Full Judgment Text
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PETITIONER:
SIRSI MUNICIPALITY BY ITS PRESIDENT SIRSI
Vs.
RESPONDENT:
CECELIA KOM FRANCIS TELLIS
DATE OF JUDGMENT18/01/1973
BENCH:
SIKRI, S.M. (CJ)
BENCH:
SIKRI, S.M. (CJ)
RAY, A.N.
PALEKAR, D.G.
DWIVEDI, S.N.
BEG, M. HAMEEDULLAH
CITATION:
1973 AIR 855 1973 SCR (3) 348
1973 SCC (1) 409
CITATOR INFO :
RF 1975 SC1331 (26,32,189)
R 1976 SC 888 (8,16,18,32)
R 1976 SC2049 (17)
RF 1980 SC 840 (7,11)
RF 1987 SC1422 (10)
RF 1990 SC 415 (16)
F 1991 SC 101 (240)
ACT:
Bombay District Municipal Act 1901-Rules made under s. 46-
Rules 143 mandatory-Dismissal of employee without reasonable
opportunity to show cause void and illegal-State authorities
must act within limits of statutory powers-Public employment
distinguished from private employment.
HEADNOTE:
The respondent was an employee of the appellant
municipality as a midwife in its hospital. On the death of
a patient in the hospital an enquiry was held by the Civil
Surgeon who found that the death was not due to the
negligence of the hospital staff. Thereafter a committee
,appointed by the municipality held an enquiry and made its
report. The President of the municipality gave notice to
the respondent that as she was responsible for the death of
the patient in question du.,- to her negligence she should
appear before the Municipal Council at its meeting at 4 p.m.
on 25 Match 1955 and give her explanation. She sent her
reply denying her negligence and also stated that if ’it
was necessary for her to explain anything she should be
asked in writing. She did not appear before the Council at
the appointed time. When she did appear at 6 p.m. she
insisted that the charge against her should be in writing.
The municipality dismissed her from service. The respondent
thereupon filed a suit for a declaration that the resolution
of the municipality dismissing her from service was void.
Her first contention was that Rule 143 of the Rules framed
by the municipality had been violated as she was ,not given
an opportunity of defending herself against the charge. Her
second contention was that the resolution was passed by the
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municipality on a day when the question of her dismissal was
not on the agenda. The High Court upheld the findings of
the trial court and the first Appellate court that the res-
pondent was not given a reasonable opportunity to defend
herself and thus r. 143 was violated and on this ground
upheld the declaration that she was deemed to have continued
in service from the date of dismissal to the date of the
suit. In appeal by special leave before this Court the
municipality contended that the respondent was not entitled
to any declaration and that if the dismissal was wrongful
the remedy lay in damages.
HELD : (per Sikri, C.J., Ray, Palekar and Dwivedi, JJ.) (i)
Termination or dismissal of what is described as a pure
contract of master and servant is not declared to be a
nullity however wrongful. or illegal it may be. The reason
is that dismissal in breach of contract is remedied by
damages. [353F-G]
In the case of servant of the State or of local authorities,
courts have declared in appropriate cases the dismissal to
be invalid if the dismissal is contrary to the rules of
natural justice or if the dismissal or if the dismissal is
in violation of the provisions of the statute. Apart from
the intervention of statute there would not be a declaration
of
349
nullit y in the case of termination or dismissal of a
servant of the State or of other local authorities or
statutory bodies. [353G-H]
The courts keep the State and the public authorities
within the limits of their statutory powers. Where a
State or a public authority dismisses an employee in
violation of the mandatory procedural requirements or on
grounds which arc not sanctioned or supported by statute the
courts may exercise, jurisdiction to declare the act of
dismissal to be a nullity. Such implication of public
employment is thus distinguished from private employment in
pure cases of master and servant. [353H-354B]
This Court in its decisions has held that the dismissal or
termination of the services of employees without complying
with the provisions of statute or scheme or order is
invalid. This Court has questioned the orders of dismissal
and granted appropriate declarations. [356C-D]
Executive Committee of U.P. State Warehousing Corporation
Limited. v. Chaandra Kiran Tyagi, [1970] 2 S.C.R. 250 and
Indian Airlines Corporation v. Sukhdeo Rai, [1971] 2 S.C.C.
192, distinguished.
