Decided on April 06,1972



- (1.) This is a petition under Art. 226 of the Constitution by a dismissed municipal employee to quash and set aside the orders of dismissal passed against him and to reinstate him with back salary and continuity of service and all rights, benefits and privileges as if the said order of dismissal had not been passed.
(2.) The facts of the petitioner's case are that the petitioner was appointed as an overseer in the service of the third respondent-corporation sometime in July, 1948 and after certain promotions and proceedings to which it is unnecessary to refer, he was transferred on October 1, 1962 to the Loan Works Construction Branch, Byculla, and was assigned the work of laying the 6" water-main in the proposed footpaths on either side of Peder Road in addition to other works in progress elsewhere. In January, 1963 he was informed by a circular that he should remain present for a preliminary inquiry against him on the January 29, 1968, which was to be held by the Executive Engineer of the Municipal Corporation. On October 5, 1963 the petitioner was served with a charge-sheet dated October 11, 1963, which was accompanied by a statement of allegations and a copy of the preliminary inquiry and other documents. In para 18 of the petition it is stated that on March 7, 1964 he was surprised when he was called at the municipal office and served with a letter of that date in which it was stated that the petitioner had failed to remain present at the inquiry which had, therefore, been held in his absence and he was directed to intimate to the Enquiry Officer whether he wished to cross-examine any of the witnesses. In para 20 of the petition the petitioner has averred that the Enquiry Officer had violated the principles of natural justice by holding the enquiry behind his back. In para 23 of the petition it is stated that after the cross-examination of witnesses, the petitioner filed his statement of defence, and by a show cause notice, dated February 3, 1965, signed by the second respondent the petitioner was informed that the first respondent, after considering the report of the Enquiry Officer and the evidence on record had held certain charges to have been proved against the petitioner and the petitioner should show cause why he should not be dismissed from municipal service in view of those charges proved against him. On October 5, 1965 the petitioner received an order informing him that the first respondent had passed orders with the previous approval of the standing committee required under S. 83(2)(a) of the Bombay Municipal Corporation Act that the petitioner be dismissed from municipal service.
(3.) The validity of the order of dismissal passed against the petitioner has been sought to be challenged in the present petition on numerous grounds which raise several questions of fact, and in exercise of the discretion which I have in the matter I would decline to grant any relief to the petitioner on that ground alone, but I do not propose to confine my judgment to the same. Mr. M. O. Chinoy on behalf of the respondents has raised a preliminary objection as to whether the petitioner who is a municipal employee can maintain the petition as framed. It may at once be clarified that it is not the case of the petitioner anywhere in the petition that he holds any office or status as such and it may be pointed out that in the very first para of the petition he has claimed only to be an employee of the third respondent-corporation. For the purpose of disposing of the preliminary objection raised by Mr. Chinoy I must first refer to the relevant sections of the Bombay Municipal Corporation Act, 1888. Under sub-s. (3)(b) of S. 64 of that Act the executive power of the corporation vests in the Municipal Commissioner, and under S. 80A(2) of the said Act the power of appointing municipal officers and servants whose minimum monthly salary exclusive of allowances does not exceed Rs. 500 vests in the Municipal Commissioner. Section 83(1) of the Act enacts that every municipal officer or servant may be dismissed or otherwise punished for breach of "departmental rules" of discipline or for carelessness, unfitness, neglect of duty or other misconduct by the authority by whom he was appointed. Proviso (a) which is part of sub-s. (2) of the said section lays down that no officer whose monthly emoluments exceed Rs. 400 can be dismissed by the Commissioner "without the previous approval of the standing committee", and it is not disputed that the case of the present petitioner would fall within the said proviso. Curiously enough, the Act does not confer any express rule making power on the Municipal Commissioner but the said S. 83(1) by clear implication provides for departmental rules being framed by him and pursuant to that power (read with the power implicit in S. 64 of the said Act) the Municipal Commissioner has framed certain rules which by Chapter II thereof provide for the holding of what have been headed as 'Departmental Enquiries' in the Manual of Departmental Enquiries. Rule 22 thereof prescribes that the proceedings in a departmental enquiry are of a quasi-judicial nature and the authority holding it must act according to definite rules and procedure and observe the principles of natural justice (sic) in good faith.;

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