Shri Jos Peter Dsouza vs Mr. Vilas P. Thali, The Law ...
2002 Latest Caselaw 1360 Bom

JUDGMENT

P.V. Kakade, J.

1. This Petition has been filed in public interest by the Petitioner who is a practicing Advocate in Goa. The first Respondent is an Additional Advocate General practicing in Goa and who came to be appointed on 23rd March, 2001 by the Governor of Goa in exercise of his powers under Article 165 of the Constitution of India, upon the recommendation, approval and resolution passed by the Council of Ministers. In this Petition, the Petitioner has prayed for a writ of mandamus directing the first Respondent, the Additional Advocate General to refund to the Government Treasury all the amounts received over Rs. 2000/- per day in appearances from the date of his appointment and for directing the Respondent Nos. 2 and 3 who are the Law Secretary to the Government of Goa and the State of Goa respectively to forthwith stop all the payments which are not in conformity in appearances by the Respondent No. 2 and not to pay the Respondent No. 1 over and above Rs.2000/- per day regardless of the number of cases in which he makes appearances per day. The Petitioner has also prayed for issuance of writ of mandamus directing the Respondent Nos.2 and 3 to take appropriate action against the Respondent No. 1 for appearing in Criminal Cases without due authorisation and to direct the Respondent Nos.2 and 3 to recover the amounts from the Junior Advocates of Respondent No. 1 who have made their appearances alongwith him in Criminal Cases. The Petitioner has also prayed for qua warranto in respect of the appointment of Respondent No. 1 and for quashing and setting aside the Notification dated 23rd March, 2001 by which it refers to Respondent No. 1 who was the Additional Advocate General of the State of Goa. The Petitioner has also prayed for quashing of the Circulars issued by the Law Secretary i.e. the Respondent No. 2 dated 6th October, 2002, 2nd April, 2002 and 21st May, 2002.

2. The first Respondent has filed his Affidavit and has raised preliminary objections to the maintainability of the present Petition. The first preliminary objection is that the Petition has not been filed in public interest and, therefore, ought not to be entertained by this Court. The second objection is that though the Petitioner is challenging the appointment of the first Respondent dated 23rd March, 2001, the Petition was actually filed in October, 2002 and thus, the Petition suffers from laches. The third objection is that the Petition is based on newspaper reports which are basically hearsay and are not admissible in evidence. The last objection is that the relief of issuance of the writ of mandamus which is asked for cannot be granted in the circumstances. The Respondent No. 1 has also challenged the locus standi of the Petitioner to file the Petition.

that the Government would on its own re-scrutinise all the bills submitted by the Respondent No. 1 and in case it is found that any amount has been paid in excess of what the first Respondent is entitled to, the same would be either adjusted in his future bills or recovered from him. At para 9, it is stated in the Affidavit that the appointment of the Additional Advocate General was made by the State "for smooth conduct of Government litigation in this Honble Court, although, it is not a constitutional post. It is further submitted that the State Government is empowered to appoint an Additional Advocate General, if exigencies so demanded". At para 10, it is stated that in so far as the allegations of bills being submitted by Respondent No. 1 is concerned, the State Government even at the highest level is seized of the matter and the same is being examined. In the Affidavit in rejoinder filed by the Petitioner, the Petitioner has stated that the first Respondent has appeared in a number of matters wherein the State has been represented by the Advocate General and has alleged that such appearances were grossly improper and is a drain on the public exchequer. In para 7 of the rejoinder, the Petitioner states that by giving an example that entries at serial nos.1 to 6 which relate to the applications for appointment of Arbitrator, the Respondent No. 1 ought not to be charged separate sets of fees for six matters. Thus, it is stated by the Petitioner in the aforesaid paragraphs that in the applications for appointment of Arbitrator, the bills to the extent of Rs.40,000/- to Rs.50,000/- may have been raised by the Respondent No. 1. We have already made a reference to the Affidavit of Respondent No. 1 and this is what the Respondent No. 1 has to say in his Affidavit at para 28.

"As regards to the Writ Petition No. 351/2001 it is not correct that the respondent No. 1 has put the appearance in person along with his junior colleague. The said Writ Petition was pertaining to the challenge thrown to the appointment of the respondent No. 1 to the said petition as President of the Administrative Tribunal of Goa.

To the said petition the respondent No. 1 herein was impleaded as respondent No. 6 to the said petition in his personal capacity, as the respondent No. 1 herein was one of the members of the selection committee

to the said petition as the President of the Administrative Tribunal. The said petition came up for hearing on the following dates, viz. 28.11.01, 11.12.01, 7.1.02, 9.1.02, 15.1.02, 16.1.02, 4.2.02, 9.7.02 and 24.7.02.

