(1) WP No.2069/2001 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2069 OF 2001 Suresh s/o Kalidasrao ] Deshpande, Age: 46 years, ] Occp: Retired Civil Judge, ] Senior Division, ] PETITIONER. R/o Pranav-2, Plot NO.99-B,] Pande Layout, Khamala, ] Nagpur. ] VERSUS 1] The Law and Judiciary ] Department, Government of ] Maharashtra, Mantralaya, ] Mumbai, Through the ] Secretary. ] RESPONDENTS. ] 2] The Disciplinary Authority ] The Hon’ble Chief Justice ] of The Bombay High Court ] Through the Registrar. ] ----- Mr.P.V.Mandlik, Senior Counsel, for the petitioner. Mr.V.B.Ghatge, Assistant Government Pleader, for Respondent No.1. Mr.V.J.Dixit, Senior Counsel, for respondent No.2. ----- CORAM : Naresh H. Patil and N.D.Deshpande, JJ. Judgment reserved on : 25th June, 2009. Judgment delivered on : 2nd July, 2009. (2) WP No.2069/2001 JUDGMENT : [ PER – NARESH H. PATIL, J.] 1] The petitioner was appointed on 28th June, 1984 as Civil Judge(Junior Division) and Judicial Magistrate, First Class. He was posted at Gangakhed, District Parbhani, from June 1994 to June, 1997. He was promoted as Civil Judge(Senior Division), Nanded in July, 1997. Petitioner challenges the order of his compulsory retirement dated 21st June, 2000 issued by Principal Secretary to Government, Law and Judiciary Department, by order and in the name of Hon’ble the Governor of State of Maharashtra. The Departmental Enquiry came to be initiated against the petitioner Shri.Suresh s/o Kalidasrao Deshpande for his alleged misconduct during his tenure as Judicial Officer, particularly between the period 1996 to 1997. The Enquiry Officer, the then District Judge, Latur, after going through the record and the report received from District Judge, Parbhani, framed three points for determination. Those points are thus: 1. Whether it is proved that the delinquent used to enjoy wet parties from advocates and litigants ? 2. Whether it is proved that the delinquent used to indulge in corruption directly and through others, including one Dwarkadas Mundada, resident of Sonpath, Adv.,Shri R.T.Shinde and Peon by name (3) WP No.2069/2001 Karim or any other person ? 3. Whether it is proved that the delinquent did not possess good reputation and lacked integrity in discharge of his judicial functions and his behaviour inside and outside the Court was of such nature which was unbecoming of a Judicial Officer ? 2] The then District Judge, Parbhani had received complaints for holding enquiry. One complaint was submitted by PW Shriram Mundhe, a litigant as well as local newspaper editor, another was by PW Balasaheb Jadhav, who was injured complainant in Criminal Case (R.C.C.No.456/1995), and third anonymous complaint dated 13/12/1996 was also received by learned District Judge Shri.A.N.Yadav for enquiry. He conducted preliminary enquiry on three different occasions and he submitted report to the High Court in respect of allegations made in the complaint. Based on these preliminary enquiry reports, High Court vide order dated 21/12/1998 initiated enquiry against petitioner. 3] The substance of the charges levelled against the delinquent were to the effect that he used to enjoy wet parties from Advocates and litigants and used to indulge in corruption directly and through others including Dwarkadas Mundada, a (4) WP No.2069/2001 litigant before him, Shri.R.T.Shinde, an Advocate, and one Peon by name Karim. It was the charge that the petitioner did not possess good reputation and indulged in corrupt practices which is unbecoming of a Judicial Officer. The litigants appearing before the delinquent were on friendly terms with delinquent, more particularly one Dwarkadas Mundada in R.C.C.Nos.153/1993 and 184/1994. It was alleged that due to close relations with delinquent, Dwarkadas Munda used to represent himself as an agent of delinquent and used to demand money from other litigants. Another charge was in respect of proceedings of R.C.S.No.259/1994 and R.C.S.No. 312/1992 filed by one Mahaling Swami, who was on visiting terms with delinquent, and both used to enjoy liquor parties in Bar at Parli. There was further allegation that in a private complaint case (STC No.105/1992) filed by one Babulal against two brothers Suresh Lodha and Rajendra Lodha, the delinquent demanded an amount of Rs.5,000/- from Suresh and Rajendra Lodha through the Peon Karim, who was then attached to the Court of delinquent, and on failure to pay the said amount, delinquent convicted both the accused Suresh and Rajendra. Another charge was that delinquent passed orders of ad-interim injunction in the proceedings of RCS No.263/1996 without there being any material. The another charge was regarding the delinquent passing orders of releasing cash amount in favour of third party in the (5) WP No.2069/2001 proceedings of R.C.C.No.390/1990. One of the allegations is that the delinquent demanded Rs. 10,000/- in R.C.C.No.301 of 1989 (State vs. Dnyanoba from complainant Shriram Dagdoba Mundhe through Advocate Shri.R.T.Shinde for convicting accused in that case. The complainant refused to pay amount and