Tilak Raj vs The State of Punjab and others

B.R. Tuli, J.—The Petitioner joined the service of Municipal Committee, Malout, as Octroi Inspector on September 1, 1959, and was confirmed in that post on September 1, 1960. He was later on promoted as officiating Octroi Superintendent. On February 28, 1967, the Municipal Committee passed a resolution, English rendering of which is as under:-

The work of Shri Tilak Raj, Tehbazari Clerk, is unsatisfactory and fifteen days'' notice be served upon him to show cause why his services should not be terminated from the Municipal Committee.

In accordance with the resolution, the President of the Municipal Committee served the following notice on the petitioner:-

In view of resolution No. 241 passed by Municipal Committee, Malout, on 28th February, 1967, I serve you with notice as under:-

That since your appointment as Octroi Inspector your work was not found satisfactory so much so you were warned by the Committee vide its resolution No. 233 dated 23rd November, 1961, for overstay. The Vice President in his report dated 8th October, 1962, came to the conclusion that your behaviour before your immediate boss was rude always.

You also collected evidence to go against the Octroi Superintendent whose case was pending in the Court of Magistrate 1st Class, Gidderbaha. The Committee proving it correct warned you vide resolution No. 247/2 dated 31st October, 1962.

You were again warned by the Committee against another charge of negligence in duty as Octroi Inspector vide its resolution No. 247/3, dated 31st October, 1962.

Besides above charges your work was reported unsatisfactory by the Octroi Superintendent before the President who warned and fined you several times as per record in your service book.

A case of loss of octroi on wine amounting to Rs. 1,700/- is pending against you.

Your work as Librarian was also found unsatisfactory and you, due to neglect of duty, lost library books worth about Rs. 600/- and the question of fixing responsibility is under consideration of the Committee.

Again you were transferred as Tehbazari Clerk and your work on this post too was found unsatisfactory due to negligence on your part for not making efforts for recovery of Tehbazari fee from door to door and has resulted in accumulation of huge arrears, no action whatsoever was taken by you to clear the arrears. This is against Government instructions and infringement of rules by you.

You recovered Tehbazari from Bishamber Lal son of Ghoriya Lal near post office but you did not issue any receipt and adjust in the register. Your explanation along with other such like complaints was called but you failed to tender any explanation. This shows that complaints made against you in this respect are correct and you abused your position as Tehbazari Clerk to obtain undue advantage.

Your case of over-stay during the month of February after 19th February, 1967 till you joined your duty on 4th March, 1967 was again discussed in the meeting of 28th February, 1967 and it has been decided to include this charge against you for marking your absence.

It is clear from the abovementioned facts that your work in all the posts is unsatisfactory and your retention in Municipal Service is against the public interest. You are, therefore, directed to show cause in writing as to why your services be not terminated in respect of above charges against you which have duly been proved against you. In case you refuse or fail or omit to do so within a period of 15 days on receipt of this notice, it will be presumed that you have no explanation to make and further proceedings would be taken in the matter.

The petitioner submitted a reply to. that show-cause notice on April 12, 1967, and on April 30, 1967, the Municipal Committee passed a resolution to the following effect:-

The reply to the show-cause notice submitted by Shri Tilak Raj is not satisfactory. The charges against him have been proved. It is against the public interest to allow such an official in the service of the Committee any further. His dismissal from the service of the Municipal Committee, after giving him one month''s salary, is hereby approved.

The petitioner made a representation to the Deputy Director, Local Bodies, Ludhiana, on October 27, 1967, but prior thereto the dismissal of the petitioner had come to the notice of that officer who wrote a letter to the President, Municipal Committee, Malout, on May 27, 1967, wherein the following item occurred:-

Item No 15-The services of Shri Tilak Raj Tehbazari Clerk have been terminated after giving him one month s notice after service of charge sheet which does not seem to be proper. The full facts of the case may please be explained and the rules under which his services have been terminated may be communicated.

The Municipal Committee sent its explanation and the representation of the petitioner was rejected by letter dated July 12, 1968. The petitioner then filed the present petition challenging the order of his dismissal to which separate written statements have been filed by respondents 1 and 2 and respondent 3.

The petitioner has pleaded that after serving a charge-sheet on him and receiving his reply no enquiry was held. The reply on behalf of the Municipal Committee is that enquiry was held and the petitioner was afforded full opportunity but it is not stated how and by whom that enquiry was held and what opportunity was given to the petitioner. It appears that Municipal Committee passed the resolution dated February 27, 1967, and in pursuance of that resolution the President served a charge-sheet detailing nine charges which had not been considered by the Municipal Committee. The petitioner sent his reply to the show-cause notice and on receipt thereof the order of his dismissal was pissed. Section 39(1) of the Punjab Municipal Act, 1911, reads as under:-

39(1). Subject to the provisions of this Act and the rules and bye-laws made thereunder, a committee may, and if so required by the State Government shall, employ other officers and servants, and may assign to such officers and servants such remuneration as it may think fit, and may suspend, remove, dismiss, or otherwise punish any officer or servant so appointed.

According to this section, a Municipal employee can be dismissed by following the procedure laid down in the rules framed under the Act and the bye-laws made by the Municipal Committee, Rule 3 in Part IV of the rules, relating to the dismissal of Municipal employees framed by the State Government u/s 240 of the Punjab Municipal Act prescribes the procedure for dismissal in the following terms:-

A definite charge shall be framed in writing in respect of each offence alleged against the officer or servant sought to be dismissed. The charge shall be explained to the accused and the evidence in support of it and any evidence that the accused may adduce in his defence shall be recorded in his presence and his defence taken down in writing. Each of the charges framed shall be discussed and a finding shall be recorded on each charge.

This procedure has not been followed and, therefore, the order of dismissal of the petitioner is contrary to the statutory rules and is, thus, without jurisdiction.

An objection has been raised in the written statement that the petition under Article 226 of the Constitution is not maintainable by the petitioner who is a dismissed employee against the Municipal Committee for enforcement of contract of service. There is no merit in this submission. The Municipal Committee, Malout, is a statutory body created under a statute and is governed by the provisions of the Act, the rules and the bye-laws made thereunder. If a violation of the statutory rules is made, it is open to this Court to issue a writ of mandamus, directing the Municipal Committee to act in accordance with the statutory provisions. In Civil Appeal No. 612 of 1966, Praga Tools Corporation v. C.A. Inamual CA 612 of 1966 decided on February 2, 1969, their Lordships of the Supreme Court held:-

A mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligation owed by a company towards its workmen or to resolve any private dispute.

In Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, their Lordships enumerated the following exceptions to the normal rule that no direction to enforce a contract of personal service will be granted:-

(1) A public servant who has been dismissed from service in contravention of Article 311.

(2) Reinstatement of a dismissed worker under industrial law by Labour or Industrial Tribunals.

(3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.

The case of the petitioner is fully covered by exception (3) enumerated above. The present petition is, therefore, maintainable.

No other point has been argued.

For the reasons given above, this petition is accepted with costs and the order of the Municipal Committee. Malout, dismissing the petitioner from service is hereby quashed. The petitioner shall be deemed to have remained in service throughout. The costs are to be paid by respondent 3. Counsel''s fee Rs. 100.00.