Kalyan Dombivali Municipal Corporation vs Sanjay Gajanan Gharat and Another

KALYAN DOMBIVALI MUNICIPAL CORPORATION ...APPELLANT(S) VERSUS

SANJAY GAJANAN GHARAT AND ANOTHER ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 2644 OF 2022 [Arising out of SLP(C) No. 6968 of 2021]

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

1 Maharashtra, by way of the present appeals, challenge the

correctness of the judgment dated 6th 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.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 1 st 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

2 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 18 th July 2003. The

State Government, vide notification dated 23 rd July 2005,

granted approval to the promotion of respondent No.1 as

Deputy Municipal Commissioner with effect from 9 th 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 11 th November 2011. Vide

the said G.R., one post of AMC was created for the KDM

Corporation. Consequent to the upgradation of the KDM

3 Corporation from Class ‘D’ to Class ‘C’, one additional post of

AMC came to be created vide G.R. dated 6 th 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 5 th 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

4 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 7 th

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 16 th

August 2019 addressed to the Commissioner, KDM

5 Corporation, objected to the said departmental inquiry on the

ground of jurisdiction.

8. Again, the KDM Corporation issued a notice dated 5 th

December 2019, to respondent No.1 calling upon him to remain

present for the preliminary inquiry to be held on 26 th 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 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 Exhibit­U hereto;

II) the impugned General Body Resolution dated 7th July, 2018, being Exhibit­V hereto;

III) the Impugned General Body Resolution No.6 dated 20th June, 2019 being Exhibit­Y hereto; and

6 IV) the Impugned Notice of Departmental inquiry dated 7th August, 2019 being Exhibit­Z 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 Exhibit­V 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 Exhibit­Z 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 re­Instate the Petitioner in the post of Additional Municipal Commissioner of the 1st Respondent Corporations;”

7

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.

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

8 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 sub­rule (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

9 of leading to a consequence that the respondent No.1, who has

been caught red­handed in a trap case, will be left scot­free.

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 6 th 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.

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

10 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 1,

continued suspension of respondent No.1 was not warranted.

He submitted that even the charge­sheet was not submitted

within 90 days and as such, there is no reason to interfere with

the impugned judgment.

1 (2015) 7 SCC 291

11

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 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.

12 16. The perusal of sub­section (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. Sub­section (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

13 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 4 th 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;

14 (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 2 nd

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

15 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;

16 …………..

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:

17

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 Section 39 of the MMC Act has

been included, an AMC appointed under Section 39A of the

18 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 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 post equivalent to or

higher in rank than the post of the Assistant Commissioner,

19 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 sub­section (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 sub­section (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.

20 25. It can further be seen that clause (b) of the proviso to sub­

section (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 under Section 45 of the

21 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

22 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 sub­section (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 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

23 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 2 (1985) 3 SCC 103

24 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 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

25 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 so­called conflict between

the said two provisions had been dispelled. Observing so, this

Court reiterated the following well­settled principles of

interpretation of statutes:

“15. On a conspectus of the case­law indicated above, the following principles are clearly discernible:

(1) It is the duty of the courts to avoid a head­on 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

3 (1997) 1 SCC 373

26 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.”

34. It can thus be seen that this Court has held that it is the

duty of the court to avoid a head­on 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

27 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 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

4 (1997) 4 SCC 435

28 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 245­D(4) and

245­D(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

construction, held that they have to be charged in the spirit of

Sections 234­A, 234­B and 234­C 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. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to

5 (2003) 3 SCC 57

29 futility, and should rather accept the bolder construction, based on the view that Parliament would legislate 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] .) Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court 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] .) 30

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 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

31 be made of avoiding any inconsistency or repugnancy either

within a section or between two different sections.

38. It has further been held that if the court has a choice

between two interpretations, the narrower of which would fail to

achieve the 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, we are

of the considered view 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.

39. Therefore, we are of the view that the finding of the High

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 sub­section (9) of

Section 2 of the MMC Act.

32

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.

