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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2668 of 2005
Nirmala J. Jhala …Appellant
Versus
State of Gujarat & Anr. … Respondents
J U D G M E N T
Dr. B.S. Chauhan, J:
1. This appeal has been preferred against the impugned judgment
and order dated 25.8.2004, passed in Special Civil Application
No.5759 of 1999, by way of which the challenge to punishment order
of compulsory retirement of the appellant has been turned down.
2. Facts and circumstances giving rise to this appeal are:
A. That the appellant had joined the Gujarat State Judicial Service
in 1978, and was promoted subsequently as Civil Judge (Senior
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Division) in 1992. She was posted as Chief Judicial Magistrate
(Rural) in Ahmedabad.
In December 1991, she was trying one
Gautam Ghanshyam Jani in CBI Case No.5 of 1991 for the offence of
misappropriation and embezzlement of public money. The accused
filed a complaint with the CBI on 19.8.1993, against the appellant
alleging that she had demanded a sum of Rs.20,000/- on 17.8.1993 as
illegal gratification, to pass order in his favour, through one C.B.
Gajjar, Advocate.
As it was not possible for the complainant to pay
the said amount, the appellant had agreed to accept the same in
installments, and in order to facilitate the said complainant’s efforts to
arrange the said amount in part, she had even granted adjournment.
B. The said complaint filed with the CBI was referred to the High
Court and in pursuance thereof, a preliminary enquiry was conducted
against the appellant in which statements of various persons including
C.B. Gajjar and G.G. Jani were recorded.
The Court then suspended
the appellant vide order dated 21.1.1994, and directed a regular
enquiry appointing Shri M.C. Patel, Additional Civil Judge, City Civil
Court, Ahmedabad as the Enquiry Officer.
C. A chargesheet dated 6.8.1994, containing 12 charges was
served upon the appellant. One of the main charges was, the demand
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of illegal gratification to the tune of Rs.20,000/- from G.G. Jani
through C.B. Gajjar, Advocate in lieu of favouring the
complainant/accused. Another relevant charge was that a person
known as “Mama” amongst the litigants, would come to her
residence, accompany her to court, and collect money from litigants
on her behalf and thus, she had indulged in corrupt practices.
D. During the course of the enquiry, G.G. Jani, C.B. Gajjar, P.K.
Pancholi and certain other witnesses were examined by the
department and in her defence, the appellant examined herself
denying all the allegations made against her. The Enquiry Officer
submitted his report on 24.10.1997, holding the appellant guilty of the
first charge and partially guilty of the second charge, i.e. to the extent
that one person named “Mama” used to visit her quite frequently.
However, it could not be proved that he had ever misused his
association with the appellant in any respect. All other charges were
found unsubstantiated.
E. In pursuance of the report submitted by the Enquiry Officer, the
matter was examined on the administrative side by the High Court,
and after meeting various legal requirements i.e. issuing show cause
notice to the appellant and considering her reply, the Court vide
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resolution dated 12.10.1998, made a recommendation to the State that
the appellant was guilty of the first charge, and thus, punishment of
compulsory retirement be imposed on her. The Government accepted
the same and issued a notification giving compulsory retirement to the
appellant on 11.12.1998.
F. Aggrieved, the appellant challenged the said order of
punishment, by filing a Special Civil Application No.5759 of 1999
before the High Court on the ground that the findings of the Enquiry
Officer were perverse and based on no evidence. However, the said
civil application was dismissed by the High Court, vide impugned
judgment and order dated 25.8.2004.
Hence, this appeal.
3. Ms. Mahalakshmi Pavani, learned counsel appearing for the
appellant, has submitted that one Gautam Ghanshyam Bhai Jani, an
officer of Oriental Insurance Company at Mehasana had been
involved in a CBI case for the offence punishable under Sections 406,
467 and 471 of Indian Penal Code, 1860. After investigation, a
chargesheet had been filed against him in the court of the Chief
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Judicial Magistrate, Mirzapur in case no.5 of 1991. Shri Bhatt, the
then CJM had liberally granted long adjournments to the accused
complainant. The case had started in 1991, but no progress was made
till 1993, as the accused-complainant had only been seeking
adjournments. The appellant had joined in the said Court as CJM in
1993, and wanted to conclude the trial, thus, she granted short
adjournments. The accused/complainant was being represented by
Shri Pankaj Pancholi, Advocate. He had been granted adjournments
one or two times, but later on, the appellant refused to accommodate
him. She hence, began examining witnesses even in the absence of the
complainant’s advocate. The complainant was directed/ instructed to
keep his advocate present, and in the event that Shri Pankaj Pancholi
was not available, to make alternative arrangement. Shri Pankaj
Pancholi introduced the accused-complainant to Shri C.B. Gajjar,
Advocate practicing therein. Shri Pankaj Pancholi told Shri Gajjar
that as the accused-complainant was his relative, he was not in a
position to ask the accused to pay fees. Thus, Shri Gajjar should ask
the accused-complainant to pay a sum of Rs.20,000/- to be paid to the
appellant, in order to get a favourable order. The appellant did not
meet Shri Gajjar in her chamber, nor did she put up any demand. The
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complaint, however, was motivated as the appellant was a very strict
officer. This theory of demand/bribe and further, the readiness to
accept the same in installments, was a cooked up story. The findings
of fact recorded by the Enquiry Officer are perverse, as Shri Gajjar,
Advocate has denied meeting the appellant in her chamber. The High
Court did not appreciate the evidence in correct perspective and failed
to protect a honest judicial officer, which was its obligation. The
punishment imposed is too severe and disproportionate to the
delinquency. Therefore, the appeal deserves to be allowed.
