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service matter =“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 Sudhir R. 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.”

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1 WP.1797.11.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1797 OF 2011
1. Ambarish Rangshahi Patnigere,
Aged 45 years, Occup: Service,
R/o Abhishek, 101, Plot No. B72/
2,
Sector No.23, Nerul, Navi Mumbai.
2. Namdeo Narayan Alhat,
Aged 55 years, Occup: Service,
R/o H/1/2/3, Paradise Society,
Sector No.7, Sanpada,
Navi Mumbai.
3. Divakar Nandkumar Samel,
Aged 49 years, Occup: Service,
R/o Madhusmita Plaza,
MCM Society, Old Panvel Road,
Navi Mumbai.
4. Jaywant Parbat Dalvi,
Aged 53 years, Occup: Service,
R/o 11, Twins Heritage,
Plot No.79, A/B, Sector19,
Nerul, Navi Mumbai.
5. Prakash Laxman Kamble,
Aged 48 years, Occup: Service,
R/o 306, Manas C.H.S., Sector 6,
Airoli, Navi Mumbai. … PETITIONERS
2 WP.1797.11.doc
V E R S U S
1. State of Maharashtra
[Summons to be served on the Learned
Government Pleader appearing for
State of Maharashtra under Order XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
2. Urban Development Department
Through Secretary,
State of Maharashtra
Mantralaya,
Mumbai 400 032.
3. The Secretary,
Urban Development Department
State of Maharashtra
Mantralaya,
Mumbai 400 032.
4. The Municipal Corporation of
Navi Mumbai.
5. The Commissioner,
Navi Mumbai Municipal Corporation,
Navi Mumbai. … RESPONDENTS
Mr.
A.V.Anturkar i/b Mr. Sugandh Deshmukh for the Petitioners.
Mr. V.D.Patil, Government Pleader for Respondent Nos.1 to 3/State.
Mr. A.A.Garge for Respondent Nos.4 and 5.
3
WP.1797.11.doc
CORAM : CHIEF JUSTICE &
ABHAY S.OKA &
SMT. R.S.DALVI, JJ.
DATE ON WHICH SUBMISSIONS ARE HEARD : 28th September, 2011.
DATE ON WHICH JUDGMENT IS PRONOUNCED : 22nd December, 2011.
JUDGMENT:
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 Sudhir R. 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.”
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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 200309,
the said work was assigned to M/s. H.B. Bhise and
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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
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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 SubRule
(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 SubSection
(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 September, 2009 when they were taken into
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custody and they shall remain under suspension till further orders.
6 The Petitioners made a representation on 25th May, 2010
to the Respondent No.5 i.e. the Commissioner of the said Corporation
praying for revocation of the order of suspension. Reliance has been
placed on further representations dated 7th August, 2010 and 23rd
September, 2010 made by the Petitioners for the same purpose. On
8th October, 2010, the Petitioners submitted a representation to the
Secretary of the Urban Development Department of the Government
of Maharashtra praying for revocation of the suspension.
7 The first contention raised in the petition is that Rule 4 (2)
(a) of the Civil Services Rules provides that the Petitioners shall be
deemed to have been placed under suspension by an order of
Appointing Authority. It is submitted that as far as the Petitioners are
concerned, the Appointing Authority is the said Corporation i.e. the
General Body of the said Corporation. It is contended that in view of
clause (b) of SubSection
(1) of Section 56 of the said Act of 1949, the
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order of suspension ought to have been confirmed by the Corporation
within a period of six months from the date of suspension and
therefore, on expiry of a period of six months from 8th September,
2009, the suspension has automatically come to an end. It is
contended in the petition that the officers of the said Corporation, who
did not remain present before the Investigating Officer on 8th
September, 2009 were not arrested and were not placed under
suspension.
8 The Respondent Nos.4 and 5 filed a reply dated 5th April,
2011. It is contended that as the Petitioners were suspended pending
an enquiry, the suspension shall not be by way of penalty. It was
contended that the provision under clause (b) of SubSection
(1) of
Section 56 of the said Act of 1949 regarding automatic termination of
the suspension, if not confirmed by the Corporation within a period of
six months from the date of the suspension, is not applicable to the
present case. In the affidavitinreply,
a reliance was placed on the
decision of the Division Bench of this Court in the case of Sudhir R.
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Bhatankar Vs. State of Maharashtra & others [2000 (1) Mh.L.J.
