-1- W.P.No. 4441 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4441 OF 2009 Ratan Gaba Teli, ) age about 67 years old, residing at Ram Baug Lane No.4, ) and Punkaj Apartment, West, Dist. Thane, Near Jivan Sandhya ) Co-op. Housing Society, State of Maharashtra )..Petitioner versus 1. The State of Maharashra ) 2. The High Court, Appellate Side, Mumbai through ) its Registrar (Legal), Administrative Appeal Branch, ) High Court, Mumbai. ) 3. The District and Sessions Judge, Thane and the ) Disciplinary Authority ).Respondents Mr. A.V. Chatuphale for the petitioner. Mr. Vineet B. Naik, with Ms. Chaitrali Deshmukh for respondent Nos. 2 & 3. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: JULY 15, 2010. ORAL JUDGMENT: (Per P.B. Majmudar, J.) Rule. Learned counsel for respondent No.2 waives service of Rule. With the consent of the parties, Rule is made returnable forthwith and heard. 2. The order of dismissal passed against the petitioner by the disciplinary authority and which is confirmed by the appellate authority is impugned by the petitioner in this petition. -2- W.P.No. 4441 of 2009 3. The petitioner was initially appointed as a Junior Clerk on 19th June, 1963. Subsequently he was promoted as a Senior Clerk and thereafter promoted as Assistant Superintendent. While the petitioner was working as Assistant Superintendent at Shahapur Court, he was subjected to a departmental enquiry on the following charges:- 1. “The appellant demanded and accepted Rs. 100/- from accused by name Hanif Memon on 2nd March 1993. 2. He demanded and accepted Rs. 150/- from one surety Jayaram Vekhande on 17th February 1993 to release accused in Crime No. 7/93. 3. He indulged in a act amounting to official misconduct and acted in a manner unbecoming of a Government servant.” It seems that the Bar Association of Shahapur Court passed a resolution against the petitioner on 2nd March, 1993 in connection with the demand and acceptance of illegal gratification from the litigants while discharging his duties. On the basis of the report received from the Bar Association, the District Judge, Thane directed the Civil Judge, Junior Division, Shahapur, to hold a preliminary enquiry. The Civil Judge, Junior Division, Shahapur thereafter conducted a preliminary enquiry and submitted his report to the District Judge. The District Judge found that there was substance in the allegations levelled against the petitioner. On the basis of the same, subsequently a regular departmental enquiry was initiated against the petitioner and the Additional District Judge, Thane, was accordingly appointed as an Inquiry Officer for conducting the -3- W.P.No. 4441 of 2009 regular departmental enquiry against the petitioner. The Inquiry Officer, after considering the evidence led before him, submitted his report to the disciplinary authority holding that the charges levelled against the petitioner were proved. During the pendency of the enquiry, the petitioner was also kept under suspension. The disciplinary authority accepted the report of the Inquiry Officer and ultimately passed an order dismissing the petitioner from service on 4th June, 1996 which order is at Exhibit-N to the petition. The aforesaid order was challenged by the petitioner by way of a departmental appeal. The appeal preferred by the petitioner also met with the same fate. 4. The petitioner thereafter had filed Writ Petition No. 4593 of 1998 against the aforesaid order of the Appellate Authority as well as the Disciplinary Authority. By an order dated 12th September, 2006, the said writ petition was allowed with a direction to the Registrar (Legal) to place the appeal before the Appellate Authority within a period of four weeks and the Appellate Authority was requested to decide the same as expeditiously as possible and as per the law laid down by the Full Bench in the case of Anil Amrut Atre vs. District and Sessions Judge and another,1. The matter was accordingly remanded to the appellate authority to pass a fresh order after hearing the petitioner. The appellate authority thereafter gave hearing to the petitioner and passed a fresh order which is impugned in this petition under Article 226 of the Constitution of India. 1 2003(2) Bom.C.R. 246 -4- W.P.No. 4441 of 2009 5. The learned counsel for the petitioner submitted that the initiation of the departmental enquiry was on the basis of the resolution of the Bar Association, Shahapur. He submitted that the original copy of the resolution of the Bar Association was not produced on record but only a photo copy was produced. It is further submitted by the learned counsel that only a few lawyers were signatories to the resolution passed by the Bar Association and, therefore, it cannot be said that the resolution passed by the Bar Association is a valid resolution. He further submitted that it is a case of no evidence and it cannot be said that the petitioner had demanded any illegal gratification from the litigants and accordingly the findings arrived at by the Inquiry Officer are based on mere surmises and conjectures and no credence can be placed on the same. It is further submitted that the allegation against the petitioner is that he had demanded certain amounts from the litigants in connection with the surety orders, though no such surety orders were placed on record. It is further submitted that considering the facts and circumstances of the case, the penalty of dismissal is required to be reduced to compulsory retirement. 