Shrimati Hira Devi And Others vs District Board, Shahjahanpur on 20 October, 1952
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 114 of 1951
Decision Date: 20 October 1952
Coram: Natwarlal H. Bhagwati, Mehr Chand Mahajan, N. Chandrasekhara Aiyar
In the case titled Shrimati Hira Devi and Others versus District Board, Shahjahanpur, decided on 20 October 1952, the Supreme Court of India heard arguments before a bench comprising Natwarlal H. Bhagwati, Mehr Chand Mahajan and N. Chandrasekhara Aiyar. The petitioners were Shrimati Hira Devi and other individuals, and the respondent was the District Board of Shahjahanpur. The judgment was delivered on 20 October 1952, and the decision is reported in the law reports at 1952 AIR 362 and 1952 SCR 1122, with later citations appearing in R 1959 SC 480 (6), RF 1970 SC 140 (6), R 1972 SC 2284 (19) and R 1992 SC 96 (14). The legislative provision under consideration was the Uttar Pradesh District Boards Act of 1922 (Act X of 1922), specifically sections 71 and 90, dealing with the dismissal and suspension of a district board secretary and the validity of such actions pending an appeal to the State Government.
The headnote of the judgment explained that section 71 of the Uttar Pradesh District Boards Act, as amended in 1933, stipulated that a resolution of the Board for dismissing its secretary could not take effect until either a period of one month had elapsed or the State Government had passed orders on any appeal the secretary might prefer. The Board in this case had passed a resolution not only to dismiss its secretary but also to suspend him until the question of his dismissal, as contemplated under section 71, could be decided on any appeal that the secretary might have filed. The Court held that, under section 90 of the Act, a secretary could be suspended only as a form of punishment, pending an inquiry, or pending the orders of an authority whose sanction was necessary for his dismissal. The wording “pending the orders of any authority whose sanction is necessary for his dismissal” could not be interpreted to cover a suspension of the type adopted here; consequently, the resolution effecting the suspension was deemed ultra vires. The Court further observed that, because the Board was created by statute, its powers of dismissal and suspension were strictly defined and limited by sections 71 and 90 of the Act. It would therefore be improper to rely on any general or implied powers arising from master-servant law or from section 16 of the Uttar Pradesh General Clauses Act. Even under section 16, powers to suspend or dismiss an appointed person operate only “unless a different intention appears,” and such a different intention was expressly found in sections 71 and 90, which codified the Board’s authority.
The formal judgment was recorded under the civil appellate jurisdiction as Civil Appeal No. 114 of 1951. The appeal arose from the judgment and decree dated 5 September 1947 of the High Court of Judicature at Allahabad, delivered by Justices Waliullah and Sapru, which itself was an appeal (First Appeal No. 516 of 1942) from a judgment and decree dated 3 October 1942 of the Court of the Civil Judge of Shahjahanpur in Original Suit No. 10 of 1941. Counsel for the appellants was Achhru Ram, assisted by N. C. Sen, while counsel for the respondents was C. K. Daphtary, assisted by K. B. Asthana.
On 20 October 1952 the judgment was delivered by Justice Bhagwati. The appeal before the Court was filed by the heirs and legal representatives of the deceased plaintiff. They challenged the order of the Allahabad High Court, which had allowed the defendants’ appeal against a decree of the Civil Judge of Shahjahanpur that had granted the plaintiff’s claim in part. The plaintiff, Kailashi Nath Kapoor, had been appointed Secretary of the Shahjahanpur District Board in 1924. In 1929 the Board also gave him additional responsibilities for carrying out assessment work. His performance in those duties displeased several members of the Board, and on 9 November 1939 six Board members moved a resolution asking the Chairman to call a special meeting to consider whether the plaintiff should be dismissed.
The Board convened a special meeting on 17 December 1939. During that meeting twelve charges were framed against the plaintiff and he was asked to provide his answers to each charge. Subsequently another special meeting was held on 20 January 1940, but the resolution proposing his dismissal could not be considered because the meeting lacked a quorum, and it was therefore postponed to 29 January 1940. At the adjourned meeting on that date twenty-five of the twenty-seven Board members were present. The Board examined the charges and found eleven of the twelve to be proved. Consequently the Board passed two resolutions: one ordering the plaintiff’s dismissal, and the other suspending him pending a decision on the dismissal under section 71 of the Uttar Pradesh District Boards Act, 1922, with the provision that the plaintiff could appeal the dismissal to the Government.
