TMI Blog1999 (9) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to a murder in which the appellant had refused long adjournments on the ground that the matters were old. In July, 1990, the accused Deepak Trimbakrao Deshmukh filed a transfer petition before the Nagpur Bench of the Bombay High Court for the transfer of the case from the appellant's court to some other court on the ground that one Shri Patil, Advocate, who was opposed to Deepak Trimbakrao Deshmukh, was very close to the appellant and, therefore, Deepak Trimbakrao Deshmukh apprehended that he would not get justice from the appellant's court. This was registered as Transfer Petition No. 701 of 1990. On 10th of August, 1990, the accused Deepak Trimbakrao Deshmukh filed another Transfer Petition (No. 812 of 1990) on the allegation that his Advocate (Shri Bapat) had assured him of his acquittal in the case, provided he would pay ₹ 20,000/- to him as his fee. An interim order was passed in this case by which the proceedings in the Sessions Trial were stayed. On 18th September, 1990, however, Deepak Trimbakrao Deshmukh withdrew both the Transfer Petitions. Thereafter, Deepak Trimbakrao Deshmukh made a complaint against the appellant to the High Court as a result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, tentatively decided to impose the penalty of dismissal from service upon the appellant. Accordingly, the appellant was called upon by a notice to show cause why the proposed penalty be not imposed upon him. A copy of the reasons recorded by the Disciplinary Committee for not agreeing with the findings submitted by the Enquiry Officer as also a copy of the Enquiry Officer's report were sent to the appellant who filed his reply to the show-cause notice. This reply was considered by the Disciplinary Authority, namely, the High Court which decided to impose the major penalty of dismissal from service and accordingly recommended to the Government of Maharashtra that the appellant be dismissed from service. Acting upon this recommendation, the Government of Maharashtra, by order dated 08.11.1993, dismissed the appellant from service. The order of dismissal was challenged by the appellant by means of a Writ Petition, filed under Article 226 of the Constitution, which was opposed by the High Court on whose behalf Nilkanth Vishwanath Dabholkar, I/C, Additional Registrar, High Cout, (Legal) Appellate Side, filed an affidavit dated 07.06.1996 in opposition. The High Court, by the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court which means the Full Court comprising of all the sitting Judges and they alone could have deliberated upon the matter and taken a decision whether or not the appellant was liable to be dismissed from service. It is contended that since the Enquiry Report was considered only by the Disciplinary Committee which disagreed with the findings of the Enquiry Officer and came to its own conclusion that the charges against the appellant were established and, therefore, he was liable to be dismissed from service and since the decision of the Government was based on the recommendation of the Disciplinary Committee, the order of dismissal ultimately passed by the State Government on that recommendation cannot be sustained. We will first deal with the jurisdiction of the Disciplinary Committee, consituted by the High Court, to consider the report of the Enquiry Officer and take a decision to impose the punishment of dismissal from service upon the appellant. This question has been disposed of by the High Court, before which it was raised, in the following words:- Equally there is no merit in the submission made by the Petitioner that the decision of the Disciplinary Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Constitution provides as under: 235. Control over subordinate courts.- The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. This Article contemplates control of the High Court over the subordinate courts. Read with Articles 233 and 234, the word control used in Article 235 would indicate that although the Appointing Authority of the District Judge and officers other than District Judges is the Governor of the State, the words control over district courts and courts subordinate thereto , which are words of wide connotation, vest in the High Court other facets of service of those officers, namely, their confirmation on completion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judiciary should be independent of the executive. Tracing the history of that concept, Hidayatullah, J. in State of West Bengal v. Nripendra Nath Baghchi has highlighted the meaning and purpose of Article 235, as construed by this Court in various decisions, requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promtions should be dealt with and decided upon by the High Courts in the exercise of the control vested in them. A proper understanding and appreciation of this position will be conducive to a correct assessment of the situation under examination in the instant case. For, knowing that the object of Article 235 is to ensure that independence of an important wing of the judiciary, the inquiry which assumes relevance is whether the procedure sanctified by the Rules of the High Court is in any manner calculated to interfere with or undermine that indpendence. Does that procedure involve self-abnegation , by conceding the right of control to any outside authority? It is pertinent, while we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court but by the Committee of Judges to whom the power could not be delegated. It was further held that if a power was given to the High Court by the Constitution, the manner in which that power would be exercised, could also be laid down by the High Court. The Constitution Bench decision still holds the field. In another decision, namely, Registrar, High Court of Madras vs. R.Rajiah AIR 1988 SC 1388, the view of the Constitution Bench was reiterated and it was held that recommendation for compulsorily retiring a member of the subordinate judicial service comes within the purview of the power of control of the High Court under Article 235 of the Constitution. In this connection, the Court also relied upon the decisions of this Court in High Court of Punjab Haryana vs. State of Haryana (1975) 3 SCR 