K.N. Mudaliyar, J.
1. P.G. Arunachalam, is the Petitioner. He is the Headmaster of the Corporation High School, Tiruvottiyur, Madras. He entered service in August 1950 as B.T. Assistant in the Corporation High School, Nungambakkam. He was promoted as Headmaster in June, 1964. Ever since his appointment as a teacher, he maintains that, he has been discharging his duties to the utmost satisfaction of his superiors without any blemish. He makes certain allegations against a Councillor of the Corporation in respect of admission of pupils into the High School. According to the petitioner, on the 19th June, 1968 at about 12 noon, when the petitioner was in his office in the first floor of the school, his peon came and told him that some Councillors had come and they wanted to see him. He sent word through the peon that he would be seeing them and immediately he asked the three teachers and the attender who were then in his room assisting him, to leave the room in order to enable him to attend to the Councillors. Several parents and other pupils who had come in connection with the admission of the students were also requested to wait outside. The petitioner locked the cash box and came just outside the room to lock the door. At that time, the petitioner's peon returned back and informed him that the Councillors had gone away in spite of their having information about the petitioner moving to meet them. On 25th June, 1968, the petitioner received an order from the respondent relieving him forthwith of his duties as Headmaster of the School. He handed over charge to the First Assistant on the same day. On 27th June, 1968 he was suspended with effect from 25th June, 1968 pending framing of charges. He moved this Court for suspending the operation of the orders of the respondent pending disposal of the Writ Petition No, 2413 of 1968. The writ petition was dismissed as infructuous, but the learned Judge observed that it is a shocking case of abuse of authority, and even went to the extent of awarding costs against the respondent while dismissing the writ petition . Evidently, the enquiry was conducted and completed before the date of the final disposal of the Writ Petition No. 2413 of 1968 on 21st January, 1970. The punishment of withholding of increment for six months was inflicted on the petitioner by an order dated 10th November, 1969. The finding of the respondent is extracted here below:
Thiru P.G. Arunachalam, H.M., G.H.S.G. Koil Street, was certainly aware of the presence of the Hon'ble Members of the Central Committee, the Assistant Commissioner (S) and the Engineer in the school on 19th June, 1968. Though he was informed by the peon and the P.E.T. that the Hon'ble Members were waiting for the H.M. he failed to come down. Further, even by the time they had themselves inspected the piece of land situated behind the school building on the eastern side and returned, he did not come down to meet them. This clearly shows his discourteousness towards the Hon'ble Members of the Central Committee, and the Assistant Commissioner (South). His explanation cannot, therefore, be accepted and the charge framed against him in this behalf is held proved. The increment of Thiru P.G. Arunachalam, H.M., C.H. S.G. Koil Street, is, therefore, ordered to be stopped for six months without cumulative effect.
Hence this writ petition impeaching the validity of the impugned order.
2. The learned Counsel for the petitioner frankly stated before this Court that the grounds on which the impugned order is attacked are based on the mistaken notion that the old Sections 85 to 97 of the Madras City Municipal' Act (IV of 1919), are still in force and that the petitioner was unaware of the provisions of the Amending Act LVI of 1961. But the learned Counsel subsequently placed strong reliance on a judgment of this Court in C. Kuppuswamy v. Corporation of Madras W.P. No. 245: of 1972 judgment dated 29th March, 1973. and argued that on the date of the impugned order passed against the petitioner, there was no power vested in the Commissioner to punish the petitioner.
3. I was unable to get thee xact date on which the amending Act LVI of 1961 came into force. But that would not assume any importance for the simple reason that the petitioner herein joined the service of the Corporation as early as 1950, long prior to the Amending Act, LVI of 1961, coming into force. In C. Kuppuswami v. Corporation of Madras W.P. No. 2451 of 1972. it was conceded by the learned Counsel for the Corporation that the petitioner therein entered the service of the Corporation only after the Amending Act, LVI of 1961, came into force, and therefore, the learned Counsel did not rely on Section 102 read with Schedule II of the Amending Act LVI of 1961, for maintaining that the source and content of the power of the Commissioner to punish the employees of the Corporation is embodied in the Transitional provision No. 5 of Schedule II with reference to Section 102 of the Amending Act LVI of 1961.
