1. The Mayor of the Ariankuppam Commune, Pondicherry has preferred this appeal against the judgment of the learned Third Additional District Judge, Pondicherry, whereby, in pursuance of an application presented by the respondent before the former Administrative Court of Pondicherry, the decision of the Mayor dismissing the respondent has been held to be invalid and consequently set aside. The appellant was also directed to pay the costs of the proceedings to the respondent. 'The petition itself was filed under the French Law in the Council De Contentieux Administratif (Administrative Court) which was functioning under the French laws before the de jure merger of Pondicherry with the rest of India. After the de jure merger, the Pondicherry Civil Courts Act was enacted, which abolished the jurisdiction of the Administrative Court at Pondicherry and directed that all cases pending before the said Court shall be heard and disposed of by the District Judge or the Additional District Judge in accordance with the procedure followed immediately before the commencement of the Pondicherry Civil Courts Act, 1966. Previously the orders of the Administrative Court, Pondicherry went up in appeal to the Conseil D' Etat of France, But after the de jure merger, the appellate jurisdiction exercised by the Conseil D' Etat has been vested in this High Court under Section 10 of the Pondicherry Administration Act, 1968. In respect of matters pending before the Administrative Court on the relevant dates, both the District Judge as successor of the Administrative Court and this Court in capacity as successor to the Conseil d' Etat are bound by the French Law. It is in the light of that law that the dispute arising in this appeal has to be adjudicated upon.
2. The respondent entered service under the Municipality of Ariyankuppam in the year 1938. By an order dated 30-3-1965 (Vide Exhibit Al) the respondent was dismissed by the Mayor for the following reasons:
(1) That he was absent from his office during office hours.
(2) That he kept with him the office key during the period of leave and
(3) he failed to record in the account books the declarations of the licensees of toddy shops Nos. 2 and 4 in 1957.
Arrete dated 19-8-1946 as approved by the Governor in Council in French India contains rules relating to the personnel in the municipal service of the Commune of Ariyankuppam. Article 14 of this Arrete provides that in case of delinquency of the employees on the permanent cadre of the municipal service, they will be liable to the following punishments:
(2) Censure with inscription thereof in the confidential sheet entailing ineligibility for increment of one year.
(3) Suspension of the functions of the employee involving retention of the salary for a period not exceeding one year.
(4) De-promotion by one or more classes in the service cadre.
(5) Termination of service or dismissal.
The first three penalties can be imposed by an order of the Mayor after giving the delinquent an opportunity of going through the relevant records on application under Article 65 of the law of 22-4-1905 and after he gives an explanation in justification of his conduct. But this article contains the important provision that the last two penalties above mentioned, namely, de-promotion and termination or dismissal can be inflicted by an order of the Mayor only after he obtains the opinion of the disciplinary council to be constituted every time action has to be taken against an employee. Article 15 of the Arrets stated as follows:
The disciplinary council to be constituted by the Mayor shall comprise of at least five members: two municipal councillors, one official of the local cadre nominated by the Governor, two representatives drawn from the same cadre as the delinquent and enjoing a salary superior or at least equal to that of the delinquent.
The French Law displays its remarkable sense of fair-play by specifically providing in this rule that no person at whose instance the disciplinary proceedings have been taken against the delinquent should sit in the disciplinary council as a member. Article 15 of the Arrete says that the procedure to be followed by the disciplinary council, while conducting its affairs and investigating the charges against the delinquent shall be in accordance with the ministerial circular, dated 25-2-1909. This article also says that the employee shall always be permitted to present his ground of defence either orally or in writing and that he shall have the right to be assisted either by a colleague of his or by an advocate under the conditions laid down in the ministerial circular of 3-9-1930 (No. 56 H) and the communications made to the disciplinary council shall be kept without being returned so that they may be at the disposal of the interested party and the delinquent. It is thus found that very rigorous rules governing the procedure before the disciplinary council as well as the nature and the composition of the council have been laid down in the Arrete. It is also clear from the Arrete that the Mayor has no powers of inflicting the extreme penalty of dismissal without consulting and getting the opinion of the disciplinary council. Admittedly in this case, the Mayor of Ariyankuppam without constituting and consulting the disciplinary council, dismissed the respondent. Under the French Law, such an order will be struck down for everyone of the following three reasons:
(1) Excess de Puuvoir (exceeding the power).
(2) Violation de la lo (Violation of Law).
(3) Vice de Forme (Infirmity of form).
The Mayor had no jurisdiction to dismiss the employee under the Arrete and his order has been rightly struck down by the Administrative Court as illegal. I have myself been the President of the Administrative Court of Pondicherry for four years and in a case of this kind, one would expect even the Government advocate, that is, Commissaire du Government, to call upon the Court to set aside the order as it is the result of a flagrant violation of the procedure and law. It was, however, contended before the Court below that the respondent was only a temporary servant of the municipality and that he was not governed by the Arrete of 1946. This was rather a funny argument to advance. I share, the wonder of the learned District Judge how a person who entered the service of the municipality in the year 1938 could be presumed to continue as a temporary employee till the year 1965, that is to say, for 27 years, Further, the very order of the Mayor, by which the respondent was dismissed, expressly refers to the fact that the Mayor's order was passed under Article 14 of the Arrete, which prohibits the Mayor from inflicting the penalty of dismissal without getting the opinion of the disciplinary council. There are a number of orders which have been produced by the respondent which show that he has been promoted from one class to another. It is, therefore, highly improbable that even at the time of the promotions, he continued to be a temporary hand. Learned Counsel for the respondent has now produced before me an order, dated 22-8-1951 passed by the Mayor and bearing the seals of the Mayor. The Government pleader for Pondicherry has seen this document and is unable to say that it shall not be acted upon. I am satisfied that this order gives the grades and classes and salary of the various employees of the municipality of Ariyankuppam. For instance, the first entry relates to the Secretary of the Municipality who is placed in the fifth class and whose pay is given as Rs. 960 per annum. The second entry in this order relates to R. Kichenin, the respondent herein. It describes him as Commis-Comptable (Clerk-Accountant). The third column describes him as clerk of the fourth class. The fifth column gives his present salary per year as Rs. 540 and his annual salary after promotion as Rs. 720. The first article of this Arrete is worded significantly as follows:
The employees and municipal functionaries of the Commune of Ariyankuppam are put in the permanent cadre as follows:
The inclusion of the responded in this Arrete leaves no room for doubt that at least by 22-8-1951 he had become a permanent member of the municipal service. I, therefore, agree with the Court below in repelling the contention of the Mayor of Ariyankuppam that the respondent was only a temporary employee and was, therefore, not governed by the provisions of the Arrete, which required the Mayor to consult the disciplinary council before proceeding to dismiss him.
3. In the result, the appeal fails and it will stand dismissed with costs. I find that the respondent has not been reinstated in office in spite of the order of the Administrative Court, dated 26-8-1970. He was dismissed on 30-3-1965. Learned Counsel for the respondent bitterly complains that during the past ten years, the respondent has been illegally kept out of office. I direct the appellant to reinstate the respondent immediately. Needless to add that the respondent will be entitled to all the emoluments that would be admissible to him under the rules.