# KALYAN DOMBIVALI MUNICIPAL CORPORATION v. SANJAY GAJANAN GHARAT AND ANOTHER

- **Citation:** [2022] 4 S.C.R. 453
- **Court:** Supreme Court of India
- **Decided:** 2022-03-31
- **Case number:** Civil Appeal No. 2643 of 2022
- **Bench:** L. Nageswara Rao, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalyan-dombivali-municipal-corporation-v-sanjay-gajanan-gharat-and-another-36049
- **Pages:** 27

## Headnote

Service Law - Misconduct - Suspension - Departmental
proceedings -Maharashtra Municipal Corporations Act, 1949 -
ss. 36, 39, 39A, 45 & 56 - Suspension of Municipal Corporation
employee - Departmental enquiry - Case registered against
Respondent No.1 (AMC of KDM Corporation) under Prevention of
Corruption Act - Subsequently, he was suspended by the
Commissioner of the KDM Corporation in exercise of power under
s. 56(1)(b) of MMC Act r/w Rule 4(1) of Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979 - Notice issued against
Respondent No.1 with regard to holding of departmental enquiry
against him - Writ petition filed by Respondent No. 1 - High Court
held that since the appointment of respondent No.1 was made by
the State Government in view of s.36 of the MMC Act, it is only the
State Government, which was competent to suspend and initiate
departmental inquiry against him - It was, therefore, held by the
High Court that the suspension order issued by the Commissioner
and ratified by the KDM Corporation, and the departmental inquiry
initiated by the Commissioner with approval of the KDM Corporation
was beyond their powers - Whether respondent No.1 though an
employee of the KDM Corporation, could neither be suspended
nor any departmental proceedings could be initiated against him
by KDM Corporation, since his selection and appointment was done
by the State Government - Held: High Court erred in setting aside
the suspension and departmental proceedings initiated against
respondent No.1 - Finding of the High Court that in view of s.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 s.56 and sub-section (9) of s.2
of the MMC Act - Sub-section (9) of s.2, ss.39A and 56 of the
MMC Act will have to be read in reference to each other and cannot
be read in isolation - Legislative intent cannot be to leave an
A
B
C
D
E
F
G
H
454
SUPREME COURT REPORTS
[2022] 4 S.C.R.
employee scot-free though he has indulged in serious misconduct -
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 - The statute has to be interpreted
in such a manner that it preserves its workability - On a harmonious
construction of sub-section (9) of s.2, ss.39A and 56 of the MMC
Act, the Commissioner of the Municipal Corporation will have the
power to suspend or initiate departmental proceedings against an
AMC, who is an officer, superior in rank to the Assistant
Commissioner - However, in case of suspension of such an officer,
the only requirement would be to report to the Corporation, with
reasons thereof, and if such a suspension is not confirmed by the
Corporation within a period of six months from the date of such
suspension, the same shall come to an end - Any other interpretation
would lead to absurdity and anomaly, and therefore will have to be
avoided -Maharashtra Civil Services (Discipline and Appeal) Rules,
1979 - Rule 4(1).
Interpretation of Statutes - "Harmonious construction" -
Discussed.
Allowing the appeals, the Court
HELD: 1 The court has to avoid the interpretation which
will result in head-on clash between two sections of the Act. When
one section of an Act is not in a position to bring out the legislative
intent, recourse will have to be made to other sections of the
statute for gathering the legislative intent. An attempt should be
made to see to it that the effect must be given to parts of the
statute even if they may, on first blush, appear to be conflicting.
One provision of the Act has to be construed with reference to
other provisions in the

## Text

_Characters 0–39,795 of 60,631. This is a partial read: ask again with offset=39795 for what follows._

A
B
C
D
E
F
G
H
453
[2022] 4 S.C.R. 453
453
KALYAN DOMBIVALI MUNICIPAL CORPORATION
v.
