Case: Municipal Board, Kannauj Vs. State Of Uttar Pradesh, &amp; Ors

dismissal passed by the Executive Officer was prejudicial to the public interest. The question, however, is whether, after the order of dismissal had been passed on the 9th April 1964, the State Government had the power virtually to set aside or cancel the order under the cover of purposing "to prohibit the execution or firther execution of that order."In our opinion, that sub-section does not clothe the State Government with such a power.The resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set aside under this section.All that could be done under it is to prohibit the execution or further, execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. Where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its Officer, as in the present case, there is really nothing to prohibit.It was contended on behalf of the State that, when the State Government was empowered to order prohibition of the execution of the resolution or order, it was virtually empowered to set aside or cancel the order and, in support of this view, a reference was made to sub-section (4) of that section which provides that it shall be the duty of the Board, if so required by the authority making the order under sub-section (1-B) to take any action which it would have been entitled to take it the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything in pursuance of the resolution or order. It the object of the provision was to clothe the State Government with the power to cancel or set aside the resolution of the Board or order, it would have simply said so without resorting to the circumlocution "prohibit the execution or further execution of the resolution or order."We do not, therefore, think that cub-section (1-B) read with sub-s. (4) applies to any resolution or order which exhausts itself after it is passed or made.That is the view taken or a learned Judge of the Allahabad High Court in Shujaat Ullah Khan v. State of U. P., 1966 All LJ 499. In that case, a resolution was passed by the Board exonerating Shujaat Ullah Khan, who was the Executive Officer of the Board, from certain charges that had been framed against him. The State Government, thereupon, purporting to act under Section 34 (1-B) of the Act, quashed the Boards resolution on the ground that it was illegal, not having been passed by 2/3rds of the members constituting the Board and was otherwise prejudicial to the public interest. This order of the State Government was challenged by Shujaat Ullah Khan on several grounds, one of them being that no order under Section 34 (1-B) could be passed, because the resolution of the Board had been fully implemented and nothing remained to be executed in respect thereof. This contention was accepted by the learned Judge who observed as follows:-"It is clear that the only order that can be passed by the State Government under this sub-section is a prohibitory order to prevent something being done in the future. It is not open to the Government; acting under this sub-section, to give any positive direction such as has been given in the present case, where the Government has ordered the Board to reconsider its report and to make a further enquiry and take a fresh decision. The resolution passed by the Board, exonerating the Executive Officer and dropping the charges against him, exhausted itself as soon as it was passed, for the charges were straightway dropped and the Executive Officer stood exonerated. There remained nothing to be done in the future and there was nothing left for execution or further execution that could be prohibited by the State Government under Section 34 (1-B)."In our opinion that reasoning equally applies to the present case. The order of dismissal was self-operative and nothing remained for execution or further execution which could be prohibited by the State Government under that section.On that ground alone, the order passed by the State Government will have to be set aside.7. It was next contended on behalf of the employee-respondents that there was really no effective order of dismissal because that order had not been communicated to the employee. We asked the learned counsel whether this contention was taken earlier either in the reply filed by them to the petition or in the arguments before the High Court. He was not able to show that this had been done. On the other hand, reference was made by the learned counsel for the petitioner to an order passed by the Executive officer on 9thApril. 1964, for communication of the order of dismissal to the sweepers and also to the letter dated 8th May, 1965 written by the President of the Board to the District Magistrate which is appended to the petition as Annexure C. This letter says that the orders of dismissal had been communicated to the sweepers on 10th April, 1964. Moreover, we have on record a letter written by and on behalf of the sweepers to the Secretary, Local Self Government Department, U. P., which clearly goes to show that the sweepers had come to know that they had been dismissed from service. This letter was received in the office of the Secretanat on 21st April 1964 which only shows that the sweepers must have been communicated the order of dismissal much earlier. We also know that many sweepers had filed appeals. In any case, since the contention is put forward for the first time now in this Court and involves consideration of facts, it cannot be permitted to be raised.

