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Madhya Pradesh High Court · body

2007 DIGILAW 168 (MP)

Jagdish Chandra v. Collector, District Dewas

2007-02-13

J.K.MAHESHWARI

body2007
ORDER (Oral) 1. This petition has been filed by the petitioner invoking the jurisdiction of this Court under Article 226 of the Constitution of India challenging the order Annexure P-5 dated 21.1.2006 by which petitioner, who is Head Clerk-cum-Accountant posted at Nagar Panchayat Bagli, District Dewas has been placed under suspension by the order of Collector, District Dewas. 2. It is the case of petitioner that he was initially appointed in the Nagar Palika Bagli as LDC vide Annexure P-1 and promoted as Head Clerk-cum-Accountant as per resolution No.31 dated 6.12.1994. The order of his promotion was confirmed by the Director of Urban Administration and Development, Government of M.P. on 2.6.1995 vide Annexure P-2. However, it is urged that he is appointed in the Municipal Council Bagli under the provisions of section 94 sub-section (4) of the Municipalities Act, 1961 (hereinafter called as "the Act"). Under sub-section (4) of section 94 of the Act, a municipal employee may be placed under suspension by the President in Council constituted under section 70 of the Act, which is the disciplinary authority under M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (herein after called as "the Recruitment Rules"). It is said that the Collector, Dewas, who has passed the order of suspension Annexure P-5 dated 20.1.2006, is neither his appointing authority nor the disciplinary authority, however, power as exercised by him to place the petitioner under suspension is without any authority under the law, arbitrary, mala fide and illegal. 3. Learned counsel appearing on behalf of petitioner has drawn my attention to rule 51 of the Recruitment Rules, which defines the disciplinary authority, the case in hand, the power of disciplinary authority is vested in the Council or with President in Council. As per rule 53 of Recruitment Rules, the order of suspension may be passed by the disciplinary authority after having regard to the nature of the charges and the circumstances of the case. In the present case power of the disciplinary authority has been exercised by the Collector, who has not been delegated with the powers of disciplinary and competent to exercise such powers under the Recruitment Rules. Therefore, the action of respondent No.1 to place him under suspension is illegal without jurisdiction and void ab initio. In the present case power of the disciplinary authority has been exercised by the Collector, who has not been delegated with the powers of disciplinary and competent to exercise such powers under the Recruitment Rules. Therefore, the action of respondent No.1 to place him under suspension is illegal without jurisdiction and void ab initio. Prayer is made to quash the order of suspension Annexure P-5 passed by respondent No.1 and petitioner may be allowed to work and grant him all consequential and monetary benefits. 4. Per contra, the respondents have filed their return, whereby it is said that as per sections 90, 91 and 92 of the Act, it is the power of State Government to make an alternative arrangement in the absence of Chief Municipal Officer. It is said that the power of Government has been delegated to the Director, Urban Administration, and further it is delegated to the Collector of the concerned district as per Annexure R-2. It is further said that petitioner was given the charge of CMO Bagli under the instructions of Chairman, Nagar Panchayat Bagli in contravention of law and during such period payments have been made by him in between 1.8.2005 to 10.10.2005, when he was given the charge of Chief Municipal Officer, financial irregularities of Rs.16.93 Lacs were committed by him. However, in exercise of powers under section 323 of the Act, the Collector district Dewas has passed the order to hold enquiry against him, as per order Annexure R-4. It is also said that, in exercise of powers as conferred to the Collector of the district vide circular Annexure R-5 dated 23.5.1996, petitioner has been placed under suspension. It is urged, by Shri Lokesh Bhatnagar, Government Advocate that as per Annexure R-5, the powers of rule 9 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 has been delegated to the Collector concerned for Class III and Class IV employees of the Government. Thus, by virtue of circular Annexure R-5, of delegating power of suspension, the Collector of district Dewas has rightly passed the order of petitioner's suspension. 5. It is further said that by virtue of section 322 of Chapter XII of the Act, the powers of inspection and supervision of the councils are vested with the Divisional Commissioner, the Collector or any other officer authorised by the Government in this behalf. 