1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 235/2001 Shri Chandrahas D. Chodankar, Resident of House No.416, Verna Nagoa, Salcette, Goa. .......... Petitioner. Versus 1. The State of Goa, (through the Secretary Transport Department of Government of Goa), Panaji, Goa. 2. Deputy Director of Vigilance, Directorate of Vigilance, Government of Goa, Junta House (Annexe), 6th Floor, Panaji, Goa. 3. The Governor of Goa, Raj Bhavan, Dona Paula, Goa. ......... Respondents. Mr. S. K. Kakodkar, Senior Advocate with Mr. Rama Rivonkar, Advocate for the petitioner. Mr. S. R. Rivonkar, Government Advocate for the respondents. CORAM : R.M.S. KHANDEPARKAR & S.C. DHARMADHIKARI , JJ. Date of reserving the Judgment : 29th July, 2008. Date of pronouncing the Judgment : 1st August, 2008. 2 J U D G M E N T : (Per S.C. DHARMADHIKARI, J.) By this writ petition under Article 226 of the Constitution of India, the petitioner prays that the orders dated 26/3/1999 and the order dated 12.10.1999 (Annexure P-1 collectively) be quashed and set aside and the respondents be directed to reinstate him in service with full back wages and consequential benefits. 2. By the orders impugned in this petition, the petitioner challenges the imposition of major penalty of dismissal from services. This penalty was imposed by the Disciplinary Authority, Dy. Director (Vigilance), Government of Goa. In review petition, being Review Petition No. 5/99 which was filed by the petitioner before the Governor of Goa, the Governor of Goa has, by his order dated 12.10.1999 modified the punishment of dismissal from service and substituted it by compulsory retirement. 3. At the relevant time, the petitioner was serving as Asst. Director of Transport, Transport Department of Government of Goa. He joined the services in 1975 as Assistant Motor Vehicle Inspector on ad hoc basis and thereafter was promoted on 16.11.1984 as Inspector. His further promotion was Assistant Director of Transport which post he was holding when he was 3 served with an order of suspension (Annexure P-2) dated 24.12.1996. The Governor of Goa invoked the powers conferred by sub-Rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, “the CCS(CCA) Rules). It was stated in the order of suspension that disciplinary proceedings are contemplated against the petitioner. 4. Thereafter, a charge-sheet (Annexure P-3) dated 1/10/1997 was served upon him. Along with the charge-sheet, statement of imputation in support of each article of charge, was enclosed. The petitioner was directed to submit his written statement in defence and also state if he desires to be heard in person. An inquiry was proposed to be held only in respect of those articles of charge which are not admitted. The inquiry was proposed in terms of the CCS(CCA) Rules. 5. The charges are that while functioning as the Asst. Director of Transport at Mapusa during 5.2.1996 to 24.12.1996, the petitioner accepted and entertained several applications in Form 20, 21 and 22 of Rule 47 of the Central Motor Vehicles Rules for registration of new vehicles. It is alleged that in gross violation of the provisions of the Motor Vehicles Act, and the Rules made thereunder, the petitioner fraudulently got processed and endorsed the registration of new vehicles mentioned in the application, as 4 Registering Authority, without the inspection of the registered vehicles himself or by the Inspecting Authority for certifying that the particulars of the vehicles contained in the applications were true and that the vehicles complied with the requirements of the Motor Vehicles Act and Rules made thereunder. It is alleged that the petitioner did this knowingly and after having reasons to believe that the vehicles were neither inspected in showrooms nor physically presented by the purchasers at the time of registration for inspection and that the said vehicles were purchased by the purchasers residing outside the State of Goa. It is alleged that in furtherance of the above act, the petitioner arranged and accepted forged affidavits from the purchasers as evidence of their residence in Goa, which were of posterior dates, to the date of registration of the vehicles. Signatures of the deponents on the affidavits do not tally with the signatures of the registered owners in Form 20 of the applications. By the above acts, the petitioner failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government Servant, thereby violating Rules 3(1)(i),(ii) and (iii) of C.C.S. (Conduct) Rules, 1964, read with Motor Vehicles Act, and the Rules made thereunder. The above Rules would, hereinafter, be referred to as “the Conduct Rules”. 