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Manekji Naoroji Balsara Vs. Municipal Commissioner of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 10 of 1929 and Suit No. 4055 of 1924
Judge
Reported inAIR1930Bom320; (1930)32BOMLR463
AppellantManekji Naoroji Balsara
RespondentMunicipal Commissioner of Bombay
DispositionAppeal dismissed
Excerpt:
city of bombay municipal act (bom. ill of 18ss), section 83-standing committee constituted a domestic tribunal under the act-dismissal of a servant by standing committee-suit against the decision of the standing committee whether maintainable-limitations on the exercise of statutory power by a domestic judge.;under section 83 of the city of bombay municipal act, 1888, the standing committee of the corporation is constituted the domestic tribunal to which the light to appoint or dismiss its servants is delegated, and the act does not retain the ordinary law regulating the dismissal of a servant by his master. the matter is not left open to be reviewed in a court of law. but there ate limitations on the exercise of the statutory powers of the domestic judge, viz. ;(1) there must be evidence.....amberson marten, kt., c.j.1. this appeal has been fully and very . well argued, and accordingly we prefer to give our judgments while the arguments are still fresh in our minds.2. the suit is one brought by mr. manekji naoroji balsara against the municipal corporation for wrongful dismissal in 1924. the suit did not come on for trial till december 13, 1928, due probably to the insufficient number of judges to transact the ordinary business of this court. issues nos. 1 and 8 were then selected as preliminary issues to be decided by the court. they were, no. (1): whether the plaintiff is entitled to ask this court to review the decision of the standing committee and the municipal commissioner that the plaintiff had been guilty of such misconduct as to warrant his dismissal and no. (8):.....
Judgment:

Amberson Marten, Kt., C.J.

1. This appeal has been fully and very . well argued, and accordingly we prefer to give our judgments while the arguments are still fresh in our minds.

2. The suit is one brought by Mr. Manekji Naoroji Balsara against the Municipal Corporation for wrongful dismissal in 1924. The suit did not come on for trial till December 13, 1928, due probably to the insufficient number of Judges to transact the ordinary business of this Court. Issues Nos. 1 and 8 were then selected as preliminary issues to be decided by the Court. They were, No. (1): Whether the plaintiff is entitled to ask this Court to review the decision of the Standing Committee and the Municipal Commissioner that the plaintiff had been guilty of such misconduct as to warrant his dismissal And No. (8): Whether the plaintiff had every opportunity of meeting the charge against him The learned Judge answered the first issue in the negative and issue No. 8 in the affirmative, and dismissed the suit with costs. From that judgment on these two preliminary issues the present appeal is brought.

3. Now the plaintiff, I should explain, is an educated man, an L. M. & S. of Bombay University, and 13. P. H., Cambridge, and he joined the Municipal service-in 1907. At the dates in question, namely, in 1924, he was Acting Health Officer and we are told that he was on a salary of Rs. 400 plus Rs. 90 local allowance plus Rs. 150 motor allowance per month. His appointment and dismissal were regulated by the City of Bombay Municipal Act 1888. Counsel on both sides before us expressly admitted that he had been appointed to his acting appointment by the Standing Committee of the Municipality, and that accordingly it was the Standing Committee who had the power of dismissing him under Section 83(1) of the Act. I draw special attention to this point because for some time during the argument I was under the mistaken impression,-which the learned Judge in the trial Court appears to have shared,-that the power of dismissal lay with the Municipal Commissioner, but that as the monthly emoluments of this officer exceeded Rs. 300 he could only be dismissed by the Commissioner with the approval of the Standing Committee under Section 83(2)(a). That was not so. It was for the Standing Committee to dismiss him.

2. Very shortly stated, what took place was this. A certain complaint was made to the Municipal Commissioner that the officer in question had been endeavouring to obtain bribes in the course of his employment. The Municipal Commissioner thereupon requested the Standing Committee to delegate two of their members to assist him in making an enquiry on the point. The Committee accordingly delegated two of their members, Mr. Haveliwala and Mr. Jamnadas Mehta,-both advocates on the Original Side of this High Court and also barristers. I may add that Mr. Haveliwala also at one time occupied the important position of President of the Tribunal of Appeal under the Land Acquisition Act. An enquiry was subsequently held by the Commissioner, and he examined certain witnesses in the presence of the accused in relation to the matters complained of. He also at the same time examined witnesses on another charge of bribery against the Factory Inspector H. D. Patel in relation to the same premises, but with reference to an incident that took place prior to the plaintiff receiving his acting appointment.