5. It is further said that by virtue of section 322 of Chapter XII of the Act, the powers of inspection and supervision of the councils are vested with the Divisional Commissioner, the Collector or any other officer authorised by the Government in this behalf. However, in exercise of such power of inspection and supervision, the Collector Dewas has rightly passed the order of suspension under section 323 of the Act. In view of the aforesaid, it is urged by Shri Lokesh Bhatnagar, Government Advocate that the powers as exercised by the respondent No.1 is within its competence, under sections 322 and 323 of the Act as well as in view of the circular Annexure R-5 dated 23.5.1996. It is further submitted that the respondent No.1 has exercised the powers in public interest and having regard to the nature and allegation raised against him. Thus, petition filed by the petitioner is devoid of any merit and the same is liable to be dismissed. 6. I have heard learned counsel appearing for the parties and perused the record. On perusal of the record, it is apparent that the petitioner was appointed as LDC and later on promoted as Head Clerk-cum-Accountant by the Municipal Council Bagli and his promotion was confirmed by the Director of Urban Administration and Development Department, Government of M.P., Bhopal. It is not in dispute that the appointment of petitioner has been made as per the provisions of section 94, sub-section (4) of the Act. It is also not disputed that the service conditions of municipal employee are governed by the provisions of the Municipalities Act, 1961 and as per M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968. It is merely said that respondent No.1 has been conferred the power of supervision under the provisions of sections 322 and 323 of the Act, and by the circular of Government of M.P., GAD dated 23.5.1996 Annexure R-5, Collector is competent to suspend Class III and Class IV employee. This argument needs inadvertence in lieu of basic provisions of the Act and Recruitment Rules. 7. It is seen from the record that vide Annexure P-2 the post on which petitioner was appointed, has been notified under sub-section (4) of section 94 of the Act. This argument needs inadvertence in lieu of basic provisions of the Act and Recruitment Rules. 7. It is seen from the record that vide Annexure P-2 the post on which petitioner was appointed, has been notified under sub-section (4) of section 94 of the Act. As per section 95 of the Act, the State Government is empowered to frame the rules to regulate the service conditions of the employees of the Municipalities. In exercise of those powers, the Government of M.P. has framed the rules, which are known as M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968. Rule 51 specifies the disciplinary authority and rule 53 deals with suspension, pending disciplinary inquiry, however aforesaid rules are being quoted herein below: "51. Disciplinary authorities. -- Subject to the provisions of the Act and these rules the Municipal Council shall have the powers to impose any of the penalties specified in rule 49 on any municipal employee holding post specified in sub-section (4) of the section 94 of the Act and in the case of other municipal employees the Standing Committee shall have the power to impose any of the said penalties on him. 53. Suspension pending disciplinary proceeding. -- (1) If having regard to the nature of the charges and the circumstances in any case, the disciplinary authority which initiates any disciplinary proceeding, is satisfied that it is necessary or desirable to place under suspension a municipal employee against whom such proceedings are stated, it may pass an order place him under suspension." 8. Bare perusal of the said Rules indicates that Municipal Council shall have the power to impose any of the penalty under rule 49 on any municipal employee holding the post specified under sub-section (4) of the section 94 of the Act, and in other cases standing committee shall have the same power. As per rule 53, the disciplinary authority is competent to initiate the disciplinary proceedings, having regard to the nature of the charges and the circumstances of the case, if any, such authority may also place the employee of the Municipal Council under suspension against whom, the disciplinary proceedings have been initiated. In view of the aforesaid provisions, it is apparent that the employees of the Municipal Council, who were appointed under section 94 sub-section (4) of the Act, are governed by the aforesaid Rules. 9. In view of the aforesaid provisions, it is apparent that the employees of the Municipal Council, who were appointed under section 94 sub-section (4) of the Act, are governed by the aforesaid Rules. 