D.K. Kapoor, J.
(1) This is an appeal by the Municipal Corporation of Delhi directed against the judgment in Cw 1360/79 decided by a learned single Judge of the 'is Court on 7th May, 1984. The said case was decided along with C.W. No 613/81 by a common judgment. We have also heard the two appeals, LPA-93/M M. C. D. v. .Murari Lal and Lpa -84/84 Mcd v. Roomal Singh, together, but as there is a difference in the facts' we have to give separate judgments.
(2) The difference may be stressed now. In Roomal Singh's case, the M.C.D. as respondent was unable to produce either the file or the letter of appointment or any other document to show that Roomal Singh had been appointed by an authority other than the Commissioner of the Corporation. So, the case was decided on the basis that the order removing Roomal Singh rom service could not be passed by an authority subordinate to the appointing authority, the Commissioner.
(3) In Murari Lal's case the difference is that there are some documents on record relating to the appointment of this official. So, the cast has to be dealt with on its own facts. The facts are that in this case a letter dated .7-11-1958, which is Annexure-R-1 to the writ petition, was produced. This letter is from the Assistant Commissioner, Municipal Corporation, to Shri Murari Lal. Its relevant para is as follows:
'Shri Murari Lal is hereby informed that he has been selected for the post of a peon in the grade of Rs. 30'-35 plus usual allowances. on the conditions and terms noted here below...'
(4) The letter set out certain terms and conditions and it is signed by Shri Manohar Lal, Assistant Commissioner, M C D.
(5) The other document which is relied upon by the Appellant is Annexure-R-2. This. is dated 14-8-1958 but it is shown as a Draft Order. It reads:-
'IN exercise of the powers conferred on me by Section 491 of the- Delhi Municipal Corporation Act. 1957 I hereby direct that powers under the Section mentioned in Column 2 of the Schedule given here below shall, until further orders, also be exercised by Shri Manohar Lal, Assistant Commissioner, to the extent given in column 3 of the said Schedule......'
(6) Under this certain powers tinder Sections 59, 92 and 95 are set oat and power to make appointments against permanent and temporary posts in respect of persons drawing Rs.50.00 per month or less is stated as being delegated under Section 491.
(7) The learned counsel for the appellant urges on the basis of these two documents that it is clear that the appointment was made by the Assistant Commissioner and the power had been delegated to him under Section 491 of the Municipal Corporation Act, 1957. An examination of Section 491 discloses as follows :-
THE Section reads; 491. The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any municipal officer or other municipal employee specified in the order.
(8) The Section visualise an order being passed by the Commissioner specifying the powers to be performed by any Municipal Officer specified in the order. This is noted in the margin as being the delegated powers, the Commissioner may delegate his functions under the Act by an order in writing. It requires that the power should originally be with the Commissioner and he has to pass an order delegating it in writing. The first objection that appears on an examination of Annexure-R-2 is that it is called a 'draft order'. It is not clear to us whether this was merely a draft which was never acted upon or whether there was an order signed by Shri P. R. Naik, the then Commissioner of Municipal Corporation delegating certain powers to the Assistant Commissioner. We need not examine this point further by trying to obtain the original order, if any, as we find that this point does not really make much difference to the present case.
(9) In the present case. we may assume for argument's sake that the Commissioner did delegate his powers to some extent to the Assistant Commissioner Manohar Lal; but did Manohar Lal exercise such powers This depends on the meaning to be given to Annexure-R-1 dated 7-11-1958 which we have already referred to. By that order Shri Murari Lal was informed by Shri Manohar Lal that he has been selected for the post of a peon. Who selected him Was it the Commissioner Was it the Deputy Commissioner or was it the Assistant Commissioner Was the Assistant Commissioner informing Murari Lal about his own decision or was Mr. Manohar Lal the writer on behalf of the Commissioner or the Deputy Commissioner. This controversy cannot be resolved by an examination of this letter. The letter does not purport to be an appointment letter.
(10) It is a mere communication to Murari Lal that he has been selected, and certain terms and conditions have been set out in the letter, It is by no means a letter which can be treated as an appointment by the Assistant Commissioner,
(11) It is necessary to revert again to the provisions of Section 95(i) of the Delhi Municipal Corporation Act. This Section reads as under :
'95(1)Every Municipal Officer or other municipal employee shall be liable to have his increments or promotion withheld or to be censured, reduced in rank compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by regulations : 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......'
