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TMI Blog1973 (1) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal by the appellant municipality referred to as the municipality was illegal and void. The respondent was an employee of the municipality. Her services were terminated by a, resolution dated 23 March, 1955. She was dismissed from service. She filed this suit for a declaration that the resolution of the municipality dismissing her from service was void and that she Continued to be in service of the municipality and was entitled to emoluments from the date of the resolution up to the date of the suit. The Municipality is governed by the Bombay District Muni- cipalities Act, 1901 referred to as the Act. Section 46 of the Act provides that the municipality shall make rules in respect of matters enumerated in that section. Clause (g) of section 46 empowers the municipality to frame rules regulating inter alia the period of service, the conditions of service etc. Rule 183 framed by the municipality provides that except in the case of Chief Health Officer and the Engineer every municipal officer or servant is liable to be discharged at one month's notice. Rule 183 was not invoked by the municipality in the present appeal. Therefore, rule 183 is out of consideration. Rule 143 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent what her statement was about negligence. The respondent did not make any oral statement. The respondent insisted that the charge against her should be given in writing and that she would reply in writing. The municipality did not acceds to the respondent's request. The resolution of the municipality was communicated to the respondent on the same day. The respondent handed over charge on 24 March 1955. Broadly stated, the two contentions of ;the respondent were these. First, rule 143 of the municipality was violated. She was not given a reasonable opportunity of defending herself against the charge. Second, the resolution was passed by the municipality on a day when the agenda before the municipality did not contain any subject of dismissal of the respondent. On these grounds the respondent filed a suit for a declaration that the resolution was illegal, that the status of the respondent as mid-wife in the hospital remained unaffected and that the respondent was an employee of. the municipality as before. The respondent claimed other reliefs. The contention of the municipality on the other hand was that the rules and bye-laws of the municipality were only for the guidance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servant arises in regard to the servant in the employment of the State or of other public or local authorities or-bodies created under statute. Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation 'of the provisions of the statute. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies. The courts keep the State and the public authorities within the limits of their statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements Or an grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the act-of dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's(1) case (supra). In the Indian Airlines Corporation case (supra) Sukhdeo Rai was suspended on certain charges. Later on he was found guilty of those charges in an enquiry. He was thereafter dismissed. He filed a suit alleging that the enquiry had been conducted in breach of the procedure laid down by regulations made by the Corporal under section 45 of the Act, and, therefore, the dismissal was illegal and void. The High Court held that the Corporation was under a statutory obligation to observe the procedure laid down in the regulations and gave the relief of a declaratory judgment. This Court set aside the declaration granted by the High Court. The ratio in Indian Airlines Corporation case was stated thus "The employment of the respondent not being one to an office or status and there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the respondent's employment could be exercised, could the respondent contend that he was entitled to a declaration that the termination of his employment was null and void In the Indian Airlines Corporation case (supra) regulations framed under section 45 of the Act were said by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Labour Board (1956) 3 All E.R. 939; Barber v. Manchester Hospital Board (1958) 1 All E.R. 322; Ridge v. Baldwin 1964 A.C. 41; Malloch v. Aberdeen Corporation (1971) 2 All E.R. 1278 and McClelland v. Northern Ireland General Health Services Board (1957) 1 W.L.R. 594. These decisions indicate that statutory provisions may limit the power of dismissal. Where such limitation is disregarded a dismissal may be held invalid. In this respect employment under statutory bodies differs from ordinary private employment. Where a public body is empowered to terminate employment on specified grounds or where a public body does not observe the procedure laid down by legislation e.g., improperly delegates power of dismissal to 'another body the courts have declared such dismissal from public employment to be invalid. The cases of a statutory status of an employee can be also form the subject matter of protection of the rights of an employee under the statute. In Vine's case (supra) the removal of Vine's name from the register was held to be a nullity. The statutory scheme of employment was held to confer on the worker a status. An unlawful act of the Board was found to be interferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to be in violation of rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires.. For the foregoing reasons the High Court was correct in declaring the dismissal of the respondent to be illegal and void. The appeal is therefore dismissed. In view of the fact this court directed the appellant would in any event pay the respondents' costs, the Respondent will be paid these costs. BEG, J.-The facts of the case before us, which are so clearly set out in the judgment of my learned Brother Ray, need not be repeated by me. I respectfully concur with what has fallen from my learned brother. I would, however, like to 'add some observation on two aspects of the case before us. Firstly, it was suggested, on behalf of the Municipality, that the local authority had some kind of dispensing power which could enable it to over-ride Rule 143 in the circumstances of the case before us. Rule 143 of the Sirsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Council or its presiding authority under Section 26(8) of the Act. The mode and conditions of appointment, punishment, and dismissal of officers and servants of the Municipality were meant to be regulated by rules which had to be approved by the State Government in the case of the City Municipalities and by the Commissioner in other cases before they could become binding or be altered. Bye-laws could be made on certain specified subjects only after the previous sanction of the State Government or the Commissioner, as the case may be, given to them. Neither rules nor bye-laws of the Municipality could be made or altered unilaterally by it. Both operated as laws which bound the local authority. This was clear from the provisions of Section 46 and 48 of the Act. In Yabbicon v. King(1) it was said : "The District Council could not control the law, and bye-laws properly made have the effect of laws; a public body cannot any more than private persons dispense with laws that have to be administered; they have no dis- pensing power whatever". Again, in William Feam & Sons. v. Flaxton Dural Council(2) Sankey, L. J., held that a local authority has "no power" t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was none either in Tyagi's case (supra) or in the case before us. An express' statutory provision or guarantee is not the only basis of a mandatory duty or obligation. It can be imposed either by a rule made in exercise of a statutory power or it may arise by implication when exercising a quasi-judicial functions. Even when there was no specific rule on the subject. like Rule 143 in the case before us, this Court has held that violation of implied rules of natural justice, in exercise of a quasi- judicial statutory power, results in a legally void decision. It was so held because the obligation to observe rules of natural justice was imperative in such a situation. In State, of Orissa v. Dr. (Miss) Binapani Rai ([1967] (2) S.C.R. 625), this Court said "This rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, and natural justice as it had been interpreted in the courts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile in that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable. So I shall deal first with cases of dismissal These appear to fall into three classes, dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal". The case before us undoubtedly falls within the category of cases where dismissal must be based upon a decision arrived at quasi-judicially about a wrong done by the servant. This elementary and basic procedural safeguard flows not merely from an implied rule of natural justice, but. in the case before us, it is actually embodied in a rule which 'we cannot interpret as anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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