the accused came to be acquitted after considerable delay in delivery of judgment. During enquiry, it was charged that the delinquent used to visit Hotel Relax at Gangakhed along with litigants and Advocates for enjoying liquor parties. He also used to visit “Sapna Bar” at Parli along with Advocate Shri.R.T.Shinde and Advocate Uday Choudhary and attended “Tamasha”. It was charged that Peon Karim used to provide liquor and women to delinquent and the delinquent used to enjoy adulterous relations with such women at a private room of one Shri.Bhandari, resident of Gangakhed. The further charge is that the delinquent used to suggest Shri.R.U.Moholkar, Advocate, that the delinquent would do work as desired by Advocate Moholkar, if no complaints are made against delinquent. 4] The delinquent was provided with an opportunity of filing say. Elaborate written say was filed by him. The delinquent denied the allegations made against him. It was stated that the orders passed in the proceedings were based on judicial consideration and merit. The allegations that he used (6) WP No.2069/2001 to enjoy wet parties along with Advocates or litigants at Gangakhed were false. It was the say of delinquent that the hotel owners were not examined by the learned District Judge Shri.A.N.Jadhav and, therefore, the allegations were not proved. The delinquent further stated that as Dr.Kishor Deshpande advised him, since 1986 he never touched liquor. The allegations made regarding Shriram Mundhe were denied. It seems that the delinquent was of the opinion that as some adverse orders were passed, the lawyers made complaints against him. According to delinquent, Shriram Mundhe indulged in blackmailing business. Delinquent submitted that the group of lawyers namely Baburao Tandale, Moholkar, Ambekar, the learned District Judge Shri.Yadav and dissatisfied Advocates prepared false case against him. The delinquent stated that the District Judge Shri.Yadav had official bias in his mind while giving report about preliminary enquiry. 5] The delinquent did not enter witness box. The Presenting Officer examined in all 7 witnesses in support of the charges. The delinquent examined 5 witnesses in support of his defence. The Enquiry Officer fairly observed that there was no direct evidence regarding corruption by delinquent, but the circumstances, hearsay evidence and other material was considered and relied upon. From perusal of material placed before us, we found that the Enquiry (7) WP No.2069/2001 Officer discarded evidence of Shriram Mundhe and Suresh Lodha, but the evidence of Advocate Ambekar was believed partly and evidence of Moholkar was believed fully. The complainant Balasaheb’s evidence was partly believed. The defence witnesses were not believed by the Enquiry Officer. 6] We have noticed that principles of natural justice were not violated in this case, neither there were procedural illegalities noticed causing prejudice to the petitioner. 7] On behalf of respondents No.2 and 3, the Additional Registrar (Legal), High Court, Appellate Side, Bombay, filed affidavit-in-reply, who refuted the allegations made by delinquent and contended that the enquiry conducted by Shri.Yadav, the then District Judge, was not one-sided. He contended that Enquiry Officer in specific terms recorded findings that it was proved that the delinquent used to attend liquor parties in company of Shri.R.T.Shinde, Advocate, and Shri.Uday Choudhary, Advocate, and the delinquent did not possess good reputation which is expected of a Judicial Officer. Parawise affidavit in reply was filed on behalf of respondents. 8] We have gone through the entire enquiry report, other relevant documents and reply filed by delinquent. At the outset, we may observe that the (8) WP No.2069/2001 scope of Departmental Enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. However, in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of “proof beyond doubt” also 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. We further notice that interference with the decision of departmental authorities could be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of statutory regulations prescribing the mode of such inquiry 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 face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion. 9] The evidence of PW 1 Balasaheb is to the effect that he heard in the village that one accused Bhaskar and Damu were telling public at large that they had paid Rs.25,000/- to the delinquent. His evidence shows that he observed that Bhaskar and Damu used to visit residence of delinquent and as such he gave complaint (Exh.13). The Enquiry Officer, from the discussion, rightly reached a conclusion that (9) WP No.2069/2001 there is little scope to observe that PW Balasaheb had intention to make false complaint against the delinquent. 