519]. It was stated that vide letter dated 16th October, 2010, the said
Corporation has sought clarification from the Urban Development
Department of the Government of Maharashtra. It is stated that the
proposal for giving sanction for prosecution will be placed before the
General Body Meeting of the said Corporation. There is further
affidavit dated 3rd July, 2011 filed by the Deputy Commissioner
(Administration) of the said Corporation stating that the approval was
granted by the General Body of the said Corporation in its meeting
dated 18th March, 2011 for filing a chargesheet
against the Petitioners.
9 The learned counsel for the Petitioners submitted that the
Petitioner Nos.1 to 3 have been appointed by the Municipal
Corporation in exercise of powers under Section 45 of the said Act of
1949. He pointed out that the other two Petitioners have been
appointed by the Corporation under Section 53 (1) of the said Act of
1949. His submission is that only power of suspension which can be
exercised against the said Petitioners is under clause (b) of Sub10
WP.1797.11.doc
Section (1) of Section 56 of the said Act of 1949. After exercising of
the said power, the Commissioner is forthwith required to report the
suspension to the Corporation and if the same is not confirmed by the
Corporation within a period of six months from the date of the
suspension, the same will come to an end automatically. He pointed
out that in the present case, the affidavitinreply
filed by the Municipal
Corporation shows that though the proposal for suspension was
forwarded to the General Body of the Corporation on 6th March, 2010
for its approval, the same was withdrawn on 16th July, 2010. He
submitted that the proviso to clause (b) of SubSection
(1) of Section
56 of the said Act of 1949 clearly provides that suspension under
clause (b) pending an enquiry into the allegations against the officer or
servant shall not be deemed to be a penalty. He submitted that the
powers under clause (b) can be exercised by the Commissioner
pending an enquiry. He invited attention of the Court to what is held
by the Division Bench of this Court in paragraph Nos.11 and 12 of the
decision in the case of Sudhir R. Bhatankar (supra). He submitted that
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the suspension made under clause (b) will stand revoked if not
confirmed within a period of six months from the date of the
suspension. He pointed out that the suspension contemplated by
clause (f) of SubSection
(2) of Section 56 of the said Act of 1949, is a
suspension by way of penalty. He pointed out that proviso to clause
(b) makes it very clear that the suspension made in exercise of powers
conferred by clause (b) will not amount to penalty. He, therefore,
submitted that the law laid down by the Division Bench of this Court in
the case of Sudhir R. Bhatankar (supra) requires reconsideration. His
submission is that though the order of suspension makes a reference
to the Rule 4 (2)(a) of the Civil Services Rules, the provisions of the
said Act of 1949 will prevail. His submission is that on expiry of a
period of six months from the date of the suspension, the revocation of
the suspension is automatic, if the proposal is not approved by the
Corporation. He, therefore, submitted that continuation of suspension
of the Petitioners on expiry of period of six months is illegal.
10 The learned Additional Government Pleader appearing for
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the State Government pointed out that the order of suspension is
passed both under Rule 4 (2)(a) of the Civil Services Rules and
Section 56 (1)(b) of the said Act of 1949. He submitted that the
powers under clause (b) of SubSection
(1) of Section 56 of the said
Act of 1949 can be exercised by the Commissioner for suspending an
officer or servant pending the disciplinary enquiry. He submitted that
the Civil Services Rules has been adopted by the said Corporation. He
submitted that in the present case there is no overt act on the part of
the Commissioner and hence, clause (b) of SubSection
(1) of Section
56 of the said Act of 1949 will have no application and such automatic
suspension will not require ratification by the general body.
11 The learned counsel appearing for the Municipal
Corporation and the Commissioner submitted that the suspension
under clause (b) of SubSection
(1) of Section 56 of the said Act of
1949 is itself a penalty. He submitted that as the suspension under
clause (b) is penalty, the law requires the Commissioner to record
reasons for passing an order of suspension. He submitted that in the
13 WP.1797.11.doc
present case, the suspension is under Rule 4 (2)(a) of the Civil
Services Rules. He submitted that the said provision contemplates
automatic suspension after the detention of the officer in custody for a
period exceeding 48 hours and no specific order is required to be
passed for suspending the officer. He submitted that when the
suspension is under Rule 4 (2)(a) of the Civil Services Rules, the
period of six months provided in clause (b) of SubSection
(1) of
Section 56 of the said Act of 1949 will not apply. He submitted that
unless the suspension is specifically revoked by the Municipal
Corporation, the suspension of the Petitioners will continue. He
placed reliance on a decision of the Division Bench of this Court in the
case of State of Maharashtra and others Vs. Subhashchandra
Bapusaheb Patankar [2006 (4) Mh.L.J. 751]. He relied upon certain
decisions of the Apex Court to which reference has been made in the
subsequent part of the judgment.
