Bombay High Court
Dr. Sudhir R. Bhatankar vs The State Of Maharashtra And Ors. on 10 September, 1999
Equivalent citations: (2000)102BOMLR111
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. We have heard the learned Counsel for the parties at length. By consent, the petition is being finally disposed of at this stage. The petitioner challenges legality and validity of continuity of the order of his suspension by respondent Nos. 2 and 3. The petitioner has further prayed for his reinstatement in service under the provisions of Section 56(1)(b) of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as "the Act").
2. The facts of the case are as under:-
The petitioner is a Deputy Municipal Commissioner of the Thane Municipal Corporation. By the order dated 14th November, 1998, the respondent No. 2, Municipal Commissioner, Thane Municipal Corporation, in exercise of his powers under the provisions of Rule 4(1) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (for short "M.C.S. Rules") suspended the petitioner from service. The said order of suspension also petitioner, which are not relevant for deciding this petition. The petitioner was served with a memorandum along with imputation of charges and Annexure 1 and 2 containing the facts in detail on which the allegations were based (for brevity referred to as "charge-sheet") on 17.2.1999. The petitioner submitted his written explanation by his letter dated 22nd March, 1999 denying the charges levelled against him and trying to explain his position. By an order dated 21.5.1999, the Municipal Commissioner in exercise of his powers under Rule 8 of the M.C.S. Rules, appointed an Enquiry Officer to enquire into the charges levelled against the petitioner, regarding the "collapse case of unauthorised building named as Sairaj Apartment at Kisan Nagar No. 3, Wagale Estate, Thane." It is an admitted position that the departmental enquiry is in progress pursuant to the said order.
3. The respondent No. 3 Corporation has filed its affidavit-in-reply to the petition disputing the facts averred by the petitioner and also explaining the background in detail which necessitated the petitioner's suspension from service and a departmental enquiry being held against him as per M.C.S. Rules. The entire episode started with sudden collapse of an unauthorised building known as "Sairaj Apartment" on 7.11.1998, located in "C" zone of Thane Municipal Corporation taking lives of as many as 17 innocent people who were the residents of the building. On the aforesaid pleadings we have heard the learned Counsel for their respective parties.
4. The Municipal Commissioner ordered the said enquiry after having suspended the petitioner under Rule 4 of the M.C.S. Rules. The gist of the charges is that the petitioner as a Deputy Municipal Commissioner had failed to maintain integrity, devotion of duty and that he had willfully and knowingly defaulted/neglected/omitted to get the unauthorised structure "Sairaj Apartments" pulled down and, in particular, the petitioner was charged with an allegation that the portion constructed after the order dated 26.6.1996 was allowed to be unauthorisedly constructed in spite of the Civil Court's order directing the parties to maintains status quo as on the date of the order i.e. 29.6.1996. The learned Counsel for the Municipal Commissioner has emphasised the following relevant events for our consideration.
(i) On 31st May, 1995, the encroachment clerk of the Corporation had reported against the illegal construction being started by the builders of the Sairaj Apartments. This report is on record of the Corporation.
(ii) On 2.6.1996 a suit appears to have been filed by the builder developer of the said building through the tenants of the existing old structure.
(iii) On 29.6.1996 the Civil Court appears to have passed an order of status quo to be maintained by the parties. On this day when the status quo order was passed, there was hardly any work started on the site.
(iv) On 24.8.1996 Senior Inspector of Police had lodged his report with the Corporation, specifically complaining about the dangerous and illegal construction of Sairaj Apartments which was going on.
(v) 26.11.1996 the petitioner had taken charge of the "C" zone of the Corporation as its Deputy Municipal Commissioner.
(vi) 29.5.1997 in spite of the orders of the status quo earlier granted, the builder brazenly continued the construction work and put 5th floor in the said building.
(vii) 11.12.1997 status quo order appears to have been vacated.
(viii) 15.1.1998 appeal filed by the plaintiffs was also dismissed and order of further status quo granted by the Appellate Court also stood vacated on that date.