S.R. Tewari v. District Board, Agra, [1964] 3 S.C.R. 56,
Life Insurance Corporation of India v. Sunit Kimar
Mukherjee, [1964] 5 S.C.R. 528, Calcutta Dock Labour Board
v. Jaffar Imam & Ors., [1965] 3 S.C.R. 453 and Naraindas
Barot v. Divisional Controller, S.T.C., [1966] 3 S.C.R. 40,
referred to.
Recent English decisions also indicate that statutory
provisions may limit the power of dismissal. [356D-F]
Vine v. National Dock Labour Board, [1956] 3 All.E.R. 939
Barber v. Manchester Hospital Board, [1958] 1 All, E.R. 322.
Ridge v. Baldwin, [1964] A.C. 41, Malloch v. Aberdeen
Corporation, [1971] 2 All.E.R. 1278 and McClelland v.
Northern Ireland General Health Services Board, [1957] 1,
W.L.R. 594, referred to.
(ii)In the present case the dismissal of the respondent
must be declared to be illegal and void.
Rule 143 imposes a mandatory obligation. The rules were
made in exercise of power conferred on the municipality by
statute. The rules are binding on the municipality. They
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cannot be amended without the assent of the State
Government. The dismissal of the respondent was rightly
found by the High Court to be in violation of rule 1.43
which imposed a mandatory obligation. The respondent was
dismissed without a reasonable opportunity of being heard in
her defence. The dismissal by the municipality was without
recoding any written statement which Might have been
tendered. The dismissal by the municipality was without
written order. The dismissal was ultra vires. [357 G-358A]
Per Beg, J. (concurring)-The competence of the Municipal
court to pass the resolution dismissing the respondent
depended more on compliance with Rule 143 made under s. 46
of the Bombay District Municipal Act. 1901 than on s. 26(8)
of the Act. Compliance with such a rule could not be
dispensed with by the Council or its presiding authority
under s. 26(8) of the Act. [359C-E]
Neither rules nor bye-laws of the municipality could be made
or altered by, it unilaterally. ’Both operated as laws
which bound the local authority. This was clear from ss. 46
and 48 of the Act.
350
An express statutory provision or guarantee is not the only
basis of a mandatory duty, or obligation. It can be imposed
either by a rule made in exercise of a statutory power or it
may arise by implication when exercising a quasi-judicial
function. [360G-H]
The present case undoubtedly fell within the category of
cases where dismissal must be based upon a, decision arrived
at quasi-judicially about a wrong done by the servant. This
elementary and basic procedural safeguard flows not merely
from an implied rule of natural justice but in the present
case it is actually embodied in a rule which cannot be
interpreted as anything other than a legal limitation or
fetter on the power of the municipality to dismisses. [362F-
G]
This could not be a case in which damages for a simple
breach of contract could afford adequate relief. Damages
could not wipe off the stigma attached to the record of the
servant. The law requires that before the future of a
servant is allowed to be marred by a blot on the record of
the servant concerned,, rules of natural justice must be
complied with. [363A-B]
Case law referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 330 of 1967.
Appeal by a special leave from the judgment and order June
16, 1966 of the Mysore High Court at Bangalore in Regular
First Appeal No. 33 of 1962.
R. B. Datar and S. N. Prasad. for the appellant.
S. S. Javali, B. P. Singh and D. N. Mishra, for the
respondent.
G. B. Pai and C. S. Rao, for, the intervener No. 1.
G Ramchahdra Rao and B. Parthasarathy, for intervener No. 2.
D. V. Patel and K. L. Hathi, for intervener No. 3.
S. Balakrishnan, for intervener No. 4.
B. Datta, for intervener No. 5.
The Judgment of Sikri, C. J., Ray, Palekar and Dwivedi, JJ.
was delivered by Ray, J. Beg, J. gave a separate Opinion.
RAY, J.-The question which falls for determination in this
appeal by special leave is whether the respondent is
entitled to a declaration in a suit filed by her that her
dismissal by the appellant municipality referred to as the
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municipality was illegal and void.
The respondent was an employee of the municipality. Her
services were terminated by a, resolution dated 23 March,
1955. She was dismissed from service. She filed this suit
for a declaration that the resolution of the municipality
dismissing her from service was void and that she Continued
to be in service of the
351
municipality and was entitled to emoluments from the date of
the resolution up to the date of the suit.
