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Madhav Sakharam Jondhale Vs. the Sangamner Municipality - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberS.A. Nos. 576 of 1961 and 307 of 1968
Judge
Reported in(1973)ILLJ330Bom; 1972MhLJ775
ActsBombay District Municipal Act, 1901 - Sections 46; Bombay Municipal Boroughs Act - Sections 58; Specific Relief Act, 1877 - Sections 21; Constitution of India - Articles 226, 311 and 311(2); Sangamner Municipality Rules - Rules 177 and 217
AppellantMadhav Sakharam Jondhale
RespondentThe Sangamner Municipality
Excerpt:
bombay district municipal act (bom. ill of 1901), section 46(e) -- sangamner municipalities rules. rules 177, 217 -- employee of municipality dismissed in breach of rule of municipality -- whether order of dismissal null and void -- 'employee whether entitled to reinstatement or arrears of salary -- constitution of india. article 311.;a breach of a mere rule or regulation regarding an enquiry into the conduct of a municipal servant before his dismissal from employment does not entail the same consequence as a breach of the provisions of article 311 of the constitution of india. the order of dismissal passed in such circumstances is merely wrongful and not null and void.;if a municipal servant is dismissed in breach of such a rule or regulation, he is entitled to a declaration that the.....chandrachud, j.1. the appellant, who was working as a sanitary inspector in the respondent-municipality, was dismissed from service under a resolution of its sanitary committee dated october 10, 1955. on march 1, 1956, he brought the present suit to challenge the order of dismissal and to recover arrears of salary, damages, etc., on the ground that the order was passed in violation of the principles of natural justice contained in rule 177 of the rules of the municipality and was therefore void and illegal. 2. the trial court gave to the plaintiff a declaration that his dismissal was wrongful. it rejected his contention that the dismissal was void and declined to grant him the declaration that he continued to be in the service of the municipality. instead, it awarded to him a sum.....
Judgment:

Chandrachud, J.

1. The appellant, who was working as a Sanitary Inspector in the respondent-municipality, was dismissed from service under a resolution of its Sanitary Committee dated October 10, 1955. On March 1, 1956, he brought the present suit to challenge the order of dismissal and to recover arrears of salary, damages, etc., on the ground that the order was passed in violation of the principles of natural justice contained in Rule 177 of the Rules of the Municipality and was therefore void and illegal.

2. The trial Court gave to the plaintiff a declaration that his dismissal was wrongful. It rejected his contention that the dismissal was void and declined to grant him the declaration that he continued to be in the service of the municipality. Instead, it awarded to him a sum equivalent to a month's salary in lieu of the period of notice, in view of Rule 217 under which a municipal servant is liable to be discharged at a month's notice. The decree of the trial Court was confirmed in appeal by the learned Assistant Judge, Ahmednagar.

3. This second appeal came up for hearing before Patel and Wagle, JJ. on September 2, 1968 when counsel drew their attention to a conflict of opinion in this Court on the question whether an order of dismissal of a municipal servant in breach of a rule governing the conditions of his service renders the order void so as to entitle the employee to a declaration that he continues to be in service and to arrears of salary or whether it renders the order merely wrongful so as to entitle the employee only to salary in lieu of the period of notice. Expressing themselves in favour of the latter view, the learned Judges have referred for the opinion of the Full Bench the following questions :

'1. Whether a breach of a rule regarding an enquiry into the conduct of a municipal servant before his dismissal from employment entails the same consequence as a breach of provisions of Art. 311 of the Constitution

2. If a municipal servant is dismissed in breach of such a rule, what would be the relief to which he would be entitled ?'

4. Before considering the conflict of decisions, we must look at Rules 177 & 217 of the Sangamner Municipality Rules framed by the respondent municipality. Section 46(e) of the Bombay District Municipal Act, 1901 under which the Rules are framed provides, to the extent relevant, that every municipality shall, after the constitution thereof, make and may from time to time alter or rescind rules, determining, subject to the provisions of S. 184, the mode and conditions of appointing, punishing of dismissing any officer or servant. The relevant part of proviso (a) to S. 46 says that no rule made, or alteration or rescission of a rule made under the section shall have effect, unless and until it has been approved, in the case of a City Municipality by the State Government or in other cases by the Commissioner. Rule 177 reads thus :

'No officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his defence. Any written defence tendered shall be recorded and a written order shall be passed thereon.

