# S. R. TEWARI v. DISTRICT BOARD AGRA AND ANOTHER

- **Citation:** [1964] 3 S.C.R. 55
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** B. P. Sinha C. J, J. C. Srah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-r-tewari-v-district-board-agra-and-another-3005
- **Pages:** 17

## Headnote

56
District Board-Engineer under the Bowrd --Termination
of aervice-Power of Board- Statutory Body-Disciplinary
action-Writ Petition-High Oonrt's power to interfere-U.P,
District Boarda Act, 1922(U.P. X of 1922), 88. 82, 84-Didricl
Board Rulea, r. JA(iv)-Oonstitution of India, Art. 226.
The appellant was an Engineer of the District Board.
The Board resolved to terminate the services of the appellant
after giving him salary for three months in lieu of notice and
served a notice upon him. The appellant preferred an appeal
to the State Government against the action of the Board but it
was dismissed. He filed a wnt petition before the High Court
but it was also dismissed.
The appellant contended that
the B0ard was
not
invested by
the District Boards Act, 1922, with any power
to determine the employment of a servant of the Board
otherwise than by way of dismissal as punishment. The respondents contended that, the appellant not being a civil servant
of the State, no petition was maintainable before the High
Court for a declaration that his employment not lawfully
terminated.
Held that the High Court has, in a writ petition under
Art. 226 of the Constitution, power to declare invalid the act
of a statutozy body, if by doing the act the body has acted in
breach of a mandatory obligation imposed by statute, even if
by making the declaration the body is compelled to do something which it does not desire to do. The High Court had
jurisdiction to declare that the employment of the appellant
was not lawfully terminated, though it may be exercised only
when the court is satisfied that departure is called for from the
rule that a contract of servic• will not ordinarily be specifically
enforced.
Municipal Board, Shahjahanpur v. Sardar Sukha Singh
t. L. R. (1937) All. 434, Ram Babu Rathaur v. Diviaional
J!JfJ
.l;il 15
1963
S.R. Temari
••
District Boiird
Air•
Shoh J.
56
SUPREME COURT REPORTS [1964] VOL.
Manager, Life Insurance Oorporation of lmlirJ, A. I. R. (1961)
All. 502, Dr. 8. B. Dutt v. Univer.ity of Delhi, (1959]
S. C. R. 1236 and Vina v.
National Dock L'Zbour BorJra,
L. R. [1957] A. C. 488, referred to.
Held further tha< s. 82 of the Act, which gave the Board
power to appoint the Engineer also gave it the power to
terminate the appointment.
Power ta appoint ordinarily
carries with it the power to
terminate the
appointment.
The procedure
for
termination
of
service
was
laid
down by r. 3A(iv) of the District Board Rules.
The employ·
ment was terminated by giving a notice in accordance with
this rule and the authority competent to terminate it was the
authority competent to appoint the succe,.or of the servant
conocrned. The dismissal of a servant of the Board has to be
in accordance with the mies made under s. 34 which provided
for giving a rea•onable opportunity and a show cau•e notice.
This procedure is not applic•ble to termination of service.
Dismissal means determination of employment as a
method of punishment for misconduct or other cause.
CrvrL APPillLLATE JuRISDIOTION : Civil Appeal
No. 304 of 1962.
Appeal from !he judgment and decree dated
December l, 1958, of the Allahabad High Court
in Civil Misc.
Writ No. 270 of 1956.
S. T. Desai and J.P. Goyal, for the appellant.
0. B. Agarwala and O. P. Lal, for respondent
No. I.
K. S. Hajela and 0. P. Lal, for respondent
No. 2.
1963. April 15.
The Judgment of the Court
was delivered by
SHAH].-. On October 18, 1954, the District
Board, Agra resolved to terminate after giving salary
for three months in lieu of notice, the employment
of the appellant who held the office of Engineer
1.1nder the .floard, and intimation in that behalf w~
...
, '.
3 S.C.R.
SUPREME COURT REPORTS
57
given to him.
An appeal perferred by the appellant to the Government of U. P. against the order
terminating his employment was
dismissed on
December 5, 1956. The appellant then submitted
a petition to the High Court of Allahabad
under Art. 226 of the Constitution for a writ in
the nature of certiorari quashing
the resolu

## Text

3 S.C.R.
SUPREME COURT REPORTS
S. R. TEWARI
v.
