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Madhya Pradesh High Court · body

2006 DIGILAW 1354 (MP)

ANAND SHARMA v. STATE OF M P

2006-11-30

A.K.GOHIL, P.K.JAISWAL

body2006
Judgment ( 1. ) APPELLANT has filed this writ appeal under Section 2 (1) of Madhya pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, against the order dated 18-10-2006 passed by the Honble Single Judge in W. P. No. 4695/2006 (S ). ( 2. ) BRIEF facts of the case are that the appellant is an employee of Nagar panchayat, Phoopkalan. He was working on the post of Revenue Inspector. Thereafter, he was promoted on the post of Accountant; but after sometime the order of Accountant was cancelled, which is also under challenge in some other writ petition. The State Government vide order dated 18-5-2005 (Annexure p-2) for administrative reasons appointed him as an Incharge Chief Municipal officer of Nagar Panchayat Phoopkalan, District Bhind. He continuously worked on this post and discharged the duties of the Chief Municipal Officer. Vide another order dated 19-7-2006, the Commissioner-cum-Secretary, Urban administration and Development M. P. suspended the appellant from the post of chief Municipal Officer because of committing some irregularities as an incharge Chief Municipal Officer, Phoopkalan. ( 3. ) APPELLANT challenged the aforesaid order of suspension in W. P. No. 4695/06 (S ). His main contention is that his original post is Accountant and he is governed by the M. P. Municipalities (Recruitment and Conditions of Services)Rules, 1968, (hereinafter for short referred to as "rules of 1968"), therefore, his lien has not been changed. He has not been promoted as a regular C. M. O. , therefore, as per the Rules of 1968, an employee of Nagar Panchayat can only be suspended by the Nagar Panchayat and not by the State Government or by the commissioner-cum-Secretary, Urban Administration and Development M. P. , therefore, the order of suspension is without jurisdiction. ( 4. He has not been promoted as a regular C. M. O. , therefore, as per the Rules of 1968, an employee of Nagar Panchayat can only be suspended by the Nagar Panchayat and not by the State Government or by the commissioner-cum-Secretary, Urban Administration and Development M. P. , therefore, the order of suspension is without jurisdiction. ( 4. ) LEARNED Single Judge after hearing the learned Counsel for the parties has held that this contention of the appellant-petitioner is covered under section 90 (4) of the M. P. Municipalities Act, 1961 (hereinafter for short referred to as "act of 1961") read with Rule 51 of the Rules of 1968, and after considering the provisions of Section 89 (1-A) of the Act of 1961 has held that under the aforesaid provisions and since the suspension has also been approved by the President of Nagar Panchayat, Phoopkalan, there is no illegality in issuing the order of suspension and putting the services of the appellant under suspension and dismissed the aforesaid writ petition, against which the appellant has filed this writ appeal. ( 5. ) SHRI M. P. S. Raghuwanshi, learned Counsel for the appellant submitted that the petitioner-appellant has not been promoted in the regular cadre of C. M. O. and since he has not been promoted in the aforesaid cadre, therefore, his original post of Accountant is intact and his services are governed by the Rules of 1968 and under Rule 51, Municipality is empowered to take action. Therefore, the only Nagar Panchayat, Phoopkalan can pass an order of suspension. He has further submitted that though the learned Single Judge has mentioned in his impugned order that the President has approved the action, but neither the respondents nor the Nagar Panchayat, Phoopkalan have produced any such document showing the approval of the order of suspension. Therefore, his submission in nutshell is that the order passed by the commissioner-cum-Secretary of the Urban Administration and Development of m. P. is absolutely illegal and without jurisdiction. His further submission was that even sub-section (1-A) of Section 89 or sub-section (4) of Section 90 does not provide any power to the Commissioner-cum-Secretary to issue an order of suspension. Therefore, his submission in nutshell is that the order passed by the commissioner-cum-Secretary of the Urban Administration and Development of m. P. is absolutely illegal and without jurisdiction. His further submission was that even sub-section (1-A) of Section 89 or sub-section (4) of Section 90 does not provide any power to the Commissioner-cum-Secretary to issue an order of suspension. The services may be controlled by the State Government; but even for committing the irregularities on the post of C. M. O. , the action can be taken by the Nagar Panchayat Phoopkalan and not by the Commissioner-cum-Secretary of the Urban Administration and Development M. P. ( 6. ) IN reply, Smt. Ami Prabal supported the impugned order and submitted that under sub-section (1-A) of Section 89 read with sub-section (4)of Section 90 of the Act of 1961 when the appellant was working as a Chief municipal Officer, may be as Incharge, but that gives power to the State government as well as to the Commissioner-cum-Secretary to control the services and to put him under suspension for irregularities committed by him. ( 7. ) HAVING heard the learned Counsel for the parties, we have also perused the factual aspect of the matter as well as the provisions cited by the learned Counsels for the parties. Relevant provisions of Sections 89 and 90 of the M. P. Municipalities Act, 1961 are being reproduced below:- "89. Appointment to State Municipal Service pending constitution thereof etc.- (1) Pending the constitution of the State Municipal Service under sub-section (1) of Section 86 or when no member of such service is available for appointment as Chief Municipal Officer, Health officer or Engineer, as the case may be, the State Government may depute an officer of Government or appoint any person qualified to be a member of such service to act as Chief Municipal Officer, health Officer or Engineer, as the case may be. (1-A) The State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one council to another. 