STATE OF GUJARAT Vs. KISHORCHANDRA AJITRAI
HIGH COURT OF GUJARAT
STATE OF GUJARAT
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SHAH, J. -
(1.) In this revision application the short question for decision is whether the sanction to prosecute the Chief Officer of the Mangrol Municipality granted by Resolution No.29 dt. 30th July 1982 passed in the ordinary general meeting of Mangrol Municipality is a valid sanction to prosecute under S.6(1)(c) of the Prevention of Corruption Act, 1947, hereinafter referred to as the "Corruption Act". Under S.6(1)(c) it has been provided that no court shall take cognizance of an offence punishable under S.161 or S.164 or S.165 of the Penal Code or under S.5 of the Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office.
(2.) The question in the present case is that the respondent, who was the Chief Officer of the Mangrol Municipality was sought to be prosecuted for the alleged offence under the Corruption Act and under S.161 of the Penal Code. Section 47 of the Gujarat Municipalities Act, 1963, hereinafter referred to as the "Act", provides that for every municipality there shall be a chief officer appointed by the Municipality. For the appointment of a Chief Officer qualification is prescribed under sub-ss.(2) and (3) of S.47 of the Act. Sub-secs.(4) and (5) of S.47 further provide that the State Government can direct the municipality to appoint a health officer or a land valuation officer or such other officer temporarily or permanently. Sections 48 and 50 of the Act provide for the removal of the chief officer, health officer and the engineer or the officer appointed under sub-sec.(4) or (5) of S.47. For deciding the issue in dispute it would be worthwhile to quote Ss.48 and 50 of the Act which read as under :-
"48. No chief officer or officer appointed under sub-sec.(4) or (5) of S.47 shall be removable from office, reduced in rank or suspended except by a resolution passed by a majority of at least two-thirds of the total number of the then councillors and shall not be punishable with fine."
"50.(1) Notwithstanding anything contained in Ss.47 and 48 it shall be lawful for the State Government on the recommendation of any municipality supported by a resolution passed by a majority of the councillors present at a special general meeting called for the purpose to make in its discretion an order of discontinuance in office of the chief officer, or an officer appointed under sub-sec.(4) or (5) of S.47 : Provided that - (a) notwithstanding anything contained in Cl.(7) of S.51, no resolution shall be passed by such meeting unless a quorum shall have been present throughout; and (b) no order shall be made under this section unless an inquiry has been made into the matter by such officer and in such manner as the State Government may direct and unless the officer against whom such order is to be made has been given a reasonable opportunity at the inquiry of explaining the allegations made against him. (2) The tenure of office of the officer who is discontinued in office under sub-sec. (1) shall cease and determine on and from such date as may be appointed by the State Government, in that behalf." Referring to S.48, it in terms provides that no chief officer or other officer appointed under sub-sec.(4) or (5) of S.47 shall be removed from office except by a resolution passed by a majority of at least two-thirds of the total number of the then councillors. Section 50 of the Act provides for termination simpliciter or provides for discontinuance in office of the chief officer or an officer appointed under sub-sec.(4) or (5) of S.47 by following the procedure provided in the proviso to the said section. While interpreting the provisions of S.50 of the Act the Full Bench of this Court in Letters Patent Appeal No.52 of 1969 : (Reported in ILR (1972) Guj 1000) presided by P.N. Bhagwati C.J. as he then was, held as under :-
"Section 50 uses a different nomenclature from S.48. It speaks not of "removal from office" but "discontinuance in office". This expression is a neutral expression which takes in every case of termination of service, whether it be termination simpliciter or termination by way of punishment. Discontinuance in office cannot be equated with "removal from office" as was sought to be contended on behalf of the respondents. The Legislature has deliberately departed from the expression "removable from office" employed in S.48 and instead, used an innocent expression "discontinuance in office" to connote every kind of termination of service. Where, therefore, the Municipality wants to terminate the service of the Chief Officer simpliciter without any punitive accent, the Municipality may pass a resolution by ordinary majority recommending to the State Government to terminate the service of Chief Officer and the State Government may then, on such recommendation, terminate the service after following the procedure set out in S.50. This provision clearly excluded the power of the Municipality to effect a simple termination of service of Chief Officer. If the Municipality had such power, the provision in S.50 would be meaningless. There would be no point in that case in providing that the Municipality may recommend and on its recommendation, the State Government may terminate the service of Chief Officer. Why - for what reason - should the Municipality be given power to recommend when it can itself take action for terminating the service? The power of recommendation would be clearly futile. We can appreciate if the State Government were given power to terminate the service of Chief Officer without any recommendation of the Municipality. It could have been convincingly argued, if that had been the case, that a concurrent or additional power was conferred which the State Government could exercise, irrespective of any action which the Municipality may