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The Municipal Borough of Dhulia Vs. Ramchandra Bapuji Kale - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai
Decided On
Case NumberFirst Appeal No. 6 of 1932
Judge
Reported inAIR1938Bom137; (1937)39BOMLR1269
AppellantThe Municipal Borough of Dhulia
RespondentRamchandra Bapuji Kale
Excerpt:
bombay municipal boroughs act (xviii of 1925), section 33-bombay district municipal act (iii of 1901), section 182-dhulia municipal rule 188-municipality-chief officer-reduction of chief officer-resolution of reduction not passed by requisite majority-resolution ultra vires-wrongful dismissal of chief officer-damages-measure of damages.;section 33 of the bombay municipal boroughs act, 1925 (corresponding with section 182 of the bombay district municipal act, 1901) provides, inter alia, that no chief officer of a municipality shall be removed from office, reduced or suspended unless by the votes of at least two-thirds of the whole number of councillors. the plaintiff was the chief officer as well as engineer of the defendant municipality drawing a salary of rs. 350 per month and serving.....broomfield, j.1. this is an appeal from a decree of the first class subordinate judge of dhulia allowing the plaintiff-respondent's claim against the dhulia municipality for damages amounting to rs. 9,500 for wrongful dismissal.2. the facts are set out in full detail in the judgment of the learned first class subordinate judge. for the purposes of this appeal they may be stated very shortly. the plaintiff was appointed chief officer and engineer in the service of the municipality in april, 1922, these two posts having been comfebined with the sanction of government. in february, 1927, the municipality resolved to separate the posts and to have a chief officer on rs. 200 rising to rs. 300 a month and an engineer on rs. 150 rising to rs. 250 a month. the plaintiff at that time was drawing.....
Judgment:

Broomfield, J.

1. This is an appeal from a decree of the First Class Subordinate Judge of Dhulia allowing the plaintiff-respondent's claim against the Dhulia Municipality for damages amounting to Rs. 9,500 for wrongful dismissal.

2. The facts are set out in full detail in the judgment of the learned First Class Subordinate Judge. For the purposes of this appeal they may be stated very shortly. The plaintiff was appointed Chief Officer and Engineer in the service of the Municipality in April, 1922, these two posts having been comfebined with the sanction of Government. In February, 1927, the Municipality resolved to separate the posts and to have a Chief Officer on Rs. 200 rising to Rs. 300 a month and an Engineer on Rs. 150 rising to Rs. 250 a month. The plaintiff at that time was drawing pay as Chief Officer and Engineer at the rate of Rs. 350. The separation of the two posts was not at once given effect to. But on April 12, 1929, the Municipality passed a resolution in the following terms :-

The posts of Chief Officer and Engineer be separated, and the President should call for advertisements for the same, on the scale of pay already fixed, and should promptly give a notice of the proper period to the present Chief Officer.

The plaintiff was given his choice of the two separate posts now to be formed, but he refused1 to accept either contending that the resolution of the Municipality was ultra vires.

3. The Act in force at the time was Bombay Act XVIII of 1925, the Bombay Municipal Boroughs Act, and Section 33 of that Act provides in Clause (2) 'No Chief Officer shall be removed from office, reduced or suspended unless by the votes of at least two-thirds of the whole number of councillors.' The resolution of April 12, 1929, was passed by a majority of fifteen to eleven members out of those present. The whole number of councillors of the Municipality was apparently thirty-one. Therefore there was not a majority of two-thirds -of the whole number of councillors as required by the section.

4. The plaintiff was given a further opportunity of accepting the offer made to him, and as he still refused even to give a reply, the President of the Municipality wrote him a letter in September, 1929, in which he was informed that ' necessary advertisements inviting applications for the two separate posts of Chief Officer and Engineer are being invited and his (i.e. plaintiff's) services will have to be dispensed with from December 31, 1929, or any subsequent date as may be fixed hereafter.' On January 9, 1930, the President wrote saying that the two posts of Chief Officer and Engineer had been filled with effect from February 1, 1930, and that the plaintiff should hand over charge to them. The plaintiff did hand over charge of his office on January :31, 1930, under protest. The suit from which this appeal arises was filed on July 17, 1930, claiming, as I have said, Rs. 9,500 damages, this being the amount of pay and gratuity which the plaintiff would have earned if he had continued to hold the combined post of Chief Officer and Engineer up to the age limit of fifty-five years. The claim has been decreed by the trial Court.

