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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. A. Radhakrishnan, for Petnr.
  • Mr. R. Thillaivillalan, for Respt.
Judges
  • K.N Mudaliyar, J.
Acts
  • S. 93 of the principal Act with S. 91 of the Amending Act, 56 of 1961,
  • S. 93 of the principal Act before the Amending Act, 56 of 1961
  • Madras City Municipal Act, viz., the principal Act, IV of 1919,
  • Amending Act 56 of 1961. To him, S. 91 of the Principal Act
  • S. 85 to 97 of the Madras City Municipal Act (IV of 1919)
  • Ss. 86 and 91 of the amending Act, 56 of 1961.8.
  • S. 102, sub-S. (1) of the amending Act, 56 of 1961,
  • S. 102 Sub-s. (3) of the amending Act, 56 of 1961
  • S. 86 sub-S. (3) of the amending Act, 56 of 1961.
  • provisions of the amending Act, 56 of 1961,
  • S. 102 of the Amending Act. 56 of 1961.6.
  • S. 102 of the Amending Act 56 of 1961
  • S. 86(1)(ii) of the amending Act of 196
  • S. 86 of the amending Act 56 of 1961.
  • S. 91, of the Amending Act, 56 of 1961.
  • S. 102 of the Amending Act of 1961.
  • S. 86 of the amending Act of 1961,
  • S. 91 of principal Act (IV of 1919)
  • S. 86 of the Amending Act, 1961,
  • Act of 1961 read with S. 102
  • S. 102 of the Amending Act;
  • Amending Act, 56 of 1961.
  • Amending Act, 56 of 1971,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. A. Radhakrishnan, for Petnr.
  • Mr. R. Thillaivillalan, for Respt.
Judges
  • K.N Mudaliyar, J.
Acts
  • S. 93 of the principal Act with S. 91 of the Amending Act, 56 of 1961,
  • S. 93 of the principal Act before the Amending Act, 56 of 1961
  • Madras City Municipal Act, viz., the principal Act, IV of 1919,
  • Amending Act 56 of 1961. To him, S. 91 of the Principal Act
  • S. 85 to 97 of the Madras City Municipal Act (IV of 1919)
  • Ss. 86 and 91 of the amending Act, 56 of 1961.8.
  • S. 102, sub-S. (1) of the amending Act, 56 of 1961,
  • S. 102 Sub-s. (3) of the amending Act, 56 of 1961
  • S. 86 sub-S. (3) of the amending Act, 56 of 1961.
  • provisions of the amending Act, 56 of 1961,
  • S. 102 of the Amending Act. 56 of 1961.6.
  • S. 102 of the Amending Act 56 of 1961
  • S. 86(1)(ii) of the amending Act of 196
  • S. 86 of the amending Act 56 of 1961.
  • S. 91, of the Amending Act, 56 of 1961.
  • S. 102 of the Amending Act of 1961.
  • S. 86 of the amending Act of 1961,
  • S. 91 of principal Act (IV of 1919)
  • S. 86 of the Amending Act, 1961,
  • Act of 1961 read with S. 102
  • S. 102 of the Amending Act;
  • Amending Act, 56 of 1961.
  • Amending Act, 56 of 1971,
See more information ...
Smart Summary

Structured Summary of the Judicial Opinion

Factual and Procedural Background

The petitioner is P.G. Arunachalam, Headmaster of the Corporation High School, Tiruvottiyur, Madras. He entered Corporation service in August 1950 as a B.T. Assistant and was promoted to Headmaster in June 1964. On 19 June 1968, while the petitioner was in his office, his peon informed him that Councillors had come to see him; the petitioner asked several staff and visitors to leave the room and went to lock the door, but the Councillors left and did not meet him. On 25 June 1968 the respondent issued an order relieving the petitioner of his duties as Headmaster; he handed over charge the same day. On 27 June 1968 he was suspended with effect from 25 June 1968 pending framing of charges.

