Holding

The phrase "whole number of members" in the 1974 Rules refers to the total number of elected members (those entitled to vote), excluding nominated members.

Summary

The case concerned a no‑confidence motion against the Chairman of the Sanchar Municipal Board, which had 20 elected members, 2 nominated members and one ex‑officio MLA, totalling 23 members. The motion was declared passed by the Sub‑Divisional Officer because the required two‑thirds majority was calculated on the basis of 21 members (excluding the nominated members), giving a threshold of 14 votes, and 15 members voted in favour. The appellant challenged this, arguing that the "whole number of members" under Rule 3(9) of the 1974 Rules should include the nominated members, making the threshold 15.33 and the motion unsuccessful. The Supreme Court examined the definition of "whole number" in Section 3(36) of the Rajasthan Municipalities Act, the amendments made by the 74th Constitutional Amendment, and the purpose of the Rules, holding that the expression must be read as the total number of members entitled to vote – i.e., only elected members. Consequently, the nominated members are excluded from the calculation of the majority for a no‑confidence motion. The Court dismissed the civil appeals, confirming the SDO’s decision and leaving the Chairman’s removal standing.

Issues considered

The correct interpretation of "whole number of members" in Rule 3(9) of the Rajasthan Municipalities (Motion of No‑confidence against Chairman/Vice‑Chairman) Rules, 1974 for calculating the majority required for a no‑confidence motion.
Whether nominated members, who lack voting rights post‑1994 amendment, should be counted in the "whole number" for the purpose of the motion.
Whether the 1974 Rules must be read in light of the amendments to the Rajasthan Municipalities Act, 1959 and the 74th Constitutional Amendment, or whether they create a casus omissus.

Legislation cited

Constitution of Indias. Article 243R
Rajasthan Municipalities Act, 1959s. 3(36), s. 65, s. 72, s. 9

Subjects

municipal lawno‑confidence motionelected membersnominated membersstatutory interpretationRajasthan Municipalities Act74th Constitutional Amendmentmajority calculationmunicipal board

Judgment

A RAMESH MEHTA
v.
SANWAL CHAND SINGHVI AND ORS.

APRIL 20, 2004

B [V.N. KHARE CJ., S.B. SINHA AND S.H. KAPADIA, JJ.]

Municipal Laws:

Rajasthan Municipalities Act, 1959-Sections 3(36), 9, 65 and 72-
C Rajasthan Municipalities (Motion of No-confidence against Chairman/Vice
Chairman) Rules, 1974-Rule 3(5), (8) and (9)-No-Confidence Motionagdinst
Chairman of Board-Counting of majority of 213 of the whole number of
members of Municipal Board-If ~nclusive ofnominated members in Municipal
Board-Held: Prior to the 74th Constitutional amendment of 1994 and post
D 1994 the expression "whole number" of members connotes the 'total. number
ofelected members '-However, pursuant to Constitutional amendment of 1994,
sections 9, 65 and 72 were amended and nominated members were denied
right to vote-Hence, whole number of members exclude nominated members
and as such the office of Chairman would stand vacated on passing of no-
conjidence motion by the requisite majority of members of the Board who are
E entitled to vote-Constitution of India, 1950-Article 243R

Sanchar Municipal Board consisted of 20 elected members, 2
nominated members and one MLA (ex-officio), in all 23 members. No
confidence motion was moved against the Chairperson-appellant In the
F presence of the SDO the motion was carried out as the whole number of
members on Board excluding nominated members was 21and2/3rd of21
being 14, against which 15 members voted. Appellant filed petition
challenging the decision ofSDO as whole number ot members of Board was
23 inclusive of2 nominated members and 2/3rd of23 being 15.33 and not
14. Single Judge of High Court held that nominated members were included
·G while counting the whole number of members, even though they had no right
to vote. Aggrieved respondent filed an appeal. Division Bench allowed the
appeal holding that the expression 'whole numbers of members' in rule 3(9)
of Rajasthan Municipalities (Motion of No-confidence against Chairman/
Vice Chairman) Rules, 1974 read· with sections 3 (36) and 9 ofRajasthan

H 418
R. MEHTA v. S.C. SINGHVI 419
Municipalities Act, 1959excluded nominated members. Hence the present A
appeals.

Appellant-Chairperson contended that the right to elect is a statutory
right; that in each case of election and removal, the court has to examine the
Act in question; that the expression "whole number of members" in the Act
cannot be construed as 'whole number of elected members" since after the B
74th Constitutional Amendment, the legislature did not amend the definition
of 'member' under section 3(15) and "whole number" under section 3(36)
which includes nominated members and the composition of Municipal Board
under section 9(a)(i) and (ii) included nominated members, who formed the
part of the whole number of the members; that on reading rule 3(8) and rule C
3(9) of 1974 Rules along with section 3(36) of the Act, it is clear that the no-
confidence motion has to be carried by requisite majority of 2/3rd of the whole
number of members including nominated members; and that the respondent
is claiming casus omissus that the words 'whole number of members' must
be construed as 'whole number of elected members'.
D
Respondent No. 1 contended that the expression 'whole number of
members" appearing in sub-rules (5), (8) and (9) of Rule 3of1974 Rules has
to be read with section 3(36) of the Act which is a definition section and states
that unless the context otherwise requires the expression "whole number of
members" when used with reference to the members ofa board would mean
the total number of members holding office at the time; that prior to 1994 E
amendment, the co-opted members were at par with the elected members of
the board, however after 1994 Amendment the nominated members had no
right to vote and as such even prior to 1994 Amendment to the Act, the
expression "whole number of members" appearing in Rule 3(8) and (9) mMnt
the "total number of elected members"; that pursuant to the 74th F
Constitutional Amendment, seetions 9, 65 and 72 of the Act were amended by
which nominated members were denied the rjght to vote but the 1974 rules
remained unchanged and as such the 1974 Rules have to be construed in
accordance with amended provisions of sections 9, 65 and 72 which debar the
nominated members from voting in the meetings of the Municipal Boards;
G
Dismissing the appeals, the Court

Per Kapadia, J. (for himself and V.N. Khare, CJ):

HELD: 1. The right to elect and the right to be elected is a statutory
right and that the mode and manner of election to any post could be different H ·
420 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A from the scheme of removal of a person from that post However, in each case,
the Act is to be examined. (434-F)

2.1. Under the Rajasthan Municipalities Act, 1959 prior to the 74th
Constitutional amendment of 1994 and post 1994, the legislative intent has
been that the office of the ChairmanNice~Chairman shall stand vacated on
B passing ofno-confidence motion by the requisite majority of members of the
board who are entitled to vote. (436-B)

