1. The present O.A. is filed for quashing and setting aside the charge memo dated 11.07.2005 with all consequential benefits.
2. The applicant's case is that he is a Member of the Indian Administrative Service. He had a long and distinguished service career and held various important and sensitive postings. He had joined the CIDCO as Vice Chairman and Managing Director on 26.5.2003. It is contended that respondent No. 5 took over as Chief Minister of Maharashtra on 1.1.2004. Soon after he joined as Chief Minister, Shri Ashok Sinha was appointed as Vice-Chairman and Managing Director of CIDCO vide order dated 15.12.2004. It is contended that the applicant was given posting as Chairman, 3rd Maharashtra Finance Commission vide order dated 28.12.2004. The Third Maharashtra Finance Commission had not been constituted by the Governor and thus the applicant could not take over the charge as Chairman. The Third Maharashtra Finance Commission had been constituted by the Notification dated 15.1.2005.
The period of 18 days from 28.12.2004 to 15.1.2005 had been treated as a period on compulsory waiting vide order dated 15.3.2005. It is contended that on or around 1.1.2005 on the oral instructions of Chief Minister, the Chief Secretary ordered Dr. D.K. Sankaran who was working as Additional Chief Secretary (Planning) Maharashtra at that time to look into the land transactions approved by the applicant during his tenure in CIDO with a view to find out discreetly whether such allotments were made as per prevalent policies adopted in CIDCO and rules and regulations governing the functioning of the CIDCO. It is contended that on receiving the report from Dr. Sankaran, the departmental enquiry has been instituted against the applicant under Rule 8 of the All India Services (Discipline and Appeal) Rules 1969 alleging serious irregularities in allotment of land/plots in violation of the Rules, policies involving huge financial loss while applicant was working as a Vice Chairman and Managing Director of CIDCO during the period from 26.5.2003 to 28.1.2004 vide chargesheet dated 2.6.2005.
It is contended that the present applicant had challenged the chargesheet in O. A. No. 308/2005 on the ground ofmala fides and the approval from Governor. It is contended that the Tribunal had set aside the Memorandum dated 2.6.2005 on the ground of serious infirmity of not obtaining the approval of the Governor of Maharashtra.
3. The applicant was transferred from the post of third Maharashtra Finance Commission and posted as Managing Director of MAFCO vide order dated 24.5.2005. The applicant had challenged his transfer dated 24.5.2005 in O.A. 298/2005. The interim injunction restraining the respondents from operating the order of the transfer was con finned by the Tribunal vide its order dated 17.6.2005 which was challenged by the respondents in the writ petition on 1636/2005 before the High Court of Judicature at Bombay. The interim order staying the transfer of the applicant has been set aside by the Hon'ble High Court vide its order dated 4.7.2005. It is contended that respondent No. 5 issued the chargesheet dated 11.7.2005 on the same charges. After setting aside the stay of transfer by the Hon'ble High Court the chargesheet dated 11.7.2005 has been challenged by the applicant in this O.A. on the ground that there is no approval for issuing the chargesheet against the applicant and on the ground of mala fides.
4. The applicant has stated that he was working on the post under the constitution and had been appointed by the Governor of Maharashtra.
Prior approval for issuing the charge-sheet against the applicant should have been obtained by the respondents. The applicant also alleged mala fied in instituting the inquiry against him. According to the applicant when he was working as Principal Secretary, the respondent No. 5 was Chief Minister of Maharashtra. The applicant had raised the question on proposal of slum redevelopment scheme in which respondent No. 5 was allegedly interested. The applicant alleged that because of this stand of the applicant, respondent No. 5 shifted him from the post of Principal Secretary, Housing to relatively low profile job. Further it is contended that while he was working as M.D. CIDCO, the proposal for allotment of land for setting up a Printing Press to the son of respondent No. 5 could not be approved. A proposal was sent by CIDCO to State Govt. in this regard but before Govt. could consider the proposal, the Hon'ble High Court ruled out such allotments. It is further contended that the respondent No. 5 was annoyed as a fine of Rs. 27 lakhs imposed on Manjra Charitable Educational Trust for unauthorized use of premises allotted to them which the applicant did not reduce as the same was not permissible as per policy of the CIDCO.It is contended that as per direction of the Chief Minister, the Chief Secretary ordered on 1.1.2005, his batchmate to discreetly inquire whether any allotment of land made by the applicant was contrary to the established rules and conventions.