4. Per contra, Ms. Enatoli K. Sema, learned counsel for the
respondents has opposed the appeal contending that the case of
demand of bribe, and an agreement to accept the same in installments,
stands fully proved. Rule 6 of the Gujarat Civil Services (Discipline
& Appeal) Rules, 1971, provides for major penalties in the event that
a charge is proved against the delinquent, which include reduction to a
lower stage in the timescale of pay for a specified period; reduction to
a lower time scale of pay; compulsory retirement; removal from
service and dismissal from service. The High Court was lenient and
only imposed a punishment of compulsory retirement, otherwise it
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was a fit case where the appellant ought to have been dismissed from
service. There is ample evidence on record to establish the charge of
corruption against her, which has been properly appreciated by the
Enquiry Officer, as well as by the High Court. Standard of proof
required in a case of Departmental Enquiry is not that of “beyond
reasonable doubt”, as required in a criminal trial. Moreover, the scope
of judicial review is limited in such a case. Thus, no interference is
called for.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
It may be pertinent to deal with the legal issues involved herein,
before dealing with the case on merits.
6. LEGAL ISSUES:
I. Standard of proof in a Departmental Enquiry which is
Quasi Criminal/Quasi Judicial in nature :
A. In M. V. Bijlani v. Union of India and Ors., AIR 2006 SC
3475, this Court held :
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“ … Disciplinary proceedings, however, being quasicriminal in nature, there should be some evidences to
prove the charge. Although the charges in a
departmental proceedings are not required to be proved
like a criminal trial, i.e., beyond all reasonable doubts,
we cannot lose sight of the fact that the Enquiry Officer
performs a quasi-judicial function, who upon analysing
the documents must arrive at a conclusion that there
had been a preponderance of probability to prove the
charges on the basis of materials on record. While
doing so, he cannot take into consideration any
irrelevant fact. He cannot refuse to consider the
relevant facts. He cannot shift the burden of proof. He
cannot reject the relevant testimony of the witnesses
only on the basis of surmises and conjectures.”
(Emphasis added)
(See also : Narinder Mohan Arya v. United India Insurance Co.
Ltd. & Ors, AIR 2006 SC 1748; Roop Singh Negi v. Punjab
National Bank and Ors, AIR 2008 SC (Supp) 921; and
Krushnakant B. Parmar v. Union of India & Anr ,(2012) 3 SCC
178)
B. In Prahlad Saran Gupta v. Bar Council of India & Anr, AIR
1997 SC 1338, this court observed that when the matter relates to a
charge of professional mis-conduct which is quasi-criminal in
nature, it requires proof beyond reasonable doubt. In that case the
finding against the delinquent advocate was that he retained a sum of
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Rs. 15,000/- without sufficient justification from 4-4-1978 till 2-5-
1978 and he deposited the amount in the Court on the latter date,
without disbursing the same to his client. The said conduct was found
by this Court as "not in consonance with the standards of professional
ethics expected from a senior member of the profession". On the said
fact-situation, this court imposed a punishment of reprimanding the
advocate concerned.
C. In Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, this
court made a distinction from the above judgment stating the facts in
the aforesaid decisions would speak for themselves and the distinction
from the facts of this case was so glaring that the misconduct of the
appellant in the present case was of a far graver dimension. Hence, the
said decision was not of any help to the appellant for mitigation of the
quantum of punishment.
D. In Noor Aga v. State of Punjab & Anr, AIR 2009 SC
(Supp) 852 , it was held that the departmental proceeding being a
quasi judicial one, the principles of natural justice are required to be
complied with. The Court exercising power of judicial review are
entitled to consider as to whether while inferring commission of
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misconduct on the part of a delinquent officer relevant piece of
evidence has been taken into consideration and irrelevant facts have
been excluded there from. Inference on facts must be based on
evidence which meet the requirements of legal principles. (See also:
Roop Singh Negi v. Punjab National Bank & Ors, AIR 2008 SC
(Supp) 921; Union of India & Ors. v. Naman Singh Sekhawat.
(2008) 4 SCC 1; and Vijay Singh v. State of U.P. & Ors. AIR 2012
SC 2840)
E. In M. S. Bindra v. Union of India & Ors , AIR 1998 SC
3058, it was held:
“While evaluating the materials the authority should not
altogether ignore the reputation in which the officer was
held till recently. The maxim "Nemo Firut Repente
Turpissimus" (no one becomes dishonest all on a
sudden) is not unexceptional but still it is salutary
guideline to judge human conduct, particularly in the
field of Administrative Law. The authorities should not
keep the eyes totally closed towards the overall
estimation in which the delinquent officer was held in
the recent past by those who were supervising him
earlier. To dunk an officer into the puddle of "doubtful
integrity" it is not enough that the doubt fringes on a
mere hunch. That doubt should be of such a nature as
would reasonably and consciously be entertainable by a
reasonable man on the given material. Mere possibility
is hardly sufficient to assume that it would have
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happened. There must be preponderance of probability
for the reasonable man to entertain doubt regarding
that possibility. Only then there is justification to ram an
officer with the label ‘doubtful integrity’.”
