Delhi High Court
Bishamber Nath Sachdeva vs Municipal Corporation Of Delhi on 19 May, 1998
Equivalent citations: [1999(81)FLR341]
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
ORDER K. Ramamoorthy, J.
1. The order dated the 14th of September, 1978 passed by the Commissioner, MCD dismissing the petitioner from service and the order dated the 18th of July, 1980 and the order dated the 24th of January, 1981(order in appeal) are challenged. The facts necessary to be noticed are:
2. The petitioner joined the services of the then Municipal Committee on the 14th of May, 1957 as a peon. He was confirmed as such and he was trans-ferred to the service of the Delhi Terminal Tax Agency in November, 1957. Subsequently, he was promoted as Terminal Tax Clerk. The Municipal Committee was abolished and became Delhi Municipal Corporation under the Delhi Municipal Corporation Act, 1957 which came into force on the 28th of December, 1957. The petitioner was working at Tikri Kalan Terminal Tax Post and while he was working on that post, on 8th of September, 1978 a surprise raid was conducted by the Vigilance Inspector. On checking, the petitioner was found possessing Rs.53.97 in excess of the cash collection. A charge-sheet was issued and he was suspended on the 14th of September, 1978. An inquiry was conducted and the petitioner was dismissed from service and his appeal was also rejected and, therefore, the petitioner had to file this writ petition.
3. The Municipal Corporation of Delhi has filed the counter-affidavit setting out the facts and denying the averments made in the writ petition. The petitioner has also filed the rejoinder.
4. Mr.J.N.Aggarwal, learned counsel for the petitioner, submitted:-
1. that the petitioner was dismissed from service by an authority subordinate to the appointing authority under the then Municipal Committee;
2. that the Commissioner, MCD passed the order of dismissal. The petitioner filed an appeal to the appellate authority, namely, the Corporation and subsequent to the filing of the appeal the Corporation was superseded by the Central Government and the Commissioner was put in charge and he himself disposed of the appeal and, thus, the resultant position was that the appeal was dismissed by the same Commissioner who passed the order of dismissal;
3. that there is no evidence against the petitioner and the finding rendered by the Commissioner is based on no evidence; and
4. that assuming that the offence has been made out, the penalty of dismissal is out of due proportion to it and a lesser punishment should have been imposed by the Commissioner.
5. Ms.Madhu Tewatia, the learned counsel for the MCD, submitted that the MCD had conformed to the principles of natural justice and the witnesses were examined in the inquiry and the petitioner was given sufficient oppor-tunity to cross-examine the witnesses and the petitioner does not complain of any lack of opportunity to defend himself. The learned counsel further submitted that the appeal filed by the petitioner had to be considered by the appellate authority represented by the Commissioner in view of the peculiar circumstances, and the Commissioner represented the appellate authority and applying the doctrine of necessity, the order passed by the appellate authority, though by the Commissioner, cannot be called in question by the petitioner. With reference to the quantum of punishment, the learned counsel submitted that once the disciplinary authority had exercised its discretion, that cannot be subject to judicial review and a person who had been found guilty of misappropriate is not entitled to any indulgence.
6. On the first point, Mr.J.N.Aggarwal, learned counsel for the petitioner, referred to Section 39 of the Punjab Municipal Act, 1911 and that Section reads as under:-
"Employment of other officers and servants._(1) Subject to the provisions of this Act and the rules and bye-laws made there under, a committee may, and if so required by the State Government shall, employ other officers and servants and may assign to such officers and servants such remuneration as it may think fit, and may suspend, remove, dismiss, or otherwise punish any officer or servants so appointed.
Provided that no person who is a member of a committee shall be employed by a committee during the tenure of his term and for a period of twelve months thereafter.
(2) Nothing in this section shall prevent the State Government from making any provision in the rules under this Act for the reservation of appointments of posts and to lay down methods to secure such reservation in favour of Members of the Scheduled Castes, the Scheduled Tribes and such other back ward classes of citizens which in the opinion of the State Government are not adequately represented in the service under the Municipal Committee."
7. On the formation of the Delhi Municipal Corporation, the Commissioner is not the corresponding appointing authority. The learned counsel referred to Section 511 of the Delhi Municipal Corporation Act, 1957. That Section reads as under:-
"Every officer and other employee of each of the bodies and local authorities specified in the Second Schedule shall, on and from the establishment of the Corporation, be transferred to and become an officer or other employee of the Corporation with such designation as the Commissioner may determine and shall hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as he would have held the same if the Corporation had not been established, and shall continue to do so unless and until such tenure, remuneration and terms terms and conditions are duly altered by the Corporation.
