Gujarat High Court
Narayan Sadhashiv Mohite vs Baroda Municipal Corporation And Anr. on 26 March, 1992
Equivalent citations: (1992)2GLR1559
JUDGMENT S.D. Shah, J.
1. This petition under Article 226 of the Constitution of India is filed by the employee of Baroda Municipal Corporation for enforcement of an order passed in his favour by the Standing Committee, i.e., Appellate Authority in Appeal preferred by him. It is unfortunate that though the Standing Committee and the General Board of Baroda Municipal Corporation stick to their order passed in Appeal dated 3rd January, 1991, the Municipal Commissioner has taken stand that decision of the Appellate Authority, i.e., Standing Committee though binding, cannot be enforced by this Court under Article 226 of the Constitution of India inasmuch as the said decision is in contravention of law and enforcing the said decision would amount to committing the breach of statutory provision.
2. The relevant facts giving rise to this petition are as under:
The petitioner was appointed as Telephone Operator in Baroda Municipal Corporation since 16th August, 1969. On 22nd July, 1988 he was suspended pending Departmental proceeding by the Corporation on the allegation that he has defrauded the Corporation in collusion with his brother. On 8th April, 1989 a regular charge-sheet was served on him and departmental inquiry was instituted. Ultimately after detailed inquiry, the inquiry officer submitted his report and it was found that the charges levelled against the petitioner were partially proved. The in-charge Municipal Commissioner accepted the findings reached by the Inquiry Officer and ultimately passed order dated 1st October, 1990 removing the petitioner from service. The penalty of removal is one prescribed under Section 56(2)(g) of the Bombay Provincial Municipal Corporations Act, 1949. hereinafter referred to as the said Act. Under Section 56(4)-any Municipal servant who is removed from service of any Authority other than the Corporation may appeal against the order of removal to the Authority immediately superior to the Authority which impose penalty and the Appellate Authority may, after obtaining the remarks of Authority which impose penalty, either confirm the order passed or substitute it as such order as it may consider just, including the 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.
3. By proviso to Sub-section (4) of Section 56 it is provided that the Standing Committee shall be deemed to be Authority immediately superior to the Commissioner. In this case since the order was passed by in-charge Municipal Commissioner, the appeal against order of removal was to be preferred to the Standing Committee. The petitioner accordingly preferred statutory appeal under Section 56(4) to the Standing Committee.
4. The Appellate Authority, i.e., Standing Committee thereafter proceeded to hear the appeal in the month of January 1991. It firstly condoned the delay and proceeded to decide the appeal on merits. It also took into consideration the written opinion filed by the Commissioner against the appeal of the petitioner and decided to set aside the order of removal from service and to reinstate the petitioner in service on condition that from the date of suspension till the date of removal the subsistence allowance paid to the petitioner should be treated as payment of full salary and that from the date of removal till the date of his reinstatement no salary shall be payable to the petitioner. For the purposes of pension and gratuity the services of the petitioner were ordered to be continuous.
5. Despite the said Resolution of Standing Committee to reinstate the petitioner in service as Telephone Operator, the Baroda Municipal Corporation failed to reinstate the petitioner in service. The petitioner approached the Corporation on number of occasion for his reinstatement and yet for a period of more than six months he was not reinstated. Thereupon the petitioner instituted the present petition in this Court in the month of July, 1991 seeking direction from the Court to the respondent-Corporation to reinstate him in his post as per the order of Standing Committee, i.e., Appellate Authority dated 3-1-1991. this Court (B.S. Kapadia, J.) passed following order:
This is a clear case in which the Standing Committee of the Respondent-Municipal Corporation has passed the order in the appeal filed by the petitioner to reinstate him in service with certain conditions, but the very order has not been implemented by the respondents. It is rather surprising that the Corporation is not implementing its own order though passed by the Standing Committee.
