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Bijoy Kalipada Mukerjee Vs. Corporation of the City of Nagpur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 271 of 1957
Judge
Reported in(1958)60BOMLR760; (1959)ILLJ497Bom
ActsConstitution of India - Article 226; Central Provinces and Berar General Clauses Act, 1914 - Sections 15
AppellantBijoy Kalipada Mukerjee
RespondentCorporation of the City of Nagpur
Excerpt:
.....of health officer--whether necessary under first proviso to section 49(2) to obtain approval of state government prior to holding such enquiry--whether sub-committee competent to hold enquiry--power of chief executive officer to exercise supervision and control under section 59(3)(b) whether includes holding of enquiry into misconduct of officer--power of corporation to suspend or dismiss any person appointed by it.;under the first proviso to section 49(2) of the city of nagpur corporation act, 1948, it is not necessary to obtain the approval of the state government prior to the holding of an enquiry by a sub-committee appointed by the corporation to find out whether charges framed against any of its officers mentioned in the section are established.;the question of obtaining the..........in papers. it appears that a reference was made by the chief executive officer to the state government in this respect, and in reply, the state government, by its letter dated 11 january, 1955, intimated to the chief executive officer that the state government was not according its approval to the termination of the services of the petitioner as no specific charges had been proved against him. thereafter, respondent 1 in its meeting hold on 17 september, 1955, resolved that specific charges be framed against the petitioner by the chief executive officer, and directed the chief executive officer to report in this matter as quickly as possible. the question then was again taken up by respondent 1 in its meeting held on 30 november, 1955, and it was resolved to appoint, and the.....
Judgment:

Tambe, J.

