Bombay High Court
A.R. Kukalekar vs Goa Housing Board And Anr. on 16 December, 1992
Equivalent citations: 1993(2)BOMCR486
JUDGMENT Ashok Agarwal, J.
1. The petitioner is working as Cost-cum-Financial Controller with the respondent No. 1 which is a Housing Board Establishment under the Goa, Daman and Diu Housing Board Act, 1968 (hereinafter for the sake of brevity called "the Act"). The said post of Financial Controller is not one of the posts contemplated under the Act but one created later. Annexure-II to the Goa, Daman and Diu Housing Board Cadre, Recruitment of Staff, Functions, Powers and Sphere of duties of Officers and other Employees (Fourth Amendment) Regulations, 1983 (hereinafter, for the sake of brevity called "the Regulations of 1993), provides for the hierachy of the officers of the first respondent-Board. The Board is headed by the Chairman. The next in rank is the Secretary who has been impleaded in this petition as respondent No. 2. Next after the Secretary are the heads of three branches, the Administration Branch, Engineering Branch and the Accounts Branch. The Administration Branch is headed by the Assistant Secretary, the Engineering Branch by the Housing Engineer and the Accounts Branch by the Chief Accounts Officer. The petitioner, it appears from the duties entrusted, was placed higher in rank to the Chief Accounts Officer. Petitioner (originally) was an employee of the Government. On 23rd February, 1989 he was transferred to the first respondent on deputation as Chief Accounts Officers. He was thereafter promoted as Financial Controller. On 1st of February, 1990 he was absorbed with the respondent No. 1 on regular basis. He was relieved from the Government. While acting as the financial Controller an order dated the 5th of September, 1991 was passed by the second respondent suspending him from service. The petitioner on the 19th of September, 1991 filed the present petition impuning the order of suspension. He, however, failed to secure any interim orders in his favour. Pending the petition a charge-sheet was served upon him on the 17th of September, 1992. On 8th of October, 1992 the order of suspension was revoked. With the revocation of the order of suspension we had thought that the petition was worked out. That, however, was not to be. The petition, it appears is prosecuted more as a matter of ego. It appears to be a serious clash of personality between the petitioner and the second respondent. It is, in these circumstances, that the order of suspension dated 5th of September, 1991 is impugned in the present petition.
2. The impugned order of suspension, thus, puts the petitioner under suspension with immediate effect. His headquarters are transferred from Panaji to North Division, Porvorim. The ground of passing the order is that disciplinary proceedings are contemplated against him.
3. The challenge to the above order are more than one. The challenge is manifold and multifaceted.
4. Some of the challenges raised find a place in the petition. Some are raised as the arguments progressed. Some were even raised in rejoinder. Mr. Usgaonkar, the learned Counsel for the respondents, was more than fair in not objecting to the grounds raised which do not find a place in the petition.
5. It is first contended that the impugned order of suspension is passed on the ground that disciplinary proceedings against the petitioner are contemplated. What disciplinary proceedings are contemplated is not indicated. Reasons which have led to the passing of the order of suspension are not mentioned indicated. The order of suspension is passed in a most casual and cavalier manner. The order does not indicated an application of mind. The suspension on facts is wholly unjustified. The impugned order is, therefore, liable to be quashed.
6. It is next contended that the order of suspension is passed under the Regulations of 1983. The said Regulations do not authorise the passing of an order of suspension when a disciplinary enquiry is merely under contemplation. The order of suspension is, therefore, without authority of law and, is therefore, liable to be quashed.
7. It is next contended that the Regulations of 1983 are framed under sections 13, 15, 16 and 129 of the Act. The aforesaid sections do not provide for making regulations in respect of suspension pending enquiry. Section 14 makes a reference to orders of suspension. That suspension is by way of punishment and not suspension pending disciplinary proceedings. Section 14 makes a reference to framing of regulations. However, the Regulations of 1983 are not framed under section 14. In any event, the Regulations of 1983 do not provide for passing of an order of suspension pending disciplinary proceeding. The impugned order of suspension is, therefore, unjustified as having been passed without the authority of law, the same is liable to be quashed.
8. It is next contended that Regulation 7 of the Regulations of 1983 deal with the service conditions of the employees of the Board and it is laid down that they will be the same as are applicable to Government employees of the union Territory as per the relevant Rules/Regulations/Instructions in force from time to time. By virtue of the said Regulations even future amendments that may be made to the Rules Regulations or Instructions that apply to Central Government employees are automatically made applicable to the employees of the Board. The Rule making power which is conferred on the Board by virtue of section 129 of Act has been completely abdicated in favour of the Central Government. The Regulations of 1983 are, therefore, void as they are still born. The impugned order passed on the basis of void regulations is, therefore, liable to be quashed.
9. It is next contended that the impugned order is purported to be passed under Rule 10 of the Central Civil Service (Classification, Control and Appeal), Rules 1965 (hereinafter, for the sake of brevity called, the C.C.S. Rules). Rule 10(1) provides as under :
"Rule 10(1) : The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension."
Rule 10(1)(a) authorises the passing of an order of suspension where disciplinary proceedings are contemplated or are pending. The power of passing of an order of suspension where disciplinary proceedings are merely under contemplation are wide and unguided. The power is liable to be abused. The power when exercised is liable to infring the fundamental rights under Articles 14 and 21 of the Constitution of India. The provision which empowers the passing of the order of suspension without laying down of guidelines is, in the circumstances, bad in law and liable to be struck-down.
10. Rule 10 of the C.C.S. Rules permits the passing of an order of suspension by the appointing authority. The appointing authority of the petitioner is the Board, the first respondent herein. It is the Board who, under the provision of section 12(2) of the Act, is the appointing authority of the petitioner. The Board is in fact the appointing authority of the petitioner. The impugned order, however, is passed not by the Board but by the Secretary-cum-Managing Director, the second respondent herein, who is not authorised under Rule 10 to pass an order of suspension. The order of suspension is, therefore, without the authority of law and is, therefore, liable to be struck-down.
11. The last, but not the least, the order of suspension is impugned on the ground of mala fides. According to the petitioner, the second respondent had submitted certain medical bills. The petitioner, in his capacity as the Financial Controller, had occasion to deal with the bills. The petitioner when found that the bills were not permissible, had raised objections. This enraged the second respondent. He, therefore, sought to withdraw the several powers and functions of the Financial Controller and vested them in the Chief Accounts Officer. Whereas, the petitioner was till then treated as a superior officer to the Chief Accounts Officer, the second respondent sought to treat the Chief Accounts Officer superior to the petitioner. The second respondent next withdraw the car facilities which were till then offered to the petitioner. Lastly he passed the impugned order of suspension. The order of suspension is, therefore, tainted with mala fides and is, therefore, liable to be struck-down.
12. In addition, the petition has raised certain incidental contentions and we will have occasion to deal with them also in the course of this judgment.
13. In support of the contention that the order of suspension, which is passed merely on the ground that disciplinary proceedings are contemplated and are, therefore, not justified, reliance is placed on "1991(2) Bom.C.R. 353" in the case of The Municipal Corporation of Greater Bombay and another v. Laxman Saidoo Timmanepyati and others, wherein it is observed :
"Suspension is a preventive measure or a check aimed at minimising further loss or damage to an employer at the hands of an employee who has, prima facie, been involved in serious misconduct and can also be justified in cases where the conduct of the disciplinary proceedings can be demonstrably affected. Unless these factors are present, mechanical resort to this power is contraindicated and is liable to be struck down. Apart from the intense hardship caused to the employee, it leads to economic waste, whereby the employer is paying a part or the greater proportion of the salary without corresponding work being performed. Suspension is not to be misunderstood as being a punitive measure, and in order to avoid the obnoxious practice of unjustified suspension for indefinite periods, it would be healthy practice to insist on the suspending authority passing a reasoned order in which the grounds for suspension are spelt out. In the absence of such an order, the courts would find it difficult to assume that there was due application of mind and that the authority has not acted capriciously and/or arbitrarily. It will also guard against the much prevalent practice of squandering public funds in cases where employees are improperly continued on suspension for years and then paid full wages after decision of their cases."
14. Further reliance is placed in the case of L. Murthy v. Commissioner for Transport, 1986(3) S.L.R. p. 326, wherein the Karnataka High Court observed:
"Suspension pending enquiry or contemplated enquiry is not made as a matter of Course, but appointing authority after being satisfied about serious lapses or a gravity of offence alleged to have been committed may keep an officer under suspension. ......... The settled law on this aspect is stated thus in State of U.P. V. Jai Singh Dixit :
"Contemplation", the noun of the verb 'Contemplate' is always a mental process. The process of mind or mental process of the mental process is occasioned by thinking or contemplating on something which can be physically observed or perceived, which is imagined and which cannot be physically observed or perceived by senses. It follows that when we say that a formal disciplinary inquiry is in view the meaning which is sought to be given to the words "an enquiry is contemplated" and the view must be material which can be physically observed and perceived to form the basis of the formal inquiry. Since subjective consideration is eliminated, the mere hope or a mere the orctical formation of opinion that a formal inquiry will be held without any material basis for it being available is ruled out."
The exercise of power by appointing authority circumscribed by various factors which lead to satisfy as to whether a delinquent official should be kept under suspension or not; thereby suspension order can only be based on objective consideration and not on subjective satisfaction."
15. In para 21 of the judgment, this is that is stated in the above case :
"Orders of suspension under rule 10 of C.C.A. Rules are rarely interfered with. If suspension order is made on application of mind as required by law, in good faith and not arbitrarily, certainly, it is not a matter for interference. But, Court will never decline to interfere if it is of the view that exercise of statutory power is mala fide or condition precedent for exercise of such power, does not exist and/or is based on extraneous consideration."
16. Further reliance is placed on the case of Dr. Tukaram Yeshwant Patil v. Bhagwantrao Gaikwad and others the Division Bench of this Court observed:
"Suspension is not to be resorted to as a matter of rule. As has been often emphasised even by the Government, it has to be taken recourse to as a last resort and only if the inquiry cannot be fairly and satisfactorily completed unless the delinquent officer is away from his post. Even then, an alternative arrangement by way of his transfer to some other post or place has also to be duly considered. Otherwise it is a waste of public money and on avoidable torment to the employee concerned."
17. Further reliance is placed on the case of P.R. Nayak v. Union of India, , wherein this is what the Supreme Court observed :
"An order of suspension of the delinquent member of the service made before the actual initiation of commencement of disciplinary proceedings, is bad being violative of Rule 3(1). The operation of Rule 3(1) is restricted only to those cases in which the Government concerned is possessed of sufficient material whether after preliminary investigation or otherwise and the disciplinary proceedings have in fact commenced and not merely when they are contemplated."
The Supreme Court in the above case was dealing with Rule 3 of the All India Service (Discipline and Appeal) Rules, 1969. Rule 3, as is relevant for the present discussion reads as under :
"3. Suspension during disciplinary proceedings :---(1) If, having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started, that Government may-- (a) ... (b) .... place him under suspension, pending the conclusion of the inquiry and the passing of the final order in the case."
