Gujarat High Court
Rajesh Chandulal Shah vs Amc Medical Education Trust on 6 August, 2019
Equivalent citations: AIRONLINE 2019 GUJ 740
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/13223/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13223 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJESH CHANDULAL SHAH
Versus
AMC MEDICAL EDUCATION TRUST
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Appearance:
MR GM JOSHI(370) for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR ANUJ K TRIVEDI(6251) for
the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 06/08/2019
CAV JUDGMENT
Whether the Municipal Commissioner could derive powers under Section 67(3) of the Bombay Provincial Municipal Corporations Act, 1949 to pass order to suspend municipal officer in wake of provision of Section 56(1)(b) and other attendant provisions of the Act, is the crisp question of law Page 1 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT arising for consideration in the present petition.
2. By filing the present petition under Article 226 of the Constitution, the petitioner has prayed for declaring the action on part of the respondents in suspending the services of the petitioner by order dated 07th March, 2018 to be illegal. The petitioner has further called in question the issuance of show- cause notice dated 07th March, 2018 and chargesheet dated 23rd March, 2018, to further pray to take the petitioner back on the original post.
3. Noticing the attendant facts, the petitioner was initially appointed as Casualty Medical Officer on 20th August, 1989. Having served in the different capacities in the different departments under the respondents, the petitioner lastly took charge as Medical Superintendent at L.G. General Hospital run by the respondent - Ahmedabad Municipal Corporation. It was the allegation against the petitioner that as per the complaints received against him from different authorities, petitioner was in the habit of receiving money for getting any work sanctioned, for passing tenders and passing bills and further that commission was required to be paid to the petitioner for getting any work, major or minor, in the hospital. It was alleged that the petitioner had been charging money from the poor patients should come to him at the L.G. Hospital, by forcing such patients to come to his private hospital for further treatment. It was also te allegation that the petitioner used to take commission from various agencies including Page 2 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT private security deployed at the hospital and further that the petitioner used to demand money while signing the bills presented to him. In wake of the aforesaid charges, petitioner came to be suspended by passing impugned order.
3.1 The petitioner was suspended by oder dated 07th March, 2018 passed by the Municipal Commissioner. Show-cause notice dated 07th March, 2018 as well as chargesheet dated 23rd March, 2018 were issued to the petitioner. It is averred by the petitioner that he was served directly with suspension order which was pasted on his door inspite of the fact that he was attending the office throughout the day. The principal ground on which the order of suspension is sought to be assailed by the petitioner is that the same was passed by the authority not competent in law namely the Municipal Commissioner and therefore, the suspension was illegal.
4. Learned advocate for the petitioner Mr.Gautam Joshi assailed the impugned order of suspension outrightly on the ground that the order was passed by the Municipal Commissioner who was not the competent authority in asmuch as, according to submission of learned advocate for the petitioner, it was the Standing Committee only which could have taken action of suspending the petitioner under Section 56(1)(b) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'the Municipal Corporations Act').
Page 3 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT4.1 Responding to the above submission, learned senior advocate Mr.Kamal B. Trivedi assisted by learned advocate Mr.Anuj Trivedi at the outset submitted that the powers were exercised by the Municipal Commissioner under sub-section (3) of Section 67 of the Municipal Corporations Act. He submitted referring to the decision of the Supreme Court in case of N. Mani v. Sangeetha Theatre [(2004) 12 SCC 278] that it is well settled that if an authority has power under law, merely because while exercising tat power, the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power.
4.2 What was canvassed as basic contention, sought to be developed in its dimensions, by learned senior advocate was that the Municipal Commissioner enjoyed pervasive executive powers under sub-section (3) of Section 67 of the Municipal Corporations Act which in terms provides that the entire executive power for carrying out the provisions of the Act vests in the Commissioner. Emphasising the word "vest", it was submitted that the Municipal Commissioner would exercise the control and that the word "control" has wide amplitude. It was submitted that under this general power of control vested in the Municipal Commissioner, the said authority could competently derive powers to suspend the municipal officer. It was submitted that it may be a different thing that the decision of the Municipal Commissioner may be required to be placed before the Standing Page 4 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT Committee which stage, submitted learned senior advocate, had not reached. He further pinpointed the opening words in sub-section (3), "subject, whenever it is in this Act expressly so directed" to submit that when construed in the context of the executive powers vested in the Commissioner, the word "subject" would make provision of Section 56(1)(b) submissive to such wide powers of the Municipal Commissioner. It was then contended that thus Section 56(1) opens up with the words "a competent authority may subject to the provisions in this Act", and therefore, Section 56(1)(b) will have to operate by paving way to the general power of control executively vested in the Municipal Corporation.
