:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4914 OF 1997 WRIT PETITION NO. 4914 OF 1997 WRIT PETITION NO. 4914 OF 1997 1. Municipal Corporation of ] Greater Mumbai, through the ] Municipal Commissioner, ] Mahapalika Marg, V.T. ] Mumbai 400 001 ] 2. The Deputy Municipal ] Commissioner, Zone - II ] South Ward, Parel, Mumbai 400012] 3. The Dean, Lokmanya Tilak ] Memorial General Hospital, ] Municipal Corporation of Greater] Mumbai, Sion, Mumbai 400022 ]..Petitioners versus Prakash Sridhar Mondkar ] residing at Room No. 16/18, ] Kurmurawala Chawl, 109 Hutatma ] Prabhakar Keluskar Marg, ] Belgrami Road, Kurla (West) ] Bombay 400 070 ]..Respondent Mr. N. V. Walawalkar with Mr. Vinod Mahadik i/b. Mrs. A. H. Chheda for the Petitioners. None for the Respondent. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 9TH JANUARY, 2009. DATE : 9TH JANUARY, 2009. DATE : 9TH JANUARY, 2009. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . Heard learned counsel for the parties. :2: 2. The Petitioner - Municipal Corporation has challenged the Order of the Industrial Court setting aside the suspension of the respondent. 3. While working as a Manager, the respondent failed to grant swimming tank reservation to (i) Handicapped Sports Association of India for 21 days in August 1993 and 21 days in September 1993, and (ii) Lions Club of Midtown for 26 days in April and May 1994, thereby putting the petitioners to a loss of Rs.47,250/-. In contemplation of an enquiry, the Commissioner apparently placed the respondent under suspension by an order bearing No. MGC/F/670 dated 17.5.1995. However, what was communicated to the respondent was not this order of the Municipal Commissioner but an order dated 22.5.1995 signed by the Dean of the Hospital where the respondent was working. This order signed by the Dean clearly stated that the respondent was suspended by the order of the Municipal Commissioner bearing No. MGC/F/670 dated 17.5.1995. 4. The respondent challenged the Order of the Dean dated 22.5.1995. He failed to challenge the original order of suspension dated 17.5.1995 passed by the Municipal Commissioner in the proceedings :3: under the MRTU and PULP Act. The petitioner corporation clearly pleaded in its written statement that the suspension order was actually passed by the Municipal Commissioner on 17.5.1995 and it was communicated to the respondent by the letter dated 22.5.1995. Notwithstanding this plea, the respondent appears to have failed to amend his complaint nor challenged the order of suspension dated 17.5.1995. Nor does he appear to have taken any steps to have the order produced. 5. The Industrial Court proceeded to adjudicate the complaint and came to the conclusion that the suspension order dated 22.5.1995 signed by the Dean was liable to be set aside since (a) it was not issued by the competent authority i.e. Municipal Commissioner but was signed by the Dean, and (b) that it was not in the form prescribed by the BMC Act and the Rules for suspension orders. The observations of the Industrial Court are correct but they have not been made in relation to the actual suspension order dated 17.5.1995. The respondent was clearly bound as a matter of law to challenge the Order of the Municipal Commissioner dated 17.5.1995 which was referred to and merely communicated by the Order of the Dean. It is :4: obvious that the suspension order was passed by the Municipal Commissioner. If the respondent was aggrieved by the failure of the petitioner to serve the actual suspension order, he was bound to apply for the same and challenge it. In any case, the respondent was bound to have made a prayer for setting aside the actual suspension order dated 17.5.1995 signed by the Municipal Commissioner. It was clearly impermissible to resort to a subterfuge and to challenge the suspension order dated 22.5.1995 signed by the Dean on the ground that the Dean was not competent to suspend. In any case, the Industrial Court was bound to go into the plea of the petitioner that the actual suspension order has been passed by the Commissioner on 17.5.1995 and that is not illegal. The net result of the proceedings is that there is no challenge to the actual suspension order which has therefore not been set aside. What has been set aside is the Order of the Dean referring to the actual suspension order and on that basis the petitioners have been directed to pay entire wages due and payable treating the complainant on duty for the entire suspension period upto the date of its withdrawal. This has clearly resulted into a miscarriage of justice. The impugned order is therefore set aside. Rule is made :5: absolute in terms of prayer clause (a). (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)