Explained| Can Commissioner suspend or initiate departmental proceedings against an Additional Municipal Commissioner under Maharashtra Municipal Corporations Act, 1949?

Supreme Court: Harmoniously interpreting Section 2 (9), Sections 39A and 56 of the Maharashtra Municipal Corporations Act, 1949 (MMC Act), the bench of L. Nageswar Rao and BR Gavai*, JJ has held that the Commissioner of the Municipal Corporation will have the power to suspend or initiate departmental proceedings against an Additional Municipal Commissioner (AMC), who is an officer, superior in rank to the Assistant Commissioner. However, in case of suspension of such an officer, the only requirement would be to report to the Corporation, with reasons thereof, and if such a suspension is not confirmed by the Corporation within a period of six months from the date of such suspension, the same shall come to an end.

Stating that any other interpretation would lead to absurdity and anomaly, and therefore will have to be avoided, the bench observed that

“… the intention of the legislature would not have been to lead to such an absurd and anomalous situation. A legislative intent cannot be to leave an employee scot-free though he has indulged into serious misconduct.”

Relevant Provisions

  • In the definition of the “Commissioner” under Section 2(9), though an acting Commissioner appointed under Section 39 of the MMC Act has been included, an AMC appointed under Section 39A of the MMC Act has not been included.
  • Under Section 39A of the MMC Act, though the AMC will exercise all or any of the powers and perform all or any of the duties and functions of the Commissioner, the same shall be subject to the control of the Commissioner. No doubt, that the AMC would be subject to the same liabilities, restrictions and terms and conditions of service, to which the Commissioner of the Corporation is subjected. However, the legislative intent is clear that the powers to be exercised by AMCs would be subject to the control of the Commissioner.
  • Under Section 56(1), a competent authority is entitled to impose any of the penalties specified in Section 56 (2) on a municipal officer or servant if such authority is satisfied that such officer or servant is guilty of breach of departmental rules or discipline or of carelessness, neglect of duty or other misconduct or is incompetent.
    1. Clause (a) of the proviso to Section 56 (1), however, provides that no municipal officer or servant holding the post equivalent to or higher in rank than the post of the Assistant Commissioner, shall be dismissed by the Commissioner without the previous approval of the Corporation.
    2. Clause (b) of the proviso to Section 56(1) enables the Commissioner to suspend any officer or servant, whether appointed by the Corporation or any other competent authority, except Transport Manager being a Government Officer on deputation, pending an order of the Corporation. It further provides that when the officer suspended is a Transport Manager or an officer appointed under Section 45 of the MMC Act, such suspension with reasons thereof, shall, forthwith be reported by the Commissioner to the Corporation. It further provides that such a suspension shall come to an end if not confirmed by the Corporation within a period of six months from the date of such suspension.
  • Whereas, the Commissioner is empowered to suspend any officer or servant, whether appointed by the Corporation or any other competent authority, in case of a Transport Manager being a Government Officer on deputation or any officer appointed under Section 45 of the 21 MMC Act, the Commissioner is required to report such a suspension with reasons thereof, to the Corporation. It further provides that such suspension shall come to an end if not confirmed by the Corporation within a period of six months from the date of such suspension.

Analysis

On a conjoint reading of the aforesaid provisions of the MMC Act, the Court observed that though a competent authority may impose any of the penalties on a municipal officer or servant, no municipal officer or servant holding the post equivalent to or higher in rank than the post of an Assistant Commissioner, shall be dismissed by the Commissioner without the previous approval of the Corporation.

The Court explained that the legislature has created two classes of the municipal officers and servants.  One class is of the municipal officers and servants, other than the ones holding the post equivalent to or higher in rank than the post of an Assistant Commissioner. In this category, a competent authority may   impose the penalties as provided under the provisions of the MMC Act. The other class of municipal officers is of the persons holding the post equivalent to or higher in rank than the post of Assistant Commissioner. The officers in such a class can be dismissed only by the Commissioner and that too with the previous approval of the Corporation.

Observing that the term “post equivalent to or higher in rank than the post of Assistant Commissioner”   cannot be construed in a narrow compass, the Court held that clause (a) of subsection (1) of Section 56 of the MMC Act would also include the post of AMC.

The Court disagreed with the finding of the Bombay High Court that in view of Section 39A of the MMC Act, the Commissioner or the Corporation will not have power to suspend or initiate departmental inquiry against the AMC, and held that the same is in ignorance of the provisions of Section 56 and sub¬section (9) of Section 2 of the MMC Act.

“The court should not always cling to literal interpretation and should endeavor to avoid an unjust or absurd result. The court should not permit a mockery of legislation. It has been held that to make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye, ‘some’ violence to language is also permissible.”

[Kalyan Dombivali Municipal Corporation v. Sanjay Gajanan Gharat, 2022 SCC OnLine SC 385, decided on 31.03.2022]


*Judgment by: Justice BR Gavai


Counsels

For KDM Corporation: Senior Advocate P.S. Patwalia

For State: Advocate Rahul Chitnis

For Respondent: Advocate Anupam Lal Das

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