27-WP-2501-2019.DOC

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.2501 OF 2019

Kiran Ramesh Waghela …Petitioner

Vs.

Municipal Corporation of Greater Mumbai

& Ors.

…Respondents

Mr. Bhavesh Parmar, i/b. Devmani Shukla and Vijayprakash

Yadav for the Petitioner.

Mr. Abhishek Khare with Ms. Rupali Adhate for MCGM.

CORAM: K.K.TATED &

R.I. CHAGLA, JJ.

DATE : 24TH FEBRUARY, 2021

J U D G M E N T ( Per R.I. Chagla, J. )

1.Rule. Rule made returnable forthwith. Heard by

consent.

2.This Petition fled under Article 226 of the Constitution

of India challenges order dated 23rd April, 2019 (“the

impugned order”) issued by the Assistant Commissioner, M/P

Ward of the Respondent No.1 (“Respondent - Corporation”)

suspending the Petitioner on account of his having violated

Rules 3, 8 and 11 of Municipal Corporation of Brihanmumbai

Services (Conduct) said Rules, 1999 (for short “the Rules”).

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3.The Petitioner had joined the employment of the

Respondent – Corporation in or about 1995 with designation

of P. T. Mukadam in SWM department. The Petitioner’s

meritorious service record resulted into his timely promotion

to the post of Junior Overseer with the SWM Department.

The post was assigned to the Petitioner in the year 2011.

4.In proceedings before the Industrial Tribunal at

Mumbai, being Reference (IT) No.81 of 2005, the Industrial

Tribunal on 16th April, 2019 issued a witness summons

dated 18th April, 2019 pursuant to order dated 16th April,

2019 to the Petitioner directing the Petitioner to remain

present before the Industrial Tribunal on 20th April, 2019.

This was done by the Industrial Tribunal in exercise of power

under Section 11(3) of the Industrial Disputes Act read along

with Rule 19 and 20 of the Industrial Disputes (Bombay)

Rules, 1957. The Respondent – Corporation was the frst

party in Reference (IT) No.81 of 2005.

5.Pursuant to the witness summons issued by the

Industrial Tribunal, the Petitioner preferred an application

on 20th April, 2019 before the Tribunal and sought an

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adjournment, which was allowed. Thereafter on 22nd April,

2019, the Petitioner submitted a letter to his immediate

superior offcer i.e. Respondent No.5 by which letter the

Petitioner provided a copy of the Affdavit which the

Petitioner intended to submit as his evidence before the

Industrial Tribunal in the said Reference. In the letter it was

mentioned that the Petitioner should be informed whether

Respondent No.5 or the Respondent – Corporation had any

objection to the contents of the Affdavit that the Petitioner

was intending to submit before the Industrial Tribunal. The

said letter dated 22nd April, 2019 was received and

acknowledged by the Respondent No.5. However, the same

was never replied and remains un-replied till date.

6.The Petitioner had on 23rd April, 2019 submitted his

application to the Industrial Tribunal in the said Reference

wherein the fact of submission of letter dated 22nd April,

2019 by the Petitioner to the Respondent – Corporation was

clearly mentioned. On that day, the Petitioner’s Affdavit in

lieu of Examination in Chief was taken on record by the

Industrial Tribunal in the said Reference through solemn

affrmation.

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7.The Petitioner has stated that the contents of the

Affdavit in lieu of Examination in Chief was identical to the

contents of the draft Affdavit that was submitted by the

Petitioner to the Respondent – Corporation vide letter dated

22nd April, 2019. It has been mentioned that on 23rd April,

2019, the Industrial Tribunal being busy with other matters,

took up the evidence of the Petitioner in the said Reference in

the second session post lunch and the process of

Examination in Chief and thereafter cross examination

conducted by the Advocate of the Respondent Corporation

got completed at about 4.15 p.m.

8.The Petitioner was served on 27th April, 2019 with the

impugned order which suspended the Petitioner with

immediate effect i.e. from 23rd April, 2019 for violation of

Rules 3, 8 and 11 of the said Rules.

9.Thereafter, the Petitioner submitted a letter to the

Respondent – Corporation on or about 2nd May, 2019 in

response to the impugned order.