90. Arrangement during leave of absence of Chief Municipal officer.- (1) The State Government may grant leave of absence to the Chief municipal Officer. (1-A) The State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one council to another. 90. Arrangement during leave of absence of Chief Municipal officer.- (1) The State Government may grant leave of absence to the Chief municipal Officer. (2) During any absence on leave of the Chief Municipal Officer for a period of not exceeding thirty days at a time the State government may appoint a person to act as the Chief Municipal officer. (3) During any absence on leave of the Chief Municipal Officer for a period not exceeding thirty days at a time, the State Government may make such local arrangement for carrying on the duties and functions of the Chief Municipal Officer as may be necessary. (4) Every person appointed under sub-section (2) or (3) shall exercise all powers conferred, and perform the duties imposed on the Chief Municipal Officer by or under this Act or by or under any enactment for the time being in force and shall be subject to the same liabilities, restrictions and conditions to which the Chief municipal Officer is liable. " ( 8. ) ON bare perusal of the aforesaid provisions of Sections 89 (1 -A) and 90 (4) of the Act of 1961, it is clear that Section 89 provides powers to the State government that when no member of such service is available for appointment as Chief Municipal Officer, the State Government may depute an officer of government or appoint any person qualified to be a member of such service to act as Chief Municipal Officer, as the case may be. Sub-section (1-A) of Section 89 of the Act of 1961 further provides that the State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one Council to another. Sub-section (1-A) of Section 89 of the Act of 1961 further provides that the State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one Council to another. Section 90 (1) of the Act of 1961 provides for making arrangements during leave of absence of Chief Municipal Officers and in that case, the State Government may grant leave of absence to the Chief Municipal Officer and sub-section (4)provides that every person appointed under sub-section (2) or (3) shall exercise all powers conferred, and perform the duties imposed on the Chief Municipal officer by or under this Act or by or under any enactment for the time being in force and shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. Therefore, on the plain reading of section 89 specifically provides power to the State Government to appoint any person as Chief Municipal Officer and to exercise the powers of control over him and Section 90 clearly provides that in any contingency when a regular person is on leave of absence, the State Government can appoint any other person to perform the duties of the C. M. O. imposed by or under this Act or by or under any enactment for the time being in force and shall also exercise all powers conferred on him and in that case, he shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. ( 9. ) THE words "powers of control" have been used in sub-section (1-A)of Section 89 of the Act of 1961. In common parlance the meaning of word "control" is also to govern, to dominate, to rule and direct and to have under command and authority over, to have authority over the particular matter. In the case of Bharat Bhushan Vs. Cinema and City Magistrate, reported in AIR 1956 allahabad 99, the Division Bench of Allahabad High Court has held that:-"the word "control" is not confined to mere regulation. It is more comprehensive and includes domination or command over an inferior. No doubt, the State Government can lay down general rules or instructions for the guidance of the District Magistrate in the exercise of his discretion. It is more comprehensive and includes domination or command over an inferior. No doubt, the State Government can lay down general rules or instructions for the guidance of the District Magistrate in the exercise of his discretion. But the "control" envisaged in the section is not confined to the issuing of mere general directions; it includes an interference on the part of the State Government with the individual decision of a particular case by the District magistrate. " In the case of Corporation of the City of Nagpur Vs. Ramchandra G. Modak, reported in AIR 1984 SC 626 , it was held by the Supreme Court that:- "the term "control" is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned. Section 59 (3) (b) of the City of Nagpur Corporation act of 1950, in express terms authorises and clothes the Municipal commissioner with the power to exercise supervision and control over the acts of Municipal Officers and servants. It was held that the Commissioner, Municipal Corporation functions the power to suspend Municipal employee pending departmental enquiry. The supreme Court has held that when the words "control" and "vests" are read together, they are strong terms which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal corporation. The term "control" is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned. Suspension from service pending disciplinary enquiry falls within the ambit of the word "control". In the case of State of West Bengal Vs. Nripendra Nath Bagehi, reported in air 1966 SC 447 , while interpreting a similar language employed in Article 235 of the Constitution of India which confers control by the High Court over district Courts, the Supreme Court held that the word "control" would include the power to take disciplinary action and all other incidental or consequential steps to effectuate this end. In the light of Article 235 of the Constitution of india, in which the word "control" has been used, it was held that the High Court is made the sole custodian of the control over the subordinate