5. The most important question in the appeal is whether the plaintiff has any right of action against the Municipality. The action for damages for wrongful dismissal is ordinarily based on contract, i.e. a breach of the contract to employ. But the plaint in the present case says nothing about contract. The basis of the action, according to the plaint, is not the breach of a contract but: the removal of the plaintiff contrary to the provisions of the Municipal1 Acts. It is true that the plaintiff describes his service as permanent service, but it is clear both from the plaint and from the correspondence prior to the suit that the plaintiff would not have considered that he had any grievance if the resolution removing him had been passed by the requisite majority of the councillors. The learned trial Judge held that plaintiff was entitled to the relief claimed by reason of the breach of the provisions of the Act, because his removal from office was therefore unlawful. The conditions requisite for a contract binding on the Municipality are laid down in Section 40 of the Act of 1901, the Bombay District Municipal Act III of 1901, which was in force when the plaintiff was appointed. It is there provided that in the case of certain contracts, including every contract the performance of which cannot be completed within a year, the contract must be in writing and must be signed by the President or Vice-President and two other councillors and sealed with the seal of the Municipality. The only writing here relating; to the appointment of the plaintiff is the letter, exhibit 26, addressed to him. by the President.

6. The learned Advocate General who appears for the respondent has not seriously contended that there is any binding contract on which the plaintiff can rely. He supports the view taken by the learned trial Judge, viz., that: the plaintiff has a right of action because he was removed from office in contravention of the provisions of Section 33 of Act XVIII of 1925.

7. The first point to be considered in that connection is whether the provisions of that section have in fact been contravened. Mr. Thakor who appears for the appellant argues that, as the combined office held by the plaintiff was abolished, he was not removed from office nor reduced within the meaning; of Section 33, But the effect of the Municipal resolution undoubtedly was that he was removed from the office held by him and relegated to an inferior position, that is to say, if he had accepted the offer of one or other of the separated posts. The language of the section is wide enough to cover a case like the present where the removal or reduction is not by way of punishment but is the result of a separation of offices formerly combined. There has been therefore in my view a breach of the provisions of this section.

8. Then the question arises whether this contravention of a statutory provision gives plaintiff a right of action. Mr. Thakor says No. and for this proposition he mainly relies on a case recently decided by the Allahabad High. Court, Roshan Lal Geswala v. District Board, Aligarh I.L.R. (1935) All. 40 The circumstances there were in many respects very similar to those of the present case. A District Board had passed! a resolution abolishing the posts of Secretary and. Engineer and creating a new combined post. The services of the Secretary were dispensed with and the Engineer was appointed to the new post. The resolution was not passed by the majority of votes required by Section 71 of the local Act in question, which is similar to Section 33 of our Bombay Act of 1925. It provides :

A Board may by special resolution punish or dismiss its Secretary, provided (a) that such resolution is passed by a vote of not less than two thirds of the total number of members of the Board for the time being, or (b) that it is passed by a vote of not less than one-half of the total number of such members and is sanctioned by the local Government.

A suit by the ex-Secretary against the District Board and the Secretary of State for a declaration that the resolution was void and his dismissal wrongful and for damages was held not to be maintainable. The view taken by the Court was that a District Board servant is under the general disability of other public servants in that he holds his office during pleasure and he cannot sue the District Board or the Secretary of State in a Court of law for wrongful dismissal. Any irregularities or non-compliance with rules in connection with the order of dismissal of a public servant, whose office is terminable at pleasure, would not, it was held, give him a cause of action or right of suit in a Court of law, either for damages or specific performance or an injunction. The only remedy would be to appeal to the local Government under a provision of the local Act in question allowing such an appeal.

