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2007(2) JLJ 154
J.K. Maheshwari, J.
Jagdish Chandra v. Collector, District Dewas and another
Writ Petition(S) No. 791 of 2006 (Indore); Decided on 13.2.2007.
It is the case of petitioner that he was initially appointed in the Nagar Palika Bagli as LDC vide Annexure P-1 and promoted as Head Clerk-cum-Accountant as per resolution No.31 dated 6.12.1994. The order of his promotion was confirmed by the Director of Urban Administration and Development, Government of M.P. on 2.6.1995 vide Annexure P-2. However, it is urged that he is appointed in the Municipal Council Bagli under the provisions of section 94 sub-section (4) of the Municipalities Act, 1961 (hereinafter called as "the Act"). Under sub-section (4) of section 94 of the Act, a municipal employee may be placed under suspension by the President-in-Council constituted under section 70 of the Act, which is the disciplinary authority under M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (herein after called as "the Recruitment Rules"). It is said that the Collector, Dewas, who has passed the order of suspension Annexure P-5 dated 20.1.2006, is neither his appointing authority nor the disciplinary authority, however, power as exercised by him to place the petitioner under suspension is without any authority under the law arbitrary, mala fide and illegal. [Para 2
Held : Bare perusal of the said Rules indicates that Municipal Council shall have the power to impose any of the penalty under rule 49 on any municipal employee holding the post specified under sub-section (4) of the section 94 of the Act, and in other cases standing committee shall have the same power. As per rule 53, the disciplinary authority is competent to initiate the disciplinary proceedings, having regard to the nature of the charges and the circumstances of the case, if any, such authority may also place the employee of the Municipal Council under suspension against whom, the disciplinary proceedings have been initiated. In view of the aforesaid provisions, it is apparent that the employees of the Municipal Council, who were appointed under section 94 subsection (4) of the Act, are governed by the aforesaid Rules. [Para 8
In view of the foregoing, the power as exercised by the Collector, Dewas (respondent No.1) to place the petitioner under suspension is without any authority under the law and the order of suspension passed by him is without jurisdiction. [Para 9
(2) Municipalities Act, 1961 (M.P.) -- Ss.322 and 323 -- Collector has no power to suspend municipal employees -- Collector and Commissioner have been delegated the power of supervision. [Para 10
¼1½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 94¼4½ rFkk 95 && e-iz- uxjikfydk deZpkjh ¼HkrhZ rFkk lsok dh ‘krsZa½ fu;e] 1968 && fu-49] 50 rFkk 53 && /kkjk 94¼4½ ds v/khu fofufnZ"V in /kkj.k djus okys uxjikfydk deZpkjh && /kkjk 95 ds v/khu fojfpr fu;eksa }kjk ‘kkflr && fu-51 esa fofufnZ"V vuq‘kklfud izkf/kdkjh fu-53 ds v/khu deZpkjh dks fuyafcr dj ldrk gS && dyDVj dks ,slh dksbZ Hkh ‘kfDr ugha gSA
;kph dk i{kdFku gS fd vkjaHk esa mls mikca/k ih&1 }kjk uxjikfydk ckxyh esa fuEu Js.kh fyfid fu;qDr fd;k x;k Fkk rFkk ladYi Ø-31 fnukad 6-12-1994 }kjk iz/kku fyfid≶&ys[kkdkj ds in ij izksUur fd;k x;k FkkA mldh inksUufr dk vkns‘k lapkyd] uxjh; iz‘kklu rFkk fodkl] e-iz- ‘kklu }kjk 2-6-1995 dks mikca/k&2 }kjk iq"V fd;k x;k FkkA rFkkfi] crk;k x;k gS fd mls uxjikfydk ifj"kn~ ckxyh esa uxjikfydk vf/kfu;e] 1961 ¼,rfLeu~i‘pkr~ ^^vf/kfu;e** dgk x;k gS½ dh /kkjk 94 mi/kkjk ¼4½ ds mica/kksa ds v/khu fu;qDr fd;k x;k gSA vf/kfu;e dh /kkjk 94 dh mi/kkjk ¼4½ ds v/khu uxjikfydk deZpkjh vf/kfu;e dh /kkjk 70 ds v/khu xfBr izslhMsaV&bu&dkmfUly }kjk fuyafcr fd;k tk ldrk gS tks e-iz- uxjikfydk deZpkjh HkrhZ rFkk lsok dh ‘krsZa fu;e] 1968 ¼,rfLeu~i‘pkr~ ^^HkrhZ fu;e** dgk x;k gS½ ds v/khu vuq‘kklfud izkf/kdkjh gSA dgk x;k gS fd dyDVj nsokl] ftlus fuyacu vkns‘k fnukad 20-1-2006 mikca/k ih&5 ikfjr fd;k gS] u rks mldk fu;qfDr izkf/kdkjh gS] u vuq‘kklfud izkf/kdkjh gS] u vuq‘kklfud izkf/kdkjh gh] fQj Hkh mlds }kjk ;kph dks fuyafcr djus ds fy, ‘kfDr dk iz;ksx fd;k tkuk fof/k ds izkf/kdkj ds fcuk] euekuk] vln~Hkkoiw.kZ vkSj voS/k gSA ¼iSjk 2
vfHkfu/kkZfjr % mDr fu;eksa ds ifj‘khyu ek= ls minf‘kZr gksrk gS fd vf/kfu;e dh /kkjk 94 dh mi/kkjk ¼4½ ds v/khu fofufnZ"V in /kkj.k djus okys fdlh&Hkh uxjikfydk deZpkjh ij fu;e 49 ds v/khu dksbZ&Hkh ‘kkfLr vf/kjksfir djus dh ‘kfDr uxjikfydk ifj"kn~ dks gksxh] rFkk vU; ekeyksa esa ;g ‘kfDr LFkk;h lfefr dks gksxhA fu;e 53 ds vuqlkj] vuq‘kklfud dk;Zokgh vkjaHk djus ds fy, vuq‘kklfud izkf/kdkjh l{ke gS] vkjksiksa vkSj ekeys dh ifjfLFkfr;k¡] ;fn dksbZ gksa] /;ku esa j[krs gq, ,slk izkf/kdkjh uxjikfydk ifj"kn~ ds ml deZpkjh dks fuyafcr Hkh dj ldrk gS ftlds fo:) vuq‘kklfud dk;Zokgh vkjaHk dh xbZ gSA iwoksZDr mikca/kksa dh n`f"V ls izdV gS fd uxjikfydk ifj"kn~ ds deZpkjh tks vf/kfu;e dh /kkjk 94] mi/kkjk ¼4½ ds v/khu fu;qDr fd, x, Fks] iwoksZDr fu;eksa }kjk ‘kkflr gSaA ¼iSjk 8
