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2012 (1) ALL MR 497
High Court of Judicature at Bombay
MOHIT S. SHAH & ABHAY S. OKA & R.S. DALVI
Ambarish Rangshahi Patnigere & Others
Versus
State of Maharashtra & Others
WRIT PETITION NO. 1797 OF 2011
Decided on : 22-12-2011
Bombay Provincial Municipal Corporation Act (59 of 1949) - Section 5(2) - Reference to Corporation - Reference to Corporation under Section 5(2) of Act, is a reference to General Body of Corporation consisting of elected and nominated Councillors.
Bombay Provincial Municipal Corporation Act (59 of 1949) - Section 56(1)(b), (2)(f) - Power of suspension - Commissioner, can exercise powers under Section 56(1)(b) of Act pending a disciplinary enquiry and suspension made will not be by way of penalty and an order of suspension made under Section 56(2)(f) of Act is by way of penalty.
The powers under clause (b) of sub-section (1) of Section 56 of the Bombay Provincial Municipal Corporations Act, 1949 can be exercised by the Commissioner pending a disciplinary enquiry or when a disciplinary enquiry is proposed to be held against a municipal officer or servant. If power of suspension is exercised by the Commissioner under clause (b) of sub-section (1) of Section 56 of the said Act of 1949 pending a disciplinary inquiry or in contemplation of the disciplinary inquiry, the order of the suspension shall stand revoked if it is not ratified by the General Body within a period of six months. The petitioners’ suspension under orders dated 10th September, 2009 passed by the Commissioner of the Navi Mumbai Municipal Corporation shall be treated as having come to an end upon expiry of the period of six months from the date of suspension, on account of such suspension not having been confirmed by the Navi Mumbai Municipal Corporation during the said period of six months as provided under Section 56(1)(b) of the Bombay Provincial Municipal) Corporations Act 1949. The respondent No. 4- Corporation is directed to allow the petitioners to resume the work.
Bombay Provincial Municipal Corporation Act (59 of 1949) - Section 56(1)(b), (2)(f) - Power to suspend Municipal employees - Order of suspension passed by Commissioner requires ratification by Corporation within 6 months from date of order and if not ratified within said period, order of suspension automatically revoked.
MAHARASHTRA CIVIL SERVICES (DISCIPLINE AND APPEAL) RULES, 1979 - Rule 4(2) - Order of suspension - Order of suspension passed under Rule 4(2), can be revoked or reviewed prior to conclusion of trial or inquiry.
MAHARASHTRA CIVIL SERVICES (DISCIPLINE AND APPEAL) RULES, 1979 - Rule 4(2) - Order of suspension order - Since order of suspension passed by Appointing Authority under Rule 4(2) of Rules 1979 is a deemed suspension hence such order can be reviewed by Appointing Authority.
Key Points: - The Commissioner can suspend pending a disciplinary inquiry under Section 56(1)(b), but such suspension must be ratified/confirmed by the General Body within six months, or it automatically ends. (!) (!) (!) - The proviso to Section 56(1)(b) clarifies that suspension under (b) pending enquiry is not a penalty, and can be revoked if not confirmed within six months. (!) (!) - Suspension under Rule 4(2)(a) can be reviewed or revoked prior to the conclusion of trial or inquiry, and the rules allow representations for revocation under Rule 4(5). (!) (!) (!) (!) - The petitioners’ suspension ended automatically after six months due to non-confirmation, and they were allowed to resume work. (!) - The Corporation’s ratification requirement applies regardless of whether the underlying suspension was issued under Section 56 or Rule 4(2)(a). (!) (!)
1. A Division Bench of this Court by order dated 8th April, 2011 ordered that this petition shall be placed before a Larger Bench. The order dated 8th April, 2011 passed by the Division Bench reads thus:
“Having heard the learned counsel for the petitioners, learned Government Pleader and the learned counsel for Municipal Corporation, we are of the view that the decision of the Division Bench of this Court in SudhirR. Bhatankar v. State of Maharashtra and others, 1999 (Supp.) Bom. C.R. 910: 2000 (1) Mh.L.J. 519. in so far it holds that the provisions of section 56(1)(b) of the B.P.M.C. Act will not apply where suspension is for holding an enquiry in the charges levelled against an officer requires reconsideration. The matter shall accordingly, be placed before the Larger Bench.”
2. By this Writ Petition under Article 226 of the Constitution of India, the Petitioners who are the officers of the Municipal Corporation of the city of Navi Mumbai (for short “the said Corporation”) have challenged the order of suspension. The said Corporation has been constituted under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as “the said Act of 1949”). The Petition has been filed for challenging the orders of suspension passed by the Commissioner of the said Corporation on 10th September, 2009. The Petitioner Nos.1 and 2 are the Deputy Commissioners of the said Corporation. The Petitioner No.3 is the Assistant Commissioner of the said Corporation. The Respondent No. 4 is the Chief Accountant and Finance Officer of the said Corporation and the Petitioner No.5 is the Assistant Accounts Officer of the said Corporation.
3. The said Corporation has been entrusting the work of removal of the encroachments to a private contractor. For the period of 2003-09, the said work was assigned to M/s. H.B. Bhise and Company. On the basis of the allegation that there were certain irregularities in the payments made to the said contractor, the Commissioner of the said Corporation conducted a special audit. On the basis of the said special audit, the Commissioner directed that a complaint be filed against M/s. H.B. Bhise and Company. Accordingly, an Assistant Commissioner of the said Corporation lodged a complaint against the said contractor on 16th May, 2009 with CBDBelapur Police Station, Belapur, Navi Mumbai. On the basis of the said complaint, FIR was registered on 17th May, 2009 alleging commission of the offences punishable under Sections 420, 465, 467, 468 and 471 of the Indian Penal Code.
4. According to the case of the Petitioners, they were called on 8th September, 2009 by the Investigating Officer. Some of the officers working in the Encroachment Department were also called on the same day. On 8th September, 2009, when the Petitioners reported to the Investigating Officer, they were arrested. It is the case of the Petitioners that the officers who were called for investigation, but did not remain present before the Investigating Officer were not arrested. The bail application filed by the Petitioners was not decided immediately and therefore, the Petitioners continued to be in the custody for a period of 48 hours. Subsequently, the Petitioners were enlarged on bail.
5. On 10th September, 2009, the Respondent No.5 (Commissioner of the said Corporation) passed separate orders of suspension against the Petitioners. In the said orders, the Respondent No.5 stated that the Petitioners were detained in the custody for a period exceeding 48 hours. In the order, it was stated that the same was issued in accordance with Sub-Rule (2) (a) of Rule 4 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (hereinafter referred to as “the Civil Services Rules”) in exercise of powers conferred by clause (b) of Sub-Section (1) of Section 56 of the Bombay Provincial Municipal Corporation Act, 1949. It was stated in the orders that the Petitioners shall be deemed to have been suspended from 8th
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