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PETITIONER: S.R. TEWARI

       Vs.

RESPONDENT: DISTRICT BOARD AGRA AND ANOTHER

DATE OF JUDGMENT: 15/04/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1680            1964 SCR  (3)  55  CITATOR INFO :  R          1968 SC 292  (4)  F          1970 SC1244  (22)  RF         1971 SC 836  (7)  R          1971 SC1011  (4)  RF         1971 SC1828  (10,11)  R          1972 SC1450  (8,13)  RF         1973 SC 855  (24,25,47)  R          1975 SC 641  (9)  E          1975 SC1331  (26,28,188,189)  R          1976 SC 888  (14,31)  R          1980 SC  16  (3)  RF         1987 SC1422  (10)  RF         1990 SC 415  (16)  RF         1991 SC1525  (10)  RF         1992 SC 786  (7)

ACT: District  Board--Engineer  under  the  Board-Termination  of service--Power    of    Board-Statutory   Body--Disciplinary action--Writ Petition--High Court’s power to interfere--U.P. District  Boards  Act,  1922  (U.P.  X  of  1922),  ss.  82, 84--District Board Rules, r. 3A(iv)--Constitution of  India, Art. 226.

HEADNOTE:     The appellant was an Engineer of the District Board. The Board  resolved to terminate the services of  the  appellant after  giving him salary for three months in lieu of  notice and  served a notice upon him.  The appellant  preferred  an appeal  to  the State Government against the action  of  the Board but it was dismissed.  He filed a writ petition before the High Court but it was also dismissed.     The   appellant   contended  that  the  Board  was   not invested  by  the District Boards Act, 1922, with any  power to  determine   the  employment of a servant  of  the  Board otherwise  than  by  way of  dismissal  as  punishment.  The respondents contended that, the appellant not being a  civil servant  of the State, no petition was  maintainable  before the  High  Court for a declaration that his  employment  not lawfully terminated.     Held  that the High Court has, in a writ petition  under

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Art.  226 of the Constitution, power to declare invalid  the act  of a statutory body, if by doing the act the  body  has acted  in  breach  of  a  mandatory  obligation  imposed  by statute,  even  if  by making the declaration  the  body  is compelled  to do something which it does not desire  to  do. The  High  Court  had  jurisdiction  to  declare  that   the employment  of  the appellant was not  lawfully  terminated, though it may be exercised only when the court is  satisfied that  departure is called for from the rule that a  contract of service will not ordinarily be specifically enforced.     Municipal Board, Shahjahanpur v.  Sardar Sukha Singh  1. L.R. (1937) All. 434, Ram Babu Rathaur v.  Divisional 56 Manager, Life Insurance Corporation of India, A.I.R. (1961) All. 502, Dr. S.B. Dutt v.  University of Delhi,  [1959]  S. C.  R.  1236 and Vina v.  National Dock  Labour   Board,L.R. [1957] A.C. 488, referred to.     Held further that s. 82 of the Act, which gave the Board power  to  appoint  the Engineer also gave it the  power  to terminate  the   appointment.  Power to  appoint  ordinarily carries  with it the  power to  terminate the   appointment. The  procedure   for  termination  of  service    was   laid down  by  r.  3A(iv)  of  the  District  Board  Rules.   The employment  was terminated by giving a notice in  accordance with  this rule and the authority competent to terminate  it was the authority competent to appoint the successor of  the servant concerned.  The dismissal of a servant of the  Board has  to  be in accordance with the rules made  under  s.  84 which  provided  for giving a reasonable opportunity  and  a show  cause  notice.  This procedure is  not  applicable  to termination of service.     Dismissal   means  determination   of  employment  as  a method of punishment for misconduct or other cause.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION : Civil Appeal No. 304  of 1962.     Appeal  from the judgment and decree dated  December  1, 1958,  of the Allahabad High Court in Civil Misc.  Writ  No. 270 of 1956. S. T. Desai and J.P. Goyal, for the appellant. G.B. Agarwala and G.P. Lag, for respondent No.1 K.S. Hajela and 0. P. Lag, for respondent      1963.   April  15.   The  Judgment  of  the  Court  was delivered by     SHAH  J.--On October 18, 1954, the District Board,  Agra resolved  to terminate after giving salary for three  months in lieu of notice, the employment of the appellant who  held the  office of Engineer under the Board, and  intimation  in that behalf was 57 given  to him. An appeal perferred by the appellant  to  the Government  of  U.  P. against the  order  terminating   his employment   was   dismissed   on  December  5,  1956.   The appellant  then submitted a  petition  to  the  High   Court of  Allahabad under Art. ?26 of the Constitution for a  writ in the nature of certiorari quashing  the  resolution passed by  the  Board  on October 18, 1954,  and  the  order  dated December  5, 1956, passed by the State of  U.P.   dismissing the appellant’s appeal, and a writ in the nature of mandamus commanding  the  Board and the State of U.P.  to  treat  the appellant as the lawfully appointed Engineer of the District Board  and not to give effect to the resolution  terminating

