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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

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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

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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

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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-

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tive

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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

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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:

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"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

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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

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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

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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

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section 90 in conformity with the amended section 71 of the

Act. The High Court was therefore at pains to place what it

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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

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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

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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

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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.

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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.