DATE OF RESERVING THE JUDGMENT : OCT. 07, 2009.

DATE OF PRONOUNCING THE JUDGMENT: NOV. 06, 2009.

JUDGMENT : (PER B.P. DHARMADHIKARI, J.) Writ Petition is to be disposed of finally at the stage of admission itself as per orders dated 12th June 2008. Accordingly, we have heard Shri Chandurkar, learned counsel for the petitioner, Shri Mandpe, learned AGP for respondent No.1 and Shri Kaptan, learned counsel for respondents No.2 & 3 for some time and then they sought leave to place on record written notes of arguments. After the written notes were exchanged, the matter was fixed twice for oral hearing and ultimately was closed for judgment as no arguments could be advanced. As the matter was fixed for final hearing, we formally issue Rule and make it returnable forthwith.

2. We have gone through the written notes of arguments filed by the petitioner as also by his employer Respondents No. 2 & 3. Shri Mandpe, AGP for respondent No.1 has orally supported the appellate order passed by Respondent No.1 - State Government.

3. The challenge in writ petition is to the order dated 28.10.2005 passed by Respondent No.3 - Additional Commissioner of Nagpur Municipal Corporation imposing punishment of his reduction to lowest stage in pay scale of Rs.

4000-6000 and withholding his annual increments thereafter permanently for five years with cumulative effect. The period of his suspension pending enquiry has been regularised as suspension period only. This order was challenged by the petitioner in appeal before Respondent No.1 - State Government under the provisions of Section 387(3) of City of Nagpur Corporation Act, 1948 (hereinafter referred to as Corporation Act). That appeal came to be dismissed by the Principal Secretary, Urban Development on 30th May 2007 but the punishment was made subject to approval of General Body of Nagpur Corporation in view of Section 50(1) thereof. These two orders are assailed in present writ petition.

4. The petitioner is a Junior Inspector in Assessment department of Nagpur Municipal Corporation. His basic contention is that the discontinuation from service of one Shri Gharde was never informed to him and hence he could not have been blamed for recovery of 494 assessment files from Shri Gharde. Shri Gharde was employed on daily wages. He has further contended that those 494 files were never received by him from record room. He has also relied upon similar enquiry conducted against one Shri A.U. Bahadure, who was exonerated by Respondent No.3 only because criminal offence could not be made out and police submitted discharge report under Section 169 of Criminal Procedure Code, to Judicial Magistrate First Class. Shri Gharde was one of the accused in that matter.

Because Shri Gharde could not be prosecuted, departmental enquiry against Shri Bahadure was dropped. The petitioner claimed same treatment. He has further contended that the punishment imposed upon him is major punishment which could have been inflicted only by General Body and hence initiation of departmental enquiry by Respondent No.3 - Additional Municipal Corporation is unsustainable.

5. Respondents No. 2 & 3 have justified their action by contending that there was no evidence against Shri Bahadure while in departmental enquiry said evidence has come against the petitioner. It is further stated that the provisions of Maharashtra Civil Service (Discipline & Appeal) Rules, 1979, (i.e.

1979 Rules or Discipline & Appeal rules hereinfater), are adopted vide resolution by Nagpur Municipal Corporation and powers of disciplinary authorities thereunder are given to various officers of Nagpur Corporation. Deputy Municipal Commissioner was competent to initiate departmental enquiry against the petitioner in view of delegation in his favour by Municipal Commissioner.

It is, therefore, contended that there is no merit in writ petition and writ petition deserves to be dismissed.

