1 wp 1862.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1862 OF 2010 Sahebrao Kisanrao Rahane ..Petitioner. Vs. The State of Maharashtra & Ors. ..Respondents. Mr. S.K.Rahane, party in person. Mr. C.R.Sonawane, AGP for Respondent nos. 1 and 3. Mr. Sanjay Udeshi i/b M/s. Sanjay Udeshi & Co. for Respondent no.2. CORAM : D.K.DESHMUKH & K.K.TATED, JJ. DATED : 24/02/2011. PC: 1 The Petitioner by this Petition challenges the order by which the Petitioner has been denied his pensionary benefits for proved misconduct. The Petitioner was in service as a Civil Judge Senior Division. Departmental Enquiry in to misconduct was ordered against him. While that enquiry was pending he applied for voluntary retirement. He was permitted to retire voluntarily but the Departmental Enquiry was continued. The Enquiry Officer submitted report holding him guilty of the 2 wp 1862.10.doc misconduct alleged against him and therefore, the State Government ordered withholding of the entire pension. The Petitioner who appears in person submitted that the misconduct alleged against him has not been proved. He however did not dispute that if misconduct is held to have been proved then the Government can impose the punishment of withholding of the entire pension. Therefore, we went through the Enquiry Report as also the evidence on record. The nature of allegations against the Petitioner is very serious. The allegations against the Petitioner and the findings of the Enquiry Officer on that report are to be found in paragraph no.7 of the Enquiry Report, they read as under: “7. The points that, therefore, arise for consideration are as under. I have recorded my findings against them for the reasons to follow: Points: Findings: 1 Whether it is proved that the delinquent Yes. Shri S.K.Rahane, during his tenure at Malegaon district Nashik routinely and recklessly granted ex-parte injunctions, passed perverse orders and decided civil suits in blatant disregard of law and facts for considerations other than judicial with a view to favour one of the parties for improper motives and 3 wp 1862.10.doc thereby indulged in corrupt practices and failed to maintain integrity in the discharge of judicial functions amounting to grave-mis-conduct? 2 Whether it is proved that the 2. Yes. delinquent Shri S.K.Rahane, in blatant disregard for the provisions of law as found in Order 21 rule 29 of the Code of Civil Procedure, granted stay to the execution without taking security or recording reasons for not taking security in Special Darkhast No.18 of 1991, as alleged? 3 Whether it is proved that the 3. Yes. delinquent Shri S.K.Rahane failed to maintain devotion to duty by framing issues in Regular Civil Suit No.224 of 1986 treating it as immovable property matter though it was a suit for setting aside money decree? 4 Whether it is proved that the 4. Yes. delinquent Shri S.K.Rahane, participated in wet party hosted by advocate Shri D.U.Shewale? 4 wp 1862.10.doc 5 Whether it is proved that the 5. Yes. delinquent Shri S.K.Rahane made efforts to develop intemacy with advocate (Miss) P.E.Chindhade, as alleged? 6 Whether it is proved that the 6. No, delinquent Shri S.K.Rahane though he went to the extent of touching apologized feet of advocate Shri T.H.Pawar with tears. to avoid resolution being passed against him by the Bar? 7 Whether it is proved that the 7. Yes. delinquent Shri S.K.Rahane used to keep chit-chating with certain advocates in his chamber and resorted to easy bank-matters by neglecting older matters then pending on his file? 8 Whether it is proved that 8. Yes. the delinquent Shri S.K.Rahane adopted wrong practices of asking stenographer to prepare part of the judgment in bank-matters on his own? 9 Whether it is proved that the 9. Yes. delinquent Shri S.K.Rahane was 5 wp 1862.10.doc showing and taking false disposals by resorting to dishonest approach in conducting bank-matters?” 2 The Enquiry Officer was the District Judge. The allegation no.4 against the Petitioner was that he attended a party thrown by an advocate, where drinks were served and the Petitioner had part taken the drinks in that party, that point has been discussed by the Enquiry Officer in paragraph nos.33, 34 and 35, it read as under: “33. Advocate Shri D.U.Shewale stated that in the year 1993 he hosted a party at his field locally known as Mala as he was then elected as director of co-operative spinning mill and chairman of village society. According to him, about 112 members of Malegaon Bar and the delinquent attended the said party. Non-vegetarian meals and toddy were served in the said party. It is also stated by him that the delinquent took non-vege meal and consumed toddy in the said party. Advocate S/Shree T.R.Pawar and S.S.Shaikh, who attended the said party have corroborated the said fact. According to advocate Shri Shaikh, the delinquent was in a group which took drinks i.e. toddy. 