Judgment:
A. M. Khanndlkar, J.
1. This petition, under Article 226 of the Constitution of India, takes exception to the order passed by respondent No. 4 and confirmed by respondent No. 5 in appeal, imposing punishment of stoppage of next increment for a period of one year with permanent effect, having held the petitioner guilty of alleged misconduct in a departmental enquiry.
2. Only two points have been pressed on behalf of the petitioner. The first point raised is that the impugned order passed by the authority is vitiated due to failure to supply the Enquiry Officer's report to the petitioner and for not affording opportunity to the petitioner. The second point is that the impugned order of punishment was passed against the petitioner by the City Engineer and the appeal against the said order is provided before the Commissioner, but the appeal was heard and dismissed by the Deputy Municipal Commissioner, Zone II, by order dated 20.3.1987, who was not competent to deal with the same.
3. Insofar as the first point urged before us of failure to furnish the Enquiry Officer's report and of affording opportunity, the same deserves to be stated to be rejected. The argument advanced was that rule 45 provides for different penalties that ran be imposed on the Delinquent Officer. It would be apposite to reproduce rules 45, 46 and 47, which are relevant for our consideration, which read thus :
'45. Penalties which can for sufficient reasons be Imposed upon a Municipal Servant are inclusive of those enumerated in Rule No. 41 of Municipal Servants Conduct and Discipline Rules and are indicated below:-
(i) Dismissal,
(ii) Removal from Municipal Service,
(iii) Reduction,
(iv) Withholding of increments or promotions either permanently or for a specified period.
(v) Fine,
(vi) Suspension for three days or less,
(vii) Recovery from pay of loss or damage suffered by the Municipal Corporation on account of breach of rules or misconduct or negligence.
(viii) Censure.
46. In all cases where the Competent Authority on perusal of the Enquiry Officer's report has provisionally come to the conclusion that the penalty to be imposed upon the delinquent should be either Dismissal. Removal, Reduction in emoluments or reversion to a lower post, a further opportunity shall be given to the person charged to show cause against the action proposed in the manner indicated below :-
47. The reasonable opportunity against the action proposed is to be given in the following manner :-
(1) The person charged should be furnished with a copy of the Enquiry Officer's findings and grounds thereof.
(2) He should be informed of the conclusions (with reasons where necessary) provisionally reached by the Competent Authority on the findings of the Enquiry Officer.
(3) He should be told of the action which the Competent Authority proposes to take against him and the grounds therefor.
(4) He should be called upon to show cause against the action proposed and given a reasonable time and opportunity to do so.
This can be done by a properly drafted notice. Two forms of that notice are given at Forms II and III (Appendix A). Form II is a form of notice when the Competent Authority agrees with the Enquiry Officer's findings. Form III is a form of notice when he differs from the Enquiry Officer's findings and for independent reasons comes to the conclusion that the charges or any of them have been proved. A 'Show Causes Notice' should be given by Municipal Commissioner or any Officer subordinate to him, who has power to dismiss the employee.'
4. It is contended on behalf of the petitioner that even for punishment of withholding of an increment, as awarded against the petitioner, it was Imperative to furnish the Enquiry Officer's report, in view of Rules 46 and 47 reproduced above. This argument is countered by the counsel for the respondents by pointing out that the requirement under rule 46, of furnishing the Enquiry Officer's report, is attracted only in cases where the punishment is one of dismissal, removal, reduction in emoluments of reversion to a lower post and in no other cases. According to him, withholding of increment is not the type of case to which requirement of rule 46, of furnishing the Enquiry Officer's report, is attracted. Besides this, it is brought to our notice that the reply filed on behalf of the respondents, for opposing the writ petition, para 28 thereof clearly asserts that copy of the Enquiry Officer's report was furnished to the petitioner after he had made an application in that behalf. This factual matrix is not in dispute at all.