4.3 As against the above, learned advocate for the petitioner highlighted that Section 67(3) has the language in its beginning comprised in the words "Subject, whenever it is in this Act expressly so directed.... and subject to other restrictions". It was submitted in that context that Section 67(3) was to be a yielding provision to any other provision in the Act which may expressly override. He, therefore, submitted that when Section 56(1)(b) explicitly mentions that the Standing Committee of the Corporation may suspend a municipal officer, it would displace the operation of Section 67(3) so as to exclude the Municipal Commissioner to exercise his powers in respect of what is contemplated in Section 56(1)(b) of the Act.
5. The centripetal question, therefore, is Page 5 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT whether upon a conjoint reading of the provisions of Section 56(2)(b) informed by other provisions, with provision of Section 67(3) of the Bombay Municipal Corporations Act, 1949, the Municipal Commissioner could be said to be possessing powers to suspend a municipal officer, and whether such powers could be traced upon construing the aforementioned Sections.
5.1 Adverting readily to the provision of Section 56 as well as Section 67 of the Act since the interactive interpretation of the said two provisions would offer an answer.
5.2 Section 56 reads as under, extracting the relevant.
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 such amount as may be fixed in this behalf, by a general or special order, by the state government in the case of each corporation] shall be dismissed by the Commissioner without the previous approval of the Standing Committee;
(b) any officer appointed by the Corporation excepting Transport Manager may be suspended by the Standing Committee pending an order of the Corporation, such suspension and the reason therefor being forthwith reported to the Corporation;
(c) the Commissioner may impose any of the penalties specified in clauses (a), (b), (c), (d) and (e) of sub-section (2) on any officer appointed by the Corporation other than the Transport Manager or any officer appointed under section 45;Page 6 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT
(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 and drawing monthly salary (not exceeding such amount as may be fixed by the state government, by a general or special order, from time to time in case each corporation) 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 other 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) with-holding 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 not reasonably practicable to give that person an opportunity of showing cause.
(4) Subject to the provisions of clause (d) ... ... ..."Page 7 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT
5.3 Dissecting the aforesaid Section, it is a collect of provisions relating to imposition of penalties on the municipal officers and servants, as the title suggests. It provides in sub-section (1) that a competent authority may impose any of the penalties specified in sub-section (2) on the municipal officer or servant except the Transport Manager upon being satisfied that the officer or servant is guilty of rules of discipline or his careless or has neglected the duty. According to sub- clause (b), any officer who is appointed by the Corporation may be suspended by the Standing Committee pending order of Corporation and such suspension and reasons thereof would be required to be reported to the Corporation. It may be noticed that sub-clause (b) would juxtapose itself with sub- clause (c) which mentions about penalties to be imposed by the Commissioner. It is in this view that the submission has been coming-forth from the petitioner, who was an officer appointed by the Corporation, that it is only the Standing Committee which could have suspended the petitioner.
5.4 Looking at Section 67 of the Act, it deals with the function of several municipal authorities, the material portion reading as under.
"section: 67 (1) The respective functions of the several municipal authorities shall be such as are specifically prescribed by or under this Act.
(2) Except as otherwise expressly provided in this Act, the municipal government of the City vests in the Corporation.Page 8 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT
(3) Subject, whenever it is in this Act expressly so directed, to the approval or sanction of the Corporation or the Standing Committee and subject also to all other restrictions, limitations and conditions imposed by this Act or by any other law for the time being in force, the entire executive power for the purpose of carrying out the provisions of this Act and of any Act for the time being in force which imposes any duty or confers any powers on the Corporations vests in the Commissioner, who shall also--
(a) perform all the duties and exercise all the powers, specifically imposed or conferred upon him by this Act or by any other law for the time being in force;
(b) prescribe the duties of, and exercise supervision and control over, the acts and proceedings of all municipal officers and servants, other than the Municipal Secretary and the Municipal Chief Auditor and the municipal officers and servants immediately subordinate to them, and subject to the regulations, dispose of all questions relating to the service of the said officers and servants and their pay, privileges and allowances;
(c) in any emergency take such immediate action for the service or safety of the public or the protection of the property of the Corporation as the emergency shall appear to him to justify or to require notwithstanding that such action cannot be taken under this Act without the sanction, approval or authority of some other municipal authority or of the [State] Government:
Provided that the Commissioner shall report forthwith to the Standing Committee and to the Corporation the action he has taken and his reasons for taking the same and the amount of cost, if any, incurred or likely to be incurred in consequence of such action which is not covered by a current budget- grant under the provisions of this Act;
(d) perform the duties and exercise the powers imposed or conferred upon the Transport Manager by this Act in his absence or on failure by him to perform or exercise the same.
