J.K. Tandon, J.
1. In both these petitions the petitioner is Sri Seoti Prasad, Executive Officer of the Municipal Board at Farrukhabad. He has been on that post since 1940. Dr. Raghubir Datt Sharma, respondent No. 1 in petition No. 2098 of 1958, is the President of the said Board to which office he was elected in 1957. Prior to that Dr. Sarin, who is not a party here, used to be the President for some years. The petitioner has alleged that there was professional rivalry between Raghubir Sharma, on the one hand, and Dr. Sarin, on the other.
Raghubir Dutt Sharma was also a member of the Board during the period Dr. Sarin was the President and according to the petitioner Dr. Raghubir Datt Sharma was always eager to discredit Dr. Sarin's administration and to that end in view he wanted the petitioner also to help him in his plans which he did not accept. With this background when Dr. Raghubir Datt Sharma assumed the office of the President of the Board in 1947 he soon after manoeuvred a number of complaints to be made by members of his group against the petitioner and also succeeded in getting at least four resolutions passed against him at the meeting of the Board held on 23rd September 1957.
On 8th January 1958 he then called upon the petitioner to submit his explanation by the following day on the four resolutions and again on 21st January 1958 served upon him 24 charges, which were later supplemented by few more making the total 39, accusing him of misconduct etc. At the same time he on 21st January 1958 suspended the petitioner pending completion of the enquiry against him.
2. The petition contains certain allegations also to the effect that the respondent No. 1 did not at first allow the petitioner inspection etc. of certain documents which were material for answering the charges and that it was after considerable difficulty that he was allowed to see such of them only as the respondent considered necessary. The petitioner's purpose in referring to these details clearly is to allege that he had not been afforded the opportunity which he wanted.
3. It is both parties case that the proceedings against the petitioner were started under Section 69-A of the U. P. Municipalities Act. There are two independent provisions in the U. P. Municipalities Act. One is contained in Section 58 which gives to the Board the power to punish, dismiss or remove its Executive Officer by a special resolution supported by not less than two thirds of the members constituting the Board. Against the order of theBoard punishing, dismissing or removing the officer, the section also provides an appeal to the State Government within 30 days o the communication to him of the order of punishment or dismissal.
The second provision is in Section 69-A which vests the President with power to initiate enquiry against an Executive Officer where he has reasons to believe that such officer is corrupt or has persistently failed in the discharge of his duty or is other-wise guilty of misconduct. As it will be necessary in the course of discussion to refer to the several provisions contained in these sections it is worthwhile to produce them in this judgment. They read as follows :
'58 (1) A board may punish, dismiss or remove its executive officer by a special resolution supported by not less than two thirds of the members constituting the board, subject to his right of appeal to the State Government within thirty days of the communication to him of the order of punishment or dismissal.
(2) The State Government may suspend the Executive Officer pending the decision of an appeal under Sub-section (1) and may allow, disallow or vary the order of the board.
(3) ...... ...... ....'
'69-A (1) If the President has reasons to believe that the Executive Officer or the Secretary or any of the other officers of the Board appointed under Section 68, is corrupt, or has persistently failed in the discharge of his duties or is otherwise guilty of misconduct, he may frame charges against him and where he is satisfied that it is so necessary, he may, for reasons to be recorded, suspend him pending the completion of enquiry.
(2) Whenever the President takes action under Sub-section (1) he shall inform the State Government and also forward to it a copy of the chargesframed.
(3) The enquiry under Sub-section (1) shall be carried on in such manner as may be prescribed by rules.
(4) After the enquiry is completed, the President shall submit the record with his recommendation to the State Government or to the Board as he may consider fit. The State Government or the Board, as the case may be, shall thereupon, notwithstanding anything contained in Sub-section (1) of Section 58, or 67 or 69, proceed to consider the report and may, after such further enquiry as it may deem necessary, suspend, dismiss, remove or exonerate the Executive Officer or the Secretary or such ether officer to whom Section 69 applies, as the case may be.
(5) Whenever the Board acts under Sub-section (4) the condition prescribed in Section 58 shall apply and an appeal shall lie to the State Government in the matter and to the extent provided in the said section.'