judiciary, therefore, is not merely the power to arrange the day to day working of the Court but contemplates disciplinary jurisdiction over the Presiding Judge. Again in the case of Chief Justice of Andhra Pradesh Vs. L. V. A. Dikshitulu reported in AIR 1979 SC Page 193, the Supreme Court has held that :-The word "control" included the passing of an order of suspension and that the power of control was comprehensive and effective in operation. In this connection Sarkaria, J. , speaking for the Court, observed that under Article 235, control of the High Court is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes : (a) Disciplinary jurisdiction and a complete control and in exercising of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal. While considering the meaning of the word "control" under Article 235, the Honble Supreme Court again in the case of Baradakanta Mishra Vs. High court of Orissa, reported in AIR 1976 SC 1899 has held that :-"the word "control" means something in addition to that mere superintendence of the Courts. The control is over the conduct and discipline of Judges. The High Court can make enquiries into the disciplinary conduct under the power of control. " Therefore, according to the aforesaid interpretation, it is clear that the meaning of word "control" implies not only a dominant or controlling the management, but it is exercised by superior authority in exercise of its superior powers which clearly mean to regulate and to hold and to enquire disciplinary jurisdiction. ( 10. ) ADMITTEDLY, in this case, there is no dispute about the facts of the case. ( 10. ) ADMITTEDLY, in this case, there is no dispute about the facts of the case. Vide order datedl8-5-05, the appellant was made as Incharge C. M. O. of nagar Panchayat, Phoopkalan, and he was continuously working on that post and performing the duties and exercising all powers of C. M. O. ; and for committing some irregularities, he was placed under suspension vide order dated 19-7-2006, i. e. , after a period of 14 months, which also clearly indicates that his additional charge was not of a temporary in nature for a particular period,but he was continuously enjoying the powers of Chief Municipal Officer. As has been argued by the learned Counsel for the appellant, the question in this case is whether, under these circumstances, the order passed by the commissioner-cum-Secretary for placing him under suspension can be covered within the provisions of sub-section (1-A) of Section 89 under the power of control and sub-section (4) of Section 90 of the Act of 1961. Though Shri M. P. S. Raghuwanshi vehemently argued, but considering the aforesaid provisions and the background of the facts, and the clear meaning of word "power of control" we are also of the same view that if an Officer though not promoted under the cadre of C. M. O. , but if he was given additional charge or was made Incharge c. M. O. and was exercising the powers of the post, was under the "control" of the state Government as provided in sub-section (1-A) of Section 89 read with sub-section (4) of Section 90 of the Act of 1961. Sub-section (1-A) of Section 89 provides the powers to the State Government to "control over" the person and the person so appointed shall exercise all the powers and perform the duties imposed on him under the Act and he shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. The plain and simple interpretation of the aforesaid provisions is that if a person is exercising the powers and performing the duties, the State Government shall have the powers to control over the person, therefore, at this stage, he cannot argue that his suspension is illegal or without jurisdiction. In fact, power of suspension is included in power to control. The plain and simple interpretation of the aforesaid provisions is that if a person is exercising the powers and performing the duties, the State Government shall have the powers to control over the person, therefore, at this stage, he cannot argue that his suspension is illegal or without jurisdiction. In fact, power of suspension is included in power to control. Admittedly, the order Annexure P-2 for posting him as an Incharge C. M. O. has been passed by the State Government and during that period he was under the control of the Government, therefore, for committing irregularities the Commissioner-cum-Secretary of the Urban administration and Development M. P. was fully competent not only to recall the aforesaid order but to place him under suspension because when the order was passed by the State Government to permit him to perform the duties as a C. M. O. , the order was under same liabilities, restrictions and conditions and in that case it cannot be argued that the State Government shall have no powers to suspend him and for that purpose looking to his original cadre or the original post it is the only Nagar Panchayat which can pass orders. Though the learned Counsel for the respondents could not point out whether the order was approved by the president or not nor any such order has been filed or placed on record before us, but even otherwise even if the order is not approved by the President or by nagar Panchayat, Phoopkalan, the order passed by the Commissioner-cum-Secretary will not be illegal and without jurisdiction because he, for that purpose when he was working on the post of Incharge CMO, was directly under the control of the State Government for all purposes including for disciplinary action and suspension. ( 11. ) IN view of the above, we hold that when appellant was holding the charge of the post of C. M. O. on the orders passed by the State Government, he shall be under the control of the State Government and the State Government shall have powers to control his services and for taking disciplinary action against him including suspension. Consequently, we do not find any scope for interference in this writ appeal filed by the learned counsel for the appellant. Consequently, this appeal fails and is hereby dismissed. Writ Appeal dismissed.