1. This is a petition under Art. 226 of the Constitution of India made by one Bijoy Kalipada Mukerji in which he prays for a writ of certiorari quashing the resolution of the Corporation of the City of Nagpur dated 9 February, 1957, approval of the Government thereto accorded on 16 July, 1957, and the consequent order issued by the Chief Executive Officer on 17 July 1957. The petitioner was appointed as Public Health Officer of the Corporation of the City of Nagpur, respondent 1 hereto, on 24 November, 1952, for a period of five years subject to a probation period of one year and subject to the petitioner executing an agreement in writing. We are informed that the petitioner has not executed any agreement. The question of the confirmation of the petitioner came up before the Corporation at its meeting held on 6 October, 1954. It appears that the Chief Executive Officer, respondent 2 hereto, at the meeting reported that the work of the petitioner was not satisfactory. The House, after discussion, decided that the petitioner be not confirmed in his post and his post be filled up by inviting fresh applications on advertisement in papers. It appears that a reference was made by the Chief Executive Officer to the State Government in this respect, and in reply, the State Government, by its letter dated 11 January, 1955, intimated to the Chief Executive Officer that the State Government was not according its approval to the termination of the services of the petitioner as no specific charges had been proved against him. Thereafter, respondent 1 in its meeting hold on 17 September, 1955, resolved that specific charges be framed against the petitioner by the Chief Executive Officer, and directed the Chief Executive Officer to report in this matter as quickly as possible. The question then was again taken up by respondent 1 in its meeting held on 30 November, 1955, and it was resolved to appoint, and the Corporation appointed, a sub-committee of three of the corporators, namely, Sri Bhapkar, Sri Pannalal Deshraj and Sri Bhamburkar to go into the matter. In a subsequent meeting of respondent 1 held on 16 December, 1955, it was resolved that the aforesaid sub-committee would work, and was empowered to work, as an inquiry sub-committee and submit its report to respondent 1. The sub-committee was further empowered to amend the chargesheet in case it felt that the charges framed by the Chief Executive Officer were not complete. The sub-committee then served charges on the petitioner on 6 February, 1956. It appears that the petitioner then raised certain objections regarding the jurisdiction of the sub-committee to hold an enquiry on two grounds. Firstly, it was contended that the Chief Executive Officer alone was competent to hold an enquiry and, therefore, it could not be held by the sub-committee appointed by the Corporation. Secondly, it was contended that as the State Government had not accorded its approval to the appointment of a sub-committee to enquire into the charges, the sub-committee was not competent to hold an enquiry. By its order dated 30 August, 1956, the said sub-committee overruled these objections. The petitioner then preferred an appeal against the decision of the sub-committee to the Board of Revenue, Madhya Pradesh. The Board of Revenue, by its order dated 24 October 1956, dismissed the appeal. The sub-committee then held an enquiry. Therein, the petitioner submitted his explanation on merits in respect of the charges framed against him and appeared before the sub-committee in the enquiry. Sixteen witnesses were examined in support of the charges in the presence of the petitioner and he had an opportunity to cross-examine them. The petitioner in his defence examined eight witnesses. Arguments in writing were submitted by the petitioner before the sub-committee. The sub-committee thereafter submitted its report to respondent 1. The report is signed by Sri Pannalal Deshraj and Sri Bhapkar on 4 January, 1957, and by Sri Bhamburkar on 7 January, 1957. For the consideration of the report of the sub-committee, a meeting of respondent 1 was convened on 9 February, 1957. In the meanwhile, the petitioner made a petition to this Court under Art. 226 of the Constitution on 5 February, 1957, praying that respondent 1 be restrained from holding the meeting. No interim writ was granted to the petitioner. The meeting of respondent 1 was held on 9 February, 1957, and after consideration of the report of the sub-committee, it was resolved that the services of the petitioner should be terminated and the State Government should be moved to accord its approval thereto. It was further resolved that the services of the petitioner be terminated with effect from the date of Government approval and the resolution also authorized the Chief Executive Officer to take necessary action for the same. The case then was submitted to the State Government. The State Government, by its resolution No. NMC-1457-E of date 16 July, 1957, approved the aforesaid resolution of respondent 1 and the action proposed to be taken against the petitioner. The Chief Executive Officer then, by order dated 17 July, 1957, dispensed with the services of the petitioner with immediate effect. The petitioner, therefore, has amended his petition to this Court made under Art. 226. The first contention raised by Sri M. N. Phadke, who appears for the petitioner, is that the enquiry held by the sub-committee was without jurisdiction inasmuch as the State Government had not accorded its approval for holding this enquiry. Reliance is placed on the first proviso to Sub-section (2) of S. 49 of the City of Nagpur Corporation Act, 1948 (No. II of 1950) (hereinafter called the Act). Sub-section (2) of S. 49 reads as follows :- 'The Corporation shall appoint fit and proper persons, for such periods, respectively, as it deems fit, to be city engineer, health officer and municipal secretary, and shall fix the monthly salary and allowances to be paid to the persons as appointed : Provided that the appointment, salary, allowances and conditions of service of the city engineer, health officer and municipal secretary and any step taken by the Corporation with a view to the termination of their appointments shall be subject to the approval of the Provincial Government : Provided further that each of the officers mentioned in Sub-section (2) shall, notwithstanding anything contained in the first proviso, be removable from office at any time for misconduct or for neglect of or incapacity for the duties of the office if at a meeting of the Corporation not less than five-eighths of the total number of councillors constituting the Corporation for the time being shall vote in favour of a proposition in that behalf.' Stress is laid on the clause 'any step taken by the Corporation with a view to the termination of their appointments' in the first proviso reproduced above. Sri Phadke argues that the appointment of the sub-committee was a step taken with a view to the termination of the petitioner's appointment, and, therefore, it was necessary to have obtained the approval of the State Government before taking this step. To show that this was a step taken with a view to the termination of the petitioner's appointment, our attention was drawn to the chargesheet served on the petitioner by which he was called upon to show cause why departmental action including dismissal, discharge or termination of services be not taken against him. Sri Abhyankar, who appear a for respondents 1 and 2, on the other hand, condends that this was not a step taken with a view to the termination of the petitioner's services. True, an idea of the termination of the services was no doubt there, but that was not the immediate object of the sub-committee. The object was to find out whether the charges framed against the petitioner were established. There is a considerable force in the argument advanced. We have first to decide whether the approval of the State Government was a condition precedent to the holding of the enquiry. In our opinion, there is nothing in the proviso to show that the approval was to be taken prior to the holding of the enquiry. The words used are 'subject to the approval of the Provincial Government' and not 'subject to the previous approval of the Provincial Government.' Now, if the entire Sub-section (2) of S. 49 is read, it is apparent that a corporation can, by a majority of five-eighths of the total number of councillors constituting the Corporation, remove either a city engineer, or health officer or municipal secretary without the approval of the State Government. The question of obtaining the approval of the State Government comes in if only a resolution for removal of any of these officers is passed by a majority which falls short of five-eighths of the total number of councillors constituting the Corporation. This can only be known when a resolution to that effect is ultimately passed by the Corporation. Therefore, it cannot be said that a question of obtaining the approval of the State Government arises at a stage prior to the passing of the resolution for removal of any of these officers. This construction further finds support in proviso (b) to Sub-section (1) of S. 51 of the Act. Sub-section (1) deals with acting appointment of officers and servants. Proviso (b) reads as follows : 'any appointment of a person to act as city engineer, health officer or municipal secretary may be disallowed by the Provincial Government, and shall be null and void from the date the order disallowing it is communicated to the Corporation.' Reverting back to the first proviso to Sub-section (2) of S. 49, it deals with not only the termination of the services of the said officers but also relates to their appointment and the approval of the State Government relates both to the appointment and the steps taken with a view to the t

