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Judgment
Sinha, J.—The petitioner is an elected Commissioner of the South Dum Dum Municipality, representing Ward No. 2. He was acting as such since his election in 1952. On the 1st July, 1954, he addressed a letter to the Chairman of the Municipality asking for leave for a period of three months with effect from the 1st July, 1954, as ho required rest, being in ill-health. It is said that the Chairman was not agreeable to this proposal and on the 15th July, 1954, the petitioner wrote a letter to the Chairman, which is as follows :--
The Chairman, South Dum Dum Municipality, Nagerbazar, Dum Dum.
Dear Sir,
I do hereby tender my resignation from the Municipal Commissionership due to my ill-health.
Dated, Dum Dum, Yours faithfully, The 15th July, 1954.
Anil Chandra Guha.
On the 26th July, 1954, the petitioner addressed a second letter to the Chairman stating that he withdrew his notice of resignation and requesting that the same may be treated as cancelled and not placed at the meeting of the Commissioners. It is stated by the petitioner that he did so, although he was in indifferent health, as he was requested to withdraw his resignation by his constituency, and he thought that it was his duty to do so in the public interest. On the 27th July, 1954, the petitioner addressed another letter to the Chairman complaining that the agenda for the next meeting showed an item for the consideration of the petitioner''s resignation, but none about the withdrawal of the notice. The petitioner further pointed out that in any event he was still continuing to be a Commissioner and that he was entitled to have a copy of the agenda. It is admitted that he had no notice of the next meeting, nor any copy of the agenda was served upon him. At the meeting of the 30th July, 1954, a resolution was passed which is as follows :
No. 7. Sri A.C. Guha, Commissioner''s letters dated 1.7.54. for leave and dated 15.7.54. tendering resignation from commissionership.
Read the letters dated 1.7.54 and 15.7.54 as also the letters, dated 26.7.54 and 27.7.54 from Sri A.C. Guha, Commissioner.
After a full discussion regarding the letters in question from the Commissioner, resolved unanimously that his resignation be accepted.
This Rule was issued on the 16th August, 1954, calling upon the opposite-parties to show cause why a Writ in the nature of Mandamus should not issue directing them to expunge the Resolution in Item No. 7 dated the 30th July, 1954, complained of in the petition and to forbear from giving effect to the same and to allow the petitioner to function in the office and/or why such further or other order or orders should not be made as to this Court may seem fit and proper.
Mr. Das on behalf of the petitioner urged that u/s 60 of the Bengal Municipal Act, 1932, a Commissioner can vacate his office by a resignation which is to be handed over to the Chairman and by him placed before the Commissioners at a meeting. The relevant provision is as follows :--
A Vice-Chairman or a Commissioner may resign by notifying his intention to do so to the Chairman, who shall forthwith lay such notice before the Commissioners at a meeting.
On a resignation under sub-section (2) or sub-section (3) being accepted by the Commissioners at a meeting, the Chairman, Vice-Chairman or Commissioner, as the case may be, shall be deemed to have vacated his office.
It is argued by the learned Advocate appearing on behalf of the respondents that the proper construction of this provision is that when a Commissioner hands over his resignation to the Chairman, the resignation is complete. I am afraid I am unable to accept this contention. Reference has been made to the English law, and certain English decisions. It must be clearly kept in view that if the law requires that a resignation is to be effected by handing over the resignation to an official of a corporate body, then the resignation is complete when it is handed over. This is quite different to the provision contained in the Bengal Municipal Act, 1932, which requires the resignation to be placed before the Commissioners at a meeting, to be accepted by them. It is only when it is accepted by the Commissioners at a meeting that the resigning Commissioner is deemed to have vacated his office. This is the clear distinction between this case and the English case cited, viz., R. v. Wigan Corporation (1) [(1885) 14 Q.B.D. 908]. Under the corresponding English Act, (Municipal Corporation Act 1882), 45 & 46 Vict. c. 50, sec. 36, it is enacted that a person elected to a corporate office might at any time in writing signed by him and delivered to the town clerk resign his office and when he had so delivered his resignation, the resignation would be complete. In that case, Mr. Ackerley, a Councillor of Wigan, tendered his resignation and handed it over to the town clerk. Later on he tried to withdraw his resignation but it was held that there could be no such withdrawal, even with the assent of the Corporation. Similarly, the synopsis of the law set out in Halsbury, Vol. 21, Article 224 at page 128 should be read, as relating to legislation, where the resignation is complete when it is handed over to an official of the corporate body. Reference has also been made to an Indian case viz., Shamsuddin Vs. The State of Rajasthan and Others, . It appears that provision was made (Act XXI of 1949) for the manner of election to a certain Municipal Board in the former State of Jodhpur, but there was no provision for resignation. Therefore the ordinary law applied and when a man handed in his resignation, he ceased to be any longer a member of the corporate body. As I have pointed out above, the distinction lies in the fact that under the law, we are considering, namely the Bengal Municipal Act, 1932, the resignation, in order to be effective, has not only to be handed to the Chairman, but has to be accepted by the Commissioners at a meeting. Until it is accepted by the Commissioners at a meeting, the resigning Commissioner continues to occupy the office of a Commissioner, and there seems to be no law which would render an withdrawal of the resignation invalid. Until the resignation is effective, I do not see why a Commissioner cannot withdraw his resignation, as the petitioner has done in this case. Mr. Das has referred me to the case of Cooper v. Wilson, (3) [ (1937) 2 All ELR 726]. There, the plaintiff, who was a sergeant in the Liverpool City Police Force, tendered his resignation to the Chief Constable, who accepted it. Before the acceptance was communicated to the plaintiff, the Chief Constable retracted his acceptance, held an enquiry and purported to dismiss the plaintiff. It was held that it was the watch committee which controlled the Borough Police Force and therefore the purported dismissal by the Chief Constable until it was confirmed by the watch committee was not valid and in the meanwhile the resignation had become effective and no dismissal could be made. It is unnecessary to advert to the other aspects of this case.
In my opinion, the petitioner was entitled to withdraw his letter of resignation before it was accepted by the Commissioners at a meeting and that the Commissioners had no jurisdiction to ignore the letter of withdrawal and accept the resignation. In so doing, they acted contrary to the provisions of the law.
Consequently this Rule must be made absolute and the Resolution, dated the 30th July, 1954, mentioned above, purporting to accept the resignation of the petitioner must be quashed, set aside and cancelled and a writ in the nature of mandamus will issue directing the respondents to forbear from acting upon the same. The result is that the petitioner must be treated as a Commissioner of the South Dum Dum Municipality. There will be no order as to costs.