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PETITIONER: MUNICIPAL BOARD, KANNAUJ

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH, & ORS.

DATE OF JUDGMENT12/08/1971

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. SIKRI, S.M. (CJ) RAY, A.N.

CITATION:  1971 AIR 2147            1972 SCR  (1) 193  1972 SCC  (3) 345

ACT: U. P. Municipalities Act, 1916-Section 34(1-B), scope of.

HEADNOTE: The Executive Officer of the Municipal Board, Kannauj (U.P.) dismissed  74  striking employees.  Some  of  the  employees appealed  against  the order of dismissal and most  of  them were,  reinstated.   The  others  did  not  appeal  and  the dismissal order stood in their cases. After a year, the State Govt. purporting to act under s.  34 (1-B)  of,  the  U.P. Municipalities Act,  passed  an  order prohibiting the execution or further execution of the  order of  dismissal passed by the Executive Officer on the  ground that  r.  5 of the U. P. Municipal Board  Servants  (Enquiry punishment  and  termination  of  service)  Rules  were  not followed  and the dismissed employees were not heard and  so the alleged order was illegal and improper.  Section 34(1-B) of the U.P. Municipalitie Act, inter alia, provides that the State Govt. may by order ’prohibit the execution or  further execution of a resolution or order’, passed by a Board,  ’if in  its opinion such resolution or order is  prejudicial  to the public interest’ or has been passed ’in abuse of  powers or in fragrant breach of provision of any law in force’, and ’may  prohibit  continuance  by any person  or  any  act  in pursuance of such resolution or order.’ The  Municipal  Board  challenged the  order  of  the  State Government in a writ petition; but the High Court  dismissed the petition. In  appeal  to  this  Court the  Board  contended  that  the provisions  of s. 34 (1-B) were incapable of application  to an order of dismissal.  Allowing the appeal, HELD:The State Government has no power to cancel or set aside  an  order  which exhausts itself after  it  has  been passed  or  made.  Where the resolution or  order  does  not require  any acts to be performed or steps to be  taken  for the  execution  or further execution of  the  resolution  or order of the Board or its officer there remained nothing  of which  execution could be prohibited.  The sub-section  only empowers  the  State Government to prevent  something  being done in futuro. [200A-E] Shujaat Ullah Khan v. State of U.P. & Ors, 1966 A.L.J.  499,

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referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 42 of 1968. Appeal  by special leave from the judgment and  order  dated July 21, 1967 of the Allahabad High Court in Special  Appeal No. 457 of 1967. 19 4 J.   P. Goyal and G. N. Wantoo, for the appellant. O.   P. Rana, for respondents Nos.  1 and 2. H.   K.  Pari and S. K. Dhingra, for respondents Nos. 3,  9, 13,  15, 16, 25, 31 to 35, 38, 39, 42 to 50, 53 to  56,  58, 59, 60 to 62, 65 to 67, 69 to 71, 73 and 76. The Judgment of the Court was delivered by Palekar,  J.  This  appeal  by  special  leave  against  the decision of the appellate Bench of the Allahabad High  Court involves  the  question of the legality and validity  of  an order  dated 12th May, 1965 passed by the  State  Government purporting to act under section 34(1-B) of the Uttar Pradesh Municipalities  Act, 1916 (hereinafter referred to  as  "the Act").  The impugned order is as follows               "U.P. Government               Department of Municipal Board,               Serial No. 1725 GI IIP 1964/64         12-5-65                                NOTIFICATION               The then Executive Officer of Municipal Board,               Kannauj  dismissed  74 sweepers  of  Municipal               Board  Kannauj  from  9th  April,  1964  under               section 76 of U.P. Municipalities Act, 1916.               The  dismissal  of  the  above  sweepers   was               illegal  and  improper because  the  procedure               prescribed  in  Rule 5 of  the  Uttar  Pradesh               Municipal  Karamchari (Janch, Dand tatha  Seva               Samapti)  Niyamawali  [U.P.  Municipal  Boards               Servants (Enquiry, Punishment and  Termination               of  Service Rules)]was not followed  and  they               were not given any opportunity of being  heard               and  the  opinion of the State  Government  is               that the above order of 9th April, 1964 by the               present  Executive  Officer  Municipal   Board               Kannauj is adverse to public interest and  the               order  has been made by seriously defying  the               rules  of Uttar Pradesh  Municipal  Karamchari               Janch Dand tatha Seva Samapti Niyamawali [U.P.               Municipal Boards Servants (Enquiry, Punishment               and Termination of Service Rules)].               1 9 5               So, the Governor of Uttar Pradesh in  exercise               of his power under section 34 sub-section  1-B               of the U.P. Municipalities Act, 191 6 (U.P.Act               No.  11, 1916) prohibits the execution of  the               above order of 9th April 1964 and any act done               by any person   in pursuance of that order and               the continuance of that order.                                    By order                               PRAN NATH KAPOOR                                   Secretary." This order was challenged in a writ petition before the High Court  by the Municipal Board, Kannauj as being illegal  and invalid on several grounds. The  substance  of the allegations in the  petition  by  the Municipal Board was that, on account    of certain  disputes between  the Board and the sweeper-employees of  the  Board,

