Case: The Municipal Corporation Bhopal, M.P Vs. Misbahul Hasan and Ors

Beg, J.1. These are two Appeals by Special leave before us, one by the Municipal Corporation, Bhopal, and another by the State of Madhya Pradesh against the judgment and order of a Division Bench of the Madhya Pradesh High Court allowing a writ petition filed by the Respondent employee of the Bhopal Municipal Corporation (hereinafter called the Corporation).2. The employees case was: He was born on 1st July, 1912, appointed a Lower Division Clerk in April, 1962, promoted as a Upper Division Clerk in February, 1964. A general order dated 21 December, 1967, (Annexure A) had been passed by the Administrator, Municipal Corporation purporting to carry out the orders of the Government of Madhya Pradesh which had decided that the age of compulsory retirement of all servants of the Corporation, other than Class IV servants, should be 55 years. The employee was informed of it by a communication dated 22nd December, 1967 (Annexure B). The Municipal Corporation of Bhopal, which was formerly only a Municipal Council, became a Corporation when provisions of the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as the Act) were applied to it from 25th August, 1967, by an Ordinance the provisions of which were then embodied in an Act. Although the petitioner had entered service of the Municipal Board of Bhopal, as a result of the continuance of the service conditions of the employees of the former Municipal Board, which has thus become a Corporation, the petitioning employee was to retire at the age of 60 as laid down in Notification No.30 of 11th November, 1947 (Annexure C). But, in 1955, when Bhopal was a Part C State the Government of Bhopal had issued a notification dated 4th February 1955 applying the service regulations of Central Government employees in Part C States. In this way, the petitioning employees correct age of retirement was 58. Under the Act of 1956, questions relating to service conditions of the employees of the Corporation were to be regulated by bye laws under S.427(1-C)(b) of the Act and not by rules to be made by the Government. The Government of Madhya Pradesh had, however, issued a Notification in the Gazette of 22nd December, 1967, purporting to reduce the age of retirement of first and second and third grade employees from 60 years to 55 years by amending the Government Notification No.30 dated 11th November 47. It was not clear to the petitioning employee whether the orders of 21st December, 1967, were in pursuance of any Gazette Notification or whether they have been passed after a proper amendment of their bye-laws in accordance with the procedure land down in S.432 of the Act. In any case, the validity of the order of 21st December, 1967, was challenged.3. The Judgment under appeal shows that it was argued on behalf of the petitioning employee that the procedure laid down by the Act for amending a bye law was not followed. The Madhya Pradesh High Court had accepted this contention and rejected the argument put forward on behalf of the Corporation and its Administrator, that the amendment in question was governed by the provisions of S.433 of the Act. It had therefore, quashed the Notification dated 22nd December, 1967, which purported to have been made in exercise of powers vested in the Government under S.432 of the Act, as well as an order dated 30th December, 1967, (Annexure R-1), the relevant part of which reads as follows:-"In pursuance of the Notification No.10678/4251/XVIII-U-II dated the 22-12-67, Shri Misbahul Hasan, UDC Account Section, who has attained the age of compulsory retirement, is hereby sanctioned 120 days Earned Leave w.e.f. 1-1-1968 as leave Preparatory to retirement. He will stand retired w.e.f. 1-5-1968 on expiry of the leave sanctioned to him, stated above".4. Mr. Daftary, appearing on behalf of the Corporation Appellant, has contended that the procedure laid down in S.432 of the Act was merely meant to give the Corporation concerned an opportunity of putting forward its views by means of any representation it may like with regard to any proposal of the Government to modify or repeal any bye law. The learned Counsel submitted that, as the Corporation had no objection whatsoever to the amendment of the age of retirement of Class I and II and III employees, it was not open to the petitioning employee to raise any objection on the ground that the prescribed procedure had not been follwed. This argument proceeds on the assumption that there was already a bye law regulating the age of the retirement of employees of Classes I, II and III of the Corporation, and that the Government was purporting to follow the procedure laid down by S.432 of the Act in amending that bye law.5. We may here reproduce the provisions of S.432 of the Act which run as follows:"432. Government may modify or repeal bye laws:-(1) If it shall at any time appear to the Government that any bye law should be modified or repealed either wholly or in part, it shall cause its reasons for such opinion to be communicated to the Corporation and prescribe a reasonable period within which the Corporation may make any representation with regard thereto which it shall think fit.(2) After receipt and consideration of any such representation or, if in the meantime no such representation is received, after the expiry of the prescribed period, the Government may at any time by notification in the Gazette, modify or repeal such bye law either wholly or in part.