MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPAL CORPORATION AND ANR. versus R. M. DOSHI on 2 May 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court of Gujarat atAhmedabad in Letters Patent Appeal No. 726 of 2006 by which theDivision Bench of the High Court has dismissed the said appeal preferredby the appellant – Jamnagar Municipal Corporation and has confirmedthe judgment and order passed by the learned Single Judge in SpecialCivil Application No. 10682 of 1998 by which the learned Single Judgeallowed the said application preferred by the respondent herein and hasquashed and set aside the dismissal order passed by the Commissioner,the Jamnagar Municipal Corporation has preferred the present appeal.

E

F

2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the respondent herein, at the relevant time, was discharginghis duty as City Engineer of the appellant – Municipal Corporation. Thatfor certain execution of work and construction of roads within theMunicipal Corporation area, it was found that the respondent hadcommitted certain irregularities. A chargesheet came to be issued againsthim on 15.01.1993. The respondent did not agree to the charges levelledagainst him. Therefore, a departmental inquiry was conducted against G

H

Ahim. Upon conclusion of the inquiry, the Inquiry Officer submitted hisreport dated 06.10.1995.

2.2 The Inquiry Report was made available to him calling for hisrepresentation. Report of the Inquiry Officer was supplied alongwithnotice dated 02.09.1998. He was called upon to show cause as to whyBmajor penalty as provided under Rule 6 of the Gujarat Civil Services(Disciplinary and Appeal) Rules, 1971, should not be imposed upon him.

The respondent replied to the said show cause notice. The Commissionerof the Municipal Corporation, thereafter, passed a dismissal order dated07.12.1998 by which the respondent was ordered to be dismissed fromservice.C

2.3 The order of dismissal passed by the Commissioner of theMunicipal Corporation was challenged by the respondent before thelearned Single Judge of the High Court. Before the learned Single Judge,the respondent challenged the inquiry report as well as the dismissalorder on merits and also on the ground that the Commissioner, whoDpassed the order of dismissal was not having any jurisdiction and/orauthority to pass a dismissal order and impose the major penalty.

2.4 It was the case on behalf of the respondent before the learnedSingle Judge that the Resolution No. 51 dated 20.11.1998 passed by theGeneral Board of the Jamnagar Municipal Corporation did not empowerEthe Municipal Corporation to initiate and/or to conclude the disciplinaryproceedings for the alleged irregularities or negligence in the presentcase.

2.5 The petition was opposed by the Corporation on merits aswell as on the authority of the Commissioner. It was submitted thatFunder Resolution No. 51 dated 20.11.1998, the Commissioner had passedthe final order of penalty. It was contended that the delegation covers allkinds of works including purchases and other execution of work in whichit is found that the officer has committed irregularity or had acted in anegligent manner. It was further submitted that eventually, the GeneralGBody of the Corporation vide its Resolution No.56 dated 15.12.1998 asamended by subsequent Resolution dated 30.12.1998, had ratified theaction taken by the Commissioner.

2.6 The learned Single Judge though held on merits against therespondent but, however, set aside the order of dismissal passed by theCommissioner solely on the ground that the Commissioner had noH

authority and/or power to impose any major penalty upon the respondentfor the misconduct proved. The learned Single Judge observed that theResolution No. 51 dated 20.11.1998 conferred power upon theCommissioner for initiating action for irregularities with respect to thepurchases only and not with respect to any other misconduct and/orirregularity. The learned Single Judge also held that the subsequentratification by the General Board would not confer any authority uponthe Commissioner and the subsequent ratification of the action of theCommissioner would not save the action. Consequently, the learned SingleJudge allowed the writ petition and set aside the order of dismissal withall consequential benefits.

2.7 The judgment and order passed by the learned Single Judgewas the subject matter of appeal before the Division Bench by way ofLetters Patent Appeal No. 726 of 2006 by which the learned SingleJudge upheld the inquiry and the inquiry report. The respondent alsopreferred Letters Patent Appeal No. 752 of 2006.

