Judgment:
A.V. Savant, J.
1. This is a petition seeking to challenge the letter/order at Ex. C dated 7th July 1987 issued by the second respondent - Director (Engineering Services and Projects) of the first respondent Municipal Corporation of Greater Bombay. Under the said letter/order Ex. C the petitioner had been informed that under office order dated 24th November, 1986 he was promoted to the post of Assistant Engineer on ad hoc basis with effect from 4th November 1987. However, it had subsequently come to the notice that at the time of the petitioner's promotion to the post of Asstt. Engineer, he was involved in a criminal case in connection with the approval of the building proposal based on fraudulently increased area of plots of City Survey Nos. 233 and 234 of Byculla Division, Bombay. Para 2 of the order states that the Anti Corruption Bureau (A.C.B.) had investigated the complaint and, prima facie criminal case was made out against certain accused including some municipal employees, petitioner being one of them. It was, therefore, stated that a prima facie case for having committed offences under section 120-B read with 465, 466, 467, 468, 471, 477A, 420 I.P.C. and 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947 was made out. The impugned order at Ex. C further stated that in view of the aforementioned facts relating to the criminal cases in which the petitioner was involved he was found to have been wrongly promoted to the post of Asstt. Engineer when a criminal case was pending against him and it was, therefore, necessary to set right the incorrect order of promotion and before a formal order of reversion was issued, a letter was issued to the petitioner explaining the background of the decision. The last para of the order specifically states that the order was being issued not with an intention to award any punishment to the petitioner but to rectify the improper order of his promotion to the post of Asstt. Engineer and that his case would be placed before the Promotion Committee for fresh decision on merits after the proceedings of the criminal case were decided.
2. It was this letter/order which was initially challenged in the writ petition filed on 23rd July 1987. Subsequently, however, a regular order of reversion has been passed on 6th November 1987 which has also been challenged by way of amendment of the writ petition. The said order of reversion is at Ex.D. Briefly stated the petitioner's grievance is that the order of reversion is by way of punishment and the petitioner was not given any show-cause notice nor was any enquiry held before issuing either of the two orders at Ex.C and at Ex.D. Under the order Ex. D the petitioner has been reverted from the post of Asstt. Engineer to the post of Sub-Engineer. The main grievance is that under Rule 41 of the Municipal Servant's Conduct and Discipline Rules and punishment of reversion may be imposed for carelessness, unfitness, neglect of duty or other mis-conduct on the part of the municipal officer. But under clause 25 of the Manual of Departmental Enquiries, it was necessary to hold a regular enquiry before an order of dismissal, removal or reduction was passed upon the municipal servants. Holding of Departmental Enquiry will include serving of charge-sheet and compliance with the usual rules of natural justice set out in clause 25. It is this contention which has to be examined in the light of the following facts.
3. On 20th April 1972 the petitioner joined the first respondent Corporation as a Sub-Engineer. On 26th September 1984 it transpired that there was some mischief about the increase of the F.S.I. fraudulently in respect of the abovementioned two plots. On 3rd January 1986 certain guidelines were issued in the form of circular of MOM/7920 dated 5th December, 1985. Clause 27 of the guidelines contemplated that if any departmental enquiry or criminal proceedings was pending against the person his case should generally be not considered for promotion during the pendency of the enquiry or prosecution. On 6th September 1986 the Departmental Promotion Committee, which does not include the Municipal Commissioner, as far as the case of the petitioner was concerned, selected the petitioner for promotion to the post of Assistant Engineer. On 13th September 1986, the Administrative Officer (Chief Engineer's Office) made a reference to the Head Quarters and to the Deputy Chief Engineer concerned to ascertain whether any departmental enquiry was pending against the petitioner. It transpired that the departmental enquiry was pending against the petitioner. On 23rd September 1986, therefore, an intimation was sent to that effect by the