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Chandra Gupta Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1968)IILLJ594All
AppellantChandra Gupta
RespondentState of Uttar Pradesh and anr.
Excerpt:
- - similarly, section 66a, which deals with the appointment of an officiating secretary, permits the conditions of service as well as salary to be prescribed. it was not an allowance granted to recoup expenses on particular items or special occasions, like the travelling allowance, housing allowance, etc. 8. the distinction, which in my opinion the municipalities act seems to draw while using the word 'salary' was merely to exclude specific expenditure, allowances or their like......sub-section (2a) of section 48 of the uttar pradesh municipalities act. on 15 september 1976 the state government had served a chargesheet on the petitioner. the chargesheet required his explanation. the petitioner submitted his explanation on 14 october 1968, refuting the various charges. in its impugned order, the state government has held that the charge relating to the appointment of three persons was substantiated. the state government found that the petitioner, as the president of the municipal board, had no jurisdiction to make those appointments because the basic salary upon which the appointments were made did not exposed rs. 40 per month. such appointments should have been made by the executive officer of the municipal board in view of section 75 of the act. the petitioner.....
Judgment:

Satish Chandra, J.

1. By the impugned order on 10 January 1968, the State Government has removed the petitioner from the office of the president of the municipal board, Kansanj, under Sub-section (2A) of Section 48 of the Uttar Pradesh Municipalities Act. On 15 September 1976 the State Government had served a chargesheet on the petitioner. The chargesheet required his explanation. The petitioner submitted his explanation on 14 October 1968, refuting the various charges. In its impugned order, the State Government has held that the charge relating to the appointment of three persons was substantiated. The State Government found that the petitioner, as the president of the municipal board, had no jurisdiction to make those appointments because the basic salary upon which the appointments were made did not exposed Rs. 40 per month. Such appointments should have been made by the executive officer of the municipal board in view of Section 75 of the Act. The petitioner hence wilfully contravened the provisions of Section 75.

2. The impugned order of the State Government has been challenged on several grounds. It was urged-

(1) That the view of the State Government as to the interpretation of the word 'salary' as occurring in Section 75 was manifestly erroneous.

(2) That in the absence of a finding that the wilful contravention of the provisions of Act was such as rendered the petitioner unfit to continue to be president, the State Government had no power to remove him.

(3) That the view of the State Government that the petitioner wilfully contravened the provisions of Section 75 was also manifestly erroneous.

3. Section 75 of the Municipalities Act provides:

75. Appointment of permanent inferior staff.- Except as otherwise provided the executive officer shall appoint.

(a) servants on a monthly salary not exceeding Rs. 40 or in a city Rs. 50, and (b) * * *

The State Government has in the impugned order held that the word 'salary' means basic pay, and does not include any allowances. For this view, reliance was placed upon Rule 9(21) of the Financial Handbook, Vol. II, Part II, where, according to the impugned order, the word 'salary' was defined to mean basic pay exclusive of any allowances. Sri Khare appearing for the petitioner invited my attention to this rule. It appears that this defines the word 'pay' and not the term 'salary'. A perusal of the various provisions of the Municipalities Act shows that the word 'pay' and the term 'salary' have not been used therein as interchangeable terms. Section 50(b) of the authorizes the president to determine questions arising in respect of service, transfer, leave, pay, privileges and allowances of the servants of the board. Here the word 'pay' has been used in conjunction with the allowances, as indicating some of the conditions of service of servants of the board. Section 57 which deals with the appointment of executive officer and medical officer of health in Sub-section (3), uses the phrase 'their salaries and conditions of service.' Under it, the appointments of executive officer and medical officer of health are subject to the prior approval of the State Government and their salaries and conditions of service are such as have been prescribed. It was urged with considerable force that if the word 'salary' did not include the dearness allowance, the executive officer and the medical officer of health would not at all be entitled to it, because there was no other provision in the Act relating to it. The word 'salary' in Section 57(8) would, in my opinion, include all kinds of emoluments and payments, which the executive officer and the medical officer of health would get. Similarly, under Section 59(3), salaries appertaining to the appointments of officiating executive officer are to be such as may be prescribed. Under Section 65, the State Government can fix the salary; contribution to the provident fund, pension and other conditions appertaining to the post of executive officer. The same is the position under Section 66 in respect of the secretary of a board. His salary and other conditions of service are to the prescribed. Similarly, Section 66A, which deals with the appointment of an officiating secretary, permits the conditions of service as well as salary to be prescribed. Section 68(6) uses the term 'salary and other conditions of service.' Section 70 vests the power to appoint and fix salaries of temporary servants in the president. Here the word 'salary' has been used simpliciter without the phrase 'other conditions of service.' The word 'salary' here would undoubtedly indicate all kinds of emoluments, which a temporary servant is to get after his appointment. Else, there being no provision dealing with such other allowances, the temporary servants would not be entitled to claim any such allowances.