SANJAY GAJANAN GHARAT AND ANOTHER
(Civil Appeal No. 2643 of 2022)
MARCH 31, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
Service Law - Misconduct - Suspension - Departmental
proceedings -Maharashtra Municipal Corporations Act, 1949 -
ss. 36, 39, 39A, 45 & 56 - Suspension of Municipal Corporation
employee - Departmental enquiry - Case registered against
Respondent No.1 (AMC of KDM Corporation) under Prevention of
Corruption Act - Subsequently, he was suspended by the
Commissioner of the KDM Corporation in exercise of power under
s. 56(1)(b) of MMC Act r/w Rule 4(1) of Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979 - Notice issued against
Respondent No.1 with regard to holding of departmental enquiry
against him - Writ petition filed by Respondent No. 1 - High Court
held that since the appointment of respondent No.1 was made by
the State Government in view of s.36 of the MMC Act, it is only the
State Government, which was competent to suspend and initiate
departmental inquiry against him - It was, therefore, held by the
High Court that the suspension order issued by the Commissioner
and ratified by the KDM Corporation, and the departmental inquiry
initiated by the Commissioner with approval of the KDM Corporation
was beyond their powers - Whether respondent No.1 though an
employee of the KDM Corporation, could neither be suspended
nor any departmental proceedings could be initiated against him
by KDM Corporation, since his selection and appointment was done
by the State Government - Held: High Court erred in setting aside
the suspension and departmental proceedings initiated against
respondent No.1 - Finding of the High Court that in view of s.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 s.56 and sub-section (9) of s.2
of the MMC Act - Sub-section (9) of s.2, ss.39A and 56 of the
MMC Act will have to be read in reference to each other and cannot
be read in isolation - Legislative intent cannot be to leave an
A
B
C
D
E
F
G
H
454
SUPREME COURT REPORTS
[2022] 4 S.C.R.
employee scot-free though he has indulged in serious misconduct -
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 - The statute has to be interpreted
in such a manner that it preserves its workability - On a harmonious
construction of sub-section (9) of s.2, ss.39A and 56 of the MMC
Act, the Commissioner of the Municipal Corporation will have the
power to suspend or initiate departmental proceedings against an
AMC, who is an officer, superior in rank to the Assistant
Commissioner - However, in case of suspension of such an officer,
the only requirement would be to report to the Corporation, with
reasons thereof, and if such a suspension is not confirmed by the
Corporation within a period of six months from the date of such
suspension, the same shall come to an end - Any other interpretation
would lead to absurdity and anomaly, and therefore will have to be
avoided -Maharashtra Civil Services (Discipline and Appeal) Rules,
1979 - Rule 4(1).
Interpretation of Statutes - "Harmonious construction" -
Discussed.
Allowing the appeals, the Court
HELD: 1 The court has to avoid the interpretation which
will result in head-on clash between two sections of the Act. When
one section of an Act is not in a position to bring out the legislative
intent, recourse will have to be made to other sections of the
statute for gathering the legislative intent. An attempt should be
made to see to it that the effect must be given to parts of the
statute even if they may, on first blush, appear to be conflicting.
One provision of the Act has to be construed with reference to
other provisions in the Act, so as to make a consistent enactment
of the whole statute. An attempt should be made of avoiding any
inconsistency or repugnancy either within a section or between
two different sections. If the court has a choice between two
interpretations, the narrower of which would fail to achieve the
A
B
C
D
E
F
G
H
455
manifest purpose of the legislation, such an interpretation will
have to be avoided. The court should avoid a construction which
would reduce the legislation to futility. A broader interpretation
which would bring about an effective result, will have to be
preferred. Applying this principle, it is clear that subsection (9)
of Section 2, Sections 39A and 56 of the MMC Act will have to be
read in reference to each other. They cannot be read in isolation.
[Paras 37 and 38][471-D-G]
2 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 respondent
No.1 is not an employee of the State Government, the State
Government also would not be in a position to initiate any
departmental proceedings against him. [Para 44][473-G-H; 474A]
Philips India Ltd. v. Labour Court, Madras and Others
(1985) 3 SCC 103 : [1985] 3 SCR 491 ; Sultana Begum
v. Prem Chand Jain (1997) 1 SCC 373 : [1996] 9 Suppl.
