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2005 DIGILAW 524 (GUJ)

J. J. DESAI v. STATE OF GUJARAT

2005-08-02

R.S.GARG, RAVI R.TRIPATHI

body2005
R. S. GARG, RAVI R. TRIPATHI, J. ( 1 ) THIS is a petition filed by a Judicial Officer. The matter was filed in the year 1998 and it was placed before the learned Single Judge, who was pleased to issue Rule on 17. 11. 1998. However, thereafter, on a request being made by the learned advocate appearing for the Judicial Officers, the Honble the Chief Justice, by order dated 18. 3. 2004 directed the Registry to place the matters before a Division Bench. The learned counsel for the petitioner has consented to the hearing of the matter by the Division Bench. ( 2 ) THE petitioner, a Judicial Officer Civil Judge (Junior division) and Judicial Magistrate First Class, was served with a charge sheet dated 28th March, 1989, containing the following charges :-"[i] That while working as Judicial Magistrate, F. C. (Railways), Surat, from 15. 6. 1988 to 23. 11. 88, you contacted one Makanbhai Jijalbhai an accused in Criminal Case No. 6510 of 1985 and to favour him in that case by accepting illegal gratification, you accepted from him two saris as illegal gratification. [ii] While working as such you further demanded from him and insisted that he should give you one Video Cassette Recorded by way of illegal gratification for showing him favour in the case. A departmental inquiry was held wherein, the Inquiry Officer held the charges proved in his report dated 13. 5. 1991. The High Court being the Disciplinary Authority agreed with the findings of the Inquiry Officer and issued a show cause notice dated 8. 8. 1991, calling upon the petitioner to show cause as to why he should not be dismissed from service. The petitioner filed his reply dated 10. 2. 1992 to the show cause notice. The matter was considered by the available Committee of the High Court, the petitioner submitted his written arguments, the petitioner was also given an opportunity of personal hearing, duly assisted by his advocate. The Disciplinary Committee made its report, which according to the procedure, recommended by a Sub Committee by its report dated 5. 12. 1988 and accepted with modifications by the Full Court in Resolution No. 1, dated 26. 12. 1988, becomes the decision of the High Court on expiry of 48 hours after it is laid on the table, if the same is not objected to by any of the learned Judges. 12. 1988 and accepted with modifications by the Full Court in Resolution No. 1, dated 26. 12. 1988, becomes the decision of the High Court on expiry of 48 hours after it is laid on the table, if the same is not objected to by any of the learned Judges. There being an objection, the matter was placed before the Full Court where it was decided that the matter be considered by the Standing Committee. The petitioner was informed of this by letter dated 6. 12. 1994. The Standing Committee heard the petitioner on 13. 12. 1994. Before the Standing Committee could record its conclusions, reshuffle took place on account of transfer of two of the Honble Judges and the elevation of the Honble the Chief Justice as the Judge of the Honble the Apex Court. The matter was then considered by the new Standing Committee. The petitioner was informed about this by letter dated 18. 11. 1995. He was accorded hearing by the new Committee on 5. 12. 1995. The Committee recorded its conclusions on the basis of which, the High Court decided to dismiss the petitioner as in the opinion of the High Court, charges levelled against the delinquent were grave. The order to dismiss the petitioner from service was forwarded to the Government of Gujarat, which, in turn, passed a resolution, dated 22nd March, 1996, bringing an end of the service of the petitioner. ( 3 ) THE petitioner being aggrieved by the said order, is before this Court by way of this petition, challenging the same on the following amongst other grounds, which we shall take one by one:-3. 1 Mr. Supehia, learned counsel appearing for the petitioner vehemently submitted that once the petitioner was heard by the Disciplinary Committee consisting of the two Honble Judges which to the knowledge of the petitioner, had come to a conclusion that the petitioner be exonerated of all the charges, there was no reason why the petitioner should have been heard by the Standing Committee on two different occasions i. e. , on 13. 12. 1994 and 5. 12. 1995. 3. 2 It is not in dispute that the petitioner is governed by the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. Sub-rule (2) of Rule 10 provides as under:-"10 (2 ). 12. 1994 and 5. 12. 1995. 3. 2 It is not in dispute that the petitioner is governed by the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. Sub-rule (2) of Rule 10 provides as under:-"10 (2 ). The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose. "3. 3 It is also not in dispute that for the petitioner, `disciplinary Authority is the High Court. It is under resolution Nos. 1 and 3 dated 26. 12. 