The Municipality is governed by the Bombay District Muni-
cipalities Act, 1901 referred to as the Act. Section 46 of
the Act provides that the municipality shall make rules in
respect of matters enumerated in that section. Clause (g) of
section 46 empowers the municipality to frame rules
regulating inter alia the period of service, the conditions
of service etc.
Rule 183 framed by the municipality provides that except in
the case of Chief Health Officer and the Engineer every
municipal officer or servant is liable to be discharged at
one month’s notice. Rule 183 was not invoked by the
municipality in the present appeal. Therefore, rule 183
is out of consideration. Rule 143 of the municipality
provides two things. First, no officer or servant shall be
dismissed without a reasonable opportunity being given to
him of being heard in his defence. Any written statement
tendered shall be recorded and written order shall be passed
thereon. Second, every order of dismissal or confirming
dismissal shall be in writing and shall specify the charge
or charges brought, the defence and the reasons for the
order.
Sometime in February. 1955 one Nayak brought his wife
Nagamma to Pandit Cottage Hospital administered by the
municipality. Nagamma was admitted to the maternity section.
On 15 February 1955 Nagamma died. Nagamma’s husband
complained to the municipality against the negligence of the
staff of the hospital as the cause for the death of Nagamma.
The Civil Surgeon held an enquiry. He gave a finding that
the death of Nagamma was not due to the negligence of the
staff. There was public agitation for a fresh enquiry.
On 7 March 1955 the municipality passed a resolution
appointing a committee of four persons to hold an enquiry
into the cause of the death of Nagamma and the alleged
negligence of the staff of the hospital. The committee
recorded the statements of several persons. The committee
submitted its report to the Municipal Council.
On 23 March 1955 a meeting of the Municipal Council was held
The respondent alleged that though the consideration of the
report of the sub-committee and the taking of a decision
thereon were not included in the agenda of that meeting, yet
the President of the Council sent a notice to the
respondent. The communication to the respondent was to the
effect that it had come to the notice of the President that
the death of Nagamma was due to the negli-
352
ence of the respondent, and, therefore, she was to appear-
before the Municipal Council at 4 p.m. on 23 March 1955 and
give her explanation The respondent received a notice on 23
March, 1955 at about10.30 a.m. She sent her reply denying
her negligence. The respondent also stated that if it was
necessary for her to explain anything she should be asked
questions in writing and she would give her answers in
writing.
The respondent did not appear before the Municipal Council
at 4 p.m. The respondent came to the municipal hall at about
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6 p.m. But that time, the Municipal Council had passed a
resolution dismissing the respondent from service. The
President asked the respondent what her statement was about
negligence. The respondent did not make any oral statement.
The respondent insisted that the charge against her should
be given in writing and that she would reply in writing.
The municipality did not acceds to the respondent’s request.
The resolution of the municipality was communicated to the
respondent on the same day. The respondent handed over
charge on 24 March 1955.
Broadly stated, the two contentions of ;the respondent were
these. First, rule 143 of the municipality was violated.
She was not given a reasonable opportunity of defending
herself against the charge. Second, the resolution was
passed by the municipality on a day when the agenda before
the municipality did not contain any subject of dismissal of
the respondent. On these grounds the respondent filed a
suit for a declaration that the resolution was illegal, that
the status of the respondent as mid-wife in the hospital
remained unaffected and that the respondent was an employee
of. the municipality as before. The respondent claimed
other reliefs.
The contention of the municipality on the other hand was
that the rules and bye-laws of the municipality were only
for the guidance of the municipality and that the respondent
could not challenge the resolution or action of the
municipality on the ground of violation of rules and bye-
laws.
The High Court upheld the findings of the trial Court and
the first Appellate Court that the respondent was not given
a reasonable opportunity of defending herself against the
charge on which she was dismissed and that the municipality
thus violated rule 143. The High Court however did not
accept the finding of the courts below that the Municipal
Council Was not competent to pass the resolution on the
ground of want of notice on the agenda. The High Court also
set aside the findings of the courts below that the charge
had not been proved against the respondent. The High Court
found that the, resolution of the municipality was clearly
in violation of rule 143 and declared it as invalid and
inoperative.
353
The High Court maintained the declaration that the
respondent was deemed to have continued- in service from the
date of, dismissal to the date:-of the suit.