F. In High Court of Judicature at Bombay through its
Registrar v. Udaysingh & Ors, AIR 1997 SC 2286, this Court held :
“The doctrine of `proof beyond doubt’ has no
application. Preponderance of probabilities and some
material on record would be necessary to reach a
conclusion whether or not the delinquent has
committed misconduct.”
G. In view of the above, the law on the issue can be summarised to
the effect that the disciplinary proceedings are not a criminal trial, and
in spite of the fact that the same are quasi-judicial and quasi-criminal,
doctrine of proof beyond reasonable doubt, does not apply in such
cases, but the principle of preponderance of probabilities would apply.
The court has to see whether there is evidence on record to reach the
conclusion that the delinquent had committed a misconduct. However,
the said conclusion should be reached on the basis of test of what a
prudent person would have done. The ratio of the judgment in
Prahlad Saran Gupta (supra) does not apply in this case as the said
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case was of professional misconduct, and not of a delinquency by the
employee.
II. Duty of Higher Judiciary to protect subordinate judicial
officers:
(a) In Ishwar Chand Jain v. High Court of Punjab and
Haryana & Anr, AIR 1988 SC 1395, it was held:
“14. Under the Constitution the High Court has control
over the subordinate judiciary. While exercising that
control it is under a, constitutional obligation to guide
and protect, judicial officers. An honest strict judicial
officer is likely to have adversaries in the mofussil
courts. If complaints are entertained on trifling matters
relating to judicial orders …… no judicial officer would
feel protected and it would be difficult for him to
discharge his duties in an honest and independent
manner. An independent and honest judiciary is a sine
qua non for Rule of law…….. It is therefore imperative
that the High Court should also take steps to protect its
honest officers by ignoring ill-conceived or motivated
complaints made by the unscrupulous lawyers and
litigants.”
(b) In Yoginath D. Bagde v. State of Maharashtra & Anr, AIR
1999 SC 3734, it was held:
“The Presiding Officers of the Court cannot act as
fugitives. They have also to face sometimes
quarrelsome, unscrupulous and cantankerous litigants
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but they have to face them boldly without deviating from
the right path. They are not expected to be overawed by
such litigants or fall to their evil designs.”
(c) A subordinate judicial officer works mostly in a charged
atmosphere. He is under a psychological pressure - contestants and
lawyers breathing down his neck. If the fact that he renders a decision
which is resented by a litigant or his lawyer were to expose him to
such risk, it will sound the death knell of the institution. “Judge
bashing" has become a favourite pastime of some people. There is
growing tendency of maligning the reputation of judicial officers by
disgruntled elements who fail to secure an order which they desire.
For functioning of democracy, an independent judiciary, to dispense
justice without fear and favour is paramount. Judiciary should not be
reduced to the position of flies in the hands of wanton boys. (Vide :
L.D. Jaikwal v. State of U.P, AIR 1984 SC 1374; K.P. Tiwari v.
State of Madhya Pradesh, AIR 1994 SC 1031; Haridas Das v. Smt.
Usha Rani Banik & Ors., etc. AIR 2007 SC 2688; and In Re : Ajay
Kumar Pandey, AIR 1998 SC 3299)
(d) The subordinate judiciary works in the supervision of the High
Court and it faces problems at the hands of unscrupulous litigants and
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lawyers, and for them “Judge bashing” becomes a favourable pastime.
In case the High Court does not protect the honest judicial officers,
the survivor of the judicial system would itself be in danger.
III. Scope of Judicial Review :
(i) It is settled legal proposition that judicial review is not akin to
adjudication on merit by re-appreciating the evidence as an Appellate
Authority. The only consideration the Court/Tribunal has in its
judicial review, is to consider whether the conclusion is based on
evidence on record and supports the finding or whether the conclusion
is based on no evidence. The adequacy or reliability of the evidence is
not a matter which can be permitted to be canvassed before the Court
in writ proceedings. (Vide: State of T.N. & Anr v. S. Subramaniam,
AIR 1996 SC 1232; R.S. Saini v. State of Punjab, (1999) 8 SCC 90;
and Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah
Khan, AIR 2006 SC 1214)
(ii) In Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537,
this Court while dealing with the issue of scope of judicial review,
held as under:
“The principle that if some of the reasons relied on by a
Tribunal for its conclusion turn out to be extraneous or
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otherwise unsustainable, its decision would be vitiated,
applies to cases in which the conclusion is arrived at not
on assessment of objective facts or evidence, but on
subjective satisfaction. The reason is that whereas in
cases where the decision is based on subjective
satisfaction if some of the reasons turn out to be
irrelevant or invalid, it would be impossible for a
superior Court to find out which of the reasons,
relevant or irrelevant, valid or invalid, had brought
about such satisfaction. But in a case where the
conclusion is based on objective facts and evidence, such
a difficulty would not arise. If it is found that there was
legal evidence before the Tribunal, even if some of it was
irrelevant, a superior Court would not interfere if the
finding can be sustained on the rest of the evidence.
The reason is that in a writ petition for certiorari the
superior Court does not sit in appeal, but exercises only
supervisory jurisdiction, and therefore, does not enter
into the question of sufficiency of evidence.”