3(A) (a) The Municipal Commissioner shall consult the Mayor in respect of any proposal involving policy of development work on a large scale or having a large financial implication, before such proposal is submitted to the Standing committee or to any other Committee;
(b) Where Mayor considers that any proposal involving Page 9 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT development work is necessary to be undertaken, he may direct the Municipal Commissioner to place with proposal before the Municipal Corporation, Standing Committee or any other Committee, for its Consideration.
(c) The Municipal Commissioner shall while submitting any proposal to the Standing Committee or other Committees, send simultaneously a copy of such proposal to the Mayor for information.
(3AA) The Mayor may convene a meeting of the Deputy Mayor, Municipal Commissioner, Officers, Chairman and Members of the Committees of the Corporation for reviewing the action taken in pursuance of the resolution passed by the Corporation, Standing Committee or other Special Committees of the Corporation in respect of undertaking the development works. The Mayor may assign inter-se seniority to such development works to be undertaken and give direction to the Municipal Commissioner to get such work to be undertaken immediately according to priority so assigned and the Municipal Commissioner shall, subject to the provisions of this Act, carry out such directions.
(4) Subject, whenever expressly so directed ... ... ...
(a) ... ... ...
(b) ... ... ...
(c) ... ... ..."
6. When the canvass of the various provisions of the Bombay Provincial Municipal Corporations Act are looked at, the legislative organs and the executive wing in the Municipal Corporation are representated by the different bodies and the persons statutorily contemplated as competent authorities. Under Section 4 of the Act, the municipal authorities charged with the carrying out of the provisions of the Act are (a) a corporation, (b) a Standing Committee, (c) municipal commissioner and the other committees as mentioned which may be constituted. The Corporation is conceived to be a body corporate which Page 10 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT comprises of the elected councillors. The Standing Committee is a representative unit consisting of 12 councillors as provided in Section 20 of the Act. The Municipal Commissioner is an executive head who is appointed by the State Government. The Commissioner is a salaried person representing the hegemony of executive side in the Corporation.
6.1 The arena of working and the areas for exercise of powers for the said distinct authorities in the Corporation under the Act, representing the elected persons or the executive offices, are distributed under, and as per, the statutory provisions. The provisions empowering these authorities operate to strike a balance and a harmony. They envisage as such a check and balance mechanism. When it comes to construing or interpreting the provisions conferring the powers on the respective authorities for discharge of any function or for taking any action, the interpretation has to be with such context. The Corporations and Municipalities being the elected bodies of local self-government, it would be conceptually correct if the provisions give an upper hand or a higher pedestal to the elected wing in certain spheres.
6.2 Even when Section 67 specifically seen, it deals with the function of the several municipal authorities and contemplates inter alia in its sub- section (3) that the Municipal Commissioner is vested with entire executive power, the control is made to retain with the elected wing. Sub-section (3) itself, Page 11 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT as already noticed, makes the exercise of executive power by the Commissioner to be "subject to" and further "whenever it is in this Act expressly so directed" the executive power of the Commissioner remains subject to the approval or sanction of the Corporation or the Standing Committee as may have been provided for in the provisions of the Act. Such providence may be express or implied.
6.3 Even by implied reading of provision, the executive power of the Municipal Commissioner would stand to bow to the final authority of the Standing Committee and the Corporation which is still above the Standing Committee. The Commissioner may exercise the powers and discharge duties referred to in sub- clauses (a), (b) and (c) of sub-section (3), the Proviso immediately makes clear that the Commissioner shall report forthwith to the Standing Committee and to the Corporation the action he has taken and his reasons for the same including the amount of cost which may have been incurred and the consequence of such action. Under sub-section (3)(A) and as per its clauses (a), (b) and (c), the Municipal Commissioner has to consult the Mayor and keep the Mayor informed. Such are the nature of provisions in Section 67 of the Act which go to show that the role and control of the elected wing is conceived and meant to be placed above the executive functionary.
