DAHYALAL BAPALAL RAVAL v. PATAN MUNICIPALITY — 1966 DIGILAW 95 (GUJ)

A. S. SARELA, N. M. MIABHOY, J. ( 1 ) ALL these five Second Appeals raise some common questions of law and have been argued together and will therefore be disposed of by a common judgment. In the course of the judgment we shall deal with the facts of each appeal separately. In all the appeals the respondent is the Municipality of Patan (hereinafter referred to as the Municipality ). The Municipality was the defendant in the five suits from which these five appeals arise. The plaintiffs in those five suits (who are the appellants in the five appeals) were the former employees of the Municipality whose services were terminated by the Municipality by resolutions of different dates to which we shall refer in due course. In each of those suits the plaintiff claimed a declaration that the resolution of the Municipality terminating his services was illegal void and of no effect and that it did not effect the continuance of his service and his service benefits and prayed for a perpetual injunction against the Municipality restraining it from enforcing the said resolution. In all the suits except the one from which appeal No. 662 arises the orders passed by the Municipality terminating services of the employees concerned were of dismissal. In the suit from which appeal No. 662/60 arises the order was one of discharge. The orders of dismissal were under rule 97 of the rules in force in respect of the Municipality in relation to the conditions of services of its employees and the controversy in the trial court centered on the questions whether the conditions of that rule had been complied with before the order of dismissal was made and if not whether that rule was mandatory or directory and whether the plaintiff was entitled to a declaration and injunction as sought or his remedy was for damages for wrongful dismissal a claim which was not made. The lower appellate Court heed on facts in each case that the conditions of rule 97 had not been satisfied before the resolution of dismissal was passed in the four suits in which the orders were of dismissal; but that the rule was directory and the only remedy available to the plaintiff was a suit for damages. The declaration for continuance in service and injunction were therefore refused. The declaration for continuance in service and injunction were therefore refused. Against that decision the plaintiffs in all the suits have come in appeal. ( 2 ) IN order to appreciate the submissions of counsel to which we shall refer presently it would be convenient at the outset to set out in brief the relevant legislative history relating to the an applicable to this Municipality. Patan was a part of the former Baroda State. In that State two Municipal Acts were in force. The Baroda A class Municipalities Act and the Baroda B class Municipalities Act. It is undisputed that the Patan Municipality was governed by the Baroda A class Municipalities Act which was Act No. 1 of Samvat Year 1962 and which appears to have come into force on 21st December 1905 The said Baroda A Class Municipalities Act substantially contains the same provisions as are contained in the Bombay District Municipal Act 1901 to which reference will be made later. Sec. 46 of the said Baroda Act (which corresponds with sec. 46 of the corresponding Bombay Act) empowered the Municipality to make rules inter alia for determining the executive functions to be performed by the President and Vice-President etc. ; the delegation of any of the powers or duties and for determining the staff of officers and servants to be employed by the Municipality and their respective designations duties salaries etc. ; the powers and duties delegated to them; the mode of punishing an officer or servant and delegation of powers to officers to fine reduce suspend and remove another officer or servant. In accordance with these powers the Municipality had made rules. We are concerned with the rules framed with reference to the above subjects which fall under clauses (kha) (ga) (gna) and (cha) of sub-sec. (1) of sec. 46. These rules which for the sake of convenience may be referred to hereinafter as the rules fall into nine Chapters with a Schedule attached. Of these rules we are particularly concerned with the rules contained in Chapter VIII wherein the important rules 95 and 97 are contained. We shall come to the contents of the relevant rules presently but to continue the narration of legislative history it appears that the Baroda A Class Municipalities Act I of Samvat Year 1961 was repealed and re-enacted as Baroda A Class Municipalities Act 19 of 1949. We shall come to the contents of the relevant rules presently but to continue the narration of legislative history it appears that the Baroda A Class Municipalities Act I of Samvat Year 1961 was repealed and re-enacted as Baroda A Class Municipalities Act 19 of 1949. The Patan Municipality Rules it is conceded continued in force under the new Act. The Ruler of Baroda ceded to the Government of India on 1st May 1949 full and exclusive authority jurisdiction and powers for and in relation to the Government of Baroda State. Thereafter an order was made under sec. 4 of the Extra Provincial Jurisdiction Act 1947 called the Baroda State Application of Laws Order 1949 This order came into force on 30th July 1949. Under clause (1) of para 3 of that Order read with the First Schedule the Bombay District Municipal Act 1901 and the Bombay Municipal Boroughs Act 1925 as in force in the Province of Bombay immediately before coming into force of that Order were extended to and were to be in force in the Baroda State subject to any amendments to which the said enactments were for the time being generally subject in the Province of Bombay. Therefore by this order the said Bombay Acts were extended to and came into force in the Baroda State. Under clause (1) (c) of para 5 of that Order the enactments in force in the Baroda State corresponding to the enactments in force in the Province of Bombay and extended to the Baroda State under para 3 were repealed. The enactments corresponding to the Bombay District Municipal Act 1901 and the Bombay Municipal Boroughs Act 1925 were the Baroda A Class Municipalities Act and the Baroda B Class Municipalities Act. (See Kadi Municipality v. New Chhotalal Mills Co. I. L. R. 6 Guj. 145 ). These Acts therefore were repealed. Para 6 of the Order provided for continuance of the officers and authority constituted under the repealed Acts. Thus as from 30th July 1949 the District Municipal Act 1901 took the place of the Baroda A class Municipalities Act with respect to the Patan Municipality. I. L. R. 6 Guj. 145 ). These Acts therefore were repealed. Para 6 of the Order provided for continuance of the officers and authority constituted under the repealed Acts. Thus as from 30th July 1949 the District Municipal Act 1901 took the place of the Baroda A class Municipalities Act with respect to the Patan Municipality. Thereafter when the territory which formed part of the former Baroda State was merged into the then Province of Bombay and became part of that Province the Bombay Merged States (Laws) Ordinance 1949 was enacted which was later replaced by the Bombay Merged States (Laws) Act 1950 (Bombay IV of 1950 This Act contained provisions similar to the provisions contained in the Baroda State Application of Laws Order 1949 in respect of extension of laws. The Bombay District Municipal Act 1901 was one of the Acts extended to the Baroda territories and in its application to those territories certain amendments were made in the Act of which only one is material for the purpose of this case. That was the insertion of sec. 180a. Under that section all