An internal enquiry was conducted and completed before the final disposal of an earlier writ petition (W.P. No. 2413 of 1968). By an order dated 10 November 1969, the respondent withheld the petitioner’s increment for six months. The respondent's written finding stated that the petitioner was aware of the presence of visiting officials on 19 June 1968, failed to come down to meet them, and was thus discourteous; the charge was held proved and the six-month stoppage of increment (non-cumulative) was imposed.

The petitioner challenged the validity of the impugned order by filing the present writ petition. The writ was heard and the court ultimately quashed the impugned order by issuing a writ of certiorari and allowed the petition with costs (including advocate's fee Rs. 250).

Legal Issues Presented

  1. Whether, on the date of the impugned order (10 November 1969), the Commissioner had statutory power to impose disciplinary punishment (withholding of increment) on the petitioner under the Madras City Municipal Act as amended by Amending Act 56 of 1961, given the absence of by-laws made by the Council under S. 349 to regulate discipline and conduct of Class III and IV employees.
  2. Whether Transitional Provision No. 5 of Schedule II to the Amending Act 56 of 1961 read with S. 102 of the Amending Act could supply or revive power in the Commissioner to deal with discipline and impose punishment in the absence of by-laws.
  3. Whether the general supervisory/control power in S. 91 (as substituted by the Amending Act) or the earlier S. 93 (principal Act) could be treated as a reservoir of power to impose disciplinary punishment irrespective of the limited punitive modes expressly provided in the Amending Act.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner’s counsel acknowledged an earlier mistaken reliance on the old Ss. 85 to 97 of the Madras City Municipal Act being in force, and conceded awareness of Amending Act 56 of 1961; despite that, counsel relied on the judgment in C. Kuppuswamy v. Corporation of Madras (Judgment dated 29 March 1973) to argue that on the date of the impugned order the Commissioner had no power to punish the petitioner.

Respondent's Arguments

  • One limb: The respondent contended that Transitional Provision No. 5 of Schedule II to the Amending Act 56 of 1961, read with S. 102 of that Act, vested power in the Commissioner to deal with certain matters concerning persons included in the Corporation establishment immediately before the commencement of the Amending Act; the respondent argued this included power to discipline.
  • Second limb: Alternatively, the respondent argued that S. 91 of the principal Act (as substituted) provided a general supervisory reservoir of power enabling the Commissioner to deal with discipline and impose punishment.
  • The respondent also advanced that, in the absence of by-laws, the Commissioner could rely on the common law or other general powers to impose punishment, and that difficulties could be met by invoking the State Government’s power under S. 102(3) or by making by-laws under S. 86(1)(ii).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
C. Kuppuswamy v. Corporation of Madras, Judgment dated 29th March 1973 Relied upon by the petitioner's counsel to support the proposition that on the date of the impugned order no power was vested in the Commissioner to punish the petitioner. The opinion records that counsel placed strong reliance on this judgment; the court distinguishes factual aspects relevant to dates of entry into service and notes how counsel in that earlier case conceded facts concerning entry into service after an amending Act had come into force. The judgment is referenced in argument consideration but the present court's decision is founded on its own statutory analysis.

Court's Reasoning and Analysis

The court's analysis proceeded by detailed statutory construction of the relevant provisions of the Madras City Municipal Act (IV of 1919) as they existed prior to and after substitution by Amending Act 56 of 1961, and by logical application of transitional provisions.

Key points in the court's step-by-step reasoning:

