BHASKAR WABLE Vs. NASIK CITY MUNICIPALITY

JUDGEMENT

(1.) The appellant in this case Dr. Wable, was Medical Officer of Health of the Nasik City Municipality and was appointed on probation on 31-8-1935. The order of appointment (which is Ex. 42 in this case) stated that "he was appointed on probation to the post of the Medical Officer of health of the Nasik Municipality on a consolidated salary of Rs. 300 on the scale of 300-20-500, efficiency bar-25-650." Paragraph 3 of the order of appointment made it clear that his appointment would be subject to the decision of the General Body as regards the questions of his probationary period and the cut to be made applicable to the salary of the post in question. It appears that in point of fact the probationary period was not fixed until on 5-5-1938, the Municipality passed a resolution (EX. 48 in this case) stating that the probationary period of Dr. Wable was fixed up to 31-5-1938, and that on that day he should be relieved of the charge of his office. Thereupon, after writing certain letters to the Municipality and Government, the appellant instituted this suit against the Nasik City Municipality for a declaration that he was still in the service of the Municipality, and for an injunction restraining the Municipality from interfering with the discharge of his duties as Medical Officer of Health; in the alternative he also made a claim for damages. The suit was based on the ground that the resolution dispensing with his services was illegal inasmuch as it was passed by the Municipality with a simple majority instead of with a two-third majority as required by Section 34(5)(b), Bombay Municipal Boroughs Act, 1925. The suit was resisted by the Municipality on the ground that the appellant-plaintiff was appointed temporarily on probation and was therefore not entitled to the privilege under Section 34(5)(b) of the Act, which requires that no health officer appointed, whether temporarily or permanently, shall be removed from the service unless by the assent of at least two-thirds of the whole number of councillors. It was therefore urged that the defendant was within its rights in removing the appellant by the vote of simple majority, which in this case was 18: 9. It was further contended that the appellant could not claim the declaration or the injunction prayed for, and that he was not in any case entitled to damages as claimed and any costs of notice charges. Both the lower Courts have held that the resolution which was passed by the Municipality on 5-5-1938, was ultra vires and illegal, inasmuch as the services of the appellant could not have been terminated without the vote of at least two-thirds of the total number of the councillors, which in this case was thirty-eight. They further held that, although the resolution of the Municipality removing the appellant was ultra vires and illegal, the plaintiff could not ask for a declaration that he was still in the service of the Municipality and claim damages on that footing. For this, both the lower Courts relied on the decision in .1 Then on the authority of the decision of this Court in 39 Bom. L.R. 1269,2 the lower Courts came to the conclusion that the damages to which the plaintiff was entitled was only the pay for one month which was the period of notice prescribed in Rule 182 of the Nasik Municipal Rules. The trial Court there, fore passed a decree in favour of the plaintiff awarding Rs. 340 as damages and proportionate costs. This decree was confirmed in appeal by the Assistant Judge of Nasik. Being dissatisfied with the decision of the two lower Courts the plaintiff has now come in second appeal.

(2.) Both the lower Courts having held that Dr. Wable's removal from office by the Municipality was ultra vires and illegal, the only point that was urged by Mr. Jape on behalf of the appellant was the manner in which the relief should have been granted and the quantum of damages to which the plaintiff was entitled. It was contended that, in view of the fact that the removal of the appellant has been held to be illegal and ultra vires, the plaintiff should still be regarded as in the service of the Municipality and that a declaration should be granted to that effect. The learned Counsel was not able to cite any authority for such a relief being granted. The case in 1941 F.C.E. 373 is no authority for such a proposition. His other contention was that the decision of this Court in the case in 39 Bom. L, Rule 12692 requires re-consideration inasmuch as the quantum of damages which has been held to be payable in such cases is totally inadequate. His argument was that, if the resolution passed by the Municipality was illegal and ultra vires, it must be deemed to have been of no effect and therefore the quantum of damages must be decided, not with reference to Rule 182 but by reference to the salary which the plaintiff would have earned if he had continued in service. The facts in the Dhulia Municipality's case2 are practically on all fours with the facts of the present case. There also Section 182, Bombay District Municipal Act, 1901, required the consent of the two-thirds of the total number of the councillors before a Chief Officer could be dismissed from service, and there also there was a Rule 188, Dhulia Municipal Rules, under which, subject to Section 182 of the Act, every municipal servant was liable to be discharged at one month's notice. The corresponding sections and the rule under the Bombay Municipal Boroughs Act are Section 34 (5) and Rule 182, Nasik Municipal Rules. Reading the section and the rule together this Court held (p. 1278): The effect of Rule 188 and Section 132 read together seems to me to be that a Chief Officer is entitled like any other municipal officer or servant to one month's notice before discharge. But his position differs from that of other municipal officers and servants in this that he cannot be discharged except in the manner provided by Section 182 or Section 33 of the present Act. Later on in the same judgment Broomfield J., observed (p. 1278): As it is not to be regarded as a case of service during good behaviour, and as there was nothing to prevent the plaintiff being removed from office at any time by a valid resolution under Section 33, the only damages which he can claim are wages for the period of notice that is to say, Rs. 360.

(3.) The learned Counsel for the appellant urged that the principles of this decision require to be reconsidered and suggested that this appeal should be referred to a Full Bench, as the effect of that decision is that it was open to the Municipality to disregard the provisions of Section 34(5), Bombay Municipal Boroughs Act, provided it was prepared to pay damages to the extent of one month's wages. We do not wish to express any opinion about the correctness or otherwise of the decision in that case as we think that the present case must be decided against the appellant on the point as regards the ultra vires nature of the resolution which was passed by the Municipality. But there is no doubt that in view of that decision the salutary provisions of Section 34(5) requiring two-thirds majority for the dismissal of a health officer can be set at naught, and the only penalty that the municipality snakes itself liable to pay is damages to the extent of one month's wages of the officer concerned. Whether such a position should be allowed to continue is a matter not for us to decide but for the executive authorities concerned to consider. It is true that it is possible for Government to suspend a resolution of municipalities which in effect contravenes the provisions of Section 34(5). Whether such intervention by Government is desirable at every stage or not is also not a matter for us to express opinion upon, but the authorities will no doubt consider the position and make any necessary legislative changes which they may think necessary.