DISTRICT BOARD AGRA AND ANOTHER
(B. P. SINHA C. J., J. C. SRAH and
N. RAJAGOPALA AYYANGAR JJ.)
56
District Board-Engineer under the Bowrd --Termination
of aervice-Power of Board- Statutory Body-Disciplinary
action-Writ Petition-High Oonrt's power to interfere-U.P,
District Boarda Act, 1922(U.P. X of 1922), 88. 82, 84-Didricl
Board Rulea, r. JA(iv)-Oonstitution of India, Art. 226.
The appellant was an Engineer of the District Board.
The Board resolved to terminate the services of the appellant
after giving him salary for three months in lieu of notice and
served a notice upon him. The appellant preferred an appeal
to the State Government against the action of the Board but it
was dismissed. He filed a wnt petition before the High Court
but it was also dismissed.
The appellant contended that
the B0ard was
not
invested by
the District Boards Act, 1922, with any power
to determine the employment of a servant of the Board
otherwise than by way of dismissal as punishment. The respondents contended that, the appellant not being a civil servant
of the State, no petition was maintainable before the High
Court for a declaration that his employment not lawfully
terminated.
Held that the High Court has, in a writ petition under
Art. 226 of the Constitution, power to declare invalid the act
of a statutozy body, if by doing the act the body has acted in
breach of a mandatory obligation imposed by statute, even if
by making the declaration the body is compelled to do something which it does not desire to do. The High Court had
jurisdiction to declare that the employment of the appellant
was not lawfully terminated, though it may be exercised only
when the court is satisfied that departure is called for from the
rule that a contract of servic• will not ordinarily be specifically
enforced.
Municipal Board, Shahjahanpur v. Sardar Sukha Singh
t. L. R. (1937) All. 434, Ram Babu Rathaur v. Diviaional
J!JfJ
.l;il 15
1963
S.R. Temari
••
District Boiird
Air•
Shoh J.
56
SUPREME COURT REPORTS [1964] VOL.
Manager, Life Insurance Oorporation of lmlirJ, A. I. R. (1961)
All. 502, Dr. 8. B. Dutt v. Univer.ity of Delhi, (1959]
S. C. R. 1236 and Vina v.
National Dock L'Zbour BorJra,
L. R. [1957] A. C. 488, referred to.
Held further tha< s. 82 of the Act, which gave the Board
power to appoint the Engineer also gave it the power to
terminate the appointment.
Power ta appoint ordinarily
carries with it the power to
terminate the
appointment.
The procedure
for
termination
of
service
was
laid
down by r. 3A(iv) of the District Board Rules.
The employ·
ment was terminated by giving a notice in accordance with
this rule and the authority competent to terminate it was the
authority competent to appoint the succe,.or of the servant
conocrned. The dismissal of a servant of the Board has to be
in accordance with the mies made under s. 34 which provided
for giving a rea•onable opportunity and a show cau•e notice.
This procedure is not applic•ble to termination of service.
Dismissal means determination of employment as a
method of punishment for misconduct or other cause.
CrvrL APPillLLATE JuRISDIOTION : Civil Appeal
No. 304 of 1962.
Appeal from !he judgment and decree dated
December l, 1958, of the Allahabad High Court
in Civil Misc.
Writ No. 270 of 1956.
S. T. Desai and J.P. Goyal, for the appellant.
0. B. Agarwala and O. P. Lal, for respondent
No. I.
K. S. Hajela and 0. P. Lal, for respondent
No. 2.
1963. April 15.
The Judgment of the Court
was delivered by
SHAH].-. On October 18, 1954, the District
Board, Agra resolved to terminate after giving salary
for three months in lieu of notice, the employment
of the appellant who held the office of Engineer
1.1nder the .floard, and intimation in that behalf w~
...
, '.
3 S.C.R.
SUPREME COURT REPORTS
57
given to him.