In that view of the matter the respondents are directed to reinstate the petitioner within a period of two weeks from the date of receipt of the writ of this Court, as per the order passed by Standing Committee on 3-1-1991 on Item No. 1 of the meeting of the Standing Committee of the respondent.
If the respondents have any grievance about the above direction, they will be at liberty to move the Court within a week from today, after giving 48 hours' notice to the learned Advocate for the petitioner.
In view of the above direction Mr. Pradip, J. Patel, learned Advocate does not press this petition. Hence the petition stands disposed of as not pressed.
Sd/-
Dtd. 8-7-1991 (B.S. Kapadia, J.)
6. It appears that thereupon the Miscellaneous Civil Application No. 921 of 1991 was filed by the Municipal Corporation and this Special Civil Application was restored to file vide order dated 5-8-1991. Thereafter on 22-8-1991 Justice C.V. Jani, passed the following order:
Leave to amend.
Rule returnable on 14th October, 1991. In the meantime respondents will obtain appropriate orders from the Government in respect of their application dated 24-7-1991. The pendency of this petition will not come in the way of the Government in deciding the respondent's application according to law. Mr. P.G. Desai waives service of rule.
Sd/-
Dtd. 22-8-1991 (C.V. Jani, J.)
7. Once again on 18-9-1991 this Court (C.V. Jani, J.) passed the following order:
After hearing the Advocates it is further clarified that the respondents will give effect to tue resolution passed by the Standing Committee if they do not obtain any orders from the Government restraining implementation of the said resolution. Liberty to apply in case of difficulty.
Sd/-
Dtd. 18-9-1991 (C.V. Jani. J) It thus becomes clear that respondents were directed to give effect to the resolution passed by the Standing Committee in case they failed to obtain the order from the State Government stopping the implementation of the Resolution of the Standing Committee.
8. It is required to be noted that there is power in the State Government to suspend any resolution or order of the Corporation or of any other Municipal Authority if such order of the Municipal Corporation or Authority is in contravention or in exercise of the powers conferred by this Act or of any other law for the time being inforce. This power is to be found in Section 451 of the said Act. The stand of the Municipal Commissioner is that since charges Nos. 1 to 3 and 5 to 7 levelled against the petitioner were partially proved and since charge No. 4 was fully proved it was established that the petitioner has procured directly or indirectly, by himself or his partner share or interest in contract and therefore under Section 59(2) of the said Act he has incurred disqualification so as to disentitle himself to be a municipal servant. In that view of the matter according to Municipal Commissioner the resolution of the Standing Committee cannot be enforced. He has further stated that therefore since the Standing Committee did not take into consideration the disqualification incurred by the petitioner as per the provisions of Section 59(2) this resolution cannot be enforced. The Municipal Commissioner has already filed an application for Review before the Standing Committee.
9. The said application of Review filed before the Standing Committee by the Municipal Commissioner was also considered by the Standing Committee on 18th July, 1991 and said application was rejected. The note put up by the Municipal Commissioner before the Standing Committee is self-contained and objection of Municipal Commissioner to the reinstatement of the petitioner based on Section 59 was very clearly stated. The Standing Committee has taken the said note into consideration and has noted with regret the stand of the Municipal Commissioner in not following the resolution passed by the Standing Committee. The Standing Committee also observed that even the High Court of Gujarat has also directed the Corporation to enforce the resolution of the Standing Committee. The Standing Committee therefore resolved on the application for review that the same was required to be rejected with further direction to reinstate the petitioner in service forthwith and with further observation that no further action should be taken in that connection in the Court of law.
10. Undaunted by the direction of the High Court and repeated resolution of the Standing Committee the Municipal Commissioner approached the State Government by way of Appeal under Section 451 of the said Act for suspending the resolution of the Standing Committee dated 3rd January, 1991 and 18th July, 1991, The State Government did not take any action thereon and Mr. D.N. Patel, learned A.G.P. who has appeared on behalf of the State Government stated to the Court that the State Government has not entertained the said Appeal of the Municipal Commissioner as it was not competent.
