Bishamber Nath Nehru vs His Highness Govt. Jammu and Kashmir and Another

Wazir, C.J.—This is plaintiff's first appeal and arises out of a suit instituted by him against His Highness' Government, Jammu and Kashmir,

through the Chief Secretary and the Municipal Committee Srinagar for declaration that the plaintiff's termination of service was illegal and

ineffectual and that he was not inefficient and negligent in discharging his responsibility in respect of Karan Nagar Scheme and that, therefore, he

was still entitled to hold office as president and member of the Municipal Committee and to recover his salary and all other rights and privileges of

service from the date they were with-held.

The case for the plaintiff briefly stated was that he was working as a High Court Pleader in Srinagar. He obtained training in Municipal

Administration in British India & was selected & appointed as President of Municipal Committee Srinagar with effect from first Baisakh 1982 on a

progressive salary of Rs. 300-20-500 by His Highness-in Council on behalf of the Municipal Committee. The plaintiff was paid from the Municipal

funds and his appointment at first was renewable from term to term but later on at his representation the Council by means of their resolution No. 4

of 5th July, 1926 ordered that the law in question (that stood against the confirmation of the plaintiff) be amended.

Subsequently on the proposal of the then Hon'ble Public Works Minister, His Highness-in-Council sanctioned the amendment of the law and the

confirmation of the plaintiff in his post. The plaintiff continued in service from first Baisakh 1982 to 30th Sawan 1996. The plaintiff-alleged that he

was treated all alone as a Gazetted Officer of the Government and was held subjected to all the limitations and rules and transfers and entitled to all

the rights and privileges of a Gazetted Officer having the same status, cadre and rank as of any other Gazetted Officer of the State and that his

services were not terminable at will. It was averred by the plaintiff that His Highness' Government issued a questionnaire to the then Secretary to

Government-Municipal Branch and to the plaintiff separately for eliciting information on certain matters connected with the Karan Nagar Scheme.

The plaintiff replied to the questionnaire and without giving him any opportunity to clarify the possible misunderstanding in respect of the scheme his

services were terminated by Council Order No. 830-C of 1939, dated 8-8-1939 on the ground that the plaintiff had shown gross inefficiency,

culpable negligence and deliberate evasion of responsibility in respect of the Karan Nagar Scheme and his general work was not satisfactory. The

plaintiff impugned this order as being illegal and ultra vires and hence brought the suit.

The suit was resisted by the defendants on the ground that although the appointing authority was the Government in the case of the President the

plaintiff was never a State employee and was in the employment of the Municipal Committee and was paid out of the Municipal funds; that the

plaintiff by virtue of his being the President was a member of the Municipal Committee and as such used to preside over its meetings and lastly that

the plaintiff's conduct came under inquiry in connection with the Srinagar Extension Scheme of Karan Nagar and after due investigation it was

found that he was guilty of gross inefficiency, culpable negligence-and deliberate evasion of responsibility in respect of Karan Nagar Town

Improvement Scheme and his general work and conduct were found unsatisfactory and therefore his services were terminated by Council order

dated the 8th August 1939 which was communicated to the plaintiff on the 14th August 1939.

Lastly it was averred that defendant No. 1 was competent to terminate the services of the-plaintiff and had done so after due enquiry and on

sufficient grounds and that the Kashmir Civil Service Rules and the Public Servants' Inquiries Act did not apply to his case. The plaintiff was not

entitled to be reinstated and was entitled to-one month's pay according to Municipal Rules.

After going through the plaint and the-written statement the trial Court struck the following issues:

(1) Has the plaintiff's service been legally-terminated or is he entitled to the declaration prayed for?

(2) Is the suit barred by time?

(3) If the answer to the first issue is in favour of the plaintiff, to what damages is he-entitled?

The trial Court of District Judge has not given clear findings in respect of the issues which were raised but he has remarked that

the circumstances in which the plaintiff was removed from his presidentship and from the services were not warranted by the rules and the facts,

and that he was made to suffer unheard because no charge was framed. But this fact, in no case, affects his case so far as his removal is

concerned. He was removed from the office by a competent authority and it can be done so even without framing of charge and the competent

authority was not bound by the rules.