Counsel on behalf of the municipality contended that the
respondent was not entitled to any declaration. In short,
it was said on behalf of the municipality that if the
dismissal was wrongful the remedy lay in damages.
The cases of dismissal of a servant fall under three broad
heads. The first head relates to relationship of master and
servant governed purely by contract of employment. Any
breach of contract in such a case is enforced by a suit for
wrongful dismissal and damages. Just as a contract of
employment is not capable of specific performance similarly
breach of contract of employment is not capable of founding
a declaratory judgment of subsistence of employment. A
declaration of unlawful termination and restoration to
service in such a case of contract of employment would be
indirectly an instance of specific performance of contract
for personal services. Such a declaration is not
permissible under the Law of Specific Relief Act.
The second type of cases of master and servant arises under
Industrial Law. Under that branch of law a servant who is
wrongfully dismissed may be reinstated. This is a special
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provision under Industrial Law. This relief is a departure
from the reliefs available under the Indian Contract Act
and the Specific. Relief Act which do not provide for
reinstatement of a servant.
The third category of cases of master and servant arises in
regard to the servant in the employment of the State or of
other public or local authorities or-bodies created under
statute.
Termination or dismissal of what is described as a pure
contract of master and servant is not declared to be a
nullity however wrongful or illegal it may be. The reason
is that dismissal in breach of contract is remedied by
damages. In the case of servant of the State or of local
authorities or statutory bodies, courts have declared in
appropriate cases the dismissal to be invalid if the
dismissal is contrary to rules of natural justice or if the
dismissal is in violation ’of the provisions of the statute.
Apart from the intervention of statute there would not be a
declaration of nullity in the case of termination or
dismissal of a servant of the State or of other local
authorities or statutory bodies.
The courts keep the State and the public authorities
within the limits of their statutory powers. Where a State
or a public authority dismisses an employee in violation of
the mandatory procedural requirements Or an grounds which
are not sanctioned
354
or supported by statute the courts may exercise jurisdiction
to declare the act-of dismissal to be a nullity. Such
implication of public employment is thus distinguished from
private employment in pure cases of master and servant.
Counsel on behalf of the municipality relies on the
decisions of this Court in Executive Committee of U.P. State
Warehousing Corporation limited v. Chandra Kiran Tyagi
(1970) 2 S.C.R. 250 and Indian Airlines Corporation v.
Sukhdea Rai (1971) 2 S.C.C. 192 in support of the contention
that even in cases of statutory authorities or bodies a
dismissal would only sound in damages and not entitle the
dismissed servant to the relief of a declaratory judgment
against the order of dismissal or termination.
In Tyagi’s case (supra) the Warehousing Corporation was
competent to make regulations not inconsistent with the
Agricultural Produce (Development and Warehousing)
Corporation Act, 1956. The Warehousing Corporation framed
regulations. Regulation 1 1 dealt with termination of the
service of an employee other than by way of punishment.
Regulation 16 dealt with penalties imposed on servant.
Regulation 16(3) stated that no punishment other than fine,
censure or postponement of increments or promotion was to be
imposed on an employee without giving him an opportunity for
tendering an explanation in writing and cross examining the
witnesses against him and of producing evidence in defence.
Tyagi in that case complained that at the enquiry he was not
given opportunity to adduce evidence in defence and the
persons from whom the Enquiry Officer gathered information
were not tendered for cross-examination. The question for
consideration by this Court in that case was whether the
dismissal of Tyagi could support the grant of a declaration
that the dismissal was null and void and that Tyagi was
entitled to be reinstated. This Court held that an order
made in breach of regulation 16(3) was not in breach of any
statutory obligation. It was also held in Tyagi’s(1) case
(supra) that the relevant Act did not ’guarantee any
statutory status to Tyagi nor did it ’impose any
obligation’ on the Warehousing Corporation in the matter of
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dismissal. The ratio in Tyagi’s(1) case (supra) was that
violation of regulation 16(3) was a breach of terms and
conditions of relationship of master and servant and the
master was liable for damages for wrongful dismissal. This
Court did not find any violation of statutory obligation in
Tyagi’s(1) case (supra).
