1. The petitioner is an assistant teacher serving in the municipal Primary School of the Municipal Committee, Katol. According to him, he was appointed to the school about 24 or 25 years ago. On March 18, 1958, the head master of the school, Mr. Pawar, made a report to the Secretary of the Municipal Committee, Katol, to the effect that the petitioner, who used to hold the classes from 7 a.m. to 11 a.m. in the morning, had refused to attend office work from 2.30 p.m. onwards. He also stated that when he inspected the class of the petitioner on March 13, 1958, he did not find his work satisfactory. The general complaint against the petitioner was that the petitioner was not observing the discipline of the school and this had an adverse effect on other teachers also. Thereupon the following notice dated March 22, 1958, was served on the petitioner which runs thus:-
You are hereby informed that you are not attending the office work in the noon in spite of the orders of the Head Master In this respect. So also you are not doing the morning school work satisfactorily and with discipline. Thus you are misbehaving and you are not executing the orders of your superiors properly, A report about all this has been received from the Head Master.
You are therefore informed to submit your explanation to this office, within three days of the receipt of this order by you.
2. In answer to the notice the petitioner submitted an explanation. It may be mentioned that due to paucity of accommodation the teaching work of the school is carried out in two shifts, the morning shift from 7.30 a.m. to 11 a.m. and the afternoon shift from 11 to 4.30 p.m. The petitioner was admittedly working in the morning shift. The head master of the school had issued a directive to the petitioner and the other teachers working in the morning shift to report themselves at the school at 2.30 p.m. every day for doing office work. It is not denied that the petitioner did go to the school in the afternoon, but it is said that he was not always punctual, and that the head master thereupon took him to task and enjoined on him the necessity of attending the school punctually at 2.30 p.m. The petitioner continued to be remiss, and, therefore, the aforesaid notice was issued against him.
3. An enquiry into the petitioner's conduct was held by S.S. Misra, the Secretary of the Municipal Committee, and eventually an order was passed against him by the President, Mr. K.K. Chandak, on May 23, 1958. That order reads thus:-
From the enquiry report of the Secretary Shri S.S. Misra it is found that Shri R.V. Muthal disobeyed the order of the Head Master. This sort of behaviour on the part of Jthe Assistant teacher is highly objectionable.
I therefore order suspension without pay of Shri R.V. Muthal for a period of 15 (fifteen) days with effect from 25-5-1958 as a penalty. During this period no pay or allowance will be paid to him.
It is clear from this order that the only charge which is held to have been established against the petitioner is that he disobeyed the order of the head master. We would like to point out in the first instance that it was not shown to us that the head master could issue a directive to the teachers to do work other than their legitimate work i.e. the work of teaching. As a teacher the petitioner was bound only to do that work and no other work. Of course, if the contract of employment provides that a teacher in the municipal primary school and doing the work of teaching would also be called upon to do office work, then that is another matter. Mr. Nandedkar, who appears for the Municipal Committee, had not been able to show to us anything from which it could be deduced that the petitioner had undertaken to do work other than the teaching work of the municipal school. It would follow from this that the petitioner could not be punished for his failure to attend the school punctually at 2.30 p.m. for doing office work which was not part of his normal duty.
4. Apart from that, Mr. Nandedkar was not able to point out to us any provision under the Municipalities Act, or the rules made under the Act, or the byelaws framed by the Katol Municipal Committee, conferring upon the President the power to inflict a punishment upon a teacher. Section 24-B of the Act deals with the 'powers and duties of the president'. It provides that the president shall perform all the duties and exercise all the powers specifically imposed or conferred on him by or under the Act and that he shall, subject to all other restrictions, limitations and conditions imposed by or under the Act, exercise the executive powers for the purpose of carrying out the provisions of the Act. Sub-section (1) of Section 25 of the Act provides that the committee may employ such officers and servants as may be necessary and proper for the efficient discharge of its duties. This provision empowers the committee to make byelaws providing for the delegation of powers, duties and functions to such officers and servants and regulating their procedure, appointment, pay, leave, leave allowance and other conditions of service. It is possible for the Municipal Committee, therefore, to frame a byelaw under Sub-section (1) of Section 25 to confer upon the President the power to take disciplinary action against a municipal servant. Similarly, under Section 27 of the Act the-committee has power to frame byelaws providing for the delegation of powers, duties and functions to a President, Vice-President etc. Where there has been such a delegation, under Section 25(1), the President would be entitled to exercise such a power. The scheme of the Act thus is that the President shall exercise only those powers which are conferred on him by the Act, or those which are conferred on him by the rules or those which are delegated to him by the committee under Section 25(2) or Section 27.