18. In para 15 of the judgment, the Supreme Court has observed as under :
"......Sub Rule (1) of this rule on its plain reading empowers the Government, which Initiates any disciplinary proceedings, on being satisfied, having regard to the nature of the charges and the circumstances, of the necessity or desirability of placing under suspension, the member of the Service against whom such proceedings are started, to pass an order placing him under suspension or if he is serving under another Government to request that Government to suspend him. If does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. The language used in Sub-rules (4) to (7) also suggests that these rules do not authorise order of suspension of the delinquent member of the Service merely because disciplinary proceedings against him are contemplated. Suspension under those sub-rules may be ordered only either after conviction (deeming provision under sub-rule 4) or when criminal proceedings are actually in progress (sub-rule 5 or when after the penalty imposed on him having been set aside, the disciplinary authority decides to hold further enquiry (deeming provision under sub-rule 6). Clause (b) of sub-rule (7) similarly provides for continuation of order of suspension, if any other disciplinary proceeding is commenced against the delinquent member of the service, during the continuance of the earlier suspension--actual or deemed. The legislative scheme underlying Rule 3 is thus clearly indicative of the intention of the rule making authority to restrict its operation only to those cases in which the Government concerned is possessed of sufficient material whether after preliminary investigation or otherwise and the disciplinary proceedings have in fact commenced and not merely when they are contemplated. An order of suspension before the actual initiation or commencement of disciplinary proceedings appears to us, therefore, to be clearly outside the ambit of Rule 3 and we find no cogent ground for straining the plain language of Rule 3(1) so as to extend it to cases in which disciplinary proceedings are merely contemplated and not actually initiated or commenced."
It would appear that the Supreme Court in the above case was dealing with a rule which authorised the passing of an order of suspension during disciplinary proceedings. The rule authorised the Government to pass an order at the stage of initiation of disciplinary proceedings. The Court was not concerned with a rule like the one contained in Rule 10(1) of the C.C.S. Rules which authorises the passing of an order of suspension where disciplinary proceedings are contemplated against a delinquent.
19. In the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, , the Supreme Court observed:
"In the year 1990, it is not necessary for me to discuss in detail the authorities which have widened the horizons of Article 14 of the Constitution. Some of these precedents are directly on the point inasmuch as the validity of similar service rules was considered there. It is enough if I summarise the position of law as it obtains today.
There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high placed they may be. It is all the mere improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individuals whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.
The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired.
The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbs of undefined premises and uncertain applications. That will be a mockery of them.
Both the society and the individual employees, therefore, have an anxious interest in service conditions being well-defined and explicit to the extent possible. The arbitrary rules, such as the one under discussion, which are also sometimes described as Henry VIII Rules, can have no place in any service conditions.
20. In the case of O.P. Gupta v. Union of India and others, the Supreme Court observed :
"..... there is no presumption that the Government always acts in a manner which is just and fair. .......... The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was not reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service inspite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India, , is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance-- generally called subsistence allowance--which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undesirable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English dictionary Vol. II at p. 2171 is "remain alive as on food; to continue to exist". "Subsistence" means-means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the Government servant. In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Reghavendranath Nadkarni, , the Court held that the expression 'life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fairplay in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the Executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration.
It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. Both the Privy Council as well as this Court have in a series of cases required strict adherence to the rules of natural justice where a public authority or body has to deal with rights. There has ever since the judgment of Lord Reid in Ridge v. Baldwin, (1964) A.C. 40 been considerable fluctuation of judicial opinion in England as to the degree of strictness with which the rules of natural justice should be extended, and there is growing awareness of the problems created by the extended application of principles of natural justice, or the duty to act fairly, which tends to sacrifice the administrative efficiency and despatch, or frustrates the object of the law in question. Since this Court has held that Lord Reid's judgment in Ridge v. Baldwin, 1964 A.C. 40, should be of assistance in deciding questions relating to natural justice, there is always 'the duty to act judicially' whenever the rules of natural justice are applicable. There is therefore the insistence upon the requirement of 'fair hearing'. In the light of these settled principles, we have no doubt whatever that the Government acted in flagrant breach of the rules of natural justice or fair play in passing the impugned order."
21. Placing reliance on the above decisions it is vehemently contended by Mr. Nadkarni, the learned Counsel appearing on behalf of the petitioner, that the power of passing an order of suspension even if it exists has been unreasonably exercised. The order does not give any reasons which led the second respondent to pass the order. The nature of the inquiry contemplated against the petitioner is not spelt out. The passing of the order merely on the ground that a disciplinary proceeding is contemplated against the petitioner is a gross abuse of the power. The power having been exercised unreasonably and capriciously is liable to be struck-down.
22. Mr. Nadkarni further contended that despite the order being silent on several aspects the respondents have failed to give a reasonable explanation for the passing of the impugned order, in the returns filed in the petition. In the affidavit filed at the stage of opposing the admission of the petition this is what he stated in para 33-C "The respondent denies that the order was passed in casual manner, it has been passed with proper application of mind . If the petitioner was not suspended it would have prejudiced the investigation."
23. Similarly, in the affidavit filed in reply to the petition all that is stated in para 33 is "the respondent denies that the order was passed in casual manner. It has been passed with proper application of mind". According to Mr. Nakdarni the respondents have failed to give sufficient details in regard to the ground which have led to the passing of the order of suspension. According to Mr. Nadkarni, the ground that the investigation would have been prejudiced is not a sufficient ground. Further more, according to Mr. Nadkarni, no amount of reasons given at a later stage of the passing of the impugned order can make good an order which is bad at the time of the passing of it". The order should be supported by reasons to be found in the order itself and not in reasons given in an affidavit later filed in support of the order.
24. In support of the contention, reliance is placed on the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, . The Supreme Court in the case, observed :
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhanji, :
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Order are not like old wine becoming better as they grow older."
25. We have, examined the impugned order of suspension in the light of the contention advanced by Mr. Nadkarni. We have examined the facts of the case in the light of the observations contained in the decisions which are referred hereinabove.
26. Mr. Usgaonkar, the learned Counsel appearing on behalf of the respondents has made available the relevant record of the case. He has contended, and it is borne out by the record, that certain serious allegations were made against the petitioner. In view of the allegations a preliminary enquiry was conducted. Preliminary enquiry revealed that (a) petitioner had shown in the matter of investment of funds of the Board inclination towards certain banks, (b) while performing his duties he was canvassing for the job of getting L.I.C. Policies, (c) while performing duties he was taking drinks and used to be in a highly drunken state.
27. In view of the above allegations which are based on material which are to be found in the record which is made available to us, it appears that the respondents were persuaded to pass the impugned order of suspension. The allegations are against a senior officer who is none else but the Financial Controller of the first respondent. The allegation against such a high Official in the matter of making investment of large funds at his disposal in certain favoured banks is undoubtedly of a serious nature. Similarly, canvassing for L.I.C. Publicise by such a high dignitary with officers subordinate to him is also hardly becoming of the status conferred upon the petitioner. Similarly, consuming drinks and being found in a highly drunken state during duty hours, is a serious allegation and is hardly in keeping with the high standards expected of an officer of the status of Financial Controller. Indeed, the respondents vide their memorandum dated 25th of February, 1992 (Exhibit A1 to the petition) had communicated the aforesaid reasons for the continued suspension of the petitioner. Having regard to the allegations and the material on record, we are inclined to accept the contention advanced by Mr. Usgaonkar that the order of suspension was necessary as in its absence the petitioner, who is holding a very senior post in the Board, would be in a position to yield his influence over witnesses who ordinarily will be his subordinates in the Board and thereby thwart the investigation and the enquiry. Since an enquiry is contemplated against the petitioner and the department was in the process of collecting the necessary evidence, it is but natural that the respondents have refrained from giving details in their return filed to the petition. It must be stated in fairness by the respondent that after further enquiry was conducted, it was found that the first two of the three charges were not borne out. The only charge which is now sought to be substantiated against the petitioner is the third charge being the charge of consuming liquor and being found in a highly drunken state while on duty. In the circumstances, a charge-sheet has been submitted on the 17th of September, 1992 containing the third charge only. After the chargesheet was submitted the matter was reconsidered and it was felt that it was not just and proper to continue the order of suspension. On 8th of October, 1992 the order of suspension came to be revoked. In the circumstances we are inclined to hold that the impugned order of suspension is not vitiated on the ground of non-application of mind. We are not inclined to subscribe to the contention advanced by Mr. Nadkarni that the order had been passed in a most casual and cavalier manner and without an application of mind. The record suggests otherwise. It is true that no reasons are indicated in the order itself. It is also true that the nature of the enquiry which is contemplated against the petitioner has also not been reflected in the order. We are, however, inclined to hold that no reasons are indicated and the nature of enquiry are not indicated because the preliminary enquiry was in progress. The petitioner who is occupying a high position and an influential position could not have been made aware of the details, this would have enabled him to thwart the enquiry. The order, therefore, does not suffer from the voice of non-application of mind; that there was a proper application of mind is reflected in the record which is made available to us. If the same is not made available to the petitioner, it is for good reasons. It is withheld because the petitioner should not be able to exert his influence and thwart the enquiry. In the circumstances, the first contention raised by Mr. Nadkarni is liable to be rejected.
28. It would be convenient to take up for consideration the second and third contention of Mr. Nadkarni, together as the points involved overlap each other. The impugned order of suspension is passed under the Regulations of 1983. The Regulations of 1983 do not authorise suspension when enquiry is merely under contemplation. The Regulations of 1983 are framed in exercise of the powers conferred by sections 13, 15, 16 and 129 of the Act. Sections 13, 15, 16 do not provide for framing regulations in the matter of suspension. The only section which contemplates the framing of Regulations on the subject is section 14 of the Act. The Regulations of 1983, however, are not framed under section 14 of the Act. Section 14 of the Act prescribes the making of regulations inter alia for suspending employees. That suspension is a suspension by way of punishment and not by way of an interim measure pending disciplinary proceedings. The regulations do not empower the respondents to pass an order of suspension only when a disciplinary proceedings is in contemplation. The impugned order of suspension while a disciplinary proceeding is under contemplation is without the authority of law.
29. The above contentions, no doubt prima facie appear attractive. However, on deeper scrutiny it will be seen that the same are devoid of merit. Section 13 of the Act provides that the remuneration and other conditions of service of the Secretary, Housing Engineer, Chief Accounts Officer and other officers and the employees of the Board shall be such as may be laid down by the Board. Thus, it would be seen that section 13 provides for laying down regulations in respect of remuneration and other conditions of service of the employees of the Board.
Section 14 deal with promotion and punishments of officers and other employees of the Board. Sub-section (1) of section 14 in so far as is relevant provides :
"14(1) Subject to any regulations made under section 15, the power of ...sensuring, imposing fines, withholding promotions from, reducing, suspending, removing or dismissing such officers and other employees for any breach of departmental rules or discipline or for carelessness, unfitness, neglect of duty or misconduct, and of discharging such officers and other employees from the service of the Board for any other sufficient reasons, shall be exercised by such authority and in such manner as may be laid down by regulations".
30. Section 15 deals with service regulations. So far as is relevant, section 15 provides as under:
"15. Service Regulations.---Subject to the provisions of this Act, the Board shall, with the previous approval of the Government, make regulations---(a) fixing ... conditions of service of the ... officers and employees of the Board."