iwoZxkeh ¼foospu½ dh n`f"V ls] dyDVj nsokl ¼izR;FkhZ Ø-½ }kjk ;kph dks fuyafcr djus ds fy, fd;k x;k ‘kfDr dk iz;ksx fof/k ds izkf/kdkj ds fcuk gS rFkk mlds }kjk ikfjr fuyafcr vkns‘k vf/kdkfjrk ds fcuk gSA ¼iSjk 9
¼2½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 322 rFkk 323 && dyDVj dks uxjikfydk deZpkjh fuyafcr djus dh ‘kfDr ugha gS && dyDVj rFkk vk;qDr dks v/kh{k.k dh ‘kfDr izR;k;ksftr dh xbZ gSA ¼iSjk 10
1. This petition has been filed by the petitioner invoking the jurisdiction of this Court under Article 226 of the Constitution of India challenging the order Annexure P-5 dated 21.1.2006 by which petitioner, who is Head Clerk-cum-Accountant posted at Nagar Panchayat Bagli, District Dewas has been placed under suspension by the order of Collector, District Dewas.
2. It is the case of petitioner that he was initially appointed in the Nagar Palika Bagli as LDC vide Annexure P-1 and promoted as Head Clerk-cum-Accountant as per resolution No.31 dated 6.12.1994. The order of his promotion was confirmed by the Director of Urban Administration and Development, Government of M.P. on 2.6.1995 vide Annexure P-2. However, it is urged that he is appointed in the Municipal Council Bagli under the provisions of section 94 sub-section (4) of the Municipalities Act, 1961 (hereinafter called as "the Act"). Under sub-section (4) of section 94 of the Act, a municipal employee may be placed under suspension by the President in Council constituted under section 70 of the Act, which is the disciplinary authority under M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (herein after called as "the Recruitment Rules"). It is said that the Collector, Dewas, who has passed the order of suspension Annexure P-5 dated 20.1.2006, is neither his appointing authority nor the disciplinary authority, however, power as exercised by him to place the petitioner under suspension is without any authority under the law, arbitrary, mala fide and illegal.
3. Learned counsel appearing on behalf of petitioner has drawn my attention to rule 51 of the Recruitment Rules, which defines the disciplinary authority, the case in hand, the power of disciplinary authority is vested in the Council or with President in Council. As per rule 53 of Recruitment Rules, the order of suspension may be passed by the disciplinary authority after having regard to the nature of the charges and the circumstances of the case. In the present case power of the disciplinary authority has been exercised by the Collector, who has not been delegated with the powers of disciplinary and competent to exercise such powers under the Recruitment Rules. Therefore, the action of respondent No.1 to place him under suspension is illegal without jurisdiction and void ab initio. Prayer is made to quash the order of suspension Annexure P-5 passed by respondent No.1 and petitioner may be allowed to work and grant him all consequential and monetary benefits.
4. Per contra, the respondents have filed their return, whereby it is said that as per sections 90, 91 and 92 of the Act, it is the power of State Government to make an alternative arrangement in the absence of Chief Municipal Officer. It is said that the power of Government has been delegated to the Director, Urban Administration, and further it is delegated to the Collector of the concerned district as per Annexure R-2. It is further said that petitioner was given the charge of CMO Bagli under the instructions of Chairman, Nagar Panchayat Bagli in contravention of law and during such period payments have been made by him in between 1.8.2005 to 10.10.2005, when he was given the charge of Chief Municipal Officer, financial irregularities of Rs.16.93 Lacs were committed by him. However, in exercise of powers under section 323 of the Act, the Collector district Dewas has passed the order to hold enquiry against him, as per order Annexure R-4. It is also said that, in exercise of powers as conferred to the Collector of the district vide circular Annexure R-5 dated 23.5.1996, petitioner has been placed under suspension. It is urged, by Shri Lokesh Bhatnagar, Government Advocate that as per Annexure R-5, the powers of rule 9 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 has been delegated to the Collector concerned for Class III and Class IV employees of the Government. Thus, by virtue of circular Annexure R
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