-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LODGING NO.243 OF 2006 Ms. Sujata Kesharinath Sawe ) Age 35 years, Occ. Service ) at present working as ) Maharashtara Pollution Control ) Board,Kalpataru Point, Sion ) Matunga Scheme Road, No.8, ) Mumbai-400 022. )..PETITIONER Versus. 1.Maharashtara Pollution Control) Board,Kalpataru Point, ) 2 and 3 Floor, Sion Matunga ) Scheme Road, No.8, Op. Cine ) Planet Cineme, Sion (East) ) Mumbai-400 022. ) 2.Dr. D.G. Boralkar, Member ) Secretary, Maharashtra ) Pollution Board, Mumbai, ) Kalpataru Point, ) 2 and 3 Floor, Sion Matunga ) Scheme Road, No.8, Op. Cine ) Planet Cineme, Sion (East) ) Mumbai-400 022. ) 3.Shri S.R. Banate, Senior ) Administrative Officer, ) Maharashtra Pollution Control ) Board,Kalpataru Point, ) 2 and 3 Floor, Sion Matunga ) Scheme Road, No.8, Op. Cine ) Planet Cineme, Sion (East) ) Mumbai-400 022. ) 4.Chairman,Maharashtra Pollution) Control Board ) Kalpataru Point, ) 2 and 3 Floor, Sion Matunga ) Scheme Road, No.8, Op. Cine ) Planet Cineme, Sion (East) ) Mumbai-400 022. ) 5.State of Maharashtra ) Summons to be served on the ) learned Government Pleader ) appearing for STate of ) Maharashtra under Order XXVII ) Rule 4 of the Code of Civil ) Procedure, 1908 )..RESPONDENTS Mr. Anil V. Anturkar with Mr. S.B. Deshmukh, for the Petitioner Mr. R.V. Govilkar with Ms. Rekha Panchal, for -2- Respondent Nos. 1 to 3. CORAM: F.I. REBELLO & CORAM: F.I. REBELLO & CORAM: F.I. REBELLO & A.V. MOHTA, JJ. A.V. MOHTA, JJ. A.V. MOHTA, JJ. DATE : 4th May,2006 DATE : 4th May,2006 DATE : 4th May,2006 ORAL JUDGMENT: . The petitioner though presently under suspension is employed as Accounts Officer in the office of Respondent No.1. Respondent No.1 is a statutory Board established under the Water (Prevention and Control of Pollution) Act, 1974. The respondent No.2 is the Member Secretary, Respondent No.4 is the Chairman. By the present petition the petitioner has sought the following reliefs:- (a) to quash the order of suspension dated 15th December, 2005; (b) to quash the charge sheet dated 21st December, 2005; (c) to quash and set aside the appointment of respondent No.3. 2. At the outset we may point that it will not be possible at this stage to grant the relief in terms of prayer clause (b), as prima facie we are of the opinion that the charge sheet could have been -3- issued based on the purported misconduct and it is for the Enquiry Officer to decide whether the charges as established or proved. In so far as prayer clause (c) is concerned we may further point out that the respondent No.3 has been appointed on an ad hoc basis. The petitioner who is in Accounts Department, is not eligible for consideration to the said post and consequently we need not address ourselves to that controversy. The real issue, therefore, would be in the matter of quashing the order of suspension. 3. With the above, we may set out a few facts relevant for the purpose of deciding the controversy. Pursuant to the order of suspension being served on the petitioner, the petitioner represented to respondent NO.2 who had issued the order of suspension. For the reasons set out in the representation dated 27th December, 2005 the petitioner called on the respondent NO.2 to withdraw the order of suspension. It is also set out that being a Class I Officer, in order to suspend the petitioner approval of Competent Authority is mandatory viz. the Chairman of the Board. It was pointed out that no such sanction has been received from the Chairman. As the petitioner did not hear from respondent No.2 the petitioner preferred an Appeal dated 2nd January, 2006 to the Respondent -4- No.4. Along with the Appeal the petitioner submitted a detailed note as to why the order of suspension be revoked. Apart from various other points two contentions urged were that being a Class I Officer for suspension approval of Competent Authority was mandatory. It was further pointed out that such approval has not been obtained. It was further set out that considering the order of suspension and the charge sheet, no case was made out for keeping the petitioner under suspension. The charge itself was denied. By a further representation dated 4th January, 2006 the petitioner raised other grounds, including that the Member Secretary, respondent No.2 herein was prejudiced and she would not get justice in the matter. The petitioner pointed out specifically that she had asked for change of the Enquiry Officer as the practice was to appoint a retired I.A.S. Officer to conduct the Departmental Enquiry, but her request had been denied. It was also pointed out that though she was under suspension subsistence allowance was not being paid. 4. The petition came to be filed on 24th March, 2006. The statutory Appeal preferred to the respondent NO.4 had not been decided. Consequent thereto by an order of 18th April, 2006 we had noted the pendency of the Appeal and had directed the -5- respondent No.4 to dispose of the Appeal not later than 27th April, 2006. Our order is dated 18th April, 2006. On the next date on behalf of the respondent Nos.1,2 and 4, learned Counsel has produced the correspondence exchanged and the noting of the respondent No.4. It makes a clear reading and reads as under:- "Smt. Sawe had met me about 2 months back. I had told her that as an Appellate Authority I would be able to deal with her Appeal only after the enquiry instituted by the Board as at "A" on page 1/N is completed. Kindly ensure that the enquiry is completed fast. Inform the Court of this." This clearly amounts to failure on the part of the Respondent No.4 to comply with the order of this Court dated 18th April, 2006. 