31. Section 16 deals with control and delegation by Chairman. Section 16 provides as under.
"16. Control and delegation by Chairman.
(1) The Chairman shall exercise supervision and control over the acts and proceedings of all officers and other employees of the Board, and, subject to the foregoing sections and subject also to such control, appeal and revision as may be prescribed, shall decide all questions relating to conditions of service of the said officers and employees.
(2) The Chairman may, by general or special order in writing, delegate to any officer of the Board, any of his powers, duties or functions under this Act or any Rules or Regulations made thereunder, except those under sections 17, 74, 107 and 110.
(3) The exercise or discharge by any officer of any powers, duties or functions delegated to him under sub-section (2) shall be subject to such restrictions and limitations as may be imposed by the Chairman, and shall also be subject to his control and revision.
(4) Against any order of the nature referred to in sub-section (2) of section 14, passed by an officer to whom the powers of the Chairman in that behalf have been delegated, an appeal shall lie to the Chairman and if the Chairman has himself revised the orders of such officer, an appeal shall lie to the Board against the order of the Chairman."
It will be thus seen that all the aforesaid sections 13, 14, 15 and 16 provide for framing of regulations. The charging section in section 129. Sub-section (1) of section 129 confers power on the Board to frame regulations not inconsistent with the Act and Rules made thereunder for the purpose of giving effect to the provisions of the Act. The power which is conferred by sub-section (1) of section 129 is wide enough to frame regulations to give effect to all or any of the provisions of the Act. Sub-section (2) of section 129 proceeds to detail some of the provisions of the Act for which regulations can be framed. That sub-section, however, starts with non-obstinate clause 'In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following purposes, namely:
(a) conditions of service of officers and other employees of the Board under section 13;
(b) service regulations under section 15;
............................... (f) any other matter which is required to be, or may be, laid down by regulations. Sub-section (2)(a) and (b) details some of the subjects for which regulations can be framed under sub-section 2(a). Sub-section 2(a) confers the power to frame regulations providing for service conditions of officers and other employees of the Board under section 13. Sub-section 2(b) authorises the framing of service regulations under section 15. Then follows sub-section (f) which pertains to the power of making rules in respect of any matter which is required to be, or may be laid down by regulations. Sub-section (f) therefore is a residuary clause which further empowers the Board to frame regulations which may not have been specifically provided under sub-section (a) to (e) of sub-section (2) of section 129. Therefore, it would be seen that apart from the non-obstinate clause contained in sub-section (2) of section 129 'In particular and without prejudice to the generality of the foregoing power' sub-section (f) empowers the Board to frame regulations in respect of all other matters not specifically mentioned. it would, thus, appear that the subjects enumerated under sub-section (2)(a) and (b) of section 129 of the Act are merely illustrative and not exhaustive and that is amply made clear in the opening words of sub-section (2). It would, therefore, be futile to contend that the Act does not give power to the Board to frame regulations in respect of the matter contained in section 14 of the Act. Such a conclusion cannot be drawn merely because of the absence of the mention of the said section in sub-section (2) of section 129 or the absence of a reference to the said section in the preamble to the Regulations of 1983. As long as the power exists the mere omission to mention the section will not render the Board powerless to frame regulations in respect of the powers of imposing punishment for misconduct and for laying down the procedure for conducting disciplinary proceedings as also for passing orders of suspension pending disciplinary proceedings.
32. Once it is found that the provisions of the Act empower the Board to make regulations in respect of the above matters, a reference to the regulations which are framed by the Board may be made. By regulation 7 the Board has provided that the service conditions of the employees of the Board shall be the same as are applicable to the Government employees of the Union Territory as per the relevant rules, regulations and instructions in force from time to time. In other words, the conditions of service of the employees of the Central Government are made applicable to the employees of the Board. The employees of the Central Government are governed by the CCS Rules. Hence, by virtue of Regulation 7, the service conditions of the employees of the Board are governed by the CCS Rules. Rule 10 of the CCS Rules deals with the power of suspension pending a disciplinary proceeding. Rules 10(1) which deals the power of suspension pending enquiry reads as under :
"10.(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension :
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial;
33. It would be, thus, soon that in so far as the employees of the Board are concerned their service conditions, by virtue of the regulations, are governed by the CCS Rules and by Rule 10 of the CCS Rules the appointing authority or the disciplinary authority has been empowered to place an employee against whom a disciplinary proceeding is either contemplated or is pending, under suspension.
34. On the question, whether the Act empowers the Board to frame regulations in respect of matters such as placing an employee under suspension pending enquiry and whether the absence of the specific mention of section 14 in section 129 of the Act and in the preamble to the Regulations of 1983 can retract from the power of suspension pending enquiry a reference can usefully be made to the case of M/s. N.S. Ghouse Miah and Abdullaha Sheriff v. Regional Transport Authority, Cuddapah, , wherein the Judges of the Andhra Pradesh High Court, while dealing with a question of virus regarding Rule 153-D of the Motor Vehicles Act, observed :
"It is true that the rule in question is not made in pursuance of any provision mentioned in sub-section (2) of section 68 of the Act. Sub-section (2) does not exhaust the powers of the State Government to frame rules. It is not limited only to those matters enumerated in sub-section (2). The provisions of sub-section (2) do not restrict the powers mentioned in sub-section (1) as is clear from its wording. In Emperor v. Sibnath Banerjee, 72 Ind App 241 : A.I.R. 1945 P.C. 156, a similar argument was considered. The question before their Lordships of the Privy Council was whether Rule 26 made under the Defence of India Act was ultra vires of section 2(2)(x). The contention was that the Federal Court failed to give weight to the opening words of section 2(2) which were 'without prejudice to the generality of the power conferred by sub-section (2).' The words of sub-section (1) were 'The Central Government may, by notification in the Official Gazette, make such rules as appear it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order, or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community."
Their Lordships of the Privy Council expressed their inability to agree with the Federal Court on the statement of the relative position of sub-section (1) and (2) of section 2 of the Defence of India Act. In the opinion of their Lordships the function of sub-section (2) was merely an illustrative one. The rule making power was conferred by sub-section (1) and the rules - rules which were referred in the opening sentence of sub-section (2) -- were the rules which were authorised by and made under sub-section (1). The provisions of sub-section (2) were not restrictive of sub-section (1) as indeed was expressly stated by the words "without prejudice to the generality of the powers conferred by sub-section (1)." It was therefore held that "there can be no doubt -- as the learned Judge himself appears to have thought -- that the general language of sub-section (1) amply justifies the terms of Rule 26, and avoids any of the criticisms which the learned Judge expressed in relation to sub-section (2)." Their Lordships therefore expressed the opinion that 'Talpade's case. Keshav Talpade v. Emperor, 1943 F.C.R. 49 : 1943 F.C. 1, was wrongly decided by the Federal Court, and that Rule 26 as made in conformity with the powers conferred by subsection (1) of section 2 of the Defence of India Act.' The case was followed by the Supreme Court in Santosh Kumar v. The State, . It was observed by Patanji Sastri, J., that :it is manifest that subsection 3 confers no further or other powers on the Central Government than what are conferred under subsection (1), for if is 'an order made thereunder' that may provide for one or the other of the matters specifically enumerated in subsection (2), which are only illustrative, as such enumeration is without prejudice to the generality of the powers conferred by subsection (1)."
To the same effect are the cases decided by our High Court and reported in State of Andhra Pradesh v. Jayalakshmi Rice Mill Contractors Co., and in an unreported case in G. Sitaramaiath v. Collector of Central Excise, Hyderabad, W.P. No. 20 of 1960 dated 16-7-1961 (A.P.). It is thus clear that subsection (2) is not exhaustive but merely illustrative and it derives all the powers mentioned therein from subsection (1), which is comprehensive and very wide in its scope. The argument therefore that because the rule under consideration does not fall within any one of the items enumerated in subsection (2) of section 68, the rule must be deemed to have been framed without having any power; cannot be accepted as correct.
The only point therefore which we have to consider is whether the State Government was competent to make the impugned rule under subsection (1) of section 68 of the Act. The words used in subsection (1) are : 'The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter'. Now it cannot be disputed that section 68 as well as section 47 are part of Chapter IV of the Act. The conclusion therefore is inescapable that the State Government is authorised to make rules for the purpose of carrying into effect the provisions of section 47. The argument therefore that the State Government was not competent to make the impugned rules must be rejected.
35. A reference to a case of M/s. Velji Lakshmi & Co. etc. v. M/s. Benett Coleman & Co. etc., , can be usefully made. While dealing with a notice of demolition issued by the Municipal Commissioner, the Supreme Court observed :
"... The fact that reference to section 489 of the Municipal Act, 1888 was erroneously or incorrectly made in the notice is immaterial as it is well settled that if the exercise of a power can be traced to a legitimate source, the fact that it was purported to have been exercised under a different power does not vitiate the exercise of the power in question."
36. In the case of Uttam Bala Revankar v. Asstt. Collector of Customs and Central Excise, Goa and another, , the Supreme Court while dealing with the Goa, Daman and Diu (Laws) Regulation (12 of 1962) and an order passed by the Lt. Governor applying the existing law to a proceedings for offences committed prior to introduction of Criminal P.C. in territory of Goa, Daman and Diu, observed :
"Order applying the existing law to proceedings for offences committed prior to introduction of Criminal P.C. in territory of Goa, Daman and Diu -- Though the section enables the Central Government to remove difficulties the Lt. Governor as administrator of the territory could exercise the power of the Government under the section in view of the provisions of General Clauses Act (1897). Fact that the Lt. Governor purported to pass the order under wrong provision of law would not render it invalid since the power to pass the order subsisted in the Governor under section 8 of the Regulation."
From the judgment it is clear that the wrong mention or non-mention of the rule making power does not vitiate a regulation provided power is there to make such regulation under any other source.
37. In the case of Afzal Ullah v. State of Uttar Pradesh and another, , the Supreme Court was dealing with the power to make byelaws under the U.P. Municipalities Act for establishment, regulation and inspection of markets established on private land and the validity of the Tanda Municipal Bye-Laws. The Court observed :
"Even if the said clauses did not justify the impugned bye-law, there can be little doubt that the said bye-laws would be justified by the general power conferred on the Boards by section 298(1). It is now well settled that the specific provisions such as are contained in the several clauses of section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of powers prescribed by section 298(1), vide Emperor v. Sibnath Benerji, A.I.R. 1945 P.C. 156. ....
It is true that the preamble to the bye-laws refers to Clauses A(a), (b) and (c) and J(d) of section 298 and these clauses undoubtedly are inapplicable; but once it is shown that the impugned bye-laws are within the competence of respondent No. 2, the fact that the preamble to the bye-laws mentions clauses which are not relevant, would not affect the validity of the bye-laws. The validity of the bye-laws must be tested by reference to the question as to whether the Board had the powers to make those bye-laws. If the power is otherwise established, the fact that the source of the power has been incorrectly or inaccurately indicated in the preamble to the bye-laws, would not make the bye-laws invalid vide Balakotaiah v. Union of India, ."
