1. This is a plaintiff's appeal from the judgment and decree of the learned Additional Civil Judge of Farrukhabad, dated 2-6-1953, dismissing his suit for a declaration that the resolution of the District Board, Farrukhabad, dismissing him and certain orders passed by it were illegal, ultra vires, unjust and without jurisdiction and tor recovery of a certain amount of money as salary and other allowances and increments earned by him.
2. Jagdish Prasad Pradhau who is the plaintiff appellant in this Court was appointed as an Engineer in the District Hoard, Farrukhabad, which is defendant-respondent in this appeal, some time in March, 1943. The appointment of the appellant was made by the Administrator who was administering the affairs of the Board as it stood superseded. When a new BOARD was elected in 1948 the supersession ceased. It was alleged by the plaintiff-appellant that he received an order of suspension, in October, 1948 and thereafter received a letter, dated 4-4-1949 from the defendant Board intimating that the Board in its meeting held on 30th March, 1949 had dismissed the plaintiff from its service. The case of the plaintiff further was that on 5th May, 1949, be filed an appeal against the order of dismissal to the Government which was allowed by the Government by its order, dated 1st March, 1950, and his dismissed and suspension orders both were set aside and the defendant Board was directed to allow him to resume charge of his. duties with full pav from the date of his suspension to the date of his reinstatement. It was also alleged by the plaintiff that after the passing of the said order of the Government, the defendant Board avoided re-instatement of the plaintiff on some pretext or the other and the Board referred the matter to the Government for reconsideration. It was then alleged by the plaintiff that on the aforesaid reference by the defendant Board the Government modified its previous order passed on his appeal and by a communication dated 15th July, 1950, directed the Board to take fresh proceedings against the plaintiff and further directed that the plaintiff would be deemed under suspension from the date on which he was originally suspended. It was alleged that in pursuance of the order of the Government the President of the Board served upon the plaintiff a fresh charge-sheet calling upon him to submit an explanation within a month and without giving him a proper opportunity to reply to the charges, the defendant Board by its resolution, dated 30th November, 1950, communicated to the plaintiff by an order, dated 8th February, 1951 that the defendant Board had dismissed him from its service
3. It appears that when the Board did not allow the plaintiff to resume his duties after his appeal had been allowed and dismissal was set aside, he filed a suit (Suit No. 21 of 1950) for an injunction against the Board which suit was also tried along with the suit giving rise to this appeal, but we are not concerned in this appeal with the merits of that suit. The suspension order, dated 11/16th October, 1948 was attacked by the plaintiff on the ground that if was ultra vires of the District Board and was without jurisdiction. The validity of the resolution of the Hoard, dated 30th March, 1949, was also questioned on various grounds but it is not necessary to mention them as the said resolution was set aside by the Government on appeal by its order, dated 1st March, 1950, and the plaintiff took his stand upon the finality and binding nature of this order of the Government. It was pleaded that the defendant Board or its President had no right to make any representationagainst this order or call for its review from the Government and the Government in its turn had no jurisdiction to entertain the representation or application for review of the defendant Board, and review its previous order. The second order of the Government, dated 15th July, 1950 revising or reviewing' its previous order, according to the plaintiff, was without jurisdiction. The plaintiff's case was that the second enquiry held in pursuance of the illegal order of the Government was without jurisdiction and the resolution of the Board, dated 30th November, 1950, dismissing him was ultra vires. The latter resolution of the Board, dated 30th November, 1950 was attacked on merits also substantially on the ground that no opportunity was afforded to the plaintiff to meet the charges framed against him. The validity of the resolution itself was attacked on the ground that it was not a special resolution and could not, in law, effect the dismissal of the plaintiff. According to the plaintiff the order of the Government, dated 1st March, 1950, was a final order and was binding on the defendant Board and the plaintiff would never be deemed to have been suspended and would always be deemed to have been in service as an Engineer entitled to his pay and allowances which his post carried. Accordingly the plaintiff claimed a decree for Rs. 13,842-12-0 with interest pendente lite and future. The particulars of this claim were explained in the plaint.