2.2. Article 243R of the Constitution brought about a drastic change in
the matter of composition of municipalities. Under the Act, members of a
municipality are persons chosen by direct election by the residents of a
C municipal area (ward). Article 243R (2)(a)(i) allows the legislature of a State
to appoint any person as a.member of the board who has special knowledge in
the field of municipal administration, however, the proviso appended to the
Article precludes person nominated under sub-clause (i) from having a right
to vote in the meetings of the municipality. Therefore, the Constitution makes
D a distinction between elected members and nominated members who play
essentially an advisory role. Pursuant to the 74th Constitutional amendment
of 1994, sections 9, 65 and 72 of the Rajasthan Municipalities Act, 1959 were
amended. Prior to the amendment, the co-optzd members were at par with the
elected members, both having right to vote to remove ChairmanNice-
Chairman from his office on passing of no-confidence motion, however, after
E 1994 only elected members and members of the legislative assembly have a
right to vote under section 9(1) of the Act Under section 65(2) as amended,
the Chairman has to be elected by 'elected members of the board". Prior to
1994, the Chairman was to be elected by the "members of the board", which
is the phrase used in the unamended section 65(2), as the co-opted members
F had a right to vote. This phrase was changed in section 65(2) as amended and
was substituted by the expression 'elected members of the board". In fact, the
'whole number of members" earlier appearing in sections 65 and 72 of the
Act have been deleted. The scheme of post 1994 Act is that the Chairman/
Vice-Chairman shall be elected by the elected members of the boards and their
office shall stand vacated on passing of no confidence motion by the elected
G members of the board. (435-C-G)

Raees Ahmad v. State of U.P., [2000) 1 SCC ~32, distinguished.

2.3. Section 3 of the Act begins with the words 'unless the context
otherwise requires" an.d section 3(36) defines the expression 'whole number"/
H "total number" to mean total number of members holding the office at the
R. MEHTA v. S.C. SINGHVI 421

given time. The said expression 'whole number of members" finds place in A
rule 3(5), (8) and (9) of the Rajasthan Municipalities (Motion of No-confidence
against ChairmanNice Chairman) Rules, 1974. Hence, rule 3(5), (8) and (9)
have to be read in the context of the provisions of the said Act. Hence, the
expression "whole number" or "total number'' connotes the 'total number
of elected members". (436-A-B]
B
2.4. Word 'majority' means 'majority of persons entitled to vote. It finds
place in sections 65(9) and 72(9) of the Rajasthan Municipalities Act, 1959
prior to amendment. The words "whole number of members" under rule 3 of
the 1974 Rules meant total number of members who have voting rights.
(434-D-E] C
Knowles v. Zoological Society ofLondon., (1959] 1 1 WLR 823, referred
to.
Law and Practice of Meetings by Shackleton, 8th Edition p. 66,
referred to.
D
2.5. It cannot be accepted that the respondent is claiming casus omissus
that the words "whole number of members" must be construed as 'whole
number of elected members'. Although a Court cannot supply casus omissus,
it is equally clear that it should not interpret a statute so as to create a casus
omissus when there is really none. (436-D-E) E
State of Karnataka v. Union of India and Anr., AIR (1978) SC 68,
referred to.

Per Sinha J: (Supplementing):

1.1. A right to contest election although arises under a statute but F
having regard to the Constitution 74th Amendment Act, the interpretation
thereof must be made keeping in view the constitutional scheme. Democracy
at the grass-root level was sought to be introduced by reason of the said
amendment in the Constitution. Once the concept of a grass-root democracy
is accepted, a pragmatic and purposive meaning to the provisions of the Act G
must be assigned. (438-D-F]

1.2. The interpretation clause in the Rajasthan Municipalities Act, 1959
is prefa(,'.ed with the expression "unless otherwise requires by the context".
A definition is not to be read in isolation. It must be read in the context of the
phrase which would define it. It should not be vague or ambiguous. The H
422 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A definition ofwords must be given a meaningful application; where the context
makes the definition given in the interpretation clause inapplicable, the same
meaning cannot be assigned. [439-B-C]

State ofMaharashtra v. Indian Medical Association, [2002) l SCC 589;
and National Insurance Co. Ltd v. Swaran Singh and Ors., [2004) 3 SCC
B 297, referred to.

1.3. A subordinate or delegated legislation must also be read in a
meaningful manner so as to give effect to the provisions of the statute. In
selecting the true meaning of a word regard must be had to the consequences
C leading thereto. If two constructions are possible to adopt, a meaning which
would make the provision workable and in consonance with the statutory
scheme should be preferred. [440-B-C]

Reema Aggarwal v. Anupam and Ors., [2004) 3 SCC 199, relied on.

D Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd,
Baroda, (2004)3 SCALE 546, referred to.

R. v. Secretary ofState for the Home Department ex. D. Venables, (1998)
AC 407, referred to.

E 2.1. _Rajasthan Municipalities (Motion of No-confidence against
ChairmanNice-Chairman) Rules, 1974 laying down the procedure have not
been altered despite the fact that amendments have been carried out in the
Municipalities Act in the year 1994 in consonance with Article 243R of the
Constitution of India. All members who were not elected members under the
unamended provisions were treated as elected members. Their rights were at
F par with them. The very fact that the Constitution made a difference between
an elected member and nominated member in the matter of election and removal
of a Chairman is suggestive of the fact that now a new interpretation is called
for. Nominated members are persons with special knowledge in the subject.
They are nominated so that they may render their advices properly to the
members of the Board which would enable it to run the municipal affairs
G efficiently. They remain as member of the Board irrespective of the fact that
as to who is the person occupying the post or his political affinity. He is not
concerned with election. He does not take part in it. Afortiorari he has also
not been assigned any role to play as regard removal of the Chairman or Vice-
Chairman. [438-G-H; 439-A-BJ

H
R. MEHTA v. S.C. SINGHVI· 423

2.2. By reason of the amendment, however, no indication has been given A
that by reason thereof a special right is sought to be created in the nominated
members although they would not participate in such a proceedings and would
not have any voting right either at the election of the Cl!airman or in the
/
proceedings for his removal. The Rules which were made in the year 1974
having not been amended; with a view to give an effective and proper meaning . B
must be construed to mean that only members with voting right are entitled '
to participate in that proceedings and not the nominated members. [443-C-E}

The Workmen of Mis. Firestone Tyre & Rubber Co. of India (P) Ltd.
and Ors. v. The Management and Ors., AIR (1973) SC 1227 and Raees Ahmad
v. State of U.P. and Ors., [2000] 1 SCC 432, referred to. C
CNIL APPELLATE JURISDICTION: Civil Appeal No. 6133 of2002.