Provided that the tenure, remuneration and terms and conditions of service of any such officer or other employee shall not be altered to his disadvantage without the previous sanction of the Central Government:
Provided further that any service rendered by any such officer or other employee before the establishment of the Corporation shall be deemed to be service rendered under the Corporation.
(2) The Commissioner may employ any officer or other employee transferred to the Corporation under sub-section (1) in the discharge of such functions under this Act as the Commissioner may think proper and every such Officer or other employee shall discharge those functions accordingly."
8. According to Mr.J.N.Aggarwal, the service conditions cannot be altered without the sanction of the Central Government and according to the learned counsel, the corresponding appointing authority will be the Corporation and, therefore, the order of dismissal by the Commissioner was without jurisdiction. The learned counsel relied upon the judgments of the Supreme Court reported in AIR 1972 SC 2452, "The Management of DTU Vs. Shri B.B.L. Hajelay & Another" and AIR 1976 SC 2301,"Municipal Corporation of Delhi Vs. Shri Ram Pratap Singh". The learned counsel also referred to the judgment by the Division Bench of this Court in Crl.A.278/73 dated 5.2.1980. The learned counsel also referred to the decision of this Court reported in 1990 (3) Delhi Lawyer 282, "Shri H.C.Singhal Vs. Union of India & Others". The learned counsel also referred to the Section 95 of the Delhi Municipal Corporation Act, 1957. This section reads as under:-
"95. Punishment for municipal officers and other employees:
1) Every municipal officer or other municipal employee shall be liable to have his increments or promotion withheld or to be censured, reduced in rank, compulsory retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by regulations;
Provided that no such officer or other employees as aforesaid shall be reduced in rank compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed:
Provided further that the Corporation may by regulations provide that municipal employees belonging to such classes or categories as may be specified in the regulations shall be liable also to be fined by such authority as may be specified therein.
2) No such officer or other employees shall be punished under sub-section (1) unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him;
Provided that this sub-section shall not apply:
a) where an officer or other employee is removed or dismissed on the ground of conduct which had led to his conviction on a criminal charge; or
b) where the authority empowered to remove or dismiss such officer or other employee is satisfied that for some reason to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause.
3) If any question arises whether it is reasonably practicable to give to any officer or other employees an opportunity of showing cause under sub-section (2) the decision thereon of the authority empowered to remove or dismiss such officer or other employee shall be final.
4) An officer or other employee upon whom a punishment has been inflicted under this section may appeal to such officer or authority as may be prescribed by regulations".
9. The learned counsel referred to the first proviso to sub-Section (1) and submitted that the petitioner cannot be vested to the punishment of dismissal by an authority subordinate to that by which he was appointed.
10. I am not able to accept the submission of Mr.J.N.AGgarwal on this point. The Delhi Municipal Corporation Act was enacted by the Parliament and the petitioner became an employee of the Delhi Municipal Corporation and under the scheme of this Act, the appointing authority with reference to the post in which he was functioning at the relevant time was an authority, as prescribed is subordinate to the Commissioner, was subordinate to the Commissioner. The petitioner cannot be heard to say that his conditions of service have been changed to his disadvantage. The petitioner, having the status of servant of MCD, cannot have any right that the same authority who was functioning under the Municipal Committee should continue to be his appointing authority. The Central Government has got the power to change the appointing authority. This principle is laid down by the Supreme Court in . The facts in the cases referred to by the learned counsel for the petitioner, Mr.J.N.Aggarwal, are entirely different and the principles laid down therein would not apply to the facts of this case.
11. On the second point about the appeal having been disposed of by the Commissioner himself, when I expressed my view that the matter could be remitted and now the Corporation could be directed to consider the appeal, Mr.Aggarwal submitted that that will be a time consuming process and he would rather prefer petitioner's case being dealt with by this Court on merits to the matter being sent back. Accepting this contention, I do not want to deal with this point and I shall now turn to the merits.
12. Mr.J.N.Aggarwal, learned counsel for the petitioner, took me through the evidence and submitted that there is no evidence against the petitioner. According to the learned counsel, one Kartar Singh, owing to heavy rush on that day when the raid was conducted, had given a hundred rupee note and he did not come to collect the balance payable to him and that was the reason for the petitioner having come to have an excess money and the petitioner wanted to examine that Kartar Singh and that was denied. The petitioner himself admitted that the so called Kartar Singh had gone to Kuwait and had settled himself down there.
