RADHESHYAM Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) THIS is plaintiffs second appeal under Section 100, Civil procedure Code against the judgment and decree, dated 12-11-1976, passed by Shri M. L. Sharma, Addl. District Judge, Mandsaur in Civil Appeal No. 96-A/76 reversing the judgment and decree, dated 16-7-1974, passed by Civil Judge, Class I, Mandsaur in civil Suit No. 43-A of J973, dismissing the appellant's suit for declaration.

(2.) THE appellant was employed as a Nakedar in the respondent Municipal council and was dismissed from employment by an order dated 5-3-1969 (Ex. P-3) on proved misconduct. The appellant preferred an appeal against the aforesaid order before the Collector, Mandsaur, challenging the legality and validity of the same. It may be mentioned that the order, dated 5-3-1969 was passed by the Administrator of the Municipal Council, as the Municipal Council had been superseded/dissolved at that time. It however appears that fresh elections were held and elected committee was installed in the office during the pendency of the appeal before the Collector. It also appears that the appellant approached the elected councillors for reconsideration of his case and was assured re-consideration, if he withdrew his pending appeal. The appellant, therefore, filed an application, dated 4-10-1969 (Ex. P-4)intimating the appellate authority that the Standing Committee of the respondent municipal Council has assured re-consideration of the matter on the condition that he withdraws the appeal. He felt satisfied about the bona fide of the offer and prayed for withdrawal of appeal. By order, dated 9-10-1969 the appeal was dismissed as withdrawn (Ex. P-5 ). It further appears that the matter was re-considered by the Standing committee in its meeting, dated 13-5-1970 wherein it was decided to revoke the order dated 5-3-1969 and re-instate the appellant in employment (Ex. P-2 ). In compliance with the aforesaid resolution, the appellant was appointed on 22-5-1970 (Ex. P-6 ). It appears that the file containing these details went to the Collector in its normal routine where these proceedings were noticed The Collector, by his letter, dated 18-1-1971 (Ex. P-11) wrote to the Municipal Council that their resolution re-considering the matter was illegal as the order, dated 5-3-1969 had become final. The Collector, therefore, directed the respondent Municipal Council to terminate the appellant's services immediately. Pursuance to this order of the Collector, the matter was re-considered by the Standing Committee on 22-2-1971 which decided to accept the order of the Collector (Ex. P-9 ). Pursuance to the resolution of the Standing committee, the order dated 3-3-1971 was issued by the Chief Municipal Officer terminating the appellant's employment (Ex. P-10 ). It is thereafter that the appellant served the statutory notice and filed the suit challenging the legality of his termination. The main grievance of the appellant was that order dated 3-3-1971 passed by the standing Committee or order dated 18-1-1971 passed by the Collector were illegal and void as he was not heard before passing the same. The defence of the respondent municipal Council was that the effect of order, dated 3-3-1971 was only to enforce order, dated 5-3-1969 (Ex. P-3) which had become final. It was also submitted that the standing Committee had no jurisdiction to reconsider the matter and recall the order, dated 5-3-1969. Learned trial Judge, on consideration of material placed by the parties on record held that the resolution of the Standing Committee, dated 13-5-1970 (Ex. P-2) recalling the termination of service of the appellant, dated 5-3-1969 (Ex. P-3) was legal and valid. It therefore, granted the declaration prayed for. In the appeal filed by the respondent Municipal Council, it was held that the Administrator appointed under section 328 of the M. P. Municipalities Act (hereinafter referred to as 'the Act') enjoys powers and status of the council itself and hence order, dated 5-3-1969 would be deemed to have been passed by the Council. According to the learned Judge, an order passed by the Council could not be reviewed or recalled by the Standing Committee. The learned Judge, also held that the order had become final and Could not be reviewed. The appeal was, therefore, allowed and suit filed by the appellant dismissed. That is how the matter is in this Court in the present second appeal.

(3.) THE submission of the learned counsel for the appellant is that the Collector had no authority or jurisdiction to require the respondent Municipal Council or its standing Committee to terminate the services of the appellant. According to him, since this order has evil consequences, the Collector was bound to give him an opportunity to present his case before taking such a decision. It is further submitted that the resolution of the Standing Committer being consequent upon this order, suffers from the same defect and is void for the same reasons. It is further submitted that the Collector was not,right in holding that the order, dated 5-3-1969 (Ex. P-3) had become final and could not be changed. The decision, according to the learned counsel, was administrative in nature and could be reviewed at any time in the interest of justice. It is also submitted that since review was done pursuance to the understanding reached during the pendency of the appeal, it must be held to be in discharge of the obligation of the Municipal Council It is also submitted that the decision of the learned lower appellate Court, that the order, dated 5-3-1969 being the order of the Council itself, could not be reviewed by the Standing Committee, is also incorrect. The learned counsel for the,respondents, however, submitted that the standing Committee had no power of review and therefore, it could not have re-considered the order, dated 5-3-1969. According to the learned counsel the letter dated 18-1-1971 (Ex. P-11) sent by the Collector is advisory in nature and therefore, it was not necessary for the Collector to give any opportunity to the appellant to present his case. Referring to Section 332 of the Act, it is submitted that the power of review contained in this provision is not available either to the Municipal Council or the standing Committee and therefore, resolution, dated 22-2-1971 (Ex. P-9) was void In view of these submissions it may be necessary to first notice the legal provisions available in the Act.