In short the trial Court came to the conclusion that the removal of the plaintiff from service was not illegal. It further found that the plaintiff was

entitled to one month's pay in lieu of notice and, his suit was decreed to that extent.

The Plaintiff has come up in appeal against the decree of the district Judge and it is argued on his behalf that he was a Government servant and

was entitled to all the rights and privileges as such.

The first question for consideration, therefore, is whether the Plaintiff was a Civil Servant under the State, or a Municipal employee. Reference

to para (1) of the Plaint shows that the plaintiff was appointed as President of the Municipal Committee Srinagar from 1-1-1982 by His Highness-

in-Council, on behalf of and for the Municipal Committee Srinagar and that he was paid from the Municipal funds. It is, therefore, clear that

although His Highness or the Government exercised some control over his appointment and dismissal, the plaintiff was essentially a servant of the

Municipal Committee.

Cases are conceivable where a person may be a servant of Anr. though, a third party has the power of appointing or dismissing him. Moreover,

the expression 'civil post' under the State has been held not to include the post held by a person in the service of Anr. local authority. In this view

we are fortified by a ruling of the Patna High Court reported as Chaturbhuj Sahai Vs. Chairman, Board of Directors, Bihar State Co-operative

Bank Ltd., , in which it is held that a person giving up Government service and joining his post under the State Co-operative Bank, Patna, cannot

be said to hold a civil post under the State of Bihar within the meaning of Article 311 of the Constitution.

It is true that the State Government does exercise some control over the Co-operative Bank by virtue of the authority given under some of the

provisions of the Bihar and Orissa Co-operative Societies Act, 1935. There are many enactments under which the State Government exercises

control over statutory bodies or local authorities constituted by statute. That does not, however, mean that persons who serve under those

statutory bodies or local authorities hold civil posts under the State of Bihar within the meaning of Article 311 of the Constitution of India.

In Mangal Sain Vs. The State of Punjab and Another, , it is held that the expression ""civil post under a State"" does not include the post held by

persons in the service of any local authority within the territory of the States.

The mere fact that His Highness, at the representation of the plaintiff, amended the Municipal rules in regard to the term of service of the

President and appointed the plaintiff on a progressive salary would not change the nature of his service. It will not convert his service into a civil

post under the State.

The next question for consideration is whether or not the Kashmir Civil Service Rules are applicable to the case of the plaintiff. A perusal of

Rule 2 of K.C.S. Rules shows that these rules shall apply to all services and to all persons appointed to any service. , 'Service' is defined under

Rule 1 (x) of K.C.S, Rules as under:

'Service' means a group of posts declared by Government to be a service.

Since it has not been shown by the plaintiff that his post or any post under the Municipal Committee was ever declared by the Government to be a

service, the K.C.S. Rules have no application to his case whatsoever. A perusal of Order No. 1328-C of 1939 shows that Kashmir Municipal

Service is not included within the scope and ambit of Kashmir Civil Service Rules. The classification of Gazetted service made in the year 1955

lend support to this view.

The learned Counsel for the appellant relied on note 4 appended to Rule 1-A of Chapter I of Jammu and Kashmir Government Service

Regulations which runs as under:

These rules are also applicable to the case of Municipal employees subject to the following provisions:

and has argued that the Municipal employees are the members of the Jammu and Kashmir Government Service. The mere fact that the rules

contained in the ""Jammu"" and Kashmir Government Service Regulations are made applicable to Municipal employees would not give them the,

status of members of Government service, as the Jammu and Kashmir Civil Service Rules in which the word ""service"" is defined are distinct from

the Jammu and Kashmir Government Service Regulations. We are of opinion that the case of the plaintiff who was a Municipal servant is not

governed by the K.C.S. Rules.

The next question for consideration is whether there were any limitations or restrictions on the power of the appointing authority to terminate

the service of the plaintiff. The counsel for the appellant has contended that after the amendment of Section 16(1) of the Municipal Regulation of

1970 the appellant was employed, permanently and he had to hold his office till the date of superannuation or during his good behaviour. His

service could not be terminated at any time without cause assigned.

