Leila Seth, J.
(1) The petitioner, by way of a petition under Articles 226 and 227 of the Constitution of India is challenging, inter alia, the office order dated 28th December, 1971 served on 29th December, 1971, informing him that he has been dismissed from service with immediate effect, by the order of the Deputy Commissioner (Slums), Municipal Corporation of Delhi, dated 10th December, 1971.
(2) A preliminary objection has been taken by Mr. Adarsh Dayal, learned counsel for respondent No. 1, Municipal Corporation of Delhi (to be referred to in brief as 'the Corporation'), with regard to the maintainability of this writ petition. He contends that as the petitioner did not exhaust his departmental remedies before filing the writ petition, it cannot be entertained.
(3) Reading Regulations 6 and 7 and the Schedule of the Delhi Municipal ]Service (Control and Appeal) Regulations, 1959 (to be referred to in brief as 'Appeal Regulations') framed by the Government of India under the' provisions of the Delhi Municipal Corporation Act, 1957 (to be referred to in brief as 'the Act'), it is apparent that the petitioner has a right of appeal to the Commissioner from the order of the Deputy Commissioner. Regulation 10 provides the period of limitation for filing the appeal, as three months from the date of receipt of the order. It is conceded by the petitioner that this right of appeal was not availed of, but the present writ petition was filed on 4thJanuary, 1972. Thereafter, a notice to show-cause was issued and on 10th January, 1972 counsel for respondent No. 1, the Corporation, appeared and took time to file a reply. On 10th February, 1972, in the presence of counsel for both parties, rule was issued.
(4) When the petitioner filed the writ petition and, indeed, even when rule nisi was issued, the period of limitation had not expired. If a Bench of this Court had not entertained this petition, the petitioner could have moved the Commissioner, for on the relevant date, the prescribed period of limitation was not yet over. In these circumstances) it would appear to me that I would not be justified in now, dismissing the petition as not maintainable. I, there- fore, proceed to examine it on merits.
(5) The pertinent facts called from the pleadings and the record, which was produced, are set out. The petitioner joined the Corporation on 10th December, 1958 as a Section Officer (now termed as Junior Engineer) in the time pay scale of Rs. 100-150 later revised to Rs. 180-380. On 16th December, 1960, the petitioner was suspended by the Deputy Commissioner (Engineering)., On 4th September, 1961, the petitioner was reinstated but a punishment of reduction in salary, to the minimum of the grade for a year, was imposed. The petitioner filed an appeal to the Commissioner, which was decided only on 13th May, 1966. The petitioner's appeal was accepted and a fresh enquiry was ordered. However, pending the disposal of the appeal, the petitioner, after giving notice under Section 478 of the Act, had filed a suit. The suit was registered as suit No. 404 of 1962, and was dismissed on the ground of limitation. Thereafter, on 19th April, 1965, the petitioner filed a writ petition for quashing the order of 4th September, 1961 and for payment of full salary etc. during the suspension period. The petition was filed before the Circuit Bench of the Punjab High Court in Delhi and was numbered as Civil Writ No. 198 of 1965. It was amended from time to time. By his judgment and order dated 27th October, 1970, the learned Single Judge directed that an appropriate order under Fundamental Rule 54 be passed, within four months, with regard to the pay and allowances of the petitioner, for the period of suspension. The appeal with regard to setting aside the order of 4th September, 1961 had already been accepted as above noticed on 13th May 1966.
(6) On 24th August, 1966, the petitioner was again suspended by the Deputy Commissioner (Engineering). No charge-sheet was, however, issued. The petitioner represented to the Deputy Commissioner about the irregularity of the suspension order. On 17th March, 1967, the petitioner was reinstated pending departmental enquiry. Despite written applications, the petitioner was not paid salary for the suspension period of about 8 months. On 24th August, 1968, the petitioner was served with a charge-sheet. On 13th September, 1968 the petitioner replied to the charge-sheet. On 15th October, 1968 the petitioner was elected as General Secretary of the Municipal Section Officers Association (Registered). On 26th May, 1969, a notice was sent to the Commissioner by the Municipal Section Officers Association (Registered) with regard to observing 'a protest day' on 2nd June, 1969.
(7) On 7th June, 1969, the petitioner was suspended for a third time, during the pendency of the enquiry. On 13th June, 1969, the petitioner as convener of the Municipal Section Officers Association (Registered) requested the Deputy Commissioner (Slums) to immediately dispose of the cases of confirmation of Section Officers pending before him.
(8) On 5th August, 1970, the petitioner was served with a notice by the Director of Enquiries calling upon him to show-cause why the punishment of dismissal from service be not finally inflicted. The Deputy Commissioner, as the Disciplinary Authority, was to inflict the punishment and representation, if any, was to be made to him. within three weeks of the receipt of the notice.
