IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9207 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- H.P. THAKER Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR IS SUPEHIA for the Petitioner. MR PARESH UPADHYAY for the Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 23/01/2002 ORAL JUDGEMENT 1. With the consent of the parties, the matter was finally heard at length at the admission stage and now, it is required to be disposed of by this final judgment. Hence, Rule returnable today. Mr.Upadhyay, learned Advocate, appears and waives service of rule on behalf of the respondents. Accordingly, the matter is now disposed of finally by this judgment. 2. The petitioner, a Judicial Officer, who was serving, at the relevant time, as Civil Judge (Junior Division), Dakor, District Kheda, has challenged the order of his dismissal from service by filing this petition and has also prayed for consequential relief of reinstatement, with full back wages. The matter was argued at length by Advocates of both the sides and the question, which is required to be considered in this petition, is whether the order of dismissal is just and proper in the facts and circumstances of the case and whether there was sufficient material before the Enquiry Officer for reaching the conclusion to the effect that the petitioner has committed misconduct. It is required to be borne in mind that the order of dismissal is passed against a Judicial Officer for doing something while passing a judicial order. In that view, the matter is required to be examined to find out whether he has crossed the limit, which a Judicial Officer is required to maintain while administering justice. It is also required to be borne in mind that when a Judicial Officer is deciding a matter, it affects the rights of the parties and a Judge, while deciding the matter, is discharging a pious duty, and nobody who is involved in the process of administration of justice is supposed to pollute the fountain of justice, directly or indirectly, and ultimately, if it is found that any one is responsible for polluting the fountain of justice, he is required to be kept away, at a safe distance. Keeping this basic aspect of the matter, this petition is required to be decided by this court. 3. The petitioner is charged as under :- At the relevant time, i.e. between 15.6.1992 and 8.12.1994, the petitioner was serving as Civil Judge (Junior Division), and J.M.F.C., Dakor. Mr.Manohar Galani and Mr.Mahesh Mahatre, who were residents of Bombay City at the relevant time, wanted to bust the racket of issuing bogus processes, which was allegedly found to be prevalent in different Courts in the State of Gujarat, and in order to highlight the said fact, aforesaid two gentlemen contacted one Mr.Khambholja, an Advocate of Dakor Town, for filing a false complaint and to get false order of warrants by paying price for the same. For the aforesaid purpose, as aforesaid, they contacted Mr.Khambholja, Advocate. They were assured by the aforesaid Advocate that he will manage with the Magistrate for securing bogus warrant and for that purpose, his professional fees were fixed at Rs.6,500/-. Thereafter, on 24th November, 1994, a complaint was filed at about 5.00 p.m. The said complaint was filed under Sections 363, 354, 506(2) read with Section 114 of the Indian Penal Code. The following persons are shown as accused in the said complaint :- (1) Padmasinh Bajirao Patil; (2) Vithalbhai Narhari Gadgil; (3) Madhavrav Godkari; (4) Madhavbhai Laxmanbhai Pendse; (5) Kedavrav Shankerbhai Podge; (6) Arunbhai Adse; and (7) Shabirbhai Shaikh. The said complaint was filed in the name of one Manjulaben Shankerbhai Parmar, the complainant, who was shown to be a resident of Dungra Bhagol, Dakor. The said complaint was presented before the petitioner, who was holding the charge of Civil Judge (Junior Division), Dakor, at the relevant time. As per the charge levelled against him, neither did the petitioner carry out examination of the complainant as required by Section 200 of the Code of Criminal Procedure, nor did he record the statement of the complainant on oath, nor did he make an enquiry about the alleged offences stated in the complaint from the lady, who was produced as complainant, and that, on the relevant day, i.e. on 24.11.1994, the petitioner had orally passed an order of issuance of summons against all the accused in the complaint. It is also alleged against the petitioner that at 7.00 p.m. on the very same day, Mr.Khambholja, Advocate, while sitting in his own office with Mr.Rameshbhai Mohanbhai Prajapati, who was serving, at the relevant time, as Senior Clerk, in the Court of Civil Judge (Junior Division), Dakor, Manohar Gelani and