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State of Gujarat Vs. Kishorchandra Ajitrai Chhaya - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1985CriLJ392
AppellantState of Gujarat
RespondentKishorchandra Ajitrai Chhaya
Excerpt:
- - where, therefore, the municipality wants to terminate the service of the chief officer simpliciter without any punitive accent, the municipality may pass a resolution by ordinary majority recommending to the state government to terminate the service of chief officer and the state government may then, on such recommendation, terminate the service after following the procedure set out in section 50. this provision clearly excluded the power of the municipality to effect a simple termination of service of chief officer. the power of recommendation would be clearly futile. but the state government cannot act under section 50 except on recommendation of the municipality and the provision for recommendation by the municipality clearly indicates that the municipality cannot itself..........remove him from his office.2. the question in the present case is that the respondent, who was the chief officer of the mangrol municipality was sought to be prosecuted for the alleged offence under the corruption act and under section 161 of the penal code. section 47 of the gujarat municipalities act, 1963, hereinafter referred to as the 'act', provides that for every municipality there shall be a chief officer appointed by the municipality. for the appointment of a chief officer qualification is prescribed under sub-sections (2) & (3) of section 47 of the act. sub-sections (4) and (5) of section 47 further provide that the state government can direct the municipality to appoint a health officer or a land valuation officer or such other officer temporarily or permanently. sections 48.....
Judgment:

M.B. Shah, J.

1. In this revision application the short question for decision is whether the sanction to prosecute the Chief Officer of the Mangrol Municipality granted by Resolution No. 29 dt. 30th July 1982 passed in the ordinary general meeting of Mangrol Municipality is a valid sanction to prosecute Under Section 6(l)(c) of the Prevention of Corruption Act, 1947, hereinafter referred to as the 'Corruption Act'. Under Section 6(l)(c) it has been provided that no court shall take cognizance of an offence punishable Under Section 161 or Section 164 or Section 165 of the Penal Code or Under Section 5 of the Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office.

2. The question in the present case is that the respondent, who was the Chief Officer of the Mangrol Municipality was sought to be prosecuted for the alleged offence under the Corruption Act and Under Section 161 of the Penal Code. Section 47 of the Gujarat Municipalities Act, 1963, hereinafter referred to as the 'Act', provides that for every municipality there shall be a chief officer appointed by the Municipality. For the appointment of a Chief Officer qualification is prescribed under Sub-sections (2) & (3) of Section 47 of the Act. Sub-sections (4) and (5) of Section 47 further provide that the State Government can direct the municipality to appoint a health officer or a land valuation officer or such other officer temporarily or permanently. Sections 48 and 50 of the Act provide for the removal of the chief officer, health officer and the engineer or the officer appointed under Sub-sections (4) or (5) of Section 47. For deciding the issue in dispute it would be worthwhile to quote Sections 48 & 50 of the Act which read as under :-

48. No chief officer or officer appointed under Sub-sections (4) or (5) of Section 47 shall be removable from office, reduced in rank or suspended except by a resolution passed by a majority of at least two-thirds of the total number of the then councillors and shall not be punishable with fine.

50.(1) Notwithstanding anything contained in Sections 47 and 48 it shall be lawful for the State Government on the recommendation of any municipality supported by a resolution passed by a majority of the councillors present at a special general meeting called for the purpose to make in its discretion an order of discontinuance in office of the chief officer, or an officer appointed under Sub-sections (4) or (5) of Section 47 :

Provided that -

(a) notwithstanding anything contained in Clause (7) of Section 51, no resolution shall be passed by such meeting unless a quorum shall have been present throughout ; and

(b) no order shall be made under this section unless an inquiry has been made into the matter by such officer and in such manner as the State Government may direct and unless the officer against whom such order is to be made has been given a reasonable opportunity at the inquiry of explaining the allegations made against him.

(2) The tenure of office of the officer who is discontinued in office under Sub-section (1) shall cease and determine on and from such date as may be appointed by the State Government, in that behalf.