9. On going through the order of suspension Annexure P-5, it is apparent that the Collector has exercised its power conferred to him under rule 9(1) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. This circular dated 23.5.1996 Annexure R-5 indicates the delegation of power of rules 9 and 10 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 made by the Government to the Collector of the district to suspend class III and IV Government employees. But in the present case, undisputedly petitioner is the Municipal employee and his service is governed by the provisions of Municipalities Act, and by the Recruitment Rules, whereby the power to suspend the municipal employee is vested to the Municipal Councilor President-in-Council, i.e., the disciplinary authority for such employees. The respondents have not filed any document indicating the delegation of powers of section 94(4) (5) of the Act, and of rules 51 or 53 of the Recruitment Rules. Thus, by virtue of delegation of power, made to the Collector vide Annexure R-5 dated 23.5.1996, of rules 9 and 10 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, the Collector ipso facto cannot acquire the power to suspend municipal employees, whose services are governed by the provisions of the Municipalities Act, 1961 and the Rules made thereunder. In view of the foregoing, the power as exercised by the Collector, Dewas (respondent No.1) to place the petitioner under suspension is without any authority under the law and the order of suspension passed by him is without jurisdiction. 10. Now the arguments as advanced by the learned counsel for respondents with respect to exercise of powers under section 322 and 323 of the Act is also required to advert here. Under section 322 of Chapter XII of the Municipalities Act, 1961 the powers of inspection and supervision are with the Divisional Commissioner, the Collector and any other officer as specified by the Government for inspection of the record and other proceedings of the council. Such power of inspection and supervision can be exercised for the purposes ascribed under section 322(a) (b) (c) (d). Such power of inspection and supervision can be exercised for the purposes ascribed under section 322(a) (b) (c) (d). As per section 323, the Divisional Commissioner or any other officer authorised by the State Government can suspend the execution of resolution, order or prohibit any Act, which is to commence by the Council. However, by the language of sections 322 and 323 of the Act, the respondent No.1 do not have power to pass the order of suspension of the employees of Municipal Council. It is required to explain here that under the power of supervision, the Commissioner, the Collector or any other officer authorised by the Government, have been entrusted with the power of supervision to look after the proceedings and to supervise the work of the Council under benevolence of sections 322 and 323 of the Act. The power of disciplinary authority to suspend a municipal employee is not vested with the Collector. Thus, the arguments as advanced by the Government Advocate is meritless and of no substance. 11. In view of the discussion made herein above, it is apparent that employee of the Municipal Council can be placed under suspension by the disciplinary authority, if such authority is satisfied having regard to the nature of charges and the circumstances of the case. The Government of M.P. has not delegated the power of disciplinary authority to the Collector, district Dewas under the Act and Recruitment Rules for municipal employees. The powers to place him under suspension is vested with the Municipal Council or with the Standing Committee as per rule 51 of the Rules. The word "Standing Committee" has now been substituted as "President-in-Council" by M.P. Amendment Act No.20/1998 of section 70 of the Municipalities Act. Thus, the power to place the petitioner under suspension may be exercised by the Municipal Councilor by the President Council and not by the Collector, i.e., respondent No.1. In the present case, power to suspend the petitioner has been exercised by respondent No.1, which is without any authority under the law, therefore, the order to place the petitioner under suspension passed by the Collector Dewas (respondent No.1) is without jurisdiction and void. 12. In the present case, power to suspend the petitioner has been exercised by respondent No.1, which is without any authority under the law, therefore, the order to place the petitioner under suspension passed by the Collector Dewas (respondent No.1) is without jurisdiction and void. 12. Consequently this petition succeeds and is hereby allowed, the order of suspension of petitioner Annexure P-5 dated 21.2.2006 is quashed, and the respondents are directed to forth with pass the order of revocation of suspension of petitioner, and pay all consequential and monetary benefits of the period of his suspension. In the facts and circumstances of the case parties are directed to bear their own costs.