12 The learned counsel appearing for the Petitioners
submitted that for passing the impugned orders of suspension, power
14 WP.1797.11.doc
under clause (b) of SubSection
(1) of Section 56 of the said Act of
1949 has been invoked. He submitted that the Appointing Authority of
the Petitioners being the Municipal Corporation, the order of
suspension passed by the Commissioner is made subject to
confirmation by the General Body. He submitted that even the order of
suspension in exercise of powers under Rule 4 (2)(a) of the Civil
Services Rules, is subject to revocation and/or review. He relied upon
a decision of the Division Bench of this Court in the case of Dr.Suresh
Annappa Dhotre Vs. State of Maharashtra & Ors (Writ Petition No.
8944 of 2010 dated 10th December, 2010) in that behalf.
13 We have given careful consideration to the submissions. It
will be necessary to make a reference to Rule 4 of the Civil Services
Rules.
“4. Suspension.(
1) The appointing authority or any
authority to which the appointing authority is subordinate
or the disciplinary authority or any other authority
empowered in that behalf by the Governor by general or
special order may place a Government servant under
Suspension(
a) where a disciplinary proceeding against
him contemplated or is pending, or (b) where in the
opinion of the authority aforesaid, he has engaged himself
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in activities prejudicial to the interest of the security of the
State, or (c) where a case against him in respect of any
criminal offence is under investigation inquiry or trial:
Provided that, where the order of Suspension is made by
an authority lower than the appointing authority, such
authority shall forthwith report lower than the appointing
authority, the circumstances in which the order was made.
2. A Government servant shall be deemed to have
been placed under Suspension by an order of appointing
authority(
a) with effect from the date of his detention, if
he is detained in police or judicial custody, whether on a
criminal charges or otherwise, for a period exceeding
fortyeight
hours. (b) with effect from the date of his
conviction, if, in the event of a conviction for an offence,
he is sentenced to a term of imprisonment exceeding
fortyeight
hours and is not forthwith dismissed or
removed or compulsorily retired consequent to such
conviction.
ExplanationThe
period of fortyeight
hours referred to in
Clause (b) of this subrule
shall be computed from the
commencement of the imprisonment after the conviction
and for this purpose, intermittent periods of imprisonment,
if any, shall be taken into account.
(3) Where a penalty of dismissal, removal or
compulsory retirement from service imposed upon a
Government servant under Suspension is set aside in
appeal or on Review under these rules, and the case is
remitted for further inquiry or action or with any other
directions, the order of his Suspension shall be deemed
to have continued in force on and from the date of the
original order of dismissal, removal or compulsory
retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or
compulsory retirement from service imposed upon a
Government servant is set aside or declared or rendered
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void in consequence of, or by, a decision of a Court of
Law, and the disciplinary authority, on a consideration of
the circumstances of the case, decides to hold a further
inquiry against him on the allegations on which the
penalty of dismissal, removal or compulsory retirement
was originally imposed, the Government servant shall be
deemed to have been placed under Suspension by the
appointing authority from the date of the original order of
dismissal, removal or compulsory retirement and shall
continue to remain under Suspension until further orders.
Provided that no such further inquiry shall be ordered
unless it is intended to meet a situation where the Court
has passed an order purely on technical grounds without
going into the merits of the case.
(5) (a) An order of Suspension made or deemed to have
been made under this rule shall continue to remain in
force until it is modified or revoked by the authority
competent to do so. (b) Where a Government servant is
suspended or is deemed to have been suspended
(whether in connection with any disciplinary proceeding or
otherwise), and any other disciplinary proceeding is
commenced against him during the continuance of that
Suspension, the authority competent to place him under
Suspension may, for reason to be recorded by it in writing,
direct that the Government servant shall continue to be
under Suspension until the termination of all or any of
such proceeding. (c) An order of Suspension made or
deemed to have been made under this rule may at any
time be modified or revoked by the authority to which that
authority is subordinate.”
The other provision, which requires consideration is Section 56
of the said Act of 1949, which reads thus:
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“56. Imposition of penalties on municipal officers
and servants.(
1) A competent authority may subject to
the provisions of this Act impose any of the penalties
specified in subsection
(2) on a municipal officer or servant
if such authority is satisfied that such officer or servant is
guilty of a breach of departmental rules or discipline or of
carelessness, neglect of duty or other misconduct or is
incompetent:
Provided that(
a) no municipal officer or servant whose monthly
salary, exclusive of allowances, exceeds one
thousand rupees shall be dismissed by the
Commissioner without the previous approval of
the Standing Committee;
(b) any officer or servant, whether appointed by the
Corporation or any other competent authority,
except Transport Manager being a Government
Officer on deputation, may be suspended by the
Commissioner pending an order of the
Corporation and when the officer so suspended
is the Transport Manager or an officer appointed
under section 45, such suspension with
reasons herefor, shall, forthwith be reported by
the Commissioner to the corporation, and such
suspension shall come to an end if not
confirmed by the Corporation within a period of
six months from the date of such suspension;
Provided that, such suspension of an officer or
servant pending inquiry into the allegations against such
officer or servant shall not be deemed to be a penalty.