(2) Every order of dismissal or confirming a dismissal shall be in writing and shall specify the charge or charges brought, the defence, and reasons for the order.'

Rule 217 reads thus :

'Subject to S. 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.

Explanation :- 'Discharge' does not include 'dismissal.''

5. These rules are identical, word to word, with Rules 182 and 189 of the rules framed by the Borough Municipality of Broach, which fell for consideration before a Division Bench of this Court (Bhagwati and Dixit, JJ.), in Broach Municipality v. Bhadriklal Ambalal (1950) 53 Bom. L.R. 282. In that case, the Chief Officer of the Broach Municipality was dismissed from service in violation of Rule 182 under which he was entitled, before being dismissed, to a reasonable opportunity of being heard in defence. He brought a suit against the municipality for wrongful dismissal and damages, contending that non-compliance with the provisions of Rule 182 vitiated the resolution passed by the municipality. It was held by the High Court that Rule 182, which was a part of the rules alterable from time to time, was in the nature of an administrative rule meant for the guidance of the authorities and was therefore directory and not mandatory in character (pp. 288-289). The High Court came to the conclusion that 'the provisions of Rule 182 being merely directory in character, the only effect of the non-compliance with the terms thereof was to render the resolution of the dismissal of the plaintiff passed by the Municipality ... wrongful and not void and inoperative,' (p. 290).

6. A contrary view would appear to have been taken in Keshavrao Annasaheb Bhonsale v. S. V. Sultanpure, [Special Civil Application No. 1855 of 1958, dated October 4, 1958 (Unrep.)] by a Division Bench consisting of Chainani, A.C.J. and Badkas, J. There, the Chief Officer of a Municipality was dismissed, without being given a opportunity to show cause against the allegations made against him. He filed a writ petition in this Court to challenge the order of dismissal on the ground that it was passed in violation of Rule 5 framed by the municipality under S. 58 of the Bombay Municipal Boroughs Act. This rule is exactly similar to Rule 177 in the instant case and to Rule 182 which was construed in the Broach Municipality case. It was urged on behalf of the municipality that Rule 5 was directory in character and no writ could lie to set aside the order of dismissal, as there was, at the highest, a breach of a contract of service between the petitioner and the municipality. In support of this submission, the municipality places reliance on the decision in the Broach Municipality case. The submission was, however, rejected on the ground that the contract of service was not between private persons but was between the municipality and its employees, that in the Broach Municipality case though Rule 182 was held to be directory, the order of dismissal was held to be wrongful and that rule 5 was 'almost in the same terms as Art. 311(2) of the Constitution.' The learned Acting Chief Justice observed :

'... The Municipality is a statutory body constituted under the provisions of the Bombay Municipal Boroughs Act. It is bound to comply with the provisions of that Act and the rules framed thereunder. It has not observed the provision of rule 5 before passing a resolution dismissing the petitioner from its service. An order can therefore properly be issued to the Municipality directing it to comply with the provisions of this rule, in case it wishes to dismiss the petitioner from its service.'

7. We are of the opinion that, with respect, this Special Civil Application was not correctly decided and that, on principal, the decision in the Broach Municipality case was indistinguishable. The fundamental error of the decision lies in equating the provisions of a rule, directory in character and alterable from time to time, with the constitutional safeguard contained in Art. 311(2). It was also wrong to treat the case of a municipal servant on a footing different from that of a private employee. It is true that the municipality is a statutory, body, but nevertheless, the contract of service between it and its employees is essentially a contract between master and servant, governed by rules which are, in their nature, variable. Such rules are undoubtedly meant to be observed and we expect that public bodies, like the municipalities, will act with a sense of fairness and responsibility and not flout with impunity the wholesome rules which are a reiteration of the principles of natural justice. But we are concerned in this appeal to determine the legal consequence which flows from a non-compliance with such rules. The consequence, as laid down in the Broach Municipality case is only this, that the order of dismissal passed in violation of an administrative rule, directory in character, is wrongful but not void. All that the employee is entitled in such cases is a declaration that the dismissal is wrongful and to salary in lieu of the period of notice.