5. Initially an affidavit was filed by Shri Shivaji Ranba Banate, Respondent No.3. on behalf of Respondent Nos. 2 and 3. One of the points raised therein was that Writ Petition No.4050 of 2002 in the case of P.P. Nandusekhar Vs. Maharashtra Pollution Control Board, Mumbai & Another, decided on 23rd September, 2002, the very issue is raised -6- herein had been raised about the authority of respondent No.2 to pass the order of suspension and as such there was no merit in the contention urged on behalf of the petitioner that the order of suspension by respondent No.2 is without authority of law. We have perused the copy of the order placed before us by the learned Counsel for the respondents. We may note that the contention of the petitioner therein was set out in para.1. The contention on behalf of the Board as set out in affidavit in reply was set out in para.2. The only order passed by the Court was that this was not a fit case for interference under Article 226. The Court did not record any finding that the authority inferior to the appointing authority can pass an order of suspension provided the Officer passing the order of suspension reports the matter to the appointing authority. All that we can note in the order is that this Court on the facts of that case declined to interfere with the order of suspension. . In the affidavit in reply filed it was also set out that the Executive Officer had been authorised to sign the orders and documents on behalf of the Board. It is also pointed out that in the instant case the Member Secretary had already communicated the order of suspension to the Chairman and thereby complied with the M.C.S. Rules. -7- 6. A further affidavit was filed by Respondent No.2. In para.6 of the affidavit, it is set out that the petitioner was suspended on account of misconduct. The main crux of the matter appears to be that the petitioner had passed information relating to internal working of the board, to an outsider with a view to malign the Board and its Officers. Reference is then made to one Mr. Amogh Sawant, who had started seeking information under the Right to Information Act. Respondent relied upon the visitors book, to show that the said Sawant was meeting the petitioner. It was also set out that the petitioner was irregular in attending the office on number of occasions and had also taken casual leave on a number of occasions as also half day leave and leaving office at office hours on number of occasions without permission. The affidavit then sets out what steps the affiant has taken on being appointed as Member Secretary from 12th November, 2003. We are really not concerned with the same. The averments in para.9 however would be relevant and are being reproduced below:- 9). Therefore, in order to bring above radical changes, the Board has to spend on the above activities out of cess fund, which expenditure is incurred as per guide-lines -8- given by the Central Pollution Control Board on the above purposes and therefore, for the first time, the Board has appropriated the funds received out of cess from the Central Govt. as per guide-lines. While taking above reforms in hands, recalcitrant units including employees & officers creating obstruction in the working of the Board were required to be dealt with firm hand. Therefore, some of the disciplinary actions including present one are inevitable. I say and submit that since, the Departmental Inquiry is in process, the petitioner should face it as per procedure of the law and therefore, should not be given any relief, which otherwise will create any obstruction in the inquiry proceedings." 7. It may only be noted that according to the affiant he has joined as Member Secretary on 12th November, 2003 before Shri Sawant started seeking information. From the affidavit filed the only noting calling an explanation from the petitioner was letter of 16th December, 2004 in the matter of the petitioner signing on the Muster after the the Muster was closed to which the petitioner had given the explanation in 18th December, 2004. There is no reference to what happened to the said -9- representation. From the affidavit it will appear that suspension has been issued in view of the information sought by Shri Sawant under the Right to Information Act, as it was felt by the respondent No.2, that recalcitrant units including employees and officers creating obstruction in the working of the Board were required to be dealt with a firm hand. 8. At the outset though not raised in the petition by a specific pleading Counsel for the respondents urged that the respondent No.1 is not a State authority within the meaning of Article 12 of the Constitution and consequently this Court ought not to exercise its extra ordinary jurisdiction. Counsel has relied upon the order of this Court in the case of Sushilkumar Gajanan Sawant vs. State of Maharashtara & Ors., Writ Petition No.226 of 2003 wherein an order was passed on 19th April, 2004 for the following observations:- "In view of the fact that the petitioner is employed with a Board, which is an independent body, not the State, within the meaning of Article 12, the petition is not maintainable. It is accordingly disposed of." -10- . After having said so, the Division Bench proceeded to consider some aspects on merits and also dismissed the petition on that count. Relying on these observations learned Counsel contends that no writ can be issued against respondent No.1.. We may at once note some of the provisions of the Maharashtra Water (Prevention and Control) Rule 1983. The Act has been defined to mean the Water (Prevention and Control of