L SHANKER LAL DAHANIA Vs. LBALKISHAN

JUDGEMENT

(1.) Second Appeal No. 1142 of 1935 has been heard and disposed of with this appeal. Both are defendant's appeals and arise out of two suits brought by the plaintiff, respondents against him and the Municipal Board, respondent 2, for damages and arrears of pay. This appeal arises out of Suit No. 386 of 1933 which was brought by Sunder Lal who was Toll Superintendent. The other appeal arises out of Suit No. 383 of 1933 which was brought by Mohammad Mustaqim who was Assistant Toll Clerk, In April 1933 Sunder Lal completed his 60 years and Mohammad Mustaqim's age was above 61 years. On 25 March 1933 the Municipal Board of Secunderabad gave one year's extension from 1 April 1933 to 31 March 1934 to both under resolutions Nos. 33 and 34. The appellant who is the Chairman of the Board wrote to the Commissioner to whom the resolutions had been sent that these persons were unfit for service. On an enquiry being made by the Commissioner through the District Magistrate, the Commissioner wrote to the Municipal Board on 28 May 1933 to dispense with their services. On receiving the letter from the Commissioner, Shanker Lal, appellant, asked the plaintiffs to hand over charge without consulting the Board. They handed over charge on 14 June 1933. They were reinstated by the Board on 28 October 1933. They brought these suits for salary by way of damages from 1 June 1933 to 28 October 1933. A decree for salary from 1 June 1933 to 14 June 1933 was passed against the Municipal Board and for salary from 15 June 1933 to 28 October 1933 against the appellant. The appellant went up in appeal but his appeals in both the suits were dismissed by the learned Civil Judge. He has come here in second appeal. Sunder Lal has since died and his legal representative Balkishan has been brought on the record.

(2.) It has been urged on behalf of the appellant that he acted in exercise of his powers under Secs.74 and 76, Municipalities Act, and is not liable for any damages. Under these sections, a Chairman has the power to dismiss a servant on a monthly salary exceeding Rs. 30 or in a city Rs. 75 subject to an appeal to the Local Government. Section 76 deals with the powers of an executive officer to dismiss a servant on a monthly salary not exceeding Rs. 15 or in a city Rs. 30 and it provides that in case where there is no executive officer, the powers conferred by the section may be exercised by the Chairman. There was no executive officer in this Municipal Board and consequently the powers of the executive officer were exercised by the Chairman, Certain rules have been framed by the Municipal Board regulating the procedure of dismissal under which charges have to be framed and an explanation has to be called for from the official concerned before his dismissal is ordered. In this ease it; is admitted that no such procedure was followed in spite of the rules framed by the Municipal Board.

(3.) The Municipal servants stand on the same footing as other public and Government servants. They are under the same disability as other public servants. Unless in special oases, where it is otherwise pro. vided, servants of the Crown hold their offices during the pleasure of the Crown, not by virtue of any special prerogative of the Crown but because such are the terms of their engagement as is well understood throughout the public service. The conditions of service are regulated by the rules which are framed to regulate the procedure of appointment and dismissal. The tenure of office though at pleasure, is not to be subject to capricious or arbitrary action but is to be regulated by such rules. Provisions for appeal are also made in the rules to get redress in cases where dis. missals are made in contravention of the prescribed rules of procedure. The remedy of the person aggrieved in case of non-compliance of the rules does not lie by a suit in Court but is by way of appeal of official kind prescribed in the rules. Reliance has been placed on R.T. Rangachari V/s. Secy. of State . There the dismissal was against the statutory provisions of Section 96-B, Government of India Act (1919) which laid down: That no person in that service (the Civil Service of the Crown) may be dismissed by any authority subordinate to that by which he was appointed.