Judgment

KASLIWAL, J.:- This appeal by special leave is directed against the judgment of the Bombay High Court dated 30th June, 1977. It is not necessary to mention the facts in detail, as this appeal succeeds on a short point. Dr. Dattatraya Mahadev Nadkarni (since deceased) - (hereinafter referred to as the appellant) was employed as Medical Assistant in the Municipal Corporation of Greater Bombay. He was served with a charged sheet dated 5-7-1961. The, charges levelled against him were that while suspended from duty from 2-11-1960 he failed to give charge of the Registers of International Health Certificates sued in 1957, 1958, 1959 and up to March 1960. In spite of thorough search the Registers of the above Certificates were not found in the dispensary. The appellant was thus guilty of negligence (1) for the loss of the Registers and (2) for not giving proper charge of the dispensary. The Deputy Municipal Commissioner (Labour) agreeing with the report of the Inquiry Officer, issued a show cause notice to the appellant holding that the charges mentioned in the charge sheet were proved against the appellant. The appellant was directed to show cause as to why he should not be dismissed from municipal service for the charges proved against him? Thereafter by order dated 26-2-1962 the acting Municipal Commissioner imposed the punishment of removal from service on the delinquent i.e. the appellant. The order of dismissal was confirmed by the Appellate Authority on 18-5-1962. The appellant after serving a statutory notice, filed a civil suit challenging the aforesaid order of dismissal. It was prayed that all the orders of suspension, dismissal and appellate order be declared ultra vires, void, illegal and inoperative and the defendants be directed to reinstate the appellant in service with full back wages. It was also prayed that a decree for a sum of Rs. 11,314.55 paid towards the arrears towards salary up to the date of the suit and further salary and attendant benefits from the date of suit till reinstatement be passed. The suit was contested by the Municipal Corporation of Greater Bombay. The suit was dismissed by the trial Court and the appeal filed before the High Court was also dismissed. The appellant has come to this Court in appeal.

2. It may be mentioned that the appellant died during the pendency of the appeal before this Court and the appeal has been pursued by his legal representatives namely, his widow and two sons. Mr. M. Bhandare, Learned Senior Counsel has submitted that according to Clause (a) of proviso 2 of Section 83 of the Bombay Municipal Corporation Act, 1888 no officer whose monthly emoluments exceeded Rs. 400/- could be dismissed from service by the Commissioner without the previous approval of the Standing Committee. It was contended that in the present case the appellant was admittedly drawing monthly emoluments of Rs. 520/- and the order of dismissal was passed by the Commissioner dismissed the appeal summarily without adverting to the above ground and the trial court wrongly held that the impugned order dated 26-2-1962 was merely an order of removal and not dismissal.

3. Learned counsel appearing for the Municipal Corporation submitted that the trial Court was, right in holding that and as such the condition of seeking approval from the Standing Committee was not necessary and the Commissioner had authority to pass such order.

4. We have considered the arguments advanced by Learned Counsel for both the parties and have thoroughly perused the record. Admittedly the appellant at the relevant time as drawing monthly emoluments of Rs. 520/- and there was no approval of the Standing Committee before passing the impugned order dated 26-2-1962. Section 83 of the Bombay Municipal Corporation Act, 1888 and proviso 2 (a) reads as under:

"Section 83. (1) Every Municipal Officer and servant may be fined, reduced, suspended or dismissed for any breach of departmental rules or discipline or for carelessness, unfitne