From the Judgment and Order dated 14.8.2002 of the Rajasthan High
Court in D.B.S.A. No. 329of2002

WITH
'D

C.A. Nos. 6134-35, 6136, 8564/2002 and C.A. No. 2393 of2003.

Manish Singhvi, Naresh Kumar, Ms. Monica Arora Garg for Goodwill
Indeevar, Ms. Sandhya Goswami, Sushil Kumar Jain, A.P. Dhamija, H.D. Thanv~
Sarat Sinthania, Punit Jain, L.P. Singh and Ms. Pratibha Jain for the appearing E
parties.

The Judgment of the Court was delivered by

KAPADIA, J. The question raised in these civil appeals is-whether in F
counting "the whole number of members of the municipal board" in terms
of rule 3(9) of the Rajasthan Municipalities (Motion of No-Confidence against
Chairman/Vice-Chairman) Rules, 1974, nominated members have to be taken
into consideration?

For sake of convenience, we refer to the facts in Civil Appeal No. 6133 G
of2002.

On.19.8.2000, elections were held for the Municipal Board, Sanchar,
district Jalore. The appellant Ramesh Mehta was elected as Chairperson of the
Municipal Board. On 24.10.2000, the State Government nominated two members
on the Board. On 6.10.200 l, the total number of members of the municipal H
424 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A board consisted of 20 elected members, 2 nominated members and one MLA
(Ex-officio). Thus, the total number of members on 6.10.2001 were 23. On that
day, the no confidence motion was moved against the Chairperson, in which
15 members voted for the motion. The motion was conducted by the SDO,
Sanchar as a nominee of the Collector, Jalore. According to the SDO, the no
B confidence motion stood carried out as the whole number of members on the
board, excluding the nominated members, was 21 and 2/3rd of 21 was 14,
against which 15 members voted for the motion. According to the appellant,
the decision of SDO was erroneous as the whole number of members of the
board was 23 and not 21 as determined by the SDO and 2/3rd of 23 being
15.33, the motion stood defeated. The decision of the SDO was challenged
C by the appellant herein in the High Court by filing petition no.4178 of 2001.
By judgment and order dated 21.5.2002, the learned Single Judge of the
Rajasthan High Court, Jodhpur Bench held that in counting the whole number
of members, nominated members have also to be taken into account even
though they had no right to vote. The learned Single Judge relied upon the
judgment of this Court in the case Raees Ahmad v. State of U.P., reported in
D [2000] l sec 432. Aggrieved by the decision, the respondent herein carried
the matter in appeal to the Division Bench of the High Court, which t<!ok the
view that the expression "whole number of members" used in rule 3(9) of
Rajasthan Municipalities (Motion of No-Confidence against ChairmanNice-
Chairman) Rules, 1974 (hereinafter referred .to as "the 1974 Rules") excluded
E nominated members. It was observed by the Division Bench that the said rule
3(9) of the 1974 Rules is required to be read with section 3(36) and section
9 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as "the
Act") and if so read, the expression "whole number of members!' would
exclude nominated members. Consequently, the appeal was allowed a.1d the
decision of the SDO was confirmed. Hence, the original petitioner, the ousted
F Chairman of the Municipal Board has come by way of civil appeal. The
question herein is common in all civil appeals herein.

Shri Manish Singhvi, learned counsel appearing for the appellant
submitted that the right to elect is neither a fundamental right nor a common
G law right. It is a statutory right. He submitted that the electoral college which
elects a person may be different from the electoral college which removes
such person from the post. In this connection, he placed reliance for purposes
of illustration on Articles 54 and 61 of the Constitution. He submitted that in
each case of election and removal, the Court has to examine the Act in
question. Elaborating his argument, it was urged that the entire thrust of the
H argument of the respondent was that the words "whole number of members"
R. MEHTA v. S.C. SINGHVI [KAPADIA, J.] 425
must be construed as "whole number of elected members" and, therefore, the A
respondent is claiming casus omissus. He submitted that this Court has
repeatedly held that a matter which should have been but has not been·
provided for in a statute cannot be supplied by the Courts. In this connection,
he relied upon the judgment of the Privy Council in the case of Hansraj Gupta
v. Dehra Dun Mussoorie Electric Tramway Co. Ltd, reported, in AIR (1933)
PC 63 and Smt. Hira Devi and Ors. v. District Board, Shahjahanpur reported . B
in [1952] SCR 1122. He next contended that despite the 74th Constitutional
Amendment, the legislature did not amend the definition of "member" under
section 3(15) and the definition of the words "whole number" under section
3(36) which includes nominated members. Thus, the composition of municipal
boards under section 9(a)(i) and (ii) included nominated members, who formed C
the part of the whole number of the members of the board and, therefore, the
expression "whole number of members" in the Act cannot be construed as
"whole number of elected members". He submitted that under Article
243R(2)(b), the legislature may by law provide for a manner of election of the
Chairman. He submitted that the rules of 1974 provided for removal of chairman,
which was different from election of the chairman. In this connection, he D
submitted that even though a chairperson may be elected from the electoral
college of elected members, the removal could be due to 2/3rd of the members
including nominated members. In the circumstances, he submitted that if one
reads rule 3(8) and rule 3(9) of 1974 Rules along with section 3(36) of the Act,
it is clear that the no-confidence motion has to be carried by requisite majority E
of2/3rd of the whole number ofmembers including nominated members. He,
therefore, submitted that the High Court erred in holding that the words
"whole number ofmembers" must be construed as "whole number ofelected
members".

