RAM SEWAK MISRA Vs. PRESIDENT DIST BOARD ALLAHABAD

JUDGEMENT

(1.) I agree with' the judgment of Raghubar Dayal, J., but as I was a party to the decision in Badri Prasad Rastogi v. President, District Board, Mirzapur, 1952 All LJ 56 : (AIR 1952 All 681), I think it proper to state shortly the reasons which have led me, on further consideration, to the conclusion that that case was not correctly decided.

(2.) Section 90, Sub-section (3) of the U. P. District Boards Act provides that the power of dismissal shall be deemed to include a power to suspend the person against whom the power of dismissal might be exercised. Schedule I to the Act, read with Section 67(1), specifies the powers which (subject to those against which an entry is shown in the third column) shall be exercised by the Board, and not otherwise; and the Schedule includes among .such powers, the power conferred on the Board under Section 71 to dismiss its Secretary, The crucial word (and this I think was overlooked in Badri Prasad Rastogi's case, 1952 All LJ 56 : (AIR 1952 All 681)) is 'power'. The Schedule specifies "the power to dismiss", and that power, by virtue of Section 90(3), must in my opinion, be deemed to include the power to suspend.

(3.) An examination of the judgment in Badri Prasad Rastogi's case, 1952 All LJ 56 : (AIR 1952 All 681) shows, I think, that the Court proceeded on the basis that the power to dismiss and the power to suspend were separate and independent powers. The Court was, it would appear -- and that such was the case is frankly admitted by learned counsel for the appellant who was also the counsel appearing for the appellant in Badri Prasad Rastogi's case, 1952 All LJ 56 : (AIR 1952 All 681) --invited to hold that the power to dismiss and the power to suspend constituted one power; and it is that argument which was rejected by the Court, The Court was right in doing so, but if I may say so with respect to Sapru, J. the Court was in error in failing to appreciate that, although separate, the power to suspend was by virtue of Section 90(3), always included in the power to dismiss. Dayal, J.