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Bhansidhar Ganesh Ram Bhaiyyalal Vs. Municipal Council Deoli and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 635/82
Judge
Reported in(1986)IILLJ107Bom; 1985MhLJ980
ActsMaharashtra Municipalities Act, 1965 - Sections 75(4), 79, 79(1), 79(2), 79(3), 79(4), 79(5), 79(6), 79(7), 313 and 314
AppellantBhansidhar Ganesh Ram Bhaiyyalal
RespondentMunicipal Council Deoli and Others
Excerpt:
.....it is well settled by a series of decisions of the supreme court, that the principles of natural justice are not a straight-jacket formula or are not rigid and they vary from facts to facts, statutes to statutes and depend upon the nature of the lis before the authorities concerned. in respect of an order involving adverse or penal consequences against an officer or an employee of statutory corporations like the state bank of india, there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the material gathered in his..........removal.8. the principal submission on behalf of the petitioner is that unless the principles of natural justice are expressly excluded, an opportunity of hearing must be given to the person concerned before an order adverse to him is passed by any authority. he has relied upon certain decisions of the supreme court in support of his aforesaid proposition, some of which are : s. l. kapoor v. jagmohan : [1981]1scr746 , swadeshi cotton mills v. union of india : [1981]2scr533 , national textile workers union and others v. p. r. rama krishnan and others 1983-i l.l.j. 45, commissioner of income tax (central) v. b. n. bhattacharya : [1979]118itr461(sc) , and raj restaurant and another v. municipal corporation, new delhi : air1982sc1550 . he has also relied upon kraipak's case : [1970]1scr457.....
Judgment:

Dhabe, J.

1. Both the facets of the principles of natural justice viz., that the delinquent cannot be condemned unheard and that a person cannot be a judge in his own cause are in issue before us in this petition.

2. The facts giving rise to the questions urged in this petition are that the petitioner, who was in the service of the Municipal Council, Deoli, since 23rd April, 1956 and was during the relevant time working as an Octroi Inspector, was chargesheeted for misconduct on 10th September, 1979. It appears from the chargesheet that the said chargesheet was issued to him by the Standing Committee of the Municipal Council. An Enquiry Committee was constituted to enquire into the charges against the petitioner. It is, however, relevant to state at this stage that the Chief Officer was not a member of the Enquiry Committee constituted to enquire into the charges against the petitioner. The petitioner submitted his explanation to the chargesheet whereafter the evidence was recorded by the Enquiry Committee. It is pertinent to notice at this stage that the Chief Officer of the Municipal Council was examined as a witness in the Departmental Enquiry against the petitioner. After the whole evidence was recorded, the Enquiry Committee prepared its findings and/or conclusions in regard to the charges against the petitioner and submitted its report on 3rd November, 1980 for consideration of the Municipal Council. The report of the Enquiry Committee was accepted by the Special General Meeting of the Municipal Council, Deoli, held on 18th November, 1980.

3. Accordingly, a show-cause notice dated 27th November, 1980 proposing punishment of removal from service as per the recommendations of the Enquiry Committee, which was accepted by the General Body of the Municipal Council was issued by the Chief Officer of the Municipal Council, to the petitioner enclosing therewith a report of the Enquiry Committee. The petitioner submitted his explanation to the show-cause notice on 10th December, 1980 whereafter the matter was placed before the meeting of the General Body of the Municipal Council on 21st January, 1981 for having final decision in the matter. However, it was unanimously decided in that meeting to postpone the subject to the next meeting and hence no decision was taken by the Municipal Council about punishment to be imposed upon the petitioner in the said meeting. But thereafter the Municipal Council was superseded and the Chief Officer of the Municipal Council, who had, as stated above, given evidence in the Departmental Enquiry, was appointed as Administrator of the Municipal Council under the provisions of S. 313 of the Maharashtra Municipalities Act, 1965. It is worthwhile to notice at this stage that under the provisions of S. 314 of the Maharashtra Municipalities Act, 1965, the powers of the Municipal Council, Standing Committee and the Chief Officer vest in the Administrator alone and therefore no other person can exercise the powers of the Municipal Council which vest in the Administrator under S. 314 of the Maharashtra Municipalities Act, 1965 (for short the Act).