4. In its written statement the defendant Board while admitting that the plaintiff was appointed as an Engineer in the Board in March, 1.943, and further admitting the various orders and resolutions referred to in the plaint denied all other allegations of the plaintiff. It was pleaded that the suspension order was rightly passed and the resolution suspending the plaintiff as well as the second resolution dismissing the plaintiff were proper and valid resolutions and were passed after giving full opportunity to the plaintiff to show cause against the charges framed against him and there was no violation of any principle of natural justice. It was also pleaded that the original suspension order was a legal order and continued operative throughout fill the plaintiff was dismissed by the resolution of the Board, dated 30th November, 1950. It was also pleaded by the defendant Board that the order of the Government, dated 1-3-1950 allowing the appeal of the plaintiff was passed on a misapprehension and when true facts were brought to the notice of the Government by the defendant Board, the Government modified its previous order and that such a modification or revision was within the powers of the Government under the law. Certain legal pleas were also raised in regard to the maintainability of the suit and questioning the jurisdiction of the civil Court to try the suit. It was also pleaded that the Government not being made a party to the suit, it was bad for not impleading the necessary parties.
5. On the pleadings of the parties, the learned Judge of the trial Court framed as many as 33 issues. It appears to us that many of them related to the first enquiry against the plaintiff culminating in the resolution of the Board, dated 30th March, 1949, and to the validity of that resolution and were not called for, inasmuch as by the order of the Government, dated 1st March, 1950, or by its subsequent order, dated 15th July, 1950, the said proceedings and the resolution of the defendant Board were set aside. The material issues which required consideration were those in respect of the original suspension order of the Board, dated 11/16th October, 1948, the effect of the order of the Government, dated 1st March, 1950, the validity of the order of the Government, dated 15th July, 1950, modifying its previous order and the validity of the proceedings against the plaintiff held by the defendant Board in pursuance of the order of the Government, dated 15th July, 1950, culminating in the resolution, dated 30th November, 1950, dismissing the plaintiff. it will also be pertinent to observe that the civil Court had no jurisdiction to examine the truth or falsity of the charges framed against the plaintiff by the defendant Board and all the issues which relate to that question and to the question whether the plaintiff was negligent in the discharge of his duties and was inefficient and dishonest in his work were unnecessarily framed and considered.
6. The Court below repelled the technical, pleas of the defendant relating to the jurisdiction of the Court to try the suit and its maintainability. It held that it had jurisdiction to try the suit and the suit as brought was maintainable. On the validity of the suspension of the plaintiff by the order, dated 11/16th October, 1948, the Court below held that it being a suspension pending an enquiry and not a suspension by way of punishment, the defendant Board was not required to give any opportunity to the plaintiff before passing that order. The suspension order was held valid. On the question that the order of the Government, dated 15th July, 1950, was without jurisdiction, the Court below held that no absolute finality was intended to be given to the appellate orders passed by the Government and that such orders were subject to review or revision and the Government was justified in superseding its previous order in exercise of its powers under Section 21 of the U. P. General Clauses Act The Court below further rejected the argument of the plaintiff that assuming the Government had jurisdiction to revise its appellate orders, the revised order was bad as it was passed behind the back of the plaintiff without notice to him, on the ground that neither the giving of any notice to the plaintiff nor hearing him before revising the order was required by law or the rules. The argument of the plaintiff that the Board had no power to make a reference for setting aside of the appellate order of the Government was also rejected. In regard, to the validity of the proceedings on the basis of which the resolution of 30th November, 1950, was passed by the Board, the lower Court held that every opportunity was afforded to the plaintiff and no violation of the principles of natural justice was involved in the procedure adopted. It was held that the plaintiff himself was to blame in not submitting his explanation to the charges framed which were sufficiently clear and precise. It was further held that the resolution of the Board, dated 30th November,1950, was valid and the plaintiff was rightly dismissed. The lower Court did not determine the amount to which the plaintiff would have been entitled had he continued to be an Engineer in the defendant Board, as It came to the conclusion that the order of suspension and the dismissal of the plaintiff were valid and effective.
