STATE OF MAHASHTRA Vs. ANAND TAYAPPA LADI

JUDGEMENT

(1.) The Respondents in this revision petition are being prosecuted for the commission of offences punishable under section 161 of the Indian Penal Code and section 5 (2) read with section 5(1) (d) of the Prevention of Corruption Act, 1947. Before the trial Court in Special Case No.7 of 1981 a preliminary objection was raised that since the sanction to prosecute the accused is not granted by the proper authority the-accused are entitled to be discharged. This preliminary objection was upheld, by the learned Special Judge who passed an order of discharge by the order dated the 22nd of January 1985. Being aggrieved by this order of discharge, the State Government filed the present criminal revision application. When the matter came before Daud, J., a decision of Mehta J. in The State of Maharashtra v. Babulal and another1 was cited before him. 1. Criminal Revision Application No. 311 of 1984 decided by Bombay High Court on 29th jf August 1985. However, the learned Judge found it difficult to agree with the view of Mehta, J. and, therefore, the matter is placed before this Division Bench. Mr. Kachare the learned counsel appearing for the Applicant contended before us that it is an admitted position that the accused persons were employed by the Bombay Housing and Area Development Board since 1962. Therefore they were governed by the provisions of the Bombay Housing and Area Development Act as well as the regulations framed there under. By the Maharashtra Housing and Area Development Act 1976, the Bombay Housing Board Act came to be repealed. However, in view of the saving clause the regulations framed under an earlier enactment continued to be in force. Further, if the various provisions of the Act are read together harmoniously, a conclusion is inevitable that the Vice Chairman - cum - Chief Engineer - cum - Chief Officer was the competent Officer to accord sanction for prosecution since he had power to remove the respondent - employees from services Hence the sanction granted by him was perfectly legal and valid and the learned Special Judge committed an error in coming to the conclusion that the prosecution was vitiated for proper sanction. On the other hand, it is contended by Miss Kasle that after the coming into force of the Maharashtra Housing and Area Devel pment Act 1976, the respondent employees became employees of the Authority. If this is so then the Authority alone had power to grant sanction and the sanction granted by the Vice-Chairman was wholly illegal.