The learned Counsel for the appellant has not been able to show that there were any limitation or any restrictions imposed on the power of

termination of service of the plaintiff. The plaintiff' held his office as President' at the pleasure of the then Government and there appears to be no

restriction by statute or by a contract imposed on the power of the Government to terminate his services.

The rule that a servant holds offce at the pleasure of the master has its origin in the Latin phrase 'durante bene placito' meaning that"" the tenure of

office of a civil servant except where it is provided by statute can be terminated at any time without cause assigned. A careful study of the

constitution of the State at the time of the termination of the plaintiff's services (Act No. I of 1991) and the Municipal Act of 1990 of which the

plaintiff was the creature will show that there were no restrictions on the power of Lamination of plaintiff's services.

The learned Counsel for the appellant has referred to Section 12 of the Municipal Act which reads as under:

(1) The Government may by notification, remove, any member of Committee:

(a) If he refused to act, or becomes, in the opinion of the Government, incapable of acting, or has been declared a bankrupt or an insolvent or has

been convicted of any such offence or subjected by a criminal court to any such order as implies, in the opinion of the Government, a defect of

character which unfits him to be a member;

(b) If he has been declared by notification to be disqualified for employment in, or has been dismissed from the public service and the reason for

the disqualification or dismissal is such as implies, in the opinion of the Government, a defect of character which unfits him to be a member.

There are several other grounds mentioned in Section 12 which empowered the Government to remove a member of the Committee and it is

argued that the appellant could not be removed unless his case came within the purview of the grounds which are mentioned in S 12. This

contention appears to be without force. The plaintiff was, not a member of the Municipal Committee and did not enjoy the double status, one as a

member and the other as the President of the Municipal Committee. It will be quite clear from Sections 21 and 22 of the Municipal Act that the

President had no independent existence as a member. Section 21 is as follows:

At every meeting of the Committee the President, if present, or in his absence or during the vacancy of his office, the senior Vice-President,

present, and if there be no President or Vice-President present then such one of their number as the members present may elect, shall preside as

Chairman.

Section 22 reads as under:

Except as otherwise provided by this Act or the rules, all questions which come before any meeting of a Committee shall be decided by a majority

of the votes of the members present, the Chairman of the meeting, in case of an equality of votes, having a second or casting vote.

The President by virtue of his office is a member of the Committee and if he is present in the Committee he acts as a Chairman. In his absence

some one else may be elected as a Chairman to conduct the proceedings of the meeting. It cannot be said, therefore, that the President

independent of his office is a member of the Committee.

Although u/s 146(m) of the Municipal Act the Government had the power to frame rules regarding the procedure to be observed for the

punishment or dismissal of servants of the Committee and as to appeals from orders of punishment and dismissal, no such rules had been framed

by the Government and in the absence of these rules the powers of terminating the services of the President are without any fetters. u/s 16 of the

General Clauses Act which reads as under:

Where, by any Act or Regulation, a power to make any appointment is conferred, then, unless a different intention' appears, the authority having

power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power.

the Government could appoint the presented (sic) it had the power to dismiss him unless there was some other provision by which that power was

curtailed. It has not been shown that any restriction existed on the power of the Government to terminate the services of the President. In AIR

1937 31 (Privy Council) ; and in Secretary of State v. I.M. Lall AIR. 1945 PC 47 (D), it has been held that it is only the breach of statutory

obligations that furnishes the dismissed servant a legal cause of action in a court of law and not the breach of the rules. It is, therefore, clear that the

plaintiff's service was at the pleasure of the Government and the exercise of that pleasure was not subject to any statutory limitations.

The next question for consideration is whether there was any contract by which restrictions were imposed on the privilege of terminating the

service at pleasure. A perusal of the order of appointment of the plaintiff dated the 25th March 1925, Ex. P. 5, the Memo dated 13-5-1920, Ex.

p. 6, Resolution No. 4, dated the 5th July 1926 and Memo dated 2-2-1957 Ex. P. 8 and the order of His Highness thereon do not show that

there was any contract with the plaintiff that his services would run till he attained the age of superannuation or that he would retain office during

good behaviour.

