SUJJET KUMAR NIGAM Vs. STATE OF M P

JUDGEMENT

(1.) Being aggrieved by the order Annexure-P/5 passed by Chief Municipal Officer, Municipal Council, Damoh imposing the penalty of withholding one increment with non-cumulative effect as per the resolution of President-in-council, the petitioner filed the present petition. Shri Ghildiyal, Learned Counsel for the petitioner, contends that the petitioner is a person appointed on the post of Sub Engineer as per subsection (4) of Section 94 of Municipalities Act, 1961 (hereinafter referred to as 'the Act of 1961'). Such employees are governed by the rules which are known as M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (hereinafter referred to as 'the Rules of 1968'). As per Rule 51, a person appointed under sub-section (4) of Section 94 of the Act, the Municipal Council is having power to impose the penalty so specified under Rule 49 of the Rules of 1968. Being Sub Engineer and appointed under subsection (4) of Section 94 of the Act, order imposing penalty so passed by the President-in-council of Municipal Council, Damon is without jurisdiction and the order Annexure-P/5 is illegal and void-ab-initio.

(2.) Per contra, Shri Anshuman Singh, Learned Counsel for respondents 4 and 5, by filing return has stated the fact that the petitioner is governed by the rules which are known as M.P. State Municipal Service (Executive) Rules, 1973 (hereinafter referred to as 'the Rules of 1973'). Proceedings have been initiated under the said rules and after participation without raising any objection, order of penalty has rightly been passed by the Chief Municipal Officer, Municipal Council, Damon on the resolution of President-in-council imposing penalty against the petitioner, however, the action so taken by President-in-council is under the provisions of the said rules. During the course of hearing attention of this Court has been drawn to rule making power of the Rules of 1973 as well as the Rules of 1968 referring the provisions of Section 95 and 355 of the Act of 1961 and it is urged that being an employee of State Municipal Service, the petitioner shall govern by the provisions of Section 88 of the Act and the Rules of 1973 have its application. In such circumstances, the order has rightly been passed by the authority competent.

(3.) After hearing Learned Counsel for the parties and to deal with the rival contentions, relevant provisions of the Act and the rules is required to be reproduced which reads as under: