IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5759 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE AKIL KURESHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- NIRMALA J JHALA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5759 of 1999 MR JAL UNWALA WITH MS NIRALI B MUNSHI, Advocates for Petitioner MR SN SHELAT, Advocate General with MR JB PARDIWALA, Advocate, for Respondents -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE AKIL KURESHI Date of decision: 25/08/2004 JUDGEMENT (Per : HON'BLE MR.JUSTICE AKIL KURESHI) The petitioner who was a judicial officer has by way of the present petition challenged the notification dated 11.12.98 issued by the Government of Gujarat, by which the petitioner has been ordered to be compulsorily retired from service with effect from the date of the notification. 2. Brief facts leading to the present petition can be noted at the outset. The petitioner was working as second Joint Civil Judge (SD), Ahmedabad Rural from 10.6.91 to 18.10.92. With effect from 19.10.92, the petitioner was posted as Chief Judicial Magistrate, Ahmedabad Rural and continued to work on the said post till 25.11.93. For having committed certain misconduct, pending departmental proceedings, the petitioner was placed under suspension by order dated 21.1.94. On 6.8.94, a chargesheet came to be issued against the petitioner containing in all 12 charges against her. Shri M.C.Patel, the then Additional Principal Judge, City Civil and Sessions Court, Ahmedabad was appointed as the Inquiry Officer to conduct inquiry against the petitioner, pursuant to the said chargesheet dated 6th August, 1994. 3. Upon conclusion of the oral inquiry, the Inquiry Officer concluded that charges Nos.3 to 12 against the petitioner are not proved, the findings with which the High Court on its administrative side agreed to and we may, therefore, ignore the details of those charges for the purpose of present petition. 4. Charges Nos.1 and 2 levelled against the petitioner read as follows: "That while you were working as 2nd Jt. Civil Judge (SD), Ahmedabad (Rural) at Mirzapur for the period from 10.6.91 to 19.10.92, and Chief Judicial Magistrate, Ahmedabad for the period from 19.10.92 to 25.11.93 : 1. That in CBI case No.5/91, you demanded illegal gratification of Rs.20,000/-, and you agreed to accept the amount by the way of installments of Rs.5000/- each from the accused Mr.G.G.Jani, through his advocate Mr.C.B.Gajjar, for showing favour to the accused. 2. One person who is known as 'Mama' amongst the litigants used to come with you from your residence and to return with you and to sit in your Chamber and to collect money from the litigants on your behalf, and thereby you indulged in the corrupt practice." During the course of the inquiry, several witnesses were examined before the Inquiry Officer. Number of documents were also produced to prove the charges levelled against the petitioner. The Inquiry Officer submitted his report in which it was concluded that the charge article 1 against the petitioner stands proved. The Inquiry Officer came to the following conclusion : "As a result of the above discussion, I come to the conclusion that Miss Jhala demanded or agreed to accept illegal gratification through advocate Shri C.B.Gajjar for doing favour to Shri Jani at her meeting with Shri Gajjar in her chamber on 17.8.93. The charge no.1 is answered accordingly." With respect to charge article No.2 levelled against the petitioner, the Inquiry Officer concluded that a person known as 'Mama' used to come and sit in the chamber of Miss Jhala, however, there is no evidence on record that this person used to collect money from the litigants. The exact findings of the Inquiry Officer in this regard were as follows:- "I see no reason to disbelieve the evidence of Shri Rajnikant S. Shah that one person known as 'Mama' used to come and sit the Chamber of Miss Jhala. He has said in cross-examination that several persons are known as Mama in staff and he does not know the person known as Mama personally. That may be so but the fact remains that a person known as Mama used to come and sit in the chamber of Miss Jhala. However, there is no evidence on the record that the person used to collect money from the litigants on behalf of the litigants. The charge No.2 is therefore answered accordingly." The report of the Inquiry Officer was supplied to the petitioner by the High Court of Gujarat along with a show cause notice dated 12.12.97 communicating the tentative decision of the High Court to the petitioner indicating that the High Court, prima facie, finds that this is a fit case to recommend issuance of notice to the delinquent calling upon her to show cause as to why penalty of dismissal from service should not be imposed upon her for the charges proved against her. In response to the said show cause notice dated 12.12.97, the petitioner gave a detailed representation dated 5.5.1998. 5. After considering the Inquiry Officer's report, the evidence on record and the representation of the petitioner in response to the show cause notice dated 12.12.97, the High Court of Gujarat on administrative side by its recommendation dated October 12, 1998 recommended compulsory retirement of the petitioner from service. In the said recommendation, it was observed that the petitioner as a Judicial Officer is required to maintain highest standard of integrity and honesty. It was observed that the evidence on record would show that the delinquent had demanded a sum of Rs.20,000/- to show favour to the accused who was facing prosecution for offences punishable under section 409, 467 and 471 of the Indian Penal Code and the delinquent having failed to maintain the standard expected of a Judicial Officer, has committed grave misconduct and her conduct was unbecoming of a judicial Officer. Considering, however, her long service, the High Court as mentioned earlier, recommended that she be compulsorily retired from service. 6. The said recommendations of the High Court on its administrative side were accepted by the State Government and by resolution dated 11th December 1998, it was resolved to accept the said recommendations of the High Court and to compulsorily retire the petitioner from service. Pursuant to the said resolution, a notification dated 11th December 1998 came to be issued in the name of Governor of Gujarat compulsorily retiring the petitioner from service with effect from the date of the notification. The petitioner has challenged, in the present petition, the said resolution dated 11th December 1998 as well as the notification dated 11th December 1998 by which she is ordered to be compulsorily retired from service. 7. Though several grounds have been raised in the petition with respect to the applicability of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 to the petitioner and the consequential conduct of the inquiry against her in terms of the said Rules, the learned advocate for the petitioner during the course of the argument has stated that in view of the settled legal position emerging from the Full Bench decision of this Court in R.M.Gajjar v. State reported in 18 GLR 738, the petitioner is not pressing those grounds and is accordingly not questioning the legality of the departmental inquiry conducted against the petitioner. The petitioner has, thus, confined her challenge to the findings arrived at by the Inquiry Officer during the course of the departmental inquiry as accepted by the Disciplinary Authority. 8. To understand the controversy better, the exact nature of allegations against the petitioner with respect to charge article 1, in brief, can be recalled at this stage. It is alleged against the petitioner that at the relevant time, when she was discharging duties as Chief Judicial Magistrate, Ahmedabad (Rural), a criminal case being CBI Case No.5/91 was pending before the court of the petitioner in which one Shri Gautam G. Jani, an officer of the LIC under suspension was the accused. Shri Jani had engaged advocate Shri P.K.Pancholi, to defend him in the said case. Shri Pancholi who was normally practicing in the High Court and who was also related to the accused Shri Jani was finding it difficult to remain present in the criminal proceedings. On 13.8.93, two witnesses on behalf of the prosecution were present. One other advocate, Shri C.B.Gajjar, was instructed by Shri Pancholi to appear on behalf of Shri Jani and on 13th August 1993, Shri Gajjar obtained an adjournment in the matter on the ground that he has to present his VP and prepare the case. The hearing of the case was, therefore, adjourned to 20th August 1993. It is alleged that on 17th August 1993, Shri Jani was called by Shri Gajjar outside the chamber of the petitioner at about 4.30 p.m. and at about 5 'O clock in the evening of 17.8.93, while Shri Jani was standing outside the chamber of the petitioner, Shri Gajjar went inside the chamber when the petitioner was alone. On coming out from the chamber after 15 to 20 minutes, Shri Gajjar told Shri Jani that the petitioner is willing to do the work and the judgment would be