rules made issued or sanctioned by or in respect of any of the Municipalities whether constituted under the A Class Municipalities Act (Baroda No. XII of 1949) or the B Class Municipalities Act (Baroda No. XIV of 1949) of the former Baroda State as were in force immediately before the 30th day of July 1949 under the said Baroda Acts shall in so far as they are consistent with the provisions of the Bombay District Municipal Act 1901 be deemed to have been made issued or sanctioned by or in respect of the said Municipalities under the appropriate provisions of the said Bombay Act on the said date and continue in force until altered repealed or amended by a competent authority. Thus the rules which we have earlier referred to have continued in force in respect of Patan Municipality as made under the District Municipal Act 1901 notwithstanding the repeal of the Baroda A Class Municipalities Act. This position is conceded. ( 3 ) THE relevant rules as we have stated are in Chapter VIII of the Rules. Thus the rules which we have earlier referred to have continued in force in respect of Patan Municipality as made under the District Municipal Act 1901 notwithstanding the repeal of the Baroda A Class Municipalities Act. This position is conceded. ( 3 ) THE relevant rules as we have stated are in Chapter VIII of the Rules. Rule 93 in that Chapter lays down the powers of different authorities to make appointment of Municipal Officers and servants The power to appoint the Chief Officer lies with the General Body subject to the sanction of the Government. The power to appoint the Secretary the Overseer and other officers and servants drawing a pay above Rs. 40 is with the General Body. The power to appoint servants drawing pay of Rs. 20 and above but not exceeding Rs. 40 is with the President and in his absence with the Vice-President. In respect of the servants drawing a pay under Rs. 20 the power is with the Chief Officer and in his absence with the Chairman of the concerned committee. We are not concerned with rule 94. Then rule 95 lays down different class of punishments which can be inflicted and by whom. It is in Gujarati as are all the rules. Translated it reads as under:95 Power to Punish:-The officer or servant who has power to appoint an officer or servant has. on the principles embodied in the relevant rules relating to Government servants the power (A) to impose fine (B) to reduce from post (C) to suspend. (D) to discharge from service (E) to dismiss. In accordance with the said rules it is to be understood that unless otherwise directed in this rule (F) the powers of Vahivatdar are vested in (1) the Chief Officer and (2) the President of the respective sub-committee and (G) the Deputy Collector in the Vice-President (H) the Collector in the President and (1) Sur Suba (i. e. Commissioner) and (2) the (Officers) other than him in the General Body. They should use the said powers in accordance with the respective rules. No resolution contrary to the principles laid down under the rule shall come into force without the sanction of the Government. . They should use the said powers in accordance with the respective rules. No resolution contrary to the principles laid down under the rule shall come into force without the sanction of the Government. . Rule 96 concerns the power of suspension and rule 97 which has been the subject of considerable argument before us reads as under :97 Delinquent be given opportunity to defend and then resolution be made in writing: (1) (a) No officer or (b) servant should be dismissed without giving him reasonable opportunity of declaring what he has to say in his defence. (2) The order of (a) every dismissal or (b) confirmation should be in writing and therein the charge for the offence for which the delinquent is dismissed and the facts of the case put forward (by him) in defence and the grounds of the order should be clearly stated. Rule 95 therefore regulates the power of punishment and rule 97 provided the procedure to be followed when the punishment is by way of dismissal. ( 4 ) THE submissions made by counsel may now be set out. On behalf of the appellants Mr. Vakil substantially argued the case and those arguments were adopted by Mr. Parghi and Mr. Abhichandani. On behalf of the respondent the case was presented by Mr. Bhatt Mr. Vakil argued that rule 97 when properly construed requires that the servant concerned against whom action of dismissal is proposed to be taken should be informed of the specific charges against him called upon to tender an explanation of these charges permitted to cross-examine witnesses and be heard and should also be told what the proposed punishment is so as to enable him to make a representation against that punishment and unless these requirements are fully satisfied sub-rule (1) of rule 97 cannot be said to have been complied with. In short his submission is that rule 97 contemplated an enquiry of the nature intended by rule 55 of the Civil Services (Classification and Control and Appeal) Rules a view which the lower appellate Court has taken in some of the cases. In short his submission is that rule 97 contemplated an enquiry of the nature intended by rule 55 of the Civil Services (Classification and Control and Appeal) Rules a view which the lower appellate Court has taken in some of the cases. Then again under sub rule (2) of rule 97 the order of dismissal has to be in writing has to set out the offence for which the servant was being dismissed the facts relating thereto and the defence of the said servant and has also to set out the grounds of the order clearly. In the cases under consideration according to him these requirements of sub-rules (1) and (2) have not been satisfied and both the sub-rules have been violated. The next stage of his argument is that the non-observance of these requirements of the rule renders the order void and ineffective firstly because that is what rule 95 lays down and secondly at any rate because rule 97 is mandatory and therefore non-compliance with its provisions must necessarily make the order purported to have been passed under it null and void. He argues that the ruling of the Bombay High Court in The Broach Municipality v. Bhadriklal (53 Bom. L. R. 282) which held that rule 182 of the Broach Municipality which was similarly worded as rule 97 in the present case was directory and on which the lower appellate Court has relied proceeds on wrong premises. The High Court has proceeded on the premise that the Municipal service is held at pleasure and the further premise that the rules framed under the District Municipal Act 1901 were administrative in nature. According to him these two propositions are not well-founded. If rule 97 is examined in that light and its language and object are considered the only reasonable conclusion he argues is that it is mandatory and if that is so the necessary results of its non-compliance is that the order of dismissal is null and void. According to him these two propositions are not well-founded. If rule 97 is examined in that light and its language and object are considered the only reasonable conclusion he argues is that it is mandatory and if that is so the necessary results of its non-compliance is that the order of dismissal is null and void. The further stage of his argument is that if the order is null and void the only result of it is that there was no termination of service and the appellant must therefore be deemed to have continued in service as if no order was passed and the Court must of necessity give him not only the declaration that the order was void and ineffective but also the further declaration that he continues in service and an injunction restraining the Municipality from denying him the