38. The above decision make it clear that the mention or non-mention of section 14 in the rule making power contained in section 129 of the Act is of no consequence. The Act lays down a provision which confers the power for making regulations. The Act empowers the Board to frame Regulations for the purpose of giving effect to the provisions of the Act. It empowers the framing of regulations in respect of any matter which is required to be or may be laid down by the regulations. The regulations can provide for conditions of service of the officers and other employees of the Board. The regulations can provide for imposing punishments for misconduct. Suspension is one of the punishments contemplated under the Act. The Act empowers the Board to lay down the authority who is to be empowered with the power to impose punishments. The Board is authorised by laying down regulations the manner in which punishments are to be imposed. It follows that the manner and the procedure of imposing punishments would include the power of suspension pending enquiry. By virtue of Regulation 7, the CCS Rules are made applicable to the employees of the Board and by Rule 10(1) of the CCS Rules the Board is authorised to place its employee under suspension where a disciplinary proceeding against him is contemplated or is pending. In view of this position, the contention of Mr. Nadkarni, that the Act and Regulation of 1983 do not authorise the passing of an order of suspension pending enquiry and the Regulation of 1983 which are framed under sections 13, 15, 16 and 129 of the Act do not and cannot empower the making of a regulation in respect of suspension pending enquiry deserves to be rejected.
39. There is one more ground on which the above contention is seen to be devoid of on merit and this arises out of one of the auxiliary contentions advanced by Mr. Nadkarni. According to Mr. Nadkarni, Regulations of 1983 merely amend the earlier Regulations being the Goa, Daman and Diu Housing Board Cadre, Recruitment of Staff, functions, powers, and sphere of duties of officers and other Employees Regulation, 1974. According to him, the Regulations of 1974 have not been repealed by the Regulation of 1983. It merely amends the 1974 Regulations. The 1974 Regulation, points out Mr. Nadkarni, have been framed in exercise of the powers conferred under sections 12, 13, 14, 15, 16 and 129 of the Act. Whereas the 1974 Regulations have been framed under section 14, the Regulations of 1983 have not been framed under the said section 14 of the Act. According to him, the omission of section 14 in the Regulations of 1983 is not accidental. The omission is with a purpose. The omission makes it clear that the matters contained in section 14 are not intended to be covered by the Regulations of 1983. Accepting the arguments of Mr. Nadkarni, let us see where the argument leads him. The 1974 Regulations are framed in exercise of the powers conferred by section 14 of the Act. Regulation 12 of 1974 Regulations is in pari materia with Regulation 7 of the Regulations of 1983. If it is held on the basis of the submission advanced by Mr. Nadkarni that the Regulations of 1983 do not specifically empower the Board to make regulations in respect of any matter contained in section 14, the said power can be traced to the 1974 Regulations which specifically makes a reference to section 14 of the Act. If the Regulations of 1983 are by way of amendment of 1974 Regulations, anything contained in 1974 Regulations, not dealt with by way of amendment of 1974 Regulations, anything contained in 1974 Regulations, not dealt with by the Regulations 1983 will remain in tact. Hence, the 1974 Regulations in so far as they relate to matters contained in section 14 will remain on the statute. Regulation 12 of 1974 Regulations provides that the service conditions of the employees of the Board shall be the same as are applicable to the Government employees of the Union Territory as per relevant Rules, Regulations and Instructions in force from time to time. The Regulations will include the matters contained in section 14. They include the power to lay down the procedure for imposing penalties, which procedure include the power of passing an order of suspension pending enquiry. Consequently, the power contained in Rule 10(1) of the CCS Rules empowering the passing of an order of suspension where a disciplinary proceeding against a delinquent is either contemplated or is pending, will be valid. The contention of Mr. Nadkarni is, therefore, liable to be rejected on this ground also.
40. This takes us to the consideration of the next contention of Mr. Nadkarni. He points out that Regulations 7 of the Regulations of 1983 makes the Rules, Regulations and Instructions as applicable to the Government employees of the Union Territory from time to time, applicable to the employees of the Board. According to Mr. Nadkarni it is always open to a rule making authority to take resort to other rules prevailing or to even to lift them bodily and apply them as applicable at any given point of time. However, when the rule making authority makes prevailing rules of other agencies as applicable to them from time to time, it incorporates all future amendments that would be made in the existing rules so adopted, without applying its mind whether the amendments to be made would be suitable or otherwise to the establishment of the rule making authority. Regulation 7, therefore, abdicates its rule making power to the Central Government. The Regulations of 1983 are, therefore, void and still born.
41. Reliance is placed on the case of B. Shama Rao v. Union Territory of Pondicharry, . The Supreme Court observed :
"In extending the Madras Act in the manner and to the extent it did under section 2(1) of the Pondicherry Act the Pondicherry Legislature abdicated its legislative power in favour of the Madras Legislature and refused to perform its legislative function entrusted under the Act constituting it. It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statue enacted by another legislature for another jurisdiction, adopts such an Act and enact to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it not only adopts such an Act, but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for it to predicate what the amended Act would be. In point of fact the Madras Act was amended and by reason of section 2(1) read with section 1(2) of the Pondicherry Act it was the amended act which was brought into operation in Pondicherry. The result was that the Pondicherry Legislature accepted the amended Act though it was not and could not aware what the provisions of the amended Act would be. There was in these circumstances a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason the Act was void or as is often said 'stillborn'."
42. The above case of the Supreme Court came up for consideration before the Supreme Court in the case of M/s. Devi Das Gopal Krishnan, etc. v. State of Punjab and others, . In this case, the Supreme Court, while dealing with the Punjab Sales Tax Act, observed :
"The only difference between Income-tax Act and the present Act is that while in the Income-tax Act section 3 thereof does not expressly make the liability subject to the provisions of the Finance Act which fixes the rate, under the Sales Tax Act in question. Section 4 thereof in terms is made subject to section 5. But under both the Acts there is a clear distinction between chargeability and the qualification of tax. While it is true that the tax cannot be realised without it being quantified, the non-quantification of the liability will not destroy the liability under the charging section. The liability has to be distinguished from its enforceability. It cannot be said, and indeed it is not said, that the Income-Tax Act has no legal existence till the Finance Act is made, though till the Finance Act is made it cannot be enforced. But reliance is placed on section 67-B of the Income-Tax Act support of the contention that its existence in the statute book keeps the Act alive, for the rate prescribed by the previous Finance Act is applicable till the new Finance Act is passed. But it will be noticed that the Court's decision was not based on the existence of the said provision but on that of charging section itself. It follows that striking out section 5 does not make section 4 void, though till an appropriate section is inserted it remains unenforceable. The decision of this Court in B. Shama Rao v. Union Territory of Pondicherry, W.P. No. 123 of 1966, dated 20-2-1967 : , is clearly distinguishable. There, subsection (1) of section 2 of the Pondicherry General Sales Tax, X of 1965, provided that :
"The Madras General Sales Tax Act, 1959 (No. 1 of 1959) hereinafter referred to as the Act as in force in the State of Madras immediately before the commencement of this Act shall extend to and come into force in the Union Territory of Pondicherry subject to the following modifications and adaptations,...
Section 1(2) of the said Act provided that the Act would come into force on such date as the Government by notification may appoint. The effect of the section was that the Madras Act as it stood on the date of the notification issued would be in force in Union Territory of Pondicherry. Indeed it turned out that the Madras Act was amended before the said notification. This Court held that there was a total surrender in the matter of sales-tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason the said sections were void or stillborn."
43. In the case of Gwalior Rayon Mills Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner of Sales Tax and others, , the Supreme Court observed :
"We think that the principle of the ruling in , must be confined to the facts of the case. It is doubtful whether there is any general principle which precludes either Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation. At any rate, there can be no such prohibition when the adoption is not of the entire corpus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose."
The Supreme Court further went on to observe :
"It is important however, to appreciate the limits of the doctrine affirmed by the Nova Scotia Inter-delegation case. Properly understood the case does not prohibit either Parliament or a provincial legislature from incorporating referentialy into the valid legislation of one the future valid enactments of the other. Illustrations of this kind of anticipatory incorporation by reference may be seen in the Criminal code, section 534 (fixing the qualifications of jurors in criminal proceedings as those prescribed by 'the laws in force for the time being in a province'), and in the Summary Convictions Act, R.S.O. 1960, c. 387, S. 3 (Making applicable to provincial summary conviction proceedings certain provisions of the Criminal Code 'as amended or re-enacted from time to time'. There is no unconstitutional delegation involved where there is no enlargement of the legislative authority of the referred legislature, but rather a borrowing of provisions which are within its competence and which were enacted for its own purposes could have validly spelled out for its own purposes."
44. In the case of Krishna Chandra Gangopadhyaya etc. v. The Union of India and others, , the Supreme Court observed :
"... The Kernel of Gwalior Rayon, , is the ambit of delegation by Legislatures, and the reference to legislation by adoption or incorporation supports the competence and does not contradict the vires of such a process -- not an unusual phenomenon in legislative systems nor counter to the plenitude of powers constitutional law has in many jurisdictions conceded to such instrumentalities clothed with plenary authority. The Indian legislatures and courts have never accepted any inhibition against or limitation, upon enactment by incorporation, as such."
45. It would thus be seen that there is nothing wrong on the part of the Board to physically lift the CCS Rules and make them applicable to its employees. There is further nothing wrong in making the CCS Rules, in so far as they relate to the condition of service etc., applicable alongwith the amendments to be made from time to time. Contention of Mr. Nadkarni is, therefore, rejected.
46. This takes us to the consideration of contention of Mr. Nadkarni in respect of the vires of Rule 10 of the CCS Rules. According to him, Rule 10(1)(a) empowers the appointing authority or a disciplinary authority to pass an order of suspension where the disciplinary proceeding against an employee is contemplated. According to Mr. Nadkarni, the power conferred by section 10(1)(a) is far too wide. No guidelines are prescribed. The unbridled powers which are sought to be imposed by the rule makes the abuse of power likely. The power when exercised brings about serious civil consequences against an employee. Apart from casting aspertions in respect of moral turpitude of the employee it brings about a civil death. The power infringes upon the right to equality and right to life guaranteed under Articles 14 and 21 of the Constitution of India. The Rule 10 in the circumstances is ultra vires and is liable to be struck-down.
47. In this context, reliance is placed on the case of Senior Supdt. of Post Office and others v. Izhar Hussain, . The Supreme Court was dealing with fundamental Rule 56(j) of the Fundamental Rules which confers absolute right to prematurely retire a servant in public interest after he has attained the age of 55 years. It was further dealing with Rule 2(2) of the Pension Rules which enables the Government to retire a servant at any time after he has completed 30 years of qualifying service. The Supreme Court observed:
"Fundamental Rule 56(j) while granting absolute right to the Government provides that such power can only be exercised in 'Public Interest'. This guideline is a sufficient safeguard against the arbitrary exercise of power by the Government. The object of this rule is to chop-off the deadwood. Rule 2(2) of the Pension Rules on the other hand provides no guideline and gives absolute discretion to the Government. There is no requirement under the rule to act in 'Public Interest'. A person who joins Government service at the age of 21 years can be retired at the age of 51/52 years as by then he must have completed 30 years of qualifying service. Although the rules are mutually exclusive and have been made to operate in different fields but the operational effect of the two rules is that a Government servant who has attained the age of 55 years can be retired prematurely under F.R. 56(j) only on the ground of 'Public Interest' whereas another Government servant who is only 51 and has completed 30 years of qualifying service, can be retired at any time at the discretion of the Government under Rule 2(2) of the Pension Rules.