SCR 707 ; Jagdish Singh v. Lt. Governor, Delhi and
Others (1997) 4 SCC 435 : [1997] 2 SCR 953 ;
Commissioner of Income Tax v. Hindustan Bulk Carriers
(2003) 3 SCC 57 : [2002] 5 Suppl. SCR 387; Mahadeo
Prasad Bais (Dead) v. Income Tax Officer 'A' Ward,
Gorakhpur and Another (1991) 4 SCC 560 : [1991] 1
Suppl. SCR 9; K.P.Varghese v. Income Tax Officer,
Ernakulam and Another (1981) 4 SCC 173 : [1982] 1
SCR 629 ; State of Tamil Nadu v. Kodaikanal Motor
Union (P) Ltd. (1986) 3 SCC 91 : [1986] 2 SCR 927
and Sanjay Ramdas Patil v. Sanjay and Others (2021)
10 SCC 306 - relied on.
Ajay Kumar Choudhary v.Union of India through its
Secretary and Another (2015) 7 SCC 291 : [2015] 2
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER
A
B
C
D
E
F
G
H
456
SUPREME COURT REPORTS
[2022] 4 S.C.R.
SCR 415 and State of Tamil Nadu represented by
Secretary to Government (Home) v. Promod Kumar, IPS
and Another (2018) 17 SCC 677 - referred to.
Case Law Reference
[2015] 2 SCR 415
referred to
Para 13
[1985] 3 SCR 491
relied on
Para 31
[1996] 9 Suppl. SCR 707
relied on
Para 33
[1997] 2 SCR 953
relied on
Para 35
[2002] 5 Suppl. SCR 387
relied on
Para 36
[1991] 1 Suppl. SCR 9
relied on
Para 40
[1982] 1 SCR 629
relied on
Para 41
[1986] 2 SCR 927
relied on
Para 42
(2021) 10 SCC 306
relied on
Para 46
(2018) 17 SCC 677
referred to
Para 50
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2643
of 2022.
From the Judgment and Order dated 06.04.2021 of the High Court
of Judicature at Bombay in Writ Petition (St) No.3599 of 2020.
WITH
Civil Appeal No. 2644 of 2022.
Tushar Mehta, SG, P. S. Patwalia, Shekhar Naphade, Anupam
Lal Das, Sr. Advs., Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo
Joseph, Ms. Shwetal Shepal, Harshika Verma, Samrat Krishnarao Shinde,
Kunal Cheema, Apoorv Shukla, Anirudh Singh, Krishanu Barua, Ms.
Aishwarya Dash, Sabir Kachhi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
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 correctness of the judgment dated 6th
A
B
C
D
E
F
G
H
457
April 2021, passed by the Division Bench of the High Court of Judicature
at Bombay in Writ Petition (ST.) No. 3599 of 2020, thereby holding that
the KDM Corporation was not the competent authority to suspend
respondent No.1-Sanjay Gajanan Gharat. By the impugned judgment,
the High Court had also quashed the departmental inquiry initiated against
the respondent No.1 and directed the KDM Corporation to reinstate
him forthwith to the post of Additional Municipal Commissioner
(hereinafter referred to as "AMC") of the KDM Corporation.
3. The facts are not in dispute. The respondent No.1 was initially
appointed as an Assistant Municipal Commissioner of the KDM
Corporation in the year 1995. The said appointment was approved by
the State Government on 1st February 1997 under Section 45 of the
Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to
as "the MMC Act"). The KDM Corporation thereafter recommended
the respondent No.1 to be promoted as Deputy Municipal Commissioner
of the KDM Corporation on 9th May 2003. This was done after the
Departmental Promotion Committee of the KDM Corporation found
respondent No.1 suitable for such promotion. The General Body of the
KDM Corporation also approved the said recommendation in its meeting
held on 18th July 2003. The State Government, vide notification dated
23rd July 2005, granted approval to the promotion of respondent No.1 as
Deputy Municipal Commissioner with effect from 9th May 2003.
4. Vide Maharashtra Act No.32 of 2011, which came into effect
from 25th September 2011, various amendments were effected into the
MMC Act. Vide the said amendment, Section 39A was brought in the
statute, which provided for creation of one or more posts of AMCs and
appointment of suitable persons on such posts.
5. In pursuance of the amendment effected in the year 2011, the
State Government issued a Government Resolution (hereinafter referred
to as "G.R.") on 11th November 2011. Vide the said G.R., one post of
AMC was created for the KDM Corporation. Consequent to the
upgradation of the KDM Corporation from Class 'D' to Class 'C', one
additional post of AMC came to be created vide G.R. dated 6th January
2015. The said G.R. also laid down the procedure for carrying out the
selection process for the post of AMCs. Undisputedly, the Selection
Committee, which considered the proposal of the 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
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
458
SUPREME COURT REPORTS
[2022] 4 S.C.R.
