JUDGMENT
M.K. Chawla, J.
(1) The material facts which are relevant for the purpose of deciding the present controversy in this appeal are not in dispute. The respondent/plaintiff was appointed as Mohanar by the erstwhile Delhi Municipal Committee in the year J 956. On the proclamation of the Delhi Municipal Corporation Act, (hereinafter referred to as the D.M.C. Act), the services of the plaintiff stood transferred by operation of Section 511 of the said Act. The plaintiff was promoted to the post of L.D.C. in the year 1959 -and as U.D.C. in 1972. In the month of October, he was posted as Terminal Tax Inspector at Mohan Nagar T.T. post. By an order dated 24th October, 1977 he v/d& suspended for allowing a truck with 59 quintals of machinery parts to enter Union Territory of Delhi, without making payment of the terminal tax. He remained under suspension till 11th April, 1978. The inquiry was instituted and by order dated 26th February, 1979, the Deputy Commissioner inflicted the punishment of stoppage of six increments. His appeal was dismissed and the order of minor punishment was confirmed by the Commissioner, M.C.D.
(2) The plaintiff challenged the entire proceedings of enquiry resulting into the punishment by way of filing the Suit, as being illegal and null and void, and non est and without jurisdiction on various grounds, claiming the following relief:- “That a decree of declaration be passed in favor of the plaintiff against the defendant-Corporation declaring the enquiry report dated 15-10-77 and the order dated 26-2-79 for stoppage, of increments and the order dated 14-2-80 of the Commissioner is illegal, null and void and is of no effect and is not binding on the plaintiff, and the consequential relief arising out of the declaration be also given to the plaintiff.” After trial, his Suit was decreed holding that the enquiry report and the subsequent orders passed thereon are illegal and without jurisdiction. As a consequential relief, the plaintiff was held entitled to the increments and other benefits if any withheld in consequence of the above order. He was further granted the decree for the amount of Rs. 1704.16 which would have been paid to him, had the increments not been stopped by the impugned orders.
(3) On appeal by the M.C.D., the above said order was confirmed. In the second appeal, the M.C.D. formulated the following substantial questions of law for consideration :- "Whether the disciplinary authority which is subordinate to the appointing authority can impose a minor penalty on municipal employees specified in claim 2 of the Schedule to the Delhi Municipal Corporation Service (Control & Appeal) Regulations, 1959 ?" Considering the importance of the interpretation of Section 95 of the D.M.C. Act, 1957 and the regulations framed there under. the appeal was admitted and notice was issued to the respondent-. plaintiff.
(4) The submission of the learned counsel for the appellant- Corporation is that the respondent at the relevant time was working as an U.D.C., a category ‘B’ post within the meaning of Section 90(8) of the Dmc Act. As per the regulation (6) of the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959, the withholding of increments was a minor penalty which could be imposed by the Deputy Commissioner. According to the learned counsel, the courts below went wrung in relying upon the 1st proviso to Section 95 of the D.M.C. Act in holding that he only the Commissioner M.C.D. being the appointing authority was competent to hold an enquiry.
(5) In order to appreciate the contentions of the learned counsel for the appellant, it would be relevant to incorporate the provisions of Section 95 and the 1st proviso to that Section: – “95.(1) Every municipal officer or other municipal employee shall be liable to have his increments or promotion withheld or to be censured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be prescribed by regulations: Provided that no such officers or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed.”
(6) The nature of penalties which can be imposed on a municipal officer or other employee are enumerated in Regulation 6 of the D.M.C. Service (Control & Appeal) Regulations. 1959 :–
“The following penalties may, for good and sufficient. reasons and as hereinafter provided, be imposed on a municipal officer or other employee, namely :- Minor Penalties: (i) Censure. (ii) Withholding of increments or promotion. (iii) Recovery of the whole or part of any pecuniary loss caused to the Corporation by negligence or misconduct. Major Penalties: (iv) Reduction in rank including reduction to a lower post, or to a lower time scale or to a lower stage in a time- scale. (v) Compulsory retirement. (vi) Removal from service which shall not be a disqualification for future employment. (vii) Dismissal from service which shall ordinarily be a disqualification for future employment.” Part B of the Schedule attached to these regulations lays down that in case of a category ‘B’ officer, the Commissioner is the authority competent to impose all the penalties listed in Regulation 6. However, in the case of the officers who were appointed by the erstwhile local bodies or authorities specified in the Second Schedule of the Act, the Deputy Commissioner was competent to impose minor penalties listed at (i), (ii) and (iii).