(ix) 21.1.1998 the building appears to have been completed and was occupied by the unfortunate residents.
(x) 7.11.1998 the Sairaj Apartment collapsed and 17 residents were killed.
5. Shri B.P. Apte, the learned Counsel for the respondents stressed the aforesaid facts resulting into the petitioner's suspension for his gross 'negligence which took toll of 17 innocent lives. The nub of the charges is that, in spite of the report dated 31.5.1995 by the encroachment clerk complaining about the illegal and unauthorised construction of Sairaj Apartments, and in spite of a complaint by the Police Inspector of the concerned police station, the petitioner who took charge on 26.11.1996 did nothing to stop the illegal and dangerous construction. It is further stated in the charge-sheet that in spite of the Court's status quo order, the construction was illegally carried out in violation of the Court's order. Even after the petitioner took charge of the area 26.11.1996, he did nothing in the matter. It is also specifically stated in the charge-sheet that after the petitioner took charge of the "C" zone, he did not instruct the Corporation's Advocate to take out contempt notice against the said builder. It is also stated that no legal action of any nature was initiated by him for a long time till the building collapsed. The charge-sheet also brings on record that on 15.1.1998, the appeal of the builder/tenants was dismissed and the order of status quo was vacated. Even thereafter, the petitioner did not act swiftly to prevent the builder from handing over possession to the flat purchasers who finally came to occupy the building on 21.1.1998 and found themselves in the midst of its debris within 10 months.
6. The aforesaid unfortunate event had naturally rocked the entire city. The Corporation was under severe criticism for its functioning. The petitioner in his written reply to the charge-sheet has stated that since he took the charge of the concerned zone only on 26.11.1998, he should not be held responsible for the acts and/or events which took place prior to that date and the person who was in charge for the relevant period prior to 26.11.1998 should have been held responsible. He, however, succeeded in getting anticipatory bail from this Court on that ground alone. Whether the petitioner is guilty or not will be decided in the departmental enquiry initiated against him and we do not express any opinion on merits of this contention of the petitioner.
7. The Corporation has passed a unanimous resolution on 3.7.1999 refusing to confirm the petitioner's suspension purportedly under Section 56(1)(b) of the Act, and it was resolved to reinstate the petitioner. However, on 31.7.1999 while exercising its plenary power under Section 451 of the Act, the State Government rescinded the aforesaid resolution of the Corporation in public interest.
8. The issue that arises before us is whether the petitioner's suspension order is covered by Section 56(1)(b) of the B.P.M.C. Act, 1949 or is wholly governed by the M.C.S. Rules? According to Shri Dhakephalkar, the learned Advocate for the petitioner, it is a simple case squarely falling, within the four corners of Section 56(1)(b) of the Act. He submits that the petitioner stands reinstated under Section 56(1)(b) of the Act as, the order of suspension passed by the Commissioner having not been confirmed within 6 months by the Corporation, results in the petitioner's suspension being revoked. In support of his submission he relied on the above mentioned resolution of the Corporation not confirming the order of petitioner's suspension. When we repeatedly pointed out to the learned Counsel for the petitioner the order/decision dated 31.7.1999 of the State Government rescinding the said resolution, Shri Dhakephalkar submitted that the said order/decision of the State Government has become irrelevant or redundant for his purpose and that he did not want to challenge the same. His whole reliance was on the operation of Section 56(1)(b) of the Act. He submitted that as soon as the period of 6 months from the date of suspension expired the order of suspension stood revoked and, therefore, there was no necessity of challenging the Government's decision. He also submitted, as the second limb of his argument, that the provisions of M.C.S. Rules do not apply to the Corporation. He however did not elaborate this point any more.
