-B is issued and the power mentioned in that section is conferred on the principal officer of the department mentioned therein the Executive Officer loses his right to exercise that power and the delegation made to him comes to an end. 11. Then, the Executive Officer also exercises only a delegated power. The power principally vests in the Municipal Board and it is only on account of Section 60(1)(e) that the executive officer can exercise the powers mentioned in Section 76 as a delegatee. Now if the same powers are delegated to some one else the clear intention appears to be that the former delegation should either stand cancelled or at least suspended. Alternative delegation may be possible in certain circumstances but we find nothing in Section 60(1)(e) of Section 60-B or Section 76 to justify the interpretation that the powers conferred by the notification u/s 60-B and under Sections 75 and 76 are powers which can be exercised in the alternative either by the Executive Officer or by the principal officer of the department concerned. If the provisions in question are interpreted in that manner serious conflict may arise, as pointed out by the learned single Judge. If the provisions in question are interpreted in that manner serious conflict may arise, as pointed out by the learned single Judge. An interpretation of a statute that might create conflict and difficulty should always be avoided. 12. We are, therefore, of opinion that the question referred to us by the learned Judge as amended by us should be answered in the affirmative and answer it accordingly. With this answer the record will go back to the learned Judge for proceeding with the second appeal.