SHARAT CHANDRA MISRA Vs. ANTARIM ZILA PARISHAD, HAMIRPUR AND ANOTHER

JUDGEMENT

(1.) This petition by Sri Sharat Chandra Misra, under Art. 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 Vs. 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:-

(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 Sec. 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 Sec. 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:-