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, issued an order suspending respondent No.1 from service. The
General Body of the KDM Corporation, in its meeting held on 7th July
2018, ratified the suspension of respondent No.1. On 20th June 2019, the
General Body of the KDM Corporation also accorded sanction to hold
departmental inquiry against respondent No.1. Accordingly, the
Commissioner of the KDM Corporation issued a notice dated 7th August
2019 to respondent No.1 with regard to holding of departmental inquiry
against him and called upon him to appear before the Inquiry Officer
appointed by the KDM Corporation. The respondent No.1, vide his letter
dated 16th August 2019 addressed to the Commissioner, KDM
Corporation, objected to the said departmental inquiry on the ground of
jurisdiction.
8. Again, the KDM Corporation issued a notice dated 5th December
2019, to respondent No.1 calling upon him to remain present for the
preliminary inquiry to be held on 26th December 2019. However, the
respondent No.1 chose not to participate in the departmental inquiry and
filed a writ petition being Writ Petition (ST.) No.3599 of 2020 before the
High Court of Judicature at Bombay on 21st February 2020. In the said
writ petition, he sought the following reliefs:
"a) This Hon'ble Court may be pleased to issue Writ of Mandamus
or any other appropriate Writ in the nature of Mandamus or any
A
B
C
D
E
F
G
H
459
other appropriate Direction or Order thereby directing Respondent
No.1 Corporation and its Municipal Commissioner to forthwith
withdraw and/or cancel -
I)
the impugned Suspension Order dated 18th June, 2018, being
Exhibit-U hereto;
II)
the impugned General Body Resolution dated 7th July, 2018,
being Exhibit-V hereto;
III)
the Impugned General Body Resolution No.6 dated 20th
June, 2019 being Exhibit-Y hereto; and
IV)
the Impugned Notice of Departmental inquiry dated 7th
August, 2019 being Exhibit-Z to this petition;
b) This Hon'ble Court may be pleased to issue a Writ of Certiorari
or any other appropriate Writ in the nature of Certiorari or any
other appropriate Direction or Order thereby quashing and/or
setting aside -
I)
the Impugned Suspension Order dated 18th June, 2018,
passed by the Municipal Commissioner of Respondent No.1
being Exhibit -U hereto;
II)
the Impugned General Body Resolution dated 7th July, 2018
of Respondent No.1, being Exhibit-V hereto;
III)
the Impugned 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,
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
460
SUPREME COURT REPORTS
[2022] 4 S.C.R.
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.
11. Shri Patwalia submitted that the High Court has grossly erred
in holding that the respondent No.1 was an employee of the State
Government and therefore, it was only the State Government, who had
powers to suspend him. He submitted that though under Section 39A of
the MMC Act, the State Government was an authority competent to
create a post and appoint a suitable person on that post, such a post was
created specifically for the KDM Corporation and once a suitable person
was appointed by the State Government on the said post, he became an
employee of the KDM Corporation. He submitted that in view of the
provisions of Section 56 of the MMC Act, it was only the KDM
Corporation, which was competent to suspend such an employee on the
grounds as are available under the said provision, and also to initiate
departmental proceedings. He submitted that the High Court has grossly
erred in not considering the said aspect and referring to Section 16 of the
Maharashtra General Clauses Act, 1904 (hereinafter referred to as "GC
Act"). He submitted that when there is a specific provision in the MMC
Act, which empowers the Commissioner to suspend an employee and to
initiate departmental proceedings against him, recourse to GC Act is not
warranted. He submitted that since the respondent No.1 was arrested
and was detained in custody for a period exceeding 48 hours, in view of
sub-rule (2) of Rule 4 of the MCS Rules, his suspension was a deemed
one. The learned Senior Counsel submitted that the impugned judgment
has the effect of leading to a consequence that the respondent No.1, who
has been caught red-handed in a trap case, will be left scot-free.