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the services of the appellant passed by the Board on October 18, 1954.     The  appellant  averred that he had as Engineer  of  the Board rendered "flawless service" but a member of the  Board named  Tota Ram felt ’annoyed with’ him ’for  reasons  which had nothing to do with the proper discharge of his duties as an  Engineer,, and the President of the District Board   was not "very happy with the" appellant for "reasons best  known to" the President, that "he had  spent the best part of  his life in the service of the District Board and even though he has been honest and faithfull in the discharge of his duties the  District  Board,  has  capriciously  and  without   any justification  terminated" his services, and  therefore  the resolution  of  the  Board  terminating  his  services   was invalid.     On  behalf of the Board an affidavit was  filed  stating that   the   appellant  was  guilty  of   "negligence,   and unfaithfulness , and he was censured, his annual  increments were stopped, and that he  was once dismissed and thereafter the  resolution of dismissal was rescinded.   The  affidavit catalogued  serveral incidents in support of this case,  and urged  that  the  Board  being  competent  had   justifiably terminated 58 the appellant’s services, and the validity of the resolution terminating  his services was not liable to  be  challenged. The  State  of  U.P.  submitted that  the  services  of  the appellant  were terminated  in accordance with rule 3  A(iv) of  the  District Board Manual, that no appeal  lay  against the. resolution terminating  the  services of the  appellant under  rule  3 A (iv) of the Rules regarding   Officers  and Servants of District Boards and that the order of the  State Government  rejecting the appeal  was correct.     The High Court dismissed the petition holding that under the  fourth  proviso to s. 82 of the  District  Boards  Act, 1922,  the Board had the power to appoint and  to  determine the  employment of an Engineer of the Board and  unless  the determination  was by way of punishment it could be made  in the manner provided by rule 3A cl. (iv) after giving  notice of three months or a sum equal to salary for three months in lieu  of notice.  The Court rejected the contention  of  the appellant that the power to dismiss conferred by the  fourth proviso  to  s.82, could only be exercised for  punishing  a delinquent  servant  of the Board and after  following   the procedure prescribed in that behalf, and that apart from the power to dismiss, there was no power vested under the Act to determine employment and consequently the provisions of rule 3 A cl. (iv) were ineffective.  Against the order passed  by the  High  Court this appeal is preferred  with  certificate granted by the High Court.     Counsel  for  the  Board contended in  limine  that  the appellant  not  being a member of the civil service  of  the State was not entitled to the protection of Art. 311 of  the Constitution,  and  the  relief  claimed  by  him  being  in substance  one for an order restoring him to the service  of the Board, from which he was dismissed, the jurisdiction  of the  High Court even under Art. 226 of the Constitution  was restricted by 59 s.  21  (b) of the Specific Relief Act and that  the  relief claimed by him cannot in ’any event be given, the remedy, if any.,  of the appellant being to claim damages by  suit  for wrongful termination of employment and not a petition for  a writ  declaring the termination  of   employment   unlawful, and  a consequential  order  for  restoration  in   service.

