Gur Bux Rai v. Nagar Mahapalika Lucknow — 1965 DIGILAW 329 (ALL)

ORDER : The petitioner is an employee of the Nagar Mahapalika Lucknow, opposite party No. 1. The Nagar Mahapalika Lucknow came into being as from the 1st of February, 1960, its predecessor being the Municipality of Lucknow. The petitioner was appointed as Ahalmad in the Health Department in 1949 in the Municipal Board. The appointment is claimed by him to have been made by the Administrator Mr. Sanwal. He was appointed to the grade of Rs. 40-2-60. He was, however, confirmed with effect from the 1st of August, 1952 by the Medical Officer of Health or the Swasthya Adhikari of the then Municipal Board. This fact is averred in paragraph 3 of the counter-affidavit filed on behalf of the opposite parties on the 1st of February, 1965 and has gone uncontroverted. In the year 1959 he was promoted to the third grade clerk in the scale of Rs. 50-2-60 E, B. 0-4-100 as Balda Moharrir. On the 7th of October, 1964 he was suspended by opposite party No. 3, the Nagar Swasthya Adhikari, which order was communicated to him on the 9th of October, 1964, being annexure-I. The order directs that he would get 1/4th of pay as allowance during the period of his suspension. This writ petition has been filed challenging that order which is claimed to be illegal and ultra vires. The prayer is for the issue of a writ, order or direction in the nature of certiorari quashing the orders of suspension and for the issue of a writ of mandamus commanding the opposite parties, namely, the Nagar Mahapalika, Lucknow, the Mukhya Nagar Adhikari, the Nagar Swasthya Adhikari, the Atrikt Nagar Swasthya Adhikari and the Mukhya Swasthya Nireekshak Pakshmi Chhetra, not to interfere or stop the petitioner in the discharging of his duties. A writ in the nature of mandamus also is prayed for directing the opposite parties to pay full salary and dearness allowance to the petitioner during the period of his suspension. 2. A writ in the nature of mandamus also is prayed for directing the opposite parties to pay full salary and dearness allowance to the petitioner during the period of his suspension. 2. The contention of the petitioner is that he was a permanent employee of the Municipal Board when it merged into the Nagar Mahapalika, Lucknow, Under Section 577(e) of the U.P. Nagar Mahapalika, Adhiniyam, 1959, as he had not been appointed to any post created under the Adhiniyam till the 7th of October, 1964 when he was suspended, he was to draw the same salary and allowances and was subject to the same conditions of service to which he was entitled or was subject to on the date of the creation of the Nagar Mahapalika. He was, therefore, to be governed by the provisions of the U.P. Municipalities Act in so far as they may relate to his conditions of service and as under the U.P. Municipalities Act he could not be suspended by the Nagar Swasthya Adhikari, his suspension is not proper. As to the remuneration paid to him pending suspension, his contention is that there being no rules providing for 1/4th of the salary being paid to him during the period of suspension or any rule reducing the amount of remuneration during his suspension from his normal remuneration, he was entitled to be paid at the normal rate applicable to him including the clearness allowance. 3. I have been referred to some of the provisions of the U.P., Municipalities Act. Under Sub-Section (2) of Section 60 of that Act all servants of the Board shall be subordhiate to the Executive Officer. The Health Officer, therefore, it was submitted, was subordinate to the Executive Officer. The exception is in the case of Section 73, but we are not concerned with that provision. 4. Under clause (e) of Sub-Section (1) of Section 60 the Executive Officer shall exercise, in respect of servants of the board, the powers vested in him by Sections 75 and 76. 5. Under Section 75 the Executive Officer has the power to appoint servants on a monthly salary not exceeding Rs. 40/- or in a city Rs. 50/-. Lucknow being a City. He has also power with the sanction of the President to appoint servants on a monthly salary exceeding Rs. 40/- but not exceeding Rs. 50/- or in a city exceeding Rs. 40/- or in a city Rs. 50/-. Lucknow being a City. He has also power with the sanction of the President to appoint 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/-. 6. Under Section 76 the Executive Officer may punish or dismiss servants on or drawing a monthly salary not exceeding Rs. 40/- or in a city Rs. 50/- and also 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/- with certain provisions of appeals with which we are not concerned. 7. Under Section 60-A the State Government may by notification in the Official Gazette direct that in any municipality the medical officer of health, subject to the general control of the executive officer shall exercise, among others, in respect of servants of the board employed for conservancy, public health, vaccination, and the registration of births and deaths, the powers vested in the executive officer by Sections 75(a) and 76(a) of the Act. 8. The provisions of Section 75 and also of Section 76 have generally been mentioned above. Section 75(a) contains the power of appointment of servants on a monthly salary not exceeding Rs. 40/- or in a city Rs. 50/-; while Section 76(a) contains the power of punishing or dismissing the servants on or drawing a monthly salary not exceeding Rs. 40/- or in a city Rs. 50/-. 