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2016 (7) TMI 583 - SUPREME COURT

2016 (7) TMI 583 - SUPREME COURT - 2016 (338) E.L.T. 321 (SC) - Punishment of dismissal imposed upon a disciplinary inquiry - the Appellant delivered a judgment on 22 January 1997 convicting the accused, but awarded a sentence of imprisonment less than the minimum prescribed by Section 135 - Proceedings before the Disciplinary Committee - Offences punishable under Section 135 of the Customs Act 1962 and the Imports & Exports (Control) Act 1947 - Held that:- A disciplinary inquiry, it is well set .....

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se of no evidence, the High Court would not exercise its jurisdiction under Article 226. If there is some legal evidence to hold that a charge of misconduct is proved, the sufficiency of the evidence would not fall for re-appreciation or re-evaluation before the High Court. Applying these tests, it is not possible to fault the decision of the Division Bench of the Gujarat High Court on the charge of misconduct. The charge of misconduct was established in disciplinary Inquiry 15 of 2000. - Th .....

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High Court in so far as it rejects the challenge by the Appellant to the finding of misconduct. However, for the reasons which we have indicated above we direct that the order of dismissal from service shall stand substituted with an order of compulsory retirement which shall take effect from 14 July 2009, the date on which the final order of penalty was imposed upon the Appellant. - Civil Appeal Nos.6116-6117 of 2016 - Dated:- 12-7-2016 - T S THAKUR, CJI AND Dr D Y CHANDRACHUD, J For Petitioner .....

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rges against the Appellant have been established in one (but not the second) of two disciplinary inquiries in respect of his conduct as a judicial officer in the district judiciary. In view of its findings, the High Court declined to interfere with the punishment of dismissal. That has given rise to these proceedings. 3. The Appellant was recruited as a Civil Judge (Junior Division) and Judicial Magistrate in 1981 in the judicial service of the State of Gujarat. He was promoted as a Civil Judge .....

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ccused, but awarded a sentence of imprisonment less than the minimum prescribed by Section 135. Moreover, the sentence of imprisonment was so structured that after allowing the benefit of a set-off, the accused was not required to remain in jail for a further period. In the second criminal case, Criminal Case 675 of 1994, the trial involved offences inter alia under Section 135 of the Customs Act 1962. Fourteen accused were alleged to be involved in the smuggling of 275 silver slabs of a value o .....

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d No. Name of the accused Period of sentence Amount of fine In default of fine, further sentence Set off is allowed 1 1 Surendra Gurudeepsinh 2 Years 10,000/- 1 Year Yes 2 2 Bhupendra Pyarelal 2 Years 10,000/- 1 Year Yes 3 4 Natha Samat 2 Years 10,000/- 1 Year Yes 4 5 Jivan Devdan 2 Years 10,000/- 1 Year Yes 5 13 Kana Mahadeva 2 Years 10,000/- 1 Year Yes 6 3 Gulam Chisti 4 Years 15,000/- 1 Year Yes 7 6 Iqbal Husain 4 Years 15,000/- 1 Year Yes 8 7 Jakab Bava 4 Years 15,000/- 1 Year Yes 9 10 Ismai .....

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involved smuggling of a huge quantity of contraband articles. The Appellant, it was alleged, was aware of judicial decisions mandating that a liberal view should not be taken in the award of sentences in such cases. Yet, with the intention of favouring the accused, the Appellant was alleged to have awarded less than the minimum sentence without recording special or adequate reasons. Moreover, it was alleged that: Though, it was a case of a huge quantity of contraband articles i.e. 275 Silver Sla .....

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favour in awarding sentence and accordingly, you awarded the punishment fixing the term of sentence in such a way that the accused need not have to remain in custody for any longer period and thereby: (a). You are guilty of indulging in Corrupt-practice. (b). You are guilty of dereliction in discharging your judicial functions. (c). You acted in a manner unbecoming of a Judicial Officer. These acts of yours, would amount to acts of grave misconduct and tantamount to conduct unbecoming of a Judic .....

