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Cantonment Board, Ferozepur Cantt Through Executive Officer Vs. Bajrang Singh S/O Babu Singh - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1317 of 1960
Judge
Reported inAIR1961P& H460
ActsCantonments Act, 1924 - Sections 273(1) and 273(3); Cantonment Fund Service Rules, 1937 - Rules 11 and 12
AppellantCantonment Board, Ferozepur Cantt Through Executive Officer
RespondentBajrang Singh S/O Babu Singh
Appellant Advocate D.N. Aggarwal, Adv.
Respondent Advocate H.L. Sarin and; Krishna Kumar Cuccria, Advs.
DispositionAppeal allowed
Cases ReferredDargahi Lal v. Municipal Board
Excerpt:
.....after the ceasing thereof. these words in my judgment clearly contemplate all acts done by the cantonment board whether they are in exercise of the powers conferred on the board or in discharge of the duties imposed on it. vasudeo balkrishna, ilr 39 bom 600 :(air 1915 bom 121), a division bench of the bombay high court in almost similar circumstances held that 'when a district municipality exercising the power given to it by the district municipal act or the statutory rules made under the act, dismisses an officer of the municipality, that is an act done or purporting to have been done in pursuance of the act within the meaning of section 167.'section 167 of the district municipal act which came up for interpretation in that case is in the following words :no suit shall be commenced..........that he had not been given a reasonable opportunity to defend himself inasmuch as -- (1) that the enquiry officer had imported his personal knowledge into the matter without subjecting himself to cross-examination in respect of the same, and (2) that the list of documents and witnesses supplied to the plaintiff did not mention as to which of the documents or witnesses were to be produced in support of which particular charge against him. the suit was contested by the cantonment board on various grounds. they alleged that the suit was not maintainable, that it was barred by time, and that the enquiry and the order of dismissal were perfectly in order. it was denied that the plaintiff had not been given adequate opportunity to defend himself or to show cause against his dismissal. it was.....
Judgment:

K.L. Gosain, J.

1. This is a second appeal by the Cantonment Board, Ferozepore, against the appellate decree of Shri Anand Dev Kaushal, Additional District Judge, Ferozepore, dated the 31st May 1960, confirming that of the learned trial Judge, dated the 31st December, 1959 passing a decree for a declaration to the effect that the order of the Executive Officer, Cantonment Board, Ferozepore, dated the 29th September, 1955, dismissing Bajrang Singh plaintiff from the post of Pump Driver under the Cantonment Board, Ferozepore, was void and ultra vires and that the plaintiff continues to be in service of the said Board.

Bajrang Singh plaintiff was employed by the Cantonment Board Ferozepore as a Pump Driver. On the 28th June 1955 he was charge-sheeted for certain mal-practices and an enquiry was held into the said charges. On receipt of the enquiry report, requisite notice to show cause why he should not be dismissed from service was given to the plaintiff and he was later dismissed from service on the 29th September 1955 under the orders of the Executive Officer of the Cantonment Board, He filed an appeal to the Board which was dismissed on the 9th December 1955.

He then filed a second appeal against the said order to the General Officer Commanding who dismissed the same on the 3rd January 1957. The suit giving rise to this appeal was then brought by him on the 2nd December 1958 for a declaration that the order of his dismissal was inoperative and illegal and that he continues to be in the service of the Board despite the said order. He alleged that he had not been given a reasonable opportunity to defend himself inasmuch as -- (1) that the enquiry officer had imported his personal knowledge into the matter without subjecting himself to cross-examination in respect of the same, and (2) that the list of documents and witnesses supplied to the plaintiff did not mention as to which of the documents or witnesses were to be produced in support of which particular charge against him.

The suit was contested by the Cantonment Board on various grounds. They alleged that the suit was not maintainable, that it was barred by time, and that the enquiry and the order of dismissal were perfectly in order. It was denied that the plaintiff had not been given adequate opportunity to defend himself or to show cause against his dismissal. It was admitted that the list of documents and witnesses supplied to the plaintiff did not mention as to which of the documents and witnesses were to be produced in support of which particular charge against him, but it was alleged that it was not necessary to do so and that the list supplied to him substantially complied with the requirements of the rules.

It was denied that the Executive Officer had imported his personal knowledge in coming to any particular findings. The plea which had been taken by the plaintiff that he had not been supplied with a copy of the findings of the enquiry officer and the grounds therefor was also denied.