3. Unfortunately, Mr. Haveliwala and Mr. Jamnadas Mehta were unable to attend the hearing so far as the actual taking of oral evidence was concerned. But at the end of the day, they met and read the notes of evidence, and also discussed the matter with the Municipal Commissioner. Then the Municipal Commissioner made his report. That was presented to the Standing Committee, and they in their turn, with the report before them, heard the plaintiff once more in 'support of what he had to say and came to the conclusion that the recommendation of the Commissioner that he should be dismissed on the ground of the charge against him being proved was correct. That decision of the Standing Committee was arrived at on May 21, 1924, but it was not till September that the plaintiff took any steps. He then caused his solicitors to write the letter of. September 10, 1924, Ex-habit No. 1, asking for copies of all statements in the course of the enquiry. This was followed up by a formal petition setting out his case, which is Exhibit No. 2 in the case, and was presented to the Corporation on September 22, 1924.

4. The main grounds upon which the appellant asks us to hold that his dismissal was wrongful are, first, that under the Act the Standing Committee are not constituted the sole judge of whether there is a proper cause for dismissal established in fact, and that notwithstanding any decision they may come to, the plaintiff, like any other Municipal servant, has a right to challenge the decision on fact in a Court of law, and to require the Municipal Corporation to prove all the circumstances on which they rely, just as would be the case at common law in England in an ordinary case between a master and servant where the servant sues for wrongful dismissal. Alternatively, it is claimed that even the Standing Committee is a domestic tribunal specially constituted by the Act to determine these matters and that normally that decision must be final, yet if they have disregarded the principles of natural justice, then in a Court of law that decision can be challenged.

5. As to that it is not and cannot be contended that there was no evidence here on which the Standing Committee could rightfully come to the conclusion that the appellant had taken bribes. But it is contended that the principles of natural justice have been violated in two important particulars, namely, first, that the Commissioner wrongfully stopped the appellant from cross-examining an important witness against him, namely, one Bapoobhai, who acted as a detective or spy in the matter, and, secondly, that the Commissioner wrongfully took a statement in the case from one Simon on the day of the hearing in the absence of the appellant; and moreover took a confession from Simon behind the back of the appellant altogether on a subsequent day and at a time when ho the Commissioner after hearing the legitimate evidence had reserved his decision in writing. It is also contended that no proper charge was ever formulated at the enquiry, and that it was wrong to enquire into the conduct of the appellant at the same time as that of the factory inspector Patel. And there are one or two other complaints of a comparatively minor character connected with the holding of the enquiry.

6. I propose in the first place to turn to the Act and decide on what basis we should proceed to determine this case according to the legal rights of the parties. I do this because as I read the judgment of the learned trial Judge be thought he was precluded by a judgment of Mr. Justice Beaman in an unreported case from giving his own view of the true construction of the Municipal Act. That decision of Mr. Justice Beaman is of course not binding upon us.

7. Now Section 83 runs as follows :-

(1) Every municipal officer and servant may be fined, reduced, suspended or dismissed for any breach of departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct, by the authority by whom such officer or servant is appointed.

8. Then follow certain provisos as in Sub-section (2), including Sub-section (a), to which I have already referred. Then Section 84 gives power to grant leave of absence and Section 85 provides that-

The appointment of a person to act in the place of an officer absent on leave may be made, when necessary, and subject to the regulations aforesaid, by the same authority who grants the leave of absence.

Accordingly it was pointed out by the Municipal Commissioner in his report of May 19, Exhibit No. 8, that as he the appellant-

is acting as Assistant Health Officer, an appointment which has been made by the Standing Committee under Section 84(2)(b) of the Municipal Act, it appears technically necessary, though this appointment is only for a short period that the order for his dismissal should be passed by the Standing Committee under Section 83 (1) of the Municipal Act.

That is a point which, as I have already stated, is agreed by counsel as being the correct basis on which we should approach the determination of the present case.