given in his favour, but he will have to pay Rs.20,000/= before 20th August 1993 i.e. the next date of hearing. On Shri Jani telling Shri Gajjar that he did not have the funds to pay such a large amount as he is under suspension and requesting for installments or time, Shri Gajjar once again went into the chamber of the petitioner and after coming out told Shri Jani that the case would proceed further in his favour only if he makes an arrangement for the first instalment of Rs.5,000/- in the evening of 27.8.93 or in the morning of 28.8.93 and that he would be obtaining an adjournment on 20.8.93 and get a short date. It is stated that since Shri Jani was unable to raise the necessary amount, he approached the Prosecutor Shri Pandey appearing for the CBI and under his advise lodged a written complaint to the CBI on 19.8.93 narrating the said incident. This in essence is the underlying allegation against the petitioner with respect to charge article 1. 9. To establish article charge No.1, the prosecution has examined several witnesses. Salient features of depositions of these witnesses examined during the course of the inquiry can be noted at this stage. 10. Shri Gautam Jani, accused in CBI Case No.5/91, who had acted as whistle-blower in the present case was examined as witness No.1 during the course of the inquiry. Said Shri Gautam Jani had given a written complaint to Shri P.P.Pandey, S.P., CBI on 19.8.93 alleging, inter alia, that an amount of Rs.20,000/- was demanded by the petitioner through one advocate Shri C.B.Gajjar with respect to his pending case being CBI Case No.5/91 which was pending before the petitioner. The said complaint dated 19.8.93 was exhibited at Ex.48 during the course of the departmental inquiry. Said Shri Jani had also given his statement to the Vigilance Officer of the High Court of Gujarat on 20th September, 1993. The said statement dated 20th September 1993 is also exhibited at Ex.51 in the inquiry proceedings and Shri Jani has stated in his deposition that the contents of the said statements are true. In essence, therefore, the evidence of Shri Gautam Jani before the Inquiry officer comprised not only of his oral deposition, i.e. examination-in-chief and the cross-examination, but would also include his written complaint dated 19.8.93 given to the CBI and his statement dated 20th September 1993 recorded by the Vigilance Officer of the High Court. In his written complaint dated 19.8.93, Shri Jani has, inter alia, stated that his case being CBI Case No.5/91 is pending before the Chief Judicial Magistrate, Mirzapur, Ahmedabad. He has stated that the concerned Chief Judicial Magistrate is giving adjournments for only a week or 15 days. Shri Jani has further stated that his advocate is unable to remain present and that therefore the court gets angry with him. Being fed up by the situation, Shri Jani states that he approached his advocate Shri Pancholi and requested him to relieve from the mental torture. Shri Jani was, therefore, introduced to one advocate Shri Chandrakant B. Gajjar who was practicing in Gheekanta court and he was told that Shri Gajjar and the Magistrate have personal relations and he will get the work done. Shri Jani had met Shri Gajjar in Mirzapur Court on 13.8.93. Shri Jani has also stated that though Shri Gajjar was not legally representing him, but to show that he has good relation with the Magistrate, he secured adjournment in the case. Shri Jani was thereafter instructed by Shri Gajjar to meet him on Tuesday, i.e. 17th August 1993 in the evening at 4.30 in Mirzapur Court near the chamber of the Chief Judicial Magistrate. Shri Jani accordingly reached the said place and at about 5.00 p.m. when the Magistrate was alone in her chamber Shri Gajjar had gone to meet her and after discussion for about 15 to 20 minutes, he had come out and stated that the Magistrate is ready to do the work and the Magistrate will give judgment in his favour and even if the CBI goes further in appeal, then also, there will be no difficulty as the judgment will be sound. But he (Shri Jani) will have to pay an amount of Rs.20,000/before the date of adjournment i.e. 20th August 1993. Shri Jani however told Shri Gajjar that he cannot arrange for so much money since he was under suspension and requested to get some time or installments and that he would, under no circumstances, be able to give the said amount on 20th August 1993. He requested that he may be given time upto 28th August 1993 and also be given installments. Upon this request, Shri Gajjar had again gone to meet the