Administrative Officer (Enquiries) to the Administrative Officer (Chief Engineer's Office). On 24th September 1985, the Standing Committee rejected the administrative proposal for sanction to prosecute the municipal employees involved in the alleged criminal conspiracy of manipulating the F.S.I. This was vide Resolution No. 1208. A similar move to secure the sanction of the Standing Committee was rejected vide Resolution No. 1259 dated 1st October 1986. It is of some consequence that when the Standing Committee was approached for the third time i.e. to say as on 15th November 1986 for sanction, such a sanction under section 197 of the Code of Criminal Procedure was accorded. In the mean-while on the basis of the earlier intimation dated 23rd September 1986, to the effect that there was no enquiry pending against the petitioner, the department processed the petitioner's papers for promotion and an order was issued on 4th November 1986 by the City Engineer appointing the petitioner temporarily as Asstt. Engineer. It is true that order dated 4th November 1986 at Ex.A states that (i) appointment of the petitioner was purely on ad hoc basis till such time as the regular candidate duly selected in the proposed departmental test was available; (ii) appointment will not confer on the petitioner any claim for seniority and/or continuity in the post; (iii) the appointment will be terminated on the availability of the candidates selected in the proposed departmental test or even earlier as per the exigency of administration and (iv) his appointment will also be subject to the availability of the candidate for recruitment by selection. The petitioner received a regular posting on 24th November 1986 consequent upon the order of promotion dated 4th November 1986.
4. At the stage of admission of this writ petition, one Chintaman Sadashiv Karve filed an affidavit dated 31st August 1987 on behalf of the Corporation. He was working as Administrative Officer (Enquiries). He categorically stated that the petitioner's promotion was purely on ad-hoc basis for a temporary period. He set out the fact that the fraudulent increase of area of plot Nos. 233 and 234 situated at Byculla, Bombay was a matter of enquiry by the A.C.B. on the request of the Corporation and on 1st July, 1985 the Director General of A.C.B. had recommended prosecution of several persons including some municipal employees, petitioners being one of them. The offences were those mentioned above falling under I.P.C. as also under the Prevention of Corruption Act, 1947. In para 8 of the affidavit, Chintaman Karve stated that the matter of enquiry by A.C.B. was being dealt with at the highest level of the Municipal Commissioner and was a secret affair and hence office of the Chief Engineer was not aware of the said proceedings. Secrecy of the matter between the Municipal Commissioner and Director General of A.C.B. resulted in the petitioner's department, namely, Chief Engineer's office, being unaware of the pending enquiry with the A.C.B. and that is how the petitioner's case was erroneously considered for promotion. It appears that finally, charge sheet was filed in the Special Case on 9th April, 1987 which has been wrongly mentioned by Chintaman Karve in his affidavit as 9th July 1987.
5. The petitioner filed his rejoinder at the stage of admission on 4th September 1987. He contended that on the date on which he was promoted, namely, 4th November 1986, there was neither any criminal prosecution pending against him nor was there any departmental enquiry pending against him. He contended that he was eligible to be considered for promotion and the mere fact of investigation being pending with the A.C.B. was not enough to deny promotion to him. At any rate the petitioner contended that having promoted him on 4th November 1986, the impugned orders of reversion at Ex. C dated 7th July 1987 and Ex.D dated 6th November 1987 were clearly penal. They cast a stigma on him, a serious stigma of his being involved in a serious crime which is being investigated by A.C.B. and this amounted to reduction in rank though from the ad-hoc appointment of the Asstt. Engineer to his substantive post of Sub-Engineer. He contended that no charge-sheet was filed by A.C.B. on the date on which he was promoted and, therefore, it cannot be said that even the criminal case was pending against him on that day. He denied that there was any mistake on the part of the Municipal Administration in promoting him. At any rate, he contended that his reversion was penal amounting to reduction in rank. It was violative of the provisions contained in Clause 25 of the Manual of Departmental Enquiry referred to above.