It has been contended that the principles of natural justice would apply to the case of the plaintiff and it was necessary for the Government to

give the plaintiff a chance to meet the charges which were levelled against him in the order terminating his services. At the outset it may be

mentioned that a questionnaire containing 27 questions was handed over to the plaintiff which he had to explain and these questions dealt with the

irregularities which were alleged to have been committed by the plaintiff.

The main questions raised in this questionnaire pertained to the sale of building sites in Karan Nagar before the building of roads, drains and

latrines, absence of sanction in case of transfer in favour of Partap Mill Sham Lal, absence of Government sanction to contract for Rs. 137,434/-,

absence of previous sanction to the plans and estimates of work costing that amount, absence of approval of the tender notice by the Minister,

reasons for non-publication of revised tender, reasons for commencement of work in anticipation of sanction, reasons of extension of three months

period within which the work to the extent of Rs. 30,000 was to be completed, reasons for non-completion of proportionate amount of work by

1939.

The plaintiff was asked to furnish explanation in regard to these questions. The plaintiff submitted his reply which was duly considered and found

unsatisfactory by the Government. It cannot be said, therefore, that the plaintiff had absolutely no chance to explain the irregularities which were

attributed to him. It is true that charges were not formulated against the plaintiff appellant and he was not given opportunity to adduce evidence to

show that he was not responsible for the charges framed against him but such enquiry was not at all mandatory under any, rule and, therefore, the

plaintiff cannot make any grievance of the fact that a proper enquiry has not been made.

At the same time it cannot be said that the, principles of natural justice have been, completely violated. As pointed out above, the plaintiff knew

what the irregularities were attributed to him and he was asked to furnish his explanation in regard to those irregularities. The plaintiff cannot invoke

the aid of the principles of natural justice as they were not found embodied in the State Constitution or any statute in force at the time when the

plaintiff's services were terminated.

In Kishore Singh v. State of Rajasthan AIR 1954 Raj 284 (E), it was held that where an authority exercising administrative powers under a statute

acts within the four corners of the statute, and does hot exceed or abuse its powers, it is unnecessary to introduce into the statute the principles of

natural Justice. Thus, if in a particular type of statute it is thought unnecessary to provide for notice of hearing in an administrative matter, the Courts

should not introduce that in the law on the basis of principles of natural justice.

On page 70 of the first volume of Commentary on the Constitution of India by Basu (third edition) the author observes that there are no

unenumerated or 'natural' rights under our Constitution. By reference to the opinion of Chase J., in Calder v. Bull, (1798) 3 Dall 386 (F), the

learned author says that the Courts have no right to assume the role of a Super-legislature under the guise of any theory of natural rights as in the

United States.

Since the natural rights or the principles of natural justice were not embodied in our Constitution at least before the year 1954 it is not open to

the plaintiff, therefore, to invoke the aid of any such principles. In B. Roshan Lal Goswala Vs. District Board and Another, , where the plaintiff who

was employed as Secretary of District Board, Aligarh,. sued for declaration that he had been wrongly dismissed and was entitledito damages for

wrongful dismissal it was observed as follows:

The right to terminate service of a servant by mere notice without assigning cause is a general right existing in a master under the law of Master and

Servant, and in a case based on contract the servant would have to show that the contract containted a term by which the master gave up such a

right.

It was further observed in this ruling that all officers are held either at pleasure or during good behaviour. Where an office is held at pleasure the

holder thereof is subject to dismissal without any case being assigned. No notice or framing of a charge is necessary and the holder is removable at

the sole discretion of the appointing authority. Where office is held during good behaviour the holder thereof is appointed to all intents or purposes

for life till he reaches the age of superannuation. He may be removed from office only for want of good behaviour. In this case notice of dismissal

should be given and a charge framed and proved.

In Ram Piara Vs. Municipal Committee, Hoshiarpur, , where the services of a Medical Officer were dispensed with without charges and

without an opportunity for explanation it was held as follows:

In the absence of a contractual or statutory provision to the contrary: a right vests in the master to terminate the services of his servant at any time

without giving him any reasons for the same. The right of the sovereign power to terminate the services of an employee are much wider than the

right of a private employer. Officers of local Authorities like public officers, hold office during the pleasure Of the appointing authority. They can be

removed at any time without notice or hearing.

