Remanded

Ms. Deepali Suresh Chavan v. Kalyan Dombivili Municipal Corporation, through Municipal Commissioner and Ors.

Bombay HC7 May 2012WP/3184/2012

Case brief

AI extract

What is this about?

High Court set aside the order terminating services of petitioners as security guards and computer operator. The bench held the authority failed to record reasons why it was 'reasonably practicable' to dispense with a show-cause opportunity as mandated by Section 56(3)(b) of the BPMC Act.

What did the court decide?

Impugned order of termination of services set aside; matter remanded to Corporation for fresh decision in accordance with law.

Ms. Deepali Suresh Chavan Vs Kalyan Dombivili… — Service and Employment | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3184 OF 2012

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Ms. Deepali Suresh Chavan .. Petitioner Vs.

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Kalyan Dombivili Municipal Corporation and ors. .. Respondents

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WITH

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WRIT PETITION NO. 3183 OF 2012

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Subhash Ambadas Mahatkar .. Petitioner Vs. Kalyan Dombivili Municipal Corporation and ors. .. Respondents

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WITH

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WRIT PETITION NO. 3185 OF 2012

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Kishore Ramchandra Sadavarti .. Petitioner

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Vs.

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Kalyan Dombivili Municipal Corporation and ors.

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.. Respondents

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Mrs. Neeta Karnik for petitioners. Mr. A. S. Rao for respondent nos.1 and 2. Mr. V. S. Gokhale, AGP for respondent no.3-State.

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CORAM: S. A. BOBDE &

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MRS. MRIDULA BHATKAR JJ.

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MAY 07, 2012.

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P.C.

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Rule, returnable forthwith. Heard finally by consent of

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parties.

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The petitioners have challenged the order terminating their services for more than 14 years as Security Guards and one Computer Operator. The main contention raised on behalf of the petitioners is that their services have been terminated without affording them an opportunity of showing cause against the removal of their services as mandated by Section 56(3)(b) of the Bombay Provincial Municipal Corporations Act, 1949. Ms. Karnik, the learned counsel for the petitioners referred to a Resolution of the General Body dated 19.11.2007 by which the General Body of the respondent – Corporation had constituted a specific committee of members for granting a hearing to the persons proposed to be removed, including the petitioners. Mr. Rao, the learned counsel for the respondentCorporation urged that Section 56(3)(b) specifically empowers the authority to dispense with an opportunity to the employee to show cause against his removal for reasons to be recorded in writing and that these

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reasons have been recorded by the order of the Corporation dated 4.1.2012.

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Section 56(3)(b) reads as follows:-

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56. Imposition of penalties on municipal officers and

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servants.- (1) …...

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(2) …...

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(3) No officer or servant shall be reduced to a lower post or removed or dismissed from service under this section unless he has been given a reasonable opportunity of showing cause against such reduction, removal or dismissal:

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Provided that, this sub-section shall not apply-

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(a) …..

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(b) where the competent authority is satisfied that, for reasons to be recorded in writing by such authority, it is reasonably practicable to give that person an opportunity of showing cause.”

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We have perused the reasons recorded by the competent

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authority. The reasons given referred to the basis on which a person like

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the petitioners can be removed such as if the caste certificate is cancelled by the Caste Scrutiny Committee. It is further recorded that the Standing Committee of the Corporation referred the matter of removal of the petitioners to the General Body but that it was not necessary for the Standing Committee to refer the matter to the General Body. Thereafter the order refers to an amendment to Section 56 of the BPMC Act, 1949, whereby the Municipal Commissioner has been conferred with the powers to remove such officers who are below the rank of Assistant Municipal Commissioner. We have perused the order but we find that the order does not specify why it is not reasonably practicable to give that person an opportunity of showing cause. The order only refers to what is claimed as a legitimate basis on which the petitioners are liable to be removed. There

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is considerable difference between recording reasons why it is not practicable to give an opportunity of showing cause and recording why it is necessary to remove a person.

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In the circumstances of the present case, it is not disputed that

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the petitioners are being removed on the ground that their certificates found to have been invalidated and, therefore, cancelled. We do not, by

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any means, suggest that such persons would be entitled to continue even if they have found to have played fraud in their employment. However, there is no doubt that the cancellation of a certificate may in a given case not entail an automatic removal but it may be possible for the employee to point out a Government Resolution or a decision of the court which purports to protect the services of such a person or any other extenuating factor.

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In the circumstances, we hold that the impugned order, terminating the services of the petitioners, suffers from an error of law apparent on the face of the record. It is accordingly set aside and the matter is remanded back to the Corporation for taking fresh decision in accordance with law.

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6. Rule made absolute in above terms. No costs.

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(MRS. MRIDULA BHATKAR,J.) (S. A. BOBDE,J.)

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Ms. Deepali Suresh Chavan v. Kalyan Dombivili Municipal Corporation, through Municipal Commissioner and Ors.

Case brief

What is this about?

What did the court decide?

Ms. Deepali Suresh Chavan v. Kalyan Dombivili Municipal Corporation, through Municipal Commissioner and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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