7. In this appeal Sri K.N. Sinha, learned counsel for the plaintiff-appellant raised the following contentions:-
1. that the order of suspension, dated 11/16th October, 1948, was ab initio void having been passed by the President of the Board who had no power to pass such an order;
2. that the suspension could not last for more than three months and the order of suspension came to an end after the expiry of three months;
3. that the order of the Government, dated 1st March, 1950, in appeal finally determined the rights of the parties and was binding on the defendant Board;
4. that the Government when considering and deciding an appeal filed under Section 82 of the District Boards Act, 1922. acts in a quasi judicial capacity and it has no power to review or revise its decision once made, hence the order of the Government, dated 15th July, 1950, was without jurisdiction;
5. that assuming that the Government had power to review its previous decision, it having done so behind the back of the plaintiff-appellant without any notice to him, the revised order, dated 1.5th July, 1950, was illegal and not binding on the plaintiff;
6. that the resolution of the defendant Board, dated 30th November, 1950, not being a special resolution it could not have the offer of dismissing the plaintiff from service;
7. that the resolution, dated 80th November, 1950, of the defendant Board was vitiated as no opportunity was afforded to the plaintiff to meet and explain the charges framed against him;
8. The first and second contentions of the learned counsel may be taken up together. Exhibit I is the copy of the order, dated 11-10-1948 of the President of the defendant Board. As the submissions of the learned counsel involve an interpretation of the said order, it would be convenient to re-produce it. That order rims thus:--
'Whereas Sri J.P. Pradhan, District Board Engineer, Farrukhabad, has been found guilty of many an offence pointed out in the report of Enquiry Committee approved by the Board in its meeting held on September 19, 1948, and the Board has approved of the recommendations of the said committee, that the said D.B. Engineer, should be suspended forthwith, and
Whereas the Executive Committee to whom the Board referred the case for necessary action, has required me to frame charges against the said D. B. Engineer and direct him to submit his explanation,
I. Shiamlal, President, Farrukhabad District Board in carrying out the aforesaid resolutions and in exercise of the power vested by Sections 40 and 82 of the District Boards Act order that,
Sri J. P. Pradhan, District Board Engineer, is and hereby suspended and directed to submit his explanation to the charges hereby framed against him within a week from the receipt of this order and show cause why he should not be dismissed, and criminal or civil or both actions for which the Board may be advised, taken against him.
Sri J.P. Pradhan, is further asked to hand over his charge to the Secretary, D.B. in the Board's office and he (Sri. J.P. Pradhan) must not leave headquarters without permission.
District Board Farrukhabad.
9. Learned counsel relying upon the third paragraph of this order strenuously contended that it was passed by the President himself and not by the Board. Section 90 of the District Boards Act, 1922 (hereinafter culled the 'Act') lays down that suspension may be of two kinds, suspension as a punishment and suspension pending enquiry or orders. Sub-section (2) of Section 90 then provides that where a general power to punish is conferred by the Act, it shall be deemed to include it power to suspend as u punishment for a period not exceeding three months. Sub-section (3) of Section 90 provides that where a power of dismissal is conferred by this Act, it shall be deemed to include a power to suspend any person against whom the power of dismissal might be exercised, pending enquiry into his conduct. It will thus be seen that the authority who has the power to dismiss an employee of the Board has also the power to suspend him pending an enquiry into his conduct. The statute does not fix any limitation on the period of suspension pending an enquiry. The three months limitation is to be found in Sub-section (2) of Section 90 of the Act where the suspension is awarded as a punishment. The suspension pending an enquiry may continue during the whole course of the enquiry and there is no substance in the argument of the learned counsel that the suspension of the plaintiff by the order, dated 11/16th October, 1948, could not have lasted for more than throe months,
Learned counsel, however, tried to clarify his argument and submitted that according to Ex. I the suspension which was ordered was as a punishment and not pending enquiry. Learned counsel pointed out that the preamble of that order clearly shows that the Enquiry Committee had found the plaintiff guilty of many an offence and the report of the Enquiry Committee was approved by the Board. We do not think that any such inference as advocated by the learned counsel follows because the very next paragraph shows that, the President was required, in accordance; with the directions of the Executive Committee of the Board, to frame charges against the plaintiff and call upon him to submit his explanation, This will go to show that in the first part of the preamble to Ex. 1 some report of a preliminary nature was submitted by the Enquiry Committee which was approved by the Board at its meeting held on 19m September, 1948, as disclosing a prima facie case for enquiry against the plaintiff by framing of charges. The use of the words 'has been foundguilty of many an offence' pointed out above is no doubt inapt but the two clauses of the preamble to the order read as a whole leave no doubt that what was meant was that there was prima facie material against the plaintiff that he had committed certain offences which required taking of immediate action against him. The contention of the learned counsel that Ex. 1 was an order punishing the plaintiff by suspending him is. therefore, rejected.