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o establish that the Appellant had engaged in a corrupt practice. The charges were held not to have been established. The report of the Inquiry Officer was placed before a Disciplinary Committee of the High Court consisting of two judges. The Disciplinary Committee did not agree with the reasons adduced by the Inquiry Officer but nonetheless was of the view that the Appellant should be exonerated. In the view of the Committee, a huge quantity of contraband was involved and the Appellant ought no .....

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hould be considered when the case of the Appellant for promotion arose in future. 7. The report of the Disciplinary Committee was considered at a Chamber meeting of the Full Court on 26 September 2005 when it was resolved to remand the matter to the same Disciplinary Committee for reconsideration. The Disciplinary Committee considered the matter again. The Disciplinary Committee took a fresh decision on 4 April 2006 to the effect that there being no evidence about corruption, the finding of the .....

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recorded tentative reasons to disagree with the report of the Inquiry Officer and called upon the Appellant to show cause why he should not be held guilty of the charges levelled and be dismissed from the service. The Appellant responded to the notice to show cause and was granted a personal hearing. The Disciplinary Committee arrived at a decision on 1 July 2009 holding the Appellant guilty of the charges of misconduct. The Committee held that as a seasoned judicial officer who was in service .....

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und it difficult to accept that as a judicial officer, the Appellant had passed an order of conviction and sentence without looking at the provisions. The Committee held that an inference could be drawn on the basis of material with regard to the existence of an oblique motive since neither a sufficient nor reasonable explanation was provided by the Appellant. Alternatively, the Committee held that even assuming that there was no oblique motive, the established facts reflected gross negligence a .....

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ed the subject matter of another disciplinary inquiry (Inquiry 6 of 2001) in which a chargesheet was issued on 5 November 2001. The charges against the Appellant were that despite his transfer on 23 April 1993, the Appellant had with an oblique motive requested the Chief Judicial Magistrate, Mehsana to transfer 26 out of several part-heard cases selectively, pertaining to offences under the Prevention of Food Adulteration Act. The allegation was that these cases were indicated as being part-hear .....

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plinary Committee of the High Court came to the conclusion that there was insufficient evidence to hold the Appellant guilty of an oblique motive or corrupt practice. At its Chamber meeting on 26 September 2005, the Full Court remanded the proceedings to the Disciplinary Committee. The Disciplinary Committee took a fresh decision and reiterated its earlier view. When a Full Court considered the view of the Disciplinary Committee on 5 March 2007 a fresh Disciplinary Committee was assigned to relo .....

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at the charges against the Appellant were proved and decided to dismiss the Appellant from service. The State Government acting on the decision of the High Court issue an order of dismissal on 14 July 2009. 10. The Appellant initiated proceedings under Article 226 of the Constitution in order to assail the findings which were arrived at in the disciplinary proceedings and the punishment of dismissal. By its judgment and order dated 23 February 2012 the Division Bench held that the charge of misc .....

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Committee had expressly concluded that there was insufficient evidence to hold the Appellant guilty of an oblique motive or corrupt practice in the award of punishments in the cases under the Factories Act 1948. Yet, the final conclusion of the Committee was that all the charges including the charge of corrupt practice stood proved. The High Court noted that this was a clear error. The Disciplinary Committee having come to the conclusion of the absence of an oblique motive or corrupt practice, t .....

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noted that the Appellant was a judicial officer since 1982, and had worked for nearly fourteen years as a Judge. While dealing with offences under the Customs Act 1962, he was expected to refer to the penal provisions under which punishment was being handed down after recording a conviction. The High Court noted that the stand of the Appellant appeared to be that he awarded the sentence without being aware of the statutory provisions. The High Court observed that the criminal case with which th .....

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ther sentence, after accounting for the set-off for the period spent in jail as under- trial prisoner. The High Court noted that since the value of the goods in the case exceeded rupees one lakh, Section 135 provided for imprisonment for a term which may extend to seven years and with fine. Moreover, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, the imprisonment was not to be for less than three years. Section 135 (3) also specifies w .....

