Sanjay G. Gharat v. Kalyan Dombivali Municipal Corporation & State of Maharashtra

8 On 6th February, 2015, the Government issued a G R, constituting a Selection Committee for selecting suitable person to the post of Additional Municipal Commissioner for KDMC.

9 On 4th April, 2015, Petitioner’s name was considered by the Selection Committee appointed by the Respondent No.2 – State Government.

10 It is submitted that due to the excellent service record, Petitioner’s name was recommended for appointment to the post of S.R.JOSHI 4 of 26 Additional Municipal Commissioner in Respondent No.1- Corporation. The Selection Committee on 5th May, 2015 passed resolution, recommending that Petitioner be appointed by the Government of Maharashtra as Additional Municipal Commissioner of KDMC.

11 Petitioner came to be appointed as Additional Municipal Commissioner of the Kalyan Dombivali Municipal Corporation by Respondent No.2 – State Government on 2nd June, 2015 pursuant to order passed by the UDD of the Respondent-State and GR of even date issued by the State.

12 On 23rd June, 2015, Petitioner submitted his joining report to the Principal Secretary of the UDD, Government of Maharashtra. On 8th October, 2015, the Managing Committee of the Respondent-Corporation sent report to the UDD, informing that Petitioner was appointed as Additional Municipal Commissioner by the Government Resolution and that he had joined in that post and, therefore, his pay for the post of Additional Municipal Commissioner be fixed according to the Government Rules, after which, the Government proposed to fix the pay scale of the Petitioner in the scale of 15,600-39,200/-. It is submitted on behalf of the Petitioner that in Affidavit in reply dated 18th November, 2017 filed by Respondent No.2 – State Government in Public Interest Litigation No.183 of 2016, it was submitted that the Petitioner was selected and appointed by the Government of Maharashtra under Section 39A of the MMC Act. In support of his contention, learned Counsel for the Petitioner has relied on paragraphs No. 5 to 8 of the said affidavit in reply dated 18th November 2017 which read thus:- “5. In the same way the procedure is defined for the selection of the eligible officer of the concerned Municipal Corporation for the post of Additional Municipal Commissioner. For A-Class S.R.JOSHI 5 of 26 Municipal Corporation out of 2 post 1 post is filed by the posting of IAS Officer. In case of non-availability of IAS Officer the post shall be filled by the eligible officer from the Statement Government Service and 1 post shall be filed by the officer in the State Services and 1 post from the concerned Municipal Corporation Service. For C- Class Municipal Corporation out of 2 post 1 post is by the Officer in the State Services and 1 post from the concerned Municipal Corporation Service.

6. The Municipal Commissioner of the concerned Municipal Corporation should submit the proposal to the Government for appointment of the eligible officers as per the above mentioned norms in the ratio of 1:5. A selection committee should scrutinize that proposal and recommend the name of the officer for the post of Additional Municipal commissioner to the Government.

7. The procedure is followed for the appointment of the post of Additional Municipal Commissioner, Kalyan Dombivali Municipal Corporation (KDMC). Government has received the proposal of the Commissioner KDMC dated 4/4/2015. With the service information of Deputy Municipal Commissioner of Kalyan Dombivali Municipal Corporation. Though the Commissioner has commented in the said proposal that none of the officer in the corporation service is eligible for the post of Additional Municipal Commissioner. In the meeting of scrutiny committee dated 5/5/2015 Municipal Commissioner, Kalayan Dombivali Municipal Corporation (KDMC) has made it clear that documentary evidence or papers of the complaints about the officers under consideration are not available but their confidential reports are available. Considering this fact committee has decided to evaluate the eligibility of the concerned officers as per the annual confidential reports for the recommendation to the post of Additional Municipal Commissioner. All these facts are mentioned clearly in the minutes of the committee meeting dated 05.05.2015.

8. As per the decision taken by the committee in its meeting dated 05.05.2015, the recommendation proposal of the appointment on the post of Additional Municipal Commissioner, KDMC of Shri Sanjay Gharat was submitted for the final approval of the Government. The said proposal has been approved by the competent authority and appointment order is issued by the Government in the Urban Development Department on 02.06.2015.” S.R.JOSHI 6 of 26

13 On 14th June, 2018, FIR No. 34 of 2018 under Sections 7, 8, 13(1)(d) along with Section13(2) of the Prevention of Corruption Act, 1988 came to be registered against Petitioner. He was arrested on 14th June, 2018 and was in custody till 17th June, 2019 and was released on bail on 17th June, 2019.

