Bombay High Court
Municipal Council, Ballarpur vs State Of Maharashtra Thr.Secty. & ... on 8 January, 2018
Bench: B.P. Dharmadhikari
wp3256.02 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3256 OF 2002
Municipal Council,
Ballarpur, District - Chandrapur
thr. its President Kankam Kumar
Yellaiah. ... PETITIONER
Versus
1. State of Maharashtra
through the Secretary,
Ministry of Urban Development,
Mantralaya, Mumbai 400 032.
2. Director of Municipal Administration,
Government Transport Service
Building, 3rd Floor, Sir Pochkhanwala
Road, Worli, Mumbai.
3. Deputy Director of Municipal
Administration, Administrative
Building, Opposite Manatralaya,
Mumbai 400 032.
4. Regional Director of Municipal
Administration, Nagpur Division,
Nagpur, Civil Lines, Nagpur 440 001.
5. The Collector, Chandrapur,
District - Chandrapur. ... RESPONDENTS
Shri M.I. Dhatrak with Shri Sahu, Advocates for the petitioner.
Shri S.J. Kadu, AGP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
JANUARY 08, 2018.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Dhatrak with Shri Sahu, learned counsel
for the petitioner and Shri Kadu, learned AGP for the
respondents.
2. The order dated 28.06.2002 passed by Respondent
No. 2 - regularizing the recruitment of 60 employees by the
Municipal Council, but imposing penalty, has been questioned
by the Municipal Council in present matter to the extent it
imposes punishment.
3. Writ Petition is filed by the Municipal Council
through its President and the punishment imposed is denial of
Dearness Allowance (DA) payable to these 60 employees for
the period from 01.04.2002 to 31.03.2004.
4. The President of the Municipal Council viz. Shri
Kankam Kumar Yellaiah, has on 25.07.2002 forwarded a
representation to respondent No. 2 pointing out that the
appointments were made by the then President way back in the
year 1987 and the financial position of the Municipal Council
was precarious. It was not in a position to pay salaries. Shri
Yellaiah, therefore, requested respondent No. 2 to impose some
punishment on the then President who indulged in this
illegality. This Court has on 09.09.2002, while issuing Rule in
the matter, stayed that order.
5. Shri Dhatrak, learned counsel submits that the
Municipal Council was not given any opportunity of hearing
before imposing punishment and hence the order is bad in law.
He further states that the legal provisions do not authorize
respondent No. 2 to impose any such punishment.
6. Shri Kadu, learned AGP points out that as per
provisions of Section 8 of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965,
(hereinafter referred to as 1965 Act), the Municipal Council is
an artificial person who can sue or be sued through its Chief
Officer. He further points out that in present matter, there is
no resolution of Municipal Council authorizing the President to
file writ before this Court on its behalf. He further adds that as
DA is released by the State Government as a grant, it can
always in law withhold or stop it.
7. After hearing the respective counsel, we find that
before challenging the impugned order dated 28.06.2002, a
representation was first made by the President on 25.07.2002
and thereafter present petition came to be filed on 30.08.2002.
The Municipal Council, Ballarpur has been shown as the
petitioner through its President and name of the President also
appears in the description of the petitioner. It is apparent that
in terms of Section 8 of the 1965 Act, petition cannot be
treated as a petition filed on behalf of the Municipal Council.
8. This Court has on 09.09.2002 stayed the order as
against the petitioner, therefore, the Municipal Council must
have received the amount of DA also. But then it appears that
denial of DA for a period of two years from 01.04.2002 to
31.03.2004 is without extending an opportunity of hearing to
the Municipal Council. The regularization has been done by
the impugned order itself under Section 75(2) read with
Section 337 of the 1965 Act. The said order also mentions that
for certain employees, requirement of educational qualification
has also been relaxed. Those employees obviously have been
recruited either in 1987 or prior to 1987 and thus have put in
about 30 years of service as of now. In the process, it is to be
seen that the then President or elected body who may have
indulged in wrongful recruitment have been allowed to go scot
free.
9. We, in this situation, quash and set aside the
punishment imposed upon the Municipal Council, Ballarpur
and direct respondent No. 2 to hear the Municipal Council
through its Chief Officer afresh and then to take suitable
decision as per law within next three months after the Chief
Officer appears before respondent No. 2. The Chief Officer to
appear before respondent No. 2 on 22.01.2018 and to abide by
his further instructions in the matter.
10. Writ Petition is thus partly allowed and disposed of.
However, in the facts and circumstances of the case, there shall
be no order as to costs.
JUDGE JUDGE
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*GS.
