N.L. Ganguly. J. - (1.) THIS petition is directed against a suspension order dated 9 -4 -1991 suspending the Petitioner. The order has been passed by Sri Binda Prasad who was the Acting Chairman of Nagar Palika, Maudaha, Hamirpur. The Petitioner challenges the aforesaid order of suspension in this Court on the following grounds: (a) that there were no disciplinary proceedings pending against him or under contemplation. There is a so no criminal case pending against him in respect of the financial involvement, moral turpitude either under investigation or enquiry or trial; (b) that the Acting Chairman, who passed the impugned order, was not a competent authority to pass the same; and (c) that the impugned order of suspension was passed mala fide against the Petitioner by the Acting Chairman.
(2.) THE Learned Counsel for the Petitioner has served the Respondents and the parties have exchanged affidavits. They agree to final disposal of the petition according to the Rules of the Court. The Learned Counsel for the Petitioner placed the provisions of Section 77B of the U.P. Municipalities Act, 1916. Section 77 -A and 77 -B of the aforesaid Act is being quoted here in under: 77 -A. Power of appellate authority in disciplinary matters. - -The appellate authority to which an appeal against an order of dismissal, removal or other punishment is preferred under this Act or the rules may - - (a) set aside, reduce or confirm the penalty; or (b) remit the case to the authority which imposed the penalty with such directions as it may deem fit. 77 -B. Powers of suspension. - -(1) The authority competent to punish an officer or servant of the board may place him under suspension - (a) where a disciplinary proceeding 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. (2) Where a penalty of dismissal or removal imposed upon an officer or servant of the board, is set aside in appeal under this Act or the rules and the case is remitted for further inquiry or action or with any other directions, the officer or servant shall be deemed to have been placed or continued under suspension on and from the date of original order of dismissal or removal. (3) Where a penalty of dismissal or removal imposed upon an officer or servant of the board is set aside or declared or rendered void in consequence of or by a decision of a court of law, and the punishing authority, on a consideration of the circumstances of the case decided to hold a further enquiry against him on the allegation on which the penalty of dismissal or removal was originally imposed, the officer or servant shall be deemed to have been placed or continued under suspension by the punishing authority on and from the date of the original order of dismissal or removal. (4) An order of suspension made or deemed to have been made under this section may at any time to be revoked by the authority which made or is deemed to have made the order or by the appellate authority. (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. (6) An officer or servant who is placed or is deemed to have been placed under suspension shall, during the period of such suspension, be entitled to receive, instead of salary, such subsistence allowance as may be prescribed. The Learned Counsel for the Petitioner submitted that the Petitioner is admittedly an employee of the Nagar Palika, Kanpur, under the (U.P) Palika (Centralised) Services Rules, 1966. He pointed out that under the Rule 37(1) and (3) of the aforesaid Rules, it was necessary that the orders for punishment of dismissal, removal from service etc. are to be passed in accordance with the said rules, which are being quoted here as under: 37. Disciplinary proceedings (1)... . (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 the 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 service 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 b y 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.
(3.) ADMITTEDLY , the Petitioner is a Head Clerk in the Nagar Palika, Maudaha, Hamirpur, which is a class 3 post. The allegation to this effect in the petition are not disputed.;