1. Shri Govind Ragho Khairnar, the petitioner, by means of this writ petition challenges his suspension vide order dated 28-6-1994, the disciplinary proceedings including the report and findings of the Enquiry Officer, Resolution No. 259 dated 8-7-1996 passed by the respondent No. 1, the show cause notice for removal dated 30th July, 1996 and the Resolution dated 10-10-1996 passed by respondent No. 1 removing him from municipal service.
2. The petitioner was appointed as Deputy Municipal Commissioner and was confirmed with effect from 28-12-1988 in accordance with the provisions of the Bombay Municipal Corporation Act, 1888 (for short, 'the Act'). It is the case of the petitioner that he is very upright officer and has absolutely clean and excellent record of municipal service. On account of his uprightness in working, the petitioner submits that he invited wrath of his superiors and some such politicians whose vested interests were hurt by the petitioner's honest and fearless manner of functioning. The petitioner claims that he believes in clean administration of the respondent No. 1 (for short, 'the Corporation') and he has always acted in the interest of the people of the city as well as in the interest of the Corporation. The petitioner alleges that in the process and as a result of his upright functioning the Municipal Commissioner put him under suspension vide order dated 28-6-94 on misconceived grounds and unsustainable alleged misconduct. The said suspension order was placed before the Corporation which was confirmed vide Resolution dated 11-8-94. The petitioner challenged the said suspension order before this Court in Writ Petition No. 1812 of 1994. By that time the Enquiry Officer was also appointed and therefore in the writ petition the petitioner also challenged the appointment of the Enquiry Officer. The said writ petition was dismissed as withdrawn on 30th August, 94 and the petitioner also withdrew unconditionally allegations made against the Enquiry Officer. The petitioner was given liberty to agitate all the issues raised in the writ petition before the Enquiry Officer and also to challenge the order of Enquiry Officer if it was adverse to him. Accordingly, the petitioner raised all the objections before the Enquiry Officer by the application dated 6-9-1994. The petitioner also requested the Enquiry. Officer to decide preliminary objections raised by the petitioner first but the Enquiry Officer did not acceed to the said request of the petitioner. The petitioner then approached this Court by filing another Writ Petition No. 2651 of 1994 praying therein that the disciplinary proceedings initiated against him were void-ab-initio, illegal and improper and without authority of law and therefore they be quashed and set aside. The said writ petition was rejected by this Court on 24-12-1994 as premature. It appears that before the said order came to be passed in second writ petition, the Enquiry Officer had already submitted his report to the Municipal Commissioner on 17-12-1994. From the available record it transpires that on 15-12-95 the Municipal Commissioner upon receipt of the report from the Enquiry Officer considered the report of the Enquiry Officer and agreed with his findings on all the charges. The Municipal Commissioner imposed penalty for proof of charge Nos. 2, 4 and 7. As regards the recommendation of the Enquiry Officer that petitioner should be removed from municipal service the Municipal Commissioner recommended the Corporation for removing the petitioner from the service. On 10-10-95 the Corporation by it's resolution directed reinstatement of the petitioner and cancelled his suspension. The resolution dated 10-10-95 passed by the Corporation, according to the petitioner, was not followed and the Commissioner on 6-7-96 circulated a memorandum amongst the Councilors for approval of recommendations of the Enquiry Officer to remove the petitioner from municipal service and to issue a showcause notice to the petitioner for the proposed punishment of removal. On 8-7-96 the Corporation in its meeting passed Resolution No. 259 and permission was granted to the Commissioner accordingly. Thereafter, on 30th, July, 96 the Municipal Commissioner served a notice upon the petitioner calling upon him to show cause why he should not be removed from municipal service for the misconduct proved against him. The petitioner was directed to submit his reply within one month from the date of receipt of the notice. Alongwith the showcause notice the Enquiry Officer's report was also enclosed to the petitioner. The reply was submitted by the petitioner to the showcause notice on 19th August, 96 and he denied having committed any act of misconduct alleged against him. As regards charge about the public speeches made by him, he urged that he has performed his fundamental duty as citizen of this country in endeavour to clean the society with the broom of his conscience. He also submitted that if there was any corruption in any corner of the society, he had not only right but a duty to expose the corrupt comer to the people. Thus, he submitted that he did not commit any act of misconduct if he pointed out certain corrupt corners of the country. Regarding charge No. 2 relating to demolition of structures, the petitioner submitted that he acted in accordance with law and if at all there was any misjudgment that cannot be termed as a misconduct. He prayed (or reconsideration of the matter whether an absolute, upright and honest person like him should be thrown out of municipal service on motivated and frivolous allegations. After filing reply on 19-8-96 to the Municipal Commissioner, the petitioner filed the present writ petition. The writ petition came up before this Court on 4th September, 96 and the Counsel appearing for the Corporation informed this Court that the decision will be taken by the Corporation only after considering the reply of the petitioner and in case the decision of the Corporation was adverse to the petitioner, it shall not be implemented for a period of four weeks from the date of service of the order on the petitioner and in that eventuality the petitioner will be at liberty to apply to this Court for appropriate interim reliefs. It appears that on 30th September, 1996 the Municipal Commissioner circulated the matter relating to disciplinary proceedings against the petitioner to the councilors of the Corporation for consideration on urgent basis with his comments and the Corporation by its Resolution No. 744 dated 10-10-96 resolved that the petitioner be removed from municipal services under the provisions of section 83(1) of the Act of 1888.
3. Shri B.V. Chavan, retired Judge of this Court was appointed as Enquiry Officer to hold the departmental enquiry against the petitioner who framed the following charges :
"1. That while working as Deputy Municipal Commissioner (G) in the Municipal Corporation of Greater Bombay, you were duty bound to observe the provisions of the Municipal Servant's Conduct & Discipline Rules, Bombay Municipal Corporation (Service) Regulations, 1989 and Bombay Municipal Corporation Act, 1888. Nevertheless, since January 1994 until June 1994, you made many objectionable utterances which have been published in Bombay based morning and evening newspapers, xerox copies of such clippings are appended herewith. Through the said utterances, you had acted in most unbecoming manner to the stature of the coveted post of Deputy Municipal Commissioner (G) and have thus crossed all the limits of decency as a public servant, and had made many wilful statements against not only municipal servants and officers including elected representatives of the Corporation but also against the State Government including Ministers, thereby embarrassing the relations of the Municipal Corporation with the State Government and thus blatantly violated the provisions of Rules Nos. 4 & 31-A(a) of the Municipal Servant's Conduct and Discipline Rules.
2. That during the period you were in charge of removal of encrochment action of the Corporation, while taking actions of demolitions in respect of the cases enlisted herewith, though you were duty bound to take the actions as per the provisions of Bombay Municipal Corporation Act, 1888 and other relevant enactments and after following due process of law, you acted in contravention of the Rules & Regulations, and orders and instructions of your superiors and thereby you undertook those demolition actions which resulted in litigations and honourable courts were compelled to pass orders and strictures against you and the Corporation. The Corporation was also required to pay heavy damage compensation to the concerned parties besides reconstructing the structures as per Court orders. The Corporation was required to defend the cases in Court of Law and thereby incurred heavy expenditure towards Counsel's fees, also. Had you acted in judicious manner in these matters, such expenditure could have been avoided and Corporation would have been saved from disrepute. Moreover, the image of the Corporation was at stake in the eyes of public and citizens at large. Thus you had in utter disregard to the instructions and orders of the superiors, acted in an unbecoming manner carelessly and utter neglect of duty and thereby caused a great deal of disrepute to the Corporation image in breach of Rule 41 of Municipal Servant's Conduct and Discipline Rules.
3. That while making a speech on 22-5-1994 you criticised the Chief Minister of Maharashtra on the Public Platform, conveniently ignoring the fact that you, being a public servant, are not supposed to or cannot make such public statements against one political party on the eve of the by-elections to Parliament in Baramati and Ahmadnagar Constituencies. It is therefore, obvious that the behaviour and the statements made by you become all the more objectionable and definitely violate the provisions of Rule 33 of Municipal Servant's Conduct and Discipline Rules.
4. That you, in your explanation dtd. 30-5-1994 under No. DMC/G/634 have charged the Municipal Commissioner that M.C.'s various administrative decisions had adversely affected your social commitments. You further stated that after Shri Sharad Pawar became Chief Minister, your actions were throttled (through the Municipal Commissioner). Thus you are making baseless allegations against your superiors including Municipal Commissioner. Your above acts amount to breach of Rule 41 of Municipal Servant's Conduct & Discipline Rules.
5. That you in your explanation given to the Municipal Commissioner dtd. 30-5-1994 in respect of a statement published in the newspaper "Aaj Dinank' dtd. 23-5-1994 to the effect that Dawood had given Rs. 5 crores to the Chief Minister for the purpose of construction of unauthorised structures. You stated that some persons on behalf of Dawood Ibrahim had approached the then Chief Minister Shri Sudhakarrao Naik through some M.L.As. and M.Ps. with an offer to pay some crores of rupees to stop the demolition action undertaken by you, but the then Chief Minister refused to oblige. This explanation of yours appears to be a blatant lie in view of the article appearing in "Nav-Shakti" dtd. 28-5-1994 written by Shri Ashok Padbidri wherein Shri Ashok Padbidri has reported that the said statement was made by you in his presence and recorded by his representative on telephone to you. You are, therefrom charged that by making a wilful misstatement in your explanation with a dishonest intention of saving yourself from punitive action, you have thereby committed a breach of Rule 4 of the Municipal Servant's Conduct and Discipline Rules.
6. That you in or about the month of May 1994, also distributed xerox copies of the Memorandum issued to you by the Municipal Commissioner in official capacity and thereby committed a breach of Rule 29 of the Municipal Servant's Conduct and Discipline Rules.