14 In accordance with Section 56 of the MMC Act and Rule 4(1) of the Maharashtra Civil Service Rules, on 18th June, 2018, Commissioner of Respondent No.1- Corporation issued suspension order of the Petitioner which was ratified by the Respondent No.1 – Corporation in its general body meeting dated 7th July, 2018. On 20th June, 2019, the general body of the Corporation has accorded sanction to hold Departmental enquiry against the Petitioner in its meeting. The Commissioner of Respondent – Corporation has issued a notice of departmental enquiry dated 7th August, 2019 and called upon the Petitioner to appear before the enquiry officer appointed by the Corporation. Petitioner has by his letter dated 16th August, 2019 raised objections to the notice of departmental enquiry. Earlier Petitioner had also made a representation on 11th February, 2019 to the Respondent No.1 and later representation dated 19th April, 2019 to the Respondent No.2 but there had been no favourable response to the same.

15 It is submitted that Petitioner had also approached the Commissioner of the Respondent – Corporation on various occasions, expecting that the suspension order would be recalled and he would be re-instated but the same was of no avail.

16 Earlier, it has been specifically admitted by the Respondent No.1 -Corporation that the first meeting of the Suspension Review Committee was held on 26th August, 2019. However, the case of the S.R.JOSHI 7 of 26 Petitioner was deferred during the said Review Meeting. It is submitted that while this Petition was pending, the Review Committee of the Municipal Corporation has on 21st January, 2021 extended the suspension of the Petitioner for one year.

17 It is submitted by Shri Godbole, the learned Counsel for the Petitioner that appointment of Petitioner is clearly under Section 39-A of the MMC Act. He refers to the GR dated 11th November, 2011 as well as GR dated 6th January, 2015, constituting the Selection Committee, the resolution of the Selection Committee dated 5th May, 2016, recommending the name of the Petitioner, Order dated 2nd June, 2015 passed by UDD of the State Government, containing the signatures of the CM who was also the UDD Minister, GR dated 2nd June, 2015 appointing Petitioner as Additional Municipal Commissioner. He submits that the Government had also fixed the pay scale of the Petitioner. He also submits that the affidavit in the PIL No.183 clearly states that Petitioner has been appointed by the State Government under Section 39A. According to him, therefore, neither the Commissioner nor the KDMC were appointing authority and, therefore, as per settled law, have no authority to suspend the Petitioner or to initiate proceedings of departmental enquiry against him. In short it is contended that the Petitioner having been appointed by the Government of Maharashtra, it is the Government of Maharashtra which is the appointing authority and the Respondent Corporation has no jurisdiction to pass any kind of orders of suspension nor initiate departmental enquiry against the Petitioner.

18 The learned counsel for the Petitioner further submits that there is a marked distinction between the language used by the Legislature in Section 49 and Section 39A of the MMC Act; he submits that whereas an Assistant Municipal Commissioner has to perform duties S.R.JOSHI 8 of 26 and functions which are deputed/ delegated to him by the Municipal Commissioner, under Section 39A, Additional Municipal Commissioner can perform all the functions and powers of the Municipal Commissioner and is subject to all the obligations and liabilities as that of the Municipal Commissioner.

19 Learned Counsel for the Petitioner would further submit that section 39A of the MMC Act is not capable of two interpretations; the legislature has consciously used the word “appointment” in the said Section which clearly shows that the State Government will appoint the Additional Commissioner. He submits that even report of the Selection Committee, the order of the Hon’ble CM as Minister of UDD, GR dated 2nd June, 2015, letter of the Managing Committee of the Respondent- Corporation dated 8th October, 2015 sent to the Government of Maharashtra, stating that the Government has appointed the Petitioner in the post of the Additional Municipal Commissioner, the Identity Card issued to the Petitioner by the UDD, Government of Maharashtra, all indicate that the Petitioner is a Government employee. The State Government and the KDMC are, therefore, clearly estopped from contending that Petitioner is not an employee of the Government of Maharashtra. He submits that though Petitioner was initially appointed as Assistant Municipal Commissioner and then promoted as Deputy Municipal Commissioner – both of which are employees of the Respondent-Corporation, however, once he has been appointed as Additional Municipal Commissioner by the Government, he has ceased to be an employee of the Municipal Corporation and has become State Government employee.