355
In the Indian Airlines Corporation case (supra) Sukhdeo Rai
was suspended on certain charges. Later on he was found
guilty of those charges in an enquiry. He was thereafter
dismissed. He filed a suit alleging that the enquiry had
been conducted in breach of the procedure laid down by
regulations made by the Corporal under section 45 of the
Act, and, therefore, the dismissal was illegal and void. The
High Court held that the Corporation was under a statutory
obligation to observe the procedure laid down in the
regulations and gave the relief of a declaratory judgment.
This Court set aside the declaration granted by the High
Court. The ratio in Indian Airlines Corporation case was
stated thus
"The employment of the respondent not being
one to an office or status and there being no
obligation or restriction in the Act or the
rules subject to which only the power to
terminate the respondent’s employment could be
exercised, could the respondent contend that
he was entitled to a declaration that the
termination of his employment was null and
void
In the Indian Airlines Corporation case (supra) regulations
framed under section 45 of the Act were said by this Court
to be terms and conditions of service but the same did not
constitute a statutory restriction as to the kind of
contracts which the Corporation could make with the servants
or he-ground on which it could terminate. The dismissal in
that case was found to be wrongful and not to fall within
the vice of infraction of statutory limitation or statutory
obligation.
This Court in S. R. Tewari v. District Board Agra (1964) 3
S.C.R. 55, Life Insurance Corporation of India v. Sunil
Kumar Mukherjee (1964) 5 S.C.R. 528, Calcutta Dock Labour
Board v. Jaffar Imam & Ors. (1965) 3 S.C.R. 453 and Narain-
das Barot v. Divisional Controller, S.T.C. (1966) 3 S.C.R.
40 dealt with power of statutory authorities and bodies to
dismiss servants. These decisions establish that the
dismissal of a servant by statutory including local
authorities or bodies in breach of the provisions of the
statutes or orders or schemes made under the statute which
regulate the exercise of their power is invalid or ultra
vires and the, principle of pure master and servant
contractual relationship has no application to such cases.
In Tewari’s case (supra) this Court said that dismissal, re-
moval or reduction of an officer or servant might be
effected under
356
the rules only after giving the servant a reasonable
opportunity of showing cause against the action proposed to
be taken. This Court held in Tewari’s case (supra) that in
three instances a dismissed employee might in appropriate
cases obtain a declaratory judgment that the dismissal was
wrongful. Those three instances are : first, cases of
public servants falling under Article 311(2) of the
Constitution; secondly, cases falling under the Industrial
Law and, thirdly, cases where acts of statutory bodies are
in breach of mandatory obligation imposed by a statute.
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In Naraindas Barot’s case (supra) this Court held that the
order of termination was bad in law since it contravened the
provisions of clause 4(b) of the regulation and also the
principles of. natural justice.
This Court has held in the decisions referred to that the
dismissal or termination of the services of employees
without complying with the provisions of statute or scheme
or order is invalid. This Court has quashed the orders of
dismissal and granted appropriate declarations.
There have been recent English decisions on this subject.
These are Vine v. National Dock Labour Board (1956) 3 All
E.R. 939; Barber v. Manchester Hospital Board (1958) 1 All
E.R. 322; Ridge v. Baldwin 1964 A.C. 41; Malloch v. Aberdeen
Corporation (1971) 2 All E.R. 1278 and McClelland v.
Northern Ireland General Health Services Board (1957) 1
W.L.R. 594.
These decisions indicate that statutory provisions may limit
the power of dismissal. Where such limitation is
disregarded a dismissal may be held invalid. In this
respect employment under statutory bodies differs from
ordinary private employment. Where a public body is
empowered to terminate employment on specified grounds or
where a public body does not observe the procedure laid down
by legislation e.g., improperly delegates power of dismissal
to ’another body the courts have declared such dismissal
from public employment to be invalid.
The cases of a statutory status of an employee can be also
form the subject matter of protection of the rights of an
employee under the statute. In Vine’s case (supra) the
removal of Vine’s name from the register was held to be a
nullity. The statutory scheme of employment was held to
confer on the worker a status.
357
An unlawful act of the Board was found to be interference
with status. The status of the dock worker was recognised
by this in Jaffar Imam’s case (supra). In Jaffar Imam’s
case (supra) the termination of the employment in breach of
clause 36(3) of the scheme made by the Central Government in
exercise of the power conferred on it by section 4(1) of the
Dock Workers (Regulation of Employment) Act 1948 was held to
be bad. The round given by this Court was that before any
disciplinary action was taken under clauses 36(1) and (2) of
the scheme in Jaffar Imam’s case (supra) the person
concerned was to be given an opportunity to show cause as to
why the proposed action should not be taken against him.