4. One limb of the argument of Mr. Thillaivillalan, is that, notwithstanding the absence of 'by-laws made by the Council under Section 349 of the principal Act, within the meaning of Section 86 of the Amending Act, 1961, 'there is the power vested in the Commissioner by the Transitional Provision No. 5 of Schedule II read with Section 102 of the Amending Act of 1961. I shall first dispose of this limb or argument before I notice the validity of the second limb, which I shall presently deal with. In the Madras City Municipal Act, viz-, the principal Act IV of 1919, one finds the Sections 85 to 97 dealing with various aspects of the Establishments. It is of particular significance to notice the two sections i.e., Sections 93 and 96. They are extracted here below:
Subject to the provisions of this Act and to the by-laws and regulations for the time being in force, the Commissioner shall prescribe the duties of the Corporation establishment and exercise supervision and control over their acts and proceedings and dispose of all questions relating to their conduct, service, pay, allowances, leave, pension and provident fund privileges.
'(1) Subject to the provisions of Section 94 if any officer or servant in the service of the corporation other than an officer appointed under Section 85, Section 86 or Sub-section (3) of Section 87 is guilty of any breach of any departmental rules, discipline or of carelessness, neglect of duty or other misconduct, or is unfit, the authority competent to appoint such officer or servant may impose the following penalties on him, namely:--
(ii) withholding of increments or promotion, including stoppage at any efficiency bar;
(iii) reduction to a lower post or time-scale, or to a lower stage in a time-scale;
(v) recovery from pay of the whole or part of any pecuniary loss caused to the corporation;
(vii) removal from the service of the corporation, which does not disqualify from future employment;
(viii) dismissal from the service of the corporation which ordinarily disqualifies from future employment.
(2) Any order passed under Sub-section (1) shall be final:
Provided that any officer or servant in receipt of a monthly salary of not less than fifty rupees may appeal to the standing committee against any order of the Commissioner reducing, removing or dismissing him or suspending him for a period of more than one month:
Provided further that any officer or servant in respect of a monthly salary exceeding one hundred rupees may appeal to the Provincial Government against an order of dismissal, within a period of one month from the date of the order passed by the standing committee, on appeal from such order of dismissal:
Provided further that no Government servant employed by the corporation shall be dismissed from such employment without the consent of the Government concerned or until three months' notice in writing to that effect shall have been given to the chief controlling authority of the branch of the Government service to which such servant belongs;
(3) Pending a resolution of the Council the Commissioner may suspend any officer appointed by that authority:
Provided always that he shall forthwith report to the council the reasons for his action.
5. For evaluating the substance of the argument, a scrutiny of Section 96 would reveal that the authority competent to appoint certain employees or servants may impose eight varieties of punishment. The said section also provides for an appeal to the standing committee by an employee who is in receipt of a monthly salary of not less than fifty rupees. There is an appeal to the provincial Government against an order of dismissal. A significant feature of Section 96 is the provision for the substantive punishment of suspension. There appears to be no limitation placed on the punishment of suspension. These sections, ranging from Section 85 to Section 97 of the principal Act, have been impliedly repealed and Sections 85 to 93 have been substituted by the Amending Act LVI of 1961. It is stated by the learned Counsel for the Corporation that the new sections were substituted because consequential arrangements had to be made resulting from the merger of large adjoining areas into the city of Madras which became enlarged territorially. The only section germane to the present discussion is Section 86 of the amending Act of 1961, which is extracted here below:
Section 86: Conditions of service of corporation establishments:--
(1) Save as otherwise provided in this Act, the classification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the corporation establishment shall be regulated--
(i) in the case of Class I-A, Class I-B and Glass II officers, by Rules made by the State Government in this behalf;
(ii) in the case of the employees included in Class III and Glass IV, by by-laws made by the council under Section 349:
Provided that any Glass I-A, Glass I-B or Glass II officer may be removed from office by the State Government:
Provided further that--
(i) the amount of any salary, leave and leave allowances, gratuity or pension granted under the said by-laws shall in any case, without the special sanction of the State Government, exceed what would be admissible in the case of Government servants of similar standing and status; and
(ii) the conditions under which such salary and allowances are granted or any leave, superannuation or retirement is sanctioned shall not without similar sanction be more favourable than those for the time being prescribed for such Government servants.
