http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SHRIMATI HIRA DEVI AND OTHERS

       Vs.

RESPONDENT: DISTRICT BOARD, SHAHJAHANPUR

DATE OF JUDGMENT: 20/10/1952

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR  362            1952 SCR 1122  CITATOR INFO :  R          1959 SC 480  (6)  RF         1970 SC 140  (6)  R          1972 SC2284  (19)  R          1992 SC  96  (14)

ACT: U.P.  District Boards Act (X of 1922), ss.  71,  90--Disrict Board--Dismissal  of secretary--Resolutions  for  dismissal, and  suspension  pending  decision  of  appeal  to   Govern- ment--Validity of suspension.

HEADNOTE:    Section  71  of the U.P. District Boards Act,  1922,  as amended in 1933 provided that a resolution of the Board  for the  dismissal of its secretary shall not take effect  until the  period  of  one month has expired or  until  the  State Government  have  passed orders on any appeal  preferred  by him.  A District Board passed a resolution for dismissal  of its secretary and also for his suspension till the matter of his dismissal was decided under section 71 of the Act on  an appeal  if any preferred by the secretary: Held, that  under section 90 of the Act a secretary could be suspended only as a punishment or pending inquiry or 1123 pending the orders of any authority whose sanction is neces- sary  for his dismissal.  The words "pending the  orders  of any authority whose sanction is necessary for his dismissal" could not appropriately cover the case of a suspension  like the  present  one  and the  resolution  for  suspension  was ’therefore ultra vires.     Held further, that since the Board was created by  stat- ute, and its powers of dismissal and suspension are  defined and circumscribed by sections 71 and 90 of the Act it  would not  be  legitimate  to have resort to  general  or  implied powers under the law of master and servant or under  section 16 of the U.P. General Clauses Act;and even under section 16 of  that  Act  powers which are vested in  an  authority  to suspend or dismiss any person appointed, are to be operative only  "unless  a  different intention appears"  and  such  a different intention is to be found in sections 71 and 90  of the Act which codify the powers of dismissal and  suspension

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

vested in the Board.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  114  of 1951.     Appeal  from the Judgment and Decree dated the 5th  Sep- tember,  1947, of the High Court of Judicature at  Allahabad (Waliullah  and Sapru JJ.)  in First Appeal No. 516 of  1942 arising  out of Judgment and Decree dated the  3rd  October, 1942,  of  the Court of the Civil Judge of  Shahjahanpur  in Original Suit No. 10 of 1941.     Achhru Ram (N. C’. Sen, with him) for the appel lants.     C.K.  Daphtary  (K. B. Asthana, with him) for  the  re- spondents.      1952. October 20. The Judgment of the Court was  deliv- ered by      BHAGWATI  J.--This is an appeal by the heirs and  legal representatives of the deceased plaintiff against the decree of  the High Court of Judicature at Allahabad allowing’  the appeal  of the  defendants against the decree passed by  the Court  of the Civil Judge of Shahjahanpur in favour  of  the plaintiff allowing the plaintiff’s claim in part. One Kailashi Nath Kapoor, the plaintiff, was employed by the District  Board  of Shahjahanpur, the defendants,  as  their Secretary in the year 1924.  He 1124 was also entrusted in 1929 with the additional duties     of doing assessment work for the defendants.  The work done  by the  plaintiff did not find favour with some members of  the Board  and  on the 9th November, 1939, six  members  of  the Board  tabled a resolution asking the Chairman to convene  a special  meeting of the Board to consider a  resolution  for the  dismissal of the plaintiff.  A special meeting  of  the Board  was  convened  on the  17th  December,  1939.  Twelve charges  were  framed against the plaintiff and he  was  re- quired  to furnish his answers to them.  A  special  meeting of the Board was  thereafter  convened  on the 20th January, 1940.  The resolution for the dismissal of the plaintiff was on  the agenda but the meeting had to be adjourned for  want of  -quorum  to the 29th January, 1940.   At  the  adjourned meeting  of the 29th January, 1940, twenty-five out  of  the twentyseven members of the Board  were present.  The charges against  the plaintiff were gone into and eleven out of  the twelve  charges  were  held proved.   Two  resolutions  were consequently passed by the Board at this meeting, one  being a resolution for his dismissal, and the other being a  reso- lution  for his suspension till the matter of his  dismissal was  decided  under section 71 of the U.P.  District  Boards Act, X of 1922, on an appeal if any preferred by the  plain- tiff to the Government.  The plaintiff  preferred an  appeal to  the Government against the resolution for his  dismissal and this appeal was dismissed by the Government on the  19th December, 1940.  The  plaintiff  thereafter commenced in the  Court  of  the Civil  Judge  at  Shahjahanpur the suit out  of  which  this appeal arises against the defendants for a declaration  that the two resolutions passed by the Board on the 29th January, 1940, were illegal and ullra vires of the Board and that  he continued  to be the Secretary and Assessing Officer of  the Board, for an injunction restraining the Board from prevent- ing  him from discharging his duties as such  Secretary  and Assessing  Officer, for arrears of his salary with  interest and  contribution to his provident Fund and in the  alterna-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

