Dismissed

Vimal Kumar Shukla v. State of U.P. and 5 Others

Allahabad HC10 Dec 2018WRIA/23256/2018

Case brief

AI extract

What is this about?

The High Court held that the Commissioner lacked jurisdiction to attach a petitioner belonging to Nagar Panchayat Iglas to Nagar Panchayat Pilkhana under the U.P. Municipalities Act 1916. The attachment was set aside as without legal basis or authority.

What did the court decide?

The transfer/attachment order dated 08.10.2018 is set aside as it was passed without jurisdiction and contrary to the law.

Vimal Kumar Shukla Vs State of U.P. and 5 Others — Service and Employment | Allahabad HC (2018)

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Court No. - 16

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Case :- WRIT - A No. - 23256 of 2018

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Petitioner :- Vimal Kumar Shukla Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sharad Saran Srivastava,Ashok Khare (Sr. Advocate) Counsel for Respondent :- C.S.C.,Devendra Kumar

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Hon'ble Mrs. Sangeeta Chandra,J.

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Heard learned counsel for the petitioner and learned Standing Counsel who appears on behalf of the respondent no.2 the Commissioner, Aligarh Division, Aligarh. Initially, this Court has passed a detailed order directing the Commissioner, Aligarh Division, to show under which authority he has passed an order of transfer of the petitioner. The relevant paragraphs of the interim order dated 30.10.2018 are being quoted hereinbelow:

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"2. It has been submitted by learned Senior Counsel that the petitioner belongs to non Centralized ministerial cadre of Nagar Panchayat Iglas and he cannot be transferred or attached to any other Nagar Panchayat. In this case he has been attached to Nagar Panchayat, Pilkhana on administrative grounds under some order passed on 04.10.2018 by the Additional Commissioner (Admn.) Aligarh Division, Aligarh.

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3. It has been submitted by the learned counsel for petitioner that Chairman, Nagar Panchayat is the Appointing Authority of the petitioner and the Additional Commissioner (Admn.) Aligarh Division, Aligarh has no power under any Rule to transfer/attach the petitioner to some other Nagar Panchayat.

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4. The counsel for respondents No. 4 and 5, on the other hand, says that the petitioner has only been attached on administrative grounds and he has not been transferred. There is no law prohibiting the Commissioner, Aligarh Division, Aligarh to exercise the power of attachment. The counsel for respondents No. 4 and 5 has also produced before this Court an order dated 23rd October, 2018 by which the petitioner has been relieved from Nagar Panchayat Iglas for Nagar Panchayt Pilkhana by the Executive Officer of Nagar Panchayat Iglas, Aligarh. He says that the order of relieving the petitioner dated 23rd of October, 2018 has not been challenged by the petitioner in this writ petition.

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5. This Court finds that the order of relieving is only a consequential order. The writ petition was filed on 24.10.2018 and the relieving order is dated 23.10.2018. The learned standing counsel for respondents No. 4 and 5 could not explain the exercise of power of attachment by the respondent No. 2. The learned standing counsel also could not explain such power as has been exercised by the

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Commissioner, Aligarh Division, Aligarh in this cae.

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6. This Court, therefore, stays the transfer order dated 08.10.2018 till 19th of November, 2018 and directs the office of the Chief Standing Counsel to seek instructions from the Commissioner, Aligarh Division, Aligarh as to under which provision of law/rules he has exercised this power of attachment of a ministerial employee over which he does not otherwise exercise any administrative control except for that of an appellate authority under the Service Rules."