4. It will be noticed that under Section 58 the power to punish and take action against the Executive Officer belongs to the Board. Under Section 69-A the President, though he may not make the ultimate order of punishment or dismissal is armed with the power to serve charges on the Executive Officer and hold an enquiry against him. Pending completion of the enquiry the Executive Officer can be placed under suspension also. After the President completes the enquiry he has to submit the record of the enquiry with his own recommendation to the State Government or to the Board, as he may consider fit.
Thereafter the State Government or the Board, as the case may be, has to consider the report and they may after such enquiry, as might be deemed necessary, pass an order punishing, removing or exonerating the Executive Officer. Under Sub-section (2) of the same section the enquiry is to be earned out in the manner prescribed by rules. Since the President has a choice under Sub-section (4) to submit the record of his enquiry either to the Board or to the State Government Sub-section (5) has provided that--where it is submitted to the Board the conditions prescribed in Section 58 are applicable and an appeal will also lie to the State Government in the same way and to the same extent as provided in that section. It followed from the provisions of Sub-sections (4) and (5) that in cases where the record is submitted to the State Government there is no appeal from the order passed by that Government.
5. When the petitioner had been served with the charges by respondent No. 1 and an enquiry was thus started against him, he requested the President to let him have a copy of the rules framed under Sub-section (3) of Section 69-A in accordance with which the enquiry had to be carried on. In reply he was informed that no rules were available with the Board. The petitioner's allegation is and this has not been controverted by the respondents also that no separate rules have yet been prepared under this sub-section concerning enquiries under Section 69-A.
One of the contentions which therefore he has urged against the validity of the enquiry held against him is that in the absence of the rules, the enquiry itself could not be carried On and the same is therefore invalid. At this very place it will however be worthwhile to mention that an enquiry was nevertheless held by respondent No. 1 on the various charges handed over to the petitioner including the examination of witnesses relied upon by the two sides.
6. Some other facts mentioned by the petitioner are that the enquiry was at one time over by the President on 10th April, 1958 when he asked the respondent to cancel his suspension in terms of Section 69-A on the completion of the enquiry. The petitioner does not appear to have remained satisfied with his so asking the President but he actually told the President that since his suspension could be for the period of the enquiry only it had automatically come to an end and that he had resumed his office.
This attitude of the petitioner, whatever the legal position may be, was very extraordinary; in any case it betrayed want of propriety on the part of a public servant holding responsible position as he was. It will be relevant also in judging the action regarding suspension taken against him subsequently and in respect of which the other petition No. 2225 of 1958 is made.
7. The enquiry was finally concluded by the President on 28th May 1958 when he submitted his report to the State Government. After the report had been submitted to the State Government, the latter, it appears made a fresh order suspending the petitioner from his office. Thereupon the petitioner filed the second petition in which he is challenging the power of the State Government to suspend him pending enquiry under Section 69-A.
8. Before the grounds on which the two actions, one of the President and the other of the State Government are attacked are stated the following few facts will be noticed. Admittedly theenquiry is still pending before the State Government which has not passed any final order. In the mean time, however, the petitioner has forwarded his representation against the report and recommendation of the President to the State Government.
Though he had been suspended by the State Government by an independent order after the receipt of the President's report, the petitioner is still working the operation of the suspension order having been suspended by this Court. According to the respondents the petitioner was responsible for manipulations and interferences with the Municipal papers also in order to suppress or do away with the evidence against him on the several charges handed over to him. The charges against the petitioner include allegations accusing the petitioner of acts and omissions which admittedly required to be corroborated etc. by documents.
As an Executive Officer the petitioner will have access to those documents. On his own showing he was not pulling on well with respondent No. 1. Whether he was justified or not in that conduct, he adopted a defying attitude from the very start. The learned counsel for the respondents has rightly pointed out that the petitioner had not only pitched himself against the President but was prepared to defy his authority also. Whether he bad justification or not for such a conduct is not for this Court in these proceedings to comment upon but it had certainly furnished ground for taking action to suspend him by the authorities.