(Emphasis added)
(iii) The decisions referred to hereinabove highlights clearly, the
parameter of the Court’s power of judicial review of administrative
action or decision. An order can be set-aside if it is based on
extraneous grounds, or when there are no grounds at all for passing it
or when the grounds are such that, no one can reasonably arrive at the
opinion. The Court does not sit as a Court of Appeal but, it merely
reviews the manner in which the decision was made. The Court will
not normally exercise its power of judicial review unless it is found
that formation of belief by the statutory authority suffers from
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malafides, dishonest/corrupt practice. In other words, the authority
must act in good faith. Neither the question as to whether there was
sufficient evidence before the authority can be raised/examined, nor
the question of re-appreciating the evidence to examine the
correctness of the order under challenge. If there are sufficient
grounds for passing an order, then even if one of them is found to be
correct, and on its basis the order impugned can be passed, there is no
occasion for the Court to interfere. The jurisdiction is circumscribed
and confined to correct errors of law or procedural error, if any,
resulting in manifest miscarriage of justice or violation of principles
of natural justice. This apart, even when some defect is found in the
decision-making process, the Court must exercise its discretionary
power with great caution keeping in mind the larger public interest
and only when it comes to the conclusion that overwhelming public
interest requires interference, the Court should intervene.
IV. Punishment in corruption cases:
In Municipal Committee, Bahadurgarh v. Krishnan Bihari
& Ors., AIR 1996 SC 1249, this Court held as under:
“In a case of such nature - indeed, in cases involving
corruption - there cannot be any other punishment than
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dismissal. Any sympathy shown in such cases is totally
uncalled for and opposed to public interest. The amount
misappropriated may be small or large; it is the act of
misappropriation that is relevant.”
In Divisional Controller N.E.K.R.T.C. v. H. Amaresh, AIR
2006 SC 2730, this court held that the punishment should always be
proportionate to the gravity of the misconduct. However, in a case of
corruption, the only punishment is dismissal.
Similar view has been reiterated in U.P.S.R.T.C. v. Vinod
Kumar, (2008) 1 SCC 115; and U.P. State Road Transport Corp. v.
Suresh Chand Sharma, (2010) 6 SCC 555.
7. The case at hand is required to be considered in light of the
aforesaid settled legal propositions.
8. In the instant case, after the preliminary enquiry, when the
regular enquiry was conducted, three star witnesses were examined by
the department.
9. Shri G.G. Jani, complainant-accused in his examination-inchief has deposed that he had been an employee of the Oriental
Insurance Co. at Mehasana, and at the relevant time, was facing a
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criminal case for mis-appropriation of money, and for producing up
false documents. His case was initially tried by Shri Bhatt, the then
Chief Judicial Magistrate in 1991 and he happened to give him long
adjournments. Later when the appellant was hearing the case, only
short adjournments were granted. Pankaj Pancholi, who was
practicing as an advocate in the High Court, was engaged by him.
Initially he had got the case adjourned twice, but he could not attend
on the subsequent dates. As a result the appellant started examining
the witnesses even in his advocate’s absence. The appellant had
instructed the complainant-accused to keep his advocate present, or to
make an alternative arrangement. The case was fixed for 13.8.1993,
and on that date, on the instructions of Shri Pancholi, Shri C.B. Gajjar,
advocate came to the court. He got the complainant-accused to sign
his vakalatnama. Shri C.B. Gajjar had told him not to worry as he was
having very good relations with the appellant, and he would be able to
get adjournments. He sought adjournment and the appellant fixed the
case for 20.8.1993. Shri C.B. Gajjar called the complainant on
17.8.1993 near the chamber of the appellant in court compound at
about 4 to 4.30 p.m. On reaching there he had met Shri C.B. Gajjar,
who had told him that he would talk to Madam to decide the case in
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his favour and went to her chamber at about 5.00 p.m. The
complainant remained standing outside in the lobby. The appellant
was in her chamber. Shri C.B. Gajjar had then came out, after 15
minutes and told the complainant that appellant had demanded
Rs.20,000/- to deliver the judgment in his favour. The complainant
told him that it was a very high amount and requested Shri C.B. Gajjar
to negotiate for a reasonable amount. Thereafter, Shri C.B. Gajjar
again went to her chamber. At that time, the complainant was standing
outside the door of the chamber. Shri Gajjar discussed his case with
the appellant in a slow voice. Shri C.B. Gajjar came out and told the
complainant that the amount was reasonable and he had to pay the
same on 19.8.1993. The witness requested Shri Gajjar to fix the
payment in instalments. Thus, it was agreed to make payment of the
first instalment of Rs.5,000/- on 20.8.1993. However, the arrangement
of money could not be made. The accused – complainant went to the
office of the CBI on 19.8.1993 and filed a complaint.
After receiving the complaint from the complainant, the CBI
tried to collect some evidence in the matter, and Shri C.B. Gajjar was
invited to Yamuna Hotel, where the panchas and the CBI people went
alongwith the complainant. Shri C.B. Gajjar came there, however, he
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got some doubt, therefore, he asked the complainant about the
identification of the persons present there and left the place
immediately. The complainant also deposed about some threat given
to his wife at the behest of the appellant to withdraw the complaint.
In his cross-examination, the complainant admitted that there
was a room adjacent to the chamber of the appellant for the use of
Stenographer, and also admitted that he did not hear the conversation
made between the appellant and Shri C.B. Gajjar, advocate. What he
has deposed was based on as what Shri Gajjar had told him. He
replied to suggestion made to him as under:
“Question: I say that in the case of C.B.I. against you, as
your advocate being your close relative, he was not able
to take the fee from you and for that reason, Advocate
Shri Gajjar was also not able to take fee from you.
