Pawan Kumar Awasthi vs State Of Madhya Pradesh And Others

1/ This order will govern disposal of writ petition nos. 598/18 and 600/18 as it is jointly submitted by counsel for parties that both these writ petitions involve same issue on identical facts situation.

2/ For convenience the facts have been noted from WP no. 600/18.

3/ This writ petition has been filed by petitioner challenging the charge sheet dated 21/9/2017 issued by Additional Commissioner Urban Administration and Development as also the communications dated 16/11/2017 sent by Additional Commissioner to the Collector and 27/12/2017 sent by Incharge officer for Collector to the Chief Municipal Officer Talen.

4/ Learned counsel for petitioner submits that substantive appointment of petitioner is on the post of Revenue Inspector, therefore, the Commissioner Urban Administration and Development is not the competent authority to issue the charge-sheet to petitioner. She submits that petitioner being the revenue inspector is not a member of State Municipal Services, therefore, the disciplinary power vests with Municipal Council. In this regard she has referred to Section 94 & 95 of Municipalities Act, 1961 and Rule 2(e) of 2(f) of MP Municipal Employees (Recruitment and Conditions of Service) Rules, 1968 as also Rule 32 of MP State Municipal Service (Executive) Rules 1973. She has further submitted that in terms of Rule 56(3) of Rules of 1968 appeal lies to Commissioner, therefore, commissioner cannot issue the charge sheet.

5/ As against this learned counsel for respondents have supported the impugned action by submitting that petitioner during the relevant time was posted as Chief Municipal Officer and therefore, the Commissioner is competent to issue charge-sheet in view of the provisions contained in Sections 89, 90 and 90(4) of Municipalities Act. They have further submitted that the issue involved in the present case is covered by the judgment of the Division Bench.

6/ I have heard the learned counsel for the parties and perused the record.

7/ The petitioner was initially appointed as Private Secretary in the Municipal Council and on abolition of said post vide order dated 29/7/97 he was appointed by Collector and Administrator Municipal council Raghogadh as revenue inspector. The petitioner thereafter was posted as Incharge Chief Municipal Officer Rajgadh and vide order dated 14/7/2012 he was posted as Incharge Chief Municipal Officer Talen and thereafter vide order dated 6th September 2013 he was transferred and posted as Incharge CMO Biaora and subsequently he was posted as Chief Municipal Officer Vidisha and said order was modified by order dated 3rd August 2015 transferring and posting him as Incharge CMO Rajgadh. The charge in the charge sheet issued to petitioner relates to the year 2013 when the petitioner was working as Incharge Chief Municipal Officer in the municipal council.

8/ The question relating to competency of Commissioner to take disciplinary action against the Incharge Chief Municipal Officer (substantive post Revenue Inspector) has been considered by the Division Bench of this court in the matter of Anand Sharma Vs. State of MP and others reported in (2007) 5 MPHT 85. The Division Bench after considering Sections 89, 90 and specially sections 89 (1A) and 90(4) of MP Municipalities Act 1961 has held that State Government exercises control over the Incharge Chief Municipal Officer and the Commissioner has jurisdiction over the Incharge Chief Municipal Officer for all purposes including disciplinary action and suspension.

9/ Division Bench in case of Anand Sharma (supra)has held as under:

"7. Having heard the learned counsel for the parties, we have also perused the factual aspect of the matter as well as the provisions cited by the learned counsels for the parties. Relevant provisions of Section 89 and 90 of the M.P. Municipalities Act, 1961 are being reproduced below :

"89. Appointment to State Municipal Service pending constitution thereof etc.

(1) Pending the constitution of the State Municipal Service under sub-section (1) of Section 86 or when no member of such service is available for appointment as Chief Municipal Officer. Health Officer or Engineer, as the case may be, the State Government may depute an officer of Government or appoint any person qualified to be a member of such service to act as Chief Municipal Officer, Health Officer or Engineer, as the case may be. (1-A) The State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one council to another.

(2) *** *** *** ***

90 Arrangement during leave of absence of Chief Municipal Officer.-

(1) The State Government may grant leave of absence to the Chief Municipal Officer.

(2) During any absence on leave of the Chief Municipal Officer for a period of not exceeding thirty days at a time the State Government may appoint a person to act as the Chief Municipal Officer.

(3) During any absence on leave of the Chief Municipal Officer for a period not exceeding thirty days at a time, the State Government may make such local arrangement for carrying on the duties and functions of the Chief Municipal Officer as may be necessary.

(4) Every person appointed under sub-section (2) or (3) shall exercise all powers conferred and perform the duties imposed on the Chief Municipal Officer by or under this Act or by or under any enactment for the time being in force and shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable.

