Municipal Board, Kannauj Vs. State of
Uttar Pradesh, & Ors  INSC 190 (12 August 1971)
SIKRI, S.M. (CJ) RAY, A.N.
CITATION: 1971 AIR 2147 1972 SCR (1) 193 1972
SCC (3) 345
U. P. Municipalities Act, 1916-Section 34(1-B),
The Executive Officer of the Municipal Board,
Kannauj (U.P.) dismissed 74 striking employees. Some of the employees appealed
against the order of dismissal and most of them were, reinstated. The others
did not appeal and the dismissal order stood in their cases.
After a year, the State Govt. purporting to
act under s. 34 (1-B) of, the U.P. Municipalities Act, passed an order
prohibiting the execution or further execution of the order of dismissal passed
by the Executive Officer on the ground that r. 5 of the U. P. Municipal Board
Servants (Enquiry punishment and termination of service) Rules were not
followed and the dismissed employees were not heard and so the alleged order
was illegal and improper. Section 34(1-B) of the U.P. Municipalitie Act, inter
alia, provides that the State Govt. may by order 'prohibit the execution or
further execution of a resolution or order', passed by a Board, 'if in its
opinion such resolution or order is prejudicial to the public interest' or has
been passed 'in abuse of powers or in fragrant breach of provision of any law
in force', and 'may prohibit continuance by any person or any act in pursuance
of such resolution or order.' The Municipal Board challenged the order of the
State Government in a writ petition; but the High Court dismissed the petition.
In appeal to this Court the Board contended
that the provisions of s. 34 (1-B) were incapable of application to an order of
dismissal. Allowing the appeal,
HELD: The State Government has no power to
cancel or set aside an order which exhausts itself after it has been passed or
made. Where the resolution or order does not require any acts to be performed
or steps to be taken for the execution or further execution of the resolution
or order of the Board or its officer there remained nothing of which execution
could be prohibited. The sub-section only empowers the State Government to
prevent something being done in future. [200A-E] Shujaat Ullah Khan v. State of
U.P. & Ors, 1966 A.L.J. 499, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 42 of 1968.
Appeal by special leave from the judgment and
order dated July 21, 1967 of the Allahabad High Court in Special Appeal No. 457
19 4 J. P. Goyal and G. N. Wantoo, for the
O. P. Rana, for respondents Nos. 1 and 2.
H. K. Pari and S. K. Dhingra, for respondents
Nos. 3, 9, 13, 15, 16, 25, 31 to 35, 38, 39, 42 to 50, 53 to 56, 58, 59, 60 to
62, 65 to 67, 69 to 71, 73 and 76.
The Judgment of the Court was delivered by
Palekar, J. This appeal by special leave against the decision of the appellate
Bench of the Allahabad High Court involves the question of the legality and
validity of an order dated 12th May, 1965 passed by the State Government
purporting to act under section 34(1-B) of the Uttar Pradesh Municipalities
Act, 1916 (hereinafter referred to as "the Act"). The impugned order
is as follows "U.P. Government Department of Municipal Board, Serial No.
1725 GI IIP 1964/64 12-5-65 NOTIFICATION The then Executive Officer of Municipal
Board, Kannauj dismissed 74 sweepers of Municipal Board Kannauj from 9th April,
1964 under section 76 of U.P. Municipalities Act, 1916.
The dismissal of the above sweepers was
illegal and improper because the procedure prescribed in Rule 5 of the Uttar
Pradesh Municipal Karamchari (Janch, Dand tatha Seva Samapti) Niyamawali [U.P.
Municipal Boards Servants (Enquiry, Punishment and Termination of Service
Rules)]was not followed and they were not given any opportunity of being heard
and the opinion of the State Government is that the above order of 9th April,
1964 by the present Executive Officer Municipal Board Kannauj is adverse to
public interest and the order has been made by seriously defying the rules of
Uttar Pradesh Municipal Karamchari Janch Dand tatha Seva Samapti Niyamawali
Municipal Boards Servants (Enquiry,
Punishment and Termination of Service Rules)].
1 9 5 So, the Governor of Uttar Pradesh in
exercise of his power under section 34 sub-section 1-B of the U.P.
Municipalities Act, 191 6 (U.P.Act No. 11, 1916) prohibits the execution of the
above order of 9th April 1964 and any act done by any person in pursuance of
that order and the continuance of that order.
By order PRAN NATH KAPOOR Secretary."
This order was challenged in a writ petition before the High Court by the
Municipal Board, Kannauj as being illegal and invalid on several grounds.
The substance of the allegations in the
petition by the Municipal Board was that, on account of certain disputes
between the Board and the sweeper-employees of the Board, there was a sudden
strike by the latter on 7th April, 1964.
