MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPAL CORPORATION AND ANR.versusR. M. DOSHI

                        [2023] 4 S.C.R. 1109                             1109


   MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPAL                            A
              CORPORATION AND ANR.
                                  v.
                           R. M. DOSHI
                   (Civil Appeal No. 6069 of 2012)                       B
                           MAY 02, 2023
          [M. R. SHAH AND J. B. PARDIWALA, JJ.]
       Gujarat Civil Services (Disciplinary and Appeal) Rules, 1971
– Rule 6 – Respondent was discharging his duty as city engineer of
                                                                         C
the appellant-Municipal corporation – Respondent was charged
with irregularities in the execution of work and construction of roads
– Commissioner of the Municipal Corporation passed a dismissal
order against the respondent – Respondent challenged the dismissal
order before the High Court, arguing that the Commissioner lacked
the authority and jurisdiction – Appellant corporation submitted         D
that under Resolution No.51, the commissioner had passed the final
order and his order was ratified by the General body of corporation
– Single Judge of the High Court quashed the dismissal order based
on the lack of authority of the Commissioner – The Division Bench
upheld the decision of the Single Judge – On appeal, held: The
                                                                         E
High Court have rightly observed that the Resolution No.51 did not
authorize and confer any power upon the Commissioner to take
action with respect to any other lapses other than the purchases –
However, the General Board had the power to pass an order of
dismissal and the decision of the Commissioner was placed before
the General Board and the decision was ratified – Therefore, the         F
dismissal can be said to be an order passed by the General Board –
Judgment of High Court quashed and set aside – Order of dismissal
restored.
      Allowing the appeal, the Court
      HELD: 1. The submission on behalf of the appellant                 G
Corporation that vide Resolution No. 51 dated 20.11.1998, the
Commissioner was authorized to take action against any officer
with regard to the lapses and/or negligence on the part of the
officers in various works and purchases is concerned, on going
through the Resolution No. 51, it appears that though the issue          H
                                1109
1110           SUPREME COURT REPORTS                    [2023] 4 S.C.R.


 A     raised was with regard to the lapses and negligence on the part
       of the officers in various works and purchases and was discussed,
       however, ultimately, what was resolved was to empower the
       Commissioner to take proper and necessary action against those
       erring officers, who committed lapses and carelessness in various
       works in purchases and take action as per the rules and
 B
       regulations, wherever, necessary. Therefore, the Commissioner
       was authorized to take action against the erring officers with
       respect to the lapses and carelessness with various works in
       purchases only. Therefore, both the Single Judge as well as the
       Division bench of the High Court have rightly observed and held
 C     that the Resolution No. 51 did not authorize and/or confer any
       power upon the Commissioner to take action with respect to any
       other lapses other than the purchases. However, at the same
       time, it is required to be noted that the decision of the
       Commissioner was placed before the General Board and the
       General Board vide its Resolution No.56 dated 15.12.1998 as
 D
       amended by subsequent Resolution dated 30.12.1998, ratified
       the decision of the Commissioner dismissing the respondent from
       service. In the present case, the General Board had the power
       to pass an order of dismissal, which is not even disputed by the
       learned counsel appearing on behalf of the respondent. The
 E     decision of the Commissioner was placed before the General
       Board and the General Board had ratified the said decision.
       Therefore, thereafter, the dismissal can be said to be an order
       passed by the General Board. [Para 7.1][1115-C-G; 1116-A-B]
             2. Applying the law laid down by this Court in the case of
 F     Pannalal Choudhury to the facts of the case on hand, any
       irregularity complained of by the respondent on the authority
       exercised by the Commissioner to dismiss him stood ratified by
       the competent authority (General Board) thereby making an
       invalid act a lawful one in conformity with the procedure
       prescribed under the Act and the Rules. [Para 7.2][1116-F]
 G
            National Institute of Technology and Anr. Vs. Pannalal
            Choudhury and Anr., (2015) 11 SCC 669 : [2015] 8
            SCR 78 – referred to.


