Decided on September 03,1966



A.S.SARELA, N.M.MIABHOY - (1.) All these five Second Appeals raise some common questions of law and have been argued together and will therefore be disposed of by a common judgment. In the course of the judgment we shall deal with the facts of each appeal separately. In all the appeals the respondent is the Municipality of Patan (hereinafter referred to as the Municipality). The Municipality was the defendant in the five suits from which these five appeals arise. The plaintiffs in those five suits (who are the appellants in the five appeals) were the former employees of the Municipality whose services were terminated by the Municipality by resolutions of different dates to which we shall refer in due course. In each of those suits the plaintiff claimed a declaration that the resolution of the Municipality terminating his services was illegal void and of no effect and that it did not effect the continuance of his service and his service benefits and prayed for a perpetual injunction against the Municipality restraining it from enforcing the said resolution. In all the suits except the one from which appeal No. 662 arises the orders passed by the Municipality terminating services of the employees concerned were of dismissal. In the suit from which appeal No. 662/60 arises the order was one of discharge. The orders of dismissal were under rule 97 of the rules in force in respect of the Municipality in relation to the conditions of services of its employees and the controversy in the trial court centered on the questions whether the conditions of that rule had been complied with before the order of dismissal was made and if not whether that rule was mandatory or directory and whether the plaintiff was entitled to a declaration and injunction as sought or his remedy was for damages for wrongful dismissal a claim which was not made. The lower appellate Court heed on facts in each case that the conditions of rule 97 had not been satisfied before the resolution of dismissal was passed in the four suits in which the orders were of dismissal; but that the rule was directory and the only remedy available to the plaintiff was a suit for damages. The declaration for continuance in service and injunction were therefore refused. Against that decision the plaintiffs in all the suits have come in appeal.
(2.) In order to appreciate the submissions of counsel to which we shall refer presently it would be convenient at the outset to set out in brief the relevant legislative history relating to the an applicable to this Municipality. Patan was a part of the former Baroda State. In that State two Municipal Acts were in force. The Baroda A class Municipalities Act and the Baroda B class Municipalities Act. It is undisputed that the Patan Municipality was governed by the Baroda A class Municipalities Act which was Act No. 1 of Samvat Year 1962 and which appears to have come into force on 21st December 1905 The said Baroda A Class Municipalities Act substantially contains the same provisions as are contained in the Bombay District Municipal Act 1901 to which reference will be made later. Sec. 46 of the said Baroda Act (which corresponds with sec. 46 of the corresponding Bombay Act) empowered the Municipality to make rules inter alia for determining the executive functions to be performed by the President and Vice-President etc.; the delegation of any of the powers or duties and for determining the staff of officers and servants to be employed by the Municipality and their respective designations duties salaries etc.; the powers and duties delegated to them; the mode of punishing an officer or servant and delegation of powers to officers to fine reduce suspend and remove another officer or servant. In accordance with these powers the Municipality had made rules. We are concerned with the rules framed with reference to the above subjects which fall under clauses (kha) (ga) (gna) and (cha) of sub-sec. (1) of sec. 46. These rules which for the sake of convenience may be referred to hereinafter as the rules fall into nine Chapters with a Schedule attached. Of these rules we are particularly concerned with the rules contained in Chapter VIII wherein the important rules 95 and 97 are contained. We shall come to the contents of the relevant rules presently but to continue the narration of legislative history it appears that the Baroda A Class Municipalities Act I of Samvat Year 1961 was repealed and re-enacted as Baroda A Class Municipalities Act 19 of 1949. The Patan Municipality Rules it is conceded continued in force under the new Act. The Ruler of Baroda ceded to the Government of India on 1st May 1949 full and exclusive authority jurisdiction and powers for and in relation to the Government of Baroda State. Thereafter an order was made under sec. 4 of the Extra Provincial Jurisdiction Act 1947 called the Baroda State Application of Laws Order 1949 This order came into force on 30th July 1949. Under clause (1) of para 3 of that Order read with the First Schedule the Bombay District Municipal Act 1901 and the Bombay Municipal Boroughs Act 1925 as in force in the Province of Bombay immediately before coming into force of that Order were extended to and were to be in force in the Baroda State subject to any amendments to which