An appeal perferred by the appellant to the Government of U. P. against the order
terminating his employment was
dismissed on
December 5, 1956. The appellant then submitted
a petition to the High Court of Allahabad
under Art. 226 of the Constitution for a writ in
the nature of certiorari quashing
the resolution
passed by the Board on October 18, 1954, and the
order dated December 5, 1956, passed by the State
of U.P. dismissing the appellant's appeal, and a
writ in the nature of mandamus commanding the
Board and the State of U. P. to treat the appellant
as the lawfully appointed Engineer of the District
Board and not to give effect to the resolution terminating the services of the appellant passed by the
Board on October 18, 1954.
The appellant averred that he had as Engineer
of the Board rendered "flawless service" but a
member of the Board named Tota Ram felt 'annoyed
with' him 'for reasons which had nothing to do with
the proper discharge of his duties as an Engineer',
and the President of the District Board was not
"very happy with the" appellant for
"reason~ best
known to" the President, that "he had spent the
best part of his life in the service of the District
Board and even though he has been honest and
faithfull in the discharge of his duties the District
Board, has capriciously and without any justification
terminated" his services, and therefore the resolution
of the Board terminating his services was invalid.
On behalf of the Board an affidavit was filed
stating that the appellant was guilty of "negligence,
and unfaithfulness", and he was censured, his annual
increments were stopped, and that he was once
dismissed and thereafter the resolution of dismissal
was rescinded. The affidavit catalogued serveral
incidents in support of this case, and urged that the
ijoard being competent had justifiably terminated
1,63
S.R. T1w•ri
••
District Board
A:r•
SM.h J.
1963
S.R- Tewari
••
Diitrict Board
Azra
SluihJ.
58
SUPREME COURT REPORTS [1964] VOL.
the appellant's services, and the validity of the resolution terminating his services was not liable to
be challenged. The State of U. P. submitted that
the services of the appellant were terminated in
accordance with rule 3 A(iv) of the District Board
Manual, that no appeal lay against the resolution
terminating . the services of the appellant under
rule 3 A (iv) of the Rules regarding Officers and
Servants o( District Boards and that the order of
the State Government rejecting the appeal
was
- correct.
The High Court dismissed the petition holding
that under the fourth proviso to s. 82 of the District
Boards Act, 1922, the Board had the power to appoint
and to determine the employment of an Engineer of
the Board and unless the determination was by way of -
punishment it could be mad.e in the manner provided by rule 3A cl. (iv) after giving notice_ of three
months or a sum equal to salary for three months in
lieu of notice. The Court rejected the contention
of the appellant that the power to dismiss conferred
by the fourth proviso to s.82, could only be exercised
for punishing a delinquent servant of the Board and
after following the procedure prescribed in that
behalf, and that apart from the power to dismiss,
there was no power vested under the Act to determine employment and consequently the provisions
of rule 3 A cl. (iv) were ineffective.
Against the
order passed by the High Court this appeal is preferred with certificate granted by the High Court.
Counsel for the Board contended in limine that
the appellant not being a rnern her of the civil service
of the State was not entitled to the protection of Art.
311 of the Constitution, and tl;c relief claimed by
him being in substance one for an order restoring him
to the service of the Board. from which he was
dismissed, the jurisdiction of the High Court even
1.lnder Art. 226 of the Constitution was restri<;ted by
<
.... ''
-
3 S.C.R.
SUPREME COURT REPORTS
59
s. 21 (b) of the Specific Relief Act and that the
relief claimed by him cannot in any event be given,
the remedy, if any, of the appellant being to claim
damages by suit for wrongful termination of employment and not a petition for a writ declaring the
termination. ·of
employment unlawful,
and a
consequential order for restoration
in service.
Reliance was placed in support of this plea upon
Municipal Board,
Shahjahanpur v. Sardar Sukha
Singh (1),
Ram Babu Rathaur v. Divisional
Manager.
Life Insurance Corporation of India (')
and Dr. S. B. Dutt v. University of Delhi ('). In
our judgment none of these cases can be used to
support the view that the High Court has no power
to declare the statutory obligations of a statutory
body. Under the common law the Court will not
ordinarily force an employer to retain the services of
an employee whom he no ldnger wishes to employ.
