Dr Shailendra Dattatray Gujar vs The State Of Maharashtra Through Gp Os

CNR No : HCBM020172322026

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.17231 OF 2026
Dr. Shailendra Dattatray Gujar, ]
Age : 48 years, Indian Inhabitant, ]
Occupation : Doctor, ]
R/at 1201, B-wing, Sky View Apartment, ]
Building No.146-147, Mother Dairy Road, ]
Kurla-Nehru Nagar, Mumbai - 400070 ] .. Petitioner
Versus
1. The State of Maharashtra, ]
Through Government Pleader (O.S.), ]
High Court, Bombay. ]
]
2. The Municipal Commissioner, ]
Brihanmumbai, MCGM Head Office, ]
Opp. Azad Maidan, Near CSMT Station, ]
Adjacent to Killa Court, Fort, Mumbai. ] .. Respondents
Dr. Uday Warunjikar with Mr. Sumit Kate and Mr. Hrishikesh Nabar,
i/by Mr. Jenish Dinesh Jain, Advocates for the Petitioner.
Smt. Nazia Sheikh, AGP f or Respondent No.1-State of Maharashtra.
Ms. Pooja Khandeparkar with Mr. Pratik Garde, Advocates for
Respondent No.2-MCGM.
CORAM : RAVINDRA V. GHUGE, ACJ. &
GAUTAM A. ANKHAD, J.
TH
DATE : 14 JULY, 2026.
ORAL JUDGMENT : { Per Ravindra V. Ghuge, ACJ. )
1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
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2. The Petitioner has put forth prayer clauses (a) and (b) as
under:-
“a) That this Hon’ble Court be pleased to issue a Writ of
Certiorari or any other appropriate writ, order or
direction under Article 226 of the Constitution of
India, thereby calling for the records and proceedings
pertaining to the suspension order dated 07.05.2026
issued by Respondents herein and after examining the
legality and validity thereof, be pleased to quash and
set aside the suspension order dated 04.05.2026,
within such time as this Hon’ble Court may deem fit;
b) That this Hon’ble Court be pleased to issue a Writ of
Mandamus or any other appropriate writ, order of
direction thereby directing the Respondents to
forthwith revoke the suspension of the Petitioner and
permit the Petitioner to resume duties on the post held
prior to the impugned suspension order dated
04.05.2026, within such time as this Hon’ble Court
may deem fit.”
SUBMISSIONS OF THE PETITIONER
3. The averments and submissions of the Petitioner can be
summarized as under:-
(a) The Petitioner was working as a Medical Officer at the
time of issuance of the suspension order dated 07/05/2026.
(b) He was deployed in the ‘L’ Ward upto 04/04/2025.
Thereafter he was transferred to the ‘H-East’ Ward
Dispensary by the Transfer Order dated 04/04/2025.
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(c) A complaint was made by a former Parliamentarian dated
01/12/2025 to the Assistant Commissioner of Respondent
No.2 Corporation, stating therein that a First Information
Report has been filed with Kurla Police Station on
10/01/2026 for the offences under Sections 316, 336, 337
and 338 of the Bharatiya Nyaya Sanhita, 2023 by
Dr. Satish Badgire, Medical Health Officer of the ‘L’ Ward.
There are no allegations against the Petitioner.
(d) The Petitioner is not an Accused in the First Information
Report.
(e) On 02/05/2026, which is before the issuance of the
suspension order of the Petitioner, the concerned former
Parliamentarian wrote a letter to the Senior Inspector of
Azad Maidan Police Station, in which, Clause (6) mentions
that the Petitioner has been suspended. A copy of the said
letter is placed on record at page 60.
(f) A news item by Times News Network is placed at page 61
which indicates that some of the Medical Officers have
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protested against the former Parliamentarian who is said to
have alleged irregularities in 87,000 Birth Certificates. The
BMC Medical Health Officer has protested by saying that
this is a harassment of the Medical Officers of the
Corporation who are subjected to unnecessary action.
