Skip to content


Abdul Rahim Khan Vs. Municipal Committee, Khamgaon and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 208 of 1957
Judge
Reported inAIR1958Bom260; (1958)60BOMLR767; ILR1960Bom225
ActsCentral Provinces and Berar Municipalities Act, 1922 - Sections 25(6), 25(7) and 176(2); Central Provinces and Berar Municipalities Rules - Rule 2; Constitution of India - Articles 226 and 311
AppellantAbdul Rahim Khan
RespondentMunicipal Committee, Khamgaon and anr.
Appellant AdvocateD.B. Padhye, Adv.
Respondent AdvocateC.P. Kalele, Adv.
Excerpt:
.....2(ii) and rules made under section 25(7) - whether open to municipality to prefer second appeal to deputy commissioner against order of sub-divisional officer--applicability of rule 2(ii) to employee drawing total amount of rs. 50 from municipality although his salary per month less than that amount--substantial compliance with rules framed under section 25(7), but prior order of municipal committee directing secretary to hold enquiry into conduct of employee wanting, whether vitiates order of dismissal.;under rule 2(ii) framed under the c.p. and berar municipalities act, 1922, it is open to a municipality governed by the act to prefer a second appeal to the deputy commissioner against an order of the sub-divisional officer made in appeal against the decision of the municipal..........dismissal made by the first respondent. the first respondent then preferred an appeal before the deputy commissioner against the order of the sub-divisional officer. this appeal succeeded and the learned deputy commissioner set aside the order of the sub-divisional officer and restored the resolution of the municipal committee whereby the petitioner was dismissed. the petitioner, therefore, has come up to this court.3. in the first instance, shri d.b. padhye, who appears for the petitioner, contends that the second appeal at the instance of the municipal committee before the deputy commissioner was not competent, firstly, on the ground that there is no right of appeal conferred on the municipal committee under sub-section (6) of section 25 of the c.p. and berar municipalities act,.....
Judgment:

Y.S. Tambe, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner Abdul Rahim Khan prays for a writ of certiorari Quashing the order dated 13-4-1957 made by the Additional Deputy Commissioner, Khamgaon, second respondent hereto, as well as the order of the Municipal Committee Khamgaon, first respondent hereto, dismissing him from service. He also prays for a writ of mandamus to the first respondent directing it that the petitioner be reinstated in the service as and from the date of his dismissal with all his attendant rights, privileges and benefits.

2. The petitioner was employed in the service of the first respondent on 12-5-1953, under the orders of the President of the first respondent, as a Correspondence Clerk on a probation for one year. His pay scale was 40-1-50-bar-2-70. In addition to the pay, the petitioner was entitled to receive Rs. 30/- per month as Compensatory Cost of Living Allowance. On 21-7-1953, the petitioner was posted as an Audit Clerk. The first respondent at its meeting held on 12-8-1955 considered the question of confirmation of the services of the petitioner and some other employees.

So far as the petitioner was concerned, it was resolved that if the petitioner produced a letter of authority showing that the resignation tendered by him of his post of Revenue Inspector was duly accepted, then he should be confirmed as and from 1-3-1955. According to the petitioner, he produced that authority and showed it to the President in October 1955, and was, therefore, entitled to be treated as a confirmed employee. It appears that the petitioner then started contributing towards Provident Fund and to enable him to do so he himself entered his name in the bill of permanent employees without there beingany order to that effect from any higher authority. When this fact was noticed, an objection thereto was raised by some members of the Municipal Committee and the matter was brought to the notice of the President. The President then directed the Secretary to hold an enquiry.

The Secretary then duly held an enquiry and reported the matter to the President. The question then was considered in the meeting of the first respondent and by resolution dated 17-7-1956 it was resolved that the petitioner should be dismissed. Against this decision of the first respondent, the petitioner preferred an appeal before the Sub-Divisional Officer. The appeal succeeded and the Sub-Divisional Officer set aside the order of dismissal made by the first respondent. The first respondent then preferred an appeal before the Deputy Commissioner against the order of the Sub-Divisional Officer. This appeal succeeded and the learned Deputy Commissioner set aside the order of the Sub-Divisional Officer and restored the resolution of the Municipal Committee whereby the petitioner was dismissed. The petitioner, therefore, has come up to this Court.

3. In the first instance, Shri D.B. Padhye, who appears for the petitioner, contends that the second appeal at the instance of the Municipal Committee before the Deputy Commissioner was not competent, firstly, on the ground that there is no right of appeal conferred on the Municipal Committee under Sub-section (6) of Section 25 of the C.P. and Berar Municipalities Act, 1922; Sub-section (6) of Section 25 reads as follows:

'The Provincial Government may prescribe the classes or grades of officers and servants who shall have the right of appeal except in the case of dismissal under Sub-section (5) from any decision of the committee inflicting any departmental punishment other than censure.' In our opinion, this sub-section relates only to a right of appeal against the decision of the' Committee inflicting any departmental punishment other than censure. This has no relevance in considering the right of a second appeal against an order made on appeal from the decision of the Committee inflicting any departmental punishment other than censure. Clause (vii) of Section 176(2) of the Act deals with powers of the State Government to make rules as regards appeal when there is no express provision made in the statute. The said clause reads as follows:

'(2) In particular, and without prejudice to the generality of the foregoing power, the Provincial Government may make rules-

x x x (vii) as to cases in which, and the authorities to whom and the conditions subject to which, orders and decisions given under any provisions of this Act, and not expressly provided for as regards appeal, shall be appealable.'