6. The petition was admitted on 7th September 1987 and no interim relief was granted in view of the fact that appointment of the petitioner was on ad-hoc basis and in view of the statement made by the respondents that if the petitioner succeeded he will be promoted with retrospective effect. Petitioner filed Appeal No. 1072 of 1987 against the order refusing to grant him stay. However, the said appeal was dismissed on 11th September 1987. The result is that the petitioner has been reverted under the impugned orders.
7. After admission of the petition, in view of the specific order of reversion at Ex.D dated 6th November 1987 the petitioner has amended the petition. He has filed the further detailed affidavit annexing several circulars. Govind Narayan Vanjara, the Administrative Officer of the first respondent-Corporation has filed the detailed affidavit dated 22nd June 1993. Govind Vanjara states that as a result of the order passed by this Court in earlier Writ Petition No. 994 of 1993 (sic) decided on 7th September 1989, the promotions were effected on ad-hoc basis. It is contended that the petitioner was involved in the fraudulent increase of the area of the two plots at Byculla and consequent upon sanction obtained on 15th November 1986 to prosecute the municipal employees the order at Ex. C proposing to revert the petitioner was issued on 7th July, 1987. It is further pointed out by Govind Vanjara that the petitioner was one of the persons accused in Special Case No. 9 of 1987 pending before the Special Judge, Bombay. The fact that the pendency of the investigation by A.C.B. was not known to the departmental promotion committee when it met in the month of November 1986 has been further reiterated by Govinda Vanjara. However, the moment this fact was brought to the notice of the concerned department of the Chief Engineer, the order dated 7th July 1987 of proposed reversion and the order dated 6th November 1987 actually reverting the petitioner was issued.
8. The petitioner has filed a rejoinder on 2nd July 1993 pointing out that many employees of the Corporation who are facing departmental enquiry or even prosecution were being promoted. Reliance is placed on different policy circulars issued from time to time. Cases have been pointed out where employees facing either departmental enquiry or even criminal prosecution have been promoted and, therefore, it is contended that the petitioner was not liable to be reverted, in any case, without holding an enquiry. A further rejoinder has been filed on 12th July 1993 reiterating these facts and giving some details of the case in which the petitioner is involved to contend that there is no merit as far as the charges against the petitioner are concerned. The Corporation has filed the affidavit of one Joshi on 2nd August 1993 explaining how some of the employees were promoted despite the pendency of either departmental enquiry or even a criminal prosecution. There may be cases which are not serious though enquiry is initiated; there may be a prosecution for some petty offence on a private complaints unconnected with one's official duty. Finally my attention is invited to the fact that the petitioner had applied to the Special Judge for discharge and the learned Special Judge, by his order dated 20th December, 1991 rejected the application for discharge. However, the petitioner has approached this Court in Criminal Revision Application No. 45 of 1992 which has been admitted on 25th June 1992 and stay of the trial has been granted.
9. It is in these facts that the matter has been argued at length by both the learned Counsel, Shri Vashi for the petitioner and Shri Murthy for respondents. Shri Vashi has raised the following two contentions, namely;
i) when the petitioner was promoted on 4th November 1986 there was no policy circular preventing the petitioner being promoted merely because of the pendency of the investigation by A.C.B. Neither the policy circular dated 19th May 1969 nor the circular dated 1st December 1991 nor even the circular dated 3rd January 1986 prevented the petitioner being considered for promotion. Circulars dated 25th February 1987 and 30th December 1988 have no application since they were admittedly issued after the petitioner was promoted on 4th November 1986. Since there was neither a criminal prosecution nor a departmental enquiry pending against the petitioner on 4th November 1986, the petitioner was entitled to be considered for promotion on 4th November 1986.
ii) even assuming that he was promoted wrongly on 4th November 1986, the impugned order Ex.C dated 7th July 1987 casts a stigma on the petitioner and is clearly a penal order of reduction within a meaning of Rule 41 of the Municipal Servants' Conduct and Discipline Rules and has been issued in violation of Clause 25 of the Manual of Departmental Enquiries. Admittedly no enquiry was held before passing the order at Ex.C dated 7th July 1987 and the consequent order of reversion at Ex. D dated 6th November 1987. Shri Vashi placed strong reliance on two Supreme Court decisions namely (i) case of Jarnail Singh v. State of Punjab, reported in : (1986)IILLJ268SC and (ii) Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, reported in 1991 Supp. (1) Supreme Court Cases 600.
