TMI Blog2022 (3) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... be gathered from subsection (9) of Section 2 of the MMC Act. It could be seen that in the definition of the Commissioner , though an acting Commissioner appointed under Section 39 of the MMC Act has been included, an AMC appointed under Section 39A of the MC Act has not been included. Clause (a) of the proviso to sub section (1) of Section 56 of the MMC Act has been amended simultaneously by an amendment, which brought Section 39A into the statute. As such, the term post equivalent to or higher in rank than the post of Assistant Commissioner cannot be construed in a narrow compass. Clause (a) of subsection (1) of Section 56 of the MMC Act would also include the post of AMC. As such, the Commissioner would be a competent authority insofar as the post of AMC is concerned. Likewise, though the powers of the Commissioner to suspend any officer or servant except a Transport Manager being a Government Officer on deputation or the officers appointed under Section 45 of the MMC Act are without any restriction, when such suspension is with regard to a Transport Manager or an officer appointed under Section 45 of the MMC Act, though the Commissioner is empowered to suspend them, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 1, who has been, prima facie, found to be involved in a serious misconduct, has been left scot free without requiring to face any departmental proceedings and directed to be reinstated in services. The impugned judgment passed by the High Court of Judicature at Bombay is quashed and set aside - Appeal allowed. - CIVIL APPEAL NO. 2643 OF 2022 [Arising out of SLP(C) No. 6885 of 2021]; CIVIL APPEAL NO. 2644 OF 2022 [Arising out of SLP(C) No. 6968 of 2021] - - - Dated:- 31-3-2022 - L. NAGESWARA RAO AND B.R. GAVAI JJ. For the parties : Mr. Rahul Chitnis, Adv., Mr. Sachin Patil, AOR., Mr. Aaditya A. Pande, Adv., Mr. Geo Joseph, Adv., Ms. Shwetal Shepal, Adv, Mr. P.S.Patwalia,Sr.Adv., Ms. Harshika Verma,Adv., Mr. Samrat Krishnarao Shinde, AOR, Mr. Anupam Lal Das, Sr. Adv., Mr. Kunal Cheema, AOR, Mr. Anirudh Singh, Adv., Mr. Krishanu Barua, Adv., Ms. Ruchita Kunal Cheema, Adv., Mr. Sabir Kachhi, Adv. JUDGMENT B.R. GAVAI, J. 1. Leave granted in both the Special Leave Petitions. 2. Kalyan Dombivali Municipal Corporation (hereinafter referred to as the KDM Corporation ) and the State of Maharashtra, by way of the present appeals, challenge the correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of the KDM Corporation, for a suitable person to be appointed as AMC, in its meeting held on 5th May 2015, found respondent No.1 most suitable for the same and accordingly, his name came to be recommended by the Selection Committee to the State of Maharashtra for appointment to the post of AMC of the KDM Corporation. The respondent No.1 came to be appointed as AMC of the KDM Corporation by the State of Maharashtra on 2nd June 2015. Pursuant to his appointment, the respondent No.1 joined his service as AMC of the KDM Corporation in the same month. 6. On 14th June 2018, an FIR No.34 of 2018 came to be registered against the respondent No.1 for the offences punishable under Sections 7, 8, 13(1)(d) along with Section 13(2) of the Prevention of Corruption Act, 1988. The respondent No.1 was arrested on the same date and continued to be in custody till 17th June 2018, on which date, he was released on bail. 7. The Commissioner of the KDM Corporation purportedly, in exercise of the powers under Section 56(1)(b) of the MMC Act and Rule 4(1) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (hereinafter referred to as MCS Rules ), on 18th June 2018, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed General Body Resolution No.6 dated 20th June, 2019 or Respondent No.1, being Exhibit Y hereto; and IV) the Impugned Notice of 193 Departmental Inquiry dated 7th August 2019 issued by the commissioner of Respondent No.1 being Exhibit Z to this petition; c) This Hon'ble Court may be pleased to Issue Writ of Mandamus or any other appropriate Writ in the nature of Mandamus or any other appropriate Direction or Order thereby directing Respondent No.1 Corporation and its Municipal Commissioner to forthwith re Instate the Petitioner in the post of Additional Municipal Commissioner of the 1st Respondent Corporations; 9. By the impugned judgment dated 6th April 2021, the writ petition filed by the respondent No.1 came to be allowed in terms of the prayers (a) to (c), which are reproduced hereinabove. Being aggrieved thereby, both, the KDM Corporation and the State of Maharashtra have approached this Court. 10. We have heard Shri P.S. Patwalia, learned Senior Counsel appearing on behalf of the KDM Corporation, Shri Rahul Chitnis, learned counsel appearing on behalf of the State and Shri Anupam Lal Das, learned Senior Counsel appearing on behalf of respondent No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he post of AMC is pari materia with that of the Commissioner, who is appointed under Section 36 of the MMC Act. He submitted that under Section 39A(2) of the MMC Act, an AMC is subject to the same liabilities, restrictions and terms and conditions of service, to which the Commissioner is subjected to as per the provisions of the MMC Act. He further submitted that the posts of the Commissioner and the AMC find place in Chapter II of the MMC Act, whereas Section 56 finds place in Chapter IV of the MMC Act. He submitted that various other sections in Chapter IV of the MMC Act provide for appointment of various municipal officers and servants other than AMC and Commissioner and therefore, the term competent authority will have to be construed to be only such authorities, who were competent to make appointments to the posts found in Chapter IV of the MMC Act. He submitted that in any case, in view of the judgment of this Court in the case of Ajay Kumar Choudhary v. Union of India through its Secretary and Another (2015) 7 SCC 291, continued suspension of respondent No.1 was not warranted. He submitted that even the charge sheet was not submitted within 90 days and as such, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould reveal that one post of AMC, which was newly created, was to be filled in from the officers of the State Cadre in the KDM Corporation. It would further reveal that the second post of the AMC was to be filled in from the officers working in the respective Corporation by way of selection. It further clarified that in the event, the suitable person is not available for selection to the said post, the same shall be filled in from the officers of the State Government Cadre. 18. From the perusal of the record, it could be seen that the State Government had called for the names of suitable candidates from the Commissioner of the KDM Corporatoin. The Commissioner, vide his communication dated 4th April 2015, proposed three names. The said names were considered by a Committee consisting of the following authorities: (i) Commissioner/Director, Directorate of Municipal Administration; (ii) Additional Commissioner, Mumbai Municipal Corporation; (iii) Commissioner, KDM Corporation; (iv) Deputy Secretary, Govt. of Maharashtra; and (v) Under Secretary, Govt. of Maharashtra. 19. A perusal of the Minutes of the said Meeting would reveal that though the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted by the Corporation or any other competent authority, except Transport Manager being a Government officer on deputation, may be suspended by the Commissioner pending an order of the Corporation and when the officer so suspended is the Transport Manager or an officer appointed under Section 45, such suspension with reasons therefor, shall, forthwith be reported by the Commissioner to the Corporation, and such suspension shall come to an end if not confirmed by the Corporation within a period of six months from the date of such suspension: Provided that, such suspension of an officer or servant pending inquiry into the allegations against such officer or servant shall not be deemed to be a penalty.] 22. It could thus be seen that under Section 39A of the MMC Act, though the AMC will exercise all or any of the powers and perform all or any of the duties and functions of the Commissioner, the same shall be subject to the control of the Commissioner. No doubt, that the AMC would be subject to the same liabilities, restrictions and terms and conditions of service, to which the Commissioner of the Corporation is subjected. However, the legislative intent is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valent to or higher in rank than the post of Assistant Commissioner, the power of dismissal can be exercised by the Commissioner only with the previous approval of the Corporation. 25. It can further be seen that clause (b) of the proviso to subsection (1) of Section 56 of the MMC Act enables the Commissioner to suspend any officer or servant, whether appointed by the Corporation or any other competent authority, except Transport Manager being a Government Officer on deputation, pending an order of the Corporation. It further provides that when the officer suspended is a Transport Manager or an officer appointed under Section 45 of the MMC Act, such suspension with reasons thereof, shall, forthwith be reported by the Commissioner to the Corporation. It further provides that such a suspension shall come to an end if not confirmed by the Corporation within a period of six months from the date of such suspension. 26. It is thus clear that whereas, the Commissioner is empowered to suspend any officer or servant, whether appointed by the Corporation or any other competent authority, in case of a Transport Manager being a Government Officer on deputation or any officer appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Corporation along with the reasons thereof. Such a suspension shall come to an end, if not confirmed by the Corporation within a period of six months from the date of such suspension. 30. For appreciation of the rival contentions, it will be apposite to seek certain guidance from some precedents of this Court. 31. In the case of Philips India Ltd. v. Labour Court, Madras and Others (1985) 3 SCC 103, this Court had an occasion to decide the rate of overtime wages as mentioned in Section 31 of the Tamil Nadu Shops and Establishments Act, 1947. This Court found that for finding the minimum rate of overtime wages as mentioned in Section 31 of the said Act, it will have to be interpreted in the light of the provisions contained in Section 14(1) read with proviso to Section 31 of the said Act. Coming to this conclusion, this Court observed thus: 15. No canon of statutory construction is more firmly established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on . (4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a dead letter or useless lumber is not harmonious construction. (5) To harmonise is not to destroy any statutory provision or to render it otiose. 34. It can thus be seen that this Court has held that it is the duty of the court to avoid a head on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner so as to harmonise them. It has further been held that the provisions of one section of a statute cannot be used to defeat the other provisions unless the court finds the reconciliation between them impossible. It has further been held that when two conflicting provisions in an Act cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. It has further been held that an interpretation, which reduces one of the provisions as a dead letter or useless lumber , should be avoided. 35. This Court, in the case of Jagdish Singh v. Lt. Governor, Delhi and Others (1997) 4 SCC 435 , while considering the conflict between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only for the purpose of bringing about an effective result. (See Nokes v. Doncaster Amalgamated Collieries Ltd. [Nokes v. Doncaster Amalgamated Collieries Ltd., 1940 AC 1014 : (1940) 3 All ER 549 (HL) : 109 LJKB 865 : 163 LT 343] referred to in Pye v. Minister for Lands for New South Wales [Pye v. Minister for Lands for New South Wales, (1954) 1 WLR 1410 : (1954) 3 All ER 514 (PC)] .) The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India [Mohan Kumar Singhania v. Union of India, 1992 Supp (1) SCC 594 : 1992 SCC (L S) 455] . 