Decided on March 02,1973



- (1.) The petitioner is a Conservancy Jamadar working under the Cuttack Municipality. In the petition it was alleged that he was appointed on 14th April, 1953 and was confirmed in 1958. In the counter-affidavit there is an averment that the petitioner was a temporary Conservancy Jamadar appointed on 14-11-1952 and has not been confirmed. After the counter was filed the assertion that the petitioner was a permanent employee under the Municipality was abandoned. Undisputed facts, as accepted at the time of hearing, leading to the removal of the petitioner from service may be stated in short. Binapani Das, wife of the petitioner, complained before the Executive Officer of the Municipality on 26-5-1969 that three Dog-killing poisonous tablets belonging to the Municipality had been given by her husband to her for being taken to put an end to her life as they were not pulling on well. The Executive Officer directed the Health Officer the very day as per Annexure 4 to make an enquiry into the matter. The Sanitary Inspector took charge of the three tablets from Binapani and reported that the petitioner had absented himself from duty on 25-5-1969 and 26-5-1969. The report of the Sanitary Inspector is Annexure B. On 29-5-1969 the petitioner appeared before the Health Officer and submitted a written explanation Annexure D. Therein he admitted that Raghu Naik, another Jamadar who had taken 15 tablets for killing dogs, had given him 3 tablets. He had kept those three tablets in his bag at home and that as he had differences with his wife she handed over those tablets to the Executive Officer. He admitted that he was guilty of keeping those three tablets and begged to be excused. The Health Officer submitted his report Annexure E referring to the admission by the petitioner of his having kept the three tablets. He recommended that the petitioner should be removed from service. The Executive Officer accepted the recommendation on 5-6-1969 and endorsed a note to the District Magistrate that the petitioner should be removed from service. The District Magistrate put his signature to the note on 11-6-1969 assenting to the proposal of the Executive Officer. It is on the basis of the order of the District Magistrate who is the Chairman of the Municipal Council, the Municipality having been superseded, that the order Annexure 1 was issued by the Executive Officer. The relevant portion of the order runs thus : "The services of Sri Promodaranjan Das, Conservancy Jamadar, Ward No. 21, Cuttack Municipality, are no longer required by this Municipality from 28-7-1969 afternoon x x x" Against the order (Annexure 1) dated 28-7-1969 the petitioner filed an appeal (Annexure 2) before the District Magistrate, Cuttack, on 17th March, 1970. On 12-11-1970 the Additional District Magistrate, Cuttack, intimated the petitioner by the letter (Annexure 3) that the order of discharge was made by the Collector as Chairman of the Municipality and against his order an appeal lies to the Government under Sec. 77 (1) (b) of the Orissa Municipal Act, 1950 (hereinafter to be referred to as the Act). Against the order terminating the services of the petitioner this writ application has been filed under Arts. 226 and 227 of the Constitution with a prayer that a writ of mandamus or any other appropriate writ be issued directing opposite parties 1 and 2 to reinstate the petitioner or in the alternative directing the District Magistrate (O. P. No. 2) to dispose of the petitioner's appeal (Annexure 2) expeditiously. In the counter affidavit the writ application is opposed as not maintainable both on facts and in law.
(2.) The following contentions have been raised by Mr. Misra on behalf of the Municipality; (i) Article 311 (2) of the Constitution has no application to a municipal employee. There is also no codified law or rules as to how an enquiry would be made in respect of termination of service of a temporary municipal employee. If the petitioner is aggrieved, he is to enforce his remedy through suit and not by writ application. (ii) The petitioner was a temporary servant. On his own admission that he was guilty of keeping three tablets belonging to the Municipality unauthorisedly, no further enquiry is necessary even if the principle of natural justice required it. (iii) The Chairman of the Municipal Council passed the order of termination of service under Section 76 of the Act. Under Section 77 (1) (b) an appeal against the order of the Chairman lies to the State Government. The petition of appeal (Annexure 2) was to an authority not having jurisdiction. (iv) The order of removal (Annexure 1) was passed on 28-7-1969. The petition of appeal was filed on 17th March, 1970, six months after. The petitioner was intimated by Annexure 3 on 12-11-1970 that an appeal against the order of the Chairman of the Municipal Council lies to the Government. The writ application was filed on 6-12-1971, more than a year after this intimation. The writ application is liable to be dismissed on the ground of laches and delay. All these contentions require careful examination.
(3.) The first question for consideration is whether Art. 311 of the Constitution has application to municipal employee. Article 311, so far as relevant, runs thus : "311 (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such enquiry. x x x x" It is contended by Mr. Palit that the petitioner holds a civil post under the State. According to him the Municipality comes within the definition of "State". Reliance is placed by him on the definition of "State" in Art. 12 of the Constitution which runs thus: "12. Definition. In this Part, unless the context otherwise requires "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India." Clearly, a Municiality is a local authority and would come within the definition of "State" in Art. 12. The article, however, opens by saying that this definition would apply only to the Chapter of Fundamental rights in Part III of the Constitution unless the context otherwise requires. Article 311 occurs in Chapter I of Part XIV under the caption "Services under the Union and the State." "State" as used in Art. 311 refers to the various States in India. A Municipality, therefore, does not come within the ambit of definition of "State" as used in Art. 311. This question cropped up in Syam Sundar Misra V/s. The State of Orissa., 1957 AIR(Ori) 222 A Bench of this Court therein also took the same view and observed in paragraph 5 of that judgment "In terms, Art. 311 may not apply." In R. Srinivasan V/s. President, 1958 AIR(Mad) 211 District Board, Coimbatore Article 311 (2) was held not to apply to an employee under the District Board. Similarly, in Gur Bux Rai v. Nagar Mahapalika, 1966 AIR(All) 552 Lucknow the Article was held not to apply to an employee under a Municipality in Uttar Pradesh. The position is so elementary that it is unnecessary to cite further authorities on the point.;

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