tive 1125 for  damages  and  compensation  for illegal  dismissal  and suspension and for costs.  The defendants contended that the said resolutions were valid and binding on the plaintiff and that  the  plaintiff  was  not entitled  to  any  relief  as claimed.     The  learned trial judge held that the  two  resolutions passed by the Board on the 29th January, 1940, were properly passed and that there was no irregularity in the  procedure. He  held that the resolution for dismissal of the  plaintiff was  valid and binding on the plaintiff but  the  resolution for suspension was not legal.  In the result he decreed  the plaintiff’s  claim for arrears of salary, and the  contribu- tion  towards the provident fund against the defendants  for the period of suspension and awarded to the plaintiff a  sum of  Rs. 6,629-4-0 with proportionate costs, the rest of  the plaintiff’s  claim was dismissed.  The  defendants  appealed to  the  High Court against this decree  and  the  plaintiff filed cross-objections in regard to his claim which had been disallowed.  The plaintiff died during the pendency  of  the appeal  and his heirs and legal representatives,  being  his widow  and  his four sons, were brought on the  record.  The High  Court  concurred with the trial court in  the  finding that there was no irregularity, impropriety or illegality in the procedure followed and the steps taken before the  meet- ing or at the meeting of the Board when the two  resolutions were  considered and passed.  It however disagreed with  the conclusion  reached by the trial Court that  the  resolution for  suspension was ultra vires the Board. It held that  the resolution for suspension also was valid and binding on  the plaintiff  and  thus dismissed the  plaintiff’s   suit  with costs throughout.  The crossobjections of the plaintiff were of course dismissed with costs.  The heirs and legal  repre- sentatives of the plaintiff obtained leave to appeal to  the Federal  Court against this decision of the High  Court  and the appeal was admitted on the 5th November, 1948.     Both  the  Courts below having found that there  was  no irregularity,  impropriety  or illegality in  the  procedure followed and the steps taken when the two 1126 resolutions  in question were passed by the Board  the  only question  that survived for consideration by this Court  was whether  the resolution for suspension of the plaintiff  was valid and binding on the plaintiff or in other words whether it was competent to the Board to pass the resolution for the suspension of the plaintiff after it had passed the  resolu- tion for his dismissal under section 71 of the Act.     Section  71  of the Act provides for the  dismissal  and punishment of the secretary:     "A board may by special resolution punish or dismiss its secretary:     Provided,  firstly, that such resolution is passed by  a vote  of  not less than two-thirds of the  total  number  of members of the board for the time being:     Provided, secondly, that the secretary of a board  shall have a right of appeal to the State Government against  such resolution within one month from the date of the  communica- tion of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until the State Government have passed orders on any  appeal preferred by him."  It will be relevant at this stage to note that this section 71  was  amended by U.P. Act I of 1933.  Section  71  as  it originally stood ran thus:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

    "A  board may by special resolution punish  or  dismiss its secretary provided,      (a) that such a resolution is passed by a vote- of  not less  than two-thirds of the total number of members of  the board for the time being, or (b) that it is passed by a vote of  not less than one-half of the total number  of  members. and is ’ sanctioned by the Local Government’   ....      It may be noted that in the original section 71  provi- sion  was made for the sanction of the Local  Government  in certain  cases.  No  such provision is to be  found  in  the amended section 71 of the Act.  The resolution according  to the amended section 71 is to be passed by a vote of not less than two-thirds of the 1127 total  number of members of the Board and such a  resolution is  not  to take effect until the period of  one  month  has expired within which the secretary can exercise his right of appeal  or  until the Government have passed orders  on  the appeal if any preferred by him.  There is no question of the sanction  of  the   Local Government to any  resolution  for dismissal   the only provision being that the resolution  is to  take  effect after the expiration of the period  of  one month  or  after the Government have passed  orders  on  the appeal if any preferred by the secretary within that  period of one month.  Once that period of one month expires without the  secretary preferring any appeal against the  resolution of  the Board or the Government passes final orders  on  the appeal preferred by him, the resolution takes effect without anything more in the nature of a sanction by the Government.     The  power of suspension is conferred and  regulated  in section 90 of the Act :--  "(1)  Suspension may be of two kinds: (a) suspension as a punishment, and (b) suspension pending inquiry or orders.   (2)  Where a general power to punish is conferred by  this Act,  it shall be deemed to include a power to suspend as  a punishment for a period not exceeding three months.   (3)   Where a power of dismissal, whether subject  to  the sanction of any other authority or not, is conferred by this Act,  it shall be deemed to include a power to  suspend  any person  against  whom the power of dismissal might be  exer- cised,  pending  enquiry  into his conduct  or  pending  the orders  of any authority whose sanction is necessary for his dismissal.   (4)   Where suspension is ordered pending inquiry  or  or- ders,  and the officer suspended is ultimately restored,  it shall  be  at the discretion of the authority  ordering  his suspension whether he shall get any, and, if so what, allow- ance during the period of suspension; but in the absence  of any order to the contrary he shall be 1128 entitled  to the full remuneration which he would  have  re- ceived but for such suspension."     The  suspension which has been thus provided for  is  of two  categories,  (1)  suspension as a  punishment  and  (2) suspension  pending  enquiry  or orders. In the  case  of  a suspension falling within the latter category the only power of  suspension which is provided is that of  suspending  any person  against whom the power of dismissal might  be  exer- cised pending enquiry into his conduct or pending the orders of  any authority whose sanction is necessary for  his  dis- missal.   The power of suspension pending enquiry  into  the conduct  of the person can only be exercised if  an  enquiry against  him has been started and before any order  is  made for his dismissal as a result of such enquiry. The power  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