benefit of continuous service. He submits that the lower Court was in error in holding that the only relief available to the appellant was for damages for wrongful dismissal and in throwing out the suit on that ground. In addition to these legal submissions one more submission was made by Mr. Vakil in appeal No. 307 of 1960 and that was that the order of dismissal in that case having been passed with retrospective effect was even otherwise ineffective except from the date on which it is passed. ( 5 ) MR. Bhatt on the other hand submitted on behalf of the respondent that the reading of rule 97 as if it lays down the same requirements as are laid down by rule 55 of the Civil Services (Classification Control and Appeal) Rules was not warranted by the terms of rule 97. All that that rule required was that the servant concerned should be given an opportunity to give his say and that the said opportunity should be reasonable. There is no requirement of framing of charges or recording of evidence in the presence of the servant or of the servant being given an opportunity of personal hearing nor is there any requirement that the servant should be specifically told that he is proposed to be dismissed. He argues that the requirements of rule 97 have been satisfied in all the four cases where there are orders of dismissal. He argues that the requirements of rule 97 have been satisfied in all the four cases where there are orders of dismissal. But even if in any particular case they have not been satisfied to the letter the order does not for that reason become void because rule 97 according to him is directory. He argues that rule 95 does not control rule 97 but is a self contained rule dealing with a separate subject namely what are the authorities who are entitled to impose punishment and what rules are applicable in respect of powers of proposed punishment. That rule according to him has nothing to do with the procedure to be followed in respect of the inquiry to be held by the competent authority before the punishment is inflicted. For that rule 97 he submits is self contained. He next argued that even if it is held that sub-rule (1) of rule 97 which is the material part of that rule is mandatory even then having regard to the nature of the service in this case the plaintiff is not entitled to any such declaration and injunction as prayed for but his only remedy is by way of a suit for damages for wrongful dismissal. His argument is that the plaintiff has no right to the post and no fixity of tenure and no declaration or injunction could be given as prayed for which is not founded on any such right and in any case the declaration being a discretionary relief on the facts of this case the discretion should not be exercised in plaintiffs favour. These are the only submissions requiring to be considered. ( 6 ) THE principal questions which we have therefore to consider are: (1) What are the requirements of rule 97 as regards the mode or manner of enquiry (2) Whether rule 95 provides for the consequences of the breach of rule 97 (3) If not whether rule 97 is mandatory or directory (4) Whether the non-compliance with the provisions of that rule an aggrieved servant to a relief for declaration that he continued in service and for a perpetual injunction against the Municipality not to deny him the benefits of the service and (5) Whether on the facts of each case there has been noncompliance with the provisions of rule 97. ( 7 ) RULE 97 has been earlier set out. ( 7 ) RULE 97 has been earlier set out. The material portion of rule 55 of the Civil Services (Classification Control and Appeal) Rules on which the lower appellate Court has relied and the requirements of which are sought to be imported by Mr. Vakil into rule 97 reads as under:55 Without prejudice to the provisions of the Public Servants Inquiries Act 1850 no order of dismissal removal or reduction shall be passed on a member of the service (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs an oral inquiry shall be made. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called as he may wish provided that the officer conducting the inquiry may for special and sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. . The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. . It will be noticed that the said rule 55 in terms requires that before any order of dismissal removal or reduction is passed on the Government servant concerned he shall be communicated in writing the grounds of the proposed action in the form of definite charges together with the statement of allegations on which the charges are based required to put in his written-statement of defence within reasonable time entitled to have an oral inquiry held in his presence and to cross-examine witnesses as also to have his own witnesses examined. In these detailed provisions there are three essentials the furnishing of a detailed charge-sheet the Sling of a written statement in defence and oral hearing with a right to cross-examine. In sub-rule (1) of rule 97 which is the material part of that rule there is no mention of the first and third of these requirements; only the second requirement it will be noticed is in substance embodied. ( 8 ) MR. Vails argument is that in holding an inquiry under rule 97 the tribunal must follow the procedure very similar to the procedure laid down in the aforesaid rule 55 that is it must give a charge-sheet with a statement of allegations it must examine witnesses in presence of the person charged and they should be allowed to be cross-examined the person charged should be permitted to lead oral evidence and should be orally heard and he should be clearly told what the proposed punishment is. According to Mr. Vakil these obligations are implicit in the wording of rule 97 itself and if they are not then they are implicit in the rules of natural justice which every tribunal acting quasi-judicially must follow. He argues that in so far as rule 97 does not provide for the various stages of inquiry the tribunal is under an obligation to hold an inquiry in that manner because of rules of natural justice. Now Mr. Vakil is right when he says that the authority acting under sub-rule (1) of rule 97 acts quasi-judicially. He is also right when he says the authority so acting must observe rules of natural justice. Now Mr. Vakil is right when he says that the authority acting under sub-rule (1) of rule 97 acts quasi-judicially. He is also right when he says the authority so acting must observe rules of natural justice. But he is not right in saying that unless the inquiry is held in the manner submitted by him the rules of natural justice would be violated. There are no absolute rules of natural justice. Their scope and content must vary according to the nature and constitution of the statutory body acting as a tribunal. We shall examine later the relationship between a municipal employee and his employer the Municipality and shall have occasion to point out that the employee has no statutory right to a post in the Municipality and the relationship between the two except to the extent provided for in the statutory rules is contractual. When considering the contents of the principles of natural justice to be observed by a tribunal constituted to determine the question of relationship between the two this aspect cannot be overlooked. When therefore rule 97 does not provide for a charge-sheet or for a personal hearing it does not follow that it has failed to provide for an inquiry according to the rules of natural justice and that these requirements must be imported into it. When the statutory rule as rule 97 is embodies the procedure to be followed by the tribunal acting under it then unless that rule is challenged