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there was a sudden strike by the latter on 7th April,  1964. As many as 74 sweepers struck work without notice. By reason of the strike, insanitary conditions developed in the  town endangering public health. The Board bad, therefore, to  act quickly as in an emergency to recruit   sweepers  to do  the job;  but  it  was  difficult  to  recruit  new  men  unless continuous employment was given to them and,  hence, on  8th April, 1964, the Board arranged to have it announced by beat of drum in the town that, unless   the  striking   employees resumed duties by the evening of 9th April, 1964, they  were liable to be dismissed. The strikers did not join duties  by the evening of 9th April, 1964 and, therefore, the Executive Officer of the Board dismissed the 74 strikers who were made parties to the petition. It was admitted that the  procedure laid down      by  Rule 5(1) of the Uttar Pradesh  Municipal Boards  Servants  (Inquiry, Punishment  and  Termination  of Service) Rules (hereinafter referred to as "the Rules")  was not  adopted  before taking disciplinary action  by  way  of dismissal;  but the Board justified its action by  reference to   the  proviso  to  Rule  5(1)  which  stated  that   the provisions     of  sub-rule 5(1) shall not apply  where  the person concerned    had absconded and where, for reasons  to be recorded in writing, it was impracticable to  communicate with him. 19 6 After  the dismissal of the 74 employees on 9th April,  1964 some  of  the employees appealed against the order  of  dis- missal and most of them were reinstated.  The others did not appeal and, therefore, the order of dismissal stood in their case.   New recruits were appointed in their place.   Later, i.e.,  more  than a year after the order of  dismissal,  the State Government, purporting to act under section 34(1-B) of the Act, passed the above order prohibiting the execution or further  execution of the order of dismissal passed  by  the Executive  Officer.   It was contended that  no  such  order under  S.  34(1-B) of the Act could be validly made  by  the State Government. The  State  Government, which was respondent No.  1  to  the petition,  supported its order and contended that the  order had  been passed in the public interest as, in its  opinion, the order of the Executive Officer was illegal and arbitrary and had the effect of throwing a large body of employees out of  employment  making them suffer privation and  misery  on account  of the continuing operation of the order which  was illegally  passed.  The employee-respondents, on  the  other hand  ,  denied  the more  substantial  allegations  in  the petition.   They  alleged  that, as a matter  of  fact,  the employees had not gone on strike and, therefore there was no question of their abstaining from doing their duties  either on  the  7th, 8th or the 9th of April, 1964.  There  was  no question also of any insanitary conditions developing in the town  and  there was no good reason at all  for  passing  an order  of  dismissal of all the employees in a  body.   They further alleged that the order had been passed out of  sheer spite in order to teach them a lesson. The High Court did not, obviously, undertake an inquiry into the  disputed  facts.  What was, however, relevant  for  its decision was whether, in case the State Government  honestly formed  the opinion that the order of the Executive  Officer was  prejudicial to the public interest or was  in  flagrant breach of a provision of any law-in this case, rule 5(1)  of the-  Rules, the order prohibiting the execution or  further execution  of the order would be valid.  The learned  single Judge,  who considered the petition in the  first  instance, and  the Appellate Bench held that it was open to the  State

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Government, on its own inquiry, to form 197 the  opinion that the order passed by the Executive  Officer dismissing  a  large body of employees  was  against  public interest  and in violation of the law in force  and,  conse- quently,  the order passed by the State Government under  s. 34 (1 -B) of the Act was a valid order.  On that view of the matter, the Board’s petition was dismissed by the High Court and, hence, the present appeal. The  only point of substance urged by the Board before  this Court was that the provisions of section 34(1-B) of the  Act were incapable of application to an order of dismissal.  The contention  was that, when an order of dismissal is  passed, the order operates by its own force and no further steps are necessary to implement such an order.  It was submitted that the  sub-section  applied  only to  those  cases  where  the resolution  of the Board or order required some steps to  be taken to effectuate the resolution or the order and not when the resolution or order was effective by its own force.   In other words, where on the passing of the resolution or order it  exhausted  itself,  the State  Government  could  hardly "prohibit  the  execution  or  further  execution"  of  that resolution  or  order;  and,  therefore,  where  the   State Government  interfered  by  prohibiting  the  execution   or further  execution  of the resolution or  order,  it  really intended  to  cancel or set aside the  resolution  or  order which,  in the submission of the petitioner, was beyond  the powers of the State Government.  It appears to us that there is considerable force in this submission. Section  34 is in that part of Chapter 11 of the  Act  which deals  with  the subject "Control of Board".   The  marginal note to the section is "Power of the State Government or the Prescribed Authority or the District Magistrate to  prohibit execution of or further execution of resolution or order  of the  Board".   Sub-sections  (1) and  (1-A)  deal  with  the powers,  of  the  Prescribed  Authority  and  the   District Magistrate  in this respect.  Sub-section (1-B)  deals  with the powers of the State Government and is as follows :-               " (1-B).  The State Government may, of its own               motion  or on report or complaint received  by               order   prohibit  the  execution  or   further               execution  of a resolution or order passed  or               made  under this or any other enactment  by  a               board or a committee of a               198               board  or a joint committee or any officer  or               servant of a board or of a joint committee, if               in  its  opinion such resolution or  order  is               prejudicial  to  the public interest,  or  has               been  passed or made in abuse of powers or  in               flagrant  breach of any provision of  any  law               for the time being in force, and may  prohibit               the doing or continuance by any person of  any               act  in  pursuance of or under cover  of  such               resolution or order." It  should  be noted that the words  underlined  above  were inserted  by  an  amendment which came into  force  on  30th November,  1964,  that  is to say much after  the  order  of dismissal  by the Executive Officer had been passed,  though before  the  order of the State Government dated  12th  May, 1965.     Before  the amendment, the State Government  could pass the order of prohibition of execution only when,  in its opinion, the resolution or order was prejudicial to  the public  interest;  but, after the amendment, such  an  order could  also  be  made by the State  Government  if,  in  its

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opinion,  the  resolution  or order was made  in-  abuse  of powers or in flagrant breach of any provision of any law for the time being in force.  It was contended on behalf of  the Board that it was not competent for the State Government  in this case to make the order on the ground that the order  of dismissal  was in flagrant breach of a provision of the  law for  the  time being in force.  But that point  is  only  of academic  interest, because the order itself shows  that  it had  been passed  also on the ground  that  the  order  of dismissal  was  prejudicial  to the public  interest.   We assume,  therefore, that the State Government was  satisfied that the order of dismissal passed by the Executive  Officer was  prejudicial  to  the public  interest.   The  question, however,  is whether, after the order of dismissal had  been passed on the 9th April, 1964, the State Government had  the power  virtually to set aside or cancel the order under  the cover  of purporting "to prohibit the execution  or  further execution  of that order." In our opinion, that  sub-section does not clothe the State Government with such a power.  The resolution  of the Board or the order of a  duly  authorised officer  of the Board is not liable to be cancelled  or  set aside  under this section.  All that could be done under  it is  to  prohibit the execution or further execution  of  the resolution or order, or the doing or cont- 199 inuance  by any person of any act in pursuance of  or  under cover of such resolution or order.  Where the resolution  or order does not require any acts to be performed or steps  to be  taken  for the. execution or further  execution  of  the resolution  or order of the Board or of its Officer,  as  in the  present case, there is really nothing to prohibit.   It was  contended on behalf of the State that, when  the  State Government  was  empowered  to  order  prohibition  of   the execution  of the resolution or order, it was virtually  em- powered to set aside or cancel the order and, in support  of this  view, a reference was made to sub-section (4) of  that section  which  provides that it shall be the  duty  of  the Board,  if  so required by the authority  making  the  order under  sub-section (1-B) to take any action which  it  would have  been entitled to take, if the resolution or order  had never  been  made  or passed, and  which  is  necessary  for preventing  any  person  from  doing  or  continuing  to  do anything  in pursuance of the resolution or order.   If  the object  of the provision was to clothe the State  Government with the power to cancel or set aside the resolution of  the Board  or  order,  it  would have  simply  said  so  without resorting  to the circumlocution "prohibit the execution  or further  execution of the resolution or order".  We do  not, therefore,  think  that sub-s. (1-B) read with  sub  S.  (4) applies  to  any resolution or order which  exhausts  itself after  it  is passed or made.  That is the view taken  by  a learned  Judge of the Allahabad High Court in Shujaat  Ullah Khan  v.  State  of  U.P.  &  Others.(1)  In  that  case,  a resolution was passed by the Board exonerating Shujaat Ullah Khan,  who  was  the Executive Officer of  the  Board,  from certain charges that had been framed against him.  The State Government, thereupon, purporting to act under section 34(1- B) of the Act, quashed the Board’s resolution on the  ground that it was illegal, not having been passed by 2/3rds of the members constituting the Board and was otherwise prejudicial to the public interest.  This, order of the State Government was challenged by Shujaat Ullah Khan on several grounds, one of  them  being  that no order under  s.  34(1-B)  could  be passed,  because the resolution of the Board had been  fully implemented and nothing remained to be executed in respect