Shri S.K Jain, the learned counsel appearing on behalf of respondent F
No.l, Shri Sanwal Chand Singhvi, submitted that Rule 3(9) of 1974 Rules
contains the expression "whole number of members". He urged that one has
to read the said expression in the context of section 3(36) of the Act which
is a preliminary definition section and which states that unless the context
otherwise requires the expression "whole number of members"· when used G
with reference to the members of a board shall mean the total number of
members holding office at the time. It was further contended that under
section 9(5) of the Act, prior to 1994 amendment, the co-opted members had
to be treated for all purposes as elected members of the board which position
changed after 1994 Amendment under which nominated members had no right
to vote. It was, therefore, urged that even prior to 1994 Amendment to the H
426 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A Act the expression "whole number of members" appearing in Rule 3(8) and
(9) meant the "total number of elected members". Learned counsel for
respondent No.I further pointed out that in 1994, sections 9, 65 and 72 of the
Act were amended in pursuance of the new chapter XIV-B being inserted in
the Constitution by Constitution (Seventy fourth) Amendment Act, 1994. It
B was pointed out that under the proviso to sub-Article (2)(a)(i) of Article 243R,
persons nominated were precluded for voting. In pursuance of the said
amendment in the Constitution, Sections 9, 65 and 72 of the Act were amended
by which nominated members were denied the right to vote. It was pointed
out that although the Act stood amended, the 1974 Rules remained unchanged
and, therefore, the 1974 Rules have to be construed in accordance with
C amended provisions of sections 9, 65 and 72 which d~bar the nominated
members from voting in the meetings .of the Municipal Boards. In support of
the above submissions, reliance was also placed on section 3(36) of the Act,
which, as stated above, is the definition section which begins with the words
"unless the context otherwise requires". For the reasons herein, it was
submitted on behalf of the respondents that the "whole number of members"
D appearing in sub-Rules (5), (8) and (9) of Rule 3 of 1974 Rules must be
construed as "total number of elected members".

Before adverting to the arguments advanced on both sides, we reproduce
hereinbelow the relevant provisions of the said Act (pre and post 1994) :-

E A comparative chart showing the provisions of the Rajasthan
Municipalities Act, 1959 before and after the Amendment in 1994:

Provisions Prior to Amendment Provisions After Amendment

"9. Composition of boards. - (I) "9. Composition of boards - (I)
F Subject to the provisions contained Subject to the provisions contained
in the succeeding sub-sections, in the succeeding sub-sections, but
every board shall consist of such save as provided in the following
number of seats as may be fixed by provisions of this sub-sectiqn, all
the State Government from time to seats in a municipality shall be filled
G time by notification in the Official by persons chosen by direct election
Gazette. from the territorial constituencies
known as wards, the number of such
(2) - (3) xxx .... xxx ....... xxx
seats, not being less than thirteen,
4. All the seats fixed for a board, being fixed by the State Government
from time to time by notification in
H general as well as reserved, shall be
R. MEHTA v. S.C. SINGHVI [KAPADIA, J.] 427

filled up by election held in the the Official Gazette:- A
manner provided for by and in the
order made under Section 29. (a) the following shall be represented
on the board, council or
5. To every board there shall be corporation, as the case may be,
appointed by co-option in the viz:
manner provided for by order
published in the official Gazette - (i) a member of the Rajasthan
Legislative Assembly
(Q Two persons belonging to the representing a constituency
female sex if no such person which comprises wholly or
has been returned to the board partly the area of a municipality; C
by election referred in sub- and
sec.(4), or
(ii) three persons or ten percent
(ii) One person belonging to the of the number of elected
female sex if only one such members of the municipaHty,
person has been returned to whichever is less, having 0
the board by such election, and special knowledge or
such co-opted person or . experience in municipal
persons being treated for all administration, to be nominated
purposes of this Act as elected by the State Government by
member or members of the notification in the Official
board, and the number of seats Ga7.ette: E
fixed for that board under sub-
sec .( l) being deemed to be Provided that -
increased accordingly.
(i) the provisions contained in section
26 and section 59 of this Act shall be
applicable to the persons to be F
nominated or nominated under sub-
clause (ii);

(ii) the State Government shall have
power to withdraw a member
nominated under sub-clause (ii) at any G
tiine;

(iii) the term of co-opted members, if
any, who were co-opted and are
continuing as such on the date of H
428 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A commencement .of the Rajasthan
Municipalities (Second Amendment)
Act, 2000 (Act No.22 of 2000) shall
come to an end upon such
commencement:

B Provided further that a member
referred to in sub-clause (ii) shall
not have the right to vote in the
meetings of a board, council or
corporation as the case may be;
c (b) A member of the house of people
representing a constituency which
comprises wholly or partly the area
of a municipality with a municipal
council or as the case may be, a
D municipal Corporation shall be
represented on the Council or
Corporation of such municipality:

Provided that a member referred to
in sub-clause (i) of clause (a) shall
E have a right to vote in the meetings
of a Board, Council or Corporation
and a member referred to in clause
(b) shall have a right to vote in the
meetings of a Council or
Corporation;"
F
"65. Every board to have a chairman "65. Every board to have a chairman
and a vice-chairman - and a vice-chairman -

(l) For every board, there shall be (l) For every board, there shall be a
G chainnan and a vice-chairman. chairman and a vice-chairman.

(2) The chairman shall be elected, in (2) The Chairman shall be elected, in
accordance with rules made by the accordance with rules made by the
State Government in that behalf, by State Government in that behalf, by
the members of the board from the elected members of the board
H amongst themselves. from amongst themselves.
R. MEHTA v. S.C. SINGHVI [KAPADIA, J.] 429

(3) The vice-chairman shall be (3) The vice-chairman shall be elected A
elected by the members of the board by the elected members of the board
from amongst themselves in from amongst themselves in
accordance with rules made in this accordance with rules made in this
behalf. behalf.

(4) For every council there shall be (4) For every council there shall be a B
a president and a vice-president. president and a vice-president.

(5) The president and the vice- (5) The president and the vice-
president shall be elected in president shall be elected in
accordance with rules made by the accordance with rules made by the
State Government in that behalf, by State Government in that behalf, by C
the councilors of the council from the elected councilors of the councH
amongst themselves. from amongst themselves.

(6) to (8) xxx xxx xxxx (SA) to (8) xxx xxx xxx

(9) Every chairman and every vice- (9) Every chairman and every vice-
0
chairman of a board shall forthwith chairman of a board shall forthwith
be deemed to have vacated his be deemed to have vacated his office,
office, if a resolution expressing if a resolution expressing want of
want of confidence in him is passed confidence in him is passed in
by the votes of a majority of the accordance with the procedure E
whole number of members at a prescribed.
special general meeting convened
for the purpose.

(10) to (15) xxx xxx xxx" (I 0) to........ xxxxxx xxxxxxx"
F
"72. Motion of non-confidence "72. Motion of non-confidence
against chairman [or vice- against chairman. - (I) Motion
chairman) -(I) A motion expressing expressing non-confidence in the
non-confidence in the chairman [or Chairman or the vice-chairman shall
vice-chairman] shall be made only be made and considered in the
in accordance with the procedure manner prescribed. G
laid down in this section.
(2) A written notice of intention to (2) No notice of motion under this
make a motion of non confidence in section shall be made within one year
the chairman [or vice-chairman], of the assumption of office by a
H
430 SUPREME COURT REPORTS [2004] SUPP. t S.C.R.