9. On the other hand, Shri Apte, the learned Counsel for the Corporation and the Commissioner submitted that the petitioner's suspension was under Rule 4 of the M.C.S. Rules and not under Section 56(1)(b) of the Act. He, further, submitted that under the said Rules, which are framed under Article 309 of the Constitution of India, and which were adopted by the Corporation vide its Resolution No. 103 dated 19.10.1992, there is no period of limitation in respect of an order of suspension pending enquiry and, therefore, there is no question of expiry of the suspension order on the expiry of the period of 6 months from the date of suspension. He further pointed out that the order of suspension is passed in exercise of Rule 4 of the M.C.S. Rules and the petitioner was suspended pending enquiry. Shri Dhakephalkar did not and could not dispute this factual position that the order was passed under the said rule and that there is no mention of Section 56(1)(b) in the said order.
10. Secondly, Shri Apte pointed out that in the present case, as the petitioner was suspended pending enquiry into the allegations against him, and therefore, Section 56(1)(b) is not attracted in view of its independent proviso which carves out an exception to the main provision. For the sake of convenience we reproduce the entire Section 56 herein below:-
Section 56.
(1) A Competent Authority may subject to the provisions of this Act impose any of the penalties specified in Sub-section (2) on a Municipal Officer or servant if such authority is satisfied that such officer or servant is guilty of a breach of departmental rules or discipline or of carelessness, neglect of duty or other misconduct or is incompetent :
Provided that -
(a) no Municipal Officer or servant whose monthly salary, exclusive of allowances, exceeds (one thousand) rupees shall be dismissed by the Commissioner without the previous approval of the Standing Committee;
(b) any officer or servant whether appointed by the Corporation or any other Competent Authority, except Transport Manager being a Government Officer on deputation, may be suspended by the Commissioner pending an order of the Corporation and when the officer so suspended is the Transport Manager or an officer appointed under Section 45, such suspension with reasons therefor, shall, forthwith be reported by the Commissioner to the Corporation, and such suspension shall come to an end if not confirmed by the Corporation within a period of six months from the date of such suspension:
Provided that, such suspension of an officer or servant pending inquiry into the allegations against such officer or servant shall not be deemed to be a penalty.
(c) the Commissioner may impose any of the penalties as specified in Clauses (a), (b), (d), (e), and (f) of Sub-section (2) on any officer appointed by the Corporation other than the Transport Manager if he is a Government Officer on deputation;
(d) the Municipal Chief Auditor and the Municipal Secretary may impose any of the penalties, specified in Clauses (a), (b), (c), (d) and (e) of Sub-section (2) on any officer or servant immediately subordinate to them subject to a right of appeal to the Standing Committee and the Standing Committee may impose any other penalty on any such officer or servant and may also impose any penalty on any officer or servant immediately subordinate to the Municipal Chief Auditor or the Municipal Secretary;
(2) The penalties which may be imposed under this section are the following, namely :
(a) Censure ;
(b) withholding of increments or promotion including stoppage at an efficiency bar ;
(c) reduction to a lower post or time-scale, or to a lower stage in a time scale;
(d) fine;
(e) recovery from salary of the whole or part of any pecuniary loss caused to the Corporation;
(f) suspension ;
(g) removal from municipal service which does not disqualify from future employment ;
(h) dismissal from municipal service which ordinarily disqualifies from future employment.
(3) No officer or servant shall be reduced to a lower post or removed or dismissed from service under this section unless he has been given a reasonable opportunity of showing cause against such reduction, removal or dismissal :
Provided that, this sub-section shall not apply -
(a) where a person is reduced, removed or dismissed on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the Competent Authority is satisfied that, for reasons to be recorded in writing by such authority, it is reasonably practicable to give that person an opportunity of showing cause.
(4) Subject to the provisions of Clause (d) of the proviso to Sub-section (1), any Municipal Officer or servant who is reduced, removed or dismissed by any authority other than the Corporation may, within one month of the communication to him of the order of reduction, removal or dismissal, appeal to the authority immediately superior to the authority which imposed the penalty and the Appellate Authority may, after obtaining the remarks of the authority which imposed the penalty, either confirm the order passed or substitute for it such orders as it considers just, including an order for the imposition of some lesser penalty, and effect shall forthwith be given to any order passed by the Appellate Authority which shall be conclusive.
