J.N. GANATRAversusMORVI MUNICIPALITY, MORVI

A                                  J.N. GANATRA
                                           v.
                        MORYi MUNICIPALITY, MORYi

                                    JULY 19, 1996

B              [KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]

          Se1vice La~v :

        Mo1vi City Municipal Officers and Se1vants Conduct, Discipline, Dis-
C missal, Penalty and Appeal Rules, 1960 :

           Rule 35-Dismissal from se1vice-Procedure to be followed-Appellant
    dismissed from se1vice without following the procedure-Suit filed by appel-
    lant dismissed-Appellate cowt decreed the suit-High Corut held the dis-
    missal as illegal, but dismissed the suit as bmred by time u/s. 253(1) of
D   Gujarat Municipalities Act-Held order of dismissal being patently and gross-
    ly in violation of the provisions of the Rules, it cannot be treated to have been
    passed under the Act-Suit of appellant decreed-Limitation-Gujarat
    Municipalities Act, 1963, s.253(1).

E         The respondent-Municipality dismissed the appellant from service.
    The appellant challenged the order in the civil suit which was dismissed.
    On appeal, the suit was decreed. In the second appeal filed by the respon-
    dent, the High Court though held that the order dismissing the appellant
    was illegal as it was passed without complying with the provisions of r. 35
    of the Morvi City Municip~I Officers and Servants Conduct, Discipline,
F   Dismissal, Penalty and Appeal. Rules, 1960, but dismissed the appellant's
    suit as barred by Limitation u/s. 253(1) of the Gujarat Municipalities Act,
    1963. Aggrieved, the appellant filed the appeal.

          Allowing the appeal, this Court
G       HELD : I.I. The High Court erred in reaching the conclusion that the
  dismissal of the appellant from service, in utter violation of rule 35 of the
  Morvi City Municipal Officers and Servant Conduct, Discipline, Dismissal,
  Penalty and Appeal Rules, was an act done in pursuance or execution or
  intended execution of the Act. It is no doubt correct that the General Board
H of the Municipality had the power under the Act to dismiss the appellant
                                          742
        J .N. GANATRA v. MOR VI MUNICIPALITY [KULDIP SINGH, J. J         743

but the said power could only be exercised in the manner indicated by mle       A
35 of the Rules. Admittedly the power of dismissal has not been exercised
the way it was rel(uired to be done under the Act. [747-E-F]

        1.2. A power under a statute has to he exercised in accordance with
the pro,·isions of the statute and in no other manner. In view of the
categoric tinding given by the lfigh Court to the effect that the order of      B
dismissal was on the face of it illegal and void, the dismissal of the
appellant \\'as not an act done in pursuance of execution or intended
execution of the Act. The order of dismissal being patently and grossly in
violation of the plain provisions of the Rules, it cannot be. treated to have
been passed under the Act. [747-G]                                              C

      Poona City Municipal Cmporation v. Dattatraya Nagesh Deodlte1;
[1964] 8 SCR 178 & Municipal Cmporation v. S/11i Niyamatu/lah S/o.
Masitulla, [1970] 2 SCR 47, relied on.

      2. The dismissal order in the present case could only be passed by D
following the procedure laid down under rule 35. of the Rules. The
Municipal Board had no jurisdiction or authority to disn1iss the appellant
without folltnving the mandatory procedure. The impugned judgment of
the High Court is set aside and the suit of the appellant is decreed with
costs. [748-E-G)
                                                                                E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6625 of
1995.

     From the. Judgment and Order dated 17.8.84 of the Gujarat High
Court in S.A. No. 22 of 1978.
                                                                                F
        Ms. Raichura and H.A. Raichura for the Appellant.

        Anip Sachthey for the Respondent.

        The .Judgment of the Court was delivered by
                                                                                G
      KULDIP SINGH, J. The appellant was employed as an Overseer
with Morvi Municipality in Rajkot District, State of Gujarat. He was
dismissed from service by a resolution dated December 1, 1970 passed by
the Municipality. The appellant challenged the order of dismissal by way
of a civil suit. The trial court dismissed the suit. The appellate court, H
    744                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A however, reversed the findings of the trial court and decreed the suit. '!:he
    second appeal filed by the Municipality was allowed by the High Court and
    the judgment and decree passed by the first appellate court was set aside
    and the suit of the appellant was dismissed on the short ground that the
    same was barred by limitation under Section 253(1) of the Gujarat
B   Municipalities Act, 1963 (the Act). This appeal by way of special leave is
    against the judgment of the High Court.

