1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1692 of 2009 Shripad Anant Puranik r/at: BEST Officers Quarters, Flat No. 131, BEST Marg, Colaba, Mumbai 400 001. ...Petitioner v/s. 1. The General Manager B.E.S. &T. Undertaking, BEST Marg, Colaba, Mumbai 400 039. 2. The Commissioner, Municipal Corporation of Greater Mumbai having office at Mahapalika Marg, Mumbai 400 001. 3. The Municipal Coporation of Greater Mumbai Through BEST undertaking. ...Respondents Shri Virag Tulzapurkar a/w. Shekhar Shetye i/b. P.C. Kansara for the petitioner. Shri V.A.Thorat a/w. P.J.Thorat for respondent no. 1. Shri S.K. Talsania a/w. Kavita Anchan i/b. M.V. Kini & Co. for respondent no.3. Mrs. Geeta Joglekar for BMC. 2 CORAM:- SWATANTER KUMAR, C.J. AND A.M.KHANWILKAR, J. JUDGMENT RESERVED ON: September 30, 2009. JUDGMENT PRONOUNCED ON: October 15, 2009. JUDGMENT (PER KHANWILKAR, J): Rule. Rule made returnable forthwith by consent. Advocate for the Respondents waive notice. Having regard to the nature of challenge involved, we decided to finally dispose of the matter at the admission stage itself, by consent. 2. By this Writ Petition, the Petitioner who claims to be working as the Dy. General Manager of the Respondent B.E.S.&T. undertaking of Municipal Corporation of Greater Mumabi (MCGM) has prayed for writ to quash and set aside the appointment of the nominated enquiry officer being illegal, bad-in-law and in contravention of the provisions of the Service Regulations as applicable to B.E.S.&T. undertaking. The Petitioner further prays that in the alternative some other official from Mumbai Municipal Corporation above the post held by the Petitioner be 3 appointed as enquiry officer. 3. Briefly stated, the Petitioner claims to have joined the B.E.S.&T. undertaking on 5th October, 1974 as Probationary Engineer and in due course rose to the position of Dy. General Manager considering his sincere services and work for a period of 34 years. The post of Dy. General Manager is stated to be number two position in the hierarchy i.e. next to the General Manager of B.E.S.&T. undertaking. The Petitioner was served with a charge sheet issued by the General Manager dated 23rd July, 2009 informing the Petitioner that it has been decided to initiate enquiry against him and for that purpose the named former Judge of the Bombay High Court has been appointed as the enquiry officer. The Petitioner was further informed that he was free to submit his written explanation to the charge sheet at the specified address of the enquiry officer. The acts of misconduct on the basis of which the Petitioner is proceeded against are culled out in Paragraph 11, which reads thus:- “You are accordingly charged with the following misconducts under S.R. Chapter X (10.1 to 10.7) i. Fraud, dishonesty in connection with the business of the Undertaking. 4 ii. Breach of any rules or regulations or instructions for the maintenance and running of any department (S.R. 12.14 and Administrative Order No. 180 dt. 5.4.1994) iii. Any act subversive of discipline. iv. Gross negligence. v. Misuse of power. vi. Breach of any law applicable to the Undertaking or any rules made thereunder. vii. Willful damage or loss to the Undertaking. viii.Breach of any rules or regulations, or instructions for the maintenance and running of any department (Rules of Tender). ix. Financial loss to the tune of Rs. 1,50,000/- on account of excavation/digging charges to MCGM and loss of man-days to the Undertaking. x. Sabotage or loss of the goods or property of the Undertaking. xi. Willful damage to work in progress. xii. Taking illegal gratification.” 4. The Petitioner has approached this Court essentially to question the appointment of former Judge of the Bombay High Court as the enquiry officer to conduct the departmental enquiry against him for the alleged misconduct specified in the charge sheet broadly on three counts. The 5 first ground is that only the B.E.S.&T. Committee who is the Appointing Authority was competent to proceed against the Petitioner. The General Manager B.E.S.&T. who has issued the charge sheet neither has power/authority to conduct an enquiry against the Petitioner nor has powers to delegate his powers to an outsider as an enquiry officer to conduct the enquiry against the Petitioner. The General Manager at best is competent to delegate his powers only to the Officers working under his control, as per the Service Regulation No. 1.5. The second ground is that the General Manager in any case could not have delegated his powers to conduct an enquiry to an outsider appointed by him as an enquiry officer, without the knowledge and consent of the B.E.S.&T. Committee. The last ground is that only the B.E.S.