Municipal Engineers ... vs Mumbai Municipal Corporation Of ...
2003 Latest Caselaw 1137 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard. Perused the records.

2. The petitioners challenge the orders of suspension issued against the petitioner Nos. 2 to 5 on two grounds: firstly, that the Manual of Departmental Enquires provide that an employee could be transferred instead of issuing order of suspension and that the suspension could not be ordinarily ordered unless the allegations levelled against the delinquent are of serious nature or that there is likelihood of the employee interfering with, the departmental inquiry and in the case in hand, these conditions are not satisfied, and secondly, considering the fact that the action proposed against the said petitioners being on the basis of the alleged illegalities committed in the construction of the buildings by name SARA and SAHARA complexes, which have he connection whatsoever with the duties which were allotted to the petitioners, at the relevant time, the orders of suspension are thoroughly uncalled for. Reliance is sought to be placed in the decision of the learned single Judge in the matter of The Municipal Corporation of Greater Bombay and Anr. v. Laxman Saldoo Timmanapyati and Ors., reported in 1991 I CLR 653, of the Division Bench in Dr. Tukaram Yeshwant Pawar v. Bhagwantrao Gaikwad and Ors., reported in 1988 II CLR 283, Devidas Tulshiram Bute v. State of Maharashtra, reported in 1999 I CLR 661 and of the Apex Court in the matter of P.R. Nayak v. Union of India, reported in 197Z I LLJ 535, On the other hand, the respondents have sought to justify the order referring to the decision of the Apex Court in State of Orissa v. Bimal Kumar Mohanty, and Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, .

3. The petitioner Nos. 2 to 5 are the employees of the respondent-Corporation and were attached to the Building and Factory Department of the Ward Office of the Corporation. The petitioner No. 2 is the Junior Engineer, the petitioner No. 3 is the sub-Engineer and the petitioner Nos. 4 and 5 are the Assistant Engineers. Pursuant to a complaint lodged in December, 2001, certain illegalities in the construction of shops and godowns in the concerned Ward came to be noticed and pursuant thereto, inquiry had commenced, in the course of which it appears that amongst others the petitioner Nos. 2 to 5 were identified for the purpose of necessary investigation and as a preliminary step in the course of the said investigation and were suspended by the impugned orders. The contention of the petitioners is that the allegations against them are baseless, and that apart, the provisions of law applicable to the parties do not permit the Corporation to suspend its employees without even exploring the possibility of transferring such employees to some other assignment unless the materials collected prima facie disclose the involvement of the delinquent in the alleged misconduct and the allegations are of very serious nature. It. is the case of the petitioners that the main activity of the Building and Factory Department of the Corporation is to take action for unauthorised construction, and to process statutory notices under the Mumbai Municipal Corporation Act, 1888, hereinafter referred to as "the said Act". The said Department is basically concerned with matters relating to action pertaining to illegal structures and other related activities which are normally taken on the basis of a complaint. Besides, the records, as they stand today, reveal that investigation carried out by the authorities and the Corporation in relation to Sara, and Sahara complexes has revealed that there had been no illegalities committed in respect thereof. Such investigation was carried out by the officers of the Corporation, including the Joint Commissioner and the report by the police authorities nowhere discloses any nexus between the complex promoters and the underworld elements. In any case, according to the petitioners they had no role to play in the matter of finalisation of the building project plans relating to Sara and Sahara complexes and the said obligation was of the Building Proposal Department and therefore there was no prima facie case to link the petitioners with the alleged irregularities. It is their further case that the action by the Ward Officer is limited only to the irregularity after completion of the structure based on plans. Further, the Clause 9 of the Manual of Departmental Enquiries provides that, suspension of municipal servant should not be resorted to lightly but should be ordered only when the circumstances justify it and suspension should not ordinarily be ordered unless the allegations levelled against, the municipal servant are of serious nature and on the basis of available evidence there is likelihood that major punishment such as dismissal or removal would be inflicted. Considering the said provision in the Manual, and bearing in mind the decision of the learned single Judge of this Court in The Municipal Corporation of Greater Bombay and Anr. v. Laxman Saldoo Timmanapyati and Ors. (supra), it is sought to be contended on behalf of the petitioners that the respondents have not been able to point out any justification for placing the petitioners under suspension and not to order their transfer in case there is any inquiry contemplated against the said petitioners in relation to the construction of the Sara and Sahara complexes.