A signed by such number of members Chainnan or a Vice-Chainnan.
of the board as constituted not less
than one-third of the whole number . v
of such members, together with a
copy of the motion which it is ·
proposed to make, shall be sent to
B the prescribed authority, who shall
thereupon convene a meeting for
the consideration of the motion to
be held at the office of the board
on the date and at the time
c appointed by him, which shall not
be earlier than twenty or later than
thirty days from the date of the
receipt of the notice.

(3) The prescribed authority shall (3) If a motion under sub-section {I)
D send by registered post not less is not carried, no notice of a
than seven clear days before the subsequent motion expressing non-
date of the meeting a notice of such confidence in the same Chainnan or
meeting and of the date and the Vice-Chairman shall be made until after
time to be appointed therefore to the expiration of two years from the
E every member of the board. date of the meeting in which the
motion was considered." ·
(4)to(7) xxx xxxxxx

(8) Upon the conclusion of the
debate or upon the expiry of the
said period of four hours, as the
F
case may be, the motion shall be
put to the vote of the board and the
prescribed authority or his nominee
shall neither speak on the merits
thereof nor vote thereon.
G
(9) If the motion is not carried by a
majority specified in sub-section (9)
of section 65 or if any meeting
cannot be held for want of a
quorum, no notice ·of any
H
R. MEHTA v. S.C. SINGHVI [KAPADIA, J.] 431
subsequent motion of non- A
confidence in the same chainnan (or
vice-chairman) shall be received
until the expiry of a period of six
months from the date of the
meeting."
B
Article 243R (1) and (2) of the Constitution was inserted by Constitution
(Seventy Fourth) Amendment Act, 1994 under Chapter XIV-B. It lays down
guidelines with regard to the Constitution, composition, election and rights
of the members of a municipality. We quote hereinbelow the relevant
provisions:- C
"243R. Co ... position of Municipalities. - (1) Save as provided in
Clause (2), all the seats in a Municipality shall be filled by persons
chosen by direct election from the territorial constituencies in the
Municipal area and for this purpose each Municipal area shall be
divided into territorial constituencies to be known as wards. D
(2) The Legislature of a State may, by law, provide -

(a) for the representation in a Municipality of -

(i) persons having special knowledge or experience in Municipal
administration; E
(u) the members of the House of the People and the members of
the Legislative Assembly of the State representing
constituencies which comprise wholly or partly the Municipal
area;
F
(iit) the members of the Council of States and the members of the
Legislative Council of the State registered as electors within
the Municipal area;

(iv) The Chairpersons of the Committees constituted under clause
(5) of Article 2438: G
Provided that the persons referred to in paragraph (i) shall
not have the right to vote in the meetings of the Municipality;

(b} the manner of election of the Chairperson of a Municipality."

As stated above despite the constitutional amendment and the H
432 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A amendments to sections 9, 65 & 72 of the Act, the 1974 Rules were not
amended. We quote hereinbelow section 3(36) of the Act which defines the
tenn "whole number ofmembers" as well as Rule 3 of the 1974 Rules which
as stated above have remained unamended even after 1994 :-

"Section 3. Definitions - in this Act unless the context otherwise
B requires -

. (36) 'whole number' or 'total number' when used with reference to the
members of a board, means the total number of members holding
office at the time. "

C "Rule 3. Procedure etc. - (I) A written notice of intention to make
a motion of non-confidence in the Chairman or Vice-Chairman signed
by one third members of the Board together with a copy of the motion
which is proposed to be made, shal! be sent to the Collector of the
District, who shall thereupon convene a meeting for the consideration
of the motion to be held at the office of the Board on the date and
D at the time appointed by him, which shall not be earlier than twenty
or later than thirty days from the date of the receipt of the notice.

(2) The Collector shall send by registered post not less than seven
clear days before the date of the meeting, a notice of such meeting
and of the date and time fixed thereof to every member of the board.
E
(3) The Collector or his nominee shall preside at such meeting and if
within half an hour from the time appointed for the meeting collector
or his nomine':! is not present or is unable for any unavoidable cause
to preside at the meeting, the meeting shall stand adjourned to the
date and the time to be fixed and notified to the members.
F
(4) A meeting convened for the purpose of consideration. of the
motion of no-confidence under these rules shall not for any reason
except stated at sub-clause (3) be adjourned.

(5) As soon as the quorum is present, the Collector or his nominee
G shall read the motion for the consideration of which the meeting has
been convened and declare it fo be open for discussion. No meeting
for the consideration of motion of non-confidence shall be held unless
the quorum is present. One-third of the whole number of members
shall form the quorum.

H (6) Such discussion shall not be adjourned and shall automatically
R. MEHTA v. S.C. SINGHVI [KAPADIA, J.) 433
tenninate on the expiry for four hours from the time fixed for the A
commencement of the meeting unless it is concluded earlier.

(7) If the conclusion of the debate or upon the expiry of the said
period of four hours, as the case may be, the motion shall be put to
the vote of the Board and the Collector or his nominee shall neither
speak on the merits thereof nor vote thereon._

(8) If the inotioii-ls not carried by 2/3rd majority of the whole number
ofmembers, or if any meeting cannot be held for want of quorum, the
motion of no-confidence against Chainnan or Vice-Chainnan, as the
case may be, shall be deemed to have been lost.
c
(9) If the motion is carried by a majority of 2/3rd number of whole
number of members, the motion shall be deemed to have passed
against the Chainnan or Vice-Chainnan shall forthwith be deemed to
have vacated his office."

The question involved in the present civil appeals is whether nominated D
members in a municipal board are to be counted for calculating the majority
required for carrying a no confidence motion against a chairman/vice-chairman
of the board.

