Takru, J. - (1.) This petition by Sri Sharat Chandra Misra, under Article 226 of the Constitution of India, prays for the issue of a writ in the nature of certiorary quashing the resolution of suspension dated the 31st March 1962, and a writ in the nature of mandamus commanding the respondents not to give effect to the resolution referred to above and not to treat the petitioner as a suspended Secretary of the Board. This petition has come up before us on a reference by Mathur, J., as, in his opinion, it involved many important questions, including the consideration of certain observations made by the Full Bench in Ram Sewak Misra v. The District Board, Allahabad, 1960 ALJ 167 (F.B.) , which deserved the attention of a larger Bench.
(2.) The material facts giving rise to this petition are not in dispute, and, briefly stated, are as follows:- The petitioner was confirmed in the post of the Secretary of the erstwhile District Board, Hamirpur now known as the Antarim Zila Parishad, Hamirpur - on the 31st July 1953, after he had completed the statutory period of one years' probation. On the 8th of December 1959, Sri Nirmal Chand Tandon, an Overseer of the Board hereinafter called the Parishad - made a report against him to the Collector, Hamirpur in which he charged the petitioner of having committed an offence - to quote his own words - of 'forged payment.' The Collector as the Adhyaksh of the Parishad took up that report departmentally, and circulated an agenda on the 15th of February 1960 calling for a meeting of the Executive Committee of the Parishad on the 27th February 1960, wherein one of the items, viz. Item No. 4 was whether the petitioner should be suspended or not on account of the allegations made against him by Sri Tandon. The said item was taken up by the Parishad in its meeting, dated the 27th February 1960, when it was decided by a majority not to place the petitioner under suspension. Meanwhile, on the 19th February 1960, the Collector in his capacity as the District Magistrate had already informed the police about the allegations made by Sri Tandon against the petitioner, and had got a police enquiry instituted in the matter. The police held the necessary enquiry, and being satisfied that no case had been made out against the petitioner, it submitted a final report on the 2nd December, 1960 which was accepted by the Judicial Officer, Hamirpur, on the 7th December 1960. Nothing happened thereafter till the 18th March 1962, on which date an Agenda No. 1 MC was issued for a meeting of the Parishad to be held on 31st March 1962, and one of the items of that agenda, viz. Item No. 20, was whether any disciplinary action should be taken against the petitioner, concerning the allegations made against him at item No. 4 of the meeting of the Parishad dated the 27th February 1960. At this meeting, it was resolved that as the direction contained at page 380 of the District Board Manual, requiring the Parishad to consider, what action should be taken on the final report submitted by the police, had not been compiled with, the Parishad should hold further enquiry into that matter, and pending the same place the petitioner under suspension forthwith. The meeting further resolved that a Committee be appointed to hold the necessary enquiry and to submit its report to the President in order to enable him to decide as to whether the matter should be sent for trial to court or departmental action be taken against him. The petitioner was informed about the said resolution on the 4th April 1962, though he avers to have come to know earlier that some resolution to that effect had been passed against him by the Parishad by a majority of 4 votes only. The petitioner, thereupon, filed the writ petition, which has come up before us for decision.
(3.) In order to appreciate the rival contentions canvassed before us, the material sections of the District Board Act, which bear upon them, may be set out at this very stage. They are Secs. 71 and 90. Sec. 71 lays down the authority, and the method, by which the Secretary can be punished or dismissed. According to that section the Secretary can be punished or dismissed only by a special resolution of the Board passed by a vote of not less than two thirds of the total number of members of the Board for the time being. Then follows a proviso which lays down that such a resolution shall not come into effect for a period of one month during which period the Secretary has the right to file an appeal to the State Government and in case an appeal is filed, the resolution shall remain suspended till the State Government have passed orders on the appeal so preferred. It is now settled by a Full Bench, of this Court, in Ram Seulak Misra that this power can only be exercised by the Board, and can not be exercised by the President, acting on behalf of the Board under Section 40 of the District Board Act. Sec. 71, however, does not give any power to the Board to suspend the Secretary pending enquiry. This is provided for in Sec. 90(3), which lays down that:- "(3). where the power of dismissal, whether subject to the sanction of any other authority or not, is conferred by this Act, it shall include power to suspend any person against whom the power of dismissal might be exercised, pending enquiry into his conduct or pending the orders of any authority whose sanction is necessary for his dismissal.";