Referring to Section 48, it in terms provides that no chief officer or other officer appointed under Sub-sections (4) or (5) of Section 47 shall be removed from office except by a resolution passed by a majority of at least two-thirds of the total number of the then councillors. Section 50 of the Act provides for termination simpliciter or provides for discontinuance in office of the chief officer or an officer appointed under Sub-sections (4) or (5) of Section 47 by following the procedure provided in the proviso to the said section. While interpreting the provisions of Section 50 of the Act the Full Bench of this Court in Letters Patent Appeal No. 52 of 1969 : (Reported in ILR (1972) Guj 1000) presided by P.N. Bhagwati C.J. as he then was, held as under :

Section 50 uses a different nomenclature from Section 48. It speaks not of 'removal from office' but 'discontinuance in office'. This expression is a neutral expression which takes in every case of termination of service, whether it be termination simpliciter or termination by way of punishment. Discontinuance in office cannot be equated with 'removal from office' as was sought to be contended on behalf of the respondents. The Legislature has deliberately departed from the expression 'removable from office' employed in Section 48 and instead, used an innocent expression 'discontinuance in office' to connote every kind of termination of service. Where, therefore, the Municipality wants to terminate the service of the Chief Officer simpliciter without any punitive accent, the Municipality may pass a resolution by ordinary majority recommending to the State Government to terminate the service of Chief Officer and the State Government may then, on such recommendation, terminate the service after following the procedure set out in Section 50. This provision clearly excluded the power of the Municipality to effect a simple termination of service of Chief Officer. If the Municipality , had such power, the provision in Section 50 would be meaningless. There would be no point in that case in providing that the Municipality may recommend and on its recommendation, the State Government may terminate the service of Chief Officer. Why -- for what reason -- should the Municipality be given power to recommend when it can itself take action for terminating the service? The power of recommendation would be clearly futile. We can appreciate if the State Government were given power to terminate the service of Chief Officer without any recommendation of the Municipality. It could have been convincingly argued, if that had been the case, that a concurrent or additional power was conferred which the State Government could exercise, irrespective of any action which the Municipality may or may not take. But the State Government cannot act Under Section 50 except on recommendation of the Municipality and the provision for recommendation by the Municipality clearly indicates that the Municipality cannot itself terminate the service of Chief Officer except of course in cases falling within Section 48. Section 50 is exhaustive of the mode of termination simpliciter of the service of Chief Officer and termination of service of Chief Officer which is not by way of punishment can be effected only in the manner prescribed by that section. The rule that a master may terminate the employment of his servant by giving reasonable notice is not an inflexible rule of law. It is an implication of the law of master and servant -- a term to be implied in order to give 'the transaction the efficacy that both parties must have intended it to have'. Now it is evident that the term can be implied only where the contract is silent. If there is a specific provision on the subject either in the contract or in the statute which governs the relationship, there can obviously be no room for implication. The implication would be wholly unnecessary it would be excluded by the specific provision on the i subject. Here in Section 50 there is clearly a specific provision on the subject of termination of service of Chief Officer and it is, therefore, not possible to imply a power in the Municipality to terminate simpliciter service of Chief Officer by giving reasonable notice.

It has been further held :

The Legislature has here made its intention abundantly clear that though the Municipality is given power to appoint Chief Officer, it shall not have power to terminate the service of Chief Officer except in cases falling within Section 48 or, in other words, termination of service of Chief Officer simpliciter shall not be effected by the Municipality, but if the Municipality wants to terminate the service of Chief Officer simpliciter, the Municipality may by a resolution make a recommendation to the State Government and it would be for the State Government to effect termination simpliciter of the service of Chief Officer.

In view of the aforesaid decision it is clear that when the municipality intends to terminate the services of the Chief Officer by way of punitive action, then it has to follow the procedure laid down in Section 48 of the Act and the municipality can take action by a resolution passed by the majority of at least two-thirds of the total number of the then councillors.