(2) No officer or other employee of the corporation shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(3) No such officer or employee as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:
Provided that this sub-section shall not apply--
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for reasons to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or
(c) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that in the interests of the security of the State it is not expedient to give to that person such an opportunity.
(4) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under Sub-section (3) or whether in the interests of the security of the State it is not expedient to give to any person such an opportunity under that sub-section, the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.
(5) Every officer of the Corporation establishment shall be a wholetime officer of the corporation and no such officer shall undertake any work unconnected with his office without the permission of the commissioner:
Provided that the order of the commissioner granting such permission shall be placed before the next meeting of the Council.
Section 86(1) too provides for 'by-laws made by the Council under Section 34.9 (of the principal Act) to deal with the discipline and conduct of the Corporation Establishment comprising Class III and Class IV employees'. Section 86(3) provides for the punishment of dismissal, removal or reduction in rank. It is abundantly clear that when the Legislature substituted Section 86, it had the knowledge that Section 96 provided for eight modes of punishment and that it was satisfied with the provision for three modes of punishment. Regarding the residual modes of punishment, the Legislature thought it fit to provide for the same by means of 'bylaws made by the Council under Section 349 (of the principal Act) governing the discipline and conduct of the Corporation Establishments comprising Glass III and Glass IV employees'. It is conceded by the learned Counsel for the respondent (as was conceded by the predecessor of the present incumbent in Writ Petition No. 2451 of 1972) that the Corporation failed to frame any by-laws till now and only after the judgment in Writ Petition No. 2451 of 1972, the by-laws are now under preparation. Therefore, the learned Counsel for the respondent desperately chose to rely on the Transitional Provision No. 5 of Schedule II to the amending Act of 1961 read with Section 102 of the same. A reading of Transitional Provision No. 5 would make it clear that the said provision would apply to every person included in the Corporation establishment immediately before the date of the commencement of the amending Act, LVI of 1961. But the scope of the said provision is constricted by Section 102(1) which limits it to the first constitution, of certain committees. Even assuming that the phrase, 'and otherwise' would pertain to certain other matters not covered by Section 102, Sub-section (1) of the' amending Act, LVI of 1961,1 am unable to read into Transitional Provision No. 5 something pertaining to discipline and conduct of the Corporation employees. This provision, Transitional Provision No. 5, talks about 'tenure, remuneration, rights, privileges as to pension and gratuity and other matters'. The phrase, 'and other matters' has got to be construed in the context of the preceding language in. the said provision. This provision obviously provides for safeguarding the rights and privileges of the employees who have entered the Corporation establishment prior to the amending Act coming into force. At one stage, the learned Counsel for the respondent argued that the scope and amplitude of this Provision No. 5 of the Transitional Provisions in Schedule II to the amending Act, .LVI of 1961 is not de-limited by the scope of Section 103 of the amending Act; even assuming that this Provision No. 5 is not constricted narrowly by the main Section 102 of the Act, and also giving the widest meaning to every word and phrase comprised in the said Provision. No. 5, I am unable to hold that the said provision is so wide enough as to clothe the Commissioner with the necessary power of dealing with the discipline and conduct of the Class III and Class IV employees, in the absence of 'by-laws made by the Council under Section 349 (of the principal Act) within the meaning of Section 86 of the amending Act, LVI of 1961.' I find no substance in this argument.
6. The second limb of the argument of the learned Counsel for the respondent is that although that Transitional Provision No. 5 of Schedule II read with Section 102 of the amending Act LVI of 1961 does not vest such power in the Commissioner to deal with the discipline and conduct to inflict punishment on the petitioner, he falls back on the language of Section 91 of the principal Act (IV of 1919) as amended by the amending Act LVI of 1961. To him, Section 91 of the principal Act appears to be the reservoir of power to punish the delinquent official. I extract here below Section 91 of the principal Act which is now in force:
Section 91(1) The Commissioner shall, from time to time lay before the standing committee a schedule setting forth the designations and grades of the officers and servants who should in his opinion constitute the Corporation establishment, and embodying his proposals with regard to the salaries, fees and allowances payable to them.