12. The State Government has also supported the contentions as
raised by the KDM Corporation. It is submitted that though the post was
created by the State Government for the KDM Corporation and though
the respondent No.1 was selected and appointed by the State Government
in accordance with the procedure prescribed in the G.R. dated 6th January
2015, the appointment was, as an AMC of the KDM Corporation and as
such, the KDM Corporation was well within its powers under Section
56 of the MMC Act to suspend him.
A
B
C
D
E
F
G
H
461
13. Shri Anupam Lal Das, learned Senior Counsel appearing for
the respondent No.1, on the contrary, would submit that the respondent
No.1 was appointed by the State Government under Section 39A of the
MMC Act and the 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 Another1, 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 no reason to interfere
with the impugned judgment.
14. The High Court, in the impugned judgment, has held that since
the appointment of respondent No.1 was made by the State Government
in view of Section 36 of the MMC Act, it is only the State Government,
who was competent to suspend and initiate departmental inquiry against
him. It was, therefore, held that the suspension order issued by the
Commissioner and ratified by the KDM Corporation, and the
departmental inquiry initiated by the Commissioner with the approval of
the KDM Corporation was beyond their powers. We will have to examine
the correctness of these findings.
15. Section 39A of the MMC Act reads thus:
"39A. Appointment of Additional Municipal Commissioners.-
(1) The State Government may create one or more posts of
Additional Municipal Commissioners in the Corporation and appoint
suitable persons on such posts, who shall, subject to the control of
1 (2015) 7 SCC 291
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
462
SUPREME COURT REPORTS
[2022] 4 S.C.R.
the Commissioner, exercise all or any of the powers and perform
all or any of the duties and functions of the Commissioner.
(2) Every person so appointed as the Additional Municipal
Commissioner shall be subject to the same liabilities, restrictions
and terms and conditions of service, to which the Commissioner
is subjected to as per the provisions of this Act.
16. The perusal of sub-section (1) of Section 39A of the MMC
Act would reveal that the State Government is empowered to create
one or more posts of AMCs. However, such a post is created in the
particular Corporation. The State Government is also entitled to appoint
suitable persons on such posts. It is further clear that the AMCs so
appointed, though shall 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. Sub-section (2) of Section
39A of the MMC Act provides that every person so appointed as the
AMC shall be subject to the same liabilities, restrictions and terms and
conditions of service, to which the Commissioner is subjected to as per
the provisions of MMC Act.
17. It is not in dispute that vide G.R. dated 6th January 2015, for
the KDM Corporation, which was promoted from Class 'D' to Class
'C', one new post of AMC was created. It is also not in dispute that
there was already one post of AMC existing in the KDM Corporation.
The perusal of the said G.R. would 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;
A
B
C
D
E
F
G
H
463
(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 Commissioner of the KDM Corporation stated that none
of the candidates including the respondent No.1 were eligible for the
post of AMC, the Committee, in its meeting held on 5th May 2015, after
considering the confidential reports of the three candidates, resolved to
recommend respondent No.1 for appointment to the post of AMC of the
KDM Corporation. The said recommendation was approved by the State
Government and accordingly, respondent No.1 came to be appointed as
AMC of the KDM Corporation vide G.R. dated 2nd June 2015. The said
G.R. would clearly reveal that respondent No.1 had been appointed
specifically as AMC of the KDM Corporation. It could thus clearly be
seen from the record that though the respondent No.1 was selected and
appointed by the State Government, his appointment was specifically
for the KDM Corporation.
20. Therefore, the question that we will have to consider is as to
whether the respondent No.1 though an employee of the KDM
Corporation, can neither be suspended nor any departmental proceedings
can be initiated against him by the KDM Corporation, since his selection
and appointment was done by the State Government.
21. For considering the rival submissions, it will be relevant to
refer to some of the provisions of the MMC Act. We have already
reproduced Section 39A of the MMC Act hereinabove. The other two
provisions that require consideration are sub-section (9) of Section 2
and Section 56 of the MMC Act, which read thus:
"2. Definitions.-
.....
(9) "the Commissioner" means the Municipal Commissioner for
the City appointed under Section 36 and includes an acting
Commissioner appointed under Section 39;
..............
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
464
SUPREME COURT REPORTS
[2022] 4 S.C.R.
