IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6421 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- R K DIVYESHWAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MRS KETTY A MEHTA with Mr. D.C.Rawal,advocate for the Petitioner. MR S.N.Shelat, Addtiional Advocate General for the Respondentd. -------------------------------------------------------------- CORAM : MR.JUSTICE KUNDAN SINGH Date of decision: 11.11.1998 ORAL JUDGEMENT By means of this petition, the petitioner has challenged the order dated 5.4.1993 of the Secretary to Government of Glutaric, dismissing him from service under Rule 6 of the Glutaric Civil Service (Discipline and Appeal) Rules, 1971. 2. The facts of this case, brief stated, are as under: The petitioner had practised as an advocate in the High Court of Gujarat. He was selected as a Judicial Magistrate, First Class in the year 1981 and he took charge on 15.12.1981 and since then was working as Judicial Magistrate, First Class till the impugned order of dismissal from service was passed on 5.4.93. Atthe relevant time, he was working as Civil Judge (JD.) and Judicial Magistrate, First Class, Anand. On 14.11.1991, at about 9.30 PM the petitioner reached at the house of Ms. S.C.Srivastav,, Joint Civil Judge (JD.) and Judicial Magistrate, First Class, Petlad. Hence she was surprised to see him at odd hours. She inquired as to why he had come, but he could not give any satisfactory answer. The conduct of the petitioner was seen unnatural and he appeared to be in drunken condition. She was very much embarrassed as her residence was in a lonely place. There was another quarter of Mr. Vasa falling on the Way to her quarter. He did not opt to visit Mr. Vasa's house first. From the behaviour of the petitioner, she felt unsafe in his presence. Hence,she sent her servant Mr. Anwar who was also present there to call Mr. Vasa, Civil Judge (J.D.), Petlad. On her request, he came from his house. Her impression was that had she been alone, the petitioner would have misbehaved a lot. Both the petitioner and the complainant were not much known to each other. She knew him as a colleague Judge only. According to her, he had no reason to visit her house. Both of them had never been posted at one station together. She was very much annoyed by this chapter of uncalled visit by the petitioner and she was very much mentally disturbed due to the incident and she went to narrate about the incident to the District Judge, Kheda at Nadiad on 18.11.91, who directed her to give a complaint in writing. Accordingly, she went again on 19.11.91 and reported in writing the matter to the District Judge, Kheda at Nadiad which is Annexure "L" to the petition. The District Judge, Kheda at Nadiad also recorded the statement of Ms. S C Srivastav then and there. At that time, Mr. A.G.Vasa, Civil Judge (J.D.), and JMFC, Petlad was also present. His statement was also recorded at that time. The statement of Mr. Ahmedmiya Malek was recorded on 25.11.91 by the District Judge, Kheda at Nadiad. The matter was referred to the High Court by a letter dated 16.12.91. The Joint Registrar, High Court of Gujarat under the direction of the then Acting Chief Justice of the High Court of Gujarat informed thepetitioner about the decision to hold a departmental inquiry against the petitioner on the following charges. "That while working as Joint Civil Judge(J.D.) and Judicial Magistrate, First Class, Anand (i) On 14.11.91 at about 9.30 PM you went to the residence of Ms. S.C.Srivastav,, Joint Civil Judge (JD.) and JMFC, Petlad. You tried to misbehave with her. (ii) You are furthermore charged that neither you had sought permission to leave the headquarters for going to Khambhat and Petlad on 14.11.91 nor you informed the District Judge, Kheda about your visit to Petlad thereafter; and (iii) These acts of yours are acts of grave misconduct and tantamount to conduct of unbecoming of a judicial officer, violating the provisions contained in Rule 3 of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971." The petitioner was required to submit his written statement of defence to state whether he desires to be heard in person if he fails to give his written statement of defence within 15 days on receipt of memo of charges, it was to be presumed that he did not wish to examine and produce any evidence. He was also called upon to state why above charges or any of them if held to be proved, should not be considered as sufficient ground for imposing upon him any of the major punishments specified in Rule (6) of the Glutaric Civil Service (Discipline and Appeal) Rules, 1971. Any representation if filed with regard to this action taken against him, was to be considered before final order of punishment is passed. The notice was accompanied with a statement of imputation, list of witnesses and list of documents. 