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10.The Petitioner preferred a Complaint being (ULP)

No.132 of 2019 on or about 14th May, 2019 before the

Industrial Court at Mumbai, seeking various reliefs claiming

that the Petitioner falls within the defnition and

classifcation of worker. The Respondent Corporation fled

their written statement in the said Complaint on 4th June,

2019 for deciding the preliminary issue of jurisdiction of the

Industrial Court by claiming that the Petitioner does not fall

within the defnition and classifcation of worker.

11.The Petitioner preferred the present Writ Petition on

23rd July, 2019 challenging the impugned order. Since the

Respondent – Corporation had raised the issue of jurisdiction

before the Industrial Court in the said Complaint, the

Petitioner had withdrawn the said Complaint and this has

been recorded by this Court in order dated 2nd February,

2021. Prior to the said order, the Petitioner had fled an

additional Affdavit dated 6th January, 2021, wherein the

Petitioner apologized to this Court for an incorrect statement

made by his Advocate on instructions that the Petitioner had

already withdrawn the said Complaint being (ULP) No.132 of

2019 before the Industrial Court as recorded in order dated

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22nd December, 2020. It has been mentioned in the said

Affdavit that the correct factual position is that the

application for withdrawal of the said Complaint was

preferred by the Petitioner on 14th October, 2020 and fnally

disposed of vide order dated 4th January, 2021.

12.The Respondent – Corporation have fled the Affdavit

of one Smt. Supriya Mohan Tambe, Administrative Offcer,

SWM Department, M/West Ward in employment with

Respondent – Corporation dated 24th November, 2020 in

reply to the Petition. In the said Affdavit in Reply it has been

stated that the Petitioner without informing or seeking

permission from the Respondent – Corporation appeared and

gave evidence as witness before the Industrial Tribunal in the

said Reference. It has been stated that the Petitioner

appeared before the Industrial Tribunal on 23rd April, 2019

i.e. one day after informing the Respondents that the

Petitioner was going to appear. This did not accord adequate

time to the Respondents to process the application of the

Petitioner which was sent by letter dated 22nd April, 2019 or

review the draft Affdavit which accompanied the said letter.

It has been stated that the Petitioner failed to inform the

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Legal Department of the Respondent – Corporation that he

was appearing as witness and giving evidence on behalf of

Respondent – Corporation in the said Reference. It has

further been stated in the said Affdavit in Reply that the

impugned order has been served on the Petitioner for

breaches committed by the Petitioner of Rules 3, 8 and 11 of

the said Rules.

13.It is further stated in the Affdavit in Reply that

subsequent to the suspension order dated 23rd April, 2019,

the Respondents have paid the Petitioner a suspension

allowance of 50% of basic and dearness allowance for the

period April, 2019 to July, 2019 amounting to Rs.37,740/-.

The Respondents have further paid to the Petitioner a

suspension allowance of 75% of basic and dearness allowance

for the period July, 2019 to May, 2020 amounting to

Rs.2,39,712/-. They have further paid the Petitioner a

suspension allowance of 75% of basic and dearness allowance

for the month of June, 2020 amounting to Rs.37,183/-. The

further payment of suspension allowance to the Petitioner is

under process.

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14.Learned Advocate Mr. Bhavesh Parmar appearing for

the Petitioner has referred to the impugned order of

suspension dated 23rd April, 2019 by which the Petitioner

has been remained suspended with immediate effect from

that date for alleged violation of Rules 3, 8 and 11 of the said

Rules. He has drawn reference to Rule 11 of the said Rules,

which provides that no Corporation employee shall except

with previous sanction of the Competent Authority give

evidence in connection with any inquiry conducted by any

person, committee or authority. He has specifcally drawn

reference to Rule 11(3) of the said Rules which provides that

nothing in this rule shall apply to evidence given by a

Corporation employee at a judicial inquiry. He has submitted

that by reading Rule 11(3), it is clear that the employee of

the Corporation can give evidence in a judicial inquiry such

as inquiry before the Industrial Tribunal. Thus the

Petitioner’s fling of Affdavit in lieu of Examination in Chief

before the Industrial Tribunal did not require previous

sanction of the Respondent- Corporation as per Rule 11(3) of

the said Rules. He has submitted that the Petitioner has

similarly not violated Rules 3 and 8 of the Rules which

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respectively provided for the duty of the Corporation

employee to maintain integrity, devotion to duty, etc. and

Rule 8 which is joining of association by Corporation

employees. He has submitted that there has been no violation

of the said Rules by the Petitioner, submitting his evidence

before the Industrial Tribunal.