2. ermination of the appointment. Proviso (b) to Sub-section (1) of S. 51 indicates that the approval for appointment is to be obtained subsequent to the date of appointment and not at a stage prior to the making of appointment. There is no reason, therefore, to assume that it was intended to obtain the approval of the State Government at a stage prior to the passing of resolution for the termination of the service. Further, in the Act we find specific mention of obtaining previous approval of the State Government before taking certain actions. To illustrate, reference may be made to Sub-section (2) of S. 71. Sub-section (2) of S. 98, Sub-section (2) of S. 114, and S. 224. This indicates that whenever the legislature intended that the previous approval of the State Government was necessary for taking any step, it has specifically so expressed. In the instant case it has not been mentioned that the steps taken with a view to the termination of the service were to be taken with the previous approval of the State Government. In our view, therefore, this contention fails. Sri Phadke next contends that the only person competent to hold the enquiry was the Chief Executive Officer, and therefore, the sub-committee appointed by the Corporation was not competent to hold the enquiry. Reference is made to Clause (1) of Sub-section (2) of S. 420 and the rules made thereunder. Section 420(2)(1) empowers the State Government to make rules regarding the procedure to be observed for the employment, punishment, suspension or removal of the officers and servants of the Corporation and appeals from orders of punishment or removal. But, in the instant case when we refer to the rules we find that there are no rules framed regarding the procedure to be observed for appointment, punishment, suspension or removal of the officers though there are rules made in that respect as regards the servants. Sri Phadke urges that these rules are as well applicable to the procedure to be observed for removal of the officers also. It is not possible for us to accept this contention. These rules are divided into three parts, namely, (1) relating to the punishment of the menial servants, (2) relating to the servants other than the menial servants, and (3) general provisions which only deal with certain rights of the officer or servant, against whom an order is passed, relating to obtaining copies of the order and certain documents for purposes of filing an appeal.