34. The delinquent also admitted that he attended the said party but according to him, he 6 wp 1862.10.doc was forced to attend the said party so as to keep harmony between the members of Malegaon Bar and the police as there was a dispute regarding the urinal situated near the Bar room between the Court and the police and as the then Additional Superintendent of Police had closed down the said urinal by putting thorny sticks and tin-sheets the members of Malegaon Bar were in agitating mood and wanted that the delinquent should file a private complaint against the police and hence in order to keep harmony between the members of the Bar and the police, he attended the said party. It is also contended by the delinquent that though he attended the said party, he did not consume toddy and according to him what was consumed by him was Neera which can not be said to be an intoxicant. However, I do not find any substance in the said contention raised by the delinquent because the suggestion put by him to advocate S/Shree S.S.Shaikh and T.R.Pawar in this behalf, has been flatly denied by them. Both of them have consistently stated that the Bar members had not brought any pressure on him for filing any private complaint against the police though the urinal was closed down by the then Additional S.P.Malegaon. So also, there is nothing on record to show that Neera and not toddy was served in the aforesaid party hosted by advocate Shri D.U.Shewale. 7 wp 1862.10.doc 35 The aforesaid discussion, thus, amply makes it clear that the delinquent participated in wet- party hosted by advocate Shri D.U.Shewale in his field and consumed toddy in the said party. This fact clearly demonstrates that by participating in such a wet-party, the delinquent behaved in a manner unbecoming of a Judicial Officer. Point No. 4 is, thus, answered accordingly.” 3 Perusal of the above quoted paragraphs from the Enquiry Report shows that the Enquiry Officer has relied on the statement of Shri D.U.Shevale the advocate who had thrown that party as also the statements of Shri T.R.Pawar and Shri S.S.Shaikh. As the Petitioner submitted that the evidence of the witnesses has not been properly appreciated. We have perused the statement of Shri Shevale, advocate. We find that he in clear terms has stated that he had thrown that party at his farm house and that the Petitioner attended that party, that drinks were served in that party and the Petitioner had part taken those drinks. Perusal of the cross-examination shows that except for giving suggestions that the party was attended by the Petitioner because the relation between the police and bar were tense, there is nothing. In our opinion, even assuming that the relations between the bar and the police were tense, there are 8 wp 1862.10.doc other methods of normalizing the relation than attending parties by judicial officers thrown by the advocates. 4 We have perused the deposition of Shri Shaikh, advocate, who corroborates Shri Shevale, advocate in so far as participation by the Petitioner in the party is concerned. Perusal of the cross-examination of Shri Shaikh by the Petitioner shows that on the point of Petitioner attending the party, there is no cross-examination at all. Thus, we find that the Enquiry Officer has correctly appreciated the evidence on record in so far as this charge is concerned. 5 Charge no.5 against the Petitioner was that he tried to develop intimacy with advocate Ms.Pratibha V.Chindade, that charge has been discussed by the Enquiry Officer in paragraph nos. 36 to 41 of the Enquiry Report, it read as under: “36 Advocate Miss.P.E.Chandhade stated that the delinquent’s approach towards her was not normal. According to her, he used to call her to his chamber often and once at the time of morning-walk, he met her and by going very close to her, he asked her as to why she was running away from him, when he wanted her company. According to her, due to this 9 wp 1862.10.doc behaviour of the delinquent, she was very much upset. 