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

Explanation:
1[ds]It should be noted that the words underlined above were inserted by an amendment which came into force on 30th November, 1964, that is to say, much after the order of dismissal by the Executive Officer had been passed, though before the order of the State Government dated 12th May, 1965. Before the amendment, the State Government could pass the order of prohibition of execution only when, in its opinion, the resolution or order was prejudicial to the public interest; but after the amendment, such an order could also be made by the State Government if, in its opinion, the resolution or order was made in abuse of powers or in flagrant breach of any provision of any law for the time being in force. It was contended on behalf of the Board that it was not competent for the State Government in this case to make the order on the ground that the order of dismissal was in flagrant breach of a provision of the law for the time being in force. But that point is only of academic interest, because the order itself shows that it had been passed also on the ground that the order of dismissal was prejudicial to the public intereat. We assume, therefore, that the State Government was satisfied that the order of dismissal passed by the Executive Officer was prejudicial to the public interest. The question, however, is whether, after the order of dismissal had been passed on the 9th April 1964, the State Government had the power virtually to set aside or cancel the order under the cover of purposing "to prohibit the execution or firther execution of that order."In our opinion, that sub-section does not clothe the State Government with such a power.The resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set aside under this section.All that could be done under it is to prohibit the execution or further, execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. Where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its Officer, as in the present case, there is really nothing to prohibit.It was contended on behalf of the State that, when the State Government was empowered to order prohibition of the execution of the resolution or order, it was virtually empowered to set aside or cancel the order and, in support of this view, a reference was made to sub-section (4) of that section which provides that it shall be the duty of the Board, if so required by the authority making the order under sub-section (1-B) to take any action which it would have been entitled to take it the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything in pursuance of the resolution or order. It the object of the provision was to clothe the State Government with the power to cancel or set aside the resolution of the Board or order, it would have simply said so without resorting to the circumlocution "prohibit the execution or further execution of the resolution or order."We do not, therefore, think that cub-section (1-B) read with sub-s. (4) applies to any resolution or order which exhausts itself after it is passed or made.That is the view taken or a learned Judge of the Allahabad High Court in Shujaat Ullah Khan v. State of U. P., 1966 All LJ 499. In that case, a resolution was passed by the Board exonerating Shujaat Ullah Khan, who was the Executive Officer of the Board, from certain charges that had been framed against him. The State Government, thereupon, purporting to act under Section 34 (1-B) of the Act, quashed the Boards resolution on the ground that it was illegal, not having been passed by 2/3rds of the members constituting the Board and was otherwise prejudicial to the public interest. This order of the State Government was challenged by Shujaat Ullah Khan on several grounds, one of them being that no order under Section 34 (1-B) could be passed, because the resolution of the Board had been fully implemented and nothing remained to be executed in respect thereof. This contention was accepted by the learned Judge who observed asis clear that the only order that can be passed by the State Government under this sub-section is a prohibitory order to prevent something being done in the future. It is not open to the Government; acting under this sub-section, to give any positive direction such as has been given in the present case, where the Government has ordered the Board to reconsider its report and to make a further enquiry and take a fresh decision. The resolution passed by the Board, exonerating the Executive Officer and dropping the charges against him, exhausted itself as soon as it was passed, for the charges were straightway dropped and the Executive Officer stood exonerated. There remained nothing to be done in the future and there was nothing left for execution or further execution that could be prohibited by the State Government under Section 34our opinion that reasoning equally applies to the present case. The order of dismissal was self-operative and nothing remained for execution or further execution which could be prohibited by the State Government under that section.On that ground alone, the order passed by the State Government will have to be setletter says that the orders of dismissal had been communicated to the sweepers on 10th April, 1964. Moreover, we have on record a letter written by and on behalf of the sweepers to the Secretary, Local Self Government Department, U. P., which clearly goes to show that the sweepers had come to know that they had been dismissed from service. This letter was received in the office of the Secretanat on 21st April 1964 which only shows that the sweepers must have been communicated the order of dismissal much earlier. We also know that many sweepers had filed appeals. In any case, since the contention is put forward for the first time now in this Court and involves consideration of facts, it cannot be permitted to be raised.