2.8 By the impugned judgment and order, the Division Bench ofthe High Court has dismissed the appeal preferred by the appellantCorporation. In view of the dismissal of appeal preferred by theCorporation, learned counsel appearing on behalf of the respondent didnot press the Letters Patent Appeal No. 752 of 2006.

2.9 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court dismissingLetters Patent Appeal No. 726 of 2006 and confirming the judgment andorder passed by the learned Single Judge, quashing and setting aside thedismissal order passed by the Commissioner, the Corporation haspreferred the present appeal.

3. While issuing the notice dated 26.03.2012, this Court had stayedthe operation of the impugned judgment. However, thereafter vide orderdated 24.08.2012, while granting leave, this Court has directed that theappellants shall continue to pay a lump-sum amount of Rs. 10,000/- permonth to the respondent w.e.f. 01.04.2012. It is reported that the saidamount of Rs. 10,000/- per month thereafter is being paid to therespondent.

4. Mr. Preetesh Kapur, learned Senior Advocate, appearing onbehalf of the appellants has vehemently submitted that both the learnedSingle Judge as well as the Division Bench of the High Court have A

B

C

D

E

F

G

H

Amaterially erred in observing that the Commissioner had no power and/or authority to pass the order of dismissal against the respondent. It issubmitted that the Resolution No. 51 dated 20.11.1998 authorised theCommissioner to pass the final order of penalty and the said delegationcovers all kinds of works including purchases and other execution ofwork in which it is found that the officer has committed irregularity and/Bor had acted in a negligent manner.

4.1 It is submitted that in any case, thereafter, the decision of theCommissioner to dismiss the respondent from service was placed beforethe General Board and the General Board of the Corporation vide itsResolution No.56 dated 15.12.1998 as amended by subsequent ResolutionCdated 30.12.1998, ratified the action taken by the Commissioner. It issubmitted that the said ratification would relate back to the order ofdismissal passed by the Commissioner. It is submitted that even if theorder passed by the Commissioner can be said to be invalid, the samecame to be ratified subsequently, the said defect, in any case, can beDsaid to have been cured. Heavy reliance is placed on the decision of thisCourt in the case of National Institute of Technology and Anr. Vs.Pannalal Choudhury and Anr., (2015) 11 SCC 669 (paras 13 and33).

5. Present appeal is vehemently opposed by Ms. Jaikriti S. Jadeja,Elearned counsel appearing on behalf of the respondent.

5.1 It is submitted that insofar as the Resolution No.51 dated20.11.1998 is concerned, it conferred power upon the Commissioner totake action with respect to any irregularity in case of purchases only andnot with respect to any other misconduct. It is submitted that, therefore,Fthe decision of the Commissioner to dismiss the respondent from servicewas void ab initio and therefore, the subsequent ratification by theGeneral Board cannot save the order of dismissal. Reliance is placed onthe decision of this Court in the case of Marathwada University Vs.Seshrao Balawant Rao Chavan, (1989) 3 SCC 132 (paras 27 andG28).

5.2 In the alternative, it is further submitted that the respondent,at present, is aged 75 years of age and he is being paid Rs. 10,000/- permonth w.e.f. 01.04.2012.

6. Heard the learned counsel for the respective parties.

H

7. At the outset, it is required to be noted that after departmentalproceedings and on conclusion of the inquiry, the charges and themisconduct alleged against the respondent have been proved, which hasbeen even confirmed by the learned Single judge. However, thereafter,solely on the ground that the Commissioner, who passed the order ofdismissal had no power / authority to impose the penalty of dismissal onthe respondent, who, at the relevant time, was serving as City Engineer,the learned Single Judge quashed the order of dismissal with allconsequential benefits and the same has been confirmed by the DivisionBench.