7. Though you were specifically directed by the Municipal Commissioner under No. MGC/B/858 of 24-6-1994 not to leave the Head-quarters without M.C's prior permission, you blatantly violated M.C.'s said orders and attended a public meeting at Aurangabad on 26-6-1994 and made scrullious utterances thereby damaging the image of the Corporation besides straining the relations of the Corporation with the State Government. You, therefore, violated the provisions of Rule 16 of the Bombay Municipal Corporation (Service) Regulations, 1989.
You, thus breached the provisions of Rules 4, 29, 31-A(a), 33 and 41 of the Municipal Servant's Conduct and Discipline Rules and provisions of Rule 16 of Bombay Municipal Corporation (Service) Regulations, 1989.
Your above acts amount to gross misconduct and gross negligence.
A statement of allegations and a statement of evidence are attached herewith."
4. The Enquiry Officer found charge No. 1 partly proved and charge Nos. 2, 4 and 7 proved. Other charges were held not proved by the Enquiry Officer. The findings recorded by the Enquiry Officer in paragraphs 60, 61, 62, 63 and 64 of the inquiry report read thus :
"60. Therefore, the position is so far as charge No. 1 is concerned it is partly proved to the extent that Shri Khairnar made objectionable utterances in the instances which have been duly proved and such utterances also amounted to wilful mis-statements against the Municipal Officers, elected representatives of the Corporation and the State Govt. including the Ministers. This amounts to violation of Rule 4 of the M.S.C. and D. Rules.
61. As regards charge No. 2 it is proved that in the four instances that have been referred to in the earlier part of this report, Shri Khairnar acted in utter disregard of the provisions of law and the orders of his superiors in a manner carelessly and in utter neglect of duty which amounts to breach of Rule 41 of M.S.C. and D. Rules.
62. As regards charge No. A, it is proved that Shri Khairnar has made baseless allegations against his superiors including Municipal Commissioner in his explanation dated 30th of May, 1994 which amounts to misconduct within the meaning of Rule 41 of the M.S.C. and D. Rules.
63. Similarly, charge No. 7 is proved against Shri Khairnar for violating the provisions of Rule 16 of the Bombay Municipal Corporation (Service) Regulations, 1989 punishable under Rule 41 of the M.S.C. and D. Rules.
64. So far as the remaining charges Nos. 3, 5 and 6 concerned they are held as "not proved".
5. Mr. Aspi Chinoy, the learned Sr. Counsel and Mr. R.J. Kochar, the learned Counsel appearing for the petitioner first of all submitted that the enquiry and the action of removal of the petitioner from service purporated to be taken in exercise of the powers under section 83(1) of the Act are without jurisdiction. In support of the said argument the learned Counsel referred to the scheme of the Act and submitted that section 83(1) forms part of Chapter IV of the said Act and only deals with removal and dismissal of Municipal Officers and servants, while Chapter II of the Act deals with municipal authorities and Part (A) to (G) of the said chapter deals with different authorities. Chapter III of the Act deals with duties and powers of the municipal authorities and Dy. Municipal Commissioner who is appointed under section 55 of the Act is the municipal authority within Part II and, therefore, the petitioner does not fall within the category of Municipal Officer and servant as contemplated Chapter IV, and, could not have been proceeded with under section 83(1) of the Act of 1888. The learned Counsel for the petitioner also referred to section 521 of the Act to demonstrate the difference between the municipal authorities namely Commissioner, Dy. Municipal Commissioner and Director on the one hand and Municipal Officers and servants on the other. The contention of the learned Counsel for the petitioner is that having regard to the scheme of the Act viz. Chapter II and III dealing with authorities as distinguished from Chapter IV which deals with Municipal Officers and servants, section 521 and the express terms of section 55(2), a Dy. Municipal Commissioner can be removed only by the State Government in the manner Municipal Commissioner can be removed under section 54(2) and, therefore, the entire proceedings were without jurisdiction.
6. On the other hand, Mr. K.K Singhvi, the learned Senior Counsel appearing for the Corporation submitted that the scheme of the Act sought to be explained by learned Counsel (or the petitioner is wholly misconceived. According to him, section 83(1) of the Act comprehends all holders of office in the Municipal Corporation and Dy. Municipal Commissioner is definitely a holder of the office in the Corporation and, therefore, is covered under section 83(1) of the Act. Mr. Singhvi, extensively referred to the provisions of the Act in support of his contentions and also relied upon observations made by the Enquiry Officer in his report holding that the petitioner is amenable to disciplinary action under section 83(1) of the Act. The learned Senior Counsel appearing for the Corporation also relied upon a Division Bench judgment of this Court in Damodar Shantaram Nadkarni v. S.E. Sukhtankar, 1973(75) Bom.L.R. 538.
7. The Bombay Municipal Corporation Act, 1888 was enacted to consolidate and amend the law relating to the Municipal Corporation of Greater Bombay. Chapter II is in various parts and deals with the municipal constitution and municipal authorities. Section 4 specifies the municipal authorities charged with carrying out the provisions of the Act. Part A of Chapter It bears the title 'The Municipal Corporation' and consists of composition of Corporation, reservation of seats, duration of the Corporation, terms of the office of the Councillors, municipal election rules, election of Councillors, proceedings of the Corporation, Mayor, honorarium, fees and allowances and various committees. Parts (B), (C), (D) and (E) of Chapter II deal with the standing committee, the improvement committee, Bombay, Electric Supply and Transport Committee and the Education Committee respectively. The appointments of the Commissioner, the Director, the Dy. Municipal Commissioner, functions of the Director and Dy. Municipal Commissioner, remuneration of Commissioner, Director and Dy. Commissioner, provisions for absence of Commissioner, Director and Dy. Municipal Commissioner on leave and disqualification of the Commissioner, Director and Dy. Municipal Commissioner are dealt with in Part (F) of Chapter II. Part (G) of Chapter II deals with the General Manager, his appointment, leave, disqualification and also appointment of Chief Accounts Officer. Chapter III of the Act concerns with the duties and powers of the municipal authorities. Title of Chapter IV. of the Act is 'Municipal Officers and servants' and sub-title 'Special Engineer, City Engineer, Hydraulic Engineer. Executive Health Officer, Education Officer, Municipal Secretary, Municipal Chief Auditor and other officers". It also deals with the leave of absence, acting appointments, etc. and so also the power of suspension, reduction, removal or dismissal and imposition of other penalties. Besides other Chapters in the Act, Chapter XXI deals with supplementary provisions and section 521 provides that the Commissioner, Director, Dy. Municipal Commissioner, General Manager and other Councillors and Municipal Officer or servant appointed under the Act shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code. I may now come to the specific provisions referred to by the learned Counsel for the petitioner viz. section 54, section 55, section 83 and section 521 of the Act. Section 54(1) provides about the appointment of the Commissioner and according to the said provision, the Municipal Commissioner shall be appointed by the State Government from time to time and he may hold office for such period not exceeding 3 years as the State Government may fix and his appointment is renewable by the State Government for a further period not exceeding 3 years. The Commissioner who holds a lien on the service of the State Government may be recalled to such service at any time by the State Government. Sub-section (2) of section 54 provides that notwithstanding the provisions contained in sub-section (1), the State Government shall remove the Commissioner from the office if at a meeting of the Corporation a resolution is passed by the Councillors by not less than five-eighth of its whole number in favour of removal of the Commissioner. The State Government may also remove Commissioner any time if it appears to it that he is incapable of performing the duties of his office or has been guilty of any misconduct or neglect which renders his removal expedient. There is proviso to subsection (2) which says that when the Commissioner holds a lien on the service of the State Government he shall not be removed from office during the period of his appointment as Commissioner without the approval of the Corporation. Sub-section (3) of section 54 makes provision for appointment of one or more persons as Additional Commissioners. The said Additional Commissioner works subject to the control of the Commissioner and exercise all or any of the duties and functions of the Commissioner. The terms and conditions of Additional Commissioner under subsection (4) of section 54 may be determined by the State Government by general or special order. Sub-section (5) provides that Additional Commissioner is subject to the same liabilities; restrictions and conditions to which the Commissioner is subject to The appointment of Dy. Municipal Commissioner is made under sub-section (1) of section 55 which provides that the Corporation may at any time and from time to time appoint the person to be a Dy. Municipal Commissioner if it is expedient to do so subject to confirmation by the State Government. The Dy. Municipal Commissioner under section 55(2) is subject to the same liabilities, restrictions and conditions to which the Commissioner is subject. Under sub-section (1) of section 83 every Municipal Officer and servant may be reduced, removed or dismissed for any breach of departmental rules or discipline of such carelessness, unfitness, neglect of duty or other misconduct by the authority by whom such officer or servant is appointed. Clause (b) of sub-section (2) of section 82 makes a provision that amongst others the officer appointed by the Corporation under section 55 i.e. Dy. Municipal Commissioner may be suspended by the Commissioner. Though section 83 falls in Chapter IV, in my view, as regards the disciplinary action i.e. for suspension, reduction in rank or removal or dismissal of service or imposing other penalties, it does not restrict itself to the persons mentioned in Chapter IV alone. Though Chapter IV bears the title Municipal Officers and Servants and it deals with appointment of Special Engineer. City Engineer, Hydraulic Engineer, Executive Health Officer, Education Officer, Municipal Secretary, Municipal Chief Auditor and other Officers yet so far as section 83 is concerned, power of suspension, reduction, dismissal or imposition of other penalties is not confined to these officers alone and even officers appointed under other sections viz. the Director appointed under section 54-A, the Dy. Municipal Commissioner appointed under section 55 and such other Officers appointed under Chapter II also are included. When Clause (b) of sub-section (2) of section 83 uses the expression "any other officer appointed by the Corporation under sections -----, 55, ----", obviously the person appointed under section 55 is an officer appointed by the Corporation. The person appointed under section 55 of the Act is Dy. Municipal Commissioner and, therefore, under Clause (b) of Sub-section (2) of section 83 he is officer appointed by the Corporation. If the Dy. Municipal Commissioner is an officer appointed by the Corporation under Clause (b) of sub-section (2) of section 83, it is difficult to appreciate why is he not a Municipal Officer covered under sub-section (1) of section 83. The legislature never intended that for the purpose of Clause (b) of subsection (2) of section 83 the Dy. Municipal Commissioner should be a Municipal Officer but for the purpose of sub-section (1) of section 83 he should not be Municipal Officer. Therefore, the expression "Municipal Officer and servant" occurring in subsection (1) of section 83 cannot be restricted and confined to the officers and servants appointed under Chapter-IV alone. The sub-title given to Chapter-ll viz. municipal authorities refers to certain class of committees and officers who for the exercise of the powers under the Act or for discharge or for carrying the objectives of the Act are authorities. Various provisions of the Act would show that many of the so-called Municipal Officers viz. Special Engineer, City Engineer, Hydraulic Engineer, Executive Health Officer, Education Officer, Municipal Secretary, etc. discharge functions of the Municipal Commissioner as directed by him. Similarly, Dy. Municipal Commissioner also work under the control of the Commissioner and discharges the duties assigned to him which a Commissioner can discharge under the Act but that would not take away from him being the Municipal Officer or officer appointed by the Corporation. The Dy. Municipal Commissioner is the officer appointed by the Corporation and is holder of the office in the Corporation and, therefore, Municipal Officer under section 83(1) of the Act. I am fortified in my view by the Division Bench judgment of this Court in Damodar Shantaram Nadkarni where it was held that the word 'officer' as used in section 79 of the B.M.C. Act is holder of office. The Division Bench held thus :