3. Now, from the scheme of the Act it appears that the employees of the Corporation are divided into two categories, namely, officers and servants. Section 45 of the Act deals with the appointment and removal of the Chief Executive Officer. Sections 46 to 48 relate to the terms and conditions of the service of the Chief Executive Officer. Section 49 relates to the appointment of four officers, namely, Deputy Chief Executive Officer, city engineer, health officer and the municipal secretary, and their salaries. Section 50 deals with officers and servants other than those mentioned in Ss. 45 and 49. This section provides that officers whose minimum monthly salary is not less than Rs. 300 are to be appointed by the Corporation : officers and servants whose minimum salary is not less than Rs. 150 but is less than Rs. 300 are to be appointed by the standing committee; and the appointment of municipal officers and servants other than the aforesaid municipal officers and servants is to be made by the Chief Executive Officer. Thus, it is clear that in the scheme of the Act the employees are divided into two categories, namely, the officers and the servants. Section 420(2)(1), in terms, empowers the State Government to make rules providing the procedure for appointment and termination of services both of the officers and the servants, and when rules framed under S. 420(2)(1) are read, it is clear that they relate to the procedure to be followed in awarding punishment to the servants. The reference, no doubt, is made to the officer in the third part, namely, the general part, but that part does not deal with the procedure to be followed in punishing an officer. It deals with making certain papers available to him on an order of punishment having been passed. It is, therefore, not possible for us to hold that these rules are applicable in the case of an enquiry against the petitioner.

4. It is next urged by Sri Phadke that even if these rules are not in terms applicable to the case of the petitioner, the power to exercise supervision and control over the petitioner is that of the Chief Executive Officer and, therefore, he and he alone is competent to hold enquiry and not the sub-committee appointed by the Corporation. Reliance is placed on Sub-section (3) of S. 59 of the Act. Material part of this section reads as follows : '59. (3) Subject whenever it is in this Act expressly so directed to the approval or sanction of the Corporation or of the standing committee, and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Chief Executive Officer, who shall also -

(a) * * *

(b) exercise supervision and control over the acts and proceedings of all municipal officers and servants and subject to the rules or bylaws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances.'

5. Firstly, in our opinion, holding an enquiry of this nature is not exercising supervision and control over the acts and proceedings of the petitioner. What is contemplated by Clause (b), in our opinion, is supervision and control over the work of the officer in discharge of his duties. Even assuming for a moment that exercising supervision and control would also include holding an enquiry into the misconduct of an officer, this power as regards the petitioner, in our view, is not vested in the Chief Executive Officer, because the powers conferred on him under Cls. (a) to (c) of Sub-section (3) are subject to other restrictions, limitations and conditions imposed on him by the Act. Now, so far as the termination of the services of these officers; is concerned, no doubt there is no express provision in the Act as such except the one contained in the second proviso to Clause (2) of S. 49 of the Act. Section 49 confers on the Corporation a power to appoint certain officers including the health officer subject to the approval of the State Government, but then these provisions have to be read with S. 15 of the Central Provinces and Berar General Clauses Act, 1914, which provides that where, by any Madhya Pradesh Act, a power to make any appointment to conferred, then, unless a different intention appears, the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power. When S. 49 of the Act and S. 15 of the General Clauses Act are read together, it is clear that by virtue of the power of appointment conferred on respondent 1 by S. 49, respondent 1 has power to suspend or dismiss any person appointed by it. Thus, respondent 1 being empowered by the statute to deal with the suspension, termination or dismissal of the services of the petitioner, it was not competent to the Chief Executive Officer to deal with any of these matters under S. 59(3)(b) of the Act. This contention also therefore fails.

6. Sri Phadke then argues that we are dealing with a statutory Corporation, and unless it is shown that there is a statutory power in respondent 1 to dismiss the petitioner, it is not competent for the Corporation to dismiss him. Reliance was placed on the following passage in Para. 124 of Halsbury's Laws of England, Vol. IX, 3rd Edn. It reads : 'Corporations may be either statutory or non-statutory, and a fundamental distinction exists between the powers and liabilities of the two classes. Statutory corporations have such rights and can do such acts only as are authorized directly or indirectly by the statutes creating them; non-statutory corporations, speaking generally, can do everything that an ordinary individual can do unless restricted directly or indirectly by statute.'