6. It is alleged that the Rules framed under the Motor Vehicles Act 5 mandates that the applicant filing application for registration of vehicles must produce proof of residence in Goa. Such proof is to be produced by annexing to the application the documents particularly mentioned in the rules relevant for that purpose. In the instant case, there is no compliance of Rule 4 inasmuch as the application did not contain evidence with regard to the correctness of the address and age of the applicants; that there were no documents accompanying the application, but mere affidavit is produced by the applicant to show that he was resident of Goa. This was an affidavit of the applicant himself. But even that did not fulfill the requirement of the Rules in this behalf, inasmuch as it was not sworn before any authority prescribed thereunder. In such circumstances, even the affidavits were completely unacceptable. Further, the petitioner as Registering Authority did not bother to verify and scrutinize the applications in accordance with the Rules. The applications contained various deficiencies, such as non- mentioning of Technical specifications, Engine numbers, chassis numbers, etc. are not mentioned, together with the evidence regarding age and residence of the purchasers. The applications are accompanied by affidavits in some cases which are in a language, other than one specified, in the applications themselves. The petitioner endorsed such applications although he was knowing and had reasons to believe that the new vehicles were not inspected by the Inspecting Authorities. 6 7. Lastly, the petitioner was charged with failing to maintain a permanent register of motor vehicles as required by Rule 49 of the Central Motor Vehicles Rules, 1989, specially in respect of the vehicles covered by the charges referred to above. By not maintaining such details or having them not filled in in the permanent register, it has become difficult for the Authorities to trace the owners of the registered vehicles in case of any accident or use of such vehicles for any illegal activities. 8. The petitioner replied to the charge-sheet on 6.10.1997 and denied all the charges. The petitioner's reply proceeds on the basis that he was working as the Assistant Director of Transport and that he was the Registering Authority. However, while insisting that he should be furnished copies of all documents relied upon to frame the charges, he contended that he has followed the usual practice of registration of vehicles as is prevalent in the various offices in the Transport Department in Goa and any relaxation, was only in public interest so as not to cause harassment to the members of the public while complying with the provisions of law. Finally, he contended hat 26 vehicles at Mapusa, 38 vehicles at Bicholim were cleared and registered without obtaining any proof of residence as required under Rule 4 of Central Motor Vehicles Rules, 1989 during the period 1.1.95 to 28.2.1997. He 7 named the persons who had been the Registering Authority at the relevant time and also disclosed the vehicle Numbers. Further, he gave details of such registrations within the jurisdiction of the Registering Authority at Margao and contended that this is only a sample for emphasizing the fact of prevailing practice of registration. This practice was prevailing or followed according to the petitioner, but no action has been initiated or contemplated against the Officers who are guilty of more serious violations in compliance with the provisions of the Act and the Rules in matters of registration of vehicles. He contended that he has been implicated malafide on the basis of the alleged false affidavits which are not sworn, procured or obtained by him. 9. After written statement was received by the authority concerned, further steps were taken inasmuch as an Inquiry Officer was appointed. The Inquiry Officer held the inquiry and afforded opportunity to the petitioner as also the Department and submitted his report dated 15.1.1999. A copy of this report is annexed to the paper book. 10. It is upon the submission of the report in terms of the procedure contemplated by the Rules that the Disciplinary Authority arrived at the conclusion that major penalty of dismissal needs to be imposed, as the lapses, 8 irregularities and negligence of the petitioner are of serious nature. The Disciplinary Authority consulted the Goa Public Service Commission which agreed with the conclusions and that is how the subject penalty was imposed. The matter was carried in review as aforesaid and the Governor modified the punishment. 11. These orders are subject matter of challenge in this petition under Articles 226 and 227 of the Constitution of India. This petition was admitted and placed for hearing and final disposal before us. In the meanwhile, another petition being Writ Petition No.65/06 was filed by one Smt. Imelda D'Souza. She was working, at the relevant time, as Cashier and was served with the charge-sheet. Upon the charge-sheet being served defence was submitted and an inquiry was held against her. She was served with an order imposing penalty of removal from Government Service. Her petition was directed to be heard along with the present petition. 