PETITIONER: STATE OF ASSAM & ANR. Vs. RESPONDENT: GAUHATI MUNICIPAL, BOARD DATE OF JUDGMENT: 24/02/1967 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. BHARGAVA, VISHISHTHA CITATION: 1967 AIR 1398 1967 SCR (2) 732 ACT: Assam Municipal Act (15 of 1957) s. 298-State Government issuing notification superseding Municipal Board for incompetence etc.-Notification after considering explanation to show cause notice-Whether opportunity for oral hearing also to be given-Whether principles of natural justice violated-Indication of tentative conclusion to supersede Board given in show cause notice-Whether amounted to pre- judging before considering explanation. HEADNOTE: The appellant issued a notice to the respondent Municipal Board on June 9, 1964, under s. 298 of the Assam Municipal Act (XV of 1957) which stated, inter alia that the State Government was of opinion that the Board was incompetent to perform its duties and it had come to the tentative conclusion that the Board should be superseded. The charges which were the basis of the tenatative conclusion were set out in the notice and the Board was asked to give an explanation in reply to these. After considering the explanation given by the Board, the State Government issued a notification on her 9, 1964-, superseding the Board for one year with effect from December 14, 1964 for reasons which were stated in the notification. The Board thereupon filed a writ petition challenging the notification on the grounds, inter alia, (i) that passing the order of auction the State Government had violated the principles of natural justice inasmuch as the proceedings resulting in supersession being quasi-judicial proceedings, the Board had been denied the opportunity of being per- sonally heard and of producing evidence; (ii) that the charges which were found proved in the notification of December 9, 1964 were not the same which were the subject matter of the notice of June 9, 1964; and (iii) that the State Government had already come to the conclusion that the Board should be superseded when it gave notice on June 9, 1964 and had thus pre-judged the issue even before the explanation of the Board had been received. The High Court accepted all these contentions and allowed the petition. On appeal to this Court, HELD : allowing the appeal (i)Even assuming that the proceedings in question were quasi-judicial proceedings, there was no violation of the principles of natural justice in this case. What the section provides is that a notice should be given to the Board by the State Government and its explanation taken before an order under s. 298 is passed. When the provisions of s. 298 are fully complied with, is in this case, and the Board does not ask for an opportunity for a personal hearing, principles of natural justice do not require that the State Government should ask the Board to appear for a hearing and to produce materials in support of the explanation. [735 D-F-, 736 C] (ii)A careful examination of the notice and the notification showed that the charges found proved were substantially the same as the charge levelled. [736 F] 733 (iii) The High Court had wrongly used the analogy of Art. 311 for the purpose of s. 2,98 in holding that the appellant should not have indicated its tentative conclusion in the notice because s. 298 provides for two courses ie., superssion or dissolution, and the appellant could not decide between the two alternatives even tentatively before taking into consideration the explanation of the Board. There was no reason why, when giving notice, the State Govermment should not indicate to the Board tentatively which of the two alternatives it iuntends to pursue. Such tentative conclusion communicated to the Board does not mean that the State Government is not open to conviction at all and whatever the explanation it would pass an order in accordance with its tentativ conclusion [737 E-G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1268 of
1966.
Appeal by special leave from the judgment and order dated
May 21, 1965 of the Assam and Nagaland High Court in’ Civil
Rule No. 306 of 1964.
S. V. Gupte, Solicitor-General and Naunit Lai, for the ap-
pellants.
K. R. Chaudhuri and B. P. Singh, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the
judgment of the Assam High Court. The appellant is the
State of Assam and the respondent is the Gauhati Municipal
Board, (hereinafter referred to as the Board). After the
municipal election, new members of the Board began to
function from July 7, 1962. The term of the members is four
years and would in the normal course have expired on July 6,
1966. On June 9, 1964, the appellant issued notice to the
Board under s. 298 of the Assam Municipal Act, No. XV of
1957 (hereinafter referred to as the Act). That section
gives power to the State Government, if it is of the opinion
that a Board is incompetent to perform or persistently
makes. default in the performance of the duties imposed on
it by or under the Act or otherwise by law, or exceeds or
abuses its powers, eitherto dissolve the Board or to
supersede it for a period not exceeding one year at a time,
and where dissolution is ordered to order a fresh election
as soon as possible. The section further provides that this
power can be exercised by the State Government after giving
the Board an opportunity for submitting its explanation in
regard to the matter in question. On receipt of such
explanation, ,the State Government has to consider it and
thereafter by notification stating reasons for so doing it
may declare that the Board is incompetent to perform or
persistently makes default in the performance of its duties
or has exceeded or abused its powers. The, State Government
may by such notification either dissolve the,Board or
supersede it as already indicated.
