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TMI Blog2011 (12) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... requires reconsideration. The matter shall accordingly, be placed before the Larger Bench. 2. By this Writ Petition under Article 226 of the Constitution of India, the Petitioners who are the officers of the Municipal Corporation of the city of Navi Mumbai (for short "the said Corporation") have challenged the order of suspension. The said Corporation has been constituted under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the said Act of 1949"). The Petition has been filed for challenging the orders of suspension passed by the Commissioner of the said Corporation on 10th September, 2009. The Petitioner Nos.1 and 2 are the Deputy Commissioners of the said Corporation. The Petitioner No. 3 is the Assistant Commissioner of the said Corporation. The Respondent No. 4 is the Chief Accountant and Finance Officer of the said Corporation and the Petitioner No. 5 is the Assistant Accounts Officer of the said Corporation. 3. The said Corporation has been entrusting the work of removal of the encroachments to a private contractor. For the period of 200309, the said work was assigned to M/s. H.B. Bhise and Company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of suspension. Reliance has been placed on further representations dated 7th August, 2010 and 23rd September, 2010 made by the Petitioners for the same purpose. On 8th October, 2010, the Petitioners submitted a representation to the Secretary of the Urban Development Department of the Government of Maharashtra praying for revocation of the suspension. 7. The first contention raised in the petition is that Rule 4 (2) (a) of the Civil Services Rules provides that the Petitioners shall be deemed to have been placed under suspension by an order of Appointing Authority. It is submitted that as far as the Petitioners are concerned, the Appointing Authority is the said Corporation i.e. the General Body of the said Corporation. It is contended that in view of clause (b) of Sub-Section (1) of Section 56 of the said Act of 1949, the order of suspension ought to have been confirmed by the Corporation within a period of six months from the date of suspension and therefore, on expiry of a period of six months from 8th September, 2009, the suspension has automatically come to an end. It is contended in the petition that the officers of the said Corporation, who did not remain present befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r its approval, the same was withdrawn on 16th July, 2010. He submitted that the proviso to clause (b) of Sub-Section (1) of Section 56 of the said Act of 1949 clearly provides that suspension under clause (b) pending an enquiry into the allegations against the officer or servant shall not be deemed to be a penalty. He submitted that the powers under clause (b) can be exercised by the Commissioner pending an enquiry. He invited attention of the Court to what is held by the Division Bench of this Court in paragraph Nos.11 and 12 of the decision in the case of Sudhir R. Bhatankar (supra). He submitted that the suspension made under clause (b) will stand revoked if not confirmed within a period of six months from the date of the suspension. He pointed out that the suspension contemplated by clause (f) of Sub-Section (2) of Section 56 of the said Act of 1949, is a suspension by way of penalty. He pointed out that proviso to clause (b) makes it very clear that the suspension made in exercise of powers conferred by clause (b) will not amount to penalty. He, therefore, submitted that the law laid down by the Division Bench of this Court in the case of Sudhir R. Bhatankar (supra) requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of this Court in the case of State of Maharashtra and others v. Subhashchandra Bapusaheb Patankar 2006 (4) Mh.L.J. 751). He relied upon certain decisions of the Apex Court to which reference has been made in the subsequent part of the judgment. 12. The Learned Counsel appearing for the Petitioners submitted that for passing the impugned orders of suspension, power under clause (b) of Sub-Section (1) of Section 56 of the said Act of 1949 has been invoked. He submitted that the Appointing Authority of the Petitioners being the Municipal Corporation, the order of suspension passed by the Commissioner is made subject to confirmation by the General Body. He submitted that even the order of suspension in exercise of powers under Rule 4 (2)(a) of the Civil Services Rules, is subject to revocation and/or review. He relied upon a decision of the Division Bench of this Court in the case of Dr. Suresh Annappa Dhotre v. State of Maharashtra & Ors (Writ Petition No. 8944 of 2010 dated 10th December, 2010) in that behalf. 13. We have given careful consideration to the submissions. It will be necessary to make a reference to Rule 4 of the Civil Services Rules. 4. Suspension.( 1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under Suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under Suspension until further orders. Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. (5) (a) An order of Suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that Suspension, the authority competent to place him under Suspension may, for reason to be recorded by it in writing, dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on any such officer or servant and may also impose, any penalty on any other officer or servant immediately subordinate to the Municipal Chief Auditor or the Municipal Secretary; (2) The penalties which may be imposed under this section are the following namely: (a) censure; (b) withholding of increments or promotion, including stoppage at an efficiency bar; (c) reduction to a lower post or timescale, or to a lower stage in a timescale; (d) fine; (e) recovery from salary of the whole or part of any pecuniary loss caused to the corporation; (f) suspension; (g) removal from municipal service which does not disqualify from future employment; (h) dismissal from municipal service which ordinarily disqualifies from future employment. (Emphasis added) Under Section 45 (2) of the said Act of 1949, the power of appointing Deputy Municipal Commissioner or Assistant Municipal Commissioner vests in the Corporation. The Corporation is defined under clause (10) of Section 2 of the said Act of 1949, which reads thus: (10) "Corporation" means the Municipal Corporation constituted or deemed to have been constituted for a larger urban area known as City. Under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised by the Commissioner pending a disciplinary enquiry. Sub-Section (2) of Section 56 of the said Act of 1949 provides for various categories of penalties, which can be imposed on the officer or servant after holding an enquiry. Under clause (f) of Sub-Section (2), one of the penalties is of suspension. Clause (b) of SubSection (1) of Section 56 read with the proviso makes it very clear that the power of suspension under the said clause can be exercised by the Commissioner pending a disciplinary enquiry and the suspension made under the said provision will not be by way of penalty. Only an order of suspension under clause (f) of SubSection (2) of Section 56 is by way of penalty. 14. In this context, it will be necessary to make a reference to the judgment of the Division Bench of this Court in the case of Sudhir R. Bhatankar (supra). Paragraph Nos.11 and 12, the Division Bench has observed thus: 11. It will be evident from the above provisions that the Commissioner is empowered under section 56 to suspend any officer or servant pending an order of the Corporation. In such a suspension order, he has to give reasons and then approach the Corporation for confirmation. The time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seriousness of the event and without trying to find out the guilty person, the Corporation have rushed to pass a resolution to revoke the order of suspension and to direct reinstatement of the petitioner, who is still facing departmental enquiry. According to us, they could not have passed such a resolution purporting to act under section 56(1)(b) of the Act which had no application to the facts of the case. The Learned Counsel for the petitioner has vehemently argued that since the Corporation itself has passed the resolution to reinstate the petitioner under section 56(1)(b) of the Act, we need not consider any other aspect of the matter. We do not agree with the said submission. If the provision itself is not applicable and if the corporators were not informed that section 56(1)(b) was not attracted and that the suspension was under Rule 4 of the M.C.S. Rules, we hold that the said resolution was ultra vires the powers of the Corporation and hence null and void and the same was rightly rescinded by the State Government. Further, it is significant to note that the said resolution was not moved by the Municipal Commissioner but was at the instance of "the personnel" o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the Transport Manager, who is not a Government Officer on deputation can be suspended under clause (b). When the Transport Manager or an officer appointed under Section 45 is suspended, the Commissioner is duty bound to forthwith report the suspension to the Corporation with reasons for the suspension. Such order of suspension passed by the Commissioner is required to be immediately placed before the General Body of the Municipal Corporation. The ratification of such order of suspension under clause (b) has to be made within a period of six months from the date of the suspension failing which on expiry of a period of six months from the date of the suspension, there will be automatic revocation of the order of the suspension. The proviso to clause (b) clearly indicates that powers under clause (b) can be exercised by the Commissioner pending the disciplinary enquiry against the municipal officer or the servant concerned. 18. Emergent situations arise requiring immediate suspension of an officer or servant of the Municipal Corporation. The meeting of the General Body of the Municipal Corporation many not be held frequently. To meet such exigencies, a power has been conferred o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Tribunal referred to the scheme of Rule 4(5) of the Rules and held that it does not vest any right in favour of the suspended employee to pray for revocation of the order of suspension and had relied upon the Government Resolution dated 20.7.2010 so as to hold that when the government employee is suspended pending criminal case against him the order of suspension cannot be revoked till the trial is completed. In paragraph No. 5 of the judgment, the Division Bench made a reference to Sub Rule (5) of Rule 4 and held thus: Thus the Scheme of Rule 4(5) of the Rules does not state that an order of suspension of an employee who is facing a criminal investigation/trial cannot be revoked till the trial is concluded and it is well settled that the Rules framed by exercising powers under Article 309 of the Constitution cannot be substituted or amended by a Government Resolution. (Emphasis added) 21. It will be necessary to make a reference to another decision of the Division Bench of this Court in the case of this Court in the case of State of Maharashtra v. Shivram Sambhajirao Sadawarte (2001 (3) Mh.L.J. 249). In paragraph No. 1 of the said decision, the Division Bench observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judicial Review by the Tribunal or by this Court. (Emphasis added) In paragraph No. 14, the Division Bench held thus: (14) IN the premises, we hold as under: (a) The order of suspension issued under Rule 4 of the Rules can be sought to be reviewed or revoked by the suspended employee by way of a representation under sub rule (5) thereof. (b) Such a representation can be filed at any time and rejection of a representation may not operate as a bar in filing a subsequent representation for review/revocation. (c) The representation so filed ought to be decided within a reasonable period of two to three months and by taking into considerations the nature of charges, progress in enquiry, investigations/trial as the case may be including the reasons for delay and other attending circumstances in each case as well a the policy decision of the State Government. (d) Challenge to the order of suspension should not be ordinarily entertained by the Tribunal/court directly unless the remedy as provided under Rule 4 (5) is exhausted by the delinquent employee. (e) if the representation filed by the delinquent employee under Rule 4 (5) of the Rules is not decided within a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appointing authority could not have passed the impugned orders otherwise than in exercise of the powers under clause (b) of Sub-Section (1) of Section 56 of the said Act of 1949. Every such order requires ratification by the General Body within six months. Every such order of suspension must be placed before the general body which can either continue the suspension by ratifying the same or can revoke the same. Therefore, in the present case, the order required ratification by the Municipal Corporation within six months. If it is not confirmed or ratified within the said period of six months, the legal consequence provided by clause (b) of Sub-Section (1) of Section 56 of the said Act of 1949 will follow. 25. In the present case, after expiry of a period of six months from 8th September, 2009, the suspension ceased to exist as the same was not confirmed by the Corporation. It was sought to be contended that as the Respondent - Corporation acting in terms of the judgment of this Court in the case of Sudhir R. Bhatankar (supra) did not consider the matter of ratification, the period of six months be computed from the date of the judgment of this Court to enable the Corporation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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