6. Mr. Vineet Naik, learned counsel appearing for respondent No.2- High Court, on the other hand, submitted that on the basis of evidence on record, the disciplinary authority had reached a conclusion about the misconduct of the petitioner and this Court cannot re-appreciate the evidence and come to a different conclusion. It is further submitted that, even otherwise, -5- W.P.No. 4441 of 2009 there is ample evidence on record for establishing the guilt of the petitioner and the charges have been proved especially when independent witnesses have given their version in connection with the payment which the petitioner has received towards illegal gratification. It is further submitted that it can never be said that it is a case of no evidence and as such the disciplinary authority has properly appreciated the evidence which was led before the Inquiry Officer. It is further submitted that the appellate authority has also considered the matter in great detail and cogent reasons have been given by the appellate authority and has dismissed the appeal after hearing the petitioner. 7. We have heard the learned counsel appearing for the parties. We have also gone through the voluminous documentary evidence forming part of this petition. 8. The principal question which is required to be considered is as to whether the departmental enquiry can be said to have been conducted in consonance with the principles of natural justice and as to whether the evidence led before the Inquiry Officer is sufficient for coming to the conclusion about the misconduct alleged against the petitioner. 9. In order to appreciate the aforesaid aspect, it is required to be noted that at the relevant time the petitioner was serving as an Assistant -6- W.P.No. 4441 of 2009 Superintendent, Shahapur Court and he was required to verify surety papers placed before him. It seems that some Advocates practising in the said Court received complaints from their clients that the petitioner is demanding illegal gratification from them in connection with the aforesaid work and, therefore, the Bar Association passed a resolution on 2nd March, 1993, a copy of which was forwarded to the District Judge. On the basis of the same, a preliminary enquiry was held and on the basis of the report of the preliminary enquiry, regular departmental enquiry was initiated against the petitioner. 10.1 On behalf of the department, one Mr. Abhay Pitale was examined as witness No.1. The said witness in his examination-in-chief has pointed out that there were 175 criminal cases pending in the Court for the offence regarding Bonded Labour Act. He has further stated that he had requested the Court that his client cannot furnish surety due to non-availability of surety and he requested that his client may be released on personal bond. Accordingly the Court passed such orders in criminal cases and the client of the said witness was released on personal bond. As per the condition in the order, the accused was required to be personally present before the Court on the day on which the matter appeared. The criminal cases were filed against the accused in the year 1993. It is further in the evidence of the said witness that after passing of the order of personal bond, his client viz. One Hanif Momin approached him and told him that the delinquent (petitioner) approached him and told him that he is -7- W.P.No. 4441 of 2009 ready to take one surety in 10 criminal cases and for that purpose he demanded Rs. 50/- per case. The witness has further deposed that he had instructed his client that the order of the Court cannot be changed once the same is passed. The witness has further made a written complaint to the Civil Judge, Junior Division, Shahapur. The said witness has further stated that similar thing had happened with two other advocates and ultimately the Bar Association passed the resolution referred to above. In the cross-examination, the said witness has further stated that the resolution of the Bar was passed on 2nd March, 1993. The said witness has further stated there were 16 cases of his client which were fixed before Shri V.R. Londhe, Civil Judge, and the statement of the said Advocate was also recorded by the learned Judge. The said witness has stated that as per the Resolution of the Bar, the witness had paid through his client an amount of Rs. 100/- which was accepted by the petitioner. Nothing has been brought out from the cross-examination of the said witness. 