11. It is thus clear that despite the order of reinstatement passed in favour of the petitioner as back as 3rd January, 1991 the petitioner is not reinstated to the post of Telephore Operator and Municipal Commissioner is flouting the resolution of the Standing Committee under the plea that compliance with the order of the Standing Committee would amount to contravening Section 59(2) of the said Act and therefore he submits to this Court that the Court should not exercise its power of issuance of writ inasmuch issuance of writ in this case would be asking the Authority to commit contravention of law. He does not dispute the proposition that he is officer subordinate to the Standing Committee as stipulated by proviso to Sub-section (4) of Section 56 of the said Act. The Standing Committee is deemed to be the Authority immediately superior to the Commissioner and therefore his order is subject to the order that may be passed by the Standing Committee.
12. Mr. Pranav G. Disai, learned Counsel appearing for the respondent has mainly opposed the grant of any relief to the petitioner in this petition by submitting that this petition under Article 226 of the Constitution of India is only to enforce or implement the decision of the Standing Committee and that such a petition is not maintainable. He further submits that this Court under Article 226 of the Constitution of India would not issue a writ which would run contrary to the express provision of law or issuance of which would result into contravention of express provision of statute. He submits that in this case since reinstating the petitioner in the post of Telephone Operator pursuant to the order passed by the Standing Committee would amount to reinstating, an employee in service against whom the charge of acquiring directly or indirectly by himself or his partner any share or interest in the contract is established such a finding having been reached by the Inquiry Officer the employee has incurred disqualification under Section 59 of the said Act and he has ceased to be the Municipal Employee, and therefore directing his reinstatement in service would amount to directing the Authority to commit breach of the provisions of Section 59. He has further submitted that even under Section 20 of the Specific Relief Act a provision is made to the effect that there cannot be any specific performance of a contract or agreement which is in contravention of law and Court shall not enforce any agreement or contract or any transaction which would amount to committing contravention of law. He further submitted that the jurisdiction which the Court exercises in a case like this is akin to equity jurisdiction and Court should not extend its helping hand in favour of a cause which ultimately would lead to perpetuating contravention of law.
13. Before I proceed to deal with the rival submissions of the parties it is required to be stated that the Municipal Commissioner has approached the State Government vide his letter dated 24th July, 1991 requesting the Government to take appropriate steps under Section 451 of the said Act for suspending the resolution of the Standing Committee dated 3rd January, 1991 of reinstating the petitioner in service and also resolution No. 407 of Standing Committee dated 18th July, 1991 refusing to review its earlier resolution and directing the Commissioner to comply with its earlier resolution. Mr. P.G. Desai, learned Counsel appearing for the Commissioner has submitted before the Court that till the State Government decides its application preferred to it under Section 451 no direction should be issued to the Commissioner to reinstate the petitioner in service. It should be stated that by order dated 28th November, 1991, the learned single Judge (C.R. Thakker, J.) of this Court directed the State Government to consider the application of the Municipal Commissioner as expeditiously as possible. At the hearing of this Application Mr. D.N. Patel, learned A.G.P. has stated to the Court that the State Government has decided not to take any action on the application of Municipal Commissioner inasmuch as the State Government is of the opinion that Government has no power to review and/or set aside the Resolution of the Standing Committee under Section 451 of the said Act and that therefore it has decided not to take any action on such application preferred by the Municipal Commissioner.
14. From the aforesaid narration of facts it becomes clear that the order of removal from service passed against the petitioner based on finding reached in Departmental Inquiry is quashed and set aside by the Appellate Authority, i.e., Standing Committee in an Appeal preferred to it under Section 56(4) of the said Act. There is no dispute about the fact that the Appeal to the Standing Committee is a statutory appeal. It is also clear that as the Appellate Authority the Standing Committee under Section 56(4) has very wide power, after obtaining the remarks of the Authority which imposed penalty to.