(c) the Commissioner may impose any of the
penalties as specified in clause (a), (b), (d), (e)
and (f) of subsection
(2) on any officer
appointed by the Corporation other than the
Transport Manager if he is a Government Officer
on deputation ;
(d) the Municipal Chief Auditor and the Municipal
Secretary may impose any of the penalties
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specified in clauses (a), (b), (c), (d) and (e) of
subsection
(2) on any officer or servant
immediately subordinate to them subject to a
right of appeal to the Standing Committee and
the Standing Committee may impose any other
penalty on any other penalty on any such officer
or servant and may also impose, any penalty on
any other officer or servant immediately
subordinate to the Municipal Chief Auditor or the
Municipal Secretary ;
(2) The penalties which may be imposed under
this section are the following namely:(
a) censure;
(b) withholding of increments or promotion,
including stoppage at an efficiency bar ;
(c) reduction to a lower post or timescale,
or to a
lower stage in a timescale
;
(d) fine;
(e) recovery from salary of the whole or part of
any pecuniary loss caused to the corporation;
(f) suspension;
(g) removal from municipal service which does
not disqualify from future employment ;
(h) dismissal from municipal service which
ordinarily disqualifies from future
employment.”
(Emphasis added)
Under Section 45 (2) of the said Act of 1949, the power of
appointing Deputy Municipal Commissioner or Assistant Municipal
Commissioner vests in the Corporation. The Corporation is defined
under clause (10) of Section 2 of the said Act of 1949, which reads
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thus:
“(10) “Corporation” means the Municipal Corporation
constituted or deemed to have been constituted for a
larger urban area known as City;”
Under Section 5 (2) of the said Act of 1949, a Corporation
consists of elected councillors elected at ward elections and
nominated councillors. Thus, the reference to the Corporation under
the said Act of 1949 is a reference to General Body of the Corporation
consisting of elected and nominated councillors. The Petitioner Nos.1
to 3 have been appointed by the Corporation under SubSection
(2) of
Section 45. Even under Section 53 (1), powers of appointing
Municipal Officer whose minimum monthly salary inclusive of
allowances is or exceeds Rs.4,000/vests
in the Corporation. In other
cases, the power of appointment vests in the Commissioner or
Municipal Chief Auditor or Municipal Secretary as provided in SubSection
(2) and SubSection
(3) of Section 53. The Petitioner Nos.4
and 5 have been admittedly appointed by the Corporation in exercise
of powers under SubSection
(1) of Section 53. Under clause (b) of
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SubSection
(1) of Section 56 of the said Act of 1949, any officer or
servant whether appointed by the Corporation or by any Authority
(except Transport Manager being a Government Officer on
Deputation) can be suspended by the Commissioner pending an order
of the Corporation. Thus, even in case of officers, who are appointed
in exercise of powers under SubSection
(2) or SubSection
(3) of
Section 53 of the said Act of 1949, the Commissioner has powers to
suspend an officer or servant pending an order of the Corporation.
Clause (b) of SubSection
(1) of Section 56 mandates that if an officer
appointed under Section 45 is to be suspended, the Commissioner
must record reasons. The Commissioner is under an obligation to
report the suspension to the Corporation and if the suspension is not
confirmed by the Corporation within a period of six months from the
date of such suspension, the same automatically comes to an end.
Thus, if the order of suspension passed under clause (b) of SubSection
(1) of Section 56 of the said Act of 1949 is not confirmed by
the Corporation within a period of six months from the date of the
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suspension, the said order automatically stands revoked. The proviso
makes it very clear that when the order of suspension is passed under
clause (b) pending an enquiry into the allegations against the officer or
servant, the same shall not be deemed to be a penalty. Thus, the
proviso itself makes it clear that power to suspend under clause (b)
can be exercised by the Commissioner pending a disciplinary enquiry.