20 Learned Counsel Mr. Godbole, therefore, submits that in view of Section 39-A of the MMC Act 1949 and the affidavit dated S.R.JOSHI 9 of 26 18th September, 2017 filed by on behalf of Urban Development Department of the Government of Maharashtra in PIL No. 183 of 2016, stating that Petitioner was selected and appointed by the Government of Maharashtra under Section 39-A, the suspension order dated 18th June, 2018 issued by the Commissioner which was approved by the general body of the Respondent- Corporation by resolution dated 7th July, 2018 is void, non-est and without jurisdiction inasmuch as only the appointing authority viz: the State Government has power to suspend or remove and, therefore, the entire action is without jurisdiction and the Petition deserves to be allowed.

21 The learned counsel for the Petitioner submits that in any case, in view of the office memorandum issued by the Government of India, which has adopted GR dated 9th June, 2019 ( Exh. BB pages 135 to 139 to the Petition) and in view of the Judgment of the Apex Court in the case of the Ajay Kumar Choudhary v/s. Union of India & Another (2015) (7) SCC-291 followed in the case of State of Tamil Nadu v/s. Pramod Kumar (2018) (17) SCC-677, since the Petitioner was not served with the charge-sheet for disciplinary enquiry within 90 days, the order of suspension ought to have been revoked after the expiry of 90 days which has not yet been done. He would also submit that in view of the principle laid down in the Supreme Court’s decision in the case of Ajay Kumar Choudhary v/s. Union of India & Another (2015) 7 SCC 291 unless a suspension order is followed by the Drawing up/ formulation of charges/ charge sheet, duly served upon the delinquent officer/ employee, the suspension cannot be extended unless there is a reasoned order for such extension or suspension.

22 The learned counsel for the Petitioner submits that in this case, the order of suspension is dated 18th June, 2018 but the undated S.R.JOSHI 10 of 26 charge-sheet has been filed on 7th August, 2019. He submits that even the departmental enquiry has commenced by issuance of a notice dated 7th August, 2019 pursuant to a general body meeting dated 20th June, 2019, all of which is well beyond a period of one year from the date of suspension of the Petitioner.

23 The learned counsel for the Petitioner submits that on both these counts, the impugned suspension order dated 18th June, 2019 as well as the impugned notice of departmental enquiry dated 7th August, 2019 issued by Respondent No.1 Corporation deserve to be quashed and set aside along with the connected General Body Resolutions.

24 Learned Counsel for the Petitioner submits that the reason to refuse to cancel the order of suspension as indicated in the Affidavit dated 21st January, 2021 viz. the pendency of the Writ Petition and the alleged non-co-operation by the Petitioner in respect of the earlier departmental enquiry are both unsustainable.

25 Per contra, Learned Counsel for the Respondent Corporation, Mr. A.S.Rao relies upon the Affidavit in reply dated 5th January, 2021 as well as the Additional Affidavit dated 21st January, 2021. He submits that the Petitioner is challenging the orders of suspension as well as initiation of departmental enquiry against the Petitioner on the ground that the Corporation does not have locus standi to issue the said orders of suspension and initiation of departmental enquiry in view of Section 39A of the MMC Act is misconceived, devoid of merits, unsustainable in law and liable to be dismissed with costs. He submits that the Petitioner was appointed as Assistant Municipal Commissioner in the year 1995 and thereafter promoted to the post of Deputy Municipal Commissioner as per the provision of Section 45(3) of the MMC Act. S.R.JOSHI 11 of 26

26 Thereafter, in view of the newly added Section 39A to the MMC Act, the Petitioner was promoted as Additional Municipal Commissioner as promotion to the said post can only be done by the Government of Maharashtra as per the mandate of Section 39A of the MMC Act. He submits that the suspension order and the notice of disciplinary enquiry is in accordance with Section 39A of the MMC Act.

27 The Respondent Corporation states that the Government of Maharashtra vide its letter dated 03.11.2020 and 19.11.2020 has made it clear that the Petitioner is an officer on the establishment of the KDMC. It has been further clarified that the Corporation is competent to take decision in the anti- corruption matter in respect of the Petitioner. That the grounds raised by the Petitioner are illusory and not contemplated by the provisions of Section 39A of the MMC Act nor intended by the legislature while inserting the said provision. Ld. Counsel further submits that in view of the COVID situation, no meeting of the Review Committee could be held till 09.09.2020. In the meeting on 09.9.2020, it was recorded that considering that Petitioner had filed the present Writ Petition challenging the very power of the Corporation to initiate disciplinary action, it was decided to obtain appropriate direction from the State Government on the question of controversy regarding appointing authority and therefore the suspension of the Petitioner was continued. He submits that clarification was sought from Respondent No.2-Government of Maharashtra by letter dated 17.9.2020 and the Government by letter dated 3.11.2020 has informed that Petitioner is officer of the Corporation and the Corporation is empowered to take decision on the service aspects of the Petitioner. Ld. Counsel submits that the Petitioner is an employee of the Corporation. It is also submitted on behalf of the Corporation that earlier on two occasions when departmental enquiry was initiated against S.R.JOSHI 12 of 26 the Petitioner, the report of the Enquiry Officer discloses that notices of hearing of the enquiry were returned unaccepted; supplementary charge sheet in respect of that earlier enquiry was also returned unaccepted, after which the said enquiry was requested by the Petitioner vide representation dated 26.4.2016 to be closed. It is submitted by Shri Rao that the said previous enquiry is also pending which discloses the conduct of the Petitioner that he is not co-operating and therefore the Review Committee recommended extension of the suspension of the Petitioner in its meeting dated 21.1.2021 as G.R dated 14.12.2011 provides that the past service record of the Officer under suspension sought to be reviewed should be taken into account. He, therefore, submits that the orders, notices and general body resolutions under challenge are perfectly legal and proper and an exercise of the powers conferred on the Respondent Corporation under the MMC Act as well as the Maharashtra Civil Service Rules as adopted by the Corporation and that the Petition be dismissed with exemplary costs.

28 Learned AGP Mr. Panchpor, has taken us through the affidavit in reply dated 6th January, 2021 filed on behalf of Respondent No.2- State. He submits that Petitioner has been appointed to the post of Additional Municipal Commissioner by Respondent- Corporation and as such, is subject to the same liability, restrictions and terms and conditions of services to which the Commissioner is subjected to as per the provisions of the MMC Act. In support of his contention, he refers to Section 39-A(2) of the MMC Act. He submits that, therefore, after following due procedure under the MMC Act, Petitioner has been suspended by the Respondent- Corporation and no fault can be found with it. S.R.JOSHI 13 of 26

29 The learned AGP also submits that terms and conditions as per provisions of MMC Act as applicable to the Commissioner, will also be applicable to such appointed Additional Commissioner. He further submits that by Government Notification dated 11th November, 2011, the State Government has created one post each of Additional Commissioner in different Municipal Corporation, including Respondent No.1 i.e. Kalyan Dombivali Municipal Corporation. He submits that these posts would be filled up by such Officers while on deputation with the Corporation and will be paid pay and allowances from the funds of the Municipal Corporation as is being paid to the Commissioner of Municipal Corporation. It is submitted that since Respondent No.1 is a ‘D’ class Municipal Corporation, the said post of Additional Municipal Commissioner was available for being filled up on deputation only. It is 13 submitted that by GR dated 6th January, 2015 in exercise of power under13 Section 39-A, an additional post has been created in all the Corporations and the procedure for appointment of one more post of Additional Commissioner to be filled up by the employees of that Corporation, serving as Deputy Commissioner or in equivalent posts as well as technical and accounts division to be considered on the basis of excellent service record and capacity by way of selection. That this has been done with the intention of giving an opportunity to the employees of the Corporation having outstanding and excellent service record and capacity. It is stated that the employees so appointed are not appointed by the Government as Government servant. He relies upon an office note of the Urban Development Department (Ex. G to the Petition at page 57) in respect of the proposal sent by the Commissioner of Respondent No.1 stating that out of two posts, only one was to be filled by an Officer from Government service on deputation and other post from the officers from the said Corporation by way of selection. It is also stated S.R.JOSHI 14 of 26 in the affidavit that the other posts can only be filled by deputation from the Government services, in case no officer of the Corporation is found suitable for the same. Minutes of the meeting dated 5th May, 2015 (Ex. I to Petition ) (page 62) is referred to in support of the same and it is submitted that the Committee has also considered that one post of the Additional Commissioner has to be filled on deputation from Government Officers and the other by way of selection and appointment from the Corporation. The Committee has considered the records of the candidates and recommended the name of the Petitioner for being appointed as Additional Commissioner. He submits that the Petitioner has never been considered for selection by the Government and has been appointed by the Corporation as the Government has never considered him as Government Officer. He has never been sent on deputation and there is no such post of Additional Municipal Commissioner in any Government cadre.