and can be held ultra vires that rule must govern the procedure to be followed in the matter covered by it and the argument that the body acting under it must follow some general rules of natural justice cannot prevail. Nor is there any authority for the proposition that there are any prescribed rules of natural justice governing all cases. ( 9 ) IN N. P. T. Co. Ltd. v. N. S T. Co. Ltd. (A. I. R. 1957 S. C. 232) the question raised before the Supreme Court concerned the scope and nature of hearing before the Authority deciding under sec. 64 of the Motor Vehicles Act 1939 an appeal from the decision of the Regional Transport Authority. The Supreme Court pointed out that the tribunal was not a court of justice but a statutory body functioning in a quasi-judicial way. 64 of the Motor Vehicles Act 1939 an appeal from the decision of the Regional Transport Authority. The Supreme Court pointed out that the tribunal was not a court of justice but a statutory body functioning in a quasi-judicial way. A tribunal acting quasi-judicially must no doubt act honestly and impartially and in the absence of provisions as to how he must proceed the law will imply no more than that substantial requirements of justice shall not be violated. these requirements do not postulate the method of a court of justice. He is not a judge in the proper sense but he must give the parties an opportunity of being heard before him and stating their case. When however the statute under which the tribunal is constituted makes provisions whether in the statute or under the rules made thereunder as to the manner of hearing those provisions are the only provisions that need be followed. Indeed the tribunal is bound to follow those requirements. In this connection the Supreme Court referred to the case of Rex v. Local Government Board Ex-parte Arlidge as it was decided first by the High Court (1913-1 K B 463 then by the Court of Appeal (1914-1 KB 161) and finally by the House of Lords (1915 A. C. 120) The question was whether the Local Board while considering the report of the public local inquiry under the provisions of the statute was also bound to hear appellant before dismissing his appeal. The trial out repelled the argument that the appellant had a right to be heard and to know the contents of the public inquiry report. The ground given was that the procedure indicated by the rules framed under the statute had been followed and there was no further obligation on the Board to hear the appellant because there was no indication in the statute to that effect. The Court of Appeal by a majority took a contrary view stating that the Act and the rules except for certain matters were silent as to the procedure and that in the absence of such specific provisions the non-disclosure of the inspection report was contrary to the principles of natural justice on which English law was based. It further held that the appellant before the Board was entitled to a hearing. It further held that the appellant before the Board was entitled to a hearing. Hamilton L. J. in a dissenting judgment pointed out that it cannot be assumed that the report of the public inquiry was required by the legislature to be communicated to those interested when it does not say so. The House of Lords unanimously adopted the opinion of Hamilton L. J. The Supreme Court summaries the position in law as under:-THE question whether the rules of natural justice have been observer in a particular case must itself be judged in the light of the constitution of the statutory body which has so function in accordance with the rules laid down by the Legislature and in that sense the rules themselves must vary. At another place they say:the rules of natural justice have to be offered from the nature of the tribunal the scope of the inquiry and the statutory rules of procedure laid down by law for carrying out the objects of the statute. Therefore an authority acting quasi-judicially must act in good faith and listen fairly to the parties before it but as to the mode or manner of the inquiry to be made for that purpose if there is statutory provision in that regard the authority is obliged to conform to it and no more but if there is no such provision the authority must give a reasonable opportunity to the party concerned to place its case before the authority. What is reasonable opportunity must depend upon the facts of the case and in particular upon the nature of the tribunal and the scope of the inquiry. The procedure of every tribunal cannot be the same. Mr. Vakil invited our attention to the decision in D. L. Board Calcutta v. Jaffer Imam (A. I. R. 1966 S. C. 282 ). In that case a dock worker who was detained under the Preventive Detention Act was on his release departmentally proceeded against by the statutory authority constituted under the Dock Workers (Regulation of Employment) Act 1945 on the ground that he had been detained. The worker was without further inquiry or hearing removed from the Reserve Pool Register. In that case a dock worker who was detained under the Preventive Detention Act was on his release departmentally proceeded against by the statutory authority constituted under the Dock Workers (Regulation of Employment) Act 1945 on the ground that he had been detained. The worker was without further inquiry or hearing removed from the Reserve Pool Register. Now clause 36 (3) of the Scheme framed under that Act required that before any action is taken against a worker so registered the person concerned shall be given a reasonable opportunity of showing why the proposed action should not be taken against him. The Supreme Court held that the requirements of that regulation had not been observed and quashed the order. Mr. Vakil relies on the following observations:-AT this enquiry reasonable opportunity should have been given to the respondents to show cause and before reaching its conclusion the appellant was bound to lead evidence against the respondents give them a reasonable chance to test the said defence and then come to a decision of its own. Such an enquiry is prescribed by the requirements of natural justice and an obligation to hold such an enquiry is also imposed on the appellant by clause 36 (3) of the Scheme of 1951 and clause 45 (6) of the Scheme of 1956. Mr. Vakil argues the above requirements are therefore the necessary requirements of natural justice. We do not read the decision to lay down any such broad proposition. The Court was considering the scope of the expression opportunity to show cause why the proposed action should not be taken against him. The Court has at an earlier place while referring to a right of a citizen to a fair and proper trial according to law before his liberty is lost stated that a legal or proper trial according to law inevitable means inter alia a trial held in accordance with the statutory provisions or in their absence consistently with principles of natural justice. Therefore the observations on which Mr. Vakil relies are related to the facts of that case and the provisions governing the inquiry. Mr. Vakil also invited our attention to the observations of the Kerala High Court in M. Appukutty v. Sales Tax Officer (A. I. R. 1966 Kerala 55 ). Therefore the observations on which Mr. Vakil relies are related to the facts of that case and the provisions governing the inquiry. Mr. Vakil also invited our attention to the observations of the Kerala High Court in M. Appukutty v. Sales Tax Officer (A. I. R. 1966 Kerala 55 ). There the question was whether an assessment made by a Sales Tax Officer was liable to be set aside on the ground that he had not observed principles of natural justice. The Sales Tax officer had given notice to show cause and given the assessee as chance to explain but it was contended that thereafter in deciding the matter the Sales Tax Officer had proceeded capriciously. The Court said that principles of natural justice demand that there should be a fair determination of the question by quasi-judicial authorities and this can be achieved by deciding the question in a quasi-judicial manner which means not merely making known the proposal and giving a chance to explain but also a judicial consideration of the representation and the materials. These observations which are relied on by Mr. Vakil relate to a fair and impartial consideration by a quasi-judicial authority of the matter required to be decided by pt. They deal with a different aspect of the question. ( 10 ) THEREFORE in examining the case under these appeals all that we have to consider in so far as sub-rule (1) of rule 97 is concerned is whether these servants had the opportunity of declaring what they had to say in defence and whether that opportunity was reasonable. The opportunity may not be reasonable if the person concerned is not informed of the charge of default in respect of which the enquiry is to be held and of the substance of the material which went to substantiate that charge or default but it is not necessary that he should be given a charge-sheet accompanied by a statement of allegations. Similarly the opportunity may not be reasonable if sufficient time was not given to the servant concerned for declaring what he had to say in his defence but it does sot cease to be reasonable because no personal hearing is given or is required to be given. A reasonable opportunity to show cause confers a right to state a case. Similarly the opportunity may not be reasonable if sufficient time was not given to the servant concerned for declaring what he had to say in his defence but it does sot cease to be reasonable because no personal hearing is given or is required to be given. A reasonable opportunity to show cause confers a right to state a case. Unless there is a statutory obligation otherwise this right does not necessarily include a right or opportunity to be heard orally. Therefore Mr. Vakils submission that in an inquiry under rule 97 the domestic tribunal must substantially follow the procedure of a charge-sheet recording of evidence in presence of the delinquent and a personal hearing cannot be accepted. What the tribunal is required to do under rule 97 is to give a reasonable opportunity to the servant concerned of declaring what he has to say in his defence. The concept of that reasonable opportunity and some of the circumstances which would amount to denial of such opportunity have been earlier indicated. There may be other circumstances peculiar to each case. In each case whether the opportunity given to the servant to declare what he has to say has or has not been reasonable is a question of fact. There is no standard of what is reasonable in a given case. Each case will therefore have to be examined in the light of its facts. But before we do so in respect of these cases it would be convenient to dispose of the other points of law raised by Mr. Vakil. ( 11 ) THE next question raised is as to the legal effect of the non-compliance with the provisions of rule 97. Mr. Vakils first argument is that the effect of the non-compliance is provided for in rule 95 and that effect is that the resolution would not come into force without the sanction of the Government. If this argument is accepted the question whether rule 9 is mandatory or directory would not arise for consideration. It is therefore necessary to turn to rule 95. The first part of that rule sets out the broad proposition that the appointing authority has the power to punish. This power is to be exercised on the principles embodied in the relevant rules relating to Government servants. In short the first part relates to conferment of power. It is therefore necessary to turn to rule 95. The first part of that rule sets out the broad proposition that the appointing authority has the power to punish. This power is to be exercised on the principles embodied in the relevant rules relating to Government servants. In short the first part relates to conferment of power. As the first part makes reference to the relevant rules relating to Government servants the second part indicates the Municipal Authority which would correspond to competent Government authorities such a the Deputy Collector Commissioner and others. The second part therefore relates to equation of authority consequent on the standard laid down in the first part. The third para which says they should use the said powers in accordance with the respective rules relates to the exercise of the power by the competent authorities set out in the second part. The power is to be exercised in accordance with the respective rules that is to say if there are limitations set out in the Government servants rules or the Municipal rules on the authorities specified those limitations must be adhered to. There may be for example limitation on the quantum of fine or other punishment or the nature of punishment which a particular authority may inflict. There may be limitations in respect of classes of servants on whom punishment can be inflicted by a particular authority. Those limitations would prevail. The last part which says that no resolution contrary to the principles laid down under the rule shall come into force without the sanction of the Government provides for validating by Government of action which has been contrary to the principles laid down under the rule. There is no difficulty about the first three parts. It is in respect of the provision in the last part that Mr. Vakil has addressed us at length. He argued that this part clearly lays down that the resolution which is contrary to the principles embodied under the rules will not be effective without the sanction of the Government and therefore a resolution of dismissal which is contrary to rule 97 (1) will not be effective in the absence of validation by Government. He wants to read the wordsas meaning contrary to the principles laid down under the rules that is to say he wants to read the wordas equivalent to rules. Mr. He wants to read the wordsas meaning contrary to the principles laid down under the rules that is to say he wants to read the wordas equivalent to rules. Mr. Bhatts reply is that thehere is rule 95 and not all the rules. Mr. Bhatts construction in our view is more consistent with the language and object of the provision and is also consistent with the context. In rule 95 the word has been used at several places. In the first part of the rule the relevant words arein the second partandand in the third part . So far as the last part is concerned the only word used is . In the absence of any indication as in the other parts we have to consider the expression in the light of context. What the provision deals with is the situation where a resolution is contrary to the principles laid down by the relevant rules. The provision does not cover the general situation where there solution is contrary to any rule. Now rule 97 does not deal with principles. It deals with procedure. The rule which deals with principles in respect of the subject is rule 95 itself; the principles being firstly the principle that the appointing authority is the punishing authority secondly the principle of equation and thirdly the limitations relating to the exercise of power of punishment. If there is any resolution contrary to these principles if for example the punishment is inflicted by an authority which is not the appointing authority or the punishment is inflicted by an authority which though the appointing authority inflicts a punishment in excess of the limitations