Now, as already shown, in Sub-section (6) or Section 25 there is no express provision made as regards an appeal against an appellate order made on an appeal against the decision of the Committee inflicting any departmental punishment other than censure. The State Government, therefore, was competent to make rules as regards such second appeals. This brings us to the rules framed by the State Government. These rules appear at page 182 of the Madhya Pradesh Municipal Manual. Rule 2(ii) is the relevant rule. It reads: 'A second appeal shall lie to the Deputy Commissioner against the order of the Sub-Divisional Officer under Sub-rule (i) in the case of an employee drawing Rs. 50 per mensem or over. Except as otherwise provided in Rule 3, the Deputy Commissioner's order shall be final.'

No doubt, these rules purport to have been made under Section 25(6) of the Municipalities Act, but when the notification is read as a whole, it is clear that the State Government, in framing these rules, have exercised powers not only under Section 25 (6) but also under Section 176(2)(vii). The following clause in the notification 'and the authorities to whom and the conditions subject to which the appeal shall lie' is referable only to Section 176(2) (vii) and is not referable to Section 25(6). Non-mention of Section 176(2) in the notification, therefore, in our view, is not fatal to the validity of the aforesaid rule. Now, this rule is worded generally. It says that a second appeal shall lie to the Deputy Commissioner against the order of the Sub-Divisional Officer. It does not say that a second appeal shall lie to the Deputy Commissioner only at the instance of the employee. There being thus no limitation, in our view, it was open to the Municipality to prefer a second appeal to the Deputy Commissioner. This ground, therefore, fails.

4. Secondly, what Shri Padhye argues is that the petitioner was not drawing a salary of Rs. 50/- per mensem, and, therefore, it was not competent to the Municipal Committee to prefer the second appeal even under the aforesaid rule, namely rule 2(ii). No doubt, the salary drawn by the petitioner was only Rs. 40/- per month but it cannot be lost sight of that in addition to the salary he was also drawing Rs. 30/- as Compensatory Cost of Living Allowance. Thus, the total amount drawn by the petitioner every month from the municipal funds was Rs. 70/-per month. Now, looking to the said rule, the phraseology used is 'in the case of an employee drawing Rs. 50/- per mensem or over'. The phraseology used ig not 'in the case of an employee drawing a salary of Rs. 50/- per mensem or over.' It is not possible for us to read the word 'salary' in the aforesaid rule. Thus, the condition imposed by the rule is drawing of Rs. 50/- or more by an employee, and this condition, as stated above, is satisfied in the instant case. This ground also, therefore, fails.

5. It is next urged by Shri Padhye that the inquiry held in the instant case by the Secretary was without jurisdiction. He has referred us to Sub-section (7) of Section 25 and the rules made thereunder appearing at page 284 of the Municipal Manual. This contention, though well founded, does not carry the petitioner's case any further. True, before the Secretary entered upon the enquiry there should have been an order to that effect made by the Municipal Committee. In the instant case, no such order was made prior to the holding of the enquiry, but this lacuna, in our view, is not fatal to the dismissal of the petitioner in the instant case. It is not that the Secretary was not competent at all to hold an enquiry. The only objection is to the want of prior order from the Municipal Committee directing him to hold an enquiry. The direction in the instant case was not given by a resolution of the Municipal Committee as such but by the President. No objection was raised before the Secretary as to his competence to hold an enquiry; further the entire case was considered by the Municipal Committee in its meeting held on 17-7-1956 and the findings of the Secretary were accepted by the Municipal Committee. This showsthat the action taken by the President in ordering the Secretary to hold an enquiry and the action of the Secretary in holding the enquiry were ratified by the Municipal Committee. The requirements of the rules framed under Section 25 (7) have been substantially complied with. Also, it has not been shown to us that any real prejudice has been caused to the petitioner on account of this lacuna in the enquiry held by the Secretary. It is also not the case of the petitioner that the Secretary in holding the enquiry had not followed the procedure prescribed by these rules. This contention, therefore, also, in our view, is without substance.

6. Lastly Shri Padhye says that the Deputy Commissioner was in error in holding that the appointment of the petitioner was from its inception invalid. For the purposes of this petition we will assume it to be so, but nothing turns on this even if we assume that the petitioner was validly appointed. In the instant case, it has been found that the petitioner had, without an order from his superior officer, entered his name in the register of permanent employees which he had no right to do. This was done with a view to gaining an advantage to himself. A charge in this respect was duly framed against him & he was served with a copy of the charge. He was given an opportunity to explain his conduct. An enquiry was duly held in the presence of the petitioner. The petitioner, therefore, had fair and; reasonable opportunity to show cause against the action which was proposed to be taken against him. The matter was gone into again by the two appellate authorities and the final appellate authority, namely the Deputy Commissioner, has held that the conduct of the petitioner was mala fide. In these circumstances, in our judgment, no case is made out for any relief at the hand of this Court in exercise of its powers under Article 226 of the Constitution.

7. In the result, therefore, the petition fails and is dismissed. We make no order as to costs.

8. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //