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IN THE HIGH COURT OF BOMBAY
S.J. Deshpande, J.
Bajirao Tukaram Manav.... Appellant.
Versus
Administrative Officer another.... Respondents.
Second Appeal No. 168 of 1982, decided on 30-10-1984.
Advocates appeared :
B.P. Apte, for appellant.
A.C. Agarwal, for respondents.
MUNICIPAL CORPORATION - NOTICE - SUIT - MAINTAINABILITY - PUBLIC OFFICER - CAPACITY TO SUE - BOMBAY PROVINCIAL MUNICIPAL CORPORATIONS ACT, 1949 - SECTIONS 4, 5, 481, 487 - BOMBAY PRIMARY EDUCATION ACT, 1947 - SECTIONS 2, 3, 20, 23 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 1, RULE 3, ORDER 7, RULE 1(C), SECTION 80 - GENERAL CLAUSES ACT, 1897 - SECTION 3(45).
Fact of the Case:
Plaintiff, a primary school teacher, challenged his dismissal from service by the Municipal Corporation. He served notices under section 80 of the Code of Civil Procedure and section 487 of the Bombay Provincial Municipal Corporations Act, 1949, but the trial court dismissed the suit for want of proper notice. The plaintiff appealed, and the appellate court upheld the dismissal, finding that the notice to the Municipal Commissioner was not a valid notice to the Corporation and that the plaintiff could not sue the Administrative Officer in his capacity as such.
Finding of the Court:
The court held that the notice given to the Municipal Commissioner was not a valid notice to the Corporation, as the provisions of section 487 of the Bombay Provincial Municipal Corporations Act, 1949, require a specific and definite notice. The court also held that the plaintiff could not sue the Administrative Officer in his capacity as such, as the description given in the plaint was insufficient and inadequate to answer the claim. The court further observed that the plaintiff could have challenged his dismissal under the provisions of the Bombay Primary Education Act, 1947, and that the period spent in pursuing the remedy in the wrong court could be condoned under section 14 of the Indian Limitation Act.
Issues: 1. Whether the notice given to the Municipal Commissioner was a valid notice to the Corporation? 2. Whether the plaintiff could sue the Administrative Officer in his capacity as such?
Ratio Decidendi: 1. The court held that the notice given to the Municipal Commissioner was not a valid notice to the Corporation, as the provisions of section 487 of the Bombay Provincial Municipal Corporations Act, 1949, require a specific and definite notice. The court relied on the judgment of the Privy Council in Bhagchand v. Secretary of State, which held that section 80 of the Code of Civil Procedure is express, explicit, and mandatory, and it admits of no implications or expectations. The court also noted that section 487 of the Bombay Provincial Municipal Corporations Act, 1949, enumerates the authorities that can be sued, and the Commissioner is not included in that list. 2. The court held that the plaintiff could not sue the Administrative Officer in his capacity as such, as the description given in the plaint was insufficient and inadequate to answer the claim. The court relied on the provisions of Order 7, Rule 1(c) of the Code of Civil Procedure, which requires the name, description, and place of residence of the defendant to be mentioned in the plaint. The court also noted that the Administrative Officer is a public officer, and he cannot be sued by his official name.
Final Decision: The court dismissed the appeal with no order as to costs.
2. The appellant-plaintiff was a trained primary teacher selected by the Competent Authorities. He was in the service of the Pune Municipal School Board. It was alleged by the plaintiff in his plaint that on the basis of the reports made by respondent No. 1 an inquiry held against him on certain complaints which terminated in his dismissal order, was vitiated for want of following proper procedure and following rules of Bombay Civil Services Rules. Plaintiff was dismissed from the service by a letter dated 11/12 September, 1968 informing him that from 16th September, 1968 his services stand terminated. After giving notice under section 80 of the Code of Civil Procedure, the plaintiff has challenged this dismissal order in a suit and prayed for declaration that order of his dismissal from service is illegal, wrongful and it is not binding on him.
3. Both the defendants filed their written statement denying that the suit is not maintainable in law as defendant No. 1 is not sued as a proper party to suit and it was also contended that defendant No. 2 who is Municipal Corporation is not liable to be sued at all for want of a proper notice. It was further contended in the defence that there is no proper person sued in due capacity to answer the claim. The plea that was taken in the defence was that a notice under section 62 of the Bombay Primary Education Act, 1947 was also not given by the plaintiff before filing of the suit. The plaintiff has only given notice under section 80 of the Code of Civil Procedure and under section 487 of the Bombay Provincial Municipal Corporation Act, 1949. However, these notices are irrelevant, according to the defendants and, therefore, the suit of the plaintiff is liable to be dismissed for want of proper notice. The defendants have stated that the departmental enquiry was properly conducted and the plaintiff is not entitled to get any relief and on this count the plaintiff's suit is liable to be dismissed.
4. The trial Court passed a decree in favour of the plaintiff inter alia on the finding that the enquiry was vitiated by not following proper procedure. It also held that the notice given to the first defendant-Administrative Officer and notice given to the second defendant-Municipal Corporation although served on the Commissioner are the valid notices and it ultimately found that the order of dismissal of the plaintiff is illegal and not binding on him. The trial Court, therefore, granted declaration as prayed by the plaintiff. The trial Court also granted a declaration that the plaintiff continues to be in service of defendant No. 1 and also made a decree for costs. This decree was passed on December 12, 1970 by the Civil Judge, (Senior Division, Pune).
5. The defendants-respondents filed an appeal against the said decree before the District Court, Pune and challenged the said decree in Civil Appeal No. 235 of 1971. This appeal was heard by the learned Extra Assistant Judge, Pune, who reversed the decree of the trial Court allowing the appeal of the defendants. The learned Appellate Judge confirmed the findings made in regard to the merits of the case that the enquiry was not properly conducted and proper procedure was not followed and also the factual merits of the case were not challenged in the appeal at all. The learned Judge on facts found that the decree as passed by the trial Court deserves to be confirmed on the facts as stated in his judgment in para 9. However, the learned Appellate Judge disagreed with
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