Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation & Ors vs Basanta Kumar Roy & Anr on 3 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 21 to 23
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
MAT 399 of 2024
CAN 1 of 2024
CAN 2 of 2024
CAN 3 of 2024
The Kolkata Municipal Corporation & Ors.
Vs.
Basanta Kumar Roy & Anr.
With
COT 72 of 202
The Kolkata Municipal Corporation & Ors.
Vs.
Basanta Kumar Roy & Anr.
With
FMA 228 of 2024
Basanta Kumar Roy & Anr.
Vs.
The Kolkata Municipal Corporation & Ors.
For the Appellants
In MAT 399/2024,
Respondents in
COT 72/2024 &
FMA 228/2024 : Mr. Jaydip Kar, Sr. Adv.,
Mr. Arijit Dey, Adv.
For the Respondent/
Writ Petitioner in
MAT 399/2024,
Cross objector in
COT 72/2024 &
Appellant in
FMA 228/2024 : Mr. Alok Kumar Ghosh, Adv,
Mr. Dilip Kumar Chatterjee, Adv.
For the WBMSC : Ms. Koyeli Bhattacharyya, Adv.,
Mr. Bibek Dutta, Adv.
Heard on : 29.07.2024, 12.08.2024, 27.08.2024
& 03.09.2024
Judgment on : 03.09.2024
Joymalya Bagchi, J. :-
1. Appellant Kolkata Municipal Corporation has preferred the appeal
challenging judgment and order dated 23.11.2023 whereby the
Hon'ble Single Judge had set aside the order of punishment dated
31.08.2005 passed by the Municipal Commissioner and affirmed by
the Mayor vide order dated 21.09.2006.
2. Factual matrix giving rise to the appeal is as follows:-
3. Respondent/writ petitioner was a 'C' category employee of Kolkata
Municipal Corporation (hereinafter referred to as 'KMC'). On
07.10.1997 the Joint Municipal Commissioner issued a charge
sheet upon the respondent/writ petitioner. Pursuant to the charge
sheet an enquiry was initiated. Enquiry report was filed. Upon
considering the enquiry report, the Municipal Commissioner
(exercising powers of Joint Municipal Commissioner) by order dated
31.08.2005 held respondent/writ petitioner guilty of misconduct
and directed his removal from service. Respondent/writ petitioner
made a representation before the Mayor which came to be dismissed
on 21.09.2006. The aforesaid order of removal by the Municipal
Commissioner and its affirmation by the Mayor were assailed by the
respondent/writ petitioner in the writ petition.
4. Referring to Sections 18 and 21 of the Kolkata Municipal
Corporation Act, 1980 (hereinafter referred to as KMC Act, 1980), it
was contended on behalf of the writ petitioner Joint Municipal
Commissioner is the appellate authority in respect of category 'C'
employees and as the order of punishment was passed by the
Municipal Commissioner (acting as Joint Municipal Commissioner),
the appellate remedy of the appellant has been rendered nugatory.
However, Corporation relying on a Circular No.50 dated 01.02.2002
argued the Mayor had been empowered to hear appeals against
orders passed by the Municipal Commissioner in regard to Group
'B', 'C' and 'D' categories, hence the appellant's remedy remained
intact. Hon'ble Single Judge relying on Smt. Kusum Roy & Ors. Vs.
The Calcutta Municipal Corporation & Ors.1 wherein the said circular
had been quashed held the order of punishment passed by the
2015 SCC OnLine Cal 1162
Municipal Commissioner and the appellate order affirming it by the
Mayor were contrary to the provisions of KMC Act, 1980 and liable
to be set aside.
5. Mr. Kar, learned Senior Advocate contends Municipal
Commissioner/Joint Municipal Commissioner who initiated the
enquiry and passed the order of punishment is a superior authority
than the one prescribed under the law as the disciplinary authority.
Disciplinary proceeding conducted by a superior officer cannot
cause prejudice to an employee.
6. In rebuttal, Mr. Ghosh contends disciplinary authority i.e. Joint
Municipal Commissioner is the appellate authority under law in
regard to orders of punishment against category 'C' and 'D'
employee. As the order of punishment was passed by the Municipal
Commissioner acting as Joint Municipal Commissioner, appellate
remedy prescribed under the law stood extinguished to the
prejudice of the appellant. Order passed by the Mayor as appellate
authority is non est in law as Circular No.50 dated 01.02.2002 had
been quashed in Smt. Kusum Roy & Ors. (Supra).
7. The moot issue which falls for consideration is as follows:-
8. Did the order of punishment passed by the Municipal Commissioner
acting as Joint Municipal Commissioner in respect of
respondent/writ petitioner, a group 'C' employee, result in
extinguishment of his appellate remedy under law and thereby
caused prejudice to him.