10.2 On behalf of the department, one Bhalchandra Vekhande is also examined as witness No.2. The said witness is a practising advocate since the year 1981. In his evidence, the said witness has clearly deposed that Criminal Case No. 17 of 1993 is in connection with the accused Antu Laxman and others. The said advocate had identified the sureties and affidavits were also prepared on the same day. It is further stated by the witness that while he was going towards Kalyan, at the Railway Station the surety informed him that Teli -8- W.P.No. 4441 of 2009 Bhausaheb (petitioner) had accepted the amount of Rs. 150/- from him. In view of the same, the said Advocate also participated in the meeting of the Bar Association and pointed out the said aspect. In the cross-examination of the said witness, he admitted that even though he had not made any written complaint, he had pointed out the said aspect during the meeting of the Bar Association. 10.3 The other witness who was examined by the department is one Hanif Memon a witness No.3. The said witness has stated that he was told by the petitioner that he will have to pay Rs. 50/- per case in connection with preparation of surety papers. The said witness had further deposed that he had paid an amount of Rs. 100/- for the purpose of surety bond. In the cross- examination, he has stated that he had reported this fact about payment of Rs. 100/- to his Advocate Shri Pitale. 10.4 One Vinayak Londhe was also examined as witness No.4. He was serving as Judicial Magistrate, Shahapur at the relevant time. The said witness has stated that the Bar Association had passed a resolution on 2nd March, 1993. On the basis of the same, the said witness had conducted the enquiry and has recorded the statements of Hanif Memon, Hari Vekhande and Balu Kirpan on 16th March, 1993. The report of the said preliminary enquiry was handed over thereafter to the District Judge. -9- W.P.No. 4441 of 2009 10.5 On the aspect of payment, another witness viz. Hari Vekhande, was also examined. He stated that he was asked to pay Rs. 150/- by the petitioner and he paid the money to the petitioner for the purpose of surety bond. 10.6 Another witness viz. Balu Kirpan, working as bailiff in the Shahapur Court was examined as witness No.6. This witness has stated that he was told by the petitioner to go to the house of one Hanif Memon asking him to see the petitioner and accordingly he went to his house. 10.7 One Antu Vekhande, witness No. 7, deposed that he paid Rs. 150/- to the petitioner in respect of expenses incurred towards releasing him on surety bond. 10.8 Similarly, one Jairam Vekhande was examined as witness No.8 as well as Shantaram Vekhande who was examined as witness No.9. They also stated that they had paid money to the petitioner for the purpose of releasing them on surety bond. 10.9 One Namdeo Vekhande, witness No. 10, also given similar version about payment of money to the petitioner. -10- W.P.No. 4441 of 2009 10.10 The petitioner examined one witness viz. Mohan Aundhkar, a practising Advocate who stated that the petitioner had not accepted any amount from him or from his client. 11. The petitioner was also given liberty to produce documents in support of his case which he did. The Inquiry Officer, after considering the evidence on record, came to a conclusion that the charges levelled against the petitioner are proved. The disciplinary authority, as stated above, accepted the said finding and imposed the punishment of dismissal which order was confirmed by the appellate authority. 12. In order to satisfy ourselves, we have gone through the oral evidence produced on record before the Inquiry Officer. So far as the oral evidence is concerned, witness No.1 has given clear version that the petitioner had asked his client to pay Rs. 50/- per case and accordingly he has initially paid Rs.100/-. Similarly other witnesses have also made similar statements about the payment of money to the petitioner. The petitioner demanded the amount by giving assurance that the order of personal bond can be converted into surety order on the concerned accused giving certain amount to the petitioner. At this stage it is required to be noted that on behalf of the petitioner, a suggestion was made to one of the witnesses viz. Shantaram Vekhande who was examined as witness No.9 to the effect that the aforesaid -11- W.P.No. 4441 of 2009 amount was paid for the purpose of writing charges. The disciplinary authority while agreeing with the Inquiry Officer’s report has given detailed reasons while appreciating the evidence led by the witnesses before the Inquiry Officer. The Inquiry Officer has in detail considered the evidence on record and ultimately found that the delinquent had acted in a manner unbecoming of a Government servant. That finding is based on the basis of the evidence adduced before him in the enquiry. The disciplinary authority has in detail considered the evidence on record in paragraphs 5 and 6 of his decision. 