3. The question which further requires to be determined is what is the meaning of phrase 'resolution passed by a majority of at least two-thirds of the total number of the then councillors'. It was strenuously contended by Mr. J.U. Mehta, learned public prosecutor appearing for the State, that the total number of then councillors means only those councillors who were present at the meeting when the resolution was passed. In our opinion, the contention of the learned public prosecutor is of no substance because the Legislature has advisedly used the phrase 'two-thirds of the total number of the then councillors' meaning thereby the total number of councillors of the municipality at the relevant time. The words 'the then councillors' would, therefore, mean the existing councillors of the municipality at the relevant time. The same phraseology is used in Section 36(1) &(2) of the Act which provide procedure for motion of no-confidence. Sub-section (1) provides that any councillor of a municipality may give a notice to move a motion of no-confidence against its president or vice-president if such notice is supported by not less than one third of the total number of the then councillors of the municipality. Sub-section (2) provides that the motion of no-confidence should be carried out by a majority of not less than two-thirds of the total number of the then councillors of the municipality. Section 6 provides that every municipality shall consist of elected councillors. Sub-section (2) of Section 6 provides that the number of such councillors shall be 'on the basis of 'its population varying from 25 to 51. Sub-section (3) provides that out of the total number of seats of councillors in a municipality there shall be reserved seats for women, Scheduled Castes and Scheduled Tribes as prescribed therein. Therefore, Under Section 6 of the Act total number of seats of councillors is fixed. In this section word 'then' is used as equivalent to 'at that time'. It may be that some councillors may have resigned or died thereby giving rise to vacancy. So even though total number of councillors is fixed Under Section 6 of the Act, yet at the relevant time when the resolution is passed, there may be vacancy because of the death or resignation of some councillors and the total number would mean only those persons who were existing councillors of the municipality at the relevant time. In the present case admittedly when the impugned Resolution No. 29 dt. 30th July 1982 was passed, 19 members remained present at the meeting. At that time total strength of the councillors of the Mangrol Municipality was admittedly 25. Out of the 19 councillors who were present, 13 councillors gave vote in favour of the resolution, one councillor gave vote against the resolution and 5 councillors abstained from voting. As per the interpretation we have just given to the phrase 'two-thirds of the total number of the then councillors', it would be clear that the resolution ought to have been passed by majority of at least two-third councillors of the total strength of 25 councillors i.e. by a majority of at least 17 councillors. Admittedly the resolution is passed by the majority of 13 councillors. Hence it cannot be said that valid sanction Under Section 6(1)(c) of the Corruption Act is given by the competent authority who is entitled to remove the Chief Officer i.e. the respondent.

4. The learned public prosecutor appearing for the petitioner-State submitted that Under Section 50 of the Act it has been provided that the State Government on the recommendation of any municipality supported by a resolution passed by a majority of the councillors present at a special general meeting called for the purpose is entitled to pass an order discontinuing the service of the Chief Officer or any officer appointed under Sub-sections (4) or (5) of Section 47. He contended that the words which are used in this section are that by a bare majority of councillors present at a special general meeting the municipality is entitled to pass a resolution recommending discontinuance of any officer as mentioned in the said section. He further pointed out that the words which are used are 'present at a special general meeting'. He, therefore, contended that even the phrase used in Section 48 'two-thirds of the total number of the then councillors' should be interpreted to mean 'total number of the then councillors present at the meeting'. In our opinion, the said submission also is without any substance because Under Section 48 the Legislature, it seems, intentionally has not used the words 'councillors present at the general meeting'.

We cannot add the words 'Present at the general meeting' while interpreting Section 48 and that too when language of the section is unambiguous and clear. We cannot add or subtract any word or phrase while interpreting the section. The Legislature has introduced the safeguard so that officers appointed Under Section 47 of the Act cannot be punished by passing a resolution by bare majority and, in our opinion, the safeguard would be frustrated in most cases if the interpretation as contended by the learned public prosecutor for the petitioner is given i.e. the Chief Officer can be removed by a resolution passed by a majority of at least two-thirds of the total number of councillors present at the meeting. In Some cases the said majority of two-thirds of councillors present at the meeting may be even less than the majority of the total number of the strength of councillors of the municipality.