7. Viewing the specific Sections of 56 and 67 and provisions therein which are the bone of contention, the functional powers covering the powers Page 12 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT to take disciplinary action including imposition of penalty, stem in particular from Section 56 which deals with imposition of penalties. The competent authority is empowered to impose penalties specified in sub-section (2) on a municipal officer. Sub-clause
(b) of sub-section (1) of Section 56 empowers the Standing Committee to suspend any officer except the Transport Manager appointed by the Corporation, pending an order of the Corporation.
7.1 Certain penalties may be imposed by the Commissioner. These penalties are those mentioned in clauses (a) to (e) of sub-section (2), namely censure, withholding of increment or promotion including stoppage of an efficiency bar, reduction to a lower post or time-scale, fine or recovery from salary of the whole or part of any pecuniary loss caused to the Corporation respectively.
7.2 There are other penalties mentioned in clause (f), (g) and (h) of Section 56(2). Clause (g) is regarding removal from municipal service whereas clause (h) is dismissal from municipal service. In clause (f) the suspension is mentioned. The Municipal Commissioner is not thus empowered to impose suspension or removal from service of dismissal from service on the Municipal Officer.
7.3 The provisions of Section 56 for their operation would have to be read as reflecting the whole scheme. The suspension referred to in Section 56(1)(b) for which the Standing Committee is Page 13 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT empowered to pass the order, and the suspension contemplated in Section 56(2)(f) are same. While the former Section vests the power in respect thereof with the Standing Committee, the later provision excludes the role of the Municipal Commissioner in ordering suspension. A combined reading of the sub- sections and the sub-clauses of Section 56 as explained above, necessarily imply that the power to suspend is retained with the Standing Committee.
7.4 The suspension is grouped with the action of removal and dismissal of a municipal officer, which again are not the actions in the domain of the Municipal Commissioner. It is the elected wing in the Corporation in the form of Standing Committee, which is given an overriding power to impose the suspension, removal or dismissal on a municipal servant excepting the Transport Manager. The Municipal Commissioner's powers do not extend when any of the above namely suspension, removal or dismissal is to be acted upon.
7.5 Suspension, removal or dismissal from service are such nature of measures and penalty which has the result of keeping the the municipal officer out of continuity. This class of penalties are excluded from the executive hegemony of the Municipal Commissioner as the Municipal Commissioner is not entitled to pass the order in respect of such measures. Accordingly, the suspension of a municipal officer could be ordered only by the Standing Committee. Other penalties such as censure, Page 14 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT withholding of increment, stoppage of efficiency bar, lowering time-scale, recovery from salary etc., could be ordered by the Municipal Commissioner which are the penalties of less severe nature in their effect than the said three measures, namely suspension, removal and dismissal from service. It is therefore specifically enacted that Commissioner cannot step into the powers in respect of the areas expressly not contemplated for his authority.
7.6 In the aforesaid clear view, though the submission of learned senior advocate in the context of sub-section (3) of the Section 67 of the Act that it vests the executive power in the Municipal Commissioner for the purpose of carrying out the provisions of the Act, earns merit, but, when learned Advocate General contends that such control and the ambit of powers with the Municipal Commissioner also extends to suspending the municipal officer and that Section 56(1)(b) of the Act has to yield to Section 56(3) for that purpose, his submission immediately nose-dives.
8. Learned senior advocate in an attempt seeking to reinforce the submission that general power of control under Section 67(3) vested with the Municipal Commissioner would enable him in law to pass the order of suspension, he heavily relied on decision of the Supreme Court in Corporation of City of Nagpur v. Ramchandra [2008 (12) SCC 714]. It was submitted that Section 59(3)(b) of the City of Nagpur Corporations Act, 1948, was a provision, perimateria Page 15 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT to Section 67(3) of the Bombay Provincial Municipal Corporations Act, 1949. it was submitted that the word "control" in the provision was referable to disciplinary jurisdiction as well. Relying on observations of paragraph 4 of the decision in Corporation of City of Nagpur (supra) it was submitted that the term "control" was of wide connotation and amplitude to include large variety of powers incidental and consequential to achieve the powers vested in the authority. It was held by the Supreme Court in that case that Municipal Commissioner was fully competent to suspend the respondent pending the departmental inquiry.