13. We do not find any substance in the submission of the learned counsel for the petitioner that the original copy of the resolution passed by the Bar Association is not produced but only a xerox copy was produced and, therefore, the proceedings against him stood violated. In this connection, the disciplinary authority has rightly found that passing of the Resolution of the Bar is not the sole basis for initiation of inquiry. On the basis of said resolution, a preliminary enquiry was held and subsequently a departmental enquiry was held against the petitioner and, therefore, passing of the resolution by the Bar Association can be considered only one of the circumstances which is to be considered in the light of other voluminous evidence on record. Once in a regular departmental enquiry, on the basis of evidence the disciplinary authority reaches a conclusion, this Court cannot sit in appeal and re-appreciate the entire evidence on record. However, considering the evidence on record, in our view, -12- W.P.No. 4441 of 2009 it cannot be said that this is a case of either no evidence or is a case of little evidence against the petitioner. A detailed version has been given by the concerned witnesses before the Inquiry Officer in connection with the payment made to the petitioner. The petitioner who was discharging an important duty of preparing the papers regarding surety etc. was not expected to take anything extra from the litigants in any manner. Not only that, by suggesting to the accused that he will get the order converted from personal bond into surety, in our view, is a very serious act of misconduct on the part of the petitioner. 14. It is required to be noted that there was no enmity between the petitioner and any of the witnesses. It is not possible for us even to accept the submission of the learned counsel for the petitioner that since the petitioner was insisting for strict compliance of procedure and documents that the members of the Bar were annoyed with him. As a matter of fact, independent witnesses who were the accused in various criminal cases have given detailed version of demand made by the petitioner and the payment made by them in their evidence and, therefore, there is no reason to disbelieve their evidence. It, therefore, cannot be said that there is no evidence on record. 15. At this stage, it is useful to refer to the decision of the Supreme Court in the case of High Court of Judicature at Bombay vs. Shashikant S. Patil and another,1 wherein the Supreme Court has held that if there is some legal 12000 (1) SCC 416 -13- W.P.No. 4441 of 2009 evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution of India. The aforesaid aspect has been dealt with in paragraph 16 of the said judgment which reads as under: “16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the fact, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.” Considering the said aspect, in the instant case, it cannot be said that the disciplinary authority has committed any error in arriving at the finding as against the guilt of the petitioner. In our view, looking to the serious misconduct committed by the petitioner of accepting illegal gratification, no other punishment other than the dismissal is justified. It cannot be said that the -14- W.P.No. 4441 of 2009 disciplinary authority has committed any error in passing such punishment and such punishment cannot be said to be disproportionate in any manner. In any case, this Court in its extraordinary jurisdiction under Article 226 of the Constitution cannot substitute the penalty imposed upon the delinquent unless it is proved that it is shockingly disproportionate which is not in the present case. The submission of the learned counsel for the petitioner in that respect is therefore rejected. No other points were canvassed on behalf of the petitioner. We, therefore, do not find any substance in the petition. The same is accordingly dismissed. Rule discharged. P. B. MAJMUDAR, J. R.M. SAVANT, J. -15- W.P.No. 4441 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4441 OF 2009 Ratan Gaba Teli, ) age about 67 years old, residing at Ram Baug Lane No.4, ) and Punkaj Apartment, West, Dist. Thane, Near Jivan Sandhya ) Co-op. Housing Society, State of Maharashtra )..Petitioner versus 1. The State of Maharashra ) 2. The High Court, Appellate Side, Mumbai through ) its Registrar (Legal), Administrative Appeal Branch, ) High Court, Mumbai. ) 3. The District and Sessions Judge, Thane and the ) Disciplinary Authority ).Respondents Mr. A.V. Chatuphale for the petitioner. Mr. Vineet B. Naik, with Mr. Sukand R. Kulkani, for respondent No. 1 CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: JULY 15, 2010. P.C. For the reasons separately recorded in the judgment, the Court passed the following order. “We, therefore, do not find any substance in the petition. The same is accordingly dismissed. Rule discharged”.