suspension  pending the orders of the authority whose  sanc- tion  is necessary for his dismissal can similarly be  exer- cised  provided  the  order of dismissal is  made  but  that dismissal  could be effective only after the orders  of  the authority  whose  sanction is needed  for  effectuating  the same.  The section does not provide for any other case where as  on the facts before us the order of dismissal  does  not require  the sanction of any authority but has got to  await either the expiry of a particular period after such order of dismissal has been made or the result of an appeal which may be preferred to the Government within the period  prescribed in  that  behalf.  A decision of an authority  to  which  an appeal  is provided is not the same thing as a  sanction  by the  authority.  A perusal of sub-section (4) of section  90 makes this position quite clear.  The authority ordering the suspension  is  vested  with the  discretion  to   determine whether  the officer suspended would get any or if  so  what allowance  during the period of suspension where  suspension is  ordered pending enquiry or orders and the  officer  sus- pended  is ultimately restored.  There is no  provision  for any  allowance  where the  officer having been dismissed  is also  suspended  for the period which has  of  necessity  to expire  before his appeal is time-barred or before the  Gov- ernment passes 1129 orders  on  the appeal if any preferred by  him  within  the prescribed period. Such a case is not at all provided for in sub-section  4  of section 90 and the officer  so  suspended would  be without any remedy whatever and would not be  able to get any allowance at all from the authority ordering  his suspension during such period of suspension.     It is necessary to bear in mind the provisions of  these sections 71 and 90 of the Act in order to determine  whether it  was  competent  to the Board to pass  a  resolution  for suspension of the plaintiff after it had passed the  resolu- tion for his dismissal on the 29th January, 1940.     On a construction of these sections 71 and 90 of the Act the  trial Court came to the conclusion that the  provisions of  section  90 of the Act were exhaustive,  that  no  other category  of suspension apart from those specified could  be ordered and that therefore the resolution for suspension  of the plaintiff was ultra rites the Board.  The High Court  in appeal  realised the difficulty of the position. It came  to the  conclusion  that section 90 as it stood  was  in  close conformity with the provisions of the old section 71 of  the Act  which provided for the resolution for dismissal  passed by  a vote of not less than one-half of the total number  of members being required to be sanctioned by the Local Govern- ment. The sanction was expressly provided there.   But  when that  section came to be amended by the U.P. Act I of  1933, the provision     for sanction was deleted and it provided for the resolu- tion  not  taking effect until the period of one  month  had expired within which the secretary could exercise his  right of  appeal or until the Government had passed orders on  the appeal  ii  any preferred by him.  When this  amendment  was made in the old section 71 of the Act the provision made  in section  90  in regard to the power of suspension  was  lost sight of and no corresponding amendment was made in  section 90,  sub-section (1)(b), sub-section (3) or  subsection  (4) which would  bring the provisions of 145 1130 section 90 in conformity with the amended section 71 of  the Act. The High Court was therefore at pains to place what  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