Pollution) Act, 1974. Board has been defined to mean Maharashtra Pollution Control Board constituted under Section 4 of the Water (Prevention and Control of Pollution() Act, 1974. In other words it is a statutory authority created under the Act to discharge the functions under the Act. The powers of Respondent NO.4 are set out in Annexure 1 and the power of Respondent No.2 are set out in Annexure 2. In so far as the control of the staff Clause 4 of Annexure 2 reads as under:- "Member Secretary shall be the appointing authority for the employees of the Board whose maximum pay-scale does not exceed Rs.1,150/- under the provisions of the Recruitment Rules approved by the State Government." We may also advert to Notification of 17th -11- September, 1975 by the Government of Maharashtra, Urban Development and Public Health Department, addressed to the Member Secretary wherein it is set out as under:- "I am directed to convey approval of Government to apply Bombay Civil Services Rules (except provisions relating to Pension & Gratuity) and Bombay Civil Services (C.D. & A.) Rules to the staff of Maharashtra Prevention of Water Pollution Board." From the above it will be clear that the respondent No.1 is a statutory board set up under an Act of Parliament. Respondent Nos. 2 and 5 are holding statutory posts in terms of the Rules framed. Their powers are defined. The provisions of the M.C.S. Rules are made applicable and apart from that any Rules which have to be made by the respondent No.1 have to be approved by the State Government. In fact in exercise of the powers conferred under sub-section (3)(c) of Section 12 of the Water (Prevention and Control of Pollution) Act, 1974 and Rule 25 of the Water (Prevention and Control of Pollution) Rule 1975 as also provisions of Air (Prevention and Control of Pollution) Act, 1981 and all other powers, the Maharashtra Pollution Control Board has made rules known as the Maharashtra -12- Pollution Control Board Employees Recruitment Regulations, 1976. . We may now advert to some judgments of the Supreme Court as in our opinion, the law has been has been settled for a long time on what constitute a State or authority within the meaning of Article 12 of the Constitution of India. In M.P. State M.P. State M.P. State Agro Industries Development Corporation Ltd. & Anr. Agro Industries Development Corporation Ltd. & Anr. Agro Industries Development Corporation Ltd. & Anr. vs. S.C. Pandey, (2006) 2 SCC 716 vs. S.C. Pandey, (2006) 2 SCC 716 vs. S.C. Pandey, (2006) 2 SCC 716 where it appears that similar objection was raised. The issue was answered tersely as under:- "The appellant herein is a statutory corporation and, thus, "State" within the meaning of Article 12 of the Constitution." In State of U.P. vs. Neeraj Awasthi and Ors., (2006) 1 S.C.C.667 in a matter of Agricultural Produce Market Committee, the Apex Court was pleased to observe as under:- "33. The Board is "State" within the meaning of Article 12 of the Constitution. It was constituted in terms of the provisions of the said Act. As the powers and functions of the Board as also the State in terms of the provisions of the statute -13- having been delineated, they must act strictly in terms thereof. It is a statutory authority. Its powers, duties and functions are governed by the statute. It is responsible for constitution of the Market Committees for the purpose of overseeing that agriculturists while selling their agricultural produce receive the just price therefor. It not only regulates sale and purchase of the agricultural produce but also controls the market where such agricultural produces are bought and sold. The Board is entitled to levy market fee and recover the same from the buyers and sellers through Market Committees. Indisputably, the Market Committees and the Board have power to appoint officers and servants. Although the power of the Board in this respect is not circumscribed, that of the Market Committees is. The Market Committees can appoint only such number of secretaries and other officers as may be necessary for efficient discharge of its functions. Terms and conditions of such services are to be provided by it. Section 19 of the Act, however, imposes further restriction on the power of the Market Committee by limiting the annual expenditure made in this regard -14- not exceeding 10% of the total annual receipt of the Committee." The entire law as to what constituts State or Authority has been considered in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111. It is not necessary for us to refer to the test as set out therein. The Apex Court then observed is as under:- "The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be -- whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." -15- In the instant case the Board is constituted under the Act to discharge statutory duties. It is empowered to collect Cess the appointment of staff and performance of duties are in terms as specified in the Rules. There has to be concurrance of the State Government in the matter. In other words applying the tests required, the Board would fall within the expression "State" or other authority. In our opinion, therefore, it will be difficult to accept the contention of the Counsel for the respondents placing reliance on the judgments afore quoted. All we may state is that it appears that considering the merits of the matter and the facts of that case this Court thought it not proper to interfere and made some casual observations confining to the facts of that case. The various tests required to be considered were not considered as laid down by the Apex Court. In view of the law laid down by the Apex Court the observations made by this court in Sushilkumar Gajanan Sawant vs. State of Maharashtra & Ors., Writ Petition No.226 of 2003 were merely casual observation and do not lay down the correct law. 8. Having said so the question that really arises is, whether this Court ought to interfere in the exercise of its extra ordinary jurisdiction in -16- the matter of suspension. In the ordinary course interference by this Court in order of suspension will be if the exercise was malafide, colourable, and/or for extraneous consideration and/or the purported charge, prima facie did not constitute a misconduct at all and the like. The relevant provisions of suspension read as under:- "4. Suspension.