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L. Shanker Lal Dahania Vs. L. Balkishan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All57
AppellantL. Shanker Lal Dahania
RespondentL. Balkishan and anr.
Excerpt:
- - vided, servants of the crown hold their offices during the pleasure of the crown, not by virtue of any special prerogative of the crown but because such are the terms of their engagement as is well understood throughout the public service. their lordships were of opinion that the dismissal was by reason of its origin bad and inoperative......at pleasure, is not to be subject to capricious or arbitrary action but is to be regulated by such rules. provisions for appeal are also made in the rules to get redress in cases where dis. missals are made in contravention of the prescribed rules of procedure. the remedy of the person aggrieved in case of non-compliance of the rules does not lie by a suit in court but is by way of appeal of official kind prescribed in the rules. reliance has been placed on r.t. rangachari v. secy. of state . there the dismissal was against the statutory provisions of section 96-b, government of india act (1919) which laid down:that no person in that service (the civil service of the crown) may be dismissed by any authority subordinate to that by which he was appointed.4. the appellant there had been.....
Judgment:

Ganga Nath, J.

1. Second Appeal No. 1142 of 1935 has been heard and disposed of with this appeal. Both are defendant's appeals and arise out of two suits brought by the plaintiff, respondents against him and the Municipal Board, respondent 2, for damages and arrears of pay. This appeal arises out of Suit No. 386 of 1933 which was brought by Sunder Lal who was Toll Superintendent. The other appeal arises out of Suit No. 383 of 1933 which was brought by Mohammad Mustaqim who was Assistant Toll Clerk, In April 1933 Sunder Lal completed his 60 years and Mohammad Mustaqim's age was above 61 years. On 25th March 1933 the Municipal Board of Secunderabad gave one year's extension from 1st April 1933 to 31st March 1934 to both under resolutions Nos. 33 and 34. The appellant who is the Chairman of the Board wrote to the Commissioner to whom the resolutions had been sent that these persons were unfit for service. On an enquiry being made by the Commissioner through the District Magistrate, the Commissioner wrote to the Municipal Board on 28th May 1933 to dispense with their services. On receiving the letter from the Commissioner, Shanker Lal, appellant, asked the plaintiffs to hand over charge without consulting the Board. They handed over charge on 14th June 1933. They were reinstated by the Board on 28th October 1933. They brought these suits for salary by way of damages from 1st June 1933 to 28th October 1933. A decree for salary from 1st June 1933 to 14th June 1933 was passed against the Municipal Board and for salary from 15th June 1933 to 28th October 1933 against the appellant. The appellant went up in appeal but his appeals in both the suits were dismissed by the learned Civil Judge. He has come here in second appeal. Sunder Lal has since died and his legal representative Balkishan has been brought on the record.

2. It has been urged on behalf of the appellant that he acted in exercise of his powers under Sections 74 and 76, Municipalities Act, and is not liable for any damages. Under these sections, a Chairman has the power to dismiss a servant on a monthly salary exceeding Rs. 30 or in a city Rs. 75 subject to an appeal to the Local Government. Section 76 deals with the powers of an executive officer to dismiss a servant on a monthly salary not exceeding Rs. 15 or in a city Rs. 30 and it provides that in case where there is no executive officer, the powers conferred by the section may be exercised by the Chairman. There was no executive officer in this Municipal Board and consequently the powers of the executive officer were exercised by the Chairman, Certain rules have been framed by the Municipal Board regulating the procedure of dismissal under which charges have to be framed and an explanation has to be called for from the official concerned before his dismissal is ordered. In this ease it; is admitted that no such procedure was followed in spite of the rules framed by the Municipal Board.

3. The Municipal servants stand on the same footing as other public and Government servants. They are under the same disability as other public servants. Unless in special oases, where it is otherwise pro. vided, servants of the Crown hold their offices during the pleasure of the Crown, not by virtue of any special prerogative of the Crown but because such are the terms of their engagement as is well understood throughout the public service. The conditions of service are regulated by the rules which are framed to regulate the procedure of appointment and dismissal. The tenure of office though at pleasure, is not to be subject to capricious or arbitrary action but is to be regulated by such rules. Provisions for appeal are also made in the rules to get redress in cases where dis. missals are made in contravention of the prescribed rules of procedure. The remedy of the person aggrieved in case of non-compliance of the rules does not lie by a suit in Court but is by way of appeal of official kind prescribed in the rules. Reliance has been placed on R.T. Rangachari v. Secy. of State . There the dismissal was against the statutory provisions of Section 96-B, Government of India Act (1919) which laid down:

That no person in that service (the Civil Service of the Crown) may be dismissed by any authority subordinate to that by which he was appointed.

4. The appellant there had been appointed by the Inspector-General but he was dismissed by an official lower in rank. Their Lordships were of opinion that the dismissal was by reason of its origin bad and inoperative. Their Lordships observed:

It is manliest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matters of rate which are of infinite variety and can be changed from time to time. It is plainly necessary that this statutory safeguard should be observed with the utmost care and that a deprivation of pension based upon a dismissal purporting to be made by an official who is prohibited by statute from making it rests upon an illegal and improper foundation.