8. We should have given full reasons for saying this but recent decisions of the Supreme Court relieve us of that task. In fact, the decision in the Broach Municipality case has been expressly approved by the Supreme Court in Ratilal v. Dhari Municipality, : AIR1971SC749 . The appellant in that case, who was working as an officiating secretary of the Dhari Municipality, brought a suit seeking a declaration that his dismissal was illegal and that he continued to be in the service of the municipality. The trial Court held that the dismissal was illegal and void but it dismissed the suit on the ground of limitation. The first appellate Court held that the suit was within time but it affirmed the decree of the trial Court on the ground that the dismissal was merely wrongful and not illegal or void. The High Court of Gujarat confirmed that conclusion in second appeal. All the three Courts, it must be stated, had concurrently held that the plaintiff was not given a proper opportunity to establish his innocence and that the order of dismissal was in breach of Rule 6 of the Rules framed by the municipality, under which the relevant rules applicable to the servants of the State Government from time to time were to apply to the municipal servants in matters of appointment, punishment, dismissal, etc. In that way, Rule 55 of the Bombay Civil Services Conduct, Discipline and Appeal Rules governed the case of the plaintiff. That rule provided, briefly, that no order of dismissal, removal, etc., shall be passed unless the servant concerned was informed in writing of the grounds on which it was proposed to take action against him and he was afforded an adequate opportunity of defending himself. Relying upon the decision in the Broach Municipality case, amongst others, the High Court held that Rule 6 was directory and not mandatory and therefore its contravention rendered the order of dismissal merely wrongful and not void.

9. The decision of the High Court was carried in appeal to the Supreme Court which dismissed the appeal with these observations (p. 750) :

'...... The rule that came up for consideration in Ambalal Patel's case is similar to the one with which we are concerned in this appeal. The interpretation placed by the Bombay High Court on that Rule as far back as in 1950 appears to have been consistently followed by the Bombay High Court and later on by the Gujarat High Court as could be gathered from the judgment of the High Court. Herein we are concerned with an interpretation of a rule under a local law. The concerned High Courts have consistently taken the view that the procedure prescribed under that rule is directory and not mandatory. It will not be proper for this Court to disturb the settled law. In this view, we do not think that we should interfere with the judgment of the High Court.'

10. This decision makes it unnecessary to examine the correctness of the view taken by this Court in Broach Municipality v. Bhadriklal Ambalal (1950) 33 Bom. L.R. 282. But since it was argued that the Supreme Court only refused to interfere with the decision of this Court without expressing its approval of the view therein taken, we would like to draw attention to a few other decisions, including those of the Supreme Court, which leave no doubt that the Broach Municipality case was correctly decided.

11. In Dr. S. Dutt v. University of Delhi : [1959]1SCR1236 , the Supreme Court had to consider the legality of an award holding that the order of dismissal passed by the University of Delhi was ultra vires, mala fide and of no effect and that the appellant continued to be a Professor of the University. Agreeing with the decision of the Punjab High Court that the award disclosed an error on the face of it and had, therefore, to be set aside, the Supreme Court observed (p. 1053) :

'....... There is no doubt that a contract of personal service cannot be specifically enforced. Section 21 clause (b) of the Specific Relief Act, 1877, and the second illustration under this clause given in the section make it so clear that further elaboration of the points is not required.'

12. In S. R. Tewari v. Dist. Board, Agra : (1964)ILLJ1SC , by a petition under Art. 226, an engineer whose employment under a District Board was terminated by the Board after giving him salary for three months in lieu of notice, asked for a writ of certiorari for quashing the resolution of the Board and a writ of mandamus for resorting him in service. The Supreme Court dismissed the employee's appeal and confirmed the judgment of the High Court for reasons with which we are not directly concerned. The following observations, however, made by the Supreme Court are relevant for our purpose :

'...... Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well-recognized exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Art. 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the industrial law, jurisdiction of the labour and Industrial Tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognized. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do.'

After enunciating these principles, the Supreme Court noticed with approval the decision of the Allahabad High Court in Ram Babu v. Divl. Manager, L.I.C. : AIR1961All502 , which took the view that though the Life Insurance Corporation of India is a statutory body, the relations between it and its employees were governed by contract and were purely of master and servant, not subject to any statutory obligation, although the Corporation had duly framed regulations containing conditions of service in the Corporation.