(2.) With the assistance of the learned counsels appearing for both sides, we have gone through the relevant provisions of the Act. However, it is not necessary for us to make a detailed reference to the various provisions of the Act since, in our view, the question raised before us is squarely covered by the decision of pendse, J. in Biro L. Thadani v. S.B. Salvi and others2. Dealing with a somewhat similar question, this is what Pendse, J. has observed therein: The first submission urged by the petitioner to challenge the legality of the 2. Original Side Miscellaneous Petition No. 507 of 1979, decided by Bombay High Court on 23rd of April 1981. impugned order Is that the order of dismissal was not passed by the competent authority as the Vice Chairman of the Board did not have power to dismiss him. In this connection it would be necessary to make reference to the provisions of the Bombay Housing Board Act, 1948. Section 4 of this Act provides for constitution of Board and amongst the members are the Chairman and Vice Chairman appointed by the State Government. Section 13 of the Act provides that the remuneration and other conditions of service of the Housing Commissioner and other Officers and servants of the Board shall be such as may be determined by regulations. Section 67 (1)(c) enables the Board with the previous sanction of the State Government to make regulations in respect of remuneration and conditions of service of the officers and servants of the Board. Accordingly regulations were framed and Regulation 1 (a) provides as under: All the staff, officers and other servants employed and to be employed in the Housing Organization, including Estate Manager, Legal Adviser and his unit and Chief Accounts Officer and his staff, shall be under administration, control of and subordinate to the Housing Commissioner who is a member/Secretary of the Maharashtra Housing Board. The Housing Commissioner shall be the Head of the Department and controlling officer for the whole Housing Organization. The Bombay Housing Board Act, 1948 was repealed by Maharashtra Act No. XXVIII of 1917. The amended Act is known as the Maharashtra Housing and Area Development Act, 1976. Section 18 of the amended Act provides for establishment of four Boards, each one for Bombay Area, Vidharbha Region, Aurangahad Area and for remaining areas of the State. Sub-section (2) of section 18 provides that the Board shall consist of a Chairman and not more than 14 of the Members including the Vice-Chairman. The Government of Maharashtra by its Resolution dated December 5. 1977, equated the post of the Vice Chairman and Housing Commissioner, Maharashtra Housing Board with that of the Vice Chairman-cumChief Engineer of the Bombay Housing and Area Development Board established under section 18 of the new Act. The 1977 Act enables the Authority to make regulations under section 185 and under section 22 (1) in respect of existing employees and section 19(4) in respect of employees appointed by the Authority under the new Act and in respect of remuneration and other conditions of service. Section 188 of the new Act provides for repeal and savings, while section 189 provides for consequences of repeal. The provisions of these two sections make it clear that the existing regulations framed under section 67(1)(c) of the Bombay Housing Board Act, 1948 would remain in operation so long as the fresh regulations are not framed, provided the existing regulations are in no manner in conflict with the provisions of the new Act. Apart from the provisions of sections 188 and 189 of the new Act, section 25 of the Bombay General Clauses Act permits the Authority to act upon the existing regulations as long as the new regulations are not framed. Turning to the existing regulations, it is clear from the Regulation 3 that the Board shall follow as far as possible the Bombay Civil Service Conduct, Discipline and Appeal Rules in holding disciplinary enquiries against its employees. Rule 34 of the Bombay Civil Service Conduct Discipline and Appeal Rules, enables the Head of the Department and the Head of the Office to impose any of the penalties mentioned in Rule 33. Rule 33 inter-alia prescribes dismissal from the civil service as one of the punishment. The petitioner complains that as he was appointed by Assistant Housing Commissioner, his dismissal by the Vice Chairman of the Board, who is of the rank of the Housing Commissioner, was not justified. The grievance of the petitioner has no merit. It is obvious from the Rules pointed out hereinabove that the Vice chairman, Bombay Housing and Area Development Board, is the, Head of the Housing Board and is an officer superior in rank to the appointing authority i.e. the Assistant Housing Commissioner and as such was perfectly competent to pass the order of dismissal The grievance of the petitioner on this count is without any merit and was rightly repelled by the Appellate Authority.T It is not disputed before us that under the regulations framed by the Board the Housing Commissioner was the competent authority to remove the respondent-employees. By Government of Maharashtra Public Works and Housing Department. Resolution dated the 5th of December 1977, Vice. Chairman-cum-Chief Engineer-cum-Chief Officer is designated as Head of the Bombay Board. If this is so, then it cannot be disputed that he was the competent Officer who could have removed the respondent-employees from services. In view of this the sanction granted by him was perfectly legal and valid.

(3.) In this context, a reference could also be made to a subsequent decision of Pendse, J. in Anthony Fernandes v. Shri Satish Tripathi and another3 wherein reference is made to his earlier decision. While reiterating the view earlier taken, this is what Pendse, J. has stated: Shri Hegde urged that the services of the petitioner were assigned to the Bombay Board under the Authority and it was not open for the Vice-Chairman of the Bombay Board to pass the impugned order. It is not possible to accept the submission of the learned counsel. Under the Regulations framed under Bombay Housing Board Act, which are in operation the power to remove Board servants from service or to require them to retire on the ground of misconduct, insolvency or inefficiency has been delegated to the Housing Commissioner while delegating the authority. Condition has been imposed that the power should be exercised in accordance with the Bombay Civil Service (Conduct, Discipline and Appeal) Rules. The Government has issued a notification dated December 5. 1977 equating the post of Housing Commissioner with that of Vice-Chairman/Chief Officer of the Bombay Housing Board. It is, therefore, obvious that powers have been delegated to respondent No.1 for taking action of compulsory retirement of the employees. It was also urged by Shri Hegde that as the petitioner at the relevant time was working under Aurangahad Board, it was not open for respondent No.1, who is the Head of the Bombay Board to take action. The submission cannot be accepted because the Government of Maharashtra has issued Circular dated May 25th 1978 clarifying that the departmental proceedings and the disciplinary actions instituted by the appointing authorities of the erstwhile Maharashtra Housing Board against the employees of present Pune and Aurangahad Board need not be transferred to those Boards but be finalised by the appointing Authorities of the Bombay Regional Board. In view of this clear-cut provision in my judgment there is no merit in the submission that respondent No. 1 is not competent authority. A similar question arose for my consideration and by my judgment dated April 23, 1981, I came to the conclusion that the order passed by the Vice-Chairman of the Board who is of the rank of the Housing Commissioner, was perfectly justified. My Judgment was carried in appeal before the Division Bench and so also to the Supreme Court, but was upheld. I do not see any reason to different view in the present case.