The object of Rule 2(2) of Pension Rules may also be to weed-out those Government servants who have outlived their utility but there is no guideline provided in the Rule to this effect. The Rule gives unguided discretion to the Government to retire a Government servant at any time after he has completed 30 years of qualifying service and has not attained the age of 55 years can be picked-up for premature retirement under the Rule, the discretion is absolute and is capable of being used arbitrarily and with an uneven hand. We, therefore, agree with the Division Bench of the High Court and hold that Rule 2(2) of the Pension Rules is ultra vires Article 14 and 16 of the Constitution of India."
48. Placing reliance on the above decision Mr. Nadkarni submitted that the present Rule 10(1) of the CCS Rules which does not lay down any guidelines for the exercise of the power of imposing an order of suspension when disciplinary enquiry is merely contemplated, is void and is liable to be struck-down.
49. Further reliance is placed on the case of A.N. Parasuraman etc. v. State of Tamil Nadu, , where the Supreme Court has held that "the provisions of Tamil Nadu private Educational Institutional (Regulation) Act, 1966 are ultra vires as sections 2(2), 6, 7, 15, 12 of the Act conferred unguided power on the authorities." The Supreme Court observed further:
"It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated. what is permissible is to leave to the delegated authority the task of implementing the object of the Act after the legislature lays down adequate guidelines for the exercise of power.
The Act does not lay down any guideline for the exercise of the power by the delegated authority, as a result of which the authority is in a position to act according to his whims and is thus discriminatory and arbitrary. Sections 2(2)(c), 6, 7 and 22 are invalid. These provisions are inextricably bound up with the other parts of the Act so as to form part of a single scheme, and it is not possible to sever the other parts of the Act and save them. In the result, the entire Act is ultra vires.
The purpose of the Act is said to regulate the private educational institutions but does not give any idea as to the manner in which the control over the institutions can be exercised. The preamble which describes the Act "for regulation" is not helpful at all section 6 which empowers the competent authority to grant or refuse to grant the permission for establishing and running an institution does not give any idea as to the conditions which it has to fulfil before it can apply for permission under the Act, nor are the tests indicated for refusing permission or cancelling under section 7 of an already granted permission. The authority concerned has been left with unrestricted and unguided discretion which renders the provisions unfair and discriminatory. The Act, beyond requiring the applicant to make a factual statement about the matters enumerated in section 4, does not direct the institution to make provisions for them (or for any or some of them) as condition for grant of permission. The maintenance of any particular standard of these heads is not in contemplation at all, although certain other aspect, not so important, have been dealt with differently in several other sections including section 4, 5, 9, 10 and 11. There is no indication, whatsoever about the legislative policy or the accepted rule of conduct on the viral issue about the maintenance of academic standard of the institution and the other requirements relating to the building, library and necessary amenities for the students, as the Act is absolutely silent about the criteria to be adopted by the prescribed authority for granting or refusing permission. The rules which were made under section 27 in 1968 and called the Tamil Nadu Private Educational Institutions (Regulation) Rules, 1968, are not called upon to lay down any norm on these issues and naturally do not make any reference to these aspects. The result is that the power to grant or refuse permission is to be exercised according to the whims of the authority and it may differ from person to person holding the office. The danger of arbitrariness is enhanced by the unrestricted and unguided discretion vested in the State Government in the choice of "competent authority" defined in section 2(2)(c). The second ground on which the authority can exercise its power to cancel permission being contravention "of any direction issued by the competent authority under this Act" against suffers from the vice of arbitrariness. The provisions of section 15 are also too wide. The provisions of the Act indicate that the State Government has been vested with unrestricted discretion in the matter of the choice of the competent authority under section 2(2)(c) as also in picking and choosing the institutions for exemption from the Act under section 22."
50. In reply Mr. Usgaonkar, learned Counsel for the respondents, drew our attention to a Full Bench Ruling of the Patna High Court in the case of Bhup Narayan Jha v. State of Bihar and others, 1984(2) S.L.R. 573. The Patna High Court was dealing with Rule 49-A of the Bihar Services (Classification, Control and Appeal) Rules, 1930, which rule is in pari materia with Rule 10-A of the CCS Rules under consideration, Rule 49-A of the Bihar Rules provides as under:
"49(A)(1) :---The appointing authority or any authority to which it is subordinate or the Governor, by general or special order, may place a Government servant under suspension :
(a) Where a disciplinary proceeding against him is contemplated or is pending; or,
(b) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial."
The Full Bench observed :
"In this context it become necessary to first consider the very nature of an order of suspension made either during the pendency of a departmental proceeding or in reasonable contemplation thereof. It is well settled that suspension is of two kinds -- one by way of punishment, and the other by way of a procedural aid to the holding of disciplinary proceedings. Admittedly herein we are concerned with the latter category. It seems to be undisputed that the concept of suspension during departmental proceeding has only the large objective of ensuring a free and fair conduct of the enquiry that is either pending or is to follow. In this context, the fact that the suspension order is interlocutory or interim in nature can perhaps be hardly denied. The service rules invariably, if not inflexibly, provide for a subsistence allowance during the period and the delinquent official retains his lien on the post during the continuation of the departmental proceeding. This mellows the rigour of the order of suspension and in the event of the enquiry resulting in favour of the official, he would be invariably entitled to the revoking of the order of suspension and the reinstatement to the post with all the benefits of service and salary, (sometimes even without having worked during the said period), as may be provided in the rules. There is thus no finality or irrevocability attaching to an order of suspension, which, as already noticed, retains its character or being interim or interlocutory, in nature.
The object and purposes of placing a public servant under suspension during or in contemplation of a disciplinary proceeding may be manifold and do not call for any exhaustive enumeration. However, its salient features are well known and may call for a passing notice. Where serious allegations of misconduct are imputed against an official, the service interest renders it undesirable to allow him to continue in the post where he was functioning. In case where the authority deems a further and deeper investigation into the same as necessary, it become somewhat imperative to remove the official concerned from the spheres of his activities, as it may be necessary to find out facts from people working under him or to take into possession documents and materials which would be in his custody. Usually, if not invariably, it would become embarrassing and inopportune both for the delinquent official concerned as well as the inquiring authority to do so, while such official was present at the spot and holding his official position as such. It was sought to be contended that such a situation may be avoided by merely transferring the official. However, it would be for the authority concerned to decide whether such an official, against whom prima facie serious imputations have been levelled; should at all be allowed to function anywhere else. If it so decides, then suspension during the pendency or in contemplation of an inquiry might well become inevitable. It seems to be a fallacy to assume that suspension is necessarily and wholly related to the gravity of the charge. Indeed, it may have to be ordered to facilitate free investigation and collection of evidence. Just as criminal procedure is intended to subserve the basic cause of a free and fair trial, similarly, suspension as an interim measure in aid of disciplinary proceeding, is directed to the larger purpose of a free and fair inquiry. It would thus seem that the power of suspension is not only necessary, but indeed, a salutary power, if reasonably exercised either during the pendency or in contemplation of a disciplinary proceeding.
The basic apprehension here is that of abuse or misuse of the provision. It is well settled that merely because a provision conferring a power can be misused or abused is no reason for either voiding it or holding it as unconstitutional. Indeed, it seems impossible to conceive of any power which cannot be put to misuse, and this attribute seems inherent to the very concept of power. Merely because a discretion is vested by the rule in the authority for either suspending or not, would, in my view, render it reasonable and far from being unconstitutional on that score. If any inflexible rule were to be laid down that might well work harship in a particular case. Therefore, in a somewhat sensitive field the vesting of discretion in that authority is inevitable and the same cannot be confined to a procrustean bed. As has already been noticed, suspension is not inflexibly related to the gravity of the departmental misconduct, but might be necessitated by a host of other factors, which defy enumeration. Therefore, the vesting of a reasonable discretion in the authority is inherent to the situation and no reason appears to either necessarily distrust the same or to presume that the power will necessarily be misused. The presumption in the eye of law is that high officials vested with powers would exercise the same fairly and reasonably and not indeed to the contrary."
51. It would thus be seen that a distinction is mad between an order of suspension imposed by way of punishment and a suspension pending disciplinary proceeding. Suspension pending disciplinary proceeding is of an interlocutory nature. The object of passing an order of suspension pending enquiry is to ensure the larger objective of a free and fair conduct of the enquiry. The order of suspension pending enquiry cannot be equated with an order of suspensions passed by way of punishment. Where serious allegations are made against an official, services interests renders it undesirable to allow him to continue in the post where he was functioning. It may become necessary to have a further and deeper investigation into the allegations. In such a case it may become necessary even imperative to remove the official from the sphere of his activities. It may be necessary to find out facts from the people working under him and to collect evidence which would otherwise be in his custody. If the delinquent is not put under suspension it very often become embarrassing and inopportune for the delinquent official as well as the enquiring authority to conduct the enquiry when the delinquent officer is present at the spot and holding his official position. Hence, suspension can be justified on the ground of gravity of the charge. It can also be justified in order to facilitate free investigation and collection of evidence. Hence, suspension as an interim measure in aid of disciplinary proceeding is directed to the larger purpose of a free and fair enquiry. Hence, the power of suspension is not only necessary but indeed a salutary power if reasonably exercised.
52. In our view, the grounds and reasons given by the Full Bench of the Patna High Court for upholding the validity of Rule 49-A is well reasoned and we are inclined to affirm the said for upholding the vires of Rule 10 of CCS Rules.
53. As observed by the Patna High Court in respect of Rule 49-A of the Bihar Service Rules we find that Rule 10 of the CCS Rules is not without guidelines. We have in the foregoing paragraphs reproduced the provisions of Rule 10 of the CCS Rules. The said Rule 10 empowers the appointing authority or the disciplinary authority to pass an order of suspension (a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or (b) where a case against him in respect of any criminal offences is under investigation, inquiry or trial; Rule 10 of CCS Rules, therefore, lays down cases where an order of suspension is permissible, it lays down the category of cases where an order of suspension can be passed. An order of suspension can be passed only on those grounds and none others. The guidelines are inbuilt in the rule itself. As far as Clause (a) of Rule 10(1) is concerned, it permits an order of suspension only where a disciplinary proceeding is either contemplated or is pending against an employee. Whether in a given case an order of suspension is necessary to not, whether it is justified or not, would depend on the facts of each individual case. The mere fact that the power is capable of abuse is not a ground for holding the provision ultra vires. Many enabling provisions having numerous guidelines are also seem to have been misused. The possibility of misuse therefore can be no ground to hold the provision ultra vires.
54. In view of the above finding, it is not necessary to read down the provisions of Rule 10 as is sought to be suggested by Mr. Nadkarni. In Craie's Statute Law, Seventh Edition in Chapter 5, at page 64 it is stated that where the words of an Act are clear, there is no need for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statue. The safer and more correct course of dealing with the question of construction is to take, the words themselves and arrive, if possible, at their meaning without in the first place refer to cases. Where an ambiguity arises to suppose intention of the legislature, one of the statutory constructions, the Court propounded is the doctrine of reading down. Lord Reid in Federal Steam Navigation Co. v. Department of Trade and Industry, 1974(2) All E.R. 97 at P. 100 (as also extracted by Cross Statutory Interpretation, Butterworths' Edition, 1976 at page 43 in proposition (3) has stated thus :
"The Judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute."