5. The respondent Nos. 1, 3 and 4 appeared and resisted the claim of the applicant. It is contended that the Tribunal has set aside the Memorandum dated 2.6.2005 on the technical ground that the applicant was functioning as Chairman of TMFC, the Tribunal had stayed the order of transfer of the applicant dated 24.5.2005 to Managing Director of MAFCO and approval of the Governor is necessary before issuing such memorandum dated 2.6.2005. It is contended that the State Government has filed the Writ Petition No. 1636/ 2005 before the Hon'ble High Court against the stay of transfer. The High Court has set aside the interim order on 4.7.2005. As the High Court vacated the interim order of the Tribunal, the order of the transfer being enforceable due to the direction of the High Court, the Competent Authority under All India Service (Discipline & Appeal) Rules, 1969 issued the chargesheet dated 11.7.2005 with the approval of the Government.
6. The respondents denied the contention regarding the mala fides. The respondent contended that the CIDCO has allotted the plot at Sanpada to M/s. Amit Publication Pvt. Ltd. in November, 2001. However, the said allotment order stood revoked due to non-payment of lease premium and non-submission of Audit Bureau of Circulation Certificate. Thereafter, the CIDCO, Board of Directors, reconsidered the case of allotment to M/s. Amit Publication on 5.2.2004 and submitted the proposal to Govt.
of 23.3.2004 for its consideration but before the Govt. could consider the proposal, the Hon'ble High Court of Bombay vide its order dated 29.4.2003 cancelled the said allotment. It is contended that the applicant was not responsible for the same and thus there is no reason to hold grudge against him on this count.
7. It is further contended that Manjra Charitable Educational Trust is an independent legal entity and the penalty on the Trust was imposed in January 2003. The applicant joined in May 2003. The applicant cannot be held responsible for penalty imposed.
8. It is contended that the Director of Housing Development and Improvement India P. Ltd. had given a proposal of development of Land bearing CTS No. 608 (pt) and CTS No. 341 (pt), Anand Kanekar Marg, Bandra (E) under SRA Scheme vide letter dated 17.6.2002. In this regard, the then Chief Minister had directed to the then Chief Secretary (Housing) to examine and consider the proposal. Accordingly, department has called proposal along with remarks from MHADA and SRA vide letter dated 26.6.2002. As per this letter MHADA submitted its proposal vide their letter dated 27.6.2002 and 2.7.2002. However, MHADA's proposal was not self-contained and it was not mentioned under which rules and in what respect Govt.'s orders are required for the proposal. Hence, the then Principal Secretary (Housing) asked MHADA to submit self-contained proposal staying under which clause and in what respect Govt.'s orders are required for the proposal vide lettere dated 10.7.2002 and 16.7.2002. Considering the proposal of MHADA, Govt's approval has been communicated to MHADA vide department's letter dated 9.8.2002. The allegations made by the applicant are false and baseless.
9. It is further contended that the enquiry was preliminary in nature and can be carried out any officer equivalent to the rank of the applicant. There is no legal bar for a batchmate making preliminary enquiry. It is also contended that it is not necessary to give access to the Govt. Servant on the report of preliminary enquiry. It is contended that the applicant was not working on the post under the constitution and he was not beyond the administrative control of the respondents. No concurrence of Governor is needed.
10. The applicant also filed the rejoinder and reiterated his contentions in the O.A.11. Heard the applicant in person and Mr. V.S. Masurkar for the respondents.
12. The applicant submitted that the respondent Nos. 5 and 6 did not file their written statement and thus averments made in the O.A. are not controverted by them. Thus, those should be presumed to have been admitted by them. The applicant relied on Naseem Bano Smt. v. State of UP and Ors. 1993 Suppl.(4) SCC page 46 : 1993(3) SLJ 89 (SC).