  1. Identification of the earlier statutory scheme: Ss. 85 to 97 of the principal Act (IV of 1919) historically dealt with establishment matters. In particular, S. 93 (prior to amendment) conferred on the Commissioner supervision and control over duties and conduct, while S. 96 expressly enumerated eight modes of punishment (including suspension, removal, dismissal, withholding increments, etc.) and provided for appeals. The court extracted and relied on the text of these sections to frame the statutory context.
  2. Recognizing legislative change: Ss. 85 to 93 of the principal Act were substituted by provisions in Amending Act 56 of 1961 (and further amendments followed in later Acts noted by the court). The court identified S. 86 of the Amending Act (Conditions of service of Corporation establishments) as the provision most germane to the present dispute.
  3. Interpretation of S. 86: The court emphasized S. 86(1)(ii) which provides that the discipline and conduct of employees in Class III and Class IV are to be regulated by by-laws made by the Council under S. 349 of the principal Act. S. 86(3) prescribes that no officer or employee shall be dismissed, removed or reduced in rank until given a reasonable opportunity to show cause, subject to specified exceptions. The Amending Act thus provided only three modes of punishment in the statutory text and expressly left residual disciplinary regulation to by-laws for certain classes of employees.
  4. On Transitional Provision No. 5 and S. 102: The respondent sought to rely on Transitional Provision No. 5 of Schedule II read with S. 102(1) of the Amending Act to supply authority to discipline employees appointed before the commencement of the Amending Act. The court read Transitional Provision No. 5, noting its language referring to "tenure, remuneration rights privileges as to pension and gratuity and other matters," and held that the phrase "and other matters" must be construed in context. The court concluded that this transitional provision was intended to safeguard rights and privileges of incumbent employees and could not be read so broadly as to vest the Commissioner with power to regulate discipline and conduct in the absence of by-laws.
  5. On S. 91 (substitution for S. 93): The court compared the wording of the substituted S. 91 (Amending Act) with the earlier S. 93 and observed that they are substantially in pari materia — both speak of the Commissioner exercising supervision and control "subject to the provisions of this Act and to the rules, by-laws and regulations for the time being in force." The court held that this general supervisory language cannot be used to circumvent the specific scheme enacted in S. 86 which limited the modes of punishment and delegated further disciplinary regulation to by-laws.
  6. Rejection of reliance on common law or general powers: The court expressly rejected the respondent's contention that in the absence of by-laws the Commissioner could rely on common law powers to punish. The court found that where the statute provides a detailed scheme for punishment and expressly contemplates by-laws or rules, invoking common law powers to achieve the same ends is impermissible.
  7. Availability of remedial measures: The court noted that statutory mechanisms existed to address the lacuna — S. 102(3) of the Amending Act permits the State Government to make rules to resolve difficulties in giving effect to the Amending Act, and the Council could make necessary by-laws under S. 86(1)(ii). The court indicated these were the appropriate channels to cure any present difficulty, not unilateral exercise of disciplinary power by the Commissioner.
  8. Conclusion from statutory analysis: On the date of the impugned order (10 November 1969), the Commissioner had no statutory power to inflict the disciplinary punishment imposed on the petitioner because the Amending Act limited the modes of punishment and required by-laws (which the Corporation had not framed at that time) for further disciplinary regulation.

Holding and Implications

Holding:

The impugned order dated 10th November 1969 is quashed by the issuance of a writ of certiorari; the Writ Petition is allowed as prayed for with costs (advocate's fee Rs. 250).

Implications (direct effects and scope stated in the opinion):

  • Direct effect on the parties: The disciplinary order withholding the petitioner's increment for six months was quashed, and the writ petition was allowed with costs and an award of advocate's fee of Rs. 250.
  • Statutory and administrative consequence noted by the court: The court observed that the appropriate remedy for the absence of by-laws or rule-making lies with the State Government under S. 102(3) or with the Council by making by-laws under S. 86(1)(ii); these measures should be taken with immediate effect if the Corporation desires to regulate discipline by statute/by-law.
  • Broader precedent or legal development: The opinion does not state that it is laying down a novel precedent beyond its statutory construction and the disposition of the present petition; the decision rests on interpretation and application of existing statutory provisions as set out above.
V.C.S
Show full summary ...

    P.G Arunachalam v. The Commissioner, Corporation Of Madras, Madras

    1. P.G Arunachalam is the Petitioner. He is the Headmaster of the Corporation High School, Tiruvottiyur, Madras. He entered service in August 1950 as B.T Assistant in the Corporation High School, Nungambakkam. He was promoted as Headmaster in June, 1964. Ever since his appointment as a teacher, he maintains that, he has been discharging his duties to the utmost satisfaction of his superiors without any blemish. He makes certain allegations against a Councillor of the Corporation in respect of admission of pupils into the High School.

    2. According to the petitioner, on the 19th June, 1968 at about 12 noon, when the petitioner was in his office in the first floor of the school, his peon came and told him that some Councillors had come and they wanted to see him. He sent word through the peon that he would be seeing them and immediately he asked the three teachers and the attender who were then in his room assisting him, to leave the room in order to enable him to attend to the Councillors. Several parents and other pupils who had come in connection with the admission of the students were also requested to wait outside. The Petitioner locked the cash box and came just outside the room to lock the door. At that time, the petitioner's peon returned back and informed him that the Councillors had gone away in spite of his having informed them about the petitioner moving to meet them. On 25th June, 1968, the petitioner received an order from the Respondent relieving him forthwith of his duties as Headmaster of the School. He handed over charge to the First Assistant on the same day. On 27th June, 1968 he was suspended with effect from 25th June, 1968, pending framing of charges. He moved this Court for suspending the operation of the orders of the respondent pending disposal of the Writ Petition, No. 2413 of 1968. The Writ Petition was dismissed as infructuous, but the learned Judge observed that it is a shocking case of abuse of authority, and even went to the extent of awarding costs against the Respondent while dismissing the writ petition. Evidently, the enquiry was conducted and completed before the date of the final disposal of the writ petition, No. 2413 of 1968 on 21st January 1970. The punishment of withholding of increment for six months was inflicted on the petitioner by an order d. 10th November 1969. The finding of the respondent is extracted here below:

    “Thiru P.G Arunachalam, H.M, C.H S., G. Koil Street, was certainly aware of the presence of the Hon'ble Members of the Central Committee, the Assistant Commissioner (S) and the Engineer in the School on 19th June 1968. Though he was informed by the peon and P.E.T that the Hon'ble Members were waiting for the H.M he failed to come down. Further, even by the time they had themselves inspected the piece of land situated behind the school building on the eastern side and returned, he did not come down to meet them. This clearly shows his discourteousness towards the Hon'ble Members of the Central Committee, and the Assistant Commissioner (South). His explanation cannot, therefore, be accepted and the charge framed against him in this behalf is held proved. The increment of Thiru P.G Arunachalam, H.M, C.H.S.G Koil Street, is, therefore, ordered to be stopped for six months without cumulative effect.”

    3. Hence this writ petition impeaching the validity of the impugned order.

    4. The learned counsel for the petitioner frankly stated before this Court that the grounds on which the impugned order is attacked are based on the mistaken notion that the old S. 85 to 97 of the Madras City Municipal Act (IV of 1919) are still in force and that the petitioner was unaware of the provisions of the Amending Act 56 of 1961. But the learned counsel subsequently placed stong reliance on a judgment of this Court in C. Kuppuswamy v. Corporation of Madras(1), Judgment, d. 29th March 1973 and argued that on the date of the impugned order passed against the petitioner, there was no power vested in the Commissioner to punish the petitioner.

    5. I was unable to get the exact date on which the amending Act 56 of 1961 came into force. But that would not assume any importance for the simple reason that the petitioner herein joined the service of the Corporation as early as 1960, long prior to the Amending Act, 56 of 1961, coming into force. In C. Kuppuswamy v. Corporation of Madras, it was conceded by the learned counsel for the Corporation that the petitioner therein entered the service of the Corporation only after the Amending Act, 56 of 1971, came into force, and therefore, the learned counsel did not rely on S. 102 read with Sch. II of the Amending Act 56 of 1961, for maintaining that the source and content, of the power of the Commissioner to punish the employees of the corporation is embodied in the Transitional provision No. 5 of Sch. II with reference to S. 102 of the Amending Act. 56 of 1961.

