Case: Sirsi Municipality By Its President Sirsi Vs. Cecelia Kom Francis Tellis

SC 282 ) and Mafatlal Naraindas Barot v. Divisional Controller, S.T.C. (1966) 3 SCR 40 = (AIR 1966 SC 1364 ) dealt with power of statutory authorities and bodies to dismiss servants. These decisions establish that the dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases.25. In Tewaris case (1964) 3 SCR 55 = (AIR 1964 SC 1680 ) (supra) this Court said that dismissal, removal or reduction of an officer or servant might be effected under the rules only after giving the servant a reasonable opportunity of showing cause against the action proposed to be taken. This Court held in Tewaris case (supra) that in three instances a dismissed employee might in appropriate cases obtain a declaratory judgment that the dismissal was wrongful. Those three instances are : first, cases of public servants falling under Article 311 (2) of the Constitution; secondly, cases falling under the Industrial Law and, thirdly, cases where acts of statutory bodies are in breach of mandatory obligation imposed by a statute.26. In Mafatlal Naraindas Barots case, (1966) 3 SCR 40 = (AIR 1966 SC 1364 ) (supra) this Court held that the order of termination was bad in law since it contravened the provisions of clause 4 (b) of the regulation and also the principles of natural justice.27. This Court has held in the decisions referred to that the dismissal or termination of the services of employees without complying with the provisions of statute or scheme or order is invalid. This Court has quashed the orders of dismissal and granted appropriate declarations.28. There have been recent English decisions on this subject. These are Vine v. National Dock Labour Board, (1956) 3 All ER 939; Barber v. Manchester Hospital Board, (1958) 1 All ER 322; Ridge v. Baldwin 1964 AC 40; Malloch v. Aberdeen Corpn, (1971) 2 All ER 1278 and McClelland v. Northern Ireland General Health Services Board (1957) 1 WLR 594.29. These decisions indicate that statutory provisions may limit the power of dismissal. Where such limitation is disregarded a dismissal may be held invalid. In this respect employment under statutory bodies differs from ordinary private employment. Where a public body is empowered to terminate employment on specified grounds or where a public body does not observe the procedure laid down by legislation e.g. improperly delegates power of dismissal to another body the Courts have declared such dismissal from public employment to be invalid.30. The cases of a statutory status of an employee can also form the subject matter of protection of the rights of an employee under the statute. In Vines case, (1956) 3 All ER 939 (supra) the removal of Vines name from the register was held to be a nullity. The statutory scheme of employment was held to confer on the worker a status. An unlawful act of the Board was found to be interference with status. The status of the dock worker was recognised by this Court in Jaffar Imams case (1965) 3 SCR 453 = (AIR 1966 SC 282 ) (supra). In Jaffar Imams case (supra) the termination of the employment in breach of clause 36 (3) of the scheme made by the Central Government in exercise of the power conferred on it by Section 4 (1) of `the Dock Workers (Regulation of Employment) Act 1948 was held to be bad. The ground given by this Court was that before any disciplinary action was taken under cls. 36 (1) and (2) of the scheme in Jaffar Imams case (supra) the person concerned was to be given an opportunity to show cause as to why the proposed action should not be taken against him.31. Again in Barbers case (1958) 1 All ER 322 (supra) under the memorandum issued by the Minister of Health the Hospital Board was not to carry into effect the dismissal of a consultant before a certain appeal procedure had been completed. Barber was dismissed without the prescribed procedure being followed. It was held that despite the strong statutory flavour attaching to the plaintiffs contract this was an ordinary contract between master and servant. The House of Lords in McClellands case, (1957) 1 WLR 594 held that the dismissal of the plaintiff by the Board in that case on the ground of redundancy of staff was not one of the grounds specified in the terms and conditions of service. It was found that the dismissal could be on specified grounds e.g. gross misconduct. A declaration was granted in favour of McClelland on an originating summons as to whether the agreement of service was validly terminated. It was not a case of a Government servant. There was no question of breach of statutory provisions. The employment was based on contract. The Court found that the express power of the Board did not include reduction on the ground of redundancy. The Court spelt out security of status in employment. The legal basis of the decision in McClellands case (supra) is that the post was terminable only on certain specified grounds.32. In the present appeal, the pre-eminent question is whether the dismissal is in violation of Rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found by the High Court to be in violation of Rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires.

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

Explanation:
1[ds]32. In the present appeal, the pre-eminent question is whether the dismissal is in violation of Rule 143. Rule 143 imposes a mandatory obligation. The rules were made in exercise of power conferred on the municipality by statute. The rules are binding on the municipality. They cannot be amended without the assent of the State Government. The dismissal of the respondent was rightly found by the High Court to be in violation of Rule 143 which imposed a mandatory obligation. The respondent was dismissed without a reasonable opportunity of being heard in her defence. The dismissal by the municipality was without recording any written statement which might have been tendered. The dismissal by the municipality was without written order. The dismissal was ultra vires.