Therefore, with a view to obtain his fee from you,
whether Shri Gajjar had demanded the same using the
name of the magistrate?
Answer: I do not want to say anything in this regard.”
10. Shri C.B. Gajjar, advocate, deposed that Shri P.K. Pancholi,
advocate had told him that the complainant-accused was brother of his
brother-in-law, so he could not ask him to pay any fee. Thus, it was
agreed that he should ask the complainant-accused to pay Rs.20,000/-,
as the amount was to be given to the appellant as a bribe to get a
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favourable order. Thus, in view thereof, he had told the complainantaccused that he had to pay Rs.20,000/- to the appellant to get a
favourable order. In his cross-examination, he deposed as under:
“I went to Miss Jhala’s court on 13.8.1993 in morning in
Gautambhai Jani’s case and after that never went there.
I did not go into the Chamber of Miss Jhala on
17.8.1993. No talk has taken place with her for money at
any time. …….Miss Jhala has not made any such
demand.”
Shri C.B. Gajjar further admitted that the appellant was
unmarried. Further, he admitted that he was called by the Vigilance
Officer and he made the statement before him. He admitted his
signature on the said statement and stated that it was correct.
11. Shri Pankaj K. Pancholi, advocate, did not support the case of
the department, and his evidence is of no use for determination of the
issue as to whether the appellant had demanded a bribe for deciding
the case in favour of the complainant-accused.
12. The appellant examined herself in defence and deposed that her
court was of the size of 50ft. x 30 ft. and chamber admeasured 22ft. x
14ft., and adjacent thereto, there was a chamber for Stenographer
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measuring 10ft. x 10ft. A person from outside could enter her
chamber only through the said stenographer’s room. Therefore,
nobody outside the room could hear any conversation which could be
had in the Magistrate chamber. Shri C.B. Gajjar, had appeared in her
court in the case of the complainant-accused on 13.8.1993 only and
sought adjournment. As the witness brought by CBI was present, she
had given a short adjournment, and fixed the matter for 20.8.1993.
She had not discussed anything with Shri Gajjar, advocate in her
chamber for CBI case No. 5/1991, or any other case. There could be
no talk about the demand of money for this case or any other case.
Shri C.B. Gajjar had come only into the court. She had not seen Shri
Gajjar on any other day, or on 17.8.1993. She had never met him
other than on that date in court either in chamber or any other place.
She was unmarried. She was not granting long adjournments in any
case, and instead asking the parties to keep their witnesses ready.
13. There was another witness examined by the department,
namely, Jethagir, Inspector working in the Income-Tax department in
the Vigilance. He deposed that he had gone out at the request of the
department and met complainant-accused. He was introduced to the
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complainant, and was taken to the court of the appellant on 20.8.1993,
but the appellant did not come to the court.
14. On the basis of the aforesaid evidence, the Enquiry Officer
prepared a report Ext. 121. So far as the charge 1 is concerned, he
appreciated the evidence as under:
“Now I turn to Shri Jani’s statement before the
Vigilance Officer which was recorded on 20.9.1993. In
that statement he repeated the allegations made in his
complaint dated 19.8.1993 to the CBI. He added that
when Shri Gajjar went again into the chamber of Miss
Jhala on 17.8.1993 to make a request for instalment, he
stood in front of the door near the chamber so as to able
to get an idea of the talk in the chamber. According to
him, when Shri Gajjar talked about instalment Miss
Jhala initially refused but when Shri Gajjar made a
request, she agreed to give instalment of Rs.5,000/-.
Shri Jani then gave the following account of what
happened in Yamuna Restaurant on 28.8.1993.
However, the gravest and clinching circumstance
against Miss Jhala is the fact that Shri Gajjar called Shri
Jani to meet him outside her chamber at 4.45 p.m. on
17.8.1993 and demanded Rs.20,000/- after a meeting
with her in her chamber no doubt both Miss Jhala and
Shri Gajjar had denied this allegation. However, the tenor
of Shri Gajjar’s statement before the Vigilance
Officer shows that the meeting in the Yamuna Hotel on
20.8.1993 was in pursuance of the previous talk between
Shri Jani and Shri Gajjar. On 13.8.1993, Shri Gajjar had
left the court after getting the case adjourned and there
was no talk about any payment at that time. The meeting,
therefore, took place after 13.8.1993 and before
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19.8.1993 when Shri Jani sent to the CBI Officer and
made the complaint. In the circumstances, there is no
reason to disbelieve Shri Jani’s account of what
happened on 17.8.1993 given in his complaint dated
19.8.1993.
In the circumstances, the assertion of Miss Jhala
and Shri Gajjar that there was no meeting between them
cannot be accepted as true….It may be that Shri Jani’s
claim to have been standing near the chamber so as to
be able to hear the talk is a subsequent improvement
but the fact that there was a meeting between Miss Jhala
and Shri Gajjar cannot be doubted and in the absence
of any explanation of the reason for the meeting, the
only inference that can be drawn in that Miss Jhala
demand illegal gratification and Shri Gajjar conveyed
the demand to Shri Jani. This inference is strengthened
by the fact that on this own say Shri Gajjar gave an
assurance to Shri Jani and Shri Gajjar in the Yamuna
Hotel that the work would be done and there would be no
cheating. Both Shri Jani and Shri Gajjar said in their
statements before the Vigilance Officer that Shri Gajjar
could accompany him to the residence of Miss Jhala
though she would not accept payment in person.
According to Shri Jani, Shri Gajjar said that the dealing
is made by her husband. It is said that Miss Jhala is
unmarried and hence there was no question of her
husband being present. But it is possible that the
payment was to be accepted by some other person
when Shri Gajjar loosely described as Miss Jhala’s
husband. ….It may be that Shri Gajjar was to retain part
of the amount but there is no doubt that Miss Jhala
agreed to accept illegal gratification for doing in favour
to Shri Jani and Shri Gajjar’s demand was in pursuance
of the meeting with Miss Jhala in her chamber on
17.8.1993.” (Emphasis added)
And thus, he reached the conclusion as under:
24Page 25
“As a result of the above discussion, I come to the
conclusion that Miss Jhala demanded or agreed to accept
illegal gratification through advocate Shri C.B. Gajjar for
doing favour to Shri Jani at her meeting with Shri Gajjar
in her chamber on 17.8.1993. The charge no.1 is
answered accordingly.”
15. The said report was accepted by the High Court and
recommendation for imposing the punishment of compulsory
retirement was made which was accepted by the State. The appellant
was given compulsory retirement. The High Court on Administrative
side appreciated the same evidence, and came to the conclusion as
under:
“The fact that Shri Jani and Shri Gajjar had a meeting
outside the chamber of the petitioner on 17.8.1993 at
about 5 o’clock in the evening and that Shri Gajjar had
gone inside the chamber of the petitioner twice and
demanded money on her behalf from Shri Jani to decide
the case in his favour has been believed by the Enquiry
Officer as well as by the High Court in its
recommendations. There are number of reasons why the
said conclusions appear to be eminently just. At no point
of time, the petitioner has alleged any animosity or illwill between her and Shri Jani. Neither in the crossexamination of Shri Jani, nor in her deposition before the
Enquiry Officer, the petitioner has even remotely
suggested any ill-will between them so as to falsely
implicate the petitioner.
We have also recorded earlier that Shri Gajjar and
Shri Jani had assembled outside the chamber of the
petitioner on 17.8.1993 and Shri Gajjar had entered the
25Page 26
chamber of the petitioner twice when the petitioner was
in her chamber demanded an amount of Rs.20,000/- on
behalf of the petitioner, there is absolutely no crossexamination of Shri Jani by the petitioner. Lack of
challenge to this most crucial element of the evidence
fully justified the findings of the competent
authority….
…….
…….When this is so, it was the duty of the petitioner to
explain the said circumstance. The petitioner instead of
satisfactorily explaining Shri Gajjar entering her chamber
twice on 17.8.1993 has completely disowned and denied
any such occurrence….. nor has the petitioner examined
any witness to show that she was not in the chamber on
the said day at 5 o’clock. Being court premises, surely
there would have been number of witnesses readily
available such as, her Bench Clerk, her Stenographer, etc.
who would be sitting outside her chamber, her Peon and
number of advocates who could watch for the fact that
the petitioner was not inside her chamber at 5.00 p.m. on
17.8.1993. No such attempt was made by the petitioner to
examine any witness. ……the petitioner’s total denial of
the incident and her unwillingness or inability to explain
Shri Gajjar entering her chamber on two occasions and
spending considerable time inside her chamber would, in
our view, be extremely damaging. Shri Gajjar’s entry in
her chamber on 17.8.1993 on two occasions would
assume further significance in view of the fact that Shri
Jani’s case was earlier fixed on 13.8.1993 and thereafter
adjourned to 20.8.1993 and that there was no other case
of Shri Gajjar on the board before the petitioner and that,
therefore, Shri Gajjar had absolutely no occasion to meet
the petitioner twice inside her chamber on 17.8.1993.
(Emphasis added)
26Page 27
16. The Division Bench of the High Court accepted the finding
arrived at by the Enquiry Officer, though admitting that there were
certain discrepancies in the evidence. The court held as under:
“We have noted that the Enquiry Officer has not
believed the say of Shri Jani when he suggested that he
could hear the conversation between the petitioner
and Shri Gajjar when he was standing outside the
chamber of the petitioner on 17.8.1993. The Enquiry
Officer has also discarded the possibility of the
petitioner having threatened Shri Jani. This, however,
by itself would not be sufficient for us to hold that the
findings of the Enquiry Officer and that of the High
Court in its recommendations were based on no evidence.
…….there was ample justification for coming to the
conclusion that the charge of having demanded illegal
gratification was proved against the petitioner.
Shri Jani in his statement at one place had stated
that his case before the petitioner was fixed on 13.8.1993
and thereafter adjourned to 20.8.1993 and on 20.8.1993,
it was again adjourned to 28.8.1993. We, therefore, to
verify the dates, called for the calendar of the year 1993.
The calendar of 1993 showed that August 28 was a 4th
Saturday, and therefore a non-working day for the court.
……..We also find that the size of the paper on which the
rozkam for the dates prior to 13.8.1993 was different
from the size of preceding and succeeding papers.
Discolouration of this page also seen different from other
pages and therefore raise suspicion.”