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Reliance  was placed in support of this plea upon  Municipal Board,  Shahjahanpur v. Sardar Sukha Singh  (1),  Ram   Babu Rathaur  v.  Divisional Manager.  Life Insurance Corporation of  India (2) and Dr. S.B. Dutt v. University of Delhi  (3). In  our judgment none of these cases can be used to  support the  view that the High Court has no power to  declare  ,the statutory obligations of a statutory body.  Under the common law  the  Court  will not ordinarily force  an  employer  to retain the services of an employee whom he no longer  wishes to  employ.  But  this  rule  is  subject  to  certain  well recognized  exceptions.   It  is open to the  Courts  in  an appropriate  case  to declare that a public servant  who  is dismissed  from  service  in  contravention  of  Art.    311 continues to remain in service, even though by so doing  the State is in effect forced to continue to employ the  servant whom  it does not  desire  to employ.  Similarly  under  the industrial  law, jurisdiction of the labour  and  industrial tribunals to compel the employer to employ a worker, whom he does  not desire to employ, is recognized.  The  Courts  are also invested with the power to declare invalid the act of a statutory  body, if by doing the act the body has  acted  in breach of a mandatory obligation imposed by statute, even if by  making  the  declaration the body  is  compelled  to  do something which it does not desire to do.     The  decision of the Allahabad High Court  in  Municipal Board,  Shahjahanpur v. Sukha Singh (1), enunciates the  law somewhat  broadly  when  it states that  the  Court  has  no jurisdiction to  force an (1) I.L.R.(1937) All. 334.      (2) A.I.R (1961)  All. 502 (3) [1959] S.C.R, 1236 60 employer  to  retain the services of a servant  whom  he  no longer wishes to employee and every employer is entitled  to discharge  a servant for whose service he has no  need.   It must  be  pointed that the powers of a  statutory  body  arc always subject to the statute which has  constituted it, and must  be  exercised consistently with the statute,  and  the Courts  have, in appropriate cases, the power to declare  an action  of  the  body illegal or ultra rites,  even  if  the action relates to determination of employment of a  servant. In Ram Babu Rathaur’s case (1)the Court had to consider  the question   whether  an  employee  of  the   Life   Insurance Corporation  whose employment was terminated could  claim  a writ  of  mandamus   restoring him to  the  service  of  the Corporation, or a writ of certiorari quashing the proceeding of the Corporation.  The  Corporation is an autonomous  body and  is  not  a department of the State,  and  the  relation between  the  Corporation and its employees is  governed  by contract,  and no statutory obligation is imposed  upon  the Corporation in that behalf. The Court was therefore right in holding  that the relationship between the employee and  the Corporation  had  to be determined, in the  absence  of  any statutory  provision or a special contract, by  the  general law of master and servant.  In Dr. S.B. Dutt’s case (2) this Court  held that an award made by an  arbitrator,  declaring that  the dismissal of an employee of the  Delhi  University was  "ultra  vires,  mala fide, and has  no  effect  on  his status.   He  still  continues  to be  a  professor  of  the University"  disclosed an error apparent on the fire of  the award,  because it sought to enforce a contract of  personal service.  That was again not a case in which the  invalidity of  an  act  done by the University on the  ground  that  it infringed  a statutory provision fell to be determined.  The rights  and obligations of the parties rested  in  contract, and  the award of the arbitrator that the dismissal  of  the

