JASWANT SINGH, J. - (1.) THIS appeal by special leave is directed against the judgment and order dated 28/03/1972 of the High Court of Delhi dismissing in limine the writ petition filed by the appellant herein.
(2.) THE facts essential for the purpose of this appeal are: THE appellant was appointed as an Assistant Teacher on temporary basis in the pay scale of Rs. 68-170, which was subsequently revised to Rupees 118-225, in the Primary School, Northern Railway Colony II run by the Education Department of the Municipal Corporation of Delhi, with effect from 1/10/1958. He was confirmed on the said post on 30/09/1959. On 28/08/1964, he was transferred to the Senior Basic Middle School of the Corporation in Panna Mamurpur, Narela II. In September, 1967, he was assigned the work of teaching certain subjects to both the sections of Class V. In Section A of Class V. there was at that time a student named Surinder Kumar, son of Dhan Raj. On 6/09/1967, Dhan Raj made a written complaint to the Education Officer of the Corporation, a copy of which he endorsed to the Head Master of the School, alleging therein that the appellant had sensually misbehaved with his son. Surinder Kumar in the School premises during the recess time on 2nd and 4/09/1967 the Education Officer suspended the appellant. On 15/04/1968, the Assistant Education Officer, Rural North Zone, was directed by his superior to prepare a charge-sheet against the appellant whereupon a charge-sheet was drawn up and served on the latter on 16/11/1968. THEreafter, the Director of Inquiries, who was deputed to enquire into the matter proceeded to hold the enquiry and on consideration of the evidence adduced before him, he submitted a report on 20/05/1969, holding that the charge levelled against the appellant had been established. On receipt of the report and perusal thereof, the Deputy Commissioner, Education of the Corporation passed the following order on 20/05/1969: "I have gone through the report of the Inquiry Officer and agree with his findings. THE Inquiry Officer has held the charge of committing an immoral act with a student of Class V. levelled against Shri Tara Chand Khatri. A/T (Respondent) as proved. Such an act on the part of a teacher is most unbecoming, serious and reprehensible. I propose to impose the penalty of 'dismissal' from service which shall be a disqualification for future employment on the respondent." Consequent upon the passing of this order, a notice was issued to the appellant requiring him to show cause why the penalty of dismissal from service be not imposed on him. On 11/07/1969, the appellant submitted his representation in reply to the show cause notice. By order dated 30/07/1968, the Deputy Commissioner, rejected the representation of the appellant and imposed the penalty of dismissal from service upon him. Aggrieved by this order, the appellant preferred an appeal to the Commissioner of the Corporation on 29/08/1969, under regulation 11 of the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as 'the Regulations') which was rejected by the Commissioner on 13/09/1969. On 11/10/1971, the appellant filed Civil Writ Petition No. 1032 of 1969 in the High Court of Delhi challenging the aforesaid order of his dismissal from service. The High Court allowed the petition on the ground that the order of the Appellate Authority was made in violation of the requirements of regulation 15 of the Regulations and directed the Appellate Authority to dispose of the appeal afresh on merits keeping in view all the facts and circumstances of the case as also the requirements of Regulation 15 of the Regulations. While disposing of the writ petition, the learned Judge added that if the appellant still felt aggrieved by the decision of the Appellate Authority, he would be at liberty in appropriate proceedings not only to challenge the order of the Appellate Authority but the order of the disciplinary authority as well. On remand, the Commissioner of the Corporation who happened to be an officer different from the one who rejected the appellant's appeal on the former occasion heard the appellant at considerable length but rejected the appeal by an elaborate order dated 5/01/1972. The appellant thereupon filed writ petition No. 179 of 1972 in the High Court of Delhi challenging the order dated 30/07/1969 of the Deputy Commissioner, Education, as well as the order of the Appellate Authority dated 5/01/1972. This petition was, as already stated, summarily dismissed without the issue of a notice to the respondents. The appellant then made an application to the High Court for leave to appeal to this Court but the same was also rejected. Appearing in support of the appeal, Mr. Ramamurthi has vehemently contended that the appointing authority of the appellant being the Commissioner under Section 92 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as 'the Act'), his dismissal from service by the Deputy Commissioner (Education) - an authority subordinate to the Commissioner is illegal. The counsel has next urged that regulation 7 of the Regulations and the Schedule referred to therein conferring power on the Deputy Commissioner to dismiss a municipal officer or other employee drawing a monthly salary of less than Rs. 350.00 being inconsistent with Section 95 of the Act is void and consequently the impugned order of the appellant's dismissal from service passed in exercise of that power is also illegal and invalid. The counsel has further contended that the impugned order of the appellant's dismissal from service being a quasi-judicial order is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8 (9) of the Regulations nor has it given its reasons for passing the order. The counsel has lastly urged that the High Court ought not to have dismissed the petition in limine without calling upon the respondents to file the return as it raised not only arguable points of law but also contained allegations of mala fides against the respondents. We shall deal with these points seriatim. But before embarking on that task, we consider it apposite to refer to a few provisions of the Act and the regulations which have an important bearing on the case.
(3.) UNDER Section 92 (1) (b) of the Act, as in force at the relevant time, the power of appointing municipal officers and other municipal employees whether temporary or permanent, to posts carrying a minimum monthly salary (exclusive of allowances) of less than three hundred and fifty rupees was vested in the Commissioner. Sub-section (1) of Section 95 of the Act provided that every municipal officer or other municipal employee shall be liable... to be censured, reduced in rank, compulsorily retired, removed or dismissed for any 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. The first proviso to this sub-section, however, contained the following rider:- "Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed." Section 491 of the Act which is in the nature of an enabling provision provided as under:- "The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any officer or other municipal employee specified in the order." ;