          It is not disputed that before passing the order of dismissal is
    mandatory for the Municipality to have followed the procedure laid down
    under the Morvi City Municipal Officers and Servants, Conduct, Dis-
C   cipline, Dismissal, Penalty and Appeal etc., Rules 1960 (the Rules). Rule
    35 of the Rules, \vhich is relevant is as under :

            "Before imposing the penalty under sub-sections 3, 6, 7 & 8 of
            Section 21 upon the officer or employee, the investigating general
            Board or Committee shall have to follow the following
D           methods/procedure.

             1. To take decision for action against the responsible officer or
             employee.

             2. Written Charge-sheet should be given to him.
E
            3. To make investigation /enquiry and to take evidence in respect
            of his misbehaviour, fault of offence.

             4. To lake written explanation from him.

F            5. After the aforesaid proceeding the opinion should be given and
             decision of order should be made."

    The High COurt on merits came to the conclusion that the order <lisn1issing
    the appellant was passed without complying with the provisions of rule 35
G of the Rules. The High Court, therefore, held that the order of dismissal
    was illegal. The relevant part of the High Court judgment in this respect
    is as under :

             "Rule 35 of the Morvi City Municipal Officers and Servants,
             Conduct, Discipline, Dismissal, Punishment and Appeal Rules
H            framed by the said Municipality in 1960 lays down that before
J.N. GANATRA v. MORVJMUNICIPALITY [KULDIPSJNGH,J.J                745

 imposing a punishment upon an officer or servant of the                 A
 Municipality, the General Board or the Committee has to : (1)
 take a decision to take action against the officer or servant, (2)
 give him a charge-sheet in writing, (3) take evidence about the
 misconduct of the servant, (4) call for his written explanation, (5)
  reach a conclusion and give a decision and pass an appropriate
               '                                                         B
  order.

     In the present case, it is an admitted position that no decision
  was taken either hy the General Board or by the Controlling
  Committee of the Municipality to take any such action against the
  plaintiff. It is also an admitted position that no charge-sheet has    c
  been given by the General Board or by the Committee acting
  through the Chief Officer or any other officer. It is clear on the
  face of it that the charge-sheet, Ex. 41, is issued by the president
  in his own nan1e and is signed by him. There is also nothing on
  record to show that any evidence was taken in the present case to      D
  consider whether the charges levelled against the plaintiff were
  established. It appears that the plaintiff was called upon to give
  his explanation and he did give some explanation. There is nothing
  on record lo show that any notice was given to the plaintiff
  informing him that the Charges against him \Vere proved and
 calling upon him to show cause why he should not be dismissed E
 from service. But it appears that the Chief Officer of the_·.,
 Municipality gave a notice, Ex. 55, dated 7.10.1969 to the plaintiff
 informing him that the General Board will be taking up for con-
 sideration the resolution passed by the Controlling Committee on
 17.4.1969 with regard to his dismissal from service and he may F
 produce whatever evidence he wants to in defence before the
 General Board. In view of this, we may say that he was given an
 opportunity to give a written explanation as required by sub-rule
 (4) of the Rule 35. The provision of sub- rule (5) of Rule 35 lays
 down that the General Board or the Committee, as the case may G
 be, has to reach a conclusion and pass a judgment and also pass
 a consequential order. This shows that the General Board or the
 Committee, as the Case may be, has tQ record a finding with reasons
 for reaching the conclusion about the guilt of the delinquent. The
 resolution of the Controlling Committee is at Ex. 38. It is dated
 17.4.1969. It only mentions that the charge against the delinquent      H
    746                    SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A           plaintiff was established and the Commillce was of the opinion
            that the plaintiff should be removed from service and the matter
            may be placed before the (ieneral Board. No reasons ar0 disclosed
            in this resolution as to \vhy the con1mittee had reached such a
            conclusion. The resolution also does not sho\V as to \vhat inquiry,
            if any, was held against the plaintiff before taking this decision.
B
            The resolution of the General Board is al Ex. 85. The resolution
            is dated 1.12.1970. This resolution also does not disclose any
            reasons as to why the General Board had reached the conclusion
            to dismiss the plaintiff except that it had taken into consideration
            the resolution of the Controlling Committee and the submissions
c           made by the advocate on behalf of the plaintiff. This shows that
            neither Ex. 38 nor Ex. 85 disclosed any reasons \Vhatsoever. 11

          The High Court finally concluded as under :

            "It will appear from what has been discussed above that no inquiry
D           was held against the plaintiff-respondent as required by the rules
            framed by the Municipality. The order passed by the General
            Board of the Municipality dismissing the plaintiff- respondent from
            service, therefore, is on the face of it, illegal and inoperative. On
                                 1

            n1crits, therefore, the defendant- Municipality has no case."
E          Having held that the order passed by the General Board of the'
    Municipality dismissing the appellant from service was on the face of it
    illegal and inoperative, the High Court non-suited the appellant on the
    short ground that the suit was barred by limitation in the terms of Section
    235(1)(a) of the Act. The said section reads as follows:
F
            "253(1) - No suit shall lie against a municipality in respect of any
            act done in pursuance or execution or intended execution of this
            Act or in respect of any alleged neglect or default in the execution
            of this Act. ·

G           (a) Unless it is instituted \Vi thin six months next after the accrual
                                           11
            of the cause of action; and .....