(7) On the basis of the provisions of Section 95 of the D.M.C. Act and the Regulations formed there under, the proposition enunciated is that in the present case, the respondent having been penalised for minor penalties, the Deputy Commissioner was the appropriate authority to impose penalty and not the Commissioner as held by the courts below.
(8) From the bare perusal of the above said provisions, there is no doubt that in case a delinquent officer is charge-sheeted for a minor penalty and the said charges are proved against him, the enquiry can be ordered by the Deputy Commissioner, if the charges are proved against him, then the penalties could be imposed by the Deputy Commissioner.
(9) The question that requires going into is as to whether the respondent-plaintiff was proceeded and/or charge-sheeted for a minor or major penalty. There are two separate procedures prescribed for holding enquiries for minor and major penalties. Under Regulation 8, the enquiry officer has to follow the procedure for imposing major penalties whereas Regulation 8-A lays down the procedure for imposing minor venalities. In this case, from the start, the intention of the disciplinary authority v/as to initiate the enquiry for major penlaty. With that end in view, the respondent appellant Along with other delinquent officers was charge sheeted for major penalty. This is very clear from the noting of the Department. In his capacity as disciplinary authority. The. Deputy Commissioner (T), after having considered the enquiry report and the record of the enquiry proposed to inflict the punishment of “stoppage of increments with cumulative effect.” As required by Regulation 8(10)(a) of the D.M.C. Service (Control and Appeal) .Regulations, a copy of the report of enquiry and a copy of the order proposing the aforesaid penalty were sent to the respondent for his information. By virtue of Regulations 10(b), the respondent was further called upon to submit such representation as he may wish to make against the E proposed penalty. This order of the Deputy Commissioner (T) further goes to show that the procedure under Regulation 8 was meant for major penalties specified in clauses (iv) to (vii) oi” Regulation 6 was adopted for which the Deputy Commissioner was not the authority competent to impose penalty. The action of holding enquiry and pass an order of punishment if any, could only be initiated by the Commissioner, the appointing authority
(10) In this view of the matter, the courts below were justified in declaring that since the Deputy Commissioner (T) was not the appointing authority, he could not legally order an enquiry which stood vitiated being without jurisdiction. Therefore, the initiation of the enquiry, the enquiry report dated 15-10-77 and the subsequent orders dated 26-2-79 and 14-1-80 were obviously without jurisdiction and void ab initio.
(11) Learned counsel for the appellant as a last resort submitted that even though the order of the Deputy Commissioner (T) is held to be wrong, the proceedings should now be sent back and redefined by the Commissioner, M.C.D. This very question was the subject-matter of issue in an unreported Judgment- M.C.D. and another vs. Murari Lal, Lpa 93/84, decided by D. K. Kapur and Mohinder Narain, JJ. on July 29, 1985. (1) After perusing the provisions of Regulation 8(1) and (2), the Bench observed thus:- “This Regulation is of importance in regard to the submissions made by the learned counsel because there has to be an enquiry and the enquiry has to 170 started with a charge-sheet served on the officer concerned. That charge-sheet is to be furnished by the disciplinary authority and the disciplinary authority in this case is defined in Section 2(c) as a person who is authorised to impose the penalty, and we have already found that the Commissioner is the person who is authorised to impose a penalty. So, the charge-sheet has to be framed by the Commissioner and then an enquiry has to take place. We cannot see how the charge-sheet framed by the Deputy Commissioner, who is not the disciplinary authority, can form the basis for a review by the Commissioner. We regret that on the facts of this case where the initial charge-sheet was framed by the Deputy Commissioner it is not possible for us to direct the Commissioner to act on the basis of the enquiry report. The Commissioner is, however, free to order a fresh enquiry if he is so inclined.”
(12) The above said observation is a complete answer to the last submission raised by the counsel.
(13) In the result, the appeal fails and the same is hereby dismissed. No costs.