But this rule is subject to certain well recognized
exceptions. It is open to the Courts in an appropriate case to declare that a public servant who i~
dismissed from service in contravention of Art. 311
continues to remain in service, even though by so
doing the
St~te is in effect forced to continue to
employ the servant whom it does not desire to
employ. Similarly under the industrial law, jurisdiction of the labour and industrial tribunals to compel
the employer to employ a worker, whom he does not
desire to employ, is recognized. The Courts are also
invested with the power to declare invalid the act
of a statutory body, if by doing the act the body has
acted in breach of a mandatory obligation imposed
by statute, even if by making the declaration the
body is compelled to do something which it does not
desire to do.
The decision of the Allahabad High Court in
Municipal Board, Shahjahanpur v. Sukha Singh('),
enunciat~s the law somewhat broadly when it states
that the Court has no jurisdiction to
force an
(I} 1,L.R, (lg37) All. 354..
12}}. A,I,R, (1961) AU. 502,
\S) (.l9$9l S,c,B., 2SI.
196J
S. R. T1wari
v.
District Board
Agra
Sh•h J.
1963
$,/f,, T1w•ri
v.
Dislriel Boar<
Agra
Shall J.
60
SUPREME COURT REPORTS (1964) VOL.
employer to retain the services of a servant whom he
no longer wishes to employ, and every employer is
entitled to discharge a servant for whose service he
has no need. It must be pointed that the powers of
a statutory body are always subject to the statute
which has constituted it, and must be exercised
consistently with the statute, and the Courts have, in
appropriate cases, the power to declare an action of
the body illegal or ultra vires, even if the action
relates to determination of employment of a servant.
In Ram Babu Rathaur's case (1) the Court had to
consider the question whether an employee of the
Life Insurance Corporation whose employment was
terminated could claim a writ of mandamus restoring him to the service of the Corporation, or ·a
writ of certiorari quashing the proceeding of the
Corporation. The Corporation is an autonomous
body and is not a department of the State, and the
relation between the Corporation and its employees
is governed by contract, and no statutory obligation
is imposed upon the Corporation in that behalf.
The Court was therefore right in holding that the
relationship between the employee and the Corporation had to be determined, in the absence of any
statutory provision or a special contract, by the
general law of master and servant. In Dr. S. B.
Dutt' s case (') this Court held that an award made
by an arbitrator, declaring that the dismissal of an
employee of the Delhi University was "ultra vires,
mala fide, and has no effect on his status. He still
continues to be a professor of the University" disclosed an error apparent on the face of the award,
because it sought to enforce a contract of personal
service.
That was again not a case in which the
invalidity of an act done by the Univer3ity on the
ground that it infringed a statutory provision foll to be
determined. The rights and obligations of the parties
rested in contract, and the award of the arbitrator
that the dismissal of the employee was "ultra vires"
was a mere flourish of language, having no meaning
(1) A,I,&, i 1811) AU; ~
(2) 1 lia!IJ S,O.R1 IUI.
•
...
......
3 S.C.R.
SU1>RENIE COURT REPORTS
61
in the context of the dispute between the parties.
The award was therefore declared to be one contrary
to the rule contained in s. 21 (b) of the Specific
Relief Act and hence void.
The question whether the Court would be
justified in granting a declaration about the
invalidity of the action of a satutory body terminating the employment of a servant was raised before
the House of Lords in Vina.. v. National Dock Laboor
Board ('). The plaintiff a dock worker in the
reserved pool, under the scheme set up under the
Dock-Workers (Regulation of Employment) Order
1947 failed to obey an order to report for work with
a company of stevedores and the local board
instructed their disciplinary committee to hear the
case against the plaintiff. The committee terminated
the employment of the plaintiff giving seven days'
notice, and this decision was confirmed by the
appellate board. The plaintiff then claimed in an
action instituted by him a declaration that his
purported dismissal was illegal, ultra vires and invalid and also damages for wrongful dismissal. The
Trial, Court granted the declaration, and also damages.
The Court of Appeal set aside the declaration. The
House of Lords restored the declaration, for in their
view the purported dismissal was a nullity, since the
local board had no power to delegate its disciplinary
functions. Prima facie, jurisdiction of the Court in
an appropriate case to declare an order passed by a
statutory body, even if the order relates to the
termination of the employment of a servant of the
body, may not be denied.