As many as 74 sweepers struck work without
notice. By reason of the strike, insanitary conditions developed in the town
endangering public health. The Board bad, therefore, to act quickly as in an
emergency to recruit sweepers to do the job; but it was difficult to recruit
new men unless continuous employment was given to them and, hence, on 8th
April, 1964, the Board arranged to have it announced by beat of drum in the
town that, unless the striking employees resumed duties by the evening of 9th
April, 1964, they were liable to be dismissed. The strikers did not join duties
by the evening of 9th April, 1964 and, therefore, the Executive Officer of the
Board dismissed the 74 strikers who were made parties to the petition. It was
admitted that the procedure laid down by Rule 5(1) of the Uttar Pradesh
Municipal Boards Servants (Inquiry, Punishment and Termination of Service)
Rules (hereinafter referred to as "the Rules") was not adopted before
taking disciplinary action by way of dismissal; but the Board justified its
action by reference to the proviso to Rule 5(1) which stated that the
provisions of sub-rule 5(1) shall not apply where the person concerned had
absconded and where, for reasons to be recorded in writing, it was
impracticable to communicate with him.
19 6 After the dismissal of the 74 employees
on 9th April, 1964 some of the employees appealed against the order of dismissal
and most of them were reinstated. The others did not appeal and, therefore, the
order of dismissal stood in their case. New recruits were appointed in their
place. Later, i.e., more than a year after the order of dismissal, the State
Government, purporting to act under section 34(1-B) of the Act, passed the above
order prohibiting the execution or further execution of the order of dismissal
passed by the Executive Officer. It was contended that no such order under S.
34(1-B) of the Act could be validly made by the State Government.
The State Government, which was respondent
No. 1 to the petition, supported its order and contended that the order had
been passed in the public interest as, in its opinion, the order of the
Executive Officer was illegal and arbitrary and had the effect of throwing a
large body of employees out of employment making them suffer privation and
misery on account of the continuing operation of the order which was illegally
passed. The employee-respondents, on the other hand , denied the more
substantial allegations in the petition. They alleged that, as a matter of
fact, the employees had not gone on strike and, therefore there was no question
of their abstaining from doing their duties either on the 7th, 8th or the 9th
of April, 1964. There was no question also of any insanitary conditions developing
in the town and there was no good reason at all for passing an order of
dismissal of all the employees in a body. They further alleged that the order
had been passed out of sheer spite in order to teach them a lesson.
The High Court did not, obviously, undertake
an inquiry into the disputed facts. What was, however, relevant for its
decision was whether, in case the State Government honestly formed the opinion
that the order of the Executive Officer was prejudicial to the public interest
or was in flagrant breach of a provision of any law-in this case, rule 5(1) of
theRules, the order prohibiting the execution or further execution of the order
would be valid. The learned single Judge, who considered the petition in the
first instance, and the Appellate Bench held that it was open to the State
Government, on its own inquiry, to form 197 the opinion that the order passed
by the Executive Officer dismissing a large body of employees was against
public interest and in violation of the law in force and, consequently, the
order passed by the State Government under s.
34 (1 -B) of the Act was a valid order. On
that view of the matter, the Board's petition was dismissed by the High Court
and, hence, the present appeal.
The only point of substance urged by the
Board before this Court was that the provisions of section 34(1-B) of the Act
were incapable of application to an order of dismissal. The contention was
that, when an order of dismissal is passed, the order operates by its own force
and no further steps are necessary to implement such an order. It was submitted
that the sub-section applied only to those cases where the resolution of the
Board or order required some steps to be taken to effectuate the resolution or
the order and not when the resolution or order was effective by its own force.
In other words, where on the passing of the resolution or order it exhausted
itself, the State Government could hardly "prohibit the execution or
further execution" of that resolution or order; and, therefore, where the
State Government interfered by prohibiting the execution or further execution
of the resolution or order, it really intended to cancel or set aside the
resolution or order which, in the submission of the petitioner, was beyond the
powers of the State Government. It appears to us that there is considerable
force in this submission.
