U P STATE Vs. MURTAZA ALI

JUDGEMENT

(1.) I agree with my brother Dwivedi that the regulations published in Notification No. 6471/XI-226-46, dated the 29th November, 1946, and printed at p. 654 of the Municipal Manual, Uttar Pradesh, Vol. I, 1952, are, in their application to an executive officer of a municipal board, ultra vires the State Government. Since we are overruling a decision of our brother Tandon, I consider it necessary to add a few words of my own.

(2.) The Municipalities Act contains different provisions regarding appointment, punishment, dismissal etc. of different classes of officers and servants, and it is by no means certain that the impugned regulations are meant to govern the dismissal, removal or reduction of an executive officer. The provision "every order of dismissal, removal or reduction shall be in writing" means that the regulations govern the dismissal, removal or reduction by an "order" and not by a "resolution" of the board. An executive officer is liable to be punished, dismissed or removed by a special resolution ot the board, (vide Section 58), as well as by an ordinary resolution of the board on a recommendation made by the President after an enquiry under Section 69-A. In either case it is the resolution and not order of the board by which the executive officer is punished, dismissed or removed. "Resolution" is distinct from "order" and "order" does not comprise a resolution. Regulation No. 2 refers to "order" and not "resolution". Further, the express requirement that the order must be in writing suggests that the regulation is not meant to apply to a resolution because a resolution is always reduced to writing. An executive officer, or any other officer, can be dismissed, removed or reduced also by an order, provided that the order is of the State Government passed on a record of enquiry completed against him by the President and submitted with his recommendation- to the State Government. It maybe that the regulations, though expressed in wide language, are intended to apply when the State Government passes an order against an executive officer or other officer or servant.

(3.) The Act contains provisions dealing with the heads "service" "conditions of service" and "period of service." Section 57(3) deals with conditions of service of executive officers and medical officers of health. Section 59(3) deals with conditions of service of officiating executive officers. Sections 66(2) and 68(2) deal with conditions attached to the appointment of secretaries and other officers. Section 297 (1) (f), (h), (i), (j), (k) and (l) deals with regulations to be made by a board in respect of (a) monthly salaries of certain servants, (b) allowances of the servants employed by a board, (c) security to be furnished, by a servant of a board, (d) leave to servants of a board, (e) the period of service of servants of a board and the conditions under which they are entitled to receive gratuities or compassionate allowance on retirement, or on their becoming disabled through the execution of their duty and (f) contributions to a pension or provident fund established by a board. It is obvious from these provisions that the heads "service", "conditions of service," and "period of service" are different from one another. Even if the head "service" or "conditions of service" might be said to comprise everything from the commencement to the termination ot service, the head "period of service" cannot be said to comprise everything. How a service can be terminated may be a part of the conditions of service, but service can be terminated in various ways, such as by expiry of the period of service, by resignation, by death, by dismissal or by removal. Consequently 'period of service' is only one of several matters comprised in 'conditions of service' or 'service.' 'Conditions of service' may include 'period of service' but 'period of service' does not include everything connected with 'service' or 'conditions of service.' Rules regarding 'conditions of service' may include rules regarding 'period of service', but rules regarding 'period of service' cannot include rules regarding the termination of service otherwise than by expiry of the period of service. Consequently, rules regarding dismissal or removal do not come within the scope of rules regarding "period of service". Section 297 (1) (k) (old or unamended) confers power to make regulation only in respect of "period of service", and not in respect of other matters relating to servants, such as dismissal or removal. When a servant is dismissed or removed, he is dismissed or removed, even though the period of service has not expired; as a matter of fact dismissal or removal can be ordered only during service, i.e. so long as the period of service has not expired. The power to make regulations regarding gratuities and compassionate allowance conferred by Section 297 (1) (k) along with the power to make regulations regarding the period of service, confirms the view that I take; a question of payment of gratuity or compassionate allowance arises only when the service is terminated by expiry o the period of service and not when it is terminated by dismissal or removal. A servant, who is punished by dismissal or removal, is never thought to be entitled to a gratuity or compassionate allowance. Consequently the power to make regulations regarding dismissal or removal is not comprised in the power to make regulations regarding period of service.