PETITIONER:
J.N. GANATRA
Vs.
RESPONDENT:
MORVI MUNICIPALITY, MORVI
DATE OF JUDGMENT: 19/07/1996
BENCH:
KULDIP SINGH (J)
AHMAD SAGHIR S. (J)
CITATION:
JT 1996 (6) 661 1996 SCALE (5)375
ACT
HEADNOTE
JUDGMENT
JUDGMENT
Kuldip Singh, J.
The appellant was employed as an Overseer with Morvi Municipality in Rajkot District, State of Gujarat. He was dismissed from service by a resolution dated December 1, 1970 passed by the Municipality. The appellant challenged the order of dismissal by way of a civil suit. The trial court dismissed the suit. The appellate court, however, reversed the findings of the trial court and decreed the suit. The second appeal filed by the Municipality was allowed by the High Court and the judgment and decree passed by the first appellate court was set aside and the suit of the appellant was dismissed on the short ground that the same was barred by limitation under Section 253(1) of the Gujarat Municipalities Act, 1963 (the Act). This appeal by way of special leave is against the judgment of the High Court.
It is not disputed that before passing the order. of dismissal it was mandatory for the Municipality to have followed the procedure laid down under the Morvi City Municipal Officers and Servants, Conduct, Discipline, Dismissal, Penalty and Appeal etc., Rules 1960 (the Rules). Rule 35 of the Rules, which is relevant is as under:
"Before imposing the penalty under
sub-sections 3,6,7 & 8 of Section
21 upon the officer or employee,
the investigating general Board or
Committee shall have to follow the
following methods/procedure.
1. To take dscision for action
asainst the responsible officer or
employee.
2. Written Charge-sheet should be
given to him.
3. To make investigation/enquiry
and to take evidence in respect of
his misbehaviour, fault of offence.
4. To take written explanation
from him.
5. After the aforesaid proceeding
the opinion should be given and
decision of order should be made."
The High Court on merits came to the conclusion that the order dismissing the appellant was passed without complying with the provisions of rule 35 of the Rules. The High Court, therefore, held that the order of dismissal was illegal. The relevant part of the High Court judgment in this respect is as under:
"Rule 35 of the Morvi City
Municipal Officers and Servants,
Conduct, Disciplines Dismissal,
Punishment and Appeal Rules framed
by the said Municipality in 1960
lays down that before imposing a
punishment upon an officer or
servant of the Municipality, the
General Board or the Committee has
to: (1) take a decision to take
action against the officer or
servant, (2) give him a charge-
sheet in writing, (33 take evidence
about the misconduct of the
servant, (4) call for his written
explanation, (5) reach a conclusion
and give a decision and pass an
appropriate order.
In the present case, it is an
admitted position that no decision
was taken either by the General
Board or by the Controlling
Committee of the Municipality to
take any such action against the
plaintiff. It is also an admitted
position that no charge-sheet has
been given by the General Board or
by the Committee acting through the
Chief Officer or any other officer.
It is clear on the face of it that
the charge-sheet, Ex.41, is issued
by the president in his own name
and is signed by him. There is also
nothing on record to show that any
evidence was taken in the present
case to consider whether the
charges levelled against the
plaintiff were established. It
appears that the plaintiff was
called upon to give his explanation
and he did give some explanation
There is nothing on record to show
that any notice was given to the
plaintiff informing him that the
charges against him were proved and
calling upon him to show cause why
he should not be dismissed from
service. But it appears that the
Chief Officer of the Municipality
gave a notice, Ex.55, dated 7-10-
1969 to the plaintiff informing him
that the General Board will be
taking up for consideration the
resolution passed by the
Controlling Committee on 17-4 1969
with regard to his dismissal from
service and he may produce whatever
evidence he wants to in defence
before the General Board. In view
of this, we may say that he was
given an opportunity to give a
written explanation as required by
sub-rule (4) of the Rule 35. The
provision of sub-rule (5) of Rule
35 lays down that the General Board
or the Committee, as the case may
be, has to reach a conclusion and
pass a judgment and also pass a
consequential order. This shows
that the General Board or the
Committee, as the case may be, has
to record a finding with reasons
for reaching the conclusion about
the guilt of the delinquent. The
resolution of the Controlling
Committee is at Ex.38. It is dated
17-4-1969. It only mentions that
the charge against the delinquent
plaintiff was established and the
Committee was of the opinion that
the plaintiff should be removed
from service and the matter may be
placedbefore the General Board. No
reasons are disclosed in this
resolution as to why the Committee
had reached such a conclusion The
resolution also does not show as to
what inquiry, if any, was held
against the plaintiff before taking
this decision. The resolution of
the General Board is at Ex.85. The
resolution is dated 1-12-1970. This
resolution also does not disclose
any reasons as to why the General
Board had reached the conclusion to
dismiss the plaintiff except that
it had taken into consideration the
resolution of the Controlling
Committee and the submissions made
by the advocate on behalf of
theplaintiff. This shows that
neitherEx.38 nor Ex.85 disclosed
any reasons whatsoever."
The High Court finally concluded as
under:
"It will appear from what has been
discussed above no inquiry
,4<he plaintiff-
respondent as required by the rules
framed by the Municipality. The
order passed by the General Board
of the Municipality dismissing the
plaintiff-respondent from service,
therefore, is on the face of it,
illegal and inoperative. On merits,
therefore, the defendant-
Municipality has no case."
Having held that the order passed by the General Board of the Municipality dismissing the appellant from service was on the face of it illegal and inoperative, the High Court non-suited the appellant on the short ground that the suit was barred by limitation in terms of Section 253(1)(a) of the Act. The said section reads as follows:
"253(1) - No suit shall lie against
a muticipality in respect of any
act done in pursuance or execution
or intended execution of this Act
or in respect of any alleged
neglect or default in the execution
of this Act,-
(a) Unless it instituted within
six months next after the accrual
of the cause of action; and..."
On the interpretation of Section 253(1)(a), the High Court posed the following question :
"On facts, I have found, as
discussed earlier, that the action
of the Municipality was bad, in
that the procedure laid down by the
rules has not been followed and
further because no reasons have
been given either by the
Controlling Committee or by the
General Board for reaching the
conclusion to dismiss the plaintiff
from service The question is
whether in view of this factual
position, can it be said that the
act of the Municipality was in
pursuance or, at any rate,
execution or intended execution of
the Act?"
The High Court finally came to the conclusion that the suit filed by the appellant was barred by limitation as it was not filed within the period of limitation prescribed by Section 253(1)(a) of the Act The High Court reached the finding on the following reasoning:
"The discussion made above clearly
shows that even though the action
of the Municipality in dismissing
the plaintiff was null and void for
the reasons which have been stated
in the beginning none-the-less the
Municipality can be said to have
acted in intended execution of the
Act and hence the provisions of
Section 253(1)(a) will be attracted
in the present case."
We have heard learned counsel for the parties. We are of the view that the High Court fell into patent error in reaching the conclusion that the dismissal of the appellant from service, in utter violation of rule 35 of the Rules, was an "act done in pursuance or execution or intended execution of this Act....." It is no doubt correct that the General Board of the Municipality had the power under the Act to dismiss the appellant but the said power could only be exercised in the manner indicated by rule 35 of the Rules. Admittedly the power of dismissal has not been exercised the way it was required to be done under the Act. It is settled proposition of law that a power under a statute has to be exercised in accordance with the provisions of the statute and in no other manner. In view of the categoric finding given by the High Court to the effect that the order of dismissal was on the face of it illegal and void, we have no hesitation in holding that the dismissal of the appellant was not an act done in pursuance or execution or intended execution of the Act. The order of dismissal being patently and grossly in violation of the plain provisions of the Rules it cannot be treated to have been passed under the Act.
This Court in Poona City Municipal Corporation vs. Dattatraya Nagesh Dattatraya Nagesh Deodher 1964 8 SCR 178 while interpreting a similar provision under the Bombay Provincial Municipal Corporation Act, 1949 observed as under:
"The benefit of this section would
be available to the Corporation
only if it was held that this
deduction of ten per cent was "an
act done or purported to be done in
pursuance or execution or intended
execution of this Act." We have
already held that this levy was not
in pursuance or execution of the
Act. It is equally clear that in
view of the provisions of s.l27(4)
(to which we have already referred)
the levy could not be said to be
"purported to be done in pursuance
or execution or intended execution
of the Act." For, what is plainly
prohibited by the Act cannot be
claimed to be purported to be done
in pursuance or intended execution
of the Act".
This Court in Municipal Corporation vs. Sri Niyamatullah S/o Masitulla 1970 2 SCR 47 interpreted Section 135(2) of the Indore Municipal Act, 1909 which is similar to Section 253(a) of the Act in the following term:
"The provisions contained in
section 135 of the Indore Municipal
Act will be applicable to things
done under the Act. It is manifest
that in the present case the order
of dismissal passed by Shri
Ghatpande was beyond his
jurisdiction and is therefore not
an act done under the Act."
The dismissal order in the present case could only be passed by following the procedure laid down under rule 35 of the Rules. The Municipal Board had no jurisdiction or authority to dismiss the appellant without following the mandatory procedure. We are, therefore, of the view that the High Court was not justified in reaching the conclusion that the order dismissing the appellant was within the provisions of the Act. We allow the appeal, set aside the impugned judgment of the High Court and decreed the suit of the appellant with costs. We quantify the costs as Rs.20,000/-.