1 2025:CGHC:12922 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 142 of 2017 1 - Maksudan Thakur S/o Late Pawan Singh Thakur, Aged About 59 Years, R/o. Ratanpur, Police Station Ratanpur, District Bilaspur (C.G.). ... Petitioner(s) versus 1 - State Of Chhattisgarh, Through Secretary, Urban Administration And Development Department, Mahanadi Bhawan, Mantralaya, Capital Complex, New Raipur, District Raipur (C.G.). 2 - Director, Urban Administration And Development, Directorate, Chhattisgarh Raipur, District Raipur (C.G.). 3 - Joint Director, Urban Administration And Development, Regional Office, Bilaspur, District Bilaspur (C.G.). ... Respondent(s) For Petitioner(s) : Mr. Manoj Paranjpe appears alongwith Mr. Shaswat Mishra, Advocate. For Respondent(s)/State : Ms. Pragya Pandey, Dy. Govt. Advocate. Hon'ble Shri Justic e Sanjay S. Agrawal Order on Board 18/03/2025 1) By virtue of this petition, the petitioner-Maksudan Thakur is questioning the legality and proprietary of the order dated 03/11/2016 (Annexure P-1), passed by the Under Secretary of the Urban CHANDRAKANT DEWANGAN Digitally signed by CHANDRAKANT DEWANGAN Date: 2025.03.19 17:11:48 +0530 2 Administration and Development Department, whereby the punishment of withholding of two annual increments with non- cumulative effect has been imposed in exercise of powers provided under Rules, known as the “Chhattisgarh State Municipal Service (Executive) Rules, 1973” (hereinafter referred to as ‘the Rules, 1973”) . 2) According to the petitioner, since he was not the employee of the State Municipal Service (Executive), therefore, the order impugned passed by the State Govt. in exercise of the powers under the said Rules, 1973 is without jurisdiction and, as such the entire proceedings initiated under the Rules, 1973 are void ab-initio and therefore, the order impugned deserves to be quashed. It is the further contention of the petitioner that the reply (Annexure P-9) as was submitted by the petitioner in pursuance to the ‘Show Cause Notice’ dated 31/08/2016 was, however, not considered in proper manner by the concerned respondent authority, therefore, also the order impugned deserves to be set aside. 3) In reply, learned counsel appearing for the State/respondents, while referring to the provisions prescribed under sub-section (1-A) of Section 89 read with sub-section (4) of Section 90 of the Municipalities Act, 1961 (hereinafter referred to as ‘the Act, 1961”), submits that there is no infirmity in the order impugned as passed by the Under Secretary of Urban Administration and Development Department, therefore, the petition as framed is liable to be dismissed. 4) I have heard learned counsel appearing for the parties and perused 3 the entire papers annexed with this petition. 5) The main contention as reflected from the averments made in the petition is that, since the petitioner was not the employee of the State Municipal Service (Executive), therefore, the order impugned (Annexure P-1) as passed by the concerned respondent authority in exercise of the powers provided under the said Rules, 1973, is, therefore, not sustainable in the eye of law. It, however, appears from perusal of the provisions prescribed under sub-section (1-A) of Section 89 read with sub-section (4) of Section 90 of the Act, 1961, that the concerned authority, who passed the order impugned, was the competent to pass such an order. The said provisions, which are relevant for the purpose, read as under :- “89. Appointment to State Municipal Service pending constitution thereof etc.” - (1) Pending the Constitution of the State Municipal Service under sub-section (1) of section 86 or when no member of such service is available for appointment as Chief Municipal Officer. Health Officer or Engineer, as the case may be, the State Government may depute an officer of Government or appoint any person qualified to be a member of such service to act as Chief Municipal Officer. Health Officer or Engineer, as the case may be. [(1-A) The State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one council to another.] (2) The State Government may, on its own motion or if at a special meeting of the Council more than one-half of the Councillors constituting the Council for the time being vote in favour of a resolution to that effect withdraw the service of the Chief Municipal Officer, Health Officer, or Engineer, as the case may be, who is an officer of the State Government and has been deputed to the Council under sub-section (1). 90. Arrangement during leave of absence of Chief Municipal Officer:- (1) The State Government may grant leave of absence to the Chief Municipal Officer. 4 (2) During any absence on leave of the Chief Municipal Officer for a period of not exceeding thirty days at a time the State Government may appoint a person to act as the Chief Municipal Officer. 3) During any absence on leave of the Chief Municipal Officer for a period not exceeding thirty days at a time, the State Government may make such local arrangement for carrying on the duties and functions of the Chief Municipal Officer as may be necessary. (4) Every person appointed under sub-section (2) or (3) shall exercise all powers conferred, and perform the duties imposed on the Chief Municipal Officer by or under this Act or by or under any enactment for the time being in force and shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable.” 6) A bare perusal of the aforesaid provisions of sections 89(1-A) and 90(4) of the Act,1961, it is clear that section 89 provides powers to the State Government that when no member of such service is available for appointment as Chief Municipal Officer, the State Government may depute an Officer of Government or appoint any person qualified to be a member of such service to act as Chief Municipal Officer, as the case may be. Sub-section (1-A) of section 89 of the Act, 1961 further provides that the State Government shall have powers of control over the persons appointed under sub-section (1) and may transfer any person appointed thereunder from one Council to another. Section 90(1) of the Act, 1961 provides for making arrangements during leave of absence of Chief Municipal Officer and in that case, the State Government may grant leave of absence to the Chief Municipal Officer and sub-section (4) provides that every person appointed under sub-section (2) or (3) shall exercise all powers conferred and perform the duties imposed on the Chief Municipal Officer by or under this Act or by or under any enactment for the time being in force and 5 shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. Therefore, on the plain reading of section 89 specifically provides power to the State Government to appoint any person as Chief Municipal Officer and to exercise the powers of control over him and section 90 clearly provides that in any contingency when a regular person is on leave of absence, the State Government can appoint any other person to perform the duties of the C.M.