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

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 aspursuance 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".

Reasoning:
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.