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Prabhakar Shrirang Jagdale v. Kalyan-Dombivli Municipal Corporation, Kalyan And Another
Structured Summary of Opinion — C.K. Thakker, C.J.
Factual and Procedural Background
The petitioner is an Assistant Municipal Commissioner of the Kalyan-Dombivli Municipal Corporation (respondent No. 2). The respondents issued a charge-sheet dated 12 January 2001 initiating departmental proceedings; an Enquiry Officer submitted his report on 9 January 2003, and a final show-cause notice proposing dismissal was issued to the petitioner on 30 January 2003. The petitioner replied, contending that respondent No. 2 (the Commissioner) had no authority or jurisdiction to hold an inquiry or impose penalties on Classes I and II officers and therefore the proceedings were illegal.
The petitioner filed the present petition seeking quashing and setting aside of the proceedings and the impugned notices. Notice was issued on 8 July 2003 and respondents appeared. At hearing, respondents raised a preliminary objection that a General Body meeting of the Corporation on 20 June 2003 had passed an order to revert the petitioner, rendering the petition infructuous. The Court heard both sides and proceeded to decide the matter finally.
Legal Issues Presented
- Whether the Commissioner (respondent No. 2) had legal authority or jurisdiction to initiate departmental proceedings and issue the charge-sheet and show-cause notice against the petitioner, an Assistant Municipal Commissioner, given the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (the Act) and the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (the Civil Services Rules).
- Whether, under the Civil Services Rules (in particular Rules 7(2) and 8(2)), disciplinary proceedings may validly be initiated by an officer other than the disciplinary/appointing authority without express authorization by that disciplinary/appointing authority.
- Whether the subsequent action of the Corporation (the General Body) to revert the petitioner on 20 June 2003 rendered the petition infructuous and required dismissal of the petition on that ground.
Arguments of the Parties
Petitioner's Arguments
- The petitioner argued that respondent No. 2 (the Commissioner) had no authority or jurisdiction to hold an inquiry or impose penalty on Classes I and II officers, including the petitioner.
- It was contended that the proceedings initiated by the Commissioner were illegal, unauthorized and without jurisdiction, and therefore the charge-sheet and show-cause notice must be quashed.
- The petitioner relied on provisions of the Civil Services Rules (including Rule 8) which were invoked/applied in the charge-sheet itself, arguing that those rules required initiation of proceedings by the disciplinary authority or only after specific authorization.
Respondents' Arguments
- Respondents raised a preliminary objection that the petition had become infructuous because the General Body of the Corporation on 20 June 2003 had passed an order to revert the petitioner; they submitted the petitioner could pursue appropriate proceedings but that the present petition deserved dismissal on that ground.
- Respondents submitted that the Commissioner, as the administrative head of the Corporation, was empowered/authorized to institute departmental proceedings against the petitioner and that sections 67 and 68 of the Act supported the Commissioner exercising certain powers of the Corporation.
- Respondents requested that, if the Court set aside their actions, the Court's order be kept in abeyance and not directed to be implemented immediately.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of U.P. v. Chandrapal Singh, 2003 (3) SCALE 391 : 2003 SCC (L&S) 556 (Supreme Court) | Held that Article 311(1) does not require that initiation or conduct of inquiry must be by the authority empowered to dismiss or remove unless there is an express rule requiring such initiation by that authority. | The Court relied on this authority to state the proposition that initiation of departmental proceedings by a subordinate is permissible unless an express rule requires initiation by the appointing/disciplinary authority. The Court then contrasted that principle with the express requirements of Rules 7(2) and 8(2) of the Civil Services Rules applicable in this case, and concluded that because those Rules required initiation by the disciplinary authority or express authorization, the Commissioner's initiation without authorization was invalid. |
Court's Reasoning and Analysis
The Court proceeded through a statutory and rules-based analysis:
- The Court examined the relevant provisions of the Bombay Provincial Municipal Corporations Act, 1949: section 45 (appointments, including sub-section (2) enabling Corporation with State Government approval to appoint Deputy/Assistant Municipal Commissioner), section 53 (power of appointment for officers whose salary exceeds Rs. 1,000 lies with the Corporation), and section 56 (enumeration of penalties that a competent authority may impose, including dismissal).
- It was accepted that the Assistant Municipal Commissioner’s salary exceeded Rs. 1,000 and therefore appointment powers rested with the Corporation; correspondingly, the power to impose penalties under section 56 lay with the competent authority (the Corporation).
