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Motilal Sankalchand JaIn Vs. the Municipal Corporation of the City of Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR640
AppellantMotilal Sankalchand Jain
RespondentThe Municipal Corporation of the City of Ahmedabad and anr.
Cases ReferredSlate of Madras v. Madurai Mills Co. Ltd. (supra
Excerpt:
.....and ensures better protection to all rights of an aggrieved employee. to the extent to which it ensures better protection to the rights of an aggrieved employee, its applicability is conducive to the rule of..........for the proposition that even in administrative matters where there is a statutory right of appeal doctrine of merger applies.11. mr. bhatt has invited my attention to the decision of this high court in t.p. kurmaran v. r. kothandaraman c.i.t. gujarat reported in iii gujarat law reporter 856. a division bench of this high court was considering in that case a similar question. after reviewing the case law on the subject, it arrived at the conclusion that the doctrine of merger applies to administrative orders where there is an original order and an appellate order made by an appellate authority in pursuance of its statutory appellate power.12. as against these two decisions, mr. christi has invited my attention to the decision of the supreme court in the case of sita ram gael v......
Judgment:

S.H. Sheth, J.

1. The plaintiff was a Sanitary Inspector employed by the Ahmedabad Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act 1949. He was removed from service by the order of the Commissioner of the Municipal Corporation on 5th June 1957. The plaintiff appealed to the Standing Committee against the order of the Municipal Commissioner on 26th June 1957. The Standing Committee dismissed the plaintiff's appeal by its resolution dated 6th January 1958. Thereafter the plaintiff served upon the Municipal Corporation statutory notice under Section 487 of the said Act on 3rd February 1958 and filed the present suit on 17th March 1958 for declaration that the order of removal made by the second defendant the Commissioner-and the appellate order made by the Standing Committee were illegal and ultra vires and also for decree for Rs. 2245-50 p. for arrears of salary at the rate of Rs. 165/- per month.

2. The defendants resisted the suit on the ground of limitation as well as on merits.

3. The Trial Court raised the preliminary issue as to limitation and tried it. It held that the suit was barred by limitation and in that view of the matter dismissed it with costs.

4. The plaintiff thereupon appealed to the City Civil Court at Ahmedabad against the decree of the learned trial Judge.

5. The Ahmedabad City Civil Court, in exercise of its appellate power, heard the said appeal and dismissed it on 22nd June 1962.

6. It is against that appellate judgment and decree that the plaintiff has filed the present second Appeal.

7. The only contention which Mr. Bhatt, appearing for the plaintiff, has raised before me is that the suit is within time. In order to appreciate the contention raised by Mr. Bhatt it is necessary to state certain facts about which there is no dispute. The plaintiff was removed from service on 5th June 1957 by the order of the Commissioner of the Municipal Corporation. The plaintiff appealed to the Standing Committee against the order of the Municipal Commissioner on 26th June 1957. The Standing Committee decided the plaintiff's appeal on 6th January 1958. On 3rd February 1958 the plaintiff served statutory notice of one month upon the Municipal Corporation under Section 487 of the Bombay Provincial Municipal Corporations Act, 1949. The plaintiff thereafter filed the present suit on 17th March 1958.

8. Section 487 of the Bombay Provincial Municipal Corporations Act prescribes a period of six months for the suits to be instituted against the Corporation or against the Commissioner, or against the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of the Act or in respect of any alleged neglect or default in the execution of the Act. The period of six months prescribed by Section 487 commences from the date of the accrual of the cause of action. If the cause of action in this case is held to have accrued on the date on which the Municipal Commissioner passed the order, the suit must be held to have been time barred because of the special period of limitation provided under Section 487, Sub-section (1), Clause (b), to which the period, of one month required for the service of statutory notice might be added. However, in this case the plaintiff appealed to the Standing Committee under Section 56, Sub-section (4) of the said Act. Section 56, Sub-section (4) confers upon an employee who is reduced, removed or dismissed by any authority other than the Corporation a statutory right to appeal to the authority immediately superior to the authority making such an order. Proviso to Sub-section (4) states that for the purposes of Sub-section (4) the Standing Committee shall be deemed to be the authority immediately superior to the Commissioner and the Corporation shall be deemed to be the authority immediately superior to the Standing Committee. The appellate authority under Sub-section (4) has power to confirm the order passed or to substitute for it such order as it considers just, including an order for the imposition of some lesser penalty.

