The dismissal of an employee for mala fide conduct is justified, even if the employee's appointment was invalid.

Headnote:
MUNICIPALITIES ACT - SECTION 25(6) AND 176(2)(VII) - RULES FRAMED THEREUNDER - APPEAL - SECOND APPEAL - COMPETENCY - EMPLOYEE DRAWING RS. 50/- PER MENSEM OR OVER - INCLUDES COMPENSATORY COST OF LIVING ALLOWANCE - INQUIRY - WANT OF PRIOR ORDER FROM MUNICIPAL COMMITTEE - SUBSTANTIAL COMPLIANCE - NO PREJUDICE - VALIDITY OF APPOINTMENT - IRRELEVANT - MALA FIDE CONDUCT - DISMISSAL - JUSTIFIED.
Fact of the Case:

Petitioner, employed as a Correspondence Clerk by the Municipal Committee, was dismissed from service for mala fide conduct. He challenged the dismissal order, contending that the second appeal before the Deputy Commissioner was incompetent, the inquiry held was without jurisdiction, and his appointment was invalid.
Finding of the Court:

The court held that the second appeal was competent as the petitioner was drawing a total of Rs. 70/- per month, including Compensatory Cost of Living Allowance, which satisfied the condition of "drawing Rs. 50/- per mensem or over" under the relevant rule. The court also found that the want of a prior order from the Municipal Committee directing the Secretary to hold an inquiry was a mere lacuna that was substantially complied with, and no prejudice was caused to the petitioner. The court further held that the validity of the petitioner's appointment was irrelevant as his mala fide conduct justified the dismissal.
Issues: 1. Whether the second appeal before the Deputy Commissioner was competent? 2. Whether the inquiry held was without jurisdiction? 3. Whether the petitioner's appointment was invalid?
Ratio Decidendi: 1. The phrase "drawing Rs. 50/- per mensem or over" in the relevant rule includes Compensatory Cost of Living Allowance. 2. The want of a prior order from the Municipal Committee directing the Secretary to hold an inquiry was a mere lacuna that was substantially complied with, and no prejudice was caused to the petitioner. 3. The validity of the petitioner's appointment was irrelevant as his mala fide conduct justified the dismissal.
Final Decision: The petition was dismissed.

Judgment -Y.S. Tambe J.

1. By this petition under Article 226 of the Constitution of India, the petitioner Abdul Rahim Khan prays for a writ of certiorari Quashing the order dated 13-4-1957 made by the Additional Deputy Commissioner, Khamgaon, second respondent hereto, as well as the order of the Municipal Committee Khamgaon, first respondent hereto, dismissing him from service. He also prays for a writ of mandamus to the first respondent directing it that the petitioner be reinstated in the service as and from the date of his dismissal with all his attendant rights, privileges and benefits.

2. The petitioner was employed in the service of the first respondent on 12-5-1953, under the orders of the President of the first respondent, as a Correspondence Clerk on a probation for one year. His pay scale was 40-1-50-bar-2-70. In addition to the pay, the petitioner was entitled to receive Rs. 30/- per month as Compensatory Cost of Living Allowance. On 21-7-1953, the petitioner was posted as an Audit Clerk. The first respondent at its meeting held on 12-8-1955 considered the question of confirmation of the services of the petitioner and some other employees.

So far as the petitioner was concerned, it was resolved that if the petitioner produced a letter of authority showing that the resignation tendered by him of his post of Revenue Inspector was duly accepted, then he should be confirmed as and from 1-3-1955. According to the petitioner, he produced that authority and showed it to the President in October 1955, and was, therefore, entitled to be treated as a confirmed employee. It appears that the petitioner then started contributing towards Provident Fund and to enable him to do so he himself entered his name in the bill of permanent employees without there being any order to that effect from any higher authority. When this fact was noticed, an objection thereto was raised by some members of the Municipal Committee and the matter was brought to the notice of the President. The President then directed the Secretary to hold an enquiry.

The Secretary then duly held an enquiry and reported the matter to the President. The question then was considered in the meeting of the first respondent and by resolution dated 17-7-1956 it was resolved that the petitioner should be dismissed. Against this decision of the first respondent, the petitioner preferred an appeal before the Sub-Divisional Officer. The appeal succeeded and the Sub-Divisional Officer set aside the order of dismissal made by the first respondent. The first respondent then preferred an appeal before the Deputy Commissioner against the order of the Sub-Divisional Officer. This appeal succeeded and the learned Deputy Commissioner set aside the order of the Sub-Divisional Officer and restored the resolution of the Municipal Committee whereby the petitioner was dismissed. The petitioner, therefore, has come up to this Court.

3. In the first instance, Shri D.B. Padhye, who appears for the petitioner, contends that the second appeal at the instance of the Municipal Committee before the Deputy Commissioner was not competent, firstly, on the ground that there is no right of appeal conferred on the Municipal Committee under Sub-section (6) of Section 25 of the C.P. and Berar Municipalities Act, 1922; Sub-section (6) of Section 25 reads as follows:

"The Provincial Government may prescribe the classes or grades of officers and servants who shall have the right of appeal except in the case of dismissal under Sub-section (5) from any decision of the committee inflicting any departmental punishment other than censure." In our opinion, this sub-section relates only to a right of appeal against the decision of the" Committee inflicting any departmental punishment other than censure. This has no relevance in considering the right of a second appeal against an order made on appeal from the decision of the Committee inflicting any departmental punishment other than censure. Clause (vii) of Section 176(

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