"As in the third class of cases the word "office" or "officer" has been used, it is argued that the petitioner cannot have the order of dismissal declared null and void unless he held any office or status. In the Sirsi Municipality's case, which we have just referred to, the Supreme Court has granted a declaration to a mere mid-wife of a hospital conducted by a Municipality that her dismissal is null and void without even going into the question of office or status. However, if such examination is necessary we will like to consider the position of the petitioner in view of the provisions of the Act and the rules, regulations and of the bye-laws in relation thereto. In this behalf the argument on behalf of the petitioner is that once the petitioner is appointed his rights and obligations are not governed by the contract of parties but are governed by the statute. After his appointment, legal relationship comes into existence as between an employer and an employee which is governed by the statute. If the scheme of the Act is examined, it is quite clear that in Chapter II of the Act there is reference to various Municipal authorities. Section 54 provides for appointment of the Commissioner. Section 55 provides for appointment of Deputy Municipal Commissioner. Section 60-A provides for appointment of General Manager of the B.E.S. & T. Undertaking. Section 74 provides for appointment of City Engineer, Executive health officer and hydraulic engineer. Section 76-A provides for appointment of Education Officer. Section 77 provides for appointment of municipal secretary. Section 78-A provides for appointment of municipal chief auditor. Section 78-C provides for appointment of Municipal Chief Accountant. These are some of the provisions which deal with appointment of specified officers. After section 76-C there are general provisions relating to "other officers and servants". The heading indicates that officers are referred to under the provisions upto section 78-C are some of the officers while the remaining officers are dealt with in the subsequent provisions. Section 79 is a residuary provision regarding the appointment of other officers and servants and sub-section (1) thereof provides that the Commissioner shall, from time to time, prepare and bring before the standing committee a schedule setting forth the designations and grades of the other officers and servants other than the officers and servants to be appointed for the purposes of cl. (q) of section 61, who should, in his opinion, be maintained, and the amount and nature of the salaries, fees and allowances which he proposes, should be paid to each. It was urged on behalf of the respondents that upto the provisions of section 78-C the word "officer" was used as the holder of the particular office but in section 79 the word "officer" is not used in the same sense. In our opinion, there is nothing in the context to indicate that this word in the different provisions has been used in a different sense. On the other hand, the provisions of sub-section (2) of section 79 themselves negative such a contention. That sub-section provides that the standing committee or the Education Committee, as the case may be, shall sanction such schedule either as it stands or subject to such modifications they deem expedient, provided that no new office of which the aggregate emoluments exceed rupees five hundred per month shall be created without the sanction of the Corporation. The provisions of this sub-section, therefore, make it amply clear that the word "officer" is used in section 79 as holder of an office. These provisions along with other provisions also go to indicate that the scheme of the Act is that other officers and servants who are referred to in section 79 are ordinarily treated on par except when specific and express provision is made either qua sanction to their appointment or qua dismissal or punishment or so on. Such a conclusion is reinforced if regard be had to the provisions of section 80 which deal with restriction of employment of permanent officers and servants. The main part of that section provides that :
"No permanent officer or servant shall be entertained in any department of the municipal administration unless he has been appointed under sections 60-A, 73-A, 74, 76-A, 76-B, 77, 78-A, 78-B or 78-C or his office and emoluments are included in the schedule at the time in force prepared and sanctioned under the last preceding section :"
The provisions of this section also indicate that the word "officer" is used here as a holder of office and such holders of offices are regarded as similar to those appointed under the specified sections referred to in this section. Section 80-A designates the authority in whom the power of appointment is vested and section 80-B provides for the manner of making appointments to various posts. Section 83 contains uniform provisions applicable to every Municipal Officer and servant in relation to their suspension, punishment, dismissal etc. Similar provisions are also contained as regards the officers specified in the earlier sections. These provisions themselves show that it is the scheme of the statute that all officers and servants are ordinarily regarded as on par so far as their status and office are concerned, but having regard to their salary or other considerations sometimes the same is sanctioned by some other authority in whom is vested the power either for appointment or for imposing penalty. The petitioner is undoubtedly a tutor drawing a salary per month between Rs. 400 and Rs. 500. In view of the provisions of section 80-A he can be appointed by the Municipal Commissioner and under section 83 ordinarily he can be punished by the authority by whom he is appointed, but the various Clauses contained in the proviso to subsection (2) indicate that so far as punishment like dismissal, suspension, fine, reduction etc. are concerned, sometimes previous approval of the specified authorities is required as contained in the various provisos. Thus these statutory provisions themselves are sufficient to show that having regard to provisions of the Act and the scheme thereof, the petitioner is regarded as a holder of an office."
8. Though the learned Counsel for the petitioner sought to urge that section 83(2)(b) was a separate substantive provision and specifically provides that an officer appointed under section 55 i.e. Dy. Municipal Commissioner can be suspended by the Commissioner subject to confirmation of the Corporation of such suspension within six months, this subsection has to be restricted to its term and cannot lead to a municipal authority becoming or being treated as Municipal Officer or servant, for the reasons aforestated I do not find any substance in the contention raised by the learned Counsel for the petitioner. Besides, it is seen that for removal of Commissioner, separate provision is made in section 54 itself. For Additional Municipal Commissioner also specific provision is made regarding his terms and conditions. But so is not the case of Dy. Municipal Commissioner. Enquiry Officer also rightly observed that Dy. Municipal Commissioner is appointed by the Corporation and it would be illogical if appointing authority is held to have no disciplinary jurisdiction over the person appointed by him. I find myself in agreement with the reasons given by the Enquiry Officer in holding that Municipal Commissioner is perfectly competent to hold enquiry through an Enquiry Officer appointed by him against the Dy. Municipal Commissioner. The said reasons reflected in paras 8 and 9 of the inquiry report read thus :
"8. It is true that at the first blush it appears that Clause (b) of the proviso in sub-section (2) of section 83 merely speaks about the power of suspension without reference to the holding of an enquiry in a disciplinary proceeding. However, that is not so pointed out earlier. Sub-section (1) of section 83 gives the substantive power of reduction, removal or dismissal for any breach of departmental rule or discipline or other misconduct, to the authority by which an officer or servant is appointed by the Corporation. Therefore, prima facie the power to reduce, dismiss or remove vests in the Corporation. Sub-section (2) which is in the nature of a proviso to sub-section (1) of section 83 provides for the exceptions to the general rule contained in sub-section (1). Clause (a) of sub-section (2) empowers the Commissioner to dismiss an officer appointed under section 80(A) of the Act with the previous approval of the Standing Committee, even though section 80(A) provides that Commissioner is empowered to make temporary appointments to certain posts for a period of not more that six months with the previous sanction of the Standing Committee. Similarly Clause (b) of sub-section (2) of section 83 provides that although Corporation is the appointing and therefore the dismissing authority, the Commissioner may suspend the Dy. Municipal Commissioner appointed under section 55 and after passing such suspension order, shall forthwith report it to the Corporation and such suspension if not confirmed by the Corporation within a period of six months from the date of such suspension, shall come to an end. The suspension contemplated in Clause (b) is not a suspension by way of punishment but a suspension pending an Enquiry contemplated under sub-section (1) of section 83 against a Municipal Officer or servant for breach of departmental rule or discipline or for any other misconduct. In this context, it would be relevant to look at sub-section (1) of section 56 of the Act which provides that the Dy. Commissioner alongwith other officers mentioned therein shall be subordinate to the Commissioner and subject to his orders shall exercise such of the powers and perform such of the duties of the Commissioner as the Commissioner may depute to him. Under sub-section (3) of section 64 of the Act, the entire executive powers for the purpose of carrying out the provisions of the Act vests in the Commissioner subject to the express conditions mentioned in the Act and Clause (b) of sub-section (3) empowers the Commissioner inter alia to exercise supervision and control over the acts and proceedings of all Municipal Officers and servant's subject to the regulations made under section 81. Regulation (2) of Regulations known as "Bombay Municipal Corporation (Service) Regulations, 1989" framed by the Standing Committee provides that these Regulations will apply to Corporation employees including certain part-time employees and employees on daily wages. The Municipal Servants Conduct and Disciplinary Rules framed by the Commissioner under the powers vested in him by section 64(3) and 83 of the B.M.C. Act apply to.all employees of the Corporation as defined in Rule (2) of the Municipal Service Regulations. As stated earlier, a Dy. Municipal Commissioner is also an officer of the Municipal Corporation although the power to appoint him and consequently, the power to reduce, remove or dismiss such officer vests in the Corporation by virtue of sub-section (1) of section 83. It appears that on the grounds of expediency and effective exercise of supervision and control over subordinates, by Clause (b) of sub-section (2) of section 83, the Municipal Commissioner is vested with the power to suspend a Dy. Municipal Commissioner subject to the approval of the Corporation. The underlying intention seems to be that Municipal Commissioner in whom vests the entire executive power under the Act should be in a position to suspend an officer who in his view is liable for disciplinary action pending the final orders of the Corporation. In order to enable the Corporation to effectively exercise its disciplinary powers contemplated under sub-section (1) of section 83 the Municipal Commissioner merely assists the Corporation in holding or arranging to hold a disciplinary proceeding against an officer during the period of suspension. The Corporation in his case in its meeting held on 11th August, 1994 by its Resolution No. 282 has confirmed the suspension order dated 29th June, 1994 suspending Shri Khairnar by the Municipal Commissioner for the reasons mentioned in his communication to the Corporation. It therefore follows that once the enquiry is completed and the Report is submitted by the Municipal Commissioner to the Corporation, it is for the Corporation to take the ultimate decision on the point as to whether an officer or servant of the Corporation has committed any breach of any departmental rule or discipline or has acted carelessly or in neglect of duty or is guilty of other misconduct. In order to enable the Corporation to do that, the Commissioner as the Chief Executive Authority assists the Corporation in holding an Enquiry in accordance with the principles of natural justice and submit the report of the Enquiry for taking the final decision. Looked at from this point of view, the Manual of Departmental Enquiries relevant provisions regarding the conduct of departmental enquiry become relevant. Clause 1(i)(a) of Chapter II of the Manual of Departmental Enquiries also provides that a municipal servant is a person who is in the employ or service of the Bombay Municipal Corporation whether in a permanent or in a temporary capacity or on daily wages and whether working full time or part time. Clause (c) provides that competent authorities are those mentioned in section 83 of the Act who are competent to impose upon a municipal servant any of the punishment prescribed under Rule 41 of the Bombay Municipal Servants Conduct and Disciplinary Rules.