18. The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. 19. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the setting in which the clause to be interpreted occurs. (See R.S. Raghunath v. State of Karnataka [R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335 : 1992 SCC (L S) 286] . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court that in view of Section 39A of the MMC Act, the Commissioner or the Corporation will not have power to suspend or initiate departmental inquiry against the AMC, is in ignorance of the provisions of Section 56 and sub section (9) of Section 2 of the MMC Act. 40. We find that the view taken by the High Court is also not acceptable in view of another principle of statutory interpretation. In the case of Mahadeo Prasad Bais (Dead) v. Income Tax Officer A Ward, Gorakhpur and Another (1991) 4 SCC 560, this Court held that an interpretation, which will result in anomaly or absurdity, should be avoided. It has been held that at times, the circumstances justify a slight straining of the language of the clause so as to avoid a meaningless anomaly. 41. It will further be relevant to refer to the following observations of this Court in the case of K.P. Varghese v. Income Tax Officer, Ernakulam and Another (1981) 4 SCC 173 : 6. .We must therefore eschew literalness in the interpretation of Section 52 sub section (2) and try to arrive at an interpretation which avoids this absurdity and mischief and makes the provision rational and sensible, unless of course, our hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an unhappily worded provision, where the purpose is apparent to the judicial eve some violence to language is permissible. (See K.P. Varghese v. ITO [(1981) 4 SCC 173, 180 82 : 1981 SCC (Tax) 293, 300 302 : (1981) 131 ITR 597, 604 606] and Luke v. Inland Revenue Commissioner [(1964) 54 ITR 692 (HL)] .) 43. It could thus be seen that this Court has held that the court should not always cling to literal interpretation and should endeavor to avoid an unjust or absurd result. The court should not permit a mockery of legislation. It has been held that to make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye, some violence to language is also permissible. 44. If the interpretation as placed by the High Court is accepted, it will lead to an absurd and anomalous situation wherein on one hand, the respondent No.1, who was selected and appointed by the State Government for the KDM Corporation, though would be an employee of the KDM Corporation, the KDM Corporation would not be in a position to initiate departmental proceedings against him, even if he is found to have indulged into serious misconduct. On the other hand, since the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [CIT v. S. Teja Singh, AIR 1959 SC 352 : (1959) 35 ITR 408] and Gursahai Saigal v. CIT [Gursahai Saigal v. CIT, AIR 1963 SC 1062 : (1963) 48 ITR 1] .) 38. In Balram Kumawat v. Union of India [Balram Kumawat v. Union of India, (2003) 7 SCC 628] , this Court observed thus : (SCC pp. 636 37, paras 25 26) 25. A statute must be construed as a workable instrument. Ut res magis valeat quam pereat is a well known principle of law. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam [Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709] this Court stated the law thus : (SCC p. 754, paras 118 20) 118. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle ut res magis valeat quam pereat . It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have to be preferred than the one which defeats the purpose of the enactment 47. We are of the considered view that the legislature could not have intended a situation, wherein though the post of AMC is created by the State Government and a suitable person is appointed by it and though a person appointed on the said post becomes an employee of the Corporation, there would be no provision in the statute to initiate departmental proceedings against him. If such an interpretation is accepted, it would lead to absurdity and create a vacuum. In our opinion, in order to avoid such a situation, the interpretation as placed by us on the aforesaid provisions of the MMC Act will have to be preferred. 48. Insofar as the contention raised on behalf of respondent No.1 that the term competent authority as used in sub42 section (1) of Section 56 of the MMC Act will have to be read as a competent authority in respect of appointments to be made for the posts in Chapter IV is concerned, we are unable to accept the said contention. Such a restrictive meaning would render the legislation otiose. In any event, it is to be noted that though a Transport Manager is appointed under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52. In the said case, the respondent No.1 therein was suspended for more than six years. This Court found that no useful purpose would be served by continuing the respondent No.1 therein under suspension any longer. 53. We find that in the present case, it is the respondent No.1 who, though called upon to participate in the departmental proceedings, has on his own, chosen not to participate therein. It is the respondent No.1, who had objected to the initiation of the departmental proceedings by the Commissioner on the ground of jurisdiction and refused to participate in the departmental proceedings. We therefore find that the respondent No.1 cannot be permitted to take benefit of his own wrong. In any case, we find that the issue of prolonged suspension would be taken care of by directing the departmental proceedings to be completed within a stipulated period but the suspension of respondent No.1 would continue till then. 54. We find that the impugned judgment passed by the High Court is not sustainable in law. 55. In the result, the appeals are allowed in the following terms: (i) The impugned judgment dated 6th April 2021, passed by the High Court of Judicature at Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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