9. Now as regards Section 88, it will be seen that on the facts of the present case, although the appellant was a servant of the Corporation, yet the persons appointed by the statute to determine the question of his dismissal were the Standing Committee. In other cases it might under the Act be the Municipal Commissioner; and in certain other cases it might be the Municipal Commissioner with the approval of the Standing Committee. Now, why did the statute make these provisions, if, as Mr. Desai contends, any decision that they came to would really only be provisional, as the whole matter might have to be thrashed out again and proved in a Court of law One can see too the inconvenience that might thereby be caused to the Corporation, having regard to the large number servants whom they employ and to the fact that Mr. Desai's argument would presumably cover hundreds of subordinate servants as well as the highest officers in the Corporation. On the other hand, common sense would rather point to the conclusion that where a statute creates what has been described in the arguments as a domestic tribunal by expressly delegating to a particular committee or to a particular officer the right to appoint and the right to dismiss, then speaking generally, that committee or officer is so appointed as a quasi Judge in the matter, subject to certain safeguards in law which I will presently indicate.

10. We have carefully considered the authorities that have been cited to us, and also the relevant sections of this Act, including those sections to which Mr. Desai drew our attention as showing that in certain other parts of the Act an express discretion is given to the Commissioner or other officer. In the result I would hold that the true view in law is that in such cases as the present the Standing Committee is constituted by the statute to be the domestic tribunal and that it was never intended by the statute to retain the ordinary law regulating the dismissal of a servant by his master. This is borne out by the practical considerations to which I have already alluded and which it is needless to detail.

11. But the decided cases I think also establish this important limitation on the exercise of the statutory powers of what I may call the domestic judge, namely, first, that there must be evidence before the domestic judge on which he can reasonably find that the ground of dismissal stated in the statute is in fact proved before him, and secondly, that any enquiry before the domestic judge must be conducted in accordance with the principles of natural justice, and that in particular the accused must be given an opportunity of being heard in his own defence and of cross-examining the opposing witnesses and also of calling his own evidence. Thirdly, on the authorities, though personally I regard it as a branch of the first condition,-the decision must not be based on purely capricious grounds.

12. To establish thos3 propositions, I would refer in the first place to Osgood v. Nelson (1872) L.R. 5 H.L. 636. Now there, it is important to observe, the power of removing the Chief Clerk of the Court was vested in the.9 City Corporation. The exact words of the Act will be found in the Note at p. 639. They ran :-

It shall be lawful for the Mayor, Aldermen, and Commons, in case of the inability or misbehaviour of the Clerk, for the time being, of the Court, or for any other cause which may appear reasonable to the Mayor, Aldermen, and Commons to remove such Clerk of the Court.

Therefore, in effect it was a power of removal given to the Corporation for any cause which might appear reasonable to the Corporation. I draw attention to those words because clearly we have not got express words of discretion in the present case under Section 83 such as existed in Osgood v. Nelson. What took place, however, in that case was this. The dismissed clerk was given a hearing which Baron Martin,-(who delivered in the House of Lords the opinion of the following Judges summoned for consultation, namely, Baron Bramwell, Mr. Justice Blackburn, Mr. Justice Mellor, Mr. Justice Keating and Mr. Justice Brett,) -thus describes, viz.-(p. 647):-

Therefore, it does seem to us that it is impossible for any man to have had what I may call a fairer trial than Mr. Osgom.1 had with reference to this matter.

Shortly stated, he had been heard first of all by a Committee who heard the matter fully including his evidence and his address. Subsequently the report of this Committee was presented to the Court of Common Council, and there the matter was further discussed by counsel on both sides, and there were further addresses. And I may here note that Baron Martin at page 645 expressly stated that it was a proper thing for the Corporation thus to delegate the actual holding of the enquiry in that particular case.

13. Then came the question whether notwithstanding that the trial had been a perfectly fair one, and that therefore to that extent at any rate the principles of natural justice had been satisfied, the dismissed clerk could yet challenge the decision in a Court of law. And there Baron Martin and also the Lord Chancellor and the other Judges of the House of Lords emphasised that if the principles of natural justice had been violated, the Court would undoubtedly have interfered. So also if it could be shown that the decision had been come to from mere capricious grounds, or as Lord Colonsay puts it (p. 652):-

If they were to remove him for some capricious cause, such as the shape of his hat, or the cut of his beard, I hold that that would be clearly an improper proceeding, and that a supreme Court of Law could correct it.

With great deference, I think in a hypothetical case like that, one would hold that there was no evidence before the tribunal on which they could properly come to the conclusion that the clerk should be dismissed.