9. Now there is no doubt as to the position of Crown servants. The general rule applicable to them is that they hold office during His Majesty's pleasure and may be dismissed without notice and without reason assigned without having any cause of action in the Courts. That matter has recently been considered by this Court in Secretary of State for India V. Yadavgir I.L.R. (1935) Bom. 42 : 37 Bom. L.R. 931. In my judgment in that case I said after referring to the authorities (p. 48) :

The general rule is that a Government servant holds office during pleasure and is liable to be dismissed at any time without notice and without reason assigned. The rule may be subject to exceptions but they must be statutory exceptions... It also appears from these cases that if the general rule applies, then dismissal cannot give rise to an action for damages.

10. But with all deference to the learned Judges who decided Roshan Lal v. District Board, Aligarh, I am by no means satisfied that this general rule applies in its entirety to other public servants not in the employment of the Crown. Mr. Justice Bennet has cited the opinion expressed in Aiyangar's Law of Municipal Corporations in British India to the effect that there is no material difference between Crown servants and other public servants in this respect, and he says that this opinion is supported by various authorities which he refers to at the foot of p. 48 of the report. But the only case expressly referred to in this connection is Notley v. London County Council. [1915] 3 K.B. 580. That was an action brought by a District Surveyor in the employment of the London County Council for a declaration that a resolution of the Council purporting to dismiss him from his office was illegal and invalid and void. It was not a claim for damages for wrongful dismissal. The relevant Acts provided that District Surveyors are to hold office ' at the pleasure of' the Justices and the Council were empowered ' by order, at their discretion to dismiss or suspend any District Surveyor.' That being the position Mr. Justice Rowlatt said (p. 584) :-

Now, the plaintiff was appointed to an office the tenure of which is indicated by those words. In my judgment the words perfectly clearly denote and describe an office held at the pleasure of this body-the Metropolitan Board of Works as it was then, the London County Council as it is now-just as clearly as did the words in the Act of 1844 ' during the pleasure of the justices.' Of course, if there were anything in the Act of 1855 beyond the words I have referred to which pointed to some tenure, such as a freehold tenure or tenure dum se bene gesserit, or subject to any notice, or anything of that kind, I should very readily construe the words ' at their discretion,' &c.; and' may dismiss' as being subject to those terms and should hold that the defendants were, in exercising their discretion, to carry and work out that tenure and give effect to it. But I cannot find any trace of anything of the sort.

The plaintiff accordingly was non-suited, but the case hardly supports the view that the employees of a local body are in the same position as Crown servants and therefore removable at pleasure. The decision is not based upon any such rule, but simply on the words of the relevant statutes which, as the learned Judge hald, indicated that the plaintiff in that case held office merely at the pleasure of the local body.

11. The learned Advocate General has also referred us to another English case, Bbrown V. Dagenham Urban District Council (1929) 45 T.L.R. 284. This is a judgment of Mr. Justice McCardie. The facts were that the plaintiff in that case held two offices under an Urban District Council. He was a clerk and as such was appointed under Section 189 of the Public Health Act of 1875. He was also Assistant Overseer and as such his appointment was governed by Section 5(1) of the Local Government Act of 1894. The relevant words of the former provision are : 'Subject as aforesaid, every such officer and servant appointed under this Act shall be removable by the Urban authority at their pleasure.' Section 5 of the Local Government Act, 1894, gave the local body the power of appointing and revoking the appointment of an Assistant Overseer. The plaintiff claimed damages for wrongful dismissal in respect of both appointments, and Mr. Justice McCardie held that these claims were untenable, but he so held, not by reason of any general rule applicable to persons employed by local bodies similar to the rule which applies to Crown servants, but by reason of the language of the enactments in question which indicated service merely at the pleasure of the local body and the absence of any restriction on the power to dismiss at pleasure.

12. The learned Judge says at p. 288 of the report:

The question, then, is whether Section 189 has conferred upon district councils a power of dismissal similar to that possessed by the Crown-a power of dismissal, moreover, which cannot be negatived or impaired by any contract of service, whether under seal or not. I confess that I should myself have thought that the basis on which the powers of the Crown might be rested was a basis somewhat inapplicable to local corporate bodies such as the present defendants,....

But he went on to say that in view of the words ' at their pleasure ' in Section 189 it: must be held that the Legislature intended that the employees of the local body should be in the same position as Crown servants. He took the same view of Section 5 of the Local Government Act of 1894 as the power of revocation was given thereby in the widest terms and no limitation was placed upon it. He held that there could be-no real distinction between the power to dismiss at pleasure under Section 189 of the Public Health Act and the power to revoke an appointment given by Section 5. In view of these provisions therefore he held that the defendants could dismiss the plaintiff at any time without notice and without cause. But on the question of the maintainability of the action the learned Judge says this at p. 287 :

Having regard to the constitution, powers and obligations of such local bodies as urban district councils under the Public Health Acts, and having regard also to sound legal principle and the dictates of good sense and convenience, I hold that an official, such as the plaintiff, is entitled to bring an action in the Courts....

No doubt that expression of opinion was in respect of the plaintiff's claim for accrued salary. But there is nothing anywhere in the judgment which lends support to the proposition that an action by a public servant, who is not a Crown servant, cannot lie, even where he claims damages for wrongful dismissal.

13. The learned Advocate General argues, and I think with force, that he is entitled to rely on this decision as being in his favour, because a statutory provision, such as we have in Section 33, that an officer can only be removed by vote of two-thirds of the councillors, is a limitation of the right to dismiss at pleasure. The Municipality normally acts by a bare majority of votes. The Chief Officer cannot be removed from office except by a two-thirds majority of the whole body of councillors. The provisions of Section 33 and of the corresponding section of the Act of 1901, Section 182, may reasonably be said to affect the tenure of the post in the sense in which that expression is used by Mr, Justice Rowlatt in Notley V. London County Council, and to give the Chief Officer a right to hold his office until removed from it in the manner prescribed.

14. Even if the employees of local bodies were to be regarded as being on the same footing as Crown servants, the general rule that a Crown servant may be dismissed at pleasure is, as I have said, subject to statutory exceptions. There must be at any rate this difference between the position of servants of the Crown and other public servants that it is not necessary in the case of the latter that the exception to the general rule should be contained in the Government of India Act. It is sufficient if there is any provision in the statute governing the appointment of the officer in question which takes the case out of the rule. In my opinion Section 182 of the Act of 1901 and Section 33 of the! Act of 1925 would take this case out of the general rule, even if it did apply to the plaintiff, and would prevent him being removed from office except in accordance with the provisions of those sections.

15. In Roshan Lal Geswala v. District Board, Aligarh I.L.R. (1935) All. 40. Mr. Justice Bennet has referred to Wright v. Zetland (Marquis). [1908] 1 K.B. 63. That was a case relating to a school in respect of which a scheme had been framed under the Endowed 'Schools Act. The scheme contained a provision that Assistant Masters might be dismissed by the Head Master at his pleasure, and the action was brought by an Assistant Master who had been dismissed by the Head Master. In the course of the judgment there is a discussion of Clause 30 of the scheme which dealt with the case of the Head Master and provided that :

The governors may at pleasure dismiss the head master without assigning cause, after six calendar months' written notice given to him in pursuance of a resolution' passed at two special meetings held at an interval of not less than fourteen days,. such resolution being affirmed at each meeting by not less than two-thirds of the governors present and voting on the question.

Lord Justice Vaughan Williams held that in spite of these provisions in Clause 30' the dismissal even of the Head Master might be regarded as a dismissal at pleasure or at will, in the widest sense of those words. He says (p. 69) :

the provision that dismissal at pleasure shall be carried out or expressed by a resolution passed at two special meetings is not inconsistent with dismissal ' at pleasure,' any more than if it was said that the dismissal must be in writing or under seal. It is a mere mode of the expression of the pleasure or will of the: governors without assigning cause that the head master shall be dismissed.

And again (p. 69) :

The governors cannot the less dismiss 'at pleasure' because their pleasure has to be expressed by steps involving a lapse of time. This seems to me to get over all difficulties based on the suggestion that the words at pleasure' in Clause 30 of the scheme are inconsistent with the words of Section 22 of the Endowed Schools Act,. 1869, which enacts that the scheme 'shall provide for the dismissal at pleasure of every teacher and officer in the endowed school to which the scheme relates, including the principal teacher.

16. Since, as I have said, the action was brought by an Assistant Master who had been dismissed by the Head Master, the discussion of Clause 30 of the scheme was really obiter. Apart from that, however, I can see nothing in the judgment of the learned Lord Justice to suggest that he held that the provisions in the scheme as to notice and as to a majority and so on would not be binding or that the pleasure or will of the governing body could lawfully be expressed otherwise. All that he said was that the dismissal of a Head Master in accordance with the provisions of Clause 30 might be regarded as legally dismissal at pleasure. It was not held that he could lawfully be dismissed except as provided in the scheme.

17. Mr. Justice Bennet in Roshan Lal v. District Board, Aligarh, says that this ruling shows that even where provisions exist, as in Section 71 of the District Boards Act, that a special resolution and a two-thirds majority are required, the dismissal is still a dismissal 'at pleasure' because no cause has to be assigned for the dismissal. That no doubt is true. But it is only true in the sense which I have indicated. The learned Judge goes on to say ' And where the office is held ' at pleasure' then on the principle of Shentm v. Smith [1895] A.C. 229, no action will lie for an order of dismissal which is made not in accordance with the rules.' I have referred to Shenton v. Smith in Secretary of State for India v. Yadaugir. I.L.R. (1935) Bom. 42 : 37 Bom. L.R. 931, What was held there was that the general rule that a government servant can be dismissed at the pleasure of the Crown or Government will apply unless the plaintiff can point to some statutory exception, and that service regulations dealing with such matters as suspension and dismissal of a government servant do not amount to such an exception nor constitute a contract between the Crown and its servants. At p. 234 of the report of this case their Lordships say :

They consider that, unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law-suit, but by an appeal of an official or political kind.

It was presumably this passage to which Mr. Justice Bennet referred. But the rule is expressly stated to apply ' unless in special cases where it is otherwise provided.

18. As far as I can see the cases of Wright v. Zetland (Marquis) and Shenton v. Smith do not support the proposition based upon them in Roshan Lai V. District Board, Aligarh, that the employee of a local body has no right of action in case he is dismissed from office or removed from office in contravention of provisions such as those in Section 33 of Act XVIII of 1925. It cannot be denied, I think, that the provisions in question are binding on the Municipality. The argument of the learned Counsel for the appellant in this case that no suit lies in case of breach of the provisions would really make them almost a dead letter. No right of appeal is provided under our Municipal Acts such as is provided in the Act dealt with in the Allahabad case. There is nothing but Section 214 of Act XVIII of 1925 which gives the Collector power to suspend the execution of municipal orders or resolutions, and this provision is one which is not likely to be put in force in favour of an individual. The removal of plaintiff contrary to the provisions of Section 33 must be regarded as an infringement of the1 plaintiff's right to hold office unless or until he is lawfully removed. It cannot be denied that the infringement pf his right has caused him damage. There is therefore ktjuria and damnum. It seems to me to be unreasonable to hold that under the circumstances the plaintiff has no right of action. Section 206 of the Act contemplates suits against the Municipality ' for anything done or purporting to have been done in pursuance of the Act.' The section requires previous notice in writing I of the intended suit and prescribes a period of limitation. It is not necessary in my opinion that a right of suit should be expressly given by statute. The maxim ubi jus ibi remedium may fairly be applied.

19. As I have mentioned Section 206, I may say that it was contended on behalf of the appellant that the plaintiff's suit was barred by limitation because it was not brought within six months of the municipal resolution finally separating the two offices or within six months of the intimation given to the plaintiff that he would have to hand over charge. But I think until the plaintiff was actually forced to vacate his office by the appointment of his successors he was entitled to say that he was not actually damnified. The cause of action for the suit did not arise until he handed over charge.