5. He further submitted that if the Legislature intended to convey that the total number of the then councillors meant total number of the existing councillors of the municipality, then they would have used the said phrase or they would have used the phrase 'whole number of councillors' as provided in Section 51(7) and Section 51(12). No doubt the Legislature has used different language in Section 51(7) and (12) of the Act presumably meaning the total number of seats of councillors prescribed Under Section 6 of the Act on the basis of population. Under Section 48 of the Act the Legislature has provided that the resolution for removing the Chief-Officer can be passed by a majority of at least two-thirds of the total number of the then councillors which would mean the total number of the existing councillors at the relevant tune. At the relevant time some councillors might have resigned or some councillors might have died thereby giving rise to vacancy. So the whole number of the councillors of the municipality would mean the number of councillors fixed Under Section 6 of the Act. The Legislature's intention Under Section 48 is abundantly clear that though the municipality is given power to appoint Chief Officer Under Section 47, it shall not have power to terminate the service of Chief Officer except by passing a resolution as prescribed Under Section 48.

6. The learned Public Prosecutor for the petitioner further contended that in any set of circumstances Under Section 47 of the Act municipality is appointing authority of the Chief Officer and it being an appointing authority, it is entitled to remove the Chief Officer from service and, therefore, Under Section 6(l)(c) of the Corruption Act the sanction given by the Municipality by passing a resolution by simple majority would be sufficient compliance of Section 6(l)(c) of the Corruption Act. Under Section 6(l)(c) of the Corruption Act it has been provided that sanction to prosecute be granted by the authority competent to remove him from his office. The said section does not say that sanction to prosecute should be granted by the appointing authority. On the contrary, the provision in terms provides that sanction should be granted only by the authority who is entitled to remove the public servant from his office. In some cases appointing authority and removing authority may be the same, but in the present case under the Act the appointing authority and the removing authority are different. The question would be who is the removing authority of the Chief Officer within the meaning of Section 6(l)(c) of the Corruption Act. In no set of circumstances, the removing authority can be subordinate to the appointing authority. But in some cases the removing authority may be higher in rank to the appointing authority. Under Section 47 of the Act the municipality by passing a resolution as provided Under Section 51(10) can appoint the Chief Officer if he satisfies the eligibility test. Section 47 makes a specific departure and lays down that the municipality can remove the Chief Officer from service only by passing a resolution by two-third majority of the then councillors. Under Sections 48 of the Act power is given to the municipality to remove the Chief Officer or the officer appointed Under Section 47 Sub-sections (4) or (5) by passing a resolution having a majority of at least two-thirds of the total number of the then councillors. Under Section 50 of the power to discontinue service of officers appointed Under Section 47 is given to the State Government and that too after following the procedure prescribed in the proviso. Admittedly in this case no such procedure is followed for no such order is passed by the State Government. Hence that question does not arise for our consideration. Hence the submission of the learned public prosecutor that as the municipality is appointing authority and as the resolution is passed by the municipality, the sanction granted by it is valid, cannot be accepted.

7. The learned Public Prosecutor appearing for the petitioner, however, submitted that Under Section 47 of the Act appointing authority is the municipality. Under Section 48 of the Act the removing authority is also the municipality. That is to say, Under Section 47 of the Act municipality can appoint the Chief Officer. Similarly Under Section 48 of the Act municipality is entitled to remove the Chief Officer. Only different procedure is prescribed for removing him from service i.e. by a resolution passed by a majority of two-thirds of the total number of the then councillors. According to his submission authority remains the same. In our view, this contention is absolutely misconceived. If we accept this contention, the procedure prescribed for removing the Chief Officer Under Section 48 would be frustrated. When the Legislature has laid down the procedure and has given a power to the municipality to remove the Chief Officer by passing a resolution by two-third majority of the then councillors, then the Chief Officer can be removed only in that way and not by any other method except of course the method prescribed Under Section 50 of the Act. It is a well-established principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden. This principle applies to the procedure prescribed Under Section 48 of the Act. In our view, the contention, if accepted, would take away the safeguards provided to the Chief Officer. Even though the body which appoints the Chief Officer is municipality Under Section 47, yet a specific and distinct procedure is prescribed for passing a resolution for removing the Chief Officer Under Section 48 of the Act. The Legislature has not provided any such procedure Under Section 47 of the Act before appointing Chief Officer. It has given straightway power to the municipality to appoint him. But a specific, distinct and different provision is made Under Section 48 of the Act for removing him from service. In view of the aforesaid discussion, the order passed by the learned Special Judge holding that proper sanction before prosecuting the respondent is not granted and hence the Court has no jurisdiction to take cognizance of the offence is a legal one.

8. In the result, the revision application is rejected.


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