    6. One limb of the argument of Mr. Thillai Villalan is that, notwithstanding the absence of “by-laws made by the Council under S. 349 of the principal Act, whithin the meaning of S. 86 of the Amending Act, 1961”, there is the power vested in the Commissioner by the Transitional Provision No. 5 of Sch. II, read with S. 102 of the Amending Act of 1961. I shall first dispose of this limb of argument before I notice the validity of the second limb, which I shall presently deal with. In the Madras City Municipal Act, viz., the principal Act, IV of 1919, one finds Ss. 85 to 97 dealing with various aspects of the Establishments. It is of particular significance to notice the two Sections, i.e, Ss. 93 and 96. They are extracted here below:

    “S. 93: Subject to the provisions of this Act and to the by-laws and regulations for the time being in force, the Commissioner shall prescribe the duties of the Corporation establishment and exercise supervision and control over their acts and proceedings and dispose of all questions relating to their conduct, service, pay, allowances, leave, pension and provident fund privileges.”

    S. 96: “(1) Subject to the provisions of S. 94 if any officer or servant in the service of the Corporation other than an officer appointed under S. 85, S. 86 or sub-S. (3) of S. 87 is guilty of any breach of any departmental rules discipline or of carelessness, neglect of duty or other misconduct, or is unfit, the authority competent to appoint such officer or servant may impose the following penalties on him, namely:

    (i) Censure; (ii) withholding of increments of promotion, including stoppage at any efficiency bar; (iii) reduction to a lower post or time-scale, or to a lower stage in a time-scale; (iv) fine; (v) recovery from pay of the whole or part of any pecuniary loss caused to the Corporation; (vi) suspension; (vii) removal from the service of the corporation, which does not disqualify from future employment; (viii) dismissal from the service of the corporation which ordinarily disqualifies from future employment; (2) Any order passed under sub-S. (1) shall be final.

    Provided that any officer or servant in receipt of a monthly salary of not less than fifty rupees may appeal to the standing committee against any order of the Commissioner reducing, removing or dismissing him or suspending him for a period of more that one month;

    Provided further that any officer or servant in respect of a monthly salary exceeding one hundred rupees may appeal to the Provincial Government against an order of dismissal, within a period or one month from the date of the order passed by the standing committee, on appeal from such order of dismissal;

    Provided further that no Government servant employed by the Corporation shall be dismissed from such employment without the consent of the Government concerned or until three months' notice in writing to that effect shall have been given to the chief controlling authority of the branch of the Government service to which such servant belongs

    (3) Pending a resolution of the Council the commissioner may suspend any officer appointed by that authority;

    Provided always that he shall forthwith report to the council the reasons for his action.”

    For evaluating the substance of the argument a scrutiny of S. 96 would reveal that the authority competent to appoint certain employees or servants may impose eight varieties of punishment. The said Section also provides for an appeal to the Standing Committee by an employee who is in receipt of a monthly salary of not less than fifty rupees. There is an appeal to the provincial Government against an order of dismissal. A significant feature of S. 96 is the provision for the substantive punishment of suspension. There appears to be no limitation placed on the punishment of suspension. These Sections, ranging from Ss. 85 to 97 of the principal Act, have been impliedly repealed and Ss. 85 to 93 have been substituted by the Amending Act, 56 of 1961. It is stated by the learned counsel for the Corporation that the new Sections were substituted, because consequential arrangements had to be made resulting from the merger of large adjoining areas into the city of Madras which became enlarged territorially. The only Section germane to the present discussion is S. 86 of the amending Act of 1961, which is extracted here below:

    “S. 86: Conditions of service of Corporation establishments:

    (1) Save as otherwise provided in this Act, the classification, methods or recruitment, conditions of service, pay and allowances and discipline and conduct of the corporation establishment shall be regulated:—

    (i) In the case of Class-I-A, Class I-B and Class II officers, by rules made by the State Government in this behalf;

    (ii) In the case of the employees included in Class III and Class IV, by by-laws made by the council under S. 349;

    Provided that any Class I-A, Class I-B or Class II officer may be removed from office by the State Government:

    Provided further that:

    (i) The amount of any salary, leave and leave allowances, gratuity or pension granted under the said by-laws shall in no case, without the special sanction of the State Government, exceed what would be admissible in the case of Government servants of similar standing and status, and

    (ii) The conditions under which such salary and allowance are granted or any leave, superannuation or retirement is sanctioned shall not without similar sanction be more favourable than those for the time being prescribed for such Government servants.