9. In order to appreciate the contention which Mr. Bhatt has raised before me the question which I have to consider is: What is the date of cause of action in this case? Did it accrue on the date when the Municipal Commissioner passed the order of removal against the plaintiff or did it accrue on the date on which the Standing Committee dismissed by its resolution the plaintiff's appeal on the basis that the original order of the Municipal Commissioner had merged with the appellate order of the Standing Committee? There is no dispute before me that if the doctrine of merger is applicable to the present case and if the period of limitation under Section 487 of the said Act is to be computed from the date on which the Standing Committee passed the appellate order, the suit is within time. Doctrine of merger is applicable to judicial proceedings. The point which I have to consider is whether it applies to administrative orders.

10. Mr. Bhatt has invited my attention to the unreported judgment of the Supreme Court in the case of Somnath Sahu v. The State of Orissa and Ors. Civil Appeal No. 813 of 1966 decided on 21st March 1969. In that case the appellant before the Supreme Court was a welfare Officer of the Indian Aluminium Co. Ltd., Calcutta at its Hirakud factory in its personnel department. On 11th March 1960 the appellant was dismissed by the Company by its letter of the same date. The appellant appealed to the State Government and the State Government dismissed his appeal by its order dated 2nd January 1962. One of the questions which arose in that appeal for the consideration of the Supreme Court was whether the order of dismissal made by the Company against the appellant could be said to have merged with the appellate order made by the State Government while dismissing his appeal on 2nd January 1962. The appeal which the appellant in that case filed was in pursuance of a statutory right of appeal conferred upon him. Rule 6, Sub-rule (2) of the Orissa Welfare Officers' (Recruitment and Conditions of Service) Rules, 1961 provides for such an appeal. The said rule is in the following terms:

The conditions of service of a Welfare Officer shall be the same as of other members of the corresponding status in the factory; provided that, in the case of discharge or dismissal, the Welfare Officer shall have a right of appeal to the State Government whose decision thereon shall be final and binding upon the occupier.

The Supreme Court considered two of its earlier decisions on the question : one in the case of Commissioner of Income-Tax v. Amritlal Bhogilal and Co. reported in 1959 Supreme Court Reports 713 and in the case otMadan Gopal Rungta v. Secretary to the Government of Orissa reported in (1969) Supplement 3 Supreme Court Reports 906 and laid down the following principle.

The appellant was heard by the State Government in support of his appeal and ultimately the State Government dismissed the appeal in its order dated the 2nd January, 1962. In these circumstances we are of opinion (hat the order of respondent No. 4 dated the 11th March, 1960 has merged in the appellate order of the State Government dated the 2nd January 1962 and it is the appellate decision alone which subsists and is operative in law and is capable of enforcement. In other words the original decision of respondent No. 4, dated the 11th March, 1960 no longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to the grant of any relief. There can be no doubt that if an appeal is provided by a statutory rule against an order passed by a tribunal the decision of the appellate authority is the operative decision in law if the appellate authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement.

This decision of the Supreme Court is an authority for the proposition that even in administrative matters where there is a statutory right of appeal doctrine of merger applies.

11. Mr. Bhatt has invited my attention to the decision of this High Court in T.P. Kurmaran v. R. Kothandaraman C.I.T. Gujarat reported in III Gujarat Law Reporter 856. A Division Bench of this High Court was considering in that case a similar question. After reviewing the case law on the subject, it arrived at the conclusion that the doctrine of merger applies to administrative orders where there is an original order and an appellate order made by an appellate authority in pursuance of its statutory appellate power.

12. As against these two decisions, Mr. Christi has invited my attention to the decision of the Supreme Court in the case of Sita Ram Gael v. The Municipal Board Kanpur and Ors. reported in : [1959]1SCR1148 . It was a case under the U.P. Municipalities Act, 1916. The Supreme Court was dealing in that case with a situation similar to the one which obtains in this case. In that case, the plaintiff was a municipal overseer who was dismissed by a resolution of the Municipal Board, Kanpur. Thereafter the plaintiff in that case appealed to the State Government against the order of dismissal and the State Government dismissed his appeal some time thereafter and the order of dismissal of the appeal was communicated to the plaintiff in due course. The plaintiff filed the suit for compensation for wrongful dismissal. The question of limitation arose in that case. In that case also the period of limitation was six months provided by Section 326, Sub-section (3) of the U.P. Municipalities Act, 1916. The Supreme Court after having considered the arguments advanced on behalf of the parties held that the resolution of the Board dismissing the plaintiff could not be equated with a decree and it, therefore, further held that the doctrine of merger which governs the decrees cannot govern the order of dismissal and the appellate order passed by the appellate authority against an order of dismissal,

13. Mr. Christi has also invited my attention to another decision of the Supreme Court in the caseof State of Madras v. Madurai Mills Co. Ltd. reported in : [1967]1SCR732 . In that case, the Supreme Court was considering the question whether the order of assessment made by the Deputy Commercial Tax Officer merged with the appellate order made by the Deputy Commissioner of Commercial Taxes and held as follows:

But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.