&T. Committee being the Appointing Authority of the Petitioner has had power to appoint an enquiry officer that too from within the organisation namely Mumbai Municipal Corporation. To buttress the above contentions, the Petitioner has relied on the provisions of The Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as ‘the Act’ for short) which govern the disciplinary action against any of the staff working in the undertaking- such as Section 460R, 460U, 460V, 460W as also the Service Regulations in particular S.R. No. 1.5, 2.5, 2.7, 10.3. 6 5. The Respondents have resisted this Petition. According to them, none of the provisions pressed into service prohibit appointment of impartial and competent person to conduct the enquiry who incidentally is an outsider and not from within the organisation. According to the Respondents, there is no express provision which governs the subject as to who is competent to initiate departmental enquiry and who should be appointed as enquiry officer. In absence of such provision, the general principles will govern the field and the only safeguard that needs to be adhered to is that the procedure adopted is fair and reasonable and to provide full opportunity to the Petitioner to defend the charges. According to the Respondents, the General Manager was fully competent to initiate enquiry against the Petitioner as also to issue charge sheet including to appoint an enquiry officer for the conduct of the departmental enquiry against the Petitioner being superior in rank to the Petitioner. Moreover, the appointment of former Judge of the High Court of Bombay as the enquiry officer was legitimate and cannot be termed as illegal or for that matter contrary to any provisions of law. 6. Having considered the rival submissions, the first question that 7 needs to be addressed is as to whether the Appointing Authority alone could initiate the departmental action against the Petitioner. Indeed, issuance of charge sheet and appointing enquiry officer for the conduct of the departmental enquiry are prelude to initiation of departmental action. However, the departmental action would eventually culminate with the decision of the Appointing Authority. The enquiry officer would only complete the procedure of collection of evidence and submit his opinion which will eventually be considered by the Appointing Authority. The final decision, however, would be that of the Appointing Authority. There can be no disagreement on these broad principles. The Petitioner, however, contends that keeping in mind the provisions of the Act and Service Regulation, it would appear that the Appointing Authority in this case B.E.S.&T. Committee, alone was competent to initiate and conduct the enquiry against the Petitioner. We shall, therefore, refer to the provisions on which reliance was placed by the Petitioner. Sections 460R to Section 460Y of the Act are under the heading ‘Officers and Servants’. Section 460R deals with Schedule of permanent officiers and servants to be prepared by General Manager and sanctioned by Brihan Mumbai Electric Supply & Transport Committee. Section 460S deals with restriction on appointment of permanent officers and servants. Section 8 460T deals with creation of temporary post. Section 460 U which is of some significance to the case on hand deals with power of appointment in whom to vest. It postulates that subject to the provisions of Sections 80B, 460R & 460T, the power of appointing Municipal Officers and servants for the purposes of Brihan Mumbai Electric Supply and Transport Undertaking shall vest in the General Manager-Brihan Mumbai Electric Supply and Transport Committee; if the post is equivalent to or higher than the post of Secretary set forth in the schedule sanctioned by Brihan Mumbai Electric Supply and Transport Committee and the Corporation under Section 460R and in the General Manager in all other cases. In so far as, the post of Dy. General Manager which is presently held by the Petitioner is concerned, there is no dispute that the power to make appointment on that post vests with the B.E.S.&T. Committee. At the same time, it is not in dispute that the General Manager is a superior officer than the Dy. General Manager, a post which is held by the Petitioner. Section 460V provides that the B.E.S.&T. Committee shall frame Service Regulations on matters referred to therein. The said provision reads thus:- “460V [Brihan Mumbai Electric Supply and Transport Committee] to frame Service 9 Regulations :-(1) [Brihan Mumbai Electric Supply and Transport Committee] shall from time to time, frame regulations applicable to municipal officers and servants appointed under this Chapter in regard to the following matters :- (a) fixing the amount and the nature of the security to be furnished by any municipal officer or servant from whom it may be deemed expedient to require security : (b) regulating the grant of leave to municipal officers and servants ; (c) authorizing the payment of allowances to the said officers and servants, or to certain of them, whilst absent on leave ; (d) determining the remuneration to be paid to the persons appointed to act for any of the said officers or servants during their absence on leave; (e) authorizing the payment of travelling or conveyance allowances to the said officers and servants ; (f) regulating the period of service of all the said officers and servants; (g) determining the conditions under which the said officers and servants or any of them, shall on retirement or discharge receive pensions, gratuities or compassionate allowances, and under which the widows, or such other relations as may be prescribed, dependent on 10 any of the said officers and servants shall, after their death, receive compassionate allowances and the amount of such pensions, gratuities or compassionate allowances; (h) authorizing the payment of contributions, at certain prescribed rates and subject to certain prescribed conditions, to any pension or provident fund which may, with the approval of [the Committee], be established by the said officers and servants or to such provident fund, if any, as may be established by [the Committee] for the benefit of the said officers and servants; (i) in general, prescribing any other conditions of service of the said officers and servants. (2) No regulation made by the [Brihan Mumbai Electric Supply and Transport Committee] under this section shall have any force or validity unless and until it has been confirmed by the Corporation. (3) For the purpose of clause (h) of sub-section (1) any fund established prior to the acquisition of any undertaking by the corporation shall upon the undertaking becoming part of the [Brihan Mumbai Electric Supply and Transport Undertaking] be deemed to be established in the manner mentioned in the said clause, if upon the acquisition of such undertaking arrangements are made by the [the Brihan Mumbai Electric Supply and Transport Committee] for the continuance of the fund.” 11 7. The other relevant provisions of the Act is Section 460W, which provides for the authority in whom the power of suspending, punishing and dismissing would vest. Section 460X deals with leave of absence while Section 460Y deals with acting appointment. 8. From the bare reading of Section 460V, although it deals with several aspects governing the service conditions of the Officers and servants, it does not specifically deal with the issue as to the mechanism for initiating disciplinary action against the officers and servants of Corporation. Indeed, in exercise of powers bestowed by the provisions of the Act of 1988, Service Regulations for the employees of the Corporation have been formulated and adopted as back as on 10th June, 1925 and amended from time to time. Chapter-I thereof deals with the question of application of the said Regulations. S.R. 1.2 provides that nothing contained in the said Service Regulation shall operate in derogation of any law applicable or to prejudice of any right under a registered agreement, settlement or award for the time being in force or contract of service, if any or custom or usage of the undertaking. Clause S.R. 1.5 deals with delegation of powers by the General Manager. It stipulates that the General Manager may delegate any powers conferred by 12 the said Regulations to any of the Officers under his control, subject to any condition that he may impose. Chapter-II deals with definitions. We shall refer to some of the definitions which are relevant for deciding the matter in issue. Clause S.R. 2.2 defines the meaning of word “Committee”. It provides that the ‘Committee’ means the Brihan Mumbai Electric Supply and Transport Committee constituted under the provisions of Mumbai Municipal Corporation act, 1888. Clause S.R. 2.5 defines the meaning of word “Competent Authority”. It reads thus:- “2.5 “Competent Authority” means the B.E.S.&T. Committee or the General Manager or any other officer duly notified as such in the case of holders of appointments to posts for which the B.E.S.&T Committee is the Appointment Authority or the General Manager or any other officer/s duly notified as such by him in the case of other members of staff.” 9. Clause S.R. 2.7 defines the meaning of word “Officers”. The same reads thus:- “2.7 “OFFICERS” means members of staff holding appointments in ‘A’ and ‘B’ grade posts and described as such in the Establishment Schedule framed under Section 460 R of the Mumbai Municipal Corporation Act, 1888.” 