365; Shamsher Singh vs. State of Punjab (1975) 1 SCR 814; State of Haryana vs. Inder Prakash Anand AIR 1976 SC 1841; and B.Mishra vs. Orissa High Court (1976) 3 SCC 327. The Court, however, while considering the facts of the case, observed as under : 22. In Rajiah's case, a Review Committee consisting of the three judges was appointed by a resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Review Committee was not strictly legal. ( Emphasis supplied ) Relying upon the extracts underlined above, learned counsel for the appellant contended that since in the instant case the matter was not circulated to all the individual Judges of the High Court nor was their opinion sought whether the appellant was liable to be dismissed from service, the recommendation of the High Court as also the ultimate order of the Governor of Maharashtra are bad in law and are liable to be quashed. This contention, though apparently supported by the observations of this Court in Rajiah's cases (supra), cannot be accpeted as in a latter decision in High Court of Judicature at Bombay vs. Shirishkumar Rangarao Patil Anr. (1997) 6 SCC 339, a similar plea was rejected as it was found on a consideration of various resolutions adopted by the Bombay High Court that the Full Court having itself authorised the Chief Justice to constitute a Committee of Judges for disciplinary matters, whatever decision was taken by the Committee was treated to be a decision of the Full Court. This Court in paragraphs 10 and 11 of the report observed as under : 10. It would thus be settled law that the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. Therefore, it is difficult to accept the contention of Shri Batra that the delegation is only for imposition of punishment on judicial officers. In fact, the High Court has no power to impose any punishment by itself. The appointing authority, viz., the Governor is the competent authority under the Constitution to impose punishment in accordance with the rules framed for the purpose. Therefore, the entire gamut of procedural steps of disciplinary action is by the High Court which is the controlling authority through the Committee constituted in that behalf by the Chief Justice of the High Court. The case before us is also that of an officer belonging to the subordinate judicial service of Maharashtra under the control of the Bombay High Court, and is, therefore, squarely covered by the above decisions. We need not look into this question any further. We, therefore, hold that the recommendation to dismiss the appellant made by the Bombay High Court to the Governor would not be open to challenge on the ground that such recommendation was made by the Disciplinary Committee and not by the Full Court comprising of all the sitting Judges. Before leaving this question, we ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Disciplinary Committee had already made up its mind and it was only in respect of the proposed punishment that a notice was issued to the appellant. Consequently, the appellant, it is contended, was denied an adequate opportunity of hearing which should have been afforded to him before taking a decision that he was guilty of the charges levelled against him. Before entering into the merits of this question, we may point out that the action against the appellant was taken under the provisions of Maharashtra Civil Services (Discipline Appeal Rules), 1979. Part III of the Rules deals with penalties and disciplinary authorities . Penalties are mentioned in Rule 5. Dismissal from service is one of the major penalties mentioned in Rule 5(1)(ix). The Disciplinary Authorities are indicated in Rule 6. The Authority which can institute disciplinary proceedings is indicated in Rule 7. Part IV of the Rules deals with procedure for imposing penalties. Rule 8 prescribes the procedure for imposing major penalties. The Inquiring Authority, after completing the inquiry, is required to prepare a report as provided by Clause 25 of Rule 8 which provides as under : (25) After the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed by it, a copy of the report of such authority and a statement of its findings on each article of charge expressly stating whether or not it agrees with the findings of the inquiry authority, together with brief reasons for its disagreement, if any, with the findings of the inquiring authority; and (b) give to the Government servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 8 of these rules. (ii) (a) ................................. (b) ................................. (iii) Where it is not necessary to consult the Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in pursuance of the notice given to him under clause (i)(b) of this sub-rule and determine what penalty, if any, should be imposed on him on the basis of the evidence adduced during the inquiry held under rule 8 and make such order as it may dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of hearing in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the TENTATIVE reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of not guilty already recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of hearing should not be granted. It will be most unfair and inequitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. The Court further held that the contrary view expressed by this Court in State Bank of India vs. S.S. Koshal 1994 Supp.(2) SCC 468 and State of Rajasthan vs. M.C. Saxena (1998) 3 SCC 385 was not correct. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tenative opinion that it does not agree with the findings recorded by the Enquiry Officer. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed. The Disciplinary Committee, in fact, had acted in accordance with the statutory provisions contained in Rule 9(4)(i)(a) (b). He was called upon to show-cause against the proposed punishment of dismissal as will be evident from the minutes of the Disciplinary Committee dated 21st June, 1993 which provide as under:- Decision : Discussed. For the reasons recorded in Annexure A hereto, the Committee disagrees with the finding of the Enquiry Officer and finds that the charges levelled against the delinquent Judicial Officer have been proved. It was, therefore, tentatively decided to impose upon the Judicial Officer penalty of dismissal from service. Let notice, therefore, issue to the delinquent Judicial Officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him. Show cause notice will be accompanied by a copy of the Report of the Inquiring Authority and the reasons recorded by this Committee. These minutes were recorded after the Disciplinary Committee had considered the Enquiry Report and differed with the findings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N. Salve, learned Senior Counsel appearing on behalf of the respondent, has contended that the disciplinary proceedings come to an end either when the delinquent is exonerated of the charges or when punishment is inflicted upon him on charges being proved. Since in the instant case, the Disciplinary Committee had given an opportunity of hearing to the appellant before finally recommending to the State Government to dismiss him from service, the principles of natural justice were fully complied with and that too at a stage earlier than the stage when the curtain was finally brought down on the proceedings. He contended that not only the findings recorded by the Enquiry Officer but the reasons for which the Disciplinary Committee had not agreed with those findings, were communicated to the appellant to whom a notice was also issued to show-cause why he be not dismissed from service. He further contended that the appellant submitted a reply in which he attacked the reasons for which the Disciplinary Committee had decided to disagree with the findings of the Enquiry Officer and, therefore, in the given circumstances of this case, it cannot be said that there was failure or denial of op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asha Prachar Samiti Road, Wardha on 23.1.1990, in the first case and again on 18.12.1990 at about 8.00 P.M. at Dr. Naranje's residence in the second case. These charges were sought to be proved by producing the complainant Deepak Trimbakrao Deshmukh, his wife Mrs. Sudha Deepak Deshmukh, Mrs. Madhuri Krishnarao Pradhan (Panch witness of the trap) and Shri Anand Digambar Deshmukh, Deputy Superintendent of Police, A.C.B. Nagpur. The appellant in his defence examined himself and produced Shri Sunil Gopalrao Bapat, Advocate, Wardha; Shri Arjun Pancham Patil, Advocate, Wardha; Dr.Sopan Chahadeo Naranje, Medical Practitioner, Wardha and Shri Manik Tulsiram Tamgadge, Bailiff, Arvi, District Wardha. The complainant had also approached the Anti- Corruption Bureau and informed them of the demand made by the appellant whereupon the Anti-Corruption Bureau, acting through Shri Anand Digambar Deshmukh, Deputy Superintendent of Police, A.C.B. Nagpur, laid a trap against the appellant but the trap was unsuccessful and failed. The Enquiry Officer held that this was a false trap laid by Shri Anand Digambar Deshmukh, Deputy Superintendent of Police, A.C.B. Nagpur in connivance with the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate have not been taken into consideration by the Disciplinary Committee and it has relied upon the statement of complainant alone to come to the conclusion that Mr. Bapat, advocate had assured acquittal provided the complainant withdrew his Transfer Petitions. The High Court has overlooked another important aspect of the case which is to the effect that Sessions Trial Nos. 28 of 1982 and 37 of 1987 were pending in the court of Sessions Judge, Wardha (Mr. S.S.Nikhree), from where these were transferred to the court of Addl. Distt. Sessions Judge (Mr. S.T. Kharche) who attempted to proceed substantially with those trials, but Deepak Trimbakrao Deshmukh created all sorts of hinderances and obstacles and ultimately filed a Transfer Petition (No. 387 of 1988) under Section 409 of the Criminal Procedure Code in the Sessions Court, Wardha, in which various allegations were made against the Presiding Officer, namely, Mr.S.T. Kharche, but the Transfer Application was rejected on 5.11.1988 by the Sessions Judge. Thereafter, when those cases were taken up by Mr. Kharche, Deepak Trimbakrao Deshmukh filed an Application on 8.5.1990 for adjournment to enable him to file Vakalatnama of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against him, for a ride. He had adopted similar tactics in the court of Sessions Judge, Wardha, and again in the court of Ist Addl. Distt. Sessions Judge, Wardha, where these two cases were transferred, and yet again in the court of the appellant where these Sessions Trials came to be ultimately transferred. After withdrawal of Transfer Applications, when the appellant proceeded with the two Sessions Trials, the Disciplinary Committee inferred that the appellant was still pursuing his earlier demand of bribe as otherwise he himself would have written that he would not do these cases. This, we feel, is wholly fallacious. After the Transfer Petitions were withdrawn and the stay order passed therein was vacated, the appellant, as Presiding Officer of the court, had to proceed with those cases as he had, so long as those cases were on his file, no other choice. If the appellant had written to the Sessions Judge to transfer those cases to some other court, the accused (Deepak Trimbakrao Deshmukh) would have succeeded in his designs in avoiding the court of the appellant. The Presiding Officers of the Court cannot act as fugitives. They have also to face sometimes quarrelsome, unscr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elying upon the earlier decisions in Nand Kishore vs. State of Bihar AIR 1978 SC 1277 = (1978) 3 SCC 366 = (1978) 3 SCR 708; State of Andhra Pradesh vs. Sree Rama Rao AIR 1963 SC 1723 = (1964) 3 SCR 25; Central Bank of India vs. Prakash Chand Jain AIR 1969 SC 983; Bharat Iron Works v. Bhagubhai Balubhai Patel Ors. AIR 1976 SC 98 = (1976) 2 SCR 280 = (1976) 1 SCC 518 as also Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) Ors. AIR 1984 SC 1805 = (1985) 1 SCR 866 = (1984) 4 SCC 635, laid down that although the court cannot sit in appeal over the findings recorded by the Disciplinary Authority or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. It was observed that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse. In the instant case, we have scrutinised the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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