or may not take. But the State Government cannot act under S.50 except on recommendation of the Municipality and the provision for recommendation by the Municipality clearly indicates that the Municipality cannot itself terminate the service of Chief Officer except of course in cases falling within S.48. Section 50 is exhaustive of the mode of termination simpliciter of the service of Chief Officer and termination of service of Chief Officer which is not by way of punishment can be effected only in the manner prescribed by that section. The rule that a master may terminate the employment of his servant by giving reasonable notice is not an inflexible rule of law. It is an implication of the law of master and servant - a term to be implied in order to give "the transaction the efficacy that both parties must have intended it to have". Now it is evident that the term can be implied only where the contract is silent. If there is a specific provision on the subject either in the contract or in the statute which governs the relationship, there can obviously be no room for implication. The implication would be wholly unnecessary it would be excluded by the specific provision on the subject. Here in S.50 there is clearly a specific provision on the subject of termination of service of Chief Officer and it is, therefore, not possible to imply a power in the Municipality to terminate simpliciter service of Chief Officer by giving reasonable notice." It has been further held :
"The Legislature has here made its intention abundantly clear that though the Municipality is given power to appoint Chief Officer, it shall not have power to terminate the service of Chief Officer except in cases falling within S.48 or, in other words, termination of service of Chief Officer simpliciter shall not be effected by the Municipality, but if the Municipality wants to terminate the service of Chief Officer simpliciter, the Municipality may by a resolution make a recommendation to the State Government and it would be for the State Government to effect termination simpliciter of the service of Chief Officer." In view of the aforesaid decision it is clear that when the municipality intends to terminate the services of the Chief Officer by way of punitive action, then it has to follow the procedure laid down in S.48 of the Act and the municipality can take action by a resolution passed by the majority of at least two-thirds of the total number of the then councillors.
(3.) The question which further requires to be determined is what is the meaning of phrase "resolution passed by a majority of at least two-thirds of the total number of the then councilors". It was strenuously contended by Mr. J.U. Mehta, learned public prosecutor appearing for the State, that the total number of then councillors means only those councillors who were present at the meeting when the resolution was passed. In our opinion, the contention of the learned public prosecutor is of no substance because the Legislature has advisedly used the phrase "two-thirds of the total number of the then councillors" meaning thereby the total number of councillors of the municipality at the relevant time. The words "the then councillors" would, therefore, mean the existing councillors of the municipality at the relevant time. The same phraseology is used in S.36(1) and (2) of the Act which provide procedure for motion of no-confidence. Sub-sec.(1) provides that any councillor of a municipality may give a notice to move a motion of no-confidence against its president or vice-president if such notice is supported by not less than one third of the total number of the then councillors of the municipality. Sub-sec.(2) provides that the motion of no-confidence should be carried out by a majority of not less than two-thirds of the total number of the then councillors of the municipality. Section 6 provides that every municipality shall consist of elected councillors. Sub-sec.(2) of S.6 provides that the number of such councillors shall be on the basis of its population varying from 25 to 51. Sub-sec.(3) provides that out of the total number of seats of councillors in a municipality there shall be reserved seats for women, Scheduled Castes and Scheduled Tribes as prescribed therein. Therefore, under S.6 of the Act total number of seats of councillors is fixed. In this section word "then" is used as equivalent to "at that time". It may be that some councillors may have resigned or died thereby giving rise to vacancy. So even though total number of councillors is fixed under S.6 of the Act, yet at the relevant time when the resolution is passed, there may be vacancy because of the death or resignation of some councillors and the total number would mean only those persons who were existing councillors of the municipality at the relevant time. In the present case admittedly when the impugned Resolution No.29 dt. 30th July 1982 was passed, 19 members remained present at the meeting. At that time total strength of the councillors of the Mangrol Municipality was admittedly 25. Out of the 19 councillors who were present, 13 councillors gave vote in favour of the resolution, one councillor gave vote against the resolution and 5 councillors abstained from voting. As per the interpretation we have just given to the phrase "two-thirds of the total number of the then councilors", it would be clear that the resolution ought to have been passed by majority of at least two-third councillors of the total strength of 25 councillors i.e. by a majority of at least 17 councillors. Admittedly the resolution is passed by the majority of 13 councillors. Hence it cannot be said that valid sanction under S.6(1)(c) of the Corruption Act is given by the competent authority who is entitled to remove the Chief Officer i.e. the respondent.;
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