30 Based on affidavit in reply, the learned AGP further submitted that considering the pros and cons and the service record of the petitioner, it was decided that the petitioner should be appointed as per the recommendation of the Selection Committee of the Government. The learned AGP submits that though it is mentioned in Exh.J that the petitioner has been appointed and there is direction to get the petitioner to join as Additional Commissioner, that the said Government order dated 2.6.2015 is in the form of a recommendation and it cannot be construed as appointment of Government Officer as the Petitioner was always an employee of the Corporation. In the light of the policy to appoint one Officer from the Corporation he remained as Officer of the Corporation and was never appointed as an employee of the Government. It is submitted that though the Government has created the S.R.JOSHI 15 of 26 post by GR dated 6.1.2015, in view of the specific direction to select candidates from the employees of the Municipal Corporation, the status of the Petitioner is Officer appointed by the Municipal Corporation and as such he is an employee of the Corporation and cannot claim status of the Government employee or Officer. He relies upon section 54 of the MMC Act and submits that the procedure has been squarely complied with. He further refers to section 53 of the MMC Act to submit that the power of the Appointing Municipal Officer vests in the Corporation and as such being Appointing Authority any action taken by the Corporation cannot be said to be without jurisdiction.

31 The learned AGP submitted that as the Additional Commissioner, Petitioner has to work under the control of the Commissioner as envisaged in Section 39A. His services are subject to the provisions of the MMC Act and Maharashtra Civil Services Rules (“MCSR”)are also applicable where there is no specific provision in the MMC Act. Learned Counsel submits that because Petitioner along with other employees was trapped in anti corruption case on 13.6.2018, offence being registered on 14.6.2018 and the Petitioner being in custody till 17.6.2018, the Competent Authority has taken action under section 56 of the MMC Act and the Commissioner of Respondent No.1 has suspended the Petitioner considering Rule 4(1) of the Maharashtra Civil Services Rule vide order dated 18.6.2018 which has been ratified by the General Body of the Corporation on 07.07.2018. Subsequently, there was proposal to sanction departmental enquiry against the Petitioner vide letter dated 25.5.2018 on the ground of moral turpitude and the General Body has accorded sanction for departmental enquiry vide its resolution dated 20.6.2019 after which the Petitioner was served with Memo of departmental enquiry under section 56 of the MMC Act r/w Rule 8 of the S.R.JOSHI 16 of 26 MCSR. Learned counsel submits that all this has been in accordance with the provisions of law submitting that appropriate orders in the interest of justice be passed.

32 We have heard the learned Counsel for the parties and with their assistance, perused the papers and proceedings in the matter.

33 Facts being largely undisputed, the moot questions that arise in the Petition are (i) who is the appointing authority of the Petitioner as Additional Municipal Commissioner, (ii) whether the Corporation through its Commissioner, General Body Resolution of the Corporation has jurisdiction to issue/ confirm/ approve/sanction/ratify the suspension order dated 18th June, 2018 and subsequent notice dated 7th August, 2019 for holding departmental inquiry against the Petitioner or whether that could only have been done by the State Government.

34 Before we proceed, it would be pertinent to appreciate the provisions of Section 39-A of the MMC Act, which are quoted as under:- “39A.(1) The State Government may create one or more posts of Additional Municipal Commissioners in the Corporation and appoint suitable persons on such posts, who shall, subject to the control of the Commissioner, exercise all or any of the powers and perform all or any of the duties and functions of the Commissioner. (2) Every person so appointed as the Additional Municipal Commissioner shall be subject to the same liabilities, restrictions and terms and conditions of service, to which the Commissioner is subjected to as per the provisions of this Act.”

35 The language of section 39A is unambiguous. It authorizes the State Government not only to create one or more posts of Additional Municipal Commissioners in the Corporation, but also empowers the State Government to appoint suitable persons on such posts. Such suitable S.R.JOSHI 17 of 26 persons appointed as Additional Municipal Commissioners shall exercise all or any of the powers and perform all or any of the duties and functions of the Commissioner but subject to the control of the Commissioner. It does not stop here. Subsection 2 categorically states that the Additional Commissioner so appointed shall be subject to the same liabilities, restrictions and terms and conditions of service to which the Commissioner is subjected to as per the provisions of the MMC Act.

36 On 4th April, 2015, the Petitioner’s name was considered by the Selection Committee appointed by the State Government and on 5th May, 2015, resolution was passed by the Committee recommending that Petitioner be appointed by the Government of Maharashtra as Additional Municipal Commissioner of the KDMC. Pursuant to order dated 2nd June, 2015 passed by the UDD of the Respondent No.2, State Government, Petitioner came to be appointed as Additional Municipal Commissioner of the KDMC under Section 39A of the MMC Act. A GR dated 2nd June, 2015 was also issued by the State Government to that effect. Petitioner submitted his joining report to the Principal Secretary of the UDD, Government of Maharashtra on 23rd June, 2015. On 8th October, 2015, the Managing Committee of the Respondent-Corporation sent report to the UDD, informing that Petitioner was appointed as Additional Municipal Commissioner by the Government Resolution and that he had joined in that post and, therefore, his pay for the post of Additional Municipal Commissioner be fixed according to the Government Rules, after which, the Government proposed to fix the pay scale of the Petitioner in the scale of 15,600-39,200/-. In Affidavit in reply dated 18th November, 2017 filed by Respondent No.2 – State Government in Public Interest Litigation No.183 of 2016, the Petitioner was selected and appointed by the Government of Maharashtra under Section 39A of the MMC Act. S.R.JOSHI 18 of 26 Paragraph 8 of the said Affidavit is once again reproduced as under: “8. As per the decision taken by the committee in its meeting dated 05.05.2015, the recommendation proposal of the appointment on the post of Additional Municipal Commissioner, KDMC of Shri Sanjay Gharat was submitted for the final approval of the Government. The said proposal has been approved by the competent authority and appointment order is issued by the Government in the Urban Development Department on 02.06.2015.” These facts are not in dispute.

37 It is quite clear that from the aforesaid facts that the Petitioner has been appointed by the Government as Additional Municipal Commissioner and not by the Corporation. By the amending MMC Act, Section 39-A was added to the MMC Act empowering the State Government to create one or more post of Additional Municipal Commissioner in all Municipal Corporations in the State. The said section very clearly stipulates that Government is empowered to appoint a suitable person to the post of Additional Commissioner in Municipal Corporation in the State to exercise all or any powers and perform all or any of the duties and functions of the Additional Commissioner. Sub section 2 is relevant when it says that every such Additional Commissioner shall be subject to the same liabilities, restrictions and terms and conditions of service to which the Commissioner is subjected to as per the provisions of the MMC Act. True that the legislature has consciously used the word “appoint” in the said section and we have no doubt that the State Government is authorized to appoint the Additional Municipal Commissioner. Report of the Select Committee, order of the U.D.D. Minister, G.R. dated 2.6.2015, the letter of the Municipal Commissioner of the Respondent-KDMC dated 8.10.2015 sent to the State Government S.R.JOSHI 19 of 26 stating that the Government has appointed the Petitioner in the post of the Additional Municipal Commissioner thereby indicating that the Petitioner is Government employee, even though he may have been initially appointed as Assistant Municipal Commissioner and then promoted as Deputy Municipal Commissioner, both of which are employee posts of the Municipal Corporation. However, once he is appointed as Additional Municipal Commissioner pursuant to the provisions of section 39A by the State Government, he becomes an employee of the State Government subject to Government Rules amenable to disciplinary action of suspension etc. only by the State Government and no one else. In view of the clear language of Section 39A of the MMC Act, there is no merit in the averment of the Respondent Corporation that the Petitioner was promoted to the post of the Additional Municipal Commissioner in view of the recommendation of the Government.

38 It is undisputed that Petitioner has been appointed to the post of Additional Municipal Commissioner by Respondent- Corporation and as such, is subject to the same liability, restrictions and terms and conditions of services to which the Commissioner is subjected to as per the provisions of the MMC Act. In support of his contention, he refers to Section 39-A(2) of the MMC Act. Also true that terms and conditions as per provisions of MMC Act as applicable to the Commissioner, will also be applicable to such appointed Additional Commissioner. Also as the Additional Commissioner, Petitioner has to work under the control of the Commissioner as envisaged in Section 39A. His services are subject to the provisions of the MMC Act and MCSR are also applicable where there is no specific provision in the MMC Act. That only the Appointing Authority can take any action to suspend, issue notice for disciplinary enquiry. There is no quarrel with these averments of the Respondents. S.R.JOSHI 20 of 26

39 But we are afraid that the State’s reliance on the Office Note (Exhibit G to the Petition at Pg. 57), or Minutes of the Meeting (Exhibit I to the Petition at Pg. 62) or some policy without statutory force is misplaced as in the face of clear statutory provisions of Section 39A, Office Notes, Minutes, policy cannot have any legal force. Further to submit that Government Order dated 2nd June, 2015 appointing Petitioner as Additional Municipal Commissioner is only a recommendation and cannot be construed as appointment of Government Officer is ex-facie fallacious.

40 It would also not be out of place to refer to Section 16 of the General Clauses Act, 1897 as also Section 16 of the Maharashtra General Clauses Act, 1904 which provides that where a power to make any appointment is conferred then unless a different intention appears, the authority having power to make appointment shall also have power to suspend or dismiss any person appointed. Section 16 of the Maharashtra General Clauses Act, 1904 is quoted as under:- “16:- Power to appoint to include power to suspend or dismiss- Whereby any Bombay Act [or Maharashtra Act] a power to make any appointment is conferred, then, unless a different intention appears, the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power.” There does not appear to be any different intention in Section 39A of the MMC Act.

41 In view of the above discussion, we hold that the Petitioner has been appointed by the Respondent no. 2 State Government under section 39A of the MMC Act and as such only the Appointing Authority viz. the State Government would have jurisdiction to issue orders of suspension, notices for initiation of Disciplinary Enquiry.

42 Therefore answering the two questions formulated by us as S.R.JOSHI 21 of 26 above, we hold that (i) Respondent No. 2 State Government is the appointing authority of the Petitioner as Additional Municipal Commissioner, (ii) the Corporation, its Commissioner, General Body Resolution of the Corporation has no jurisdiction has no jurisdiction to issue/ confirm/ approve/sanction/ratify the suspension order dated 18th June, 2018 and subsequent notice dated 7th August, 2019 for holding departmental inquiry against the Petitioner or whether that could only have been done by the State Government.

