Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6069 OF 2012
Municipal Commissioner, Jamnagar
Municipal Corporation and Anr. …Appellant(s)
Versus
R.M. Doshi …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the
impugned judgment and order passed by the Division
Bench of the High Court of Gujarat at Ahmedabad in
Letters Patent Appeal No. 726 of 2006 by which the
Division Bench of the High Court has dismissed the said
appeal preferred by the appellant – Jamnagar Municipal
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2023.05.02
16:43:16 IST
Reason:
Corporation and has confirmed the judgment and order
Civil Appeal No. 6069 of 2012
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passed by the learned Single Judge in Special Civil
Application No. 10682 of 1998 by which the learned
Single Judge allowed the said application preferred by the
respondent herein and has quashed and set aside the
dismissal order passed by the Commissioner, the
Jamnagar Municipal Corporation has preferred the
present appeal.
2. The facts leading to the present appeal in nutshell
are as under:-
2.1 That the respondent herein, at the relevant time,
was discharging his duty as City Engineer of the appellant
– Municipal Corporation. That for certain execution of
work and construction of roads within the Municipal
Corporation area, it was found that the respondent had
committed certain irregularities. A chargesheet came to
be issued against him on 15.01.1993. The respondent did
not agree to the charges levelled against him. Therefore,
a departmental inquiry was conducted against him. Upon
conclusion of the inquiry, the Inquiry Officer submitted his
report dated 06.10.1995.
2.2 The Inquiry Report was made available to him
calling for his representation. Report of the Inquiry Officer
was supplied alongwith notice dated 02.09.1998. He was
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called upon to show cause as to why major penalty as
provided under Rule 6 of the Gujarat Civil Services
(Disciplinary and Appeal) Rules, 1971, should not be
imposed upon him. The respondent replied to the said
show cause notice. The Commissioner of the Municipal
Corporation, thereafter, passed a dismissal order dated
07.12.1998 by which the respondent was ordered to be
dismissed from service.
2.3 The order of dismissal passed by the Commissioner
of the Municipal Corporation was challenged by the
respondent before the learned Single Judge of the High
Court. Before the learned Single Judge, the respondent
challenged the inquiry report as well as the dismissal
order on merits and also on the ground that the
Commissioner, who passed the order of dismissal was not
having any jurisdiction and/or authority to pass a dismissal
order and impose the major penalty.
2.4 It was the case on behalf of the respondent before
the learned Single Judge that the Resolution No. 51 dated
20.11.1998 passed by the General Board of the Jamnagar
Municipal Corporation did not empower the Municipal
Corporation to initiate and/or to conclude the disciplinary
proceedings for the alleged irregularities or negligence in
the present case.
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2.5 The petition was opposed by the Corporation on
merits as well as on the authority of the Commissioner. It
was submitted that under Resolution No. 51 dated
20.11.1998, the Commissioner had passed the final order
of penalty. It was contended that the delegation covers all
kinds of works including purchases and other execution of
work in which it is found that the officer has committed
irregularity or had acted in a negligent manner. It was
further submitted that eventually, the General Body of the
Corporation vide its Resolution No. 56 dated 15.12.1998
as amended by subsequent Resolution dated 30.12.1998,
had ratified the action taken by the Commissioner.
2.6 The learned Single Judge though held on merits
against the respondent but, however, set aside the order
of dismissal passed by the Commissioner solely on the
ground that the Commissioner had no authority and/or
power to impose any major penalty upon the respondent
for the misconduct proved. The learned Single Judge
observed that the Resolution No. 51 dated 20.11.1998
conferred power upon the Commissioner for initiating
action for irregularities with respect to the purchases only
and not with respect to any other misconduct and/or
irregularity. The learned Single Judge also held that the
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subsequent ratification by the General Board would not
confer any authority upon the Commissioner and the
subsequent ratification of the action of the Commissioner
would not save the action. Consequently, the learned
Single Judge allowed the writ petition and set aside the
order of dismissal with all consequential benefits.