12. The learned Senior Counsel appearing for the petitioner, the learned Government Advocate and the learned Counsel appearing for the petitioner in Writ Petition No.65/06 agree that the only plea common in the petitions is the issue of jurisdiction of the Inquiry Officer and the Disciplinary Authority. The argument which is commonly contended is that the Goa State 9 came into being with effect from 30.5.1987. The Goa State being established and Goa Reorganisation Act promulgated, the employees became and have been treated as Goa Government employees and the CCS(CCA) Rules do not apply to the said employees. Their continuation in service, so also the disciplinary power over them is now available under some other Rules. The CCS(CCA) Rules and the Conduct Rules being inapplicable, the inquiry against them under the said Rules is without jurisdiction and, therefore, the dismissal order is nonest and deserves to be quashed and set aside. Shri Kakodkar, learned Senior Counsel appearing in Writ Petition No. 235/01 argued this issue of jurisdiction and his submissions have been adopted by Shri Sonak, appearing for the petitioner in Writ Petition No.65/2006. However, Shri Rivonkar, learned Government Advocate applied for time for filing an affidavit-in-reply as far as merits of the controversy in Writ Petition No.65/06. He submitted that if the jurisdictional issue in both the matters is decided and the inquiry, is held to be legal and valid, then, on merits he would like to file a detailed affidavit in Writ Petition No.65/06 and prays that time be granted to do the same. In the view taken by us as set out in the subsequent paragraphs, this request of Shri Rivonkar is granted and the said Writ Petition is adjourned for four weeks. The Writ Petition No.65/06 shall be placed for hearing after four weeks as prayed. 10 13. Now turning to the contentions of the petitioner in Writ Petition No. 235/01, Shri Kakodkar, learned Senior Advocate appearing for the petitioner contended before us that the CCS(CCA) Rules are not applicable to the employees of Goa Government. He submits that these are applicable only to Central Government employees and such of the employees of the Central Government whose services have been made over to the State Government or they are placed on deputation with the State Government. Therefore, after the Goa State came into being, the Rules applicable to the Central Government employees are no longer applicable and, therefore, the respondents could not have resorted to these rules and proceeded against the petitioner. No charge-sheet could have been issued invoking these Rules, nor could an inquiry officer be appointed to conduct an inquiry in furtherance of such charge-sheet. If the inquiry could not have been initiated at all and its initiation itself being vitiated, then, all further steps are also vitiated and the order of dismissal must, therefore, be set aside on this ground alone. In other words, if the initiation of inquiry is ab initio void and without jurisdiction, then, the final order in the inquiry also is nonest and must be quashed and set aside on this ground alone. 14. Without prejudice and in the alternative, Shri Kakodkar submitts that the initiation of disciplinary proceedings is malafide inasmuch as no 11 action was taken against the other Assistant Directors of the Transport Department for similar alleged lapses in the matter of registration of motor vehicles. He submits that the inquiry was held after long unexplained delay of over one year after suspension and decision to initiate disciplinary proceedings. He next submitted that the Government in Vigilance Department has no jurisdiction to issue charge sheet or impose penalty on the petitioner as the petitioner belongs to Transport Department and that only Transport Department could be a disciplinary authority for the petitioner. Mr. Kakodkar submits that the articles of charge and the supporting imputations do not make out any misconduct on the part of the petitioner. 15. Mr. Kakodkar then submits that the inquiry proceedings are an outrage on the principles of natural justice and fair play as the petitioner was not permitted to engage a Lawyer, although the nature of articles of charge and the voluminous material produced by the Department to sustain them required grant of such permission. Shri Kakodkar submits that the inquiry authority rushed through the inquiry some how to complete it within the time limit specified by this Court, resulting in refusal of legitimate request of the petitioner in aid of proper defence. He submits that the Department was allowed to produce and rely on over 900 files relating to registration of motor vehicles; whereas the petitioner was restricted to merely four files out of 2500 12 relied upon to show that the practice followed in regard to registration at Mapusa was nothing different from the practice at other offices in Goa and that there were similar alleged lapses. 