1. confirm the order;
2. substitute for it such order as it considers just including an order for the imposition of some lesser penalty; and
3. it is further stipulated that effect to such order of Appellate Authority shall be forth-with given;
4. such order of Appellate Authority shall be conclusive.
15. It is thus clear that Standing Committee has very wide power to confirm the order of imposition of penalty or to substitute such order, by any order which it considers just. It can even pass order imposing the lesser penalty. When the Appellate Authority after taking into consideration the remarks of the Authority which imposed the penalty decides to revoke the penalty and substitute the same by other order or decides to impose some lesser penalty it definitely acts within its jurisdiction. It cannot be said that such Appellate Authority has acted beyond its power or jurisdiction. The order imposing the lesser penalty and consequently directing the reinstatement of an employee cannot therefore be said to be a non est order or still born order or order withont jurisdiction. It is also to be kept in mind that the legislature has intended such order of Appellate Authority to be conclusive. The legislature has also intended that forthwith effect shall be given to such an order of Appellate Authority. It is required to be noted here that in the present case the Appellate Authority has called for the remarks of the Municipal Commissioner who passed the order of removal. In such remarks the Municipal Commissioner did point out that reinstating the petitioner in service would amount to reinstating disqualified employee in service. Such objection of Municipal Commissioner is taken into consideration by the Appellate Authority and Appellate Authority has passed the order of reinstating the petitioner in service and setting aside the order of his removal from service. The objection which is taken by Municipal Commissioner is thus overruled by the Standing Committee, i.e., Appellate Authority. The Standing Committee is for the purposes of Section 56(4) the Superior Authority. The Superior Authority has overruled the objection of the Municipal Commissioner. It would therefore amount to saying that reinstating the petitioner to the post of Telephone Operator would not amount to committing breach of Section 59 of the said Act. It would also amount to saying that the Appellate Authority, i.e., Standing Committee has not agreed with finding reached by the Disciplinary Authority and has not found the misconduct to be so grave so as to call for harsher penalty of removal. In the alternative it can also be said that despite finding reached by the Municipal Commissioner, the Appellate Authority has found the case of the petitioner to be a fit case for his reinstatement and Standing Committee has thereby waived objection, if there is any on account of operation of Section 59 of the Act.
16. In Bhopal Sugar Industries Ltd. v. Income Tax Officer AIR 1961 SC 185 a Constitutional Bench of five Judges of the Supreme Court was called upon to decide as to whether the subordinate Tribunal was justified in not carrying out the clear and unambiguous directions of the superior Tribunal and as to whether the High Court was justified in refusing to issue writ on the ground that no injustice had resulted. The Income Tax Officer deliberately refused to carry out the clear and unambiguous directions which the Income Tax Appellate Tribunal had given to him by its final order in exercise of its appellate powers in respect of the order of assessment made by him. The High Court refused to issue writ on the ground that no manifest injustice had resulted from the order of Income Tax Officer in view of the error committed by the Income Tax Appellate Tribunal. While allowing the appeal the Supreme Court made following observations:
We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter, dated March 24, 1955. By that order the directions which a superior Tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect denial of justice, and is further more destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts. If a subordinate Tribunal refuses to carry out directions given to it by a superior Tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior Tribunal, yet held that no manifest injustice resulted from such refusal.
While not approving the approach of the High Court the Supreme Court farther observed as under:
The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier, such a view is destructive of one of the basic principles of the administration.