9. Sections 18 and 21 of KMC Act reads as follows:-
"18. Appointing authorities - Subject to the other provisions of
this Act, the appointing authority in respect of the posts of officers
and employees constituting the establishment of the Corporation
shall be -
(a) In the case of category A posts, the Municipal Commissioner,
(b) In the case of category B posts, a Joint Municipal
Commissioner,
and
(c) In the case of category C posts and category D posts, such
officer or officers of the Corporation as the Municipal
Commissioner may, with the prior approval of the Mayor-in-
Council, designate in this behalf.
21. Control, discipline and conduct of officers and
employees -
(1) Unless there is anything to the contrary, the whole time of an
officer or employee of the Corporation shall be at the disposal of
the Corporation and he may be employed by the Corporation in
such manner as it thinks fit. Such officer or employee may also be
transferred from one post to another carrying an identical scale of
pay.
(2) The Corporation may, by regulation, provide for the discipline,
control and conduct of officers and employees constituting the
establishment of the Corporation.
(3) Any officer or employee of the Corporation as may be
determined by regulation, may be censured, fined, penalized by
withholding of increment or promotion temporarily or
permanently, penalized by recovery from his pay of the whole or
part of any pecuniary loss caused by him to the corporation,
reduced to a lower stage in the time scale of pay for a specified
period, reduced to a lower time scale of pay, grade, post or
service, or penalized by compulsory retirement or removal or
dismissal from service for any breach of departmental rules or of
discipline or for negligence of duties or for other misconduct, by
the authority by whom such officer or employee has been
appointed.
(3A) The Commissioner or the appointing authority may pass an
order of suspension pending departmental proceedings or prior to
the initiation of any departmental proceedings against any
employee of the Corporation.
(3B) (i) An employee of the Corporation who is detained in custody
for a period exceeding 48 hours on a criminal charge, may be
suspended by an order of the appointing authority with effect
from the date of his detention and such employee shall remain
under suspension until an order withdrawing the order of
suspension is made by the appointing authority.
(ii) An employee of the Corporation who is undergoing a sentence
of imprisonment upon conviction on a criminal charge, shall be
suspended by the appointing authority pending disciplinary
proceeding against him.
(4) An appeal against an order under sub-section (3) shall lie -
(a) to the Corporation where the appointing authority is the
Mayor-in-Council;
(b) to the Mayor in the case of an officer or employee holding a
category A post;
(c) to the Municipal commissioner in the case of an officer or
employee holding a category B Post; and
(d) To a Joint Municipal Commissioner in the case of an
officer or employee holding a category C post or a category D
post.
(5) No officer or employee of the Corporation appointed on the
recommendation of the Municipal Service Commission or the Public
Service Commission, as the case may be, shall be reduced in rank,
removed or dismissed except after consultation with such
Commission.
10. Section 18 states in respect of category 'C' and category 'D' posts,
the appointing authority shall be such an officer of the Corporation
as the Municipal Commissioner with the prior approval of Mayor in
Council designate. As per Section 21 sub-section (3), appointing
authority is entitled to impose penalties envisaged in law including
removal or dismissal from service. Order of punishment passed
under the aforesaid sub-section may be appealed under sub-section
(4) of Section 21. Sub Clause (d) of Section 21 of sub-section (4)
states Joint Municipal Commissioner is the appellate authority in
respect of officers employed in category 'C' or category 'D' posts.
11. A combined reading of the said provisions leave no doubt in one's
mind that appeal against the order of punishment passed against
the respondent/writ petitioner who is a category 'C' employee is the
Joint Municipal Commissioner. However, if the order of punishment
is passed by the Municipal Commissioner acting as Joint Municipal
Commissioner (as in the present case), where will the appeal lie?.
12. Mr. Kar has referred to Uttrar Pradesh Power Corporation Ltd. Vs.
Virendra Lal (Dead) through LRs.2 And Chairman, A.P. State
Electricity Board & Ors. Vs. M. Kurmi Naidu3 to argue, in case
disciplinary proceeding is conducted by an officer superior to the
appointing authority the delinquent does not suffer prejudice.
13. We have no quarrel with the aforesaid proposition. However, if the
appellate authority acts as the disciplinary authority and imposes
penalty, a completely different controversy arises. In Surjit Ghosh
Vs. United Commercial Bank4, the Hon'ble Apex Court held when
disciplinary proceeding was conducted by the Deputy General
Manager (the appellate authority in that case) the right of appeal of
the delinquent stands extinguished and the order of punishment is
liable to be set aside on such score. Similar view was taken in Balbir
Chand Vs. Food Corporation of India Ltd.5
14. In the cited cases the ratio in Surjit Ghosh (supra) and Balbir Chand
(supra) was distinguished by referring to Electronics Corpn. of India
(2013) 10 SCC 39
(2006) 8 SCC 62
(1995) 2 SCC 474
(1997) 3 SCC 371
Vs. G. Muralidhar6, A. Sudhakar Vs. Postmaster General7 and S.