laid down in the respective rules or the punishment is inflicted by an authority which does not correspond to the authority in accordance with the equation laid down in the rule such an order would be contrary to the principles and obviously it could be only the Government as the supreme authority which could validate the action under such on order because so far as the Government is concerned the legislation does not intend to place any limitation on its authority or its competency in respect of these three different aspects of the exercise of power. This construction gets support from rules 17 and 18. Rule 17 provides for sanction of leave and rule 18 for promotion. This construction gets support from rules 17 and 18. Rule 17 provides for sanction of leave and rule 18 for promotion. They lay down the principles relating to leave and promotion the authorities entitled to sanction the same and they provide for equation of authorities on the same basis as is provided in rule 95. The concluding part of each of these rules is in words identical with the concluding part of rule 95. If the expressionin rule 95 was meant to cover all the rules an identical provision in rules 17 and 18 would not be necessary. Therefore on the language and content of the last part of rule 95 and in the light of the context the reasonable construction is that the tharav which it refers to is a tharav which is contrary to the principles embodied in rule 95 itself. Mr. Vakils submission therefore that by reason of that provision in the last part of rule 95 any action contrary to sub-rule (1) of rule 97 is rendered ineffective cannot be accepted. ( 12 ) IT is then necessary to consider whether rule 97 is mandatory or directory for that would go to determine the consequences of its non-compliance. One aspect of the matter may at the outset be cleared. In the lower appellate Court it was urged that the rule was administrative. That argument was accepted by the Court and that was one reason why it was held to be directory. The argument was that as the rules can be changed from time to time by the rule making authority these rules have no greater force than executive directions and their non-compliance must be treated in that light. That is not the correct position in law. If the rules have been made by the competent authority in exercise of the power conferred by an Act and are consistent with the provisions of the Act under which they are made they have in law the same force as the provisions of the Act itself. That is not the correct position in law. If the rules have been made by the competent authority in exercise of the power conferred by an Act and are consistent with the provisions of the Act under which they are made they have in law the same force as the provisions of the Act itself. In State of U. P. v. Babu Ram (A. I R. 1961 S. C. 751) the Supreme Court held that the rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. That being so such statutory rules have the same force as law. Now the question whether a particular statutory rule is mandatory or directory has importance with reference to the consequences of its non-compliance. If the consequences of non-compliance of the rule under consideration is legislatively provided for there is no difficulty. If they are not so provided for they turn on the question whether the rule was mandatory or obligatory and this has to be determined as in the case of any legislative provision by discovering the legislative intent. In Banvarilal v. State of Bihar (A. I. R. 1961 S. C. 849) it is stated:-AS has been recognised again and again by the courts no general rule can be laid down for deciding whether any particular provision in a statute is mandatory meaning thereby that non-observance thereof involves the consequence of invalidity or only directory i. e. a direction the non-observance of which does not entail the consequence of invalidity whatever other consequences may occur. But in each case the court has to decide the legislative intent. These observations which relate to the construction of the provisions of a statute namely secs. 12 and 59 of the Mines Act 1952 would apply equally to the construction of the provisions of statutory rules which have the same force as the provisions of the statute under which they are made. The Supreme Court then proceeds to indicate how the legislative intent is to be ascertained. 12 and 59 of the Mines Act 1952 would apply equally to the construction of the provisions of statutory rules which have the same force as the provisions of the statute under which they are made. The Supreme Court then proceeds to indicate how the legislative intent is to be ascertained. Their lordships say:did the legislature intend in making the statutory provisions that non-observance of this would entail invalidity or did it not To decide this we have to consider not only the actual words used but the scheme of the statute the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same. Therefore the legislative intent is to be gathered by an examination of all the relevant circumstances namely the language used the scheme of the legislation the benefit intended by the observance of the rules and the risks arising from non-compliance with its provisions. One other circumstance which is relevant in discovering the legislative intent is whether the provision under consideration relates to performance of duty or whether it relates to the exercise of privilege or power. A strict compliance with the conditions of the exercise of privilege or power may be reasonably assumed to be intended but not so with the manner of performance of a duty particularly when public inconvenience would result in enforcing strict compliance. As stated by Maxwell in his Interpretation of Statutes 11 Edition at page 364:a strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers rights or immunities are granted with a direction that certain regulations formalities or conditions shall be complied with it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the legislature. Where powers rights or immunities are granted with a direction that certain regulations formalities or conditions shall be complied with it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute required that it shall be performed in a certain manner or within a certain time or under other specified conditions such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative. We may examine rule 97 in the light of these considerations. ( 13 ) NOW rule 97 consists of two sub-rules. The language and purport of each of which being different it will the convenient to consider each sub-rule separately. Sub-rule (1) is worked in prohibitory language. It prohibits the dismissal without giving the officer or servant concerned a reasonable opportunity of declaring what he has to say in his defence. As observed by the Privy Council in the case of High Commissioner for India and Pakistan v. Lall (50 Bom. L. R. 649) if the language of a provision is prohibitory in form it is indicative of its being mandatory in character. The content of sub-rule (1) supports this construction. The sub-rule relates to the severest punishment namely dismissal. Any action of dismissal may have apart from the termination of service other serious consequences on the servant against whom that action is taken. He is likely to lose the benefits of service which may have accrued to him such as benefit of leave or gratuity or pension if any. There would be a stigma attached to him. This is another consideration bearing on the question of intention. The object of the rule is to afford protection to the Municipal servant against whom action of dismissal is to be taken and non-observance of the rule would