(9) On 13th August, 1970, the petitioner filed a representation before the Mayor, Municipal Corporation of Delhi, complaining of the non-receipt of the enquiry report, the orders of the Deputy Commissioner (Slums) as also the findings of the Enquiry Officer and requested that the show-cause notice dated 5th August, 1970 be withdrawn. In consequence. It appears, that on 18th August, 1970) the file pertaining to the enquiry was sent to the Mayor.
(10) On 21st August, 1970, the petitioner prayed for time to file the reply to the show-cause, as the matter was pending before the Mayor. However, sometime between 18th August, 1970 and 2nd December, 1970, the entire file seems to have been misplaced.
(11) On 3rd December, 1970, the Corporation made a request to the Deputy Inspector General of Police, Delhi, to make the necessary investigation to locate the missing enquiry file.
(12) On 7th December, 1970, a first information report No. 1368 under Section 380, Indian Penal Code, was registered by the Kotwali Police Station, Delhi.
(13) As nothing could be traced, the matter was consigned to the records on 28th January, 1971.
(14) On 21st November, 19 70, the petitioner had also filed an appeal before the Commissioner against the notice dated 5th August, 1970. This was summarily rejected on 29th December, 1970.
(15) As above noticed, the file had misplaced and was not traceable, despite efforts. On 4th September, 1970, the Director of Enquiries recorded a note that copies of the report were not available.
(16) Thereafter, an uncertified and unattested copy of an enquiry report with a covering letter dated 17 April, 1971 was sent to the petitioner. The petitioner received this on 1st May, 1971. He submitted his reply on. 14th May, 1971. On 13th September, 1971, the petitioner was informed, that with the prior approval of the Commissioner, he was reinstated with immediate effect, and the disciplinary proceedings dropped. He was asked to report to the Town Planner for further posting.
(17) The petitioner then made a representation for payment of his back wages as also promotion to the post of Selection Grade of Section Officer. This was rejected on the ground that as an enquiry was pending with the Director of Enquiries, the promotion could not be made till its completion. On 29th December, 1971, the petitioner was served with the dismissal order contained in the letter dated 28th December, 1971. On 16th February, 1972, the Judicial Magistrate 1st Class, Delhi acquitted the petitioner with regard to an offence under Section 495 read with Section 461 of the Act. The Corporation had filed this case, pertaining to an alleged incident of obstruction on 5th June, 1969.
(18) This is the b
(19) Mr. R. L. Tandon, learned counsel for the petitioner has substantially challenged only the order of dismissal contained in the office order dated 28th December, 1971. He has urged that the petitioner could not be dismissed from service by an authority subordinate to the appointing authority.
(20) When the petitioner filed the writ petition, he did not file his letter of appointment. On an enquiry from the Court, whether he was appointed by the Commissioner, as no specific averment had been made to this effect in the writ petition, he filed an aitional affidavit to which he annexed the letter of appointment dated 8th December, 1958. The appointment letter, which is subject to medical fitness, is signed by the Municipal Engineer of the Corporation. From this letter, it appears that the petitioner was appointed as an Overseer in the Engineering Department, on a purely temporary post, the service being terminable by either side, on one month's notice. However, the averment in the additional affidavit of the petitioner is to the effect, that though the appointment letter is issued by the Municipal Engineer, as the Commissioner was the only appointing authority according to Section 92(l)(b) of the Act, the Municipal Engineer must be deemed to have signed it for and on behalf of the Commissioner. It is on this basis of deemed appointment, that learned counsel for the petitioner submits, that the dismissal by the Deputy Commissioner being authority an subordinate to the Commissioner is bad, in view of the first proviso to Section 95 of the Act.
(21) Mr. Adarsh Dayal, learned counsel appearing on behalf of respondent No. 1 -Corporation, contends that the petitioner having been appointed, in fact, by the Municipal Engineer, his dismissal by the Deputy Commissioner is valid, as the dismissing authority is not subordinate to the appointing authority.
(22) All the provisions of the Act (other than those which had already been brought into force) came into force on 7th April, 1958. The petitioner was appointed as above noticed on 8th December, 1958. It is the common case Of parties that the person who was vested with the power to appoint the petitioner, on that date, was the Commissioner, in terms of Section 92. It is admitted that the Municipal Engineer had no power to appoint the petitioner. Despite a number of opportunities, having been given to the Corporation, they failed to produce the file, if any, or the orders, as a result of which the appointment letter dated 8th December, 1958 was issued by the Municipal Engineer. It is not a case where the Corporation is contending that the appointment of the petitioner was illegal and, thereforee, the petitioner was not an employee of the Corporation. Nor indeed, could they so contend, in view of the fact) that from 1958 right up to 1971 when the order of dismissal was passed, the petitioner was treated as their employee, paid his salary and other emoluments and also subjected to disciplinary proceedings by them. In fact, after certain suspension orders were passed, even as late as 13th September, 1971, the petitioner was factually reinstated with the prior approval of the Commissioner.