At the outset, we may notice the legal position prior to 1994. Section
3, which is a definition section, begins with the words "unless the. context E
otherwise requires". Section 3(36) defines the expression "whole number" or
"total number" to mean total number of members holding the office at the
time. Under section 72 read with section 274 of the said Act, the State
Government enacted the 1974 Rules, which have remained unchanged till
date: Rule 3 prescribes procedure for passing no-confidence motion. Rule 3(5) F
states that no meeting for consideration of no-confidence motion shall be
held unless the quorum of I/3rd of the whole number of members is present.
Rule 3(8) states that if the motion is not carried by 2/3rd majority of the whole
number ofmembers or if any meeting cannot be held for want of quorum, the
motion of no-confidence against the chairman/vice-chairman shall be deemed
to have been lost. Rule 3(9) states that if the motion is carried by a majority G
of 2/3rd of the whole number ofmembers, the motion shall be deemed to have
been passed. Section 9(4) dealt with co-option of two members. Under clause
(ii) of sub-section (5) of section 9, the co-opted members had a right to vote
on all motions and accordingly they were put on par with elected members.
Under section 65(9) of the Act, the office of the chainnan/vice-chainnan stood H
434 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A vacated as and when no-confidence motion was passed by a majority of "the
whole number of members" and conversely if the motion was not carried by
a majority, such motion would fail. Reading the above provisions of the un-
amended Act and the 1974 Rules, it is clear that even prior to 1994 the
legislative intent was that the chairman/vice-chairman had to vacate his office
B on passing of no-confidence motion by requisite majority of members who
had the right to vote, which included the co-opted members. In Law and
Practice of Meetings by Shackleton [8th Edition Page-66] ~hile explaining
the word "Majority" the learned author states that in legislative assemblies
it is usual to decide the questions by a majority of those who have voting
rights. The learned author, further states, that in cases where a motion is to
C be determined by a majority consisting of 2/3rd of the votes, the word
"Majority" would mean majority of persons entitled to vote on the proposal
and once the motion is voted upon by the requisite majority, it becomes
resolution of the meeting. Therefore, the word "majority" would mean majority
of persons entitled to vote. In the present case, the word "majority" finds
place in sections 65(9) and 72(9) of the Act prior to amendment. Therefore,
D even prior to 1994 amendment of the Act, the legislature intended that the
chairman/vice-chairman of the municipal board shall be removed only by a
requisite majority of members having right to vote on the motion. We are,
therefore of the view that even prior to 1994, the words "whole number of
members" under rule 3 of the 1974 Rules meant total number of members who
E have voting rights.

There is no dispute with the proposition that the right to elect and the
right to be elected is a statutory right and that the mode and manner of
election to ~ny post could be different from the scheme of removal of a person
from that post. However, in each case, we have to examine the Act in question,
F which we have done hereinabove. In the circumstances, we do not wish to
discuss the judgments cited on behalf of the appellant in support of the
above proposition. However, reliance was placed on the judgment of this
Court in the case of Raees Ahmad v. State of U.P., reported in [2000] 1 SCC
432. In the said case this Court was concerned with the provisions of U.P.
I
G Municipalities Act under which the chairman is elected by direct election. \
Under section 43 of the U.P. Act the chairman is elected directly by the
electorate on the basis of adult franchise exercised by the voters of the area.
It is the case of direct election. On the other hand, in the present case under
section 65 of the Rajasthan Municipalities Act with which we are concerned
the chairman is elected from amongst the elected members of the board. This
H distinction, in our view, is very important. As stated above prior to 1994 the
R. MEHTA v. S.C. SINGHVI [KAPADIA, J.] 435
co-opted and the elected members were put on par. Both the categories had A
the right to vote. The chairman was elected from amongst the members of the
board. Consequently, the chairman/vice-chairman had to vacate the office
when such members voted in support of the motion. In the circumstances, the
judgment of this Court in the case of Raees Ahmad (supra) has no application
to the facts of the present case.
B
In the present case, on facts, we are concerned with post 1994 position.
Article 243R brought about a drastic change in the matter of composition of
municipalities. It lays down guidelines with regard to the constitution,
composition, election and rights of the members of a municipality. Under the
said Act, members of a municipality are persons chosen by direct election by C
the residents of a municipal area (ward). Article 243R(2)(a)(i) allows the
legislature of a State to appoint any person as a member of the board who
has special knowledge in the field of municipal administration, however, the
proviso appended to the said Article precludes persons nominated under
sub-clause (i) from having a right to vote in the meetings of the municipality.
The Constitution, therefore, makes a distinction between elected members and D
nominated members who play essentially an advisory role. Pursuant to the
74th Constitutional amendment of 1994, sections 9, 65 and 72 of the Act were
amended. Prior to the amendment the co-opted members were at par with the
elected members, however, after 1994 only elected members and members of
the legislative assembly have a right to vote under section 9(1) of the Act. E
Under sub-section (2) of section 65, as amended, the Chairman has to be
elected by "elected members of the board". This change is very important.
Prior to 1994, the Chairman was to be elected by the "members of the board",
which is the phrase used in the unamended section 65(2), as the co-opted
members had a right to vote. However, in 1994, section 65(2) of the Act was
amended and the expression "members of the board" in the old section is F
substituted by the expression "elected members of the board". In fact, the
expression "whole number of members" earlier appearing in sections 65 and
72 of the Act have been deleted because in section 65(2) it is expressly
provided that the Chairman shall be elected only by elected members of the
board from amongst themselves. Therefore, the scheme of post 1994 Act is
that the chairman/vice-chairman shall be elected by the elected members of G
the boards and their office shall stand vacated on passing of no confidence
motion by the elected members of the board. The position which, therefore,
emerges is that both before and after 1994, the no-confidence motion had to
be voted upon by members who were entitled to vote. As stated above,
section 3 of the Act begins with the words "unless the context otherwise H
436 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A requires". Section 3(36) defines the expression "whole number"/"total
number" to mean total number of members holding the office at the given
time. The said expression "whole number ofmembers" finds place in rule 3(5),
(8) and (9). Hence, we have to read rule 3(5), (8) and (9) in the context of the
provisions of the said Act. As stated above! the basic scheme.ofthe Act prior
B to 1994 and post 1994 has remained unchanged. In b_oth cases, the legislative
intent has been that the office of the chairman/vice-chairman shall stand
vacated on passing of no-confidence motion by the members of the board
who are entitled to vot~. Hence, in our view, the expression "whole number"
or "total number" connotes the "total number of elected members".

C In the case of Knowles v. Zoological Society of London, reported in
(1959) l WLR 823 it has been held by Court of Appeals that the expression
"majority of fellows entitled to vote" in the bye-laws of a society would mean
the majority of those present at a meeting and entitled to vote and not the
majority of the whole electorate whether present or not. Before us, as stated
above, it was urged that the respondent is claiming casus omissus in support
D of his argument that the words "whole number ofmembers" must be construed
as "whole number of elected m~mbers". We do not find any merit in this
argument. In the case of State of Karnataka v. Union of India and Anr.
reported in AIR (1978) SC 68 at page 107, it has been observed by this Court
that although a Court cannot supply ca.ms omissus, it is equally clear that it
E should not interpret a statute so as to create a casus omissus when there is
really none.

