Ahmedabad Municipal Corporation vs Ahmedabad Municipal Nokar Mandal and Another

K.S. Jhaveri, J.—By way of present group of petitions, the petitioner has inter alia prayed for quashing and setting aside the judgment and award order dated 14th October 2008 passed by the Industrial Tribunal at Ahmedabad (hereinafter referred to as ''the Tribunal'') in Reference (IT) No. 114 of 2004 and other allied Reference Cases, whereby the Tribunal has rejected the Reference Cases of the petitioner.

Mr. S.N. Shelat, learned Senior Counsel appearing with Ms. V.D. Nanavati, learned advocate for the petitioner, has submitted that this Court vide judgment dated 19th July 2010 rendered in Special Civil Application Nos. 7667 to 7675 of 2010 has allowed the said petitions, which involved much less similar issues. Therefore, present petitions may be disposed of accordingly.

It would be beneficial to reproduce the said judgment dated 19th July 2010 rendered in Special Civil Application Nos. 7667 to 7675 of 2010 as under:

By way of present petition, the petitioner has inter alia prayed for quashing and setting aside the order dated 22nd February 2008 passed by the Industrial Tribunal at Ahmedabad (hereinafter referred to as ''the Tribunal'') below Exh.38 in Reference (IT) No. 114 of 2004 and other allied Reference Cases, whereby the Tribunal has declared the Departmental Inquiries held against the respondent-workmen to be illegal and invalid and granted liberty to the petitioner-Corporation to lead evidence to prove the charges against the workmen concerned in the said Reference Cases.

It is the case of the petitioner that on 14th October 1987 the respondents were served with the chargesheets on the ground that though they were appointed from 01st January 1986, they had altered the date to 01st September 1985 so as to be absorbed in the services of the petitioner-Corporation. The Deputy Municipal Commissioner appointed an Inquiry Officer. On 22nd July 1988 the Inquiry Officer submitted his report. Thereafter, on 09th August 1988 the second show cause notice was served upon the respondents with a copy of the said inquiry report. The respondents submitted their reply on 26th September 1988. However, on 29th October 1989, the respondents were removed from service. Thereafter, on 23rd December 2003 the City Civil Court dismissed Civil Suit No. 965 of 1990 and allied suits, of the respondents on the ground that the Civil Court has no jurisdiction. On 30th June 2004, the respondents filed References before the Industrial Tribunal at Ahmedabad. On 22nd February 2008, the Industrial Tribunal passed the impugned judgment and award holding that the departmental inquiry is invalid and directed the party to lead evidence if so opted for.

Mr. S.N. Shelat, learned Senior Counsel appearing with Ms. V.D. Nanavati, learned advocate for the petitioner, has submitted that Tribunal has erred in holding that the Deputy Municipal Commissioner is not competent to terminate the services of the respondents and that delegation orders dated 04th September 1987 and 26th May 1988 do not enable the Deputy Municipal Commissioner to pass the termination order. It is submitted that the Tribunal has also erred in holding that the joint inquiry is not permissible and further erred in overlooking the fact that before the Inquiry Officer ever reasonable opportunity was offered to the delinquent. Hence, the present petition.

Ms. Pooja Dave, learned advocate appearing on behalf of Mr. Pinakin Raval, learned advocate for the respondent, has submitted that the judgment and award passed by the Tribunal is just and proper. It is submitted that even the respondents have been employed by the petitioner-Corporation and they have been working at their respective posts. Therefore also, the present group of petitions may be dismissed.

Having considered the rival contentions advanced by the learned Counsel appearing for the respective parties and the averments made in the petition as well as the documentary evidence produced on record, it transpires that the Tribunal has erred in observing that the Deputy Municipal Commissioner was not authorised to pass order for removal of service of the respondents. The approach of the Tribunal is wholly erroneous in law overlooking provision of Section 49 of the Bombay Provincial Municipal Corporation Act. It is pertinent to note that even on perusal of the Office Order No. 2912 dated 04th September 1987 produced with the petition at Annexure-G Collectively (Page No. 69), it is crystal clear that the Municipal Commissioner of the petitioner-Corporation has delegated powers to the Deputy Municipal Commissioner in exercise of powers conferred upon him under Sub-section (1) of Section 49 of the said Act. Thus, the Tribunal has committed error in holding that the Deputy Municipal Commissioner has no powers to remove the respondents from their services. Hence, I am of the opinion that the said observations made by the Tribunal in the impugned order are required to be quashed and set aside. However, so far as the finding of the Tribunal that the departmental inquiry is illegal and invalid is concerned, the same is not disturbed since the respondents are already employed by the petitioner-Corporation and the charges against the respondents are not proved by the petitioner-Corporation.

For the foregoing reasons, the present group of petitions are hereby partly allowed. The observations made by the Tribunal in the impugned order dated 22nd February 2008 qua delegation of powers to the Deputy Municipal Commissioner are hereby quashed and set aside. However, so far as the finding of the Tribunal that the departmental inquiry is illegal and invalid is concerned, the same is not disturbed since the respondents are already employed by the petitioner-Corporation and the charges against the respondents are not proved by the petitioner-Corporation. Rule is made absolute to the aforesaid extent in each petition. No order as to costs.

In view of aforesaid, when the issue of powers of Deputy Municipal Commissioner involved in present petitions has already been decided by this Court by way of above cited decision, in light of the observations made by this Court in the above cited decision, present petitions are required to be disposed of and the same stands allowed accordingly. The observations made by the Tribunal in the impugned judgment and award order dated 14th October 2008 passed by the Industrial Tribunal at Ahmedabad in Reference (IT) No. 114 of 2004 and other allied Reference Cases, qua delegation of powers to the Deputy Municipal Commissioner are hereby quashed and set aside. However, so far as the finding of the Tribunal that the departmental inquiry is illegal and invalid is concerned, the same is not disturbed since the respondents are already employed by the petitioner-Corporation and the charges against the respondents are not proved by the petitioner-Corporation. Rule is made absolute to the aforesaid extent in each petition. No order as to costs.