20. I hold, therefore, that the suit is competent and that the plaintiff is entitled to recover damages from the defendant for the injury sustained by him by reason of the non-compliance with the statutory provision contained in Then there is the question of the measure of damages. The learned Advocate General has frankly conceded that the claim to gratuity cannot be sustained. The Municipality has made rules under Section 46 of Act III of 1901 Rule 197 provides that the Municipality may grant a gratuity on retirement to a municipal officer or servant who has completed five years' service, But the grant is entirely at the discretion of the Municipality. It cannot be claimed as of right. The plaintiff's claim to salary up to the time of his reaching the age of fifty-five is based upon Rule 188 which is in these terms;

Subject to Section 182 of the Act every Municipal officer or servant is liable to discharge at one month's notice, but, except with the concurrence of the President and the sanction of the Municipality, no officer or servant whose salary exceeds Rs. 15 shall be discharged before he has reached the age of 55.

Section 182 of the Act of 1901 is the section to which I have frequently referred providing that the Chief Officer shall not be removable from office except by a certain majority of the whole number of councillors. Mr. Thakor suggested that as Rule 188 is made subject to Section 182 it follows that the provision as to one month's notice does not apply in the case of a Chief Officer. I cannot accept that contention. The rules under Section 46 must not of course be inconsistent with the Act, but the rule to the effect that an officer or servant is liable to discharge at one month's notice is not in any way inconsistent with the provision in Section 182 that the Chief Officer is not removable from office unless by a certain majority of votes. The effect of Rule 188 and Section 182 read together seems to me to be that a Chief Officer is entitled like any other municipal officer or servant to one month's notice before discharge. But his position differs from that of other municipal officers and servants in this that he cannot be discharged except in the manner provided by Section 182 or Section 33 of the present Act.

21. But in view of the provisions of these Sections 182 and 33 it is impossible in my opinion to accept the plaintiff's claim, which has been allowed by the learned trial Judge, that he has a right of serving until he reaches the age of fifty-five. It is not a case of service during good behaviour. It is a case of service at the will of the Municipality, the only limitation being that the will of the Municipality must be expressed in the manner provided by Section 182 and Section 33, and unless the will of the Municipality is expressed in that manner removal from office is unlawful. The learned Advocate General suggested that having regard to the special facts of this case the Court might assume that the plaintiff would not have been removed, apart, that is to say, from the separation of the two offices, and would have been allowed to complete his service up to the age of fifty-five years. In my opinion, however, we cannot make any assumption of that kind in his favour. As it is not to be regarded as a case of service during good behaviour, and as there was nothing to prevent the plaintiff being removed from office at any time by a valid resolution under Section 33, the only damages which he can claim are wages for the period of notice, that is to say, Rs. 350.

22. It was argued on behalf of the appellant that it was the duty of the plaintiff to mitigate the damages and that he ought to have accepted the offer made to him by the Municipality of continuing to serve either as Chief Officer or Engineer on a lower rate of pay. In that connection we were referred to Brace v. Calder [1895] 2 Q.B. 253, and to Payzu Ld. v. Saunders. [1919] 2 K.B. 581. As the learned Advocate General points out, however, the offer of employment was made before the breach of the provisions of Section 33 had actually taken place. No offer was made after the cause of action for damages had arisen. Under the circumstances I think that the claim for damages cannot be said to be affected by the plaintiffs failure to accept the offer made to him. But for the reasons I have given he is only entitled to wages for one month.

Wassoodew, J.

23. As the question involved in this appeal is of great importance to municipal servants in this presidency, particularly officers in the higher grade as Chief Officer, Health Officer and Engineer, I should like to state as briefly as possible the foundation for the conclusion I have reached on the question as to what is the precise position of those servants vis-a-vis the Municipality. Are they liable to be dismissed at the will of the Municipality without assigning cause in the ordinary course? In this particular case we have to deal with the position of the plaintiff who held the combined post of Chief Officer and Engineer in the Municipality. It is not disputed that there is no written contract of service which could be binding on the Municipality in an action for damages for its breach. Essentially this is an action for damages on account of injury sustained by the wrongful act of the Municipality in terminating the services of the plaintiff in contravention of the rules in force which regulated his position in the matter of removal at the time of his appointment and at the time of his actual removal. The relevant provisions in the Municipal Act have been just discussed by my learned brother and I should not like to traverse over the same ground again except where necessary. I shall endeavour to show that those provisions are clearly indicative of the tenure of the office of the Chief Officer. It is clear that they do not create a tenure of office during good behaviour.

