2008 Supreme(Bom) 1090

Mh.L.J. 2009 (2) 56
R. M. S. Khandeparkar and S. C. Dharmadhikari, JJ.
CHANDRAHAS D. CHODANKAR - Petitioner
Vs
STATE OF GOA and others - Respondents
W. P. No. 235 of 2001
Decided on: 1-8-2008

Headnote:All India Service Act, 1951 - Section 3-Constitution of India, Article 311-Central Civil Services (Classification, Control and Appeal) Rules, 1965, Rule 1-Goa Daman and Diu Reorganisation Act, 1987, Section 61-Applicability of Rules, 1965.-A bare perusal of Section 61 would indicate that every person, who immediately before the appointed day, is holding or discharging the duties of any post or office in connection with the affairs of the existing Union territory, shall continue to hold the same post or office and shall be deemed, on and from that day, to have been duly appointed on the same terms and conditions of appointment and on the same tenure to that post or office by the Government of, or the other appropriate authority, in the State of Goa or of the Union, as the case may be. Admittedly, the petitioner joined the services on 26.6.1975 in the Department of Transport under the then Union territory of Goa and was promoted as Motor Vehicles Inspector in the year 1984. Since he was promoted as Asst. Director of Transport in the Transport Department of Goa on regular post on 15.1.1992, it is apparent that his services rendered prior to the appointed day i.e. 30th May, 1987 have been taken into consideration by the State of Goa. He has been continued in service by virtue of the above statutory provisions and unless and until it is demonstrated that his services have been governed after the appointed day by different set of rules which replace the CCS (CCA) Rules and conduct Rules or modified or substituted them in some manner, we have to proceed on the basis that the Rules applicable to the petitioner continue to remain in force. That such Rules are not replaced or superseded by any Rules is also an admitted position. In such circumstances, the Central Rules which have been made pursuant to the Constitutional provision referred to in Chapter I of Part XIV of the Constitution of India, they cannot be said to be straight away inapplicable, the moment Goa State is established or the Goa Re-organisation Act is brought into effect or force. If such had been the Legislative intent, it would have expressed it in clearest terms. On the other hand, it is to the contrary. It does not provide as contended by Mr. Kakodkar that the Central Rule are inapplicable after the services of the petitioner have been made over to the State of Goa. In such circumstances, we are unable to conclude that the inquiry which was initiated under the Central Rules was null, void and totally without jurisdiction, as contended by him.

       Constitution of India, 1950 - Article 226-Apprecial and re-appreciation of evidence-Jurisdiction of Writ Court.-There is no general presumption that a subordinate will depose against his superior for all times to come in all cases. Every thing depends upon facts and circumstances of each case. We find from the deposition of Shri. Vishnu Simepuruskar, from the statements and depositions of one Shri. Arolkar, Shri. S.V. Tar, P.T. Ambre, and others that not just subordinates but others in the department have also demonstrated as to how the petitioner was responsible for violation of the Rules. If the defence of the petitioner is also perused carefully, it is apparent to us that he does not dispute that the vehicles have been registered within the area of his jurisdiction and control without proof of residence and age being placed on record. It is in such circumstances that we refrain from commenting upon the versions of each of the witnesses and their statements in cross-examination. This is not a Court of appeal as has been rightly urged by Shri. Rivonkar. We cannot undertake appreciation and reapreciation of the evidence before the authorities.

       Constitution of India, 1950 - Article 311-Central Civil Services (Classification, Control and Appeal) Rules, 1965, Rule 2(m)-Applicability of.-Term "service" is defined under Rule 2(m) to mean a civil service of the Union. The Rules are applicable to other Government servants, including every civilian Government servant in the defence services, but is in applicable to those persons which are specifically mentioned in Rule 3, clauses (a) to (e).

       Constitution of India, 1950 - Article 311 - Central Civil Services (Classification, Control and Appeal) Rules, 1965, Rule 2(h) - Government servant - Definition of. - The term "Government servant" is defined under Rule 2(h), to mean a person who is a member of service or holds a civil post under the Union and includes any such person in foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority. The term also means a person who is a member of a service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government. It also includes a person in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government.

       Constitution of India - Articles 226 and 227 - Writ petition - Challenging order of dismissal from services and of compulsory retirement - Petitioner, serving as Asstt. Director of Transport, Transport Dept. of Government of Goa - Served with an order of suspension dated 24.12.1996 passed by Governor of Goa as disciplinary proceedings contemplated against petitioner - Charge-sheet served upon him - Directed to submit his written statement in defence - An inquiry proposed in terms of Central Civil Services (Classification Control and Appeal) Rules, 1965, Rule 10(1) - Petitioner allegedly accepted several applications in Form 20, 21, 22 of Rule 47 of Central Motor Vehicles Rules for registration of new vehicles in gross violation of M.V. Act - Petitioner denied charges - Contended his implication mala fide on basis of alleged false affidavits - Filed written statement - Inquiry conducted - Disciplinary authority on basis of report of I.O. imposed penalty of dismissal from services - Review petition filed by petitioner - Governor modified punishment by compulsory retirement - Inquiry commenced within one year of suspension of petitioner - Petitioner fully participated in inquiry - Not prejudiced on that count - Inquiry proceedings not vitiated on account of undue haste on part of I.O. - Vehicles registered within area of petitioner’s jurisdiction and control without proof of residence and age of persons dealing in such vehicles - Petitioner failed to maintain devotion to duties - Lack of devotion to duty can be termed as mis-conduct - Authorities not acted arbitrarily or capriciously - Writ petition deserves to be dismissed.