(23) The Appeal Regulations came into effect only on 4th April, 1959, after the appointment of the petitioner. Regulations 6 and 7 read with the schedule thereto would indicate that the Deputy Commissioner could dismiss a municipal employee like the petitioner from service; but as opined in Krishan Kumar v. Divisional Assistant Electrical Engineer and others, : (1980)ILLJ209SC , the relevant date, to examine whether an authority is subordinate in rank to another has to be determined with reference to the state of affairs, on the date of appointment. The subsequent authorisation made in favor of the Deputy Commissioner by way of the Appeal Regulations would not be relevant. On the date of the petitioner's appointment, it is conceded, that the Deputy Commissioner had no power to appoint or remove him.
(24) Mr. Adarsh Dayal, made a feeble submission that the petitioner was not entitled to any relief, as according to his own case, his factual appointment is contrary to Section 92(l)(b) of the Act, not having been made , the Commissioner. However, the Corporation has not sought to invalidate .the appointment of the petitioner.
(25) It is, thereforee, necessary to examine whether the appointment of the petitioner is to be deemed to be an appointment by the Commissioner. Respondent No. 1 has all along treated the petitioner as its employee and never challenged his status. By reinstating the petitioner on 13th September, 1971, with the approval of the Commissioner, it is apparent that the Commissioner had also applied his mind to the matter. Further, the petitioner had worked and had been permitted to work on the basis that he was a validly appointed employee. He was also paid on the same understanding and basis, that the authority empowered to appoint him had so appointed him. However, the factual position was divergent from the legal position.
(26) It is pertinent to notice the case of Union of India v. Dr. (Mrs.) Savitri Aggarwal and another I. L. R. (1972) I Del 154, in this connection. In that case Dr. (Mrs.) Savitri Aggarwal had been factually appointed by the Corporation to the post of Medical Superintendent, Victoria Zanana Hospital, whereas she should have been appointed by the President. A Full Bench of this Court held that as the power to make the appointment had not been conferred on the Corporation by the Act, the appointment could not have been made by the Corporation, despite the fact that the Corporation factually purported to make the appointment. thereforee, as the appointment was not made by the Corporation, the Corporation could not terminate the services of Dr. (Mrs.) Aggarwal.
(27) As observed by V. S. Deshpande, J. (as he then was), speaking for the court, the difficulty had arisen from an unfortunate divorce of law from fact and a conflict between status and contract. Dr. (Mrs.) Savitri Aggarwal, according to the legal position could be appointed by the President alone to the post of Medical Superintendent, Victoria Zanana Hospital. But in fact, due to certain errors and wrong opinion formed by the Under Secretary, Ministry of Health, she was actually appointed by the Corporation. There- fore, according to the contract of service it was only the Corporation who could terminate the services of Dr. (Mrs.) Aggarwal. There was thus a clear divergence between what ought to have been done according to the correct legal position and what was actually done on a wrong view. What was to prevail The law or the fact. It was held that the Government and the Corporation being creatures of law, they could not outside it. As the Corporation had no authority to make the appointment under Section 92 of the Act) the so called contract was contrary to the expressed provisions of Sections 90 and 92 of the Act. In law the power of appointment and termination was with the President alone and the incumbent became possessed of a legal status as she had actually joined the post and served in it.
(28) Similarly in the present case, the petitioner was appointed, in fact, by the Municipal Engineer, a person who had no power to appoint him. He was, however, treated as an employee of the Corporation and worked in it for more than 12 years. He was paid by the Corporation and subjected to disciplinary proceedings etc. It is admitted that the only person who could have appointed him in law at the relevant time, was the Commissioner. In the circumstances, he must be deemed to have been appointed by the Commissioner.
(29) In the view I have taken, it is not necessary to examine the other contention of Mr. R. L. Tandon, which is to the effect, that even if the petitioner's original appointment was irregular, as and from 13th September, 1971, the irregularity in the appointment had been cured, either retrospectively or at least from that dated this, being the date, on which the petitioner was reinstead with the approval of the Commissioner. Nor if it necessary to examine whether the Deputy Commissioner is subordinate to the Municipal Engineer as urged by the petitioner, or higher than him, as urged by respondent No. 1.
(30) The only other aspect of the question which remains to be seen is whether the proviso to Section 95 of the Act applies also to the authority which is deemed to have made the appointment, as in the present case.
(31) The first proviso to Section 95 reads :
'PROVIDED that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed.'