2. On the pleadings of the parties the trial Court framed the following three issues:--

1. Whether the suit is not maintainable?

2. Whether the suit is barred by time?

3. Whether the order dated 29-9-1955 of the Executive Officer, Cantonment Board Ferozepore, dismissing the plaintiff from the post of Pump Driver Cantonment Board, Ferozepore, is illegal, void, ultra vires, unjust, mala fide, arbitrary, capricious and inoperative?

After recording evidence of the parties the learned trial Judge decided all the three issues in favour of the plaintiff and, in the result, passed a decree as prayed for by him. The learned Additional District Judge, in appeal, affirmed the findings of the trial Court on issues Nos. 2 and 3 and upheld the decree passed by the said Court. It was observed in paragraph 7 of his judgment that findings on issues Nos. 2 and 3 alone were challenged before him which evidently means that the findings on issue No. 1 were not challenged in that Court.

3. In this second appeal Mr. D. N. Aggarwal, appearing on behalf of the Cantonment Board, challenges the findings of the learned Additional District Judge on issues Nos. 2 and 3 and also wishes to challenge the findings of the trial Court on issue No. 1. Regarding issue No. 1 he urges that the findings of the trial Court on the said issue were in fact challenged before the learned District Judge, but as a result of some forgetful-ness On his part he has observed in his judgment that the findings on issues Nos. 2 and 3 were only challenged and not those on issue No. 1.

He has filed an affidavit of Mr. Krishan Lal Saxana, Advocate, Ferozepore, who had appeared on behalf of the Cantonment Board, and in this affidavit it is stated that the findings of the trial Court on issue No. 1 were also challenged before the lower appellate Court. It is, however, pertinent to note that this affidavit was not filed at the time of the filing of the appeal in September 1960 and even a ground was not taken in the memorandum of appeal that the findings of the trial Court on issue No. 1 had been challenged before the learned Additional District Judge but no findings had been recorded on the same.

An application for permission to urge this point in this Court was filed on the 7th January1961 but the affidavit of Mr. Saxana was not filed along with that. This affidavit was filed only a week before the actual hearing of the appeal but a copy of it was not supplied to the plaintiff-respondent with the result that it has not been possible for him to file any counter affidavit, and I cannot, therefore, allow the appellant to rely on this affidavit. The observations of the learned Additional District Judge on this point are contained in paragraph 7 of his judgment and are in the following words:--

'Before me the findings of the lower Court on issues Nos. 2 and 3 alone have been challenged.

In the circumstances, I am wholly unable to accept the contention of the appellant that the findings of the trial Court on issue No. 1 were actually challenged before the learned Additional District Judge, and I, therefore, refuse to entertain the arguments on this point. Even if such an argument had to be entertained, there does not appear to be any merit in the same. If the allegations of the plaintiff are correct that he was not given an adequate opportunity to defend himself and that the order of dismissal is inoperative and void, I do not See why his suit of the present kind should not be maintainable in a civil Court.

4. It is next contended that the findings of the two Courts below on issue No. 2 are incorrect and this contention, in my opinion seems to have a good deal of force. Sub-section (1) of Section 273 of the Cantonments Act (II of 1924) provides for a notice to be given to the Cantonment Board in respect of certain suits proposed to be filed against it. Sub-section (3) of the said section reads as under:--

'(3) No suit, such as is described in Sub-section (1), shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.' The suit contemplated by Sub-section (1) of this section is one which is 'in respect of any act done, or purporting to have been done, in pursuance of this Act or of any rule or bye-law made thereunder.' The learned Additional District Judge has found that the present is not a suit of that nature because these words properly interpreted only mean a suit which should be in respect of an act which the Board was obliged to do, or which the Board had a duty to perform.

For the interpretation of this section the learned Additional District Judge has relied upon a ruling of the Allahabad High Court in Ram Chander Sahai v. Cantonment Board, Meerut, AIR 1947 All 42. In that case one Ram Chander Sahai instituted a suit against the Cantonment Board Meerut for the recovery of Rs. 2,500/- as salary to which he claimed to be entitled but which had been withheld by the Board. The facts were that the plaintiff was a person who had been for many years in the service of the Cantonment Board and in January 1933 was holding the post of Tax Superintendent of the Board on Rs. 150/- p. m.