On bare perusal of the aforesaid provisions of Sections 89 (1-A) and 90 (4) of the Act of 1961, it is clear that Section 89 provides powers to the State Government that when no member of such service is available for appointment as Chief Municipal Officer, the State Government may depute an officer of Government or appoint any person qualified to be a member of such service to act as Chief Municipal Officer, as the case may be. Sub-section (1-A) of Section 89 of the Act of 1961 further provides that the State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one council to another. Section 90 (1) of the Act of 1961 provides for making arrangements during leave of absence of Chief Municipal Officers and in that case, the State Government may grant leave of absence to the Chief Municipal Officer and sub-section (4) provides that every person appointed under sub section (2) or (3) shall exercise all powers conferred, and perform the duties imposed on the Chief Municipal Officer by or under this Act or by or under any enactment for the time being in force and shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. Therefore, on the plain reading of Section 89 specifically provides power to the State Government to appoint any person as Chief Municipal Officer and to exercise the powers of control over him and Section 90 clearly provides that in any contingency when a regular person is on leave of absence, the State Government can appoint any other person to perform the duties of the C.M.O. imposed by or under this Act or by or under any enactment for the time being in force and shall also exercise all powers conferred on him and in that case, he shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable.

The words "powers of control" have been used in sub-section (1-A) of Section 89 of the Act of 1961. In common parlance the meaning of word "control: is also to govern, to dominate, to rule and direct and to have under command and authority over, to have authority over the particular matter. In the case of Bharat Bhushan v. Cinema and City Magistrate reported in AIR 1956 Allahabad 99, the Division Bench of Allahabad High Court has held that :

"The word "control" is not confined to mere regulation. It is more comprehensive and includes domination or command over an inferior. No doubt, the State Government can lay down general rules or instructions for the guidance of the District Magistrate in the exercise of his discretion. But the "control" envisaged in the section is not confined to the issuing of mere general directions; it includes an interference on the part of the State Government with the individual decision of a particular case by the District Magistrate."

In the case of Corporation of the City of Nagpur v. Ramchandra G. Modak reported in AIR 1984 SC 626, it was held by the Supreme Court that:

"The term "control" is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned. Section 59 (3) (b) of the City of Nagpur Corporation Act of 1950, in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision and control over the acts of Municipal Officers and servants. It was held that the Commissioner, Municipal Corporation functions the power to suspend Municipal employee pending departmental enquiry. The Supreme Court has held that when the words "control" and "vests" are read together, they are storing terms which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal Corporation. The term "control" is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned. Suspension form service pending disciplinary enquiry falls within the ambit of the word "control".

In the case of State of West Bengal v. Nripendra Nath Bagehi reported in AIR 1966 SC 467 while interpreting a similar language employed in Article 235 of the Constitution of India which confers control by the High Court over District Courts, the Supreme Court held that the word "Control" would include the power to take disciplinary action and all other incidental or consequential steps to effectuate this end. In the light of Article 235 of the Constitution of India, in which the word "control" has been used, it was held that the High Court is made the sole custodian of the control over the subordinate judiciary, therefore, is not merely the power to arrange the day to day working of the court but contemplate disciplinary jurisdiction over the Presiding Judge. Again in the case of Chief Justice of High Court of Andhra Pradesh v. VVS. Krishnamurthy reported in 1979 SC Page 193, the Supreme Court has held that:

The word "control" included the passing of an order of suspension and that the power of control was comprehensive and effective in operation. In this connection Sarkaria, J. speaking for the Court, observed that under Article 235, control of the High Court is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes :

(a) Disciplinary jurisdiction and a complete control, and in exercising of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal.

While considering the meaning of the word "control" under Article 235, the Hon'ble Supreme Court again in the case of Baradakanta Mishra v. High Court of Orissa reported in AIR 1976 SC 1899 has held that:

"The word "control" means something in addition to that mere superintendence of the Courts. The control is over the conduct and discipline of Judges. The High Court can make enquiries into the disciplinary conduct under the power of control."

Therefore, according to the aforesaid interpretation, it is clear that the meaning of word "control" implies not only a dominant or controlling the management, but it is exercised by superior authority in exercise of its superior powers which clearly mean to regulate and to hold and to enquire disciplinary jurisdiction.

