G.C. Jain, J.
(1) This appeal, under clause 10 of the LettersPatent, is directed against the judgment, dated 8/02/1972of a learned Single Judge of this Court.
(2) Mukhtiar Singh, respondent in this appeal, joined serviceas lower division clerk with the Municipal Committee of Delhion 9/01/1950. On the establishment of Municipal Corporation of Delhi under the Delhi Municipal Corporation Act1957 (hereinafter referred to as 'the Act'), he became an employee of the Corporation by virtue of the provisions containedin section 511 of the Act. He was promoted as upper divisionclerk under orders dated 9/01/1959 (dopy annexure 'X')issued by Shri Manohar Lal, Assistant Commissioner (Establishment) of the Municipal Corporation of Delhi. Disciplinaryproceedings were initiated against the respondent He was served with two separate charge-sheets (copies Annexure 'A' and'M'). He denied the charges. Inquiries were held in both thecases. The Enquiry Officer, vide his separate reports, held thatthe charges against the respondent had been established. Agreeing with the findings of the Enquiry Officer, the disciplinary authority, i.e., the Deputy Commissioner, proposed to inflict thepenalty of removal from service which was not to be treated asa disqualification for future employment. Notice was issued tothe respondent to show cause against the proposed penalty. Afterconsidering the reply to the show cause notice, Shri N. N. Tandon,Deputy Commissioner (Establishment), Municipal Corporationof Delhi, imposed the above-mentioned penalty. This order wasconveyed to the respondent by the Vigilance Officer vide hisletter dated 10/07/1964 (copy Annexure 'D'). The appealfiled by the respondent against the said order was dismissed bythe Commissioner and the respondent was informed about thisdecision by the Director of Vigilance through his letter dated 11/12/1964 (copy Annexure 'F').
(3) Feeling aggrieved, the respondent fiied a writ petition inthis court praying for issue of a writ in the nature of certiorarior any other appropriate writ quashing the entire enquiry proceedings against him and the order dated 10/07/1964 passedby the Deputy Commissioner (E) as well as the order of theappellate authority. This relief was claimed on various grounds.However, the only ground which appears to have been pressedbefore the learned Single Judge was that on the establishment ofthe Municipal Corporation of Delhi the respondent became anemployee of the said Corporation and, consequently, the Corporation alone was competent to remove him from service. ShriManohar Lal, Assistant Commissioner, it was alleged, had nopower to appoint the respondent a& upper division clerk and,therefore, the respondent would be deemed to have been appointed as such by the Corporation or, in any case, by the Commissioner, Municipal Corporation of Delhi, and, thereforee, theDeputy Commissioner Shri N. N. Tandon had no power to remove him from service.
(4) The appellant-corporation in its reply pleaded that theCommissioner of the Corporation, in law could make the appointment but he had delegated the said functions to the DeputyCommissioner.
(5) The learned Single Judge, vide his order impugned in thisappeal, held that the Assistant Commissioner had no power topromote the respondent at Upper Division Clerk and, thereforee,the appointing authority in the present case was the Commissioner and consequently, the Deputy Commissioner had no authority under Section 95(1) of the Act to remove the respondent from service. With these findings the writ petition wasallowed and the order removing the respondent from service wasquashed. Feeling aggrieved, the Corporation has filed thisappeal.
(6) Section 95(1) of the Act, so far as relevant for the purposes of this- appeal, reads as under :
'95(1).Every municipal officer or other municipal employee shall be liable to have his increments of promotion withheld or to be censured, reduced in rank,compulsorily retired, removed or dismissed for anybreach of any departmental regulations or of discipline Or for carelessness', unfitness, neglect of dutyor other misconduct by such authority as may beprescribed by regulations'.
(7) Provided that no such ofiicer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed ordismissed, by any authority subordinate to that by which he wasappointed':
(8) An examination of the above provisions reveals thatpower to remove an employee can be exercised by an authorityauthoriged in this behalf by regulations and secondly such authority should not be subordinate to that by which the employeeconcerned was employed. For a valid removal from servicethese twin requirememts must be fullfilled.
