J.K. Tandon, J. - (1.) Jogeshwar Dayal Shukla, the petitioner, was an employee of the Municipal Board Biswan. He held the post of Assistant Toll Collector at Octroi barrier no. 8 situate on the road from Laharpur to Biswan. A scheme for refund of toll tax is in force in this Municipality. A permanent advance of Rs. 20/- is, therefore, left at each octroi barrier as was the case with this particular barrier too. One Sri R. S. Sharma a member of the Biswan Board inspected this particular barrier besides others on 22nd April 1957. During his inspection he discovered a deficiency of Rs. 10/- in the above advance which on being questioned by him the petitioner informed had been due to an advance made a couple of months earlier to Sri Prem Behari Seth, an Inspector in the same Board. Prem Behari Seth happened to be the son-in-law of respondent no. 1 who is Sri Mool Narain Mehrotra, the then President of the Board.
(2.) Admittedly the amount of Rs. 10/- said to have been advanced to Sri Seth was not so done in connection with any official business. In fact the petitioner too does not claim that it had been done in connection with any official duty as according to him he took away the money for his personal needs. Because a deficiency in the amount which was earmarked for making refunds of tolls had been discovered the petitioner was served with a charge-sheet on 27th April 1957 charging him of misconduct. He was further asked by the game charge-sheet to show cause against the charge thus levelled against him. At the time when the deficiency, was discovered by Sri Sharma the petitioner gave the above explanation to which reference has been made earlier. A reference to the said explanation also was, therefore, made in the chargesheet. * * * * * * 3. On the remaining objection the petitioner's allegation is that he had not been given any show cause notice in regard to the action proposed to be taken, and in support he relies on the following regulation appearing at page 654 of the Municipal Manual Volume I published in 1952: Rs.1. No officer or servant shall be dismissed, removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him. Any written defence tendered shall be recorded and a written order shall be passed. 2. Every order of dismissal, removal or reduction shall be in writing and shall specify charge or charges brought, the defence and the reasons for the order." 4. The Board has in its turn relying on two decisions of this Court, (i) Rameshwar Prasad v. Municipal Board Pilibhit, 1958 A.L.J. 363 and (ii) Malik Anwar Khan v. Municipal Board Shahjahanpur, 1959 ALJ 141 urged that the above regulation was a draft regulation alone, that is, it had not been duly made under the Municipalities Act, it has, therefore, no legal effect. Alternatively it has urged that a show cause notice was indeed given to the petitioner. 5. In the aforesaid two decisions, one of which was by a single Judge and the other by a Division Bench, the view held no doubt was that the above provision on page 654 of the Municipal Manual was a draft regulation recommended to be framed by Municipal Boards, it had not been finally made by the State Government under any of its powers under the Municipalities Act. The learned Judges referred in the course of discussion to a passage at the bottom of page 653 of the Manual which gave the impression that the regulation was a draft only to serve as a model. At the same time, however, it is clear that their attention was not invited in any of the two cases to the notification itself, i.e., notification no. 6471/XI-226-46 dated November 29, 1946 by which it was promulgated. The above notification was published in part III of the U.P. Gazette dated December 7, 1946 on page 313. Prior to it another notification No. U-3/XI-131-1943 dated January 8, 1946 had also been published in Part III of the U.P. Gazette dated January 12, 1946. By this earlier notification, which had been published in pursuance of Sec. 300 of the U.P. Municipalities Act, 1916, objections and suggestions were invited on the draft regulation as it then was. The notification of December 7, 1946 was in continuation of January 8, 1946 and purported to make the above regulation by the Governor in exercise of his powers under sub-Sec. (2) of Sec. 297 of the Municipalities Act. 6. A perusal of the above two notifications clearly pointed out that the regulation was indeed made by the State Government. Sub-Sec. (1) of Sec. 300 required that the power to make regulations shall be subject to the condition of being made after previous publication, the procedure wherefore is laid down in Sec. 23 of the General Clauses Act, 1904. A draft of the same was therefore published in the notification of January 8, 1946 in the Gazettee dated 12th January 1946 the final notification by which the regulation was then made was ultimately published on December 7, 1946. 7. Sec. 297 in sub-Sec. (1) gives power to a Board to make regulations consistent with the Act by passing a special resolution. The matters regarding which regulations may thus be made are specified in clauses (a) to (o) of sub-Sec. (1). Sub-Sec. (2) of Sec. 297 provides that the State Government may, if it thinks fit, make regulations consistent with the Act in respect of the matters specified in Cl. (d) and (h) to (n) of sub-Sec. (1) and any regulation which the State Government shall make in exercise of its above power shall have the effect of rescinding any regulation made by the Board under the sub-section in respect of the same subject matter. Since the power to make regulations on some of the matters enumerated in sub-sec. (1) is simultaneously vested both in the Board and the State Government those framed by the State Government have been given an overriding effect. Any regulation inconsistent therewith made by a Board stands rescinded thereby. Cl. (k) of Sub-Sec. (1) is thus:- "Conditions of service, including the period of service of all servants of a Board and the conditions under which such servants, or any of them, shall receive gratuities or compassionate allowance on retirement ...................... " 8. By virtue of Cl. (k) aforesaid, read with sub-sec. (2) of the section, a power belongs to the State Government to make regulations prescribing the conditions of service of servants of the Board. Not only therefore that the regulation in question was made by the State Government on December 7, 1946 prescribing that no officer or servant shall be dismissed, removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him, the State Government had the power also to do so. The above regulation clearly laid down a condition of service as regards dismissal, removal or reduction of Municipal servants. 