14. But I draw particular attention to the fact that there the Judges came to the conclusion that there was clearly evidence before the Corporation on which they could come to the conclusion that the clerk in question ought to be dismissed. And I do this because in the unreported case before Mr. Justice Beaman, the learned Judge, with all respect, seems to have misunderstood and misstated what the actual views of the Judges were. I will accordingly quote one or two passages from the judgment of the Lord Chancellor at page 649, via.:-

I apprehend, my Lords, that, as has been stated by the learned Baron who has delivered, in the name of the Judges, their unanimous opinion, the Court of Queen's Bench has always considered that it has been open to that Court, as in this ease it appears to have considered, to correct any Court, or tribunal, or body of men who may have a power of this description, a power of removing from office, if it should be found that such persons have disregarded any of the essentials of justice in the course of their inquiry, before making that removal, or if it should be found that in the place of reasonable cause those persons have noted obviously upon mere individual caprice.

15. He then goes on (p. 649):-

When they have pursued the inquiry before them into that which is alleged as a reasonable and just cause, according to the ordinary mode of administering justice-when they have given the accused an opportunity of knowing the charges...; and when the accused had an opportunity of hearing the evidence which had been given in support of those charges, and an opportunity of cross-examining the witnesses, and an opportunity of producing his own witnesses ; and when he informed the committee that he had produced all the evidence he desired to produce, and when the cause was one which was just and reasonable in itself, if proved, the committee had no farther duty to discharge. It was left to those in whom the power of removal rested to act and decide upon the evidence so placed before them, and with their decision it is not competent for the Court below, or for us sitting to review the decision of that Court, to interfere.

16. There are two earlier authorities which were not cited to the learned trial Judge, nor wore they cited before Mr. Justice Beaman in the case before him. I will take them in order of date. The first is, The Queen v. Owen (1850) 15 Q.B. 470. There the power given by Section 24 of Statute 9 & 10 Vie. c. 95, was that the Judge of the County Court was empowered to remove the Clerk of the Court ' in case of inability or misbehaviour ', subject to the approval of the Lord Chancellor. So in that case, there were no such words as 'in his discretion', or anything of that sort. It is important to observe that the actual decision in that case was that there was no evidence on which it was open to the dismissing authority to hold that there was an inability within the meaning of the Act. All that had been proved was pecuniary embarrassment, and that, on the finding of the jury in the case, did not amount to inability under the Act. Consequently, that was a case whore there was really no evidence on which the Court could act, because the ground, on which the officer could be dimissed under the statute, namely, 'inability', did not exist. Lord Campbell in his judgment said (p. 485):-

We must look at the facts found by the jury ; the letters are merely evidence to be judged of by the jury. If the jury had found that any inability at all existed, I should say that the decision of the Judge was conclusive, and that this Court would not inquire into the degree of such inability. The Lord Chancellor's approval is. simply a condition to the removal, and gives no further validity to it. In case of inability or misbehaviour the Judge may remove the clerk, and only in case of inability or misbehaviour. Inability is alleged as the ground of removal in this case. Do the facts found shew inability No ; they shew ability. It does not appear that insolvency had produced any disabling effect on the mind of the clerk ; and it is stated that he was not physically disabled from performing his duties. No other ' inability ' existed than pecuniary embarrassment: that in itself is no inability ; and our judgment must be for the relator.

17. Now, stopping there, I think it is clear that if there had been 1 materials before the Court for holding that ' inability ' existed, then Lord Campbell would not have allowed the decision of the Judge to be questioned. But counsel for the present appellant has relied on Mr. Justice Erie's judgment in the same case where he Said (p. 485):-

The County Court Judge has power to dismiss his clerk for inability ; and the clerk, if he is dismissed on that ground, has a right to raise the question whether the fact of such inability exists ; and, when that question is raised, it is for the jury to decide it. The question in this case has been submitted to a jury; and they have found that no other inability existed than pecuniary embarrassment. The full effect of the verdict probably is that there was no present inability with reference to either the mental or the bodily powers of the relator, but that he might become so harassed as to be unable at some future time to discharge his duties, or that he might be tempted to commit some act of dishonesty. Now I cannot say, as matter of law, that mere insolvency so enfeebles the intellectual powers, or so endangers the moral principles of a man, as in itself to constitute inability within the meaning of this statute.

Personally, I do not think Mr. Justice Erle intended to lay down any law different from that which Lord Campbell did when he says that ' the clerk, if he is dismissed on that ground, has a right to raise the question whether the fact of such inability exists'. He really meant to say that the clerk had a right to raise the question whether there was any evidence on which the finding of inability might reasonably be arrived at.