Again in Barber’s case (supra) under the memorandum issued
’by the Minister of Health the Hospital Board was not to
carry into effect the dismissal of consultant before a
certain appeal procedure had been completed. Barbar was
dismissed without the prescribed procedure being followed.
It was held that despite the ’strong statutory flavour
attaching to the plaintiff’s contract’ this was an ordinary
contract between master and servant. The House of Lord in
McClelland’s case held that the dismissal of the plaintiff
by the Board in that case on the ground of redundancy of
staff was not one of the grounds specified in the terms and
conditions of service. It was found that the dismissal
could be on specified grounds e.g.,, gross misconduct. A
declaration was granted in favour of McClelland on an
originating summons as to whether the agreement of service
was validly terminated. It was not a case of a Government
servant. There was no question of breach of statutory
provisions. The employment was based on contract. The
Court found that the express power of the Board did not
include reduction on the ground of redundancy. The Court
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spelt out security of status in employment. The legal basis
of the decision in McClelland’s case (supra) is- that the
post was terminable only on certain specified grounds.
In the present appeal, the preeminent question is whether
the dismissal is in violation of rule 143. Rule 143 imposes
a mandatory obligation. The rules were made in exercise of
power conferred on the municipality by statute. The rules
are binding on the municipality. They cannot be amended
without the assent of the State Government. The dismissal
of the respondent was rightly found by the High Court to be
in violation of rule 143 which imposed a mandatory
obligation. The respondent was dismissed without a
reasonable opportunity of being heard in her defence. The
dismissal by the municipality was without recording any
written
358
statement which might have been tendered. The dismissal by
the municipality was without written order. The dismissal
was ultra vires..
For the foregoing reasons the High Court was correct in
declaring the dismissal of the respondent to be illegal and
void. The appeal is therefore dismissed. In view of the
fact this court directed the appellant would in any event
pay the respondents’ costs, the Respondent will be paid
these costs.
BEG, J.-The facts of the case before us, which are so
clearly set out in the judgment of my learned Brother Ray,
need not be repeated by me. I respectfully concur with what
has fallen from my learned brother. I would, however, like
to ’add some observation on two aspects of the case before
us.
Firstly, it was suggested, on behalf of the Municipality,
that the local authority had some kind of dispensing power
which could enable it to over-ride Rule 143 in the
circumstances of the case before us. Rule 143 of the Sirsi
Municipality, reads as follows
"Rule 143(1). No officer or servant be
dismissed without a reasonable opportunity
being given to him of being heard in his
defence. Any written defence tendered shall
be recorded and written order shall be passed,
thereon.
(2) Every order of dismissal or confirming a
dismissal shall be in writing and shall
specify the charge or charges brought, the
defence and the reasons for the order".
This suggestion was based on the provisions of Section 26,
sub. s(8) of the Bombay District Municipal Act 1901
(hereinafter referred to as "the Act") which has really
nothing to do with any general power to disperse with the
application of any rule. All that Section 26, sub. s(8),
empowers the Council to do is to take up a matter for
consideration ’and discussion with the permission of the
Presiding authority even though it may not have been tabled
on the notified agenda for the meeting. this, provision
reads as follows
"26(8). Except with the permission of the
presiding authority, which permission shall
not be given in the case of a motion or
proposition to modify or cancel any resolution
within three months after the passing thereof.
no business shall be transacted and no
proposition shall be
discussed at any general meeting unless it has
been mentioned in the notice convening such
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meeting or, in the case of a special general
meeting, in the written request for such
meeting. The order in which any business that
may be transacted or any proposition that may
be discussed at any meeting in accordance with
this subsection shall be brought forward at
such meeting, shall be determined by the
presiding authority, who in case it is
proposed by any member to give priority to any
particular item of such business, or to any
particular proposition shall put the proposal
to the meeting and be guided by the majority
of votes given for or against the proposal".