Now, Clause (vii) of the proviso to Sub-section (1) of Section 25 confers on the President the power to make appointment to a municipal post carrying a salary of not more than Rs. 40 a month. Thus, the power is conferred by the Act itself and the President can exercise it. Mr. Nandedkar said that the petitioner drew a salary of Rs. 25 only when he was appointed 24 years ago, and therefore, he belongs to the class of persons who could be appointed by the President under Clause (in) of the proviso. If that is SO) Mr. Nandedkar's argument proceeds, then under Section 15 of the General Clauses Act the President will also be deemed to have the power to suspend or dismiss the person so appointed in the exercise of the powers conferred by Clause (in) of the proviso to Sub-section (1) of Section 25. We would like to point out that in the first place this proviso was added in the C.P. and Berar Municipalities Act, 1922, in the year 1947, while the petitioner entered the municipal service long before this year. Therefore, it is not open to Mr. Nandedkar to contend on the basis of this proviso that the petitioner belonged to a class of persons whose appointment could be made by the President. Secondly, we would like to point out that the petitioner's present salary is Rs. 60 and that he is appointed in a post which carries a time scale of which the maximum exceeds Rs. 40. Clause (in) of the proviso, in our opinion, would not apply to a post in which there is a time scale and the maximum salary in that time scale exceeds Rs. 40.
5. Then Mr. Nandedkar contended that the President is entitled under Section 24-B(i) to exercise the executive power for the purpose of carrying out the provisions of the Act and that this power includes the power to take disciplinary action against a municipal servant. In our opinion, this contention is not correct. The executive power which the President is entitled to exercise-is subject to the limitations and conditions imposed by or under the Act. Section 10(1) of the Act vests the municipal government in the committee itself. Section 25(1) recognises the power of the committee to employ such officers and servants as may be necessary and proper for the efficient discharge of its duties. It will thus be seen that the power to employ servants is reserved with the committee not only by the general provisions of Section 10(1), but expressly by the provisions of Section 25(1). Since the power is reserved with the committee, it cannot be exercised by the President unless it is delegated to him by a byelaw made under Sub-section (1) of Section 25 or under Section 27. No byelaws appear to have been made by the Katol Municipality under either of these provisions. No doubt a power is conferred by Clause (in) of Sub-section (1) of Section 25, but it is confined, as already stated, to appointment to posts of which the salary does not exceed Rs. 40 per month. The power being thus expressly limited to posts which fall in the aforementioned category cannot be construed to be of a wider amplitude by resort to the general terms of Section 24-B.
6. Mr. Badhiye, who appears for the petitioner, pointed out that in the byelaw framed by the Katol Municipal Committee in the year 1950 the power has been conferred on the President to suspend an employee but that this power is made subject to the sanction by the Municipal Committee. Mr. Nandedkar, however, pointed out that the power of suspension to which the byelaw refers is with respect to suspension pending enquiry against a municipal servant and not a suspension by way of punishment. Mr. Nandedkar's contention is correct, but the result is that there is no provision whatsoever in the byelaw which empowers the President to suspend a municipal servant by way of punishment. Such being the position, it is clear that the President's order is without jurisdiction. Mr. Nandedkar says that the Municipal Committee has subsequent to the making of the petition ratified the order of the President, We cannot, however, take notice of such a ratification.
7. It is thus clear that the order made by the President cannot be sustained. Accordingly we quash it and direct that the petitioner be paid his salary for the period during which he was suspended by way of punishment. The petition is allowed and the rule is made absolute. Costs of this petition will be borne by the respondents.