10] PW 2 Shri.Shete is a practicing Advocate. He was cross-examined. The Enquiry Officer, after considering his evidence, observed that it would be proper to overlook some part of his statement. The evidence of Shri.Shete disclosed that there was discussion amongst members of bar Association at Gangakhed that the delinquent used to demand money for doing judicial work. His evidence categorically revealed that the delinquent used to visit Hotel Relax, which was situated on Parli – Gangakhed road, during evening time. Shri.Shete suspected foul play in the matter of releasing amount of sale proceeds to his client – accused Prabhakar (R.C.C.No.68/1994). The Enquiry Officer observed that earlier application filed by Shri.Shete, Advocate, was not considered, but the second application (Exh.50/10) filed by accused Prabhakar on 8/4/1996 was considered and granted when the Criminal Case was posted for final hearing. An instance concerning release of amount of sale proceeds in Criminal Case No.150/1994 was also quoted. An amount of Rs.85,203=20 ps was deposited by Police Station Officer, Palam, as sale proceeds of raw cotton in D.C.C.Bank, Palam Branch. The accused Dwarkadas Mundada filed an application (Exh.50/9) for release of the said amount in his favour. The (10) WP No.2069/2001 application was strongly opposed on behalf of the State by APP. The delinquent directed payment of amount to Dwarkadas Mundada on his execution of Supurtnama. This order was passed on 19/10/1995. After passing this order, the subsequent application (Exh.50/10 in RCC No.68/1994) was filed by accused Prabhakar on 8/4/1996, which came to granted. Considering the attending circumstances, the Enquiry Officer reached a conclusion that the delinquent released the amount of sale proceeds in favour of accused Prabhakar Rangnathrao Kodgire for some other consideration which certainly cannot be regarded as “judicial” in nature. 11] Thereafter, the Enquiry Officer assessed the evidence of PW 3 Anant Ambekar, who is a senior Advocate practicing at Gangakhed since 1964. He has practiced for 35 years. His evidence showed that the delinquent carried a bad reputation as Judge. There was discussion that the delinquent used to accept money from litigants for deciding cases. According to him, some lawyers viz. Shri.R.T.Shinde and Shri.U.K.Choudhary, were on close terms with delinquent. He gave eye-witness account about having seen delinquent and those Advocates together while enjoying liquor parties in night time. PW Ambekar was cross-examined. 12] In this context, the Enquiry Officer also (11) WP No.2069/2001 discussed the evidence of defence witness DW 3 Shri Mustapure, who was working as Clerk in Civil Section, in the Court of Civil Judge (JD), Gangakhed. The Enquiry Officer observed that DW 3 Mustapure gave vague evidence regarding the incident of so called warning given by delinquent to PW Shri.Ambekar and Shri.Mohalkar, Advocates, when both of them had requested for adjournment of the suit. The Enquiry Officer observed that evidence of PW Ambekar disclosed that the delinquent used to enjoy wet parties in company of Shri.R.T.Shinde and Shri.Uday Choudhary, Advocates. 13] Then the Enquiry Officer considered the evidence of PW 7 Shri.A.N.Yadav, the then District Judge, Parbhani, who conducted preliminary enquiry into the allegations against delinquent, as per direction of High Court. The say of delinquent that PW 7 Shri.A.N.Yadav had bias and grudge against delinquent was discarded by Enquiry Officer. 14] The evidence of PW 5 Shriram Mundhe was also considered, who termed himself as a disgruntled litigant. For several reasons, the Enquiry Officer refused to place reliance on the version of PW 5 Shriram Mundhe and discarded his version. PW No.6 was Shri.Mohalkar, Advocate. His evidence was also overlooked by Enquiry Officer for the reasons recorded in the enquiry report. (12) WP No.2069/2001 15] On behalf of delinquent, evidence of DW 1 Shrikant Tarkase, Advocate, was adduced in order to show innocence of delinquent. DW 2 Shri.Gangakhedkar, DW 3 Shri.S.P.Choudhary and DW 5 Shri.Kisanrao Choudhary are the Advocates examined in defence of delinquent. DW 4 Shri.Mustapure is a Junior Clerk. The evidence of all these defence witnesses was also considered by Enquiry Officer. 16] Ultimately, on consideration of preponderance of probabilities, it was found by Enquiry Officer that the version of witnesses Balasaheb, Advocate Shri.Shete, Advocate Shri.Ambekar, Advocate Shri.Moholkar and the then District Judge Shri.A.N.Yadav are more acceptable. Cumulative assessment of the evidence was done and the Enquiry Officer reached appropriate conclusions. 