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2015 DIGILAW 66 (GUJ)

A. M. DESAI v. STATE OF GUJARAT

2015-01-20

MOHINDER PAL, RAVI R.TRIPATHI

body2015
JUDGMENT MOHINDER PAL, J. 1. This petition has been filed under Article 226 of the Constitution of India challenging notification dated 14.09.2011 of the Legal Department, State of Gujarat, dismissing the petitioner from service of Civil Judge (Senior Division) & JMFC, on the basis of the recommendations of the High Court (on its administrative side). 2. Petitioner joined the judicial service as Civil Judge (Junior Division) & JMFC on 24.10.1991. In July 2000, he was promoted as Civil Judge (Senior Division). On 10.10.2001 while in service, a charge-sheet was served upon the petitioner alleging that, while he was working as JMFC at Surat, an accused Jasubhai Oad, facing Criminal Case No.751 of 1987 pending with Metropolitan Court at Ahmedabad, had contacted him to settle the case by misplacing the file. In this regard, Jasubhai Oad, in all, would pay a sum of rupees one lakh, out of which Rs.50,000/-was to be paid immediately and the remaining Rs.50,000/-was to be paid within a period of 2-3 months. As the second installment of Rs.50,000/-was not paid, it was decided that the petitioner would be paid interest @ 4% per month on the remaining amount of Rs.50,000/-. The amount of interest @ 4% per month was being paid to the petitioner since 1998. However, since October 2001, Jasubhai Oad failed to pay the interest of Rs.2000/-per month and accordingly a sum of Rs.10,000/-was outstanding against Jasubhai Oad. It is further case of the complainant that the petitioner made demand for this amount of Rs.10,000/-. The matter was then brought to the notice of the High Court. A trap was laid and Vigilance Cell of the High Court caught the accused red-handed while accepting Rs.10,000/- on 18.02.2001. 3. The charge-sheet further narrates that on examination of Rojnama of Criminal Case No.752 of 1997, it was found that orders were having rubber stamp without signature of the Magistrate and, therefore, for some obvious reasons during the period from March 1997 to March 2001, the case was not placed before the Magistrate and, therefore, the act of the petitioner amounted to indulging in corruption, thus unbecoming of a judicial officer. 4. The imputation was denied by the petitioner by filing a detailed report to the charge-sheet on 11.6.2002 taking various grounds, some of which are as under: (1) Charge-sheet was frivolous and false. 4. The imputation was denied by the petitioner by filing a detailed report to the charge-sheet on 11.6.2002 taking various grounds, some of which are as under: (1) Charge-sheet was frivolous and false. The complainant and the petitioner were known to each other since their college-days and were residing in the same locality till the petitioner started practicing at Ahmedabad; (2) On the date of trap, i.e. 18.02.2001, petitioner in a detailed statement had explained that the charges were motivated and false inasmuch as: (i) the amount of Rs.10,000/-which the petitioner alleged to have accepted as an amount of outstanding interest for five months (on the outstanding bribe of Rs.50,000/-) was in fact the amount outstanding towards a business transaction between the petitioner’s brother Karamshibhai and complainant’s brother-in-law Keshavsinh Mali. That the petitioner had come to complainant’s office with his brother to accept this outstanding amount of business transaction, as a mediator, on behalf of his brother, at the complainant’s behest on a call made the previous day of the trap on 17.2.2001. That while he was sitting at his brother’s residence on the day of trap, he was called to the complainant’s office where he went along with his brother Karamshibhai. His brother was asked to wait outside the office of the complainant and an amount of Rs.10,000/-was offered to the petitioner by the complainant, which was accepted by him. Petitioner was caught while accepting this amount, little knowing that the complainant had enroped him into a false case of accepting interest on outstanding instalment of bribe, when in fact the amount was being accepted by the petitioner as an outstanding amount of a business transaction which the complainant’s brother-in-law owed to the petitioner’s brother. (ii) Petitioner at the time of trap has given his version to the Vigilance Officer and has stated that in the business dealing with his brother, brother-in-law of the complainant Shri Keshavsinh had issued a bearer cheque of Rs.10,000/-to be paid to Shri Karamshibhai which was not honoured by bank (account No.886 of Syndicate Bank in the name of Mahesh Carting Agency). When this cheque was presented across counter, the same was returned with an endorsement “Insufficient Fund” and further it had an overwriting over the date. When this cheque was presented across counter, the same was returned with an endorsement “Insufficient Fund” and further it had an overwriting over the date. (iii) Karamshibhai (petitioner’s brother) has in a detailed statement submitted before the Vigilance Officer on 26.2.2001 stated that he had loaned an amount of Rs.10,000/-to the complainant’s brother-in-law and after repeated demands to repay the same, complainant’s brother-in-law, i.e. Keshavsinh, gave a bearer cheque dated 05.01.2001. When this cheque was presented in the bank on the same day, it was returned back across the counter for the reason of overwriting on the date column “2001” and also because of insufficient funds. The original cheque was shown to the Vigilance Officer and the Vigilance Officer kept a copy thereof with him. 5. Statements of Karamshibhai and Keshavsinh Mali were produced as prosecution documents and both these persons were cited as witnesses in the charge-sheet. 