8.1 The above submission and the reliance on Corporation of City of Nagpur (supra) by leaned senior advocate was, at the first blush an attractive, however once closely considered to notice that under the City of Nagpur Corporation Act, 1948, there was no provision such as Section 56(1) and Section 56(2) as found in the Municipal Corporations Act, the contention fell flat. When there was a specific statutory provision and the power flowing therefrom for the Standing Committee to suspend the municipal officer to the ouster of the authority of Municipal Commissioner to exercise the powers for the said purpose, Section 67(3) would not vests in the Municipal Commissioner the power or authority to suspend.
8.2 It is correct that the phrase "subject to"
conveys the idea of a provision yielding place to Page 16 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT another provision or other provisions to which it is made subject. In Chandravarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] the Supreme Court explained as to how in the canons of interpretation of statute, the words "subject to"
should be applied, contra-distinguishing the same with a non-obstante clause such as expression "notwithstanding anything contained in this Act". When the words "notwithstanding anything contained"
are mentioned, they suggest that the provision in the enacting part of which such words are used, would have an overriding effect over the other provisions of the Act, generally as well as in case of conflict.
8.3 Against above, the phrase "subject to"
indicates the position of the provision bowing down to another provision where such interpretational situation demands or when the set of provisions are needed to be so construed to be applied. When two interactive provisions contain the words 'subject to ...' and are made to quality in their operation accordingly, they really call for careful construction, which would depend upon the factors like nature of the two provisions to be specific or general, the harmony needed to be brought about in their interpretation, the context thereof, the object and import of the provisions, the other attendant provisions etc. In applying such interpretational process, it may happen that one provision may have to be subjugated to another in their application and operation.
Page 17 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT8.4 For instance, in Bashiruddin Ashraf v. Bihar Subai Sunni Madrish-A-Waqf [AIR 1965 SC 1206] the Supreme Court interpreted the phrase "subject to any order by the competent court" which were found in Section 32 of the Bihar Waqfs Act, 1947. The Section conferred jurisdiction on the Majalis to make temporary appointment when there is a vacancy in the office of the Mutwali. It was held by the Supreme Court that the words "subject to any order by the competent court" do not mean that there has to be either prior permission or subsequent assent before the appointment can be complete. It was held that the words "do not" suggested that the appointment is to endure according to its tenor till an order to the contrary is passed by the competent court.
8.5 Such as above interpretation was attached by the Supreme Court having due regard to the context and inclined object in which the provisions occurred. In the present case, however, the positioning of Sections 56(1)(b), 56(2) and Section 67(3) are distinctly obtained. The purport differs. The words 'subject to provisions in this Act' in Section 56(1) do not make Section 56(1)(b) subsidiary to Section 67(3) in its operation, but correct interpretation is vice-a-versa.
8.6 Having regard to the specific provision in Section 56(1)(b) read with the other sub-sections and sub-clauses in the very Section as explained above, the "subject to" provision in Section 67(3) would invariably yield to Section 56(1)(b) so as to Page 18 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT necessarily render the Commissioner powerless and not competent to pass the impugned order of suspension, which is made the realm of power of Standing Committee.
8.7 Where the provision of the rule or enactment is clear and poses no ambiguity, it should be applied treating it to be emanating the intention of the legislature. It is not for the court to amend the provision by injecting some principle or infusing a kind of philosophy which in the opinion of the court may work better. The interpretation cannot de hors the express provision or contrary to what the legislature has conveyed through the provision.
9. At this stage, decision in Gujarat Pradesh Panchayat Parishad v. State of Gujarat [2003 (1) GLR 633] may be referred to. Therein, this Court had an occasion to consider controversy involving similar aspects and principles as arise in the present case. The issue addressed by the court was that whether the District Development Officer could have overridden his powers against the President of the District Panchayat, the former being the executive authority whereas later the elected head. The District Development Officer had submitted his own proposal to the State Government in respect of certain works under the Panchayat, to which the President of the Panchayat objected to on the ground that District Development Officer had been functioning on its own in various administrative matters including transfer, promotion, posting etc. ignoring the authority of Page 19 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT President of the Panchayat. Whether the District Development Officer was expected to exercise all executive powers of the District Panchayat, subject to orders, if any, of the President of the District Panchayat, was the question.
