Madhya Pradesh High Court
Sheetal Kumar Jain vs The State Of Madhya Pradesh on 5 October, 2015
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE MR. S. C. SHARMA, J
WRIT PETITION No. 4916 / 2015
SHEETAL KUMAR JAIN
Vs.
STATE OF MADHYA PRADESH
AND THREE OTHERS
*****
ORDER
( 05/10/2015) The petitioner before this Court has filed this present writ petition being aggrieved by the order dated 29/5/2015 issued by the learned Collector, Distt. Jhabua by which a charge sheet has been issued to the petitioner.
Learned counsel for the petitioner has straight away drawn attention of this Court towards the recruitment Rules known as M.P. Nagar Palika Karmachari (Bharti Tatha Seva Shartein) Niyam, 1968 and his contention is that as per the recruitment Rules, the President in Council is the disciplinary authority and the appellate Authority is Collector. No other authority is mentioned under the recruitment Rules. The contention of the petitioner is that the Collector being the appellate authority could not have issued the charge sheet.
On the other hand, learned counsel for the respondent
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- State has drawn attention of this Court towards the charge sheet and her contention is that in the charge sheet a reference has been made to M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 and the petitioner can certainly prefer an appeal before the next higher authority.
Learned counsel for the respondent - State placed heavy reliance upon the judgment delivered by the apex Court in the case of A. Sudhakar Vs. Postmaster General, Hyderabad and another reported in 2006 (4) SCC 348. This Court has carefully gone through the aforesaid judgment.
In the aforesaid case, the Superintendent, Post Office was the designated disciplinary authority. However, the order of compulsory retirement was passed by the Director of Postal Services and an appeal was preferred before the Post Master General, meaning thereby, there was an authority available for preferring an appeal in the aforesaid case, whereas, in the present case, after the Collector, there is no authority available and, therefore, keeping in view the aforesaid, this Court is of the considered opinion that the petitioner is left with no other forum where he can prefer an appeal keeping in view the specific provision under the recruitment Rules of 1968.
This Court, in the case of Jagdish Chandra Vs. Collector, Distt. Dewas and another reported in 2007 (2) MPHT 449, in paragraph 6 to 12 has held as under:
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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 of Sub-section (4) of the Act. It is also not disputed that the service conditions of municipal employees 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 conferred the power of supervision under Sections 322 and 323 of the Act, and by the circular of Govt. 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. As per Section 95 of the Act, the State Government is empowered to frame the rules to regulate the Service Conditions 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 hereinbelow:
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
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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 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. 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 23-5-96 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 Council or 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) and (5) of the Act, and of Rule 51 or 53 of the Recruitment Rules. Thus by virtue of delegation of power, made to the Collector vide Annexure R-5, dated 23-5-96 of Rules 9 and 10 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, the Collector ipso facto cannot acquires 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 Sections 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) and (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
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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 Acts. 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 hereinabove, 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 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 Council or 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. 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.
In the light of the aforesaid judgment, as the petitioner does not have a forum of appeal and the Collector has acted as an appellate Authority, hence in absence of a forum of appeal, the impugned charge sheet is hereby quashed and all subsequent action pursuant to the charge sheet are also
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quashed. However, the respondent shall be at liberty to issue a fresh charge sheet as provided under the Rules.
With the aforesaid, the Writ Petition stands disposed of.
(S. C. SHARMA) JUDGE KR