24. Section 182 of the Bombay District Municipal Act of 1901 empowered the City Municipality to appoint a Chief Officer, Health Officer and Engineer and to combine those posts. By Clause 2 it was provided that no such officer shall, save with the previous sanction of the Governor in Council, be removable from office unless by the votes of at least two-thirds of the whole number of Councillors. There was also Rule 188 in force which was made under Section 46 of the Act. That rule prescribed the conditions on which the liability to discharge such officers depended. The provisions of Section 177 permitted the Governor in Council in his discretion to veto the continuance in any such office of any person selected therefor or appointed thereto by any Municipality, and the tenure of such office by any such person ceased and determined on and from the date on which such order was communicated to the Municipality.

25. It is clear to me that the tenure of service of the Chief Officer can be inferred from these rules and provisions. There is no definite term of employment fixed and the provisions unmistakably indicate that the Municipality can remove him at its pleasure if it were manifested in a particular manner or mode. That is not the same thing as saying that the Chief Officer holds his appointment at the unqualified pleasure of the Municipality in the same way as a Crown servant does. That the procedure laid down in respect to the reduction or removal of the Chief Officer has not been followed is obvious from the proceedings of the Municipality. The question is whether the Municipality, in not expressing its resolve in the manner prescribed by the law in force at the time of the plaintiff's dismissal as embodied in Section 33 of Bombay Act XVIII of 1925, could still be said to have legally removed or reduced the Chief Officer. And if it cannot, the question is whether the plaintiff is without any remedy agamst such an act.

26. The argument that the plaintiff was not in fact removed or reduced so as to invite the application of the provisions of Section 33 of the new Act, that there was merely a splitting up of the office into two separate posts and that the plaintiff was given the option to continue on either of them and that by his refusal to accept that offer he has invited this injury on himself, is in my opinion not well founded. There was obviously the reduction of the post consequent on the resolution in question. That resolution could only be brought into effect by the removal of the plaintiff from the combined post of Chief Officer and Engineer. Therefore the Municipality's act was amenable to the procedure prescribed by Section 33.

27. The learned Counsel for the Municipality has however contended that the Municipality had a right to remove the plaintiff without assigning cause or without observing the procedure prescribed by Section 33 inasmuch as the plaintiff held his office at the pleasure of the Municipality. As an authority in support of that statement we were referred to Roshmt Lal Geswala v. District Board, Aligarh I.L.R. (1935) All. 40. My learned brother has examined that case in great detail. At first sight that case seems to have been decided upon the special provisions of the District Boards Act, 1922, specially Sections 71 and 82. The latter provided a remedy by way of appeal to the Local Government against any wrongful act of the Board. There is no such remedy provided by the District Municipal Act. There are, however, some common features in this case and the case of Roshm Lal Geswala v. District Board, Aligarh, The servants of both the local bodies in question have been statutorily described as public servants within the meaning of the definition of that term in the Indian Penal Code. Upon consideration of that description and the authorities such as Shenton v. Smith [1895] A.C. 229. Wright v. Zetland (Marquis) [1908] 1. K.B. 63, and Notley v. London County Council [1915] 3 K.B. 580. Mr. Justice Bennet held that the principles governing public servants of the Crown applied to servants of local bodies. Whatever justification there may be on grounds of public policy for bringing the servants of local bodies within the statutory definition of public servants, with extreme respect it seems to me difficult to conclude from that circumstance and the authorities that the local bodies enjoy all the prerogatives of the Sovereign governing his relations with his servants. The decisions in cases between the Crown and its servants cannot be regarded as authority in my opinion for disregarding the statutory procedure if any for the dismissal of servants of public bodies. The power of the Crown rests on special prerogative and any contract inconsistent with that prerogative is void on the ground of public policy. In regard to the character of the employment generally of servants of local bodies it was observed in Brown v. Dagmham Urban District Council (1929) 45 T.L.R. 284, as follows :-

I confess that I should myself have thought that the basis on which the powers of the Crown might be rested was a basis somewhat inapplicable to local corporate bodies such as the present defendants,....