37 It is further stated by her that about six months prior to the transfer of the delinquent from Malegaon, she learnt from advocate S/shree Shaikh and L.B.Kulkarni that the delinquent wanted her company and he talked about the same to advocate S/Shree L.C.Agrawal and Patil. This fact has been corroborated by advocate Shri LB.Kulkarni. He stated that once Shri Patil, the then A.P.P. Malegaon told him that the delinquent attended a wet-party hosted by advocate Shri L.C.Agrawal at his house and at that time the delinquent while under the influence of drink, asked advocate Shri Agrawal to provide the company of advocate Miss P.E.Chindhade. Shri Patil, therefore, asked him to take some action in the matter and hence he informed about the same to advocate Shri T.R.Pawar, the then President of Bar Association, Malegaon and advocate Shri S.S.Shaikh. 38 Now, it was suggested to advocate Shri L.B.Kulkarni during his cross-examination by the delinquent that advocate Shri Patil did not tell anything to him against him (delinquent). However, this suggestion was flatly denied by Shri Kulkarni. Besides this suggestion, there is nothing in the evidence of Shri Kulkarni to make his aforesaid version unworthy of belief or credence. It is true 10 wp 1862.10.doc that the evidence of Shri L.B.Kulkarni is hear-say evidence, but it is well settled that in departmental proceedings there is no allergy to hear-say evidence provided it has reasonable nexus and credibility. So, I find that though the evidence of advocate Shri Kulkarni on this point is hear-say evidence, it being worthy of credence and having reasonable nexus, can be taken into consideration. His evidence, in my opinion, certainly corroborates the version of advocate Miss. P.E. Chindhade that the behaviour of the delinquent with her was not normal and he wanted her company. 39 Further, advocate Miss. P.E.Chindhade was once appointed as Commissioner by the delinquent in Special Civil Suit No.15 of 1993 though there was no propriety of appointing her as Commissioner as she then worked with advocate Shri Bagade, who represented the plaintiff in the said matter. 40 So also, the evidence of advocate Miss. S.E. Chindhade, the elder sister of advocate Miss. P.E.Chindhade goes to show that on 17-6-1996 the delinquent had been to her house and asked her as to where her younger sister was ? and soonafter the arrival of one of her clients, the delinquent left the house saying that she should not disclose the said fact to anybody. 11 wp 1862.10.doc 41 All these instances and the way in which the delinquent behaved with advocate Miss P.E.Chindhade clearly indicates that the delinquent made efforts to develop intimacy with advocate Miss. P.E.Chindhade. Point No.5 is, thus, answered accordingly.” 6 It cannot be over emphasized that this charge is of extremely serious nature. The Enquiry Officer has held that the charge is proved. There are two relevant witnesses on this point, one is Ms.Pratibha Chindade. We have perused the deposition. Apart from other things in her deposition she has categorically stated that the Petitioner used to call her to his chamber. She further states: ‘Once when I was having a morning walk, he met me and by coming very close to me he said that why I was running away from him when he wanted my company, I was therefore, very much frightened, and hence, I stopped appearing before him.’ 7 Perusal of the cross-examination shows that in so far as aspect of the Petitioner calling her to his chamber is concerned, there is no cross-examination. So far as the aspect of morning walk is concerned, following is the relevant portion: 12 wp 1862.10.doc “It is not correct to say that you never met me in the morning. It is not correct to say that you did not tell me that you did not want my company.” 8 Thus, except giving suggestions, there is no cross- examination on this point also. 9 Sister of Ms.Pratibha has also been examined as a witness and she has stated that the Petitioner had gone to her house asking for Ms.Pratibha and was waiting for her in the house and that the elder sister of Ms.Pratibha told the Petitioner that it is not a befitting behaviour of a judicial officer and except giving suggestion that he did not go to her house, there is no cross- examination on that aspect. Thus, we find that no fault can be found with the appreciation of the evidence by the Enquiry Officer. In our opinion, the other charges levelled against the Petitioner are also very serious nature. In our opinion, however, even if it is assumed that those charges are not proved, the above referred two charges are enough to check out any Judicial Officer from service. As we find that the findings of the Enquiry Officer that the charges are proved against the Petitioner cannot be disturbed. We cannot interfere with the punishment imposed on the Petitioner. 13 wp 1862.10.doc 10 The Petition is therefore, dismissed. 11 Rule discharged. 12 No order as to costs. (D.K.Deshmukh, J.) (K.K.Tated, J.)