6. The High Court appointed Inquiry Officer. However, before the Inquiry Officer, only three witnesses of the department put in appearance, namely, (1) Shri Jasubhai Oad (complainant), (2) Panch Witness Shri K.K.Thakore and (3) Vigilance Officer Shri B.G. Bhatt. 7. It will be relevant to note that Shri Jasubhai Oad (complainant), who was the star witness of the department, failed to turn up for cross-examination despite 23 adjournments. Panch Witness Shri K.K. Thakore, a Deputy Mamlatdar was another witness examined by the High Court, who admitted in his deposition that he was already an accused in a corruption case. It will be relevant to note that Vigilance Officer Shri B.G.Bhatt, though recorded his examination-in-chief, but subsequently did not turn up for cross-examination. 8. On the other hand, the petitioner, in addition to his statement made on the day of trap, has examined himself (Exh.185) and has been cross-examined by the Inquiry Officer. He stood by his statement which has been supported by documentary evidence of leave reports to demolish the story that on 02.02.1997 and 16.02.1997 on Sundays prior to 02.03.1997 when the alleged first installment was paid, (Exh.186) as agreed on the previous Sundays, the petitioner was at Surat attending legal workshop on 16.2.1997. He stood by his statement which has been supported by documentary evidence of leave reports to demolish the story that on 02.02.1997 and 16.02.1997 on Sundays prior to 02.03.1997 when the alleged first installment was paid, (Exh.186) as agreed on the previous Sundays, the petitioner was at Surat attending legal workshop on 16.2.1997. That he was called by the complainant to Ahmedabad on 17.2.2001 to come to Ahmedabad on 18.2.2001 is also supported by the deposition of Shri M.K.Dave (Judicial Officer) who confirmed that the petitioner had informed him that he was going to Ahmedabad to settle a dispute of his brother. Evidence of Shri M.K.Dave examined by the petitioner is at Ex.189. 9. The Inquiry Officer took into account various aspects of this case and submitted his report on 28.2.2006 holding that the charges levelled against the petitioner were not proved. The petitioner, who was under suspension since 10.05.2001 continued to remain under suspension even after exoneration at the hands of the Inquiry Officer and, more than 4-1/2 years after the report dated 28.2.2006, a show cause notice dated 30.9.2010 was issued by the High Court (on its administrative side), inter alia, taking a tentative decision dated 13.8.2010 coming to the conclusion to differ with the findings of Inquiry Officer and holding the petitioner to be guilty on the grounds mentioned in the report and with the suggestion as to why the petitioner should not be dismissed from service. Together with the show cause notice dated 30.9.2010, petitioner was supplied a copy of inquiry report dated 28.2.2006 and a copy of tentative decision dated 13.8.2010 which are at Annexure-D to the file. After receipt of the show cause notice, petitioner filed a representation dated 24.11.2010 explaining in detail as to how the petitioner was victimized, that there was no reason to disagree with the findings of Inquiry Officer. Petitioner requested for a personal hearing. A copy of the representation of the petitioner is at Annexure-E to the file. Petitioner received another communication dated 10.2.2011 from respondent No.2 asking explanation from the petitioner on tentative decision dated 13.8.2010. Petitioner replied to the show cause notice dated 10.2.2011 vide reply dated 14.3.2011 reiterating the fact that his reply dated 24.11.2010 be taken as reply to the said notice. Petitioner received another communication dated 10.2.2011 from respondent No.2 asking explanation from the petitioner on tentative decision dated 13.8.2010. Petitioner replied to the show cause notice dated 10.2.2011 vide reply dated 14.3.2011 reiterating the fact that his reply dated 24.11.2010 be taken as reply to the said notice. However, the petitioner, without having been given an opportunity of personal hearing, was dismissed from service pursuant to the recommendation of the Hon’ble High Court after a decision taken in the Full Court Meeting held on 28.7.2011 agreeing with the Standing Committee recommendations dated 21.6.2011. Based on this recommendation, the State Government through its Legal Department, issued notification dated 14.9.2011 dismissing the petitioner from service. 10. Learned counsel for the petitioner has submitted that Criminal Case No.752 of 1987 was filed against Jasubhai Oad for the offences punishable under sections 324, 504 & 114 of the Indian Penal Code and this criminal case was pending in Metropolitan Court No.7 at Ahmedabad. Apart from the case in question, said Jasubhai Oad was facing two other cases, trials of which were going on in various Courts. There was no reason for the complainant to approach the petitioner for settlement of one case when two other cases of more serious nature were pending in the Court. If a sum of rupees one lakh were in the account of Jasubhai Oad and on 2.3.1997 when the alleged sum of Rs.50,0000/- has been paid to the petitioner, there was no reason to withhold the remaining amount of Rs.50,000/-and agreeing to pay interest @ 4% per month. If a sum of rupees one lakh has been withdrawn on that date, the same could