13. The applicant further submitted that the Disciplinary Authority is so much biased against him that he refused to take congnizance of the reply to the chargesheet submitted by him which was sent by E-mail on the ground that it is not signed. The applicant submitted that his appointment is under the statute on the post of Chairman TMFC and the Appointing Authority is the Governor, the administrative control has been shifted from Govt. to the Governor. He submitted that it was necessary for the respondents to obtain prior approval from Governor before initiating the departmental proceedings. The earlier chargesheet filed against him has been quashed and set aside by the Tribunal on the same ground. No approval from the Governor has been obtained by the respondents while issuing the present chargesheet on the same charges.
He submitted that the present chargesheet was issued on 11.7.2005 when stay of transfer was vacated by the Hon'ble High Court on 4.7.2005. He submitted that the O.A. 293/05 challenging the transfer dated 24.5.2005 from the post of Chairman TMFC to Mg. Director, MAFCO has been partly allowed by this Tribunal vide its order dated 22.2.2006. Thus, the applicant continued to be the Chairman of TMFC. The approval for issuing of the chargesheet was necessary. He submitted that the order in earlier O.A. 308/2005 has become final as the respondents did not file appeal or writ against the order in question.
14. Applicant further submitted that the chargesheet dated 11.7.2005 is actuated by malice and colourable exercise of power on the part of the respondent No. 5. He submitted that respondent No. 5 is so biased that the enquiry is mere farcical show and conclusions are already known. He also submitted that the enquiry conducted by the respondent No. 6 which forms the basis of the chargesheet is conducted for gross violation of principles of natural justice. The applicant submitted that the Enquiry Officer Asoke Basak is not expected to act neutrally in the inquiry. He apprehends that he is biased against him. He submitted that the chargesheet is the outcome of grossma/a/jde.j. The applicant quoted thjee incidents viz. His objection to the Slum Development Scheme, non-allotment of plot/land to M/s. Amit Publication and not agreeing to reduce the fine imposed on Manjra Charitable Educational Trust as detailed in the O.A. He submitted that his case is squarely covered by the judgment in the case of State of Punjab v. V.K. Khanna and Ors. in 2001(2) SCC 330 : 2001(3) SLJ 402 (SC).
15. He also submitted that his transfer from CIDCO on 15.12.2004 without giving him posting is a manifestation of respondent No. 5's evil designs to humiliate him. According to the applicant normal procedure of processing the preliminary report is not followed. The applicant was not given an opportunity to clarify the position before preparing the report.
16. On the other hand the learned Counsel Mr. V.S. Masurkar submitted that there is no legal bar for making preliminary enquiry to the Batchmate of the applicant. The learned Counsel also submitted that it is not necessary to have access to the applicant during the course of preliminary enquiry. The enquiry being preliminary in nature can be carried out by any officer equivalent of applicant's rank.
17. The learned Counsel Mr. Masurkar further submitted that the truth and correctness of the charges cannot be the matter of Tribunal to go into at stage prior to the conclusion of the judicial inquiry. The learned Counsel relied on the judgment in the case of UOI and Anr. v.Ashok Kacker 1995 SCC (L and S) page 374. He also relied on the judgment in the case of Transport Commissioner of Madras v.Radhakrishna Moorthy . He submitted that the O. A. is totally premature. According to the learned Counsel the applicant can take all the pleas before the Competent Authorities and not before the Tribunal. He submitted that the Disciplinary Authority is a statutory authority and hence unless the statutory authority complies with its duty by passing an order of punishment the question of judicial review at this interlocutory stage does not arise. According to him, the disputed question of fact yet to be decided by the Disciplinary Authority.
18. The learned Counsel further submitted that the transfer of the appl icant from TMFC to MAFCO was with the approval of the Governor. The applicant is governed by the All India Service (Discipline and Appeal) Rules, 1969. Thus, the applicant's objection relating to non-approval of Governor, in respect of the chargesheet in question docs not arise.
The learned Counsel also submitted that the authority competent to dismiss or remove the official need not itself initiate to conduct the enquiry proceedings in absence of any express rule required to do so.
The learned Counsel in that respect relied on State of U.P. and Anr. v.Chandrapal Singh and Anr. 2003 SCC (L and S) 556 and P.R.R. Nair v. UOI and Ors. 2004(4) SLR 147 (Delhi HC).