(9) The authorities which can impose the penalty of removal from service have been prescribed in the Delhi MunicipalCorporation Service (Control and Appeal) Regulations 1959.According to regulation 7 of these regulations, read with theSchedule, the Deputy Commissioner can impose all the penalties,including the penalty of removal from service, on employeesholding a post whose minimum monthly salary (exclusive ofallowance) is less than Rs. 350.00. The respondent at the timeof his removal from service was holding the post of an upperdivision clerk. The minimum salary of this post (exclusive ofallowances) was admittedly less than Rs. 350 per month.Thus the Deputy Commissioner was an authority authorised toimpose the penalty of removal from service by the regulations.There is no dispute so far as this requirement is concerned.
(10) The dispute, however, is regarding the second requirement. The question for determination, thereforee, is whether theDeputy Commissioner was an authority subordinate to that bywhich the respondent was employed. At the outset it may bementioned that it is not the first appointment but the appointment to the post held by the respondent at the time of his removal that has to be taken into consideration. We find supportto this view from a division bench decision of this Court inM. L. Bagai V. State (Criminal Appeal No. 133 of 1967, decided on 19/09/1968). 'Po the same effect is the decision of the Calcutta High Court in Satish Chandra Dass GuptaV. State of West Bengal : AIR1960Cal278 . At thetime of his removal the respondent was holding the post of anupper division clerk. He was appointed to this post underorders dated 9/01/1969 issued by Sim Manohar Lal,Assistant Commissioner (Establishment), Municipal Corporationof Delhi (Copy Annexure 'X'). The Assistant Commissioner was admittedly not competent to appoint an upper division clerk.There is no material on record to show that any such powershad been delegated to him- In these circumstances the learnedSingle Judge held that the respondent would be deemed to havebeen appointed by the Commissioner who was the competentauthority. Shri Bishamber Dayal appearing for the appellanthas vehemently assailed the correctness of this finding. It hasbeen argued that for the purpose of section 95(1) the Courthas only to see as to who made the factual appointment andthere was no question of any deeming appointment. He alsoargued that the Commissioner in exercise of powers' conferredon him under section 491 of the Act had delegated all his powersto the Deputy Commissioner, Shri Ishwar Dayal, vide his orderdated 7/04/1958 (Annexure A filed in the appeal) and inthis situation how could it be held .that the respondent will bedeemed to have been appointed as an upper division clerk bythe Commissioner and not by the Deputy Commissioner. Thereappears to be some merit in the contention raised by the learnedcounsel for the appellant, but we need not dwell on this questionbecause during the course of the arguments appellant has placedon record copy of the order dated 26/10/1961 (copy annexure 'B') which shows that the respondent was confirmed onthe post of upper division clerk under the orders of the DeputyCommissioner (Services). The appellant's learned counsel hadproduced before us the original order of confirmation. Thereis no dispute regarding the genuineness of this order. Thus IT is clear that the respondent had been appointed as an upperdivision clerk on permanent basis by the Deputy Commissionerand consequently his services could be terminated by the DeputyCommissioner, Shri N. N. Tandon. The impugned order was, thereforee, legal.
(11) The argument advanced by the learned counsel for therespondent was that the order dated 26/10/1961 was notcommunicated to the respondent and, thereforee, it was of noconsequence. We do not agree with this contention. The orderis in no way prejudicial to the interests of the respondent and,therefore, the fact that 'it was not communicated to the respondent even if the contention is correct, would not make any difference. We consequently hold that the Deputy Commissionerwas competent to unpose the penalty of removal from serviceon the respondent.
(12) We, thereforee, accept the appeal, set aside the impugnedorder and dismiss the writ petition of the respondent. The parties are, however, left to bear their own costs.