3. The petitioner sent a letter dated 13.1.1992 to the Registrar of this Court through District Judge, Kheda at Nadiad. He denied the statement of imputations categorically as false, baseless and incorrect. He admitted in his statement that on 14.11.91 at about 9.00 PM he had gone to the residential quarter of Ms. S.C.Srivastav, Joint Civil Judge (JD.) and JMFC, Petlad, but it was not true that he tried to misbehave with her or his conduct was in any manner goes to show an impression of attempting to misbehave with her. It is also admitted by him that he had left his quarter without obtaining previous sanction of the District Judge, Nadiad, but he had telephoned him and was subsequently to obtain ex-post-facto sanction which he could not take because of certain reasons. He also denied that he was not known to her and she was not known to him. On the contrary, both the petitioner and lady officer started practice in the High Court together. She was selected as Civil Judge (JD.) in the same batch as he was. Due to several meetings, calls by the District Judge at Nadiad, Cambay, they had more than one occasion to meet each other. Originally being the members of the same Bar, both of them knew each other. He started his practice in Ahmedabad in the year 1979 and from 1978 to 1981, he practised in various Courts and in the year 1980-81, he started his practice in the High Court. From his initial posting at Mahesana to the present station from transfer, that was Anand. He had endeavoured to perform his duties to the best of his abilities judicially and with integrity and there was no adverse remarks during the entire spell of his service. While narrating about the incident, he stated that his maternal sister was residing at Petlad near Shri Ranchhodji temple. The distance from Anand to Petlad is about 20 Kms. while to and fro distance from Anand to Khambhat is more than 120 kms. On the date 14.11.91, at about 7.00 PM his brother-in-law Mr Pravinchadra Trivedi of Petlad, husband of his maternal sister Chandrikaben Trivedi had come to meet him at his residence at Anand and he was to leave for Petlad. Hence, he offered to accompany him on his scooter as he had no vehicle. He had no occasion to go and meet his maternal sister since Diwali. He rang the District Judge, Nadiad before leaving but he came to know from his daughter that the District Judge was not available. That phone was made for obtaining sanction and informing the District Judge that he was to leave for a couple of hours headquarters for Petlad. He also filed a xerox copy of the bill for the phone made from Anand to Nadiad and that phone call was recorded in PWD guest house register on the same date. It was physically impossible to reach Khambhat at a distance of more than 60 kms. from Anand and return to Petlad by round about 9.00 p.m. He had gone to Petlad to leave his brother-in-law on scooter and also to meet his wife (his maternal sister) where he had a dinner. When he was leaving the residence of maternal sister at about 9.00 PM on 14.11.91, in the way he started to have some uneasiness feeling and took a chance that as the residence of his colleague Ms. Vasa was on the way, he desired to go there and also wanted to take this opportunity to meet him. But he found that there was no light at Mr. Vasa's quarter and probably other family members might be in an inner room or might be out of house. Since the light was on in the nearby residence of Ms. Srivastav,he first visit her. There was no action or conduct much less any misbehaviour on his part which could even by ghost of imagination leading anybody to believe of his attempting to misbehaviour. Regarding the allegation made at serial no.2, he stated in writing to the District Judge for obtaining ex-post-facto sanction would at the most be said to be a technical irregularity which may be graciously condoned. In view of the fact, prior to leaving Anand for Petlad, he had tried to contact the District Judge on telephone at his residence but he was not available. Hence, his daughter on his behalf received the phone. On the next day on 15.11.91, immediately going to the dais, he was called in the chamber of Civil Judge (S.D.), Anand and was informed that his mother was operated at Ahmedabad. Mr. Pathan, Civil Judge (S.D.), Anand received phone call by him on his behalf. Hence he was called upon at about 11.30 a.m. on 15.11.91. He belongs to a respectable family. His father was a doctor. His cousin brother is an eminent Gynecologist and other cousin brother was a director of Commerce Faculty, Gujarat University and his brothers were also well established in the society. He would never think to misbehave with any person much less a judicial officer, more specifically with Ms. Srivastav in the manner as alleged. He is a disciple of Swaminarayan sect. The allegations of Ms. Srivastav were vague in itself and further on the contrary, it is even admitted by Ms. Srivastav that she presumed intoxication and she presumed likelihood of misbehaviour. There was was no specific allegation made in that regard. There was no clear cut allegation either made in that regard to presumption of intoxication based on incorrect inference. Such statement which no person of common sound or prudent sense would place reliance upon. He also indicated that the charges levelled against him were totally false and baseless and Ms. Srivastav might have been tempted to level charges against him long after the alleged incident with ulterior motive or for the simple reason that he had reached the place at a time when her undisclosable secrets would have been revealed and being allegations of a lady Judge would be credence too. If anything would have taken place those facts must have been disclosed by her to Mr. Vasa who was called there or to Mr. Malek who was present at the time of the incident. In the present case, no preliminary inquiry was conducted by the authorised officer. Moreover, the learned District Judge who purported to record the statement had done so for which the District Judge was not authorised otherwise to record the statement