17. The High Court has rightly disbelieved the statement of the
complainant-accused that he could hear the conversation between the
appellant and Shri Gajjar. The said evidence was also discarded by
27Page 28
the Enquiry Officer. Further allegation that the appellant had
threatened the said complainant-accused to withdraw the complaint
was also found to be false. The entry of Shri C.B. Gajjar into the
chamber of the appellant on 17.8.1993, was not corroborated by any
other evidence. Shri C.B. Gajjar himself had also denied the same.
More so, the High Court has reached the conclusion by shifting
the burden of proof of negative circumstances upon the appellant.
The High Court has erred by holding that in respect of the incident
dated 17.8.1993 i.e. demand of amount, it was the duty of the
appellant to explain the said circumstance, and that instead of giving
any satisfactory explanation in respect of entry of Shri C.B. Gajjar,
she had completely disowned and denied any such occurrence. The
onus was always on the department to prove the said circumstance.
The court should have also taken note of the fact, that the matter was
adjourned for 28.8.1993, and being a 4th Saturday, it was a holiday.
The court further committed an error by holding, that the failure to
challenge the most crucial element of the evidence, regarding the
incident of 17.8.1993, in respect of a demand of bribe of Rs.20,000/-
fully justified the findings of the Enquiry Officer. Again, the High
28Page 29
Court shifted the onus to prove a negative circumstance on the
appellant.
18. The appellant had not married at that point of time, as per her
statement. Even this fact has been admitted by Shri C.B. Gajjar,
Advocate. Given the above set of facts, the complainant is seen
talking about appellant’s husband for collecting money on her behalf.
The High Court had failed to notice the above fact and had been
making attempts to keep aside all such relevant factors in a case,
where there was no direct evidence.
19. In the aforesaid backdrop, we have to consider the most
relevant issue involved in this case. Admittedly, the Enquiry Officer,
the High Court on Administrative side as well on Judicial side, had
placed a very heavy reliance on the statement made by Shri C.B.
Gajjar, Advocate, Mr. G.G. Jani, complainant and that of Shri P.K.
Pancholi, Advocate, in the preliminary inquiry before the Vigilance
Officer. Therefore, the question does arise as to whether it was
permissible for either of them to take into consideration their
statements recorded in the preliminary inquiry, which had been held
29Page 30
behind the back of the appellant, and for which she had no
opportunity to cross-examine either of them.
20. A Constitution Bench of this Court in Amlendu Ghosh v.
District Traffic Superintendent, North-Eastern Railway, Katiyar,
AIR 1960 SC 992, held that the purpose of holding a preliminary
inquiry in respect of a particular alleged misconduct is only for the
purpose of finding a particular fact and prima facie, to know as to
whether the alleged misconduct has been committed and on the basis
of the findings recorded in preliminary inquiry, no order of
punishment can be passed. It may be used only to take a view as to
whether a regular disciplinary proceeding against the delinquent is
required to be held.
21. Similarly in Chiman Lal Shah v. Union of India, AIR 1964
SC 1854, a Constitution Bench of this Court while taking a similar
view held that preliminary inquiry should not be confused with
regular inquiry. The preliminary inquiry is not governed by the
provisions of Article 311(2) of the Constitution of India. Preliminary
inquiry may be held ex-parte, for it is merely for the satisfaction of the
30Page 31
government though usually for the sake of fairness, an explanation
may be sought from the government servant even at such an inquiry.
But at that stage, he has no right to be heard as the inquiry is merely
for the satisfaction of the government as to whether a regular inquiry
must be held. The Court further held as under:
“…..There must, therefore, be no confusion
between the two inquiries and it is only when
the Government proceeds to hold a
departmental enquiry for the purpose of
inflicting on the government servant one of
the three major punishment indicated in
Article 311 that the government servant is
entitled to the protection of that Article, nor
prior to that.” (Emphasis added)
(See also: Government of India, Ministry of Home Affairs & Ors.
v. Tarak Nath Ghosh, AIR 1971 SC 823).
22. In Naryan Dattatraya Ramteerathakhar v. State of
Maharashtra & Ors., AIR 1997 SC 2148, this Court dealt with the
issue and held as under:
“…..a preliminary inquiry has nothing to do
with the enquiry conducted after issue of
charge-sheet. The preliminary enquiry is
only to find out whether disciplinary enquiry
should be initiated against the delinquent.
31Page 32
Once regular enquiry is held under the Rules,
the preliminary enquiry loses its importance
and, whether preliminary enquiry was held
strictly in accordance with law or by
observing principles of natural justice of nor,
remains of no consequence.
(Emphasis added)
23. In view of above, it is evident that the evidence recorded in
preliminary inquiry cannot be used in regular inquiry as the delinquent
is not associated with it, and opportunity to cross-examine the persons
examined in such inquiry is not given. Using such evidence would be
violative of the principles of natural justice.
24. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra
& Ors., AIR 2013 SC 58, this Court while placing reliance upon a
large number of earlier judgments held that cross-examination is an
integral part of the principles of natural justice, and a statement
recorded behind back of a person wherein the delinquent had no
opportunity to cross-examine such persons, the same cannot be relied
upon.
32Page 33
25. The preliminary enquiry may be useful only to take a prima
facie view, as to whether there can be some substance in the allegation
made against an employee which may warrant a regular enquiry.