    On the interpretation of Section 253(1)(a), the High Court posed the
    following question :

H           "On facts, I have found, as discussed earlier, that the action of the
      .1.N. GANATRAv. MORYi MUNICIPALfrY[KULDII' SINGH,J.]                  747

        Municipality was bad, in that the procedure laid down by the rules         A
        has not been followed and further because no reasons have been
        given either by the Controlling Committee or by the General Board
        for rc<1ching the conclusion to dismiss the plaintiff from service.
        Tht; queslion is \Vhether in vic\V of this factual position, can it be
        said that the act of the Municipaiity \Vas in pursuance or, at any         B
                                                              11
        rate, execution or intended execution of the Act ?

The High court finally came to the conclusion that the suit filed by the
appellant was Barred by limitation as it was not filed within the period of
limitation prescribed by Section 253(l)(a) of the Act. The High Court
reached the finding on the following reasoning :                                   C

        "The discussion made above clearly shows that even though the
        action of the Municipality in dismissing the plaintiff was null and
        void for the reasons \vhich have brcn stated in the beginning,
        none-the-less the Municipality can be said to have acted in in-
        tended execution of the Act and hence the provisions of Section            D
        253(1)(a) will be attracted in the present case."

      We have heard learned counsel for the parties. We are of the view
that the High Court fell inlo patcnl error in reaching the conclusion that
the dismissal of the appellant from service, in utter violation of rule 35 of
                                                                                   E
the Rules, was an '1act done in pursuance or execution or lntcnded execu-
tion of this Act... .... ". It is no doubt correct that the General Board of the
Municipality had the power under the Act to dismiss the appellant but the
said power could only be exercised in the manner indicated by rule 35 of
the Rules. Admittedly the power of dismissal has not been exercised the
way it was required to the done under the Act. It is settled proposition of        F
law that a power under a statute has to he exercised in accordance with
the provisions of the statute and in no other 1nanner. In vie\v of the
categoric finding given by the High Court to the effect that the order of
dismissal \Vas on the face of it illegal and void, we have no hesitation in
holding that the dismissal of the appellant was not an act done in pursuance       G
or execution or intended execution of the Act. The order of dismissal being
patently and grossly in violation of the plain provisions of the Rules it
cannot be treated to have been passed under the Act.

     This Court in Poona City Municipal C01poration v. Dattatraya Nagesh
Deodhe1; (1964] 8 SCR 178 while interpreting a similar provision under the H
    748                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A Bombay Provincial Municipal Corporation Act, 1949 observed as under ;

            "The benefit of this section would be available to the Corporation
            only if it was held that this deduction of ten per cent was "an act
            done or purported to be done in pursuance or execution or
            intended execution of this Act." We have already held that this levy
B           was not in pursuance or execution of the Act. It is equally clear
            that in view of the provisions of s. 127(4) (to which we have already
            referred) the levy could not be said to be "purported to be done
            in pursuance or execution or intended execution of the Act.i1For,
            what is plainly prohibited by the Act cannot be claimed to be
c           purported to be done in pursuance or intended execution of the
            Act'1•

           This Court in Municipal C01]Joratio11 v. Sli Niyamatullah S/o Masitul-
    !a, [1970] 2 SCR 47 interpreted Section 135(2) of the Indore Municipal
    Act, 1909 which is similar to Section 253(1)(a) of the Act in the following
D   term:

            "The provisions contained in section 135 or' the Indore Municipal
            Act will be applicable to things done under the Act. It is manifest
            that in the present case the order of dismissal passed by Shri
            Ghatpande was beyond his jurisdiction and is therefore not an act
E
            done under the Act.TT

          The dismissal order in the present case could only be passed by
    following the. procedure laid down under rule 35 of the Rules. The
    Municipal Board had no jurisdiction or authority to dismiss the appellant
F   without following the mandatory procedure. We are, therefore, of the view
    that the High Court was not justified in reaching the conclusion that the
    order disn1issing the appellant was within the provisions of the Act. We
  allow the appeal, set aside the impugned judgment of the High Court and
  decreed the suit of the appellant with costs. We quantify the costs as Rs.
G 20,000.

    R.P.                                                        Appeal allowed.



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