- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9340 OF 2003 Mr.Madhukar Rasal Pawar. ...Petitioner VS. 1.The Thane Municipal Corporation & others. ...Respondents --- Mr.Nitin Pradhan i/b. S.D.Khot, for Petitioner. Mr.R.S.Apte, for Respondent nos.1 to 3. Mrs.S.S.Bhende, A.G.P. for Respondent no.4. CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED: 3rd March,2008. DATED: 3rd March,2008. DATED: 3rd March,2008. P.C. P.C. P.C.: 1. The petitioner was in service of respondent no.1 Thane Municipal Corporation. A departmental inquiry was initiated against him on the allegations that he is guilty of misconduct. The departmental - 2 - inquiry was held and the departmental inquiry officer submitted his report holding the petitioner guilty of the charges levelled against him. In the report, the inquiry officer recommended that the petitioner should be removed from the service. The office of the Corporation, therefore, submitted a proposal to the general body of the Municipal Corporation for passing resolution for removal of the petitioner from service as per the recommendation made by the inquiry officer. The general body of the Corporation, however, did not accept the recommendation made by the inquiry officer of the punishment and the general body of the Corporation passed a resolution dated 4.9.1997 reducing the petitioner in rank and directing recovery of amount of Rs.63,300/- from him. It appears that the Deputy Commissioner, Head Quarters, Thane Municipal Corporation submitted a report to the State Government dated 14.1.1998 requesting the State Government to revoke the resolution of the Corporation passed in relation to the petitioner. On the basis of the report submitted by the office of the Corporation, the Government issued a resolution dated 19.1.2000. By that resolution, the State Government in exercise of its power under Section 451(1) of the Mumbai Provincial - 3 - Municipal Corporations Act has rescinded the resolution of the Corporation dated 4.9.1997 bearing no.80 proposing to reduce the petitioner in rank and to recover from him the amount of Rs.63,300/-. In view of the Government resolution, the Municipal Commissioner passed an order dated 30.9.2000 removing the petitioner from service. The present petition has been filed challenging the order of the Corporation dated 30.9.2000 as also the Government Resolution dated 19.1.2000 on the basis of which the order dated 30.9.2000 is passed. The learned Counsel appearing for petitioner submits that the Corporation by passing resolution dated 4.9.1997 had not accepted the recommendation made by the Inquiry officer and imposed lesser punishment on the petitioner. Now that resolution, according to the learned Counsel, firstly could not have been rescinded by the State Government under the provision of sub-section (1) of Section 451 of the Mumbai Provincial Municipal Corporations Act. In any case, according to the learned Counsel, the power of the State Government under Section 451 of the Act of rescinding the resolution of the Corporation could not have been exercised without granting an opportunity of being heard to the petitioner. As the order of the State - 4 - Government rescinding the resolution of the Corporation in relation to the petitioner is adverse to the interest of the petitioner, and therefore, it could not have been done without granting the petitioner an opportunity of being heard. 2. We have heard the learned Counsel appearing for respondents, mainly the learned Counsel appearing for the State Government. She is not in a position to point out anything as to how the power of the State Government under Section 451 of the Act could have been exercised by the State Government for the purpose of rescinding the resolution passed by the Corporation in favour of the petitioner, without giving the petitioner an opportunity of being heard. In our opinion, as it is an admitted position that the resolution no.80 dated 4.9.1997 was passed by the Corporation thereby deciding to impose lesser punishment on the petitioner, that resolution created right in the petitioner and therefore, in any case the State Government could not have made the order rescinding that resolution without granting the petitioner an opportunity of being heard. It was open to the petitioner, on such opportunity being given by the State Government, to urge before the - 5 - State Government that the power conferred on the State Government under Section 451 of the Act cannot be exercised to rescind such resolution. In our opinion, the order of the State Government rescinding the resolution which is made in breach of the principles of natural justice is invalid. In our opinion, therefore, the following order would meet the ends of justice:- . The resolution of the State Government dated 19.1.2000 rescinding the resolution no.80 dated 4.9.1997 is set aside, so is the order dated 30.9.2000 passed by the Municipal Commissioner. . It is directed that in case the State Government decides to exercise its power under Section 451 of the Mumbai Provincial Municipal Corporations Act in relation to the resolution no.80 dated 4.9.1997, it shall issue show cause notice to the petitioner asking the petitioner to show cause why that resolution should not be rescinded. The State Government may serve a copy of that notice on the Corporation also and the State Government shall after giving an opportunity of being heard to the Corporation and as also to the petitioner, make - 6 - appropriate order in accordance with law. . All the contentions that may be available to both the sides are kept open to be urged before the State Government. . The State Government shall issue appropriate show cause notice within a period of six weeks from today and shall make order after granting an opportunity of being heard to both the sides, within a period of eight weeks from the date of issuance of show cause notice. . By consent of the petitioner, in view of the peculiar circumstances of the case, it is directed that the parties shall maintain status quo till the State Government passes fresh order pursuant to the show cause notice. . Rule is made absolute accordingly. . No order as to costs. - 7 - (D.K.Deshmukh, J.) (J.P.Devadhar, J.) ---