TMI Blog2013 (3) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... e point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber? Whether the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved? Whether the complainant as well as Shri C.B. Gajjar, Advocate had been talking about the appellant’s husband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried? Whether there is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for misappropriation? - CIVIL APPEAL NO. 2668 of 2005 - - - Dated:- 18-3-2013 - CHAUHAN, B.S (DR) KALIFULLA AND FAKKIR MOHAMED IBRAHIM, JJ. JUDGEMENT Dr. B.S. Chauhan, J: 1. This appeal has been preferred against the impugned judgment and order dated 25.8.2004, passed in Special Civil Application No.5759 of 1999, by way of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed Mama used to visit her quite frequently. However, it could not be proved that he had ever misused his association with the appellant in any respect. All other charges were found unsubstantiated. E. In pursuance of the report submitted by the Enquiry Officer, the matter was examined on the administrative side by the High Court, and after meeting various legal requirements i.e. issuing show cause notice to the appellant and considering her reply, the Court vide resolution dated 12.10.1998, made a recommendation to the State that the appellant was guilty of the first charge, and thus, punishment of compulsory retirement be imposed on her. The Government accepted the same and issued a notification giving compulsory retirement to the appellant on 11.12.1998. F. Aggrieved, the appellant challenged the said order of punishment, by filing a Special Civil Application No.5759 of 1999 before the High Court on the ground that the findings of the Enquiry Officer were perverse and based on no evidence. However, the said civil application was dismissed by the High Court, vide impugned judgment and order dated 25.8.2004. Hence, this appeal. 3. Ms. Mahalakshmi Pavani, learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of demand of bribe, and an agreement to accept the same in installments, stands fully proved. Rule 6 of the Gujarat Civil Services (Discipline Appeal) Rules, 1971, provides for major penalties in the event that a charge is proved against the delinquent, which include reduction to a lower stage in the timescale of pay for a specified period; reduction to a lower time scale of pay; compulsory retirement; removal from service and dismissal from service. The High Court was lenient and only imposed a punishment of compulsory retirement, otherwise it was a fit case where the appellant ought to have been dismissed from service. There is ample evidence on record to establish the charge of corruption against her, which has been properly appreciated by the Enquiry Officer, as well as by the High Court. Standard of proof required in a case of Departmental Enquiry is not that of beyond reasonable doubt , as required in a criminal trial. Moreover, the scope of judicial review is limited in such a case. Thus, no interference is called for. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. It may be pertinent to deal with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se was of a far graver dimension. Hence, the said decision was not of any help to the appellant for mitigation of the quantum of punishment. D. In Noor Aga v. State of Punjab Anr, AIR 2009 SC (Supp) 852 , it was held that the departmental proceeding being a quasi judicial one, the principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles. (See also: Roop Singh Negi v. Punjab National Bank Ors, AIR 2008 SC (Supp) 921; Union of India Ors. v. Naman Singh Sekhawat. (2008) 4 SCC 1; and Vijay Singh v. State of U.P. Ors. AIR 2012 SC 2840) E. In M. S. Bindra v. Union of India Ors , AIR 1998 SC 3058, it was held: While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim Nemo Firut Repente Turpissimus (no one becomes d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for Rule of law .. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. (b) In Yoginath D. Bagde v. State of Maharashtra Anr, AIR 1999 SC 3734, it was held: The Presiding Officers of the Court cannot act as fugitives. They have also to face sometimes quarrelsome, unscrupulous and cantankerous litigants but they have to face them boldly without deviating from the right path. They are not expected to be overawed by such litigants or fall to their evil designs. (c) A subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure - contestants and lawyers breathing down his neck. If the fact that he renders a decision which is resented by a litigant or his lawyer were to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence. (Emphasis added) (iii) The decisions referred to hereinabove highlights clearly, the parameter of the Court s power of judicial review of administrative action or decision. An order can be set-aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made. The Court will not norma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Co. at Mehasana, and at the relevant time, was facing a criminal case for mis-appropriation of money, and for producing up false documents. His case was initially tried by Shri Bhatt, the then Chief Judicial Magistrate in 1991 and he happened to give him long adjournments. Later when the appellant was hearing the case, only short adjournments were granted. Pankaj Pancholi, who was practicing as an advocate in the High Court, was engaged by him. Initially he had got the case adjourned twice, but he could not attend on the subsequent dates. As a result the appellant started examining the witnesses even in his advocate s absence. The appellant had instructed the complainant-accused to keep his advocate present, or to make an alternative arrangement. The case was fixed for 13.8.1993, and on that date, on the instructions of Shri Pancholi, Shri C.B. Gajjar, advocate came to the court. He got the complainant-accused to sign his vakalatnama. Shri C.B. Gajjar had told him not to worry as he was having very good relations with the appellant, and he would be able to get adjournments. He sought adjournment and the appellant fixed the case for 20.8.1993. Shri C.B. Gajjar called the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, with a view to obtain his fee from you, whether Shri Gajjar had demanded the same using the name of the magistrate? Answer: I do not want to say anything in this regard. 