The plaintiff exercised his right to appeal the dismissal resolution to the Government, but the Government dismissed the appeal on 19 December 1940. Following that refusal, the plaintiff instituted a suit before the Civil Judge of Shahjahanpur, the suit from which the present appeal arises. In the suit the plaintiff sought a declaration that the two resolutions of 29 January 1940 were illegal and ultra vires the Board, that he remained the Secretary and Assessing Officer of the Board, and that an injunction should be granted to prevent the Board from obstructing him in the performance of those duties. He also claimed arrears of salary with interest, contribution to his provident fund, and alternatively sought damages and compensation for the alleged illegal dismissal and suspension, together with costs.
The defendants, who were the Shahjahanpur District Board, contended that both resolutions were valid and binding on the plaintiff and that he was not entitled to any of the reliefs he claimed.
The learned trial judge determined that the two resolutions adopted by the Board on 29 January 1940 had been correctly passed and that the procedures followed in adopting them were free from any irregularity. He concluded that the resolution effecting the plaintiff’s dismissal was valid and therefore binding on the plaintiff, whereas the resolution imposing suspension on the plaintiff was not legal. Accordingly, the trial judge decreed that the plaintiff was entitled to recover the arrears of salary and the contribution to his provident fund for the period of suspension, and he awarded the plaintiff a sum of Rs 6,629-4-0 together with proportionate costs. All other parts of the plaintiff’s claim were dismissed. The defendants appealed this decree to the High Court, and the plaintiff filed cross-objections concerning the portion of his claim that had been rejected. During the pendency of the appeal the plaintiff died, and his widow and four sons were entered as his heirs and legal representatives. The High Court affirmed the trial judge’s finding that there was no irregularity, impropriety, or illegality in the procedure adopted before and during the Board meeting when the two resolutions were considered and passed. However, the High Court disagreed with the trial judge’s conclusion that the suspension resolution was ultra vires; it held that the suspension resolution was also valid and binding on the plaintiff. Consequently, the High Court dismissed the plaintiff’s suit with costs throughout and also dismissed the plaintiff’s cross-objections, ordering costs against the plaintiff’s estate.
Subsequently, the heirs and legal representatives of the deceased plaintiff obtained leave to appeal to the Federal Court, and the appeal was admitted on 5 November 1948. Both courts below had concluded that the procedures surrounding the adoption of the two resolutions were free from any irregularity, impropriety, or illegality. Therefore, the sole question that remained for the Federal Court to consider was whether the resolution suspending the plaintiff was valid and binding, that is, whether the Board possessed the authority to pass a suspension after it had already passed a dismissal resolution under section 71 of the Act. Section 71 of the Act provides that a board may, by a special resolution, punish or dismiss its secretary, provided first that such a resolution is passed by a vote of not less than two-thirds of the total number of board members then serving, and provided second that the secretary has a right to appeal to the State Government within one month of receiving notice of the resolution, and that the resolution shall not take effect until either the one-month period has expired or the State Government has passed orders on any appeal preferred by the secretary.
The Court observed that the provision in Section 71 required that a board could dismiss its secretary only after a special resolution had been passed, and that the resolution would not become effective until either the secretary’s one-month appeal period had elapsed without an appeal or the State Government had issued orders on any appeal the secretary might have filed. It was noted at this point that Section 71 had been amended by the Uttar Pradesh Act I of 1933. The original wording of Section 71 read that a board could punish or dismiss its secretary if the resolution was approved either by a two-thirds majority of the total members or by a half-majority of the total members, and that such a resolution had to be sanctioned by the Local Government. The Court pointed out that the original section therefore contained a requirement for Local Government sanction in certain cases.
The Court then explained that the amended Section 71 no longer contained any reference to Local Government sanction. Under the amended provision, a resolution for dismissal must be passed by a vote of not less than two-thirds of the total members of the Board. Moreover, the resolution would not take effect until the one-month period for the secretary’s right of appeal had expired, or until the Government had passed orders on any appeal that the secretary might have preferred within that period. Accordingly, there was no longer any requirement for a separate sanction by the Local Government; the sole condition for the resolution to become operative was the expiry of the one-month appeal period or the Government’s final order on the appeal. If the one-month period ended without the secretary filing an appeal, or if the Government disposed of an appeal, the dismissal resolution became effective without any further sanction.
