Bhanu Dutt vs Municipal Corporation and Another

V.D. Misra, C.J.—Bhanu Dutt, who was working as a Forest Guard with Municipal Corporation, Simla, has been charged for misconduct alleged against him. To begin with he was suspended by the Administrator, Municipal Corporation, Simla, by an order dated 1st April, 1980, (Annexure P-2). However, by an order dated 4th August, 1980, (Annexure P. 5) the Executive Officer of the Municipal Corporation has appointed an Inquiry Officer while reinstating Bhanu Dutt. Inquiry report is Annexure P-8. The Commissioner of Municipal Corporation, Simla, vide his order, dated 14th December, 1981, called upon Bhanu Dutt to show cause against the proposed penalty of dismissal from service. He has come to this Court challenging the order passed by the Executive Officer appointing an inquiry Officer. Civil Writ Petitions filed by him are Nos. 4 and 12 of 1982.

At one time Simla was governed by the Punjab Municipal Act. Section 39 of this Act lays down that it is the Municipal Committee which shall employ other officers and servants. The office of Executive Officer of a Municipal Committee has been created by the Punjab Municipal (Executive Officer) Act, 1931. Section 4 of this Act lays down. the powers of the Executive Officer. I will advert to this section a little later. Suffice it to say that the Punjab Municipal (Executive Officer) Act, 1931 (referred to as the Executive Officer Act) is still in force.

The Punjab Municipal Act was repealed by Himachal Pradesh Municipal Act, 1968. This Act came into force on 3rd February, 1969. The Capital of Himachal Pradesh (Development and Regulation) Act, l968 came into force in June, 1969. Simla Municipality as constituted under the Himachal Pradesh Municipal Act, 1968, was withdrawn from the operation of that Act. A Municipal Corporation called the Simla Municipal Corporation'' was constituted u/s 5 of the Capital of Himachal Pradesh (Development and Regulation) Act, 1968. The Petitioner was appointed as a Forest Guard by the Simla Municipal Corporation while this Act was in force. The Himachal Pradesh Municipal Corporation Act, 1979, repealed, amongst others, the Capital of Himachal Pradesh (Development and Regulation) Act, 1968. Sub-section (4) of Section 4 of this Act empowers the commissioner to exercise all powers conferred and imposed upon the Corporation till a Corporation is constituted under Sub-section (3). Section 73 inter alia provides that no employee shall be reduced in rank, compulsorily retired, removed or dismissed by an authority subordinate to that by which he was appointed. Section 440 inter alia lays down that rules, bye-laws etc. which have been made under the Acts, which stood repealed by the Municipal Corporation Act, shall continue to be in force.

Now, rules were made under the Himachal Pradesh Municipal Act, 1968. These are called the Himachal Pradesh Municipalities Servants (Punishment, Removal, Suspension and Appeal) Rules, 1971. It is not disputed that these rules continue to be in force. It is contended by Mr. Kanwar, learned Counsel for the Petitioner, that it is Rule 6 which lays down the authority competent to institute the proceedings. At this stage this rule may be read with advantage:

Authority to institute proceedings.- (1) The competent authority or any other authority empowered by him by general or special order may-

(a) institute disciplinary proceedings against any servant;

(b) direct a disciplinary authority to institute proceedings against any servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in Rule 5.

(2) A disciplinary authority competent under these rules to impose any of the penalties specified in Clauses (i) to (iv) of Rule 5 may institute disciplinary proceedings against any servant for the imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 5 not withstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.

It is the contention of Mr. Kanwar that the Respondent Corporation has failed to show in terms of Sub-rule (1) of Rule 6 that the Executive Officer, who appointed the Inquiry Officer, had been empowered by the competent authority by any general or special order to institute disciplinary proceedings against the Petitioner. Mr. Mittal, learned Counsel for the Respondent- Corporation, submits that it is Sub-rule (2) of this rule which empowers the Executive Officer to order the institution of proceedings.

Now, the term ''Disciplinary Authority'' stands defined by these rules. Rule 2(iii) reads:

Disciplinary Authority'' means the authority competent under these rules to impose on a servant any of the penalties specified in rules.