17. In the facts of this case, the Municipal Commissioner was the disciplinary authority who passed the order of removal from service. Such an order of the disciplinary authority was subject to statutory appeal provided to Standing Committee of the Municipal Corporation. It is also not disputed that the Municipal Commissioner is an officer subordinate to the Standing Committee as stipulated by proviso to Sub-section (4) of Section 56 of the said Act. Therefore, the order passed by the Standing Committee which has taken into account the objection raised by the Municipal Commissioner and which has ordered reinstatement of the petitioner was required to be carried out. Refusal on the part of the Municipal Commissioner to carry out the order of the appellate authority would in fact be denial of justice and would be destructive of one of the basic principles in the administration of justice. If the Municipal Commissioner as a subordinate officer is permitted to refuse to carry out the directions given to him by the superior Tribunal in the exercise of its appellate powers there would be chaos in the administration of justice and therefore, I am of the opinion that applying the aforesaid principle propounded by the Constitutional Bench of the Supreme Court the Municipal Commissioner cannot be permitted to assiduously refuse to carry out the order of the appellate authority. In my opinion, even if such an order is illegal or contrary to law the only remedy to the Municipal Commissioner is to challenge the same before the appropriate forum and it was not open to him to simply refuse to carry out the same. The action of the Municipal Commissioner, to say the least, deserves denunciation and shall have to be condemned as quite unreasonable.
18. The objection raised by the Municipal Commissioner, in my opinion, is not even otherwise sound and acceptable. Once the appellate authority duly constituted by setting out the appellate powers either confirms, modifies or sets aside the order passed by the subordinate authority, the order of the subordinate authority no longer survives. In the findings reached and reasoning given by the subordinate authority would merge into the order of the appellate authority. The principle of merger is well accepted and even to Administrative Tribunals the said principle is extended. In the case of Somanath Sahu v. State of Orissa and Ors., the Supreme Court was called upon to decide the question of validity or otherwise of the order of dismissal of the appellant from service. The order of dismissal against the appellant was passed by the Welfare Officer of the respondent-Company. The legality and validity of the said order was challenged on the ground that no notice was given to the appellant to deny misconduct and no enquiry was held by the Welfare Officer of the company before passing the order of dismissal. While considering the said question as regards the validity of the order of dismissal it was noticed by the Court that against said order of dismissal the appellant has preferred appeal to the State Govt. and the appeal was dismissed. The Court found that it was the appellate decision alone which was subsisting and it was operative in law and was capable of enforcement. In this connection the Court observed as under:
In other words, the original decision of the respondent No. 4 dated the 11th March, 1960, on longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to grant of any relief. There can be no doubt against an order passed by the Tribunal; the decision of the appellate authority is operative decision in law if the appellate authority modifies or reverses it. In law the position would be just the same even if the appsllate decision merely confirms the decision of the Tribunal. As a result of the confirmation or the affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement.
19. From the aforesaid observations it becomes clear that once the Standing Committee of the Municipal Corporation allowed the appeal of the petitioner by substituting the penalty and ordered reinstatement of the petitioner in service the only subsisting order was that of the Standing Committee and the order of the Municipal Commissioner no longer thereafter survived. The findings reached by the Municipal Commissioner would automatically disappear once the said order is set aside and once the Standing Committee took the decision to reinstate the petitioner in service. It was therefore not opsn to the Municipal Commissioner to refer back to the findings reached by him and to agitate that the said findings were not specifically reversed by the Standing Committee. In my opinion, the result of the order passed by the Standing Committee is that the findings reached by the Municipal Commissioner are not virtually accepted by the appellate authority and the petitioner is ordered to be reinstated. The ultimate conclusion reached by the Standing Committee would, in my opinion, leave no room for doubt that the findings reached by the Municipal Commissioner were set aside or by necessary implication they shall have to be treated as not accepted by the appellate authority. The Municipal Commissioner was therefore not at all justified in falling back upon the findings reached by him in the order of removal passed by him inasmuch as the said order did not survive after the order was passed by the Standing Committee. The said order would merge with the order of the Standing Committee and the only order that can be looked upon by this Court under Article 226 of the Constitution of India is the order of the Standing Committee.