26. “A prima facie case, does not mean a case proved to the hilt,
but a case which can be said to be established, if the evidence which is
led in support of the case were to be believed. While determining
whether a prima facie case had been made out or not, the relevant
consideration is whether on the evidence led, it was possible to arrive
at the conclusion in question and not whether that was the only
conclusion which could be arrived at on that evidence”. (Vide:
Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79)
(See also: The Management of the Bangalore Woollen Cotton and
Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny
Mills Labour Association, AIR 1960 SC 1352; State (Delhi Admn.)
v. V.C. Shukla & Anr., AIR 1980 SC 1382; Dalpat Kumar & Anr.
v. Prahlad Singh & Ors., AIR 1993 SC 276; and Cholan Roadways
Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570).
33Page 34
27. The issue, as to
whether in the instant case the material
collected in preliminary enquiry could be used against the appellant,
has to be considered by taking into account the facts and
circumstances of the case.
In the preliminary enquiry, the department
placed reliance upon the statements made by the accused/complainant
and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his statement has
given the same version as he has deposed in regular enquiry. Shri
Gajjar did not utter a single word about the meeting with the appellant
on 17.8.1993, as he had stated that he had asked the
accused/complainant to pay Rs. 20,000/- as was agreed with by Shri
P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar , complainant,
has definitely reiterated the stand he had taken in his complaint. The
chargesheet served upon the appellant contained 12 charges. Only first
charge related to the incident dated 17.8.1993 was in respect of the
case of the complainant. The other charges related to various other
civil and criminal cases. The same were for not deciding the
application for interim reliefs etc.
28. The chargesheet was accompanied by the statement of
imputation, list of witnesses and the list of documents. However, it
34Page 35
did not say that so far as Charge No. 1 was concerned, the preliminary
enquiry report or the evidence collected therein, would be used/relied
upon against the appellant.
There is nothing on record to show that either the preliminary
enquiry report or the statements recorded therein, particularly, by the
complainant/accused or Shri C.B. Gajjar, advocate, had been
exhibited in regular inquiry.
In absence of information in the
chargesheet that such report/statements would be relied upon against
the appellant, it was not permissible for the Enquiry Officer or the
High Court to rely upon the same.
Natural justice is an inbuilt and
inseparable ingredient of fairness and reasonableness. Strict adherence
to the principle is required, whenever civil consequences follow up, as
a result of the order passed.
Natural justice is a universal justice. In
certain factual circumstances even non-observance of the rule will
itself result in prejudice.
Thus, this principle is of supreme
importance. (Vide: S.L. Kapoor v. Jagmohan, AIR 1981 SC 136;
D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd.
Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539)
29. In view of the above, we reach the following inescapable
conclusions:-
35Page 36
i) The High Court failed to appreciate that the appellant had not
granted long adjournments to the accused-complainant as the
appellant wanted to conclude the trial at the earliest. The case of
accused-complainant which was taking its time, had suddenly
gathered pace, thus, he would have naturally felt aggrieved by failing
to notice it. The High Court erred in recording a finding that the
complainant had no ill-will or motive to make any allegation against
the appellant.
ii) The Enquiry Officer, the High Court on administrative side as
well as on judicial side, committed a grave error in placing reliance on
the statement of the complainant as well as of Shri C.B. Gajjar,
Advocate, recorded in a preliminary enquiry. The preliminary enquiry
and its report loses significance/importance, once the regular enquiry
is initiated by issuing chargesheet to the delinquent. Thus, it was all in
violation of the principles of natural justice.
iii) The High Court erred in shifting the onus of proving various
negative circumstances as referred to hereinabove, upon the appellant
who was delinquent in the enquiry.
36Page 37
iv) The onus lies on the department to prove the charge and it
failed to examine any of the employee of the court, i.e., Stenographer,
Bench Secretary or Peon attached to the office of the appellant for
proving the entry of Shri Gajjar, Advocate in her chamber on
17.8.1993.
v) The complainant has been disbelieved by the Enquiry Officer as
well as the High Court on various issues, particularly on the point of
his personal hearing, the conversation between the appellant and Shri
C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.
vi) Similarly, the allegation of the complainant, that appellant had
threatened him through his wife, forcing him to withdraw the
complaint against her, has been disbelieved.
vii) The complainant as well as Shri C.B. Gajjar, Advocate had
been talking about the appellant’s husband having collecting the
amount on behalf of the appellant, for deciding the cases, though at
that point of time, she was unmarried.
viii) There is nothing on record to show that the appellant whose
defence has been disbelieved in toto, had ever been given any adverse
entry in her ACRs, or punished earlier in any enquiry. While she has
37Page 38
been punished solely on uncorroborated statement of an accused
facing trial for misappropriation.
30. In view of the above, we have no option except to allow the
appeal. The appeal succeeds and is accordingly allowed. The order of
punishment imposed by the High Court in compulsorily retiring the
appellant is set aside. However, as the appellant has already reached
the age of superannuation long ago, it is not desirable under the facts
and circumstances of the case, to grant her any substantive relief,
except to exonerate her honourably of all the charges, and allow the
appeal with costs, which is quantified to the tune of Rs.5 lacs. The
State of Gujarat is directed to pay the said cost to the appellant within
a period of 3 months from today.
…………………………….………….......................J.
(Dr. B. S. CHAUHAN)
………………….…………….................................. J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
March 18, 2013.
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