Turning to the power of suspension, the Court referred to Section 90 of the Act, which regulated suspension in two categories: suspension as a punishment and suspension pending inquiry or orders. The section provided that where the Act conferred a general power to punish, that power implicitly included the authority to suspend as punishment for a period not exceeding three months. It further provided that where the Act conferred a power of dismissal—whether or not that power required sanction by another authority—that power implicitly included the authority to suspend any person against whom dismissal might be exercised, either pending an inquiry into his conduct or pending the orders of any authority whose sanction was necessary for the dismissal. Finally, the section stated that when suspension was ordered pending inquiry or orders and the officer was later reinstated, the authority that ordered the suspension could, at its discretion, determine whether any allowance would be paid during the suspension period, and if so, the amount of such allowance, unless an order to the contrary was made.
The Court explained that, except where an explicit order states otherwise, a person who is suspended under section 90 is entitled to receive the full salary that he would have earned if he had not been suspended. Section 90 divides suspension into two distinct categories: first, suspension imposed as a punishment; and second, suspension that is ordered pending an inquiry or pending further orders. In the second category, the statute allows only the power to suspend any individual against whom the power of dismissal might be exercised, either while an enquiry into that person’s conduct is underway or while the authority whose sanction is required for the dismissal is yet to give its order. The power to suspend pending an enquiry may be exercised only after an enquiry has actually been initiated and before any dismissal order is issued as a result of that enquiry. Similarly, the power to suspend pending the orders of the sanctioning authority may be used only after a dismissal order has been made, but the dismissal itself cannot take effect until the required authority gives its sanction.
The Court noted that the provision does not envisage any other situation, such as a case where dismissal does not require any external sanction but must nevertheless await the expiry of a prescribed period after the dismissal order or the outcome of an appeal that the officer may prefer to the Government within a stipulated time. The Court emphasized that a decision by the authority to which an appeal is addressed is not the same thing as a sanction by that authority. By examining subsection (4) of section 90, the Court clarified that the authority which orders the suspension retains the discretion to decide whether the suspended officer will receive any allowance, and if so, what amount, during the period of suspension, provided the suspension was ordered pending an inquiry or pending orders and the officer is eventually reinstated. However, the statute contains no provision for granting any allowance where a dismissed officer is also placed under suspension for a period that must elapse before his appeal is time-barred or before the Government decides on the appeal. Such a scenario is not covered by subsection (4), leaving the officer without any remedy and without any allowance from the authority that ordered his suspension during that time. Consequently, the Court held that it was essential to consider the provisions of sections 71 and 90 together to determine whether the Board was competent to adopt a resolution suspending the plaintiff after it had already passed a dismissal resolution on 29 January 1940, based on a proper construction of those sections.
The trial court, after examining the statutory language, concluded that the provisions of section 90 of the Act were exhaustive; consequently, it held that no category of suspension other than those expressly listed could be ordered, and therefore the resolution for the plaintiff’s suspension exceeded the authority of the Board. On appeal, the High Court recognized the difficulty presented by this situation. It observed that, as originally framed, section 90 was closely aligned with the former section 71 of the Act, which required that a dismissal resolution passed by a majority of at least one-half of the total members receive sanction from the Local Government, and that such sanction was expressly provided in that provision. However, when the old section 71 was amended by the Uttar Pradesh Act I of 1933, the sanction requirement was removed and a new condition was introduced, stipulating that a dismissal resolution would not take effect until either a one-month period elapsed—allowing the secretary to file an appeal to the Government—or until the Government issued orders on any appeal that the secretary might prefer. The High Court noted that this amendment to the former section 71 inadvertently omitted any reference to the suspension power embodied in section 90, and that no corresponding amendment was made to section 90, sub-section (1)(b), sub-section (3) or sub-section (4) to bring those provisions into harmony with the revised section 71. In response, the High Court endeavoured to adopt what it described as a liberal construction of sections 71 and 90, attempting to read into the suspension power of section 90 a continued authority to suspend the officer during the interval in which the secretary pursued an appeal to the Government and the Government rendered a decision on that appeal. To support this interpretation, the High Court also relied on section 16 of the Uttar Pradesh General Clauses Act of 1904, which provides that, unless a different intention appears, the authority empowered to make an appointment likewise possesses the power to suspend or dismiss any person appointed in the exercise of that authority. The High Court concluded that neither the wording of section 71 nor that of section 90 expressly excluded or negated the general power of suspension, that is, suspension pending the issuance of orders on an appeal. Accordingly, the High Court upheld the resolution passed by the Board on 29 January 1940 to suspend the plaintiff. The Court, however, could not agree with the reasoning adopted by the High Court. It observed that the defendants were a statutory Board whose powers had to be derived strictly from the language of the statute itself. The powers of dismissal and suspension conferred upon the Board were defined and limited by the express terms of sections 71 and 90 of the Act, and therefore could not be expanded by invoking general or implied powers under the master-servant relationship or under section 16 of the Uttar Pradesh General Clauses Act. Even under section 16, the authority to suspend or dismiss operates only “unless a different intention appears,” and such a different intention is clearly manifested in the specific enactments of sections 71 and 90, which codify the Board’s powers. Consequently, extending the Board’s suspension authority beyond the express statutory grant, as the High Court attempted, would represent an unwarranted enlargement of its powers.