10. The next question that arises is whether Ex. 1 in substance shows that it was the President who passed the order of suspension pending enquiry or it was the Board which had decided to suspend the plaintiff and the President merely purported to convey the decision of the Board. We think that it would be more natural and reasonable to construe the order in the latter sense. The first paragraph of the order indicates that the Board bad approved of the recommendations of the Enquiry Committee that the District Board Engineer should be suspended forthwith. The second paragraph indicates that the Executive Committee of the Board had required the President to take the necessary action to frame charges, etc. It was in pursuance of what the Executive Committee of the Board had directed the President to do that the order was passed. The operative portion of the order contained in the third and fourth paras, in the light of what is stated in the earlier paras, is indicative of the fact that it was not President who had decided to suspend the plaintiff and it was not his mental act, but what he purported to do wax to order suspension as directed by the Board. We are not able to accept the submission of the learned counsel that it was the mental act of the President and his decision to order suspension of the plaintiff. The order as a whole and in substance shows that it was the Board which decided to suspend the plaintiff pending the proposed enquiry against him. Having come to the conclusion that it was the Board which suspended the plaintiff, it is not necessary to go into the question whether the President in exercise of certain powers of the Board delegated to him could pass the suspension order against a Board's employee pending an enquiry. It has not been disputed by Sri Sinha that the Board, which had the power to dismiss the plaintiff, had the power under Section 90 of the Act to suspend him pending enquiry.
11. As regards the third contention, it has not been seriously disputed by the learned counsel for the defendant-respondent that if it is held that the order of the Government, dated 1st March, 1950, has not been legally superseded by the latter order of the Government, dated 15th July, 1950, then it is determinative of the rights of the parties and would be binding on the defendant Board. It was faintly suggested that the order, dated 1st March, 1950, was passed by the Government without hearing the Board's view and the Board was justified in asking for its reconsideration hence it was open to the Board to contend that the order, dated 1st March, 1950, was not a valid and binding order. But we think that this submission of the learned counsel for the respondentcan more appropriately be considered in connection with the question of the validity of the second order of the Government setting aside its first order. Merely because the Board was not heard when the order, dated 1-3-1950 was passed by the Government would not make that order ultra vires or void.
12. It is the fourth contention of the learned counsel for the plaintiff-appellant which raises important issues is the main contention in appeal. As already mentioned in the earlier part of this judgment, the learned Judge of the Court below was of the view that it was open to the Government under Section 21 of the U. P. General Clauses Act to change the order whenever it deemed fit and it had the power to review or revise its previous order. The Court below further held that there was nothing in the District Boards Act, 1922 to bar the Government to review or revise an order passed in appeal under Section 82 of the Act. It has been contended by Sri Sinha, learned counsel for the plaintiff-appellant that there is no inherent power of review in any Court or tribunal which is under a duty to act judicially or quasi judicially unless the statute expressly confers such a power and the Court below was in error in holding that as there was nothing in the Act to take away that power, the Government retained such a power. We think Sri Sinha is on strong grounds in making this submission. Indeed, the learned counsel for the defendant-respondent does not dispute this proposition, but he contended that in entertaining appeals under Section 82 of the Act and in passing orders thereon the Government does not act quasi judicially but only as an administrative body in discharge of its govermental functions to preserve the working of the local bodies. It was urged by the learned counsel for the respondent that the Board when by a resolution dismisses an Engineer, it is under no duty to act judicially or quasi judicially and, therefore, an appeal against that dismissal to the Government would not change the nature of the proceedings and what the Government in its Local Self Government Department does is only to review the papers and find out whether the resolution of the Board was proper. It was contended that the Government is under no duty, when considering and deciding an appeal, to consider whether the resolution of the Board dismissing its employee was just. It was strenuously urged that even though the resolution of the Board may not be just and proper yet on grounds of administrative policy it would be open to the Government under the Act to reject the appeal against that resolution.