In January 1933 one Mr. Palman, who had been in the service of the Board as permanent Office Superintendent on a salary of Rs. 300/- per month, went on leave preparatory to retirement and the plaintiff was appointed as officiating Superintendent on Rs. 210/-, made up of Rs. ISO/plus one-fifth of the salary of the post of Office Superintendent. In the year 1926 a new scale of pay of the office staff of the Cantonment Board had been sanctioned by the Board and the new scale of pay fixed for the Office Superintendent was Rs. 150/- rising to Rs. 300/-,

It was not clear from the record as to what the exact scheme of increments was but it appear ed that it provided for three annual increments of Rs. 25/- each to be followed by annual increments of Rs. 15/- up to the maximum of Rs. 300/-. This scale had never been submitted by the Board to the Eastern Command for sanction and in consequence at the date of the appointment of the plaintiff to the post of Office Superintendent the new scale of pay was not legally in force.

On the 24th July 1933, the plaintiff was made permanent on the post on a pay of Rs. 225/- and subsequently on the 23rd February 1934 the Board confirmed the appointment of the plaintiff as Office Superintendent on the said salary. The plea of the Board in that case was that the plaintiff had been guilty of not bringing to the notice of the Board that the new scale of pay had not been sanctioned and that he had acted in that way with a view to be able to claim the salary of his predecessor without informing the Board that the new scale had not been sanctioned at any time by the Eastern Command.

The Munsif who tried the case had repelled the contention of the Board, and although the learned Additional District Judge, who heard the appeal, thought that there was a deliberate omission to ask for the sanction of the Eastern Command to the revised scale of pay applicable to the plaintiff's case in August 1933, he took the view that the plaintiff could not be estopped from claiming that under the rules applicable to his case he was entitled to receive a salary of Rs. 300/- from the date of his appointment.

It was in these circumstances that the Division Bench of the Allahabad High Court held that there was really no act of the Board in pursuance of the Cantonments Act or of any rule or bye-law made thereunder and that the shorter period or limitation provided by Sub-section (3) of Section 273 could not, therefore, be made applicable to the facts of that case.

5. The facts of that case are distinguishable from those of the present inasmuch as in the present case the rules provided for the dismissal of the plaintiff in certain circumstances, and the Board had taken action under the said rules, and it was this action which was being impugned in the Present suit. The Division Bench of the Allahabad High Court in deciding the aforesaid case mainly relied on the provisions of Section 1 of the Public Authorities Protection Act, 1893, and the rulings given under that section by different Courts in England. That section is quoted in ex-tenso at page 45 of the report of the said case and is as under:--

'Where after the commencement of this Act any action, prosecution or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect; (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commencedwithin six months next after the act, neglect of default complained of, or in a case of continuance of injury or damage, within six months next after the ceasing thereof.'

A perusal of the above section shows that the public authorities are protected in respect of acts done in pursuance of public duties, and the various rulings under this section have laid stress on there being a duty performed by the concerned public authority and it is on the basis of the peculiar words of the section that acts done in exercise of powers have been distinguished from those done in discharge of obligations or duties.

With great respect to the learned judges who decided that case, I am of the opinion that the rulings under the said Act have no bearing at at to the interpretation of Section 273 of the Cantonments Act. All that Sub-section (1) of Section 273 contemplates is that the Act must have been done in pursuance of the Act or of any rule or bye-law made thereunder and this section cannot be interpreted to mean that the acts done by the Board in exercise of its powers under the Act will stand on different footings than those done in discharge of the duties imposed on the Board by the Act.

These words in my judgment clearly contemplate all acts done by the Cantonment Board whether they are in exercise of the powers conferred on the Board or in discharge of the duties imposed on it. As a necessary corollary of this it must be held that Sub-section (3) of Section 273 or the Cantonments Act will be applicable to all suits which fall within the ambit of Sub-section (1) of the said section. In Sita Ram Goel v. The Municipal Board, Kanpur, AIR 1958 S. C. 1036, the plaintiff who was a municipal Overseer was dismissed by a resolution of the Municipal Board on the 5th March 1951.

The order of dismissal was communicaled to the plaintiff on the 19th March 1951 and his appeal against the said dismissal was rejected by the Government on the 7th April 1952. On the 8th December 1952 he filed a suit for compensation for wrongful dismissal. It was held by their Lordships that the suit was barred by limitation and that it was governed by the period of six months provided by Sub-section (3) of Section 326 of the U. P. Municipalities Act. The facts of that case are somewhat similar to those of the present, and although there is a slight difference in the wordings of the two sections I feel that the ratio de-cidendi of that case fully applies to the present case.