Loganathan Vs. Union of India8 wherein the Hon'ble Apex Court
clarified no prejudice is suffered by a delinquent if the disciplinary
proceeding is conducted by an authority superior to the appointing
authority provided the same does not deprive the delinquent of the
right to appeal.
15. To elucidate it may be apposite to refer to the observations in A.
Sudhakar (Supra) :-
"18. It is now trite that an authority higher than the
appointing authority would also be the designated
authority for the purpose of Article 311 of the
Constitution. Even the appellate authority can impose a
punishment subject, of course, to the condition that by
reason thereof the delinquent officer should not be
deprived of a right of appeal in view of the fact that the
right of appeal a statutory right. However, if such right
of appeal is not embellished, an authority higher than
the appointing authority may also act as a disciplinary
authority." (emphasis supplied)
16. In the case at hand the exercise of disciplinary powers by the Joint
Municipal Commissioner, a superior authority, had extinguished the
statutory right to appeal against an order of punishment under law.
As per section 21(4)(c) of KMC Act, an appeal lies against an order of
punishment passed against category 'C' employees before the Joint
Municipal Commissioner. If the Joint Municipal Commissioner
(2001) 10 SCC 43
(2006) 4 SCC 348
(2012) 1 SCC 293
himself initiates the disciplinary proceeding and passes the order of
punishment, there is no scope of preferring appeal against such
order before the same officer i.e. the Joint Municipal Commissioner.
17. Hon'ble Judge rightly highlighted this procedural infirmity which
had deprived the respondent/writ petitioner of his right to appeal
and discriminated him vis-a-vis other similarly circumstanced
employees.
18. It is true Mayor had affirmed the order of the Joint Municipal
Commissioner. But the exercise of appellate powers of Mayor is
based on Circular No.50 dated 01.02.2002 which had been quashed
by this Court in Smt. Kusum Roy (supra).
19. In view of the aforesaid, we find no infirmity in the order of the
Hon'ble Single Judge setting aside the order of punishment and the
order dated 31.08.2005 passed by the Municipal Commissioner
(Acting as Joint Municipal Commissioner) and the Mayor's order
21.09.2006 confirmed the same.
20. At this stage Mr. Kar submits the matter may be remitted for
initiating disciplinary proceeding afresh by the appointing authority.
He contends petitioner was appointed in 1974 by the Deputy
Commissioner (Revenue). After promulgation of KMC Act, 1980, he
was deemed to be an employee of Corporation by operation of
Section 635(d) of KMC Act, 1980. By memo dated 24.02.2006 some
posts of Deputy Commissioner (Revenue) were re-designated as
Chief Manager.
21. In view of the aforesaid he submits matter may be remanded for
conducting disciplinary proceeding by Chief Manager who are
equivalent to Deputy Municipal Commissioner (Revenue) i.e. the
appointing authority of the writ petitioner under the old law.
22. Mr. Ghosh contends no officer of the Corporation has been
designated by the Municipal Commissioner as appointing authority
for category 'C' and category 'D' posts under Section 18 of KMC Act.
23. In view of the fact that the proceeding against the respondent/writ
petitioner had been initiated in 1997 and the order of punishment
was passed in 2005 i.e. almost two decades ago, we do not wish to
remand the matter for fresh initiation of disciplinary proceeding
against the respondent/writ petitioner. We are further prompted to
come to such conclusion as the petitioner had been out of service
since 2005 and would have superannuated in 2010.
24. With regard to the cross appeal, we find the Hon'ble Single Judge
has awarded 50% back wages to the respondent/writ petitioner.
25. Mr. Ghosh submits his client was kept out of employment due to the
erroneous decision of the Corporation and he is entitled to full back
wages.
26. Grant of full back wages cannot be demanded as a right whenever a
disciplinary proceeding is quashed. It is in the nature of
discretionary relief and its quantum is to be tailored to the facts of
each case. Moreover, it is apposite to bear in mind the Hon'ble
Judge had quashed the proceeding due to procedural defects
impacting valuable right to appeal and not on merits i.e. absolving
the respondent/writ petitioner of the charge of misconduct. Under
such circumstances, we are of the view award of 50% back wages is
most charitable and we are not inclined to enhance it. However, we
direct the said amount shall be paid to the respondent/writ
petitioner within three months from date.
27. With these observations, the appeal and the cross appeal are
dismissed.
28. Consequently, connected applications are also dismissed.
In Re: FMA 228 of 2024.
29. As the order of the Hon'ble Single Judge quashing the order of
punishment and the appellate order passed by the Mayor has been
upheld in MAT 7399 of 2024, no order needs to be passed in the
appeal.
30. There shall be no order as to costs.
31. Photostat certified copy of this judgment, if applied for, be given to
the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
as/tkm
