TaxTMI 
TaxTMI 
2022 (3) TMI 1529
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....eby holding that the KDM Corporation was not the competent authority to suspend respondent No.1­Sanjay 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....
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....pondent 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 other app....
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....as 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 ....
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.... 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 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 sub­section (1) of Section 39A of the ....
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...., 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 considerat....
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....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. 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 sub­section (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 sub­section (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 sub­section (1) of Section 56 of the MMC Act, however, provides that no municipal officer or servant holding the p....
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....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....
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....eption to this well­laid 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] )." 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 Jain (1997) 1 SCC 373 , 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 so­calle....
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....g 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 well­known 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 Carriers (2003) 3 SCC 57, though in Sections 245­D(4) and 245­D(6) of the Income Tax Act, 1961, the terminus point for charging interest was not specifically provided, this Court, a....
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....t to avoid a head­on clash between two sections of the same Act. (See Sultana Begum v. Prem Chand Jain [Sultana Begum v. Prem Chand Jain, (1997) 1 SCC 373] .) 20. Whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with the other. 21. The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a construction that reduces one of the provisions to a "useless lumber" or "dead letter" is not a harmonised construction. To harmonise is not to destroy." 37. It could thus be seen that it is more than well­settled that the court has to avoid the interpretation which will result in head­on 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 ma....
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....ry provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even "do some violence" to it, so as to achieve the obvious intention of the legislature and produce a rational construction (vide Luke v. Inland Revenue Commissioner [(1963) AC 557] ). The Court may also in such a case read into the statutory provision a condition which, though not expressed, is implicit as constituting the basic assumption underlying the statutory provision ....." 42. It will be apposite to refer to the following paragraphs from the judgment of this Court in the case of State of Tamil Nadu v. Kodaikanal Motor Union (P) Ltd. 1986) 3 SCC 91 : "16. Lord Denning, in Seaford Court Estates v. Asher [(1949) 2 All ER 155, 164] said thus: "... when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.... A Judge should ask himself the question how, if the makers of the ....
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....holding that the intention of the legislature would not have been to lead to such an absurd and anomalous situation. A legislative intent cannot be to leave an employee scot­free though he has indulged into serious misconduct. We are therefore of the considered view that on a harmonious construction of sub­section (9) of Section 2, Sections 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. In our considered view, any other interpretation would lead to absurdity and anomaly, and therefore will have to be avoided. 46. We find that the appeals deserve to be allowed on another rule of interpretation, that the statute has to be interpreted in such a manner that it preserves its workability. Recently, this Court, in the case....
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....hester Racecourse Co. [Manchester Ship Canal Co. v. Manchester Racecourse Co., (1900) 2 Ch 352 : 69 LJCh 850 : 83 LT 274] Farwell, J. said: (Ch pp. 360­61) "Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning, and not to declare them void for uncertainty." 119. In Fawcett Properties Ltd. v. Buckingham County Council [Fawcett Properties Ltd. v. Buckingham County Council, (1960) 3 WLR 831 : (1960) 3 All ER 503 (HL)] Lord Denning approving the dictum of Farwell, J., said: (WLR p. 849 : All ER p. 516) "But when a statute has some meaning, even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meaning the statute is to bear, rather than reject it as a nullity." 120. It is, therefore, the court's duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. IRC [Whitney v. IRC, 1926 AC 37 : 10 Tax Cas 88 (HL) : 95 LJKB 165 : 134 LT 98] Lord Dunedin said : (AC p. 52) "A ....
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....rs the Commissioner to suspend his services, however, with a requirement of reporting the same with reasons to the Corporation. It is thus clear that if the legislative intent was to give a narrower meaning to the term "competent authority", only to mean such authorities who were found in Chapter IV, then there would have been no reference in subsection (1) of Section 56 of the MMC Act to Transport Manager, who is appointed under Chapter II of the MMC Act. We therefore find that the contention in that regard needs to be rejected. 49. We are therefore of the considered view that the High Court has totally erred in setting aside the suspension and the departmental proceedings initiated against respondent No.1. The effect of the impugned judgment is that the respondent No. 1, who has been, prima facie, found to be involved in a serious misconduct, has been left scot­free without requiring to face any departmental proceedings and directed to be reinstated in services. 50. Insofar as the prolonged suspension of the respondent No.1 is concerned, the respondent No.1 has relied on the judgments of this Court in the cases of Ajay Kumar Choudhary (supra) and State of Tamil Nadu represe....