2.7 The judgment and order passed by the learned
Single Judge was the subject matter of appeal before the
Division Bench by way of Letters Patent Appeal No. 726
of 2006 by which the learned Single Judge upheld the
inquiry and the inquiry report. The respondent also
preferred Letters Patent Appeal No. 752 of 2006.
2.8 By the impugned judgment and order, the Division
Bench of the High Court has dismissed the appeal
preferred by the appellant Corporation. In view of the
dismissal of appeal preferred by the Corporation, learned
counsel appearing on behalf of the respondent did not
press the Letters Patent Appeal No. 752 of 2006.
2.9 Feeling aggrieved and dissatisfied with the
impugned judgment and order passed by the Division
Bench of the High Court dismissing Letters Patent Appeal
No. 726 of 2006 and confirming the judgment and order
passed by the learned Single Judge, quashing and setting
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aside the dismissal order passed by the Commissioner,
the Corporation has preferred the present appeal.
3. While issuing the notice dated 26.03.2012, this
Court had stayed the operation of the impugned
judgment. However, thereafter vide order dated
24.08.2012, while granting leave, this Court has directed
that the appellants shall continue to pay a lump-sum
amount of Rs. 10,000/- per month to the respondent w.e.f.
01.04.2012. It is reported that the said amount of
Rs. 10,000/- per month thereafter is being paid to the
respondent.
4. Mr. Preetesh Kapur, learned Senior Advocate,
appearing on behalf of the appellants has vehemently
submitted that both the learned Single Judge as well as
the Division Bench of the High Court have materially erred
in observing that the Commissioner had no power and/or
authority to pass the order of dismissal against the
respondent. It is submitted that the Resolution No. 51
dated 20.11.1998 authorised the Commissioner to pass
the final order of penalty and the said delegation covers
all kinds of works including purchases and other execution
of work in which it is found that the officer has committed
irregularity and/or had acted in a negligent manner.
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4.1 It is submitted that in any case, thereafter, the
decision of the Commissioner to dismiss the respondent
from service was placed before the General Board and
the General Board of the Corporation vide its Resolution
No.56 dated 15.12.1998 as amended by subsequent
Resolution dated 30.12.1998, ratified the action taken by
the Commissioner. It is submitted that the said ratification
would relate back to the order of dismissal passed by the
Commissioner. It is submitted that even if the order
passed by the Commissioner can be said to be invalid,
the same came to be ratified subsequently, the said
defect, in any case, can be said to have been cured.
Heavy reliance is placed on the decision of this Court in
the case of National Institute of Technology and Anr.
Vs. Pannalal Choudhury and Anr., (2015) 11 SCC 669
(paras 13 and 33).
5. Present appeal is vehemently opposed by
Ms. Jaikriti S. Jadeja, learned counsel appearing on
behalf of the respondent.
5.1 It is submitted that insofar as the Resolution No.51
dated 20.11.1998 is concerned, it conferred power upon
the Commissioner to take action with respect to any
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irregularity in case of purchases only and not with respect
to any other misconduct. It is submitted that, therefore,
the decision of the Commissioner to dismiss the
respondent from service was void ab initio and therefore,
the subsequent ratification by the General Board cannot
save the order of dismissal. Reliance is placed on the
decision of this Court in the case of Marathwada
University Vs. Seshrao Balawant Rao Chavan, (1989)
3 SCC 132 (paras 27 and 28).
5.2 In the alternative, it is further submitted that the
respondent, at present, is aged 75 years of age and he is
being paid Rs. 10,000/- per month w.e.f. 01.04.2012.
6. Heard the learned counsel for the respective parties.
7. At the outset, it is required to be noted that after
departmental proceedings and on conclusion of the
inquiry, the charges and the misconduct alleged against
the respondent have been proved, which has been even
confirmed by the learned Single judge. However,
thereafter, solely on the ground that the Commissioner,
who passed the order of dismissal had no power /
authority to impose the penalty of dismissal on the
respondent, who, at the relevant time, was serving as City
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Engineer, the learned Single Judge quashed the order of
dismissal with all consequential benefits and the same
has been confirmed by the Division Bench.