    (2) No officer or other employee of the corporation shall be dismissed or removed by an authority subordinate to that by which he was appointed.

    (3) No such officer or employee as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

    Provided that this sub-section shall not apply;

    (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

    (b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for reasons to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or

    (c) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that in the interests of the security of the State it is not expedient to give to that person such an opportunity.

    (4) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under sub-S. (3) or whether in the security of the State it is not expedient to give to any person such an opportunity under that subsection, the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.

    (5) Every officer of the Corporation establishment shall be a wholetime officer of the corporation and no such officer shall undertake any work unconnected with his office without the permission of the commissioner;

    Provided that the order of the commissioner granting such permission shall be placed before the next meeting of the council”.

    S. 86(1) 2 provides for “by-laws made by the Council under Sec. 349 (of the principal Act) to deal with the discipline and conduct of the Corporation Establishment comprising Class III and Class IV employees”: S. 86(3) provides for the punishment of dismissal, removal or reduction in rank. It is abundantly clear that when the Legislature substituted. S. 86, it had the knowledge that S. 96 provided for eight modes of punishment and that it was satisfied with the provision for three modes of punishment. Regarding the residual modes of punishment, the Legislature thought it fit to provide for the same by means of “by-laws made by the Council under S. 349 (of the Principal Act) governing the discipline and conduct of the Corporation Establishments comprising Class III and Class IV employees”. It is conceded by the learned counsel for the respondent (as was conceded by the predecessor of the present incumbent in W.P No. 2451 of 1972 that the Corporation failed to frame any by-laws till now, and only after the judgment in W.P 2451 of 1972, the By-laws are now under preparation. Therefore, the learned counsel for the Respondent desparately chose to rely on the Transitional Provision No. 5 of Schedule II to the amending Act of 1961 read with S. 102 of the same. A reading of Transitional Provision No. 5 would make it clear that the said provision would apply to every person included in the corporation establishment immediately before the date of the commencement of the Amending Act, 56 of 1961. But the scope of the said provision is consticted by S. 102(1) which limits it to the first constitution of certain committees. Even assuming that the phrase, “and otherwise” would pertain to certain other matters not covered by S. 102, sub-S. (1) of the Amending Act, 56 of 1961, I am unable to read into Transitional provision No. 5 something pertaining to discipline and conduct of the Corporation employees. This provision, Transitional Provision No. 5, talks about “tenure, remuneration rights privileges as to pension and gratuity and other matters.” The phrase, “and other matters” has got to be construed in the context of the preceding language in the said provision. This provision obviously provides for safeguarding the rights and privileges of the employees who have entered the Corporation Establishment prior to the amending Act coming into force. At one stage, the learned counsel for the respondent argued that the scope and amplitude of this Provision No. 3 of the Transitional Provisions in Schedule II to the amending Act, 56 of 1961 is not de-limited by the scope of S. 102 of the Amending Act; even assuming that this Provision No. 5 is not constricted narrowly by the main S. 102 of the Act, and also giving the widest meaning to every word and phrase comprised in the said provision No. 5, I am unable to hold that the said Provision is so wide enough as to clothe the commissioner with the necessary power of dealing with the discipline and conduct of the Class III and Class IV employees, in the absence of “by-laws made by the Council under S. 349 of the principal Act; within the meaning of S. 86 of the amending Act 56 of 1961.” I find no substance in this argument.

    7. The second limb of the argument of the learned counsel for the Respondent is that although that Transitional Provision No. 5 of Sch. II, read with S. 102 of the Amending Act 56 of 1961 does not vest such power in the Commissioner to deal with the discipline and conduct to inflict punishment on the petitioner, he falls back on the language of S. 91 of principal Act (IV of 1919) as amended by the Amending Act 56 of 1961. To him, S. 91 of the Principal Act appears to be the reservoir of power to punish the delinquent official. I extract here below S. 91 of the Principal Act which is now in force.

    “S. 91.

    (1) The commissioner shall, from time to time lay before the standing committee a schedule setting forth the designation and grades of the officers and servants who should in his opinion constitute the corporation establishment, and embodying his proposals with regard to the salaries, fees and allowances payable to them.