18. This, I think, is borne out by the subsequent case of Ex parte Ramshay (1852) 18 Q.B. 178. Now there Lord Campbell again delivered the judgment of the Court, and at page 189 he sets out the relevant statute, namely,

That it shall be lawful for the said Lord Chancellor, or, where the whole of the district is within the Duchy of Lancaster, for the Chancellor of the said Duchy, if he shall think fit, to remove for inability or misbehaviour any such judge already appointed or hereafter to be appointed.

It will be observed that the words 'if he shall think fit' occur there, and they are relied on in the present case by the appellant. Then at page 193 he says :-

But, after all, we must look to the language which the Legislature has employed, and put upon it its natural and grammatical meaning, nothing appearing to shew that it is used in any extraordinary sense. ' It shall be lawful for the said Lord Chancellor,' 'if he shall think fit, to remove for inability or misbehaviour any such judge'. Is not the natural and grammatical meaning of this language that, if the Chancellor proceeds duly, he may without appeal remove for inability or misbehaviour, and that, having heard evidence, he is to determine whether the inability or misbehaviour is made out. He is clearly constituted judge of the inability or misbehaviour in the first instance ; and, if no appeal is given expressly or implied, his judgment must be final, No appeal is expressly given ; and to imply an appeal, we think, would be to legislate, not to construe the language of the legislature.

19. Here, I may state that no express power of appeal has been given under the Bombay Municipal Act from an order of dismissal under Section 83. What we have been considering is whether any such power ought to be implied on the true construction of the Act we have to deal with. Then at page 191 (in Ex parte, Ram-shay) the learned Judge says :-

But we are of opinion that, when the Chancellor has duly acted within his jurisdiction in the exercise of this authority, giving notice to the party accused of the charges against him, those charges, if true, amounting to inability or . misbehaviour in his office, inquiring by evidence into the truth of the charges, and hearing the party accused, the Legislature intended the Chancellor's sentence of removal should he final and conclusive.

20. Then at page 190 ho says :-

The Chancellor has authority to remove a judge of a county court only)1 the implied condition prescribed by the principles of eternal justice, that he hears the party accused : he cannot legally act upon such an occasion without some evidence being adduced to support the charges ; and he has no authority to remove for matters unconnected with inability or misbehaviour in the office of county court judge. Where the party complained against has had a fair opportunity of being heard, where the charges, if true, amount to inability or misbehaviour, and where evidence has been given in support of them, we think we cannot Inquire into the amount of evidence or the balance of evidence, the Chancellor, acting within his jurisdiction, being the constituted judge upon this subject.

21. Then he adds at the bottom of page 195 :

But such an inquiry is to be conducted according to the substantial rules of justice, not according to the technical rules of special pleading. It is conducted as an inquiry before the Benchers of an Inn of Court into charges upon which a barrister may be disbarred, and can be conducted in no other way, the Legislature not having prescribed any formalities, and not having conferred the power of administering an oath.

22. Then at page 193 he referred to the previous case of The Queen v. Owen, and he said :-

But, on inquiring what took place when the quo warranto was granted, we find that it was made out to the Court that, instead of misbehaviour being imputed to the clerk, it was admitted that he had always performed the duties of his office unexceptionable ; and the only inability imputed was an inability to pay all his debts, without any suggestion that this had affected his mind or in any degree disabled him from doing the duties of clerk. Therefore there was no imputation of inability or misbehaviour in his office; and, admitting the truth of all that was imputed, no inability or misbehaviour in his office appeared. When the special verdict was argued, no question arose as to the right to the quo warrant ; and the observations of the learned Judges then made must be taken with reference to the facts and points then before the Court.

23. The only difference urged between Ex parts Ramshay and the present case is that the words 'if he shall think fit' which exist in Ex parte Ramshay, do not exist in the present case.

24. The learned Advocate General has drawn our attention to the case of Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214 where in that particular case those words existed. At page 227 the Lord Chancellor (Earl Cairns said):-

I ought to mention an argument which was much dwelt upon before your Lordships and in the Courts below, viz., the argument that the words ' if he shall think fit, in the 3rd section, in the alternative power to the bishop to proceed of his own mere motion, rather imply that on the application of a third party he is to proceed whether he thinks fit or not. My Lords, I do not think that the words 'if he shall think fit' have any such, effect. They appear to me to be, where they occur, mere surplusage, as, indeed, is proved by the circumstance that if they were altogether omitted that clause of the section would mean just exactly what it means with those words inserted. But the words in fact appear to ma to be introduced merely to mark more clearly that an alternative power is conferred upon the bishop, and that lie is left free to proceed without any one to put him in motion, if he chooses to do so.