28. The prerogative of the Crown rests on the principle rex non potest peccare, but that does not imply that the King is above the law in the unrestricted sense. It implies that the King personally is independent of and not amenable to any other earthly jurisdiction. It is wrong to suggest that the prerogative does extend to the causing of injury. When essentially that prerogative was created for the benefit of the people it cannot be exercised to their prejudice. The Crown has been held not to be bound by a statutory enactment unless the intention of the Legislature to bind the Crown is clear : see Wheaton v. Maple & Co. [1893] 3 Ch. 48 The authorities establish that the prerogative of dismissal of the Crown's servants without cause assigned can be curtailed by statute and is subject to the provisions of the law regulating its powers over the servants. Consequently, it seems to me that if a statute regulates the procedure of dismissal of a public servant the Crown will be bound by it. Accordingly, where, as here, the act complained of is professedly done under the sanction of the law and in the exercise of the power conferred by statute upon the Municipality, the fact that it is done by the Municipality under a supposed delegation of Sovereign authority but in actual disregard of the procedure in that respect laid down by law will not afford justification in a civil Court. Even the Crown in such a case, I think, could not put forward such a plea (see remarks in The Secretary of State for India V. Hari Bhanji I.L.R. (1882) Mad. 273, and Kishen Chand V. The Secretary of State for India in Council. I.L.R. (1881) All. 829.)

29. It is clear that the provisions of Section 182 and Section 33 of Bombay Acts of 1901 and 1925, respectively, were enacted with the object of providing security for the holder of the office against summary dismissal by the ordinary vote of the majority. That rule is conducive to stability in the higher grades of municipal service and is essentially for public good. Any action, therefore, of the Municipality taken in violation of that rule must be regarded as ultra vires. Any other construction, securing immunity from action taken for injury caused by reason of the disregard of those provisions, would be frustrating the object of the Legislature in enacting the safeguard. Undout every resolution passed by a majority of votes is an expression of the will of the public body passing it. But when the law lays down that a resolution upon a particular matter must contain the expression of the plasure or will of a stated number of members of the Corporation, the failure to comply with the provisions of the law will render the expression nugatory and of no consequence. Consequently, in my opinion, the action taken upon that resolution, which was not in accordance with the provisions of Section 33 of the municipal Act of 1925, was wrong and irregular.

30. The rule contained in Section 182 of the Act of 1901 and Section 33 of the act of 1925 created, in the view I take, obviously for the protection of the Chief Officer indicates in clear language the terms of his employment. It undoubtedly gives him the right to remain in service unless and until the pleasure of the Municipality in regard to his removal is regularly and legally expressed. Upon the principle ubi jus ibi remedium the servant must have the means to maintain that right if an injury were caused to him by disregard of that rule. Otherwise it would be a vain thing to have a safeguard without the means of enforcing it. I do not see the force of the argument, therefore, that no action lies against the Municipality even if it violates the rules of procedure laid down by the law of its incorporation. When a right and an infringement thereof are alleged, and a cause of action is disclosed, the civil Courts are bound to entertain the same in the absence of any legal bar. I, therefore, agree in holding that the plaintiff has established the alleged cause of action to recover damages from the Municipality for its wrongful act done in violation of the procedure laid down by statute.

31. With regard to the other questions involved in this appeal, I would express my concurrence with the view expressed by my learned brother and agree with the order proposed by him.

32. Per Curiam. As regards costs, in the lower Court plaintiff will get his costs from the defendant on the amount awarded and pay the rest of his costs himself. Defendant will pay his own costs. The parties will bear their own costs in the appeal. Cross-objections dismissed with costs.


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