It is difficult to agree with this extreme argument of the learned counsel for the respondent. Certainly the framers of the Act, when they enacted Section 82 of the Act and conferred a right of appeal to the State Government within one month from the date on which the order of dismissal was communicated, did not intend to confer an illusory or ineffective right. The words used in the statute are 'the said servant shall have a right of appeal to the State Government'. In order to find out whether the Board when it considers a resolution of dismissal of anemployee and the State Government when if decides an appeal under Section 82 of the Act are both bound to act judicially or any one of them is bound to act judicially would depend on the provisions or the statute read along with the nature of the rights affected, the manner of disposal provided, the objective criterion, if any, to be adopted, the effect of the decision, on the person affected and other indicia afforded by the statute. This is what has been laid down by the Supreme Court in the case of Board of High School and Intermediate Education, U. P., Allahabad v. Ghanshyam Das Gupta, AIR 1962 SC 1110. When an employee of a Board is charged with misconduct in the discharge of his duties and he is found to be guilty, the punishment which is to be awarded to him would affect his service and earning, thus affecting the very source of his livelihood as well as his family's well being. The punishment awarded by the Board would have serious and grave consequences. That would be the effect of the decision. The rules which have been framed, namely, the framing of the charges, affording of an opportunity to submit an explanation on the charges by the employee and then a consideration of it, all go to show that it is intended that the Board in such a matter would come to decisions objectively on the facts as established and is under a duty to act fairly. Even though hearing as such, that is, by producing witnesses and cross-examining them may not be contemplated before the Board yet the material furnished on which the charges were framed and the reply submitted by the employee will have to be objectively considered before a decision can be arrived at. As has been observed by the Supreme Court in the case of AIR 1962 SC 1110 (supra) the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provision of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. In all cases where the question of dismissal, removal or termination of service is involved, it is common knowledge that elaborate rules of procedure in relation to the enquiry against the servant in all avenues of employment, governmental or otherwise, have been made and rights of appeal conferred against the decision of the punishing authority. It has not been seriously doubted in any such case that the punishing authorities or the appellate authorities in these matters do not act judicially. We do not think that the framers of the Act and the rules made thereunder, so far as the case of an Engineer of a Board was concerned, intended something different.
Learned counsel for the respondent drew our attention to the Full Bench decision of this Court in the case of U. P. State v. Murtaza Ali, 1961 All LJ 287: (AIR 1961 All 477) (FB), in support of his submission that under the scheme of the Act it is the resolution of the Board by which the Engineer stands dismissed and any rule framed by the Government or any notification issued by the Government requiring a framing of charges, calling for an explanation and granting an opportunity to be heard before passing the resolution dismissing him would be ultra vires of the State Government and will not he binding on the Board. We do not think that the Full Bench case relied upon by the learned counsel can assist him as the question that fell for determination in that case related to the regulations made under the Municipalities Act and even if it could be said that the provisions under the Municipalities Act and the District Boards Act were in pari materia, we think the decision in the case cited would be of no avail in resolving the question with which we are faced in the instant case. Even if it be assumed for the sake of argument that the Board in passing a resolution of dismissal of its Engineer is under no duty to act judicially, we have no doubt in our mind that the State Government when entertaining and deciding an appeal is bound to act judicially.