This was necessary as a security measure for the successful carrying out of the enquiry and excluding chances of prejudicial action by the petitioner who should he be so disposed was in a position to affect it. On the facts therefore it will be difficult to dispute that a suspension order was necessary in the petitioner's case. It will, however, need to be judged whether the law also gave the power to the State Government or the President.
9. Dealing with Section 69-A under which action has been taken against the petitioner, his objection is firstly that Sub-section (4) thereof is discriminatory, therefore, void under Article 13 read with Article 14 of the Constitution, and, secondly, that in the absence of any rules made under Sub-section (3) of the section the power to carry on enquiry does not exist. Two arguments have been urged in support of the plea of discrimination : One argument proceeds by reference to Section 58 and is thus.
10. Section 58 and Section 69-A both contemplate punitive action against the Executive Officer. The petitioner therefore contends that an arbitrary power belongs to the authorities concerned to take action according to their sweetwill under one or the other provision. Neither section contains, according to him the circumstances in which action will commence under one or the other. Section 58 gives to the Executive Officer a right of appeal from the original order, which has to be passed by the Board, to the State Government, but Section 69-A does not give any such right where the order is passed by the State Government. This action is according to him discriminatory.
11. The objection is clearly based upon an in-complete appreciation of the provision of the two sections. Section 58 vests the Board with the power to punish etc., the Executive Officer by a special resolution. It also gives to the Executive Officer a right of anneal to the State Government against the order of the Board. Action under Section69-A on the other hand is commenced by the President. The President where he has reasons to believe that the Executive Officer has failed in the discharge of his duties etc. can serve upon him the charges and hold an enquiry.
The Board docs not come in the picture in proceedings under this section until the report is submitted to it by the President. It may never come into picture at this stage also should the President submit the report to the State Government instead of to the Board. Under Section 69-A it is the President who acts and he does so where he himself has reasons to believe for so acting. In one case the action is taken by the Board, in the other this is done by the President.
It is wholly incorrect to contend therefore that they are identical provisions and give a free hand to an authority to act at its sweet will under any one of them. Each is a different provision and different authorities have to act under them. The analogy sought to be relied upon by the petitioner is wholly inapplicable.
12. Under the Municipalities Act a very large number of powers of the Board are exercisable by the President and the President alone. Even though they are powers of the Board, the law requires them to be performed by the President. They are detailed in Schedule 1 of the Act. Again there are other powers which can be exercised by the Executive Officer while some have to be carried out by the Board itself through resolutions, etc.
Thus the President who may not be the Board for all purposes had large powers exercisable by him alone under the Act. As the person charged with those powers, he has a corresponding duty also to see that those powers are properly discharged. An Executive Officer who is to see to the execution of the various orders etc., made under the Act whether by the Board or by the President, has to be answerable to both, in any case to the extent of their respective powers.
It is impossible to overlook this feature of the Municipalities Act in judging the true nature of the powers given to the Board or the President under Sections 58 and 69-A. Each one of them has the right to demand compliance from the Executive Officer of the action they take in the performance of their powers.
13. It was precisely in this background that the Legislature made two different provisions for the taking of disciplinary action against the Executive Officer. Cases have occurred in the past and will continue in the future also where owing to factions in the Board or for any similar reason the Board on the one hand, and the President, on the other, are unable to pull on smoothly and in a corporate spirit.
If, however, the law has cast certain duties on the President alone and likewise other duties on the Board alone, wisdom required that the Executive Officer who is to carry out the orders of both should foe answerable to either and is not permitted conveniently to ignore any of them.
14. Viewing the two sections in the above context the petitioner's charge that they are discriminatory or confer any arbitrary power on one or the other is basically incorrect,
15. The second argument was that Sub-section (4) which pave discretion to the President to submit the record of the enquiry to the Board or to the State Government, as he should think, is discriminatory. No doubt Sub-section (4) gives to the President the discretion to submit the report to one or the other. But what has to be further considered is that does it give him unfettered and arbitrary powers to do one or the other. The sub-section says that he 'may submit the record with his own recommendation to the State Government or to the Board as he may consider fit.'
