C.K. Thakker, C.J.@mdashRule. Mr. A.S. Rao, learned Counsel, appears and waives service of notice of rule on behalf of respondents. In the facts and circumstances, the matter is taken up for final hearing.
2. This petition is filed by the petitioner for quashing and setting aside proceedings initiated by the respondents against the petitioner, vide charge-sheet dated January 12, 2001 issued by the Commissioner of Kalyan-Dombivli Municipal Corporation, respondent No. 2 herein, as the same are illegal, unauthorized, without jurisdiction and non est.
3. The case of the petitioner is that he is holding the post of Assistant Municipal Commissioner in respondent No. 2 Corporation. Several allegations had been levelled against him and 17 charges were framed. An inquiry was initiated by respondent No. 2 who appointed enquiry Officer to conduct departmental enquiry against the petitioner. The Enquiry Officer submitted his report to respondent No. 2 on 9th January, 2003 and final notice as to why the petitioner should not be dismissed was issued to the petitioner on January 30, 2003. The petitioner sought time which was granted by respondent No. 2 upto 25th February, 2003. The petitioner submitted his reply inter alia contending therein that respondent No. 2 had no authority or jurisdiction either to hold inquiry or to impose penalty against Class I and II officers of the Municipal Corporation and hence, action of respondent No. 2 was illegal and unlawful.
4. After hearing learned counsel for the petitioner, we issued notice on 8th July, 2003 stating therein that the matter will be disposed of finally on returnable date. Pursuant to the said notice, respondents have appeared.
We have heard the learned counsel of both the sides.
5. At the hearing, a preliminary objection was raised on behalf of the respondents that as the final decision has been taken in the meeting of the General Body of the Corporation on 20th June, 2003 to revert the petitioner, the petition has become infructuous. It is no doubt open to the petitioner to take appropriate proceedings in accordance with law but so far as the present petition is concerned, it deserves to be dismissed. In our opinion, however, in the light of the contentions raised by the petitioner and settled legal position, the petition deserves to be allowed.
6. The learned counsel for the petitioner drew our attention to Section 45, 53 and 56 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act"). Section 45 provides for appointment of certain officers of the Corporation. Sub-section (2) of Section 45 enables the Corporation, with the approval of the State Government, to appoint Deputy Municipal Commissioner or Assistant Municipal Commissioner. Section 53 declares that the power to appoint municipal officers, whether temporary or permanent, whose minimum monthly salary exclusive of allowances is or exceeds Rs. 400/- (now Rs. 1,000/-) is with the Corporation.
7. It is not in dispute that the salary of Assistant Municipal Commissioner exceeds Rs. 1,000/-. Hence, the power of appointment of the petitioner is with the Corporation and not with any authority or officer. Section 56 enumerates penalties which may be imposed on a municipal employee. One of them is "Dismissal from service", for which the final notice had been issued on January 30, 2003 (Exhibit "D"); which is impugned in this petition. The contention of the learned counsel for the petitioner is that since charges had been framed and proceedings had been initiated by the Commissioner, who had no power, they are not in consonance with law and must be held to be without authority of law.
8. Reading Section 56 of the Act, the contention may not appear to be well-founded, but the learned counsel for the petitioner referred to and relied upon the provisions of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (hereinafter referred to as "the Civil Services Rules") which have been applied by the respondents in the instant case. It is no doubt true that those rules apply to employees who are in Civil Services of the State. The learned counsel for the petitioner, however, drew our attention to a notice and the charge-sheet-memo issued by Commissioner on 12th January, 2001 which is also challenged in this petition, which states that it had been decided to hold inquiry against the petitioner under Rule 8 of the Rules. Other rules have also been referred to.
9. The relevant part of Section 56(1) of the Act reads thus;
"56. Imposition of penalties on municipal offices and servants.- (1) A competent authority may subject to the provisions of this Act impose any of the penalties specified in Sub-section (2) on a municipal officer or servant if such authority is satisfied that such officer or servant is guilty of a breach of departmental rules or discipline or of carelessness, neglect of duty or other misconduct or is incompetent:
..... ..."
10. Bare reading of the above provision makes it clear that it is only a competent authority which may impose any of the penalties specified in Sub-section (2) on a municipal officer or servant. It, however, does not necessarily mean that departmental proceedings also must be initiated only by such authority and if a notice is issued or charge-sheet is served by a subordinate authority, the same is illegal, contrary to law or without jurisdiction.
11. But that we have no consider the provisions of the Civil Services Rules, which have been invoked by the respondents and have applied in case of the petitioner by initiating proceedings against him. Clause (c) of Rule 2 defines "Disciplinary authority" as the authority competent under the rules to impose on a Government servant any of the penalties specified in Rule 5. Rule 5 [like Sub-section (2) of Section 56 of the Act] specifies penalties. Rule 6 enumerates Disciplinary authorities. Rule 7 declares the authorities who may initiate or institute disciplinary proceedings. Sub-rule (2) of the said rule is relevant and reads thus;
"7. Authority to initiate proceedings-
(1) ... ... ...