It has been pointed out above that under Section 82 of the Act it is a right of appeal which is conferred. There is nothing in the Act or in the rules or the regulations which could throw light as to how an appeal is to be heard and decided though there are some rules for guidance about its presentation. The employee is under a duty to furnish a copy of the resolution and a memorandum of appeal. The Act and the rules are silent as to what the Stale Government is required to do when such an appeal has been filed. Merely because the statute itself does not provide what the Government in passing an order on appeal is required to do or is required to act judicially and the statute is silent about it, even so as the question involved in the appeal by the employee relates to his service, earnings, reputation and well being, a decision on it would have serious effects and repercussions, it would not be unreasonable, therefore, to infer that the State Government is bound to act judicially. We are not impressed with the argument of the learned counsel for the respondent that the Government while exercising its appellate powers under Section 82 of the Act, performs its governmental functions for the preservation of the order in Local Self Government and it is not bound to act: judicially, for if that were the intention, Section 82 would not have used the words that the said servant shall have a right of appeal to the State Government. A right of appeal, in our opinion, implies a right to press that appeal before the Government for consideration. We do not find any word of limitation in the statute on the powers of the Government to take a decision and the right conferred on the servant of the Board is of the widest amplitude. The right would only he an effective right if the appellant can compel the appellate authority, which is the State Government, to look into all the relevant material with! a view to review afresh all the facts, circumstances and the legalities of the matter and then arrive at a decision. It is clear to our mind that once that is the scope then the State Government is bound to act judicially for it has to arrive at an objective decision. We are not impressed at all with the submission on behalfof the respondent that it is open to the Government to reject an appeal of a servant on grounds of administrative policy in the matter of dismissal, removal, and reduction of an employee.
Learned counsel for the respondent referred to the case of Murlidhar v. State of U. P., 1963 All LJ 1116 at p. 112.1: (AIR 1964 All 148 at p. 151). We do not think that the view which we have taken of the functions of the Board and that of State Government under the scheme of the Act in relation to dismissal, removal, discharge or reduction of a servant of a Board militates against the principles laid down in the case cited for determining whether they are bound to act judicially. Having thus determined that the State Government as an appellate authority is hound to act judicially in considering an appeal filed under Section 82 of the Ac! no doubt remains in our mind that the State Government acts as a Tribunal with quasi judicial powers and unless the Statute provides that it fan rescind, modify or review its decision once taken it will have no such power. It is well settled that a power of review is not inherent in a Court or Tribunal but has to be conferred by the Statute as has been held by the Supreme Court in the case of Laxman Purshottam v. State of Bombay, AIR 1964 SC 436.
13. Sri Shanti Bhusban then sought to rely on Section 21 of the U. P. General Clauses Act to establish that the power to pass an order on the appeal under Section 82 of the Act having been conferred on the State Government: that power includes a power exercisable in the like manner to amend, vary or rescind any order. It was submitted that the order, dated 15-7-1950, superseding the previous order, dated 1-8-1950 was passed in exercise of the powers conferred under that section. We are unable to accept this submission. The word, 'order' occurring in Section 21 obviously refers to executive orders or subordinate legislation and not to judicial or quasi judicial orders, the passing and cancellation whereof is subject to and regulated, by procedural laws. As the word 'order' in Section 2.1 is associated with notifications, rules and bye-laws, it is not capable of being interpreted as including judicial or quasi judicial orders. Sec Bachchu Lal v. State, AIR 1951 All 836.
14. For the reasons given above we hold that the order of the Government, dated 15-7-1950 was without jurisdiction and would not have the effect in law of superseding the order, dated 1-3-1950. The rights of the parties would be governed, therefore, by the order, dated 1-3-1950 by which the suspension and dismissal of the appellant was set aside and he was reinstated with full pay and allowances.
15. In view of our finding that the order of the State Government, dated 15-7-1950 was without jurisdiction and its order, dated 1-3-1950 finally determined the rights of the parties and was binding on the defendant Board, the proceedings which were taken against the plaintiff appellant on the basis of the order, dated 15-7-1950 would be illegal and ineffective. It is not necessary, therefore, for the decision of this appeal to consider the legal questions involved in the fifth, sixth and seventh contentions of the learned counsel for the appellant.
16. The result is that this appeal succeeds. The decree of the Court below dismissing theplaintiff's suit is set aside. The plaintiff's suitfor a declaration that the Board's resolution,dated 30-11-1950 purporting to dismiss the plaintiff and the revised order of the Government,dated 15-7-1950 are illegal and ultra vires andwithout jurisdiction is decreed, and a declaration to this effect shall issue. Inasmuch as thelower Court had not decided issue No. 33, thesuit is remanded to the Court below for determining the amount to which the plaintiff wouldbe entitled. The plaintiff appellant would beentitled to the costs of this appeal.