4. The law on the point of suspension is well-settled by number of decisions, including the decisions in the matter of R.P. Kapur v. Union of India , Balvatray Ratilal Patel v. State of Maharashtra , V.P. Gindroniya v. State of Madhya Pradesh , Govt. of India, Ministry of Home Affairs v. Tarak Nath Ghosh , U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan {1993 Supp. (3) SCC 483}. The Apex Court after taking note of the said decisions in State of Orissa v. Bimal Kumar Mohanty (supra) has ruled thus.--

"It is thus settled law that normally, when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action, It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."

(emphasis supplied)

It was further made clear by the Apex Court in Balvatray Ratilal Patel v. State of Maharashtra (supra) that:-

"The general principle is that an employer can suspend an employee pending an enquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid as servant to work is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinary, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay."

5. Considering the law laid down by the, Apex Court, it is thus clear that though the power to suspend, in the sense of right to forbid the servant to work may not be an implied term in ordinary contract between the master and the servant, but whenever there is a power to suspend either in the contract of employment or in the statute or the rules framed, which are applicable to , the parties, and whenever resort to the action of suspension of an employee is taken by the master by invoking such power and the allegations made against the employee disclose the same to be of a serious nature and the order does not disclose to have affected the relationship of master and servant, then the right which an employee can claim is for the subsistence allowance during the period of suspension; of course, the situation may be different in case the employee is able to disclose malafide on the part of the employer or the action to be totally arbitrary, in which case the order can be challenged on those grounds. When the rules or the terms of the contract provide that instead of resorting to the power of suspension, the employee could be transferred to another place to avoid any opportunity to the employee to interfere with the inquiry proceedings, certainly it will be appropriate for the employer to not to resort to the power of suspension lightly and to ascertain whether the transfer of the employee would serve the purpose instead of ordering suspension of such employee. However, it would all depend upon the facts of the case and the nature of the terms of contract and/or the provisions in the statute applicable to the parties.

6. In the case in hand, it is not the contention of the petitioners that there is any provision in the statute or the rules framed by the authority to the effect that the Corporation before issuing the order of suspension has necessarily to transfer the employee to some other post instead of issuing the suspension order but the Clause 9 of the Manual merely states, that the suspension of municipal employee should not be resorted to lightly but should be ordered only when the circumstances justify it. In other words, as rightly submitted by the learned Advocate for the respondents, the same are the guidelines and that apart the guidelines also nowhere disclose any restriction as such upon the power to order suspension of an employee when the materials available before the employer prima facie disclose allegations of serious nature against the employee and the employer finds appropriate to inquire into the matter and in the process in order to avoid the, possibility of interference by the delinquent in the inquiry as well as influencing the witnesses who may be relevant for an appropriate decision in the inquiry, finds it appropriate to suspend such employee, then certainly such power cannot be denied to the Corporation under the Clause 9 of the Manual.

7. The learned single Judge in Laxman Saldoo's case undoubtedly has observed that "Suspension is a preventive measure or a check aimed at minimising further loss or damage to an employer at the hands of an employee who has, prima facie, been involved in serious misconduct and can also be justified in cases where the conduct, of the disciplinary proceedings can be demonstrably affected. Unless these factors are present, mechanical resort to this power is contraindicated and is liable to be struck down." Referring to the expression "demonstrably affected" in the said decision, it was sought to be contended that the possibility of the employee influencing the disciplinary proceedings one way or the other should be apparently revealed from the records and in the absence thereof there could be no justification for suspension of the employee. The contention that apprehension about the possibility of interference and influencing the domestic inquiry by the delinquent must be disclosed from the record cannot be found fault with. However, it is also to be noted that the same cannot be by way of conclusive proof as such but it would be sufficient if the records prima facie disclose the same. The basis for apprehension by the employer about the possibility of interference by the delinquent in the inquiry proceedings would depend on the facts of each case and the nature of the allegations levelled against the delinquent while taking action of suspension. In a case where an officer who is entrusted with the duty to check the illegalities committed in the construction activities, does not bring to the notice of the concerned authority such illegalities and the same are subsequently revealed through another agency or machinery of the authority, it would prima facie disclose the suppression of fact by such an officer in respect of the illegal construction, carried out by the party, and would be sufficient to keep such an officer under certain restraints in the sense he does not get an opportunity to interfere with the inquiry proceedings either by influencing the witness or tampering the records or otherwise.