To sum up, under pre 1994 arid post 1994 provisions, the· legislature
intended that chairman/vice chairman shall be removed on passing of no-
confidence motion by requisite majority of members having right to vote.
F For aforestated reasons, we do not find merit in the civil appeals herein
and accordingly the same are dismissed with no order as to costs .
.
S.B. SINHA, J. A short but interesting question as regard application
of principles of interpretation of statute arises for consideration in this appeal.
G The State ofRajasthan enacted Rajasthan Municipalities Act, 1959 (for
·.
short "the said Act"). Section 9 of the said Act provides for composition of
boards. The Board consists of elected members as also members nominated ·
by the State Government having special knowledge or experience in municipality
and the member of the House of People representing a Constituency comprising
H wholly or partly the area of the municipality.
R. MEHTA v. S.C. SINGHVI [SINHA, J.] 437
The State made Rajasthan Municipalities (Motion of No-Confidence A
against ChainnanNice-Chainnan) Rules, 1974 in exercise of its power conferred
under Section 257 of the said Act. The rules inter alia lay down the procedure
for removal of a Chainnan. Upon coming into force of the Constitution 74th
Amendment in tenns whereof Article 243R was inserted, the provisions of the
said Act were also suitably amended. But the Rules were not amended.
B
Article 243R of the Constitution reads thus:

"243R COMPOSIDON OF MUNICIPALITIES.

(1) Save as provided in clause (2), all the seats in a Municipality shall
be filled by persons chosen by direct election from the territorial C
constituencies in the Municipal area and for this purpose each
Municipal area shall be divided into territorial constituencies to be
known as wards.

(2) The Legislature of a State may, by law, provide -
D
(a) for the representation in a Municipality of -

(i) persons having special knowledge or experience in Municipal
administration;

(ii) the members of the House of the People and the members of the
Legislative Assembly of the State representing constituencies which E
comprise wholly or partly the Municipal area;

(iii) the members of the Council of States and the members of the
Legislative Council of the State registered as electors within tile
Municipal area;
F
(iv) the Chairpersons of the Committees constituted under clause (5)
of article 243S:

Provided that the persons referred to in paragraph (i) shall not have
the right to vote in the meetings of the Municipality;
G
(b) the manner of election of the Chairperson of a Municipality."

It is not in dispute that in tenns of proviso to Article 243R as also
Section 9 of the Rajasthan Municipalities Act, voting right has expressly not
been granted to the co-opted members.
H
438 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A But the definition of the member or total number of members has not
been amended which are contained in Sections 3(15) and 3(36) of the Act
which are as under:

"3(15) 'member' means any person who is lawfully a member of a
board;"
B
"3(36) 'whole number' or 'total number' when used with reference to
the members of a board, means the total number of members holding
office at the time."

In tenns of the rules, a motion of 'No Confidence' in the Chairman must
C be carried out by a 2-3rd majority of the whole number of members or if any
meeting cannot be held for want of quorum, such motion shall be deemed to
have been lost.

A right to contest election although arises under a statute but having
regard to the Constitution 74th Amendment Act, the interpretation thereof
D must be made keeping in view the constitutional scheme. Democracy at the
grass-root level was sought to be introduced by rea5on.ofthe said amendment
in the Constitution. Once the concept of a grass-root democracy is accepted,
a pragmatic and purposive meaning to the provisions of the Act must be
assigned.
E One of the Constituency in question had merely 23 members out of
whom two were nominated members and one was the member of the Legislative
Assembly'. 15 votes were cast in favour of the No Confidence Motion, still
the appellant was not found liable to be removed having regard to the
definition of 'total number of votes'.
F The 'whole number of votes' whether should, in our opinion, be read
as total number of elected votes or total number of members as it patently
appears from the definition; is the question. I
It is accepted that the Rules have not been altered despite the fact that
G amendments have been carried out in the Municipalities Act in the year 1994.
All members who were not elected members under the unamended provisions
were treated as elected members. Their rights were at par with them. The very
fact ·that
. the Constitution made a difference between an elected member. and
nominated member in the matter of election and removal of a Chairman is
suggestive of the fact that now a new interpretation is called for. Nominated
H members are persons with special knowledge in the subject. They are nominated
R. MEHTA v. S.C. SINGHVI [SINHA, J.] 439
so that they may render their advices properly to the members of the Board A
which would enable it to run the municipal affairs efficiently. They remain as
member of the Board irrespective of the fact that as to who is the person
occupying the post or his political affinity. He is not concerned with election.
He does not take part in it. A fortiorari he has also not been assigned any
role to play as regard removal of the Chairman or Vice-Chairman.
B
The interpretation clause in the said Act is prefaced with the expression
"unless otherwise requires by the context".

A definition is not to be read in isolation. It must be read in the context
of the phrase which would define it. It should not be vague or ambiguous.
The definition of words must be given a meaningful application; where the C
context makes the definition given in the interpretation clause inapplicable,
the same meaning cannot be assigned.

In State of Maharashtra v. Indian Medical Association, [2002] l SCC
589, one of us (V.N. Khare, CJI) stated that the definition given in the D
interpretation clause having regard to the contents would not be applicable.
It was stated:

"8. A bare perusal of Section 2 of the Act shows that it starts with
the words "in this Act, unless the context otherwise requires ....". Let

- us find out whether in the context of the provisions of Section 64 of E
the Act the defined meaning of the expression "management" can be
assigned to the word "management" in Section 64 of the Act. In para
3 ·of the Regulation, the Essentiality Certificate is required to be given
by the State Government and permission to establish a new medical
college is to be given by the State Government under Section 64 of
the Act. If we give the defined meaning to the expression F
"management" occurring in Section 64 of the Act, it would mean the
State·Government is required to apply to itself for grant of permission
to set up a government medical college through the University. Similarly
it would also mean the State Government applying to itself for grant
ofE5sentiality Certificate under para 3 of the Regtilation. We are afraid G
the defined meaning of the expression "management" cannot be
assigned to the expression "manage~ent" occurring in Section 64 of
the Act. In the present case, the context does not permit or requires
to apply the defined meaning to the word "management" occurring in
Section 64 of the Act. ....."
H
440 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A Examples are galore when with a view to make a statute workable the
court has corrected obvious drafting errors. The court in suitable cases may
add or omit or substitute words.

In National Insurance Co. Ltd. v. Swaran Singh and Ors., [2004] 3 SCC
297, it has been held that it is desirable to look into the legislative history of
B the provisions of the Act for their interpretation. ·

A subordinate or delegated legislation must also be read in a meaningful
manner so as to give effect to the provisions of the statute. In selecting the
true meaning of a word regard must be had to the consequences leading
C thereto. If two constructions are possible to adopt, a meaning which would
make the provision ~orkable and inconsonance with the statutory scheme
sh_ould be preferred.