At page 92 of the Cross Statutory interpretation, the author has stated that the power to add to, alter or ignore statutory words is an extremely limited one. Generally speaking it can only be exercised where there has been a demonstrable mistake on the part of the draftsman or where the consequence of applying the words in their ordinary, or discernible secondary meaning would be utterly unreasonable. Even then the mistake may be though to be beyond correction by the Court, or the tenor of the stature may be such as to preclude the addition of words to avoid an unreasonable result."
Therefore, the Doctrine of Reading Down is an internal aid to construe the word or phrase in statute to give reasonable meaning, but not to detract distort or emasculate the language so as to give the supposed purpose to avoid unconstitutionality.
The Supreme Court in Saints High School, Hyderabad v. Govt. of A.P., ), held that :
"This Court has in several cases adopted the reading down the provisions of the Statute. The reading down of a provision of statute puts into operation the principle that so far as is reasonably possible to do so, the legislation should be construed as being within its power. It is principle effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond relevant legislative power, the Court construe it is a more limited beyond relevant legislative power, the Court would construe it in a more limited sense so as to keep it within the power."
Similarly restricted meaning was ascribed by Maxwell in his Interpretation of the Statutes XII Edn. at p. 109 under the caption "Restriction of operation" that sometimes to keep the Act within the limits of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain purposes only even though the language expresses no such circumspection of the field of operation.
55. It is, thus, clear that the object of reading down is to keep the operations of the statute within the purpose of the Act and constitutionally valid. In this regard it is equally of necessity to remind ourselves as held by the Supreme Court in Minerva Mills' case, , that when the effect of Article 31 was asked to be read down so as to save it from unconstitutionality the Supreme court held that it is not permissible to read down the statutory provisions when the avowed purpose is to confer power on an authority without any limitation whatever and that at pp. 25900 and G it was held that the principle of reading down cannot be used to distort when words of width are used even advertently. In Elliott Ashton (26 Lawyer's Edition 2nd, 308 at 327) Herlan, J., at 327 held that :
"When the plain trust of a legislative enactment can only be circumvented by distortion to avert constitutional colliston, it can only be exalting form over substance that one can justify veering of the path that has been plainly marked by the Statute. Such a course berays extreme skepticism as to constitutionality and in this instance reflects a groping to preserve conscientious object or exemption. At all costs I cannot subscribe wholly to emasculated construction of a statute to avoid facing constitutional question in purported fidelity to the statutory doctrine of avoiding unnecessary resolution of constitutional issues."
In Nalinakhya Bysack v. Shaym Sunder Haldar, the Supreme Court has refused to rewrite legislation to make up omissions of the Legislature.
In Moti Ram Deka's case, when Rule 148(3) and Rule 149(3) of the Railway Establishment Code were sought to be sustained on the 'principle of reading down', the Supreme Court held, thus :
"There is one more point which still remains to be considered and that is the point of construction. The learned Addl. Solicitor General argued that in a construing the impugned Rule 148(3) as well as Rule 149(3), we ought to take into account the fact that the rule as amended has been so framed as to avoid conflict with or noncompliance of, the provisions of Article 311(2), and so, he suggests that we should adopt that interpretation of the Rule which would be consistent with Article 311(2). The argument is that the termination of services permissible under the impugned rules proceeds on administrative grounds or considerations of exigencies of service. If, for instance, the post held by a permanent servant is abolished, or the whole of the cadre to which the post belonged is brought to an end and the railway servant's are services terminated in consequence, that cannot amount his removal because the termination of his service is not based on any consideration personal to the servant. In support of this argument, the Addl. Solicitor General wants us to test the provision contained in the latter portion of the impugned rules. We are not impressed by this argument. What the latter portion of the impugned Rules provide is that in case a railway servant is dealt with under that portion, no notice need be served on him. The first part of the Rules can reasonably and legitimately take in all cases and may be used even in respect of cases falling under the latter category provided, of course, notice for the specified period or salary in lieu of such notice is given to the railway servant. There is no doubt that on a fair construction, the impugned Rules authorise the Railway Administration to terminate the services of all the permanent servants to whom the Rules apply merely on giving notice for the specified period or on payment of salary in lieu thereof, and that clearly amounts to the removal of the servant in question. Therefore, we are satisfied that the impugned rules are invalid inasmuch as they are inconsistent with the provision contained in Article 311(2). The termination of the permanent servant's tenure which is authorised by the said rules is no more and no less than their removal from service, and so Article 311(2) must come into play in respect of such cases. That being so, the Rule which does not require compliance with the procedure prescribed by Article 311(2) must be struck down as invalid."
56. In the instant case, we have found that there are inbuilt guidelines in Rule 10 of the C.C.S. Rules. The rules is, therefore, valid and there is no cause or reason to read down the provision as suggested by Mr. Nadkarni. The contention of Mr. Nadkarni that Rule 10 is ultra vires and bad in law on account of lack of guidelines is, therefore, liable to be rejected.
57. This takes us to the next contention of Mr. Nadkarni namely that the impugned order of suspension which is passed by the second respondent is without the authority of law and, therefore, invalid. According to Mr. Nadkarni, the petitioner was appointed by the first respondent-Board. The Board was, therefore, his appointing authority. The impugned order not having been passed by the appointing authority lacks the authority of law and is, therefore, liable to be quashed. In other words, according to Mr. Nadkarni, the power of suspension does not vest with the Secretary-Cum-Managing Director, the respondent No. 2 herein, but with the Board, the respondent No. 1. Reliance is placed on section 12(2) of the Act. Under the said subsection (2) it is provided that the appointment of the Secretary, Housing Engineer and Chief Accounts Officer shall be made by the Government and the appointments of other officers and employees shall be made by the Board. The petitioner's appointment is, therefore, not liable to be made by the Government. His appointment under the subsection is required to be made by the Board.
58. Further reliance is placed on the office memorandum dated 1st of February, 1990 whereunder the services of the petitioner, who was on deputation to the Board, were absorbed to the Board. The memorandum reads that the Board has decided to absorb Shri A.R. Kukalekar who is on deputation to the Housing Board against the post of the post Cost-cum-Financial Controller ....Hence, the appointing authority of the petitioner is the Board. Hence, both in law and in fact it is the Board which is the appointing authority. The impugned order, having passed not by the appointing authority but by its Secretary-cum-Managing Director, lacks the authority of law and is, therefore, liable to be struck down.
59. In this context a reference to section 14 would be relevant. Section 14 of the Act provides for promotion and punishment of officers and other employees of the Board. the section in so far as is relevant, provides as under :
"14. Subject to any Regulations made under section 15, the power of ....... reducing, suspending, removing or dismissing ....... officers and other employees for any breach of departmental rules or discipline ........ shall be exercised by such authority and in such manner as may be laid down by regulations."
Annexure-I of the Regulations of 1983 provides that the Secretary of the Goa, Daman and Diu Housing Board shall be the Chief Executive of the Board. He shall exercise for proper control and superintendence over the functions of other employees of the Board. He shall be the appointing and disciplinary authority of the staff of the Board ..........."
It would thus be seen that whereas section 14 of the Act authorises the appointment of an authority to be the disciplinary authority by laying down regulations. Regulations of 1983 has appointed the Secretary - the respondent No. 2 as the appointing and the disciplinary authority.
The manner in which the disciplinary authority is to exercise the function and the power is prescribed in Regulation 7. Regulation 7 inter alia provides that the Secretary shall exercise the powers of the head of the department under the Rules. It also provides that the service conditions of the employees of the Board shall be the same as are applicable to the Government employees of the Union Territory. Hence, the C.C.S. Rules are made applicable. Rule 10 provides that the appointing authority or any authority to which he is a subordinate or a disciplinary authority or any other authority empowered in that behalf may place a Government servant under suspension. It would thus be seen that the power of suspension is not given only to the appointing authority but it is also conferred on an authority to which the appointing authority is subordinate, it is conferred on the disciplinary authority and also on any other authority empowered in that behalf. In the present case, the second respondent, under Annexure--I to the Regulations of 1983, has been designated both as the appointing authority as also the disciplinary authority. It may be that the Board may have been the appointing authority as for as the petitioners is concerned. It does not, thereby follow that it is only the Board and none else who has the authority to pass an order of suspension. The second respondent under Annexure--I has been appointed as the disciplinary authority and he in that capacity is authorised to pass an order of suspension.
60. In the case of State of Gujarat and another v. Ramesh Chandra Mashruwala, , it is held that Articles 235 and 236 are irrelevant for the purpose of ascertaining the extent of disciplinary jurisdiction of the High Court. the Registrar of the Court of Small Causes is a person holding a civil judicial post inferior to the post of District Judge and is in Judicial Service. A reference to sections 9(i)(aa), 14, 33 to 36 of the Presidency Small Causes Courts Act, 1882 indicates in no uncertain manner that the Registrar of a Small Causes Court exercises judicial powers, hears suits, passes decrees and an appeal is preferred from a decree of the Registrar. It follows that the High Court is competent to start disciplinary proceeding against the Registrar, Small Causes Court. The question of appointing authority is irrelevant in regard to the disciplinary jurisdiction of the High Court."
61. It would thus be seen that the disciplinary authority can be different from the appointing authority and such a disciplinary would be competent to hold disciplinary proceeding and pass interim orders such as the impugned order of suspension.
62. In the case of T. Cajee v. U. Jornanik Siom and another, , the Supreme Court observed :
"The next question that arises is whether the Executive Committee could take the action which it did in this case. Ordinarily, the appointment being made by the District Council, the removal could only be by it. The contention on behalf of the respondent is that even if the District Council had the power to remove in accordance with the terms and conditions of the respondent's appointment that power could only be exercised by the District Council and not by the Executive Committee. In this connection, Rules 28, 29 and 30 of the Assam Autonmous Districts (Constitution of District Councils) Rules, 1951, are relevant. Rules 28 vests the executive functions of the District Council in Executive Committee. Rule 29(1) gives power to the Executive Committee to dispose of all matter falling within its purview subject to certain exceptions mentioned in Rule 29(2). One of these exceptions is with respect to all important appointments. Assuming that the office of Siem is an important appointment, the Executive Committee could not normally deal with it in view of the exceptions in rule 29(2). But Rule 30(a) lays down that where immediate action in respect of any of the excepted matters is necessary, the Executive Committee of the district Council other than that of the Mikhir hills or the North Cachar hills, may take such action thereon as the emergency appears to it to require; but every such case shall have to be laid before the District Council as its next session. The order of July 7, 1959, shows that the Executive Committee took action under rule 30(a) as it considered the matter to be one of emergency. It is not for the courts to go into the question whether there was emergency or not with respect to excepted matters and in the circumstances the action taken by the Executive Committee cannot be challenged on the ground that it is beyond its power."
63. It would thus be seen that the power of removal is not restricted only to the appointing authority. The power can be exercised by another authority if the rules in that behalf so permit.