1988 of the Full Court for the proper, efficient management of Courts subordinate to the High Court as well as personnel constituting such courts and the ministerial staff employed therein, the High Court has decided its own Business Rules. Under the said Rules, the matters which are listed in Annexure:a are to be dealt with and decided by the High Court as a whole. Item-5 of Annexure:a pertains to Saction to be taken against a Judicial Officer in exercise of disciplinary power and control of the High Court. Under Resolution No. 3 of even date, it is also resolved that; Sin supersession of all the previous resolution/s, on the subject, that in disciplinary matters relating to the Officers belonging to the Judicial Service of the State, the following procedure shall be followed. Clause-5 is relevant for the purpose, which reads as under""after receipt of the report of the Inquiry Officer, his report and the record of the proceedings before him shall be placed before a Committee of two Judges known as the Disciplinary Committee which shall be appointed at the commencement of each calender year by the Chamber Meeting for the purpose of aiding and assisting the High Court in exercising its disciplinary jurisdiction over officers of the Judicial Service of the State. The members of the said Committee shall be nominated by rotation on the principle of seniority and shall hold office for the calender year. "3. 4 Learned advocate Mr. J. B. Pardiwala, appearing for the respondent no. The members of the said Committee shall be nominated by rotation on the principle of seniority and shall hold office for the calender year. "3. 4 Learned advocate Mr. J. B. Pardiwala, appearing for the respondent no. 2 made available complete record of the Disciplinary as well as Standing Committee/s. According to the procedure, as prescribed in Clause-9, SThe Committee shall then prepare report containing its reasoned conclusions regarding punishment, if any, to be imposed on the delinquent and such report together with the entire record of the Inquiry (including the written submission of the delinquent in response to the show cause notice for the proposed punishment) shall be laid on the table before the High Court and it will become the decision of the High Court after it has been kept on the table for 48 hours. In the case of the petitioner before the report of the Disciplinary Committee consisting two Honble Judges could become the decision of the High Court, one of the learned Judges expressed his disagreement with the decision of the Disciplinary Committee and hence the matter was placed before the Full Court. Thereafter it was decided that the matter be considered by the Standing Committee consisting of the Honble the Chief Justice and four other Honble Judges. The petitioner was intimated about the hearing fixed on 13. 12. 1994. The Standing Committee undertook the exercise but before it could be completed two Honble member Judges were transferred to other High Courts and the Honble the Chief Justice was elevated to the Honble the Supreme Court. Hence the case of the petitioner was required to be considered by the new Standing Committee. 3. 5 That being so, the petitioner was intimated by letter dated 18. 11. 95 that his matter will be considered by the Standing Committee on 5. 12. 1995. The Committee, after according an opportunity of hearing to the petitioner recorded its decision of being in agreement with the report of the Inquiry Officer which was acted upon, as reflected in narration of facts hereinabove. In view of the discussion aforesaid, the submission of Mr. Supehia, learned counsel for the petitioner is not found worth accepting and hence, the same is rejected. 3. In view of the discussion aforesaid, the submission of Mr. Supehia, learned counsel for the petitioner is not found worth accepting and hence, the same is rejected. 3. 6 The learned counsel for the petitioner next contended that the petitioner was not allowed the assistance of an advocate when his case was considered by the Standing Committee, though the same was allowed when he was heard by the Disciplinary Committee. 3. 7 The learned counsel after having raised this contention fairly conceded that the petitioner had never requested the Standing Committee either on 13. 12. 94 or 5. 12. 1995 to permit him to avail of the assistance of an advocate. Not only that, he also conceded that even after the hearing the petitioner did not make any complaint about denial of assistance of an advocate and, therefore, the submission of the learned advocate does not find favour with the Court and the same is rejected. 3. 8 The learned counsel for the petitioner next contended that the petitioner was not supplied a copy of the report of the Disciplinary Committee, though the petitioner had requested for the same. 3. 9 The contention raised by the learned advocate is devoid of any merit because the report of the Disciplinary Committee, never assumed the status of `decision of High Court and the same was not acted upon. Hence, there was no question of supplying the said report/findings to the petitioner. The learned counsel for the petitioner could not point out any rule under which a copy of such report is required to be supplied to the petitioner. Rules provide for the supply of a copy of the report of the Inquiry Officer and in compliance of the Rules, copy of the report of the Inquiry Officer was supplied to the petitioner. In view of the above discussion, this submission of the learned advocate cannot be accepted by the Court. 3. 