SubSection
(2) of Section 56 of the said Act of 1949 provides for
various categories of penalties, which can be imposed on the officer or
servant after holding an enquiry. Under clause (f) of SubSection
(2),
one of the penalties is of suspension. Clause (b) of SubSection
(1) of
Section 56 read with the proviso makes it very clear that the power of
suspension under the said clause can be exercised by the
Commissioner pending a disciplinary enquiry and the suspension
made under the said provision will not be by way of penalty. Only an
order of suspension under clause (f) of SubSection
(2) of Section 56
is by way of penalty.
14 In this context, it will be necessary to make a reference to
22 WP.1797.11.doc
the judgment of the Division Bench of this Court in the case of Sudhir
R. Bhatankar (supra). Paragraph Nos.11 and 12, the Division Bench
has observed thus:
“11. It will be evident from the above provisions that
the Commissioner is empowered under section 56 to
suspend any officer or servant pending an order of the
Corporation. In such a suspension order, he has to give
reasons and then approach the Corporation for
confirmation. The time limit of 6 months is prescribed in
the said section to get the order of suspension confirmed
by the Corporation. If the Corporation does not confirm
the said order, the said order will come to an end. It is
clear from this provision that this clause provides for
suspension or by way of penalty for the reasons
recorded by the commissioner till the said suspension
order is confirmed or vacated by the Corporation. The
said suspension order may be for any purpose,
depending upon the administrative exigency or
expediency. The proviso to the said section is most
relevant for our purpose. It says that if an officer or
servant is suspended pending an enquiry into the
allegations, such suspension shall not be deemed to be
a penalty. It is, therefore, crystal clear that the
Commissioner has exercised his powers under Rule 4 of
the M.C.S. Rules to suspend the petitioner, pending
enquiry into the allegations. The suspension is not by
way of imposing any penalty as such but is a suspension
pending an enquiry into the allegations levelled against
the petitioner. It further means that if the suspension
is followed by allegations and enquiry, it is not
covered under the main part of section 56(1)(b) and
it cannot amount to any penalty by itself. It further
can be seen that the question of suspension by way
of penalty preceded by an enquiry is definitely not
23 WP.1797.11.doc
covered by the main part of the provision, as the
legislature could not have contemplated any
limitation for completion of any enquiry within 6
months as is suggested in the main part of the
provision. The suspension by way of penalty after
holding an enquiry, is therefore, charged out from
the main part of the section 56(1)(b). The purport of
the main part to empower the Commissioner to suspend
a municipal servant or officer is to meet an urgent or
emergent situation and it is also intended that such
suspension, if not for any charges or allegations to be
enquired into or even if it is by way of penalty, it cannot
continue for a long period and in any case not beyond a
period of 6 months.
12. In the present case, since the suspension is
for holding an enquiry for the charges levelled
against the petitioner, the provisions of section 56(1)
(b) will not apply, and therefore, it appears that the
resolution of the Corporation was an illadvised
step
taken by the coporators collectively. It is unfortunate that
in spite of the seriousness of the event and without trying
to find out the guilty person, the Corporation have rushed
to pass a resolution to revoke the order of suspension
and to direct reinstatement of the petitioner, who is still
facing departmental enquiry. According to us, they could
not have passed such a resolution purporting to act
under section 56(1)(b) of the Act which had no
application to the facts of the case. The learned
Counsel for the petitioner has vehemently argued that
since the Corporation itself has passed the resolution to
reinstate the petitioner under section 56(1)(b) of the Act,
we need not consider any other aspect of the matter.
We do not agree with the said submission. If the
provision itself is not applicable and if the corporators
were not informed that section 56(1)(b) was not attracted
and that the suspension was under Rule 4 of the M.C.S.
Rules, we hold that the said resolution was ultra vires the
24 WP.1797.11.doc
powers of the Corporation and hence null and void and
the same was rightly rescinded by the State
Government. Further, it is significant to note that the
said resolution was not moved by the Municipal
Commissioner but was at the instance of “the personnel”
of the Corporation, who had put up the note for
confirmation of the suspension. The Commissioner did
not and could not have gone to the House as he had not
acted under section 56(1)(b) of the Act. According to us,
the resolution can not fall under section 56(1)(b) and
therefore, it is of no consequence. It was null and void.”
(Emphasis added)
15 The petition before the Division Bench was filed by a
Deputy Commissioner of a Municipal Corporation who was suspended
by the Municipal Commissioner in exercise of powers under Rule 4 (1)
of the Civil Services Rules. The order of suspension was passed on
14th November, 1998. The Corporation passed a unanimous resolution
on 3rd July, 1999 by which the Corporation declined to confirm the
order of suspension and resolved to reinstate the Petitioner before this
Court. By exercising plenary powers under Section 451 of the said Act
of 1949, the State Government rescinded the resolution of the
Corporation and therefore, the challenge in the writ petition was to the
said order of the Government.