14. The decision of the Supreme Court in Sita Ram Gael's case (supra) has been sought to be distinguished by Mr. Bhatt on more than one ground. The first reason which he has advanced is that in this case the plaintiff has challenged the appellate order of the Standing Committee also. In Sita Ram Gael's case that was not the situation. The second ground on which Mr. Bhatt has made an attempt to distinguish the aforesaid decision of the Supreme Court is that the language in the corresponding section of the U.P. Municipalities Act, 1916 is not in parimateria with the language used in Section 56(4) of the Bombay Provincial Municipal Corporations Act, Mr. Bhatt has produced before me the U.P. Municipalities Act, 1916. Section 58 of the said Act reads as under:

(1) A board may punish, dismiss or remove its executive officer by special resolution supported by not less than two-thirds of the members constituting the board, subject to the 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 (lie order of the Board.

Sub-section (3) of Section 58 of the said U.P. Municipalities Act is not material for the purpose of the instant case. Sub-section (4) of Section 56 of the Bombay Provincial Municipal Corporations Act, 1949 provides as under.

Subject to the provisions of Clause (d) or the proviso to Sub-section (1), any municipal officer or servant who is reduced, removed or dismissed by any authority other than the Corporation may, within one month of the communication to him of the order of reduction, removal or dismissal, appeal to the authority immediately superior to the authority which imposed the penalty and the appellate authority may, after obtaining the remarks of the authority which imposed the penalty, either confirm the order passed or substitute for it such order as it considers just including an order for the imposition of some lesser penalty, and effect shall forthwith be given to any order passed by the appellate authority which shall be conclusive.

The argument of Mr. Bhatt as advanced before me is that the expression 'effect shall forthwith be given to any order passed by the appellate authority which shall be conclusive' or similar such expression does not occur in the U.P. Act and in his submission that makes all the difference so far as the applicability of the proposition laid down in Sita Ram Gael's is concerned According to him, by virtue of the aforesaid expression finality or conclusiveness attaches only to the appellate order of the Standing Committee and not to the order of the Commissioner. I find considerable force in this argument of Mr. Bhatt.

15. The Supreme Court in Sita Ram Gael's case (supra) has discussed the provisions of Section 58, Sub-section (1) and (2) of the U.P. Municipalities Act, 1916 in paragraph 13 of the report. Paragraph 18 and the subsequent paragraphs contain the reasons why the Supreme Court holds that the doctrine of merger, applicable to judicial proceedings, is not applicable to administrative orders. On reading paragraph 18 and the subsequent paragraphs of the report I feel that the Supreme Court was considering the applicability of the doctrine of merger in the context of provisions contained in the U.P. Municipalities Act, 1916. Therefore, the question whether doctrine of merger applies to administrative orders passed under Section 56, Sub-section (4) of the Bombay Provincial Municipal Corporations Act, 1948 has got to be considered in light of the language used in that section.

16. In the case of Slate of Madras v. Madurai Mills Co. Ltd. (supra) the Supreme Court has laid down that there is no immutable rule that the doctrine of merger does not apply to administrative orders. The principle laid down therein is that the applicability of the doctrine of fusion or merger depends upon the nature of the appellate order in each case and the scope of the statutory provisions conferring the appellate jurisdiction. In light of this principle, which has been laid down by the Supreme Court, it is easy to understand the ratio of the decision in the unreported case of Somnath Sahu (supra). The Supreme Court there was considering Rule 6(2) of the Orissa Welfare Officers' (Recruitment and Conditions of Service) Rules, 1961. T have quoted this Rule in the foregoing paragraph of this judgment. The expression 'whose decision thereon shall be final and binding upon the occupier' is indicative of the nature of appellate power conferred and also determines the scope of the appellate jurisdiction conferred upon the State Government in that case. It is under those circumstances that the Supreme Court in the unreported case of Somnath Sahu (supra) arrived at the conclusion that the doctrine of merger is applicable to administrative orders as well. Section 58 of the U.P. Municipalities Act, 1916 did not contain two concepts which Section 56, Sub-section (4) of the Bombay Provincial Municipal Corporations Act, 1949 contains. The first is that there is an express legislative mandate to give immediate effect to the appellate order and the second is that the conclusive character has been assigned by the Legislature only to the appellate order of the Standing Committee. These two concepts which have been incorporated in Section 56(4) widens the scope of the appellate jurisdiction. They were to a certain extent there in the unreported case of Somnath Sahu (supra). The language used in Sub-section (4) of Section 56 of the Bombay Provincial Municipal Corporations Act, 1949 is stronger and more explicit. Therefore, in view of the development in the field of its applicability which the doctrine of merger has seen and in view also of the fact that the language used in Sub-section (4) of Section 56 attracts, for the reasons stated above, the applicability of the doctrine of merger, I am of the opinion that the order passed by the Municipal Commissioner merged with the resolution passed by the Standing Committee on appeal.