       Constitution of India, 1950 - Article 311 - Disciplinary enquiry. - As long as there is material on record to indicate that the petitioner acted in a manner which would demonstrate his lack of devotion to duty, it is enough to conclude that the charges are proved. Ultimately departmental inquiry is not akin to proceeding before a criminal Court. The standard is not, proof beyond reasonable doubt but preponderance of probabilities. Merely because fraud and forgery is not established conclusively and depositions and material in that behalf is inadequate, does not mean that the petitioner cannot be faulted for his serious acts of negligence. This is not the case where the petitioner has been proceeded on account of mere negligence or some errors or mistakes in performance of his duties as Asst. Director of Transport. He was proceeded against, for the acts demonstrating lack of devotion to duties and acting in a manner unbecoming of a Government servant. Negligence, carelessness and serious irregularities are but facets of these broader aspects. It cannot be said that lack of devotion and indulging in acts unbecoming of a Government servant would necessarily mean cases of misconduct as are mentioned in Service Rules. Every thing depends upon service to service. In the instant case, the Conduct Rules have been pressed into service and it is not the case of the petitioner before the Inquiry Officer or before us that the failure to maintain devotion to duty and acting in a manner unbecoming of a Government servant would cover only such acts as are termed as "misconduct" under the service regulations.

       In such circumstances, the acts which have been culled out by the Inquiry Officer would make out a case of the petitioner being guilty of serious lapses and irregularities so also negligence of serious nature which can safely be termed as failure to maintain devotion to duties and acting in a manner unbecoming of a Government servant.

       Neither is this case of the Inquiry Officer failing to consider relevant a admissible evidence, nor is it a case of taking into consideration inadmissible and irrelevant evidence. This is a case where one cannot conclude that the concurrent findings of the disciplinary authority and the reviewing authority can be said to be such as no reasonable person could arrive at or they are vitiated for non-application of mind. It cannot be concluded that the authorities have acted arbitrarily, capriciously or highhandedly., so as to frustrate the mandate of Articles 14, 16 and 21 of the Constitution of India.

       Constitution of India, 1950 - Article 311 - Disciplinary enquiry - Challenge of. - The inquiry was commenced within one year of the suspension of the petitioner and in the peculiar facts and circumstances, we do not find this is an unreasonably and unduly long period to vitiate the inquiry. Equally, there is no substance in the contention that the inquiry was concluded hastily and the petitioner was not allowed to defend himself adequately and properly. The petitioner was allowed to inspect such of the files and documents as have been relied upon by the respondents and the Inquiry Officer. Merely because voluminous files and records are produced during the course of inquiry, does not mean that the request to produce equal number of files by the petitioner must be granted. Ultimately, sample cases have been relied upon from these files. The petitioner was aware of these sample cases. The petitioner fully new the charges that he has to meet. He was aware of the background and the facts in which the charges were framed. He was fully aware of the fact that he has been proceeded against on account of his showing lack of devotion to duty in not maintaining the registers as far as registration of the vehicles during the relevant period. That the vehicles have been registered without following the due procedure prescribed in law and that they have been registered by violating and bypassing the mandatory requirements. Such being the nature of charges and sample cases having been brought to the notice of the petitioner and the Inquiry Officer. The witnesses of the respondents being cross-examined, we are of the opinion that the petitioner is not prejudiced in any manner on account of the alleged refusal to produce the documents and files by him. The inquiry is not hastily concluded, but the manner in which the Inquiry Officer proceeded demonstrates that it was with a view to comply with the orders and directions of this Court in a writ petition instituted by the petitioner himself that the Inquiry Officer impressed upon the parties the urgency. The request of the petitioner is to conclude the inquiry expeditiously. The Inquiry Officer has proceeded in this direction and that by itself is no ground to conclude that the inquiry proceedings are vitiated on account of undue haste on the part of the Inquiry Officer.

       Constitution of India, 1950 - Article 311 - Disciplinary enquiry - Request to engage person with legal background - Rejection of. - The petitioner is not pitted against a person experienced in law or with the legal background. The Inquiry Officer who has been appointed in this case is the Managing Director of Goa Construction Housing and Finance Corporation Ltd. The person who was appointed as the Presenting Officer was one time a Deputy Collector. In such circumstances, we are of the opinion that the discretion in refusing the petitioner to be defended by a legal practitioner has been rightly exercised. That apart, the petitioner has fully participated in the inquiry and has not been prejudiced in any manner on that count.