17] The learned Senior Counsel Shri.Mandlik, appearing on behalf of petitioner, submitted that enquiry was biased one and proper opportunity of personal hearing was not given to the delinquent. The Enquiry Officer hastily on the same day of submission of enquiry report on 13th July, 1999 recommended action against delinquent of compulsory retirement as provided under Rule 5(1)(vii) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (for short the “MCS (Discipline and Appeal) Rules, (13) WP No.2069/2001 1979”), which shows that the issue was prejudged by the Enquiry Officer. The learned Senior Counsel submitted that the opportunity of personal hearing was not given to the petitioner. The witnesses examined against the delinquent were not believable and they did not enjoy any good reputation for relying upon them. The learned Senior Counsel took us through the detail written say filed by delinquent and tried to demonstrate that there is absolutely no evidence against the delinquent and the entire enquiry report and consequent action is based on surmises and conjunctures. The learned Senior Counsel in support of his submissions placed reliance on the following reported judgments: 1. State v. B.N.Singh [AIR 1971 Allahabad 259], 2. Nand Kishore Prasav v. The State of Bihar [AIR 1978 SC 1277], 3. Dattatraya vs. State of Maharashtra [1990 Mh.L.J.950], 4. Jaggannath Dwarkanath Raje vs. State of Maharashtra [SCA No.1487/1971 decided on 17/11/1971 (Bombay)], 5. P.C.Joshi v. State of U.P. [(2001) 6 SCC 491]. 18] The learned Senior Counsel Shri.V.J.Dixit, appearing on behalf of respondent No.2, submitted that the scope for judicial intervention is limited. (14) WP No.2069/2001 He placed reliance on following reported judgments in support of his submissions. 1. Bank of India v. T. Jogram [AIR 2007 SC 2793], 2. High Court of Judicature at Bombay v. Udaysingh [(1997) 5 SCC 129] 3. High Court of Judicature at Bombay v. Shashikant S. Patil [(2000) 1 SCC 416] 4. Yoginath D. Bagde v. State of Maharashtra [(1999) 7 SCC 739]. 19] The learned Senior Counsel Shri.Dixit drew our attention to the observations made in para 28 of the judgment in Yoginath v. State [(1999) 7 SCC 739], which reads thus: “28 In view of the provisions contained in the statutory rule extracted above it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no (15) WP No.2069/2001 difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, “an opportunity of hearing” may have to be read into the rule by which the procedure for dealing with the enquiring authority’s report is provided principally because it would be contrary to the principles of nature justice if a delinquent officer, who has already been held to be “not guilty” by the enquiring authority, is found “guilty” without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of “not guilty” has already been recorded.” 20] The learned Senior Counsel Shri.Dixit submitted that the principles of nature justice were not violated. There were no procedural illegalities (16) WP No.2069/2001 committed and considering the pleadings in the petition, the petitioner would not be entitled to raise such grievances now before the Court. 21] We have perused the judgments cited before us. 22] We find that after the enquiry report was submitted and recommendation for penalty was made by the Enquiry Officer, a show cause notice was issued by High Court calling upon the delinquent to file his say towards the enquiry report submitted by Enquiry Officer. After considering the enquiry report and written say submitted by delinquent, the matter was placed before Hon’ble the Chief Justice and Hon’ble Judges of High Court constituting Disciplinary Authority. A show cause notice was issued to the delinquent as to why one of the major penalties including the penalty of dismissal from service as prescribed by Rule 5(1) (vii) to (ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 may not be imposed upon the delinquent. A copy of enquiry report was also enclosed therewith. Having considered the representation of delinquent Judicial Officer to the show cause notice, it was decided to reject the representation and to accept the reasons and findings recorded by Enquiry Officer as they were found well founded. Therefore, the Disciplinary Authority (17) WP No.2069/2001 looking to the gravity of charges, which were proved, decided to impose upon the delinquent Judicial Officer a major penalty of compulsory retirement as prescribed by Rule 5(1)(vii) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. On recommendation, the Government of Maharashtra decided to accept the recommendations of Hon’ble the Chief Justice and Hon’ble Judges of the High Court of Bombay, to impose major penalty, and accordingly, the order dated 21st June, 2000 was passed and communicated to the delinquent. 23] Considering the submissions advanced and material placed on record, we are of the view that the order of compulsory retirement of petitioner is based on sound assessment of evidence and material collected by the officer concerned. We do not notice that the principles of natural justice were violated or there were procedural illegalities which would cause prejudice to the delinquent. The conduct of delinquent was unbecoming of a Judicial Officer. Therefore, Disciplinary Authority considered that the delinquent is required to be compulsorily retired. 24] In exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution, we do not notice any serious or glaring error in the view adopted by Disciplinary Authority. There is no (18) WP No.2069/2001 merit in the writ petition and it deserves to be dismissed. 25] Petition is dismissed. [ N.D.Deshpande,J.] [ Naresh H. Patil,J.] pcr/o/wp2069.01