9. The contention put forward on behalf of the petitioner it that the appointing authority of the petitioner being the Executive Officer who is now substituted by the Mukhya Nagar Adhikari, the Swasthya Nagar Adhikari cannot suspend him, he being subordinate to him. It was also pointed out that there being no delegation of power under Section 60-A, the Medical Officer of Health or now the Swasthya Nagar Adhikari cannot at all suspend him. He can be suspended only by the Mukhya Nagar Adhikari and no one else inferior in rank as that post corresponds to the post of the Executive Officer of the Municipal Board. 10. He can be suspended only by the Mukhya Nagar Adhikari and no one else inferior in rank as that post corresponds to the post of the Executive Officer of the Municipal Board. 10. There is no doubt that the appointing authority of the petitioner was the Executive Officer of the Municipal Board and the person who could punish him also was the Executive Officer prior to the coming into force of the U.P. Nagar Mahapalika Adhiniyam. Under Section 577(e) of the U.P. Nagar Mahapalika Adhiniyam he would continue to be governed by the old conditions of service so long as he is not appointed to a post created under the Adhiniyam. According to the counter-affidavit filed on behalf of the opposite parties on the 23rd of April, 1965 the petitioner has been appointed to one of the posts created under the Adhiniyam only after the 10th of January, 1965. Upto the 7th of October, 1964, when he was suspended, the old rules applied to him. The contention on behalf of the opposite parties, however was that under Section 581 of the U.P. Nagar Mahapalika Adhiniyam the provisions of the U.P. Municipalities Act stand repealed as from the date of the creation of the Nagar Mahapalika and as the provisions of the U.P. Municipalities Act themselves stand repealed, there is no occasion to make them applicable in the case of the petitioner. This argument cannot be accepted. There is one thing to say that the provisions of a certain Act have been repealed, but there is another thing to say that the conditions of service of a certain person will be governed by the conditions of service contained in that Act. The Act may have been repealed, but the provisions relating to the conditions of service remain intact. The Act does not repeal the conditions of service. Section 581 of the U.P. Nagar Mahapalika Adhiniyam, therefore, does not repeal the provisions of Section 577(e) of that Adhiniyam so as to make them nugatory. Even if the two provisions contained in Sections 577(e) and 581 are destructive of each other, then there is a well known rule of the interpretation of statutes that a particular enactment is not repealed by a general enactment in the same statute, vide State of Bombay v. United Motors (India) Ltd., AIR 1953 SC 252 at p. 273. Even if the two provisions contained in Sections 577(e) and 581 are destructive of each other, then there is a well known rule of the interpretation of statutes that a particular enactment is not repealed by a general enactment in the same statute, vide State of Bombay v. United Motors (India) Ltd., AIR 1953 SC 252 at p. 273. The rules under the repealed Municipalities Act will, therefore, continue to apply to the petitioner. 11. Under the U.P. Municipalities Act the appointing authority of the petitioner is the Executive Officer and also the punishing authority. Suspension, it is contended, amounts to a punishment and any one lesser in status than the appointing authority cannot inflict that punishment which amounts to removal. The Nagar Swasthya Adhikari, therefore, could not suspend the petitioner. The argument is not acceptable to me. 12. In the first place, suspension pending an inquiry is not punishment. The learned counsel relied on an authority of the Supreme Court in R.P. Kapur v. Union of India, AIR 1964 SC 787 , where at page 793 he refers to line 19 in the first column wherein the Supreme Court has used these words : "This will be suspension as a penalty", and his contention is that his suspension is a penalty. If, however, we read the paragraph as a whole or even a few lines preceding, we would find that suspension pending an inquiry is not punishment. It is laid down therein that on general principles the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental inquiry or pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental inquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. The last sentence, therefore, has been used with respect to the suspension as a penalty or by way of punishment. Suspension in this case is not by way of punishment but only pending inquiry. 13. This will be suspension as a penalty. The last sentence, therefore, has been used with respect to the suspension as a penalty or by way of punishment. Suspension in this case is not by way of punishment but only pending inquiry. 13. Secondly, the provisions of Article 311 of the Constitution did not apply to the employees of the Municipal Board at the time of the suspension of the petitioner, as would appear from a Full Bench case of our High Court in Mohammad Ahmad Kidwai v. Chairman, Improvement Trust, Lucknow, AIR 1958 All 353 . That case relates to an employee of the Improvement Trust, but what applies to suspension of an employee of an Improvement Trust applies with equal force to suspension of an employee of a Municipal Board. It has been laid down therein that if the duties of an employee relate to activities which fell directly within the sphere of the Union or the State and his services were under the direction and control, as also his appointment was by either the Union or the State, then he could fall under those services which were contemplated by either Section 240 of the Government of India Act or by Article 311 of the Constitution of India, but if the sphere of activity of the employee fell within the sphere of activity of a local authority constituted under some Statute having a separate legal existence, then the position of that employee, even though the State or the Union controlled some of his activity and gave him direction in the discharge of his functions fell outside the scope of either Section 240 of the Government of India Act or Article 311 of the Constitution of India. 