JAIL AHMAD Vs. MUNICIPAL BOARD, HARDOI AND OTHERS

JUDGEMENT

(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. 40.00 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.

(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:-

(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.