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   MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPAL                                  1111
        CORPORATION AND ANR. v. R. M. DOSHI

      Marathwada University Vs. Seshrao Balawant Rao                           A
      Chavan, (1989) 3 SCC 132 : [1989] 2 SCR 454 – held
      inapplicable.
                         Case Law Reference
[2015] 8 SCR 78                    referred to                 Para 4.1
                                                                               B
[1989] 2 SCR 454                   held inapplicable           Para 5.1
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6069
of 2012.
      From the Judgment and Order dated 15.11.2011 of the High Court
of Gujarat at Ahmedabad in LPA No. 726 of 2006 in SCA No. 10682 of             C
1998.
      Preetesh Kapur, Sr. Adv., Ms. Hemantika Wahi, Ms. Jesal Wahi,
Kabir Hathi, Advs. for the Appellants.
      Ms. Jaikriti S. Jadeja, Amaan Shreyas, Advs. for the Respondent.
                                                                               D
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court of Gujarat at
Ahmedabad in Letters Patent Appeal No. 726 of 2006 by which the                E
Division Bench of the High Court has dismissed the said appeal preferred
by the appellant – Jamnagar Municipal Corporation and has confirmed
the judgment and order passed by the learned Single Judge in Special
Civil Application No. 10682 of 1998 by which the learned Single Judge
allowed the said application preferred by the respondent herein and has        F
quashed and set aside the dismissal order passed by the Commissioner,
the Jamnagar Municipal Corporation has preferred the present appeal.
      2. The facts leading to the present appeal in nutshell are as under:-
       2.1 That the respondent herein, at the relevant time, was discharging
his duty as City Engineer of the appellant – Municipal Corporation. That       G
for certain execution of work and construction of roads within the
Municipal Corporation area, it was found that the respondent had
committed certain irregularities. A chargesheet came to be issued against
him on 15.01.1993. The respondent did not agree to the charges levelled
against him. Therefore, a departmental inquiry was conducted against
                                                                               H
1112            SUPREME COURT REPORTS                           [2023] 4 S.C.R.


 A     him. Upon conclusion of the inquiry, the Inquiry Officer submitted his
       report dated 06.10.1995.
              2.2 The Inquiry Report was made available to him calling for his
       representation. Report of the Inquiry Officer was supplied alongwith
       notice dated 02.09.1998. He was called upon to show cause as to why
 B     major penalty as provided under Rule 6 of the Gujarat Civil Services
       (Disciplinary and Appeal) Rules, 1971, should not be imposed upon him.
       The respondent replied to the said show cause notice. The Commissioner
       of the Municipal Corporation, thereafter, passed a dismissal order dated
       07.12.1998 by which the respondent was ordered to be dismissed from
       service.
 C
              2.3 The order of dismissal passed by the Commissioner of the
       Municipal Corporation was challenged by the respondent before the
       learned Single Judge of the High Court. Before the learned Single Judge,
       the respondent challenged the inquiry report as well as the dismissal
       order on merits and also on the ground that the Commissioner, who
 D     passed the order of dismissal was not having any jurisdiction and/or
       authority to pass a dismissal order and impose the major penalty.
             2.4 It was the case on behalf of the respondent before the learned
       Single Judge that the Resolution No. 51 dated 20.11.1998 passed by the
       General Board of the Jamnagar Municipal Corporation did not empower
 E     the Municipal Corporation to initiate and/or to conclude the disciplinary
       proceedings for the alleged irregularities or negligence in the present
       case.
               2.5 The petition was opposed by the Corporation on merits as
       well as on the authority of the Commissioner. It was submitted that
 F     under Resolution No. 51 dated 20.11.1998, the Commissioner had passed
       the final order of penalty. It was contended that the delegation covers all
       kinds of works including purchases and other execution of work in which
       it is found that the officer has committed irregularity or had acted in a
       negligent manner. It was further submitted that eventually, the General
 G     Body of the Corporation vide its Resolution No.56 dated 15.12.1998 as
       amended by subsequent Resolution dated 30.12.1998, had ratified the
       action taken by the Commissioner.
             2.6 The learned Single Judge though held on merits against the
       respondent but, however, set aside the order of dismissal passed by the
       Commissioner solely on the ground that the Commissioner had no
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  MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPAL                                1113
 CORPORATION AND ANR. v. R. M. DOSHI [M. R. SHAH, J.]

