Dinesh Chandra Srivastava vs Director Local Bodies and Others

Yatindra Singh, J.—The only question Involved In this writ petition is whether Section 77B(5) of the Municipalities Act would apply when an employee belonging to the centralised service is suspended.

Facts and Parties'' Submissions

The Petitioner is the Executive Officer of Nagar Panchayat, Jhunsi, Allahabad (the Nagar Panchayat). The Nagar Panchyats are now governed by U.P. Municipalities Act, 1916 (the Act). He was suspended by the Director Local Bodies, Directorate U.P. He has filed the present writ petition challenging it on the ground that there is no special resolution supported by two third members constituting the Board as required by Section 77B(5) of the Act.

I have heard Sri V.B.L. Srivastava, counsel for the Petitioners, standing counsel and Sri S.D. Kautilya counsel for the Respondent No. 4. They have stated that they don''t wish to file any counter affidavit and this writ petition may be decided finally at this stage.

According to the Respondents, Petitioner is member of centralised services and his services are governed by U.P. Palika Centralised Services Rules, 1966 (the Rules) and Section 77B of the Act does not apply to him.

Decision

Section 77B1 of the Act provides for suspension of an employee of a municipal board. Its Sub-section (1) provides that the authority competent to punish an officer and servant of a board may suspend him. Its Sub-section (5) provides that the board shall act under this Section by special resolution supported by not less than two third members constituting the board.

Section 69B2 of the Act provides for centralisation of services of Municipal Officers and Servants. This can be done despite Sections 57, 59, 65 to 69A, 71, 74 and 80 of the Act. These sections more or less empower the municipal boards (including Nagar Panchayats) to make appointments and to take disciplinary action against their employees.

The Rules have been framed u/s 69B of the Act providing for centralisation of services of their employees. Under the Rules, the appointment of a person in a centralised service is to be made by the State Government. This can be by direct recruitment on the recommendation of the commission (Part V) or by promotion (Part VI). The State Government is the appointing authority of persons in the centralised services.

Rule 37(3)3 of the Rules states that the power of suspension is to be exercised by the Officer who is authorised in this behalf by the State Government. In this case, suspension is by the Director. There is no allegation that he is not so authorised but the submission is that there is no special resolution of the Nagar Panchayat as contemplated u/s 77B of the Act.

Once the Centralised service is created, the Sate Government becomes the appointing authority of the persons in that service. These persons are no longer employees of the Municipal Board but that of the State Government. Section 77B of the Act is applicable to the employees of the Municipal Board and not to the employees of the State Government. Punishment and suspension are rights of employers. They can be delegated. In this, case power of suspension has been delegated to the Director by the employer-State Government. The suspension order passed by the Director is legal.

The order gives reasons for suspending the Petitioner. They are sufficient. The inquiry officer has already been appointed. There is no justification to interfere with the suspension order.

Conclusion

My conclusions are as follows:

(i) Suspension is a right of an employer. He can delegate it.

(ii) The suspension order in this case has been passed by competent officer and is valid.

(iii) Section 77B of the Act does not apply to the Petitioner or any one else in the centralised service.

(iv) However, inquiry itself may be expeditiously decided if possible within six months. The Petitioner will co-operate in the inquiry.

With these observations the writ petition is disposed of.

The relevant part of paragraph 77B (5) are as follows:

Section 77B. Power of suspension.- (1) The authority competent to punish an officer or servant of the board may place him under suspension:

(a) Where a disciplinary proceedings against him is contemplated or pending, or

(b) Where a criminal case against him in respect of an offence involving moral turpitude is under investigation, enquiry or trial.

(5) A board shall act under this section by a special resolution supported by not less than two thirds of the members constituting the board.

Section 69B is as follows:

Section 69E. Centralisation of services of municipal officers and servants.- (1) Notwithstanding anything contained in Sections 57, 59, 65 to 68, 69, 69A. 71, 74, 79 and 80 the State Government may, at any time, by rules provide for the creation of one or more services of such officers and servants as the State Government may deem fit, common to all or some Nagar Panchayat or Municipal Corporation or to the Nagar Panchayat or Municipal Corporations or Jal Sansthan in the State and prescribes the methods of recruitment and condition of services of persons appointed in any such service.

(2) When any such service is created, officers and servants serving on the posts included in the service may, if found suitable, be absorbed in the service, provisionally or finally and the services of others shall stand determined in the prescribed manner:

Provided that such absorption in the service shall not operate as a bar against holding or continuing to hold any disciplinary proceedings against a member of the service in respect of any act committed before the date of such absorption.

(3) Without prejudice to the generality of the provisions of Sub-sections (1) and (2), such rules may also provide for consultation with the State Public Service Commission in respect of any of the matters referred to in the said sub-sections.

(4) Notwithstanding anything contained in the preceding Sub-sections (1), (2) and (3) or any other provisions of the Act. the State Government may by rules also provide for regufarisation of temporary and ad hoc appointments, made before the prescribed date, without consultation with the State Public Service Commission.

Explanation.-For the purposes of this sub-section it is clarified that services common to the Nagar Panchayats. and Municipal Councils of Nagar Panchayats, Municipal Councils. Municipal Corporations and Jal Sansthans in the districts of Garhwal and Kumaon Divisions of the State may be created.

The relevant part of Rule 37 is as follows:

(1) Subject to such modifications as the Government may make from time to time, and subject to the provisions of Sub-rules (3) and (4j, the same rules regarding disciplinary proceedings, appeals and representation against punishment, as are applicable Mahapalika Seva Niyamavali, 1962, shall apply to the officers of the Centralised Services.

(2) The authority competent to impose the punishment of dismissal or removal from service or reduction in rank on the officers of the Centralised Services shall be State Government. As regards other punishments, the President of the Municipal Board or the Mukhya Nagar Adhikari of the Mahapalika, as the case may be, shall be the competent authority:

Provided that it shall be necessary to consult the Commission before passing an order for the dismissal or removal from services or reduction in rank in respect of any such officer.

(3) In cases requiring immediate suspension of an officer of the Centralised Services, the power of suspending such an officer shall be exercised by such authority as may be specified in this behalf by the Government; and in other cases requiring suspension of an officer, reference shall be made to the Government.

(4) In case where the disciplinary proceedings against an officer have been started by the President or Mukhya Nagar Adhikari in accordance with the provisions of Sub-rule (2) above; and after the completion of enquiry he comes to a provisional conclusion that a penalty of dismissal or removal from service or reduction in rank is required, he shall refer the case along with his findings and recommendation to the Government for final orders.