6. In Municipality of Ratangiri v. Vasudeo Balkrishna, ILR 39 Bom 600 : (AIR 1915 Bom 121), a Division Bench of the Bombay High Court in almost similar circumstances held that 'when a District Municipality exercising the power given to it by the District Municipal Act or the statutory rules made under the Act, dismisses an officer of the Municipality, that is an act done or purporting to have been done in pursuance of the Act within the meaning of Section 167.' Section 167 of the District Municipal Act which came up for interpretation in that case is in the following words :--

'No suit shall be commenced against any Municipality ..... for anything done, or purporting to have been done, in pursuance of this Act, without giving to such Municipality ......one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained or.'

It will appear from the above that the language of that section is similar to that of Section 273 of the Cantonments Act, and the Bombay case, therefore, directly applies to the present case. A Full Bench of the Allahabad High Court in Dargahi Lal v. Municipal Board, Cawnpore, AIR 1952 All 382 has also taken almost the same view and has held that there is no basis for holding that Section 326 of the U. P. Municipalities Act contemplates only an action in tort and not an action in contract.

7. In these circumstances I feel that the present case is fully governed by Sub-section (3) of Section 273 of the Cantonments Act and that the period of limitation prescribed for a suit of the present nature is only six months from the date of the accrual of the cause of action which in this case must be taken to have accrued on the 29th September 1955 when the order of dismissal was passed. Even if the terminus a quo was taken a the date of dismissal of the second appeal on the 3rd January 1957, the present suit having been filed on the 2nd December 1958 is hopelessly barred by time.

8. It is next contended by the learned counsel for the appellant that the finding of the learn ed Additional District Judge on issue No. 3 is also erroneous inasmuch as there is nothing to show that the plaintiff had not been given an adequate opportunity to defend himself. In my opinion this contention has also got a good deal of force. The enquiry against the plaintiff was made in pursuance of rules 11 and 12 of the Cantonment Fund Servants Rules, 1937.

It is not denied that the plaintiff received a regular charge-sheet, nor is it denied that a regular enquiry was made into the charges. A list of documents and witnesses sought to be produced was admittedly supplied in advance to the plaintiff. The only grievance of the plaintiff is that it was not stated in the list as to which of the documents and witnesses related to which of the charges. The main plea of the plaintiff is that rule 12 of the above rules insists on a list being supplied to the plaintiff which should mention the documents and witnesses by which each charge was to be sustained.

I am unable to interpret this rule in the nar-row way in which it is sought to be interpreted on behalf of the plaintiff. A complete list of documents and witnesses having been supplied to him in respect of all the charges, it was not, in my opinion, necessary that it should have been stated in the list as to which documents and witnesses will support which charge, In any case, it is not shown how the plaintiff was prejudiced in his defence by this technical omission.

9. The other ground on which the plaintiff relies is that he was not supplied with findings ofthe enquiry officer and the grounds therefor. It is contended on his behalf that two documents should have been supplied to him, one of which should have given the findings of the enquiry officer and the other of which should have stated the grounds for each of the findings. I am unable to accept this contention also.

A complete copy of the report of the enquiry officer was admittedly received by the plaintiff and that copy gave all the findings arrived at by the enquiry officer as also the grounds on which the said findings had been based. In my judgment the rules require nothing more than this and they were fully complied with when a copy of the said report was supplied to the plaintiff.

10. It is next urged that the enquiry officer used his personal knowledge while making his report without subjecting himself to cross-examination. I have carefully read the report of the enquiry officer and find that no such personal knowledge was used by him except that in one or two small matters he judged the veracity of the witnesses from certain observations which he himself was able to make. There is not a single instance in which he came to any particular conclusion merely on the basis of his personal observations or knowledge.

It cannot be forgotten that the enquiry officer-was the Executive Officer of the Cantonment Board and if he judged the veracity of certain witnesses from the facts which he was able to observe personally, his action could not in any way be taken to be one contrary to law or contrary to the rules of natural justice. The plaintiff has, in my opinion, miserably failed to prove that he was not given an adequate opportunity to show cause against his dismissal or to prove his innocence.

11. From what I have said above, it is clearthat issues Nos. 2 and 3 were not correctly decided by the two Courts below. In the result, I accept this appeal and setting aside the decrees ofthe Courts below, dismiss the plaintiff's suit in itsentirety. Taking into consideration that the plaintiff is out of service, I leave the parties to beartheir own costs throughout.


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