10. Shri C.B. Gajjar, advocate, deposed that Shri P.K. Pancholi, advocate had told him that the complainant-accused was brother of his brother-in-law, so he could not ask him to pay any fee. Thus, it was agreed that he should ask the complainant-accused to pay ₹ 20,000/-, as the amount was to be given to the appellant as a bribe to get a favourable order. Thus, in view thereof, he had told the complainantaccused that he had to pay ₹ 20,000/- to the appellant to get a favourable order. In his cross-examination, he deposed as under: I went to Miss Jhala s court on 13.8.1993 in morning in Gautambhai Jani s case and after that never went there. I did not go into the Chamber of Miss Jhala on 17.8.1993. No talk has taken place with her for money at any time. .Miss Jhala has not made any such demand. Shri C.B. Gajjar further admitted that the appellant was unmarried. Further, he admitted that he was called by the Vigilance Officer and he made the statement before him. He admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood in front of the door near the chamber so as to able to get an idea of the talk in the chamber. According to him, when Shri Gajjar talked about instalment Miss Jhala initially refused but when Shri Gajjar made a request, she agreed to give instalment of ₹ 5,000/-. Shri Jani then gave the following account of what happened in Yamuna Restaurant on 28.8.1993. However, the gravest and clinching circumstance against Miss Jhala is the fact that Shri Gajjar called Shri Jani to meet him outside her chamber at 4.45 p.m. on 17.8.1993 and demanded ₹ 20,000/- after a meeting with her in her chamber no doubt both Miss Jhala and Shri Gajjar had denied this allegation. However, the tenor of Shri Gajjar s statement before the Vigilance Officer shows that the meeting in the Yamuna Hotel on 20.8.1993 was in pursuance of the previous talk between Shri Jani and Shri Gajjar. On 13.8.1993, Shri Gajjar had left the court after getting the case adjourned and there was no talk about any payment at that time. The meeting, therefore, took place after 13.8.1993 and before 19.8.1993 when Shri Jani sent to the CBI Officer and made the complaint. In the circumstances, there is no reason to disbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting outside the chamber of the petitioner on 17.8.1993 at about 5 o clock in the evening and that Shri Gajjar had gone inside the chamber of the petitioner twice and demanded money on her behalf from Shri Jani to decide the case in his favour has been believed by the Enquiry Officer as well as by the High Court in its recommendations. There are number of reasons why the said conclusions appear to be eminently just. At no point of time, the petitioner has alleged any animosity or illwill between her and Shri Jani. Neither in the crossexamination of Shri Jani, nor in her deposition before the Enquiry Officer, the petitioner has even remotely suggested any ill-will between them so as to falsely implicate the petitioner. We have also recorded earlier that Shri Gajjar and Shri Jani had assembled outside the chamber of the petitioner on 17.8.1993 and Shri Gajjar had entered the chamber of the petitioner twice when the petitioner was in her chamber demanded an amount of ₹ 20,000/- on behalf of the petitioner, there is absolutely no crossexamination of Shri Jani by the petitioner. Lack of challenge to this most crucial element of the evidence fully justified the findings of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the petitioner was fixed on 13.8.1993 and thereafter adjourned to 20.8.1993 and on 20.8.1993, it was again adjourned to 28.8.1993. We, therefore, to verify the dates, called for the calendar of the year 1993. The calendar of 1993 showed that August 28 was a 4th Saturday, and therefore a non-working day for the court. ..We also find that the size of the paper on which the rozkam for the dates prior to 13.8.1993 was different from the size of preceding and succeeding papers. Discolouration of this page also seen different from other pages and therefore raise suspicion. 17. The High Court has rightly disbelieved the statement of the complainant-accused that he could hear the conversation between the appellant and Shri Gajjar. The said evidence was also discarded by the Enquiry Officer. Further allegation that the appellant had threatened the said complainant-accused to withdraw the complaint was also found to be false. The entry of Shri C.B. Gajjar into the chamber of the appellant on 17.8.1993, was not corroborated by any other evidence. Shri C.B. Gajjar himself had also denied the same. More so, the High Court has reached the conclusion by shifting the burden of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held. 21. Similarly in Chiman Lal Shah v. Union of India, AIR 1964 SC 1854, a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex-parte, for it is merely for the satisfaction of the government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the government as to whether a regular inquiry must be held. The Court further held as under: ..There must, therefore, be no confusion between the two inquiries and it is only when the Government proceeds to hold a departmental enquiry for the purpose of inflic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also: The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 SC 1352; State (Delhi Admn.) v. V.C. Shukla Anr., AIR 1980 SC 1382; Dalpat Kumar Anr. v. Prahlad Singh Ors., AIR 1993 SC 276; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570). 27. The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused/complainant and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17.8.1993, as he had stated that he had asked the accused/complainant to pay ₹ 20,000/- as was agreed with by Shri P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar , complainant, has definitely reiterated the stand he had taken in his complaint. The chargesheet served upon the appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice. iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry. iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993. v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber. vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved. vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about the appellant s husband ..... X X X X Extracts X X X X X X X X Extracts X X X X
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