Municipal Committee Dharamsala vs State of Himachal Pradesh and Others

C.R. Thakur, J.—Shri Madan Lal, Respondent No. 3, was employed by the Municipal Committee, Dharamsala, as a Sanitary Inspector with effect from 1st April, 1965. The Respondent No. 3 entered into an agreement with the Municipal Committee and furnished two sureties.

On 30-11-1973, Respondent No. 3 applied for leave on the ground that his wife had undergone an operation of sterilisation.

Thereupon the Municipal Committee asked him to produce the medical certificate in support of his wife having undergone operation, but he failed to submit the requisite certificate. He again applied for one month''s leave but the same was not sanctioned. Again, he applied for extension by a telegram, dated 29-3-1974. The Municipal Committee refused to sanction the leave and sent intimation at his home address but the Respondent despite the fact that he was refused the leave absented himself from duty upto 23-10-1974. The Municipal Committee passed resolution No. 405, dated 26-2-1974 whereby it was decided to charge-sheet the Respondent for remaining wilfully absent from duty. The charge-sheet was sent under a registered A.D. cover at his permanent address but the same was received back from the postal authorities with the remarks that the "addressee has refused to take the delivery". Since the Respondent did not send any reply to the charge-sheet, therefore, the Petitioner, vide resolution No. 23, dated 19-9-1974 issued a show cause notice to the effect that the services of Shri Madan Lai were not in the interest of the Municipal Committee but again no reply was sent by the Respondent. On 26-4-1975 the Respondent submitted a joining report. Thereafter he was charge-sheeted pursuant to the resolution passed by the Municipal Committee and an enquiry committee was constituted to enquire into the conduct of the Respondent. The committee after having enquired into the matter submitted its report which was considered by the Petitioner and in pursuance of that a show cause notice was issued to the Respondent to show cause why he should not be dismissed. To this a reply was submitted and it was considered by the Municipal Committee but the same was found quite unsatisfactory and the Petitioner decided to dismiss the Respondent from the service of the Municipal Committee. Since under the rules an employee cannot be dismissed unless prior sanction of the Deputy Commissioner had been obtained, therefore, the Municipal Committee obtained the sanction on 12-8-1975. Again, it appears that the Respondent sent a further reply which was also considered by the Petitioner on 18-8-1975 and again a fresh resolution was passed deciding to dismiss the Respondent from service and again the Deputy Commissioner was moved for granting sanction before the order was passed. The Deputy Commissioner by his letter, dated 22-8-1975 gave the approval. Therefore the Respondent was dismissed from service.

The Respondent No. 3 filed an appeal before the Deputy Commissioner who dismissed the appeal. Later on it appears that he filed another appeal to Respondent No. 2, i.e. the Secretary, (Local Self Government), Government of Himachal Pradesh who accepted the same and set aside the order of dismissal. It is against this order, Annexure PH that the Petitioner has moved this petition under Article 226 and 227 of the Constitution of India for quashing the order on the ground that no appeal was competent before the Secretary (L.S.G.). The rules provide only one appeal which was filed before the Deputy Commissioner and the Secretary (L.S.G.) had no jurisdiction. Further, the appeal seemed to have been decided by the Under Secretary (L.S.G.) who had no power to decide the same. The Respondent No. 3 had been appointed by the Municipal Committee and a service contract had been entered into with the Municipal Committee and as such it was the Deputy Commissioner only who, was empowered to decide the appeal and no second appeal lay. Further it was averred that the Secretary (L.S.G.) had erred in holding that the Municipal Committee had already made up its mind on 9-8-1975 to dismiss the Respondent No. 3. It was wrong to say on the part of the Secretary (L.S.G.) to say that the enquiry was merely an eye wash.

According to Respondent No. 1, i.e. the State, the action taken was wrong, inasmuch as Respondent No. 3 was allowed 15 days'' time to file his reply to the show cause notice but even before the expiry of the same the Petitioner had moved the Deputy Commissioner for approval for dismissal of Respondent No. 3 and as such the action was mala fide as no reasonable opportunity could be said to have been afforded to Respondent No. 3. It was contended that the appeals under rules 16 and 19 of the Himachal Pradesh Municipalities Servants (Punishment, Removal, Suspension and Appeal) Rules, 1971, were permissible first to the Deputy Commissioner and then to the Secretary (L.S.G.). It was denied that the Under Secretary (L.S.G.) had decided the appeal, what he did was only to convey the decision of the Secretary (L.S.G.).

The Respondent No. 3 raised preliminary objections that the Petitioner failed to exhaust, all the remedies particularly the statutory remedy of review under Rule 21 of the aforesaid rules which is an equally adequate and efficacious alternative remedy and as such the petition is not maintainable. It was further averred that the appeal before the Deputy Commissioner was not competent and was returned. An appeal had simultaneously been also filed before the Secretary (L.S.G.) who heard the same after affording to the Petitioner and the Deputy Commissioner an opportunity to file comments to the appeal filed by Respondent No. 3. He defended the order of the Secretary quashing the order of his dismissal.

