ABDUL RAHIM KHAN Vs. MUNICIPAL COMMITTEE KHAMGAON

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the petitioner Abdul Rahim Khan prays for a writ of certiorari Quashing the order dated 13-4-1957 made by the Additional Deputy Commissioner, Khamgaon, second respondent hereto, as well as the order of the Municipal Committee Khamgaon, first respondent hereto, dismissing him from service. He also prays for a writ of mandamus to the first respondent directing it that the petitioner be reinstated in the service as and from the date of his dismissal with all his attendant rights, privileges and benefits.

(2.) THE petitioner was employed in the service of the first respondent on 12-5-1953, under the orders of the President of the first respondent, as a Correspondence Clerk on a probation for one year. His pay scale was 40-1-50-bar-2-70. In addition to the pay, the petitioner was entitled to receive Rs. 30/- per month as Compensatory Cost of Living Allowance. On 21-7-1953, the petitioner was posted as an Audit Clerk. The first respondent at its meeting held on 12-8-1955 considered the question of confirmation of the services of the petitioner and some other employees. So far as the petitioner was concerned, it was resolved that if the petitioner produced a letter of authority showing that the resignation tendered by him of his post of Revenue Inspector was duly accepted, then he should be confirmed as and from 1-3-1955. According to the petitioner, he produced that authority and showed it to the President in October 1955, and was, therefore, entitled to be treated as a confirmed employee. It appears that the petitioner then started contributing towards Provident Fund and to enable him to do so he himself entered his name in the bill of permanent employees without there being any order to that effect from any higher authority. When this fact was noticed, an objection thereto was raised by some members of the Municipal Committee and the matter was brought to the notice of the President. The President then directed the Secretary to hold an enquiry. The Secretary then duly held an enquiry and reported the matter to the President. The question then was considered in the meeting of the first respondent and by resolution dated 17-7-1956 it was resolved that the petitioner should be dismissed. Against this decision of the first respondent, the petitioner preferred an appeal before the Sub-Divisional Officer. The appeal succeeded and the Sub-Divisional Officer set aside the order of dismissal made by the first respondent. The first respondent then preferred an appeal before the Deputy Commissioner against the order of the Sub-Divisional Officer. This appeal succeeded and the learned Deputy Commissioner set aside the order of the Sub-Divisional Officer and restored the resolution of the Municipal Committee whereby the petitioner was dismissed. The petitioner, therefore, has come up to this Court.

(3.) IN the first instance, Shri D. B. Padhye, who appears for the petitioner, contends that the second appeal at the instance of the Municipal Committee before the Deputy Commissioner was not competent, firstly, on the ground that there is no right of appeal conferred on the Municipal Committee under Sub-section (6) of Section 25 of the C. P. and Berar Municipalities Act, 1922; Sub-section (6) of Section 25 reads as follows: