Kishori Lal Batra Vs. the Punjab State and anr. - Court Judgment

S. B. Capoor J.

1. This is a plaintiffs appeal from the judgment and decree of the Senior Subordinate Judge, Rohtak, dismissing his suit with costs.

2. The facts material for the decision of this appeal are that the Punjab Government by its notification, Exhibit P. W. 2/5, dated 20-3-1948, extended the provisions of the Punjab Municipal (Executive Officer) Act, 1931, to the Municipality of Rohtak, which was a Municipality of the second class as constituted under the Punjab Municipal Act, 1911. Under Section 3 of the Punjab Municipal (Executive Officer) Act, 1931, hereinafter referred to as the Act, it was therefore incumbent on the committee to appoint within three months from the date of the notification a person with the approval of the State Government as Executive Officer for a renewable period of five years. The meeting for the purpose of appointing an Executive Officer had to be especially convened and the resolution of appointment had to be passed by not less than five-eighths of the total number of members constituting the Committee for the time being.

The Municipal Committee, Rohtak, made a recommendation for the appointment of L. Sant Lal as Executive Officer of the Committee (vide Exhibit D. 11) but that recommendation was not accepted by Government as the resolution had not been passed with a requisite five-eighths majority, vide Punjab Government letter, Exhibit D. 12, dated 10-9-1948, by which the Committee was given an extension of one month within which it may select its Executive Officer. At a special meeting of the Municipal Committee, Rohtak, held on 9-10-1948, it passed a resolution, Exhibit D. 13 by the requisite five-eighths majority appointing the plaintiff as its Executive Officer for a period of five years. Consequently by its letter, dated the 25th/27th of November, 1948, Exhibit D. 22, the Punjab Government under Sub-section (4) of Section 3 of the Act appointed the plaintiff as Executive Officer for the Rohtak Municipality for a period of five years, and the plaintiff actually took charge of the post on 1-12-1948.

On 5-9-1949, a resolution (copy Exhibit P. 3) was passed by this Municipal Committee recommending to Government that the plaintiff be removed from the post of its Executive Officer and in consequence the Punjab Government by its notification, dated 8-11-1949, Exhibit P. 2, purporting to act under Sub-section (7) of Section 3 of the Act directed the plaintiff's removal from that post. The plaintiff thereupon filed the suit giving rise to this appeal impleading the Punjab State as well as the Municipal Committee, Rohtak, as the defendants. The case went to trial on numerous issues and the issues which were found against the plaintiff were as follows:

'5. Is the order dismissing the plaintiff, vide notification No. 10074-C49/70050, dated the 8th of November, 1949, void, illegal, unfair and ineffective for reasons given in the plaint and is the plaintiff still an Executive Officer of the Municipal Committee?

'6. Is resolution No. 1, dated the 5th of September, 1949 passed by the Municipal Committee in its meeting capricious, arbitrary, malicious, unjustified, ultra vires, void, ineffective and not binding for the reasons given in the plaint and that what is its effect?'

As a result of its findings on these issues the suit was dismissed and in appeal arguments have been confined to these two issues.

3. The appellant's learned counsel in the first place contended that the plaintiff was serving not under the Municipal Committee, Rohtak, but under the Punjab Government and that consequently the Municipal Committee could not take any action for his removal. He based this argument on the facts that the Committee had been unable to appoint its Executive Officer within three months of the date of the notification extending the provisions of the Act to it and that the appointment was subsequently made by the State Government itself under subsection (4) of Section 3 and, in these circumstances, the plaintiff must be regarded as being employed under the State Government.

That inference, however, does not really follow. It is admitted on behalf of the plaintiff that he was being paid from the Municipality's funds and that his Provident Fund also was after the termination of his appointment paid to him by the Municipal Committee. The test in such cases is the nature of functions being performed by the plaintiff. As held by a Division Bench of this Court in the State of Punjab v. Prem Parkash, 59 Pun LR 270 : (AIR 1957 Punj 219) (A), the answer to the question whether a particular person is a Municipal servant or a Government servant is determined by the functions which he performs. If he performs the functions relating to a Municipal Committee, he is a Municipal Officer; but if he performs the functions relating to Government, he is a Government servant.

In that case the plaintiff had been appointed under Section 4 of the East Punjab Local Authorities (Restriction of Functions) Act, 1947, by the State Government as a Superintendent of Water Works to discharge the duties of the Municipal Committee in the Water Works Department, and it was held that he could not be said to be the holder of a civil post under the State within the meaning of Article 311 of the Constitution but was a Municipal Officer. There can be no manner of doubt that the plaintiff in the present case was performing functions relating to the Municipal Committee and it would be futile to maintain that he was an officer serving under the State Government.

4. The next ground of attack was that the Municipal Committee which recommended the plaintiff's removal to the State Government was not properly constituted. On account of the partition of the country, Muslim members of Municipal Committees in the Punjab had like other Muslims migrated to Pakistan and in order to ensure proper functioning of the Municipal Committees the Government had to make some arrangement for filling up their seats. The device adopted was that the seats of those muslim members, who had migrated, were declared vacant under Section 14(e) of the Punjab Municipal Act and those seats were then filled up under Section 24 of that Act.

By notification, dated the 29th of May, 1948, Exhibit P.W. 2/3, the Governor of the then East Punjab in exercise of the powers conferred by Section 14 (e) directed that for reasons of public interest the seats of nine Muslim members of the Municipal Committee of Rohtak shall be vacated from the date of that notification. By notification, dated the 3rd of June, 1948, Exhibit P.W. 2/4, the State Government under the provisions of Section 24 appointed nine other persons as members of the Municipal Committee, Rohtak. It is contended on behalf of the plaintiff that this in fact amounted to altering the constitution of the Municipal Committee, which the State Government could not do under the provisions of the Punjab Municipal Act. Section 12 of the Punjab Municipal Act, 1911, as it stood before its amendment by Punjab Act No. V of 1951 was as follows :--

'12. Every such committee shall consist of members appointed by the Provincial Government either by name or by office, or of members elected from among the inhabitants in accordance with rules made under this Act, or partly of the one and partly of the other as the Provincial Government may, by notification, direct:

Provided that, unless the Provincial Government shall otherwise direct, the appointed members shall not exceed one-fourth of the whole Committee.'

It was argued that in consequence of the above two notifications the proportion of appointed members increased beyond one-fourth of the whole Committee, though the State Government had not issued any direction under the proviso to Section 12. It was conceded that acting under Clause (e) of Section 14 of the Punjab Municipal Act, the Government could declare that the seat of any specified member, whether elected or appointed, shall be vacated on a given date, and in such case, such seat shall be vacated accordingly, notwithstanding anything contained in the Punjab Municipal Act or in the rules made thereunder, but it was pointed out that, while Section 14 itself provided that it was to take effect notwithstanding anything in the preceding sections, there was no similar overriding provision in Ss. 17 and 24 of the Punjab Municipal Act.

Under Sub-section (2) of Section 17, when a member's seat has been vacated under the provisions o Section 14(e), the State Government may, if it shall think fit, fill his place, either by appointment or by election. It was maintained that since there was no overriding clause in Section 17, this provision must be read subject to the constitution of the Committee as laid down under Section 12 and that a seat vacated under the provisions of Section 14(e) which had formerly been filled by election must be filled by election and a seat filled by appointment must be filled by appointment. This interpretation would, however, read into Sub-section (2) of Section 17 something which is not there. That Sub-section clearly provides that once a seat has been vacated in accordance with Section 14(c) the State Government may in its discretion fill that scat either by appointment or election, and the mode in which the seat had been filled previously would not appear to be material.

Section 17 is headed 'Casual Vacancies on Committee,' and is obviously to be resorted to when the State Government wants to make an arrangement for filling a casual vacancy in a Municipal Committee without considering it necessary to alter its constitution either under the proviso to Section 12 or in pursuance of Clauses (c) and (d) of Section 14 as it stood before its amendment by Punjab Act No. V of 1951.

