Municipal Committee, Amritsar vs Asa Nand

Falshaw, J.—This is an appeal under clause 10 of the Letters Patent against the order of a Single Judge accepting a plaintiff''s second appeal and restoring the decree of the trial Court for a declaration in his favour.

Briefly the facts are that Asa Nand plaintiff was employed by the Amritsar Municipal Committee as an Octroi Moharrir from July 1950 to the 11th of June 1955 when he was dismissed from service by a resolution of the Committee after he had been placed under suspension and an enquiry had been held into certain charges of misconduct levelled against him. After unsuccessfully appealing against his dismissal the plaintiff finally instituted a suit in March 1958 claiming a declaration that the resolution dismissing the plaintiff from the service of the Municipal Committee was illegal, arbitrary, capricious, ultra vires and abuse of the powers vested in the Committee by law and that he should be deemed to be in service from the date of the dismissal.

The plaintiff''s suit was decreed by the trial Court but was dismissed in first appeal.

The question of the truth or falsehood of the charges levelled against the plaintiff does not appear to have been raised at any stage and the plaintiff''s suit was decreed by the trial Court simply on the finding that there was a defect in the procedure which preceded the plaintiff''s dismissal. The Court of first appeal''s finding is that there was in fact no illegality. The illegality found to exist in the procedure by the trial Court and the learned Single Judge was that after the factual report of the inquiring officer had been drawn up holding the charges to be established, no notice was given to the plaintiff to show cause against the order of dismissal which was proposed to be passed against him as required by rule 7(6) of the Civil Service (Punishment and Appeal) Rules.

It appears that in 1950 the Amritsar Municipal Committee passed certain bye-laws which were submitted to the Punjab Government for approval and in consequence a notification dated the 26th of October 1950 was issued the relevant portion of which reads-

The following by-law made by the Municipal Committee, Amritsar, in exercise of the powers conferred by clause (b) of sub-section (1) of section 31 of the Punjab Municipal Act 1911 having been approved by the Governor of Punjab, as required by sub-section (2) of section 31 of the said Act is published for general information and shall come into force within the Municipality of Amritsar on the 15th day of December 1950:

By-Law.

All Municipal Officers and servant shall be governed by Civil Services Rules (Punjab) now in force and as may be subsequently amended in the matter relating to fixation of pay, grant of compensation and other allowances, leave and other conditions of service in so far as the said rules are not inconsistent with the provisions of the Punjab Municipal Act 1911, the Punjab Municipal (Executive Officer) Act 1931 and the rules made by the Provincial Government under the aforesaid enactments as amended from time to time. There was in existence a set of rules framed by the Municipal Committee relating to the procedure for punishment of the municipal, employees including punishment by removal or dismissal from service, and these rules are not exactly identical with the rules on these matters contained in the Punjab Civil Services Rules. They are not very dissimilar and the main difference is that in the Civil Services Rules there was a provision for the issue of a notice, after the conclusion of the enquiry, to the employee in question to show cause against the punishment proposed to be imposed on him in case it was dismissal or removal from service.

The questions which arise are whether this (sic) of the Civil Services Rules was intended to be adopted at all bye the Municipal Committee, and in any case whether this extra provision of a show cause notice prior to the imposition of the punishment of dismissal or removal from service can be said to be inconsistent with the existing municipal rules of procedure. I am inclined to agree with the view of the trial Judge and the Learned Single Judge that questions of dismissal and removal from service can be said, without unduly stretching the English language, to be covered by the words ''other conditions of service'' included in the by law approved by the Governor in 1950. This also is clearly the view of the Punjab Government as can be seen from Ex. P.6, which is a certified copy of a letter from the Secretary Health & Local Government Departments to the Commissioner, Jullundur Division, of which a copy was sent to the Executive Officer of the Amritsar Municipal Committee. This document shows that the Governor reversed an order of the Commissioner, Jullundur Division, dated the 21st of July 1956 dismissing the appeal of a dismissed employee of the Amritsar Municipal Committee named Harbans Singh as the order was not in accordance with the rules. It was pointed out that as the provisions of the Punjab Civil Services (Punishment & Appeal) Rules 1952 had been adopted by the Municipal Committee of Amritsar they had to be applied in addition to the general rules governing dismissal of the municipal employees framed u/s 240 of the Punjab Municipal Act. It was further pointed out that there was no inconsistency between the two sets of rules and that under rule 7(6) of the Punjab Civil Services (Punishment & Appeal) Rules a second show cause notice before passing orders, of dismissal was necessary. Although the view thus expressed by the Government is not necessarily binding on the Courts, I am certainly not inclined to hold that it is incorrect.

A further point was raised on behalf of the appellant-Committee which does not appear to have been raised before the learned Single Judge. This was based on the provisions of section 21(b) of the Specific Relief Act which prohibit the enforcement of contract for personal service, it being argued that even if the plaintiff were to be given a declaration that his dismissal was wrongful or illegal in the sense that proper procedure had not been carried out, he should not be given a declaration amounting to an order compelling the Municipal Committee to take him back into service. Reliance was placed on a decision of the Supreme Court in S.B. Dutt Vs. University of Delhi, , in which the setting aside of an arbitrators award by this Court was upheld. By the award the dismissal of a professor of the Delhi University by the University authorities was set aside and the words used were "The dismissal was ultra vires, mala fide and has no effect on his status. He still continues to be a professor of the University." The objection is taken on behalf of the respondent that this point was not raised before the learned Single Judge nor at any previous stage in the case, but this is not correct as the point has been discussed by the trial Court under the second issue regarding whether the suit is maintainable in its present form and presumably it was not specifically discussed by the learned Senior Subordinate Judge in first appeal because he held that the plaintiff''s suit was to be dismissed into to. I would certainly agree that a contract for personal service cannot be enforced against a Municipal Committee any more than it can against it a University, but the objection of the learned counsel for the respondent that the point ought not to be allowed to be raised at this stage after it had not been raised before the learned Single Judge nor even in the grounds of appeal deserves consideration. It was pointed out that if the matter had been raised before the learned Single Judge the respondent might even at that stage have applied for permission to amend his plaint so as to claim the alternative relief of damages for his wrongful dismissal. The view of the trial Court was that the declaration that the plaintiff was still in the service of the Committee did not amount to an injunction compelling the Committee to take him back in the service since that would have implied that he had been properly dismissed whereas his claim which was upheld was that the procedure adopted for his dismissal being defective he had not been lawfully dismissed and his so-called dismissal was not dismissal at all, and such being the case, the second part of the declaration followed logically from the first.

I do not think that the learned counsel for the appellant-Committee can be precluded from raising a pure point of law which has been raised and discussed in the trial Court and I am inclined to agree that the declaration that the plaintiff should still be deemed to be in the service of the Committee should not have been granted if it was meant to have the effect of reinstating the plaintiff in the service of the Committee, and I am not inclined to accede to the request that the plaintiff even now should be allowed to amend his plaint so as to claim damages for wrongful dismissal, if only on the ground that it would hardly be worth while in view of the fact that the damages recoverable by the plaintiff would at most not exceed two or three months'' salary, his basic salary being only Rs. 50/- in view of the fact that the dismissal has only been held to be bad on account of a defect in the procedure and not on the basis of any finding that the charges levelled against him were at all groundless and unproved. Indeed, as I have already said, this aspect of the matter has not even been investigated in the case. In the circumstances I would accept the appeal to the extent of modifying the declaration granted to the plaintiff and limiting it to a declaration that his dismissal was illegal on account of a defect in the procedure. The parties may be left to bear their own costs.

Tek Chand, J.

I agree.