Srivastava, J. - (1.) THE following question has been referred to us for answer: Does the issue of a notification by the State Government under Section 60B of the U.P. Municipalities Act, 1916 (Act No. 2 of 1916) empowering the Head of the Education Department to exercise with reference to the said Department, powers under Cl. (2), Sub -section (1) of Section 60 of the said Act have the effect of divesting the Executive Officer of his powers under Section 60 -B and Section 76 of the U.P. Municipalities Act, 1916 (Act No. 2 of 1916)?
(2.) THE circumstances in which the question arose can be briefly stated. Sri Gopi Nath was working as a teacher in the Sant Tulsi Das Memorial Higher Secondary School, Soron, district Etah. He was getting a salary of less than Rs. 50 per mensem. The School was a Municipal School under the management of the Municipal Board of Soron. The Municipal Board was a non -city Municipality. On the 17th of December 1952 in the purported exercise of his powers under Section 76 of the UP Municipalities Act (II of 1916) the Executive Officer of the Municipal Board passed an order dismissing Sri Gopi Nath. Before this order of dismissal was passed Government had issued a notification under Section 60 -B of the Municipalities Act directing that in the Municipality in question the Superintendent of the Education Department was to exercise the powers under Cl. (e) of sub.S. (1) of Section 60. The order of dismissal was, however, not passed by the Superintendent of the Education Department but was passed by the Executive Officer. Sri Gopi Nath then filed the suit out of which this second appeal has arisen claiming a declaration that the order of dismissal passed against him by the Executive Officer was ultra vires, null and void. The point he raised was that in view of the notification issued by the Government under Section 60 -B of the Municipalities Act the Executive Officer had no power left to dismiss the Plaintiff under Section 76 of the Act. The suit was dismissed by the trial Court and Sri Gopi Nath went up in appeal. The appellate Court came to the conclusion that the dismissal of the Plaintiff was bad in law and, therefore, decreed the suit. Against that decree the Municipal Board has filed the present second appeal. When it was being argued before Mr. Justice Beg the question we have already quoted was raised and the learned Judge being of opinion that the question was important enough to deserve consideration by a Division Bench referred it to a Division Bench. That is how the case has come to us. Primarily the power to dismiss its servant vests in the Municipal Board Under 60, however, some of the powers of the Municipal Board can be exercised by the Executive Officer appointed under Section 57 or 65. The powers which can thus be exercised by the Executive Officer include as mentioned in Cl. (e) of Sub -section (1) of Section 60. In respect of servants of the board, the powers vested in the executive officer by Sections 75 and 76, and the power to grant leave of absence to the holder of any post to which he has power to appoint;
(3.) IN view of this delegation of power, under Section 76 the Executive Officer can pass certain orders against servants of the kinds specified in the section. That section reads as follows: 76. Except as otherwise provided the executive officer may punish or dismiss: (a) servants on or drawing a monthly salary not exceeding Rs. 40, or in a city Rs. 50; and (b) servants on or drawing a monthly salary exceeding Rs. 40 but not exceeding Rs. 50 or in a. city exceeding Rs. 50 but not exceeding Rs. 75; but each order of dismissal or order imposing a fine exceeding in amount one month's pay of the person fined, or order of suspension for a period exceeding one month, or order or reduction by way of punishment, in respect of servants mentioned in Cls. (a) and (b) above shall be appealable to the President: Provided that in case there is no executive officer the powers conferred by this section may be exercised by the President.;