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employee was "ultra vires" was a mere flourish of  language, having no meaning (1)  A,I,R, (1961) All, 502       (2)  [1959] S.C.R, 1255. 61 in the context of the dispute between the parties. The award was  therefore  declared  to be one  contrary  to  the  rule contained  in s. 21 (b)of the Specific Relief Act and  hence void.     The  question whether the Court  would be justified   in granting   a   declaration   about  the  invalidity  of  the action  of a statutory body terminating the employment of  a servant  was  raised before the House of Lords  in  Vina  v. National  Dock  Labour  Board (1).  The   plaintiff  a  dock worker  in the reserved pool, under the scheme set up  under the  Dock-Workers  (Regulation of  Employment)   Order  1947 failed  to obey an order to report for work with a   company of   stevedores  and  the  local   board  instructed   their disciplinary   committee  to  hear  the  case  against   the plaintiff.   The committee terminated the employment of  the plaintiff  giving seven days’ notice,  and   this   decision was confirmed by the appellate board.    The plaintiff  then claimed in an action  instituted  by him a declaration  that his purported dismissal was illegal, ultra vires and invalid and  also damages for wrongful dismissal.  The  Trial  Court granted  the  declaration, and also damages.  The  Court  of Appeal  set  aside  the declaration.   The  House  of  Lords restored  the declaration, for in their view  the  purported dismissal was a nullity, since the local board had no  power to  delegate  its  disciplinary  functions.   Prims   facie, jurisdiction of the Court in an appropriate case to  declare an  order  passed  by a statutory body, even  if  the  order relates  .to the termination of the employment of a  servant of the body, may not be denied.     The contention raised by the counsel for the Board  that a  petition   for a declaration that the employment  of  the appellant was  not  lawfully terminated. and on that account the  Board  be commanded to treat the appellant as  lawfully in service cannot be maintained, must  be rejected. (1) L. R. [1957] A.C. 488. 62 The  jurisdiction  to declare the decision of the  Board  as ultra  vires exists,  though it may be exercised  only  when the Court is satisfied that departure is called for from the rule  that  a  contract of service will  not  ordinarily  be specifically enforced.     The  question  which  then falls  to  be  determined  is whether  under  the District Boards Act, 1922 the  Board  is invested  with  the   power to  determine  employment  of  a servant  of the Board otherwise than by way of dismissal  as punishment,  and for that purpose certain provisions of  the Act  and  the  rules framed under the Act  may  usefully  be referred. Chapter IV deals with officers and servants of the Board.   ’Servant’ of the Board is defined in s. 3  (ii)  of the  Act as meaning "a person in the pay and service of  the Board."  Section  72  enjoins upon the  Board  the  duty  to appoint in addition to the Secretary  and the Superintendent of Education such officers or servants as it is required  to appoint  by rules.  By Ch. IX of the rules framed under  the Act  the  Board  must  appoint  a  District  Board  Engineer possessing   the  qualifications  specified   therein.    An Engineer  is therefore an officer or servant whom the  Board is  bound  to appoint.  Section 82   confers  administrative authority upon the President and the Secretary in respect of several  matters  relating  to the  servants  of  the  Board specified therein.  The section states:

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             "Except in the cases provided for by  sections               70,  71  and  72,  the  power  to  decide  all               questions arising  in  respect of the service,               leave,  pay,  allowances  and  privileges   of               servants  of  the  board,  who  are   employed               whether  temporarily   or  permanently,  on  a               monthly  salary  of more than Rs. 40  and  the               power to appoint, grant  leave of absence  to,               punish,  dismiss,  transfer and  control  such               servants  of  the  board, shall  vest  in  the               President, and the said               63               powers  in the case of all other  servants  of               the board shall vest in the secretary’ :" This clause is followed by four provisos, the last of  which is material.  It provides:               "Provided fourthly, that the power to  appoint               and dismiss the engineer, the tax officer  and               the  accountant of the board shall vest in the               board, subject, in the case of dismissal, to a               right of appeal to the State Government within                             one month of the order of dismissal." By  s.  84  the provisions of ss.  79., 73, 80  and  82  are subject to the provisions of:             (a)        x         x         x                   (b)  any rule imposing any  conditions  on               the  appointment of persons to offices  or  to               any  particular office requiring  professional               skill  and on the punishment or  dismissal  of               persons so appointed,  and  on their liability               to service under the orders of any  Government               on the occurrence  of any emergency:               (c)            x        x         x                   (d)   any other rule relating to  servant,               of a board. Section  172   empowers the State Government to  make  rules under  the  Act.  By el. (?) the State Government  may  make rules consistent  with the Act --               (a)   providing  for any  matter   for   which               power  to  make   provision   is    conferred,               expressly  or  by implication,  on  the  State               Government by this or any other               64               enactment in force at the commencement of this               Act;and                  (b)  generally for the guidance of a  board               or any Committee of a board  or any Government               officer  in  any  matter  connected  with  the               carrying out of the provisions of this Act." The scheme of ss. 72, 82, 84 and 172 read with the Rules  in so  far  as it is material in the present case  is  that  an Engineer  of  the  Board  shall  be  appointed  by   special resolution by the Board.  The power to decide all  questions arising  in respect of the service, leave,  pay,  allowances and privileges and the power to grant leave of absence,  and to   punish,  transfer  the   Engineer  is  vested  in   the President.   But  the  power to appoint and  to  dismiss  an Engineer vests in the Board subject to a right of appeal  to the  State Government against the order of  dismissal.   The powers  of  the President and the Board arc subject  to  the rules imposing conditions on the punishment or dismissal  of the  Engineer, and other rules relating to servants  of  the Board.     The  State of U.P. has framed rules, in exercise of  the powers under s. 172 (2), two of which are material.  In  Ch.