10 The learned counsel for the petitioner next submitted about non-dealing with the submissions made by the petitioner in writing in reply to the show cause. The learned counsel submitted that in the impugned order, no reference is found regarding the material which was placed for consideration by way of written submissions. 3. 11 The Court having examined the original record, has found that all the material placed on the record of the case is considered. The learned counsel submitted that in the impugned order, no reference is found regarding the material which was placed for consideration by way of written submissions. 3. 11 The Court having examined the original record, has found that all the material placed on the record of the case is considered. It is not necessary that entire material be dealt in minute details. On perusal of the record, this Court is of the opinion that the High Court has considered the material submissions and the substance of the arguments. Hence, this submission of the learned advocate does not warrant an acceptance. 3. 12 Learned counsel next contended that the petitioner, even though repeatedly requested, was not supplied re-recorded form of two audio cassettes and thereby, the petitioner could not present his case successfully. 3. 13 It is not in dispute that the contents of the two audio cassettes were transcribed and were supplied to the petitioner. It is also not in dispute that the two audio cassettes were played in the presence of the petitioner, firstly by the Inquiry Officer and later on by the Committee while considering the same. Besides learned advocate is not able to point out as to whether at any time, the petitioner had objected to the correctness of the contents of the transcriptions given to him. In fact, the record goes to show that with a view to verify the correctness of the contents of the audio cassettes the same were played in the presence of the petitioner and the correctness of the same was verified and recorded. In that view of the matter, the contention raised by the learned advocate is devoid of any merit and, therefore, it cannot be accepted. 3. 14 Learned advocate next contended that no reliance could have been placed upon the transcription made by Stenographer Rasiwala, who stated that he had transcribed the conversation after hearing both the cassettes. Learned advocate submitted that the evidence of Mr. Bhutwala could not have been given any weightage as he was an accomplice and, therefore, this is the case of `no evidence against the petitioner. It is on record that before the Inquiry Officer, the petitioner did not appear as a witness and did not controvert the evidence either in part or full led before the Inquiry Officer, therefore, the Inquiry Officer had to appreciate the only evidence which was led before him. It is on record that before the Inquiry Officer, the petitioner did not appear as a witness and did not controvert the evidence either in part or full led before the Inquiry Officer, therefore, the Inquiry Officer had to appreciate the only evidence which was led before him. In so appreciating, the Inquiry Officer found the evidence led before him worth accepting and on acceptance of the same, he recorded his findings. The petitioner, for the reasons best known to him, did not avail of the opportunity of appearing before the Inquiry Officer and getting himself examined as a witness. That being so, he has to take the consequences of his own wrong. In light of this discussion, the contention raised by the learned advocate cannot be accepted. 3. 15 Learned advocate for the petitioner also contended that on 2. 11. 1988, complainant and his wife Urvashiben were not present and the case was adjourned on the basis of the report submitted by the learned APP. Despite that in the second audio cassette, some conversation has been ascribed to Urvashiben. The learned advocate submitted that it is doubtful whether the cassette was really recorded on 2. 11. 1988. This contention is also part of challenge to the evidence in the form of two audio cassettes. As discussed above, the contents of both the audio cassettes duly transcribed were made available to the petitioner and the petitioner has waived his right to challenge the same. Besides it is on record that the High Court verified the correctness and authenticity of the same and taken note of the same. Hence this contention fails. 3. 16 Learned advocate next contended that the departmental inquiry is vitiated on account of non- supply of the copy of the Stenographer book of Mr. Rasiwala. The learned advocate submitted that the supply of the copy of the Stenographer book was necessary as in the two transcriptions of the cassettes, first one in long hand and other in shorthand and there were discrepancies. If the petitioner was supplied the Stenographer book he could have got the same transcribed in long hand and could have compared the same with the contents supplied to him. 3. 17 This contention is required to be appreciated in light of the fact that the Committee, which heard the petitioner on 5. 12. If the petitioner was supplied the Stenographer book he could have got the same transcribed in long hand and could have compared the same with the contents supplied to him. 3. 17 This contention is required to be appreciated in light of the fact that the Committee, which heard the petitioner on 5. 12. 