APPASAHEB ANNAPPA SIRGUPPI Vs. TOWN MUNICIPAL COUNCIL RAMDURG

JUDGEMENT

(1.) The petitioner was appointed as Secretary of the respondent-Municipality on 10-6-1959 and he had been acting as such till 31-10-1967, when the respondent-Municipality passed a resolution dismissing the petitioner as such Secretary, giving him a month's notice. The petitioner preferred a petition under Section 305 (1) of the Mysore Municipalities Act, 1964 (hereinafter referred to as the Act) before the Deputy Commissioner, Belgaum, praying that the execution of the resolution passed by the Municipality may be suspended. The Deputy Commissioner passed orders on 21-2-1968, a copy of which is marked C, allowing the petitioner's application, in exercise of the powers vested in him under Section 306 of the Act and ordering that the execution of the impugned resolution No. 130 of 31-10-67 be suspended. He also directed further action being taken in accordance with the provisions of Section 306(2) of the Act. The petitioner received accordingly an endorsement from the Office of the Deputy Commissioner, which is dated 11-3-1968 and marked Exhibit D. It may be mentioned that during the pendency of his petition before the Deputy Commissioner, he made an application for stay of implementation of the resolution passed by the Municipality, pending disposal of his petition before the Deputy Commissioner. The Deputy Commissioner made an order on 8-11-1967 staying the resolution and directing that the status quo should be maintained. Thereafter the petitioner appears to have reported for duty on 19-12-1967 but the respondent declined to allow him to work. After the final disposal of the matter on 21-2-1968, the petitioner reported to duty to the President of the respondent's counsel, asking him to take him on duty in accordance with the order of the Deputy Commissioner. The respondent refused to take him on duty as can be seen from the communication marked Exhibit F. The petitioner then sent a letter and a telegram to the respondent complaining that the refusal to take him on duty is illegal and in breach of the order passed by the Deputy Commissioner under Section 306 of the Act. The respondent issued a further endorsement on 26th March, 1968, refusing to take him on duty. It was further mentioned in that endorsement that the petitioner was not a Secretary-cum-Chief Officer as he claimed to be. Further it was mentioned that the point at issue i. e., the question of his dismissal was under final consideration before the Government as per Section 306 (2) of the Act. This has obviously a reference to the action taken by the Deputy Commissioner under the provisions of Section 306, forwarding to Government a copy of the order made by him with a statement of the reasons for making it. In these circumstances the petitioner being aggrieved by the act of the respondent to take him on duty even though the Deputy Commissioner has suspended the execution of the respondent's resolution, has filed this Writ petition. He prays that a direction in the nature of mandamus be issued as against the respondent directing it to take the petitioner back to service as Chief Officer of the respondent-Municipality and further directing respondent to pay the petitioner the arrears of salary and other emoluments and benefits as Chief Officer from 19-4-1967 and to treat him as in continuous service without any break since that date.

(2.) Sri V. Tarakaram, the learned Counsel for the petitioner says that the petitioner was acting as Secretary of the respondent-Municipality and also as Chief Officer of the Municipality since 1-4-1965. This fact is disputed by the respondent. What is admitted by the respondent is that the petitioner was the Secretary of the Municipal Council. It should, however, be noted that the resolution passed by the Municipal Council on 31-10-1967 is to dismiss the petitioner, who Was the Secretary of the Municipal Council. Sri Tarakaram makes it clear that the question as to whether he was acting as Chief Officer is a matter that need not be considered for the present, but his claim to be allowed to rejoin service as Secretary of the Municipal Council requires to be considered. Under Exhibit C the order passed by the Deputy Commissioner, Belganm, the execution of the resolution passed by the Municipal Council on 31-10-67 was suspended. The contention of Sri Tarakaram is that if the execution of the resolution dismissing the petitioner is suspended by the Deputy Commissioner, it implies that he is entitled to report himself to duty and to work as Secretary of the Municipal Council.

(3.) It is contended by Sri S. G. Bhat, the learned Counsel appearing for the respondent, that the order made by the Deputy Commissioner is not a final order and therefore the prayer of the petitioner cannot be granted. He submits that the report made by the Deputy Commissioner under the provisions of Section 306 (2) of the Act is now pending before the Government and under the provisions of Section 306 (2) the Government has the power to rescind the order of the Deputy Commissioner or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit. To consider the respective contentions of the parties it is necessary to set out the provisions of Section 306 of the Act:--