Section 26, sub. s. (8), seems initially to have been relied
upon only to meet the argument that the impugned resolution
could not be passed in the absence of a previous notice of
it to the Members of the Council. The competence of the
Municipal Council to pass the resolution dismissing the
respondent depended more on compliance with Rule 143 made
under Section 46 of the Act than on Section 26(8) of the
Act. Compliance with such a rule could not be dispensed
with by the Council or its presiding authority under Section
26(8) of the Act.
The mode and conditions of appointment, punishment, and
dismissal of officers and servants of the Municipality were
meant to be regulated by rules which had to be approved by
the State Government in the case of the City Municipalities
and by the Commissioner in other cases before they could
become binding or be altered. Bye-laws could be made on
certain specified subjects only after the previous sanction
of the State Government or the Commissioner, as the case may
be, given to them. Neither rules nor bye-laws of the
Municipality could be made or altered unilaterally by it.
Both operated as laws which bound the local authority. This
was clear from the provisions of Section 46 and 48 of the
Act.
In Yabbicon v. King(1) it was said :
"The District Council could not control the
law, and bye-laws properly made have the
effect of laws; a public body cannot any more
than private persons dispense with laws that
have to be administered; they have no dis-
pensing power whatever".
Again, in William Feam & Sons. v. Flaxton Dural Council(2)
Sankey, L. J., held that a local authority has "no power" to
contravene its own bye-laws properly made. In Kruse Vs.
Johnson(3),
(1) (1899) (1 Q.B. 444(a). (2) (1929) ( 1 K. B. 450 @ 467).
(3) (1898) (2Q.B. 91).
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Lord Russel pointed out that a bye-law has the "force of
law" within the sphere of its legitimate operation.
Therefore, quite. apart from the basic character of Rule 143
as. a procedural protection against un-meritted punishment
by dismissal of servants of the Municipality, I think that
the local body was not competent to act upon the assumption
that it had any power to dispense with compliance with this
rule so long as it stood unaltered.
Secondly, the question arose whether the violation of Rule
143, which admittedly took place, made the, dismissal of the
respondent merely illegal, for which award of damages was
sufficient remedy, or made it void and ineffected, so that a
declaration of the rights of the respondent as a servant of
the Municipality could also be given despite the provisions
of Section 21 Specific Relief Act. It is true that,
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ordinarily, a Court will not give a declaration which will
have the effect of enforcing a contract of personal service
and will restrict relief to the injured party to damages for
breach of contract. But, the principles which are
applicable to the relation of a private master and a
servant, unregulated by statute, could not apply similarly
to the case of a public statutory body exercising powers of
punishment fettered or limited by statute and relevant rules
of procedure.
Although Indian Airlines Corporation v. Sukhdeo Rai(1),
which was cited on behalf of the appellant, could perhaps be
distinguished on facts, I am unable to reconcile the
decision of this Court in the case of Executive Committee of
U.P. State Warehousing Corporation Ltd. v. Chandra Kiran
Tyagi (2) , with our view in the case before us. In Tyagi’s
case (supra), as in the case before us, no express statutory
provision was contravened by the impugned dismissal, but a
rule, made under powers conferred by statute, which protects
the servant concerned from punishment by way of dismissal
contrary to rules of natural justice, was violated. If a
guaranteed "statutory status" means only an express
statutory protection, such as the one found in Article 311
of the Constitution. and a rule made under a statutory power
is not enough to confer it, there was none either in Tyagi’s
case (supra) or in the case before us. An express’
statutory provision or guarantee is not the only basis of a
mandatory duty or obligation. It can be imposed either by a
rule made in exercise of a statutory power or it may arise
by implication when exercising a quasi-judicial functions.
Even when there was no specific rule on the subject. like
Rule 143 in the case before us, this Court has held that
violation of im-
(1) [1971] Supp. S.C.R. 510.
(3) [1970] (2) S.C.R. 250.
361
plied rules of natural justice, in exercise of a quasi-
judicial statutory power, results in a legally void
decision. It was so held because the obligation to observe
rules of natural justice was imperative in such a situation.