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in Rule 5 may institute disciplinary proceeding against any Government servant on whom the disciplinary authority is competent to impose any of the penalties specified in Rule 5.
Rule 8 lays down procedure for imposing major penalties and holding of inquiry. Sub-rule (2) of Rule 8 is material for the purpose of determining the controversy raised in this petition and may, therefore, be reproduced.
"8. Procedure for imposing major penalties-
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof."
(emphasis supplied)
12. Conjoint reading of Rules 7(2) and 8(2) leaves no room of doubt that it is open to the disciplinary authority to impose any of the penalties specified in the Civil Services Rules after instituting disciplinary proceedings and after inquiring into the truth of imputations. It is also open to the disciplinary authority, either by itself to inquire into the truth of imputation against an employee or appoint other authority to undertake such exercise. In other words, it is for the disciplinary authority to take an action in accordance with the Rules. Either the disciplinary authority itself may inquire into the matter or may authorise other officer to do it. But in absence of such authorisation, no inquiry can be held by any officer or authority if he is not the disciplinary authority.
13. In the instant case, admittedly, the Corporation is the competent authority - (Section 56). It is only the Corporation which can impose one of the penalties specified in Section 56. Since the proceedings have been initiated applying the Civil Services Rules, the procedure laid down in those rules was required to be followed. In accordance with those rules, either the Corporation should have initiated or instituted the proceedings or it should have authorised other office/authority to inquire into the allegations against the petitioner. It is not even the assertion of the Corporation that the Commissioner was authorised to issue charge-sheet or to hold inquiry against the petitioner. What was submitted was that as an administrative head of the Corporation, he is empowered and authorised to institute departmental proceedings against the petitioner.
14. In this connection, it may be profitable to refer to a decision of the Supreme Court in State of U.P. v. Chandrapal Singh, 2003(3) SCALE 391: 2003 SCC 556. In that case, an order of dismissal was passed by the disciplinary authority but the departmental proceedings were initiated by an authority lower in rank than appointing authority. It was contended by the dismissed employee that departmental proceedings also ought to have been initiated by the appointing and disciplinary authority and since it was not done, the action was vitiated. The Service Tribunal as well as the High Court upheld the contention and set aside the order. The State approached the Supreme Court.
15. It was contended by the State that Article 311 of the Constitution requires the appointing authority to make an order of dismissal. It, however, did not obligate that authority even to initiate departmental proceedings. Such proceedings could be initiated by an authority lower in rank and such action could not be held illegal or unlawful. Since the order of punishment was passed by the appointing authority, it was legal and valid.
16. Allowing the appeal and setting aside the order of the Tribunal and of the High Court, the Apex Court stated;
"8. Thus, looking to the terms and content of Article 311(1) of the Constitution, it does not follow that even initiation or conduct of inquiry proceedings should be by that authority itself, which is empowered to dismiss or remove an official under the said article, unless there is an express rule governing the official requiring it to be so."
(emphasis supplied)
The portion emphasized by us makes it abundantly clear that the general rule that disciplinary proceedings may be initiated by the disciplinary authority or by any other authority is subject to "an express role governing the official requiring it to be so."
17. In the instant case, Rules 7 and 8 of the Civil Services Rules require the disciplinary authority to initiate departmental proceedings. No doubt, Rule 8(2) empowers him to appoint any other authority to do so, but the Corporation had not appointed the Commissioner, respondent No. 2, under the said provision and hence, the action of respondent No. 2 deserves to be set aside.
18. The learned counsel for the respondent drew our attention to Sections 67 and 68 of the Act. Section 67 describes function of several municipal authorities which can be undertaken by the Commissioner. u/s 68, the Commissioner can exercise the power of the Corporation under other laws. In our considered opinion, however, in the light of statutory provisions in the Civil Services Rules, which have been applied as is clear from issuance of charge-sheet itself, no action could have been taken by the Commissioner. Hence, proceedings initiated by him of issuing show cause notice and charge-sheet by respondent No. 2 will have to be quashed and set aside.
19. For the foregoing reasons, the petition deserves to be allowed. A statement which has been made by the respondent that the order of reversion has been passed against the petitioner also requires to be quashed and set aside and is hereby set aside. It is, however, clarified that it is open to the Corporation to take fresh proceedings in accordance with law and this order will not come in their way.
20. The learned counsel for the respondents states that the order passed by us may be kept in abeyance and may not be directed to be implemented. No such prayer can be granted. Hence, the prayer is rejected.
21. Rule is accordingly made absolute to the extent indicated above. In the facts and circumstances, however, there shall be no order as to costs.
22. Parties be supplied copies of this order duly authenticated by Private Secretary/Sheristedar of this Court.
