Case Note & Summary
The petitioner, an employee of respondent No. 2-Municipality, was dismissed from service. Subsequently, vide office order dated 07.02.2019, the Municipality reinstated him but imposed a penalty of stoppage of three increments with future effect and denied back wages from the date of dismissal till reinstatement. The petitioner filed an appeal under Section 48(4) of the Gujarat Municipalities Act, 1963 before the Commissioner of Municipalities (respondent No. 1). The Commissioner dismissed the appeal as not maintainable vide order dated 15.05.2019, holding that the order of reinstatement with penalty does not fall within the categories of orders appealable under Section 48(4), which only provides for appeals against orders of dismissal, removal, or reduction in rank. Aggrieved, the petitioner filed the present writ petition under Article 226 of the Constitution of India seeking to quash both the office order dated 07.02.2019 (insofar as it denied back wages and imposed stoppage of increments) and the Commissioner's order dated 15.05.2019. The petitioner argued that the penalty of stoppage of increments and denial of back wages was vague and without cause, and that the appeal should have been entertained. The respondent-State supported the Commissioner's order, contending that the appeal was rightly dismissed as not maintainable. The High Court examined the provisions of Section 48(4) of the Act and noted that it provides for an appeal only against an order of dismissal, removal, or reduction in rank. Since the impugned order was one of reinstatement with a penalty, it did not fall within the ambit of the section. The court held that the Commissioner correctly dismissed the appeal as not maintainable. Consequently, the writ petition was dismissed, and the rule was discharged. No order as to costs.
Headnote
A) Municipal Law - Maintainability of Appeal - Section 48(4) Gujarat Municipalities Act, 1963 - The court considered whether an appeal lies under Section 48(4) against an order of reinstatement with penalty of stoppage of three increments and denial of back wages. The Commissioner of Municipalities dismissed the appeal as not maintainable. The High Court held that the order of reinstatement with penalty is not an order of dismissal, removal, or reduction in rank, and thus no appeal lies under Section 48(4). The petition was dismissed. (Paras 4-6)
Issue of Consideration
Whether an appeal under Section 48(4) of the Gujarat Municipalities Act, 1963 is maintainable against an order of reinstatement with penalty of stoppage of increments and denial of back wages.
Final Decision
The High Court dismissed the writ petition, holding that the Commissioner correctly dismissed the appeal as not maintainable under Section 48(4) of the Gujarat Municipalities Act, 1963. Rule discharged. No order as to costs.
Law Points
- Maintainability of appeal under Section 48(4) of Gujarat Municipalities Act
- 1963
- Scope of appellate jurisdiction
- Interpretation of 'penalty' under the Act
Case Details
R/Special Civil Application No. 11136 of 2019
Haribhai J. Patel for Petitioner, Nidhi Vyas (AGP) for Respondent No.1, Karmanyasingh V. Rore for Respondent No.2
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Nature of Litigation
Writ petition under Article 226 of Constitution of India challenging orders of Municipality and Commissioner of Municipalities.
Remedy Sought
Petitioner sought quashing of office order dated 07.02.2019 insofar as it denied back wages and imposed stoppage of three increments, and quashing of Commissioner's order dated 15.05.2019 dismissing his appeal as not maintainable; also sought direction for payment of full wages from dismissal to reinstatement with increments and interest.
Filing Reason
Petitioner was aggrieved by the order of reinstatement which imposed penalty of stoppage of three increments and denied back wages, and by the Commissioner's dismissal of his appeal as not maintainable.
Previous Decisions
The Municipality passed office order dated 07.02.2019 reinstating the petitioner with penalty of stoppage of three increments and denial of back wages. The Commissioner of Municipalities dismissed the petitioner's appeal under Section 48(4) of the Gujarat Municipalities Act, 1963 vide order dated 15.05.2019, holding it not maintainable.
Issues
Whether an appeal under Section 48(4) of the Gujarat Municipalities Act, 1963 is maintainable against an order of reinstatement with penalty of stoppage of increments and denial of back wages.
Submissions/Arguments
Petitioner argued that the penalty of stoppage of three increments and denial of back wages was vague and without cause, and the appeal should have been entertained by the Commissioner.
Respondent-State supported the Commissioner's order, contending that the appeal was rightly dismissed as not maintainable because the order was not one of dismissal, removal, or reduction in rank.
Ratio Decidendi
An appeal under Section 48(4) of the Gujarat Municipalities Act, 1963 lies only against an order of dismissal, removal, or reduction in rank. An order of reinstatement with penalty of stoppage of increments and denial of back wages does not fall within these categories and is not appealable under the said provision.
Judgment Excerpts
The short controversy germane to this matter as regards the maintainability of appeal filed by the petitioner under Section 48(4) of the Gujarat Municipalities Act, 1963... According to respondent No. 1-Commissioner, such appeal is not maintainable and accordingly, it has dismissed vide its order dated 15.05.2019, impugned in this petition.
The court held that the Commissioner correctly dismissed the appeal as not maintainable.
Procedural History
The petitioner was dismissed from service by the Municipality. On 07.02.2019, the Municipality reinstated him with penalty of stoppage of three increments and denial of back wages. The petitioner filed an appeal under Section 48(4) of the Gujarat Municipalities Act, 1963 before the Commissioner of Municipalities, who dismissed it as not maintainable on 15.05.2019. The petitioner then filed the present writ petition under Article 226 of the Constitution of India.
Acts & Sections
- Gujarat Municipalities Act, 1963: 48(4)
- Constitution of India: 226