Mahesh Mahatre, contacted the petitioner on telephone at his residence, insisting him to issue warrants, instead of summons, below the said complaint. At that time, during the telephonic conversation, the petitioner had assured the said Mr.Khambholja, Advocate, that he can collect the warrants at 11.00 a.m. on the next day. That on the next day, i.e. on 25.11.1994, at about 11.00 a.m., the case papers were again put up before the petitioner and the petitioner informed Mr.Rameshbhai Prajapati, the Senior Clerk, to write the order, directing issuance of warrant against all the accused, and order of bailable warrant against each accused in the sum of Rs.1,000/- was written by the said Mr.Prajapati, as per the order dictated by the petitioner. The petitioner therafter signed below the said order and, thereafter, he had directed Mr.Prajapati, the Senior Clerk, to put the date of 24.11.1994 below the said order, though the order was actually passed on 25.11.1994 so far as the order of issuance of warrants is concerned. This was done with a view to showing that the order, directing issuance of warrants was passed on the previous day when the complainant was present before him. On the aforesaid charges, the petitioner was found to have been guilty of dereliction in discharging judicial function. By implication, he was found to have committed an act of corruption and that he acted in a manner which is unbecoming of a Judicial Officer. The petitioner thereafter was asked to file the written statement of defence and to state whether he desired to be heard in person. The petitioner was also called upon to state why the above charges or any of them, if held proved, should not be considered as good and sufficient ground for imposing upon him any of the major punishments specified in Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. 4. The petitioner denied all the charges levelled against him and, subsequently, Enquiry Officer was appointed. During the departmental enquiry, on behalf of the Department, six witnesses were examined, i.e., (i) Shri Ramesh Mohanbhai Prajapati; (ii) Shri Rafuddin Abbasmiya Kazi; (iii) Shri Shambhubhai Khodabhai Bhoi; (iv) Smt. Amrutaben Shanabhai Vaghari; (v) Shri Kuversinh Raijibhai Parmar; and (vi) Shri Manohar Mangaram Galani. Initially, the Department had decided to examine Mr.Mahesh Mahatre also, but it was not possible to serve him, and, subsequently, the said witness was dropped. The deposition of the petitioner was, therafter, recorded at Exhibit 102 on 4.9.1998 and he had also specifically submitted that he is not willing to examine any other witness. The Enquiry Officer thereafter heard the arguments of the Department as well as on behalf of the delinquent and after considering the evidence on record, came to the conclusion that it is proved that Mr.Manohar Galani and Mr.Mahesh Mahatre contacted Mr.Khambholja, Advocate of Dakor, for filing a false complaint for purchasing warrants against some persons, who were friends of his father and they were harassing him for some agricultural lands at his native place. It was settled between Mr.Mahesh Mahatre and Mr.Khambholja, Advocate, that Mr.Khambholja will manage for bogus complainant and witnesses and will also manage with the Magistrate for such process, and for that purpose, the Advocate was paid the sum of Rs.6,500/-. It is also found to have been proved that Mr.Manohar Galani and Mr.Mahesh Mahatre wanted to highlight and bust the racket of issuance of bogus process by different Courts in the State of Gujarat. The Enquiry Officer also found that it is proved that in pursuance of the above, on 24.11.1994, at about 5.30 p.m. a private complaint for offences punishable under Sections 363, 354, and 506(2) read with Section 114 of the I.P.C. was filed by one Manjulaben Shankerbhai Parmar, of Dakor Town, against seven accused, all residents of Bombay. The aforesaid bogus complaint was placed before the delinquent through Mr.Khambholja, Advocate, bearing the thumb impression below the complaint as well as the statement of the complainant on oath. The Enquiry Officer also further found that it was proved that the delinquent did not follow the procedure of examination of the aforesaid complainant, as prescribed under Section 200 of the Criminal Procedure Code and the delinquent neither examined her nor did he make any enquiry to find out prima facie case in respect of the allegations made in the complaint filed by the lady complainant. It is also found to have been proved that the delinquent has already passed an order on 24.11.1994 to issue summons against all the accused. However, subsequently, on the next day, after telephonic conversation, which had taken place the day before between