20. Mr. Pranab Desai, learned Counsel for the respondent-Corporation has relied upon the decision of the Supreme Court in the case of M.P. Mittal v. Stale of Haryana and Ors., to bring home the point that this Court under Article 226 of the Constitution of India has power to refuse the relief when the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate injustice. He submitted that since the petitioner in this case has committed a serious misconduct which would disqualify him from continuing in service and since said finding was reached by the disciplinary authority, i.e., the Municipal Commissioner, this Court should not grant any relief to the petitioner. I am afraid I cannot accept this contention since it overlooks the fact that in appeal the Standing Committee after considering the order of the disciplinary authority and after considering the gravity of the charges levelled against the petitioner it decided to allow the appeal by reinstating the petitioner in service. This would actually amount to not agreeing with the findings reached by the disciplinary authority. Even when the review application was preferred by the Municipal Commissioner and specific objection was brought by him to the notice of the Standing Committee the appellate authority has rejected the review application and has ordered the Municipal Commissioner to comply with its order. I am, therefore, of the opinion that it cannot be said that the jurisdiction of this Court is invoked to secure dishonest advantage. In fact the appellate authority has allowed the appeal of the petitioner and has ordered his reinstatement. Appeal is statutory appeal. The result of said appeal is in favour of petitioner. The result of said appeal is that the order of the Municipal Commissioner no longer survives. The findings reached by the Municipal Commissioner in his order are for all purposes to be treated as non est and are required to be ignored. I am, therefore of the opinion that if relief as prayed for is not granted in this petition despite success of the petitioner in appeal before the Standing Committee it would amount to doing injustice to the petitioner. The aforesaid decision does not therefore, help the respondents. I am of the opinion the ratio of the said decision does not help the respondent-Corporation.
21. Incidentally, I may mention that Mr. P.G. Desai also referred to and relied upon the decision in the case reported in AIR 1983 Goa 3. To the proposition of law propounded therein no exception can be made, but in my opinion the said proposition of law in no way furthers the case of the respondent-Corporation. In the facts and circumstances of the case I am of the opinion that in view of the proposition of law as propounded by the Supreme Court in the case of Bhopal Sugar Industries v. Income Tax Officer, reported in AIR 1961 SC 185 (supra) read with the principle of merger as propounded by the Supreme Court in the case of Somnath Sahu v. State of Orissa and Ors., there is no room for doubt that it is a case where writ shall have to be issued to the respondent-Corporation to reinstate the petitioner in service and in my opinion issuance of such writ would not amount to committing contravention of any of the provisions of law. The Contention raised by the Municipal Commissioner and put forth before me by Mr. P.G. Desai learned Counsel for respondent-Corporation is fallacious for the simple reason that it takes into account the finding reached by the disciplinary authority and it fails to take into account the findings reached and ultimate directions issued by the Standing Committee while deciding the appeal as well as by deciding review application and if the decision of the Standing Committee (appellate authority) along with the directions issued by the Standing Committee are taken into consideration I am of the opinion that the Standing Committee has while ordering the reinstatement of the petitioner in service without backwages has factually not accepted the findings reached by the disciplinary authority. It cannot therefore be said that any disqualification is incurred by the petitioner, and therefore. I do not find any substance in any of the objections put forth by the respondents through their Counsel, Mr. P.G. Dcsai in not reinstating the peitioner in services and in not carrying out the order of the Standing Committee. As noticed by the Supreme Court in the case of Bhopal Sugar Industries (supra) the said attempt on the part of the respondents would result into creating chaos in the administration of justice and would be destructive of one of the basic principles of administration of justice.
22. In the result this petition is allowed. The respondents are directed to reinstate the petitioner in service on his original post forthwith and they are also directed to pay to the petitioner full backwages with effect from 3rd January, 1991 till he is reinstated as if he has been continuously working on his original post from the said date.
23. In view of the aforesaid order in the main petition there shall be no order on C.A. No. 2051 of 1991. Rule is made absolute accordingly with no order as to costs.
At this stage, Mr. P.G. Desai requests the Court for stay to stay the operation of this order to enable the Corporation to prefer appropriate proceedings. Accordingly, operation of this order is stayed upto 15-4-1992.