SCA/5997/2002 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5997 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE D.H.WAGHELA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== VJ BRAHMBHATT Versus STATE OF GUJARAT AND OTHERS ====================================== Appearance : MR PV HATHI for Petitioner. MS HANSA PUNANI, AGP for Respondent No.1. LAW OFFICER BRANCH for Respondent Nos.2 ­ 3. MR JB PARDIWALA for Respondent Nos.2 ­ 3. ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE D.H.WAGHELA SCA/5997/2002 2/7 JUDGMENT Date : 16/09/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. The petitioner is aggrieved by the order dated 20­11­2001 of the High Court on its administrative side and the consequent order dated 15­ 12­2001 dismissing him from his service as Civil Judge (J.D.) and Judicial Magistrate. The petitioner was charged with misconducts of dereliction in discharging his judicial functions and corrupt practice by implication. Detailed statement of imputation along with the charge sheet dated 7­9­1994 was served upon him. By letter dated 4­10­1994, he demanded copies of several documents, which included the application dated 10­12­1992 of one Shri Bhupatrai Thakkar, and copy of that document was not supplied at that time after stating in letter dated 28­10­1994 that it was a confidential document and it was not relied upon by the department. That Bhupatrai was, however, examined during the course of departmental enquiry and he was extensively cross­ examined on behalf of the petitioner. At the end of the enquiry held into the charges against the petitioner, the enquiry officer recorded on 31st December, 1997 his opinion that the charge against the delinquent was not proved beyond reasonable doubt. 1.1 After going through the evidence recorded by the enquiry officer as well as documents produced during the course of enquiry, the High SCA/5997/2002 3/7 JUDGMENT Court on its administrative side differed from the opinion of the enquiry officer and tentatively found that the charge that the petitioner had demanded a sum of Rs.15,000/­ as illegal gratification from Mr.Bhupatrai Thakkar on September 14, 1992 was proved. In view of that tentative decision, show cause notice dated 12­10­1998, enclosing copies of the report of enquiry officer and the tentative decision was sent to the petitioner, calling upon him to show cause why penalty of dismissal from service should not be imposed. The petitioner submitted detailed reply dated 26­11­1998 elaborating his objections against the decision and requested that he may be heard in person with assistance of an advocate. Thereafter, the impugned order imposing punishment of dismissal and consequential notification dated 15­12­2001 were made. 2. Learned advocate, Mr.P.V.Hathi, appearing for the petitioner vehemently argued that when the High Court disagreed with finding of the enquiry officer, notice giving opportunity to the petitioner was issued only in respect of the proposed penalty. It was submitted that decision of the High Court in respect of proof of alleged misconduct was final and the petitioner was deprived of an opportunity to make a representation against it. He relied upon judgment of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra and another (AIR 1999 SC 3734). He also submitted that the important document demanded by the petitioner, i.e. copy of complaint of Shri Bhupatrai, was denied to him SCA/5997/2002 4/7 JUDGMENT and the same document was subsequently taken on record without the petitioner having an opportunity to further cross­examine that witness. He also submitted that there was difference of opinion even among the departmental committees of the High Court about the charge held to have been proved against the petitioner. After reference to evidence on record, learned counsel also submitted that serious charge of demanding illegal gratification was not proved and, in any case, the penalty of dismissal from service was excessive and disproportionate. Learned counsel relied upon the provision as under of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971. "10. Action on the inquiry report.­ (1) The Disciplinary Authority, if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiry Authority for further inquiry and report and the Inquiry Authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 9, as far as may be. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) ..................... (4) ....................." 3. Learned counsel, Mr.J.B.Pardiwala, appearing for the respondent submitted that the enquiry against the petitioner was conducted in a fair and impartial manner and the enquiry officer had recorded the finding that the charge was not proved beyond reasonable doubt, which is not SCA/5997/2002 5/7 JUDGMENT the standard of proof required in a departmental action. Therefore, the High Court had re­examined the evidence on record and come to a tentative finding that charge of demanding illegal gratification from Mr.Bhupatrai was proved. That was expressly a tentative decision and after supplying it along with report of the enquiry officer to the petitioner, he was allowed to canvass his contentions on all the available grounds, in respect of the tentative finding as well as proposed punishment. The discussion of the contentions canvassed by the petitioner is reflected in the final order. As for opportunity to further cross­examine the witness, it was submitted that copy of the complaint demanded by the petitioner was subsequently supplied to him at his instance, but, despite best efforts presence of the witness could not be secured for the purpose of cross­examination on limited point of his complaint. The fact, however, remains that the same witness was cross­ examined at length when his oral statement was recorded during the course of departmental enquiry; and no prejudice was caused due to the copy of his complaint being supplied afterwards and his unavailability for cross­examination. He submitted that final decision being in the nature of a corporate decision of the High Court on its administrative side, it could not be reviewed or set aside on the ground of alleged insufficiency of evidence. And once the delinquent, a judicial officer, was found to be guilty of demanding illegal gratification, punishment of SCA/5997/2002 6/7 JUDGMENT dismissal could by no stretch be treated as excessive. He relied upon judgment of the Apex Court in Chandrama Tewari v. Union of India (AIR 1988 SC 117). 4. It was seen from the record that statement of witness Shri Bhupatrai, who was subjected to extensive cross­examination fully supported finding of the disciplinary authority and subsequent supply of a copy of his complaint or lack of cross­examination based thereon could not be shown to have caused any prejudice. The decision based upon the evidence on record and reasons for differing from opinion of the enquiry officer as recorded in order dated 12­10­1998 were tentative and expressly titled as such. Reply and submissions of the petitioner to that decision clearly showed that the petitioner had availed of the opportunity of agitating his contentions against that tentative decision. Therefore, pleas of denial of proper opportunity or violation of principles of natural justice were not substantiated by the facts on record. 5. As observed by the Apex Court in the High Court of Judicature at Bombay v. Shashikant S. Patil and another (AIR 2000 SC 22), when a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should be made not only with great care and circumspection, but confining strictly to the parameters set by the Supreme Court. Therefore, the impugned decision being a SCA/5997/2002 7/7 JUDGMENT corporate decision reached by a large body of individuals of equal authority, after discussion in a meeting, it could not be assailed only on the grounds that the Enquiry Officer had exonerated the delinquent or that the punishment was excessively harsh. The case against the petitioner was certainly not a case of no evidence as was sought to be canvassed on behalf of the petitioner. No other grounds having been made out to justify interference with dismissal of the petitioner, the petition is dismissed and Rule is discharged with no order as to costs. (Bhagwati Prasad, J.) (D.H.Waghela, J.) *malek