(3) The modification or repeal of a bye law under sub-section (2) shall take effect from such date as the Government shall in the said notification direct or, if no such date is specified, from the date of the publication of the said notification in the Gazette, except as to anything done or suffered or omitted to be done before such date".6. It is admitted by both sides that at the relevant time, the powers of the Corporation were vested in the Administrator under the provisions of S.132 sub-s. (1) of the Act. The only question, according to the Corporation is whether the Administrator, acting as the Corporation, could not forego the right of the Corporation to make any representation with regard to a proposal of the Government to amend a bye law. In other words, the modification or amendment of a bye law under S.432 of the Act was a matter of concern only to the Government and to the Corporation and to nobody else. If, therefore, there was any infringement of its technical procedural requirements, it was only for the Corporation and nobody else, according to this contention, to raise the objection. The broad proposition put forward before us is that the requirements of a procedure intended for the benefit of a party could be dispensed with if that party itself chooses that this should be done. It is pointed out that the only object of the procedure provided by S.432 was that the proposals of the Government may be duly considered by the Corporation so as to enable it to represent its views. There was no obligation upon the Corporation to make a representation. If the Corporation did not choose to make a representation, after the Government had sent its reasons for its opinion to the Corporation and had asked for the representation within a prescribed period, the failure of the Corporation to make any representation would, far from depriving the Government of the power to issue a notification modifying or repealing a bye law wholly or in part in accordance with its opinion, enable it to do so. The mere order in which a proposal is made and assent to it is given by the Corporation, it was urged, should not make any difference as there was substantial compliance with prescribed procedure.7. In the appeal filed on behalf of the State of Madhya Pradesh, the main contention is that the rule making powers of the Government under S.433 of the Act are very wide so that the State could make rules "for the purpose of carrying into effect the provisions of the Act". It is urged that the Act imposed a duty and conferred a power upon the Corporation to frame bye laws relating to conditions of service of its employees as laid down in S.427 (1C) (b) of the Act. The Government could make a rule if the Corporation failed to make a bye law on a subject. The correctness of the view of the High Court, that the matter did not fall within the purview of S.433 of the Act, was assailed.8. Another contention put forward on behalf of the State of Madhya Pradesh was that the petitioning employee had not impleaded either the State or the Government of the Madhya Pradesh, so that a Notification of the State Government could not be held void without impleading a necessary party. We may observe here that this ground is not taken in the Special Leave Petition of the State of Madhya Pradesh by means of which its appeal has come up before us. No such objection was taken on behalf of the Corporation in the Special Leave Petition filed by it. Nor was any such argument advanced on behalf of the Corporation before the High Court. Para.12 of the Special Leave Petition filed on behalf of the Corporation discloses that the High Court had itself considered it necessary to hear the State Government. It had, therefore, given time to the State Counsel, by an order dated 16th April, 1970, to file a return to the petition of the employee. But, the State Counsel had neither filed any return nor put in any appearance. Thus, the State had obtained due opportunity to oppose the petition, but it had not chosen to do so. Therefore, we are unable to entertain any such objection at this stage.9. Another question attempted to be raised before us, by the learned Counsel for the State of Madhya Pradesh, was based on assertion which were neither made in the High Court by any party nor in the High Court by any party nor in this Court in the two Special Leave Petitions. The submission rests on materials said to exist on the reports of the State Government which, it was stated, show that the proposal had actually come from the Administrator himself, that the particular amendment sought be made by the Government. If this was the correct position, the State Counsel should have appeared before the High Court and placed the whole record before the Court so that the facts which had a material bearing on the question whether the procedure laid down by S.432 of the Act had been followed in substance or spirit or not, may be gone into and decided.10. The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.11. After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.12. Assuming, however, that the modification of the age of retirement could be made by a rule made under S.433 of the Act and not merely by a bye law, as contemplated by the Act, we find that a condition precedent for an argument of a rule has not been followed here. S.433 of the Act enacts. "The State Government may after previous publication in the Gazette make rules for the purpose of carrying into effect the provisions of this Act". S.24 of the Madhya