(5) With reference to officers and servants appointed under Chapter XX the provisions of this section shall apply as if for the word "Commissioner" the words "Transport Manager" and for the words "Standing Committee" the words "Transport Committee" had been substituted.
Explanation ; (1) For the purposes of this section a Competent Authority is the authority which under the provisions of this Act is competent to make the appointment to the post held by the particular Municipal Officer or servant.
(2). The monthly salary which would ordinarily be admissible to a Municipal Officer or servant on the date immediately preceding the date of the order imposing a penalty shall be deemed to be his salary for the purposes of the proviso to Sub-section (1).
11. It will be evident from the above provisions that the Commissioner is empowered under Section 56 to suspend any officer or servant pending an order of the Corporation. In such a suspension order, he has to give reasons and then approach the Corporation for confirmation. The time limit of 6 months is prescribed in the said section to get the order of suspension confirmed by the Corporation. If the Corporation does not confirm the said order, the said order will come to an end. It is clear from this provision that this clause provides for suspension or by way of penalty for the reasons recorded by the Commissioner till the said suspension order is confirmed or vacated by the Corporation. The said suspension order may be for any purpose, depending upon the administrative exigency or expediency. The proviso to the said section is most relevant for our purpose. It says that if an officer or servant is suspended pending an enquiry into the allegations, such suspension shall not be deemed to be a penalty. It is, therefore, crystal clear that the Commissioner has exercised his powers under Rule 4 of the M.C.S. Rules to suspend the petitioner, pending enquiry into the allegations. The suspension is not by way of imposing any penalty as such but is a suspension pending an enquiry into the allegations levelled against the petitioner. It further means that if the suspension is followed by allegations and enquiry, it is not covered under the main part of Section 56(1)(b) and it cannot amount to any penalty by itself. It further can be seen that the question of suspension by way of penalty preceded by an enquiry is definitely not covered by the main part of the provision, as the Legislature could not have contemplated any limitation for completion of an enquiry within 6 months as is suggested in the main part of the provision. The suspension byway of penalty after holding an enquiry, is therefore, carved out from the main part of the Section 56(1)(b). The purport of the main part to empower the Commissioner to suspend a municipal servant or officer is to meet an urgent or emergent situation and it is also intended that such suspension, if not for any charges or allegations to be enquired into or even if it is by way of penalty, it cannot continue for a long period and in any case not beyond a period of 6 months.
12. In the present case, since the suspension is for holding an enquiry for the charges levelled against the petitioner, the provisions of Section 56(1)(b) will not apply, and therefore; it appears that the resolution of the Corporation was an ill-advised step taken by the Corporators collectively. It is unfortunate that in spite of the seriousness of the event and without trying to find out the guilty person, the Corporators have rushed to pass a resolution to revoke the order of suspension and to direct reinstatement of the petitioner, who is still facing departmental enquiry. According to us, they could not have passed such a resolution purporting to act under Section 56(1)(b) of the Act which had no application to the facts of the case. The learned Counsel for the petitioner has vehemently argued that since the Corporation itself has passed the resolution to reinstate the petitioner under Section 56(1)(b) of the Act, we need not consider any other aspect of the matter. We do not agree with the said submission. If the provision itself is not applicable and if the Corporators were not informed that Section 56(1)(b) was not attracted and that the suspension was under Rule 4 of the M.C.S. Rules, we hold that the said resolution was ultra vires the powers of the Corporation and hence null and void and the same was rightly rescinded by the State Government. Further, it is significant to note that the said resolution was not moved by the Municipal Commissioner but was at the instance of "the personnel" of the Corporation, who had put up the note for confirmation of the suspension. The Commissioner did not and could not have gone to the House as he had not acted under Section 56(1)(b) of the Act. According to us, the resolution cannot fall under Section 56(1)(b) and therefore, it is of no consequence. It was null and void.