9. There is one more reason to hold that the Corporation in order to exercise its power under sub-section (1) of section 83 of the Act effectively has itself approved the Municipal Servants Conduct and Disciplinary Rules framed by the Commissioner in exercise of his powers under sub-section (3) of sections 64 and 83 of the Act- In a way therefore, the Corporation by getting an enquiry done in accordance with the provisions of the Manual of Departmental Enquiries prepared by the Municipal Commissioner exercises its disciplinary power under sub-section (1) of section 83 in respect of the Municipal Officers and servants which are appointed by it. I am of the view therefore, the Municipal Commissioner is perfectly competent to hold an enquiry either himself or through an Enquiry Officer appointed by him against, a Dy. Municipal Commissioner appointed under section 55 of the Act and after completing the enquiry submit the proceedings alongwith the Report of the Enquiry Officer to the Corporation for the purpose of passing appropriate orders under sub-section (1) of section 83 of the Act."
9. As regards section 521, it may be straightway stated that it provides that the Commissioner, Director, Dy. Municipal Commissioner, General Manager and other Municipal Officer or servant appointed under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code. Merely because the Commissioner, Director, Dy. Municipal Commissioner, General Manager and Chief Accounts Officer have not been generalised in expression every Municipal Officer or servant used in section 521, it cannot be said that for the purposes of section 83(1) the Dy. Municipal Commissioner is not a Municipal Officer. Moreover, there is no dispute that the petitioner throughout his service with the Corporation and upon his appointment as Dy. Municipal Commissioner continued to be governed by the Bombay Municipal Corporation (Service) Regulations, 1989. The said Regulations are applicable to all full time Corporation employees. The Dy. Municipal Commissioner is definitely a employee of the Corporation and the Corporation is his appointing authority though subject to confirmation by the State and, therefore, he is covered under section 83(1) for the disciplinary action. The first contention raised by the learned Counsel for the petitioner, therefore, has no merit.
10. The learned Counsel for the petitioner next contended that even if the Dy. Municipal Commissioner is held to be covered by section 83(1) i.e. he can be removed by the Corporation then the provisions of section 54 for removal of Commissioner shall be mutatis mutandis applicable for removal of Dy. Municipal Commissioner. Thus according to learned Counsel for petitioner such Dy. Municipal Commissioner can be removed only if by not less than five-eighth of the whole number of Councillors votes in favour of proposition in this behalf. The argument is that section 55 provides that Dy. Municipal Commissioner shall be subject to same liabilities, restrictions and conditions to which the Commissioner is subject and, therefore, since under section 54(2) the Municipal Commissioner can only be removed if five-eighth Councillors vote for his removal, the Dy. Municipal Commissioner can also be removed only by that majority and not otherwise. It is also contended by the learned Counsel that under section 74(2)(d) Special Engineer, City Engineer, Municipal Secretary, Executive Health Officer, Hydraulic Engineer though they are municipal authorities under Chapter II but Municipal Officers and servants under Chapter IV, they can only be removed on the basis of not less than 2/3 of the members present at a meeting of the Corporation vote in favour of such proposition and therefore, in the circumstances the only reasonable construction of sections 83(1), 55(2) and 54(2) would be that the Dy. Municipal Commissioner can be removed only if five-eighth of total Councillors of Corporation so resolve. The learned Counsel submits that on 10-10-96 when the Resolution was passed admittedly it was not passed by 5/8 of the whole number of Councillors.
11. The contention raised by the learned Counsel for the petitioner on its face is not acceptable being apparently misconceived. The petitioner admittedly was appointed as Dy. Municipal Commissioner under section 55. Sub-section (2) of section 55 provides that every person so appointed shall be subject to the same liabilities, restrictions and conditions to which the Commissioner is subject. Sub-section (2) of section 55 cannot be construed to mean that for all practical purposes the petitioner is Commissioner and is governed by the same provisions on the basis of which the Commissioner can be removed. The Commissioner is appointed by State Government under-section 54(1) and State Government is his appointing authority. The Dy. Municipal Commissioner is admittedly an officer subordinate to the Commissioner and is subject to the control of the Commissioner. The Dy. Municipal Commissioner exercises the powers and performs the duties and functions those are assigned to him by the Commissioner. The provisions contained in section 55(2) are intended to mean that while exercising such powers in performing the duties and functions of the Commissioner which he may be directed to perform and do, he shall be subject to such liabilities, restrictions and conditions which the Commissioner is subject to. Sub-section (2) of section 55 cannot be stretched to mean that it provides the same conditions of service to Dy. Municipal Commissioner which are applicable to Commissioner. Mode of appointment of the Commissioner and Dy. Municipal Commissioner is entirely different. The tenure of the Commissioner and Dy. Municipal Commissioner is also different. The Dy. Municipal Commissioner and the Municipal Commissioner do not enjoy the same status and are not governed by the same conditions of service. The provisions applicable to the Commissioner for his removal under section 54(2) cannot be attracted and made applicable for the removal of the Dy. Municipal Commissioner. Even otherwise it would be pertinent to note that if the Commissioner is required to be removed on the ground of proved misconduct or neglect or incapable of performance of his duties, the State Government may remove him at any time, and, the provision requiring recommendation of the Corporation by not less 5/8th of whole number of Councillors is not applicable to such removal. Sub-section (2) of section 54 is in two parts; (i) where the Commissioner is to be removed by the State Government on the ground that he has been incapable of performing his duties of his office or has been guilty of any misconduct or neglect he may be removed at any time and (ii) where the Corporation in its meeting by resolution of not less than 5/8th of the whole number of Councillors vote in favour of removal of Commissioner, the State Govt. has to remove the Commissioner. In this view of the matter also, there is no merit in the contention of the learned Counsel for the petitioner that the petitioner could have only been removed if the resolution was passed by 5/8th majority of the whole number of municipal Councillors and not otherwise. Section 74(2)(d) also has no application in the present case because it deals with the removal of certain officers viz. Special Engineer, City Engineer, Hydraulic Engineer, Executive Health Officer, Education Officer, etc. The Dy. Municipal Commissioner is not included therein. In this view of the matter the second contention raised by the learned Counsel for the petitioner also is rejected.
12. The learned Counsel for the petitioner then strenuously urged that the report and conclusions of the Enquiry Officer are perverse. According to learned Counsel for the petitioner the findings are based on no evidence and disclose errors apparent on the face of record and, therefore, enquiry report as well as the resolution of removal deserve to be quashed and set-aside. On the other hand Mr. Singhvi, the learned Sr. Counsel appearing for the Corporation urged that the Enquiry Officer has considered the gravity of charges, the evidence on record and rightly held that charge No. 1 was partly proved and charge No. 2, charge No. 3 and charge No. 4 were also duly proved. Mr. Singhvi would urge that first charge was per se grave and serious and, therefore, the order of removal was not unjustified.
13. At the outset I may observe that proceedings under Article 226 are extraordinary in nature and not in the form of an appeal. The scope of judicial review in such cases is well defined. The power of the High Court under Article 226 to interfere with the findings recorded in the departmental enquiry can be exercised if the enquiry has been conducted in violation of provisions of law or in utter breach of principles of natural justice. If enquiry proceedings are not vitiated on these two grounds, the High Court cannot reappraise the evidence and substitute its own conclusions. If there is some evidence to support the conclusions of the Enquiry Officer the High Court cannot interfere. This Court also cannot interfere in the enquiry proceedings on the ground that evidence was inadequate. On the other hand if there is no legal evidence to support the findings or where the evidence is such that no reasonable person can arrive at the conclusion which is impugned or the findings on its face is perverse or arbitrary or capricious or based on surmises and conjectures or suspicion, there is no impediment for High Court in interferring in such finding recorded by the Enquiry Officer. In this connection I may refer to few decisions of the Apex Court, in the State of Orissa and another, appellants v. Murlidhar Jena, respondent, A.I.R. 1963 S.C. 404 the Apex Court observed that in the proceedings under Arts. 226 and 227 the High Court cannot sit in appeal against the findings recorded by the competent tribunal in departmental enquiry. However, if it is shown that the impugned finding recorded by the Administrative Tribunal are not supported by any evidence the High Court would be justified in setting aside the findings. The ratio of the Apex Court is succintly culted out in headnote A of the report and it reads thus :
"(a) Constitution of India, Arts. 226, 227 - Findings in departmental enquiry - High Court has no power to reappreciate evidence - I.L.R. (1959) Cut. 425 Reversed.