--(1) The appointing authority or any authority to which the appointing authority is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order may place a Government servant under suspension." Rule 5(5)(c) reads as under:- "An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate." Rule 17(i) reads as under:- -17- 17. Orders against which appeals lies. Orders against which appeals lies. Orders against which appeals lies. Subject to the provisions of rule 16, a Government servant may prefer an appeal against all or any of the following orders, namely:- (i) An order of suspension made or deemed to have been made under rule 4 of these Rules." . In the instant case the petitioner is sought to be charged mainly on the basis that one Shri Amogh Gajanan Sawant had sought information under the Right to Information Act about the functioning of the Board. In the charge sheet Annexure 1, Point Number 2, English translation of which is supplied to us by Counsel for the Petitioner, it reads as under:- "From last 4-5 years Shri Amogh Gajanan Sawant has visited Mis Sujata Sawe, Accounts Officer many times in office time, at every visit sat for nearly 2-3 hours and taken her office time and disturbed office work constantly. Since this matter was informed by security guard frequently to Chief Accounts Officer, as per the instructions of security guard Shri Amogh Gajanan Sawant -18- made entry in visitors register, Shri Amogh Sawant has entered residential address and phone number differently in visitors register. By entering different residential address and mobile number in visitors register Shri Amogh Sawant has visited Miss Sujata Sawe, Accounts Officer, from this it is clear that Miss Sujata Sawe has given internal information about Boards work to Shri Amogh Sawant. That information is misused and Boards work is obstructed and Miss Sujata Sawe is responsible for this." It is thus clear that the case of the Respondents themselves is that Shri Sawant was meeting the petitioner for the last 4-5 years. Shri Sawant sought information under the Right to Information Act by representation of 28th October, 2005, 2nd November, 2005, 7th November, 2005 and 3rd December, 2005 which are before the petitioner’s suspension and thereafter on 6th January, 2006 and 10th February, 2006. Reasons given for the information by Shri Sawant may roughly be stated as under:- "The Applicant suspects that there are many irregularities in the process of recruitment and/or promotion of the Board which is causing waste of money and promoting -19- corruption in the Board. The Applicant suspects that there are many irregularities in the management of fund of the Board which is causing waste of money and promoting corruption in the Board. The Applicant further suspects that this profit making Board may be wounded up due to misuse of funds or may become insolvent causing loss of public money. The Applicant suspects that there are many irregularities in the appointment of officers and their promotions in the Board. Further the applicant is unable to trace out educational qualifications mentioned on website of the Board of these officers. The Applicant suspects that there are many irregularities in the management of fund of the Board which is causing waste of money and promoting corruption in the board." The information sought for is about the staff strength, of their pay scales, designations, whether the State Government’s approval has been sought and the like, as also the actions against employees which were pending as also CIG reports and budgets. The Right to Information Act has been enacted both -20- earlier by the State Government and now the by Central Government with a view to bring about transparency in administration so that citizens are informed of the functioning of Governmental and statutory bodies. The object is to enable the citizens to bring to public notice the acts of omission and failure of the Boards which can result in improving and removing lethargy in its functioning and taking acting wherever it is appropriate. The information sought from the documents given to us is really general information and has nothing to do with the Accounts Department specifically or generally. Even assuming that what the respondents are contending is correct that the information was available to it the petitioner, it only means that the petitioner though had the information yet did not give information to Shri Sawant. As a consequence whereupon he had to seek the information from the Board itself. 9. The question really is whether the charges as levied and the averments as now available disclose the necessity or the continuance of suspension. As we have noted earlier it is possible that the Disciplinary Authority may on material before it arrive at a conclusion that there is a prima facie case warranting suspension. The person under suspension has a right of preferring an -21- Appeal.