Point of Law: Notification and the enunciation of law in the afore-extracted order, would all lead to an unmistakable conclusion that the Commissioner is not the competent authority to place the petitioner under suspension and such an order becomes non est in the eye of iaw and a non est order is incapable of being approved.

ORDER :

This case, though listed for orders, with the consent of the learned counsel for the parties, is taken up for final disposal.

2. The petitioner in this writ petition calls in question an order dated 09.02.2021, bearing No.109911-EMP/EST-1-069/16-17 (78087/16-17), which places the petitioner under suspension.

3. Shorn of unnecessary details, brief facts for consideration of the lis are as follows:

The petitioner is a Group ‘C’ employee, working as Second Division Assistant, having joined City Municipal Council, Shimogga, which has now become Shimogga Municipal Corporation or Shimogga Mahanagara Palike (hereinafter referred to as ‘the Corporation’ for short).

4. Owing to certain alleged irregularities, pending initiation of disciplinary proceedings, an order is passed by the third respondent – the Commissioner of the Corporation placing the petitioner under suspension. It is this order that is called in question in the subject writ petition.

5. Heard Sri Vijaya Kumar, learned counsel appearing for the petitioner, Smt. M.C.Nagashree, learned Additional Government Advocate appearing for the first and second respondents and Sri A.V.Gangadharappa, learned counsel appearing for the third respondent.

6. Learned counsel appearing for the petitioner would vehemently argue and contend that the order dated 09.02.2021, is non est in the eye of law as it is passed by an authority who was not competent or an authority who was not authorized to do so. In this regard, the learned counsel would take this Court to the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as ‘the KCS (CCA) Rules’ for short), with particular reference to Rule 10 and the Karnataka Municipal Corporation (Common Recruitment of Officers and Employees) Rules, 2011, to buttress his submission with regard to the order of suspension being without authority of law.

7. On the other hand, Sri A.V.Gangadharappa, learned counsel appearing for the third respondent would submit that in terms of Section 90 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as ‘the said Act’ for short) the competent authority for imposition of any penalty or otherwise is as prescribed. It is in terms of the notification issued by the government on 17.04.2017, empowering the Commissioner to pass the order of suspension since what is defined in the notification is the punishing authority, but for placing an employee under suspension, the Commissioner or any authority specified, who is competent to pass.

7.1. He would further submit that the charge sheet is issued by the Deputy Commissioner though the order of suspension is passed by the Commissioner against the petitioner to which the petitioner has also submitted his reply. Therefore, he would submit that the writ petition be dismissed.

7.2 The learned Additional Government Advocate representing first and second respondents would only submit that the Rules and the notification being in place it is for every Corporation to follow what is depicted in notification dated 17.04.2017 and would further submit that the order of suspension is passed by the third respondent and its defense would be at the hands of the third respondent.

8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is that, whether the impugned order of suspension passed by the Commissioner, Corporation, suffers from want of competence?

9. The genesis of the employment of the petitioner is not in dispute that it was with the City Municipal Council, Shimogga, which has now become Shimogga Mahanagara Palike or the Corporation. The State Government on several City Municipalities becoming Corporations promulgated Rules governing their service conditions by issuance of a notifi