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III (of the Rules dealing with officers and servants of  the Boards)  there occurs rule 3A, which provides:               "The  period of office of a permanent  servant                             of the board other than a Government s ervant in               its employ shall not determine until--                      (i)  his resignation has been  accepted               in  writing  by  the  authority  competent  to               appoint  his successor, or he ceases to be  in               service   by  the  operation  of   the   rules               regulating  the retirement of district  boards               servants, or               65                      (ii)  he  has given such  authority  at               least  three  months’  notice  where  his  pay               exceeds Rs. 15 and in other cases at least one               month’s notice, or                      (iii)  he has paid or assigned  to  the               board  a sum equal to three months’ pay  where               his  pay exceeds Rs. 15 and in other  cases  a               sum equal to one month’s pay;                      (iv) he has been given by the authority               competent  to appoint his successor  not  less               than  three  month’s notice or a sum equal  to               three months’ pay in lieu of notice where  his               pay  exceeds  Rs. 15 and in other  cases,  not               less than one month’s notice or a sum equal to               one month’s pay in lieu of notice." The other material rule framed by Notification issued by the Government   of  U.P.  dated  March  25,  1946,  is   headed "Regulation  regarding  dismissal, removal or  reduction  of officers and servants of District Boards".  It provides:               "No  officer  or servant shall  be  dismissed,               removed   or  reduced  without  a   reasonable               opportunity  being  given to  him  of  showing               cause against the action proposed to be  taken               in   regard  to  him.   Any  written   defence               tendered shall be recorded and a written order               shall  be  passed  thereon.   Every  order  of               dismissal,  removal or reduction shall  be  in               writing and shall specify the charge  brought,               the defence and reasons for the order." Even though this is designated a regulation it is  conceded, and  in our judgment rightly, by the Board and the State  of U.P.  that  it is a rule framed in exercise  of  the  powers conferred  by  s. 179,(2) and is not a  regulation  made  in exercise of powers under s. 173, for the Act does not confer any  power upon the State Government under cl. (2) of  s./73 to frame regulations regulating the exercise of the power of dismissal of 66 officers  or  servants  of  the  Board.  Under  the   rules, therefore, dismissal, removal or reduction of an officer  or servant   may  be  effected  only  after  affording  him   a reasonable  opportunity of showing cause against the  action proposed to be taken in regard to him.  But the services  of even  a permanent servant of the Board may be determined  in the manner provided by rule 3A.     The   Board   by   its   resolution   dated October  18, 1954,  purported to exercise the power of  determination  in the manner and subject to conditions prescribed by rule  3A. The  determination was by resolution of the Board and  prima fade, that exercise of the power may be effective.   Counsel for  the  appellant  contended  that in  the  absence  of  a specific power to determine employment conferred by the  act