Mr.Khambholja, the Advocate, and the Magistrate, the order directing issuance of summons was replaced by an order directing issuance of warrants. The Enquiry Officer, therefore, found that the charges levelled against the petitioner were, ultimately, found to have been proved. It was also found that the act of the delinquent tantamounts to an act which is unbecoming of a Judicial Officer and such action is a grave misconduct and judicial impropriety. The aforesaid report was submitted to the High Court on its administrative side. On going through the Report, ultimately, the High Court agreed with the findings of the Enquiry Officer. It was found that the delinquent has committed grave misconduct, which is unbecoming of a Judicial Officer and, thereby, the delinquent has violated the provisions contained in Rule 3 of the Gujarat Civil Service Conduct Rules, 1971. Ultimately, it was found that it is a fit case for issuance of notice to the delinquent, calling upon him to show cause as to why he should not be dismissed from service. Accordingly, the delinquent was served with a second show cause notice. The same was replied by the delinquent by his reply, which is at Annexure `D' in the compilation. In his reply, he pointed out that the Enquiry Officer has raised unnecessary and irrelevant points for determination, which, according to him, have no connection or relevancy with the allegation of so-called misconduct. In his reply, he pointed out that there is no direct or indirect evidence by which it can be said that he was involved in the incident. He also pointed out that from the very beginning, he was serving with honesty and integrity. In his reply, he has also pointed out that he was made a scapegoat for the foul play of Mr.Manohar Galani and Mr.Mahesh Mahatre, and Mr.Khambholja, the Advocate. He also pointed out that the finding of the Enquiry Officer is based on conjectures and surmises, without there being any cogent evidence on record. He also pointed out, in his reply, that the observations of the Enquiry Officer as to what procedure the delinquent should have followed in respect of the private complaint of Manjulaben Shankerbhai Parmar, the complainant, are unwarranted since it is a matter of discretion of the Judicial Officer, which cannot be subjected to consideration thereof in any appeal or revision and / or in departmental enquiries. He also further pointed that his act of putting the date 24.11.1994 below the order, directing issuance of bailable warrants, should have been considered and appreciated in the light of his say and explanation given during his evidence and that the aforesaid lapse on his part, at any rate, does not suggest that Mr.Khambholja, the Advocate, had promised or assured to benefit him in any manner. He also pointed out that the most relevant and important witness, viz., Mr.Khambholja, is neither cited, nor relied upon by the Department to prove the telephonic conversation. He also gave detailed reply against other findings reached by the Enquiry Officer. In the concluding part of his reply, in paragraph 5, he stated that the proposed action of dismissal from service is quite excessive, unjust and improper looking to the bona fide, unintentional and unknowing lapse on his part. He also further pointed out that he is totally innocent and he was made a scapegoat for the foul play of the Advocates, Mr. Ramesh Prajapati, the Clerk, and Mr.Manohar Galani and Mr.Mahesh Mahatre, who wanted to achieve their own aim. He further pointed out that he was not aware that the complaint in question is a bogus complaint and is managed by them against the seven accused, whose status, etc., was not deliberately mentioned in the complaint. He also pointed out that he is having a clean record as an honest, laborious and hard working Judicial Officer. He also further pointed out in his reply that he will be more careful in future and will not give any cause for such complaint whatsoever. Alternatively, it was prayed that a sympathetic view may be taken by awarding a minor penalty of withholding one or two years increments without any future effect. 5. After receiving the said reply, the High Court found that it is a case for dismissal of the said Officer and, ultimately, recommended the same to the State Government. The High Court came to the conclusion that it is a case, wherein the delinquent acted in a manner, which is unbecoming of a Government Servant (it should be treated as an act unbecoming of a Judicial Officer) and it is an act of recklessness and misconduct in the discharge of his duties and that the delinquent has acted in a manner which may amount to favouring a party in the case before him and that the penalty of dismissal is an appropriate penalty. The High Court, ultimately, by its order dated 18th June, 2001 concluded that the delinquent should be dismissed from service. The State Government, after considering the Report of the Enquiry Officer and the finding of the High Court of Gujarat on its administrative side, accepted the recommendation of the High Court and vide Resolution dated 16.7.2001, it was ordered that the petitioner be dismissed from service with immediate effect from the date of the said order. The aforesaid Resolution dated 16.7.2001 is impugned in the present petition. 