called  a liberal construction on the provisions of  section 71  and section 90 of the Act trying to read in the power of suspension provided in section 90 also a power of suspension during the period  that the secretary preferred an appeal to the  Government against the order of his dismissal and   the Government passed orders on such appeal.      Apart from placing this so-called liberal  construction on  the expression "the orders of any authority whose  sanc- tion  is  necesssary" in section 90 subsection 3,  the  High Court  also brought to its aid the provisions of Section  16 of the U.P. General Clauses Act of 1904 which provides  that "unless a different intention appears  the authority  having power  to  make  the appointment shall also  have  power  to suspend or dismiss any person appointed by it in exercise of that power-".  It came to the conclusion that nothing in the terms  of section 71 or section 90 of the Act-controlled  or negatived  an  intention  to sustain the  general  power  of suspension,  i.e.  suspension pending orders on  an  appeal. The High Court thus justified the resolution for the suspen- sion  of  the  plaintiff passed by  the Board  on  the  29th January, 1940.      We are afraid we cannot agree with this line of reason- ing  adopted by the High Court. The defendants were a  Board created  by statute and were invested with powers  which  of necessity  had  to be found within the four corners  of  the statute  itself.   The powers of dismissal   and  suspension given  to  the Board are defined and  circumscribed  by  the provisions  of sections 71 and 90 of the Act and have to  be culled  out from the express provisions of  those  sections. When  express powers have been given to the Board under  the terms  of these sections it would not be legitimate to  have resort to general or implied powers under the law of  master and servant or under section 16 of the U.P. General  Clauses Act.   Even under the terms of section 16 of that  Act,  the powers which are vested 1131 in the authority to suspend or dismiss any person  appointed are  to  be  operative only "unless  a  different  intention appears" and such different intention is to be found in  the enactment of sections 71 and 90 of the Act which codify  the powers of dismissal and suspension vested in the Board.   It would  be an unwarranted extension of the powers of  suspen- sion   vested in the Board to read, as the High  Court  pur- ported  to do, the power of suspension of the type in  ques- tion  into  the  words "the orders of  any  authority  whose sanction  is  necessary". It was unfortunate that  when  the Legislature  came to amend the old section 71 of the Act  it forgot  to amend section90 in conformity with the  amendment of  section 71.  But this lacuna cannot be supplied  by  any such  liberal construction as the High Court sought  to  put upon the expression "orders of any authority whose  sanction is necessary".  No doubt it is the duty of the court to  try to harmonise the various provisions of an Act passed by  the Legislature.  But it is certainly not the duty of the  Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.     Reading  the present, section 71 of the Act  along  with section  90 of the Act we are of the opinion that the  power of suspension of the nature purported to be exercised by the Board in the case before us was not the power of  suspension contemplated  in section 90 sub-section (3) of the  Act.  If the  plaintiff  allowed the period of one  month  to  expire without  preferring an appeal against the resolution to  the Government or if the Government passed orders dismissing his appeal,  if  any, the resolution for’  his  dismissal  would

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

become effective without any sanction of the Government. The words used therefore in section 90, sub-section (3) "pending the orders of any authority whose sanction is necessary  for his  dismissal" are inappropriate to the present  facts  and could not cover the case of a suspension of the nature which was resorted to by the Board on the 29th January, 1940.   We are therefore of the view that the resolution for suspension which was 1132 passed on the 29th January, 1940, was ultra vires the powers of the Board.      We  have  accordingly come to the conclusion  that  the decision  reached by the High Court that the resolution  for suspension  which was passed by the Board on the 29th  Janu- ary,  1940,  was valid and binding on the    "plaintiff  was erroneous and that the conclusion reached by the trial Court was correct. The learned Solicitor General appearing for the defendants  has  however  informed us that the  sum  of  Rs. 6,629-4-0 and the  proportionate costs which were awarded by the  trial Court to the plaintiff have already been paid  to the plaintiff. Nothing therefore remains to be recovered  by the heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored  as a result of this judgment of ours.      The only thing which therefore survives is the question of  the costs of this appeal.  The trial Court  had  already awarded  to  the plaintiff proportionate  costs.   The  High Court in reversing the judgment of the trial Court dismissed the  plaintiff’s  suit with costs throughout  including  the costs of the cross-objections which were filed by the plain- tiff.  The heirs and legal representatives of the  plaintiff filed the present appeal in regard to the whole claim of the plaintiff  as  laid in the plaint. That claim could  not  be sustained  before us by the heirs and legal  representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by  the trial  Court.  If an order for proportionate costs  of  this appeal were made it would certainly work to the prejudice of the  heirs and legal representatives of the  plaintiff.   We are not disturbing the order which had been made by the High Court  in regard to the costs of the appeal before  it.   No time  was taken up before us in arguing the appeal on  other points  except the one in regard to the resolution  for  the suspension  of the plaintiff being ultra rites and we  think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us  should be that each party should bear its own costs. 1133     The only order which we need pass in this appeal  before us  under the circumstances is that the appeal  is  allowed, the decree of the trial court is restored, and each party do bear    and   pay   its   own   costs   of   this    appeal. Appeal allowed. Agent for the appellants: C.P. Lal. Agent for the respondent: S.S. Shukla.