In proceedings under Arts. 226 and 227 the High Court cannot sit in appeal over the findings, recorded by a competent tribunal in a departmental enquiry so that if the High Court has purported to reappreciate the evidence for itself that would be outside its jurisdiction. However, if it is shown that the impugned findings recorded by the Administrative Tribunal are not supported by any evidence the High Court would be justified in setting aside the said findings. (Held that the High Court was not right in holding that there was no evidence in support of conclusions recorded by the Tribunal). I.L.R. (1959) Cut. 425, Reversed. (Paras 3, 14, 15)".
14. In State of Andhra Pradesh and others, appellants v. Shri Rama Rao, respondent, the Apex Court held thus :
"The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of Appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on simitar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."
15. The scope of judicial review being well defined, in the light of permissible limits, I have to see whether the findings recorded by the Enquiry Officer are perverse or based on no evidence or that no reasonable person can arrive at the conclusion which is impugned or finding on its face is based on surmises and conjectures and incompatible with the Conduct Rules.
16. The first charge against the petitioner is that while working as Dy. Municipal Commissioner in the Corporation he was duty bound to observe the provisions of the Conduct Rules and Service Regulations, 1989 and the Act of 1888 but nevertheless since January, 94 until June, 94 he made several objectionable ulterances which were published in Bombay based morning and evening newspapers and by the said utterances the petitioner acted in most unbecoming manner to the stature of coveted post of Dy. Municipal Commissioner and crossed all the limits of decency as a public servant and made many wilful misstatements not only against the municipal servants and officers including elected representatives of the Corporation but also against the State Government including Ministers and thereby embarassing relations of the Municipal Corporation with the State Government and thus blatantly violated the provisions of Rule 4 and 31-A(a) of the Conduct Rules. It would be pertinent to note here that petitioner is specifically charged for violation of Rule 4 and 31-A(a) in making those utterances and therefore those utterances will have to be seen principally with reference to Rule 4 and 31-A(a) to find out whether petitioner has been guilty of misconduct. The Enquiry Officer found that this charge was in three parts viz. first part that between January-94 to June-94 the petitioner made many objectionable utterances which have been published in the Bombay base morning and evening newspapers and in making such utterances he acted in most unbecoming manner to the stature of the post of Dy. Municipal Commissioner. Second part of the first charge according to Enquiry Officer was that the petitioner made many wilful mis-statements against the municipal servants and officers and not only that but also against State Government including Ministers, and, third part was that by making such utterances the petitioner embarassed the relations of the B.M.C. with the State Government. To prove first charge the Corporation examined two witnesses viz. Shri Narendra Pathak and Shri Sandip Pradhan. Shri, Narendra Pathak is reporter from 'Maharashtra Times' and Shri. Sandip Pradhan is reporter from 'Loksatta'. Though the Corporation produced before the Enquiry Officer a file containing pages 1 to 166 of newspaper clippings from January, 1994 to June, 1994 yet in proof thereof only two witnesses were produced viz. Shri Narendra Pathak and Shri Sandip Pradhan and, therefore, the Corporation only proved the reports which appeared in Maharashtra Times and Loksatta on 1-02-1994. The evidence of these two witnesses is that the news reports appearing in Maharashtra Times and Loksatta reflected the true speech made by the petitioner in felicitation ceremony of Shri Avchat. The part of speech which formed the subject matter of the charge was : "in order to get employment in the Corporation as a Mazdoor Rs. 10,000/-, as a clerk Rs. 15,000/- and Ward Officer and Dy. Commissioner Rs. 50,00,000/- are required to be spent by a person and such amounts after obtaining the employment are recovered from the public at large within a short time". The petitioner when asked to explain the aforesaid report submitted to the Commissioner that what he had stated in fact was that in future for the purpose of obtaining employment, people may have to spend money. The Enquiry Officer, on consideration of preponderance of probability formed the opinion that the news reports in 'Maharashtra Times' and 'Loksatta' appear to be probable. According to Enquiry Officer on its face such statement casts aspersions not only on the authorities who are competent to appoint the lower employees but also on those who are competent to appoint officer of the rank of the Dy. Municipal Commissioner which involves the State Government as well as Public Service Commission. It would be seen that the petitioner is charged for violation of Rule 4 and 31(1)(a) of the Rules and curiously the only evidence that has been led by the Corporation is of the two reporters who have stated that the reports which appeared in the newspapers viz. 'Maharashtra Times' and 'Loksatta' respectively reflect truly the speech made by the petitioner. There is no other evidence produced by the Corporation and, therefore, question is whether the statement tantamounts to the misconduct as contemplated under Rule 4 and/or 31(1)(a) of the Act or the Conduct Rules framed by the Municipal Commissioner under powers vested in him by section 64(3) and section 83 of the Act of 1888. Section 83 provides that every Municipal Officer and servant may be reduced, removed or dismissed for any breach of departmental rules or discipline or for carelessness, unfitness, neglect of duty or other misconduct by the authority by whom such officer or servant is appointed. Thus, under section 83(1) breach of departmental rules, breach of discipline, carelessness, unfitness and neglect of duty or other misconduct may entail the reduction, removal or dismissal of the Municipal Officer. The Municipal Servants Conduct and Discipline Rules (for short, 'Conduct Rules') have been framed under section 83 and it provides that it shall apply to all employees of the Corporation as defined in Rule 2 of the Municipal Service Regulations. Rule 2 has the heading 'General' and followed upto Rule 40 dealing with specific items. Rule 41 provides for penalties. According to Rule 2 an officer or servant of the municipality shall always be courteous and cordial to all persons with whom he comes in contact in discharge of his duties. Under Rule 3 strict soberity is required of all officers and servants and attending duty under the influence of liquor and narcotics is deemed as misconduct. Rule 4 provides that dishonesty, wilful misstatements or concealment of facts and tampering with or destruction of records will amount to misconduct. Rule 5, 5-B, 6, 7. 8, 9, 10, 11, 12, 13, 13-B, 13-C, 14, 15. 18, 19, 20, 21, 22, 23, 28, 29, 30, 31-A, 33, 34, 35, 36 and 39 begins with the expression "no officer or servant shall....." Any infraction of these Rules is obviously misconduct. On the other hand Rule 5-A, 13-A, 18-A, 31 make the provision that Municipal Officer or servant shall act in a particular manner. Any act otherwise than in the manner permissible under the Rules with also be misconduct. I am not going into details of these rules, but suffice it to observe that these rules viz. from Rule 2 to 40 are in the nature of Code of Conduct which a municipal servant or officer is required to follow at all times in discharge of his duties and any act or conduct inconsistent with these Rules or any breach of the Rules shall entail penally prescribed under Rule 41. Rule 41 of the said rules provides for penalties and it reads any breach of these rules or any carelessness, unfitness, neglect of duty or other misconduct will render a Municipal Officer or servant liable to the penalties mentioned therein. Obviously, therefore, if a Municipal Officer or servant acts or omits contrary to or in breach of the prescribed rules from 2 to 40 it would constitute misconduct for disciplinary proceedings. The expression 'misconduct' has not been defined anywhere in the Act. The expression any breach of the rules in Rule 41 would show that in violation of Rules 2 to 40 is misconduct and would entail the penalties under section (Rule) 41. Although the Conduct Rules are elaborately framed but still acts or omissions stated in Conduct Rules cannot be said to be exhaustive and there may be certain acts or omissions which is not worthy of an officer or servant of the Corporation in the context of service and Conduct Rules and that may also fall within the mischief of misconduct. If a servant or officer conducts himself in a way inconsistent with his powers, functions and duties, he may be guilty of misconduct. The act or conduct which has nothing to do which may blame a municipal servant or officer in the context of his service and rules and which is in accord and consonance with his constitutional rights, such act or conduct may not fall in the category of mischief of misconduct.
17. In Union of India and others, appellants v. J. Ahmed, respondent, the Apex Court explained the term 'misconduct' and held thus :
"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Fosterl). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle Indicator Newspapers). This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under :
Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible - accident to the aircraft and possible Ioss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct- It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving, aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinrnan signals in a train on the same track where there is a stationery train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instru-ment showing shag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd.). Out in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."
18. In M/s Glaxo Lab. (I). Ltd., appellants v. Presiding Officer, Labour Court, Meerut and others, respondents, the Apex Court was construing the expression misconduct in the light of the Industrial Employment (Standing Orders) Act, 1946 and the Industrial Disputes Act, 1947, and, held,"----penalty is imposed for misconduct. The workman must, therefore, now in advance which act of omission would constitute the misconduct as to be visited with penalty. The statutory obligation is to prescribe with precision in the standing order all those acts of omission or commission which would constitute misconduct. In the face of the statutory provision it would be difficult to entertain the submission that some act of omission which may be misconduct though not provided for in the standing order would be punishable under Standing Order 23."
19. The observations made by the Apex Court in Rohtak and Hissar District Electricity Supply Co. Ltd. v. State of Uttar Pradesh, A.I.R. 1966 S.C. 1417, are worth mentioning here wherein it was held that everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. Supreme Court went on to observe vagaries of the management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty cannot be appreciated.
20. A three Judge Bench of the Apex Court in A.L. Kalra, appellant v. The Project and Equipment Corporation of India Ltd., respondent, reiterated the legal position which was laid-down in M/s Glaxo Lab, and in para-22 of the report held thus :
"22. Rule 4 bears the heading 'General'. Rule 5 bears the heading 'misconduct'. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated "misconduct in Rule 5. Any attempt to telescope R. 4 into R. 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a very grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut, , where this Court held that 'everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty.' Rule 4 styled as 'General' specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-Clauses of Rule 5 which specifies misconduct. It would therefore appear that even if the facts alleged in the two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that Rule 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct."
