1 WP.1797.11.doc ndm 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. B-72/2, 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, Sector-19, 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 : 28 th September, 2011. DATE ON WHICH JUDGMENT IS PRONOUNCED : 22 nd December, 2011. JUDGMENT: 1 A Division Bench of this Court by order dated 8 th April, 2011 ordered that this petition shall be placed before a Larger Bench. The order dated 8 th 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.” 4 WP.1797.11.doc 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 10 th 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 5 WP.1797.11.doc 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 16 th May, 2009 with CBD- Belapur Police Station, Belapur, Navi Mumbai. On the basis of the said complaint, FIR was registered on 17 th 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 8 th September, 2009 by the Investigating Officer. Some of the officers working in the Encroachment Department were also called on the same day. On 8 th 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 6 WP.1797.11.doc 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 10 th 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 8 th September, 2009 when they were taken into 7 WP.1797.11.doc custody and they shall remain under suspension till further orders. 6 The Petitioners made a representation on 25 th 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 7 th August, 2010 and 23 rd September, 2010 made by the Petitioners for the same purpose. On 8 th 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 Sub-Section (1) of Section 56 of the said Act of 1949, the 8 WP.1797.11.doc 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 8 th 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 8 th September, 2009 were not arrested and were not placed under suspension. 8 The Respondent Nos.4 and 5 filed a reply dated 5 th 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 Sub-Section (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 affidavit-in-reply, a reliance was placed on the decision of the Division Bench of this Court in the case of Sudhir R. 9 WP.1797.11.doc Bhatankar Vs. State of Maharashtra & others [2000 (1) Mh.L.J. 519]. It was stated that vide letter dated 16 th 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 3 rd 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 18 th March, 2011 for filing a charge-sheet 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 Sub- 10 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 affidavit-in-reply filed by the Municipal Corporation shows that though the proposal for suspension was forwarded to the General Body of the Corporation on 6 th March, 2010 for its approval, the same was withdrawn on 16 th July, 2010. He submitted that the proviso to clause (b) of Sub-Section (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 11 WP.1797.11.doc 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 Sub-Section (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 12 WP.1797.11.doc 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 Sub-Section (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 Sub-Section (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 Sub-Section (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 Sub-Section (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 Sub-Section (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 10 th 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 15 WP.1797.11.doc 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 forty-eight 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 forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation- The period of forty-eight hours referred to in Clause (b) of this sub-rule 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 16 WP.1797.11.doc 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: 17 WP.1797.11.doc “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 sub-section (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 sub-section (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 18 WP.1797.11.doc specified in clauses (a), (b), (c), (d) and (e) of sub-section (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 time-scale, or to a lower stage in a time-scale ; (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 19 WP.1797.11.doc 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 Sub-Section (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 Sub- Section (2) and Sub-Section (3) of Section 53. The Petitioner Nos.4 and 5 have been admittedly appointed by the Corporation in exercise of powers under Sub-Section (1) of Section 53. Under clause (b) of 20 WP.1797.11.doc Sub-Section (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 Sub-Section (2) or Sub-Section (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 Sub-Section (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 Sub- Section (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 21 WP.1797.11.doc 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