S. L. TALATI, J. ( 1 ) THE petitioner is the resident of Jamnagar and he was serving as Chief Officer of Jamnagar Municipality. It appears that he was first appointed on 2 1963 as an Engineer in Jamnagar Municipality. Thereafter he was placed in charge as Chief Officer on 12-8-1971. From 14-11-1975 he served as officiating Chief Officer of the Municipality. Ultimately Jamnagar Municipal Public Service Commission made recommendation that he was fit to be appointed as Chief Officer of Jamnagar Municipality and that recommendation was made on 20-2-1976. Thus the petitioner at the relevant time was working as Chief Officer of Jamnagar Municipality. Ultimately on 27-9- 1976 Jamnagar Municipality was superseded. It appears that as the Municipality came to be superseded an Administrative Officer was appointed and he took over the charge. While he was holding the charge he had ordered the physical verification of various departments and ultimately between 5-10-1976 and 10-11-1976 physical verification of Electrical and Mechanical stores was done by the Auditor. The Auditor was helped by Store clerks and ultimately the Auditor submitted two reports; one report was submitted on 10-11-1976 and another report was submitted on 9-12-1976. As a result of the reports of the Auditor on 10-12-1976 the Administrator issued a memo to the petitioner and also to the Issue Clerk of Electrical and Mechanical Engineering Stores. In this petition we are not concerned with the memo issued to the Issue Clerk of Electrical and Mechanical Engineering Stores because he is not party to this petition. In the memo it was stated that there was difference between the existing electrical-materials in the department and the books maintained for the purpose and the value of the difference came to Rs. 4 21 421 The petitioner was asked to submit explanation on or before 14-12-1976 and it was stated that the responsibility will thereafter be fixed. Electrical and Mechanical Engineering Store Issue Clerk wrote a letter on 10-12-1976 to the Chief Officer stating that the posting of several issue orders was not done and the accounts were incomplete and the verification was required to be done and that he would try to complete the work by 14-12-1976. It appears that thereafter ultimately on 18-12-1976 the Administrator issued a charge-sheet against the present petitioner. Five allegations were made in the Charge-sheet. It appears that thereafter ultimately on 18-12-1976 the Administrator issued a charge-sheet against the present petitioner. Five allegations were made in the Charge-sheet. The first allegation was that the Chief Officer failed to perform his duty inasmuch as according to Rule 138 of the Bombay Municipal Account Code 1961 the physical verification of the Stores was not regularly done and that he again failed in his duty inasmuch as as per Jamnagar Municipal Committee Rule 31 he did not get the verification done of the stores from Electrical and Mechanical Engineering Stores Issue Clerk and that he did not obtain a proper certificate from him and did not submit the same to the President. The second allegation was that he did not supervise the stores which were in charge of the said Issue Clerk and pal particularly the Water Works Stores and Light Branch stores and thus failed in his duty in keeping proper control over the subordinates and that he did not check the registers Bin-cards of the Electrical and Mechanical Stores regularly and did not Sign them regularly or signed them mechanically or knowingly and thus he was negligent in his duty. It is not necessary to mention charge no. 3 because that charge is held not proved by the Inquiry Officer who was ultimately appointed. Charge no. 4 was that according to the report of the Auditor dated 9-12-1976 there was deficit to the tune of Rs 4 20 916 and though the time was given no effort was made to complete the deficit by taking proper regular measures. Charge no. 5 was that during checking on 16-12-1976 it was found that he had failed to keep proper supervision and control over his subordinates and that the Store clerks in the Electrical and Mechanical Departments had failed to give proper explanation. On that very day one Shri B. C. Hathi a retired Deputy Collector came to be appointed as an Inquiry Officer. Immediately therefter on 22-12-1976 the petitioner applied for inspection of the documents and in fact he had asked for the inspection of 20 documents and it was stated by him that for explanation the time given of four days was so short that is was necessary to extend that time. On 24-12-1976 the Administrator gave a reply and in that reply it was stated that he was permitted to inspect the documents at serial nos. On 24-12-1976 the Administrator gave a reply and in that reply it was stated that he was permitted to inspect the documents at serial nos. 4 6 7 and 8. He was also told that the document at sr. no. 10 was given to him along with the charge-sheet. It was further stated that the documents at sr. nos. 9 11 12 and 15 will be shown to him during the inquiry. It was also stated that the documents at serial nos. 5 16 and 17 were not in existence and the other documents were not relevant. Thereafter it appears that written arguments were submitted on 21-2- 1977 On 14-4-1977 the Inquiry Officer gave a report. The