without specific orders or authorisation of the High Court. The statements so recorded without authority could not be the basis for inquiry against him. He requested for the copies at his costs or inspection or to grant him permission to inspect the said statements which maybe in the shape of any report sent by the District Judge and none of the charges and allegations made against him can be accepted against him. Hence, none of the charges and allegations made against him can be relied upon and none of the acts being committed by him amounts to acts of unbecoming of a judicial officer being of any misconduct or violative of provisions of Gujarat Civil Service (Discipline and Appeal) Rules, 1971. He also requested for an opportunity of personal hearing prior to taking action against him on the basis of allegations which were false,baseless and untrue and he also requested for personal presence and through an advocate of his choice and for an opportunity to examine defence witnesses during the inquiry in support of his defence. 4. Shri M.A.Trivedi, Judge, City Civil Court, Ahmedabad was appointed as Inquiry Officer for holding a departmental inquiry against the petitioner as per court's letter dated 4.2.1992. After considering the explanation of the officer dated 13.1.92, the Presenting Officer examined p.w. no.1 Ms. Suvarnalata Chandrabhushanlal Srivastav on 10.4.92. In her statement,she stated that at about 9.30 p.m. on 14.11.91, she was in her quarter. At that time, she was in the bathroom adjacent to the drawing room. Anwar who was working as a servant at about 9.30 p.m. had shouted and informed her that some guest had come from Ahmedabad. She asked him to inquire his name from the bathroom. After five-ten miinutes, she came out of the bathroom and went to her bedroom where from she saw Anand's Civil Judge (J.D.) sitting in her drawing room. She asked him to sit there and asked Anwar to give water to the officer. Then she asked him to prepare tea. But Mr. Divyeshwar told her that he had come from Khambhat after dinner and he was feeling giddiness and vomiting and asked for Limca. Then she asked her servant to bring a Limca and that was given to the officer. She felt that the conduct of Shri Divyeshwar was unbecoming of a judicial officer and asked her servant to sit outside the quarter. Shri Divyeshwar told her that he wanted to be fresh. Therefore, she showed him the wash basin which was near the bathroom adjacent to the drawing room and she went to her bed-room to give soap to him. When she went to give soap to him, he was near the wash basin. At that time, Divyeshwar came towards her and he spreaded his hands and went forward towards her. Therefore,she had a suspicion and doubt about his intention. Therefore, she told him that she did not like that thing. Still however,he came towards her. Hence,she had immediately gone to her bed-room where from she gave a call bell and called Anwar and he immediately reached there and thereafter,she had gone outside the gate of the quarter with Anwar. She asked Anwar to immediately call Civil Judge (J.D.), Shri Vasa. The quarter of Shri Vasa was at a distance of about 100 ft. from her quarter in the Court compound. Anwar had rushed running to the quarter of Shri Vasa and had called him. At that time, she was standing outside the gate. She told him that Anand's Civil Judge Divyeshwar had come and it seemed that he was drunk and so he should be taken away by him. Both Mr. Vasa as well as Ms. Srivastav went inside the quarter. At that time, Divyeshwar was sitting on Diwan in the drawing room. Under the guise of watching clear vision of TV, Shri Vasa had taken Divyeshwar to his house. She knew the officer only as a Judge and except that she had no personal relations or touch with Divyeshwar. She was mentally disturbed because of this incident and after four days on 18.11.91, she went to the house of the District Judge, Kheda at Nadiad at about 6.30 p.m. At that time, the Joint Civil Judge, Shri Vasa has also come there. She orally narrated about the incident to Shri Dalal. The District Judge Mr. Dalal told her that she should give in writing if she was to make a complaint and told her to come to the court in the morning on the next day on Tuesday next. Thereafter, she returned to Petlad during night and asked Vasa to accompany her to give his statement. On the next day on 19.11.91, she had gone to Nadiad along with Shri Vasa and gave her complaint in writing in English. She had gone by a bus while Vasa had gone by a scooter to Nadiad. In Nadiad,both had gone to the bungalow of the District Judge at about 9.00 a.m. She handed over a written complaint to the District Judge bearing her signature thereunder. The District Judge also recorded her statement. At that time Shri, Dalal also recorded the statement of Shri Vasa. Thereafter, the District Judge told her to go and therefore,she had left and returned to Petlad by a bus. She was crossexamined at length. It is admitted that on the night of the incident, two advocates Nazir Mirza ana Nazim Mirza had also come to her house in connection with bail application work. They also sat in the drawing room when Shri Divyeshwar was also sitting there. They had come with a cover from the Sessions Court. She talked with the advocates only for about 1.1/1 minutes. Shri Divyeshwar had told her that he had come from Khambhat. It is also admitted that she had not asked Divyeshwar as to why he had come to her house in the late