    (2) The standing committee may either approve or amend such schedule as it thinks fit and shall lay it before the council with its remarks, if any.

    (3) The council shall sanction such schedule with or without modifications as it thinks fit and may from time to time amend it at the instance of the commissioner and standing committee;

    Provided that no new office shall be created without the sanction of the Provincial Government if the maximum monthly salary exceeds two hundred and fifty rupees.”

    I also extract S. 93 of the principal Act before the Amending Act, 56 of 1961 came into force:

    “S. 93:

    Subject to the provisions of this Act and to the by-laws and regulations for the time being in force, the commissioner shall prescribe the duties of the corporation establishment and exercise supervision and control over their acts and proceedings and dispose of all questions relating to their conduct service, pay, allowances, leave, pension and provident fund privileges.”

    A comparison of S. 93 of the principal Act with S. 91 of the Amending Act, 56 of 1961, would show that these two Sections are substantially in pari materia, the language as identical and the similarity in the phraseology of the two Sections is striking. The Commissioner “shall exercise supervision and control over the Corporation Establishment subject to the provisions of this Act and to the rules, bylaws and regulations for the time being in force.” Even S. 93 of the Principal Act was there in force until it was substituted by S. 91, of the Amending Act, 56 of 1961. Nevertheless there was the detailed provision embodied in S. 96 providing for eight modes of punishment. The Legislature did not rely on the so-called general power in S. 93 of the principal Act; on the contrary, there was the important S. 96 (of the Principal Act) placed in conjunction with S. 93 (of the Principal Act). But, when the Legislature made the necessary amendments to this bunch of Sections, viz., S. 85 to 97, they provided only for three modes of punishment, as already mentioned by me, in S. 86 sub-S. (3) of the Amending Act, 56 of 1961. It further provided, in S. 86(1)(ii), for “bylaws made by the council under S. 349.’: Therefore, the so-called general power vested in the Commissioner by S. 91 of the amending Act, 56 of 1961 is subject to “by-laws for the time being in force, particularly at the time of the infliction of the punishment on the petitioner; the Commissioner cannot be permitted to fall back on the so-called general power of control. In law, such a thing is impermissible, particularly, in the light of Ss. 86 and 91 of the Amending Act, 56 of 1961.

    8. The Respondent pleaded that even in the absences of the by-laws, the Commissioner can rely on the common law. Frankly, in the face of statutory provisions for such punishments, I am unable to follow such an argument. A reading of S. 102(3) makes an ample provision for resolving any difficulty arising in first giving effect to the provisions of the Amending Act, 56 of 1961, or any difficulty experienced in giving effect to the provisions of the principal Act itself. It is certainly open to the Respondent to invoke the State Government's power to make such rules under S. 102 Sub-s. (3) of the amending Act, 56 of 1961 to meet the present difficulties, or to make the necessary by-laws within the meaning of S. 86(1)(ii) of the amending Act of 196 i with immediate effect. I hold that on the date of the impugned order, viz.. 10th November 1969, the respondent has had no power vested in him to punish the petitioner.

    9. The respondent relied on a concession built on the fallacy committed by the petitioner in thinking that the old bunch of Ss. 85 to 97 were still in force. Certainly, the petitioner is not a super-legislature to give life to the implied repeal of Ss. 85 to 97 which have been substituted by Ss. 85 to 93 by the amending Act, 56 of 1961 and the other four Sections, viz., Ss. 94 to 97 which have been added by the amending Act 15 of 1965. It is brought to my notice that Ss. 94 and 95 were later repealed by the amending Act 10 of 1968. This, I am slating for the purpose of completing the history of legislation in this regard.

    10. The impugned order of the Respondent dated 10th November 1969 is quashed by the issuance of a writ of certiorari. The Writ Petition is allowed as prayed for with costs. Advocate's fee Rs. 250.

    V.C.S

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    P.G Arunachalam v. The Commissioner, Corporation Of Madras, Madras
    (Aug 28, 1973)