4. The Administrator thereafter gave a fresh opportunity of hearing to the petitioner on 4th June, 1981 by his letter dated 4th June, 1981 before taking any final decision in the matter, in response to which the petitioner appeared before him on the same date i.e. 4th June, 1981 and stated that he does not want to state anything orally before him. The Administrator thereafter by his order on 4th June, 1981 itself accepted the report of the Enquiry Committee and removed the petitioner from service as per the provisions of S. 79(1)(vii) of the Act. However, since S. 79(4) of the Act required the prior approval of the Collector before dismissing the employee from service, on 6th June, 1981, the Administrator forwarded the enquiry papers including his order along with his report dated 6th June, 1981 to the Collector, Wardha, for his approval under S. 79(4) of the Act. Accordingly, the Collector, Wardha, granted his approval on 2nd July, 1981 under S. 79(5) of the Act to the order of removal from service passed by the Administrator. After the approval was obtained from the Collector, Wardha, as stated above, the petitioner was removed from service by the order of the Administrator. The petitioner preferred an appeal against the order of the Administrator before the Regional Director, Municipal Administration, Nagpur, who, by his order dated 31st October, 1981 rejected the said appeal confirming the action taken by the Administrator against the petitioner.

5. The petitioner has, therefore, preferred the instant writ petition in this Court challenging the order of his removal from service with effect from 6th July, 1981. The two questions which the learned counsel for the petitioner has raised before us are :

(i) A hearing ought to have been given by the Collector before granting approval to the order of removal of the petitioner from service, and

(ii) The order of removal passed by the Administrator, who was previously the Chief Officer and who had given evidence against the petitioner in the departmental enquiry against him suffers from his bias and is, therefore, liable to be set aside.

6. For considering the first ground raised on behalf of the petitioner, we may briefly refer to the scheme under S. 79 of the Act, which provides for punishment to officers and servants of the Municipal Council and the procedure to be followed in inflicting the punishment against them. Clauses (i) to (viii) of sub-s. (1) of S. 79 provide for various punishments to be imposed upon the officers and servants of the Municipal Council. Sub-s. (2) of S. 79 provides that any of the penalties mentioned in sub-s. (1) may be imposed on an officer or servant of the Council by the authority competent to make the appointment of the officer or servant. At this stage, it is worthwhile to notice that so far as the petitioner was concerned, the authority competent to appoint him was the Municipal Council whose powers vested in the Administrator after the Municipal Council was superseded. Sub-s. (3) of S. 79 of the Act provides that no officer or servant shall be reduced to a lower post or removed or dismissed from service under this section unless he has been given a reasonable opportunity of showing cause against such reduction, removal or dismissal. The proviso to the said sub-section is not relevant for our purpose in this case.

7. Sub-section (4) of S. 79 of the Act, which is relevant for the purpose of this petition, provides that no order shall be passed without the prior approval of the Collector. Further, sub-section (5) of S. 79 of the Act requires that in every case referred to the Collector under the last preceding sub-section, the Collector shall not refuse to give his approval unless he is satisfied that the finding at the enquiry is perverse or that the penalty of removal or dismissal as the case may be, is too severe. Further it is provided in sub-section (5) of S. 79 of the Act, that where the Collector informs the council or the Standing Committee that the finding at the inquiry is perverse, no further proceedings shall be taken against the officer or servant concerned in respect of the same matter. Sub-section (6) of S. 79 of the Act provides for an appeal against any order imposing any penalty mentioned in sub-section (1) of S. 79 and sub-section (7) thereof provides for limitation for the said appeal. Although sub-s. (4) of S. 79 of the Act does not refer to the case of removal, sub-s. (5) relating to approval, refers to removal also and it has, therefore, been held in Writ Petition No. 1814/1974 decided on 31st January, 1980 by this Court, that sub-s. (4) and (5) of S. 79 of the Act relating to prior approval of the Collector cover cases of both dismissal as well as removal.

8. The principal submission on behalf of the petitioner is that unless the principles of natural justice are expressly excluded, an opportunity of hearing must be given to the person concerned before an order adverse to him is passed by any authority. He has relied upon certain decisions of the Supreme Court in support of his aforesaid proposition, some of which are : S. L. Kapoor v. Jagmohan : [1981]1SCR746 , Swadeshi Cotton Mills v. Union of India : [1981]2SCR533 , National Textile Workers Union and Others v. P. R. Rama Krishnan and Others 1983-I L.L.J. 45, Commissioner of Income Tax (Central) v. B. N. Bhattacharya : [1979]118ITR461(SC) , and Raj Restaurant and Another v. Municipal Corporation, New Delhi : AIR1982SC1550 . He has also relied upon Kraipak's case : [1970]1SCR457 to show that the principles of natural justice apply to the administrative orders also. Certain passages at pages 254, 259, 260, 262 and 270 from De Smith's book on 'Judicial Review of Administrative Action' 4th Edition upon the concept of natural justice were also relied upon by him. The principles of 'audi alteram partem', no doubt apply to the administrative, quasi-judicial or judicial orers. It is also well settled that the principles of audi alteram partem are applicable to such orders ensuing civil or evil consequences unless excluded by an express provision or by necessary intendment.