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itself, a rule which prescribed restrictions on the exercise of  that  power was wholly sterile. It was  urged  that  the State  Government has prescribed conditions under which  the employment  of  a  permanent  servant  of  a  Board  may  be determined,  but the Legislature not having  conferred  upon the  Board the power to determine employment otherwise  than by way of dismissal as punishment the conditions under which the  power  could  be exercised served no  purpose.  We  are unable to agree with that contention.  By s. 82 power of the Board to decide questions arising in respect of the  service including the power to punish, dismiss, transfer and control servants  of  the  Board is  statutorily  delegated  to  the President in case of servants drawing a salary exceeding Rs. 40 per mensem, and to the Secretary for other servants.  But the  exercise  of  the power is subject  to  the  conditions prescribed in the provisos.  Upon the exercise of the  power under  s.  82  vested in the Board, the  President  and  the Secretary, there is yet another set of restrictions  imposed by s. 84.  The power is subject, among others, to the  rules imposing conditions on the appointment of persons to offices or to particular office 67 requiring  professional  skill  and  on  the  punishment  or dismissal of persons so appointed, and to rules relating  to servants of the Board.  The rule providing for the procedure for termination of employment of servants of the Board is  a rule  relating to servants of the Board and may properly  be made  under s. 84(d) read with s. 172(2).  Power to  appoint ordinarily   carries   with  it  the  power   to   terminate appointment, and a power to terminate may in the absence  of restrictions express or implied be exercised, subject to the conditions  prescribed  in  that behalf,  by  the  authority competent to appoint.  The power to terminate employment  is therefore  to  be  found  in s. 82 and  the  method  of  its exercise  is prescribed by the rules referred to in  s.  84. The rules deal with the conditions  under which  an  officer or  servant maybe dismissed (the dismissal being by  way  of punishment and also under which determination of  employment may take place.     It  was  urged  that  rule  3A  does  not  indicate  the authority  by  whom termination is to be effected.  But  el. (iv)  in  terms  provides that the period  of  office  of  a permanent servant of the Board shall not determine until  he has  been  given by the authority competent to  appoint  his successor  notice  of the duration specified.    It  is  the notice  which  terminates the employment and  the  authority competent  to give the notice is the authority competent  to appoint the successor of the servant concerned.     We are however unable to agree with the High Court  that the  expression "dismissal" in the fourth proviso to  s.  82 includes  termination of employment simpliciter. In the  law relating  to master and servant the  expression  "dismissal" has acquired a limited meaning- determination of  employment as  a  method of punishment for misconduct or  other  cause. That  is the meaning in which the expression "dismissal"  is used in the rule published by Notification dated 68 March  25,  1946.   By s. 84 the power  of  dismissal  of  a servant  under  s. 82 can only be exercised subject  to  the provision  of this rule, and the expressions  "dismiss"  and "dismissal" must have the same connotation in the law  which deal  with the power and the procedure for exercise of  that power.   The view expressed by the High Court would lead  to the result that even for mere termination of employment  the procedure  prescribed  by the Notification may  have  to  be