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erm of imprisonment after taking into account the period undergone as an under-trial. In the view of the High Court, the conclusions of the Committee which were accepted by the Full Court cannot be held to have been based on no evidence; there were strong circumstances indicating that the Appellant imposed punishments in serious offences under the Customs Act 1962 contrary to statutory mandate; his explanation that he was not aware of the statutory provision (having been recently promoted as CJM .....

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re a reconsideration of the decision initially taken by the Disciplinary Committee on 27 October 2004. The submission is that once the Disciplinary Committee concluded that the Appellant should be exonerated by accepting the report of the Inquiry Officer, the Full Court in the Chamber meeting had no jurisdiction to revisit that decision. 13. The submission suffers from a fundamental fallacy. Under Article 235 of the Constitution, the High Court exercises control over the district judiciary. The .....

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listed in annexure A to the resolution should be dealt with and decided by the High Court as a whole. Action to be taken against judicial officers in the exercise of disciplinary jurisdiction was one of those matters. However, having due regard to the multitude of administrative matters over which the Full Court exercises jurisdiction, the High Court assigns and distributes its administrative functions to constituent committees. This is imperative for the efficient exercise of the control of the .....

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underlying material on the record would be examined by a Disciplinary Committee consisting of two judges. The Disciplinary Committee would submit its provisional conclusions in a report which would laid before the High Court and this would become a decision of the Court after a stipulated period. The second stage for the Disciplinary Committee to prepare and submit its report would be after issuing a notice to show cause to the officer and granting him a personal hearing after which the Discipli .....

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inary Committee and to determine whether it should or should not be accepted. Hence, there is no merit in the submission that the Full Court was bound by the decision of its Disciplinary Committee. 14. The second submission relates to the merits of the charges against the Appellant which have been found to be established. The submission of the Appellant is that his judgment at the conclusion of the trial involving offences inter alia under Section 135 of the Customs Act 1962 was a judicial decis .....

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ther a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal principle. In the absence of a cogent explanation to the contrary, it is .....

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trail must be carefully scrutinized to determine whether an act of misconduct is established on the basis of legally acceptable evidence. Yet in other cases, direct evidence of a decision being actuated by a corrupt motive may not be available. The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesi .....

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ich is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The circumstances let into evidence to establish misconduct have to be sifted and evaluated with caution. The threat of disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital .....

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ice. 16. In the present case, it must be emphasised that the charges against the Appellant involved rendering of decisions actuated by corrupt practice or by oblique motives. The two criminal cases which were tried by the Appellant involved offences under Section 135 of the Customs Act, 1962. Section 135 is as follows: Section 135- (1) Without prejudice to any action that may be taken under this Act, if any person- a). is in relation to any goods in any way knowingly concerned in any fraudulent .....

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- c). in the case of an offence relating to any of the goods to which Section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than three years; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fin .....

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tter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii). the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission to the offence; (iv). the age of the accused. 17. It is not in dispute that the cases in question related to goods to which Section 123 applied and the market price whereof exceeded r .....

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t was evaluating, in Criminal Case 675 of 1994, a situation involving the smuggling of 275 silver slabs worth ₹.5,86,50,620/-. The explanation of the Appellant that he was recently promoted to the cadre of CJM and was not aware of the provisions of Section 135 was not accepted by the Disciplinary Committee (or by the Full Court). As a judicial officer who was in service for over fourteen years, the Appellant could not have been unmindful of and was duty bound to have read the governing pro .....

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ndered by the Appellant and find merit in the finding of the High Court that the Appellant paid no heed whatsoever to the provisions of Section 135 under which the sentence of imprisonment shall not be less than three years, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court. Most significant is the fact that the Appellant imposed a sentence in the case of each accused in such a manner that after the order was passed no accused would remain .....

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disciplinary proceeding has to be established on a preponderance of probabilities. The High Court while exercising its power of judicial review under Article 226 has to determine as to whether the charge of misconduct stands established with reference to some legally acceptable evidence. The High Court would not interfere unless the findings are found to be perverse. Unless it is a case of no evidence, the High Court would not exercise its jurisdiction under Article 226. If there is some legal e .....

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