Magistrate and told him thereafter, that by way of first instalment, he has to arrange for Rs.5,000/= by 27th August 1993 evening or 28th August 1993 morning and only then, the case will be decided in his favour. He also stated that on 20th August, 1993, they will ask for time and will take a short adjournment and by the next adjournment after paying the money, the case will be conducted. Shri Jani has further stated that for adjournment on 20th August 1993, a false application for adjournment was given on 17.8.93 in the name of advocate Shri Pancholi stating the reason that Shri Pancholi's sister's mother-in-law had expired and it was told to him (Shri Jani) that since talk has already taken place with the Magistrate, upon the presentation of the application, immediately an adjournment will be granted. In the said application, it is stated that for the said corruption, steps may be taken against the concerned Magistrate. The application for adjournment dated 20th August 1993 in original was annexed with the complaint. 11. In his statement before the Vigilance Officer given by Shri Jani, he has reiterated what he has stated in his written complaint to the CBI, of course, with certain minor insignificant discrepancies. For example, in this statement for the first time he has tried to suggest that when Shri Gajjar entered the chamber of the petitioner on second occasion on 17.8.1993, he positioned himself outside the chamber in such a way that he could hear the conversation between the petitioner and Shri Gajjar. However, he has repeated the entire incident as narrated in his complaint dated 19.8.93. He has further stated that since he could not raise the necessary amount, he had gone to the CBI office on 19.8.93 and met the Prosecutor Shri Pandey and told him that on the next day, he will be admitting the charge and requested that since it is his first offence, Shri Pandey may get him the benefit of probation. Shri Pandey, however, refused the request, but inquired as to what had happened that made him change his mind when so far he was in the mood of fighting out the case. Shri Jani, therefore, informed him about the demand of money by Miss Jhala and told him that since he could not arrange for money and therefore cannot pay the amount, he was sure to be convicted. Upon this conversation, the Prosecutor Shri Pandey took Shri Jani to the S.P. Shri P.P.Pandey and Shri Jani has told him about the entire incident. Shri P.P.Pandey, therefore, asked him to give an application giving full details and accordingly, he gave the said application to the CBI on 19.8.93. It is further stated by Shri Jani in his statement before the Vigilance Officer that Shri P.P.Pandey told him that on 20th August 1993 he will send one person as a panch whom Shri Jani should introduce to Shri Gajjar as his man, who in turn will report so that the CBI can verify that the application given by Shri Jani is correct. Accordingly on 20th August 1993, CBI Inspector had brought one person to Mirzapur Court and according to the plan, that person was to be introduced to advocate Shri Gajjar as the elder brother of Shri Jani. It is further stated by Shri Jani that he met Shri Gajjar in the Gheekanta court during the recess time along with the said panch witness and introduced him as his cousin brother and told him to tell the entire conversation to his brother so that he can make an arrangement for money. They, therefore, went with Shri Gajjar to a nearby restaurant called Yamuna Restaurant on Gheekanta road. Shri Gajjar repeated the same conversation which had taken place earlier in the presence of the panch. The panch witness had requested for reducing the amount, but Shri Gajjar stated that the amount demanded was quite low and cannot be reduced further and only if they can raise the amount, he will be able to save the accused and not otherwise. Upon which the panch asked Shri Gajjar as to where and when the money will be paid to Miss Jhala to which Shri Gajjar had stated that Rs.5,000/= is to be paid at her residence and no other person can come there, but there will be no difficulty if Shri Jani goes along with him. They had ordered three "Thumps Up" in the restaurant and the CBI Inspector who was sitting at some distance had asked for a plate of cutlets. On the conclusion of the talk, they had got up and when Shri Jani had gone to the counter for payment of the bill, the person sitting in the counter pointed out that cutlet was ordered by the other person. Advocate Shri Gajjar, therefore, got suspicious as to why bill was paid on behalf of some other person and asked for an explanation. Shri Jani, therefore, gave explanation, but Shri Gajjar got suspicious that there was certainly something wrong and immediately left the place. Shri Jani, therefore went to meet Shri Gajjar at his place and asked him as to why he had left in a hurry, on which Shri Gajjar inquired about the said person. Shri Jani told him that Shri Jitendrasinh was his friend. But advocate Shri Gajjar was not convinced and Shri Jani was told to collect his brief since he was not interested to work for him any more. It is also stated by Shri Jani in the said statement that on 24.8.93 and 27.8.93, he had received threats from some unknown persons for which also he had complained to the CBI in writing. He has further stated that on 10.9.93, when he was staying at Vijapur, one person with a darkish complexion and stout build had come to meet him and told him that he is 'Mama' and that he should file affidavit that Miss Jhala has not demanded money and that Shri Gajjar has demanded the same. He was promised that he would be acquitted and he would also be paid an amount of Rs.25,000/-. This offer was declined by Shri Jani. 12. In his deposition recorded before the Inquiry Officer at Ex.47, Shri Gautam Jani narrated the said events as mentioned in his complaint before the CBI as well as recorded in the statement before the Vigilance Officer. Barring minor discrepancies, he has stuck to his story on all material particulars. Shri Jani was cross-examined by advocate Shri P.R.Agarwal appearing for the petitioner. However, no major discrepancies have been brought out by the defence in the cross-examination. It is important to note at this stage that though Shri Jani has stated on as many as three occasions, i.e. in his written complaint before the CBI, in his statement before the Vigilance Officer and in his deposition before the Inquiry Officer to the effect that on 17th August 1993, advocate Shri Gajjar had gone in the chamber of the petitioner and met her twice and demanded an amount of Rs.20,000/= from Shri Jani for his acquittal in the criminal case pending before the petitioner and had also discussed the issue of giving installments to Shri Jani for the said payment after having come out of the chamber of the petitioner on the second occasion, there is absolutely no cross-examination on this important aspect of the matter by the petitioner of this witness. The principal allegation of the prosecution that on 17th August 1993 at about 5.00 p.m. Shri Gajjar had met the petitioner in her chamber for 15 to 20 minutes and came out and conveyed to Shri Jani that the petitioner had demanded an amount of Rs.20,000/= for acquitting Shri Jani in the said criminal case, thereafter re-entered the chamber of the petitioner and after having come out on the second occasion told him that the Magistrate had agreed to accept the amount in installments, has gone totally unchallenged in the deposition of Jani. In the cross-examination, however, Shri Jani could not state with certainty as to when and where did he receive the threats. He has also admitted that he had never met a person known as 'Mama' at any time other when he received the threat. He also admitted that he cannot recognise Shri Mama if he saw him. He, in his cross-examination, also agreed to the suggestion that Shri Gajjar may have had a hand in the incident in which he (Shri Jani) received threats. He was shown the map showing the chamber of the petitioner and surroundings and he admitted that he did not hear the conversation between Shri Gajjar and the petitioner. Shri Jani, however, denied the suggestion that he had filed the complaint before the CBI to ensure that his case is transferred from the court of the petitioner. It is pertinent to note that in the cross-examination, no suggestion is made to this witness suggesting any ill-will between him and the petitioner. 13. Advocate Shri Gajjar was examined during the course of inquiry at Ex.68. He had stated that his statement was recorded by the Vigilance Officer on 29.9.93. He stated that the contents therein are correct and the statement was exhibited at Ex.69. Thus the evidence of Shri Gajjar comprises of his statement before the Vigilance Officer given on 29.9.93 as well as his oral evidence during the course of inquiry. In his statement before the Vigilance Officer, Shri Gajjar has stated that he knew advocate Shri P.K.Pancholi. On 13.8.93 Shri Gautam Jani had approached him at about 11 O' clock in the compound of the court of Metropolitan Magistrate and stated that