I.S. Tiwana, J. - (1.) As a result of an enquiry held against respondent No. 1 Swami Dass, Octroil Moharrir, the Administrator of the Ludhiana Municipal Committee, vide his order dated 23rd May, 1974, (Annexure P 3), held him guilty of colluding in the entry of goods without payment of octroi duty amounting to Rs. 315.00 within the Municipal limits and ordered the stoppage of his three increments with cumulative effect. Formal communication of this order to respondent No. 1 was made on 29th May, 1974 vide Annexure P4. Respondent No. 1 successfully assailed this order before the Divisional Commissioner, Patiala who vide his impugned order dated 24th Feb., 1975 (Annexure P 5) in spite of a specific objection by the petitioner that the said appeal was not maintainable before him allowed the appeal and set aside order annexure P 3. It is this order of the Commissioner which is now impugned by the petitioner-Committee (now Corporation) on the same very ground that the appeal before him was not maintainable and his order is totally without jurisdiction,
(2.) In support of the above-noted stand, it is contended that there is no specific provision in the Municipal Act or the Rules framed thereunder or even in the bye-laws of the Municipal Committee under which an order inflicting the punishment of stoppage of increments on a Municipal employee is appealable to any authority, much less to the Commissioner of the Division. Mr. D. V. Sehgal, the learned senior counsel for the petitioner, further maintains that right of appeal being a statutory right-there being nothing inherent about it-the respondent could not impugn order Annexure P3 before the Commissioner in the absence of any provision of law entitling him to maintain the appeal. I find the learned counsel is right there.
(3.) It may be pointed out here that respondent No. 1 has not only failed to contest the above-noted stand of the learned counsel for the petitioner by filing a written statement to the petition but his learned senior counsel Shri J. L. Gupta is also not in a position to refer to any provision of law under which the above-noted appeal before the Commissioner was preferred by his client. The learned, counsel however, contends that since the very charge-sheet (Annexure P 1) was served on the petitioner in compliance with the provisions of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 and the whole enquiry was held in accordance with the said rules, the appeal was competent in terms of rule 15 of those Rules. The learned counsel further seeks to urge that since the enquiry was held strictly in accordance with the provisions of the above-noted Rules, the Commissioner was well justified in treating the appeal as one under the said Rules and the petitioner-Committee cannot be allowed to shift its position by contending that the above-noted Rules were not applicable to the petitioner insofar as the question of assailing the punishment awarded to respondent No. 1 was concerned. I see no merit in this stand of the learned counsel for the short reason that there cannot possibly be any estoppel against law. In case the above-noted rules did not apply or entitle respondent No. I to prefer an appeal against order annexure P 3, no amount of submission or concession on the part of the petitioner in mentioning that the enquiry was held against respondent No. 1 in accordance with the above-noted appeal and punishment rules can either make the rules applicable to the case of respondent No. 1 or vest respondent No. 1 with a right which cannot now be impugned or assailed by contending that the said appeal was competent. No party to a lis can be debarred from showing the applicability or non-applicability of any provision of law in the form of a statute, rule or bye-law. As already pointed out, to my mind, the above-noted appeal and punishment rules did not entitle respondent No. 1 to assail order annexure P 3 by way of appeal before the Commissioner.;