Amrik Singh S/O Shri Ch. Hira Singh vs Municipal Corporation Of Delhi ...
2004 Latest Caselaw 1236 Del

JUDGMENT

Madan B. Lokur, J.

1. While admitting this second appeal on 2nd August, 1979, it was observed that the appeal involves a substantial question of law as to whether the suit filed by the Appellant was within time.

2. The broad facts of the case are that the Appellant was working as a Terminal Tax Clerk with the Municipal Corporation of Delhi (MCD). He was placed under suspension on 1st February, 1969 on the allegation of having committed some irregularity. After a departmental inquiry, the Deputy Commissioner, MCD passed an order on 21st February, 1970 ordering stoppage of two increments with future effect. The Appellant filed a departmental appeal which was dismissed by the Commissioner, MCD on 27th July, 1970.

This order was communicated to the Appellant on 4th August, 1970.

3. In terms of Section 478 of the Delhi Municipal Corporation Act, 1957 (the Act), the period of limitation for challenging an order such as the above is six months. Section 478 of the Act reads as follows:-

"478. Notice to be given of suits. - (1) No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made there under until the expiration of two months notice is writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of act on, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.

(2) No suit, such as is described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.

(3) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."

4. Under the circumstances, the period of limitation for instituting proceedings against the Respondent expired on 4th February, 1971. The Appellant filed the suit in question on 28th April, 1971. As such, prima facie, it was barred by time.

5. Notwithstanding this, the learned Trial Judge heard the matter on merits after framing issues and by a judgment and decree dated 6th May, 1976, the orders imposing punishment upon the Appellant were set aside.

6. Feeling aggrieved, the Respondent filed an appeal before the learned Additional District Judge. By the impugned judgment and decree dated 13th December, 1978, the learned Additional District Judge held that since the suit was barred by time, having been filed beyond the six months limitation period, the plaint shall be deemed to be rejected. The Appellant has come up in appeal to agitate the question whether the suit filed by him was time barred or not.

7. According to learned counsel for the Appellant, since the Appellant was working with the erstwhile Delhi Municipal Committee and was absorbed with the MCD when it was formed, he was a transferee employee whose rights were protected by Section 511 of the Act.

8. Section 511 of the Act reads as under:-

"511. Provisions as to employees of bodies and local authorities whose functions are taken over by the Corporation. - (1) Every officer and other employee of each of the bodies and local authorities specified in the Second Schedule shall on and from the establishment of the Corporation, be transferred to and become an officer or other employee of the Corporation with such designation as the Commissioner may determine and shall hold office by the same tenure, at the same remuneration and on the same term and conditions of service as he would have held the same if the corporation not been established, and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the Corporation:

Provided that the tenure, remuneration and terms and conditions of service of any such officer or other employee shall not be altered to his disadvantage without the previous sanction of the Central Government:

Provided further that any service rendered by any such officer or other employee transferred to the Corporation shall be deemed to be service rendered under the Corporation.

(2) The Commissioner may employ any officer or other employee transferred to the Corporation under sun-section (1) in the discharge of such functions under this Act as the Commissioner may think proper and every such officer or other employee shall discharge those functions accordingly."

9. A bare perusal of the aforesaid provision makes it clear that what has been saved in respect of transferee employees such as the Appellant is the tenure of office held by the Appellant, his remuneration and the terms and conditions of his service.

10. Quite clearly, Section 511 of the Act does not relate to any other rights that the Appellant may have such as the right to institute a suit on a possible cause of action. There is no mention about the limitation period being different in case of transferee employees such as the Appellant. It is, therefore, not correct on the part of learned counsel for the Appellant to contend that the period of limitation as prescribed by Section 478 of the Act is not applicable to him. Section 511 of the Act does not in any manner govern the provisions of Section 478 of the Act. The contention of learned counsel for the Appellant in this regard is rejected.

11. The other contention urged by learned counsel for the Appellant was that the Deputy Commissioner could not have imposed the punishment upon the Appellant. Since the Deputy Commissioner had no power to impose the punishment, the order imposing a punishment on the Appellant is de hors the Act and cannot be described as an act done or purported to have been done in exercise of powers conferred by the Act. For this reason also, it was submitted that the period of limitation prescribed by Section 478 of the Act does not apply.

12. This contention of learned counsel for the Appellant is also rejected.

13. The disciplinary conditions of the Appellant were governed by the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 which were duly framed by the Government of India in exercise of powers conferred by Section 98 read with Section 480 of the Act. A bare reading of the Regulations shows that the nature of penalties have been given in Regulation 6 and Item (ii) thereof relates to withholding of increments or promotion.

14. Regulation 7 provides that the authority specified in Column 1 of the Schedule may impose a punishment on any municipal officer or municipal employee specified therein in respect of the penalties specified. The Schedule to the Regulations shows that in the case of the Appellant, who admittedly held a post with minimum monthly salary (exclusive of allowances) less than Rs.350/- at the relevant time, the Deputy Commissioner could impose all punishments including the punishment of withholding of incremnts. An appeal against the order of the Deputy Commissioner would lie to the Commissioner, MCD.

15. The relevant portion of the Rule reads as follows:-

Description of Authority competent Penalties Appellate posts to impose penalties Authority 1 2 3 4 Posts whose Corporation All Central minimum Govt.

monthly salary (exclusive of allowances) is three hundred and fifty rupees or more.

Do Deputy (i) and (ii) Commissioner

Posts whose Deputy All Commissioner minimum Commissioner monthly salary (exclusive of allowances) is less than three hundred and fifty rupees.

16. In view of the above, it cannot seriously be contended by learned counsel for the Appellant that imposition of punishment by the Deputy Commissioner was beyond his jurisdiction. Consequently, the question of law that has been raised for consideration needs to be answered in the negative. It is held that the suit filed by the Appellant was barred by time and the plaint was rightly rejected by the learned first appellate Court.

17. The appeal is dismissed. No costs.