17. In that view of the matter the cause of action must be deemed to have accrued to the plaintiff on the date when the Standing Committee made the appellate order on 6th January 1958. If the period of limitation prescribed under Section 487 is computed from 6th January 1958 when the Standing Committee made the appellate order it is beyond dispute that the suit is within time.

18. Mr. Christi has, however, submitted that what Section 56(4) confers upon the plaintiff is only the statutory right of appeal. It does not bar the remedy by way of a suit unless the appeal has been filed. It is true that, if the plaintiff had not filed the appeal before the Standing Committee, it would not have barred his suit but it does not make any difference for the purpose of the applicability of the doctrine of merger.

19. The next submission which he has made is that there is no provision in the Bombay Provincial Municipal Corporations Act, 1949 that an aggrieved employee must exhaust all remedies before instituting a suit. The third submission that he has made is that even without filing an appeal before the Standing Committee if the plaintiff had filed the suit it could not have been successfully challenged on the ground that it was premature. The last submission that he has made is that there is nothing in the Bombay Provincial Municipal Corporations Act, 1949 which empowers the appellate authority under Section 56(4) to suspend the order of the Commissioner during the pendency of the appeal. These submissions made by Mr. Christi are factually correct. In my opinion, they haveno bearing on the applicability of the doctrine of merger. It is true that along with other reasons they were also the reasons which weighed with the Supreme Court in Sita Ram Gael's case (supra) to arrive at the decision at which it arrived in that case. But the decision of the Supreme Court in Sita Ram Gael's case (supra) is the result which flowed not only from the consideration of these factors but also from the consideration of the language of Section 58 of the U.P. Municipalities Act, 1916 and also from the consideration of other factors which are recorded therein. The right to appeal which Section 56(4) has conferred upon an aggrieved employee is a statutory right. The right has not been conferred in lieu of the suit which may be instituted by an aggrieved employee in the ordinary Court of Law. It is not within the control and power of an aggrieved employee to ensure the speedy disposal of his appeal by the Standing Committee, The Standing Committee may take any amount of time in disposing it of. If on account of the time which the appellate authority may take to decide an appeal under Section 56(4) the suit is likely to suffer the bar of 'imitation, then an aggrieved employee has to choose between the statutory right of appeal and the right to file the suit. The scheme of Section 56(4) does not appear to the to be such as to warrant such a conclusion. If the doctrine of merger is not applied to cases under Section 56(4) of the Bombay Provincial Corporations Act, 1949, either the statutory right of appeal under Section 56(4) will be illusory or the right to file a suit will be defeated. Such a stringent consequence, in my view, has not been contemplated by the said section. Such a stringent result can also be avoided by applying the doctrine of merger. The application of the doctrine of merger, in my opinion, creates greater harmony and ensures better protection to all rights of an aggrieved employee. To the extent to which it ensures better protection to the rights of an aggrieved employee, its applicability is conducive to the rule of law.

20. Mr. Bhatt has raised certain other contentions before me. He tried to point out to me that the plaintiff has not only challenged the impugned order of the Municipal Commissioner but has also challenged the appellate order of the Standing Committee and so far as the challenge to the appellate order of the Standing Committee is concerned, the suit is within time from the date of that order.

20.1 The next contention which he has raised is that since the issue relating to limitation was tried as a preliminary issue the allegations made in the plaint must be taken to be true. If that is so, then his challenge is that both the impugned orders are ultra vires the powers of the Municipal Commissioner and the Standing Committee and if they are ultra vires the provisions of Section 487 of the Bombay Provincial Municipal Corporations Act, 1949 are not attracted. In view of my finding on the first contention which he has raised before me it is not necessary for me to consider these other submissions.

21. The result, therefore, is that I set aside the decrees passed by the Courts below and remand the suit to the trial Court for deciding it on merits and according to law. The appeal is allowed with costs throughout.


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