7.1 Now, insofar as the submission on behalf of the
appellant Corporation that vide Resolution No. 51 dated
20.11.1998, the Commissioner was authorized to take
action against any officer with regard to the lapses and/or
negligence on the part of the officers in various works and
purchases is concerned, on going through the Resolution
No. 51, it appears that though the issue raised was with
regard to the lapses and negligence on the part of the
officers in various works and purchases and was
discussed, however, ultimately, what was resolved was to
empower the Commissioner to take proper and necessary
action against those erring officers, who committed lapses
and carelessness in various works in purchases and take
action as per the rules and regulations, wherever,
necessary. Therefore, the Commissioner was authorized
to take action against the erring officers with respect to
the lapses and carelessness with various works in
purchases only. Therefore, both the learned Single Judge
as well as the Division bench of the High Court have
rightly observed and held that the Resolution No. 51 did
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not authorize and/or confer any power upon the
Commissioner to take action with respect to any other
lapses other than the purchases. However, at the same
time, it is required to be noted that the decision of the
Commissioner was placed before the General Board and
the General Board vide its Resolution No.56 dated
15.12.1998 as amended by subsequent Resolution dated
30.12.1998, ratified the decision of the Commissioner
dismissing the respondent from service. Learned counsel
appearing on behalf of the respondent has relied upon the
decision of this Court in the case of Marathwada
University (supra) and relying upon paragraph 27, it is
submitted that as observed and held by this Court a
decision ab initio void cannot be ratified. However, the
said decision shall not be applicable to the facts of the
case on hand. The decision of the Commissioner cannot
be said to be per se void ab initio . It is to be noted that
even otherwise, in the present case, the General Board
had the power to pass an order of dismissal, which is not
even disputed by the learned counsel appearing on behalf
of the respondent. The decision of the Commissioner was
placed before the General Board and the General Board
had ratified the said decision. Therefore, thereafter, the
dismissal can be said to be an order passed by the
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General Board. At this stage, the decision of this Court in
the case of Pannalal Choudhury (supra) on ratification is
required to be referred to. On discussing the entire law on
ratification, thereafter in paragraph 33, it is observed and
held as under:-
“33. Applying the aforementioned law of
ratification to the facts at hand, even if we
assume for the sake of argument that the
order of dismissal dated 16-8-1996 was
passed by the Principal and Secretary who
had neither any authority to pass such order
under the Rules nor was there any
authorisation given by the BoG in his favour to
pass such order yet in our considered view
when the BoG in their meeting held on 22-8-
1996 approved the previous actions of the
Principal and Secretary in passing the
respondent's dismissal order dated 16-8-
1996, all the irregularities complained of by
the respondent in the proceedings including
the authority exercised by the Principal and
Secretary to dismiss him stood ratified by the
competent authority (Board of Governors)
themselves with retrospective effect from 16-
8-1996 thereby making an invalid act a lawful
one in conformity with the procedure
prescribed in the Rules.”
7.2 Applying the law laid down by this Court in the case
of Pannalal Choudhury (supra) to the facts of the case
on hand, any irregularity complained of by the respondent
on the authority exercised by the Commissioner to
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dismiss him stood ratified by the competent authority
(General Board) thereby making an invalid act a lawful
one in conformity with the procedure prescribed under the
Act and the Rules.
7.3 In that view of the matter, the impugned judgment
and order passed by the Division Bench of the High Court
as well as the learned Single Judge quashing and setting
aside the order of dismissal are unsustainable and
deserve to be quashed and set aside and are accordingly
quashed and set aside. However, at the same time, it is
directed that any amount paid to the respondent, namely,
Rs. 10,000/- per month w.e.f. 01.04.2012 pursuant to the
order passed by this Court be not recovered from the
respondent despite allowing the present appeal and
restoring the order of dismissal.
Present appeal is accordingly allowed. No costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
MAY 02, 2023. [J.B. PARDIWALA]
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