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Today, although no counter affidavit has been filed, a detailed parawise narrative of the writ petition signed by the Commissioner and Additional Commissioner, Aligarh Division have been sent. The Commissioner has referred to several complaints against the working of the petitioner received through Chairman, Nagar Panchayat Iglas, District-Aligarh regarding undesirable conduct of the petitioner as public servant. A detailed enumeration of the alleged irregularities of the petitioner have been stated in paragraph 3 of the said narrated. In paragraph 13, it has been stated that the Commissioner has exercised power of Prescribed Authority under Section 2(17) of the U.P. Municipalities Act 1916. The said section is being quoted hereinbelow:

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Section 2(17) "(i) " Prescribed " means prescribed by or under this Act or rules made thereunder or by or under any other enactment;

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(ii) " Prescribed authority " means an officer or a body corporate appointed by the State Government in this behalf by notification in the Official Gazette and if no such officer or body corporate is appointed, the Commissioner;] "

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It has been also stated that the Commissioner has passed the order impugned dated 4.10.2018 in exercise of power under Section 34 of the Act of 1916.

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Section 34 in its entirety is being quoted hereinbelow:

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"34. Power of the State Government or the Prescribed Authority or the District Magistrate to prohibit execution or further execution of resolution or order of [Municipality]. - (1) [The Prescribed Authority may], by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee [if in its opinion] such resolution or order is of a nature to cause or tend to

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cause obstruction, annoyance or injury to the public or to any class or body of persons lawfully employed [* * *] and may prohibit the doing or continuance by any person of any act in pursuance for or under cover of such resolution or order.

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[(1A) The District Magistrate may, within the limits of his district, by order in writing, prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a] [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety, or a riot or affray, and may prohibit the doing or continuance by any person of any act, in pursuance of or under cover of such resolution or order.

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[(1B) the State Government may, on its own motion or on report or complaint received by order prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a] [Municipality] or a committee of a [Municipality] or a Joint Committee or any officer or servant of a [Municipality] or of a Joint Committee, if in its opinion such resolution or order is prejudicial to the public interest, [or has been passed or made in abuse of powers or in flagrant breach of any provision of any law for the time being in force,] and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order.

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[(2) Where an order is made under sub-section (1) or (1-A)] [* * *], a copy thereof with a statement of the reasons for making it, shall forthwith be forwarded by the Prescribed Authority or the District Magistrate through the Prescribed Authority, as the case may be, to the State Government which may thereupon, if it thinks fit, rescind or modify the order.

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(3) [* * *]

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(4) Where the execution or further execution of a resolution or order is prohibited by an order made under sub-section (1), (1-A) or (1-B) and continuing in force, it shall be the duty of the [Municipality], if so required by the authority making the order under the said subsections to take any action which it would have been entitled to take, if the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything under cover of the resolution or order of which the further execution is prohibited."

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It is apparent from the perusal of the Section 2(17) and Section 34 (1) (1-A)(1-B), 2, 3 and 4 that the District Magistrate or the Prescribed Authority i.e. the Commissioner in some cases, or even the State Government, may prohibit the execution or further execution of the resolution or order passed or made by the Municipality or any of its Committee or any officer or

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servant, if it believes that the resolution or order tends to cause obstruction, annoyance or injury to the public or may prohibiting the doing or continuance by any person or any act in pursuance of such resolution or order.

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It is apparent that the Section 34 of the 1916 Act has been misinterpreted by the Commissioner, Aligarh Division, Aligarh to exercise power where there was none.

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There may have been several complaints received against the working of the petitioner, a clerical staff in Nagar Panchayat, Iglas, Aligarh. However, neither the Commissioner nor the Additional Commissioner had any power to attach the petitioner at Nagar Panchayat, Pilkhana. Such kind of attachment without there being any transfer or suspension of petitioner on initiation of disciplinary proceedings, being completely without jurisdiction is set aside.

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The competent authority may pass appropriate orders, strictly in accordance with the Act and the Rules framed thereunder, if there is any complaint against the petitioner which they feel impelled to act upon for the benefit of the Nagar Panchayat concerned.

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The instructions in their original, signed by the Additional Commissioner and the Commissioner, Aligarh Division, Aligarh are kept on record.

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The Writ Petition is disposed of.

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Order Date :- 10.12.2018 Harshita

Vimal Kumar Shukla v. State of U.P. and 5 Others

Case brief

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Vimal Kumar Shukla v. State of U.P. and 5 Others

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