night hours. She had not made any other inquiry from Divyeshwar because she had not found his reply satisfactory. She has also admitted that she might have taken about an hour in writing the complaint exh. 27 in her quarter. She had not mentioned therein about behaviour of Divyeshwar near the wash basin which was in front of her bathroom. She had not at all stated that S hri Divyeshwar had come near wash basin and she ran out of the gate. It was not true that Shri Divyeshwar had advanced his hands towards her to take soap. A specific question was put to her as to what was the distance between the place where she was standing and Divyeshwar was near the wash basin. She stated that it was about 6 ft. from the wash basin. It is also admitted by her that all the doors of her quarter were open and lights were on and TV set was also on. It is also admitted that she was annoyed since Divyeshwar had come to her house during odd hours and she had also mentioned this fact in her complaint. She had not told Shri Vasa that Divyeshwar had come to her house and he was in drunk condition. She had not talked with Vasa that Divyeshwar was drunk at the time of the incident and she had not talked at all with Vasa in connection with the incident from 18.11.91 to 19.11.91. She had not made any effort to call Anwar during 18..11.91 night to the morning of 19.11.91. She was unable to say exactly whether Divyeshwar had consumed liquor on 14.11.91. 5. The Department has also examined Shri A G Vasa, 3rd Joint Civil Judge (S.D.), as witness no.2. He has stated that both, he and Ms. Srivastav were residing in the common quarters situated in Petlad court compound at the relevant time. On entering the court compound,his quarter was first and then in the same way, Ms. Srivastava's quarter was situated at a distance of about 100 mtrs. On the day of incident at about 9.50 PM he was sitting in his quarter. At that time, Anwarbhai who was working as a servant at the residence of Ms. Srivastav reached there and told him that Ms. Srivastav was immediately calling him. While he was going to the quarter of Ms. Srivastav along with Anwarbhai, Srivastav met him on the way near SDM's office and told him that Anand's Civil Judge Shri Divyeshwar had come and it appeared that he was drunk. Hence, she requested him to take him to his house. He reached at her quarter where Shri Divyeshwar was sitting on the sofa. He had put on pant and a shirt, but he was not able to remember exactly about colours of pants and shirt. At that time, the TV set was on and cricket match was being displayed. He tried to talk with him and while talking with him, he turned away his face. He wanted to see his eyes to ascertain whether he was intoxicated or not as he had put on colour glasses. He did not find abnormality in the conduct of talking of Ms. Divyeshwar. As the antenna of Ms. Srivastava's TV was not properly working and no clear vision was there,hence he had taken Shri Divyeshwar to his house to watch TV. Both he and Divyeshwar left to his quarter. Shri Divyeshwar came on his scooter and he went on foot to his quarter. Both of them entered the drawing room of his quarter and set to watch TV. He insisted Shri Divyshwar to have tea as he wanted to know whether he was drunk or not. But he refused to have tea. When ever he tried to talk to him, Divyeshwar used to turn his face to other side. At that time, Divyeshwar had put on helmet and face was covered with helmet. So he could not smell his breath. He sat in his house for about 5 to 7 minutes. Thereafter, he told him that he had to go to Anand. He accompanied him outside his quarter to see him off. He started his scooter and went by his scooter, but he could not remove the stand. Hence,he suspected that he was drunk. He pushed the scooter and the scooter had got down from the stand. He had a suspicion that he might have consumed liquor. He also asked him for help if he desired, but he had refused for the same and he left by the scooter. Mr. Vasa then returned to his quarter. Since it was late night, he had not gone again to the quarter of Ms. Srivastav. On the next day, he visited the chamber of Ms. Srivastav and inquired from her whether she had any difficulty on the previous day. She told him that Divyeshwar had tried to misbehave with her, but she had run out of the quarter and had called him. Being a lady, he had not thought it proper to ask her anything more. On 19.11.91 at about 8.00 a.m., Ms. Srivastav reached at the house of Mr. Vasa and told to give a statement before the District Judge in connection with the incident which had taken place. He refused and told her that he would go if the District Judge would ask him. She informed that on the previous day, she had met the District Judge and he had called her for a statement. He told her to go to the residence of the District Judge by any other means as he was to go by his scooter. He went to Nadiad and reached at the bungalow of the District Judge at 9.00 a.m. to 9.30 a.m. At that time, the District Judge Shri Dalal was present and Ms. Srivstava was also there. The District Judge had also recorded statement of Ms. Srivastav inside the room. It was not recorded in his presence. After her statement, Shri Dalal recorded his statement. At that time,Ms. Srivastav was not present inside the room. During the cross-examination, he said that the distance between Petlad and Nadiad is 25 to 27 kms., while the distance between Anand and Khambhat would be about 50 to