64. In the case of State of Madhya Pradesh and others v. Shardul Singh, , the Supreme Court was dealing with a case where a departmental enquiry was initiated against the Sub-Inspector of Police by the Superintendent of Police, who after holding an enquiry as prescribed by the Central Provinces and Bihar Police Regulations, sent his report to the Inspector General of Police. The Sub-Inspector submitted his explanation to the show cause notice for dismissal issued by the Inspector General of Police, who dismissed the respondent from service. The respondent challenged this order under Article 226 of the Constitution. The High Court allowed the writ holding that the enquiry was without the authority of law and against the mandate of Article 311(1) of the Constitution as he, the Superintendent of Police was incompetent to initiate or conduct the enquiry, the Sub-Inspector having been appointed by the Inspector General of Police. the State appealed to the Supreme Court. The question for decision was whether the power conferred on the Superintended of Police under the Central Provinces and Bihar Police Regulations was ultra vires Article 311(1) of the Constitution.
65. The Supreme Court on the above facts held :
"that Article 311(1) does not in terms require that the authority empowered under that provisions to dismiss or remove an official, should itself initiate or conduct the enquiry proceeding the dismissal or removal of the officer or even that enquiry should be done at its instance."
It was further held that :
"..................It is not possible to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in the Article."
It was further observed :
"that the expression "Conditions of service" is an expression of wide import. It means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it is matters like pension, etc."
66. It would thus appear that it is not necessary that the disciplinary authority should necessarily be the appointing authority, it could as well be an another authority if the rules so permit.
67. In the case of Shri Mussa Aga v. Union of India and 5 others, 1989(1) Goa Law Times 339, this Court observed :
"The reliance placed by Shri Rebello on the use of different phraseology in different Articles of the constitution to support his argument that the expression "appointment" in Clause (1) of article 229 does not include "recruitment" is also, according to us, misplaced. According to us the two expression and for that matter the expression "conditions of service" have been used synonymously and where they are used to denote different stages of appointment, the context of their use makes it clear. Sub-clauses (2) and (3) of Article 98 which relate to the secretarial staff of either House of the Parliament use the expressions "law regulating the recruitment and the conditions of service" and "rules regulating the recruitment and the conditions of service" "of persons appointed". Similar expressions are used in sub-clauses (2) and (3) of Article 187 which deal with the secretarial staff of the Houses of the Legislature of the State. What is further necessary to remember is that the sub-clause (3) of Article 98 and Article 187 give the power to the President and the Governor respectively to make rules for recruitment of the staff until the Parliament and the State Legislature as the case may be, make provisions for the same. Those powers are to be exercised by the President and the Governor under the said sub-clauses and they do not have to look to Article 309 for the said purpose. In other words, Article 98 and 187 are a Code by themselves so far as the recruitment and service conditions of the staff of the Parliament and the Legislature are concerned. Article 148(5) uses only the expression "Constitutions of service" and the power to make rules in that behalf is to be exercised by the President after consultation with the Controller and Auditor-General subject to the provisions of the Constitution and of any law made by the Parliament. There cannot be any doubt that the expression "conditions of service" used in the said sub-clause will include also the conditions of recruitment/appointment of the persons to be appointed in the Indian Audit and Accounts Department."
68. In our case, section 13 of the Act deals with conditions of service of officers and other employees of the Board. The conditions of service are regulated by the Regulations of 1983. Section 14 of the deals with promotion and punishment. The power of punishment is conferred on such authority as may be laid down by regulations. The power of imposing punishment is to be exercised in such manner as would be laid down by the regulations. Annexure--I of the Regulations of 1983 appoints the Secretary, the second respondent, as the Chief Executive of the Board. He has been appointed as the appointing and disciplinary authority. The manner in which the disciplinary proceedings are to be conducted are to be found in Regulation 7. Regulations 7 provides that the conditions of service will be the same as are applicable to the Government employees of the Union Territory. By virtue of Regulation 7 the C.C.S. Rules are made applicable. Rule 10 of the C.C.S. Rule thus empowers the second respondent who is the disciplinary authority, to pass an order of suspension. In view of this position, the contention of Mr. Nadkarni that the impugned order is bad as it lacks the authority of law is liable to be rejected.
69. The last contention of Mr. Nadkarni relates to mala fide. The allegations of the petitioner in regard to mala fide and their corresponding reply as given in the affidavit in reply, are as under :
"Para 9. The petitioner stated that sometime in the month of August, 1990, the Secretary-cum-Managing Director proceeded on a trip for Medical attendance of Neurological Evaluations to Tamil Nadu as the facilities were not available in the State of Goa. for this trip the Managing Director, Shri R.I. Jai Prakash, claimed medical Bills, Taxi Bills, Reimbursement of air fares and the Bill generally consisted of the following :
i) Reimbursement of the air-fare for the journey to Madras and back alongwith the attendant.
ii) Reimbursement of taxi fares for the journey undertaken by him from the place of halt in Madras to the place of treatment.
iii) Reimbursement of Pathological charges of the Blood and urine test conducted at a Private Clinic at Panaji; and
iv) Reimbursements of Medicines prescribed by the competent Medical Officers.
Para 10. The petitioner states that the Bill of the Secretary-cum-Managing Director came for scrutiny and passing with the petitioner, as the petitioner was the Financial Controller of the Board and as was required under the allotment of duties circular referred to hereinabove. The petitioner put up a detailed note whereby the petitioner mentioned that :
(a) That the evidence for having availed the treatment or neurological evaluation made is not available in the file;
(b) That the Doctors have not certified that the return air travel from Madras to Goa has to be by air;
(c) Certain other comments were also made by the petitioner in strict compliance with the Medical Reimbursement Rules;
(d) It was also stated that the Board may decide on the Bill, and if approved then the outstanding advance of Rs. 20,000/- taken by the Secretary-cum-Managing Director be adjusted.
The said Bill did not comply with the provisions of the Rules of the Board, and hence was objected to by the petitioner, whose duty it was to do so. The said note dated 1-2-1991 was sent in the morning session. The petition craves leave to refer to and rely upon he same when produced from the Housing Board file.
Para 11. The petitioner states that in the meantime the Secretary-cum-Managing Director of the respondent No. 1 called the petitioner on or about 29th January, 1991, since the petitioner had objected to the claims of the Secretary-cum-Managing Director. The said Secretary at the said Meeting threatened the petitioner with dire consequences in case the Medical claims of the Secretary were not sanctioned. The petitioner told the Secretary that unless it complies with the Rules, the same could not be recommended as submitted."
Ans : "With reference to para 9:-- The contends are admitted.
With reference to para 10 :-- The petitioner has examined the case and has duly recommended relaxation or approval to the Chairman/Board wherever required.
With reference to para 11 :-- It is denied that the respondent 2 ever threatened all the petitioner.
The petitioner had no authority or powers to sanction any of the claims as alleged.
The alleged incident on or about 29-1-1991 never took place and it is only a fiction created by the petitioner for ulterior motives.
Para 12. The petitioner states that the then Chairman of the Housing Board, Shri Vasu Paik Gaonkar, is aware of these facts, as the note of the petitioner was routed through the Secretary-cum-Managing Director to the Chairman of the Board as the Board is required to give the approval for the Bill. Thereafter immediately on the 1st of February, 1991, the said Secretary-cum-Managing Director changed the allocation of work of the Financial Controller (petitioner herein) and the Chief Accounts Officer. The petitioner states that this change of duties was deliberately made by the said Secretary cum Managing Director in order to get his Medical Bills sanctioned, by divesting the petitioner from the duties and functions of scrutinizing the sanctioning of Bills. hereto annexed and marked Exh. "E" is the copy of the said allotment order of the Secretary-cum-Managing Director dated 1-2-1991. This act of the said Secretary-cum-Managing Director is made with a totally mala fide intention and as an act of revenge against the petitioner for not readily sanctioning the Bill of the said Secretary-cum-Managing Director, namely the respondent No. 2 herein. The petitioner states that even the advance of Rs. 20,000 could not be given to the respondent No. 2 as it was not permissible to do so under the Rules, Secondly, by another letter dated 3rd August, 1990, the Chairman informed the respondent No. 2 that advance of Rs. 19,000/- was paid in excess, as only Rs. 1,000/- was permissible as an advance, under Rule No. 63 of the Medical Attendance Rules, 1944. The petitioner states that the money could never have been paid without actually obtaining the Government approval."
Ans :-- "With reference to para 12, once the petitioner recorded his views on the medical reimbursement claims the respondent No. 2 instructed the Assistance Secretary to obtain relaxation of the Board wherever required as per his notings dated 5-2-1991.
The matter was placed before the Board to obtain full sanction for the total claim of Rs. 6,834/- and the Board duly granted ex post facto sanction for advance of Rs. 20,000/-, and return air journey from Madras to Goa with an attendant who accompanied the respondent No. 2, and Pathological charges of Rs. 300/- in a private clinic. The Board granted on February 15, 1991 the approval in exercise of the power vested in it as the powers of the Government are vested on the Board under the above said Regulations.
Hereto annexed and marked EXHIBIT R1 is true copy of the resolution of the Board granting post facto sanction.
After the approval of the Board, the Chief Accounts Officer submitted the file once again and the then Chairman countersigned the bill on 20-2-1991.
The balance amount of Rs. 13,166 was duly credited in February 1991 and the respondent was under treatment till February 1991.
The processing of the medical reimbursement claim of the respondent has nothing to do with subsequent reallocation of work to the petitioner.
The change of duties between the Chief Accounts Officers and the Financial Controller was done as per the directive of the then Chairman as it is clearly mentioned in the Exhibit 'E' of the petition in the very beginning of the order and it has been so done to separate the accounts duties and finance and cost work.
Further, the Chief Accounts Officer is a statutory officer as per section 12(1) of the Goa, Daman and Diu Housing Board Act, 1968 and also Head of the Accounts Branch. The Chief Accounts officer is also cast with statutory duties as per Clause 3 of the Regulations of 1983.
The petitioner falls in the category of other officers, and he has no statutory duties attached to him either under the above said Act or under the Regulations.
As already stated, the separation of duties as per Exhibit 'E' to the petition has nothing to do with the observation of the petitioner in the medical bills of the respondent 2 and it was so done with the due approval of the then Chairman and it is specifically mentioned in the order itself.
The respondent first sought the approval of the Government conveyed their No-objection under letter No 6-2-1974-PER (Vol.II) dated 3-8-1990.
The respondent was also aware that clearance of the Government or of the Board was required to obtain the advance and the board duly gave ex post facto sanction and settlement of all claims by its decision in the 231 meeting held on 15-2-1991 and confirmed in the 232 meeting held on 26-3-1991.
It is denied that the respondent did not obtain the Government approval and N.O.C. was given by the Government.
Hereto annexed and marked as EXHIBIT R2 is a true copy of the document of approval by the Government."
Para 13. The petitioner states that thereafter the respondent No. 2 continued to harass the petitioner by removing the official car allotted to the petitioner on or about 4th March, 1991. The said car was earlier allotted to the Financial Controller by the Chairman and earlier Managing Director vide their Officer Order dated 24th April, 1990, and a separate driver was placed alongwith the said vehicle to the petitioner by another order dated 27th August, 1990. Hereto annexed and marked Exh. F. Colly, are copies of the said orders dated 24-4-1990 and 27-8-1990.