9. As pointed out earlier also, in none of the two cases the above material was placed before the learned Judges. Naturally, therefore, their decision proceeded on a misleading statement printed at the bottom of page 653 of the Municipal Manual which evidently was responsible for the observation that the regulation was a draft or model regulation alone. 10. Founding the argument on the head note in Rameshwar Prasad's case, 1958 A.L.J. 363 it was also urged that the State Government had no power to prescribe the conditions of service of Municipal employees, the head note reads thus : "There is no provision in the Municipalities Act apart from the provisions of Secs. 57, 66, 68, and 70, which gives the Government the power to lay down the conditions of service or the qualifications of Municipal servants other than those covered by the aforesaid sections." 11. Here again it will suffice to say that the attention of the learned Judges was not invited to sub-Sec. (2) of Sec. 297 and Cl. (k) of sub-Sec. (1) of that section which conferred such a power. Apart from the above provisions in Sec. 297 there is Sec. 77 also of the Municipalities Act which makes the provisions of Secs. 71, 73, 74 and 76 to be subject to the provision of any rule. Sec. 76 relates to dismissal of Municipal servants. A power to make rules regarding dismissal of Municipal servants will thus belong to the State Government by virtue of this provision also. It is, however, unnecessary in the present case to enter further into that question in view of the express power contained in Sec. 297 (2) to make such a regulation. Indeed, it was by virtue of this power that the regulation in question was made. 12. In the usual course it might have been necessary, in view of the decision in Malik Anwar Khan's case, 1959 A.L.J. 141 by which I am bound, to refer the question to a larger Bench but this may not be necessary on the view that I am presently taking on the second question arising in connection with this particular ground raised by the petitioner. The petitioner's contention is that he had not been asked to show cause against the action proposed to be taken in regard to him, i.e., he was not asked to show cause against the proposed punishment of dismissal. If, however, it can be held that such action was taken in regard to him his petition will still fail though the above regulation has statutory effect. The relevant facts are that a formal charge accusing him of shortage in the permanent advance was duly delivered to him on 24th June 1957. He was further referred to the justification put forward by him earlier and asked to furnish reply on the charges. He does so on the 10th of July 1957 reiterating the position taken by him earlier. In reply to the requisition whether he proposed to examine any witness or himself he suggested to cross-examine Sri Sharma and Sri Prem Behari Seth. Later, however, declined to do so on the ground that he was a servant of the Board and would not like to cross-examine or participate in the proceedings before the President. On receipt of the above reply no option was left to the President, who under the law was authorised to hold the enquiry, but to proceed in petitioner's default. It is urged that he was bound to give an opportunity to the petitioner to cross-examine Sri Sharma for whose cross-examination he himself had appointed 21st July 1957. The circumstances in which 21st July had been fixed for his cross-examination were noticed earlier and in view of them I do not think the petitioner can justly have any complaint against the course adopted by the President. On the 22nd the President recorded his finding according to which the petitioner's explanation for shortage was rejected. The shortage was admitted and indeed it was for the petitioner to establish the justification pleased by him. There was no irregularity or mistake in the procedure adopted by the President. The notice which the President, therefore, gave to the petitioner on 22nd July 1957 contained his decision that the petitioner's justification had been found to be untrue, and, secondly, that he should show cause why he should not be dismissed from Municipal service. The requisite show cause notice was thus given to him. 13. The circumstance that Sri Sharma was examined on the questionnaire furnished by the petitioner subsequent to the above notice will not alter the position in the least. So far as the enquiry on the charge was concerned it had concluded with the finding and the notice given to the petitioner on 22nd July 1957. By permitting the questionnaire to be answered by Sri Sharma the President committed no irregularity indeed he allowed an opportunity to the petitioner to explain the charge against him. 14. In view of the finding therefore, that a notice to show cause against the proposed punishment was given to the petitioner and he had been served also with the charges and given an opportunity to rebut, this petition cannot succeed. I accordingly dismiss it with costs. Petition dismissed.;