10. As against this Shri Murthy appearing for the respondents has contended that the initial promotion of the petitioner was clearly erroneous and ought not to have been ordered in view of the pendency of the investigation before the A.C.B. Shri Murthy sought to rely upon the policy circulars and particularly Clause 27 of the policy circular dated 5th December, 1985/3rd January 1986 which required that if such an investigation was pending against the petitioner, his case ought not to have been considered for promotion. He, therefore, contended that promotion was wrongly ordered and if the municipal administration had acted bona fide in correcting the mistake which had occurred as a result of secrecy observed between the Municipal Commissioner and Director General of A.C.B., this was not a case for interference by the High Court in the limited powers under Article 226 of the Constitution of India. Reliance was placed on the observations of the Supreme Court in the case of M/s. Dwarkadas Marfatia and Sons v. Board of Trustees of Bombay Port Trust, reported in : [1989]2SCR751 . Shri Murthy contended that correction of a bona fide mistake on the part of the municipal administration did not fall in any of the three limited grounds subject to which alone the power of judicial review can be exercised namely illegality, irrationality or procedural impropriety.
11. Shri Murthy also contended that the petitioner's conduct in approaching this Court by way of Criminal Revision Application No. 45 of 1992 and obtaining a blanket stay of the entire trial also needs to be considered before acceding to his request to set aside the order of reversion. He points out that officers similarly placed as was the petitioner prior to his promotion on 4th November 1986 have not been promoted as yet because of the pendency of the special case. His apprehension is that an order of this Court in favour of the petitioner should not result in any claim being made by the other officers similarly situated demanding promotion. I may immediately deal with the last apprehension expressed by Shri Murthy before considering Shri Vashi's contention. I am not concerned with this case as to whether the officers situated similarly like the petitioner prior to 4th November 1986 are entitled to be considered for promotion. That is not the question which I am called upon to decide. The only point which needs to be decided by me is assuming that the petitioner was promoted rightly or even wrongly, is the order of reversion illegal having regard to the ratio of the Supreme Court decision in Jarnail Singh's case. In the view which I am inclined to take, I need not really consider the first submission of Shri Vashi in details and the decision of the petition can rest on the second point alone. Since, however, Counsel for both the sides have argued the matter at length, I wish to briefly deal with their contentions in the order in which they have been advanced.
12. It is difficult to accept Shri Vashi's proposition that the promotion initially ordered on 4th November 1986 was valid and proper. The petitioner was involved in the fraudulent increase of the F.S.I. The Executive Engineer (Vigilance) had initiated enquiry as far back as on 26th September 1984. Because of the secrecy to be observed in such matters the matter was dealt with at the level of the Municipal Commissioner and the Director General of A.C.B. Even before the order of promotion was passed on 4th November, 1986, the Standing Committee was approached twice or according its sanction to prosecute the municipal officers. Two resolutions were passed, namely, (i) on 24th September 1986 and (ii) on 1st October 1986 rejecting the proposal for sanction to prosecute the municipal employees. Merely because the Administrative Officer (Enquiries) initially informed the Administrative Officer (Chief Engineer's Office) on 23rd September, 1986 that no departmental enquiry was pending against the petitioner, I do not think that the departmental promotion committee was justified in ordering petitioner's promotion. To permit this, would be placing premium upon the conduct of the officers like the petitioner and in this case there are many more who are similarly situated. Similarly Shri Vashi's contention that there is nothing in Clause 27 of the circular dated 5th December 1985/3rd January 1986 which can come in the way of the petitioner's promotion is not acceptable to me. If the investigating agency was set in motion by the Municipal Administration and if a serious charge of fraudulent increase in the F.S.I. was being investigated by the A.C.B., in my view the provisions of Clause 27 would be attracted and the Municipal Corporation will be justified in refusing to grant promotion to officers similarly situated. However, let me turn to the more important aspect, namely, the second contention of Shri Vashi which is directly covered by the two Supreme Court decisions.