7. No doubt, we are dealing with a statutory Corporation but, as already shown in dealing with the previous point raised, it is clear that in the instant case the power to suspend, punish or dismiss the petitioner was conferred on respondent 1 under S. 49 of the Act read together with S. 15 of the General Clauses Act. This contention also, in our opinion, therefore, fails.

8. Next it is urged that the persons who held the enquiry were not competent to hold it inasmuch as one of them, namely, Sri Bhapkar, was really the complainant himself and the charges framed against the petitioner were based on the complaint made by Sri Bhapkar. It is contended that in these circumstances his presiding over the enquiry was not in consonance with the principles of natural justice. No material is placed before us by the petitioner in support of his allegations. The respondent denied these allegations. According to respondent 1, the charges framed were based on the information received from various persons and facts disclosed from the documents on record. In these circumstances, it is not possible for us to accept these allegations. Further we find that the objection was not raised before the enquiry committee but is raised for the first time before us. It is, therefore, not possible to accept these allegations made against Sri Bhapkar.

9. It is next urged that the report of the committee is vitiated inasmuch as Sri Deshraj did not attend most of the hearings and, therefore, he was not competent to subscribe to this report. This again is a question of disputed fact. The allegation of the petitioner, therefore, cannot be accepted. We also do not find that any objections were raised before the enquiry committee that hearings should not be proceeded with as one of its members was absent. No importance also can, therefore, be attached to this allegation. It is next contended that the petitioner had no reasonable opportunity to be heard by the Corporation before the resolution of 9 February, 1957 was passed. The action taken by the Corporation, therefore, is against the principles of natural justice. Reliance is placed on the observations at P. 247 in Bhikulal v. The State 1953 Nag. 245 and certain observations in Thakur Hemraj Singh v. State of M. P. [Miscellaneous Petition No. 18 of 1952 decided on 19 April, 1952]. Now, in the instant case, as already stated, the petitioner, in our opinion, had full opportunity to put forward his case before the enquiry committee appointed by the Corporation. He was supplied with the charges. He had over six months to file his explanation to these charges. He did file his explanation to those charges before the enquiry committee. He was present when sixteen witnesses in support of the charges were examined. He had cross-examined them. He had examined eight witnesses in his defence and after the evidence was closed, he had filed a written argument before the enquiry committee. The contention of Sri Phadke is that this is not sufficient or reasonable opportunity. The decision taken was by the Corporation and therefore, the petitioner ought to have been heard by the Corporation, and a copy of the report of the enquiry committee ought to have been supplied to him. Now, in our view, the decisions relied upon by Sri Phadke do not go to this extent. The observations relied upon in Thakur Hemraj Singh v. State of M.P. are : 'It is true that there is no express provision in the Municipalities Act which requires such opportunity to be given but we think that where the action proposed to be taken is of so far-reaching a character as dismissal from service, it would be in consonance with the principles of natural justice that the person affected thereby should be given an opportunity for placing his case before the Government. This principle of natural justice found place in the Government of India Act, 1935, and is now embodied in Art. 311 of the Constitution. No doubt, this article does not, in terms, apply to persons in the service of a municipal committee but we do not think that it would be right to deny to the servants of public bodies the advantage of the salutary principle underlying that article.'

10. The decision in Bhikulal v. The State is also to the same effect. Thus, according to these decisions, a person against whom an action of the nature of dismissal is contemplated should have an opportunity of placing his case before the authority which was proposing to take that action. It is nowhere said that a personal hearing as such should be given to a person against whom an action was proposed to be taken. As already shown, the explanation, the arguments and the entire evidence were submitted to the Corporation. We further find that at no stage the petitioner had asked that he should be given an opportunity to be heard by the Corporation itself. In fact, there are no clear allegations oven in Paras. 2, 4 and 12 of the petition, on which reliance was placed by Sri Phadke, that any prejudice was caused to the petitioner because he was not called before the Corporation to state his case in person.

10. In the result, therefore, in our judgment, there is no case made out for issuing any order in exercise of our power under Art. 226 of the Constitution. The petition, therefore, fails and is dismissed. We make no order as to costs.


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