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High Court Of Madhya Pradesh
P. V. Dixit, C. J. , K. L. Pandey and N. M. Golvalkar, JJ.
PREM SHANKAR SHARMA - Appellant
Versus
COLLECTOR - Respondents
Misc. Petn. 252 Of 1961
Decided On : 02/23/1962
MUNICIPAL LAW - APPEAL - RIGHT OF APPEAL - MUNICIPAL COMMITTEE - WHETHER MUNICIPAL COMMITTEE HAS RIGHT OF APPEAL AGAINST DECISION OF SUB-DIVISIONAL OFFICER IN APPEAL PREFERRED BY OFFICER OR SERVANT OF COMMITTEE - CENTRAL PROVINCES AND BERAR MUNICIPALITIES ACT, 1922, SECTIONS 25 (6), 172, 176 (2) (VII) - RULES UNDER SECTION 25 (6) - RULES 1 AND 2.
Fact of the Case:
The petitioner, a Head-Master of a school employed by the Municipal Committee, Khandwa, was removed from service by a resolution of the Committee. The resolution was set aside in appeal by the Sub-Divisional Officer, Khandwa, but restored by the Collector, Khandwa, in an appeal preferred by the Municipal Committee. The petitioner challenged the Collector's decision by way of a writ of certiorari, contending that the appeal preferred before him was incompetent.
Finding of the Court:
The court held that the Municipal Committee had a right of appeal against the decision of the Sub-Divisional Officer in an appeal preferred by an officer or servant of the Committee. The court interpreted Section 25 (6) of the Central Provinces and Berar Municipalities Act, 1922, as only empowering the Government to prescribe the classes or grades of officers and servants who shall have the right of appeal, and not as conferring a right of appeal on the Committee. However, the court found that the rules framed under Section 176 (2) (vii) of the Act, which dealt with the appealability of decisions of a municipal committee, gave a right of second appeal to the Municipal Committee against a decision of the Sub-Divisional Officer.
Issues: 1. Whether the Municipal Committee had a right of appeal against the decision of the Sub-Divisional Officer in an appeal preferred by an officer or servant of the Committee? 2. Whether the rules framed under Section 25 (6) of the Central Provinces and Berar Municipalities Act, 1922, conferred a right of appeal on the Municipal Committee?
Ratio Decidendi: The court held that the rules framed under Section 176 (2) (vii) of the Central Provinces and Berar Municipalities Act, 1922, which dealt with the appealability of decisions of a municipal committee, gave a right of second appeal to the Municipal Committee against a decision of the Sub-Divisional Officer. The court interpreted Section 25 (6) of the Act as only empowering the Government to prescribe the classes or grades of officers and servants who shall have the right of appeal, and not as conferring a right of appeal on the Committee. However, the court found that the rules framed under Section 176 (2) (vii) of the Act, which dealt with the appealability of decisions of a municipal committee, gave a right of second appeal to the Municipal Committee against a decision of the Sub-Divisional Officer.
Final Decision: The court dismissed the petition, holding that the appeal preferred by the Municipal Committee before the Collector, Khandwa, was competent.
( 1 ) THIS application for the issue of a writ of certiorari is by a person, who was employed as Head-Master of a school by the Municipal Committee, Khandwa, and who has been removed from service by a resolution dated the 27th September 1960 of the Committee. The resolution of the Committee was set aside in appeal by the Sub-Divisional Officer, Khandwa. It was, however, restored by the Collector, Khandwa, in an appeal preferred by the Municipal Committee against the decision of the Sub-Divisional Officer. The petitioner prays that the decision of the Collector be quashed by the issue of a writ of certiorari as the appeal preferred before him was incompetent.
( 2 ) THE question raised as to the competency of the appeal preferred by the Municipal Committee before the Collector is one of construction of sections 25 (6), 172 and 176 (2) (vii) of the Central Provinces and Berar Municipalities Act, 1922, and of the rules framed by the Government as regards appeals from any decision of the Committee dismissing or removing a municipal employee or inflicting any punishment on him. The question being of some importance and of frequent occurrence, the petition has been referred to this Bench for decision.
( 3 ) THE relevant provisions of the Act, namely, Sections 25 (6), 172 and 176 (2) (vii) are as follows:
"25 (6 ). The Provincial Government may prescribe the classes or grades of officers and servants who shall have the right of appeal except in the case of dismissal under Sub-section (5) from any decision of the committee inflicting any departmental punishment other than censure. "
"172. An appeal shall not lie against any order made under this Act except where express provision for appeal from such order has been made in the Act or any rule made thereunder. "
"176. (1) In addition to any power specially conferred by this Act, the Provincial Government may make rules generally for the purpose of carrying into effect the provisions of this Act, 2. In particular, and without prejudice to the generality of the foregoing power, the Provincial Government may make rules (vii) as to cases in which, and the authorities to whom and the conditions subject to which, orders and decisions given under any provisions of this Act, and not expressly provided for as regards appeal, shall be appealable. " The rules as regards appeals (page 182 of the Madhya Pradesh Municipal, Manual) befar the heading "rules under Section 25 (6)--Rules as to the classes and grades of officers and servants who shall nave the right of appeal and the authorities to whom and the conditions subject to which the appeal shall He. " The first rule is negatived in terms and specifies the circumstances in which no officer or servant of a municipal committee shall have a right of appeal. Rule 2 then says :"2. (i) Subject to the provisions contained in Rule 1, every officer or servant, other than an officer of the classes specified in or under the first proviso to Sub-section (1) of Section 25, drawing Rs. 20 per mensem or above, shall have a right o? appeal against the order of the Committee to the Sub-Divisional Officer. The Sub-Divisional Officer's order shall be final in the case of an employee drawing less than Rs. 50/- per mensem, and shall not be subject to revision. (ii) A second appeal shall lie to the Deputy Commissioner against the order of the Sub-Divisional Officer under Sub-rule (i) in the case of an employee drawing Rs- 50/- per mensem or over. Except as otherwise provided in Rule 3, the Deputy Commissioner's order shall be final. (iii) Subject to the provisions contained in Rule 1, an officer of the classes specified in or under the first proviso to Subsection (1) of Section 25 shall have a right of appeal against the orders of the Committee to the Deputy Commissioner. A second appeal shall lie to the State Government, and the orders of the State Government shall be final. "
( 4 ) IT was argued by Shri Sen, learned counsel appearing for the petitioner Prem
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