1995 as is available on record, heard both the cassettes in the presence of the petitioner and the petitioner admitted before the Committee that transcription given to him was absolutely correct. In view of that this contention cannot be accepted. 3. 18 Learned counsel for the petitioner next contended that the case of the department must fail on account of non-examination of the star witness. According to the learned advocate, in the present case, accused Makanbhai Bijalbhai was the star witness. In support of this contention, he relied upon a decision of the Honble the Apex Court in the matter of Hardwari Lal Vs. State of U. P. and others, reported in 1999 AIR SCW 4387, wherein according to the learned advocate for the petitioner, it is held that in absence of the examination of the star witness, principles of natural justice stood violated. The decision of the Honble Apex Court has no application to the facts of the case on hand. As in this case, the petitioner did not appear before the Inquiry Officer and did not get himself examined whereas the department examined certain witnesses, relying on whose evidence, the Inquiry Officer, came to a conclusion that the charges alleged against the petitioner are proved. 3. 19 If at all the petitioner wanted to dislodge the conclusions, he could have done so only by uprooting the evidence of the department. Besides, it is trite law that what matters is the `quality of evidence and not the `quantity. If the evidence laid before the Inquiry Officer is found to be sufficient to record the factum of guilt, department has not committed any irregularity in not examining the so-called star witness. 3. 20 Learned advocate for the petitioner next contended that the charges levelled against the petitioner are vague. The contention is devoid of any merit. A copy of the chargesheet issued to the petitioner is produced at Annexure:a on page-17 of the petition memo. 3. 20 Learned advocate for the petitioner next contended that the charges levelled against the petitioner are vague. The contention is devoid of any merit. A copy of the chargesheet issued to the petitioner is produced at Annexure:a on page-17 of the petition memo. The charges levelled against the petitioner are set out in the earlier part of the communication, after that it is stated that; SPlease note that the details as to the above charge are given in the statement of imputation which shall be read as a part of the charge. (emphasis supplied ). The petitioner has chosen not to produce the Statement of Imputations, he has kept back the same for the reasons best known to him. In the absence of Statement of Imputations to allege that the charges set out in the communication are vague is not worth accepting. Statement of Imputations, though available with the petitioner, he has chosen not to produce the same for perusal of the Court. In absence of Statement of Imputations, the contention raised by the petitioner cannot be accepted and the same is rejected. 3. 21 Learned advocate next contended that it is a case of `no evidence against the petitioner. It is submitted by the learned advocate for the petitioner that the department has examined only two witnesses at the departmental inquiry and according to the learned advocate for the petitioner, one of those witnesses Mr. Rasiwala does not support the case against the petitioner, while other witness is an interested witness being an accomplice. The learned advocate submitted that therefore, no reliance can be placed on his evidence. In fact, this contention is reiteration and repetition of the earlier contention and therefore for the same reasons it is required to be rejected. It is already noted and mentioned hereinabove that the petitioner did not examine himself before the Inquiry Officer and, therefore, as stated hereinabove, it was for the Inquiry Officer to appreciate the evidence led before him and in his wisdom, on the basis of the quality of evidence led before him, held the charges proved against the petitioner. Hence the contention that the case of the petitioner is a case of `no evidence is without any substance and the same is rejected. 4. Mr. Pardiwala, learned advocate, appearing for the respondent no. Hence the contention that the case of the petitioner is a case of `no evidence is without any substance and the same is rejected. 4. Mr. Pardiwala, learned advocate, appearing for the respondent no. 2 supported the decision and in support of his submissions relied upon the following decisions:-[a] Decision of a Division Bench in Special Civil Application No. 5691 of 2002 (Coram: G. S. Singhvi and Anant S. Dave, JJ), dated 10. 5. 