In State, of Orissa v. Dr. (Miss) Binapani Rai (1), this
Court said
"This rule that a party to whose prejudice an
order is intended to be passed is entitled to
a hearing applies alike to judicial tribunals
and bodies of persons invested with authority
to adjudicate upon matters involving civil
consequences. It is one of the fundamental
rules of our constitutional set up that every
citizen is protected against exercise of
arbitrary authority by the State or its
officers. Duty to act judicially would,
therefore, arise from the very nature of the
function intended to be performed; it need not
be shown to be super-added. If there is power
to decide and determine to the prejudice of a
person, duty to act judicially is implicit in
the exercise of such power. If the essentials
of justice be ignored and an order to the
prejudice of a person is made, the order is a
nullity. That is a basic concept of the rule
of law and importance thereof transcends the
significance of a decision in any particular
case".
This principle would be equally applicable to local
Government bodies which fall within the definition of
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"State" given in Article 12 of the Constitution.
Byles, J., in Cooper v. The Board of Works for Wendsworth
District (2) , said long ago about the primordial character
of the opportunity to be heard before punishment :
"The laws of God and man both give the party
an opportunity to make his defence, if he has
any. I remember to have heard it observed by
a very learned man, upon such an occasion,
that even God himself did not pass sentence
upon Adam before he was called upon to make
his defence. ’Adam’ (says God) ’where art
thou ? Hast thou not eaten of the tree whereof
I commanded those that thou shouldst not
eat’?"
Such a principle has been described as a principle of
"Universal jurisprudence" by Mahomood, J., in Queen Empress
v. Ponhi
In Ridge v. Baldwin (4) Lord Reid observed (at page 71)
"The authorities on the applicability of the
Principles of natural justice are in some
confusion and so I
(1) [1967] (2) S.C.R. 625.
(3) I.L.R. 13 Alld. 171.
(2) (1863) 14 C.N.S. 180.
(4) 1964 A.C. 40 @ 65.
362
find it necessary to examine this matter in
some detail. The principle audi alteram
partem goes back many centuries in our law and
appears in a multitude of judgments of judges
of the highest authority. In modem times
opinions have sometimes been expressed to the
effect that natural justice is so vague as to
be practically meaningless. But I would
regard these as tainted by the perennial
fallacy that because something cannot be cut
and dried or nicely weighed or measured
therefore it does not exist. The idea of
negligence is equally insusceptible of exact
definition but what a reasonable man would
regard as fair procedure in particular
circumstances and what he would regard as
negligence in particular circumstances are equal
ly capable of serving as tests in law,
and natural justice as it had been interpreted
in the courts is much more definite than that.
It appears to me that one reason why the
authorities on natural justice have been found
difficult to reconcile in that insufficient
attention has been paid to the great
difference between various kinds of cases in
which it has been sought to apply the
principle. What a minister ought to do in
considering objections to a scheme may be very
different from what a watch committee ought to
do in considering whether to dismiss a chief
constable. So I shall deal first with cases
of dismissal These appear to fall into three
classes, dismissal of a servant by his master,
dismissal from an office held during pleasure,
and dismissal from an office where there must
be something against a man to warrant his
dismissal".
The case before us undoubtedly falls within the category of
cases where dismissal must be based upon a decision arrived
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at quasi-judicially about a wrong done by the servant. This
elementary and basic procedural safeguard flows not merely
from an implied rule of natural justice, but. in the case
before us, it is actually embodied in a rule which ’we
cannot interpret as anything other than a legal limitation
or fetter on the Dower of the Municipal authority to
dismiss. It constitutes a condition precedent to a valid
decision to dismiss whether contained in a resolution or an
order of the local authority. As the local Government
authority had failed to see that a mandatory duty. embodied
in a basic rule, had been carried out. the resulting
decision must necessarily be held to be-void.
If the decision to dismiss the respondent was void and
inoperative in law, there seems no reason why a declaration
to that effect be not granted. Such a case would be covered
by the principles
363
laid down by this court in : Life Insurance Corporation of
India v. Sunil Kumar Mukherjea & Ors. (1) and S. P. Tewari
V. District Board Agra & Anr.(2). This could not be a case
in which damages for a simple breach of contract could
afford adequate relief. Damages could not wipe off the
stigma attached to the record of the servant. The law
requires that, before the future of a servant is- allowed to
be marred by a blot on the record of the servant concerned,
rules of natural justice must be complied with.
1, ;therefore, concur with the judgment and the order
proposed by my learned Brother Ray.
G.C.
(1) [1964] (5) SCR (52)
(2) [1964] (3)SCR (55)
8-L796Sup. C.I/73
364