The judgment was subsequently pronounced on 19.9.2002. On none of

herein appeared on behalf of the State of Goa with or without his juniors.

However the L.D.C. working in the office of the respondent No. 1, by inadvertence, while seeking the certificate from this Honble Court as regards to the appearances of respondent No. 1 on 9.7.2002 showed the appearance of the respondent No. 1 as having appeared on behalf of the State Government in the said petition. This mistake apparently occurred as on the cause list of 9.7.02 as also in the appearances shown in the certified copy of the Judgment passed in the said Writ Petition 351/2002 the

herein has been shown in the capacity as "Additional Advocate General in person with Miss S. Linhares, Addl.

Government Advocate for respondent No. 6". The Additional Government Advocate Miss S. Linhares had never appeared in the said matter on behalf of any of the respondents and her name has been shown in the appearance by mistake. Miss S.Linhares has neither sought any certificate in this regard nor has claimed any bill in this regard nor she has been paid anything by the Government on that behalf. The mistake was therefore obvious in the circumstances explained above and it was a genuine mistake. The said bill however, has not yet been paid. The said mistake therefore requires to be corrected and which the respondent No. 1 will correct".

In para 29, it is stated that as regards Writ Petition No. 93/2002 in Letters Patent Appeal No. 7/2002, the Respondent No. 1 had appeared along with the learned Advocate General as was required. As regards Civil Application No. 224/2002 in Writ Petition No. 325/2001, the Respondent No. 1 did not appear. To quote Respondent No. 1, it is stated "however, it appears that the L.D.C. of Respondent No. 1 who takes the certificates of appearances of Respondent No. 1 inadvertently obtained the certificates for appearancs respect of the said Civil Application. The mistake the name of Respondent No. 1 is wrongly shown in the appearances on the cause list.

4. This Court by its Order dated 28th October, 2002, while issuing Rule, directed the State Government to make available all the relevant files and bills of fees etc. to the Petitioner for his scrutiny. The Registry was also requested to place the necessary data in respect of the appearances and the certificates of the Respondent No. 1.

5. Meanwhile, it appears that the Respondent No. 1 filed Special Leave Petition before the Honble Apex Court and the Honble Apex Court by its Order dated 22nd November, 2002 dismissed the Special Leave Petition and however requested this Court to hear and dispose of the matter at an early date if the matter has not been heard as yet. This Bench was aware of the orders of the Honble Apex Court only on 5th December, 2002 when the copy of the order of the Honble Apex Court was received by the Registry. Meanwhile, the Petition has been listed by this Bench on two occasions and the fact is that the order passed by the Honble Apex Court was not brought to the notice of this Bench. According to us, it is a solemn duty of the Counsel appearing for the party who has moved a higher Court to bring to the notice of the Court at the hearing the matter about the orders passed by the higher Court even if the orders are against the party who has gone to the higher Court. Not apprising this Bench of the order passed by the Honble Apex Court is inexcusable and we record our displeasure with great respect to the Counsel for the Respondent No. 1.

6. Be that as it may, an Affidavit has been filed by the second Respondent in which it is stated that the Government has decided to review the entire matter including the Notification regarding the appointment of the first Respondent after this Writ Petition is disposed of.

7. The Petitioner has filed an Affidavit in rejoinder in which he has given details regarding the fees claimed by the Respondent No. 1 for which the Respondent No. 1 was not entitled to. The Registry has placed before us a list of cases wherein the Additional Advocate General as well as the learned Advocate General had appeared. At item No. 24 in Writ Petition No. 59/2002, it is stated that as per the farad, the Respondent No. 1 had not appeared though a certificate to that effect was obtained. Similarly, at item nos.31 and 32, the same position is reflected. Also at item nos.39, 43, 46 and 55 same position is reflected.

8. The Petitioner has placed before us this material which would show that the Respondent No. 1 had billed the Government for his appearances before the Honble Apex Court while at the same time has billed the Government for his appearances at Panaji. In the Affidavit filed by the Respondent No. 1 in para 10, he has stated that the Lower Division Clerk Shri Dhupkar has raised a bill on 6th June, 2002 without noticing that in respect of the same matter the previous bill had been raised based on the same order sanctioning the tour. In para 11, it is stated "that the Respondent No. 1 was not entitled to raise any bill in respect of the order of sanction i.e. Exh. R1 for the period from 6th December, 2001 to 13th December, 2001 and the supplied) The Respondent No. 1 has also admitted in para 12 that relying on his Lower Division Clerk Shri Dhupkar, he did not cross check to see whether the billing was wrong. In respect of the other matters where the farad does not show the appearance of Respondent No. 1, though a certificate is obtained, the Respondent No. 1 has stated that he has in fact appeared in those matters and is not aware as to why his appearance is not shown.