9. Nevertheless it is well settled by a series of decisions of the Supreme Court, that the principles of natural justice are not a straight-jacket formula or are not rigid and they vary from facts to facts, statutes to statutes and depend upon the nature of the lis before the authorities concerned. It would be useful to refer to a recent decision of the Supreme Court in the Case of K. L. Tripathi v. State Bank of India 1981 1 S.C.C. 43. It has dealt with the concept of natural justice as applicable to the departmental enquiry. The question involved in that case was whether there was a breach of the principles of natural justice because the right to cross-examination was denied on the delinquent employee. The relevant observations in paragraph 29, 31 and 32 of the report are as under :

'.... but we find that the relevant rules which we have set out herein before have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India, there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries. Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the material gathered in his absence. As has been observed in 'On Justice' by J. R. Lucas, the principles of natural justice basically, if we may say so, emanate from the actual phrase 'audi alteram partem' which was first formulated by St. Augustine (De Duabus Animabus, XIV, 22 J. P. Migne. PL. 42 110)'

'31. Wade in his Administrative Law, Fifth Edition at pages 472-475 has observed that it is not possible to lay down rigid rule as to when the principles of natural justice are to apply; nor as to their scope and extent. Everything depends on the subject matter, the application of principles of natural justice resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be a real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.

'32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitable form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not inevitably or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement.'

10. The question in this case is what the nature of the lis between the parties is before the Collector in the matter relating to grant of approval to the action proposed to be taken by the Municipal Council or the Standing Committee under S. 79(4) and S. 79(5) of the Act. Looking to the scheme of S. 79 of the Act, relating to the question of inflicting punishment for mis-conducts, it is clear that in the departmental enquiry to be held against the delinquent employee, a reasonable opportunity has to be given to him in defending the charges against him, including the question of punishment as contemplated by sub-s. (3) of S. 79 of the Act. It is after this opportunity is afforded to the delinquent employee, that the decision is taken by the competent authority to inflict punishment upon him. It is then only that the stage of granting prior approval of the Collector comes before an actual order of dismissal, removal is finally passed against the delinquent employee. The only jurisdiction exercised by the Collector in granting approval as is clear from the provisions of sub-s. (5) of S. 79 of the Act is of supervisory nature as he has to apply his mind to the record of the enquiry which is forwarded to him and to determine whether the finding in the enquiry is perverse and whether the punishment of removal or dismissal, as the case may be, is too severe. No new facts and circumstances are contemplated to be brought before him in his enquiry under sub-s. (5) of S. 79 of the Act.

11. In applying the mind to the record of the proceedings in the departmental enquiry, about which already an adequate opportunity is granted to the delinquent employee, it does not appear that any hearing as a matter of course is contemplated under sub-s. (5) S. 79 of the Act. The approval of the Collector contemplated by S. 75(4) of the Act to the action of dismissal or removal of the delinquent employee by the Municipal Council in our view is an administrative approval to which the principles of audi alteram partem are not applicable as a matter of course. Since the delinquent employee is already given full hearing before the order of dismissal or removal is passed by the Municipal Council. The question of granting any personal hearing may therefore arise and may be considered in a case where such a hearing is claimed by the delinquent employee before the Collector. We are not concerned with such a case before us because no such personal hearing was claimed before the Collector by the petitioner in the instant case. When a personal hearing was granted by the Administrator to him, he had declined to say anything before him except what he had already stated earlier. At any rate, therefore, in the instant case, since there is no mandatory obligation upon the Collector to give any hearing under sub-s. (5) of S. 79 of the Act, no illegality is committed by him by not granting any hearing to the petitioner when he did not claim the same before him. There is, therefore, no merit in the contention on behalf of the petitioner that the impugned order of removal is invalid because the Collector has failed to give hearing to the petitioner before granting his approval to the order of his removal.