25. I entirely appreciate that the particular context that their Lordships had before them in that case is quite different from that in Ex parte Ramshay, and also from what we have here. But in the present case even if those words were inserted in Section 83, 1 do not think they would make any difference. At, the most they would emphasise this that the word ' may ' ought not to be construed ' must'. But taking Section 88 as it stands without any such words, I would undoubtedly hold that the word 'may ' in that section means 'may' and does not mean 'must.' And I should take it to be clear that the Standing Committee would not dismiss any person unless it thought fit so to do. But even if those words do make any difference, then Lord Campbell in The Queen v. Owen,-where no such words at all existed,-was clearly of opinion that the decision of the domestic authority would be final provided that there was reasonable evidence before it. And supposing one has to go further and say, irrespective of authorities, what is the right conclusion on this section, I would hold that as a matter of common sense the Legislature must have intended to make the Standing Committee the domestic judge, rather than that all matters should be left open to be reviewed in a Court of law, however humble might be the duties of the servant in question of the Corporation.

26. There were cases on other branches of law referred to either by the bar or by the bench. There was the School case, namely, The Queen v. Governors of Darlington School (1844) 6 Q.B. 682. But there the power of removal was given to the Governors 'according to their sound discretion'. Accordingly it was held that the Governors had power to remove any master for misbehaviour, and that it was indeed ultra vires for them to frame rules by which no master could be dismissed unless charges and so on had been formulated and proved. The decision there goes to great lengths, and depends partly upon the wide words of discretion given to the governors, and partly on the fact that they were dealing with the removal of a school master and it was highly desirable in the interests of the school that not even a suspicion should be cast upon his character.

27. So, too, as to the general powers of the Court to insist on the principles of natural justice being carried out even by a Government Department which may be put by statute in the position of a domestic tribunal, the case of Board of Education v. Rice [1911] Sec179 is an example which may be referred to. There Lord Loreburn said (p. 182):

They must act in good faith and fairly listen to both aides, for that is a duty lying upon every one who decides anything.

28. There are also two important cases in Cassel v. Inglis [1916] 2 Ch. 211 and Weinberger v. Inglis [1919] Sec 606 as to the powers of the Court to question the decisions of the Committee of the London Stock Exchange as to the admission of members. But as I have already said, we have to deal in the present case with employers and an employee, and I do not propose to go into these other lines of cases, which after all are only examples of the numerous instances in which the .Courts will insist that the principles of natural justice must be carried out by anybody entrusted with quasi judicial duties.

29. Lastly, there is Mr. Justice Beaman's judgment, which is unreported, apart from a brief note of the decision in the Bombay Law Journal. In the first place, I would protest against any notion that Judges are obliged to follow or even to read unreported judgments, particularly when they are in old cases, the facts of which cannot easily be verified, except by looking up the old note books, and reading manuscript evidence. It will be also borne in mind that there may be good reasons why a judgment is not reported. At most, there is only room in the Reports for a small proportion; and a good Editor will exercise a wise discretion in selecting those judgments which appear to be soundest. Further under the Indian Law Reports Act, we are not obliged to allow any decision to be cited to us which does not appear in the authorised law reports. But as this particular judgment was cited in the Court below, we have read it and have formed the opinion that with all respect it ought not to be regarded as a guide in the present case.

30. That brings me, therefore, to this that on the view I take of the Act, it is not open to the appellant to question the actual findings of the Standing Committee unless he can make out that the principles of natural justice have been violated. I say this because it is clear that there was ample evidence before the Standing Committee, on which they could find that the appellant had tried to obtain a bribe. Therefore we are only left with the issue as to whether the principles of natural justice have been violated ; and if that is decided against the appellant, then in our view it is not open for him to go back to the trial Judge and to have the remaining issues determined.

31. I will, therefore, next deal with the allegation as to the violation of the principles of natural justice. [After dealing with the evidence on this point his Lordship observed :]

32. The result, therefore, is that if the dismissing authority had been the Commissioner alone, and if nothing further had taken place, then in my judgment, the Commissioner having violated, in at least two or three respects, the principles of natural justice, his decision could have been successfully challenged in this Court.

33. Apart from the above, there were some subsidiary points on which the fairness of the inquiry was also challenged. After dealing with those subsidiary points his Lordship proceeded: ]

34. I will now pass to the next branch of the case, viz., the proceedings before the Standing Committee. Now there, on reading the evidence of Sir Byramji Jeejeebhoy and other evidence in the case, I think it is clear that the plaintiff had a full opportunity before the Standing Committee of raising any objections that he liked as to what had taken place before the Commissioner, and also of offering any explanation that he wished in his defence. He spoke for at least half an hour to the Standing Committee. He asked for no adjournment. And I cannot see that there he ever questioned before the Standing Committee the unfairness of the Commissioner's inquiry, and in particular, what is now urged by his legal advisers, viz., that the cross-examination of Bapubhai was wrongly stopped, and that the Commissioner was wrong in hearing Simon's two statements behind his back. Sir Byramji says that if the plaintiff', for instance, had asked for any adjournment, it would have been granted, and I have no doubt that that would have been the case. And I have also no doubt that any other matter that could fairly have been urged would have been carefully considered by the Standing Committee.

35. But if the plaintiff, having a fair opportunity to do so, did not raise any objection as to the unfairness of the enquiry before the Commissioner,-as I hold he did not-and if he thus took his chance of getting a successful verdict from the Standing Committee on the case as it then stood, is he entitled many months afterwards to question the proceedings by alleging flaws in the enquiry, which he could and should have pointed out in the previous May to the Committee itself In my judgment the principles of natural justice do not require us to go to that length. I am clear that as regards the objection as to Bapubhai and also as to Simon's first statement being taken behind his back,-the plaintiff knew both those incidents. He knew about Simon being called, for he saw Simon going in and then coming out, and he waited meanwhile behind the door. The question about Simon's second statement is more difficult. But that statement, it is clear, was never before the Standing Committee. Nor was it before Mr. Haveliwala or Mr. Jamnadas Mehta. And having regard to all the circumstances of the case, I do not think it would be fair to say that it so coloured the judgment of the Commissioner that his report to the Standing Committee was really an unfair one, and one which ought to be set aside, because it was really based on Simon's second statement and not based on the evidence that was given on May 16.

36. Taking then the case as a whole, I agree with the finding of the learned Judge that whatever defects there may have been in the enquiry before the Commissioner, the plaintiff had a full and fair opportunity of correcting those defects, and of having his case fully heard before the Standing Committee. I would also hold that the Standing Committee tried to hear his case to the best of their ability, and that if there were any matters which could have been objected to before them but were not in fact objected to, then that was the fault of the plaintiff, and did not entitle him subsequently to come to the Court, for the purpose of upsetting the decision of the Standing Committee when it proved adverse to him. Nor does it lie in his mouth to say that if ' he had been represented by counsel, a different course would have been taken. That was his own election, and strange though his conduct may appear to me in not getting professional assistance at the right time, I do not think it material as he has not laid that as a ground of complaint before us.

37. In the result after a very careful consideration' of the whole of the facts in this case,-I do not pretend to say I have mentioned them all,-and to the arguments that have been presented to us, I would hold that the decision of the learned Judge was correct when he ordered that this suit should be dismissed with costs. I would accordingly dismiss this appeal with costs.

Blackwell, J.

38. I am of the same opinion, and will briefly give my reasons for concurring in the judgment just delivered by the learned Chief Justice.

39. Dealing with the case first upon the basis that under Section 83 of the City of Bombay Municipal Act the Standing Committee were the judges of the grounds of dismissal, from whose decision no appeal would lie unless there was no evidence to support that decision, or the requirements of natural justice had not been complied with, the complaint of the plaintiff is that in fact the requirements of natural justice were not complied with. What the law requires in the case of an enquiry by what may be called a domestic tribunal or a statutory authority is laid down in Osgood v. Nelson (1872) L.R. 5 H.L. 636 to which the Chief Justice in his judgment has referred at length. One of the principles indicated is that a person proposed to be removed from his office should have every opportunity of cross-examining the witnesses brought forward against him. The first complaint made by the plaintiff in this case is that he was prevented by the Municipal Commissioner from cross-examining the witness Bapubhai. I think that it was a mistake on the part of the Municipal Commissioner to prevent the plaintiff from cross-examining this witness. He had been employed as a spy, and in my opinion the questions which the plaintiff states that he desired to put, namely, as to who and what this witness was might have been very material. Whether, if the cross-examination had been allowed, it would or would not have affected the judgment of the Municipal Commissioner is, in my opinion, beside the point. Accordingly, if the decision had remained with the Municipal Commissioner himself, I should have thought that any dismissal of the, plaintiff founded upon his decision would in those circumstances have been bad, and that the plaintiff could have maintained this suit in a Court of law. The decision, however, did not rest with the Municipal Commissioner, inasmuch as it was,-as was admitted by the learned counsel on both sides,--for the Standing Committee, and not for the Commissioner, to dismiss the plaintiff having regard to the fact that he was in an acting appointment. Accordingly the inquiry was continued before the Standing Committee, I think it necessary therefore to examine with care the evidence before the learned Judge as to what took place when the enquiry was resumed before the Standing Committee in order to determine whether the plaintiff, before the enquiry was concluded, had every opportunity of raising any point or defence that he desired to put forward.