13. In U.P.S.W. Corpn., Lucknow v. C. K. Tyagi : (1970)ILLJ32SC , a warehouseman of the State Warehousing Corporation brought a suit to challenge the order of his dismissal on the ground that the principles of natural justice were violated and that the dismissal was in disregard of Regulation 16(3) framed by the Corporation under the Agricultural Produce (Development and Warehousing) Corporations Act, 1956. He asked for a declaration that the order dismissing him from service was null and void and that he was entitled to be reinstated in service with full pay and other emoluments. In second appeal, the High Court of Allahabad agreed with the findings recorded by the subordinate Courts that the inquiry proceedings were vitiated by reason of violation of the principles of natural justice as also for the reason that they were not in accordance with Regulation 16(3). The High Court confirmed the decree of the first appellate Court that the employee was entitled to reinstatement, on the ground that the rules and regulations framed by the Corporation had statutory force, and their violation would render the order of dismissal void.

14. It was contended on behalf of the Corporation in its appeal before the Supreme Court that even assuming that the principles of natural justice or the provisions of Regulation 16(3) were violated, the employee was, at best, entitled to a declaration that his dismissal was wrongful but neither to reinstatement in service nor to past arrears of pay. It may be mentioned that Regulation 16(3) provided, in so far as is relevant, that no punishment other than that specified in certain provisions shall be imposed on any employee of the Corporation, without giving him an opportunity of tendering an explanation in writing and cross-examining the witnesses against him, if any, and of producing evidence in defence. The Supreme Court accepted the finding of the Courts below that the employee was not entitled to the protection of Art. 311 of the Constitution and it, therefore, proceeded to consider the question whether the enquiry was in accordance with Regulation 16(3). It held that in the inquiry proceedings, there was a clear violation of that Regulation. This finding required an examination of the question as to what relief the employee was entitled to.

15. The Supreme Court examined the judgment of the House of Lords in Vine v. National Dock Labour Board, [1956] 3 All E.R. 939, that of the English High Court in Barber v. Manchester Hospital Board, [1958] 1 All E.R. 322, and of the Privy Council in Francis v. Municipal Councillors [1962] 3 All E.R. 633. In Vine's case, a disciplinary inquiry was held against a registered dock worker by a Disciplinary Committee to which the power to conduct the inquiry was delegated. The employee instituted an action claiming damages for wrongful dismissal and also for a declaration that the order of dismissal was illegal and ultra vires. The House of Lords held that the order of dismissal was a nullity as the Local Board had no power to delegate its disciplinary functions. According to Lord Keith of Avonholm, the case before the House was not one of a

'... straight forward relationship of master and servant. Normally, and apart from the intervention of statute, there would never be a nullity in terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages ..... The scheme gives the dock worker a status. Unless registered, he is deprived of the opportunity of carrying on what may have been his lifelong employment as a dock worker, and he has a right and interest to challenge any unlawful act that interferes with his status.'

16. In Barber's case, the High Court held that the order terminating the plaintiff's employment as a Medical Consultant in a hospital could not be treated as a nullity as his contract with the Hospital Board was one between master and servant. The plaintiff was, therefore, merely awarded damages for breach of contract but no declaration that his employment was not validly determined. The decision in Vine's case was distinguished, because the relationship there between the employer and the employee was not an ordinary relationship of master and servant.

17. In Francis' case, the Privy Council held that the plaintiff's dismissal was merely wrongful and that his remedy lay in a claim for damages. Rejecting the contention that the plaintiff was entitled to an order of reinstatement, the Privy Council observed :

'... when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the Court.'

18. On a review of these English decisions the Supreme Court stated the legal position thus :

'... The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract. This is the normal rule and that was applied in Barber's case and Francis' case. But when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee the latter will be eligible to get the relief of a declaration that the order is null and avoid and that he continues to be in service, as it will not then be a mere case of a master terminating the services of a servant. This was the position in Vine's case.'

19. The Supreme Court then considered its own decisions in Dr. S. Dutt v. University of Delhi and S. R. Tewari v. Dist. Board, Agra, (supra), and summarised the position emerging from those decisions thus :

'... the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are : To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Art. 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.'