Income­Tax Officer ‘A’ Ward, Gorakhpur and Another 6, 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 Another7:

“6. …….We must therefore eschew literalness in the interpretation of Section 52 sub­section (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 hands are tied and we cannot find any escape from the tyranny of the literal interpretation. It is now a well­ settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the

6 (1991) 4 SCC 560 7 (1981) 4 SCC 173

33 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.8:

“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 Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as 8 (1986) 3 SCC 91

34 they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

17. The courts must always seek to find out the intention of the legislature. Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As Judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of 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, 180­82 : 1981 SCC (Tax) 293, 300­302 : (1981) 131 ITR 597, 604­606] 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

35 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 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.

45. We have no hesitation in 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

36 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 of Sanjay Ramdas Patil v. Sanjay and

37 Others9, has referred to the earlier judgments of this Court and

observed thus:

“36. …..It will be relevant to refer to the observations of this Court in State of T.N. v. M.K. Kandaswami [State of T.N. v. M.K. Kandaswami, (1975) 4 SCC 745 : 1975 SCC (Tax) 402] : (SCC p.

751, para 26) “26. … If more than one construction is possible, that which preserves its workability, and efficacy is to be preferred to the one which would render it otiose or sterile.”

37. This Court in CIT v. Hindustan Bulk Carriers [CIT v. Hindustan Bulk Carriers, (2003) 3 SCC 57] has observed thus : (SCC p. 73, para 15) “15. A statute is designed to be workable and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable.

(See Whitney v. IRC [Whitney v. IRC, 1926 AC 37 : 10 Tax Cas 88 (HL) : 95 LJKB 165 : 134 LT 98] , AC at p. 52 referred to in CIT v. S. Teja Singh [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] .)”

9 (2021) 10 SCC 306 38

38. In Balram Kumawat v. Union of India [Balram Kumawat v. Union of India, (2003) 7 SCC 628] , this Court observed thus : (SCC pp. 636­37, paras 25­

26)

“25. A statute must be construed as a workable instrument. Ut res magis valeat quam pereat is a well­known 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 118­20)

‘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 with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the

39 legislature intended for it.

In Manchester Ship Canal Co. v. Manchester 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.”

40

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 statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.” ’

26. The courts will therefore 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. Dun combe, (1886) LR 11 AC 627 (PC) : 55 LJPC 69 : 55 LT 446] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result.”

41

39. It could thus be seen that the Court will have to prefer an interpretation which makes the statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, 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 sub­

42 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 Section

40 of the MMC Act, which is a part of Chapter II, a Transport

Manager is specifically referred to in clause (b) of sub­section

(1) of Section 56 of the MMC Act which is a part of Chapter IV

and empowers 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 sub­

section (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.

43

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 represented by

Secretary to Government (Home) v. Promod Kumar, IPS and

Another10. Insofar as the judgment of this Court in the case of

Ajay Kumar Choudhary (supra) is concerned, though this

Court has deprecated the protracted period of suspension and

repeated renewal thereof, in the facts of the said case, this

10 (2018) 17 SCC 677

44 Court found that since the appellant therein was served with a

charge­sheet, the direction issued in the said case may not be

relevant to him any longer.

51. Insofar as the judgment of this Court in the case of

Promod Kumar, IPS (supra) is concerned, this Court observed

thus:

“24. ….There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first respondent are serious in nature. However, the point is whether the continued suspension of the first respondent for a prolonged period is justified.”

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.

45 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 6 th April 2021, passed by

the High Court of Judicature at Bombay in Writ Petition

(ST.) No. 3599 of 2020 is quashed and set aside;

46 (ii) The Writ Petition (ST.) No. 3599 of 2020 filed by the

respondent No.1 before the High Court of Judicature at

Bombay is dismissed;

(iii) The departmental proceedings initiated against

respondent No.1 are directed to be completed as

expeditiously as possible and in any case, within a

period of four months from the date of this judgment.

The respondent No.1 would continue to be under

suspension till the conclusion of the said departmental

proceedings; and

(iv) Pending application(s), if any, shall stand disposed of in

the above terms. No order as to costs.

..…..….......................J. [L. NAGESWARA RAO]

.…….........................J. [B.R. GAVAI] NEW DELHI;

MARCH 31, 2022.

47