25 WP.1797.11.doc
16 The Division Bench held that the Commissioner while
issuing order of suspension had acted under Rule 4 of the Civil
Services Rules and he had not acted under clause (b) of SubSection
(1) of Section 56 of the said Act of 1949. Therefore, the Division
Bench held that the resolution passed by the General Body of the
Corporation was null and void. The finding that the resolution of
revocation of suspension was null and void has been rendered in the
facts of the case.
17 On plain reading of Section 56 and especially SubSections
(1) and (2) thereof, clause (b) of SubSection
(1) vests a
power in the Commissioner to suspend any officer or servant of the
Corporation whether appointed by the Corporation or any other
Competent Authority except Transport Manager being a government
officer on deputation. As pointed our earlier, the power to appoint City
Engineer, Medical Officer, Municipal Chief Auditor, Municipal
Secretary, Assistant Commissioner and Deputy Commissioner vests in
26 WP.1797.11.doc
the Municipal Corporation and not with the Commissioner. That is the
reason why the order of suspension issued by the Commissioner in
exercise of the power conferred by clause (b) of SubSection
(1) is
made subject to the ratification or confirmation by the Corporation.
The Transport Manager is excluded only when he is a Government
Officer on deputation. However, the Transport Manager, who is not a
Government Officer on deputation can be suspended under clause (b).
When the Transport Manager or an officer appointed under Section 45
is suspended, the Commissioner is duty bound to forthwith report the
suspension to the Corporation with reasons for the suspension. Such
order of suspension passed by the Commissioner is required to be
immediately placed before the General Body of the Municipal
Corporation. The ratification of such order of suspension under
clause (b) has to be made within a period of six months from the date
of the suspension failing which on expiry of a period of six months
from the date of the suspension, there will be automatic revocation of
the order of the suspension. The proviso to clause (b) clearly indicates
27 WP.1797.11.doc
that powers under clause (b) can be exercised by the Commissioner
pending the disciplinary enquiry against the municipal officer or the
servant concerned.
18 Emergent situations arise requiring immediate suspension
of an officer or servant of the Municipal Corporation. The meeting of
the General Body of the Municipal Corporation many not be held
frequently. To meet such exigencies, a power has been conferred on
the Commissioner to issue the order of suspension pending an order
of the Corporation which requires ratification by the Corporation within
a period of six months from the date of the suspension. It is true that
some of the observations made in paragraph No.11 of the Division
Bench in the case of Sudhir R. Bhatankar (supra) may indicate that the
powers under clause (b) of SubSection
(1) of Section 56 of the said
Act of 1949 cannot be exercised by the Commissioner pending a
disciplinary enquiry. In our view, the said observations are contrary to
the plain language of clause (b). We reiterate that the powers under
clause (b) of SubSection
(1) of Section 56 of the said Act of 1949 can
28 WP.1797.11.doc
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 SubSection
(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.
19 The other issue, which requires consideration is based on
the submission that the impugned orders of suspension have been
passed only under Rule 4 (2)(a) of the Civil Services Rules. On plain
reading of the orders of suspension dated 10th September, 2009, it is
apparent that the powers are invoked by the Commissioner both under
Rule 4 (2) and under Section 56 (1)(b).
20 As far as the suspension under Rule 4 (2)(a) is concerned,
it will be necessary to make a reference to a judgment of the Division
29 WP.1797.11.doc
Bench of this Court in the case of Dr.Suresh Annappa Dhotre Vs.
State of Maharashtra & Ors (Writ Petition No.8944 of 2010 dated 10th
December, 2010). Reference will have to be made to paragraph Nos.3
and 4 of the said judgment, which read thus:
“3. The petitioner has been suspended by an order
dated 5.3.10 but retrospectively on account of his arrest
on 24.12.2009 in connection with CR No.262/06
registered with the City Kotwali police station at
Amravati. He was released on bail on 12.2.2010 and
was served with the order of suspension by invoking the
powers under Rule 4(2) of the Maharashtra Civil
Services (Discipline & Appeal) Rules, 1979 (hereinafter
referred to as “the Rules”).
4. The Tribunal referred to the scheme of Rule 4(5)
of the Rules and held that it does not vest any right in
favour of the suspended employee to pray for revocation
of the order of suspension and had relied upon the
Government Resolution dated 20.7.2010 so as to hold
that when the government employee is suspended
pending criminal case against him the order of
suspension cannot be revoked till the trial is completed.”
