NRIPENDRA N MAJUMDAR Vs. N M BARDHAN

JUDGEMENT

(1.) The facts in this case are shortly as follows: The petitioner was appointed as a Sub-Inspector of the Municipal Market, College Street Branch under the Corporation of Calcutta, in the year 1938 In March 1945, the petitioner was promoted to the post of Conservancy Supervisor. In 1948, the Corporation was temporarily superseded and an Administrative Officer was appointed. On the 23th April 1952. an order was passed by the Administrative Officer dismissing the petitioner from service. The 1951 Act came into force on the 1st May 1912, and the supersession came to an end. The order of dismissal was served on the petitioner On the 3rd of May 1952. It appears that the Corporation became dissatisfied with various orders of appointment and discharge made by the Administrative Officer, and a Sub-Committee of 13 members was appointed under Section 98(1) of the Act, to examine and scrutinise such cases. The case of the petitioner amongst others was considered by the Special Committee. On the 13th of June 1952, the Sub-Committee recommended that the order of dismissal of the petitioner should be set aside. Sometime in June 1952, a resolution was passed by the Corporation accepting the recommendation of the Special Committee and reinstating the petitioner. It appears that thereafter doubts were felt as to whether the order of reinstatement was valid and sometime in June 1954, the Commissioner to the Corporation passed an order of suspension upon the petitioner, pending a decision on that point. On the 10th September 1954, an order was published by the State Government through the Local Self Government Department, a copy whereof is set out in paragraph 14 of the petition. By this order that part of the resolution of the Corporation which reinstated the petitioner was annulled, in exercise of the power conferred by Section 47 of the Calcutta Municipal Act, 1951. It is against this order that this Rule is directed. The snort point that arises here is as follows: According to Government, the resolution of the Corporation reinstating the petitioner is invalid because the petitioner having been dismissed by the Administrative Officer, could not, in the opinion of the Government, be reinstated by the Corporation. What the Corporation could do was to make an order of fresh appointment. Treating the order of reinstatement as a fresh appointment, the Govt. considered that the provisions of Section 81(2) of the Calcutta Municipal Act, 1951 had not been observed. Under that provision, appointment to posts carrying a maximum salary not below Rs. 250A but below Rs. 1500/- should be made on the recommendation of the Municipal Service Commission. There is no doubt that in this case the Municipal Service Commission was not consulted. The point therefore that has to be decided is very short. If the petitioner was validly dismissed on the 26th April 1952, then indeed the Corporation would have no jurisdiction to reinstate him. What it could do was to reappoint him. Equally, there is no doubt that reappointment would require observance of the procedure laid down in Section 81(2) of the Act, namely consultation with the Municipal Service Commission. In order to meet this point, Mr. Roy on behalf of the petitioner has advanced the following argument: He says that it is true that on the 26th April 1952. an order was made by the Administrative Officer. It was however not communicated to the petitioner until the 3rd of May 1952. He says that an order could only be said to have been completed when it was communicated, and consequently the dismissal must be taken to have taken place on the 3rd of May 1952. So far as the facts are concerned, the parties are agreed that the order was made on the 26th April 1952, a letter was issued on the 30th of April 1952, but no attempt to serve it was made before the 3rd of May 1952. It appears that the petitioner was on leave for a few days and it was only upon his return on the 3rd of May 1952 that this order of dismissal was served upon him. If of course the order of dismissal is effective only on the 3rd of May 1952, then further complications arise. Under Section 77 of the said Act, any person, who immediately before the commencement of the Act, was holding any post as a municipal officer or a servant under the Corporation shall be deemed to be appointed to the corresponding post under the Corpotation as constituted under that Act. Therefore, assuming that the Act came into operation on the 1st of May 1932, the petitioner, if he had not been dismissed before that date, became an employee of the Corporation of Calcutta. Under those circumstances, it is extremely doubtful whether the order of dismissal by the Administrative Officer could be effective on the 3rd. of May 1952. Even assuming that it was effective, if the dismissal is by the Corporation as it must be if it took place on the 3rd of May 1952, then the order of reinstatement would be in order, whereas if it is a dismissal on the 26th April 1952 by the Administrative Officer, then the order of reinstatement must be held to be bad. Upon this short point, namely as to the effective date of the order Mr. Roy has quoted several authorities. He has placed before me the judgment of Bose, J. in Calcutta Cloth Agency v. S. Banerjee, an unreported judgment dated the 3rd of April 1947. In that case the question arose as to whether an application before the Board of Revenue by way of revision was barred by limitation or not. What happened was that an application had been made before the Board of Revenue but this application was dealt with without any notice to the appellant and the question was as to from what date an application under Section 21 of the Sales Tax Act for reference of such question to this Court should he calculated. Bose, J., held that the date from which it should be calculated must be the date not when it was made ex parte but when the order was communicated. I will now proceed to deal with some earlier decisions. The first case is a decision of the Bombay High Court. Abdul Ali v. Mirja Khan. ILR 28 Bom 8. In that case, it was held that the expression 'making of the order', in Section 77 of the Indian Registration Act meant not merely recording of the order of refusal in writing, but communicating it to the party concerned, and hence a suit brought under the provisions of Section 77 of the Indian Registration Act might be filed within 30 days of the date on which the order of refusal was communicated to the party concerned. Chandavarkar J. said as follows :

(2.) The next case is a decision of the Madras High Court, Secretary of State v. C. Narayanaswami, ILR 34 Mad 151. That was a case under the provisions of the Madras Survey and Boundaries Act. The learned Judge said as follows:--

(3.) The next decision to be considered is K. V. E. Swaminathan v. Lakshmanan Chettiar, ILR 53 Mad 491: (AIR 1930 Mad 490). That case also dealt with Section 77 of the Indian Registration Act. It was held that where an order is passed in the presence of the parties immediately after enquiry by the Registrar, the time should be calculated from the day of the order. But if the order was not so pronounced and the person concerned did not know that his request for registration has been refused, then time should be calculated only from the day when the order was communicated. Ray J. said as follows:--