13. Shri Vashi's second and main contention is that assuming that the petitioner was wrongly promoted on 4th November 1986, both the impugned orders, dated 7th July 1987 proposing to revert the petitioner and the order of reversion dated 6th November 1987 at Ex. D are penal in nature. The question is if these two orders impose the penalty of reduction which is one of the penalties prescribed in Rule 41 of the Municipal Servants' Conduct and Discipline Rules, could such a penalty of reduction be imposed without following the procedure laid down in Clause 25 of the Manual of Departmental Enquiries. Clause 25 provides that before an order of dismissal, removal or reduction is passed upon the municipal servant, it is necessary to hold a departmental enquiry and the essentials to be observed in a departmental enquiry are, inter-alias that:
a) the municipal servant should be informed in writing the grounds on which action is proposed against him.
b) the grounds should be reduced to the form of a definite charge which should be communicated to him;
c) opportunity to file a written statement be given to him;
d) an oral enquiry be held etc.
It is not in dispute before me that none of these requirements have been followed in the facts of the present case.
14. Shri Vashi has placed strong reliance on the ratio of the Supreme Court decision in the case of Jarnail Singh and others v. State of Punjab and others, reported in : (1986)IILLJ268SC . This case takes a review of the case law on the subject commencing with Parshotam Lal Dhingra v. Union of India, reported in : (1958)ILLJ544SC . In Jarnail Singh's case the appellants were appointed as surveyors on ad-hoc basis between December 1966 and November, 1977 and appointments were to continue till regular candidates were recommended by the Board. Government of Punjab passed a circular regularising the ad-hoc appointments. However, services of the appellants were terminated with effect from 31st January, 1991. When orders of termination were challenged before the High Court, affidavits were filed pointing out the allegations against each of the appellants on the points on which they were branded either with incompetency or unfitness for government service. It was contended that the appointment was purely temporary and that too on ad-hoc basis and hence the appellants had no right to continue in the said post. Reliance was placed on the adverse remarks in the service record of the appellants as there were serious allegations of embezzlement of funds against some of them. The Supreme Court observed that mere form of an order was not sufficient to hold that the order of termination was innocuous and that the order of termination of service of the probationer or of an had-hoc appointee is a termination simpliciter in accordance with the terms of appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, the Supreme Court observed that, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In the case before the Supreme Court it was found that the allegations of serious misconduct against the appellants and the adverse entry in the service record were taken into consideration without giving the appellants any opportunity of being heard and without following the procedure provided under Article 311(2) of the Constitution. Hence termination was held to be illegal. The order of Punjab High Court was reversed and the appeals were allowed. The Supreme Court referred to the propositions culled out by it from the case of State of Punjab v. Sukh Raj Bahadur, reported in A.I.R. 1968 S C 1989, and observed thus in paras 23 of the judgment at pages 1632-33 of the report.
Para 23:
'In the case of State of Punjab v. Sukh Raj Bahadur, : (1970)ILLJ373SC the following propositions were laid down by this Court while considering the question whether in case of termination of service of a temporary servant or a probationer, Article 311(2) of the Constitution would be affected or not. The propositions are as follows:
1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
2. The circumstances preceding or attendant on the order of termination have to be examined in each case the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Article 311 of the Constitution.5. If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article'.
15. The propositions mentioned above were re-affirmed in the case of State of Bihar and others v. Shiva Bhikshuk Mishra, reported in : (1970)IILLJ440SC which case has been discussed in para 24 of the judgment in Jarnail Singh's case. That was a case of reversion of an officiating Subedar Major to his substantive post of Sergeant on account of his being censured for having assaulted an orderly. Supreme Court again reiterated that the form of the order was not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. It was, therefore, observed that the entirety of the circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. The Supreme Court then referred to the Constitution Bench decision in Shamsher Singh v. State of Punjab, reported in : (1974)IILLJ465SC in para 27 of the judgment at page 1633 of the report. That was also a case of termination of a probationer without saying anything more in the order of termination. It was held that if the probationer was discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to removal from service within the meaning of Article 311(2) of the Constitution.