14. It cannot, therefore, be said that because the petitioner was appointed by the Executive Officer, he could not be suspended during the pendency of a departmental inquiry by an officer lower in rank than the Executive Officer either on the ground that Article 311 of the Constitution applied to such a case or on the ground that suspension is a punishment. 15. Still the question would arise as to who could suspend the petitioner. No specific rules could be pointed out either on behalf of the petitioner or on behalf of the opposite parties with respect to suspension pending an inquiry. 16. 15. Still the question would arise as to who could suspend the petitioner. No specific rules could be pointed out either on behalf of the petitioner or on behalf of the opposite parties with respect to suspension pending an inquiry. 16. Certain rates have been framed by the State Government known as the Uttar Pradesh Nagar Mahapalika Sewa Niyamavali, 1962 in exercise of the powers under Sections 106, 109, 110, 113 and Sub-Section (1) of Section 540 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, and they are contained in the U.P. Gazette dated the 22nd of December, 1962, Part I-A, p. 371-A onwards. Under Section 28 of those rules a servant of a Mahapalika against whose conduct an inquiry is contemplated or is proceeding, may be placed under suspension pending the conclusion of the inquiry at the discretion of the appointing authority. Under Section 107(5) of the Adhiniyam appointments to posts carrying an initial salary of not more than Rs. 50/- shall be made by the Heads of the Departments concerned and the Head of the Department with respect to the Public Health Department is the Nagar Swasthya Adhikari. Thus it is the Nagar Swasthya Adhikari who under the rules is the appointing authority of the post to which the petitioner is accredited. But these rules obviously do not apply or at least did not apply on the date of his suspension. No aid therefore can be taken from these rules. Under Section 577(e), so long as the post of the petitioner under the Nagar Mahapalika was not determined, he continued to be an employee of the Mahapalika in a temporary capacity, but that did not mean that the rules relating to temporary servants would apply to him. Section 577(e) guarantees his conditions of service being the same as those which were applicable to him when he was an employee of the Municipal Board. As we have seen above, there are no rules of the Municipal Board as to the suspension of an employee of the post which the petitioner held. We have. In the circumstances, to fall back on the general law. 17. As we have seen above, there are no rules of the Municipal Board as to the suspension of an employee of the post which the petitioner held. We have. In the circumstances, to fall back on the general law. 17. The general law is contained in the recent pronouncements of the Supreme Court in AIR 1964 SC 787 (supra) in paragraph 11 as follows :- "The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act, No. X of 1897, which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspensions will depend upon the provisions of the statute or rule in that connection. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspensions will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension or the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit." 18. In this case, therefore, in the absence of any rule, the Executive Officer, now succeeded by the Mukhya Nagar Adhikari, could suspend the petitioner and not the Nagar Swasthya Adhikari. As to the remuneration pending suspension, there being no rules, the petitioner was entitled to full remuneration during the period of suspension. 19. Paragraph 3 of the counter-affidavit dated the 1st of February, 962, filed on behalf of the opposite parties which has gone unrebutted, does show that the petitioner was confirmed to the post with effect from the 1st of August, 1952 by the order of the Medical Officer of Health dated the 7th of August, 1952. But in view of there being no delegation of power to the Medical Officer of Health, as already discussed above, it appears that it was only an order communicated to the petitioner as to his confirmation by the Medical Officer of Health. The original order being not before the Court, it is not possible to hold that the confirmation was, in fact, made by the Medical Officer of Health. The only authority, therefore, who could suspend him was the Executive Officer, now the Mukhya Nagar Adhikari. 20. The writ petition, therefore, has to be allowed. The original order being not before the Court, it is not possible to hold that the confirmation was, in fact, made by the Medical Officer of Health. The only authority, therefore, who could suspend him was the Executive Officer, now the Mukhya Nagar Adhikari. 20. The writ petition, therefore, has to be allowed. There is, however, no occasion to grant any other relief as the quashing of the order would automatically result in the petitioner being considered as having been on duty all the time. 21. The petition is accordingly allowed to the extent that the suspension order dated the 7th of October, 1964 is quashed. 22. Opposite parties shall bear the costs of the petitioner. Petition allowed.