Inquiry Officer came to the conclusion that the allegations at sr. nos. 1 2 and 4 stated in the charge-sheet were proved and the allegations at sr. nos. 3 and 5 were not proved. ( 2 ) THE petitioner was given second show-cause notice on 22-4-1977 and he was asked to show cause as to why he should not be dismissed. He gave reply on 11-5-1977. After considering that reply an order was passed on 1-8-1977 and the petitioner came to be dismissed. That order is now challenged by filing this petition before this Court. ( 3 ) LEARNED advocate Shri Vakil who appeared on behalf of the petitioner submitted three points so far as the petitioner is concerned. The first point submitted was that the order was bad because the relevant documents were not supplied to the petitioner. The second point which was taken was that Shri Hathi who was appointed as Inquiry Officer had no jurisdiction and his appointment was bad. The third point which was raised was that the order was not a speaking order and it suffered from non-application of mind. ( 4 ) REGARDING the first submission of learned advocate Shri Vakil it may be stated that a list of 20 documents is given on page 42. Having gone through that list it clearly appears to me that the documents at sr. nos. 1 2 3 18 19 and 20 were relevant and they were required to be furnished to the petitioner. Now at sr. No. 1 is the document dated 17-9-1976 by which the Government passed an order by which the Municipality came to be superseded. Having gone through that list it clearly appears to me that the documents at sr. nos. 1 2 3 18 19 and 20 were relevant and they were required to be furnished to the petitioner. Now at sr. No. 1 is the document dated 17-9-1976 by which the Government passed an order by which the Municipality came to be superseded. On the same day the Government passed an order by which the charge of superseded municipality was required to be handed over and the third document was also dated 27-9-1976 by which the Administrator took over the charge from the President of the Municipality. By no stretch of imagination it could be suggested that these documents were not relevant. So far as document at sr. No. 18 is concerned it pertains to a copy of the complaint of theft filed against Light Inspector Shri R. T. Doshi in regard to the theft of tube lights. Now the case of respondent no. 1 is not that the complaint was not filed. Respondent no. I has come out with a case that the petitioner could have obtained the copy from the criminal court. The crux of the problem is that when the copy was available with the municipality itself and when the charge-sheet was submitted to the petitioner in regard to the items which were missing in the Electrical Department this complaint was the most important document which would go to show that the theft of particular number of tube-lights was committed in that particular department on particular date and by a particular person. Now that therefore that complaint was most relevant for the purpose of inquiry. The document at sr. no. 19 was in regard to the resolutions passed by the Executive Committee of the Municipality on various dates in the years 1973-74 and 1976-77 for meeting the scarcity of water in city of Jamnagar. Now the resolutions according to the petitioner were passed by the General Board and the executive committee. Now when the crisis is required to be met on an emergency basis the items are required to be delivered fast by the persons in charge of the department a list of those items was prepared and given. Now the resolutions according to the petitioner were passed by the General Board and the executive committee. Now when the crisis is required to be met on an emergency basis the items are required to be delivered fast by the persons in charge of the department a list of those items was prepared and given. Ultimately according to that list postings are required to be done in the ledger but that might take some time or by negligence it may not be done at all for number of months. But the resolutions etc. would show as to what items were called for on emergency basis and if those things are found out it would be clear that if the items were delivered according to that list to that extent the deficit will go down. It can never be considered by any stretch of imagination that these resolutions were irrelevant for the purpose of this particular inquiry. At Sr. No. 20 the document which was asked for was a copy of a chargesheet which was given to Sulabrai Soni who was serving in the Electrical and Mechanical Stores Issue Department on 18-12-1976 for the deficit of certain items in the Stores. Now it is not imaginable as to how one can say that this document was irrelevant for the purpose of inquiry. Admittedly those documents were not given and therefore the findings were vitiated. Now if I were to set aside the order of dismissal on the ground that these documents were not supplied to the petitioner the order that I was required to pass was that the order of dismissal should be set aside and the inquiry may be started again and the petitioner be supplied with all relevant documents so that he can meet the charge. I am not passing that order because the whole basis on which this inquiry which is started was not required to be started at all and for that purpose one has to look to sec. 49 of the Gujarat Municipalities Act 1963 (hereinafter referred to as the Act ). Sec. 48 of the Act gives power of removal to the municipality so far as the Chief Officer is concerned. Sec. 49 deals with the powers and duties of the Chief Officer. That section is most relevant for the purpose of deciding this matter. 49 of the Gujarat Municipalities Act 1963 (hereinafter referred to as the Act ). Sec. 48 of the Act gives power of removal to the municipality so far as the Chief Officer is concerned. Sec. 49 deals with the powers and duties of the Chief Officer. That section is most relevant for the purpose of deciding this matter. Sec. 49 of the Act reads as under :49 (1) The chief officer shall: (a) subject to the general control of the president watch over the financial and executive administration of the municipality and perform all the duties and exercise all the powers specifically imposed or conferred upon him by or delegated to him under this Act; (b) subject to the provisions of sub-sec. (4) exercise supervision and control over the acts and proceedings of all officers and servants of the municipality as regards appointments referred in clause (c) in matters of executive administration and in matters concerning the accounts and records of the municipality; and subject further to the rules of the municipality for the time being in force dispose of all questions relating to the service of the officer and servants and their pay privileges leave and allowances. . . . . . . . . . . . . . . . . . . (h) report to the president and the executive committee all cases of fraud embezzlement theft or loss of municipal money and property. . . . . . . . . . . . . . . . . . . It may be important to state that the interpretation which is required to be put is only in regard to clauses (a) (b) and (h ). The other clauses are not relevant for the purpose of deciding this matter. ( 5 ) THE learned advocate Shri Nanavaty could not show as to how the charges which are levelled against the petitioner would fall under sec. 49 (1) (a) (b) or (h ). So far as sec. 49 (1) (a) is concerned he has to watch over the financial and executive administration of the municipality which is subject to the general control of the President. Thereafter he is further required to perform all duties and exercise all powers specifically imposed or conferred upon him or delegated by him under this Act. Now so far as sec. 49 (1) (a) is concerned he has to watch over the financial and executive administration of the municipality which is subject to the general control of the President. Thereafter he is further required to perform all duties and exercise all powers specifically imposed or conferred upon him or delegated by him under this Act. Now so far as sec. 49 (1) (b) is concerned it is subject to the provisions of sub-sec. (4 ). Now therefore here the question of sec. 49 does not arise at all. So far as clause (h) is concerned all cases of fraud embezzlement theft or loss of municipal money and property are required to be reported to the President. It is not the case of respondent no. I that any case of fraud embezzlement theft or loss of municipal money and property came to the notice of the chief officer the petitioner which was not reported to the President. A vague general argument was advanced that it was his duty to generally supervise and watch over the financial and executive administration of the municipality. In the affidavit-in-reply it is not specifically stated as to what the chief officer was expected to do and he did not do and so far as the inquiry papers are concerned what has been stated is that he did not follow rule 138 of the Municipal Account Code. So far as Municipal Account Code is concerned rule 138 reads as under:138 Verification of Property-All movable and immovable properties as recorded in the stock books register of movable property and the register of immovable property (Form 96) shall be verified annually. The verifying officer shall initial the entries in the registers and furnish a certificate indicating the results of his verification. Any serious discrepancies shall at once be reported to the President. It refers to Form No. 96. Now Form 96 is regarding immovable property. Here there was no question of immovable property. Now so far as movable property is concerned we have gone through the forms and it appears that there is Form No. 85. It is prescribed by Rule 126 (1) and it is a Register of movable property. It refers to Form No. 96. Now Form 96 is regarding immovable property. Here there was no question of immovable property. Now so far as movable property is concerned we have gone through the forms and it appears that there is Form No. 85. It is prescribed by Rule 126 (1) and it is a Register of movable property. Now though there is no charge that there was a breach of Rule 126 (1) having gone through Rule 126 (1) it clearly appears that there initials necessary are of the Chief officer or the Secretary or in the case of the department under the direct supervision of the municipal engineer of water works superintendent under the initials of that officer. Now therefore the charge in this case is that there was deficit in Electrical and Mechanical Stores and they were in charge of the Electrical and Mechanical