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followed.   There  is again inherent indication  in  s.  82, which supports the view that the expression has been used in a limited sense.  The first proviso to s. 82 confers a right of  appeal to servants of the Board, against orders  of  the President  imposing  a fine exceeding  one  month’s  salary, suspension  for a period exceeding one month,  reduction  by way  of  punishment,  or supersession of a  servant  in  the matter of promotion, as well as against orders of dismissal. The  orders  imposing   fine,   suspension,   reduction   or supersession are ex facie orders of punishment, and there is no  reason  why the order of dismissal which occurs  in  the same clause, and which is subject to appeal is not an  order of  that nature.  The fourth proviso also confers a  similar right  of appeal against the order of the  Board  dismissing certain  superior servants,  An appeal against an  order  of mere  determination  of employment, which may  generally  be made  in the exigencies of the service may serve  no  useful purpose.   Provision of a right of appeal ii  indicative  of the nature of the order.  In our view it is competent  under s.  84 read with s. 172 (2) to the State Government to  make rules imposing conditions on the appointment and  punishment of persons to offices or to any particular office  requiring professional  skill and to provide generally the  conditions under  which the servants of the Board are to serve, and  in the exercise of the powers which are vested by s. 82,  these rules have an overriding effect.  An order of  determination of  employment  which is not of the nature of  an  order  of dismissal, has by virtue of the 69 rules  framed  under  cl.  (d) of  s.  84  to  be  exercised consistently  with  rule  3A,  and  an  order  of  dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under s. 84 (b) & (d). We, therefore, hold that the Board  had  the  power to determine the  employment  of  the appellant  and the Board purported to exercise  that  power. But counsel for the appellant contended that even though  in form the power of determination of employment was exercised, in  substance  it  was intended to  exercise  the  power  of dismissal  and that the form of the resolution of the  Board was  merely to camouflage the real object of the Board.   It is  settled law that the form of the order under which   the employment  of a servant is determined is not conclusive  of the  true  nature of the order.  The form may be  merely  to camouflage  an order of dismissal for misconduct, and it  is always  open  to  the  court  before  which  the  order   is challenged  to  go  behind the form and ascertain  the  true character  of the order.  If the Court holds that the  order though in the form merely of determination of employment  is in reality a cloak for an order of dismissal as a matter  of punishment,  the Court would not be debarred merely  because of  the  form of the order in giving effect  to  the  rights conferred by statutory rules upon the employee.     Counsel  for  the  appellant pointed  out  that  in  the affidavit filed on behalf of the Board, the entire  service- sheet of the appellant since the year 1945 was set out.  The affidavit   refers  to  the  censure  administered  to   the appellant  for   neglect of duty on March 25, 1945,  to  the order  of  dismissal  of the appellant ’from  service  on  a finding by the Public Works Committee that he was guilty  of negligence and unfaithfulness in 1946, to the comments  made by the Chairman of the Board in 1947 that the appellant  had not  proved himself to be a loyal and faithful servant’  and to stoppage of increments of the 70

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appellant by an order of the President of the Board in  1953 and 1954.  Reliance is then placed upon paragraph-21 of  the affidavit of the Board in which it was stated that the  plea of  the  appellant  that  he  had  honestly  and  faithfully discharged   his   duties  but  the   District   Board   had capriciously  and without any justification  terminated  the service of the appellant was untrue and it was asserted that the   services  of  the  appellant  had   been   justifiably terminated.   It  must  however  be  observed  that  in  the petition the appellant challenged the validity of the  order terminating  his  services on the ground  firstly  that  the Board had no power to terminate his employment and  secondly that it was not justified in terminating the employment.  It was   never  contended  that  the  order   terminating   the employment was one in reality of the nature of dismissal  as punishment, and the form used in the resolution of the Board was  merely  to  camouflage the real object  of  the  Board. Averment   in  the  petition  that  the  Board   had   acted capriciously  and without any justification does not  amount to a plea that the order was intended to be one of dismissal though  in   form one of determination  of  employment.   It also does not appear to have been argued before the Division Bench  that  the impugned resolution was in reality  one  of dismissal.  Moothan, C.J., in delivering the judgment of the Court  dealt  with  the only argument  advanced  before  the Court, viz., that although the Board had the power to punish or  dismiss  the  appellant it had  no  power  otherwise  to terminate  his service in the absence of a special  contract which  did not exist in this case.  If the appellant had  in his  petition pleaded the case that the order though in  the form  of determination of employment was intended to be  one of  dismissal  as a matter of punishment and  the  form  was adopted  merely to conceal the true object of the Board,  it would have given opportunity to the Board to meet that  case and to produce all the evidence in that Connection in  their possession.  The question raised 71 is  one  primarily  of fact;and it  was  never  raised,  nor explored in the High Court on proper pleadings. It would  be taking the Board by surprise to allow the appellant to  make out  this  new case at this stage.  We therefore  refuse  tO consider  the question whether the order passed against  the appellant pursuant to the resolution dated October 18,  1954 was  for dismissal of the appellant from the service of  the Board, as a punishment for misconduct.     The  .appeal therefore fails and  is  dismissed.  Having regard  to the circumstances, there will be no order  as  to costs in this Court.                           Appeal dismissed.