(2) The standing committee may either approve or amend such schedule as it thinks fit and shall lay it before the council with its remarks, if any.
(3) The council shall sanction such schedule with or without modifications as it thinks fit and may from time to time amend it at the instance of the Commissioner and standing committee:
Provided that no new office shall be created without the sanction of the Provincial Government if the maximum monthly salary exceeds two hundred and fifty rupees
I also extract Section 93 of the principal Act before the amending Act, LVI of 1961 came into force;
Section 93--Subject to the provisions of this Act and to the by-laws and regulations for the time being in force, the Commissioner shall prescribe the duties of the Corporation establishment and exercise supervision and control over their acts and proceedings and dispose of all questions relating to tack conduct service, pay, allowances, leave, pension and provident fund privileges....
A comparison of Section 93 of the principal Act with Section 91 of the amending Act, LVI of 1961, would, show that these two sections are substantially in part materia; the language is identical and the similarity in, the phraseology of the two sections is striking. The Commissioner 'shall exercise supervision and control over the Corporation establishment subject to the provisions of this Act and to the rules, by-laws and regulations for the time being in force', Even Section 93 of the principal Act was there in force until it was substituted by Section 91 of the amending Act, LVI of 1961. Nevertheless there was the detailed provision embodied in Section 96 providing for eight modes of punishment. The Legislature did not rely on the so-called general power in Section 93 of the principal Act; on the contrary, there was the important Section 96 (of the principal Act) placed, in conjunction with Section 93 (of the principal Act). But, when the Legislature made the necessary amendments to this bunch of sections viz., Sections 85 to 97, they provided only for three modes of punishment, as already mentioned by me, in Section 86 Sub-section (3) of the amending Act, LVI. of 1961. It further provided, in Section 86(1)(ii), for 'by-laws made by the council under Section 349'. Therefore, the so-called general power vested in the Commissioner by Section 91 of the amending Act, LVI of 1961 is subject to 'by-laws for the time being in force'. If there are no by-laws for the time being in force, particularly at the time of the infliction of the punishment on the petitioner, the Commissioner cannot be permitted to fall back on the so-called general power of control. In law, such a thing is impermissible, particularly, in the light of Sections 86 and 91 of the amending Act. LVI of 1961.
7. The respondent pleaded that even in the absence of the by-laws, the Commissioner can rely on the common law, Frankly in the face of statutory provisions for such punishments, I am unable to follow such an argument. A reading of (section 102 Sub-section (3) makes an ample provision for resolving any difficulty arising in first giving effect to the provisions of the amending Act, LVI of 1961, or any difficulty experienced in giving effect to the provisions of the principal Act itself. It is certainly open to the respondent to invoke the State Government's power to make such rules under Section 102, Sub-section (3) of the amending Act, LVI of 1961 to meet the present difficulties, or to make the necessary by-laws within the meaning of Section 86(1)(ii) of the amending Act of 1961 with immediate effect. I hold that on the date of the impugned order, viz. 10th November, 1969, the respondent has had no power vested in him to punish, the petitioner.
8. The respondent relied on a concession built on the fallacy committed by the petitioner in thinking that the old bunch of Sections 85 to 97 were still in force. Certainly, the petitioner is not a super-legislature to give life to the implied repeal of Sections 85 to 97 which have been substituted by Sections 85 to 93 by the amending Act, LVI of 1961 and the other four sections viz., Sections 94 to 97 which have been added by the amending: Act XV of 1965. It is brought to my notice that Sections 94 and 95 were later repealed by the amending Act X of 1968. This, I am stating for the purpose of completing the history of legislation in this regard.
9. The impugned order of the Respondent dated 10th November, 1969 is quashed, by the issuance of a writ of certiorari. The writ petition is allowed as prayed, for with costs. Advocate's fee Rs. 250,.