16. Supreme Court thereafter considered the case of Anoop Jaiswal v. Govt. of India, reported in : (1984)ILLJ337SC and Nepal Singh v. State of U.P., reported in : (1986)IILLJ343SC and concluded thus in para 32 of the judgment at page 1635:
'The position is now well-settled on a conspectus of the decisions referred to herein- before that the mere form of the order is not sufficient to hold that the order to termination was innocuous and the order of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see that the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not. In the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the State respondent in their several affidavits alleging serious mis-conduct against the petitioners and also the adverse entries in the service records of these petitioners, which were taken into consideration by the Departmental Selection Committee without giving them any opportunity of hearing and without following the procedure provided in Article 311(2) of the Constitution of India, while considering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the Government Circular made in October, 1980. Thus, the impugned orders terminating the services of the appellants on the ground that 'the posts are no longer required' are made by way of punishment.'
17. It is not necessary for me to discuss in details all the cases which are referred in the Supreme Court decision in Jarnail Singh's case. Having regard to the admitted facts of this case, I am of the view that Shri Vashi is justified in contending that the order of proposed reversion at Ex.C and the order of reversion at Ex.D are clearly illegal in view of the ratio of the Supreme Court in Jarnail Singh's case. I may only mention that in the recent decision of the Supreme Court in the case of Delhi Transport v. D.T. Mazdoor Congress and others, reported in 1991 Suppl.(1) S C C 600, which is a decision of the Constitution Bench, the Supreme Court has again reiterated the above proposition that it is not the form of the action but the substance of the order which is to be looked into and that it was open to the Court to lift the veil and pierce through the impugned action to find out whether the impugned action is the foundation to impose punishment or is only a motive. In para 35 of the judgment in Delhi Transport Corporation's case at page 768 of the report ( : (1991)ILLJ395SC this is what the Supreme Court observed:
'It is undoubtedly true as contended by Shri Bhasin, learned Counsel for the intervenor, that it is open to the authorities to terminate the services of a temporary employee without holding an enquiry. But in view of the march of law made, viz., that it is not the form of the action but the substance of the order is to be looked into, it is open to the Court to lift the veil and pierce the impugned action to find whether the impugned action is the foundation to impose punishment or is only a motive. A larger Bench of seven Judges of this Court in Shamsher Singh v. State of Punjab elaborately considered the question and laid down the rule in this regard. The play of fair play is to secure justice procedural as well as substantive. The substance of the order, the effect thereof is to be looked into. Whether no misconduct spurns the action or whether the services of a probationer is terminated without imputation of misconduct is the test. Termination simpliciter, either due to loss of confidence or unsuitability to the post may be a relevant factor to terminate the services of a probationer. But it must be hedged with a bona fide over all consideration of the previous conduct without being tainted with either mala fide or colourable exercise of power or for extraneous considerations. Such actions were upheld by this Court. The action must be done honestly with due care and prudence.'