The contention raised by the counsel for the
Board that a petition for a declaration that the
employment of the appellant was not lawfully
terminated. and on that account
the Board be
commanded to treat the appellant as lawfully in
service cannot be maintained, must be rejected.
(1) "' Ro (li571 A. 0, '811,
IU3
s It. T1111ri
v.
Di.strict Board
Agro
Shoh J.
~69
S.R. T1wari
v.
District Beard
Atm .
Sha\ J.
62 SUPREMl!: COURT REPORTS [1964] VOi...
The jurisdiction to declare the decision of the Board
as ultra vires exists, though it may be exercised
only when the Court is satisfied that departure is
called for from the rule that a ·contract of service
will not ordinarily be specifically enforced.
The question which then falls to be determined
is whether under the District Boards Act, 1922 the
Board is invested with the power to determine
employment of a servant of the Board otherwise
than by way of dismissal as punishment, and for
that purpose certain provisions of the Act and the
rules framed under the Act may usefully be referred.
Chapter IV deals with officers and servants of the
Board. 'Servant' of the Board is defined in s. 3 (ii)
of . the Act as meaning "a person in the pay and
service of the Board." Section 72 enjoins upon the
Board the duty to appoint in addition to the Secretary and the Superintendent
of Education such
officers or serv<>nts as it is required to appoint by
rules.
By Ch. IX of the rules framed under the Act
the Board must appoint a District Board Engineer
possessing the qualifications specified therein.
An
Engineer is therefore an officer or servant whom the
Board is bound to appoint. Section 82 confers
administrative authority upon the President and the
Secretary in respect of several matters relating to
the servants of the Board specified therein. The
section states :
"Except in the cases provided for by sections 70, 71 and 72, the power to decide all
questions arising in respect of the service, ·
leave, pay, allowances and privileges of servants
of the board, who are. employed whether
temporarily
or permanently, on a monthly
salary of more than Rs. 40 and the power to -
appoint, grant leave of absence to, punish,
dismiss, transfer and control such servants of the
board, shall vest in the President, and the said
-,
~
'
l
<· 1
... ..,
-......
3 s.a.R.
SUPREME COURT REPORTS
powers in the case of all other servants of the
board shall vest in the secretary : "
This clause is followed by four provisos, the last of
which is materi<tl. It provides :
"Provided fourthly, that the power to appoint
and dismiss the engineer, the tax officer and
the accountant of the board shall vest in the
board, subject, in the case of dismissal, to a
right of appeal to the State Government within
one month of the order of dismissal."
Bys. 84 the provisions of ss. 72, 711, 80 and 82 are
subject to the provisions of :
"(a)
x
x
x
(b)
any rule imposin~ any conditions on the
appointment of persons to offices or to
any particular office requiring professional
skill and on the punishment or dismissal
of persons so appointed, and on their
liability to service under the orders of any
Government on the occurrence of any
emergency :
(c)
(d)
x
x
x
any other rule relating to servants of a
board."
Section 17 2 empowers the State Government to
make rules under the Act.
By cl. (2) the State
Government may make rules consistent with the
Act-
"(a) providing for any matter for which
power to make provision is
conferred, expr ~ssly or by implication, on the
State Government by this or any other
19~
S.R. Tew1ri
v.
District BHtJ
Ap•
Shd J.
1969
S.R. T1-i
: v.
Dist1i&t Bo4rd
,.,,.
Shah J.
l.l4
SUPREME COURT REPORTS [1964] VOL.
enacttnent in force at the commencement
of this Act ; and
(b) generally for the guidance of a board
or any Committee of a board or any
Government officer in any matter connected
with the carrying out of the provisions
of this Act."
The scheme of ss. 72, 82, 84 and 172 read with the
Rules in so far as it is material in the present case
is that an Engineer of the Board shall be appointed
by special resolution by the Board.
The power to
decide all questions arising in respect of the service,
leave, pay, allowances and privileges and the power
to grant leave of absence, and to punish, transfer
the. Engineer is vested in the President. But the
power to appoint and to dismiss an Engineer vests in
the Board subject to a right of appeal to the State
Government against the order of dismissal. The
powers of the President and the Board are subject
to the rules imposing conditions on the punishment
or dismissal of the Engineer, and other rules relating
to servants of the Board.