6. Shri Chandurkar, learned counsel for the petitioner has invited our attention to relevant provisions of corporation act as also discipline and appeal rules mentioned above to urge that departmental enquiry has been initiated against the petitioner by Respondent No.3 and as said respondent could not have imposed major punishment upon the petitioner, the initiation of enquiry itself is bad. He points out that even the appellate authority has found that general body of Nagpur Municipal Corporation is the appointing authority and, therefore, it alone was competent to take action against the petitioner. He states that delegation of powers by the administrator on 28th June 1984 is, therefore, of no use in present matter. As Municipal Commissioner is not the disciplinary authority of the petitioner, delegation of his powers to the Deputy Municipal Commissioner is irrelevant. He has relied upon the judgment of Division Bench of this Court in the case of Prabhakar vs. K.D. Municipal Corporation, Kalyan, reported at 2003(4) Mh.L.J. 423. He has also attempted to show how the petitioner has been victimized though his case and case of Shri Bahadure is identical and no adverse evidence has come against the petitioner. He states that the Enquiry Officer had in fact exonerated the petitioner of charge No.2.

7. Shri Kaptan, learned counsel states that the provisions of Maharashtra Civil Services Rules are adopted by the Municipal Corporation by passing resolution and those provisions need to be read subject to express provisions of Nagpur Corporation Act.

He states that Section 53(5) only prohibits imposition of penalties like discharge, dismissal or removal by any other authority except appointing authority. He invites attention to resolution of Corporation dated 28th June 1984 to show how the powers of Municipal Commissioner to impose minor penalties on Class II employees and major penalties on class III employees are delegated to the Deputy Municipal Commissioner. He invites attention to classification of penalties as contained in Section 53(2) read with said resolution dated 28th June 1984 for this purpose. He further states that the Deputy Municipal Commissioner is subordinate to the Additional Commissioner.

As the Additional Commissioner is superior authority, it can institute disciplinary proceedings and impose penalties. He places reliance upon the judgment of the Hon'ble Apex Court in the case of S. Sudhakar vs. Postmaster General, reported at (2006) 4 SCC 348. In this background, he states that the Division Bench of this Court in its judgment Prabhakar vs. K.D.

Municipal Corporation, Kalyan, (supra) has considered Section 56 of Bombay Provincial Municipal Corporations Act, 1949, where the scheme is entirely different.

8. Before proceeding further to examine the issue of perversity of findings or then of victimization of the petitioner, we find it appropriate to consider legal issue about competency of authority to initiate departmental enquiry and to punish the petitioner. The contention of Corporation that it has adopted Discipline and Appeal Rules of State of Maharashtra by passing resolution, does not appear to be very correct. Respondent No.1 has on 30th September 1966 published Bye Laws known as Nagpur Municipal Corporation Services Bye Laws, which came into force from 1st April 1963. By clause (2) thereof, the Bombay Civil Services Rules, 1959, with supplementary rules, order and appendices made thereunder as amended from time to time were to regulate the conditions of service of Civil Services of Nagpur Corporation as for as possible. Its clause (5) stipulated that all references to Government in Bombay Civil Services Rules were to be construed as references to Nagpur Corporation. All references to Government servants were to be construed as references to Nagpur Corporation servants, all references to competent authorities in Bombay Civil Services Rules were to be construed as references to competent authorities under City of Nagpur Corporation Act, 1948, and all references to Head of Departments were to be construed as References to Municipal Commissioner. Thus, these bye laws were destined to regulate departmental enquiry "as far as possible" and all references to Head of Department therein were to be construed as reference to Municipal Commissioner.

9. The resolution dated 28th June 1984 needs to be looked into in this background. The said resolution No. 20 at its beginning states that as per notification dated 30th September 1966, Bombay Civil Service Rules were made applicable to Corporation staff. However, Bombay Civil Service Rules have now been replaced by Maharashtra Civil Service (Discipline and Appeal) Rules, 1979, i.e. 1979 Rules or Discipline & Appeal Rules, which automatically become applicable to Corporation employees. However, the resolution observes that by way of abundant precautions, these 1979 Rules, have been formally adopted. There is no challenge to this adoption before us.