7.1 Now, insofar as the submission on behalf of the appellantCorporation that vide Resolution No. 51 dated 20.11.1998, theCommissioner was authorized to take action against any officer withregard to the lapses and/or negligence on the part of the officers invarious works and purchases is concerned, on going through theResolution No. 51, it appears that though the issue raised was with regardto the lapses and negligence on the part of the officers in various worksand purchases and was discussed, however, ultimately, what was resolvedwas to empower the Commissioner to take proper and necessary actionagainst those erring officers, who committed lapses and carelessness invarious works in purchasesand take action as per the rules andregulations, wherever, necessary. Therefore, the Commissioner wasauthorized to take action against the erring officers with respect to thelapses and carelessness with various works in purchasesonly. Therefore,both the learned Single Judge as well as the Division bench of the HighCourt have rightly observed and held that the Resolution No. 51 did notauthorize and/or confer any power upon the Commissioner to take actionwith respect to any other lapses other than the purchases. However, atthe same time, it is required to be noted that the decision of theCommissioner was placed before the General Board and the GeneralBoard vide its Resolution No.56 dated 15.12.1998 as amended bysubsequent Resolution dated 30.12.1998, ratified the decision of theCommissioner dismissing the respondent from service. Learned counselappearing on behalf of the respondent has relied upon the decision ofthis Court in the case of Marathwada University (supra) and relyingupon paragraph 27, it is submitted that as observed and held by thisCourt a decision ab initio void cannot be ratified. However, the saiddecision shall not be applicable to the facts of the case on hand. Thedecision of the Commissioner cannot be said to be per se void ab initio.

A

B

C

D

E

F

G

H

AIt is to be noted that even otherwise, in the present case, the GeneralBoard had the power to pass an order of dismissal, which is not evendisputed by the learned counsel appearing on behalf of the respondent.The decision of the Commissioner was placed before the General Boardand the General Board had ratified the said decision. Therefore, thereafter,Bthe dismissal can be said to be an order passed by the General Board. Atthis stage, the decision of this Court in the case of Pannalal Choudhury(supra) on ratification is required to be referred to. On discussing theentire law on ratification, thereafter in paragraph 33, it is observed andheld as under:- C“33. Applying the aforementioned law of ratification to the factsat hand, even if we assume for the sake of argument that theorder of dismissal dated 16-8-1996 was passed by the Principaland Secretary who had neither any authority to pass such orderunder the Rules nor was there any authorisation given by theBoG in his favour to pass such order yet in our considered viewDwhen the BoG in their meeting held on 22-8-1996 approved theprevious actions of the Principal and Secretary in passing therespondent’s dismissal order dated 16-8-1996, all the irregularitiescomplained of by the respondent in the proceedings including theauthority exercised by the Principal and Secretary to dismiss himEstood ratified by the competent authority (Board of Governors)themselves with retrospective effect from 16-8-1996 therebymaking an invalid act a lawful one in conformity with the procedureprescribed in the Rules.”

7.2 Applying the law laid down by this Court in the case of PannalalFChoudhury (supra) to the facts of the case on hand, any irregularitycomplained of by the respondent on the authority exercised by theCommissioner to dismiss him stood ratified by the competent authority(General Board) thereby making an invalid act a lawful one in conformitywith the procedure prescribed under the Act and the Rules.G7.3 In that viewof the matter, the impugned judgment and orderpassed by the Division Bench of the High Court as well as the learnedSingle Judge quashing and setting aside the order of dismissal areunsustainable and deserve to be quashed and set aside and are accordinglyquashed and set aside. However, at the same time, it is directed that anyamount paid to the respondent, namely, Rs. 10,000/- per month w.e.f.H

MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPALCORPORATION AND ANR. v. R. M. DOSHI [M. R. SHAH, J.]

01.04.2012 pursuant to the order passed by this Court be not recoveredfrom the respondent despite allowing the present appeal and restoringthe order of dismissal.

Present appeal is accordingly allowed. No costs.

Ankit Gyan

Appeal allowed.

(Assisted by : Abhishek Agnihotri and Aarsh Choudhary, LCRAs)

A

B

C

D

E

F

G

H