S T DASADIA Vs. COMMISSIONER SURAT MUNICIPAL CORPORATION

JUDGEMENT

(1.) This is a petition by an employee of the Surat Municipal Corporation being aggrieved by the Order Annexure J dated 25 stopping his promotion for five years from the day of the issuance of that order. This penalty had come to be imposed on him by the Municipal Commissioner Surat under secs. 56(1) and 56(2) (c) of the Bombay Provincial Municipal Corporations Act 1949.

(2.) A few facts are required to be stated. On 26-6-1978 the petitioner was given a show cause notice by the Dy. Commissioner. The petitioner filed his reply Annexure-B dated 12-7-1978. Then a show cause notice Annexure C dated 24-8-1978 was issued to the petitioner to which the petitioner had filed his reply Annexure D dated 27-9-1978. This was the preliminary stage of the inquiry and then a regular charge sheet Annexure E came to be issued on 16-10-1975 to which the petitioner had filed his reply Annexure-F dated 21-12-1978. Thereafter the regular inquiry was held and the petitioner had filed his final reply Annexure H dated 20 Then the impugned order Annexure J came to be passed by the Municipal Commissioner which is challenged in this petition. The first point that was urged before me was that the petitioner was not given audience on the question of punishment. Sec. 56(3) of the Act mentions as follows: "No officer or servant shall be reduced to a lower post or removed or dismissed from service under this section unless he has been given a reasonable opportunity of showing cause against such reduction removal or dismissal." However we find that at the bottom of the charge sheet there was such a notice given (page 50 of the compilation of this writ petition) It has been specifically mentioned in paragraph 5 of that notice dated 16 that the petitioner was further told to give his explanation why the punishment of dismissal from service under sec. 56(2)(h) of the Bombay Provincial Municipal Corporation Act 1949 be not imposed on him. This means that he was given a notice as required under sec. 56 of the said Act. After considering the attendant circumstances the disciplinary authority however did not impose on him that extreme penalty but imposed on him the penalty under clause (b) in the form of withholding of his promotion for the period of five years. So this point which was canvassed does not stand in good stead to the petitioner.

(3.) . It was then alleged that the aforesaid notice regarding the punishment amounts to prejudge the issue. Ordinarily it is to be assumed that a responsible public officer would not prejudge that issue and so the words of the notice are to be interpreted to mean that if the charges are ultimately substantiated or held as proved the petitioner should also show cause against the penalty of dismissal from service. This is a reasonable interpretation to be placed in the circumstances of the case. A highly placed public officer cannot be easily charged with such a preconceived notice. If there is any such remote possibility of inference in the present case the Commissioner had imposed on him not the punishment of dismissal which was initially thought possible in this case but imposed on him only withholding of promotion for five years. This is again an indication and in my view a very clear indication that the Commissioner was open on the question of penalty when the above quoted notice was given. It was then alleged that the report of the Inquiry Officers was not given to the petitioner before the impugned order had come to be passed. When the whole inquiry was conducted by the Assistant Commissioner his report one way or the other in the facts and circumstances of the case can be said to have importance. In this case it is to be pertinently noted that the inquiry was held by the Assistant Commissioner whereas the disciplinary authority appears to be the Commissioner himself who has passed the impugned order of penalty. In the circumstances therefore it is obvious that the report was made by the Assistant Commissioner to the Commissioner. As a matter of fact the affidavit in reply filed on behalf of the Corporation clearly admits of a report made by the Inquiry Officer to the disciplinary authority namely the Commissioner. After the order of penalty was passed the petitioner had asked for the copy of the inquiry report by his application dated 14/10/1981 and the said inquiry report was given to the petitioner on 18/11/1981. So the existence of the inquiry report by the Assistant Commissioner made to the Commissioner is a matter of record. Obviously the Commissioner acted on that report. In other words an important document namely the inquiry report which was the basis of the final conclusion. This particular report which was acted upon by the Commissioner was not made available to the petitioner who could have shown that the assess ment of evidentially material by the inquiry officer was not proper. This unfortunately is the important lacuna in the whole of the inquiry. It is true that the petitioner had applied for that report on 14/10/1981 after the penalty was imposed on him but till the order of penalty had come to be passed he did not know that the report would be against him. So there was no occasion for him to ask for the copy of the report earlier.