10. Section 53(2) of Corporation Act prohibits 8 types of penalties which for good and sufficient reason can be imposed upon any Municipal employee or servant. Consistent with classification of penalties into major penalties and minor penalties in 1979 Rules, those eight penalties have been classified into major and minor by this resolution. We are concerned with Section 53(2) (iii) which speaks of penalty of reduction to a lower post of time scale or to a lower stage in a time scale. This has been classified as major penalty by this resolution. The resolution further proceeds to amend Rule 6 of 1979 Maharashtra Civil Service (Discipline and Appeal) Rules, by stating that the word Governor therein should be read as Corporation. Then it states that the provision of Rule No. 6 of Discipline and Appeal Rules would be as mentioned therein and thus a new proviso has been read/ added into said rule 6 instead of its existing proviso. As per this new proviso which has been read into 1979 Rules to make it applicable to services of Nagpur Corporation as far as possible, the Municipal Commissioner has been declared to be competent authority for imposing minor penalties on Class I employee of Corporation. General body of Corporation is the competent authority for imposing major penalties on such officers. Municipal Commissioner is declared competent authority to impose major penalties on all Class II employees. The Deputy Municipal Commissioner is declared competent to impose minor penalty on class II employees and major penalties on class III employees. Then the proviso speaks of class IV employees. We are not concerned with said proviso.

The holders of the post the minimum of which is Rs.680/- and above are included in Class - I. It is not in dispute before us that as per this resolution, the petitioner is in Class - I. In fact, the appellate authority viz., State Government has in its appellate order dated 30th May 2007 observed that as per Section 50(1) of Corporation Act, Corporation "General Body" is appointing authority and hence penalty imposed upon the petitioner is maintained by the appellate authority but subject to grant of approval to that punishment by general body. This position is not in dispute before us.

11. Section 50(1) (first proviso) confers power of appointment to the cadre of petitioner only upon a General Body of Municipal Corporation. Section 53 does not expressly prescribe any authority as disciplinary authority but then its sub-

section (5) state that Municipal Officer or servant cannot be discharged, dismissed or removed from service of Corporation by order of any authority subordinate to that which makes appointment to his post at the time of order. Thus, these major penalties can be imposed only by authorities competent to effect appointment to that cadre on the date of punishment orders.

Section 46 states that the Municipal Commissioner is the Principal Executive Officer of Corporation and all other officers and servants of Corporation are subordinate to him. Section 59 speaks of functions of several Municipal authorities and its sub-

section (3) states that subject to express provision to the contrary in Corporation Act, the entire executive power for the purpose of carrying out provisions of said Act vest in the Commissioner. He can perform all duties and exercises all powers specifically imposed or conferred upon him by Corporation Act. He can also exercise supervision and control over the acts and proceedings of all Municipal Officers and servants and deal with all questions relating to their services. Section 59(5) mentions that any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by Corporation Act can be exercised, performed or discharged under the Commissioner's control and subject to his superintendence and to such conditions and limitations as he may think fit to impose, by any Municipal officer whom the Commissioner may generally or specially empowered in writing in this behalf.

12. As already stated above, the resolution of Administrator dated 28th June 1984 authorizes the Municipal Commissioner to impose minor penalties on Class-I employees of Nagpur Corporation. The said resolution authorizes the Municipal Commissioner to impose major penalty on Class - II employees. As per that resolution, Corporation is the authority for imposing major penalties on Class - I officers. This resolution has also classified penalties prescribed in Section 53(2) of Corporation Act to bring it in conformity with Rule 5 of Maharashtra Civil Service (Discipline and Appeal) Rules. The powers conferred upon him by this resolution are then delegated by the Municipal Commissioner on 27th February 2002 and that delegation is to Respondent No.3 - Additional Commissioner.

The Deputy Municipal Commissioner has been authorized by resolution to impose minor penalties on Class II employees. This resolution dated 28th June 1984 and 27th February 2002 cannot be questioned by Nagpur Corporation and has not been challenged before us by the petitioner. The controversy needs to be looked into in this background.

13. The effort of Corporation before us is not to show that the particular requirement of Maharashtra Civil Service (Discipline and Appeal) Rules, is not applicable or relevant here.

On the contrary, their effort is to show its compliances. We, therefore, proceed to consider the relevant provisions of Discipline and Appeal Rules. It is already highlighted above that the provisions of Maharashtra Civil Service (Discipline and Appeal) Rules, 1979, regulate the departmental enquiry of the petitioner "as far as possible". Rule 5 thereof classifies punishment of reduction to a lower time scale of pay as minor penalty. But then for its service said penalty has been treated as major penalty by Nagpur Corporation. It is obvious that because of Rule 6 of Maharashtra Civil Service Rules which prescribes disciplinary authorities read with above mentioned 1984 resolution, appointing authority can impose any of the penalties specified in Rule 5 upon members of Class- III and class IV services. Head of the department has been authorized to impose minor penalties upon servants in class II. The Governor i.e. in case of Nagpur Corporation, General Body of Nagpur Corporation can impose any of the penalties specified in Rule 5.

It is obvious that, therefore, the appointing authority or General Body can impose any of the penalties specified in Rule 5 upon members of class III and IV. In other words, only general body can impose penalty impugned before us upon the petitioner.

This requirement of Rule 6 of Maharashtra Civil Service (Discipline and Appeal) Rules, can be read into and used for inquiries of Corporation employees without any violation of Nagpur Corporation Act. Rule 7 of Maharashtra Civil Service (Discipline and Appeal) Rules, states that General Body of Nagpur Corporation or authority empowered by it may institute disciplinary proceeding against any Corporation servant or then it may direct Disciplinary authority to institute such proceedings.

sub-rule (2) of Rule 7, however, stipulates that a disciplinary authority competent to impose any of the penalties specified in Rule 5 may institute disciplinary proceedings against any Corporation servant on whom it is competent to impose any of the penalties specified therein. Resolution dated 28th June 1984 read with order dated 27th February 2002 shows that Municipal Commissioner has been authorized to impose minor penalty upon the petitioner and that power has been delegated to Additional Municipal Commissioner i.e. Respondent No.3. In the scheme of Section 46 read with Section 59 above, it is apparent that Municipal Commissioner is competent to delegate this power to Additional Municipal Commissioner. It is to be noted that this power to impose minor punishment is not delegated to Municipal Commissioner by General Body and hence contention that it cannot be sub-delegated further is misconceived. The departmental enquiry in present matter has been initiated on 4th December 2002 by Respondent No.3 - Additional Municipal Commissioner. It expressly refers to Rule 8 of Maharashtra Civil Service (Discipline and Appeal) Rules, 1979, and above mentioned Resolution dated 28th June 1984. Only requirement of Rule 7(2) of Maharashtra Civil Service (Discipline and Appeal) Rules, is the authority must be competent to impose any of the penalties in Rule 5. Because of delegation in his favour, Respondent No.3 is competent to impose minor penalties specified in Rule 5 read with Section 53(2) upon the petitioner.

Hence, initiation or institution of departmental enquiry by said officer cannot be said to be unauthorized or illegal.

14. Shri Chandurkar, learned counsel has relied upon the judgment of the Division Bench of this Court in the case of Prabhakar vs. K.D. Municipal Corporation, (supra), there the challenge was charge had been framed and proceedings had been instituted by Municipal Commissioner who had no power to do so. The delinquent there was Assistant Municipal Commissioner, whose salary exceeded Rs.1,000/- and hence power of his appointment was with General Body of Corporation and not with any other officer. The said delinquent was served with a final notice for imposing a punishment under Section 56 of Bombay Provincial Municipal Corporations Act, 1949. The said punishment was of dismissal from service. Section 56 permitted a competent authority to impose any of the penalties specified in sub-section (2) thereof. In this background in para 10 of the judgment, the Division Bench of this Court observed that Section 56(2) necessarily did not mean that departmental proceedings must be initiated only by authority competent to impose punishment and if notice is issued or charge sheet is served by a subordinate authority, the same is illegal or contrary to law or without jurisdiction. However, then the provisions of Maharashtra Civil Service (Discipline and Appeal) Rules, particularly sub-rule (2) of Rule 7 are looked into and thereafter it is noticed that Rule 8 which prescribe procedure for imposing major penalties, vide its sub-rule (2) contemplated that whenever disciplinary authority is of the opinion that there are grounds for enquiring into truth of any imputation of misconduct, it has itself to enquire into or appoint an Enquiry Officer to enquire into truth thereof. In para 12, it has been observed that conjoint reading of Rule 7(2) and 8(2) left no room for doubt that it was for the disciplinary authority to take action in accordance with Maharashtra Civil Service (Discipline and Appeal) Rules. Either disciplinary authority itself may enquire into the matter or may authorize other officer to do it.

But in absence of such authorisation, no enquiry can be held by any officer or authority, if he is not the disciplinary authority. In para 13, it is observed that because of Section 56, Corporation was the competent authority to impose any one of the penalties specified in Section 56. Since departmental proceedings were initiated applying Maharashtra Civil Service (Discipline and Appeal) Rules, the procedure laid down in those rules needed to be followed. In accordance with those rules, either Corporation should have initiated or instituted the proceedings or it should have authorized other officer or authority to enquire into those allegations. The Division Bench, therefore, concluded that the Commissioner was not competent to take any action against delinquent and, therefore, charge sheet itself was quashed and set aside. The facts show that the Division Bench of this Court was approached when final show cause notice for punishment was issued and punishment was still to be imposed. The facts also show that Municipal Commissioner there was not disciplinary authority at all. Because of these features, we find that this ruling is not helpful to present petitioner.

15. Shri Kaptan, learned counsel has relied upon the judgment of the Hon'ble Apex Court in the case of A. Sudhakar vs. Post Master General, (supra). The ratio of said ruling is authority higher than appointing authority may also act as disciplinary authority for the purposes of Article 311 of Constitution of India, if delinquent officer is not deprived of his statutory right of appeal. We have already noticed above that Municipal Commissioner could have imposed minor punishment upon the petitioner and, therefore, Respondent No.2 - Municipal Commissioner is disciplinary authority for present petitioner. We have also held that because of delegation in his favour, Respondent No.3 has rightly initiated or instituted departmental proceedings.

16. However, the other relevant provisions of Maharashtra Civil Service (Discipline and Appeal) Rules, in the matter assume importance as major punishment has been inflicted upon the petitioner. Under Rule 7(2) of Discipline and Appeal Rules, Respondent No.3 is competent to initiate departmental enquiry and procedure for imposing minor penalty is prescribed in Rule 10 thereof. Rule 10(1)(b) also contemplate holding of an enquiry in the manner laid down in Rule 8 if disciplinary authority finds it necessary. In present matter, it is not in dispute that such an enquiry under Rule 8 has been conducted against the petitioner. Rule 8(23)(a) stipulates that where a disciplinary authority, competent to impose any of the minor penalties, has instituted departmental enquiry and because of material which has come on record in enquiry, is of opinion that any of the major penalty should be imposed on Corporation servant, that authority has to forward records of enquiry to such disciplinary authority as is competent to impose such major penalty. Thus, though under Rule 7(2), disciplinary authority competent to impose minor punishment upon the petitioner has initiated departmental enquiry, that enquiry can be used for imposing major penalty if such disciplinary authority is of that opinion. Rules, therefore, take care of situation in which disciplinary proceedings can be instituted even by a disciplinary authority of lower grade but then when major penalty is found necessary, such disciplinary authority of lower grade has to forward records to superior disciplinary authority i.e. one which is competent to impose major penalty. This obviously could not have been done. The procedure prescribed in Discipline and Appeal Rules is to be followed as far as possible and hence Respondent No.3 ought to have forwarded the records along with his opinion to Respondent No.2 - Nagpur Corporation for further appropriate action. It is to be noted that this course of action was not required to be considered by Division Bench of this Court in its judgment Prabhakar vs. K.D. Municipal Corporation, (supra), as the Municipal Commissioner there was not shown to be competent disciplinary authority under Rule 7(2). Hence, merely because departmental proceedings are initiated by authority competent to impose minor penalty, enquiry cannot be said to be vitiated.