defeat that object. Lastly the rule relates to the exercise of power namely the power of termination of service by dismissal. This power can be exercised by an authority subordinate to the Municipality namely the President Vice-President Chief Officer the Chairman of the concerned Committee. Lastly the rule relates to the exercise of power namely the power of termination of service by dismissal. This power can be exercised by an authority subordinate to the Municipality namely the President Vice-President Chief Officer the Chairman of the concerned Committee. It could not be the legislative intent to permit subordinate authorities to exercise such an important power without following the procedure laid down. Therefore on an examination of sub-rule (1) as a whole in the light of the tests laid down by authorities that sub-rule must be held to be mandatory. The same cannot be said of sub-rule (2) of rule 97. That sub-rule requires every order of dismissal or confirmation to be made in a particular manner namely that it should be in writing and it should contain the substance of the charge the defence and the grounds of order. Such a provision would on the above tests be obviously directory. The language of sub-rule (2) is in affirmative and not in prohibitory form. The sub-rule deals merely with the form of the order of dismissal or confirmation. The object of the sub-rule appears to be to see that proper record is kept and for that purpose a duty is imposed on the authority recording the order passed as to the manner in which it shall be recorded. It is not in the circumstances possible to impute to this provision a legislative intent that its non-compliance shall invalidate the order purported to be recorded under it. ( 14 ) MR. Bhatt contends that even sub-rule (1) of rule 97 must also be held to be directory as the point is covered by a binding authority. The rule in question he submits must be deemed to have been made under the District Municipal Act 1901 in view of sec. 180a of that Act to which we have earlier referred. That part of his submission is correct because the rule is consistent with the provisions of the Act. He then proceeds to argue that an identical rule framed under that Act has been held to be directory by the Bombay High Court in Broach Municipality v. Bhadriklal Ambalal (53 Bom. L. R. 282 ). That part of his submission is correct because the rule is consistent with the provisions of the Act. He then proceeds to argue that an identical rule framed under that Act has been held to be directory by the Bombay High Court in Broach Municipality v. Bhadriklal Ambalal (53 Bom. L. R. 282 ). It has been held by a Full Bench decision of this court in State of Gujarat v. Gordhandas Keshavji (III G. L. R. 269) that the decisions of the Bombay High Court given prior to 1st May 1960 have the same binding force and effect as if they were decisions of the Gujarat High Court and therefore the decision in Broach Municipality case should Mr. Bhatt says be followed in respect of rule 97 and the effect of non-complies with its provisions. Mr. Vakils submission is that the said Bombay ruling proceeds on certain premises which are got well founded. He submits that the full Bench decision of this Court in State of Gujarat v. Gordhandas does not require this Court to follow the Bombay rulings as a matter of course but requires this court to apply its mind and consider whether it can come to the same conclusion. It must make its best efforts to do so but if it cannot come to the same conclusion it is open to this court to reach its own conclusion. ( 15 ) IN view of these submissions it is necessary first to examine the facts in the Broach Municipality case and the reasons underlying the decision in that case. The plaintiff in that suit was the Chief Officer of the Broach Municipality. He joined the service of the Broach Municipality in 1935 and was confirmed in 1936. There was considerable agitation against him in 1942 on account of his alleged interference in the Municipal elections. On 16th December 1942 at a special general meeting of the Municipality a resolution was passed terminating his services. No written notice was given to him and no explanation was called for. There was considerable agitation against him in 1942 on account of his alleged interference in the Municipal elections. On 16th December 1942 at a special general meeting of the Municipality a resolution was passed terminating his services. No written notice was given to him and no explanation was called for. The plaintiff then filed this suit for a declaration that the resolution was illegal and ultra vires and was also null and void and against ordinary principles of natural justice for a declaration that he continued in service as the Chief Officer of the Municipality and for arrears of salary from December 17 1942 upto the date of the suit and further salary in the alternative for reinstatement and in the alternative for damages for wrongful dismissal and/or recovering the amount due to him under the Provident Fund. He also claimed Rs. 10 0 for libel. The suit was filed against the Municipality who was defendant No. 1 and against the President who was defendant No. 2. Amongst the various contentions raised on behalf of the Municipality were that the plaintiff was not holding office during good behaviour but only at pleasure and therefore was removable from office without any notice and without any cause being assigned and that therefore it was not incumbent upon the Municipality before dismissing him to prove his misconduct or assign any reason for dismissal. It was further contended that even if the wrongful dismissal amounted to the infringement of some right the only cause of action for the plaintiff if at all was to sue for damages for one months salary. The court in that case was concerned with the Bombay Municipal Boroughs Act 1925 Sec. 58 of that Act is in terms similar to sec. 46 of the Bombay District Municipal Act 1901 and clause (f) of said sec. 58 to clause (e) of the said sec. 46. Clause (f) of the said sec. 58 empowers the Municipality to make rules not inconsistent with the Act determining subject to the limitations imposed by secs. 33 34 and 34a the mode and conditions of appointing punishing or dismissing any officer or servant. It appears that the Broach Municipality before it became a Municipal Borough was a District Municipality under the Bombay District Municipal Act 1901 and under sec. 33 34 and 34a the mode and conditions of appointing punishing or dismissing any officer or servant. It appears that the Broach Municipality before it became a Municipal Borough was a District Municipality under the Bombay District Municipal Act 1901 and under sec. 46 (1) of that Act it had framed the following rule 182: (1) No officer or servant shall be dismissed without a reasonable opportunity being given him of being heard in his defence. Any written defence tendered shall be recorded and a written order shall be passed therein. (2) Every order of dismissal or confirming a dismissal shall be in writing and shall specify the charge or charges brought the defence and the reasons for the order. This rule had continued in force after the Municipality became a Borough and it was this rule which came up for construction before the High Court. It will be noticed that the rule is in the same terms as rule 97 of the Patan Municipality Rules. In fact sub-rule (1) of rule 97 of the Patan Municipality Rules is somewhat milder than the sub-rule (1) of the said rule 182 because under sub-rule (1) of rule 182 a reasonable opportunity is to be given to the servant concerned of being heard in his defence but that is not so in sub-rule (1) of rule 97 under which the reasonable opportunity