1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3585/2008 Suresh Eknath Anasune Petitioner Vs. The Disciplinary Authority & District & Sessions Judge,Akola & Ors. Respondents Mr.M.A.Vaishnav for the petitioner Mr.V.S.Masurkar,G.P.with Mrs.M.P.Thakur,A.G.P. CORAM : V.C.Daga,& Mrs.Mridula Bhatkar,JJ. Date : 17th March,2009. O R D E R (Per Mrs.Mridula Bhatkar,J.) . Heard. 2] Perused petition. This Writ Petition is directed against the order of dismissal dated 21/12/2006 passed by the Enquiry Officer and the confirmation of the said order by the Appellate Authority on 1/9/2007. FACTUAL MATRIX 3] The complainant was working as a Jr.Clerk with 4thJt. Civil Judge,J.D.and J.M.F.C.,Akola since 1984 . One litigant made a complaint in writing against him for taking money from one accused 2 and allowing him to go without furnishing the bail and also for the misconduct. Pursuant to that discreet enquiry was conducted against him. Thereafter a show cause notice was given to the petitioner as to why the disciplinary action should not be initiated against him. The petitioner submitted his reply to the show cause notice. However,it was not accepted by the Disciplinary Authority and the petitioner was served with memorandum of charge under Rule 8 of Maharashtra Civil Services (D & A) Rules,1979 alongwith the statement of articles of charge and the statement of imputation in support of the articles of charge and the list of documents and witnesses. The enquiry was conducted by the enquiry officer. Thereafter he submitted his report holding him guilty and it followed by the dismissal order of the petitioner dated 21/12/2006. The petitioner being aggrieved with the said order of dismissal preferred an appeal under Rule 17 of the Maharashtra Civil Services (D & A)Rules,1979 before respondent no.2 i.e.the Appellate Authority. The Appellate Authority gave audience and dismissed the appeal on 1/9/2007. Hence this Petition. SUBMISSIONS 4] The learned advocate for the petitioner has challenged the order of dismissal on three grounds.(1) The allegations in the complaint were vague . (2) No opportunity was given to the petitioner to setforth the case during the discreet enquiry which was conducted against him . And (3) The punishment of dismissal is disproportionate to the charges. 3 5] The learned advocate has submitted that the witnesses who have deposed about the misconduct and demand and acceptance of money against the petitioner have never complained against him when such incidents have taken place and this circumstance should have been appreciated by the enquiry officer and the appellate authority in favour of the petitioner. He further submitted that the charges in the complaint are blunt and not specific. 6] The respondents have opposed this petition by filing their reply and it is contended that many lawyers have deposed against the petitioner and the justice could not have been served by lesser punishment. The learned G.P. appearing for the State has submitted that the procedure was properly followed and the enquiry officer and the Appellate Authority have accordingly considered all aspects involved therein and such action was necessary to maintain purity of administration particularly in relation to the Judicial Institution. CONSIDERATION 7] The Petitioner has not made out any grievance against the procedural law at the time of conducting the enquiry except denial of opportunity to put up the defence during discreet enquiry. It is settled procedure that the enquiry being discreet, it is not binding on the enquiry officer to call any explanation and give opportunity to the delinquent and then to submit the report. After submission of the report of discreet enquiry conducted by IV Ad-hoc Additional District 4 and Additional Sessions Judge,Akola, a show cause notice was given to the petitioner on 29/11/2004 by the Disciplinary Authority calling upon him as to why disciplinary action should not be initiated against him. The petitioner has given reply to the said notice and has denied all the allegations. Thereafter the chargesheet was issued to him. Thus,there is no substance in the argument of the denial to put up the defence and the enquiry was devoid of principle of natural justice. 8] We can not re-appreciate the evidence in the writ jurisdiction. However, it is necessary for us to consider submission made by the petitioner on the question of misappreciation of the evidence of the witnesses.In this enquiry nearly six lawyers including the President of Bar Association of Akola District were examined and they all have deposed about unscrupulous practice of the petitioner leading to demand of money from the litigants and the lawyers which undoubtedly amounts a demand for illegal gratification. The learned Government Pleader has pointed out that the written complaint was made by the President of Bar Association with the District Judge against the petitioner on this issue. Normally the lawyers or litigants do not comeforward and speak about each and every incident of corruption taking place in the Courts immediately.Most of the time they are also party to such acts. However, when there is positive evidence no weightage can be given to any negative evidence. Moreover the case of the misconduct and the demand of illegal gratification has not been destroyed in the cross examination. 5 9] The Disciplinary Authority has given major penalty under Rule-5, Sub Rules 7,8 & 9 of the Maharashtra Civil Services (D & A) rules,1979 and dismissed the petitioner from the service . The charges against the petitioner are grave and the misconduct of the petitioner deserves to be shunned by imposing the major penalty like dismissal. The appellate authority has rightly confirmed the order of the enquiry officer. We do not find any fault with the order passed by the enquiry officer. The petition stands dismissed in limini with no order as to cost. (Mrs.Mridula Bhatkar,J.) (V.C.Daga,J.) -