·
·
The State of U. P. has frained rules, in exercise
of the powers under s. 172 (2), two of which are
material. In Ch. III (of the Rules dealing with
officers and servants of the Boards) there occurs
rule 3A, which provides :
"The period of office of a permanent servant
of the board other than a Government servant
in its employ shall not determine until-
(i) his resignation has been accepted in
writing by the authority competent to appoint
his successor, or he ceases to be in service by
the operation of the rules regulating the retirement of district boards servants, or
.. ,-
-
.............
•
.•
3 ~.C.R.
SUPREME COURT REPORTS
65
(ii) he has given such authority at least
three months' notice where his pay exceeds
Rs. 15 and in other cases at least one month's
notice, or
(iii) he has paid or assigned to the board
a sum equal to three months' pay where.his
pay exceeds Rs. 15 and in other cases a sum
equal to one month's pay;
(iv) he has been given by the authority
competent to appoint his successor not less than
three month's notice or a sum equal to three
months' pay in lieu of "notice where his pay
exceeds Ks. 15 and in other cases, not less
than one month's notice or a sum equal to one
month's pay in lieu of notice."
The other material rule framed by Notification issued
by the Government of U .P. dated March 25, 1946,
is headed "Regulation regarding dismissal, removal
or reduction of officers and servants of District
Beards". It provides :
"No officer or servant shall be dismissed, removed or reduced without a reasonable opportunity
being given to him of showing cause against
the action proposed to be taken in regard to
him. Any written defence tendered shall be
recorded and a written order sh.ill be passed
thereon. Every order of dismissal, removal or
reduction shall be in writing and shall specify
the charge brought, the defence and reasons for
the order."
Even though this is designated a regulation it is conceded, and in our judgment rightly, by the Board
and the State of U.l'. that it is a rule framed in exercise of the powers conferred by s. 172(2) and is not
a regulation made in exercise of powers under s. 173,
for the Act does not confer any power upon the State
Government under cl. (2) of s.173 to frame regulations
~ ~..
regulating the exercise of the power of dismissal of
S.R. T1wari
••
District B,,ard
Azr11
Sh•v /.
196J
S. R. T1Wari
v.
Districl Bo1ril
Ap•
Slulh J.
66
SUPREME COURT REPORTS [1964] VOL.
officers or servants of the Board. Under the rules, there.
fore, dismissal, removal or reduction of an officer or
servant may be effected only after affording him a
reasonable opportunity of showing cause against . the
action proposed to be taken in regard to him.
But
the services of even a permanent servant of the
Board may be determined in the manner providtld by
rule 3A.
The
Board
by
its
resolution
dated
October 18, 1954, purported to exercise the power
of determination in the manner and subject to conditions prescribed by rule 3A.
The determination
was by resolution of the Board and prima facie, that
exercise of the power may be eff~ctive. Counsel for
the appellant contended that in the absence of a
specific power to determine employment confetred
by the act itself, a rule which prescribed restrictions
on the exercise of that power was wholly sterile. It
was urged that the State Government has prescribed
conditions under which the employment of a permanent servant of a Board may be determined, but the
Legislature not having conferred upon _the Board the
power to determine employment otherwise than by
way of dismissa I as punishment the conditions under
which the power could be exercised served no purpose.
We are unable to agree with that contention. By
s. 82 power of the Board to decide questions arising
in respect of the service including the power to punish,
dismiss, transfer and control servants of the Board
is statutorily delegated to the President in ca~e of
servants drawing a S'llary exceeding Rs. 40 per
mensem, and to the Secretary for other servants. But
the exercise of the power is sut.ject to the conditions
prescribed in the provisos.
Upon the exercise of the
power under s. 82 vested in the Board, the President
and the Secretary, there is yet another set of restric.
tions imposed by s. 84. The power is subject, among
others, to the rules imposing conditions on the
appointment of persons to offices or to particular office
... -
8 S.C.R.
SUPREME COURT REPORTS
67
requmng professional skill and on the punishment
or dismissal of persons so appointed, and to rules
relating to servants of the Board. The rule providing
for the procedure for termination of employment of
servants of the Board is a rule relating to servants of
the Board and may properly be made under s. 84(d)
read with s. 172(2 ).
