Case: Shrimati Hira Devi And Others Vs. District Board, Shahjahanpur

sanction is necessary" in S. 90 sub-s. 3, the High Court also brought to its aid the provisions of S. 16, U. P. General Clauses Act of 1904 which provides that"unless a different intention appears the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power."It came to the conclusion that nothing in the terms of S. 71 or S. 90 of the Act controlled or negatived an intention to sustain the general power of suspension i. e., suspension pending order on an appeal. The High Court thus justified the resolution for the suspension of the plaintiff passed by the Board on 29th January 1940.14. We are afraid we cannot agree with this line of reasoning adopted by the High Court. The defendants were a board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.The powers of dismissal and suspension given to the Board are defined and circumscribed by the provisions of Ss. 71 and 90 of the Act and have to be culled out from the express provisions of those sections. When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under S. 16, U. P. General Clauses Act. Even under the terms of S. 16 of that Act, the powers which are vested in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention appears" and such different intention is to be found in the enactment of Ss. 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board. It would be an unwarranted extension of the powers of suspension vested in the Board to read, as the High Court type in question into the words "the orders of any authority whose sanction is necessary." It was unfortunate that when the Legislature came to amend the old S. 71 of the Act it forgot to amend S. 90 in conformity with the amendment of S. 71. But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression "orders of any authority whose sanction is necessary." No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.15. Reading the present S. 71 of the Act along with S. 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the Board in the case before us was not the power of suspension contemplated in S. 90 sub-s. 3 of the Act. If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the Government or if the Government passed orders dismissing his appeal, if any, the resolution for his dismissal would become effective without any sanction of the Government. The words used therefore in S. 90 sub-s. 3 "pending the orders of any authority whose sanction is necessary for his dismissal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the Board on 29th January 1940. We are therefore of the view that the resolution for suspension which was passed on 29th January 1940 was ultra vires the powers of the Board.16. We have accordingly come to the conclusion that the decision reached by the High Court that the resolution for suspension which was passed by the Board on 29th January 1940 was valid and binding on the plaintiff was erroneous and that the conclusion reached by the trial Court was correct. the learned Solicitor-General appearing for the defendants has however informed us that the sum of Rs. 6,629-4-0 and the proportionate costs which were awarded by the trial Court to the plaintiff have already been paid to the plaintiff. Nothing therefore remains to be recovered by the heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored as a result of this judgment of ours.17. The only thing which therefore survives is the question of the costs of this appeal. The trial Court had already awarded to the plaintiff proportionate costs. The High Court in reversing the judgment of the trial Court dismissed the plaintiffs suit with costs throughout including the costs of the cross-objections which were filed by the plaintiff. The heirs and legal representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in the plaint. That claim could not be sustained before us by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court. If an order for proportionate costs of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff. We are not disturbing the order which had been made by the High Court in regard to the costs of the appeal, before it. No time was taken up before us in arguing the appeal on other points except the one in regard to the resolution for the suspension of the plaintiff being ultra vires and we think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us should be that each party should bear its own costs.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4. We are afraid we cannot agree with this line of reasoning adopted by the High Court. The defendants were a board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.The powers of dismissal and suspension given to the Board are defined and circumscribed by the provisions of Ss. 71 and 90 of the Act and have to be culled out from the express provisions of those sections. When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under S. 16, U. P. General Clauses Act. Even under the terms of S. 16 of that Act, the powers which are vested in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention appears" and such different intention is to be found in the enactment of Ss. 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board. It would be an unwarranted extension of the powers of suspension vested in the Board to read, as the High Court type in question into the words "the orders of any authority whose sanction is necessary." It was unfortunate that when the Legislature came to amend the old S. 71 of the Act it forgot to amend S. 90 in conformity with the amendment of S.But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression "orders of any authority whose sanction is necessary." No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of anthe present S. 71 of the Act along with S. 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the Board in the case before us was not the power of suspension contemplated in S. 90 sub-s. 3 of the Act. If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the Government or if the Government passed orders dismissing his appeal, if any, the resolution for his dismissal would become effective without any sanction of the Government. The words used therefore in S. 90 sub-s. 3 "pending the orders of any authority whose sanction is necessary for his dismissal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the Board on 29th January 1940. We are therefore of the view that the resolution for suspension which was passed on 29th January 1940 was ultra vires the powers of the Board.We have accordingly come to the conclusion that the decision reached by the High Court that the resolution for suspension which was passed by the Board on 29th January 1940 was valid and binding on the plaintiff was erroneous and that the conclusion reached by the trial Court was correct. the learned Solicitor-General appearing for the defendants has however informed us that the sum of Rs. 6,629-4-0 and the proportionate costs which were awarded by the trial Court to the plaintiff have already been paid to the plaintiff. Nothing therefore remains to be recovered by the heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored as a result of this judgment of ours.The only thing which therefore survives is the question of the costs of this appeal. The trial Court had already awarded to the plaintiff proportionate costs. The High Court in reversing the judgment of the trial Court dismissed the plaintiffs suit with costs throughout including the costs of the cross-objections which were filed by the plaintiff. The heirs and legal representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in the plaint. That claim could not be sustained before us by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court. If an order for proportionate costs of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff. We are not disturbing the order which had been made by the High Court in regard to the costs of the appeal, before it. No time was taken up before us in arguing the appeal on other points except the one in regard to the resolution for the suspension of the plaintiff being ultra vires and we think that under the circumstances of the case the proper order to pass in regard to the costs of this appeal before us should be that each party should bear its own costs.