M.C. Desai, J. - (1.) petition for certiorari to quash an order passed by an Executive Officer of a Municipal Board under Sec. 76 of the U.P. Municipalities Act dismissing the applicant, who was a servant of the Board on a monthly salary not exceeding Rs. 40/- and an order passed by the President of the Board dismissing his appeal filed within 30 days, but beyond 10 days of the Executive Officer's order dismissing him, on the ground that it was barred by time and mandamus requiring the Municipal Board, the Executive Officer and the President to reinstate him in service, has been referred by our brother Dwivedi, before whom it came up for hearing to a larger Bench because the question involved is of general importance. Sec. 76 reads as follows: ". . . . . . Executive Officer may . . . . . dismiss (a) servants on or drawing a monthly salary not exceeding Rs. 40/- . . . . but each order of dismissal . . . . . shall be appealable to the president." No period within which an appeal can be filed before the president has been specified in this provision. The Municipal Board has power under Sec. 298 (1) to make bye-laws" consistent with this Act and with any rule . . . . for the furtherance of Municipal administration under this Act," There must be a period of limitation for every appeal; nobody can claim a right to file an appeal at any time. The legislature certainly did not intend to grant a right to file an appeal at any time to a servant dismissed by an Executive Officer under section 76 and when it failed to specify the period within which he can file an appeal. The Municipal Board could have made a bye-law fixing the time but has not done so. The appeal is a matter of right and if a right to file an appeal is conferred upon a person his appeal must be heard unless the hearing is barred by some provision in the Act conferring the right or in some other law. For instance if a right of appeal is conditional upon an appeal being filed within a certain time the appeal filed within the time must be heard and cannot be dismissed (unless some other law is infringed) but an appeal filed after the expiry of the time can be dismissed on this ground. It follows that the right of appeal conferred by Sec. 76 could not be taken away except some statutory provision. No statutory provision took away the right on the ground that it was filed after the expiry of a certain time and it was not open to the President to refuse to hear the appeal on the ground that it was filed after the expiry of a certain time. Sec. 3 of the Limitation Act which provides for dismissal of a suit or an appeal or an application on the ground of the expiry of a certain period provides for its dismissal only on the ground that the period mentioned in the schedule attached to the Act or in a Special or Local Act has expired. Consequently no appeal can be dismissed on the ground that it was filed after the expiry of a certain period unless the period was specified in the schedule attached to the Limitation Act or in the Special or Local Act conferring the right of appeal.
(2.) It was contended on behalf of the Municipal Board that the period of 10 days prescribed for certain appeals by Sec. 61 applies to an appeal filed under Sec. 76 also. Sec. 61 is as follows:- "(1) No appeal shall lie to the Board from any order passed by an Executive Officer in the exercise of the powers conferred upon him by Sec. 60 (or Sec. 60-A) unless (a) the order is an order against which an entry is shown in the third column of Schedule II (b) the order is an order passed in respect of a licence and provision is made for appeal therefrom by any bye-law. (2) Where an appeal lies it shall be filed within ten days of the communication of the order or of date on which the order is, under the provisions of this Act, deemed to have been communicated. The order passed by the Executive Officer dismissing the applicant is not an order against which an entry is shown in the third column of Schedule II, It is an order passed under section 76 and an order passed under Sec. 76 is shown in Schedule II but there is no entry made against it in Col. 3 of it. It is not an order passed in respect of a licence. Therefore, it is not an order from which an appeal would lie under Sec. 61. The period of ten days limitation prescribed by sub-Sec. (2) is for an appeal from an order passed by an Executive Officer under Sec. 60 or 60-A, that order being an order against which an entry is shown in the third column of Schedule II or one passed in respect of a licence. The President did not state in his order how he held that the petitioner's appeal was barred by time but he seems to have thought that it could have been filed only within ten days and so :seems to have relied upon Sec. 61 but he was in error in adopting the period of limitation prescribed by Sec. 61(2) for an order not governed by it.
(3.) An appeal referred to in Sec. 61 is an appeal that lies to a Board and an appeal under Sec. 76 which lies to a President is obviously out of the purview of Sec, 61. But it was argued before us that the definition of "Board" includes "President" and that consequently an appeal lying to a President is an appeal lying to the Board within the meaning of Sec. 61. Even if this were true it would not matter because for the reasons given earlier an appeal filed under Sec. 76 is not an appeal referred to in Sec. 61, but we have no doubt that the word "Board" used in Sec. 61 does not include "President." "Board" is defined in Sec. 2(1) to mean a Municipal Board and to include "in any case where a power is expressed as being conferred or a duty as being imposed on a board, . . . any . . . officer of a Board authorised or required by or under this Act to exercise the power or perform the duty." The power to hear an appeal from an order made under Sec. 76 is a power of a President and not of a Board. A President exercises the power by virtue of Sec. 76 itself and not by virtue of any authority conferred upon him by the Board. The power not being of a Board, there cannot arise any question of its being delegated by it to the President. "President" is included in the definition of "Board" only when he exercises the power which is conferred on a Board or performs the duty which is imposed on a Board and which he is authorised by the Board or required by or under the Act to exercise or perform it. Here the power or duty of hearing the appeal has been Conferred or imposed upon a President and not upon a Board and he exercises or performs it without any authority from the Board or without his being required by the Act to exercise or perform it even though conferred or imposed on the Board. Consequently, when exercising the power or performing the duty of hearing the appeal he is not to be included in the definition of "Board". Moreover even if (SIC) a Board when hearing the (SIC) would not be governed by Sec. 61(2) simply because a Board when hearing other appeals referred to in sub-Sec. (1) of Sec. 61 would be governed by it. It would be illogical to argue that because a Board in certain cases would be governed by sub-Sec. (2), a President being a Board for another purpose, would also be governed by it. We are, therefore. of the opinion that the period of ten days' limitation prescribed by Sec. 61(2) does not apply to an appeal filed under Sec. 76 before a President.;