Judgment

RAY, J. (for himself and on behalf of SIKRI, C.J.I. and PALEKAR and DWIVEDI, JJ.) :- The question which falls for determination in this appeal by special leave is whether the respondent is entitled to a declaration in a suit filed by her that her dismissal by the appellant Municipality referred to as the Municipality was illegal and void.

2. 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.

3. The Municipality is governed by the Bombay District Municipalities 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.

4. 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.

5. Rule 143 of the Municipality provides two things, First, no officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his defence. Any written statement tendered shall be recorded and written order shall be passed thereon. Second, every order of dismissal or confirming dismissal shall be in writing and shall specify the charge or charges brought, the defence and the reasons for the order.

6. Some time in February 1955 one Nayak brought his wife Nagamma to Pandit Cottage Hospital administered by the Municipality. Nagamma was admitted to the maternity section. On 15 February 1955 Nagamma died.

7. Nagamma s husband complained to the Municipality against the negligence of the staff of the hospital as the cause for the death of Nagamma. The Civil Surgeon held an enquiry. He gave a finding that the death of Nagamma was not due to the negligence of the staff. There was public agitation for a fresh enquiry.

8. On 7 March 1955 the Municipality passed a resolution appointing a committee of four persons to hold an enquiry into the cause of the death of Nagamma and the alleged negligence of the staff of the hospital. The committee recorded the statements of several persons. The Committee submitted its report to the Municipal Council.

9. On 23 March 1955 a meeting of the Municipal Council was held. The respondent alleged that though the consideration of the report of the sub-committee and the taking of a decision thereon were not included in the agenda of that meeting, yet the President of the Council sent a notice to the respondent. The communication to the respondent was to the effect that it had come to the notice of the President that the death of Nagamma was due to the negligence of the respondent, and, therefore, she was to appear before the Municipal Council at 4 p. m. on 23 March 1955 and give her explanation. The respondent received a notice on 23 March, 1955 at about 10.30 a. m. She sent her reply denying her negligence. The respondent also stated that if it was necessary for her to explain anything she should be asked questions in writing and she would give her answers in writing.

10. The respondent did not appear before the Municipal Council at 4 p.m. The respondent came to the Municipal hall at about 6 p.m. By that time, the Municipal Council had passed a resolution dismissing the respondent from service. The President asked the respondent what her statement was about negligence. The respondent did not make any oral statement. The respondent insisted that the charge