734
The State Government issued notice to the Board on June 9,
1964. In this notice the State Government said that it was
of the opinion that the Board was incompetent to perform or
had persistently made default in the performance of the
duties imposed on it by or under the Act or otherwise by law
and that the Board had abused its powers. The notice went
on to say that the State Government had come to the
tentative conclusion that the Board should be superseded
under s. 298 of the Act and asked the Board to show cause
why this should not be done. The notice also stated eight
charges which were the basis of the tentative conclusion of
the State Government and asked the Board to give an
explanation in full with respect to these charges. The
Board gave the explanation on August 10, 1964. That
explanation was apparently considered by the State
Government and on December 9, 1964, the State Government
issued the notification superseding the Board for one year
with effect from December 14, 1964 for reasons which were
:stated in the notification. Thereupon the Board filed a
writ petition in the High Court on December 24, 1964 on
various grounds. It is however unnecessary for present
purposes to mention all the grounds raised in the writ
petition. It is sufficient to say that three of the grounds
raised therein were (i) that in passing the order of
supersession the State Government had violated the prin-
ciples of natural justice inasmuch as the Board had been
denied the opportunity of being personally heard and of
producing evidence, as the proceedings resulting in
supersession were quasijudicial proceedings, (ii) that the
charges which were found proved in the notification of
December 9, 1964 were not the same which were the subject
matter of the notice of June 9, 1964, and (iii) that the
State Government had already come to the conclusion that the
Board should be superseded when it gave notice of June 9,
1964 and had thus prejudged the issue even before the
explanation of the Board had been received.
The application was opposed by the appellant, and its case
was that proceedings resulting in an order under s. 298 of
the Act were administrative proceedings and not quasi-
judicial proceedings. In any case even if they were quasi-
judicial proceedings, the appellant contended that it had
given a hearing to the Board as required by s. 298 and there
was no violation of the principles of natural justice. The
appellant further contended that the charges found. proved
were the same as the charges levelled against the Board.
Finally it was contended that though the action to be taken
was tentatively indicated in the notice, the State Govern-
ment had not pre-judged the issue and was open to conviction
after the receipt of the explanation from the Board.
The High Court held that the proceedings culminating in an
order under s. 298 of the Act were quasi-judicial and that
there was
735
violation of the principles of natural justice in this case.
The High Court also held that the charges found proved in
the notification of December 9, 1964 were different from the
charges levelled in the notice June 9, 1964. The High Court
finally held that the State Government had already made up
its mind to supersede the Board when it issued notice and
therefore presumably all the proceedings subsequent to the
issue of the notice were a farce. For these reasons the
High Court allowed the writ petition and quashed the order
of December 9, 1964. It is this order of the High Court
which is being challenged before us in the present appeal.
I We are of opinion that the appeal must succeed. We shall
take up three grounds on the basis of which the High Court
has allowed the writ petition in the order indicated above.
Re. (i).
It is not necessary in the present appeal to decide whether
the proceedings resulting in an order under s. 298 of the
Act are quasi-judicial proceedings or merely administrative
proceedings. Assuming that the High Court is right that the
proceedings are quasi-judicial proceedings, the question is
whether there was any violation of the principles of natural
justice in this case. What the section provides is that a
notice should be given to the Board by the State Government
and its explanation taken before an order under s. 298 is
passed. It is not disputed that the appellant had given
notice to the Board and had indicated the charges on the
basis of which it had formed its tentative conclusion and
also had asked for an explanation from the Board. The
explanation was received in August 1964 and considered by
the appellant and thereafter the appellant by its order
dated December 9, 1964 decided to supersede the Board. Now
it is clear from these facts that the appellant acted in
full compliance with the procedure provided in s. 298.
Ordinarily therefore there is no reason why it should be
held, when the procedure provided in s. 298 was complied
with, that the principles of natural justice were violated.
