LAWS(P&H)-1958-3-13

KISHORI LAL BATRA Vs. PUNJAB STATE

Decided On March 18, 1958
KISHORI LAL BATRA Appellant
V/S
PUNJAB STATE Respondents

JUDGEMENT

(1.) THIS is a plaintiffs appeal from the judgment and decree of the Senior subordinate Judge, Rohtak, dismissing his suit with costs.

(2.) THE facts material for the decision of this appeal are that the Punjab government by its notification, Exhibit P. W. 2/5, dated 20-3-1948, extended the provisions of the Punjab Municipal (Executive Officer) Act, 1931, to the municipality of Rohtak, which was a Municipality of the second class as constituted under the Punjab Municipal Act, 1911. Under Section 3 of the Punjab Municipal (Executive Officer) Act, 1931, hereinafter referred to as the Act, it was therefore incumbent on the committee to appoint within three months from the date of the notification a person with the approval of the State Government as Executive officer for a renewable period of five years. The meeting for the purpose of appointing an Executive Officer had to be especially convened and the resolution of appointment had to be passed by not less than five-eighths of the total number of members constituting the Committee for the time being. The Municipal Committee, Rohtak, made a recommendation for the appointment of l. Sant Lal as Executive Officer of the Committee (vide Exhibit D. 11) but that recommendation was not accepted by Government as the resolution had not been passed with a requisite five-eighths majority, vide Punjab Government letter, exhibit D. 12, dated 10-9-1948, by which the Committee was given an extension of one month within which it may select its Executive Officer. At a special meeting of the Municipal Committee, Rohtak, held on 9-10-1948, it passed a resolution, exhibit D. 13 by the requisite five-eighths majority appointing the plaintiff as its executive Officer for a period of five years. Consequently by its letter, dated the 25th/27th of November, 1948, Exhibit D. 22, the Punjab Government under Subsection (4) of Section 3 of the Act appointed the plaintiff as Executive Officer for the Rohtak Municipality for a period of five years, and the plaintiff actually took charge of the post on 1-12-1948. On 5-9-1949, a resolution (copy Exhibit P. 3) was passed by this Municipal committee recommending to Government that the plaintiff be removed from the post of its Executive Officer and in consequence the Punjab Government by its notification, dated 8-11-1949, Exhibit P. 2, purporting to act under Sub-section (7)of Section 3 of the Act directed the plaintiff's removal from that post. The plaintiff thereupon filed the suit giving rise to this appeal impleading the Punjab State as well as the Municipal Committee, Rohtak, as the defendants. The case went to trial on numerous issues and the issues which were found against the plaintiff were as follows: "5. Is the order dismissing the plaintiff, vide notification No. 10074c49/ 70050, dated the 8th of November, 1949, void, illegal, unfair and ineffective for reasons given in the plaint and is the plaintiff still an executive Officer of the Municipal Committee?

(3.) THE appellant's learned counsel in the first place contended that the plaintiff was serving not under the Municipal Committee, Rohtak, but under the Punjab government and that consequently the Municipal Committee could not take any action for his removal. He based this argument on the facts that the Committee had been unable to appoint its Executive Officer within three months of the date of the notification extending the provisions of the Act to it and that the appointment was subsequently made by the State Government itself under subsection (4) of section 3 and, in these circumstances, the plaintiff must be regarded as being employed under the State Government. That inference, however, does not really follow. It is admitted on behalf of the plaintiff that he was being paid from the Municipality's funds and that his Provident fund also was after the termination of his appointment paid to him by the municipal Committee. The test in such cases is the nature of functions being performed by the plaintiff. As held by a Division Bench of this Court in the State of punjab v. Prem Parkash, 59 Pun LR 270 : (AIR 1957 Punj 219) (A), the answer to the question whether a particular person is a Municipal servant or a Government servant is determined by the functions which he performs. If he performs the functions relating to a Municipal Committee, he is a Municipal Officer; but if he performs the functions relating to Government, he is a Government servant. In that case the plaintiff had been appointed under Section 4 of the East Punjab local Authorities (Restriction of Functions) Act, 1947, by the State Government as a Superintendent of Water Works to discharge the duties of the Municipal committee in the Water Works Department, and it was held that he could not be said to be the holder of a civil post under the State within the meaning of Article 311 of the Constitution but was a Municipal Officer. There can be no manner of doubt that the plaintiff in the present case was performing functions relating to the municipal Committee and it would be futile to maintain that he was an officer serving under the State Government.