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2012 DIGILAW 997 (MP)

Municipal Council, Morena v. State of M. P.

2012-10-05

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
Judgment Shri Gangele, J.- 1. The appellants have filed this appeal against the order dated 22/08/2012, passed by the learned Single Judge in Writ Petition No. 5623 of 2012. The respondent No. 3 was placed under suspension vide order dated 12/03/2012. It is mentioned in the order of suspension that the respondent No. 3 was placed under suspension on account of irregularities vide resolution dated 03/03/2012 passed by the President-in-Council. 2. The respondent No. 3 challenged the aforesaid order of suspension in the writ petition on the ground that the President-in-Council had no power and authority to pass the order of suspension. The learned Single Judge allowed the petition of the respondent No. 3 on the ground that President-in-Council had no power and authority to place an employee, who is Accounts Officer, under suspension. 3. It is an admitted fact that the respondent No. 3 was working as Accounts Officer. Section 94 of M.P. Municipalities Act, 1961 [hereinafter referred to as 'the Act, 1961'] prescribes provision in regard to appointment of staff. The relevant subsection (1) of Section 94 of the Act, 1961 is as under:- 94(1). Appointment of staff.- Every Council having an annual income of five lakhs of rupees or more shall, subject to rules framed under Section 95, appoint a Revenue Officer and an Accounts Officer and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties. From the aforesaid Section, it is clear that the Council has power to appoint an Accounts Officer subject to confirmation by the State Government as per sub-section (4) of Section 94 of the Act, 1961. The relevant sub-section (4) of Section 94 of the Act, 1961 is as under:- 94(4).The appointment of Revenue Officer, Accounts Officer, Sanitary Inspector [Sub-Engineer], Revenue Inspector and Accountant shall be subject to confirmation by the State Government and no such post or the post of any other officer or servant as may be specified by the State Government in this behalf shall be created or abolished and no alteration in the emoluments thereof shall be made without the previous approval of the State Government, and every appointment to, and dismissal from such post, shall be subject to a like approval. Sub-section(5) of Section 94 of the Act, 1961 further prescribes that no order of suspension for a period exceeding one month shall be passed against any officer without previous approval of the State Government. The relevant sub-section (5) of Section 94 of the Act, 1961 is as under:- 94(5). No order of suspension for a period exceeding one month shall be passed against any officer mentioned in or specified under subsection (1) and no resignation tendered by any such officer shall be accepted without previous approval of the State Government. 4. The State Government has also framed Rules in exercise of powers conferred by Section 70 and 110 read with Sections 355 and 356 of the Act, 1961, named as "The Madhya Pradesh Municipalities (The Conduct of Business of the Mayor-in-Council/President-in-Council and the Powers and Functions of the Authorities) Rules, 1998 [hereinafter referred to as 'the Rules, 1998']. Rule 10 of the Rules, 1998 prescribes powers and functions of the President-in-Council. The aforesaid Rule is as under:- 10. Other powers and functions of the President-in-Council.- The President-in-Council, in addition to the duties vested in it under the Madhya Pradesh Municipalities Act, 1961 or the rules or by-laws made thereunder shall exercise the powers vested in the Council in the following sections of the said Act:- Sections 93(1), 94(1), (2), 121(1), 126, 160, 168(7), 228, 235, 237, 238, 243, 244, 245, 247, 248, 249, 253(1), (3), 255(1), 261, 262(1), (3), 263, 265, 267, 272, 273, 274, 281. 5. From the perusal of the aforesaid Rule, it is clear that the President-in-Council can exercise the powers vested in Council under Section 94(1) of the Act, 1961. Section 94(1) of the Act, 1961 has been quoted above in the order. Section 94(1) of the Act, 1961 gives power to Municipal Council in regard to appointment of the staff. It means that the President-in-Council has also a power to appoint staff. When an authority has a power to appoint a person, then certainly the authority has implied power to place the person under suspension. Section 94(5) of the Act, 1961 prescribes a rider to the effect that no order of suspension shall be passed for a period exceeding one month without previous approval of the State Government. When an authority has a power to appoint a person, then certainly the authority has implied power to place the person under suspension. Section 94(5) of the Act, 1961 prescribes a rider to the effect that no order of suspension shall be passed for a period exceeding one month without previous approval of the State Government. It means that the Municipal Council has a power to suspend an employee for a period of one month and thereafter it has to take approval from the State Government to continue the suspension. This does not mean that the Municipal Council has no power to place an employee, who is Accountant, under suspension. 6. In such circumstances, the President-in-Council had power to place the respondent No. 3 under suspension. The order was already sent for approval to the Commissioner, Local Self Government. The finding of the learned Single Judge that the President-in-Council had no power to place Accountant, the respondent No. 3 under suspension in view of Section 94(4) of the Act, 1961 and Rule 10 of the Rules, 1998, in our opinion, is not proper. 7. Consequently, the appeal is allowed and the impugned order passed by the learned Single Judge is hereby quashed. However, the respondent No. 3 is at liberty to challenge the order if the State Government has not accorded the approval of suspension beyond the period of one month. The writ appeal is disposed of accordingly. No order as to costs.