15.Learned Counsel for the Petitioner further submitted

that in fact the Petitioner had prior to giving evidence before

the Industrial Tribunal informed the Respondent No.5 by his

letter dated 22nd April, 2019 which annexed a copy of the

draft Affdavit that the Petitioner intended to submit as his

evidence before the Industrial Tribunal. The Petitioner had

expressly requested the Respondent – Corporation through

Respondent No.5 that he should be informed of any objection

which Respondent – Corporation may have to the contents of

the Affdavit that the Petitioner intended to submit before the

Industrial Tribunal. However, the Respondent – Corporation

despite receiving the said letter dated 22nd April, 2019,

never replied to the same.

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16.Learned Counsel for the Petitioner has submitted that

the Petitioner was being punished by suspension inspite of

the Petitioner complying with the directions of the Industrial

Tribunal and the witness summons issued to the Petitioner

summoning the Petitioner to depose before the Industrial

Tribunal on oath for the purpose of stating true and correct

facts. He has submitted that the impugned order has been

issued in undue haste on 23rd April, 2019 considering the

fact that the evidence of the Petitioner was conducted and

completed on that very day before the Industrial Tribunal. He

has submitted that the Respondent – Corporation were fully

aware of the evidence being submitted by the Petitioner on

23rd April, 2019 as well as the witness summons being

issued to the Petitioner vide order dated 16th April, 2019

passed by the Industrial Tribunal and despite which the

Respondent - Corporation had not challenged the said order.

17.Learned Counsel for the Petitioner has further

submitted that the impugned order of suspension dated 23rd

April, 2019 remains in operation even today. He has relied

upon the decision of the Supreme Court in the case of Ajay

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Kumar Choudhary Vs. Union of India & Anr.

1

. In the said

decision it has been held that the currency of a suspension

order should not extend beyond three months if within this

period the memorandum of charges / charge-sheet is not

served on the delinquent offcer / employee. He has submitted

that for any extension of the period of suspension beyond

three months, a reasoned order must be passed for extension

of the suspension. This is provided that the memorandum of

charges / charge-sheet is served. In the present case, the

Respondent – Corporation has neither fled any

memorandum of charges / charge-sheet nor served the same

on the Petitioner within the three months of the impugned

order of suspension. In fact till today no memorandum of

charges / charge sheet has been fled. He has accordingly

submitted that since currency of the suspension order goes

beyond three months and no memorandum of charges /

charge-sheet being served upon the Petitioner, the impugned

order of suspension requires to be quashed and set aside.

18.Mr. Abhishek Khare, learned Counsel appearing for the

Respondent – Corporation has raised the issue as to the

1 (2015) 7 Supreme Court Cases 291.

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maintainability of this Petition on a ground that there is an

alternate and effcacious remedy available to the Petitioner

under Section 15 of the Administrative Tribunals Act, 1985.

He has relied upon Section 15 read with Sections 2P and 2Q

of the Administrative Tribunals Act, 1985 which provides

that the State Administrative Tribunal has jurisdiction over

all service matters concerning a person and relating to the

conditions of his service in connection with the affairs of the

State. This would include the service of the Petitioner with

the Respondent – Corporation. He has accordingly submitted

that the present Writ Petition is not maintainable and the

Petitioner be directed to move the Administrative Tribunal.

19.Learned Counsel for Respondents – Corporation has

submitted that there were good reasons for issuance of the

impugned order of suspension on 23rd April, 2019. He has

submitted that the Petitioner had failed to provide adequate

notice to the Respondents to enable the Respondents to

process Petitioner’s application for giving evidence before the

Industrial Tribunal in said Reference and / or for review of

the draft Affdavit which had been sent by the Petitioner and

which was to be fled before the Industrial Tribunal. The

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application along with the draft Affdavit of evidence had

been sent to the Respondent - Corporation only one day prior

to the Petitioner giving evidence before the Industrial

Tribunal. He has submitted that this was in clear violation of

the Rules and in particular Rules 3, 8 and 11 of the said

Rules. He has submitted that the Petitioner had prior to

giving of evidence before the Industrial Tribunal appeared

before the Tribunal without informing or seeking permission

from the Respondent – Corporation. He has accordingly

submitted that the impugned order was just and proper and

in accordance with the Rules.

20.Learned Counsel for the Respondent – Corporation

referred to the decision of the Delhi High Court in the case of

Govt. of NCT of Delhi vs. Dr. Rishi Anand

2

. He has submitted

that in the said decision, the Delhi High Court had occasion to

consider the decision of the Supreme Court in Ajay Kumar

Choudhary (Supra).

21.Paragraph nos. 17, 18 and 19 read thus:-

2 W.P. (C) 8134 of 2017 and C.M. No.33423 of 2017

decided on 13th September, 2017.

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17. It may not always be possible for the

government to serve the charge sheet on the offcer

concerned within a period of 90 days, or even the

extended period, for myriad justifable reasons. At

the same time, there may be cases where the

conduct of the government servant may be such,

that it may be undesirable to recall the suspension

and put him in position once again, even after

sanitizing the environment so that he may not

interfere in the proposed inquiry. On a reading of

Ajay Kumar Choudhary (supra), we are of the view

that the Supreme Court has not denuded the

Government of its authority to continue/ extend the

suspension of the government servant - before, or

after the service of the charge sheet - if there is

suffcient justifcation for it. The Supreme Court

has, while observing that the suspension should not

be extended beyond three months - if within this

period the memorandum of charges / charge-sheet

is not served on the delinquent offcer, has stopped

short of observing that if the charge memo / charge-

sheet is not issued within three months of

suspension, the suspension of the government

servant shall automatically lapse, without any

further order being passed by the Government. No

such consequence - of the automatic lapsing of

suspension at the expiry of three months if the

charge memo/ charge-sheet is not issued during

that period, has been prescribed. In Kailash Vs.

Nanhku & Others, AIR 2005 SC 2441, while

examining the issue: whether the obligation cast on

the defendant to fle the written statement to the

plaint under Rule (1) of Order 8 CPC within the

specifed time was directory or mandatory i.e.

whether the Court could extend the time for fling of

the written statement beyond the period specifed

in Rule 1 of Order 8, the Supreme Court held that

the Court had the power to extend the time for fling

of the written statement, since there was no

consequence prescribed fowing from non-extension

of time. In para 29 of this decision, the Supreme

Court observed as follows:

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"29. It is also to be noted that though the

power of the court under the proviso

appended to Rule 1 Order 8 is

circumscribed by the words "shall not be

later than ninety days" but the

consequences fowing from non-extension

of time are not specifcally provided for

though they may be read in by necessary

implication. Merely because a provision of

law is couched in a negative language

implying mandatory character, the same is

not without exceptions. The courts, when

called upon to interpret the nature of the

provision, may, keeping in view the entire

context in which the provision came to be

enacted, hold the same to be directory

though worded in the negative form."

(emphasis supplied)

18. The direction issued by the Supreme Court is

that the currency of the suspension should not be

extended beyond three months, if the charge

memorandum/ charge-sheet is not issued within the

period of 3 months of suspension. But it does not

say that if, as a matter of fact, it is so extended it

would be null and void and of no effect. The power of

the competent authority to pass orders under Rule

10(6) of the CCS (CCA) Rules extending the

suspension has not been extinguished by the

Supreme Court. The said power can be exercised if

good reasons therefor are forthcoming.

19. The decision of the Supreme Court in Ajay

Kumar Choudhary (supra) itself shows that there

cannot be a hard and fast rule in this regard. If that

were so, the Supreme Court would have quashed the

suspension of Ajay Kumar Choudhary. However, in

view of the fact that the charge memo had been

issued to Ajay Kumar Choudhary - though after

nearly three years of his initial suspension, the

Supreme Court held that the directions issued by it

would not be relevant to his case.”

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22.The learned Counsel for Respondent – Corporation has

submitted that the Delhi High Court has upon considering the

decision of the Supreme Court in Ajay Kumar Choudhary

(Supra) observed that there cannot be a hard and fast rule

and there may be a myriad justifable reasons for the

Government not serving the charge sheet on the offcer

within the period of 90 days or even the extended period. The

decision of the Supreme Court does not say that if the charge

sheet is not issued within the period of three months of

suspension, the extension of suspension would be null and

void and of no effect. The power of extending suspension can

be exercised if good reasons are forthcoming.

23.The learned Counsel for Respondent – Corporation has

accordingly submitted that in the present case there were

good reasons for the issuance of the impugned order and

extension of suspension of the Petitioner by the Respondent –

Corporation. Hence, there is no merit in this Petition which

challenges the impugned order and that this Petition be

dismissed.

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24.We have considered the rival submissions. It is

apparent from the said Municipal Corporation of

Brihanmumbai Services (Conduct) Rules, 1999 and in

particular Rule 11 thereof that where has been evidence

given by a Corporation employee in a judicial inquiry, the

previous sanction of the Competent Authority is not required.

Rule 11 of the said Rules reads as under:-

11. Evidence before committee or any other

authority:-

1) Save as provided in sub-rule (3), no

Corporation employee shall, except with the

previous sanction of the Competent Authority,

give evidence in connection with any inquiry

conducted by any person, committee or authority.

2) No corporation employee shall, while giving

evidence with the sanction of the Competent

Authority criticize the policy or any action of the

Corporation or of any Government in India.

3) Nothing in this rule shall apply to evidence

given by Corporation employee at any-

a) enquiry before an authority appointed by

Government or by the Parliament or by any State

Legislature or

b) Judicial enquiry, or

c) Departmental Enquiry ordered by the

Competent Authority.

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25.Thus, the Petitioner being a Corporation employee did

not require previous sanction of the Respondent –

Corporation for giving evidence in the judicial inquiry i.e.

before the Industrial Tribunal. There has been no violation of

Rule 11 by the Petitioner. This would be applicable to Rule 3

which is the duty of the Corporation employee to maintain

integrity, devotion to duty etc. In the present case the

Petitioner has shown integrity and devotion to duty as well

as acted in the interest of the Respondent – Corporation by

bringing to the notice of the Respondent – Corporation, the

fact of the Petitioner intending to submit evidence before the

Industrial Tribunal pursuant to the witness summons issued

to the Petitioner on 16th April, 2019. The Petitioner has done

so by informing his immediate superior offcer Respondent

No.5 by letter dated 22nd April, 2019 of his intention to

submit evidence by way of Affdavit of Evidence in lieu of

Examination in Chief before the Industrial Tribunal and by

sending the draft Affdavit of Evidence in lieu of Examination

in Chief to the Respondent - Corporation by the said letter.

The Petitioner had expressly mentioned in the said letter

dated 22nd April, 2019 that if the Respondent – Corporation

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or the Respondent No.5 to whom the letter had been sent had

any objection to the contents of the Affdavit of Evidence

which the Petitioner was intending to submit before the

Industrial Tribunal in the said Reference, the same should be

informed to the Petitioner. In fact, the Respondent No.5

having received and acknowledged the said letter had failed

to reply to the said letter and which remains un-replied till

date.

26.The impugned order also mentions that the Petitioner

has violated Rule 8 of the said Rules. This Rule seems

inapplicable in the present case as it is titled joining of

association by Corporation employee. It provides that no

Corporation employee shall join or continue to be a member

of an association the objects or activities of which are

prejudicial to the interest of the sovereignty and integrity of

India and interest of Corporation or public order or morality.

There is no such joining of association by the Petitioner and

thus no question of any violation thereof.

27.Thus the impugned order was clearly not warranted in

view of the facts of the present case. In fact, the Petitioner

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was only complying with orders / directions issued by the

Industrial Tribunal in the said Reference. The Tribunal had

issued a witness summons to the Petitioner which was duly

complied with. The Respondent – Corporation had in fact not

challenged the order issuing witness summons for deposing

before the Industrial Tribunal. The Respondent – Corporation

has in fact decided to issue the impugned order in spite of

being in full knowledge of the witness summons issued to the

Petitioner as well as the evidence which the Petitioner was

giving before the Industrial Tribunal. It appears that the

Respondent – Corporation by way of an after thought and

that too with utmost haste i.e. on the very same day, the

Petitioner had given evidence before the Industrial Tribunal,

passed the impugned order of suspension, suspending the

Petitioner with immediate effect.

28.It is surprising to note is that after issuance of the

impugned order on 23rd April, 2019, there has been no

attempt on the part of the Respondent – Corporation to serve

a charge-sheet on the Petitioner. The Supreme Court in Ajay

Kumar Chaudhary (Supra) has held that the currency of a

suspension order should not extend beyond three months, if

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within this period the charge-sheet is not served on the

employee and even if the charge-sheet is served, a reasoned

order must be passed for extension of the suspension. The

Supreme Court in the said decision of Ajay Kumar

Choudhary (Supra), in paragraph 21 held thus:-

21. We, therefore, direct that the currency of a

Suspension Order should not extend beyond

three months if within this period the

Memorandum of Charges/Chargesheet is not

served on the delinquent offcer/employee; if the

Memorandum of Charges/Chargesheet is served a

reasoned order must be passed for the extension

of the suspension. As in the case in hand, the

Government is free to transfer the concerned

person to any Department in any of its offces

within or outside the State so as to sever any local

or personal contact that he may have and which

he may misuse for obstructing the investigation

against him. The Government may also prohibit

him from contacting any person, or handling

records and documents till the stage of his having

to prepare his defence. We think this will

adequately safeguard the universally recognized

principle of human dignity and the right to a

speedy trial and shall also preserve the interest

of the Government in the prosecution. We

recognize that previous Constitution Benches

have been reluctant to quash proceedings on the

grounds of delay, and to set time limits to their

duration. However, the imposition of a limit on

the period of suspension has not been discussed

in prior case law, and would not be contrary to

the interests of justice. Furthermore, the

direction of the Central Vigilance Commission

that pending a criminal investigation

departmental proceedings are to be held in

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abeyance stands superseded in view of the stand

adopted by us.

29.It is accordingly clear from this decision of the

Supreme Court that the impugned order which extends

beyond three months and during which period no charge

sheet has been fled cannot be allowed to remain in operation.

The adequate safeguards of the currency of the suspension

order not extending beyond three months if charge sheet is

not served on the delinquent offcer / employee is in aid of the

universally recognized principle of human dignity and the

right to a speedy trial and also preserve the interest of

Government in the prosecution. Thus such imposition of a

limit on the period of suspension would not be contrary to the

interest of justice.

30.Further the Delhi High Court in Govt. of NCT Delhi

(Supra) has whilst considering the decision of Supreme

Court in Ajay Kumar Choudhary (Supra), has held that any

extension beyond the period of three months where no

charge sheet has been fled would require a reasoned order

for such extension. In the present case admittedly there is no

reasoned order issued by the Respondent – Corporation for

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extension of the impugned order of suspension and thus the

decision of the Delhi High Court cannot come to the aid of the

Respondent – Corporation.

31.We do not fnd any substance in the submission of the

Respondent – Corporation that since there is an alternate

remedy available to the Petitioner under Administrative

Tribunal Act, 1985, this Court ought not to exercise its writ

jurisdiction under Article 226 of the Constitution of India. We

are of the view that considering that the impugned order of

suspension which continues till today i.e. beyond the period

of three months and without any memorandum of charges /

charge sheet issued during that period, occasions a failure of

justice as held by the Supreme Court in Ajay Kumar

Choudhary (Supra), this Court will not refuse to entertain

the writ.

32.Accordingly, we are of the view that the impugned

order of suspension issued to the Petitioner in the present

case which has survived since 23rd April, 2019 is contrary to

law apart from being unjustifed and would require to be

quashed and set aside.

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33.Hence, the following order is passed:-

(a)The impugned suspension order dated 23rd April,

2019 issued by Respondent – Corporation is

quashed and set aside;

(b)Writ Petition is accordingly disposed of with cost

of Rs.15,000/-

(c)Cost to be paid by the Respondent – Corporation

to the Petitioner within two months from the date

of this order.

( R. I. CHAGLA J. ) (K.K. TATED, J.)

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