The Apex Court highlighted that Rule 4 being vague and of general nature and what is unbecoming of public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. The Apex Court emphasised that misconduct when proved entails penal consequences and therefore, it is obligatory on the part of employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct.
21. It may be observed here that so far as present case is concerned, the petitioner in the charge No. 1 has been specifically charged for violation of Rules 4 and 31-A(a) of the Conduct Rules.
"Rule 4: Dishonesty, wilful misstatements or concealment of facts, and tampering with or destruction of records will amount to misconduct.
"Rule 31-A: A Municipal Servant shall not publish in his own name :-
(a) Any statement of fact or opinion which may embarrass the relations between the Corporation, the Government and/or the public or any section thereof."
It would be interesting to note that Rule 4 provides 'wilful misstatement' or 'concealment of facts' inter alia as 'misconduct' while Rule 31-A(a) provides that a municipal servant shall not in his own name publish any statement of fact or opinion which may embarrass the relations between the State Government and/or public. It would be thus seen that violation of Rule 4 and Rule 31-A(a) cannot be joined on the self-same facts because what is wilful misstatement cannot be a statement of fact or what is concealment of facts cannot be a statement of fact. If a statement of fact published by municipal servant has embarassed the relationship between the Corporation and the Government and/or public, it is misconduct under Rule 31-A(a) but then that statement cannot be wilful misstatement. What can be wilful misstatement under Rule 4 can never be statement of fact under Rule 31-A(a). Conversely what is statement of fact under Rule 31-A(a) cannot be construed as wilful misstatement under Rule 4. The charge No. 1 levelled against the petitioner is that he between Jan. 94 to June 94 made many objectionable utterances which were published in the newspapers, the said utterances had many wilful misstatements against municipal servants and officers including elected representatives of the Corporation but also against the State Government including ministers thereby embarassing the relations of the Corporation with the State Government and thus blatantly violated the provisions of Rule 4 and 31-A(a) of the Conduct Rules. The alleged misconduct of making such utterances 'objectionable' and 'unbecoming' has to be examined in the light of Rule 4 and 31-A(a) and not under general perceptions of the expressions 'objectionable' and 'unbecoming'. Despite petitioner's explanation to the Commissioner that his speech was not truly reported, but since the Enquiry Officer has found it probable that reports appearing in 'Maharashtra Times' and 'Loksatta' reflect correctly the speech made by the petitioner, I proceed with the assumption that such statement was in fact made by the petitioner and making of such statement is proved by the two reporters produced by the Corporation. But whether such statement was 'wilful misstatement' no evidence worth the name has been led by the Corporation before Enquiry Officer. Under Rule 4 misconduct is 'wilful misstatement' and/or 'concealment of facts'. The Corporation proceeded on the assumption that utterances were objectionable and wilful misstatements which were most unbecoming manner to the stature of coveted post of Dy. Municipal Commissioner. A misstatement is a statement made incorrectly and wilful misstatement is a statement made incorrectly knowing it to be so. The expression 'wilful misstatement' denotes intentional state of mind and is made knowing it to be a misstatement. The objectionable utterances which I have already produce above read, 'that in order to get employment in the Corporation as a Mazdoor Rs. 10,000/-, as a clerk Rs. 15,000/- and as Ward Officer and Dy. Commissioner Rs. 50,00,000/- are required to be spent by a person and by obtaining employment such amount is to be recovered from the public at large within short time'. Can a presumption be raised that the said statement is 'wilful misstatement'? I am afraid the law does not permit such presumption to be drawn. May be the statement was not correct. May be the statement was inaccurate, but, the burden lay on the Corporation to prove that the said statement was knowingly made as misstatement. It was required to be proved as a fact by the Corporation before the Enquiry Officer that the said statement was misstatement and wilfully made as misstatement. The reporters who have been produced viz. Shri Narendra Pathak and Shri Sandip Pradhan could not and have not stated that the said statement was misstatement or wilful misstatement made by the petitioner. They have only proved the fact that such statement was made by the petitioner and the newspaper report reflect the true contents of the speech made by him. It is difficult to appreciate the contention of Mr. Singhvi that the said utterances per se were unbecoming of an officer of the Corporation. It is of course, and would be unbecoming of an officer of the Corporation, if it is wilful misstatement but if it is not wilful misstatement, the only other rule in Conduct Rules is Rule 31-A(a) which makes a statement of fact to be misconduct only if such statement embarasses the Corporation and Government and the public and the Corporation. If a public servant under the employment of an employer covered under Art. 12 of the Constitution of India exercises his fundamental right which is not inconsistent with the forbidden province of Conduct Rules framed, such act or conduct in exercise of fundamental rights cannot per se be termed as misconduct. The Corporation admittedly is covered under Article 12 of the Constitution of India and the employee of the Corporation does not cease to enjoy his fundamental rights on acceptance of his employment in the Corporation. An employee under the employer covered under Article 12 of the Constitution of India though does not enjoy the rights under Part XIV of the Constitution of India but, such employee continues to enjoy his rights under Part III of the Constitution which are fundamental in its character. It is true that the fundamental right of freedom of speech and expression conferred on every citizen of this country under Article 19(1) can be regulated by putting reasonable restriction under Clause 2 of Article 19(1). The employer, covered under Article 12 of Constitution of India, therefore, may impose reasonable restriction on the exercise of the fundamental right of speech and expression conferred by Clause 1(a) of Article 19 upon the employee as citizen of the country by making suitable and appropriate Conduct Rules in conformity with Clause 2 of Article 19. Such restriction obviously has to be in writing and must be able to stand the test of reasonableness as provided in Clause 2 of Article 19. Infraction of such restriction or crossing the area of restriction by the public servant then may be construed as misconduct. As the Apex Court has ruled in A.L. Kalra (supra) that when misconduct entails penal consequences, it is obligatory on the part of the employer to specify with precision and accuracy the act and conduct which may constitute misconduct lest ex-post facto interpretation of incident may be camouflaged as misconduct. The conscioustious employee from the bottom of his heart, if voices his concern against corruption, if any, prevalent in the organisation where he is employed and such expression of concern is not specifically forbidden under the Conduct Rules, I am afraid such expression or statement or utterances can be construed as a misconduct per se visiting the penal consequence of dismissal or removal. The fact of the matter here is that the Conduct Rules framed by the Corporation even if not exhaustive elaborately deals with the Code of Conduct expected of its employees, officers and servants and in the said Conduct Rules there is no such prohibition that Municipal Officer or servant shall not make statement about state of affairs prevalent in the Corporation. What is forbidden under Rule 31-A(a) of the Rules is that municipal servant shall not publish in his own name any statement of fact or opinion which may embarass the relations between the Corporation and Government and or in public or any section thereof. Thus prohibition contemplated is publication of statement of fact or opinion which may embarass the relations between the Corporation, Government and/or public or any section thereof. Rule 31-A(a) only prohibits the statement of fact or opinion by municipal servant which embarasses the relations between the Corporation and Government or public or any section thereof. Each and every statement of fact or opinion expressed by the employee or the publication of such statement of fact or opinion is not prohibited under the Conduct Rules unless it embarasses the relations between the Corporation, Government and/or public or any section thereof. The Enquiry Officer himself has found that the Corporation has not produced any material to show that utterances made by the petitioner resulted in embarassing the relations between the Corporation and the Government and that is why Enquiry Officer did not find charge No. 1 one under Rule 31-A(a) proved against the petitioner. 'An unbecoming of an officer' is not expressly made a misconduct under .Conduct Rules. As the Supreme Court has highlighted in A.L. Kalra what is unbecoming of public servant may vary with individuals and expose employees to vegaries of subjective evaluation. To quote Apex Court, "what in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation." At best in my view the person holding the position of officer in the employment of Corporation, can be held 'unbecoming of officer.' (i) if the conduct of such employee is not in conformity with the ordinary norms of decency or morality, (ii) if employee's conduct is not in consonance with the laws of the land which he is bound to respect, (iii) if conduct of the employee is inconsistent with the Conduct Rules or other regulations framed by the employer and (iv) if the conduct of the employee is against the declared policy of the Government or the employer. The public statement of corruption made by the employee; if not wilful misstatement, cannot be presumed to be not in conformity with the ordinary norms of service. Such statement per se cannot be construed as misconduct entailing serious civil consequences resulting in loss of service. If the statement is untrue or incorrect or is false then obviously it falls in the category of misstatement, and when wilfully made, the employee would be guilty of misconduct. The crucial test, therefore, is whether the utterances made by the petitioner were 'wilful misstatements' or not. The Corporation did not lead any evidence worth the name to prove that the said utterances which appeared in the newspapers and proved by two reporters were misstatements much less 'wilful misstatements'. The Corporation could have produced the person conversant with the affairs of the Corporation to prove that the utterances made by the petitioner, viz., "in order to get employment in the Corporation as a mazdoor Rs. 10,000/-, as a clerk Rs. 15,000/- and Ward Officer and Dy. Commissioner Rs. 50 lacs are required to be spent by a person and such amount after obtaining the employment within a short time is recovered from public at large in short time" were palpably incorrect. The evidence could have been led to show that Corporation has not received any complaint with regard thereto. The petitioner's record is not shown to be bad. Rather the averment made in the writ petition that petitioner has always been honest and upright officer is not denied in the reply submitted by the Corporation. Therefore when such serious statement about corruption in the Corporation was made by the officer of status of Dy. Municipal Commissioner, an independent and unbiased investigation ought to have been made to find whether there was an iota of truth in the allegations. If on investigation the allegation made by the petitioner in his public statement was found uncorroborated, the petitioner could have proceeded with disciplinary action and during disciplinary inquiry such investigation report could have been produced as material in support of the charge. In the absence of any evidence worth the name how the Enquiry Officer could have held that the statement on its face is wilful misstatement against the municipal servants and officers and also against State Government including ministers. If slightest of legal evidence would have been led by the Corporation to establish that the said utterances were incorrect or untrue and made knowingly it to be untrue, obviously charge of misconduct, unless disproved by the delinquent would stand proved, but in the absence of any legal evidence, on the basis of surmises and conjectures it could not have been held that utterances were wilful misstatements. It appears that Enquiry Officer proceeded with the assumption that the utterances made by the petitioner referred-to hereinabove were wilful misstatements and, therefore, objectionable and unbecoming of an officer holding the post of Dy. Municipal Commissioner. The charge has not been substantiated by any evidence whatsoever so far as Rule 4 of the Conduct Rules is concerned, and, in my view on the basis of assumption, presumption and surmises and conjectures no conclusion could have been arrived at by the Enquiry Officer that statement made by the petitioner was 'wilful misstatement'. It would be pertinent to note that petitioner has been specifically charged of these utterances in charge No. 1 under Rule 4 and 31-A(a) of the Conduct Rules and therefore generality of misconduct like 'objectional utterances' and 'unbecoming of officer' has to be read in the light of Rule 4 and 31-A(a). The Enquiry Officer held that charge under Rule 31-A(a) was not proved. Charge under Rule 4 relating to aforesaid statement as wilful misstatement made by the petitioner as discussed above has also not been proved by the Corporation by leading any legal evidence whatsoever.