16. Shri Kakodkar then submits that Inquiry Officer relied upon statements of some persons given before the police which were attached by the Presenting Officer to his written brief after closure of the inquiry which were not given to the petitioner during the course of inquiry. Shri Kakodkar urges that the findings of the inquiry officer and that of disciplinary authority are perverse and vitiated for non-compliance with the provisions of Rule 14(18) of the CCS(CCA) Rules which mandates that the delinquent official be given opportunity to explain the material/evidence against him, thereby causing great prejudice to the petitioner. He submits that reliance on evidence of witnesses whose credibility was severely impaired or who stood condemned by their own mouth has caused prejudice to the petitioner. Mr. Kakodkar submits that the findings are not justified and are contrary to the material/evidence on record. That the inquiring authority disregarded the material/evidence favourable to the petitioner. Shri Kakodkar submits that the inquiry officer did not assess and deal with the petitioners contentions/representations. Shri Kakodkar submits that admittedly, there was no loss to revenue or damage to public interest by the alleged lapses. Lastly 13 and in further alternative, he urged that the penalty imposed is grossly disproportionate. Considering delinquency of the petitioner and his past record, he deserves a lesser punishment. In any event, the decision to do away with his services on account of the disproportionate punishment imposed on him vis a vis misconduct alleged is in violation of the mandate of Articles 14, 16 and 21 of the Constitution of India. 17. Shri Kakodkar places reliance upon the following decisions in support of his contentions : (a) C.L. Subramaniam vs. The Collector of Customs, Cochin, reported in 1972 SC 2178; (b) Union of India and ors. vs. J. Ahmed reported in AIR 1979 SC 1022, (c) Inspector Prem Chand vs. Govt. of NCT of Delhi and ors., reported in (2007) 4 SCC 566; 18. On the other hand, Shri Rivonkar, learned Government Advocate contended that powers under Article 226 of the Constitution of India for a judicial review are extremely limited. It is not a Court of further appeal. In this limited jurisdiction, this court cannot reappreciate and reappraise the materials before the Disciplinary Authority. He submits that the inquiry is in accordance with law and at no stage the petitioner urged that the Inquiry 14 Officer had no jurisdiction or that the Disciplinary Authority cannot punish him. The petitioner fully participated in the inquiry. The petitioner himself made applications invoking the CCS(CCA) Rules and provisions under the Conduct Rules. He himself relied upon these Rules in support of his contentions as far as appointment of Defence Representative and inspection of relevant and necessary documents. Further, he relied upon these very rules in support of his argument of the alleged breach of principles of natural justice. Having participated in the proceedings without demur or protest, it is not open for him to urge that the inquiry is without jurisdiction. The petitioner cannot approbate and reprobate and, therefore, he is estopped from contending that the order is void being without jurisdiction. 19. That apart, placing reliance upon the CCS(CCA) Rules and the Goa, Daman and Diu Reorganisation Act, 1987 (for short, “the Goa Reorganisation Act”), it is urged by Shri Rivonkar that the CCS(CCA) Rules continue to apply to the Government employees, unless the Goa State steps in and frames its own rules. The CCS(CCA) Rules have been framed in pursuance of under Article 309 of the Constitution of India and in terms of Section 60(6) of the Goa Reorganisation Act, these rules are saved. Once they are saved by law and continue to apply to the employees, unless replaced by state Rules, then, inquiry could have been initiated by taking recourse to them. 15 Having taken recourse to these Rules and initiated an inquiry under the CCS(CCA) Rules, it cannot be said by any stretch of imagination that the inquiry itself is bad in law. Shri Rivonkar contended that the words “conditions of service” appearing in proviso to Section 60(6) of the Goa Reorganisation Act would demonstrate that disciplinary provisions in the Central Rules continue to apply and they cannot be altered to the prejudice of the employees. Therefore, there is no substance in the contention of Shri Kakodkar in that behalf. 