5. The next ground of attack to the constitution of the Committee was that while the notification vacating the seats was published in the East Punjab Gazette of the 4th of June, 1948, (page 180 of Gazette), the notification appointing the new members (E. A. 93, marked as Exhibit P.W. 2/4) was dated the 3rd of June, 1948. The date when the previous notification was issued was the 29th of May, 1948, and in the natural course of things some time would lapse before it could be printed in the Gazette. As would appear from the printing particulars under E.A. No. 93, the later notification was printed on the 29th of June, 1948.

The appellant's learned counsel sought to make a distinction on the ground that while directing the vacation of seats under Clause (e) of Section 14, the Government had to act by notification and under Clause (36) of Section 2 of the Punjab General Clauses Act (Punjab Act No. 1 of 1898) 'notification' shall mean 'a notification published under proper authority in the Official Gazette', so that unless publication was made the notification could not be deemed to have taken effect. Clause (36) does not say that the notification shall have effect only from the date when it is published in the Official Gazette. All that it requires is such publication, and according to the routine in Government offices the notification takes effect from the date it is issued which must usually be some time before it can be actually printed in the Gazette.

The appellant's learned counsel cited Ramnarain Lal v. Dr. Radharaman Das, AIR 1954 Pat 393 (B), in support of the proposition that an official appointment must be deemed to be valid only from the date of its actual publication in the Gazette. I am doubtful as to the correctness of this view, but it is not necessary to decide the point in the present case. Section 24 of the Punjab Municipal Act also requires that every election and appointment of a member of a committee shall be notified, and there is accordingly no distinction in this respect between this section and section 14.

In fact Section 24 further provides that no member shall enter upon his duties until his election or appointment has been so notified and until he has taken or made an oath or affirmation of his allegiance. It is not alleged that in pursuance of the notification dated 3rd June, 1948 all these formalities were gone through before the 4th of June, 1948, and hence there is no force in this ground of objection also.

6. Then it was maintained that the proposal for the removal of the appellant was not duly seconded. The proceedings of the special meeting at which that proposal was passed are given at V. A. No. 11, Exhibit P. 3, according to which the proposal was made by Ch. Gopal Dass, member, and seconded by four other members of the Committee. The appellant's learned counsel, however, referred to the evidence of Gopal Das (D.W. 2) who said that be had made a written requisition for calling that meeting, which requisition contained his proposal, that this requisition was not read by himself hut by an official of the Municipal Committee and that it was in accordance with the practice. He further said that the resolution was not seconded by anyone in that meeting.

It was pointed out that according to the business by-laws of this Municipal Committee, Exhibit P.11, every motion or resolution shall be read, and the motion, if seconded, shall be deemed to be before the meeting for discussion (by-law No. 18). This docs not, however, mean that if the member making the proposal is actually present in the meeting and someone else reads his proposal on his behalf, and resolution is subsequently passed, that resolution becomes invalid. Similarly if those members who bad seconded the resohition did not actually say in the meeting that they were seconding it, but in fact voted for the resolution (as would appear from the proceedings, V. A. No. 11) there would be no defect in substance.

The resohition is not, therefore, open to any objection on the technical grounds mentioned above. It is not disputed that it was passed by more than five-eighths ratio of the members of the Committee, and according to Sub-section (7) of section 3 of the Act it had to be acted upon by the State Government.

7. The appellant's learned counsel then took up the position that if the plaintiff was not a servant of the Government he must be regarded as a municipal servant and that his suspension or dismissal must be subject to the rules framed under clause (n) of Sub-section (1) of Section 240, Punjab Municipal Act. These rules lay down the usual procedure that notice as to the action proposed to be taken must be given by the committee as also an opportunity to the person concerned to show cause. In the present case it is admitted that neither any formal notice nor opportunity to show cause was afforded to the plaintiff. On behalf of the defendants, however, it has been maintained that the plaintiff is neither a servant of the Government nor a municipal servant appointed under the provisions of the Punjab Municipal Act, but that he is a creature of the statute, viz., the Punjab Municipal (Executive Officer) Act, under which he had been appointed and that it is not permissible to go outside that statute or the rules framed thereunder for any matters governing his' appointment, punishment, suspension or removal.