have been paid to the petitioner. According to him, the case of the department was further falsified from the fact that the petitioner has been making telephonic calls to Jasubhai Oad for payment. From the documentary evidence it was apparent that on various occasions the complainant had telephoned the petitioner to come and settle the dispute and it was the complainant who has been making telephone calls. From the documentary evidence it was apparent that on various occasions the complainant had telephoned the petitioner to come and settle the dispute and it was the complainant who has been making telephone calls. The fact regarding favour and not putting the matter before the Judicial Magistrate was also falsified in view of the evidence of the Magistrate examined by the petitioner wherein it was deposed that because of huge pendency and heavy board, it was the practice to affix court stamp on orders and most of the times signatures of judicial officer were not obtained by the Court staff. Finally it has been submitted that in absence of the complainant and the Vigilance Officer not turning up for cross-examination, their examination-in-chief cannot be read against the petitioner, and as such the petitioner cannot be penalized and held guilty for the charges framed against him. 11. Learned counsel also referred to the detailed reasoning given by the Inquiry Officer while reaching to the conclusion that the charges against the petitioner were not proved and accordingly found him not guilty. 12. On the other hand, while appearing on behalf of the High Court, learned senior counsel Mr.Shalin Mehta has referred to the circumstances in which trap has been laid and the petitioner was caught while accepting Rs.10,000/-. According to him, the trap was successful and in view of that, the petitioner has been rightly dismissed from service for accepting bribe in order to save the complainant in a criminal case. Learned counsel also took up the point regarding conduct of the judicial officer. While attacking the defence of petitioner, learned senior counsel has submitted that it was not expected from a judicial officer to participate in private matters/disputes involving financial liability existing between his own brother and brother-in-law of Jasubhai Oad (complainant) and this act of the petitioner amounted to unbecoming of a judicial officer, and as such he has been rightly dismissed from service. 13. Apart from oral submissions, he has also filed a detailed reply. While arguing on the aspect of delay of 4-1/2 years between the Inquiry Report dated 28.2.2006 and tentative decision dated 13.8.2010, it has been submitted that Inquiry Report was placed before Disciplinary Committee. However, the Disciplinary Committee was changed from time to time and as such there was some delay in taking tentative decision dated 13.8.2010. While arguing on the aspect of delay of 4-1/2 years between the Inquiry Report dated 28.2.2006 and tentative decision dated 13.8.2010, it has been submitted that Inquiry Report was placed before Disciplinary Committee. However, the Disciplinary Committee was changed from time to time and as such there was some delay in taking tentative decision dated 13.8.2010. Finally it has been argued that the petitioner committed an act of unbecoming of a judicial officer by involving himself in private disputes involving financial liabilities and as such he has been rightly dismissed from service vide the impugned notification. 14. We have heard learned counsel for the parties and have also gone through various documents including Inquiry Report placed on the file. It is case of the department that the petitioner while working as a judicial officer demanded an amount of rupees one lakh as gratification from the complainant in the year 1997. A sum of Rs.50,000/-was paid in the year 1997. However, the remaining amount of Rs.50,000/-could not be paid and as such the complainant has been paying interest @ 4% per month uptill the date of trap. Further it is case of the department that the outstanding amount of interest has increased to Rs.10,000/-and as such the petitioner has been making phone calls to the complainant and ultimately came to the house of the complainant on 18.2.2001 where a trap has been laid and the petitioner has been apprehended while accepting Rs.10,000/- as illegal gratification. 15. The main witnesses of the department to prove the fact regarding trap and recovery of Rs.10,000/-were the complainant, his brother-in-law and the Vigilance Officer appointed by the High Court. It will be relevant to note that the complainant failed to turn up for cross-examination despite 23 adjournments. Brother-in-law of the complainant, namely, Karamshibhai deposed in favour of the petitioner and the Vigilance Officer also failed to turn up for cross-examination. 16. No doubt, in departmental proceedings, a delinquent can be held guilty without strict proof as is required in a criminal case, but prima facie it has to be established that charges levelled against the delinquent are sufficiently proved by leading cogent and convincing evidence. 17. 16. No doubt, in departmental proceedings, a delinquent can be held guilty without strict proof as is required in a criminal case, but prima facie it has to be established that charges levelled against the delinquent are sufficiently proved by leading cogent and convincing evidence. 