56. Imposition of penalties on municipal officers and
servants.-(1) A competent authority may subject to the
provisions of this Act impose any of the penalties specified in subsection (2) on a municipal officer or servant if such authority is
satisfied that such officer or servant is guilty of a breach of
departmental rules or discipline or of carelessness, neglect of duty
or other misconduct or is incompetent:
Provided that,-
(a) no municipal officer or servant holding the post
equivalent to or higher in rank than the post of the Assistant
Commissioner shall be dismissed by the Commissioner
without the previous approval of the Corporation.
[(b) any officer or servant whether appointed 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 powers to be exercised
by AMCs would be subject to the control of the Commissioner.
23. The legislative intent would also be gathered from sub-section
(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
A
B
C
D
E
F
G
H
465
Section 39 of the MMC Act has been included, an AMC appointed under
Section 39A of the MMC Act has not been included. We are, therefore,
unable to accept the contention of respondent No.1 that the post of
AMC is pari materia with that of the Commissioner. The legislative
intent is clear that though the AMC exercises all or any of the powers
and performs all or any of the duties and functions of the Commissioner,
he would be subject to the control of the Commissioner, and as such,
subordinate to him.
24. Under sub-section (1) of Section 56 of the MMC Act, a
competent authority, subject to the provisions of the said Act, is entitled
to impose any of the penalties specified in sub-section (2) of Section 56
of the MMC Act on a municipal officer or servant if such authority is
satisfied that such officer or servant is guilty of breach of departmental
rules or discipline or of carelessness, neglect of duty or other misconduct
or is incompetent. Clause (a) of the proviso to sub-section (1) of Section
56 of the MMC Act, however, provides that no municipal officer or
servant holding the post equivalent to or higher in rank than the post of
the Assistant Commissioner, shall be dismissed by the Commissioner
without the previous approval of the Corporation. It can be seen that the
words used are "post equivalent to or higher in rank than the post of the
Assistant Commissioner". It will also be relevant to note that Section 56
of the MMC Act has also been amended by the same Amending Act i.e.
Maharashtra Act No. 32 of 2011, by which Section 39A was brought in
the statute. Earlier, the words used in clause (a) of sub-section (1) of
Section 56 were "whose monthly salary, exclusive of allowances exceeds
one thousand rupees". The said words were substituted by the words
"holding the post equivalent to or higher in rank than the post of the
Assistant Commissioner". It can thus be seen that though the "competent
authority" is entitled to impose the penalty as specified in sub-section (2)
of Section 56 of the MMC Act on a municipal officer or servant; in case
of an officer, who is equivalent 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
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
466
SUPREME COURT REPORTS
[2022] 4 S.C.R.
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 under
Section 45 of the MMC Act, the Commissioner is required to report
such a suspension with reasons thereof, to the Corporation. It further
provides that 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.
27. A conjoint reading of the aforesaid provisions of the MMC
Act would reveal that though a competent authority may impose any of
the penalties on a municipal officer or servant, no municipal officer or
servant holding the post equivalent to or higher in rank than the post of
an Assistant Commissioner, shall be dismissed by the Commissioner
without the previous approval of the Corporation.
28. It could be seen that the legislature has created two classes of
the municipal officers and servants. One class is of the municipal officers
and servants, other than the ones holding the post equivalent to or higher
in rank than the post of an Assistant Commissioner. In this category, a
competent authority may impose the penalties as provided under the
provisions of the MMC Act. The other class of municipal officers is of
the persons holding the post equivalent to or higher in rank than the post
of Assistant Commissioner. The officers in such a class can be dismissed
only by the Commissioner and that too with the previous approval of the
Corporation.
29. As already discussed hereinabove, 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, we are of the view that the term "post equivalent to or
higher in rank than the post of Assistant Commissioner" cannot be
construed in a narrow compass. We are therefore of the view that clause
(a) of sub-section (1) of Section 56 of the MMC Act would also include
the post of AMC. As such, the Commissioner would be a "competent
A
B
C
D
E
F
G
H
467
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, such a suspension has to
be reported to 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 Others2, 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 styled as
"elementary rule" (see Attorney General v. Bastow [(1957) 1 All
ER 497] ) and as a "settled rule" (see Poppatlal Shah v. State
of Madras [AIR 1953 SC 274 : 1953 SCR 667] ). The only
recognised exception to this well-laid principle is that it cannot be
called in aid to alter the meaning of what is of itself clear and
explicit. Lord Coke laid down that: "it is the most natural and
genuine exposition of a statute, to construe one part of a statute
by another part of the same statute, for that best expresseth
meaning of the makers" (Quoted with approval in Punjab
Beverages Pvt. Ltd. v. Suresh Chand [(1978) 2 SCC 144 : 1978
SCC (L&S) 165 : (1978) 3 SCR 370] )."