the said enactments were for the time being generally subject in the Province of Bombay. Therefore by this order the said Bombay Acts were extended to and came into force in the Baroda State. Under clause (1)(c) of para 5 of that Order the enactments in force in the Baroda State corresponding to the enactments in force in the Province of Bombay and extended to the Baroda State under para 3 were repealed. The enactments corresponding to the Bombay District Municipal Act 1901 and the Bombay Municipal Boroughs Act 1925 were the Baroda A Class Municipalities Act and the Baroda B Class Municipalities Act. (See Kadi Municipality v. New Chhotalal Mills Co. I.L.R.6 Guj .145). These Acts therefore were repealed. Para 6 of the Order provided for continuance of the officers and authority constituted under the repealed Acts. Thus as from 30th July 1949 the District Municipal Act 1901 took the place of the Baroda A class Municipalities Act with respect to the Patan Municipality. Thereafter when the territory which formed part of the former Baroda State was merged into the then Province of Bombay and became part of that Province the Bombay Merged States (Laws) Ordinance 1949 was enacted which was later replaced by the Bombay Merged States (Laws) Act 1950 (Bombay IV of 1950 This Act contained provisions similar to the provisions contained in the Baroda State Application of Laws Order 1949 in respect of extension of laws. The Bombay District Municipal Act 1901 was one of the Acts extended to the Baroda territories and in its application to those territories certain amendments were made in the Act of which only one is material for the purpose of this case. That was the insertion of sec. 180A. Under that section all rules made issued or sanctioned by or in respect of any of the Municipalities whether constituted under the A Class Municipalities Act (Baroda No. XII of 1949) or the B Class Municipalities Act (Baroda No. XIV of 1949) of the former Baroda State as were in force immediately before the 30th day of July 1949 under the said Baroda Acts shall in so far as they are consistent with the provisions of the Bombay District Municipal Act 1901 be deemed to have been made issued or sanctioned by or in respect of the said Municipalities under the appropriate provisions of the said Bombay Act on the said date and continue in force until altered repealed or amended by a competent authority. Thus the rules which we have earlier referred to have continued in force in respect of Patan Municipality as made under the District Municipal Act 1901 notwithstanding the repeal of the Baroda A Class Municipalities Act. This position is conceded.
(3.) The relevant rules as we have stated are in Chapter VIII of the Rules. Rule 93 in that Chapter lays down the powers of different authorities to make appointment of Municipal Officers and servants The power to appoint the Chief Officer lies with the General Body subject to the sanction of the Government. The power to appoint the Secretary the Overseer and other officers and servants drawing a pay above Rs. 40 is with the General Body. The power to appoint servants drawing pay of Rs. 20 and above but not exceeding Rs. 40 is with the President and in his absence with the Vice-President. In respect of the servants drawing a pay under Rs. 20 the power is with the Chief Officer and in his absence with the Chairman of the concerned committee. We are not concerned with rule 94. Then rule 95 lays down different class of punishments which can be inflicted and by whom. It is in Gujarati as are all the rules. Translated it reads as under: 95 Power to Punish:-The officer or servant who has power to appoint an officer or servant has. on the principles embodied in the relevant rules relating to Government servants the power (A) to impose fine (B) to reduce from post (C) to suspend. (D) to discharge from service (E) to dismiss. In accordance with the said rules it is to be understood that unless otherwise directed in this rule (F) the powers of Vahivatdar are vested in (1) the Chief Officer and (2) the President of the respective sub-committee and (G) the Deputy Collector in the Vice-President (H) the Collector in the President and (1) Sur Suba (i. e. Commissioner) and (2) the (Officers) other than him in the General Body. They should use the said powers in accordance with the respective rules. No resolution contrary to the principles laid down under the rule shall come into force without the sanction of the Government.. Rule 96 concerns the power of suspension and rule 97 which has been the subject of considerable argument before us reads as under : 97 Delinquent be given opportunity to defend and then resolution be made in writing: (1) (a) No officer or (b) servant should be dismissed without giving him reasonable opportunity of declaring what he has to say in his defence. (2) The order of (a) every dismissal or (b) confirmation should be in writing and therein the charge for the offence for which the delinquent is dismissed and the facts of the case put forward (by him) in defence and the grounds of the order should be clearly stated. Rule 95 therefore regulates the power of punishment and rule 97 provided the procedure to be followed when the punishment is by way of dismissal.;

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