13. Further, the State Government has, under Section 451 of the Act, rightly cancelled and rescinded the said resolution in public interest. The Legislature has armed the State Government with such plenary powers to meet the situation like the one before us. For ready reference Section 451(1) is quoted herein below:-
Section 451(1). If the State Government is of opinion that the execution of any resolution or order of the Corporation or any other authority or that the doing of any act which is about to be done or is being done by or on behalf of the Corporation or such authority is in contravention of or in excess of the powers conferred by or under this Act or any other law for the time being in force, or is likely to lead to a breach of the peace or to cause injury or annoyance or any class or body of persons, or is likely to lead to abuse or misuse of or to cause waste of municipal funds against the interests of the public, the State Government may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act, for such period or periods as it may specify therein. A copy of such order shall be sent forth with by the State Government to the Corporation and to the Commissioner or the Transport Manager.
14. It is thus clear that the resolution passed by the Corporation bringing about an end of suspension order of the petitioner even when he is facing departmental enquiry in a grave and serious charge was null and void. The State Government has, according to us, rightly thought it fit to rescind the said resolution in public interest as it would have caused injury to the public interest and annoyance to the public when the delinquent was charged for collapse of the building which was illegally and unauthorisedly constructed and which claimed 17 lives. If the Corporation resolution had been implemented or enforced the State Government has rightly thought, that it would have been against the public interest.
15. The guilt or the innocence of the petitioner is yet to be established. If he is found guilty then it may be totally against the public interest to allow him to continue in the employment. During the pendency of the departmental enquiry, in our view, an officer who is holding a high position in the Corporation such as Deputy Municipal Commissioner, should not be allowed to continue in service in the facts of this case. In such a case, it is not in the interest of public and also in the interest of the administration of the Corporation to reinstate the petitioner till the enquiry is completed. In any case, in the present case, the petitioner has not challenged the legality and validity of the Government decision dated 31.7.1999 rescinding Corporation's resolution and, therefore, as on today, the said resolution of the Corporation stands nullified and is not in existence at all in the eyes of law. In view of the situation which has emerged after action under Section 451 has intervened, the petitioner cannot claim any benefit under Section 56(1)(b) also, even assuming it was held to be applicable in the present case. We however, hasten to say that according to our firm opinion, the said provision does not apply in the present case.
16. On the face of it, the order of suspension is issued by the Commissioner in exercise of his powers under Rule 4 of the M.C.S. Rules to suspend the petitioner during pendency of the departmental enquiry. It cannot be construed in any other manner as is suggested by the learned Advocate for the petitioner that we should read the said order to be an order under Section 56(1)(b) of the Act. In this context we may refer to the decision of the Supreme Court in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. . Specifically, in para 8, the Supreme Court has held as under:-
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji .
Public orders publicly made, in exercise of a Statutory Authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by Public Authorities are meant to have public effect and are intended to affect the acting and conduct or those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
(emphasis supplied) Orders are not like old wine becoming better as they grow older.
17. One grievance of the petitioner appears to be justified. According to him those officers who are responsible for sanctioning of the Sairaj Apartment are spared and let off. If that is so, we do hope that the respondent Nos. 1 and 2 shall also deal with them according to law. If the officers, who were at the helm of affairs at the relevant time of approving and sanctioning the development plan of the concerned building, have forgotten their duty towards the citizens and acted in a brazen manner, they must also be punished. We will be failing in our duty if we do not follow and also bring to the notice of the respondents the following apt observations of the Supreme Court in the case of Dr. G. IV. Khajuria and Ors. v. Delhi Development Authority and followed in the case of M.I. Builders P. Ltd. v. Radheshyam Sahu. and Ors. wherein the Supreme Court in para 53 has observed thus:-
Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the officer of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the Delinquent Officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.
18. While parting we have to observe that we had to ourselves search and connect the facts in chronology to enable us to appreciate the case to come to its logical conclusion in the absence of proper details, correct particulars and there being many missing links and truncated documents produced by the petitioner. The petitioner, perhaps, was under an impression that we were sitting under a banyan tree to impart justice and not under Article 226 of the Constitution of India, according a law.
19. In view of the above discussion, we dismiss the petition at this stage itself with no orders as to costs.
20. Issuance of certified copy expedited.