Para 14. The petitioner states that the respondent No. 2 by an order dated 4th March, 1991, withdrew the car No. G.G.H. 20 allotted to the petitioner herein without any reasons and only with a motive to harass and trouble the petitioner who had refused to blindly sanction the purported Medical Bill of the respondent No. 2, since it did not comply with the Rules, Hereto annexed and marked Exh. G is a copy of the said order dated 4-3-1991."
Ans :-- "With reference to para 13, it is denied that the respondent No. 2 had ever any intention of harassing the petitioner or any other officer of the Board.
The respondent No. 2 wishes to state that he always treated his officers and staff with due respect and dignity.
The allotment of car to the petitioner is as per Exhibit 'F' annexed to the petition.
With reference to para 14, the use of staff car No. G.G.H.-20 was discussed in the Board's special meeting held on February 28, 1991 and it was found that there is another officer of the same grade of petitioner working an Architect and also there are other officials who have field duties. Hence, with a view to make better use of the vehicle, this staff car was placed under the control of the respondent No. 2 and was kept available for the use of the officers of the Board with the due approval of the Chairman as mentioned in the last sentence of the petitioner's Exhibit 'G'.
The respondent annexes hereto a true copy of the resolution of the Board to that effect which is marked as EXHIBIT R3.
The respondent No. 2 also craves leave to state that the petitioner was never denied use of vehicle No. G.G.H.-20 at any time after issue of this order."
Para 15. Thereafter the respondent No. 2 in the Board Meeting dated 26th March, 1991 produced a typed note whereby the need for the post of Financial Controller (petitioner) was to be reviewed and separation of duties prescribed by respondent No. 2 by an order dated 1-2-1991 (without any powers to do so) to be maintained. This was deliberately added in order to seek clandestinely the approval of the Board for the illegal acts of the respondent No. 2. There was actually no need to either review the need for the post of Financial Controller, but the same was only intended to get rid of the petitioner from the Board. The said typed note did not figure anywhere in the regular Agenda of the Board, while the same was circulated by the respondent No. 2 at the venue of the meeting, whereupon the Chairman objected to such presentation by the respondent No. 2, and did not allow the circulation of such dubious notes by the respondent No. 2.
Para 16. Thereafter the respondent No. 2 in the minutes surreptitiously added the same at Clause 15 thereof, without the same having at all been discussed by the Board. But the Chairman categorically noted in the margin of the Minutes that the said item at Clause 15 was not at all taken up in the Board Meeting. The said action of the respondent No. 2 was another deliberate act of mala fide against the petitioner herein."
Ans :-- "With reference to para 15:, the respondent No. 2 denies that he ever produced any note on the Board meeting held on March 26, 1991. The Board members themselves reviewed the necessity of the petitioner and the Board decided that the need of the post of petitioner should be reviewed subsequently. The Board also took note of the separation of duties between the Chief Accounts officer and the Financial Controller.
The respondent No. 2 denies that thee was any mala fide intention as alleged by the petitioner in issuing the order, as he issued such an order with the knowledge of the Chairman who has got supervisory control over all the officers and employees of the Board under section 16 of the Housing Board Act, 1968.
The alleged typed note by the petitioner could not have figured in any of the agenda notes put up for the Board meeting as such a note was never circulated by the respondent No. 2 at the venue of the meeting.
It is denied that the Chairman of the Board could not have objected to any such note as such a note was never circulated by respondent No. 2.
With reference to para 16 :-- Minutes circulated to members of the Board contained the decisions taken which are subsequently confirmed by the Board meeting which is held subsequently.
The Board is competent to review the necessity of having any post and such a decision could be taken at any time by the Board.
It is denied that the respondent No. 2 ever recorded anything what was not discussed in the Board meeting."
Para 17. Thereafter the petitioner states that the respondent No. 2 then managed to get rid of the petitioner from the Technical Committee of the Board. As per the Government orders referred to above the petitioner as Financial Controller is required to be associated with the project/Schemes while the respondent No. 2 managed to persuade the Board to appoint the Chief Accounts Officer in place of the Financial Controller, in the Board's Meeting dated 26th March, 1991."
Ans. :--- "With reference to para 17 : A Technical Committee is appointed under the provisions of the Housing Board Act and the Committee consists only of the Board members.
The respondent No. 2 is not a member of the Committee. The petitioner not being a member of the Board, the petitioner could not been a member of the said Committee.
The Board decided that the petitioner would not be called for any meeting unless so required by the Board.
It is denied that the respondent No. 2 had influenced the Board members to change the composition of the Technical Committee as the same is decided by the Board (Goa Housing Board consists of 9 members, including 6 non-official members and 3 official members), and in any case the petitioner could never be a members of the said Committee, as he is not a member of the Board."
Para 18. Thereafter on or about 7th June, 1991, the Chairman by an order restored the powers and duties of the petitioner pursuant to the representation of the petitioner to the Chairman against the illegal divesting of powers by the respondent No. 2 earlier by his order dated 1-2-1991. Hereto annexed and marked Exh. "H" is the copy of the said order dated 7-6-1991, a copy of which was given to the petitioner herein.
Ans :-- "With reference to para 18 : It is denied by the respondent No. 2 that he had ever illegally divested any duties carried out by the petitioner as the same was done in the past under the directions of the Chairman.
The order said to have been issued on June 7, 1991 as per Exhibit 'H' of the petitioner was subsequently reviewed and considered by the Board in its 235th meeting hold on August 9, 1991 and the Board decided to restore the earlier order dated February 1, 1991."
Para 19. The respondent No. 2 thereafter came to be transferred by the Government on or about the month of May 1991. However, the Government again transferred respondent No. 2 as the Secretary-cum-Meeting Director in the month of August, 1991.
Para 20. The petitioner states that immediately on resuming the officer, the respondent No. 2 started with the harassment of the petitioner, by first submitting a note to the Administrative Bench on 16-8-1991 whereby the duties assigned to the petitioner by the Chairman vide order dated 7-8-1991 were to be revoked. All those acts were totally vindictive and directed against the petitioner with sole mala fide intentions by the respondent No. 2."
Ans :-- "With reference to para 19 : The appointment of respondent No. is done under the orders of the Government of Goa.
With reference to para 20 :-- Reallocation of duties of the petitioner was pursuant to a decision of the Board meeting held on August 9, 1991 and accordingly order was to be issued necessarily as Board has to be informed of the decision taken in the earlier Board meeting in this regard. respondent No. 2 respectfully submits that he was acting under the direction of the Board which is more competent and vested with powers to take such a decision and it is denied that there was any mala fide intention intended as respondent No. 2 was only acting under the directions of the highest decision making body."
Para 21. The petitioner states that thereafter the "Navhind Times" brought out two news items, wherein a corruption case against respondent No. 2 was being investigated and further the clarification issued by respondent No. 2. Hereto annexed and marked Exh. 'I' is the copy of the said news items dated 3rd September, 1991.
Para 22. The petitioner was thereafter shocked to receive an order dated 5th September, 1991, whereby the petitioner's services with the Board were placed under suspension with immediate effect. The said suspension order is an off shoot of the news item in the paper, passed with a total mala fide intention and further without any powers to do so and is without any jurisdiction. Hereto annexed and marked Exh. 'J' is the copy of the impugned order.
Ans :-- "With reference to para 21 : News item brought out by a local daily against respondent No. 2 was a motivated campaign at his retransfer back to the Housing Board would expose their misdeeds, as respondent No. 2 was given a free hand to carry out his duties as per the Regulations and provisions of the Act by the new Chairman who took over shortly before to filing of the petition.
It was meant to malign respondent No. 2 in the eyes of the public by certain vested interest as the respondent No. 2 has a reputation for being a very strict, upright and honest officer.
The news item is totally false as seen from the clarification so issued and published on September 3, 1991 which is seen in Exhibit I to the petition. The respondent No. 2 contacted the Editor of the local daily on and around September 3, 1991 and he expressed his note of regret and he informed me that he has taken appropriate action against the special correspondent who has brought out the report and he has apologised to the Editor for publishing an unclarified inaccurate malicious report.
With reference to para 22 : The petitioner was suspended as disciplinary proceedings were contemplated against him and it has nothing to do nor any way connected with the news item which the petitioner has attempted to link up and mislead the Hon'ble Court.
The Departmental action has been initiated in view of prima facie case of misconduct, lack of devotion to duties and acts unbecoming of an officer which are related to his behaviour as a Board employee and his duties and job responsibilities as Financial Controller.
The acts which have caused taking of disciplinary action were as under :
a) The petitioner had shown in the matter of investment of funds of the Board inclination towards certain Banks.
b) While performing his duties, the petitioner was canvassing for the job of getting LIC policies for consideration.
c) While performing his duties, the petitioner was taking drinks and used to be in a highly drunken state.
70. On the aforesaid facts Mr. Nadkarni strenuously urged that the power of suspension even if it exists has been unreasonably exercised. The power has been exercised not in good faith. The same is tainted with mala fides and is, therefore, liable to be struck down.
71. As stated earlier Mr. Usgaonkar, the learned Counsel appearing on behalf of the respondents, has made available for our perusal, the record pertaining to the case of the petitioner. We have gone through the record and we find that the allegations of mala fides cannot be sustained. We are deliberately refraining from dilating on the material reflected in the record inasmuch as the disciplinary enquiry against the petitioner is yet to commence. It is true that certain events have taken place, may be by coincidence which has led the petitioner to believe that the second respondent had a grudge against him and was, therefore, behind the various actions which were taken in respect of the petitioner. The record, however, does not substantiate the belief. The allegation of mala fide, therefore, fail and this ground of attack also deserves to be rejected.
72. Before concluding a reference to some of the auxiliary submissions advanced by Mr. Nadkarni may be stated. According to Mr. Nadkarni Regulations of 1983 have not have framed with the approval of the Government as required under section 129(3) of the Act. He has pointed out that the Regulations do not contain an averment that the same have been passed with the approval of the Government. Though this is a point not taken in the petition, Mr. Usgaonkar took time to place the relevant material on record and he has placed, today, on record the relevant material which does show that the approval as required under section 129(3) has been obtained.
73. Mr. Nadkarni next contended that the affidavits in reply in the present case have been filed by respondent No. 2 and not by the first respondent-Board. According to Mr. Nadkarni, the petitioner had made serious allegations of mala fides against the second respondent. In the circumstance, it was incumbent upon the first respondent to file an independent affidavit other than the one filed by the second respondent. Mr. Nadkarni has apparently overlooked the fact that Regulations of 1983 provide that the second respondent will attend to all legal cases on behalf of the Board. It is noteworthy that the petitioner has filed the petition against the first respondent-Board through its Secretary who is none else but the second respondent. Hence, if the petition is defended by the second respondent both on his behalf as also on behalf of the first respondent-Board, no grievance can be made on that score. No other point was urged by Mr. Nadkarni in support of the petition.
74. For the foregoing reasons we find the petition devoid of merit and the same is dismissed. Rule is discharged with costs.
75. At this stage, Mr. Nadkarni prays that suitable directions should be issued for expeditious disposal of the departmental proceedings initiated against the petitioner. We do not find this a fit case to pass directions. However, we hope that the proceedings are not unduly delayed especially in view of the fact that the petitioner now faces only one charge in the disciplinary proceedings.