19. We have considered the rival submissions and perused the case laws cited by the applicant and learned Counsel for the respondents. It is not disputed that the applicant had filed the O.A. 308/2005 challenging the chargesheet dated 2.6.2005 on the ground of mala-fides and absence of approval by the Governor. The said O.A. was allowed by the Tribunal by its order dated 1.7.2005 and the chargesheet was quashed and set aside for want of necessary approval from the Governor. It is also apparent that the State did not prefer appeal or the writ against the order in question. Thus, it appears that the State accepted the position of approval of the Governor before issuing the chargesheet was necessary so long as he was under the administrative control of the Governor in the capacity of Chairman of TMFC. It is also apparent that the present chargesheet dated 11.7.2005 on the me charges has been issued to the applicant without obtaining the approval for the same.
20. It is also apparent that the applicant had filed the O.A. 293/05 for quashing and setting aside the transfer order dated 24.5.2005 moving the applicant from the post of Chairman TMFC and posting him as Mg. Director of MAFCO at Mumbai. It is also apparent that the transfer order was stayed by the Tribunal on 1.6.2005 and the Tribunal declined to vacate the stay in question vide order dated 17.6.2005. The respondents had filed the writ petition bearing No. 1636/2005 against stay of transfer. The Hon'ble High Court set aside the Tribunal's order dated 17.6.2005 and directed the Tribunal to dispose of the O.A. in accordance with the law without being influenced by whatsoever has been stated in their order dated 4.7.2005.
21. It is also apparent that the Tribunal by its order dated 2.9.2005 quashed and set aside the transfer order dated 24.5.2005. The respondents again filed the Writ Petition No. 2694/ 2005 in the High Court of Judicature which was allowed by the Hon' ble High Court and the order dated 2.9.2005 passed by the Tribunal has been quashed and set aside and the case was remanded to the Tribunal for considering the O.A. afresh vide its order dated 13.12.2005.
22. After remand of the matter by the High Court vide order dated 13.12.2005 the Tribunal vide its order dated 22.2.2006 partly allowed the O.A. in question. The Tribunal in Para 20 of the order has observed that "the order dated 24.5.2005 transferring the applicant from the post of Third Maharashtra Finance Commission and posting him as Managing Director of MAFCO suffers from grave infirmity and therefore cannot be sustained." The transfer order dated 24.5.2005 was challenged by the applicant on the grounds of mala fides and for not obtaining the approval of the Governor. The applicant had quoted the same incidents in the present O.A. as in O.A. 293/2004 for proving themalafides against the respondent No. 5. viz. applicant's objection to the Slum Development Scheme, Non-allotment of the land to M/s. Amit Publications and applicant not agreeing to reduce the fine imposed on Manjara Charitable Educational Trust. The Tribunal while disposing the O.A. has considered all the three allegations and held that themalafidecixnnot be proved. The same incidents have been narrated by the applicant for proving mala fides on the part of the CM. for issuing the chargesheet initiating Departmental proceedings. The applicant did not challenge the finding which has gone against him on the point of mala fides before the higher forum. The finding regarding the mala fide on the basis of same alleged three incidents has become final. There remains no question to reconsider the mala fides against the same Chief Minister on the same facts and incidents which were already considered in the earlier O.A. 293/2004.
23. It is brought on record by the respondents that the Public Concern for Governance of Trust and Charitable Trust had filed the PIL bearing No. 43/2005 in the High Court of Judicature, Bombay challenging the allotment of plots of Palm Beach of six Demo Co-Operative Housing Societies floated by builders and developers. The said PIL has been disposed of by the Hon'ble High Court vide its order dated 23.11.2005.
The Hon'ble High Court in Para 141 of its order observed that "Thus, what we find is that there is a complete dereliction of responsibility on the part of the then Managing Director of CIDCO and whosoever were in charge of this project. Merely because the then Chief Minister had asked them to process early, they have given a complete goby to scrutiny. In Para 18-D of the petition, the petitioner have submitted that the persons concerened should be held accountable. In view of what is acted above, we expect the authorities of the State Government and CIDCO to take appropriate actions against the persons concderned so that this kind of deviation does not take place in future." The PIL was allowed by the Hon'ble High Court and the allotments made to the six Housing Societies by letters of Indent of CIDCO dated 26.3.2004 are 6.5.2004 are quashed and set aside and ordered that all the rights of the persons who have entered into the agreement concerning the development of these plots will stand extinguished. It is submitted by the applicant that he has moved in SLP before the Hon'ble Supreme Court against the order of the High Court as he was not party to the PIL in question but the fact remains that the observations of the Hon'ble High Court as mentioned in Para 141 of their order cited above, have not been stayed by the Hon' ble Apex Court.