13 10. Chapter III of the said Regulations deal with office hours, weekly offs, overtime and holidays. Chapter IV deals with subject of leave while Chapter V deals with allowances. Chapter VI deals with medical examination, invalidation etc. Chapter VII deals with Incentive Schemes and Rewards and Chapter VIII deals with Rental of Undertaking’s Quarters, furnitures etc. Chapter IX deals with Employees Welfare Fund, Savings funds etc. Chapter X of the said Regulations deals with subject of “disciplinary action”. The same is of some significance to decide the matter on hand. It would be, therefore, apposite to reproduce the same in its entirety, which reads as follows: “10.1 This Chapter shall not apply to members of staff governed by the Standing Orders framed under the Bombay Industrial Relations Act, 1946 or any other law for the time being in force. 10.2 Subject to the provisions of any law for the time being in force, a member of staff shall, after enquiry, be liable to be warned, fined, reduced in pay scale, suspended, demoted, dismissed or discharged by the Competent Authority for any breach of departmental rules or discipline and for carelessness, unfitness, neglect of duty or other misconduct. The concerned members of staff shall be informed in writing of the misconduct and the date and time at which 14 the inquiry will be held, which date shall not be less than two days after the service of the notice. 10.3 The delinquent member of staff shall be given an opportunity to answer the charge and permitted to be defended by his representative provided that no such representative shall be allowed in cases where a member of staff is charged with misconduct of a nature which if established, is likely to lead to penalties like warning, fine or suspension for a period not exceeding seven days. Except for reasons to be recorded in writing by the Competent Authority holding the enquiry, the member of staff shall be permitted to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests. 10.4 A member of staff in respect of whom the Appointing Authority is the General Manager and who as a result of such departmental enquiry is ordered to suffer any punishment by any officer other than the General Manager, shall have a right of appeal to the officer immediately superior to the one who has imposed the punishment, provided that such appeal is lodged within 14 days of the receipt in writing of the order appealed against. When the punishment is one of discharge or dismissal, a second appeal shall lie to the General Manager Provided that such appeal is lodged within 14 days of the receipt in writing of the order in the first appeal. At the hearing of any appeal, the member of staff concerned may be defended by his representative. 10.5 A member of staff may be suspended pending the hearing of the case, but if found not at fault, such suspension shall not involve a break in service or loss of salary or 15 wages and allowances or privileges. 10.6 An order of suspension pending an enquiry shall be in writing and may take effect immediately on delivery to the member of staff. Such an order shall set out in detail the alleged misconduct. A member of staff shall be entitled during the period of suspension to a Subsistence Allowance at such rates as the Suspending Authority may direct but not less than one-third of the pay and allowances which he would, but for the suspension, have drawn. Pending an enquiry which may result in disciplinary action, a member of staff may be suspended but if on the conclusion of the enquiry it is decided to take no action against himself, he shall be deemed to have been on duty and shall be entitled to full pay and allowances and to all other privileges for the period of suspension. If some punishment other than the dismissal is imposed, the whole or part of the period of suspension may, at the discretion of the Competent Authority, be treated as on duty with a right to corresponding pay, allowances etc. 10.7 Increments, Withholding of When an increment is ordered to be withheld temporarily, members of staff will be entitled to draw pay inclusive of the increment which he would have earned in the normal course on the expiry of the period for which the increment was ordereded to be withheld and he shall be entitled to draw further increments due on due dates as if the increment had not been withheld. When an increment is ordered to be withheld permanently, the member of staff concerned shall be entitled to draw increments in the time-scale on the subsequent due dates.” 16 Besides, the above provisions, Chapter XI of the Regulations deal with matters governing the termination of service and Chapter XII with Miscellaneous conditions of services. 