40. [After coming to the conclusion that the plaintiff had opportunity to raise any point of defence before the Standing Committee, his Lordship proceeded :]

41. Turning now to the question whether the plaintiff can in any event ask the Court to review the decision of the Standing Committee, apart from the question whether the requirements of natural justice have been complied with, I have come to the conclusion that he cannot do so. In my opinion Section 83 of the Municipal Act is not, as Mr. Desai has contended, upon the same footing as an ordinary contract of service between an employer and employee. The power of dismissal is given under that section to the authority by whom the officer or servant is appointed, in some cases the Municipal Commissioner, in others the Standing Committee, and in others the Commissioner with the approval of the Standing Committee. It is not a power of dismissal which is given to the employer, which is the Corporation. It would be manifestly impossible for a large body to deal with the various questions contemplated by the section in regard to any employee, however humble, such as breach of departmental rules, or discipline or carelessness or neglect of duty, and, in my opinion, the Legislature, in conferring upon the Commissioner or the Standing Committee the power of fining, reducing, suspending or dismissing for any of the reasons mentioned, intended to constitute the authority in which that power was vested the judge of the circumstances. It has been argued that the present case is different from a case where such words as ' if he shall think fit' are employed in connection with the power of dismissal conferred as in Ex parte Ramshay (1852) 18 Q.B. 173. There were, however, no such words in the empowering section upon which Reg. v. William Owen (1850) 14 Jur. 953 was decided,--the County Court Judge in that case being empowered by Section 24 of 9 & 10 Vic. c. 95, to remove the clerk in case of inability or misbehaviour subject to the approval of the Lord Chancellor. Looking at Lord Campbell's judgment in that case, I think it is plain that his opinion was that if there had been evidence of inability in fact within the meaning of the section in question, the decision of the Judge of the County Court would have been final, and a Court of law would not have enquired into the degree of inability. It is quite true that in Reg. v. William Owen, the judgment of Mr. Justice Erie at first sight favours the view that even where a power of dismissal is conferred by statute in the terms to be found in Section 24 of 9 & 10 Vic. c. 95, it would nevertheless be open to the person removed to raise in a Court of law the question whether the ground for dismissal did or did not exist in fact. Having regard, however, to Lord Campbell's observations in Me parte Ramshay, at page 193, to which the learned Chief Justice has referred in detail and which I need not therefore repeat, I think it is clear that Mr. Justice Erie's judgment in Reg. v. William Owen must be read in the light of the facts existing in the case before him,-those facts being that there was no evidence at all of inability within the meaning of the section. When, therefore, Mr. Justice Erie said (p. 954):

but tide clerk, if discharged, has a right to raise the question, whether the fact of his inability, which is the condition for the exercise of that power, existed, by proceeding in this Court; and when properly raised, it is a question which a jury ought to decide,

I think he meant that the clerk has a right to raise the question because in the circumstances existing in the case, there was no evidence at all that such inability existed. Accordingly, the case of Reg. v. William Owen, read in the light of Lord Campbell's observations in Ex parte Ramshay, in my opinion, is an authority which assists us in the construction of Section 83 of the Municipal Act, Accordingly I am of opinion that the presence or absence of such words as ' if he shall think fit', having regard to the terms of Section 83 and the circumstances in which it was intended to operate, would make no difference at all. It is clear, in my opinion, that the word 'may' there could not possibly be construed as ' must '. It follows that even if the words ' if he or they shall think fit ' had been employed in Section 83, those words in my judgment would have been pure surplusage. Accordingly, in my opinion, the authority empowered to dismiss by Section 83 was intended by the Legislature to be the judge of the ground of dismissal. That being the view which I take of the section I think, for the reasons which I have given, that that decision could only be reviewed in a Court of law either if there was no evidence to support it, or if the decision arrived at was contrary to the principles of natural justice.

42. For these reasons I agree with the learned Chief Justice that this appeal should be dismissed with costs.


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