17. Rule 8(23) (b) states that after the records are received by superior disciplinary authority like Corporation (General Body) here, it can take further evidence if it finds it necessary and may impose on Corporation servant such penalty as it may deem fit in accordance with these rules. It is, therefore, obvious that the application of mind to the report of Enquiry Officer and further action upon it in the manner stipulated in Rule 9 is to be undertaken by Corporation in present matter and not by Respondent No.3. The disciplinary authority i.e. Respondent No.3 has not conducted departmental enquiry and after receipt of enquiry report, it issued a final notice to the petitioner on 26th March 2005. In this final notice, Respondent No.3 has stated that he is not agreeing with findings of Enquiry Officer on Charge No.2. He has given his reasons therefor. In view of the scheme of Rule 8(23)(a) and (b), it is clear that when major penalty is found just in the matter of the petitioner, such course of action could not have been followed by Respondent No.3. He should have taken recourse to Rule 8(23)

(a) and forwarded the records of departmental enquiry to competent disciplinary authority i.e. Corporation. The Corporation thereafter could have proceeded further under Rule 8(23)(b) or in such other way as it found just in terms of Rule 8 and Rule 9. When enquiry is not conducted by disciplinary authority and report of enquiry officer is to be used by such disciplinary authority, giving of an opportunity of hearing to the delinquent employee about the correctness or otherwise of findings recorded by Enquiry Officer is held to be essential ingredient of principles of natural justice by the Hon'ble Apex Court in the case of Union of India vs. Mohd. Ramzan Khan, reported at AIR 1991 SC 471. It is, therefore, obvious that in the face of this law of land and express provision in Rule 8(23)(a) and (b) of Discipline & Appeal Rules, Respondent No.3 ought to have forwarded the entire records to Corporation for consideration of enquiry report and also for finding out further steps required to be taken in accordance with law in the matter.

Once Respondent No.3 found that a major penalty needed to be inflicted upon the petitioner, he ceased to have any jurisdiction in the matter and he could not have proceeded to impose any punishment upon the petitioner. Respondent No.1 - State Government has noticed that Corporation is the competent authority in the matter but has only made the punishment imposed by Respondent No.3, subject to approval of Nagpur Corporation.

18. In view of these findings, it is apparent that the order of punishment dated 28th October 2005 passed by Respondent No.3 and order dated 30th May 2007 passed by Respondent No.1 in appeal are unsustainable. The same are accordingly quashed and set aside. However, the proceedings need to be restored at the stage of issuance of final show cause notice dated 23rd June 2005 by Respondent No.3. The said notice dated 23rd June 2005 is also quashed and set aside. Respondent No.3 is directed to forward the records of departmental enquiry as per Rule 8(23)(a) to the competent disciplinary authority i.e. Corporation for further action in accordance with Rule 8(23)(b). In view of these conclusion, it is apparent that correctness or otherwise of findings reached by the Enquiry Officer can be agitated before Corporation by present petitioner. Similarly, the question of victimization can also be raised by him before that authority. It is, therefore, not necessary for us to record any finding in that respect in present matter at this stage.

19. With the result, the final Show cause notice dated 23rd Jun 2005, the order of punishment dated 28th October 2005 and appellate order dated 30th May 2007 impugned in this writ petition are quashed and set aside. Writ Petition is partly allowed and departmental proceedings against the petitioner are restored to the file of Respondent No.3 for further action in accordance with the provisions of Section 8(23)(a) and (b) of Maharashtra Civil Service (Discipline and Appeal) Rules, 1979.

Considering the nature of controversy, said inquiry be completed as early as possible and in any case by 31st May 2010. Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.