17. The fact regarding trap is not much in dispute in this case as it is the admission of the petitioner that he has gone to the house of the complainant and has accepted Rs.10,000/-which were outstanding on account of business dispute between his brother Karamshibhai and brother-in-law of complainant Keshavsinh Mali. Immediately after the trap, statement of the petitioner has been recorded by Vigilance Officer wherein he has narrated the fact regarding dispute and has also produced a cheque of Rs.10,000/-in original which has been given by the brother-in-law of the complainant to the brother of the petitioner and this cheque was dishonoured by the bank. A copy of this cheque has been retained by the Vigilance Officer with him. Giving of this version immediately at the time of trap and production of the cheque was sufficient to drop the proceedings against a judicial officer, but the Vigilance Officer for the reasons best known to him continued with the proceedings and ultimately succeeded in getting a charge-sheet issued to the petitioner. 18. In the proceedings before the Inquiry Officer, Mr.Shital Shah and Mr.Bhaskar Vyas, who were clerks in the Metropolitan Court and cited as panch witnesses, were examined on 26.2.2011. These witnesses have stated that due to arrears they were not taking signatures of the Magistrate. During investigation, the Vigilance Officer admitted that he did not find any evidence to show that the case against the complainant was suppressed and remained at the same stage since 1997 to 2001. It will be relevant to note that on the basis of the evidence of the Magistrate, proceedings since 1997 to 2001, and on examination of rojkam it was found that case was adjourned 93 times out of which complainant remained present on 13 times; on 11 occasions applied for cancellation of warrant and at no time the case was suppressed or misplaced as imputed in the show cause notice. 19. 19. Disciplinary Authority in this case seems to have failed to appreciate the observations of the Inquiry Officer: “Needless to say that if charged employee holds position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Judging the present inquiry in that background, the conclusion of Vigilance Officer-II Mr.Bhatt in the final report and in light of evidence adduced before the Inquiry Officer are nothing but they are deliberately designed to frame delinquent in the various incidents which has never occurred as alleged except trap part.” 20. Disciplinary Authority has not only disagreed with the findings of the Inquiry Officer on this count, but also held that the petitioner as a judicial officer could not have participated in private domestic dispute. It will be relevant to note that the disciplinary authority has not recorded any finding of guilt on the charges framed but held the petitioner guilty of misconduct for which he was never charged. 21. This case can be viewed from another angle. Suppose there is a widowed mother of a judicial officer who is owning a house which has been occupied by tenant and dispute in this regard is going on. If her only son, a judicial officer, goes to the tenant to settle that dispute and in this settlement accepts some money outstanding towards the rent, can it be said that the judicial officer should not have intervened in the dispute of his mother ? We are of the considered opinion that the judicial officer will be fully justified to fight for the cause of his mother in order to get the house vacated, while working within limitations of law. We are unable to agree with the arguments of learned counsel representing the High Court that it was unbecoming of a judicial officer to have participated in personal dispute of his brother. Had this officer abused his position or influenced the complainant to settle the dispute, it can be said that he has exceeded his limits. However, in the case in hand, to our mind, he was fully justified in going to the house of the complainant and settling the dispute. It is a matter of record that complainant Jasubhai Oad himself telephoned the petitioner to come and settle the dispute with his brother. However, in the case in hand, to our mind, he was fully justified in going to the house of the complainant and settling the dispute. It is a matter of record that complainant Jasubhai Oad himself telephoned the petitioner to come and settle the dispute with his brother. This is particularly so as he was resident of the same locality and was known to the complainant from the days of his childhood. So, the crucial question would be, whether the petitioner had demanded any amount as gratification to show any official favour and whether such amount was paid by the complainant and accepted by the petitioner. Mere recovery of tainted money divorced from the circumstances under which it was paid is not sufficient to dismiss the delinquent from service when substantive evidence in the case is not reliable. Mere recovery by itself cannot prove the charge of authorities against the delinquent in absence of any evidence to prove the fact that money recovered from the petitioner was a bribe money. 22. Learned senior counsel Mr.Shalin Mehta, appearing for the High Court, has laid much emphasis on the point that the trap was successful and it was the petitioner who was required to explain as to how he came into possession of the amount recovered from him during the trap. The argument of learned senior counsel seems to be based on section 20 of the Prevention of Corruption Act 1988, which reads as under: “Sec.20. Presumption where public servant accepts gratification other than legal remuneration (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be Inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.” 23. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once said premise is established, the inference to be drawn is that the said gratification was accepted as a motive or reward for doing or for forbearing to do any official act. However, it is settled that presumption to be drawn in corruption cases is an inviolable one. The judicial officer charged with such offence could rebut it either through cross-examination of witnesses cited against him or by adducing reliable evidence. If the officer fails to disprove the presumption, it can be held by the authorities that prosecution has proved that the officer received the money towards gratification. 24. In the present case, not only the complainant and the Vigilance Officer failed to turn up for cross-examination and failed to prove the charges against the petitioner, but the petitioner through cogent, convincing and documentary evidence succeeded in proving that the amount recovered from him was in fact the amount of business transaction regarding a dispute going on between his brother and brother-in-law of the complainant. The other circumstances brought on record also dispel the charge regarding doing any favour to a person for delaying the proceedings or having made telephonic calls to the complainant etc. The Vigilance Officer seems to have chosen an entry of 1997 as no other entry suited the story made by the complainant. 25. The other circumstances brought on record also dispel the charge regarding doing any favour to a person for delaying the proceedings or having made telephonic calls to the complainant etc. The Vigilance Officer seems to have chosen an entry of 1997 as no other entry suited the story made by the complainant. 25. We have no doubt that in the present case, after defence version of the petitioner, the burden once again shifted upon the authorities to prove the case beyond reasonable doubt. It is well established that where burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence of proof of his case beyond a reasonable doubt. It is of course the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused, but the same test cannot be applied to an accused person who seeks to discharge the burden. 26. In view of this background, we have examined the defence of the petitioner, and the circumstances found by the High Court in their totality do not establish that the petitioner accepted the amount of Rs.10,000/-as gratification. Having gone through the findings of the Inquiry Officer, we are convinced that the petitioner has proved his case by the test of preponderance of probability. Accordingly, we hold that the amount recovered from the petitioner was in fact the amount which brother-in-law of the complainant owed to the brother of the petitioner and was for settlement of the dispute in between them. The authorities seems to have failed in establishing the guilt of the petitioner beyond reasonable doubt that the petitioner received any gratification. 27. For the aforesaid reasons, we have no option but to allow the petition. The petition succeeds and is accordingly allowed. The order of punishment imposed by the High Court of dismissal from service and the impugned notification issued by the State of Gujarat are set aside. The petitioner is ordered to be taken back into service with full back salary and seniority. He shall be allowed to join back with honours and dignity. The High Court will be further liable to pay interest @ 9% per annum from the date the amount had become payable to the petitioner till the same is paid. The petitioner is ordered to be taken back into service with full back salary and seniority. He shall be allowed to join back with honours and dignity. The High Court will be further liable to pay interest @ 9% per annum from the date the amount had become payable to the petitioner till the same is paid. If any amount has been paid to the petitioner during his suspension period, the same shall be deducted while calculating total amount/arrears payable to the petitioner. The amount so payable shall be paid within a period of six weeks from the date of receipt of a copy of this order. Rule is made absolute. 28. Before parting with this judgment, we would like to mention that the trap against the petitioner was laid in the year 2001 and since then he remained under suspension and ultimately dismissed from service on 14.9.2011, though he has some more years to serve. The humiliation and agony suffered by the petitioner cannot be compensated in terms of money. He might be having grown up children by now and the children must have grown up with the stigma that their father has been dismissed from service. He might be facing humiliation from his relatives and friends for having been dismissed from service as a judicial officer. All these injuries cannot be compensated in terms of money. Serious mistake seems to have been committed by the Vigilance Officer appointed by the High Court. Though the Inquiry Officer gave a detailed reasoning for deciding in favour of the petitioner, but the Standing Committee of the High Court and the Full Court once again seems to have committed an error by holding the petitioner to be guilty of the charges and also for misconduct while being a judicial officer. Though imposition of cost of even Rs.10 lakhs in this case will be insufficient, but looking to the fact that High Court itself is a judicial institution meant for administering justice, we impose a token cost of Re.1/-on the High Court which shall be paid to the petitioner along with the arrears as explained in aforesaid paras. Petition allowed.