The first question that arises for consideration is whether the second appeal to the Secretary (L.S.G.) was maintainable or not.

The submission made by the Respondent is that it was not a second appeal but the Deputy Commissioner had no jurisdiction to hear the appeal and, therefore, the same was returned and he had in the meanwhile also filed an appeal before the Secretary (L.S.G.).

Now we have to see as to who is the appellate authority.

It is an admitted fact the at Respondent No. 3 was appointed in the year 1965 when Dharamsala was a part of the erstwhile State of Punjab and, therefore, his services were governed under the rules framed for regulating the recruitment and conditions of service of the members of municipal servants referred to in Sub-section (1) of Section 38 of the Punjab Municipal Act. However, the rules framed under Sub-section (1) of Section 38 have not been placed before this Court. The rules now applicable are those as have been framed by the Himachal Pradesh Government in exercise of the powers u/s 255 and 273 of the Himachal Pradesh municipal Act, 1968, which rules are called the Employment of Sanitary Inspectors in Himachal Pradesh Municipalities Rules, 1970. In these rules, Rule 7 relates to the appointment and dismissal of the Sanitary Inspector by the Municipality. The rules which are called the Himachal Pradesh Municipalities Servants (Punishment, Removal, Suspension and Appeal) Rules, 1971, have also been framed under the provisions of Sections 255 and 273 of the Himachal Pradesh Municipal Act, 1968. Rule 16 of these rules says, who are the appellate authorities to whom the appeal may be preferred by a servant including a servant who has ceased to be in the Committee service. It says that a servant may prefer an appeal against all or any of the orders specified in Rule 15 to the Deputy Commissioner, if the order is made under the rules or agreement, as the case may be, made or entered into by the Committee or any of its officers, and to the Secretary (L.S.G.) to the Himachal Pradesh Government if the order is made under the rules or agreement as the case may be, made or entered into by the Himachal Pradesh Government or any of its officers; or a servant on whom the penalty of dismissal from service can be imposed only with the previous sanction of the Government, may prefer an appeal against all or any of the orders specified in Rule 15 to the Government of Himachal Pradesh. Therefore, what follows from the provisions of this rule is that an appeal shall lie to the Deputy Commissioner in case the order is made under the rules or agreement made or entered into by the Committee or any of its officers; and an appeal shall lie to the Secretary (L.S.G.) in case the order is made under the rules or agreement made or entered into by the Himachal Pradesh Government or any of its officers. In the instant case, admittedly, the Respondent No. 3 of entered into the service of the Municipal Committee in the year 1965. There is a clear averment made by the Petitioner that it entered into an agreement with the Respondent No. 3 and that he (the Respondent No. 3) furnished two sureties. The reply to this filed by Respondents 1 and 2 is as under:

The contents of para 3 of the writ petition are also denied for want of knowledge as the record of the case is with the Petitioner.

Therefore, this is not a denial but it is an evasive reply to say-for want of knowledge, and this averment shall be deemed to have been admitted. Therefore, if Respondent 3 had entered into an agreement with the Municipal Committee and his appointment had been made under the rules and the agreement was entered into between him and the Municipal Committee then the appeal would lie to the Deputy Commissioner and not to the Secretary (L.S.G.).

A perusal of these rules would show that there is no further appeal provided. In so far as Rule 19 which is referred to by the Respondents is concerned the same lays own the procedure for consideration of the appeal. It would, therefore, be quite evident that no second appeal is provided for. The Secretary (L.S.G.) had no jurisdiction to entertain the appeal, and the order passed by him, therefore, is without jurisdiction.

It is contended that there is a provision for review and it is an adequate remedy. No doubt: review is an adequate remedy but here the order is void and non-est which can be challenged under the provisions of Article 226 not with standing the fact that there is a provision for review made in the rules.

Even if it may be admitted that there was only one appeal and which lay to the Secretary (L.S.G.) and not to the Deputy Commissioner still the order of the Secretary (L.S.G.) is wholly without jurisdiction because there is no application of mind as is evident from the record. He did not pass any order except initialling the notes put up by the office after the opinion from the Law Department had been obtained. So this is not an independent order after application of his mind by the Secretary (L.S.G.) who is a person designate and a quasi-judicial authority. He was expected to have exercised his independent application of mind without depending wholly and solely on the advice of the Law Department and the notes put up by the office. On this basis also this order is not sustainable.

In view of the fact that this petition succeeds on the ground that the appeal was decided by the Secretary (L.S.G.) who had no jurisdiction or who had not exercised his independent application of mind, it is not necessary to go into the other questions in the petition.

The petition therefore succeeds and the order is hereby quashed with no order as to costs.