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Madhya Pradesh High Court · body

2003 DIGILAW 618 (MP)

Qamar Ali v. Municipal Corporation, Bhopal

2003-04-25

S.P.KHARE

body2003
JUDGMENT This is a writ petition under Article 226 and 227 of the Constitution of India challenging the order dated 25.9.1990 of the respondent by which the petitioner has been dismissed from service. It is not in dispute that the petitioner was appointed as pump operator by the Standing Committee of the Municipal Council, Bhopal from 4.2.1964. He was charge-sheeted on 29.12.1986 for remaining absent from duty on 5.11.1986 from the Filteration Plant at Idgah Hills, Bhopal. It is said that more chlorine passed in the water because of his absence and that was injurious to publio health. It was stated in the' 'imputations of misconduct" served with the charge-sheet. The petitioner admitted in his reply that he was absent from duty at the time of inspection". He pleaded that he left the place of duty because of his illness. The enquiry officer after holding the inquiry gave the finding that the charge was proved against the petitioner and there was no justification for his absence. A show-cause notice was issued to the petitioner alongwith a copy of the inquiry report dated 30.9.1988. The petitioner took time to submit reply but he did not do so and, therefore, the order of dismissal of his service was passed by the Administrator of the Municipal Corporation. The petitioner's case is that he was not supplied the copies of the documents which were relied upon to prove the charge against him and, therefore, the inquiry is vitiated. The petitioner was given an opportunity to inspect these documents. Another ground on which the impugned order of dismissal from service has been challenged is that there was no previous consultation with the Public Service Commission as required by section 60(6) of the M.P. Municipal Corporation Act, 1956. It is also stated that the punishment of dismissal from service is highly disproportionate for the minor misconduct of absence from duty. The respondent has not filed any return. It has been argued that the petitioner was given full opportunity to inspect the documents on which reliance was placed. It is also submitted that the finding of the enquiry officer cannot be said to be perverse or unreasonable as it was an admitted fact that the petitioner was absent from his duty at the time of inspection and he could not justify his absence from duty. It is also submitted that the finding of the enquiry officer cannot be said to be perverse or unreasonable as it was an admitted fact that the petitioner was absent from his duty at the time of inspection and he could not justify his absence from duty. It is also stated that the non-consultation with the Public Service Commission does not vitiate the impugned order and the punishment imposed by the respondent for the maintenance of discipline cannot be interfered with by the Court. The points for determination are (a) whether the inquiry is vitiated because the copies of the documents were not supplied to the petitioner; (b) whether the dismissal order suffers from illegality as there was no consultation with the Public Service Commission and (c) whether the punishment imposed upon the petitioner is shockingly disproportionate requiring interference by this Court. Point (a) : The rules do not require supply of copies of the documents. It is admitted that the petitioner was given an opportunity to inspect the documents. The petitioner admitted in his reply that his duty was from 4 p.m. to 12' 0 clock in the night on 5.11.1986 at Idgah Filteration Plant and he was absent from that place. He pleaded that he had left the place of duty because of his illness. That plea was not accepted by the Enquiry Officer. The Court cannot interfere with the finding of fact arrived at by the Enquiry Officer as it cannot be said to be perverse. There was material to base the finding. It has been held by the Supreme Court in Syed Rahimuddin v. Director General, C.S.I.R., AIR 2001 SC 2418 that the finding of fact arrived at in a departmental inquiry can be interfered with by the Court only when there are no materials for the conclusion or when on the materials the conclusion could not be that of a reasonable man. In the present case, there was material and therefore the finding cannot be said to be perverse. The petitioner was admittedly absent from duty. In the present case, there was material and therefore the finding cannot be said to be perverse. The petitioner was admittedly absent from duty. Point(b): It is argued on behalf of the petitioner that he was appointed by the Standing Committee of the Municipal Council, Bhopal by order dated 4.2.1964 (annexure-A) and, therefore, as per section 60(6) of the M.P. Municipal Corporation Act, 1956 the penalty of dismissal from service could not be imposed on him "without previous consultation with the State Public Service Commission". Reliance is placed on the Full Bench decision of this Court in Sudhir Kumar v. Municipal Corporation, Jabalpur. 1978 JLJ 155 = 1978 MPLJ 9 in which it has been held that the provision under section 58(1) of the Act is mandatory. The petitioner was appointed on the post of Pump Operator. This is not a superior post. This appointment was made when there was Municipal Council at Bhopal. The provision in section 60(6) of the Act requiring consultation with the State Public Service Commission is in respect of those officers and servants who are covered by the notification issued by the State Government under section 58(1) of toe Act. The petitioner was not in the category of those officers and servants whose appointing authority was Standing Committee of the Municipal Corporation. The appointment by the Standing Committee of the Municipal Council cannot be equated with the appointment of the officers and servants by the Standing Committee of the Municipal Corporation. It is only in respect of the officers and servants appointed by the Standing Committee of the Municipal Corporation that the consultation with the Public Service Commission is required. It is clear from notification dated 26.10.1988 (Annexure-R/1) produced by the respondent that the appointments to the post carrying pay scale of Rs.1820-3300 and above are required to be made by the Standing Committee of the Corporation. The appointing authority in respect of the employees below this scale is the Commissioner. In the present case, the impugned order of dismissal from service was issued as per orders of the Administrator of the Municipal Corporation. Therefore, the dismissal order in the present case is not vitiated because there was no prior consultation with the Public Service Commission. Point (c) : Keeping in view the facts of the case, the punishment, which has been imposed upon the petitioner cannot be said to be shockingly disproportionate. Therefore, the dismissal order in the present case is not vitiated because there was no prior consultation with the Public Service Commission. Point (c) : Keeping in view the facts of the case, the punishment, which has been imposed upon the petitioner cannot be said to be shockingly disproportionate. It has been held by the Supreme Court in Mithilesh Singh v. Union of India (2003) 3 SCC 309 that the scope of interference with the punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the Court cannot interfere with the same. The petitioner was found absent from duty in the night from the Filteration Plant. It is found from the inquiry report that the petitioner was found absent from duty on earlier occasions also. It is for the employer to enforce discipline amongst its employees. The absence from duty must be viewed seriously unless the employee gives a satisfactory explanation for his absence. In this case, the absence of the petitioner from his duty during night was found to be without any reasonable excuse. Therefore, this Court cannot interfere with the quantum of punishment. The petition is dismissed.