He has the discretion to submit his report either to one or to the other. He however has to do so as he should consider fit. In other words in deciding whether the report should be sent to the Board or to the State Government he has to bestow his attention and thought to the particular circumstances of the case and to the temper etc., of the Board also. After giving heed to and taking note of these facts he has to decide whether any particular report should be submitted to the Board or to the State Government. It is thus after subjective examination of all the circumstances that he has to make his choice.
16. The learned counsel for the petitioner has contended that the sub-section contains no such guidance, on the other hand gives him an unrestricted, naked and arbitrary power to do that which he likes. The word 'considers' followed as it is by the word 'fit' is incapable of bearing the interpretation placed by the learned counsel. If the President has to bestow his attention and thought in deciding whether to submit the report to one or the other, it cannot be said that he has an unrestricted, naked or a arbitrary power to do so.
The discretion that the legislature in its wisdom gave in the matter to the President will be fully supported from the fact that not unfrequently party strifes and factions dominate certain Boards in their day to day activities. Cases are not difficult to conceive where owing to the existence of such conditions a dispassionate consideration of an Executive Officer's case by a Board is not expected. In such cases, the discretion should belong to the President to submit his report to an authority which, in its opinion, will dispassionately consider the matter on merits and not be led away by irrelevant or exterior considerations.
The power therefore given to the President under Sub-section (4) to refer the report to one or the other authority cannot be held to be unrestricted, naked or arbitrary or discriminatory otherwise.
17. Another argument, which was urged in this connection was that while an appeal lay to the State Government in cases where the ultimate order is made by the Board no appeal lay where the order is passed by the State Government with the result that the President can by submitting his report to the State Government, deprive an Executive Officer of the right of appeal. Comparison was also made by him between Section 58 and Section 69-A in this connection.
A right of appeal is not a common law right. It is a right which is claimable under the statute by which the main right is conferred. Where there fore the statute has not provided a right of appeal against the order of a particular authority, none such will belong to any party and there will hardly be any question of discrimination. Besides, the only right which Section 58 has given is that where the order of punishment etc. is passed by the Board an appeal shall lie against it to the State Government.
The order passed by the State Government is final under this section also. Under Sub-section (41 of Section 69-A too read with Sub-section (5) the position is identical, Where the report is submitted to theBoard and the Board passes the order of punishment etc. it is bound by the same conditions and an appeal similarly lies to the State Government. Where, however the report is submitted to the State Government direct there is no appeal against the order as there is none under Section 58 also.
The only difference which is created by a reference of the report to the State Government thus is that instead of the proceedings reaching before the State Government at the stage of appeal they are laid before it directly. So the entire matter is before it as it will otherwise be On an appeal from the order of the Board. In substance therefore there is no basic difference between the two provisions and no discrimination can possibly be inferred from them.
18. It will thus appear that the petitioner has failed to show that Sub-section (4) of Section 69-A is discriminatory in nature or is void under Article 13 of the Constitution,
19. Coming to the next question, namely, the effect of the absence of any rules made under Sub-section (3) of Section 69-A, it is admitted that no specific rules have been framed under that provision. Two considerations will arise in this connection : the first is whether in the absence of the rules the President loses the power itself to hold the enquiry against an Executive Officer, and the other is if he does not so lose the power shall this Court interfere with the proceedings held by him at this stage.
20. Under Sub-section (1) of Section 69-A the President has been given the power to frame charges against the Executive Officer, if he has reasons to believe that he is corrupt etc. and also to suspend him pending completion of the enquiry. Sub-section (3) requires that the enquiry under Sub-section (1) shall be carried on in such manner as may be prescribed by rules. The petitioner's learned counsel has contended that- the power to conduct the enquiry is dependent on the framing of the rules under Sub-section (3). In other words Sub-section (3) does not provide for the manner alone in which the enquiry is to be conducted but contemplates the power to conduct the enquiry itself also to be derived from the rules to be made.
Having given my most considered thought to the provisions of Sub-section (1) and Sub-section (3) and to the arguments of the learned counsel I am of the opinion that Sub-section (3) provides for the manner alone in which the enquiry shall be carried on. The enquiry itself or rather the power to conduct the enquiry, arises under Sub-section (1). This is borne out by the opening words also of Sub-section (3) which provide that the enquiry under Sub-section (1) shall be carried on in such manner as may be prescribed by rules.
