Decided on November 03,1954

M.M. Nandgaonkar Appellant
COLLECTOR Respondents


M.C.CHAGLA, C.J. - (1.)THE order made by the Collector of Thana which is challenged by this petition is, in our opinion, entirely unsupportable. The petitioner has been an elected member of the Thana Municipality since 1942. He was last elected in the general election held in June 1952 and after the election he was elected Vice -president of the municipality, and when the order complained of was made he was the Vice -president.
(2.)NOW , the employees of the Thana Municipality have formed a union which is known as 'the Thana Municipal Kamgar Sangh'. This was formed in 1943 and it was registered under the Trade Unions Act. The petitioner has been the President of this union ever since its inception. As the President he has been fighting the cause of the municipal employees. He has been pressing demands on their behalf upon the municipality and he has been responsible for raising industrial disputes which have been referred to the Industrial Tribunal. In respect of these disputes an award was made by the Industrial Court on November 30, 1949. But even after that award he has been making demands from time to time on behalf of the municipal employees. On March 26, 1954, the petitioner was served with a notice by the Collector, calling upon him to show cause why he should not be held to be disqualified from being a councillor under Section 28(i)(a) read with Section 12(2)(b) of the Bombay Municipal Boroughs Act. The petitioner answered the notice. He was duly heard by the Collector and on June 30, 1954, the Collector made an order holding that the petitioner was disqualified from being a councillor and there was a vacancy. The petitioner appealed to Government and the Government dismissed the appeal on July 26, 1954. The petitioner has now come to us under Article 226 of the Constitution.
Now, turning to the provision of the law under which the petitioner has been disqualified, it must be established that he has a share or interest either by himself or by his partner in an employment with or under or by or on behalf of the municipality. That is the only ground on which his disqualification is justified and what was suggested by the Collector in the order which he has made is that as the president of the Thana Municipal Kamerar Sangh the petitioner was interested in the employees of the municipality and there was a conflict of duty which he owed to this union and the duty which he owed to the municipality. In other words, what is urged is that whereas as a councillor his duty was to economise in respect of the funds of the municipality, as the president of the union his duty was to obtain as high wages for the employees as he could possibly get from the municipality. Now, in order that a disqualification should be established it is clear that the section imposing the disqualification must be strictly construed, and when we turn to the section with which we are concerned, we must be satisfied that the petitioner has some share or interest in the employment with or under or by or on behalf of the municipality. Perhaps the learned Government Pleader is right when he contends that the interest contemplated by this sub -section need not necessarily be a pecuniary interest. But it is equally clear that the interest must be a material interest. It must be a substantial interest. It is not sufficient if the interest is purely sentimental or an interest arising out of a person having friendship with someone or being interested in his welfare. Now, it is established that the petitioner does not receive any salary as the president of the union. We do not wish to suggest that if he had received a salary the position would have been different. His only interest in the wages that the employees received is to see that the employees are fairly treated by the municipality and are paid a decent wage. He has no interest in these wages. He has no motive of gain in urging upon the municipality to pay the employees proper wages. He does not stand to benefit if the municipal employees' wages are increased by the municipality. Now, in the light of this when we look at the notice served by the Collector, it is clear that if every one of the grounds mentioned in that notice was established, even so no his qualification can result. The first ground mentioned in the notice is that the petiti -tioner as the President of the Thana Borough Municipality's Employees' Union had taken up the cause of the employees in demanding higher wages for them. We do not see why the petitioner is not fully justified in doing so. The second ground is that he in his aforesaid capacity had also taken the initiative in appealing to the Industrial Court on behalf of the employees against the municipality. He is equally entitled to do so. The third ground is that he had collected subscription, both annual and for special festive occasions, from the municipal staff. Now, it is not suggested that this subscription goes into the pocket of the petitioner. The subscription is collected for the purposes of the union and the petitioner obtains no benefit by collecting this subscription. The fourth ground is that his activities and interest as president of the Municipal Employees' Union in matters pertaining to the sanction of extra and special allowances to the municipal employees are likely to conflict with his duties as councillor and Vice -president of the Thana Borough Municipality, and the financial interest of the municipal board. That may be perfectly true, but the Municipal Boroughs Act does not disqualify a councillor because he takes up an attitude with regard to the employees of the municipality which may conflict with the interest of the municipality in paying its employees as little as possible. This may be a question of policy and it may be that those who voted for the petitioner may disapprove of this conduct in which case they need not cast their votes in his favour. But this has nothing whatever to do with the statutory disqualification laid down by the Municipal Boroughs Act. When we turn to the order of the Collector he rightly concedes that the interest contemplated by Section 12(2)(b) must be either pecuniary or material, and having conceded this, all that he can say is that in demanding higher wages and also by taking initiative in demanding higher pay by appealing against the municipality to the Industrial Court as a result of which the petitioner's dual role as a Municipal councillor and the president of the Kamagar Union is found to be of conflicting nature and had reacted unfavourably on the financial interest of the municipality. The Act does not say that a councillor cannot take up an attitude which may prejudicially affect the financial interest of the municipality. He is precluded from taking up that attitude if while the financial interest of the municipality is affected he himself stands to gain or benefit by that action. As we have already pointed out, it is not even suggested that the petitioner stands to gain in any way whatsoever by the conduct pursued by him in the municipality. The canon of construction which should be applied to construe Municipal Acts where disqualifications are imposed has been suggested in an English case Nuttonv. Wilson1 in which Lord Esher, M.R., said that (p. 747):.provisions of this kind..are intended to prevent the members of the local boards, which may have occasion to enter into contracts, from, being exposed to temptation, or even to the semblance of temptation. Now, it cannot be suggested that the petitioner by pressing the claim of the municipal employees is exposed to any temptation which would feather his own nest or advance his own interest. He is fighting for a cause which he thinks is a right cause and there is nothing in law whatever which would prevent him from fighting that cause. It is obvious that the decision of the Collector is manifestly wrong and the decision of the Government upholding that decision is equally wrong.

(3.)THE petition must succeed. The order of the Collector is set aside. Respondent No. 2 to pay the costs.

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