12. We next proceed to consider the second contention raised on behalf of the petitioner. It is contended that the impugned order of removal passed by the Administrator, who, as a Chief Officer of the same Municipal Council, has given evidence in the departmental enquiry against the petitioner conducted in the instant case, suffers from his bias and is therefore, void and liable to be set aside. In considering the said contention, we may briefly refer to the facts which we have already adverted to. It is not in dispute that the Administrator who was then the Chief Officer of the Municipal Council, was not in the Enquiry Committee when he gave evidence in the departmental enquiry against the petitioner. The initial decision recommending removal of the petitioner is taken by the Enquiry Committee with which the Chief Officer was not concerned. Thereafter the enquiry report was placed before the meeting of the Municipal Council which was then existing and the Municipal Council in its special general meeting dated 18th November, 1980 accepted the report of the Enquiry Committee and decided to issue a show cause notice to the petitioner in the matter of punishment to be given to him.

13. Accordingly, a show cause notice was given to him on 10th December, 1980 and after the receipt of his explanation, the matter was placed again before the meeting of the General Body of the Municipal Council on 21st January, 1981. However, the decision was deferred in that meeting and thereafter before any final decision could be taken by the Municipal Council, it was superseded. It is thus clear that the only matter which is considered by the Administrator, who was previously the Chief Officer was the matter relating to imposition of punishment against the petitioner because so far as the charges were concerned, they were already accepted as proved by the Municipal Council by accepting the report of the Enquiry Committee on 18th November, 1980. The Municipal Council even had proposed to inflict the punishment of removal for which show cause notice was given on 10th December, 1980.

14. At this stage we may advert to the legal position in regard to the inflicting of punishment against the employees of the Municipal Council. It is clear that after the Municipal Council is superseded under S. 313 of the Act, the powers of the Municipal Council, the Standing Committee and the Chief Officer vest in the Administrator under S. 314 of the Act. The matters relating to disciplinary action against the employees, including the question of the power to appoint and the power to dismiss or to remove are governed by the provisions of the Act and in particular the provisions of S. 79 of the Act, which does not permit any discretion in the competent authority to delegate its power to any other authority, which, if done, would amount to abdication of its powers rendering the orders passed by any other authority in its place as illegal and void. In other words, the bias, if any, is a statutory bias because no other authority can exercise the power of the Administrator under S. 79 of the Act. The statutory bias is a well recognised exception to the doctrine of bias upon which the actions are struck done as illegal and void. It is, therefore, clear that there is no other alternative in the instant case to the Administrator except to consider himself the question of imposing punishment upon the petitioner because no other authority can consider it under the Act.

15. Further in our view the challenge on the ground of bias also loses its significance in the instant case because there are adequate safeguards provided against the action of dismissal or removal taken by the Administrator. The first safeguard is that it requires the prior approval of the Collector under S. 79(4) of the Act, who is required to apply his mind to the record of the enquiry, to see whether the findings are perverse and further to see whether the punishment proposed is too severe. The second safeguard which is provided is the provision of an appeal under S. 79(6) of the Act under which the whole question about dismissal or removal effected by the Administration is open in appeal before the higher authority, viz. the Regional Director of Municipal Administration. In view of these safeguards and in view of the circumstances already adverted to viz. that none else except the Administrator can take action of dismiss of or removal, as well as the circumstances that the only question to be dealt with was of determining the punishment are of the view that the impugned order of removal cannot be struck done on the ground of the alleged bias of the Administrator.

16. It has further to be seen that no such ground about the bias of the Administrator has been raised by the petitioner either before the Collector in the proceedings for approval, or in the appeal preferred by him before the Regional Director of the Municipal Administration. Apart from this, he should have raised the said objection before the Administrator himself at the earliest possible opportunity which he failed to do. After having taken a chance to take a decision from him, it is not open to him now to turn round and say that the impugned order of removal passed against him suffers from his bias. The learned counsel for the respondent contended before us that the examination as witness of the Administrator was only formal for proving certain documents in the case in his capacity as the Chief Officer of the Municipal Council. After perusal of records, we find much force in the aforesaid submission on behalf of the respondent No. 1. We, therefore, cannot accept the argument of the learned counsel for the petitioner that the impugned order of removal should be set aside on the ground of bias of the Administrator.

17. In the result, the writ petition fails and is dismissed. However, in the circumstances of the case, there would be no order as to costs.


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