1 IN THE HICH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5774/2010 Dilip Digambar Kulkarni Petitioner Vs. The Registrar General & Anr. Respondents Mr.Dilip Bodake for petitioner Mr.S.R.Nargolkar,Addl.G.P.for Res.1 & 2 CORAM- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR,JJ. DATE - 18th MARCH,2011 P.C. . Heard counsel for the parties. This petition filed under Article 226 of the Constitution takes exception to the decision of the Appellate Authority as well as the disciplinary authority of terminating the services of the petitioner,who was working as a Jr.Clerk in District Court ,Satara. The first grievance made before us is that the Appellate Authority has relied on the statement of the petitioner which is recorded by the Anti Corruption Bureau (ACB) in connection with the offence 2 registered against the petitioner under section 13(1)(d) and 13(2) of the Prevention of Corruption Act .The argument proceeds on the premise that this statement could not be relied in a disciplinary proceedings , unless it was proved in the said proceedings . In the first place the assumption of the petitioner that the said statement was the sole basis on which finding of guilt is recorded against the petitioner, is ill-advised . Indeed, the relevant extract of the petitioner’s statement recorded by the ACB has been adverted to by the Appellate Authority. 2 Secondly there is nothing on record to indicate that the petitioner had ever objected to take the said statement on record in the disciplinary proceedings. Once the said document was allowed to be part of the disciplinary proceedings without any objection by the petitioner, it is too late in the day for the petitioner to object on the ground that the same cannot be looked into in the disciplinary proceedings. 3 3 The next grievance of the petitioner is that the principles of natural justice has not been complied in its letter and spirit .In this context it is submitted that the petitioner had mentioned in his submission before the disciplinary authority that he would be examining five witnesses. However, the enquiry officer failed to issue summons to the remaining defence witnesses. Instead, closed the proceedings immediately after D.W.1 was examined by the petitioner. The argument though attractive at the first blush clearly over looks the pursis filed by the petitioner himself before the enquiry officer dated 17/6/2008 . In this pursis, he has stated that he did not wish to examine any other witness and the defence evidence be treated as closed. The enquiry officer has proceeded on the basis of the said pursis and prepared his report on 25/6/2008. 4 To get over this position,the argument before this Court is that it is the enquiry officer pressurised the petitioner to submit such pursis. In the 4 first place, there is no clear averment in the Writ Petition in this behalf. The petitioner cannot be permitted to rely on some vague grounds taken in the Writ Petition. The material facts to establish the said allegation ought to have been stated in the petition disclosing facts on affidavit. Besides, no grievance is made in the Writ Petition that this contention was specifically argued during the personal hearing of the petitioner before the Appellate Authority. The plea taken by the petitioner is a question of fact, which the petitioner not only has to allege but also expected to prove the same. No other contemporaneous evidence is produced to substantiate the said allegation. In our opinion, therefore, the petitioner cannot be permitted to agitate this argument for the first time across the bar. 5 Counsel for the petitioner, however, placed reliance on the facts mentioned in the written submissions filed by the petitioner before the Appellate Authority, wherein it is stated that his evidence was 5 recorded in haste and the petitioner was forced to submit the pursis of closure of his evidence. As aforesaid, this contention is not specifically taken in the Writ Petition . We gave sufficient time to the counsel for the petitioner to point out from the appeal memo that this grievance was made before the Appellate Authority in the memo of appeal itself. The petitioner could not have inserted this new factual plea in the written submissions filed before the Appellate Authority after the closure of personal hearing. The fact remains that the grievance regarding the petitioner being pressurised to file pursis before the enquiry officer for closure of his evidence ,is unsubstantiated. 6 That takes us to the next argument of the petitioner. When this order is being dictated , learned counsel for the respondent, in all fairness, pointed out that the petitioner has taken vague plea in the appeal memo being ground to file appeal. However, in our opinion, the said ground (P) does not specifically allege 6 that the petitioner was forced to file pursis of closure of evidence which is now alleged before us. Besides , from the averments made in paragraph 8 of the petition, it is seen that the petitioner virtually accepts that he adduced the evidence and closed the same on his own. The petitioner has averred as follows. “The Petitioner states and submits that to prove the case the Respondent no.2 was pleased to adduce the evidence by examining the witnesses and close the evidence. The Petitioner states and submits that on 20/6/2008 the written argument was filed on behalf of the Petitioner alongwith the citations and thereafter the Enquiry Officer submitted his Departmental Enquiry report on 25/6/2008 to Disciplinary Authority prima facie holding that the Petitioner is guilty”. 7 That takes us to the next submission canvassed before us. According to the petitioner the disciplinary authority passed order on 23/7/2008 and the same was corrected on 28/7/2008 without notice to the petitioner. Relying on page 42 and 88 of the additional paper book, this contention is brought home by the petitioner. The question is - whether by virtue of amendment of clerical nature and which had occurred on account of 7 mistake of the stenographer, the entire report of the disciplinary authority can be said to be vitiated ? For that ,we may have to refer to page 88 of the paper book where the following words came to be added in the operative order dated 23/7/2008 which reads thus - “ and demanding Rs.100/- on 25/7/2005 and accepting Rs.100/- on 26/7/2005 ”. These words have been inserted between the word ‘on 22/7/2005’ , and ‘ as a motive’ in the operative order. The reason why this insertion was necessitated has been noted on 28/7/2008 by the disciplinary authority. As aforesaid, the reason is that the stenographer had missed out those words while transcribing the order. The factual position in the abovesaid left out words is already examined by the disciplinary authority in the discussion and after referring to the relevant evidence finding of fact in that behalf is also recorded by the concerned authority in the original decision itself. It is not as if a new fact has been introduced. The mistake 8 appears to be bonafide mistake in transcribing the operative part of the order. By virtue of adding these words, no prejudice is caused to the petitioner especially when the copy thereof has been made available to the petitioner and the petitioner proceeded to file appeal only thereafter on 1/9/2008 before the appellate authority. Suffice it to note that this change effected by the disciplinary authority cannot be treated as fatal so as to vitiate the ultimate decision of the disciplinary authority which has now been confirmed by the appellate authority. Accordingly this argument does not commend to us . 8 That takes us to the next argument of the petitioner . The petitioner is already facing criminal case in respect of the same set of facts on which basis the disciplinary proceedings were commenced by the disciplinary authority. In the process he was forced to disclose the defence in the disciplinary proceedings which has affected his fundamental right. This argument 9 at best will be available to the petitioner in the criminal proceedings instituted by the Anti Corruption Bureau which he has to now face for the offences punishable under the provisions of Prevention of Corruption Act. Notably, this objection was taken by the petitioner by way of representation and the same was rejected upto this Court. In any case, it is well established position by now that such plea is not available to the delinquent in disciplinary action pending against him . Both the disciplinary authority and criminal proceedings are independent and have to proceed on its own merits in accordance with law. Accordingly, even this submission is devoid of merits. 9 That takes us to the last argument canvassed before us that the punishment is excessive. The petitioner has been found to have accepted only Rs. 100/- from the complainant. Even if that fact is taken as it is, the question of terminating the services of the petitioner would be excessive and not in conformity with 10 rule 5(9) of the Disciplinary Appeal Rules, M.C.S.R. 1979. We are not impressed by this argument at all. In our opinion the disciplinary authority was justified in passing the order of termination in the fact situation of the present case while dealing with the officer of the District Court who is expected to observe integrity and whose acts of commission and omission bring the Court to disrepute. Thus, we do not think that the said punishment is excessive and improper. 10 Accordingly this petition fails. The same is dismissed. (MRS.MRIDULA BHATKAR,J.) (A.M.KHANWILKAR ,J.)