authority and/or power to impose any major penalty upon the respondent      A
for the misconduct proved. The learned Single Judge observed that the
Resolution No. 51 dated 20.11.1998 conferred power upon the
Commissioner for initiating action for irregularities with respect to the
purchases only and not with respect to any other misconduct and/or
irregularity. The learned Single Judge also held that the subsequent
                                                                            B
ratification by the General Board would not confer any authority upon
the Commissioner and the subsequent ratification of the action of the
Commissioner would not save the action. Consequently, the learned Single
Judge allowed the writ petition and set aside the order of dismissal with
all consequential benefits.
      2.7 The judgment and order passed by the learned Single Judge         C
was the subject matter of appeal before the Division Bench by way of
Letters Patent Appeal No. 726 of 2006 by which the learned Single
Judge upheld the inquiry and the inquiry report. The respondent also
preferred Letters Patent Appeal No. 752 of 2006.
      2.8 By the impugned judgment and order, the Division Bench of         D
the High Court has dismissed the appeal preferred by the appellant
Corporation. In view of the dismissal of appeal preferred by the
Corporation, learned counsel appearing on behalf of the respondent did
not press the Letters Patent Appeal No. 752 of 2006.
       2.9 Feeling aggrieved and dissatisfied with the impugned judgment    E
and order passed by the Division Bench of the High Court dismissing
Letters Patent Appeal No. 726 of 2006 and confirming the judgment and
order passed by the learned Single Judge, quashing and setting aside the
dismissal order passed by the Commissioner, the Corporation has
preferred the present appeal.                                               F
      3. While issuing the notice dated 26.03.2012, this Court had stayed
the operation of the impugned judgment. However, thereafter vide order
dated 24.08.2012, while granting leave, this Court has directed that the
appellants shall continue to pay a lump-sum amount of Rs. 10,000/- per
month to the respondent w.e.f. 01.04.2012. It is reported that the said     G
amount of Rs. 10,000/- per month thereafter is being paid to the
respondent.
      4. Mr. Preetesh Kapur, learned Senior Advocate, appearing on
behalf of the appellants has vehemently submitted that both the learned
Single Judge as well as the Division Bench of the High Court have
                                                                            H
1114             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


 A     materially erred in observing that the Commissioner had no power and/
       or authority to pass the order of dismissal against the respondent. It is
       submitted that the Resolution No. 51 dated 20.11.1998 authorised the
       Commissioner to pass the final order of penalty and the said delegation
       covers all kinds of works including purchases and other execution of
       work in which it is found that the officer has committed irregularity and/
 B
       or had acted in a negligent manner.
              4.1 It is submitted that in any case, thereafter, the decision of the
       Commissioner to dismiss the respondent from service was placed before
       the General Board and the General Board of the Corporation vide its
       Resolution No.56 dated 15.12.1998 as amended by subsequent Resolution
 C
       dated 30.12.1998, ratified the action taken by the Commissioner. It is
       submitted that the said ratification would relate back to the order of
       dismissal passed by the Commissioner. It is submitted that even if the
       order passed by the Commissioner can be said to be invalid, the same
       came to be ratified subsequently, the said defect, in any case, can be
 D     said to have been cured. Heavy reliance is placed on the decision of this
       Court in the case of National Institute of Technology and Anr. Vs.
       Pannalal Choudhury and Anr., (2015) 11 SCC 669 (paras 13 and
       33).
             5. Present appeal is vehemently opposed by Ms. Jaikriti S. Jadeja,
 E     learned counsel appearing on behalf of the respondent.
              5.1 It is submitted that insofar as the Resolution No.51 dated
       20.11.1998 is concerned, it conferred power upon the Commissioner to
       take action with respect to any irregularity in case of purchases only and
       not with respect to any other misconduct. It is submitted that, therefore,
 F     the decision of the Commissioner to dismiss the respondent from service
       was void ab initio and therefore, the subsequent ratification by the
       General Board cannot save the order of dismissal. Reliance is placed on
       the decision of this Court in the case of Marathwada University Vs.
       Seshrao Balawant Rao Chavan, (1989) 3 SCC 132 (paras 27 and
 G     28).
              5.2 In the alternative, it is further submitted that the respondent,
       at present, is aged 75 years of age and he is being paid Rs. 10,000/- per
       month w.e.f. 01.04.2012.
             6. Heard the learned counsel for the respective parties.
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  MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPAL                                  1115
 CORPORATION AND ANR. v. R. M. DOSHI [M. R. SHAH, J.]

