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2006 DIGILAW 187 (PAT)

Kedar Lal Gupta v. State of Bihar

2006-02-22

body2006
ORDER 1. Before proceeding with the hearing of the writ case, learned counsel for the petitioner informed this Court that subsistence allowance in compliance of the different orders of this Court passed in the case has been paid in part. 2. Heard learned counsel for the petitioner and the counsel for the Nagar Panchayat, Tekari. 3. Petitioner, who is a Tax Daroga, is aggrieved by the order bearing Memo No. 252 dated 16.9.2005. Annexure-1, issued by the Executive Officer of the Municipality as thereunder he has been placed under suspension on the ground that the Executive Officer being not the appointing authority had no jurisdiction to issue such order as according to the petitioner the Committee formed in terms of Sub-Section (2) of Section 37 of the Bihar Municipal Act 1922, (for short "the Act") comprising the Chairman, Executive Officer and one member elected by the Commissioners is the appointing authority and the said Committee till date has not passed any suspension order. In support of the aforesaid contention learned counsel has relied on the judgment of this Court reported in 1992 BBCJ 156 Paragraph 32 and 2005(2) PLJR 732 . With reference to the second case, it has further been submitted that the subsequent approval of the suspension order by the Board under their resolution dated 21.9.2005 shall also not cure the defect as the order initially being made was without jurisdiction the illegality could not be cured. 4. On the other hand, counsel for the Municipality with reference to Sub-Section (b) of Section 37(B), Rule 3 of the Municipal Officers and Servants (Appointments, Duties, Discipline and Appeal) Rules, for short "Rules" and Rule 2 of the Rules for Regulating Appointment and Qualifications of the Officers and Servants of Municipalities and NAC. 4. On the other hand, counsel for the Municipality with reference to Sub-Section (b) of Section 37(B), Rule 3 of the Municipal Officers and Servants (Appointments, Duties, Discipline and Appeal) Rules, for short "Rules" and Rule 2 of the Rules for Regulating Appointment and Qualifications of the Officers and Servants of Municipalities and NAC. as notified under Standing Order No. 956 dated 25th June, 1977, for short "Standing Order" has submitted that the Executive Officer is the delegatee of the Board of Commissioners besides being the controlling officer of the employees of the Municipality and in the said capacity he had initially placed the petitioner under suspension by the impugned order which was subsequently approved by the Board under their resolution dated 21.9.2005 and the suspension became effective from the date of resolution of the Board which is evident from the subsequent instructions given to the petitioner under letter bearing Memo No. 261 dated 22.9.2005, Annexure-A to the counter affidavit as such there is no illegality in the impugned order. 5. Having heard the counsel for the parties and having perused the relevant provisions of the Act and the Rules and the Standing Order especially Section 37(B) (b) of the Act, Rule 3 of the Rules and Rule 2 (iii) of the Standing Order, I am of the view that the petitioner being a Municipal servant, his appointing authority is the Board of Commissioners and the Executive Officer being the delegatee of the Commissioners as also the controlling officer of Municipal servant was competent and authorised to place the petitioner under suspension subject to further approval by the Board of Commissioners. Since the Board of Commissioners has already approved the suspension under resolution dated 21.9.2005 as such, there .is no illegality in placing the petitioner under suspension. The two case law relied on by the learned counsel for the petitioner has no application to the fact of the present case as in both the reported cases the delegatee of the appointing authority had not placed the petitioner of the two cases under suspension and the suspension order was contrary to the rules. In the present case, petitioner having been placed under suspension by the delegatee of the appointing authority and the appointing authority having already approved the suspension, there is no illegality in placing the petitioner under suspension. 6. This writ application is accordingly dismissed, however, without cost.