(12) The important part of this provision is the proviso that prevents action being taken by an authority subordinate to that by which the officer was appointed. It becomes relevant to find out whether the Deputy Commissioner who purported to pass the order removing Murari Lal from service was subordinate to the officer concerned or not. If the appointment was made by the Assistant Commissioner, then the Deputy Commissioner would not be subordinate because we are told that a Deputy Commissioner is a senior officer compared to the Assistant Commissioner. On the other hand, if the appointment was not made by the Assistant Commissioner, then the only other persons who could have appointed Murari Lal were the Deputy Commissioner or the Commissioner depending on the degree of delegation, It appears that in 1958, when the appointment was made, the regulations relating to action under Section 95 had not been framed, but the statutory power of appointment is set out in Section 92, as it then was, which is as follows:-
'92(1).Subject to the provisions of Section 89 the power of appointing municipal officers and other municipal employees, whether temporary or permanent,- (a) to posts carrying a minimum monthly salary (exclusive of allowances) of three hundred and fifty rupees or more shall vest............... (b) to posts carrying a minimum monthly salary (exclusive of allowances) of less than three hundred and fifty rupees, shall vest in the General Manager (Electricity), the General Manager (Transport), or the Commissioner, as the case may be.........'
(13) Thus, as Murari Lal was originally appointed as a peon and his salary was less than Rs. 350.00 , he could be appointed under Section 92 by the Commissioner. Under Section 491, the Commissioner could delegate his power to Municipal Officers and other employees subordinate to himself. Thus, he could delegate this power to the Deputy Commissioner or the Assistant Commissioner or even somebody more junior if he wanted to. If the power was so delegated and exercised then the appointment would be valid under Section 92 read with Section 491. If, however, the actual person making the appointment was not the Assistant Commissioner then this argument falls to the ground. Then, the Assistant Commissioner would neither be the appointing authority nor could the Deputy Commissioner make an order removing Murari Lal from service.
(14) It so happens that Murari Lal as peon, has been promoted to another post, which was Lower Division Clerk, and it was argued before us by the learned counsel for the Corporation that the promotion was done by the Deputy Commissioner and, thereforee, the Deputy Commissioner could make an order removing Murari Lal from service. We cannot examine the; question further. It is neither in the writ petition nor in the reply. The facts of the case quite simply are that there was an enquiry in which Murari Lal was found guilty and on the basis of that enquiry, action was taken by the Deputy Commissioner. The only point in the writ petition was whether the Deputy Commissioner was authorised to take the action and the learned single Judge has found that he was not the person who could take the action. This decision was based on the Full Bench decision of this Court in the Management of Delhi Transport Undertaking v. BB.L. Hajelay, 1972 Slr 787 which had held that the power under Section 95(1) could not be whittled down by delegation. The Full Bench decision would, in our view, be of no help at all if Murari Lal had actually been appointed by the Assistant Commissioner.. In such a case it could not be said that the proviso to Section 95(1) had been infringed, because the Deputy Commissioner was not a person subordinate to the Assistant Commissioner, but if the appointment was not by the.Assistant Commissioner, then it had to be by the Commissioner under Section. 92. So, the proviso would hit the order of termination.
(15) As analysed above, it does not appear that the Assistant Commissioner actually made the appointment. So, the order of removal from service could not be passed by the Deputy Commissioner. However, the learned single Judge has proceeded in his judgment, on the basis that the appointment was made by the Assistant Commissioner and even then he has held that the Deputy, Commissioner could not remove Murari Lal from service. This conclusion was based on the reasoning that one delegate of the Commissioner could not remove a person who was appointed by another delegate of the Commissioner. We do not think that this makes any difference to the proviso to Section 95. If one delegate happened to be a subordinate to the other delegate, then the senior delegate can certainly act under the proviso. In other words, the proviso would not be infringed if the senior delegate acted in respect of an appointment by a junior delegate. The reason for this is quite simple One person is employee He is employed by the Municipal Corporation and not by the delegate. The termination of service or other penalty has to be imposed under Section 95(1). It is to be imposed by a person specified in the regulations framed under Section 95. We have to see who is the person who has taken the action. If he is the right person under the regulations he is authorised to act. However, if he happens to be subordinate to the person who made the appointment then his action will be ultra vires. If, as we have tried to determine, we are right in holding that the Commissioner made the appointment, and not the Assistant Commissioner, then the termination of service could not be effected by the Deputy Commissioner.
(16) Now, reverting to the same point on the assumption that we are wrong in coming to the conclusion that the Commissioner had made the appointment and actually the Assistant Commissioner had made the appointment, the question arises could the Deputy Commissioner terminate the services of an employee who had been inducted into the service of the Municipal Corporation of Delhi by the Assistant Commissioner acting as a delegate of the Commissioner under Section 92 read with Section 491 In this case, we have to see what is the effect of the regulations framed under Section 95. These regulations were originally framed in 1959 and were called the Control and Appeals Regulations, 1959. The power to impose the penalties mentioned in Regulation No. 6 were given to officers specified in the schedule. This is provided by Regulation No. 7. If we examine this schedule attached to these Regulations, it shows that if a post carried a minimum monthly salary of Rs.350.00 or more, then all the penalties could be imposed by the Corporation and the appellate authority was the Central Government. The Deputy Commissioner could impose only modest penalties like censure or withholding of increments. If the minimum salary was less than Rs. 350.00 , then the Deputy Commissioner could impose all the penalties and the Commissioner was the appellate authority. The effect thus would be, that under the original Regulations, the Deputy Commissioner had the power of imposing all the penalties including removal and dismissal in cases where the salary was less than Rs. 350.00 . Thus, if Murari Lal was appointed by the Assistant Commissioner under the original Regulations, he could be dismissed or removed by the Deputy Commissioner.