5. Having given our anxious consideration to the rival submissions we have no hesitation in concluding that on plain language of the relevant rules, the requirement of rule 46, of furnishing the Enquiry Officer's report to the Delinquent Officer, would arise only when the penalty to be imposed is one of dismissal, removal, reduction in emoluments or reversion to lower post and in no other situation. In our view, punishment of withholding of increment cannot be equated with the punishment of reduction in emoluments, as is sought to be contended on behalf of the petitioner. Even if we were to accept the petitioner's argument that the rule mandates furnishing of Enquiry Officer's report to the Delinquent Officer, however, the said question would not arise in the present case, in view of the specific stand taken on behalf of the respondents that the report was made available to the petitioner when demanded. Furthermore, the grievance that the order of punishment is vitiated due to non supply of Enquiry Officer's report was obviously not argued at all before the Appellate Authority; for, there is no reference to the said question in the order passed by the Appellate Authority which is now under challenge before us. The learned counsel for the petitioner no doubt referred to the decision of the Apex Court in Ramzan Khan's case in support of the submission that it was imperative to furnish copy of the Enquiry Officer's report to the Delinquent Officer before the order of punishment came to be passed, however, in our view, even this submission is totally misplaced as it clearly overlooks the well settled legal positionenunciated by the Apex Court that the principle in Ramzan Khan's case would apply only prospectively. Taking any view of the matter, there is no substance in the first point raised by the petitioner: and we, therefore, reject the same.
6. Now coming to the second point raised on behalf of the petitioner that the appellate order suffers from the vice of incompetence of the Deputy Municipal Commissioner, Zone II to hear and decide the appeal, it is argued that since the order of punishment having been passed by a City Engineer, appeal against the said order could have been maintained only before the Commissioner and no other officer. The learned counsel for the petitioner has argued that the Commissioner was not right in delegating the authority of hearing and deciding the appeal to any other subordinate officer. Reliance was placed on rule 53 to buttress this submission. On the other hand the learned counsel for the respondents countered this submission by placing reliance on rule 53 itself to contend that the Commissioner was competent to delegate the authority of hearing the appeal to the Deputy Municipal Commissioner as was done in the present case. Before dealing with the rival contentions we would prefer to reproduce rule 53 which reads thus :
'53. An appeal against the orders passed by a Competent Authority shall ordinarily lie to the authority next higher to such Competent Authority. If the order of punishment is passed by the Head of the Department an appeal may be made to the Deputy Municipal Commissioner in-charge of that Departments where the order is passed by a Deputy Municipal Commissioner, the appeal may be made to the Municipal Commissioner who may either dispose of it himself or direct another Deputy Municipal Commissioner who may direct a Deputy Municipal Commissioner or two Deputy Municipal Commissioners together to hear the appellant and to submit to him his/their report as regards the findings, and the Commissioner shall thereafter pass suitable orders which shall be final. Every appeal must be submitted through the Officer passing the order of punishment and through the Head of the Department.'
7. On plain reading of the aforesaid provision it would appear that ordinarily an appeal would lie against the order passed by the Competent. Authority to the authority next higher to such Competent Authority. In the present case, since the order in question was passed by the City Engineer, there was no inhibition in the Deputy Municipal Commissioner deciding the appeal against the said order; especially when the Commissioner had delegated the power to the Deputy Municipal Commissioner in that behalf. In our view, it would be expecting too much of the Municipal Commissioner to act as an Appellate Authority in each and every departmental proceedings. Having regard to the nature of functions to be performed by the Municipal Commissioner, the rule permits the Municipal Commissioner to delegate the authority to the Deputy Municipal Commissioner. Since In the present case, the said authority was delegated to the Deputy Municipal Commissioner, the competence of the Deputy Municipal Commissioner in deciding the appeal cannot, therefore, be questioned. Besides the above position, we are inclined to reject the petitioner's contention also for the additional reason that this objection was not raised on behalf of the petitioner before the Appellate Authoritywhen the appeal was taken up for hearing. On the other hand, the petitioner, who was given assistance for effectively defending his case by engaging Shri Pagare, argued the appeal only with reference to the question of punishment. In the circumstances it is not possible to entertain the contention that the appeal decided by the Deputy Municipal Commissioner, Zone II was without authority of law. Accordingly even this contention would fail and is thus rejected.
8. For the aforesaid reasons, there is no substance in the present writ petition; and, the same is therefore dismissed. No order as to costs. Rule stands discharged.