- The Court observed that while section 56 speaks of a "competent authority" imposing penalties, that wording does not, by itself, dictate who may initiate departmental proceedings; initiation could in general be by a subordinate unless an express rule states otherwise.
- The Civil Services Rules (Maharashtra Civil Services (Discipline and Appeal) Rules, 1979), which the respondents themselves applied (as apparent from the charge-sheet which invoked Rule 8), were then analysed. Rule 2(c) defines "disciplinary authority"; Rule 5 lists penalties; Rule 6 identifies disciplinary authorities; Rule 7(2) provides that a disciplinary authority competent to impose any of the penalties may institute disciplinary proceedings against a Government servant; and Rule 8(2) states that whenever the disciplinary authority considers grounds exist for inquiry it may itself inquire or appoint an authority to inquire under the Rules or under the Public Servants (Inquiries) Act, 1850.
- From a conjoint reading of Rules 7(2) and 8(2), the Court concluded that the disciplinary authority must institute proceedings and may either itself inquire or appoint another authority. In the absence of such appointment/authorization by the disciplinary authority, an officer who is not the disciplinary authority cannot hold an inquiry or initiate proceedings.
- The Court applied that construction to the facts: the Corporation was the competent/disciplinary authority under section 56 and, because the Civil Services Rules were applied, the rules required that the Corporation either institute the proceedings itself or expressly authorize the Commissioner to do so. The record did not show any such authorization by the Corporation to the Commissioner.
- The Court considered the Supreme Court decision in State of U.P. v. Chandrapal Singh, which permits initiation of proceedings by a subordinate authority unless an express rule requires initiation by the appointing authority. The Court found that principle consistent with the Civil Services Rules when read together; but here the Civil Services Rules constituted the "express rule" that required initiation by the disciplinary authority (or by its authorised delegate).
- Sections 67 and 68 of the Act (powers of the Commissioner to perform certain functions or exercise powers of the Corporation under other laws) were considered by respondents as justification. The Court held that, given the statutory scheme and the application of the Civil Services Rules (as shown in the charge-sheet), the Commissioner could not validly initiate the proceedings in the absence of an express appointment/authorization under Rule 8(2).
- Because the Commissioner had not been appointed or authorized by the Corporation to institute the disciplinary proceedings under the Civil Services Rules, the initiation of proceedings by the Commissioner (issuance of show cause notice and charge-sheet) was held to be without authority and required quashing.
Holding and Implications
HOLDING: The petition is allowed. The Court quashed and set aside the proceedings initiated by the Commissioner (respondent No. 2), including the show-cause notice and charge-sheet issued to the petitioner, and also quashed and set aside the order of reversion passed against the petitioner.
Implications:
- Direct effect on the parties: The departmental proceedings initiated by the Commissioner and the order of reversion are quashed and set aside; the petitioner’s challenge succeeds.
- The Corporation is, however, expressly permitted to take fresh proceedings in accordance with law (i.e., the Corporation may institute disciplinary proceedings itself or appoint/authorize another authority in conformity with the Civil Services Rules and applicable statutory provisions).
- The respondents' request that the Court's order be kept in abeyance was rejected; the Court refused to grant such a stay.
- No order as to costs was made.
- The Court's decision rests on the construction and application of the Act and the Civil Services Rules and the cited Supreme Court authority; the opinion does not purport to lay down a novel general principle beyond applying statutory rules and the cited precedent to the facts. (The opinion does not state that a new binding precedent is being established.)
Petition allowed.
C.K Thakker, C.J:— Rule. 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. The 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 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 Classes 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.
5. We have heard the learned counsel for both the sides.
6. 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.
7. The learned counsel for the petitioner drew our attention of sections 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.
8. 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.
9. 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.
10. The relevant part of section 56(1) of the Act reads thus;
“56. Imposition of penalties on municipal officers 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:
…………….”
(emphasis supplied)
11. 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.
12. But then we have to 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 rule 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.”
13. 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)
14. 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.
15. 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 officer 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.
16. 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 (L&S) 556. In that case, as 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.
17. 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.
18. 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)
19. 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 rule governing the official requiring it to be so.”
20. 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.
21. 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. Under section 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.
22. For the foregoing reasons, the petition deserves to be allowed. A statement which has been made by the respondents 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.
23. 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.
24. Rule is accordingly made absolute to the extent indicated above. In the facts and circumstances, however, there shall be no order as to costs.
25. Parties be supplied copies of this order duly authenticated by Private Secretary/Sheristedar of this Court.
Petition allowed.
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