Ο. imposed by or under this Act or by or under any enactment for the time being in force and shall also exercise all powers conferred on him and in that case, he shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. 7) It is to be noted at this juncture that the issue as raised herein, was considered by the Division Bench of the Madhya Pradesh High Court in the matter of Anand Sharma Versus State of M.P. and another, reported in 2006 SCC OnLine MP 609 , wherein, it has been held at paragraphs 13 and 15 as under:- “13. Admittedly, in this case, there is no dispute, about the facts of the case. Vide order dated 18.5.2005, the appellant was made as Incharge C.M.O. of Nagar Panchayat, Phoopkalan, and he was continuously working on that post and performing the duties and exercising all powers of C.M.O.; and for committing some irregularities, he was placed under suspension vide order dated 19.7.2006, i.e. after a period of 14 months, which also clearly indicated that his additional charge was not of a temporary in nature for a particular period, but he was continuously enjoying the powers of Chief Municipal Officer. As he has argued by the learned Counsel for the appellant, the question in this case is whether, under these circumstances, the order passed by the Commissioner-cum-Secretary for placing him under suspension can be covered within the provisions of 6 sub-section (1-A) of section 89 under the power of control and sub-section (4) of section 90 of the Act of 1961. Though Shri M.P.S. Raghuwanshi vehemently argued, but considering the aforesaid provisions and the background of the facts, and the clear meaning of word "power of control" we are also of the same view that if an Officer, though not promoted under the cadre of C.M.O., but if he was given additional charge or was made Incharge C.M.O. and was exercising the powers of the post, was under the "control" of the State Government as provided in sub-section (1-A) of section 89 read with sub-section (4) of section 90 of the Act of 1961. Sub-section (1-A) of section 89 provides the powers to the State Government to "control over" the person and the person so appointed shall exercise all the powers and perform the duties imposed on him under the Act and he shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. The plain and simple interpretation of the aforesaid provisions is that if a person is exercising the powers and performing the duties, the State Government shall have the powers to control over the person, therefore, at this stage, he cannot argue that his suspension is illegal or without jurisdiction. 15. In view of the above, we hold that when appellant was holding the charge of the post of C.M.O. on the orders passed by the State Government, he shall be under the control of the State Government and the State Government shall have powers to control his services and for taking disciplinary action against him including suspension. …...” 8) In view of the provisions mentioned herein above and the principles laid down by the Division Bench of the Madhya Pradesh High Court in the above-referred matter, it is, thus, evident that the order impugned has been passed by the competent authority under the said Rules, 1973. 9) It is to be seen that when the petitioner was performing his duties as In-charge, Chief Municipal Officer of Nagar Panchayat, Ratanpur, has committed certain irregularities, owing to which, he faced the following charges :- 7 “ आरोप कमांक 01 :- नि काय ्ቌे्ቔांत्ቇत ቝኌत मवेशी बाजार, दैनि क आम बाजार, सा्቎ानिक सोमवारी बाजार, सा्቎ानिक सायनिकल टैण्ड, कांजी ाउस एवं वा ्ቚवेश शुल्क की वसूली ठेके के माध्यम से कर े ेतु ्ቚत्येक व्ቧ ीलामी की जाती री ैं। ीलामी के शत अ ुसार तत्का मुख्य ्ቇरपालिलका अधि4कारिरयों ्ቛारा निवधि4वत् अ ुबं4 का नि ष्पाद ीं करा े के कारण ीलामी में सफल ठेके दारों ्ቛारा ठेके की पूरी राशिश का भु्ቇता ीं निकया ्ቇया। आपके ्ቛारा अप े पदाप ा के दौरा भु्ቇता ेतु लंनिबत इ राशिशयों को ठेके दारों से वसूली ेतु कोई ्ቚयास ीं निकया ्ቇया, जिजससे नि काय का आቕኌक प्ቌ ्ቚभानिवत ुआ ैं। आरोप कमांक 02 :- सामाजिजक सुर्ቌा पेंश नित्ቇानियों को बैंक/पोट ऑनिफस में खाता खुलवाकर पेंश राशिश भु्ቇता कर े संबं4ी प्ቖ नि दIश के बावजूद आपके ्ቛारा ्ቇर पंचायत रत पुर के 223 नित्ቇानियों को सामाजिजक सुर्ቌा पेंश योज ांत्ቇत पेंश राशिश का ्ቇद भु्ቇता निकया ्ቇया ता मा्ቔ 122 नित्ቇानियों को ी खातों के माध्यम से भु्ቇता निकया ्ቇया। इस ्ቚकार आपके ्ቛारा वरिर्቗ालय / शास नि दIश की अवेल ा की ्ቇई।" 10) It appears that with regard to the aforesaid charges, a Departmental Enquiry was constituted, where Charge No.1 was not found to be proved, while he was held guilty with regard to the Charge No.2, as he disbursed the pension amount directly to the beneficiaries instead of depositing the same in their accounts and therefore, the reply as was submitted by the petitioner vide Ex.P-9 in pursuance to the ‘Show Cause Notice’ issued on 31/08/2016, was rightly rejected under the order impugned dated 03/11/2016 (Annexure P-1) passed by the Under Secretary of Urban Administration and Development Department, so as to call for any interference in this petition. 11) The petition being devoid of merit is, accordingly, dismissed. No order as to cost(s). -Sd/- (Sanjay S. Agrawal) Judge Chandrakant