Admittedly, in this case, there is no dispute about the facts of the case. Vide order dated 18.5.05, the appellant was made as Incharge C.M.O. of Nagar Panchayat, Phoopkalan, and he was continuously working on that post and performing the duties and exercising all powers of C.M.O.; and for committing some irregularities, he was placed under suspension vide order dated 19. 7.2006, i.e., after a period of 14 months, which also clearly indicates that his additional charge was not of a temporary in nature for a particular period, but he was continuously enjoying the powers of Chief Municipal Officer. As has been argued by the learned counsel for the appellant, the question in this case is whether, under these circumstances, the order passed by the Commissioner-cum -Secretary for placing him under suspension can be covered within the provisions of sub-section (1-A) of Section 89 under the power of control and sub -section (4) of Section 90 of the Act of 1961. Though Snri M.P.S. Raghuwanshi vehemently argued, but considering the aforesaid provisions and background of the facts, and the clear meaning of word "power of control" we are also of the same view that if an officer though not promoted under the cadre of C.M.O., but if he was given additional charge or was made Incharge C.M.O. and was exercising the powers of the post, was under the "control" of the State Government as provided in sub-section (1-A) of Section 89 read with sub-section (4) of Section 90 of the Act of 1961. Sub-section (1-A) of Section 89 provides the powers to the State Government to "control over" the person and the person so appointed shall exercise all the powers and perform the duties imposed on him under the Act and he shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. The plain and simple interpretation of the aforesaid provisions is that if a person is exercising the powers and performing the duties, the State Government shall have the powers to control over the person, therefore, at this stage, he cannot argue that his suspension is illegal or without jurisdiction. In fact, power of suspension is included in power to control. Admittedly, the order Annexure P/2 for posting him as an Incharge C.M.O. has been passed by the State Government and during that period he was under the control of the Government, therefore, for committing irregularities the Commissioner-cum-Secretary of the Urban Administration & Development M.P. was fully competent not only to recall the aforesaid order but to place him under suspension because when the order was passed by the State Government to permit him to perform the duties as a C.M.O., the order was under same liabilities, restrictions and conditions and in that case it cannot be argued that the State Government shall have no powers to suspend him and for that purpose looking to his original cadre or the original post it is the only Nagar Panchayat which can pass orders. Though the learned counsel for the respondents could not point out whether the order was approved by the President or not nor any such order has been filed or placed on record before us, but even otherwise even if the order is not approved by the President or by Nagar Panchayat, Phoopkalan, the order passed by the Commissioner-cum-Secretary will not be illegal and without jurisdiction because he, for that purpose when, he was working on the post of Incharge CMO, was directly under the control of the State Government for all purposes including for disciplinary action and suspension.

In view of the above, we hold that when appellant was holding the charge of the post of C.M.O. on the orders passed by the State Government, he shall be under the control of the State Government and the State Government shall have powers to control his services and for taking disciplinary action against him including suspension. Consequently, we do not find any scope for interference in this writ appeal filed by the learned counsel for the appellant. Consequently, this appeal fails and is hereby dismissed."

10/ Hence the issue which the petitioner has raised in the present case is squarely covered by aforesaid Division Bench judgment against the petitioner.

11/ In view of this petitioner is not entitled to the benefit of Single Bench orders dated 4/12/17 in WP No. 2889/17 in the matter of Maksood Ali Sayyed Vs. State of MP & connected writ petitions; 23/2/18 passed in WP No. 5699/17 in the matter of Pradeep Kumar Sharma Vs. State of MP ; 3/1/18 passed in WP No. 3755/17 in the matter of Sanjay Kanungo Vs. State of MP & others; 18/12/17 passed in WP No. 5578/17 & 5669/17 in the matter of Ravindra Borde Vs. The State of MP and others; 15/5/12, passed in WP No. 13847/10 in the matter of Sujjet Kumar Nigam Vs. State of MP and others; Jagdish Chandra Vs. Collector District Dewas reported in 2007(2) MPHT 449; 12/ Learned counsel for petitioner has placed reliance upon judgments of the Supreme court in the matters of Municipal Corporation of Delhi Vs. Gurnam Kaur reported in (1989) 1 SCC 101; Arnit Das Vs. State of Bihar reported in (2000) 5 SCC 488; Divisional Controller KSRTC Vs. Mahadeva Shetty and another reported in (2003) 7 SCC 197 and has made an unsuccessful attempt to contend that observation made by Division Bench in case of Anand Sharma (supra) are obiter and relevant rules of 1968 and 1973 have not been considered.

13/ The Division Bench has duly examined the scheme of the Act and power of state government to take action against the incharge CMO in the light of the provisions contained in Sections 89 and 90 of Act. The conclusion so arrived at by the the Division Bench after analyzing the legal position is not an obiter, therefore, the petitioner is not entitled to the benefit of aforesaid judgments.

14/ Having regard to the above analysis, I am of the opinion that Additional Commissioner has committed no error in issuing the impugned charge sheet to petitioner who during the relevant time was working as incharge Chief Municipal Officer.

15/ It is worth noting that no other arguments have been advanced before this court.

16/ Hence I do not find any merit in these writ petitions which are accordingly dismissed. Signed order has been kept in the file of WP no. 600/18 and a copy thereof has been placed in the record of connected writ petition.

C.C. as per rules.