Section 34 is in that part of Chapter 11 of
the Act which deals with the subject "Control of Board". The marginal
note to the section is "Power of the State Government or the Prescribed
Authority or the District Magistrate to prohibit execution of or further
execution of resolution or order of the Board". Sub-sections (1) and (1-A)
deal with the powers, of the Prescribed Authority and the District Magistrate
in this respect. Sub-section (1-B) deals with the powers of the State
Government and is as follows :" (1-B). The State Government may, of its
own motion or on report or complaint received by order prohibit the execution
or further execution of a resolution or order passed or made under this or any
other enactment by a board or a committee of a 198 board or a joint committee
or any officer or servant of a board or of a joint committee, if in its opinion
such resolution or order is prejudicial to the public interest, or has been
passed or made in abuse of powers or in flagrant breach of any provision of any
law for the time being in force, and may prohibit the doing or continuance by
any person of any act in pursuance of or under cover of such resolution or
order." It should be noted that the words underlined above were inserted
by an amendment which came into force on 30th November, 1964, that is to say
much after the order of dismissal by the Executive Officer had been passed,
though before the order of the State Government dated 12th May, 1965. Before
the amendment, the State Government could pass the order of prohibition of
execution only when, in its opinion, the resolution or order was prejudicial to
the public interest; but, after the amendment, such an order could also be made
by the State Government if, in its opinion, the resolution or order was made in
abuse of powers or in flagrant breach of any provision of any law for the time
being in force. It was contended on behalf of the Board that it was not
competent for the State Government in this case to make the order on the ground
that the order of dismissal was in flagrant breach of a provision of the law
for the time being in force. But that point is only of academic interest,
because the order itself shows that it had been passed also on the ground that
the order of dismissal was prejudicial to the public interest. We assume,
therefore, that the State Government was satisfied that the order of dismissal
passed by the Executive Officer was prejudicial to the public interest. The
question, however, is whether, after the order of dismissal had been passed on
the 9th April, 1964, the State Government had the power virtually to set aside
or cancel the order under the cover of purporting "to prohibit the
execution or further execution of that order." In our opinion, that
sub-section does not clothe the State Government with such a power. The
resolution of the Board or the order of a duly authorised officer of the Board
is not liable to be cancelled or set aside under this section. All that could
be done under it is to prohibit the execution or further execution of the
resolution or order, or the doing or cont199 in uance by any person of any act
in pursuance of or under cover of such resolution or order. Where the
resolution or order does not require any acts to be performed or steps to be
taken for the. execution or further execution of the resolution or order of the
Board or of its Officer, as in the present case, there is really nothing to
prohibit. It was contended on behalf of the State that, when the State
Government was empowered to order prohibition of the execution of the
resolution or order, it was virtually empowered to set aside or cancel the
order and, in support of this view, a reference was made to sub-section (4) of
that section which provides that it shall be the duty of the Board, if so
required by the authority making the order under sub-section (1-B) to take any
action which it would have been entitled to take, if the resolution or order
had never been made or passed, and which is necessary for preventing any person
from doing or continuing to do anything in pursuance of the resolution or
order. If the object of the provision was to clothe the State Government with
the power to cancel or set aside the resolution of the Board or order, it would
have simply said so without resorting to the circumlocution "prohibit the
execution or further execution of the resolution or order". We do not,
therefore, think that sub-s. (1-B) read with sub S. (4) applies to any resolution
or order which exhausts itself after it is passed or made. That is the view
taken by a learned Judge of the Allahabad High Court in Shujaat Ullah Khan v.
State of U.P. & Others.(1) In that case, a resolution was passed by the
Board exonerating Shujaat Ullah Khan, who was the Executive Officer of the
Board, from certain charges that had been framed against him. The State
Government, thereupon, purporting to act under section 34(1B) of the Act,
quashed the Board's resolution on the ground that it was illegal, not having
been passed by 2/3rds of the members constituting the Board and was otherwise
prejudicial to the public interest. This, order of the State Government was
challenged by Shujaat Ullah Khan on several grounds, one of them being that no order
under s. 34(1-B) could be passed, because the resolution of the Board had been
fully implemented and nothing remained to be executed in respect (1) 1966
4-M1245Sup CI/71 200 thereof. This contention
was accepted by the learned Judge who observed as follows "It is clear
that the only order that can be passed by the State Government under this subsection
is a prohibitory order to prevent something being done in the future. It is not
open to the Government, acting under this subsection, to give any positive
direction such as has been given in the present case, where the Government has
ordered the Board to reconsider its report and to make a further enquiry and
take a fresh decision. The resolution passed by the Board, exonerating the Executive
Officer and dropping the charges against him, exhausted itself as soon as it
was passed, for the charges were straightaway dropped and the Executive Officer
stood exonerated. There remained nothing to be done in the future and there was
nothing left for execution or further execution that could be prohibited by the
State Government under sec.
34(1-B)." In our opinion, that reasoning
equally applies to the present case. The order of dismissal was self-operative
and nothing remained for execution or further execution which could be
prohibited by the State Government under that section. On that ground alone,
the order passed by the State Government will have to be set aside.
It was next contended on behalf of the
employee respondents' that there was really no effective order of dismissal,
because that order had not been communicated to the employees. We asked the
learned counsel whether this contention was taken earlier either in the
reply-filed by them to the petition or in the arguments before the High Court.
He was not able to show that this had been done. On the other hand, reference
was made by the learned counsel for the petitioner to an order passed by the
Executive Officer on 9th April, 1964, for communication of the order of
dismissal to the sweepers and also to the letter dated 8th May 1965 written by
the President of the Board to the District Magistrate which is appended to the
petition as Annexure 'C'. This letter says that the orders of dismissal had
been communicated to the sweepers 2 01 on 10th April, 1964. Moreover, we have on record a letter written by and on behalf of the sweepers to the
Secretary, Local Self Government Department, U.P., which clearly goes to show
that the sweepers had come to know that they had been dismissed from service.
This letter was received in the office of the Secretariat on 21st April, 1964 which only shows that the sweepers must have been communicated the order of
dismissal much earlier. We also know that many sweepers had filed appeals. In
any case, since the contention is put forward for the first time now in this
Court and involves consideration of facts, it cannot be permitted to be raised.
In the result the appeal is allowed and the
order of the State Government dated 12th May, 1965 is quashed. There shall be
no order as to costs.
S.C. Appeal allowed.