8. In the case in hand, it is the contention of the petitioners that their obligations under the provisions of law related to action to be taken for unauthorised construction and that too on the basis of complaint. The statutory provisions in relation to the duties of the petitioner Nos. 2 to 5, the copies of which are annexed to the petition itself by the petitioners, disclose that the responsibilities of an Assistant Engineer include the general supervision over the work of his subordinates, getting feed back of compliance from the sub-engineers and junior engineers, scrutinise their reports and take steps to redress, ensure follow-up acts including detection of unauthorised works including notices, action thereon and its demolition. As regards the duties of a sub-engineer, he is required to inspect private building works in progress and check Whether the works are going on as per the plan approved by the Building Proposal Department and if any deviation is observed, the same should be brought to the notice of the Assistant Engineer. He with the help of Junior Engineer is required to issue notices, etc and place the same before the Assistant Engineer for his signature. The duties of Junior Engineer include inspection of the buildings in the area allotted and issuance of notices under different sections, to draft notices after inspection for unauthorised works. These duties apparently disclose that it is not merely on the complaint by the strangers regarding illegal constructions that engineers, whether he is junior or sub-engineer or Assistant Engineer, is supposed to act to discharge the duties of each of such engineers but can and is expected take suo moto action in that regard. The duties enumerated under the statutory provisions therefore are not restricted merely to act on a complaint by someone, as sought to be contended by the petitioners. Considering the allegations, revealed from the impugned orders themselves, and the seriousness of the nature of the allegations against the petitioners, and the duties which the petitioners were expected to perform, prima facie it is difficult to accept the contention of behalf of the petitioners that the allegations are not of a serious nature or that there is no justification to apprehend that the disciplinary proceedings would not be in any manner affected if the petitioners are not suspended. On the contrary, the materials prima facie disclose justification for the orders of suspension.

9. The Division Bench in Devidas Tulshiram Bute v. State of Maharashtra (supra) was dealing, with a matter wherein the suspension orders were issued as it was proposed to take disciplinary action against them for certain irregularities and indiscipline on the part of the employees wherein the records disclosed that none of the petitioners were proceeded against departmentally nor criminal complaint was filed against them and no investigation whatsoever had commenced and the materials collected did not disclose the involvement of those petitioners in any financial irregularities and yet they were sought to be suspended. Considering all those facts, the order of suspension was stayed. In Dr. Tukaram Yeshwant Pawar v. Bhagwantrao Gaikwad and Ors. (supra), that was a case wherein the head of the department, as director of horticulture was kept under suspension for months together pending the departmental inquiry which had not commenced on the day the judgment delivered by the Division Bench and he had only six months to go before he was to reach the age of superannuation. In those facts, where it was not disputed before the Division Bench that the Government did not propose to examine any witness in the inquiry and it merely desired to rely upon the documentary evidence and the inquiry officer was not other than the Divisional Commissioner and the officer of the Government was unable to tell the Division Bench as to when the Divisional Commissioner would find time to start the inquiry and complete it, taking notice of all those facts, the order of suspension was directed to be revoked.

10. The decision in P.R. Nayak v. Union of India (supra) is on the point that when the provisions of law by which the relationship of employer-employee is governed provide that resort to the power of suspension can be taken only upon the commencement of the disciplinary proceedings in terms of those rules, such a power cannot be resorted to prior to the commencement of the disciplinary proceedings. Therein the Rule 3 of the All India Services (Discipline and Appeal) Rules, 1969, the Clause (1) thereof provided that if having regard to the nature of the charges and the circumstances of the necessity or desirability of placing under suspension the member of the service against whom such proceedings are started, the Government may ....." and referring to the same it was ruled thus.--

"The language of Sub-rule (1) of Rule 3 on its plain reading empowers the Government, which initiates disciplinary proceedings on being satisfied, having regard to the nature of the charges and the circumstances of the necessity or desirability of placing under suspension the member of the service against whom such proceedings are started to pass an order of suspension. It does not suggest suspension can be ordered merely when disciplinary proceedings are contemplated. The language used under Sub-rules (4) to (7) also suggests that these rules do not authorise order of suspension of the delinquent member of service because disciplinary proceedings are contemplated."

Hence, none of these decisions sought to be relied upon by the petitioners are of any help to warrant interference by this Court in the impugned orders.

11. As rightly submitted by the learned Advocate for the respondents, there is no allegation of any malafide on the part of the respondents while issuing the impugned orders. Considering the law laid down by the Apex Court, in the absence of any such allegation of mala fide and considering the nature of allegations, the same are sufficient to reject the petition in limine. There is no justification for the interference in the impugned orders for the reasons stated above.

12. For the reasons stated above, therefore, the petition fails and is dismissed.

13. All concerned to act on the ordinary copy of this order duly authenticated by the Associate/P.S. of this Court as a true copy.