9. Mr. S. K. Kakodkar, the learned Senior Counsel appearing on behalf of the first Respondent has cited authorites before us to show that the appointment of Respondent No. 1 as Additional Advocate General is to a constitutional post. Mr. Kakodkar, the learned Senior Counsel appearing on behalf of the first Respondent has also further urged before us that this point is subjudice before the Honble Apex Court. According to us, the present matter, we are not called upon to decide whether the post of Additional Advocate General, who is appointed by the Governor exercising powers under Article 165 of the Constitution of India is a constitutional post or not. As far as a writ of qua warranto is concerned, the Respondent No. 1 has been appointed to the post of the Additional Advocate General by the Government who had undoubtedly authority to make such an appointment. Mr. Kakodkar, the learned Senior Counsel appearing on behalf of the first Respondent then urged before us that the Petitioner has not made any previous demand to the Government and in the absence of any demand a Writ Petition would not lie. Mr. Kakodkar, the learned Senior Counsel appearing on behalf of the first Respondent has also urged that since the Government has assured the Court that it would re-examine all the bills in respect of Respondent No. 1, the Court should direct the Government to carry out that exercise and an opportunity would be afforded to Respondent No. 1 to explain any deficiency of mistakes occuring in the bill. Moreover, according to Mr. Kakodkar, the learned Senior Counsel appearing on behalf of the first Respondent such an enquiry would be exhaustive which this Court would not be able to undertake in a writ jurisdiction.

10. Mr. A. N. S. Nadkarni, the learned Advocate General has also stated before us that in the fitness of things, the Government be directed to enquire into the irregularities of the bills of the first Respondent and the Government to carry out the scrutiny of the bills expeditiously.

11. The facts in the present case are indeed startling as well as disturbing. The Respondent No. 1 has admitted that inadvertently certain bills have been raised and payment has been received to which, inadvertently according to him he was not entitled to. The Respondent No. 1 has filed an Affidavit to support his plea of inadvertence and mistake. Unfortunately, the Government of Goa has not framed any Rules regarding the appearance and billing of the Government Advocates appearing in matters before the High Court. We are told that Rules have been framed by various other States including Maharashtra. The payment of the Government Advocates for their appearances before the Court is made through the State Exchequer and such fraudulent bills which are paid without proper scrutiny are a burden on the State Exchequer. This is nothing but frittering and squandering away public funds. In fact, we have noted that there is prima facie material on record to show that the acts of Respondent No. 1 may amount to commission of offences under the various laws including Indian Penal Code. The State, therefore, would be well advised to take necessary steps against Respondent No. 1 if the enquiry revealed commission of any offences.

12. We earnestly hope that the Government of Goa would frame proper Rules and impose strict scrutiny of the bills of the Government Advocates to ensure that squandering of Government money does not occur in future.

13. We have given our anxious considerations to the submissions advanced before us and we feel that the Government be directed to scrutinise all the bills of the first Respondent to determine any excess payment made by raising false, bogus or fraudulent bills and direct refund of the bill amount paid in excess and irregularly. The Petitioner has placed before us material which would certainly justify making of such scrutiny at least on prima facie examination of the material. With all judicial restraint at our command, we may observe that the office of the Advocate General and Additional Advocate General as well as Government Pleaders is an office with grave responsibility. If any officer acts dishonestly in such manner, then the citizens at large would lose faith in the very legal system. They would always doubt the competancy and honesty of Law Officers who are supposed to defend the public cause. We are reminded of the observations of the Apex Court in the case of Bar Council of Andhra SCW 4609 wherein it is noted that misappropriation of clients money is an act of grave professional misconduct. Adherance to the correct professional conduct in the discharge of ones duties as an Advocate is the backbone of the legal system. Such misconduct which is not bona fide would undermine the confidence of the litigant public resulting in the collapse of legal system. Therefore, it is in this context the State is enjoined to take up the issue seriously lest the citizen at large should assess the credibility of the State Government on par with that of Respondent No. 1.

14. We, therefore, direct the Government to scrutinise all the bills and place the report of the scrutiny before this Bench within three weeks from today. It is needless to mention that the Government can avail the assistance of the Petitioner while making the scrutiny. It is also needless to mention that the directions issued by us by Order dated 28th October, 2002, while issuing Rule, would merge in the final order.

15. We would be failing in our duty if we fail to recognise and place our appreciation for the sincere efforts which have been taken by the Petitioner who assiduously stuck to his task and has unearthed the fraudulent bills and payment made thereof.

16. This Writ Petition No. 317 of 2002 is allowed on the aforesaid terms. The Government is directed to carry out the scrutiny and report compliance by submitting the report to this Court within three weeks from today. Rule made absolute on the above terms with no order as to costs.