The Court observed that the Board’s authority to dismiss and suspend employees was set out expressly in sections 71 and 90 of the Act, and therefore any power of the Board had to be derived strictly from the wording of those provisions. It held that where the legislation granted specific powers to the Board, it would not be proper to resort to broad or implied powers that might be found in the law of master and servant or under section 16 of the U.P. General Clauses Act. Even under section 16, the power to suspend or dismiss a person operated only “unless a different intention appears,” and the Court found that a different intention was indeed expressed in sections 71 and 90, which already codified the Board’s dismissal and suspension powers. Consequently, the Court said that it would be an unwarranted extension of the Board’s authority to read the phrase “the orders of any authority whose sanction is necessary” in section 90(3) as granting the type of suspension that the High Court had imagined.
The Court further noted that when the Legislature amended the older section 71, it failed to revise section 90 to bring it into conformity with the amendment. However, the Court stressed that such a gap could not be filled by the liberal construction the High Court attempted to apply to the expression “orders of any authority whose sanction is necessary.” While the Court acknowledged its duty to attempt to harmonise the various provisions of an Act, it affirmed that this duty did not extend to stretching the Legislature’s words in order to supply missing provisions. By reading sections 71 and 90 together, the Court concluded that the suspension power the Board exercised on 29 January 1940 was not the power contemplated by section 90(3).
The Court explained that if the plaintiff let the one-month period prescribed in the resolution lapse without filing an appeal to the Government, or if the Government subsequently issued an order dismissing any appeal, the dismissal resolution would become effective without any government sanction. Accordingly, the words “pending the orders of any authority whose sanction is necessary for his dismissal” in section 90(3) did not apply to the facts before the Court and could not support the kind of suspension the Board imposed on that date. On this basis, the Court held that the resolution for suspension dated 29 January 1940 exceeded the Board’s statutory powers and was ultra vires. The Court therefore concluded that the resolution was invalid, and it declared that it had accordingly come to this determination.
The Court held that the High Court’s finding that the Board’s resolution for suspension dated 29 January 1940 was valid and binding on the plaintiff was erroneous, and affirmed that the trial Court’s conclusion on the matter was correct. The learned Solicitor General appearing for the defendants informed the Court that the amount of Rs 6,629-4-0 together with the proportionate costs awarded by the trial Court to the plaintiff had already been paid to the plaintiff. Consequently, there was nothing left for the heirs and legal representatives of the plaintiff to recover, even if the decree of the trial Court were to be restored by this judgment. The only issue that therefore remained was the question of costs of the present appeal. The trial Court had earlier awarded proportionate costs to the plaintiff. The High Court, in reversing that judgment, dismissed the plaintiff’s suit with costs throughout, including the costs of the cross-objections filed by the plaintiff. The heirs and legal representatives of the plaintiff instituted the present appeal concerning the whole claim as set out in the plaint. That claim could not be sustained before this Court, and the appellants succeeded only in respect of the portion of the claim that the trial Court had allowed. If an order for proportionate costs of this appeal were made, it would inevitably prejudice the heirs and legal representatives of the plaintiff. The Court therefore did not disturb the order made by the High Court regarding the costs of the earlier appeal. No arguments were urged before this Court on any point other than the contention that the suspension resolution was ultra vires. In view of the circumstances, the Court considered that the proper order on costs of this appeal was that each party should bear its own costs. Accordingly, the appeal was allowed, the decree of the trial Court was restored, and each party was directed to pay its own costs of this appeal. Appeal allowed. Agent for the appellants: C.P. Lal. Agent for the respondent: S.S. Shukla.