43 That apart, we also note that the Order of suspension is dated 18th June, 2018, however, the undated chargesheet has been filed on 7th August, 2019, the departmental enquiry commenced by issuance of a notice dated 7th August, 2019 pursuant to a general body meeting dated 20th June, 2019, all of these are beyond one year from the date of suspension of the Petitioner. We are unable to appreciate that no charge sheet/ charge has been served upon the Petitioner for over a year. Despite that the Municipal Corporation goes ahead and passes the general body resolution dated 20th June, 2019, approving the commencement of departmental enquiry against the Petitioner and issues notice to him for the same. In our view, therefore, the suspension order and orders continuing the same, General Body Resolutions sanctioning the same, notice of disciplinary enquiry, charge sheet filed beyond period of 90 days are all bad in law as being without jurisdiction and liable to be quashed and set aside. The decision of the Supreme Court in case of Ajay Kumar Choudhari (Supra) is relevant, as admittedly, the Petitioner was not served with the charge sheet for departmental enquiry within 90 days thereby making the order of suspension liable to be revoked after expiry of 90 days. He draws our attention to paragraphs 11, 12 and 21 of the said decision are relevant and are quoted as under:- S.R.JOSHI 22 of 26 “11:- Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period of if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/ disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay. 12:- Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of institutions,t he scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inexricable tenents of Common Law Jurisprudence, antedating even the Manga Carta of 1215, which assures that “We will sell to no man, we will not deny or defer to any man either justice or right.” In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. 21:- We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer/ employee; if the memorandum of charges/ charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing any investigation against him. The S.R.JOSHI 23 of 26 Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in prosecution. We recognize that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.”

44 The principles laid down by the Supreme Court in the case of Ajay Kumar (supra) have also been followed by the State of Tamil Nadu v/s. Pramod Kumar (2018) 17 SCC 677 where the first Respondent – Police Officer had been under suspension for being in custody for a period of more than 48 hours and continued to be under suspension for more than 6 years pursuant to periodic reviews on the basis of the recommendations of the Review Committees and the Supreme Court held that suspension must necessarily be for a short duration and on the basis of the material on record, revoked the suspension and re-instated the Officer. Paragraph 27 of the said decision is quoted as under:- “27:- This Court in Ajay Kumar Choudhary v/s. Union of India has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the appellate State has the liberty to appoint the first respondent in a non-sensitive post.”

45 The principles laid down by the Hon’ble Supreme Court squarely apply to the facts of the case at hand. S.R.JOSHI 24 of 26

46 On all fours, the impugned suspension order, notice of disciplinary enquiry, the general body resolutions, the recommendations/ orders of the Review Committee(s) extending the order of suspension are unsustainable in law being wholly without jurisdiction.

47 In the facts and circumstances of the case, we hold that the Suspension Order dated 18.06.2018, General Body Resolution dated 07.7.2018 as well as 20-6-2019, are non-est and void being without jurisdiction and the notice of departmental enquiry dated 07.08.2019 as well as the connected General Body Resolution, the decisions of the Review Committee as well as communications including notices and orders extending period of suspension of the Petitioner are bad in law and deserve to be quashed and set aside. Hence, the following order:- (A) Writ Petition is made absolute in terms of prayer clauses (a), (b) and (c) which read thus: “(a) This Hon’ble Court may be pleased to issue writ of Mandamus or any other appropriate writ in the nature of Mandamus or any other appropriate Direction or Order thereby directing Respondent No.1- Corporation and its Municipal Commissioner to forthwith withdraw and/or cancel -

(i) the impugned Suspension Order dated 18th June, 2018,

2018, (Exhibit V ); June, 2019 (Exhibit Y); and August. 2019 (Exhibit Z). (b) This Hon’ble Court may be pleased to issue a writ of certiorari or any other appropriate writ in the nature of Certiorari or any other appropriate Direction or Order S.R.JOSHI 25 of 26 thereby quashing and/ or setting aside-

(i) the impugned Suspension Order dated 18th June,

2018, passed by the Municipal Commissioner of Respondent No.1 (Exhibit U); 2018, of Respondent No.1 (Exhibit V); June, 2019 of Respondent No.1 (Exhibit Y); and August. 2019 issued by the Commissioner of Respondent No.1 (Exhibit Z).

(c) This Hon’ble Court may be pleased to issue writ of mandamus or any other appropriate writ in the nature of Mandamus or any other appropriate Direction or Order thereby directing Respondent No.1 – Corporation and its Municipal Commissioner to forthwith re-instate the Petitioner in the post of Additional Commissioner of the 1st Respondent- Corporation.” (B) Rule is made absolute in the above terms.

(C) No order as to costs.

(D) At this stage, the learned AGP requests for stay of the operation and implementation of this order for a period of four weeks. Stay is granted for a period of four weeks from today. (ABHAY AHUJA,J.) (K.K. TATED,J.) S.R.JOSHI 26 of 26