11. According to the Petitioner, the above said Regulations are statutory Regulations and the Respondents are bound to observe the same. Even if, the argument of the Petitioner that the regulations are statutory regulations were to be accepted, the question is whether there is any express provision specifying as to how the disciplinary action should be initiated and who should conduct the enquiry. That can be answered only with reference to the provisions governing the matters of disciplinary action under Chapter X of the Regulations. Clause S.R. 10.1 is of no assistance as it merely provides that the Chapter shall not apply to the members of staff governed by the standing orders framed under the Bombay Industrial Relations Act, 1946 or any other law for the time being in force. Clause S.R. 10.2 is a provision to guarantee that a member of the staff be liable to be warned, fined, reduced in pay scale, suspended, demoted, dismissed or discharged by the Competent Authority for any breach of departmental rules or discipline and for carelessness, unfitness, neglect of duty or other 17 misconduct only after an enquiry which, however, is subject to the provisions of any law for the time being in force. It further provides that the concerned member of staff shall be informed in writing of the misconduct and the date and time on which the enquiry will be held and further that such date shall not be less than two days after the service of notice. This provision does not expressly provide that the enquiry preceding the proposed action should be initiated and then conducted only by the Competent Authority. The Competent Authority as is defined under Clause S.R. 2.5, means the B.E.S.&T. Committee or the General Manager or any other Officer(s) duly notified as such, as the case may be. Whereas, Clause S.R. 10.2 guarantees only three conditions. Firstly, that the action be taken by the Competent Authority only after enquiry. Secondly, the staff shall be informed in writing of the misconduct and thirdly, such notice should be given not less than two days after the service of the notice. No more and no less. It is in this context, the Petitioner has placed emphasis on clause S.R. 10.3 of the Regulations. However, on plain language of the said provision, it merely postulates that the member of staff shall be given an opportunity to answer the charge and permitted to be defended by his representative in specified matters. It further provides that except for the reasons to be recorded in writing by the 18 Competent Authority holding the enquiry, the member of staff shall be permitted to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests. Relying on this part of the provision, it was argued that the concomitant of such provision is that only the Competent Authority is entrusted with the power to initiate disciplinary action by issuance of charge sheet and then itself conduct enquiry against the officer concerned. The question is: whether the expression Competent Authority appearing in clause S.R. 10.3 will have to be read literally as the Appointing Authority as defined in clause S.R. 2.5. There is no doubt that the expression Competent Authority has been defined in Chapter II of the Regulations, but it cannot be overlooked that the said definition clause will have to be so construed, unless there is anything repugnant to the subject or context. In our opinion, the expression Competent Authority appearing in clause S.R. 10.3 will have to be understood in the context in which it appears. It precedes the expression “holding the enquiry”. When the provision is read as a whole, it will have to be understood in the context of its setting as the “enquiry officer” holding the enquiry for reasons to be recorded in writing may be competent to deny permission to the member of staff to produce witnesses in his defence and cross-examine any witnesses on whose evidence the 19 charge rests. It is certainly not a provision to specify as to who is competent to initiate disciplinary action against the member of staff and more so who would be competent to issue charge sheet and conduct the proposed enquiry qua such charge sheet. The said expression “Competent Authority” will have to be understood in the context of the setting in which the said expression has been placed. In our opinion, there is no express or direct provision either in the Act or the Service Regulation dealing with the subject as to who shall be competent to initiate disciplinary action against the member of staff and who should be competent to issue charge sheet and to conduct the enquiry. Indubitably, clauses S.R. 10.4 to 10.7 are of no consequence in answering the point in issue. Suffice it to observe that the provisions which are pressed into service by the Petitioner in no way suggest that there is any prohibition against initiation of disciplinary action by a Superior Officer other than the Appointing Authority or that of issuance of charge sheet by such superior officer other than the Appointing Authority. Similarly, none of the provisions in the Regulation which are pressed into service expressly or for that matter implicitly rule out the appointment of an outsider as the enquiry officer.