(g) On 07/05/2026, the Corporation issued an order of
suspension of the Petitioner with retrospective effect from
04/05/2026, in the backdrop of the claim made by the ex-
Parliamentarian that the Petitioner has already been
suspended on 02/05/2026.
SUBMISSIONS OF THE CORPORATION
4. The learned Advocate for the Corporation, who has relied
upon the affidavit-in-reply dated 13/07/2026 along with certain
documents, submits on instructions as under:-
(a) A preliminary enquiry was sought to be conducted against
the Petitioner on three counts. Sanction was granted on
06/10/2025.
(b) The Office Memorandum mentioning the Charges, was
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served upon the Petitioner on 31/12/2025, setting out three
Charges.
(c) The Petitioner entered a response denying all the Charges,
on 09/01/2026.
(d) After the summary enquiry, a proposal dated 02/03/2026
was put forth before the Corporation that, (i) a minor
punishment is not sufficient and permission for cancellation
of the earlier Office Memorandum of summary enquiry and
the Charges, be granted; (ii) so that an Additional Charge
can be included in a fresh Charge-Sheet for imposition of a
major punishment which requires a full-fledged
departmental enquiry and, (iii) for appointment of an
independent Enquiry Officer.
(e) To avoid two enquiries, this step is said to have been taken
by the Corporation.
(f) Sanction to cancel the earlier Office Memorandum as well
as the summary enquiry and the Charge-Sheet and issue a
fresh Memorandum adding one Charge for putting forth
four Charges, was granted on 09/03/2026.
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(g) A proposal seeking approval of the Officer to be appointed
as an Investigating Officer and Presenting Officer, is said to
be pending.
(h) On 07/05/2026, the order of suspension has been issued to
the Petitioner.
(i) The order of suspension dated 07/05/2026 was on account
of a decision taken by the Commissioner on 30/04/2026, by
which, the suspension was given a retrospective effect from
04/05/2026.
OUR ANALYSIS AND CONCLUSIONS
5. The learned Advocate for the Petitioner has relied upon
‘Part-II(B)-Preliminary Enquiry Procedure’, of the Brihan mumbai
Municipal Corporation Services (Discipline and Appeal) Rules, 2015.
The learned Advocate for the Corporation relies upon ‘Part-II(A)-
Suspension’ of the said Rules. For ready reference, we are reproducing
‘Part-II(A)’ and ‘Part-II(B)’ as under:-
PART II(A) SUSPENSION
4(A) Suspension -
(1) The Appointing Authority or any Authority to which the
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Appointing Authority is subordinate or the Disciplinary
Authority or any other Authority empowered in that behalf
by the Municipal Commissioner by General or Special order
may place a Corporation Employee under Suspension:-
(a) where a disciplinary proceeding against him is
contemplated or is pending, or
(b) where in the opinion of the Authority aforesaid, he has
engaged himself in activities prejudicial to the interest
of the affairs of the Corporation, or
(c) where a case against him in respect of any criminal
offence is under investigation, enquiry or trial:
Provided that, where the order of suspension is made
by an Authority lower than the Appointing Authority,
such Authority shall forthwith report to the Appointing
Authority, the circumstances in which the order was
made and such suspension, shall come to an end if not
confirmed by the Appointing Authority within a period
of six months from the date of such suspension.
(2) A Corporation Employee shall be deemed to have been
placed under suspension by an order of Appointing
Authority:-
(a) with effect from the date of his detention, if he is
detained in police or judicial custody, whether on a
criminal charge or otherwise, for a period exceeding
Forty-Eight hours;
(b) with effect from the date of his conviction, if in the
event of a conviction for an offence, he is sentenced to
a term of imprisonment exceeding Forty-Eight hours
and is not forthwith Dismissed or Removed from
service consequent to such conviction.
Explanation: the period of Forty-Eight hours referred
to in clause (b) of this Sub-rule shall be computed from
the commencement of the imprisonment after the
conviction and for this purpose, intermittent periods of
imprisonment. if any, shall also be taken into account.
(3) Where a Penalty of Dismissal or Removal from service
imposed upon a Corporation Employee under suspension
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is set aside in Appeal or on Review under these Rules,
and the case is remitted for further Enquiry or action or
with any other directions, the order of his suspension
shall be deemed to have been continued in force on and
from the date of the original order of Dismissal or
Removal from service and shall remain in force until
further orders.
(4) Where a Penalty of Dismissal or Removal from service
imposed upon a Corporation Employee is set aside or
declared or rendered void in consequence of, or by, a
decision of Court of Law, and the Disciplinary Authority,
on a consideration of the circumstances of the case,
decides to hold a further Enquiry against him on the
allegations on which the Penalty of Dismissal or Removal
from service was originally imposed, the Corporation
Employee shall be deemed to have been placed under
suspension by the Appointing Authority from the date of
original order of Dismissal or Removal from service and
shall continue to remain under suspension, till further
orders.
Provided that, no such further Enquiry shall be ordered
unless it is intended to meet a situation where the court
has passed an order purely on technical grounds without
going into the merits of the case.
(5)(a)An order of suspension made or deemed to have been
made under this Rule shall continue to remain in force
until it is modified or revoked by the Authority competent
to do so.
(b)Where a Corporation Employee is suspended or is
deemed to have been suspended (whether in connection
with any disciplinary proceeding or otherwise) and any
other disciplinary proceeding is commenced against him
during the continuation of that suspension, the Authority
competent to place him under suspension may, for the
reasons to be recorded by it in writing, direct that the
Corporation Employee shall continue to be under
suspension until the termination of all or any of such
proceedings.
(c) An order of suspension made or deemed to have been
made under this Rule may at any time be modified or
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revoked by the Authority which made or is deemed to
have made the order or by any Authority to which that
Authority is subordinate.
Provided that, where a criminal offence is registered
against a Corporation Employee, the recommendation of
the Suspension Review Committee constituted by the
Corporation in this behalf, shall be obtained by the
Authority which has made or is deemed to have made the
suspension order or by any Authority to which that
Authority is subordinate, before revoking or modifying the
order of suspension of such Corporation Employee.
Explanation: The Municipal Commissioner or any
Authority/Officer empowered by him can review the
suspension of the Corporation Employee involved in a
criminal or Anti-Corruption case. The meeting of the
subject Review Committee will be convened every six
months. Similarly, if in any specific case the Head of the
Department puts forth any extraordinary reason, in
accordance with that the Municipal Commissioner or any
Authority/Officer empowered by him may review the
suspension of such Corporation Employee and may
revoke it.
Before according sanction for prosecution of Public
Servant in the Competent Court of Law in Criminal
Cases, if the Municipal Commissioner is of the opinion
that on the basis of the documentary evidence furnished
by the Investigating Officer/Authority, there is Dereliction
of Duty/Gross Misconduct on the part of that Public
Servant and there is sufficient prima-facie evidence for
prosecution, he may accord sanction for prosecution.
Even though, investigation by the Police Authorities is
not over or chargesheet is not filed within specific limit
according to the prevalent Acts or Rules. suspension
could be reviewed.
Where the investigation by the Police Authorities is over
or the chargesheet is filed, barring the grave criminal
cases, the suspension could be reviewed, considering the
direct or otherwise relation of the matter with the
Corporation, gravity of the charge, the involvement of the
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Public Servant, therein is purely individual or otherwise,
on the basis of the evidence in the matter.
PART II(B) PRELIMINARY ENQUIRY
4(B) Preliminary Enquiry-
(1) Before a Full Fledged Departmental Enquiry/
Enquiry under Summary Procedure is held or
ordered to be held it shall be considered by the
Disciplinary Authority, whether a Preliminary
Enquiry is necessary or desirable.
(2) If in the opinion of the Disciplinary Authority, in
cases where allegation made against the
Corporation Employee are grave or are such as are
likely to entitle a Major Penalty, a Preliminary
Enquiry should be considered as desirable.
(3) Where there has been an Investigation or Enquiry by
the Police, such Investigation or Enquiry by the
Police may be considered as equivalent to a
Preliminary Enquiry and no fresh or further
Preliminary Enquiry may be held.
(4) The Preliminary Enquiry should be held by the
Enquiry Officer duly authorised by the Municipal
Commissioner or Disciplinary Authority.
(5) On receipt of the report of the Preliminary Enquiry
or on perusal and consideration of other material
available in the case, the Competent Authority
should decide: -
(a) whether a prima-facie case exists for a
Departmental Enquiry;
(b) whether the Corporation Employee/s concerned
should be suspended pending a Departmental
Enquiry and;
(c) whether the services of Corporation
Employee/s could be and should be terminated
without a Departmental Enquiry.
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6. The learned Advocate for the Municipal Corporation
( ‘ Corporation’ ) has canvassed that the suspension order dated
07/05/2026 is issued by the Appointing Authority under Rule 4(A) and
its sub-clauses. She has stressed upon sub-clauses 1(a), 1(c) and the
proviso thereunder, to support the contention that the Corporation has
suspended the Petitioner pending disciplinary proceedings. It is,
therefore, canvassed that Part-II(B), more particularly, Rule 4(B) and its
sub-clauses, would not be applicable in the present case.
7. We have gone through Rule 4(A) and Rule 4(B) and their
sub-clauses, threadbare. A single glance at these provisions would
indicate that Rule 4(A) is with regard to the power entrusted in a
particular Authority to issue the order of suspension of an employee,
with the fetters that a person can be suspended only when a disciplinary
proceeding is contemplated or is pending. In relation to the case before
us and in the opinion of the empowered Authority, the employee should
have engaged in activities prejudicial to the interest of the affairs of the
Corporation. We are not concerned with Rule 4(A)(2) which pertains to a
deeming provision of suspension; if a person is detained by the Police in
police custody, remand or judicial custody on criminal charges having
been pressed against him, for a period exceeding forty-eight hours or in
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the event of a conviction. As such, in our view, Rule 4(A) provides the
authority to an officer to issue the suspension order and the condition
being that the employee should be suspended only if there is a
disciplinary proceeding pending against him or is contemplated. Per
contra, Rule 4(B) contemplates the circumstances in which an order of
suspension can be issued.
8. Rule 4(B) mandates a preliminary enquiry to be conducted
and if the preliminary enquiry indicates enough material which would
convince the Competent Authority that the material is enough to conduct
a departmental enquiry on its prima facie appreciation, the concerned
Competent Authority would rely on the report of the preliminary enquiry,
consider the material made available through the preliminary enquiry
and then draw his conclusions under sub-clause (5) as follows:-
(a) Whether a prima-facie case exists for a departmental
enquiry?;
(b) Whether the Corporation Employee/s concerned
should be suspended pending the departmental
enquiry? and;
(c) Whether the services of the Corporation Employee/s
could be and should be terminated without a
departmental enquiry?
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9. In view of the above, we are of the opinion that the
Corporation is misplaced in contending that Rule 4(A) is a stand-alone
provision which gives unfettered powers to an authorized Disciplinary
Authority or Appointing Authority to suspend an employee, without the
compliance of Rule 4(B)(5). The language used in Rule 4(A) is clearly
indicative of the empowerment of an authority to exercise the power of
suspension. In the absence of Rule 4(A), Rule 4(B) could not have been
implemented, since Rule 4(B) prescribes a procedure to be followed
when an employee can be suspended pending a departmental enquiry.
10. The golden rule of interpretation of Statutes or provisions is
that a meaning drawn from one provision should not render another
provision, nugatory or otiose . In short, the interpretation of Rule 4(A)
should not do violence to Rule 4(B). We find from Rule 4(A) that the
suspension is always pending disciplinary proceedings or is on the arrest
of an employee who is behind bars for more than forty-eight hours or his
conviction renders him to suffer a sentence exceeding forty-eight hours
in imprisonment. As such, the powers of the Competent Authority to
suspend an employee under Rule 4(A), has two dimensions. One being
the source of power of an Authority to suspend an employee and, the
other being that he can suspend the employee without the disciplinary
enquiry only in particular circumstances.
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11. The above aspect is relevant to the case before us. Rule 4(B)
pre-supposes that if the above compelling circumstances to suspend an
employee without a preliminary enquiry do not exist u/Rule 4(A), Rule
4(B) would then come into play. Rule 4(B) then mandates the manner in
which a preliminary enquiry should be first initiated, material should be
collected and the Preliminary Enquiry Officer should submit his report
along with such material which needs to be considered, by the Municipal
Commissioner or the Disciplinary Authority. Then sub-clause (5) comes
into play at this stage. After the Competent Authority receives the report
of the preliminary enquiry and peruses and analyses the material before
him, he is expected to arrive at a specific decision under sub-clauses 5(a)
and (b). The first decision that the Competent Authority has to take is (i)
whether a prima facie case exists for a departmental enquiry? and; (ii)
whether the Corporation Employee concerned should be suspended
pending a departmental enquiry?
12. The Corporation submits that the suspension awarded to the
Petitioner is at pre-4(B)(4) stage. The authorization dated 09/03/2026
indicates that the Corporation had already formed an opinion that the
Petitioner has committed a major misconduct, a full-fledged
departmental enquiry has to be conducted and therefore, by adding a new
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Charge to the earlier 3 Charges, a fresh preliminary enquiry was to be
initiated. If this decision is arrived at, it should have been at the stage of
sub-clause (5) of Rule 4(B), which means that the Authority must first
peruse the preliminary enquiry report and the material available and then
come to a decision that a departmental enquiry needs to be conducted
and the employee needs to be suspended.
13. In view of the above, it is apparent from the sequence of
events that an undue haste has driven the Corporation to suspend the
Petitioner on 07/05/2026. Earlier, a preliminary enquiry was initiated by
the proposal dated 06/10/2025. After five months, on 09/03/2026, the
preliminary enquiry report is discarded, the earlier Memorandum of
Charges is discarded and a fresh permission is sought by the Corporation
to issue a new Memorandum of Charges by including an additional
Charge which is admittedly the Fourth Charge. This, therefore, indicates
that the Corporation has taken a few steps backwards and gone to the
stage of Rule 4(B)(2) which is, “if in the opinion of the Disciplinary
Authority, in cases where allegation made against the Corporation
Employee are grave or are such as are likely to entitle a Major Penalty,
a Preliminary Enquiry should be considered as desirable” . If there is no
police investigation involved, sub-rule (3) has to be overruled. If there is
any police enquiry going on, the investigation or enquiry by the Police
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may also be considered as equivalent to a preliminary enquiry and no
fresh/further preliminary enquiry may be held. This is not the stand taken
by the Corporation before us. It has admittedly not relied upon the police
enquiry papers. The Corporation travelled to the stage of Rule 4(B)(4),
then dropped the preliminary enquiry and the Memorandum of Charges
and reverted back to sub-rule (2) below Rule 4(B) on 09/3/2026.
14. The Corporation has canvassed before us that they found it
appropriate to suspend the employee/Petitioner under Rule 4(A). Rule
4(A), as discussed above, is a Rule which defines the Authority who can
exercise jurisdiction and power to suspend. Rule 4(A) is to be read
conjointly with Rule 4(B), since Rule 4(A) empowers an Authority to
suspend an employee. If that was a stand-alone Rule sufficient to
suspend an employee without any further steps or action, Rules 4(B) (4
and 5) would not have been introduced by the Corporation. If we are to
accept the contention of the Corporation that Rule 4(A) empowers the
Corporation to suspend an employee pending disciplinary proceedings as
a stand-alone Rule, it would render Rule 4(B)(5) otiose . Both these Rules
are to co-exist as they operate in different fields. It cannot be lost sight of
that these Rules are admittedly binding on the Corporation. Rule 4(B) is
aimed at defining the steps to be initiated before suspending an
employee. In our view, this Rule and especially sub-rule 5(b) is a
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safeguard against unnecessary suspension of an employee pending
disciplinary proceedings.
15. We have tested the submissions made on behalf of the
Corporation even on the foundation of, whether, after the issuance fo the
fresh Memorandum of four Charges, a preliminary enquiry was
conducted. The record reveals that no such preliminary enquiry has been
conducted. We have also tested the submissions on the premise as to
whether, the police enquiry reports or material under Rule 4(B)(3) had
been pressed into service by the Corporation. Here again the Corporation
has not taken this stand. As such, by issuing a fresh Memorandum of
Charges, the Corporation has reverted to Rules 4(B)(1) and (2), skipped
sub-rules (3), (4) and (5) and without there being any decision after such
preliminary enquiry, the Corporation had decided to conduct a full-
fledged enquiry and hastily suspended the Petitioner without following
sub-rule (5) of Rule 4(B).
16. In this backdrop, we have adverted to the submission of the
learned Advocate for the Petitioner that a Parliamentarian proclaimed his
suspension on 02/07/2026. The approval of the Corporation to drop the
first Memorandum of Charges and re-frame a new Memorandum of
Charges, thereby reverting back to Rule 4(B)(2), was granted on
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09/03/2026. Thereafter, the Corporation should have proceeded to act in
terms of Rules 4(B) (4 and 5). The first Memorandum of Charges was
dropped and a fresh Memorandum of Charges was issued on 28/04/2026
and was received by the Petitioner on 18/05/2026. This means that the
Petitioner was suspended on 07/05/2026, after the first Charge-Sheet and
the preliminary enquiry was dropped, which was communicated to him,
and before he could even realise that a fresh Charge-Sheet is being
pressed against him. The learned Advocate for the Petitioner, therefore,
could be well-placed in his submissions that because a former
Parliamentarian proclaimed the suspension of the Petitioner on
07/05/2026, that the Corporation was driven to act in undue haste.
17. In view of the above, though we agree with the contention
of the Corporation that Rule 4(A) gives power to the Competent
Authority to suspend an employee, we are unable to accept the
submission that the Rule 4(A) has to be read in isolation and not in
tandem with Rule 4(B). We conclude that as Rule 4(A) defines the
powers of the Authority to suspend a Corporation Employee pending
disciplinary proceedings, it is Rule 4(B) which defines the manner in
which such suspension could be effected pending disciplinary
proceedings. We clarify that this interpretation is in relation to the cause
before us and not in relation to the deeming provision of suspension or
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police action or conviction, for which, Rule 4(A)(2) and its sub-clauses
thereafter, would have independent operation in relation to a remand of
an employee to police custody or judicial custody or conviction, all
exceeding forty-eight hours.
18. In view of the above, this Petition is partly allowed . The
impugned order of suspension which is passed without following the due
procedure as mandated by the Brihanmumbai Municipal Corporation
Services (Discipline and Appeal) Rules, 2015, stands quashed and set
aside. The Petitioner would stand reinstated in service and would be
entitled for full salary for the said period.
19. Needless to state, the Corporation is within its rights to
commence the procedure under Rule 4(B), more particularly sub-rule (4)
onwards, if the new Charge-Sheet dated 28/04/2026 is to be taken to a
logical end. Whatever are the powers of the Corporation circumscribed
by Rule 4(B), whatever are the rights of the Petitioner under the Service
Regulations, would not be impinged by this judgment, which is restricted
to the facts and circumstances recorded above.
[ GAUTAM A. ANKHAD, J. ] [ ACTING CHIEF JUSTICE ]
Digitally
signed by
SUNNY
ANKUSHRAO
THOTE
Date:
2026.07.21
16:59:52
+0530
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ANKUSHRAO
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THOTE
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