S. Padmanabhan, J.
1. This writ petition has been filed by one Babu who was working as a peon in the Revenue Department of the Corporation of Madras to set aside the order dismissing him from service. It is stated that he was first appointed as a peon in the Corporation on 21st August, 1964. He was transferred to the Revenue Department on 30th December, 1971. On 7th January, 1972 he was posted to work under the tax collector Kirmani. While so a memo. was issued to him on 6th July, 1976 by the Commissioner. By the said memo, he was placed under suspension. The memo, stated that he had collected a sum of Rs. 100 from Smt. Sakunthala, owner of premises No. 1 A, Dr. Vijayaragavalu Road Madras-81 and that he had not remitted the money into the Corporation treasury nor returned the money and thereby misappropriated the account. Charges were framed against him. He submitted his explanation on 26th July, 1976. He denied having received any amount from Sakunthala. He has also stated that in order to evade the property tax the said Sakunthala had given false information to the authorities. An oral enquiry was held by the Revenue Officer on 9th August, 1976. As a result of the oral enquiry the Enquiry Officer came to the provisional conclusion that the charge against the peon had been proved and also to the provisional conclusion that he should be dismissed from the service. He was, therefore, called upon to explain why he should not be dismissed from the service. He offered a further explanation on 22nd September, 1976. On a consideration of his further explanation the Commissioner. Corporation of Madras by his proceedings dated 21st October, 1976 finally held that the charge levelled against the petitioner was proved and dismissed him from service with effect from the date of suspension.
2. Thereafter, the petitioner filed an appeal before the Special Officer Standing Committee (T.&F.;), Corporation of Madras. He received a communication dated 21st March, 1977 from the Revenue Officer stating that the appeal preferred by him had been dismissed by the Special Officer. The petitioner has filed this petition to quash the order of the Special Officer who confirmed the order of the Commissioner dismissing him from service.
3. About Exhibit A Mr. Radhakrishnan raised two contentions. (1) The Commissioner of the Corporation of Madras had no jurisdiction to dismiss the petitioner from service. According to the learned Counsel Sections 85 to 97 of the Madras City Corporation Act, 1919 had been repealed and Sections 85 to 93 had been substituted by the amending Act of 1961. According to the learned Counsel under Section 86 the classification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the Corporation establishment shall be regulated in the case of the employees included in Class III and Class IV, by by-laws made by the Council under Section 349. Such by-laws have not been framed so far by the Corporation. Therefore, the Commissioner of the Corporation had no power to dismiss the petitioner. (2) The learned Counsel submitted that the Special Officer has not exercised his mind to the appeal preferred by the petitioner independency of the opinion of the Commissioner who dismissed the petitioner in the first instance. In fact the learned Counsel went to the extent of submitting that the Special Officer had not signed the impugned order at all and that the same was prepared by the Commissioner himself The learned Counsel was justified in making this submission because the copy of the order of the Special Officer was not served on the petitioner. Only the communication from the Revenue Officer has been served on him to the effect that the Special Officer has dismissed the appeal. However I called for the original order from the Corporation of Madras where it is found that the Special Officer had passed his order and himself signed the original order.
4. I am satisfied that the petitioner is entitled to succeed on the first of the grounds put forward by him. In Antnachalam v. Commissioner, Corporation of Madras : (1974)1MLJ364 the Headmaster of a Corporation High School who had entered service in 1950 and who was promoted as Headmaster in 1964 was suspended by the Commissioner and an order was passed by way of punishment directing the withholding of his increment for 6 months. K. N. Mudaliyar. J., allowed the writ petition. It will be sufficient for the present purposes if the readnote is referred to.
The failure of the Corporation of Madras to frame by-laws would not enable the petitioner to choose to rely on the Transitional Provision No. 5 of Schedule II to the amending Act of 1961 read with Section 102 of the same The Transitional Provision No. 5 which talks amount 'tenure, remuneration, rights, provileges as to pension and gratuity and other matters' provides for safeguarding the rights and privileges of the employees who have entered the Corporation establishment prior to the coming into force of the amending Act The provision does not clothe the Commissioner with the necessary power of dealing with the discipline and conduct of class III and Class IV employees in the absence of by-laws framed by the Council under Section 349 (of the principal Act) within the meaning of Section 86 of the amending Act of 1961. If there are no bylaws for the time being in force, particularly at the time of the visitation of punishment on the petitioner, the Commissioner cannot be permitted to fall back on the general power of control. The common law cannot be invoked in the face of statutory provisions for such punishment.
5. This decision of K.N. Mudaliyar, J., has been affirmed in writ appeal by a Bench of this Court. Admittedly, in this case the petitioner joined duty only after the amending Act of 1916. It is also not disputed that on the date of the amending Act the by-laws as provided under Section 86 had not been framed. In these circumstances the situation is governed by the principle stated in the case cited above. I therefore, find that on the date on which the Commissioner passed the impugned order he was not competent to do so and the order of dismissal passed against the petitioner is without jurisdiction and void. In the circumstances the order of the Special Officer is also illegal and has to be quashed.
6. In view of this it is unnecessary to consider the second of the contentions of Mr. Radhakrishnan.
7. Mr. Ram Mohan for the Corporation of Madras cited a decision of Ramanujam, J. In that decision Ramanujam, J., has referred to the judgment of K.N. Mudaliyar, J., and distinguished the same on the ground that while the petitioner before him (Ramanujam, J.) was appointed prior to 1961 amendment the petitioner in the case before K.N. Mudaliyar, J., was appointed subsequenc to the amendment Act. As I have already stated, here there is no dispute that the petitioner joined the service of the Corporation only in 1970 subsequent to the amendment Act and therefore the decision of Ramanujam, J. will not apply to the facts of this case.
8. In the circumstances the impugned, order of the Special Officer who in turn confirmed the order of dismissal passed by the Commissioner against the petitioner is quashed. The writ petition, is allowed. No costs. The petitioner will be reinstated in service.