Power to appoint ordinarily
carries with it the power to terminate appointment,
and a power to terminate may in the absence of restrictions express or implied be exercised, subject to
the conditions prescribed in that behalf, by the authority competent to appoint. The power to terminate
employment is therefore to be found in s. !s2 and the
method of its exercise is prescribed by the rules
referred to in s. 84.
The rules deal with the conditions under which an officer or servant may be
dismissed (the dismissal being by way of punishment
and also under which determination of employment
may take place.
It was urged that rule 3A does not indicate the
authority by whom termination is to be effected.
But cl. (iv) in terms provides that the period of office
of a permanent servant of the Board shall not determine until he has been given by the authority competent to appoint his successor notice of the duration
specified.
It is the notice which terminates the
employment and the authority competent to give
the notice is the authority competrnt to appoint the
successor of the servant concerned.
We are however unable to agree with the High
Court that the expression "dismissal" in the fourtb
proviso to s. 82 includes termination of employment
simpliciter. In the law relating to master and servant
the expression "dismissal" has acquired a limited
meaning-determination of employment as a method
of punishment for misconduct or other cause. That
is the meaning in which the expression "dismissal"
is used in the rule published by Notification dated
1963
S.R. Teu:ari
v.
District Bo11rd
A tr a
Shd /,
1963
S.R. Ttwari
v.
District BtJMJ
.,,,.
Shah J.
68
SUPREME COURT REPORTS [1964] VOL.
March 25, 1946. Bys. 84 the power of dismissal of
a servant under s. 82 can only be exercised subject
to the provision of this rule, and the expressions
"dismiss" and "dismissal" must have the same connotation in the law which deal with the power and
the procedure for exercise of that power. The view
expressed by the High Court would lead to the result
that even for mere termination of employment the
procedure prescribed by the Notification may have
to be followed.
There is again inherent indication
ins. 82, which supports the view that the expression
has been used in a limited sense.
The first proviso
to ·s. 82 confers a right· of appeal to servants of the
Board, against orders of the President imposing a
fine e;,ceeding one month's salary, suspension for a
period exceeding one month, reduction by way of
punishment, or supersession of a servant in the matter
of promotion, as well as against orders of dismissal.
The orders imposing fine,
suspension, reduction
or supersession are ex Jacie orders of punishment, and
there is no reason why the order of dismissal which
occurs in the same clause, and which is subject to
appeal is not an order of that nature. The fourth
proviso also confers a similar right of appeal against
the order of the Board dismissing certain superior
servants.
An appeal against an order of mere determination of employment, which may generally be
made in the exigencies of the service may serve no
useful purpose. Provision of a right of appeal i1
indicative of the nature of the order. In our view it
is competent under s. 84 read with s. 172 (2) to the
State Government to make rules imposing conditions
on the appointment and punishment of persons to
offices or to any particular office requiring professional skill and to R.rovide generally the conditions
under which the servants of the Board arc to serve,
and in the exercise of the powers which are vested by
s. 82, these rules have an overriding effect. An order
of determination of employment which is not of the
nature of an order of dismissal, has by virtue of the
.....
..
>
. .
3 s.c.R. SUPREME COURT REPORTS
69
rules framed under cl. (d) of s. 84 to be exercised
consistently with rule 3A, and an order of dismissal
involving punishment must be exercised consistently
with the rule or regulation framed under the Noti·
fication dated March 25, 1946 under s. 84 (b) & (d).
We, therefore, hold that the Board had the power to
determine the employment of the appellant and the
Board purported to exercise that power. But counsel for the appellant contended that even though in
form the power of determination of employment was
exercised, in substance it was intended to exercise the
power of dismissal and that the form of the resolution
of the Board was merely ·to camouflage the real
object of the Board. It is settled law that the form
of the order under which the employment of a
servant is determined is not conclusive of the true
nature of the order.