5. It has been argued that the appellant exercised his power in contravention of the provisions of Section 77, D.P. Municipalities Act. Section 77(1) lays down:

The provisions of Rs. 71, 73, 74, 75 and 76 shall be subject to the provisions of (a) Section 78, and (b) any rule, in particular of any rule Imposing any conditions on the appointment of persons to offices, or any particular office requiring professional skill, and on the suspension or dismissal of person so appointed.

6. On the strength of the Privy Council case cited above, it has been urged that inasmuch as the dismissal was against the provisions of Clause (b), the act of the appellant was illegal for which an action would be brought in the Civil Court. This contention is without any force. If the procedure for dismissal which is prescribed in the rules which have been framed by the Municipal Board had been prescribed in Clause (b), it might have been urged with some force that inasmuch as the procedure which had been prescribed by the statute in Section 77 had not been complied with, the action was illegal. The rules which have been framed by the Municipal Board have no statutory force and can be changed from time to time. As a matter of fact, there is no distinction in principle between the provisions of Section 77(1), U.P. Municipalities Act, and Section 96-B, Government of India Act (1919). Section 96-B(1), Government of India Act, reads as follows:

Subject to the provisions of this Act and of the rules made thereunder; every person in the civil service of the Crown in India holds office during His Majesty's pleasure and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed and the Secretary of State in Council may (except in so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed....

7. Section 77(1) also similarly lays down that the provisions of Sections 71, 73, 74, 75 and 76 shall be subject to the provisions of any rule imposing any conditions on the suspension or dismissal. Where there is a dismissal in contravention of any rules framed to regulate the procedure of dismissal, the remedy of the person aggrieved is by way of appeal for which a provision has been made in the rules. In R. Venkata Rao v. Secy. of State 0043/1936 the appellant B. Venkata Rao had been dismissed and he brought a suit for damages on the ground that the dismissal was contrary to the statute inasmuch as it was not preceded by any such enquiry as is prescribed by Rule 14, Civil Service Classification Rules, made thereunder. Their Lordships observed:

Counsel for the appellant nevertheless contended with most logical consistency that on the appellant's contention an action would lie for any broach of any of these rules, as for example, of the rules as to leave and pensions and very many other matters. Inconvenience is not a final consideration in a matter of construction but it is at least worthy of consideration and it can hardly be doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion. There is another consideration which seems to their Lordships to be of the utmost weight. Section 96-B and the rules make careful provisions for redress of grievances by administrative process and it is to be observed that Sub-section (5) in conclusion reaffirms the supreme authority of the Secretary of State in Council over the civil service. These considerations have irresistibly led their Lordships to the conclusion that no such right of action as is contended for by the appellant exists. It is said that this is to treat the words 'subject to the rules' appearing in the section as superfluous and ineffective. Their Lordships cannot accept this view and have already referred to this matter in their judgment in R.T. Rangachari v. Secy. of State . They regard the terms of the section as containing statutory and solemn assurance that the tenure of office though at pleasure will not be subject to capricious or arbitrary action but will be regulated by rule. The provisions for appeal in the rules are made pursuant to the principle so laid down.

8. The plaintiffs' suits therefore for damages against the appellant on the ground that he acted in contravention of the rules which were framed regulating the procedure of dismissal were not maintainable. The appellant has not acted in contravention of any statutory provision. It has been urged that the appellant acted maliciously and therefore he was liable. The appellant as stated above acted in exercise of his powers under Sections 74 and 76 and no action would therefore lie in the Civil Court on the ground that he acted through 1 malice. In Municipal Board of Benares v. Behari Lal & Brothers : AIR1926All538 a suit was brought for damages against the Municipal Board for an alleged omission to complete repairs quickly and the dosing of the road at both ends by its servants out of malice. It was held that the power given to a local authority to do a certain act cannot be questioned in a Civil Court on the ground of its having been exercised through malice. There the following instinctive passage from the judgment of Vaughan Williams L.J. in the King's Bench Division, Davies v. Mayor of the Borough of Bromley (1908) 1 K.B. 170 was quoted which may be reproduced here:

In my opinion, where a statute vests in a local authority such a duty and such a power, no action will lie against that authority in respect of its decision, even if there is some evidence to show that the individual members of the authority were actuated by bitterness and some other indirect motive. The intention of the Legislature was that there should not be an opportunity of setting aside or getting rid of the decision of a local authority by bringing an action against the authority, and It is obvious that a jury would not be a convenient tribunal for the trial of Such an action.

9. In the present case there is also a remedy by way of appeal to the local authorities. It is therefore ordered that both the appeals be allowed, and the decrees of the lower Court against the appellant be set aside. In view of the high-handed manner in which the appellant acted, I make no order as to costs. Parties shall bear their own oosts throughout.


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