Pradesh General Clauses Act, 1957, lays down:"24. Provisions applicable to makeing of rules or bye laws, etc. after previous publication Where, by any Madhya Pradesh Act, a power to make rules or bye laws is expressed to be given subject to the condition of the rules or bye laws being made after previous publication, then the following provisions shall apply, namely:(a) The authority having power to make the rules or bye laws shall, before making them, publish a draft of the proposed rules or bye laws for the information of persons likely to be affected thereby;(b) The publication shall be made in such manner as that authority deems to be sufficient, or if the condition with respect to previous publication so requires, in such manner as the Government prescribes;(c) There shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration.(d) The authority having power to make the rules or bye laws and where the rules or bye laws are to be made with the sanction, approval or concurrence of another authority, that authority also shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye laws from any person with respect to the draft before the date so specified;(e) the publication in the Official Gazette of a rule or bye law purporting to have been made in exercise of a power to make rules or bye laws after previous publication shall be conclusive proof that the rule or bye law has been duly made".13. The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here.

Decision:
1[ds]6. It is admitted by both sides that at the relevant time, the powers of the Corporation were vested in the Administrator under the provisions of S.132 sub-s. (1) of the Act. The only question, according to the Corporation is whether the Administrator, acting as the Corporation, could not forego the right of the Corporation to make any representation with regard to a proposal of the Government to amend a bye law. In other words, the modification or amendment of a bye law under S.432 of the Act was a matter of concern only to the Government and to the Corporation and to nobody else. If, therefore, there was any infringement of its technical procedural requirements, it was only for the Corporation and nobody else, according to this contention, to raise the objection. The broad proposition put forward before us is that the requirements of a procedure intended for the benefit of a party could be dispensed with if that party itself chooses that this should be done. It is pointed out that the only object of the procedure provided by S.432 was that the proposals of the Government may be duly considered by the Corporation so as to enable it to represent its views. There was no obligation upon the Corporation to make a representation. If the Corporation did not choose to make a representation, after the Government had sent its reasons for its opinion to the Corporation and had asked for the representation within a prescribed period, the failure of the Corporation to make any representation would, far from depriving the Government of the power to issue a notification modifying or repealing a bye law wholly or in part in accordance with its opinion, enable it to do so. The mere order in which a proposal is made and assent to it is given by the Corporation, it was urged, should not make any difference as there was substantial compliance with prescribed procedure.The High Court had proceeded on the assumption that the procedure laid down in S.432 of the Act was applicable. Learned Counsel for the Corporation also made his submissions primarily on that assumption. If that procedure had been really application, we think that the question whether the object of that procedure had been served and whether the Corporation could forego its right to make a representation or not would have deserved serious consideration provided it was supported by evidence which disclosed that there was substantial compliance with S.432 of the Act.After having heard Counsel for both sides, we are unable to hold that this is a case governed by the procedure laid down in S.432 of the Act at all. That procedure is only applicable where there is an existing bye law which appears to the Government to stand in need of modification or repeal wholly or in part. It is only then that the Government had to cause its reasons, for entertaining the opinion that the bye law in question should be modified or repealed, to be communicated to the Corporation. We are not at all satisfied about the exact position of the Ailan No.30 of 1947. It has not been shown to us, by references to the relevant records and provisions, that this Alian could be deemed to be a bye law as contemplated by the Act. It seems that the Corporation was aware of this defect because the main argument on behalf of the Corporation itself before the High Court was that it was a rule made by the Government and not that S.432 was applicable and substantially complied with. And, the main argument on behalf of the State Government before us now also is that the impugned notification is covered by S.433 of the Act. In view of S.427 (1 C) (b) of the Act, the High Court had held that, having regard to the specific provisions on the subject, the general rule making power under S.433 of the Act was inapplicable to the subject matter.The legislative procedure envisaged by S.24, set out above, is in consonance with notion of justice and fairplay as it would enable persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was also not shown to have been complied with here.