HUKUM CHAND JAIN Vs. MUNICIPAL BOARD FAIZABAD

JUDGEMENT

(1.) The petitioner in this case and in the connected case is an ex-overseer of the Municipal Board, Faizabad, opposite party No. 1, the President of which is Mahabir Prasad, opposite party No. 2. On 9-9-1958 the President passed an order to the effect that the petitioner had been guilty of misconduct, persistent failure in the discharge of his duties, gross negligence, flagrant disobedience, etc., that a thorough inquiry was absolutely necessary before disciplinary proceedings could be taken against him, that his continuance in office was bound to interfere with a free and impartial inquiry and that consequently he directed "the suspension of Shri H. C. Jain... ....with immediate effect pending inquiry after which a charge sheet shall be served on him." The President passed on the same day another order directing the additional municipal overseer and the public works clerk to take over complete charge from the petitioner, and a third order, addressed to the petitioner, requiring him to be al-ways available to the Executive Officer and the Office Superintendent of the Municipal Board on all working days during the period of his suspension pending inquiry. This petition has been filed for a writ or certiorari to quash the President's order of suspension of the petitioner dated 9-9-1958, a writ of mandamus requiring him and the Municipal Board not to treat him as under suspension and for an interim order keeping the President's order of 9-9-1958 in suspension during the pendency of the writ petition. The ground given for the quashing of the order of suspension is that the President had no jurisdiction to suspend him without or before framing charges against him and reliance is placed on Section 69-A of the Municipalities Act, which provides that if the President has reasons to believe that an overseer is corrupt or has persistently failed in the discharge of his duties or is otherwise guilty of misconduct, "he may frame charges against him and where he is satisfied that it is so necessary, he may, for reasons to be recorded suspend him pending the completion of the enquiry." It is clear that this provision under which the President has admittedly acted, contemplates the framing of charges against an overseer before suspending him. The power of suspending him can be exercised after charges have been framed against him and is so dependent upon the framing of charges that there is no power to suspend prior to the framing of charges. The order of the President was, therefore, illegal,

(2.) On the writ petition being admitted this Court on 6-11-1958 passed the order: "Issue Notice. Meanwhile the operation of the order dated 9-9-1958 shall remain stayed." The petitioner obtained a copy of this order on 6-11-1958 and handed it over to the President on 7-11-1958. The President at once re-instated the petitioner by the following order : "In view of the order of the Hon'ble High Court ----operation of my order dated 9-9-1958 suspending Shri H. C. Jain....be stayed and he be allowed to resume." A copy of the order was sent at once to the petitioner for information and compliance. Subsequently, again on 7-11-1958 the President passed another order specifying the duties to be performed by the petitioner on taking over charge. The petitioner on taking over charge performed his duties on November 7 and 8 and then the office was closed for holidays on November 9 to 12, 1958. Then the petitioner proceeded on medical leave for a month with effect from 13-11-1958. On 7-11-1958 the President framed charges against the petitioner and on 1-12-1958 he, passed another order suspending him during the pendency of the inquiry into the charges. In the second suspension order the President recited the fact that a copy of the charges framed on 7-11-1958 was served upon him, and that he had good reasons to believe that his continuance in office was bound to hinder the progress of a free and fair inquiry against him. The connected petition is for contempt proceedings against the President and the Executive Officer of the Municipal Board for contempt of this Court by the alleged defiance of its interim order dated 6-11-1958. The contention of the petitioner is that the President by passing the second suspension order without anything fresh having happened between 7-11-1958 (the date on which he was reinstated) and 1-12-1958 (the date on which the second suspension order was passed) disobeyed this Court's interim order of 6-11-1958 suspending the operation of the earlier order of suspension. It was argued that the entire purpose of the interim order of stay has been defeated by the second order of suspension and that since the writ petition was pending in this Court, the president could not suspend the petitioner without its permission.

(3.) In the writ petition the Executive Officer filed a counter-affidavit on behalf of the Municipal Board and the President. In paragraph 7 it was affirmed that the order of suspension of 9-9-1958 contained a narrative of the charges; what seems to have been contended is that narrating in the order of suspension the reasons for it amounted to framing charges against the petitioner. With reference to the prayer for interim relief, it was pleaded in paragraph 10 (c) of the counter-affidavit that it was not expedient in the ends of justice to stay the order of suspension dated 9-9-1958. In subsequent paragraphs it was stated that a formal charge sheet was prepared by the President on 7-11-1958 but could not be served upon the petitioner on 8-11-1958 because he avoided to appear before the Executive Officer and did not attend office an the afternoon on the ground of headache, that it was sent for service through clerks but he refused to accept it and that it had to be affixed at his door on 18-11-1958 and a copy of it had to be sent to him by registered post, which was received by him on 24-11-1958, and it was contended in paragraph 15 that after charges had formally been framed against the petitioner any relief to be given by this Court in the writ petition would be ineffective, because the President had after the framing of the charges jurisdiction to suspend him and that to avoid technical objections, the President had actually passed the second order of suspension on 1-12-1958.