(17) This decision was, however, altered by reframing all the Regulations because of various changes made in the Delhi Municipal Corporation Act, because of the Pay Commission's report. The salaries had been revised and so Section 92 itself was revised and eventually the Regulations had been amended. The Regulations were amended in 1976 and are called the Delhi Municipal Corporation Service (Control and Appeal) (Amendment) Regulations, 1976. These Regulations have amended the schedule appearing at the end of the previous Regulations. The new schedule is that in case of category B and C posts, the Commissioner is the disciplinary authority for ail penalties, if he himself has made the appointment, and the Deputy Commissioner is the disciplinary authority for such appointments but only in respect of the penalty of censure, withholding of increments, reduction in rank, i.e. i, ii, iii and excluded iv, v, vi, vii set out in Regulation No. 6. On the other hand, if an appointment was made by the Deputy Commissioner, then the Deputy Commissioner is the disciplinary authority for all the penalties and the Commissioner is the appellate authority. If Murari Lal had been appointed by the Deputy Commissioner then the Deputy Commissioner would have all the disciplinary power. The appointment in this case was made by the Assistant Commissioner. This is an assumption on the basis of which the whole discussion is based. If this is so, then he was appointed neither by the Commissioner nor by the Deputy Commissioner but the Commissioner has full powers under Section 95 whereas the Deputy Commissioner has got limited powers. The Commissioner has got full powers because all appointments made by his delegates are appointments made by himself, but the Deputy Commissioner has got limited powers with respect to appointments made by others but full powers in respect of appointments made by himself. This is how the new schedule has to be read. This means that the penalty of removal or termination could not be imposed by the Deputy Commissioner even in the case of Murari Lal. This would be if the Commissioner had appointed him, then he has no power even under the amended provisions, except in respect of i, ii, iii and it the appointment had been made by the Assistant Commissioner, then the amended Regulations do not give him power, as the pover of imposing major penalties is given to him only in respect of appointments made by himself. thereforee, the learned single Judge was right in quashing the order in respect of Murari Lal also,
(18) This now brings us to the other point urged by the learned counsel for the appellant. It is urged that in a similar case decided by the Supreme Court in Municipal Corporation of Delhi v. Ram Partap Singh, Air 1976 Sc 2301 the dismissal was by the Deputy Commissioner and the appointment was by the Commissioner. The Supreme Court had ordered that though the order based on the disciplinary enquiry was wrong, the case should go back and re-decided by the Commissioner. Learned counsel urges that we should follow the same line and as there was a Departmental enquiry against Murari Lal, we should order that the Commissioner should re-examine that file on the basis of the enquiry and proceed to decide what penalty should be imposed on him. We have examined this contention carefully. The question to be seen is whether there is any material on which the Commissioner can act. The procedure for imposing penalties under the regulations is set out in Regulation No. 8, This Regulation reads as follows:-
8(1)Subject to the provisions of sub-section (8) of Section 95, no order imposing on a municipal officer or the other municipal employee any of the penalties specified in clauses (iv) to (vii) of regulation 6 shall be passed, except after an enquiry is held as far as may be in the manner hereinafter provided. (2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which-enquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based shall be communicated in writing to the municipal officer or other Municipal employee and he shall be required to submit within such time as may be specified by the Disciplinary Authority, a written statement of his defense and also to state whether he desires to be heard in person.'
(19) It is not necessary to reproduce the other portion of this Regulation. The procedure, in short, is that if a penalty is to be imposed there has to be an enquiry. The disciplinary authority has to frame charges on the basis of the allegations and then there is a procedure for holding that enquiry. The rest of the Regulation show that enquiring authority has to prepare a report with his findings and on the basis of this the disciplinary authority has to consider the record of the enquiry and record of its own findings. After this a. notice is given by the disciplinary authority regarding the action proposed to be taken.
(20) This Regulation is of importance in regard to the submissions made by the learned counsel because there has to be an enquiry and the enquiry has to be started with a charge-sheet served on the officer concerned. That charge-sheet is to be Furnished by the disciplinary authority and the disciplinary authority in this case is defined in Section 2(c) as a person who is authorised to impose the penalty, and we have already found that the Commissioner is the person who is authorised to impose a penalty. So, the charge-sheet has lo he framed by the Commissioner and then a enquiry has to take place. We cannot see how the charge-sheet framed by the Deputy Commissioner, who is not the disciplinary authority, can form the basis for a review by the Commissioner. We regret that on the facts of this case where the initial charge-sheet was framed by the Deputy Commissioner it is not possible for us to direct the Commissioner to act on the basis of the enquiry report. The Commissioner is, however, free to order a fresh enquiry if he is so in clined. We dismiss this appeal with costs'