9.1 It was held that the executive powers of the District Panchayat were vested normally in the District Development Officer and those powers were exercisable subject to the orders, if any, of the President of the District Panchayat, however it did not mean that the District Development Officer was required to obtain prior orders of the President. It was observed that though District Development Officer would have power to watch over the financial and executive administration of the Panchayat to secure supervision and implementation in the day-to-day administration or other matters of appointment or conditions of service of Panchayat employees, the provisions of the Act or Rules did not contemplate that the District Development Officer was required to obtain prior approval of the President of the District Panchayat before taking decisions in the executive matters. The view was confirmed by the Supreme Court in Gujarat Pradesh Panchayat Parishad v. State of Gujarat [2008 (1) GLR 779 (SC)] wherein the interpretation attached by the High Court was endorsed to.
9.2 While the principle laid down would hold good, in the facts of the present case as noted above, the power to pass the orders in respect of Page 20 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT suspension, removal or dismissal of municipal officer have been specifically and expressly excluded from the purview of powers of the Municipal Commissioner. Such context of specific exclusion of powers was not found in facts of the Gujarat Pradesh Panchayat Parishad (supra).
10. Summing up, upon a combined reading of Section 56(1)(b) informed by clause (c) and the penalties mentioned in Section 56(2), with Section 67(3) of the Act, it could be true that the Municipal Commissioner may be within his powers to impose any penalty mentioned in sub-section (2) of Section 56 barring mentioned in clause (f), (g) and (h). For measures mentioned in clauses (f), (g) and (h), the powers are vested with the Standing Committee. Sub- section (b) of Section 56(1) states that an officer appointed by the Corporation may be suspended by the Standing Committee, for which however there is a further check as contemplated that it would be pending an order of Corporation and that the suspension will have to be reported to the Corporation forthwith.
10.1 From the reading of the provisions as above, the powers to suspend are exclusively entrusted by the legislature to the Standing Committee. The Municipal Commissioner is not a competent authority to pass the order of suspension, as this area is forbidden for the Commissioner by virtue of provisions of Section 56(1)(c) read with Section 56(2) of the Act. As per the provision of Section Page 21 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT 56(2) operated with the other group of provision in the Section, the power to suspend is expressly given to the Standing Committee to the exclusion of the Municipal Commissioner.
10.2 When the reading of the statutory provisions as discussed above, in explicit terms excludes the authority of the Commissioner in imposition of suspension on a municipal officer, the concept of general powers of control vested by virtue of Section 67(3) in the Commissioner could not be imported to claim and derive such power to contend that the Commissioner was competent to pass the order of suspension against the petitioner. Under the garb of general power of control under Section 67(3), the Commissioner could not usurp the powers specifically conferred on the Standing Committee expressly vested in it, and specifically excluded from the purview of powers of the Commissioner.
10.3 It has to be held that in respect of passing of order of suspension, as also for the action of removal and dismissal from service, the powers of the Municipal Commissioner under Section 67(3) has to yield to the powers in Section 56(1)(b) of the Act. The law mandates that in the matter of action of and in the nature of suspension, removal or dismissal, the executive authority in form of the Commissioner would remain subjugated and subordinated to the Standing Committee consisting of elected persons.
10.4 When sub-clause (b) of Section 56(1) read Page 22 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019 C/SCA/13223/2018 CAV JUDGMENT with sub-clause (c) thereof with sub-section (2) is seen to be excluding the powers of the Municipal Commissioner in respect of the certain measures and penalties, those provisions are in consonance with the provisions and giving upper hand to the elected representatives against the executive officers and interpretation to be so attached to the provisions would be quiet congruent.
11. As a result of above, the petition is allowed in part. The order dated 07th March, 2018 passed by the Municipal Commissioner, Ahmedabad Municipal Corporation, suspending the petitioner is hereby set aside. It is, however, clarified that the setting aside of suspension order will not preclude the competent authority to proceed in accordance with law.
(N.V.ANJARIA, J) FURTHER ORDER At this stage, learned advocate Mr.Anuj Trivedi for the respondents requested to stay the implementation of the judgment for a reasonable time in order to enable the respondents to approach the higher forum. The request was seriously objected to by learned advocate Mr.Gautam Joshi for the petitioner.
In the facts and circumstances of the case however the consequences arising out of the present judgment may not be acted upon till 27th August, 2019.
(N.V.ANJARIA, J) Anup Page 23 of 23 Downloaded on : Thu Aug 29 01:37:29 IST 2019