In paragraph No.5 of the judgment, the Division Bench made a
reference to SubRule
(5) of Rule 4 and held thus:
“Thus the Scheme of Rule 4(5) of the Rules
does not state that an order of suspension of an
employee who is facing a criminal investigation/trial
cannot be revoked till the trial is concluded and it is
30 WP.1797.11.doc
well settled that the Rules framed by exercising powers
under Article 309 of the Constitution cannot be
substituted or amended by a Government Resolution.”
(Emphasis added)
21 It will be necessary to make a reference to another
decision of the Division Bench of this Court in the case of this Court in
the case of State of Maharashtra Vs. Shivram Sambhajirao
Sadawarte (2001 (3) Mh.L.J. 249]. In paragraph No.1 of the said
decision, the Division Bench observed thus:
“(1) THIS petition has been moved before us for the
sole purpose to settle the position in law so far as this
Court is concerned, in the matter of Suspension of a
Government employee under Rule 4 (1)(c) or 4 (2) of the
Maharashtra Civil Services (Discipline and Appeal Rules
1979 (for short the Rules).”
Thereafter, the Division Bench made a reference to Rule 4 and
various government resolutions regarding revocation of suspension. In
paragraph No.12, the Division Bench held thus:
“(12) ON perusal of the provisions of Rule 4 it is clear
that the State Government has the powers to place an
employee under Suspension in the cases set out therein
and even in the cases of Suspension falling under
Clause (c) of subRule
1 or subrule
(2), the
31 WP.1797.11.doc
Suspension can be continued till the completion of
enquiry or trial as the case may be depending upon
the facts and circumstances of a given case. The
Suspension need not be continued till the completion
of the trial or investigation in every case. The facts of
each case will have to be considered on their own
merits. If the Suspension is continued for a
reasonably longer period, may be beyond a period of
one year or so, the delinquent employee has a legal
right to approach the Government by way of a
representation praying for revoking or withdrawing
the Suspension order and such a request will have to
be considered by taking into consideration the
progress in the investigation, the nature of the
charges, the causes for delay in such
investigation/trial and other attending circumstances.
In a given case the employee may be justified in
approaching under subrule
(5) of Rule 4 of the Rules
immediately on receipt of the Suspension order
without waiting for six months or nine months, as the
case may be. The representation of the delinquent
employee, so made, should be heard and decided within a
reasonable period and this reasonable period could be
about two to three months. The delinquent employees
direct approach to the Tribunal or to a Court of law
challenging the suspension order should not be ordinarily
entertained unless he has approached the competent
authority by invoking the provisions of Rule 4(5) of the
Rules. We may also state that the State Government or
the competent authority is obliged to pass a speaking
order while either allowing or rejecting the representation
so made and such an order will be subject to a judicial
Review by the Tribunal or by this Court.”
(Emphasis added)
32 WP.1797.11.doc
In paragraph No.14, the Division Bench held thus:
“(14) IN the premises, we hold as under:
(a) The order of suspension issued under Rule 4 of
the Rules can be sought to be reviewed or revoked by the
suspended employee by way of a representation under
subrule
(5) thereof.
(b) Such a representation can be filed at any time and
rejection of a representation may not operate as a bar in
filing a subsequent representation for review/revocation.
(c) The representation so filed ought to be decided
within a reasonable period of two to three months and by
taking into considerations the nature of charges, progress
in enquiry, investigations/trial as the case may be
including the reasons for delay and other attending
circumstances in each case as well a the policy decision
of the State Government.
(d) Challenge to the order of suspension should not be
ordinarily entertained by the Tribunal/court directly unless
the remedy as provided under Rule 4 (5) is exhausted by
the delinquent employee.
(e) if the representation filed by the delinquent
employee under Rule 4 (5) of the Rules is not decided
within a period of two to three months or if the same is
rejected, the employee has the right to approach the
Tribunal and the order of the Government is subject to the
judicial review.
(f) an order of suspension issued pending enquiry,
investigation or trial, as the case may be, shall continue to
operate till such enquiry, investigation and/or trial is
completed and the suspension order cannot be quashed
and set aside by the Tribunal on the basis of the circular
dated 1891974
or the resolutions dated 14121995
and
33 WP.1797.11.doc
1461996.
The order of suspension is subject to a
judicial review by the Tribunal depending upon the facts
and merits of each case,
(g) the State Government/competent authority ought
to review the pending suspension cases every quarter
and take the requisite steps to conclude the enquiry,
investigation/trial as early as possible.”
22 Therefore, the law is that an order of suspension passed
under Rule 4 (2) including under clause (a) of SubRule
(2) of Rule 4
can be revoked or reviewed prior to the conclusion of the trial or the
inquiry.
23 The power to suspend the Municipal servants and officers
is governed by Section 56 of the said Act of 1949. Under clause (b)
any order of suspension of Municipal servant and officer passed by
the Commissioner requires ratification by the Corporation within a
period of six months from the date of the suspension. Clause (b)
provides for the consequence of failure of the Corporation to ratify the
suspension within a period of six months from the date of the
suspension. The legal effect of the failure to ratify the order of
34 WP.1797.11.doc
suspension within a period of six months is the automatic revocation of
the order of the suspension.
24 It is true that in the present case, in the impugned orders
of suspension, there is a reference to Rule 4(2)(a) of the Civil Services
Rules and to the fact that the Petitioners were in the custody for a
period exceeding 48 hours. As stated earlier, perusal of the impugned
orders of suspension show that the Commissioner has also specifically
invoked powers under clause (b) of SubSection
(1) of Section 56 of
the said Act of 1949. The suspension under Rule 4(2)(b) is a deemed
suspension by the appointing authority. In the present case, the
appointing authority of the Petitioners is the Corporation. The
appointing authority always has a power to review such order of
suspension. The Commissioner who is not the appointing authority
could not have passed the impugned orders otherwise than in exercise
of the powers under clause (b) of SubSection
(1) of Section 56 of the
said Act of 1949. Every such order requires ratification by the General
Body within six months. Every such order of suspension must be
35 WP.1797.11.doc
placed before the general body which can either continue the
suspension by ratifying the same or can revoke the same. Therefore,
in the present case, the order required ratification by the Municipal
Corporation within six months. If it is not confirmed or ratified within
the said period of six months, the legal consequence provided by
clause (b) of SubSection
(1) of Section 56 of the said Act of 1949 will
follow.
25 In the present case, after expiry of a period of six months
from 8th September, 2009, the suspension ceased to exist as the same
was not confirmed by the Corporation. It was sought to be contended
that as the Respondent – Corporation acting in terms of the judgment
of this Court in the case of Sudhir R. Bhatankar (supra) did not
consider the matter of ratification, the period of six months be
computed from the date of the judgment of this Court to enable the
Corporation to consider the suspension. It must be noted that it is not
the case made out in either of the affidavits filed on behalf of the
Corporation that only on the basis of said decision of the Division
36 WP.1797.11.doc
Bench that the matter was not placed before the Corporation. In any
case, the revocation of suspension in the present case is automatic on
the expiry period of six months from the date of suspension. The
learned counsel appearing for the Municipal Corporation relied upon
the decision of this Court in the case of State of Maharashtra and
others Vs. Subhashchandra Bapusaheb Patankar (supra). This
decision will not help the Corporation as this Court in the facts of the
case held that in case of an officer arrested for accepting the bribe, the
exercise of power under Rule 4(1)(c) was warranted. In this decision,
the Division Bench has not dealt with clause (b) of SubSection
(1) of
Section 56 of the said Act of 1949.
26 It must be noted here that the Division Bench in its order
dated 8th April, 2011 has not referred only a question for decision of the
Large Bench. In fact the entire petition has been ordered to be placed
before the Larger Bench and therefore, we are disposing of the petition
in the light of the law laid down by us.
37 WP.1797.11.doc
27 In view of the above discussion, the decision of this Court
in the case of Sudhir R. Bhatankar (supra) can not be treated as laying
down correct law regarding the scope and ambit of the powers of
suspension conferred by clause (b) of SubSection
(1) of Section 56 of
the said Act of 1949 read with the proviso thereto.
28 We have neither gone into the merits of the allegations
levelled against the Petitioners in the disciplinary inquiry or criminal
prosecution against the Petitioners nor with the merits of the defences
urged by the Petitioners in respect of the allegations. With this
clarification, we allow the petition.
29 Hence, it is declared that the Petitioners’ suspension under
orders dated 10th September, 2009 passed by the Commissioner of the
Navi Mumbai Municipal Corporation (Respondent No.5) 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
38 WP.1797.11.doc
Corporation (Respondent No.4) during the said period of six months
as provided under Section 56 (1) (b) of the Bombay Provincial
Municipal Corporations Act, 1949. We, accordingly, direct the
Respondent No.4 – Corporation to allow the Petitioners to resume the
work.
30 Rule is accordingly made absolute with no order as to
cots.
[ CHIEF JUSTICE ]
[ ABHAY S.OKA, J ]
[ SMT. R.S.DALVI, J ]

 

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