The Commissioners of a Municipality have the power to appoint and dismiss officers and servants of the Municipality, including the power to dismiss an officer whose post carries a monthly salary of more than Rs. 20/-, and that a defect or irregularity in the dismissal procedure that does not affect the merits of the case is saved by Section 92(1)(c) of the Bengal Municipal Act, 1932.

1. THE petitioner was appointed in 1946-47 as a Tax Collector of the Municipality of Berhampore. According to the affidavit of the Chairman, his services from its inception had been unsatisfactory. A long list of commissions and omissions of the petitioner has been set out in the affidavit in opposition affirmed by the Chairman. It appears that the petitioner committed various acts for which disciplinary actions were about to be taken, but at his importunity he was excused. He was put in various departments, but he proved inefficient in all of them, until in May, 1955 he was deputed to work as a Sarkar at the Burning Ghat at Khagra. On the 22nd August, 1955 the petitioner made an application to the Chairman declining to accept the responsibility of maintaining the register of stock of fuel at the Burning Ghat. The Chairman on the same day directed the petitioner to maintain the register. A complaint has been made before me that the actual order was that "he must maintain the stock", and it is argued that this does not mean the maintenance of the stock register. There is nothing in this argument, as will appear abundantly clear by looking at the petitioner's own letter written on the occasion which deals with the maintenance, not of the stock but of the stock register. The petitioner declined to carry out the order of the Chairman. On the 23rd August the Chairman passed an order directing the petitioner to show cause why he should not be dismissed for disobeying his order of the 22nd August, 1955 asking the petitioner to maintain the register of stock. He was also suspended from the 24th August, 1955. On the 24th August, 1955 the petitioner gave a written explanation. The Chairman thereafter placed the explanation of the petitioner at a general meeting of the Commissioners, and on the 22nd November, 1955 it was decided by the Commissioners at a general meeting that the petitioner should be dismissed from service. On the 29th November, 1955 the Chairman wrote to the petitioner that he had been dismissed from service by the Commissioners at their last general meeting held on the 22nd November 1955. This application has now been made, challenging the orders of the Chairman and the Commissioners.

2. THE point made is that under Section 66 of the Bengal Municipal Act, 1932, it is not the Commissioners at a general meeting but the Chairman who is the dismissing authority. According to Section 15 of the said Act, the Municipality is really a body of Commissioners having authority over the Municipality, consisting of such numbers not more than 30 or less than 9, as the State Government may specify in the notification constituting the Municipality. It is the Commissioners who constitute a body corporate by the name of 'municipal Commissioners' of the place by reference to which the Municipality is known, having perpetual succession and a common seal. The "question of establishment" is dealt with in Section 66 of the said Act. Sub-section (1) of Section 66 lays down that the Commissioners at a meeting may, subject to the provisions of the Act and the Rules made thereunder, determine as to what officers and what servants "of the Commissioners" are necessary for the Municipality, and may fix the salaries and allowances to be paid and granted to such officers and servants. It will be noted here that the officers and servants that are to be appointed are officers and servants of the Commissioners, that being the language used in the subsection. The marginal note also is "appointment of subordinate officers". Sub-section (2) lays down that subject to the scale of establishments approved by the Commissioners under Sub-section (1), the Chairman shall have power to appoint such persons as he may think fit and from time to time remove such persons and appoint others in their place. Then there is a proviso and the relevant part thereof runs as follows:-

"a person shall not be appointed to an office carrying a monthly salary of more than Rs.