This appears to be the correct legal position. The rules made under Clause (n) of Section 240(1) provide inter alia for the procedure to be observed for the employment of officers and servants of the committee and as to appeal from orders of punishment or removal. However, the procedure for appointment of the Executive Officers is laid down in the Punjab Municipal (Executive Officer) Act and no rules made under Clause (n) of Section 240(1} of the Punjab Municipal Act can affect that procedure.

Under Sub-section (7) of Section 3 of the Act, if at a meeting of the committee convened to consider the question of the removal or suspension of the Executive Officer not less than five eighths of the total number of members constituting the committee for the time being vote in favour of his suspension or removal, the State Government shall so suspend or remove him. Under Section 232 of the Punjab Municipal Act, the Commissioner or Deputy Commissioner may, by order in writing, suspend the execution of any resolution or order of a committee. It cannot for a moment be contended that a resolution of the Municipal Committee passed under Sub-section (7) of Section 3 of the Act by a properly constituted meeting could possibly be suspended by a Deputy Commissioner or Commissioner.

Nor could the provisions made in the rules under Clause (n) of Section 240 of the Punjab Municipal Act with regard to appeals from orders of suspension or dismissal possibly apply to any action taken under Sub-section (7) of Section 3 of the Act. The appellant's learned counsel referred in this connection to certain observations made in Civil Writ No. 569 of 1956, D/- 27-8-1957 (Punj) (C), to the effect that an Executive Officer is a municipal employee and that statutory rules made under Section 240 of the Punjab Municipal Act apply to an Executive Officer. As would appear from the order in that case, it was conceded before the learned Judge that the petitioner, who was an Executive Officer, was a municipal employee to whom statutory rules framed under Section 240 of the Punjab Municipal Act, applied and hence the order in that case can be of no help in the present case where those matters have been strenuously contested by the defendants.

8. Lastly it was contended that by omitting to give notice to the appellant of the charges against him or an opportunity to be heard, the Municipal Committee acted contrary to the principles of natural justice, and a cause of action would thereby accrue to the plaintiff. His learned counsel referred to Balada Lakshrainarayana Deo v. Imperial Bank of India, Guntur, AIR 1939 Mad 580 (D), in which it was held that servants of a statutory body, such as the Imperial Bank of India, could not be summarily dismissed, even though no stipulation exists as to notice. It was rightly observed in that case that where no stipulation exists as to notice, a hired servant can be dismissed only on reasonable notice. It does not, however, follow that a hired servant cannot be dismissed unless opportunity is given to him to show cause. In Ram Piara v. Municipal Committee, Hoshiarpur, AIR 1955 Punj 125 (E), it was held by a Division Bench of this Court that in the absence of a contractual or statutory provision to the contrary a right vests in the master to terminate the services of his servant at any time without giving him any reasons for the same and that the same rule applies to officers of local authorities who can be removed at any time without notice or hearing.

That right could be circumscribed only by a contract or statutory provision to the contrary, and there is none such in the present case. The appellant's learned counsel asserted that their Lordships of the Supreme Court in New Prakash Transport Co., Ltd. v. The New Suwarna Transport Co. Ltd., (S) AIR 1957 SC 232 (F), had recognised that the principles of natural justice as discussed on various authorities of the highest Courts of England could be applicable to certain provisions of the Motor Vehicles Act, 1939, with, regard to the granting or cancelling of permits, and one of these principles was that if any material was to be used against a party by the Appellate Authority constituted under the Act, that party should have an opportunity of controverting that material. That case, however, is no authority for the proposition that a master is bound to afford opportunity for showing cause to a servant whom he wants to remove, and in fact no direct authority on this point could be cited by the learned counsel for the appellant. On the other hand the case of AIR 1955 Punjab 125 (E), of our own High Court is directly against the appellant on this point.

9. In the result, upholding the judgment and decree under appeal of the lower Court, I would dismiss the appeal with costs.

S. S. Dulat J.

10. I agree.