20. On merits, Shri Rivonkar submitted that the inquiry was fair and full opportunity was given to the petitioner to put forward his defence. He was granted opportunity to inspect the documents, to cross examine the witnesses and to rely upon his own documents. There was no haste in conclusion of the inquiry. The inquiry was not initiated after unreasonable and unexplained delay. Further, the inquiry cannot be said to be vitiated as the petitioner participated in the same and placed his version before the Inquiry Officer. Some technical flaws in the proceedings would not be enough to set aside the inquiry. No prejudice is caused during the conduct of the inquiry and, therefore, the submissions in that behalf are misconceived and untenable. The petitioner has not denied that registers were not maintained or if maintained, there were no entries with regard to the subject 16 vehicles. There was no proof of age and residence. That the affidavits were submitted after the date of the application. That the signatures on these affidavits do not tally with the signatures on the applications and that the petitioner did not inspect subject vehicles, nor caused any inspection to be done. In the absence of the relevant details pertaining to the vehicles, the same have been registered by following some prevailing practice. If this is the version, then, he has admitted the acts attributed to him. In such circumstances, the arguments now canvassed are an afterthought and should be rejected. For all these reasons, the petition deserves to be dismissed. 21. Shri Rivonkar has taken us through Sections 40 and 41 of the Motor Vehicles Act, so also Rule 47 of the Motor Vehicles Rules, 1989 and contended that these provisions are mandatory. He submits that the petitioner is “Registering Authority” and must ensure compliance thereof by the Department. There is, admittedly, a default committed in compliance with these rules. Ultimately, the responsibility is that of the petitioner and he cannot be heard to say that the duty is of his subordinates. He submits that the burden cannot be passed on to somebody else by the petitioner. This is not a case of some error in discharge of duty or mistake, but a clear case of breach of duty in law. In such circumstances, the relevant service rules are attracted and the petitioner is guilty under the same. The Inquiry Officer, 17 Disciplinary Authority and the Honourable Governor have rightly concluded that the petitioner has committed serious lapses, irregularities and negligence while performing his duties and said negligence is of a serious nature. The petitioner is, therefore, guilty of lack of devotion to duty and he as acted in a manner unbecoming of a a Government servant. For the said acts, he must be visited with major penalty. Shri Rivonkar urges that even the penalty is modified and in such circumstances, there is no merit in the petition and it must be dismissed. 22. For properly appreciating the rival contentions, firstly, it is necessary to consider the factual position. 23. It is undisputed before us that the petitioner was working as Assistant Director of Transport, Directorate of Transport, Government of Goa and at the relevant time he was posted at Mapusa. Further, it is undisputed that he was the “Registering Authority” within the meaning of the said term appearing in the Motor Vehicles Act and the Rules made thereunder. So also, the Goa Motor Vehicles Rules, 1991. The petitioner proceeded on the basis that the CCS(CCA) Rules and the Conduct Rules were applicable to him. In this behalf, what the CCS(CCA) Rules disclose is that they are applicable to the Central Civil Servant and civilian post of the corresponding class in the 18 defence service. The term is, thus, defined in inclusive manner. The term “Government servant” is defined under Rule 2(h), to mean a person who is a member of service or holds a civil post under the Union and includes any such person in foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority. The term also means a person who is a member of a service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government. It also includes a person in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government. 24. Term “service” is defined under Rule 2(m) to mean a civil service of the Union. The Rules are applicable to other Government servants, including every civilian Government servant in the Defence Services, but is inapplicable to those persons which are specifically mentioned in Rule 3, clauses (a) to (e). 25. Part II of the Rules, deals with Classification of Services and Posts. Whereas, Part III deals with Appointing Authority. Part IV is entitled “Suspension” and Part V provides for Penalties and Disciplinary Authorities. Part VI sets out a procedure for imposing penalties. Part VII provides for 19 appeals. Whereas Part VIII provides for revision and review. Part IX is entitled “Miscellaneous”. It