Bhagwandas vs Municipal Committee Damoh

K.L. Pandey, J.—This is a petition under Article 226 of the Constitution to quash by certiorari an order. of the President of the Municipal Committee, Damoh, dated 27 June 1960 by which the petitioner was removed from service. The petition is also directed against several other orders passed by various bodies and authorities, both before and after that date, in connection with the action taken against the petitioner.

The petitioner was employed as a temporary Tax Mohairs in a temporary vacancy in the establishment of the Damoh Municipality. His emoluments were Rs. 63 per month made up of Rs. 30 as salary and Rs. 33 as dearness allowance. At the material time, he was working as an Octroi Naka Moharir. By order dated 29 October 1958, he was removed from service with effect from 1 November 1958. His op-peal against that order was dismissed by the Sub-Divisional Officer, Damoh, but his further appeal was allowed by the Collector, who, by his order dated 6 August 1958, set aside the order of removal from service and remitted the case for holding a proper enquiry against him.

Since the Municipal Committee was not then functioning, the departmental enquiry against the petitioner on the two charges framed against him was held by, and under the directions of, the Executive Officer R. S. Biseri. As a result of the enquiry, it was found that, while the first charge was not proved, the second charge of being overage was duly established. The matter came up before the Municipal Committee after it was reconstituted. In the meeting held on 5 February 1960, nine members were present. While six members abstained from voting, the Committee decided by two votes against one that both the charges were proved and that a notice be issued to the petitioner to show cause why he should not be removed from service. The Committee further resolved unanimously that the petitioner''s Case be decided by a sub committee of three members and that such decision would be binding on the Committee. In pursuance of these resolutions, the President served upon the petitioner, as usual, a notice dated 11 February 1960 requiring him to show cause against the action proposed to be taken in regard to him. After the petitioner submitted his explanation, the above-mentioned subcommittee took the view that, having regard to the resolution of General Committee that the petitioner was guilty of the two charges, that matter could, not be reconsidered. Accordingly by a resolution dated 28 May 1960 the subcommittee decided to remove the petitioner From service. In pursuance of these resolutions, the President passed the impugned order dated 27 June 1960. Thereupon, the petitioner filed two successive appeals, but they were dismissed as incompetent by the Sub-Divisional Officer and the Collector.

Having heard the counsel, we have Formed the opinion that this petition must be allowed. In view of Rule 1 (c) of the Rules relating to the right of appeal u/s 25 (6) of the Central Provinces and Berar Municipalities Act, 1922 (hereinafter called the Act); a municipal servant holding a temporary appointment has no right of appeal. That being so, the orders passed by the Sub-Divisional Officer and the Collector rejecting the petitioner''s appeal as incompetent are correct.

In view of Clause (iii) of the Proviso to sub-section (1) of section 25 of the Act, the President was competent to make any appointment to a municipal post carrying a salary of not more than Rs. 40 per month. In this case, the petitioner''s post carried a salary of Rs. 30 per month and the President actually appointed him by an order dated 5 September 1956. That being so, the President was competent to dismiss or remove him from service. This does not mean that the General Committee, being a superior authority, could not take a similar action against him.

So far as the General Committee is concerned, the only action that it took in the matter is to be found in the two resolutions which it passed on 5 February 1960. As indicated earlier, as many as nine members were percent on that date, but the first resolution by which the petitioner was found guilty of the two charges was passed by two votes against one. This was clearly contrary to section 34 of the Act Which reads:

Except as otherwise provided by this Actor the rules made there under, all questions brought before any meeting of a committee shall be decided by a majority of the votes of the members present, and in the case of an equality of votes, the Chairman of the meeting shall have a second or casting vote.

Since the resolution was not passed "by a majority of the votes of the members present" it was clearly invalid. If an authority is required, we may refer to Laoouchere vs. Earl of Wharncliffe. (1879) 13 Ch. D. 346. The second resolution is equally bad as it amounts to an unauthorised delegation of the power to punish a municipal servant: Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, . In this view, the action taken against the petitioner by the Committee had no validity in law.

So far as the President is concerned, he did not apply his mind to the question and, in passing the impugned order dated. 27 June 1960, expressly proceeded to give effect to the invalid first resolution of the. General Committee dated 5 February 1960, and the resolution of the sub-committee dated 28 May. 1950. Thus, in so far as the power to punish the petitioner resided in the President, tie clearly failed to exercise his power and abdicated his functions. In fact, he merely give effect to the two invalid resolutions which he mentioned in his order. That being so, his order dated 27 June 1960 cannot be sustained.

The result is that the petition succeeds and is allowed. The resolutions dated 5 February 1960 and 28 May 1960, the show-cause notice dated 11 February 1960 and the order dated 27 June 1960 are qua shad. The petitioner shall have his costs of this petition and the security amount shall be refunded to him. Hearing Fee Rs. 50.