Engineering Stores Issue Clerk who was also served with the charge-sheet. Now therefore if any form was required to be maintained under Rule 126 (1) which is prescribed as Form No. 85 it was required to be initiated not by the chief officer but by the officer in charge of that particular department now therefore. neither Rule 126 nor Rule 138 require that the chief officer Was required to verify or initial any register. Now so fat as Form No. 96 is concerned it is in regard to the immovable property which is required to be verified annually. We are not concerned with immovable property. Now so far as Rule 31 of the Jamnagar Municipality Committee Rules is concerned it reads as under:it shall be the duty of each committee to arrange for the due registration upto date and periodical inspection atleast one a quarter of all dead and live stock in its charge by Eleet. and Mech. Engineer and at the close of the calendar year to submit to the executive committee a report as to how for such registration and inspection have been checked by the committee and with what results. What is the condition and value of the stock. What useless stock is to be disposed of and how and what provision will be required in the next years budget for replenishing the stock. What is the condition and value of the stock. What useless stock is to be disposed of and how and what provision will be required in the next years budget for replenishing the stock. now that rule requires that it shall be the duty of each committee to arrange for due registration uptodate atleast once a quarter of all dead and live stock in its charge by Elect. and mech. Engineer and at the close of the calendar year to submit a report etc. to the executive ommittee. The rule does not speak anything about the chief officer at all. Now that therefore when the municipality had appointed Electrical and Mechanical Engineering Stores issue Clerk in charge of the department it was that person alone who was required to see that the register is maintained and it is checked properly by him and verification is done and report was required to be sent to the executive committee. Now that therefore when a particular officer was incharge of the department it is useless to say that the verification was required to be done annually of the Stores by the Chief Officer unless there was a specific provision in the Act to the effect that the duty was cast upon the Chief Officer by a particular section that he himself was personally required to verify a particular register and initial the same and report about the verification to the executive committee or the President. Learned advocate Shri Nanavaty did not point out any section which provided that the Chief Officer had any duty to initial a particular register of the Mechanical or Electrical Stores and that he was personally required to report it either to the executive committee or to the President. It is nobodys case that the chief officer himself committed any fraud. The case was that he was negligent in his duties of supervision. Now unless therefore a duty was cast upon him by a particular section what was required to do was the general supervision and unless something come this so knowledge he cannot become vigilant in that particular matter. It is nobodys case that any one reported to him of any serious discrepancy which ever occurred and he failed to take any initiative and take action. It is nobodys case that any one reported to him of any serious discrepancy which ever occurred and he failed to take any initiative and take action. Under these circumstances I do not see that any violation was done either of the Committee Rules particularly Rule 31 or Rule 138 of the Municipal Account Code or Sec. 49 of the Gujarat Municipalities Act. Under these circumstances the petitioner is bound to succeed. ( 6 ) DURING the pendency of the petition Jamnagar is converted into a city and Jamnagar municipality is substituted by Municipal Corporation of Jamnagar as a result on 13-6-1983 respondent No. 1 was ordered to be substituted and now Municipal Commissioner was ordered to be served as Municipal Corporation of Jamnagar was made a party. However learned advocate Shri Nanavaty filed a vakalatnama on behalf of the duly substituted respondent No. 1. Now therefore when order of dismissal is set aside what is required to be done is that the petitioner is required to be absorbed in the Municipal Corporation Jamnagar and looking to his qualifications he is required to be absorbed as a suitable officer in Jamnagar Municipal Corporation as provided by Part IV of Appendix IV under sec. 493 of the Bombay Provincial Municipal Corporation Act 1949 As a consequence the result would be that this petition is allowed. The charge-sheet and the order of dismissal passed against the petitioner are set aside and respondent No. 1 as a result is directed to pay all back wages and emoluments which may be due to him from the date of passing of the order of termination of his services till this date as if the order of dismissal was not passed and thereafter give him suitable appointment considering his qualifications etc. in accordance with sec. 493 Appendix IV Rule 22 (b) of the Bombay Provincial Municipal Corporation Act 1949. ( 7 ) RULE is made absolute with no order as to costs. Petition allowed. .