In R. v. Secretary of State for the Home Department ex. p. Venables,
(1998) AC 407, one of the crucial issues was the length of time the applicants-
D children who had been convicted of murder and sentenced to be detained
during Her Majesty's pleasure - should in fact be held. Keeping in view the
welfare of the children the majority held that the Secretary of the State wa8
obliged to keep the tariff period set under continuous review.

v:
In Deepal Girishbhai Soni and Ors. United India Insurance Co. Ltd,
E Baroda, (2004] 3 SCALE 546, a Bench of this Court laid emphasis that the
object underlying the statute is required to be given effect to by applying the
principles of purposive construction holding :

"It is now well-settled that for the purpose of interpretation of statute,
same is to be read in its entirety. The purport and object of the Act
F must be given its full effect. [See High Court of Gujarat and Anr. v.
Gujarat Kishan Mazdoor Panchayat and Ors., JT (2003) 3 SC 50,
Indian Handicrafts Emporium and Ors. v. Union of India and Ors.,
[2003] 7 SCC 589, Ameer Trading Corporation Ltd v. Shapoorji l)ata
Processing Ltd, JT (2003) 9 SC 109, (2003) 9 SCALE 713 and Ashok
Leylandv. State of Tamil Nadu and Anr., (2004) l SCALE 224]. The
G object underlying the statute is required to be given effect to by
applying the principles of purposive construction."

(See also Reema Aggarwal v. Anupam and Ors., [2004] 3 SCC 199).

The Becnch in Raees Ahmadv. State ofU.P. and Ors., [2000] I SCC 432
H
R. MEHTA v. S.C. SINGHVI [SINHA, J.] 441

whereupon the learned counsel for the appellant placed strong reliance did A
not address itself to any one of the questions referred to hereinbefore.

In that case the rights were governed by a statute. The Act was
amended in terms of the Constitutional scheme. The Legislature ofU.P. was
conscious of the consequences of such amendment. The vires of the said
amendment was not questioned. B
In the instant case, however, the procedure is laid down in the rules
which still remain unamended despite the fact that the Act had been amended
in consonance with Article 243R of the Constitution of India.

The said decision in any event having been rendered by a 2-Judge C
Bench of this Court is not binding on us.

Furthermore amendment in the legislation may not be decisive as regard
the intention of the legislature as to whether it intended to alter the entire law.
The question came to be considered upon insertion of Section 11-A of
Industrial Disputes Act by this Court in The Workmen of Mis. Firestone Tyre D
& Rubber Co. of India P. Ltd and Ors. v. The Management and Ors., AIR
(1973) SC 1227 wheretobefore this Court noticed its earlier judgment wherein
it was held that in a case of no enquiry or defective enquiry it would be
permissible for the employer to lead evidence before the industrial Tribunal
or the Labour Court, as the case may be, as regard misconduct allegedly E
committed by a workman. Section I IA of the Industrial Disputes Act which
was introduced on 15.12.1971 reads thus:

"11-A. Powers of Labour Courts, Tribunals and National Tribunals to
give appropriate relief in case of discharge or dismissal of workmen.-
Where an industrial dispute relating to the discharge or dismissal of F
a workmen has been referred to a Labour Cour Tribunal or National
Tribunal for adjudication and in the course of the adjudication
proceedings, the Labour Court, Tribunal or National Tribunal, as the
case may be, is satisfied that the order of discharge or dismissal was
not justified, it may, by its award, set aside the order of discharge or G
dismissal and direct reinstatement of the workmen on such terms and
conditions, if any, as it thinks fit, or give such other relief to the
workmen including the award of any lesser punishment in lieu of
discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour
Court, Tribunal or National Tribunal, as the case may be, shall rely H
442 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A only on the materials on record and shall not .take any fresh evidence
in relation to the matter."

[Undertaking is mine for emphasis]

In view the said provisions, a contention was raised that the jurisdiction
B of the Tribunal was limited to consider the merit of the matter only from the
records of the disciplinary proceedings. Repelling the said contention this
Court held:

" ..... Another aspect to be borne in mind will be that there has been
a long chain of decisions of this Court, referred to exhaustively earlier,
c laying down various principles in relation to adjudication of disputes
by industrial Courts arising out of orders of discharge or dismissal.
Therefore it will have to be found from the words of the section
whether it has altered the entire law, as laid down by the decisions,
and if so, whether there is a clear expression of that intention in the
language of the section."
D
The Court held that the Tribunal is clothed with the power to reappraise
evidence in the domestic enquiry and satisfy itself whether the said evidence
relied on by an employer established the misconduct alleged against a workman
or not but despite the purported limitation of the tribunal's jurisdiction not
E to bring on its records any new material, it was held:

"33. If there has been no enquiry held by the employer or if the
enquiry is held to be defective, it is open to the employer even now
to adduce evidence for the first time before the Tribunal justifying the
order of discharge or dismissal. We are not inclined to accept the
F contention on behalf of the workmen that the right of the employer
to adduce evidence before the Tribunal for the first time recognised
by this Court in its various decisions, has been taken away. There is
no indication in the section that the said right has been abrogated.
If the intention of the legislature was to do away with such a right,
which has been recognised over a long period of years, as will be
G noticed by the decisions referred to earlier, the section would have
been differently worded. Admittedly there are no express words to
that effect, and there is no indication that the section has impliedly
changed the law in that respect. Therefore, the• position is that even
now the employer is entitled to adduce evidence for the first time
before the Tribunal even if he had held no enquiry or the enquiry held
H
R. MEHTA v. S.C. SINGHVI [SINHA, J.] 443

by him is found to be defective. Of course, an opportunity will have A
to be given to the workman to lead evidence contra."

[emphasis supplied]

The decisions of the courts as regard right of participation of the
member who was an elected or who had a right equal to that of an elected B
member had been taken notice of by Brother Kapadia, J. The ~aid decisions
are pointers to the fact that only elected members and those who are to be
treated at par were entitled to participate in a proceeding initiated for removal
of the Chairman of the Municipality.

By reason of the amendment in the Constitution and consequent C
amendment by the State Legislatur~ in the Rajasthan Municipalities Act,
however, no indication has been given that by reason thereof a special right
is sought to be created in the nominated members although they would not
participate in such a proceedings and would not have any voting right either
at the election of the Chairman or in the proceedings for his removal.
D
We, therefore, are of the opinion that the rules which were made in the
year 1974 having not been amended; with a view to give an effective and
proper meaning must be construed to mean that only members with voting
right are entitled to participate in that proceedings and not_ the nominated
members. E
With these additional reasons, I entirely agree with the opinion of
Brother Kapadia, J.

N.J. Appeals dismissed.