BENARSI DAS Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is a first appeal by Benarsi Das, plaintiff, late Head Master of the Primary School, Kathdarwaza, Moradabad, against defendant 1, the Municipal Board, Moradabad, through its Chairman, and defendant 2, M. Mohammad Nasim Khan, Executive Officer. The suit was one for wrongful dismissal and was dismissed by the lower Court, the learned civil Judge of Moradabad. Two points were taken, firstly, whether the suit was barred by Section 326(3). U.P. Municipalities Act 1916. The suit was filed on 10 July 1934 and it was admitted by counsel that 22 January, 1934 was the date when the plaintiff was asked to make over charge at Moradabad. The suit was filed against the Board in the first instance and therefore as against the Board it was within the six months prescribed by the Section. But the Executive Officer was not added until an application dated 28th August 1935. The suit against the Executive Officer was therefore barred by the rule of six months under Section 326(3). The Issue 2 was: Does plaintiff's dismissal by the defendants entitle the plaintiff to institute a suit for damages against them?

(2.) On this ground the Court below held that such dismissal does not give a right of suit, following a ruling of this Court in Roshan Lal V/s. District Board, Aligarh . The plaintiff sets out in his plaint that he was appointed by the Chairman of the Municipal Board on 5 January 1923 as a teacher and at the time of his dismissal he was Head Master of the Primary School at Kathdarwaza under the Municipal Board. He sets out in para. 5 that his wife had filed a suit against the Municipal Board, Original Suit No. 416 of 1932, and that he had given evidence in another suit against the Board. He also sets out that his school was inspected. Pie states then that an order of dismissal was sent to Mm but it did not contain particulars of any charge or reasons for his dismissal. In para. 14 he pleads that the Executive Officer is not in law authorized to dismiss him. In para. 15 he states that the plaintiff was never called upon to show cause why he should not be dismissed for anything alleged against him and in para. 16 he alleges that the dismissal of the plaintiff is wrongful, against law and ultra vires and malicious. He therefore in para. 18 claimed that ha would have served for a long number of years and would have earned a good salary and he assessed his loss from dismissal at Rs. 7500 for which he sued as damages for wrongful dismissal. The U.P. Municipalities Act of 1916 as amended up to 1934 provides in Section 76 as follows: Except as otherwise provided, the Executive Officer may punish or dismiss (a) servants on a monthly salary not exceeding Rs. 15 or in a city Rs. 30; and (b) servants on a monthly salary exceeding Rs. 15 but not exceeding Rs. 30; or in a city exceeding Rs. 30 but not exceeding Rs. 75; but in such case each order of dismissal or order imposing a fine exceeding in amount one month's pay of the person fined, or order of suspension for a period exceeding one month, or order of reduction by way of punishment shall be appealable to the Chairman : Provided that in case there is no Executive Officer the powers conferred by this Section may be exercised by the Chairman.

(3.) This Section provides that the Executive Officer may dismiss any servant on a monthly salary not exceeding Rs. 30 in a city. It is admitted by counsel for the plaintiff that the salary of the plaintiff at the time of dismissal was Rupees 22. The plaintiff therefore came under Section 76, Sub-section (a) and could be dismissed by the Executive Officer without any right of appeal. If he had come under Sub- section (b), ha would have had a right of appeal to the Chairman. He did not in fact make any appeal. Learned Counsel argued that the provisions of Section 73 would apply and that the Education Committee would have power to dismiss the plaintiff. But that Section 73 only applies where there is a resolution of the Municipal Board to bring it into operation and it is not shown in the present suit that the Municipal Board of Moradabad has passed any such resolution. The power to dismiss therefore remains with the Executive Officer under Section 76. Section 76 does not lay down any limitation of the powers of the Executive Officer to dismiss and therefore he has full authority to dismiss. The case therefore differs from statutes which prescribe a particular method of the exercise of the power of dismissal. The cases which have come before this Court are some of them such cases, for example in Prabhu Lal V/s. District Board of Agra there was an order of dismissal of a secretary of a District Board by a majority of the members at the meeting but not by the two-thirds majority laid down as necessary by the District Boards Act of 1922. Section 71 which prescribes that the dismissal of the secretary may be (a) by a vote of not less than two-thirds of the total number of members of the board for the time being, or (b) by a vote of not less than one-half of the total number of such members and is sanctioned by the Local Government.