Maharashtra Municipal Corporation Act -Commissioner of Municipal Corporation Can Initiate Departmental Inquiry Against Additional Municipal Commissioner : Supreme Court

The Supreme Court, on Thursday, held that the Commissioner of Municipal Corporation has the power to suspend or initiate departmental proceedings against the Additional Municipal Commissioner under the Maharashtra Municipal Corporation Act, 1949. A Bench comprising Justices L. Nageswara Rao and B.R. Gavai allowed a plea assailing the judgment of the Bombay High Court, which found that the power to suspend Additional Municipal Commissioner of Kalyan Dombivali Municipal Corporation was conferred neither on the Commissioner of Municipal Corporation nor the Corporation, but only the State Government. Factual Background Sanjay Gajanan Gharat (respondent no. 1) was appointed as Assistant Municipal Commissioner of the Kalyan Dombivali Municipal Corporation (KDMC/petitioner) in 1995 approved by the State Government on 01.02.1997 under Section 45 of the Maharashtra Municipal Corporation Act, 1949 ("MMC Act"). Later he was promoted to the post of Deputy Municipal Corporation of KDMC. In 2011, the MMC Act was amended and Section 39A was inserted which provided for creation of one or more posts of Additional Municipal Commissioner ("AMC"). By a Government Resolution dated 11.12.2011, a post of AMC was created for KDMC. On 06.01.2015 an additional post of AMC was created. The Selection Committee found respondent no. 1 suitable and recommended his name to the State Government. Accordingly, he was appointed to the post of AMC of KDMC in June, 21015. On 14.06.2018, an FIR was registered against him for offences punishable under the Prevention of Corruption Act. He was arrested and secured bail. The Commissioner of KDMC in exercise of power under Section 56(1)(b) of the MMC Act and Rule 4(1) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 ("MCS Rules") issued suspension order against the respondent no. 1 on 18.06.2018, which was ratified by the General Body of KDMC on 07.07.2018. Subsequently, on 20.06.2019, the General Body sanctioned to hold departmental inquiry against him. Accordingly, he was issued notice to appear before the Inquiry Officer appointed by the KDMC. He objected on the ground of jurisdiction and approached the Bombay High Court seeking withdrawal/cancellation of the suspension order and the notice of the departmental inquiry. By its order dated 06.04.2021, the High Court allowed the petition on the ground that suspension could be initiated only by the State Government as the respondent no. 1 was an employee of the State. Contentions raised by the appellants Senior Advocate, Mr. P.S. Patwalia appearing on behalf of KDMC submitted that though the State Government under Section 39A of the MMC Act, created the post, nonetheless, it was created for the KDMC. Referring to Section 56 he argued that it was only the KDMC which was competent to suspend the respondent no. 1 and initiate departmental proceedings against him. It was contended that since he was in custody for more than 48 hours, in view of Rule 4(2) of the MCS Rules, his suspension was deemed. Advocate, Mr. Rahul Chitnis appearing for the State of Maharashtra supported the contentions raised by Mr. Patwalia. Contentions raised by the respondents Senior Advocate, Mr. Anupam Lal Das appearing on behalf of the respondent no.1 submitted that he was appointed by the State Government under Section 39A of the MMC Act as the post of AMC is pari materia to that of the Commissioner who is appointed under Section 36 of the MMC Act. It was contended that the liabilities, restrictions and terms of service of the Commissioner and AMC was the same as per Section 39A(2) of the MMC Act. Placing reliance on Ajay Kumar Choudhary v. Union of India through its Secretary and Anr. (2015) 7 SCC 291, he argued that there was no requirement for continued suspension, moreso, when the charge-sheet was not submitted within 90 days. Analysis by the Supreme Court On perusal of Section 39A of the MMC Act, the Court was of the view that though the post of AMC was created by the State Government, it was created for KDMC. It noted that though the selection and appointment of the respondent no. 1 to the post of AMC was carried out by the State Government, he was specifically appointed for the KDMC. Therefore, he is an employee of KDMC. The Court observed that though the powers, functions and duties of the AMC are same as that of the Commissioner, the legislature subjected AMC to the control of the Commissioner. Moreover, it was noted that Section 2(9) of the MMC Act which defines 'Commissioner' includes Commissioner, but not AMC, signifying the control of Commissioner over AMC. Referring to Section 56 which deals with imposition of penalties on municipal officers, the Court was of the view that the Commissioner was empowered to suspend any officer, whether appointed by the Corporation or any other competent authority. However, in case of 'post equivalent to or higher in...

Maharashtra Municipal Corporation Act -Commissioner of Municipal Corporation Can Initiate Departmental Inquiry Against Additional Municipal Commissioner : Supreme Court

Sohini Chowdhury

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