SHRI JAYANT H. SHUKLA Vs. MUNICIPAL CORPORATION OF THE CITY OF AHMDABAD (NOW SUPERSEDED) THROUGH ADMINISTRATOR OF THE MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD AND ANOTHER

JUDGEMENT

(1.) The petitioner Transport Manager of the respondent Corporation challenges in this petition the order of the Administrator, dated May 2, 1974 removing the petitioner from service under section 50 (3) of the Bombay Provincial Municipal Corporation Act, 1949, hereinafter referred to as 'the Act', and in consequence, directing forfeiture of the benefits of gratuity and provident fund assigned profits. The petitioner joined service on April 4, 1947, and after 10 years he was made the Transport Manager on Sept. 1, 1957. In view of the serious charges which were found against the petitioner on a prima facie fact finding enquiry by the Municipal Commissioner, be was suspended pending the enquiry by the order, dated Sept. 23, 1971, pursuant to the Corporation's resolution, dated April 20, 1971 to institute enquiry against the petitioner through a senior judicial officer. This suspension order was challenged before this Court in Special C.A. No. 1718 of 1971 by the petitioner and that petition was dismissed by upholding the suspension order by the order, dated Nov. 16/17, 1972 by a Division Bench consisting of Bhagwati C.J. (as he then was and D.A. Desai J. In that decision it was in terms pointed out that section 50(3) of the Act was a special provision which dealt with the subject of removal as a measure of penalty of the Transport Manager when the statutory minimum of at least half the number of the whole number of councillors voted on that proposal, in contrast with section 56 which dealt with various punishments set out in section 56(2) and which can be imposed on a bare majority of the corporators present and voting at the meeting. This was a special provision only for the removal of this high officer by the requisite half number of the whole number of councillors. Therefore, it was in terms held that looking to this specific provision under section 56(3), a removal from office was the only penalty that can be imposed on the Transport Manager and he could not be inflicted small pin-pricks like censures and other punishments and, therefore, this high post of the Transport Manager was outside the purview of section 56 because of the specific exclusion from that clause of this Transport Manager. In that decision it was further pointed out, while upholding this suspension pending enquiry, that the Corporation had passed this resolution after being satisfied on the fact-finding preliminary enquiry by the Municipal Commissioner himself that there was a prima facie case for instituting this departmental cum-direct enquiry by a senior judicial officer after making all relevant considerations so as to inspire confidence in this enquiry. Thereafter, the retired Chief Justice Shri N.M. Miabhoy was appointed as the enquiry officer in pursuance to this resolution on Sept. 29, 1972. The charge-sheet which was first served on the petitioner on Sept. 30, 1972, was revised after the resolution of the Corporation or Jan. 23, 1973 as per Annexure A. After the completion of the said enquiry which had taken almost 105 sittings a report had been submitted by the enquiry officer on April 29, 1974 to the Administrator because meanwhile the Corporation having been superseded on March 11, 1974, the Administrator was appointed under Sec. 452 of the Act. The Administrator, after going through the report and having considered the findings of the enquiry officer and having agreed with same and having accepted the said findings which held the petitioner guilty on all the five charges levelled against the petitioner, passed the impugned removal order against him under section 50(3) with immediate effect for the several acts of misconduct mentioned in the aforesaid revised charge-sheet at Annexure A, which were acts of misconduct, neglect of and incapacity for the duties of the office of the Transport Manager. The Administrator further directed that a true copy of the findings recorded by the enquiry officer be sent to the petitioner and which was accordingly served on him. Two further orders were also passed in view of the aforesaid findings directing that no gratuity shall be payable to the petitioner and that in view of the gross acts of neglect of duty and misconduct of which the petitioner was found guilty, the assigned prof its of the provident fund viz, the contribution of the Corporation had been forfeited and it was directed to be paid to the welfare Fund of the Municipal servants. It is this impugned order which has been challenged by the petitioner in this petition.

(2.) The revised charge-sheet at Annexure A which mentioned five charges categorically states that the petitioner was required to show cause why he should not be dismissed/removed from service on those acts of misconduct, neglect or incapacity in the discharge of his duties of the office of Transport Manager. A list of enclosures of various documents relied against the petitioner for founding the aforesaid charges had been annexed. It was further stated in the said charge-sheet that in order to afford the petitioner an adequate and reasonable opportunity to defend himself at the departmental enquiry Shri Miabhoy had been appointed as enquiry officer and the petitioner was called upon to submit his explanation before the said enquiry officer and that the enquiry would be held by him and the petitioner was asked to lead whatever defence he wanted to lead by availing of that opportunity before the said enquiry officer. Finally, it was stated in the show cause notice as under:-

(3.) In the exhaustive report which has been submitted, the conclusions of the enquiry officer have been summarised in para (L) sub-para (122), and on all these findings, the five charges mentioned the in revised charge-sheet, were held to have been proved in para (LII) sub-para (139). Thereafter in para (LIII) the enquiry officer has mentioned the points that may he considered for imposition of penalty asunder:-