13. On a perusal of the records, I am satisfied that the MCD had proved charges against the petitioner and sitting under Article 226 of the Constitution, I cannot take a different view from what has been taken by the disciplinary authority. Therefore, on the merits, finding rendered by the Commissioner cannot be challenged by the petitioner.
14. On the fourth point relating to the penalty of dismissal, learned counsel Mr.J.N.Aggarwal relied upon the judgment of the Supreme Court in , "Bhagat Ram Vs. State of Himachal Pradesh & Others". The learned counsel for respondents, Ms.Madhu Tewatia referred to the judgments of the Supreme Court in (1994) 2 S 537, "State Bank of India & Others Vs. Samarendra Kishore Endow & Another"; (1995) 6 S749, "B.C. Chaturvedi Vs. Union of India & Others."; (1996) 1 S 302, "State of UP & Others Vs. Ashok Kumar Singh & Another"; and (1997) 7 S 101, "Govt. of T.N. Vs. K.N. Rama-murthy".
15. I am of the view that the punishment of dismissal is too harsh on the facts and circumstances of this case. The punishing authority had not taken into account the service of the petitioner without any earlier punishment and he was found to have a very small amount on the day of the raid and the petitioner was working only as a Terminal Tax Clerk and he was not holding a post getting a sizeable remuneration. The learned counsel for the respondents, Ms.Madhu Tewatia, submitted that this Court cannot interfere with the quantum of punishment imposed by the authority concerned and it is outside the pale of judicial review. I am not able to accept this extreme proposition propounded by the learned counsel. In (1994) 2 S 537, the Supreme Court had to consider the power of the Administrative Tribunal to interfere with the quantum of punishment. The Supreme Court after considering the earlier case observed:-
"Now coming to the facts of this case it would appear that the main charge against the respondent is putting forward a false claim for reimbursement of expenditure incurred for transporting his belongings from Phek to Amarpur. So far as charge 5 is concerned there is no finding that the account become irregular or that any loss was incurred by the bank on account of the irregularity committed by the respondent. In the circumstances it may be that the punishment of removal imposed upon the respondent is harsh but this is a matter which the Disciplinary Authority or the Appellate Authority should consider and not the High Court or the Administrative Tribunal. In our opinion, the proper course to be adopted in such situations would be to send the matter either to the Disciplinary Authority or the Appellate Authority to impose appropriate punishment."
16. In (1995) 6 S 749, the Supreme Court held: "A review of the above legal position would establish that the disciplinary authority and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
17. In (1996) 1 S 302, the Supreme Court held:-
"We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that "his absence from duty would not amount to such a grave charge". Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that "the punishment does not commensurate with the gravity of the charge" especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out."
18. In (1997) 7 S 101, the question was whether disciplinary proceedings could be initiated against the Commercial Tax Officer who was discharging his quasi-judicial functions. The charges framed against the officer were:-
"(i) That he failed to analyse the facts involved in each and every case referred to above;
(ii) that he failed to check the accounts deeply and thoroughly while making final assessment;
(iii) that he failed to subject the above turnover to tax originally; and
(iv) that he failed to safeguard government revenue to a huge extent of Rs.44,850."
19. In the inquiry it was found that the charges were proved. A punishment of stoppage of increments for three years with the cumulative effect was imposed. The Commercial Tax Officer challenged the order of punishment before the Tamilnadu Administrative Tribunal who set aside the order of punishment. That was taken up in appeal by the Government of Tamilnadu. Their Lordships followed the judgment in (1993) 2 S 56, "Union of India Vs. K.K. Dhawan" and quoted the opinion expressed therein which runs as under:-
"In K.K.Dhawan case this Court held as follows:
"28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a government servant;
(iv) if he had acted negligently or that he omitted the pre- scribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however, small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great'.
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated."
20. Having regard to this position of law, the disciplinary authority should be directed to reconsider the matter relating to the imposition of lesser punishment and the disciplinary authority shall consider whether any lesser punishment could be imposed on the petitioner. The order of disciplinary authority and the appellate authority orders are set aside to this extent and the Commissioner, MCD shall take into account the service record of the petitioner right from the date of entry into the organisation up to the date of suspension of the petitioner and consider whether any lesser punishment could be imposed on the petitioner and on that basis the petitioner shall be given all monetary benefits. The Commissioner shall pass appropriate orders on or before the 31st of July, 1998. The writ petition is disposed of in the above terms.
21. There shall be no orders as to costs.