       7. At the outset, it is required to be noted that after departmental   A
proceedings and on conclusion of the inquiry, the charges and the
misconduct alleged against the respondent have been proved, which has
been even confirmed by the learned Single judge. However, thereafter,
solely on the ground that the Commissioner, who passed the order of
dismissal had no power / authority to impose the penalty of dismissal on
                                                                              B
the respondent, who, at the relevant time, was serving as City Engineer,
the learned Single Judge quashed the order of dismissal with all
consequential benefits and the same has been confirmed by the Division
Bench.
       7.1 Now, insofar as the submission on behalf of the appellant
Corporation that vide Resolution No. 51 dated 20.11.1998, the                 C
Commissioner was authorized to take action against any officer with
regard to the lapses and/or negligence on the part of the officers in
various works and purchases is concerned, on going through the
Resolution No. 51, it appears that though the issue raised was with regard
to the lapses and negligence on the part of the officers in various works     D
and purchases and was discussed, however, ultimately, what was resolved
was to empower the Commissioner to take proper and necessary action
against those erring officers, who committed lapses and carelessness in
various works in purchases and take action as per the rules and
regulations, wherever, necessary. Therefore, the Commissioner was
authorized to take action against the erring officers with respect to the     E
lapses and carelessness with various works in purchases only. Therefore,
both the learned Single Judge as well as the Division bench of the High
Court have rightly observed and held that the Resolution No. 51 did not
authorize and/or confer any power upon the Commissioner to take action
with respect to any other lapses other than the purchases. However, at        F
the same time, it is required to be noted that the decision of the
Commissioner was placed before the General Board and the General
Board vide its Resolution No.56 dated 15.12.1998 as amended by
subsequent Resolution dated 30.12.1998, ratified the decision of the
Commissioner dismissing the respondent from service. Learned counsel
appearing on behalf of the respondent has relied upon the decision of         G
this Court in the case of Marathwada University (supra) and relying
upon paragraph 27, it is submitted that as observed and held by this
Court a decision ab initio void cannot be ratified. However, the said
decision shall not be applicable to the facts of the case on hand. The
decision of the Commissioner cannot be said to be per se void ab initio.      H
1116             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


 A     It is to be noted that even otherwise, in the present case, the General
       Board had the power to pass an order of dismissal, which is not even
       disputed by the learned counsel appearing on behalf of the respondent.
       The decision of the Commissioner was placed before the General Board
       and the General Board had ratified the said decision. Therefore, thereafter,
 B     the dismissal can be said to be an order passed by the General Board. At
       this stage, the decision of this Court in the case of Pannalal Choudhury
       (supra) on ratification is required to be referred to. On discussing the
       entire law on ratification, thereafter in paragraph 33, it is observed and
       held as under:-

 C           “33. Applying the aforementioned law of ratification to the facts
             at hand, even if we assume for the sake of argument that the
             order of dismissal dated 16-8-1996 was passed by the Principal
             and Secretary who had neither any authority to pass such order
             under the Rules nor was there any authorisation given by the
             BoG in his favour to pass such order yet in our considered view
 D           when the BoG in their meeting held on 22-8-1996 approved the
             previous actions of the Principal and Secretary in passing the
             respondent’s dismissal order dated 16-8-1996, all the irregularities
             complained of by the respondent in the proceedings including the
             authority exercised by the Principal and Secretary to dismiss him
 E           stood ratified by the competent authority (Board of Governors)
             themselves with retrospective effect from 16-8-1996 thereby
             making an invalid act a lawful one in conformity with the procedure
             prescribed in the Rules.”
             7.2 Applying the law laid down by this Court in the case of Pannalal
 F     Choudhury (supra) to the facts of the case on hand, any irregularity
       complained of by the respondent on the authority exercised by the
       Commissioner to dismiss him stood ratified by the competent authority
       (General Board) thereby making an invalid act a lawful one in conformity
       with the procedure prescribed under the Act and the Rules.
 G           7.3 In that viewof the matter, the impugned judgment and order
       passed by the Division Bench of the High Court as well as the learned
       Single Judge quashing and setting aside the order of dismissal are
       unsustainable and deserve to be quashed and set aside and are accordingly
       quashed and set aside. However, at the same time, it is directed that any
       amount paid to the respondent, namely, Rs. 10,000/- per month w.e.f.
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  MUNICIPAL COMMISSIONER, JAMNAGAR MUNICIPAL                                      1117
 CORPORATION AND ANR. v. R. M. DOSHI [M. R. SHAH, J.]

01.04.2012 pursuant to the order passed by this Court be not recovered            A
from the respondent despite allowing the present appeal and restoring
the order of dismissal.
       Present appeal is accordingly allowed. No costs.

Ankit Gyan                                                      Appeal allowed.
                                                                                  B
(Assisted by : Abhishek Agnihotri and Aarsh Choudhary, LCRAs)




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