6. Mr.Supehia, learned Advocate for the petitioner, strenuously argued that considering the evidence on record, it cannot be said that the charges are proved against the petitioner. He further pointed out that it is a case of "no evidence" and that, therefore, this Court can set aside the findings given by the Enquiry Officer since it is based on no evidence at all. Mr.Supehia also further submitted that the petitioner was not given necessary documents, which he demanded, which relates to the statements given during the preliminary enquiry by said Mr.Khambholja, Advocate. The documents relate to the statement of Mr.Khambholja, Advocate, before the Registrar of the High Court, which was at the stage of preliminary enquiry, as well as the statement of one Mr.Vinod Varma, Advocate, and Mr.Ashok M. Thaker, who was the Criminal Board Clerk in the Court of Civil Judge (Junior Division), and J.M.F.C., Dakor, at the relevant time. Mr.Supehia further submitted that for want of those documents, the petitioner could not submit proper defence during the enquiry proceedings and it has prejudiced his defence accordingly. Mr.Supehia also further submitted that the Department has deliberately withheld most important witness Mr.Khambholja and since the said witness is not examined by the Department, adverse inference should be drawn against the Department. He further submitted that if Mr.Khambholja was examined as a witness, the petitioner could have brought better evidence by cross-examining the said witness during the enquiry proceedings. 7. It was next argued by Mr.Supehia that before dismissing him from service, the State Government has not consulted the Gujarat Public Service Commission and such consultation is mandatory and, therefore, also, the order in question is bad in law. He further submitted that the recommendation made by the High Court to the State Government for the purpose of dismissing the petitioner was not forwarded to the petitioner and on that ground also, the order in question is bad in law. Mr.Supehia has also relied on certain judgments to substantiate his say that for non-supply of necessary documents, the ultimate decision can be said to have been in violation of the principles of natural justice. Mr.Supehia also further submitted that the Report of the Enquiry Officer is based on conjectures and surmises and the same is perverse and that no reasonable person would come to such a conclusion from the evidence on record. He also further submitted that, in any case, it is a case of bona fide error on the part of the petitioner and, therefore, it should be construed as a bona fide error of judgment and there was no mens rea on the part of the petitioner and, therefore, there is no question of any misconduct which can be attributed to the petitioner. Mr.Supehia has also further submitted that it is, no doubt, true that the petitioner-delinquent had entered into telephonic conversation with Mr.Khambholja, Advocate, but during that conversation, the petitioner had merely told that Advocate that he can submit in the Court whatever he wanted to submit, and that there was no further exchange of words between the petitioner and the said Advocate on telephone, such as asking the Advocate to come and collect the order of warrant on the next day. He submitted that so far as the second part of the conversation with the Advocate is concerned, the same is not borne out from the evidence on record and there is no evidence worth the name on this point. According to him, therefore, merely talking with an Advocate over the telephone and asking him to come to the Court on the next day, cannot be said to be such a misconduct warranting dismissal of the petitioner from service. He also further submitted that, in any case, even on the quantum of punishment, order of dismissal is on the higher side and the petitioner should be visited with penalty of withholding of few increments without taking away his bread and butter. 