But the High Court was of the view that the appellant should
have given an oral hearing to the Board which should also
have been given an opportunity to produce materials before
the appellant in support of the explanation. According to
the High Court, the right of hearing includes the right to
produce evidence in support of an explanation and this
opportunity was not given to the Board. Here again it is
unnecessary to decide whether s. 298 which merely says that
the State Government should give opportunity to the Board
for submitting an explanation in regard to the matter en-
visages production of evidence-oral or documentary-at some
later stage by the Board in support of its explanation. The
High Court has conceded that a personal hearing of the
nature indicated above is not always a concommitant of the
principles of natural
736
justice. But it was of the view that in the present case
principles of natural justice required that the Board should
have been given a personal hearing and an opportunity to
produce materials in support of the explanation. We should
have thought that when the Board is given a notice as
required by s. 298 it would naturally submit its explanation
supported by facts and figures and an relevant material in
support thereof. However, we are definitely of opinion that
the provisions of s. 298 being fully complied with it cannot
be said that there was violation of principles of natural
justice in this case when the Board never demanded what is
called a personal hearing and never intimated to the
Government that it would like to produce materials in
support of its explanation at some later stage. Therefore
where a provision like s. 298 is fully complied with as in
this case and the Board does not ask for an opportunity for
personal hearing or for production of materials in support
of its explanation, principles of natural justice do not
require that the State Government should ask the Board to
appear for a personal hearing and to produce materials in
support of the explanation. In the absence of any demand by
the Board of the nature indicated above, we cannot agree
with the High Court that merely because the State Government
did not call upon the Board to appear for a personal hearing
and to produce material in support of its explanation it
violated the principles of natural justice. This ground in
support of the order of the High Court therefore fails.
Re; (ii)
Then we come to the finding of the High Court that the
charges found proved in the notification were different from
the charges levelled in the notice. We regret to say that
the High Court did not carefully look into the matter. If
it had, done so, it would have found that there was no
difference in substance between what was charged and what
was found proved. Eight charges were indicated in the
notice of June 9, 1964. Six of them related to acts of
omission and commission by the Board; the seventh and eighth
charges were mere matters of inference from the first six
charges and were not strictly speaking charges of which any
explanation was necessary. In the notification superseding
the Board the appellant found six charges proved. We have
compared the notification of December 9, 1964 with the
notice of June 9, 1964. and find that the first charge found
proved in the notification is the third charge in the
notice; the second charge found proved in the notification
is the fifth charge in the notice; the third charge found
proved in the notification is the fourth charge in the
notice; the fourth charge found proved in the notification
is the second charge
in the notice; the fifth charge found proved in the
notification is the sixth charge in the notice and the sixth
charge found proved in the notification is the first charge
in the notice. it will thus be
737
seen that though there was a change in the order in which
charges were enumerated, the charges found proved were
substantially the same as the charges levelled. We have
already indicated that the seventh and eighth charges in the
notice were really not charges and were mere inferences and
that is why we find no mention of them in the notification.
The view of the High Court that the charges proved were
different from the charges levelled therefore also fails.
Re. (iii)
Finally the High Court found that in the notice the State
Government indicated its tentative conclusion to the effect
that the Board should be superseded and thus it had made up
its mind already even before considering the explanation of
the Board that it should be superseded, and that the rest of
the proceedings were a farce. The High Court thought that
the appellant should not have indicated its tentative
conclusion because s. 298 provides for two courses, i.e.,
supersession or dissolution, and the appellant could not
decide between the two alternatives even tentatively before
taking into consideration the explanation of the Board. In
this connection the High Court relied on decisions under
Art. 311 of the Constitution relating to removal, dismissal
and reduction in rank of public servants and was apparently
of the view that the State Government should first have
considered the explanation and then made up its mind as to
which one of the two alternatives provided in s. 298 should
be used and then presumably given a second notice to the
Board to show cause why one of the alternatives tentatively
decided upon should not be pursued. We are of opinion that
it is not correct to use the analogy of Art. 311 for the
purpose of s. 298 of the Act. The issue of two notices
under Art. 311 is a very special procedure depending upon
the language of that Article. We find no comparable words
in s. 298. We also see no reason why when giving notice the
State Government should not indicate to the Board
tentatively which of the two alternatives it intends to
pursue. Such tentative conclusion communicated to the Board
does not mean that the State Government is not open to
conviction at all and whatever the explanation it would pass
an order in accordance with its tentative conclusion. There
is therefore no reason to think that all proceedings
subsequent to the issue of notice dated June 9, 1964 were in
this case a farce. The third ground on which the High Court
decided in favour of the respondent must fail.
It appears that the respondent had secured a stay order and
practically continued to function for the full period of
four years under the cover of the stay order. Before us,
though the respondent has appeared, it did not seriously
contest the appeal, for, the
738
period of all members who took office on July 7, 1962 came
to an end on July 6, 1966.
We therefore allow the appeal, set aside the order of the
High Court and dismiss the writ petition. In the
circumstances we pass no orders as to costs.
R.K.P.S. Appeal allowed.
739