22. The other such statements which form part of first charge is the report published in 'Loksatta'. The said statement is that the Chief Minister should become 'Valmiki' which is the need of the hour. The explanation of the petitioner was that he made the said statement in the context that corruption exceeded in Mantralaya and, therefore, a person like Chief Minister Shri Sharad Pawar should become 'Valmiki rishi'. The Enquiry Officer has held that any person who is conversant with Indian mythology understand that the said Valmiki in his earlier life was practising robbery and making a living on the spoils of his crimes. The conclusion of the Enquiry Officer at best is conjectural and unsupported by any evidence. The inference drawn by the Enquiry Officer that it related to the earlier life of 'Valmiki' while he was practising robbery and was making the living on the spoils of the crimes apparently is based on no evidence. An employee who is charged with misconduct, if proved, is visited with the serious consequences which may result in loss of service and, therefore, it is incumbent upon the employer to substantiate the charge by leading legal evidence. Surmises and conjectures can never form part of the legal evidence and any finding based thereon cannot be sustained in law. Regarding this statement also there is no evidence led by the Corporation that the statement of the petitioner that Chief Minister should become 'Valmiki' which is need of the hour related to and was with reference to the Valmiki's earlier life when he was practising robbery. Moreover, the petitioner has been charged that such statement was violative of Rule 4 and 31-A(a) of Conduct Rules. It is very difficult to comprehend how the said statement can attract Rule 4 of the Conduct Rules which provides that dishonesty, wilful statement or concealment of fact and tampering with or destruction of records will amount to misconduct. I am afraid the said statement cannot be covered under Rule 4 and in any case there is no evidence to prove that it is wilful misstatement. There is also no evidence that the said statement embarrassed the Corporation and the Government and therefore misconduct under Rule 31-A(a) is not at all made out nor has been held to be so by Enquiry Officer.
23. I have, therefore, no hesitation in holding that the findings recorded by the Enquiry Officer as regards first charge with reference to its first and second part viz. making objectionable utterances in a most unbecoming manner to the stature of the post of Dy. Municipal Commissioner and making wilful misstatement against the municipal servants and officers and also against the State Government including ministers are not at all proved and based on no legal evidence and, therefore, cannot be sustained.
24. The second charge which has been held proved by the Enquiry Officer against the petitioner consisted of certain actions on the part of petitioner in the course of demolition undertaken by him and the allegations are that these demolitions were undertaken by the petitioner against the provisions of law, rules, regulations and instructions of superiors in a manner which was unbecoming and careless and in utter negligence of duty. The petitioner has been charged that these actions resulted in great disrepute to the Corporation and also in litigations, passing of strictures by Court and incurring heavy costs as well as Counsel's fees by Corporation. The petitioner has been charged for these actions under Rule 41 of Conduct Rules. At the outset I may observe that Rule 41 only deals with the penalties that may be imposed on municipal servant or officer for any breach of the Conduct Rules or carelessness, unfitness, neglect of duty or other misconduct. The second charge has been held proved with reference to four instances/actions of the petitioner. The first instance relates to the matter pertaining to one Mr. Rustom Irani. In that case it appears that Mr. Irani who was occupying unauthorised structure was served with a notice initially under section 354-A of the Act to stop the work and thereafter a notice under section 351 of the Act.
In the disputed property Mr. Irani claimed his exclusive possession and right to remain in possession. After service of notice under section 351 of the Act by Dy. Municipal Commissioner, Zone-l and upon consideration of his reply, an order of demolition was passed by Dy. Municipal Commissioner (Zone-l). It appears that thereafter Mr. Irani requested the Dy. Municipal Commissioner (Zone-l) for personal hearing on which the Dy. Municipal Commissioner called remarks of the Ward Officer and then Mr. Irani was informed that he would be intimated about the next date in the matter. The petitioner who was posted as Dy. Municipal Commissioner (G) sought the report about the said disputed structure from the Assistant Engineer. The Assistant Engineer in his note stated that the unauthorised construction was completed about 8 months back and action has been initiated under section 351 of the Act and therefore it would be prudent to wait for completion of the action under section 351. Despite the said note of Assistant Engineer, the petitioner ordered for demolition of the unauthorised structure and in compliance thereof on 26th October, 1993 the said construction was demolished. Mr. Irani filed writ petition before this Court and on 29-4-94 the learned Single Judge of this Court passed an interim order authorising Irani to reconstruct and permitting him to reside therein at his cost. While passing the interim order the learned Single Judge also observed about the behaviour of the Municipal Officers in respect of demolition of structure. Aggrieved by the said order, the Municipal Corporation, and others filed an appeal, and, the said appeal was allowed and the Division Bench set aside the interim order passed by the learned Single Judge and dismissed the writ petition as infructuous since by that time Mr. Irani had already raised construction pursuant to the interim order. The Division Bench, however, observed that it was open to the Municipal Corporation to serve notice upon Irani and pass appropriate orders after hearing. Two important aspects emerge from this instance, one, that the Corporation itself filed the appeal against the order of the learned Single Judge. Obviously, therefore, the Corporation was not aggrieved by conduct or action on the part of the petitioner in ordering demolition of the said structure. Had the Corporation found that the petitioner has misconducted himself and exceeded his powers in demolishing the structure of Irani, obviously Corporation would not have filed appeal before the Division Bench challenging the interim order, and, two the Division Bench allowed the appeal filed by the Corporation and set-aside the order of learned Single Judge dated 29-4-94. Although the said appeal was allowed because subject matter of writ petition became infructuous yet the fact remains that the observations made in the order dated 29-4-94 wherein the learned Single Judge made certain observations about shocking behaviour of the Municipal Officers in respect of demolition of structure did not hold the field on setting aside the order of learned Single Judge. In these circumstances the first instance cannot be construed as misconduct and no reasonable person could hold the said act on the part of the petitioner as misconduct and, therefore, the finding of the Enquiry Officer regarding first instance being perverse cannot be sustained. The second instance consisted of demolition of structure belonging to one Mr. P.T. Mohammed on plot bearing Survey No. U/13/2 Road No. 13, Near Juhu Gymkhana Club. I may straightway observe that the subject matter of the dispute relating to structure of P.T. Mohammed is subjudice before this Court in Appeal from Order No. 595 of 1988 and the said appeal is still pending. The Enquiry Officer held that in Civil Application No. 2405 of 1988 in the said appeal, the Court observed that petitioner acted high-handedly in demolishing P.T. Mohammed's structure and showed scant respect to the order of the City Civil Court passed on 15th July, 1986.