18. In view of the above legal position, Shri Murthy's reliance on the decision of the Supreme Court in Dwarkadas Marfatia's case is mis-placed. Indeed, if the impugned orders at Ex. C and Ex. D have been passed without complying with the provisions as to the holding of a Departmental Enquiry, the same would be entirely illegal. Even the observations of the Supreme Court in Dwarkadas Marfatia's case permit judicial review of administrative action on three grounds, namely, illegality, irrationality and procedural impropriety. In para 31 of the judgment in Marfatia's case, quoting Lord Justice Diplock in Council of Civil Service Unions v. Minister for the Civil Service (1984)3 All. E.R. 935 , three grounds have been classified as being subject to control of judicial review, namely, illegality, irrationality and procedural impropriety. Having regard to the ratio of the Supreme Court decided in Jarnail Singh's case and Delhi Transport Corporation's case, I am of the view that the impugned orders at Ex. C and Ex. D are clearly illegal and it would, therefore, be open to this Court in the exercise of power of judicial review to set aside the said orders. Reading the order at Ex. C., there cannot be any doubt that it casts a stigma on the petitioner since it clearly mentions that the investigation by A.C.B. had disclosed a prima facie criminal case against several persons including the petitioner for having committed offence punishable under section 120B, 468, 471 and 477A and 420 I.P.C. and 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947. It specifically states that the petitioner was involved in the criminal case of grave misconduct. It is true that the order ends with the recital that it was proposed to revert him not with an intention to award any punishment but to rectify the improper order of promotion. In my view, both the orders are clear punitive and cast a stigma on the petitioner and are, therefore, orders of penalty imposing a penalty of reduction in rank within the meaning of Rule 41 of the Municipal Servants' Conduct and Discipline Rules mentioned above. Since this punishment has been imposed without following the procedure prescribed in clause 25 of the Manual of Departmental Enquiries, the orders are clearly illegal. In view of the ratio of the Supreme Court decisions in Jarnail Singh's case and Delhi Transport Corporation's case, the orders will have to be set aside.
19. Before parting with the petition, however, I must observe that the petitioner is entitled to succeed only because of the failure on the part of the municipal administration to comply with the procedure of holding the Departmental Enquiry before passing the impugned orders at Ex. C and Ex. D. However, I cannot be oblivious to the fact that the petitioner has been charged with serious offences as mentioned above. There are several other municipal employees who are stated to be similarly situated. The case relates to the manipulation of the record with a view to claiming additional F.S.I. The petitioner had applied to the learned Special Judge for discharge. The application for discharge was rejected on 20th December 1991. The petitioner has moved this Court by way of Criminal Revision Application No. 45 of 1992 and has obtained a blanket stay of the entire trial. This is a fit case where the Municipal Corporation should move the State Government to approach this Court for at least an early hearing of the said Criminal Revision Application No. 45 of 1992. I am also of the view that despite this order, the Corporation is also free to consider the question as to why it should not suspend the petitioner who is involved in serious charges of tampering with the record and manipulating the records for the purpose of increasing the F.S.I. The Regulations pointed out to me empower the Corporation to resort to the power of suspension. Regulation 63(b) of the Municipal Service Regulations reads as under:
Regulation 63(b): 'A servant of the Corporation against whom a criminal charge or a proceedings for arrest is pending should also be placed under suspension by issue of specific orders to this effect, during periods when he is not actually detained in custody or imprisoned (e.g. whilst released on bail) if the charge made or proceedings taken against him, is connected with his position as a Municipal Servant or is likely to embarass him in the discharge of his duties as a Municipal Servant or involves moral turpitude. In regard to his pay and allowances, the provisions of clause (a) above shall apply.'
I have no doubt in my mind that the charges relate to the petitioner's conduct as a municipal employee. At the same time, he has approached this Court and obtained a blanket stay of the criminal trial. It is difficult to appreciate why the Corporation should not consider the question of resorting to the power of suspension. I am equally surprised at the inaction on the part of the Corporation not moving this Court either for vacating the stay of the entire trial or for fixing an early date of hearing of Criminal Revision Application No. 45 of 1992.
20. In view of the above, the petitioner succeeds. Rule is made absolute in terms of prayer (a). The impugned orders at Ex. C dated 7th July 1987 and Ex. D dated 6th November 1987 are both quashed and set aside. In the circumstances, there will be no order as to costs. A copy of this judgment be sent to the Municipal Commissioner within two weeks from today.
21. At this stage, Shri Murthy applies for stay of operation of this order for eight weeks. Shri Vashi opposes. Having regard to the peculiar facts and circumstances mentioned above operation of this order is stayed for four weeks.
22. Certified copy, if applied for, be issued expeditiously.
Rule made absolute.