Kuldip Singh, J. - (1.) The appellant was employed as an Overseer with Morvi Municipality in Rajkot District, State of Gujarat. He was dismissed from service by a resolution dated December 1, 1970 passed by the Municipality. The appellant challenged the order of dismissal by way of a civil suit. The trial Court dismissed the suit. The appellate Court, however, reversed the findings of the trial Court and decreed the suit. The second appeal filed by the Municipality was allowed by the High Court and the judgment and decree passed by the first appellate Court was set aside and the suit of the appellant was dismissed on the short ground that the same was barred by limitation under S.253(1) of the Gujarat Municipalities Act, 1963 (the Act). This appeal by way of special leave is against the judgment of the High Court.
(2.) It is not disputed that before passing the order of dismissal it was mandatory for the Municipality to have followed the procedure laid down under the Morvi City Municipal Officers and Servants, Conduct, Discipline, Dismissal, Penalty and Appeal etc., Rules 1960 (the Rules). Rule 35 of the Rules, which is relevant is as under: "Before imposing the penalty under sub-sections (3), (6), (7) and (8) of S.21 upon the officer or employee, the investigating General Board or Committee shall have to follow the following methods/procedure. 1. To take decision for action against the responsible officer or employee. 2. Written charge-sheet should be given to him. 3. To make investigation / enquiry and to take evidence in respect of his misbehaviour, fault or offence. 4. To take written explanation from him. 5. After the aforesaid proceeding the opinion should be given and decision of order shall be made". The High Court on merits came to the conclusion that the order dismissing the appellant was passed without complying with the provisions of Rule 35 of the Rules. The High Court, therefore, held that the order of dismissal was illegal. The relevant part of the High Court judgment in this respect is as under: "Rule 35 of the Morvi City Municipal Officers and Servants, Conduct, Discipline, Dismissal, Punishment and Appeal Rules framed by the said Municipality in 1960 lays down that before imposing a punishment upon an officer or servant of the Municipality, the General Board or the Committee has to:(1) take a decision to take action against the officer or servant, (2) give him a charge-sheet in writing, (3) take evidence about the misconduct of the servant, (4) call for his written explanation, (5) reach a conclusion and give a decision and pass an appropriate order. In the present case, it is an admitted position that no decision was taken either by the General Board or by the Controlling Committee of the Municipality to take any such action against the plaintiff. It is also an admitted position that no charge-sheet has been given by the General Board or by the Committee acting through the Chief Officer or any other officer. It is clear on the face of it that the charge-sheet, Ex. 41, is issued by the president in his own name and is signed by him. There is also nothing on record to show that any evidence was taken in the present case to consider whether the charges levelled against the plaintiff were established. It appears that the plaintiff was called upon to give the explanation and he did give some explanation. There is nothing on record to show that any notice was given to the plaintiff informing him that the charges against him were proved and calling upon him to show cause why he should not be dismissed from service. But it appears that the Chief Officer of the Municipality gave a notice. Ex. 55, dated 7-10-1969 to the plaintiff informing him that the General Board will be taking up for consideration the resolution passed by the Controlling Committee on 17-4-1969 with regard to his dismissal from service and he may produce whatever evidence he wants to in defence before the General Board. In view of this, we may say that he was given an opportunity to give a written explanation as required to sub-Rule (4) of Rule 35. The provision of sub-Rule (5) of Rule 35 lays down that the General Board or the Committee, as the case may be, has to reach a conclusion and pass a judgment and also pass a consequential order. This shows that the General Board or the Committee, as the case may be, has to record a finding with reasons for reaching the conclusion about the guilt of the delinquent. The resolution of the Controlling Committee is at Ex.38. It is dated 17-4-1969. It only mentions that the charge against the delinquent plaintiff was established and the Committee was of the opinion that the plaintiff should be removed from service and the matter may be placed before the General Board. No reasons are disclosed in this resolution as to why the Committee had reached such a conclusion. The resolution also does not show as to what inquiry, if any, was held against the plaintiff before asking this decision. The resolution of the General Board is at Ex.85. The resolution is dated 1-12-1970. This resolution also does not disclose any reasons as to why the General Board had reached the conclusion to dismiss the plaintiff except that it had taken into consideration the resolution of the Controlling Committee and the submissions made by the advocate on behalf of the plaintiff. This shows that neither Ex.38 nor Ex.85 disclosed any reasons whatsoever".
(3.) The High Court finally concluded as under: "It will appear from what has been discussed above that no inquiry was held against the plaintiff-respondent as required by the rules framed by the Municipality. The order passed by the General Board of the Municipality dismissing the plaintiff respondent from service, therefore, is, on the face of it, illegal and inoperative. On merits, therefore, the defendant-Municipality has no case". ;