2 (1985) 3 SCC 103
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
468
SUPREME COURT REPORTS
[2022] 4 S.C.R.
32. It could thus be seen that this Court has held that the Statute
must be read as a whole. It has been held that this rule of statutory
construction is so firmly established that it is variously styled as
"elementary rule". It has been held that for finding out the true meaning
of one part of a statute, a reference will have to be made to another part
of the statute and that will best express meaning of the makers.
33. In the case of Sultana Begum v. Prem Chand Jain3, this
Court was considering the question regarding the conflict between Section
47 of the Code of Civil Procedure, 1908 and Order XXI Rule 2 thereof.
This Court held that applying the rule of harmonious construction, the
so-called conflict between the said two provisions had been dispelled.
Observing so, this Court reiterated the following well-settled principles
of interpretation of statutes:
"15. On a conspectus of the case-law indicated above, the
following principles are clearly discernible:
(1) It is the duty of the courts 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 as to harmonise them.
(2) The provisions of one section of a statute cannot be
used to defeat the other provisions unless the court, in spite
of its efforts, finds it impossible to effect reconciliation
between them.
(3) It has to be borne in mind by all the courts all the time
that when there are two conflicting provisions in an Act,
which cannot be reconciled with each other, they should be
so interpreted that, if possible, effect should be given to
both. This is the essence of the rule of "harmonious
construction".
(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."
3 (1997) 1 SCC 373
A
B
C
D
E
F
G
H
469
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 Others4, while considering the conflict between Rules 25(2)
and 28 of the Delhi Cooperative Societies Rules, 1973, observed thus:
"7. ... It is a cardinal principle of construction of a statute or the
statutory rule that efforts should be made in construing the different
provisions, so that, each provision will have its play and in the
event of any conflict a harmonious construction should be given.
Further a statute or a rule made thereunder should be read as a
whole and one provision should be construed with reference to
the other provision so as to make the rule consistent and any
construction which would bring any inconsistency or repugnancy
between one provision and the other should be avoided. One rule
cannot be used to defeat another rule in the same rules unless it is
impossible to effect harmonisation between them. The well-known
principle of harmonious construction is that effect should be given
to all the provisions, and therefore, this Court has held in several
cases that a construction that reduces one of the provisions to a
"dead letter" is not a harmonious construction as one part is being
destroyed and consequently court should avoid such a
construction........"
36. In the case of Commissioner of Income Tax v. Hindustan
Bulk Carriers5, though in Sections 245-D(4) and 245-D(6) of the Income
Tax Act, 1961, the terminus point for charging interest was not specifically
provided, this Court, applying the principle of harmonious and contextual
4 (1997) 4 SCC 435
5 (2003) 3 SCC 57
KALYAN DOMBIVALI MUNICIPAL CORPORATION v.
SANJAY GAJANAN GHARAT AND ANOTHER [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
470
SUPREME COURT REPORTS
[2022] 4 S.C.R.
construction, held that they have to be charged in the spirit of Sections
234-A, 234-B and 234-C of the said Act. Holding this, this Court observed
thus:
"16. The courts will have to reject that construction which will
defeat the plain intention of the legislature even though there may
be some inexactitude in the language used. (See Salmon v.
Duncombe [Salmon v. Duncombe, (1886) LR 11 AC 627 (PC) :
55 LJPC 69 : 55 LT 446] , AC at. 634, Curtis v. Stovin [Curtis v.
Stovin, (1889) LR 22 QBD 513 (CA) : 58 LJQB 174 : 60 LT 772]
referred to in S. Teja Singh case [CIT v. S. Teja Singh, AIR 1959
SC 352 : (1959) 35 ITR 408] .)
17.