4. In my opinion, the Municipalities Act drawn a distinction between the terms 'pay' and 'salary'. It uses the word 'pay' along with allowances in Section 50(b) and in the context it may urged that the word pay does not include the allowances that may be payable. But that restricted conzotation, in my opinion, is not available when we come to consider the import of the word 'salary' used in the Act, specially, in Section 75. The language of Section 75 does not justify the restricting of the amplitude of the normal significance of the term 'salary'. For instance, in Section 77B(6), it has been provided that an officer or servant who is placed under suspension will be entitled to receive, instead of salary, such subsistence allowance as may be prescribed. The nature of the subsistence allowance is similar to that of salary ; yet it has been separately described.

5. The word 'salary' has been used in Section 60(1)(1) of the Civil Procedure Code. In V. Srinivasan v. Padmasini Ammal 1958-I L.L.J. 318], it was held that the salary included dearness allowance. The reason given by Pasohapakesa Ayyar, J, was that the character of the payment of dearness allowance was similar to the character of salary. It was a part of the main salary. Dearness allowance fulfilled the very same function as the basic pay. It was an addition to the salary though for a temporary period. The only difference between dearness allowance and basic pay was the temporary nature of payment of the allowance. It was not an allowance granted to recoup expenses on particular items or special occasions, like the travelling allowance, housing allowance, etc. In my opinion, the principle enunciated in the case of Srinivasan 1958-I L.L.J. 818 cited above, would be applicable to the interpretation of the word 'salary' as occurring in Section 75.

6. It was further urged that the rules relating to the management of the provident fund printed at p. 642 of the Municipal Manual, 1952 Eis., Vol. I, define the term 'salary' to include all fixed monthly allowances by way of pay or personal allowance, though allowances granted to meet specific expenditure such as travelling, horse, conveyance or house-rent allowance, whether daily or monthly, are excluded from the concept of salary. The dearness allowance, in my opinions, would be a fixed monthly allowance by was of personal allowance. It cannot be treated as an allowance granted to meet any specific expenditure or for any specific occasion.

7. In was urged on behalf of the State Government that the payment of dearness allowance is ex gratia. The employee has no legal right to it. Further, the payment has no relation to the services rendered by the individual servant. It is not attached or linked to the office. All these aspects would be equally applicable to basic pay drawn by an individual servant. The servant has a right to the basic pay only so long as the scale of pay is not varied by the competent authority.

8. The distinction, which in my opinion the Municipalities Act seems to draw while using the word 'salary' was merely to exclude specific expenditure, allowances or their like. The dearness allowance would be within the concept of the word 'salary' as used in Section 75 of the Act. The State Government was in error in taking the contrary view. It is agreed that if the dearness allowance is held to be within the concept of salary, then the petitioner committed no contravention of Section 75, because in each of the three appointments the total salary (inclusive of dearness allowance) was more than Rs. 40. In this view of the matters, the entire basis of the impugned order falls, because that was the only charge held established against the petitioner.

9. As the petition succeeds on the first point, it is not necessary to deal with the other points.

10. The petition, therefore, succeeds and is allowed. The impugned order removing the petitioner from the office of the president is quashed. The petitioner would be entitled to his costs.


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