to be given is of declaring what he has to say in his defence. The High Court first noticed sec. 33 of the Municipal Boroughs Act in sub-sec. (2) of which it was provided No Chief Officer shall be removed from office reduced or suspended unless by the votes of at least two-thirds of the number of councilors and no such officer shall be punished with fine and stated that the resolution in this case was passed by the necessary majority. The court then noticed rule 189 of the rules which in substance provided that every Municipal officer or servant was liable to be discharged by one months notice. The rule had an explanation that the discharge did not include dismissal. The court then noticed rule 189 of the rules which in substance provided that every Municipal officer or servant was liable to be discharged by one months notice. The rule had an explanation that the discharge did not include dismissal. The court then went on to observe:-THIS was not a case of discharge with one month-s notice as contemplated by rule 189 It was a case of dismissal under the provisions of rule 182; and it is therefore necessary to consider whether the provisions of rule 182 had got to be complied with in order to validly remove the plaintiff from his office of Chief Officer. The Municipality purported to dismiss the plaintiff from his positions Chief Officer and it was prima facie necessary for it therefore to comply with the provisions of rule 182. As these provisions had not been complied with the question that was next considered was whether rule 182 was mandatory or whether it was merely directory and the non-compliance with its Provisions would not vitiate the resolution The court held the rule to be directory. Now this decision which would be binding in view of the Full Bench ruling of this High Court in the State of Gujarat v. Grodhandas (supra) would govern the interpretation of rule 97 which is practically in the same terms as the rule 182 which was under consideration in the case. But Mr. Vakil contends that it was not binding because it proceeds on premises which are not well founded. ( 16 ) NOW the main ground on which the Bombay High Court in the Broach Municipality case held the rule it was considering to be directory was that the rule in question being a part of rules alterable from time to time is merely an administrative rule and is in marked contrast to the statutory provisions of the type contained in secs. 33 (2) and 34a of the Bombay Municipal Boroughs Act. The court relied on the decisions of the Privy Council in R. Venkata Rao v. Secretary of State (39 Bom. L. R. 699) and High Commissioner for India and Pakistan v. Lall (50 Bom. L R. 649 Mr. Vakil contends that the learned Judges who decided the Broach Municipality case have read into the two Privy Council rulings more than what was decided. L. R. 699) and High Commissioner for India and Pakistan v. Lall (50 Bom. L R. 649 Mr. Vakil contends that the learned Judges who decided the Broach Municipality case have read into the two Privy Council rulings more than what was decided. In R. Venkata Raos case (supra) the Privy Council was considering the validity of a dismissal made without complying with the provisions of a rule made under sec. 96b of the Government of India Act 1915 The rule was in terms similar to rule 55 of the Civil Services (Classification Control and Appeal) Rules. The Privy Council held the rules in that regard to be merely administrative directions given by the Crown to the administrative authorities for their guidance. The reason for the decision was that sec. 96b in express terms stated that the office is held during pleasure and sub-section (5) of that section expressly confirmed the supreme authority of Secretary of State in Council over the civil service. No rules made thereunder could therefore import a kind of limited or special employment during pleasure with an added contractual term that the rules are to be observed. In the case of High Commissioner for India and Pakistan v. Lall (supra) the Privy Council was considering sec. 240 of the Government of India Act 1935 Their Lordships noticed that the protection against removal or dismissal except by holding an inquiry in the manner provided which was provided for in the rules made under sec. 96b of the Government of India Act 1915 was now placed in sec. 240 itself of the Government of India Act 1935 It was no longer resting on rules alterable from time to time but was mandatory and necessarily qualified the right of the Crown recognised in sub-section (1) of sec. 240. These two Privy Council decisions therefore relate to rules concerning Government servants whose tenure was governed by the Government of India Act 1915 or 1935 as the case may be. Under the former the tenure was entirely at pleasure and under latter though the tenure was at pleasure that pleasure could in cases of removal or dismissal be exercised in the manner laid down by the Act. Under the former the tenure was entirely at pleasure and under latter though the tenure was at pleasure that pleasure could in cases of removal or dismissal be exercised in the manner laid down by the Act. The two decisions do not support the proposition that all statutory rules relating to conditions of service must be treated as administrative and are meant only for guidance of officers acting under them In the State of U. P. v. Babu Ram (supra) their Lordships of the Supreme Court after discussing the Privy Council cases above referred to have stated:-THESE decisions and the observations made therein could not be understood to mark a radical departure from the fundamental principle of construction that rules made under a statute must be treated as exactly as if they were in the Act and are of the same effect as if contained in the Act. There is another principle equally fundamental to the rules of construction namely that the rules shall be consistent with the provisions of the Act. The decisions of the Judicial Committee on the provisions of the earlier Constitution Acts can be sustained on the ground that the rules made in exercise of power conferred under the Acts cannot override or modify the tenure at pleasure provided by sec. 96b or sec. 240 of the said Acts as the case may be. Therefore when the paramountacy of the doctrine was conceded or declared by the statute there might have been justification for sustaining the rules made under that statute in derogation thereof on the ground that they were only administrative directions for otherwise the rules would have to be struck down as inconsistent with the Act. The Supreme Court has thus explained the decisions of the Privy Council which form the basis of the decision of the Bombay High Court in the Broach Municipality Case. It is not therefore possible to hold that a rule made under statute being changeable from time to time is administrative in nature. In fact the Bombay High Court itself had in an earlier decision expressed a different view for in Gokak Municipality v. Rajaram Shridhar (42 Bom. It is not therefore possible to hold that a rule made under statute being changeable from time to time is administrative in nature. In fact the Bombay High Court itself had in an earlier decision expressed a different view for in Gokak Municipality v. Rajaram Shridhar (42 Bom. L. R. 886) Broomfield J. has observed:-IF you have to look to the special law to ascertain what the conditions of service are it is difficult to see why a distinction should be made between a statutory provision and a provision made by a statutory rule. Therefore the ruling in the Broach Municipality case is not now determinative of the question and will not govern the construction of Rule 97 on the question whether or not that rule is directory.