The form may be merely to
camouflage an order of dismissal for misconduct,
and it is always open to the court before which the
order is challenged to go behind the form and
asct>rtain the true character of the order. If the
Court holds that the order though in the form merely
of determination of employment is in reality a cloak
for an order of dismi<sal as a matter of punishment,
the Court would not be debarred merely because of
the form of the order in giving effect to the rights
conferred by statutory rules upon the employee.
Counsel for the appellant pointed out that in
the affidavit filed on behalf of the Board, the entire
service·sheet of the appellant since the year 1945 was
set out. The affidavit refers to tLc censure admi,
nistered to the appellant for neglect of duty on
March 25, 1945, to the order of dismissal of the
appellant from service on a finding by the Public
Works Committee that he was guilty of negligence
and unfaithfulness in 1946, to the comments made
by the Chairman of the Board in 194 7 that the
appellant had not proved himself to be a 'loyal and
faithful servant' and to stoppage of increments of the
1963
S.R, Teuuiri
v.
District BoarJ
A.tr"
Shah /.
1963
S.R. Tetoari
v.
Dislrict·M~1rd
Ag_r•
Sha~ /,
70
SUPREME COURT REPORTS [1964] VOL.
appellant by an @rder of the President of the Boarel
in 1953 and 1954. Reliance is then placed upon
paragraph-21 of the affidavit of the Board in which
it was stated that the plea of the appellant that he
had honestly and faithfully discharged his duties but
the District Board had capriciously and without any
justification terminated the service of the appellant
was untrue and it was asserted that the services of the
appellant had been justifiably terminated.
It must
however be observed that in the petition the appellant challenged the validity of the order terminating
his services on the gronnd firstly that the Board had
no power to terminate his employment and secondly
that it was not justified in terminating the employment. It was never contended that the· order terminating the employment was one in ·reality of the
nature of dismissal as punishment, and the form
used in the resolution of the Board was merely to
camouflage the real object of the Board.
Averment
in the petition that the Board had acted capriciously
and without any justification does not amount to a
plea that the order was intended to be one of dismissal though in form one of determination of
employment. It also does not appear to have been
argued before the Division Bench that the impugned
resolution was in reality one of dismissal. Moothan, ·
C. ]., in delivering the judgment of the Court dealt
with the only argument advanced before the Court,
viz., that although the Board had the power to punish
or dismiss the appellant it had no power otherwise
to terminate his service in the absence of a special
·contract which did not exist in this case. If the
appellant had in his petition pleaded the case that
the order though in the form of determination of
employment was intended to be one of dismissal as a
matter of punishment and the form was adopted
merely to conceal the true object of the Board, it
would ·have given opportunity to the Board to meet
that case and to produce all the evidence in that
c.opp.ection in their possession. The question raiseq
,_ .
3 s.c.R.
SUPREME COURT REPORTS
71
is one primarily of fact ; and it was never raised,
nor explored in the High Court on proper pleadings.
It would be takiug the Board by surprise to allow
the appellant to make out this new case at this stage.
We therefore refuse to consider the question whether
the order passed against the appellant pursuant to
the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board,
as a punishment for misconduct.
The appeal therefore fails and is dismissed.
Having regard to the circumstances, there will be no
order as to costs in this Court.
Appeal disniis <ed.
THE STATE OF UTTAR PRADESH
v.
BHAGW ANT KISH ORE JOSHI
(K. SUBBA RAO, RAGHUBAR DAYAL and
j. R. MUDHOLKAU JJ.)
Criminal Trial-Investigation by Police Officer be/011· the
rank of Deputy Si<perintendent of Police-Previou8 permission
of lrfagistrale not obtained-If proper
inveciligation-Such
omi!sion if vitiated the trial-Prevention of Corru7dion Act,
19/7 (2 of 1947), s. 5A-Code of Criminal PrOC1dure, 1898
(Act 5 of 1898), ss. 4 (1), 154, 157.
The respondent was a hooking
clerk. He committed
criminal breach of trust in respect of Rs. 49!! !O. On the receipt
of the abovementioned information
the Superintendent of
Police directed M, a Sub-Inspector of Police, to make an
enquiry. Thereafter M verifiod
the allegations contained in
lhe information and examined the relevant railway records. 0 11
1963
S.R. Tewllri
••
District Board
~tra
1969
April 17