8. Mr.Upadhyay, learned Advocate appearing for the State as well as the High Court, on the other hand, has supported the reasoning given by the Enquiry Officer. Mr.Upadhyay pointed out that considering the evidence on record, the misconduct against the petitioner is proved. He further submitted that, looking to the evidence on record, it is clear that the act of the petitioner is such, which cannot be expected from a Judicial Officer. He also further submitted that it cannot be said that this is a case in which there is absolutely no evidence. In his submission, even if there is some evidence on record, the finding of the Enquiry Officer cannot be said to be perverse or it cannot be branded as a case of "no evidence". Mr.Upadhyay has strongly argued that considering the strong circumstantial evidence and considering the admission of the petitioner that he received the telephone call from Mr.Khambholja, Advocate, it is clearly proved in the departmental enquiry that the charges levelled against the petitioner are proved. Mr.Upadhyay also further submitted that in a departmental enquiry, strict proof of evidence is not applicable. He further submitted that in a departmental enquiry, principle of giving benefit of doubt is also not applicable and such proceedings cannot be equated with an ordinary criminal trial, where strict evidence, proving the guilt beyond doubt, is required. Mr.Upadhyay also submitted that it is not necessary to consult the Gujarat Public Service Commission and the Government is bound to accept the recommendation of the High Court. Mr.Upadhyay further submitted that looking to the facts and circumstances of the case, and considering the gravity of the charge, the penalty imposed against the petitioner is the only adequate penalty and, in the facts of the case, no other penalty could have been inflicted on the delinquent as such Judicial Officers are not required to be retained in service even for a moment if the charges are ultimately proved. He, therefore, submitted that there is no substance in any of the arguments canvassed on behalf of the petitioner and that the petition deserves to be dismissed. So far as the grievance of non-supply of documents is concerned, it is submitted by Mr.Upadhyay that those documents, which were referred in the charge-sheet and which were relied on during the enquiry proceedings, were supplied to the delinquent, and on whatever material the enquiry was proceeded, such material was made available to the petitioner and that, therefore, it cannot be said that there was any breach of any principles of natural justice as the relevant material, on which the Department relied on, was made available to the petitioner. It was lastly submitted by Mr.Upadhyay that this Court, while exercising powers under Article 226 of the Constitution of India, cannot re-appreciate evidence on record as if it is a regular appeal and the scope of judicial review, in his submission, is very limited and simply because on the given set of evidence another view is possible, the same is also no ground for coming to a different conclusion. Mr.Upadhyay also further submitted that when the High Court, on its administrative side, having examined the case as well as having gone through, in detail, the charges and evidence on record and the High Court, being a Constitutional authority, having taken a decision, such decision cannot be interfered with lightly. 9. I have considered the submissions made by advocates on both the sides in detail and I have also considered the various case laws cited by the learned Advocates to substantiate their respective say. 10. The question which is required to be considered is whether, from the evidence on record, the charges against the petitioner can be said to have been proved and if it is found to have been proved, the next question which is required to be considered is whether the petitioner-delinquent was given reasonable opportunity to defend his case during the enquiry proceedings and, ultimately, if it is found that the charges are proved, whether the penalty of dismissal is justified or not. 11. In order to appreciate the aforesaid controversy, it is necessary to go into the background of the case. It is required to be noted that one Mr. Manohar Galani and Mr.Mahesh Mahatre, who were residents of Bombay City, wanted to find out whether, in some courts in the State of Gujarat, processes are issued on the basis of false complaints. It seems that Mr. Manohar Galani was subjected to harassment in the sense that he was falsely implicated in some criminal cases and in which processes were issued by the concerned Magistrate and in order to find out such racket, it was decided by him to file a false complaint and to secure a false order, directing issuance of warrant. With this definite purpose, he, along with one Mr.Mahesh Mahatre, came to Dakor. The said two gentlemen were having information