24. It has come on record that the Government on 1.1.2005 ordered preliminary enquiry against the applicant for allotment of land in violation of the rules and policies. Dr. D.K. Shankaran was directed to conduct the enquiry who submitted his detailed report containing three volumes on 31.3.2005 to the Govt. in which he found that there is huge financial loss to the tune of 375 crores in alleged allotment of plots.
On consideration of the report of Dr. D.K. Shankaran, Govt. decided to initiate the disciplinary proceedings against the applicant under the provisions of All India Services Disciplinary and Appeal Rules 1969 It appears that the Govt. action against applicant has been strengthened by the observations of the High Court in Para 141 of the order in PIL.
25. We have mentioned that the finding in respect ot'malafidehas been already decided by the Division Bench of this Tribunal on the same allegations and incidents narrated by the applicant in the O.A.293/2004 against which no appeal has been preferred. In the circumstances we are not required to give the finding on the same issue which is already decided by the Competent Authority.
26. We have discussed that the applicant has been chargeshected on 11.1.2005 on the same charges after vacating the stay on his transfer by the Hon'ble High Courl. It is not disputed that after the remand of O.A. 293/2005 the Tribunal after hearing the parties allowed the O.A.by its order dated 2.9.2005 and quashed and set aside the order dated 24.5.2005. The respondents had filed the Writ Petition No. 2694/05 in the High Court of Judicature which was allowed by the Hon'ble High Court and the order dated 2.9.2005 passed by the Tribunal has been quashed and set aside and the case was remanded to the Tribunal for considering the O.A. afresh vide its order dated 13.12.2005. We have mentioned that after the remand of the case the Tribunal has partly allowed the O.A. 22.2.2006 and held that the transfer order dated 24.5.2005 transferring the applicant from the post of Chairman, TMPC and posting him as Mg. Director, MAFCO suffers from grave infirmity and therefore cannot be sustained. As the transfer order dated 24.5.2005 is held to be not sustainable the applicant is to be held as continued on the post of Chairman, TMFC on 11.7.2005 when the chargesheet in question was issued to the applicant. The respondents ought to have obtained the approval from the Governor.
27. We have mentioned that the chargesheet was issued after the stay on transfer had been vacated. As the transfer off the applicant dated 24.5.2005, has been held as illegal, the applicant still remains under the control of the Governor. He is presumed to be holding the position of Chairman of Third Maharashtra Finance Commission under Constitution of India. The impugned Memorandum dated 11.7.2005 in the name of Governor of Maharashtra is under the delegated powers of the Governor, it does not amount to the approval of Governor of Maharashtra while issuing the impugned memorandum the applicant was holding the constitutional post of Chairman, TMFC and was not working under the administrative control of the State Govt., but was working under the administrative control of the Governor the approval of H.E. Governor was necessary for initiating action against the applicant. It is undisputed that such approval has not been taken from the H.E. Governor when the chargesheet in question was issued to the applicant. We have already mentioned that earlier chargesheet dated 2.6.2005 had been set aside by this Tribunal vide its order dated 1.7.2005 on the ground that the chargesheet had been issued without the approval of the Competent Authority i.e. the Governor. The Stale did not appeal against the order in question. Thus, the finding of the Tribunal that without approval of Governor chargesheet is not maintainable, has become final.
28. We have perused the case laws cited by the Counsel for the respondents in Chandrapal Singh's and P.R.R. Nair's case (supra) which are not helpful to the applicant in the present case as the facts in those cases differ from facts in the present case. In the present case, the applicant is under the administrative control of the Governor of Maharashtra and the chargesheet is filed without the approval of the H.E. Governor of Maharashtra.
29. We have mentioned above that the respondents have not taken the approval from the Governor to issue the chargesheet to the applicant.
In view of this serious legal infirmity the impugned charge Memorandum dated 11.7.2005 is required to be quashed and set aside We order accordingly. Accordingly the O.A. is allowed. No order as to costs.