Lastly it may be pointed out that the plaintiff's services were terminated by the Government and the order of the Government was confirmed by

the erstwhile ruler who was an absolute monarch. The supreme powers of His Highness were then an outstanding feature of our Constitution. He

exercised all the powers of a sovereign and discharged his functions as such in matters judicial, executive and administrative. On account of this no

act of His Highness was open to attack in the Municipal Courts of the State. The order of the termination of the Plaintiff's services having been

confirmed by His Highness could not, therefore, be questioned.

Reference in this connection may be made to The State Vs. Amir Chand, , in which it has been held that the erstwhile Patiala State in the above

sense was an independent and sovereign state, and its Ruler, so far as internal matters were concerned, exercised powers identical with that

exercised by the Parliament in England. In his sovereign capacity he had the fullest control over his subjects and their property in his territories and

could pass all kinds of orders. Civil Courts had no jurisdiction to question the legality of that order.

In Ameer-un-Nissa Begum and Others Vs. Mahboob Begum and Others, , it has been held that prior to the integration of Hyderabad State

with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He

was the supreme legislature, the Supreme Judiciary and the supreme head of the executive, and there were no constitutional limitations upon his

authority to act in any of these capacities.

The firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; nay they would override

all other laws which were in conflict with them. So long as a particular firman held the field, that alone would govern or regulate the rights of the

parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed.

The learned Counsel for the appellant has argued that His Highness had confirmed the order passed by the Government terminating the

services of the plaintiff but he had not passed that order himself. It was mere a matter of routine that the word 'confirmed' was put down on the

order passed by the Government.

If His Highness did not agree with the order of dismissal passed by the Government he might not have confirmed it. The fact that he confirmed

the order shows that he agreed with the order proposed by his Government, terminating the plaintiff's services. Appeal against that order was not

provided by any rules and therefore the Government order which was confirmed by His Highness became the order of His Highness and it could

not be challenged in any civil Court.

The learned Counsel for the plaintiff appellant has relied on a ruling of the Bombay-High Court reported as Manekji Naoroji Balsara Vs.

Municipal Commissioner of Bombay, . This relates to a suit by one Manekji Naoroji Balsara v. Municipal Commissioner of Bombay, for wrongful

dismissal. In this case the plaintiff Health Officer's appointment and dismissal were regulated by the city of Bombay Municipal' Act of 1888 and as

according to the officer the dismissal was not in accordance with the rules the order was challenged before the Court.

This case has no application to the present case inasmuch as there were no rules regulating the appointment or the dismissal of the appellant.

Reliance was placed on Gopi Kishore Prasad Vs. State of Bihar, . This case also is of no assistance to the appellant as it was based on Article

311 of the Constitution of India whereas the order dismissing the appellant was passed long before the Constitution came into existence.

In view of the fact that the Kashmir Civil Service Rules did not apply to the case of the plaintiff appellant and that the plaintiffs services were

terminated by the Government which order was subsequently confirmed by His Highness and there being no statutory restrictions or limitations

placed by contract on the powers of the Government to terminate his services, the plaintiff could not succeed in the suit filed by him against the

State. The District Judge has, therefore, rightly dismissed the plaintiff's suit for declaration that the order of dismissal was ultra vires. The plaintiff

was entitled to one month's notice for which a decree has been passed in his favour.

While we dismiss this appeal it will not be out of place to mention here that some hardship has been caused to the plaintiff. Having served the

Municipal Committee for a, number of years the plaintiff has been dismissed without affording him adequate opportunity to meet the Charges

levelled against him which he would have been entitled to if the K.C.S. Rules were applicable to his case.

While the appellant cannot challenge the order terminating his service it is open to the Government, if moved by the considerations that the

appellant served the Municipal Committee for nearly fifteen years and that his services were terminated abruptly at such a stage of life when he

could not take to some other vocation to earn his livelihood, to grant him some gratuity or subsistence allowance to compensate him for the loss

sustained and for the hardship caused to him.

As far this appeal, there is no force in it and we dismiss it without making any order as to costs.

Shahmiri, J.

I agree.