It is Rule 5 which lays down the penalties which can be imposed on a servant. These penalties are the only penalties which can be imposed and consist of minor and major penalities. Procedure for imposing major penalties is laid down in Rule 7 whereas the procedure for providing minor penalties is laid down in Rule 9. Whereas Rule 7, at some places, makes a reference to authority, Rule 9 is completely silent about it.

The main question which needs a decision is about the powers of the Executive Officer. It is Section 4(b)(i) of the Punjab Municipal (Executive Officer) Act, 1931, which prohibits the ''Executive Officer from exercising the power of removal or dismissal of any servant. The relevant part of this section reads thus:

Powers of the Executive Officer.-In a municipality in which an Executive Officer has been appointed-

x x x x x (b) The powers conferred and duties imposed upon, the functions vested in, and the objections to be tendered and notice given to, the committee under the sections of the Municipal Act mentioned in schedule-I, shall not be exercised or performed by, vested in, or be tendered or given to the committee, but may be exercised or shall be performed by, or shall vest in, or shall be tendered or given to, the Executive Officer, provided that-

(i) the power conferred by Section 39 of the Municipal Act shall not be exercised by the Executive Officer and may be exercised by the committee in respect of the appointment of any officer or servant of the committee to a post for which the monthly remuneration exceeds Rs. 25, and in respect of the power of removal or dismissal of any officer or servant whose monthly remuneration exceeds Rs. 45, provided that the Executive. Officer shall dismiss an employee if required by the committee to do so;

It is true that Punjab Municipal Act has been repealed. But for the purpose of reading Sub-clause (i) of Clause (b) reproduced above, Section 39 of the Municipal Act has to be read. As already noticed, this section empowers the Municipal Committee to employ all persons. In other words, the effect of the aforementioned rule is that the Executive Officer still has the power to take all actions against an employee except the power of removal or dismissal of any servant whose monthly salary exceeds Rs. 45. Dismissal and removal of a servant has come (Misra to be a major penalty in terms of Rule 5 referred to above. According to the definition of ''Disciplinary Authority'' extracted above, the Executive Officer, who can impose penalties other than those referred to in Section 4(b)(i), is a disciplinary authority in terms of the definition. Sub-rule (2) of Rule 6 empowers disciplinary authority to institute disciplinary proceedings against any servant. These proceedings may be instituted irrespective of the fact that the disciplinary authority does not have the powers to impose major penalties.

It is contended by Mr. Kanwar that u/s 73 of the Municipal Corporation Act all the powers now vest in the Corporation. I am afraid that is not so. The relevant part of Section 73 reads thus:

Punishment of Corporation officers and other employees.-

(1) Every Corporation officer or other Corporation employee, other than those referred to in Sub-section (1) of Section 70, shall be liable to have his increments or promotion withheld or to be censured, reduced in rank, compulsorily retired, removed or dismissed for 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 afore said shall be reduced in rank, compulsorily retired, removed or dismissed by an authority subordinate to that by which he was appointed:

Provided further that the Corporation may by regulations provide that Corporation employees belonging to such classes or categories as may be specified in the regulations shall be liable also to be fined by such authority as may be specified therein.

It is obvious that the Corporation by a regulation may lay down the authorities by which these servants may be punished. The first proviso ensures that major penalties are not imposed by an authority subordinate to appointing authority. Now, in the instant case it is not the Executive Officer who is going to impose major penalty on the Petitioner. He has just ordered the inquiry to be conducted. There is no conflict with Section 73 inasmuch as when it comes lo imposing a major penalty, it will be done by an authority named under this section. It may be noticed that whereas under the first proviso major penalties can be imposed only by appointing authorities, no such restriction is placed by the first part of the section. In other words, the authority so prescribed by the regulations for imposing minor penalties need not be the authority which has appointed the servant. This section read with the rules and Section 4(b)(i) of the Punjab Municipal (Executive Officer) Act amply empower the Executive Officer to order disciplinary proceedings.

A Division Bench of this Court in Commissioner Transport, Himachal Pradesh Government and Anr. v. Shri. Niarain Dass 1974 (1) S.L.R. 386, had an occasion to consider the import of sub-rule (2) of Rule 13 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which is pari materia with Rule 6(2) of the rules referred to above. It was held that the disciplinary authority could order the inquiry and initiate the proceedings even if it could not impose a major penalty.

The result is that both the petitions fail and are dismissed with costs. Counsel''s fee Rs. 250/-. One set of costs.