The enquiry itself is held and conducted under Sub-section (1) though the manner in which it has to be conducted is to be prescribed in Sub-section (3). It may be that Sub-section (1) does not, in so many words refer to the holding of the enquiry by the President, but this must be so by necessary implication otherwise the very purpose of Sub-section (1) which gives the President a right to frame charges and suspend the Executive Officer pending the completion of the enquiry, will be defeated.
The true and correct interpretation, which alone will advance the object underlying Sub-section (1) is that the President who has been vested with the power to frame charges etc. is also armed simultaneously with the power to hold the enquiry.
21. Now, therefore, if the power to hold an enquiry belongs to the President under Sub-section (1) and that power arises in his favour, because he has served the Executive Officer charges and has also suspended him pending completion of enquiry, the absence of rules under Sub-section (3) will not divest him of that power. The power belongs to him independently of the rules under Sub-section (3). The absence of the rules may expose the enquiry itself to some further scrutiny but to call it void ab initio on the ground that the President has no power will not be correct.
22. As regards the effect caused on the enquiry by the absence of the rules the question need not be pursued at full length at present. From the facts contained in the petitioner's affidavit and the counter affidavits this much was clear that the charges were served upon the petitioner, he was also allowed an opportunity to inspect documents, both parties were given opportunity to adduce evidence also, and after all this had happened the report was submitted to the State Government.
There is no charge that a reasonable opportunity had not been afforded to the petitioner in the conduct of the enquiry. The fundamentals applicable to enquiries as the present were therefore observed. At the same time it appeared that the result of the enquiry is still awaiting the decision of the State Government. The petitioner has had an opportunity of representing upon the report also to the State Government. The State Government who are seized of the matter will thus be in a position to examine and also hold how far the absence of the rules has affected the merits of the matter.
It will not be proper for this Court at this moment to express its final opinion on that question more so because in case the State Government finds that any prejudice has been caused to the petitioner by the absence of the rules it might send back or quash the proceedings.
23. On this particular question therefore I am of the opinion that the petitioner is disentitled to ask intervention by this Court on the ground aforesaid.
24. The only other question which now remains to be considered is the validity of the suspension order passed by the State Government against the petitioner. Section 69-A gives power of suspension in express terms to the President pending completion of the enquiry. The petitioner's contention is that the enquiry contemplated by Section 69-A is completed the moment the report is signed by the President and submitted to the State Government, and once the report is submitted to the State Government his suspension automatically ended because the enquiry was also completed.
Again, the contention is that though there is provision for appeal against the order of the Board to the State Government, there is no power vested in the State Government to suspend the Executive Officer where the report has been submitted to it direct. While it may be admitted that the section does not expressly provide for the conferment of any such power on the State Government yet the power of suspension will to my mind belong to the State Government independently of it.
The suspension of the petitioner ordered by the State Government was not by way of punishment. It, on the other hand, was ordered by way of security measure pending completion of the enquiry. I have in an earlier portion of this judgment discussed the various facts which reflectedon the conduct of the petitioner. In those circumstances the order of the State Government suspending him could not be held to be wholly unwarranted or without reason. His suspension was considered in the interest of smoothly carrying on the enquiry.
By suspending him his contract of service has not been suspended, on the contrary, he has been suspended 'from performing the duties of his office', as was held in Gurudeva Narayan v. State of Bihar, (S) AIR 1955 Pat 131:
'But I think that even in the absence of a statutory rule Government have power to suspend an officer from performing duties of his office pending an enquiry into the charges levelled against him. In this connection a distinction must be drawn between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting.
'The suspension in the latter sense is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the Officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his office.'
This being the correct legal position the petitioner cannot be permitted to dispute the legality of his suspension which has been ordered as a security measure to facilitate an enquiry.
25. The result of the foregoing discussiontherefore is that neither the proceedings commenced by the President against the petitioner underSection 69-A, nor the suspension order passed againsthim by the State Government are invalid. Boththe petitions are, therefore, dismissed with costs.