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(1) 1966 A.L.J. 499. 4-M1245Sup CI/71 200 there of.    This contention was accepted by the learned Judge who observed as follows               "It  is clear that the only order that can  be               passed by the State Government under this sub-               section  is  a prohibitory  order  to  prevent               something being done in the future.  It is not               open to the Government, acting under this sub-               section,  to give any positive direction  such               as  has been given in the present case,  where               the  Government  has  ordered  the  Board   to               reconsider  its report and to make  a  further               enquiry  and  take  a  fresh  decision.    The               resolution  passed by the  Board,  exonerating               the Executive Officer and dropping the charges               against  him, exhausted itself as soon  as  it               was passed, for the charges were  straightaway               dropped   and  the  Executive  Officer   stood               exonerated.  There remained nothing to be done               in  the future and there was nothing left  for               execution  or further execution that could  be               prohibited by the State Government under  sec.               34(1-B)." In  our  opinion,  that reasoning  equally  applies  to  the present case.  The order of dismissal was self-operative and nothing  remained for execution or further execution  which could  be  prohibited  by the State  Government  under  that section.   On  that ground alone, the order  passed  by  the State Government will have to be set aside. It was next contended on behalf of the employee respondents’ that  there  was  really no effective  order  of  dismissal, because  that  order  had  not  been  communicated  to   the employees.   We  asked  the  learned  counsel  whether  this contention  was taken earlier either in the  reply-filed  by them  to  the petition or in the arguments before  the  High Court.  He was not able to show that this had been done.  On the  other hand, reference was made by the  learned  counsel for  the  petitioner  to an order passed  by  the  Executive Officer  on 9th April, 1964, for communication of the  order of  dismissal to the sweepers and also to the  letter  dated 8th  May 1965 written by the President of the Board  to  the District  Magistrate  which is appended to the  petition  as Annexure ’C’.  This letter says that the orders of dismissal had been communicated to the sweepers 2 01 on  10th April, 1964.  Moreover, we have on record a  letter written  by and on behalf of the sweepers to the  Secretary, Local  Self Government Department, U.P., which clearly  goes to show that the sweepers had come to know that hey had been dismissed  from  service.  This letter was received  in  the office  of  the Secretariat on 21st April, 1964  which  only shows  that  the sweepers must have  been  communicated  the order  of  dismissal much earlier.  We also know  that  many sweepers  had  filed  appeals.   In  any  case,  since   the contention  is  put forward for the first time now  in  this Court  and  involves consideration of facts,  it  cannot  be permitted to be raised. In  the  result the appeal is allowed and the order  of  the State  Government  dated 12th May, 1965 is  quashed.   There shall be no order as to costs. S.C.                                                  Appeal allowed. 202

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