Since the appeal is still pending before this Court, any observation made in the order by way of an interim application could not have been construed as misconduct against the petitioner. Moreover, it would be pertinent to note that against the interim order passed by this Court, the Corporation filed special leave petition before the Supreme Court. Obviously if the petitioner had indulged in the misconduct as is now alleged to be, there was no question of filing special leave petition by the Corporation before the Supreme Court. On the one hand the Corporation proceeded to defend the conduct of the petitioner by challenging the order passed by this Court on 26-8-88 in civil application before the Apex Court, on the other hand after about six years the Corporation has sought to dug this instance from grave to frame the petitioner having indulged in misconduct. I am afraid in these circumstances the second instance could not have been held proved as misconduct against the petitioner by any reasonable person and, therefore, finding of the Enquiry Officer regarding the second instance also cannot be sustained. The third instance relied upon by the Corporation is in respect of one Amarnathsing Chhedasingh whose hotel by name M/s Hotel Asiad situated at Lal Bahadur Shastri Marg, Ghatkopar, Opp. Sarvodaya Hospital, Bombay, came to be demolished on 8th January, 1986. In this connection the Corporation relied upon the judgment of this Court passed on 20th January, 1986 wherein it was observed that it was incredible that the Municipal Corporation should have permitted the said hotel to be built upon a public footpath and it was yet more incredible that when the said persons availed of this permission and built upon the public footpath; the Municipal Corporation should have without prior notice to the petitioner demolished the structure. The instance apparently is more than 8 years old. The said Amarnathsingh Chhedasingh was given a 1000 Sq. ft. of area by Municipal Commissioner on Lal Bahadur Shastri Marg which was part of footpath. How could the Municipal Corporation or the Commissioner allow hotel to be built on footpath. The Commissioner had no power to allot the part of public street to the said Amarnathsingh Chhedasingh for the purposes of construction of hotel. It was in that context that this Court in its order dated 20th January, 1986 observed that it was incredible that Municipal Corporation should have permitted the hotel to be built upon public footpath. It is true that after the hotel was constructed by said Amarnathsingh Chhedasingh on the footpath, the petitioner ordered its demolition and accordingly the said hotel was demolished on 8-1-86. The defence of the petitioner to the said action was that the Municipal Commissioner had no power to allot a permanent structure to be built on the footpath and since the construction was wholly illegal, it could have been demolished without any notice under section 314 of the Act. It is pertinent to note that in the writ petition filed by the said Amarnathsingh Chhedasingh challenging the action of demolition, the Corporation defended the action of the petitioner. If the action of demolition done by the petitioner in the year 1986 was not misconduct and was defended by the Corporation, I am afraid after 8 years the petitioner could not have been charged of that act as misconduct, and on such charge no reasonable person could have held petitioner guilty of misconduct. The finding of the Enquiry Officer, therefore, regarding third instance of second charge also cannot be sustained. Fourth instance of second charge relates to the premises known as "Rusi Cottage'. Without going into details, it may be observed that the Wild Life Wanderers Nature Foundation (WWNF) was allowed in the month of June 1986 to use 'Rusi Cottage' for acqua marine zoo purposes. One Shri Nandkumar Moghe started using the said Rusi Cottage and it was his case that when the cottage was handed over to WWNF it was clearly understood that the said cottage would be used by Shri Moghe. Shri Moghe then developed the property. The construction done by Shri Moghe was demolished on 16th March, 89 and writ petition was filed by WWNF before this Court. The learned Single Judge of this Court by way of interim relief ordered restoration of possession and handing over of all equipments and articles to the Organisation. The order passed by the learned Single Judge by way of interim order on 21st May, 1995 was challenged by the Corporation before the Division Bench and the said appeal of Corporation was dismissed on 8th June, 89. It appears that on 28th July, 89 the learned Single Judge of this Court dismissed the writ petition summarily. Aggrieved by that order WWNF filed an appeal which was allowed by Division Bench on 12th August, 1992 and Division Bench held that action of the Corporation in taking possession without giving any notice was illegal. The Division Bench also passed certain observations against the petitioner and one Mr. Parekh and awarded as compensation of Rs. 1 lac to WWNF. The Corporation has challenged the order of Division Bench before Supreme Court and the said matter is subjudice before the Supreme Court. It would be thus seen that the Corporation is defending the action taken by petitioner before the Supreme Court and the matter is still pending. In that fact situation, it is very difficult to comprehend how the petitioner could have been charged for the said act as misconduct when the Corporation is defending the said act of the petitioner before the Supreme Court. The Enquiry Officer also held that there is no proof that on account of such actions the Corporation has been brought into disrepute. There is no evidence that the said actions were taken by the petitioner in contravention of instructions of the superiors. At best there could have been error of judgment on the part of the petitioner in taking those actions. I have already pointed out that all the four instances for which the petitioner is alleged to have indulged in misconduct have been and are being defended by the Corporation in the Courts of Law. Finding of the Enquiry Officer on second charge is apparently perverse and, therefore, cannot be sustained.
25. Another charge which has been held proved against the petitioner is charge No. 4 and the said charge is that the petitioner in his explanation dated 30th May 1994 had charged that Municipal Commissioner by his administrative decisions had adversely affected his social commitments and after Shri Sharad Pawar became Chief Minister his actions were throttled through the Municipal Commissioner. The reply of the petitioner has been produced by the Corporation as Ex. 14 and the said reply has not been denied by the petitioner. The Dy. Municipal Commissioner is subordinate to the Municipal Commissioner and he is expected to act under the supervision and control of the Municipal Commissioner and it is for the Municipal Commissioner to entrust the duties to the subordinates and once the duties are entrusted it should be carried out and, therefore, the statement of the petitioner that because of the administrative decisions of his superiors his social commitments are affected, is an act of insubordination and rightly held to be so by the Enquiry Officer. The Corporation, discharged its burden by production of the letter written by the petitioner and in the absence of any evidence by the delinquent petitioner in rebuttal as to on what basis he alleged that due to administrative decisions his social commitments were seriously affected, the Enquiry Officer cannot be said to have committed any error in holding that such act on the part of petitioner was misconduct. Charge No. 4, therefore, has been rightly held to be proved by the Enquiry Officer. As a matter of fact during the course of arguments also no serious challenge was made by the learned Counsel for the petitioner regarding the finding of the Enquiry Officer on charge No. 4 and he also could not demonstrate that finding recorded by the Enquiry Officer on charge No. 4 suffered from any infirmity.
26. The only charge now left which has been held to be proved by the Enquiry Officer against the petitioner is charge No. 7. The said charge against the petitioner is that he was specifically directed by the Municipal Commissioner on 24th July, 94 not to leave the headquarters without Municipal Commissioner's prior permission, but the petitioner blatantly violated the Commissioner's said order and attended public meeting at Aurangabad on 26-6-94 and made scrullious utterances thereby damaging the image of the Corporation besides straining the relations of the Corporation with the State Government, This charge is based for violation of provisions of Rule 16 of Regulations, 1989. To prove this charge the Corporation produced the office copy of letter dated 24th June, 1994 by which the Municipal Commissioner invited attention of the petitioner to Rule 16 of Regulations of 1989 and informed him that he did not permit the petitioner to go out of Bombay for participating in any function. The petitioner in reply thereto submitted that it was not necessary for an officer of the Corporation to take prior permission of the Municipal Commissioner for going out of limits of Greater Bombay. The Enquiry Officer found on consideration of these facts that the visit of the petitioner to Aurangabad on 26-6-94 was in violation of Commissioner's direction and also violation of Rule 16 of Regulations of 1989 attracting punishment under Rule 41 of the Conduct Rules. There is no specific provision either in the Regulations of 1989 or in the Conduct Rules that the Municipal Officer shall not leave the headquarters without the permission of the Municipal Commissioner. However, by Rule 16 of Regulations of 1989 whole time of the Corporation employee is placed at the disposal of the Corporation. By the letter dated 24th June, 94 the Municipal Commissioner informed the petitioner that he (petitioner) did not have the permission of the Municipal Commissioner to go out of Bombay for participation in any function and also sought his explanation for his functions at Nagpur and Aurangabad without taking prior permission of the Municipal Commissioner. Obviously on the face of the said letter given by the Municipal Commissioner to the petitioner the petitioner who is Dy. Municipal Commissioner and subordinate and under control of the Municipal Commissioner could not have acted in defiance of the said letter and left the Headquarters. The Enquiry Officer rightly observed that the petitioner went to Aurangabad on 26-6-94 in violation of Commissioner's directions which was clear misconduct attracting punishment under Rule 41 of the Conduct Rules. The defiance of the specific directions of the Commissioner by the petitioner is definitely a improper conduct and, therefore, misconduct and the Enquiry Officer cannot be said to have committed any error in holding that charge No. 7 so far as insubordination was concerned was proved against the petitioner.
27. From the discussion aforesaid, it is found that first charge has not at all been proved and so also second charge. Only charges which have been proved against the petitioner are charge No. 4 and 7. From the comments of the Municipal Commissioner sent to the Councillors in circulation, it is clearly revealed that the Commissioner had already imposed penalty of censure for charge No. 2, penalty of withdrawing petitioner's next increment with permanent effect for charge No. 4 and the penalty of withdrawing next two increments with permanent effect for charge No. 7. As the Enquiry Officer recommended removal which in the opinion of the Commissioner was also justified in view of charge No. 1 and, the Commissioner was not competent to impose the penalty of removal, he referred the matter to the Corporation for punishment of removal. Mr. Singhvi, the learned Sr. Counsel appearing for the Corporation also submitted that the penalty of removal was based on charge No. 1 which was per se grave. I have already held that charge No. 1 was not proved. Obviously, therefore, penalty of removal as awarded by Corporation in its resolution dated 10-10-1996 cannot be sustained. The finding of the Enquiry Officer on charge No. 2 has also been held to be unsustainable by me and, therefore, obviously penalty for charge No. 2 imposed by the Municipal Commissioner cannot be maintained. In view of my findings that Enquiry Officer did not commit any error in holding that charge No. 4 and 7 were proved against the petitioner, the penalty imposed by the Commissioner with reference to charge No. 4 and 7 does not call for any interference.
28. On the scope of jurisdiction of the High Court under Article 226 to interfere with the quantum of punishment it will be advantageous to refer to the decision of the Apex Court in State of Orissa and others, appellants v. Bidyabhushan Mohapatro, respondent, where the Apex Court held thus :
"(9) The High Court has held that there was evidence to support the finding on heads (c) and (d) of Charge (1) and on Charge (2). In respect of charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed." The recommendation of the Tribunal was undoubtedly founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice." It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The Constitution guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Art. 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable : nor is the penalty open to review by the Court.
If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the Enquiry Officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question."
29. Recently, in the State of U.P. and ors. v. Nand Kishore Shukla & anr., 1996(2) L.L.J. 672, the Apex Court ruled that even one of the charges if held proved and sufficient for imposition of penalty of removal by the disciplinary authority, the Court would be loath to interfere with that part of the order. In the present case the penalty of removal is admittedly based on charge No. 1 and which I have held to be not proved. The charges No. 4 and 7 which have been held to be proved are not sufficient for imposing penalty of removal by the disciplinary authority in as much as the Municipal Commissioner himself has imposed the penalty of withdrawing next one increment with permanent effect for charge No. 4 and next two increments with permanent effect for charge No. 7. Thus, the order of removal passed by the Corporation on 10-10-1996 cannot be sustained from any reckoning.
30. In the result, the writ petition is partly allowed. The order/resolution of removal of the petitioner from municipal service under the provisions of section 83(1) of the B.M.C. Act, 1888 is quashed and set aside. The respondent No. 1 Corporation is directed to reinstate the petitioner with consequential benefits, except for the penalty which has been imposed by the Municipal Commissioner upon the petitioner for the proof of charge No. 4 and 7. The parties are directed to bear their own costs. Certified copy expedited.
31. Petition partly allowed.