(32) There is nothing in the words 'by any authority subordinate to that by which he was appointed' to indicate that it is to be restricted to the de facto appointment and not apply to the de jure appointment. As in the present case, if the fact and the law are divorced and in law the petitioner is appointed by the Commissioner, then surely that must be the authority (Commissioner) 'by which he was appointed'. The appointment by the Municipal Engineer not being possible in law cannot be authority 'by which he was appointed'. I, thereforee, hold that the petitioner having been appointed, in law, by the Commissioner, he could not be dismissed by the Deputy Commissioner, an authority subordinate to him. I am also fortified in the view I have taken by certain decisions, though not directly on point.
(33) In Munna Lal Gupta v. Delhi Municipal Corporation of Delhi, 1967 S. L. R. 56, the Circuit Bench of the Punjab High Court dealing with Section 95 of the Act observed that the proviso to Section 95 is specific and no employee can be reduced in rank, compulsarily retired, removed or dismissed by any authority subordinate to that by which he was appointed. It was held that the power conferred on the appointing authority could not be delegated. The Court further opined, that one has to look at the authority which made the last appointment and not the initial appointment, to examine whether the dismissing authority was subordinate to it. The appellant Munna Lal Gupta in that case had been appointed to the particular job after the coming into force of the Act. The appointing authority under Section 92(1)(b) of the Act being the Commissioner, he could only have been appointed to that post by the Commissioner. thereforee, the removal by the Deputy Commissioner was invalid.
(34) In the Management of D.T.U. v. Shri B. B. L. Sajelay and another A.I. R. 1972 S. C. 2452, it was held that the driver originally appointed by the Manager of the Delhi Road Transport Authority, was after the Act came into force, deemed to have been appointed by the General Manager Transport. This was because of the provisions of the Act, especially Sections 511 and 92(1)(b) read with Section 516(2)(a). These provide for transfer offunctions and employees to the Corporation and its power to appoint such employees was vested in the General Manager (Transport). thereforee, an authority subordinate to the General Manager (Transport) could not dismiss the driver in May, 1963. Further the delegation of the functions of the General Manager (Transport) to he Assistant General Manager in May 1961 could not nullify the statutory protection under the provisoto Section 95. The only consequence would be that if after 1961 the Assistant General Manager appointed a driver, he would be entitled to remove him from service. But so far as that particular driver was concerned, his individual position had to be determined with reference to the time he was absorbed in the Corporation service. Since on that date, he was by a fiction of law treated as having been appointed by the General Manager, he could not be removed by the Assistant General Manager in May 1963.
(35) In Tara Chand Khatri v. Municipal Corporation of Delhi ami others : (1977)ILLJ331SC , the Supreme Court held that in view of the fact that the Commissioner in exercise of the power conferred on him under Section 491 of the Act had by his order No. (1) 58 Law Corp. 1 dated 7th April, 1958 delegated all his powers to the Deputy Commissioner subject to his supervision, control and revision and the Deputy Commission.er had actually made the appointment of Tara Chnd, the appellant, the Deputy Commissioner could dismiss the petitioner. Jaswant Singh, J. speaking for the Court observed:
'THEprohibition contained in the first proviso to this Sub-section is confined in its operation only to a case where an officer or employee of the Corporation is retired, removed or dismissed by an authority subordinate to that by which he was appointed. In the instant case, the appellant's appointment having been made by the Deputy Commissioner, who possessed plenary powers in that behalf by virtue of the aforesaid delegation order, there was neither any legal bar to the appellant's dismissal from service by that very authority nor a breach of the first proviso to Sub-section (1) of Section 95 of the Act'.
(36) From the above, it is clear that the plenary power of appointment at the relevant date was with the Deputy Commissioner and he actually made the appointment. thereforee, there was no legal bar, in the Deputy Comissioner exercising his right of dismissal.
(37) In the present case, the Municipal Engineer did not have the power to make the appointment. thereforee, the factual appointment by him was an appointment without legal sanction. As such, it was not an appointment in the eyes of law. But, in the circumstances of the case, as examined above, the appointment has to be deemed to be an appointment by the Commissioner as he was vested with power. thereforee, the Commissioner having appointed the petitioner, there is a legal bar to the Deputy Commissioner dismissing him and the order must be set aside.
(38) In this view of the matter, it is not necessary to deal with Mr. Tandon's alternate submission, which is, that even if the dismissal is held to be by an authority entitled to dismiss, then the removal order is had as it is mala fide and the principles of natural justice have been violated, no enquiry report etc. having been supplied to the petitioner with the show-cause notice dated 5th August, 1970, he was prejudiced; and this was not cured by the subsequent supply of an unattested reconstructed copy of the report on 17th April, 1971; the original having been admittedly last. The mala fide averred is that the petitioner was being victimised all through and especially after he became General Secretary of the Municipal Section Officers Associations as above noticed.
(39) In the result, for 'the reasons outlined above, the rule is made absolute with costs.