Holding that the case before them did not come either under the first or the second category, the Supreme Court proceeded to consider the question whether the employee was entitled to relief under the third category. It held that having regard to the principles contained in the decisions examined by it, the High Court was in error in granting to the employee the declaration that the order dismissing him from service was null and void and that he was entitled to be reinstated in service with full pay and other emoluments. Vaidialingam, J. who spoke for the Court observed (p. 1254) :

'... As pointed out by us, the regulations are made under the power reserved to the Corporation under S. 54 of the Act. No doubt they lay down the terms and conditions of relationship between the Corporation and its employees. An order made in breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory obligation, as was the position which this Court had to deal with in Life Insurance Corporation v. Sunil Kumar : (1964)ILLJ442SC . In the instant case, a breach has been committed by the appellant of regulation 16(3) when passing the said order of dismissal, inasmuch as the procedure indicated therein has not been followed. The Act does not guarantee any statutory status to the respondent, nor does it impose any obligation on the appellant in such matters. ... Under those circumstances, a violation of Regulation 16(3), as alleged and established in this case, can only result in the order of dismissal being held to be wrongful and, in consequence, making the appellant liable for damages. But the said order cannot be held to be one which has not terminated the service, albeit wrongfully or which entitles the respondent to ignore it and ask for being treated as still in service.'

20. This decision of the Supreme Court is, in our opinion, directly in point. It is urged on behalf of the appellant that the decision can be distinguished, because whereas under proviso (1) to S. 46(e) of the Bombay District Municipal Act, 1901, with which we are concerned, no rule made by the municipality can have effect unless and until it is approved either by the State Government or the Commissioner, as the case may be, there was no such provision in the Act with which the Supreme Court was concerned. This submission proceeds on a misconception, because under S. 54(1) of the Agricultural Produce (Development and Warehousing) Corporations Act, 1956, the Warehousing Corporation could make regulations and rules only 'with the previous sanction of the appropriate Government'. In both cases, therefore, the rules and regulations have to be sanctioned by the appropriate authority in order to be effective. We are also unable to appreciate that the fact that the rules are required to be sanctioned by an outside authority is at all relevant on the question in issue. The decision of the Supreme Court proceeds on the basis that no declaration to enforce a contract of personal service can normally be granted and that there are three well-recognised exceptions to that rule. A declaration that the employee continues in service despite the order of dismissal can be granted only if the case falls within those exceptions.

21. In Bank of Baroda Ltd. v. Jewan Lal Mehrotra : (1970)IILLJ54SC , the respondent was a clerk in the Bank of Baroda and after his services were terminated on certain charges he filed a suit for a declaration that the dismissal was null and void. Following the decision in the U.P.S.W. Corpn. case, the Supreme Court held that no declaration to enforce a contract of personal service could be granted, even though the inquiry officer had not observed the principles of natural justice.

22. The last of the decisions in this line of cases is Indian Airlines v. Sukhdeo Rai : (1971)ILLJ496SC . The respondent in that case, who was an employee of the appellant-corporation, brought a suit for a declaration that his dismissal was illegal and void on the ground that the inquiry in regard to the allegations made against him was conducted in breach of the procedure laid down by the regulations made by the corporation under S. 45 of the Air Corporation Act, 1953. It being an admitted fact that the respondent's services were terminated in breach of the procedural safeguards provided in the regulation, the question which fell for consideration was whether the High Court was justified in granting a declaration to the respondent that he still continued in the service of the corporation. At the outset of the judgment, the Supreme Court observed (p. 1829) :

'It is a well-settled principle that when there is purported termination of a contract of service, a declaration, that the contract of service still subsisted, would not be made in the absence of special circumstances because of the principle that Courts do not ordinarily grant specific performance of service. This is so, even in cases where the authority appointing an employee was acting in exercise of statutory authority. The relationship between the person appointed and the employer would in such cases be contractual, i.e., as between a master and servant, and the termination of that relationship would not entitle the servant to a declaration that his employment had not been validly determined.'

The Supreme Court then considered the decision of the House of Lords in Ridge v. Baldwin [1964] A.C. 40, in which Lord Reid had observed :

'... in a case of purely master and servant relationship, the servant is not entitled to say that he was not heard by his master before his dismissal. Such a question of being heard or not can only arise where the authority employing the servant is under some statutory or other restriction as to the kind of contract which it can make with its servants or the grounds on which it can dismiss them.'

