Writ Petition No. 5815 of 2007. Case: Dnyaneshwar Sopanrao Bhandare Vs 1. State of Maharashtra, Secretary, Urban Development Department, 2. Nagpur Municipal Corporation, Commissioner, 3. Additional Commissioner, Nagpur Municipal Corporation, Civil Lines. High Court of Bombay (India)
| Case Number | Writ Petition No. 5815 of 2007 |
| Counsel | A. S. Chandurkar, Y. B. Mandpe, C. S. Kaptan |
| Judges | B. P. Dharmadhikari & F. M. Reis, JJ. |
| Issue | Code of Criminal Procedure, 1973 (as amended by Act No.25 of 2005 & Act No.2 of 2006) - Section 169; Bombay Provincial Municipal Corporations Act, 1949 - Section 56; Nagpur Corporation Act, 1948; Constitution of India, 1950 - Article 311 |
| Judgement Date | November 06, 2009 |
| Court | High Court of Bombay (India) |
Judgment:
B. P. Dharmadhikari, J.
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Writ Petition is to be disposed of finally at the stage of admission itself as per orders dated 12th June 2008. Accordingly, we have heard Shri Chandurkar, learned counsel for the petitioner, Shri Mandpe, learned AGP for respondent No.1 and Shri Kaptan, learned counsel for respondents No.2 & 3 for some time and then they sought leave to place on record written notes of arguments. After the written notes were exchanged, the matter was fixed twice for oral hearing and ultimately was closed for judgment as no arguments could be advanced. As the matter was fixed for final hearing, we formally issue Rule and make it returnable forthwith.
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We have gone through the written notes of arguments filed by the petitioner as also by his employer Respondents No. 2 & 3. Shri Mandpe, AGP for respondent No.1 has orally supported the appellate order passed by Respondent No.1 - State Government.
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The challenge in writ petition is to the order dated 28.10.2005 passed by Respondent No.3 - Additional Commissioner of Nagpur Municipal Corporation imposing punishment of his reduction to lowest stage in pay scale of Rs. 40006000 and withholding his annual increments thereafter permanently for five years with cumulative effect. The period of his suspension pending enquiry has been regularised as suspension period only. This order was challenged by the petitioner in appeal before Respondent No.1 - State Government under the provisions of Section 387(3) of City of Nagpur Corporation Act, 1948 (hereinafter referred to as Corporation Act). That appeal came to be dismissed by the Principal Secretary, Urban Development on 30th May 2007 but the punishment was made subject to approval of General Body of Nagpur Corporation in view of Section 50(1) thereof. These two orders are assailed in present writ petition.
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The petitioner is a Junior Inspector in Assessment department of Nagpur Municipal Corporation. His basic contention is that the discontinuation from service of one Shri Gharde was never informed to him and hence he could not have been blamed for recovery of 494 assessment files from Shri Gharde. Shri Gharde was employed on daily wages. He has further contended that those 494 files were never received by him from record room. He has also relied upon similar enquiry conducted against one Shri A.U. Bahadure, who was exonerated by Respondent No.3 only because criminal offence could not be made out and police submitted discharge report under Section 169 of Code of Criminal Procedure, 1973, to Judicial Magistrate First Class. Shri Gharde was one of the accused in that matter. Because Shri Gharde could not be prosecuted, departmental enquiry against Shri Bahadure was dropped. The petitioner claimed same treatment. He has further contended that the punishment imposed upon him is major punishment which could have been inflicted only by General Body and hence initiation of departmental enquiry by Respondent No.3 - Additional Municipal Corporation is unsustainable.
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Respondents No. 2 & 3 have justified their action by contending that there was no evidence against Shri Bahadure while in departmental enquiry said evidence has come against the petitioner. It is further stated that the provisions of Maharashtra Civil Service (Discipline & Appeal) Rules, 1979, (i.e. 1979 Rules or Discipline & Appeal rules hereinafter), are adopted vide resolution by Nagpur Municipal Corporation and powers of disciplinary authorities thereunder are given to various officers of Nagpur Corporation. Deputy Municipal Commissioner was competent to initiate departmental enquiry against the petitioner in view of delegation in his favour by Municipal Commissioner. It is, therefore, contended that there is no merit in writ petition and writ petition deserves to be dismissed.
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Shri Chandurkar, learned counsel for the petitioner has invited our attention to relevant provisions of Corporation Act as also discipline and appeal rules mentioned above to urge that departmental enquiry has been initiated against the petitioner by Respondent No.3 and as said respondent could not have imposed major punishment upon the petitioner, the initiation of enquiry itself is bad. He points out that even the appellate authority has found that general body of Nagpur Municipal Corporation is the appointing authority and, therefore, it alone was competent to take action against the petitioner. He states that delegation of powers by the administrator on 28th June 1984 is, therefore, of no use in present matter. As Municipal Commissioner is not the disciplinary authority of the petitioner, delegation of his powers to the Deputy Municipal Commissioner is irrelevant. He has relied upon the judgment of Division Bench of this Court in the case of Prabhakar vs. K.D. Municipal Corporation, Kalyan, reported at 2003(4) Mh.L.J. 423. He has also attempted to show how the petitioner has been victimized though his case and case of Shri Bahadure is identical and no adverse evidence has come against the petitioner. He states that the Enquiry Officer had in fact exonerated the petitioner of charge No.2.
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Shri Kaptan, learned counsel states that the provisions of Maharashtra Civil Services Rules are adopted by the Municipal Corporation by passing resolution and those provisions need to be read subject to express provisions of Nagpur Corporation Act. He states that Section 53(5) only prohibits imposition of penalties like discharge, dismissal or removal by any other authority except appointing authority. He invites attention to resolution of Corporation dated 28th June 1984 to show how the powers of Municipal Commissioner to impose minor penalties on Class II employees and major penalties on class III employees are delegated to the Deputy Municipal Commissioner. He invites attention to classification...
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