2005. [b] Yoginath D. Bagde Vs. State of Maharashtra, reported in 1999 [7] SCC 739. [c] Nirmala J. Jhala Vs. State of Gujarat, reported in 2004 (3) G. L. H. 708. ( 4 ) THE learned advocate for respondent submitted that power of judicial review and scope of judicial interference is limited. He submitted that present is not the case which warrants either judicial review of judicial interference in the matter. ( 5 ) IN view of the findings recorded hereinabove, this Court is of the considered opinion that all the decisions cited by the learned advocate appearing for the respondent no. 2 are not required to be dwelved upon in greater detail. However, it will be appropriate to make a reference to the decision in the matter of Nirmala J. Jhala Vs. State of Gujarat, wherein this Court considered the power of judicial review and held that the judicial review is not an appeal from a decision, but the manner in which the decision is made is required to be considered and power of judicial review is meant to ensure that individual receives fair treatment and not to ensure that the conclusions reached by the authority are correct in the eye of the Court. ( 6 ) LEARNED advocate drew attention of the Court to para-49 of the judgment which reads as under:- SFrom the above decisions, following legal principles can be culled out:[i] A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. [ii] The High Court cannot sit in appeal over the decision of the domestic tribunal. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. [ii] The High Court cannot sit in appeal over the decision of the domestic tribunal. Therefore, where there are some relevant materials, which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 of the Constitution of India to review the materials and to arrive at an independent finding on the materials. [iii] If the inquiry is properly held, the question of adequacy or reliability of evidence cannot be gone into by the High Court. High Court cannot interfere with the penalty if the conclusion of the competent authority is based on evidence, even if some of it is found to be irrelevant or extraneous to the matter. [iv] In case of disciplinary inquiry, technical rules of evidence have no application. [v] The only consideration that court has in its judicial review is to consider whether the conclusion is based on evidence and supports the findings or whether the conclusion is based on no evidence. To put it differently, the High Court can interfere if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonably prudent person would have ever reached. ( 7 ) WE are in agreement with the aforesaid principles and we are of the opinion that none of the aforesaid principles is breached in the present case. Decision of the Apex Court in the matter of State Bank of patiala Vs. S. K. Sharma, reported in AIR 1996 SC 1669 , also requires mention as there, the Honble the Apex Court was pleased to enumerate the principles of scope of natural justice, to be followed in context of disciplinary inquiries. ( 8 ) THE learned advocate invited attention of the Court to para- 32 of the judgment, wherein, the Honble the Apex Court has summarised the principles emerging in the said decision. The principles are as under:-1. An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The principles are as under:-1. An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. [1] A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. [2] In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under `no notice, `no opportunity and `no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz. , whether such violation has prejudiced the delinquent officer/employee in defending himself property and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of he judgment, take a case where there is provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it, the prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i. e. , whether the person has received a fair hearing considering all things. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i. e. , whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. [4] [a] In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. [b] In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then, it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then, the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050 ). The ultimate test is always the same, viz. , test of prejudice or the test of fair hearing, as it may be called. The ultimate test is always the same, viz. , test of prejudice or the test of fair hearing, as it may be called. [5] Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between Sno opportunity and no adequate opportunity, i. e. , between Sno notice/no hearing and Sno fair hearing. [a] In the case of former, the order passed would undoubtedly be invalid (one may call it Svoid or a nullity if one chooses to ). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i. e. , in accordance with the said rule (audi alteram partem ). [b] But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice; in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that his principle (No. 5) does not apply in the case of rule against bias, the test of which behalf are laid down elsewhere.)[6] While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/tribunal/authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz. , to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. [7] There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/state interest with the requirement of natural justice and arrive at an appropriate decision. [7] There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/state interest with the requirement of natural justice and arrive at an appropriate decision. ( 9 ) IN view of the aforesaid discussion, the Court finds that none of the contentions of the learned advocate for the petitioner could be accepted and as a result, the petition shall fail. The same is dismissed. Rule is discharged with no order as to costs. .