In this context, the Supreme Court examined the question whether the relationship between the Corporation and its employee was anything else than that of master and servant and whether the Corporation was under some statutory obligation by reason of which it could not terminate the services of its employee except by complying with such obligation. Distinguishing the decision in Vine's case and relying upon its own decisions in Dr. S. Dutt v. University of Delhi, S. R. Tewari v. Dist. Board, Agra, Bank of Baroda v. Jewan Lal Mehrotra, and the U.P. State Warehousing Corporation Ltd. v. Tyagi, (supra), the Supreme Court came to the following conclusion :

'... The regulations contain the terms and conditions which govern the relationship between the Corporation and its employees. Though made under the power conferred by the statute, they merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with its servants or the grounds on which it can terminate them. That being so, and the Corporation having undoubtedly the power to dismiss its employees, the dismissal of the respondent was with jurisdiction, and although it was wrongful in the sense of its being in breach of the terms and conditions which governed the relationship between the Corporation and the respondent it did subsist. The present case, therefore, did not fall under any of the three well-recognized exceptions, and, therefore, the respondent was only entitled to damages and not to the declaration that his dismissal was null and void.'

23. Like the decision in the U.P.S.W. Corpn. case, this decision is also directly in point, but counsel for the appellant has attempted to distinguish it on the ground that no rules or regulations would appear to have been framed by the Airlines Corporation governing the conditions of service of its employees. In support of submission reliance is placed on the following passage in the judgment :

'It is necessary to observe in this connection that neither the Act nor the rules made under S. 44 by the Central Government lay down any obligation or restriction as to the power of the Corporation to terminate the employment of its employees or any procedural safeguards, subject to which only, such power could be exercised. The reason is that under the scheme of the Act such procedural safeguards and other terms and conditions of service were to be provided for in the regulations made by the Corporation under S. 45.'

This submission is founded on a misconception. It is clear from the judgment that the Corporation had framed regulations governing the terms and conditions of service under it. In the initial statement of facts, the Supreme Court says : 'In a second appeal in the High Court, it was conceded that the regulations applied to the respondent's case, and that the procedure therein laid down for terminating his service was not complied with.' In fact, it is difficult to conceive that an elaborate argument could have been advanced before the Supreme Court or would have been considered by their Lordships if the Corporation had not framed regulations governing the conditions of service of its employees in which case, no question would arise of the breach thereof.

24. Learned counsel appearing on behalf of the appellant has placed reliance on certain decisions of the Supreme Court to which we would like to make a brief reference. In State of U.P. v. Babu Ram : 1961CriLJ773 , it was observed that 'rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, and are to be judicially noticed for all purposes of construction or obligation.' This decision cannot assist the appellant, because in that case the employee was entitled to the protection of Art. 311 of the Constitution and, therefore, the case clearly fell within the exceptions. As observed in the U.P.S.W. Corpn. case, cases which fall under Art. 311 are in a class apart. For the same reason, no reliance can be placed on the decision in State of Mysore v. M. H. Bellary : (1966)ILLJ50SC , in which there was a breach of a statutory rule framed under Art. 309 of the Constitution.

25. The decision in Mafatlal Barot v. Divl. Controller, State Transport, Mehsana : (1966)ILLJ437SC , is undoubtedly in favour of the appellant but that decision has been explained by the Supreme Court in the Indian Airlines Corporation case by saying that :

'There, the order of termination of the appellant's service ... was held to be bad in law on account of its being in contravention of clause (4)(b) of the Regulations containing service conditions framed by the Corporation ... But the question whether the said Regulations constituted a statutory obligation subject to which only the power to terminate the employment could be exercised or not, or the question whether they took out the employment out of master and servant relationship was not canvassed. Neither the decision in S. R. Tewari's case nor any other similar decision was also, it seems, brought to the notice of the Court.'

In view of these observations, Mafatlal Barot's case cannot be regarded as an authority for the proposition that an order of dismissal in breach of rules or regulations governing conditions of service is in each and every case void and illegal.

26. The decision in Bool Chand v. Kurukshetra University : (1968)IILLJ135SC , is distinguishable and in fact in the Indian Airlines Corporation case the Supreme Court distinguished it on the ground that the appointment there was to an office or status as the person who was dismissed was a Vice-Chancellor of the University. Bool Chand's case falls in the same line of cases as Vine's case.

27. The decision of the High Court of Mysore in R. J. Parvatikar v. Guledgud City Municipality A.I.R. 1961 My s. 181. prima facie supports the contention of the appellant, but the question as to whether a dismissed employee of a statutory body can obtain an order of reinstatement in service if his dismissal is contrary to the rules relating to the terms and conditions of his service was not considered in that case. It was held that the second departmental inquiry which was instituted against the employee was wholly without jurisdiction and, therefore, the order of dismissal was not merely wrongful but null and void. The decision, in our opinion, must be confined to its own facts, because it was by reason of the special circumstances of the case that it was held that the order of dismissal was liable to be quashed and the employee was entitled to be reinstated in service. We might usefully draw attention to the observation of the Supreme Court in S. R. Tewari's case at page 1683 of the report that 'jurisdiction of the Court in an appropriate case to declare an order passed by a statutory body, even if the order relates to the termination of the employment of a servant of the body, may not be denied.' The decision of the Mysore High Court provides a typical instance of 'an appropriate case' where the broader relief of reinstatement can be awarded to a dismissed employee of a statutory body like a municipality even though none of the three exceptions mentioned in the U.P.S.W. Corpn. case is attracted.

28. On an examination of the various decisions, case of dismissal of servants would fall into four classes. There are, in the first instance, cases in which 'persons employed in civil capacities under the Union or a State' are dismissed, removed or reduced in rank in violation of Art. 311(2) of the Constitution. Such cases stand apart and constitute an exception to the normal rule that no declaration to enforce a contract of personal service will be granted. Orders passed in violation of Art. 311(2) are null and void, not merely wrongful. The second category is of cases in which an industrial worker is dismissed in violation of the provisions of an industrial law. The Labour Court or the Industrial Tribunal is entitled, in appropriate cases, to order reinstatement of the worker. The third category comprises cases like the Vine's case and Bool Chand's case where the person who is dismissed from service is entitled to an office or status under a statute and the order of dismissal affects that status. It is the fourth class of cases with which we are directly concerned in this appeal and those are cases in which a statutory body acts either in breach of the statute or in breach of the rules and regulations framed under the statute. Cases falling in this class depend for their decision on the consideration whether the order passed by the statutory body is in breach of a mandatory obligation imposed by the statute or whether the breach complained of is of a mere rule or regulation relating to the conditions of service. If the breach is of a mandatory obligation imposed by the statute, the order of dismissal would be null and void and not merely wrongful. As a consequence, the employee would be entitled to be reinstated in service and to past salary. On the other hand, if the breach complained of is of a mere rule or regulation, the employee would be entitled only to a declaration that the dismissal is wrongful and to damages by way of salary for the period of notice, even if the rule or regulation constitutes a term or condition of his service and even if it is worded in language of mandatory import. In the absence of a statutory provision showing that the master is under a restriction as to the kind of contract which he can make with his servant and in the absence of a provision showing that the statute obliges the master to comply with such a rule or regulation if he wants to dismiss a servant, the rule or regulation would be administrative in nature, not capable of being specifically enforced.

29. In our view, the case before us is one of purely master and servant relationship in which the master is under no statutory or other restriction as to the kind of contract which he can make with his servants or the grounds on which he can dismiss them. In other words, the master is under no statutory obligation by reason of which he could not terminate the services of his employees, except by complying with such an obligation. The appointment of the appellant is neither to an office nor to a status. In view of this position and in view of the fact that the municipality has undoubtedly the power to dismiss its servants, the dismissal of the appellant must be held to be with jurisdiction. By not complying with Rule 177, the municipality has undoubtedly acted irregularly in the exercise of that jurisdiction but the consequence only is that the appellant is entitled to a declaration that the order of dismissal is wrongful and to salary for the period of notice.

30. Accordingly, our answer to the two questions is : (1) The breach of a mere rule or regulation would not involve the same consequence as the breach of Art. 311 of the Constitution and (2) if a municipal servant is dismissed in breach of such a rule, he is entitled to a declaration that the dismissal is wrongful and to salary for the period of notice but neither to reinstatement in service nor to arrears of salary on the basis that the dismissal is void and illegal.

(Second Appeal No. 307 of 1968)

31. In view of the judgment which we have just delivered in Second Appeal No. 576 of 1961, our answer to the first question in Second Appeal No. 307 of 1968 is that the rule is directory and not mandatory. Our answer to the second question is that if a municipal servant is dismissed in breach of such a rule, he would be only entitled to a declaration that his dismissal is wrongful and to salary in lieu of the period of notice.


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