Case: Nirmala J. Jhala Vs. State Of Gujarat &amp; Anr

to cross-examine such persons, the same cannot be relied upon. 25. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 26. “A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence which is led in support of the case were to be believed. While determining whether a prima facie case had been made out or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence”. (Vide: Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79 ) (See also: The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 SC 1352 ; State (Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 SC 1382 ; Dalpat Kumar & Anr. v. Prahlad Singh & Ors., AIR 1993 SC 276 ; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570 ). 27. The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused/complainant and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17.8.1993, as he had stated that he had asked the accused/complainant to pay Rs. 20,000/- as was agreed with by Shri P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar, complainant, has definitely reiterated the stand he had taken in his complaint. The chargesheet served upon the appellant contained 12 charges. Only first charge related to the incident dated 17.8.1993 was in respect of the case of the complainant. The other charges related to various other civil and criminal cases. The same were for not deciding the application for interim reliefs etc. 28. The chargesheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge No. 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant. There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant/accused or Shri C.B. Gajjar, advocate, had been exhibited in regular inquiry. In absence of information in the chargesheet that such report/statements would be relied upon against the appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 ; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539 ) 29. In view of the above, we reach the following inescapable conclusions:- i) The High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a finding that the complainant had no ill-will or motive to make any allegation against the appellant.ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice.iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry.iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993.v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved.vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about the appellant’s husband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried.viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for misappropriation. 30. In view of the above,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The High Court has rightly disbelieved the statement of the complainant-accused that he could hear the conversation between the appellant and Shri Gajjar. The said evidence was also discarded by the Enquiry Officer. Further allegation that the appellant had threatened the said complainant-accused to withdraw the complaint was also found to be false. The entry of Shri C.B. Gajjar into the chamber of the appellant on 17.8.1993, was not corroborated by any other evidence. Shri C.B. Gajjar himself had also denied the same.More so, the High Court has reached the conclusion by shifting the burden of proof of negative circumstances upon the appellant. The High Court has erred by holding that in respect of the incident dated 17.8.1993 i.e. demand of amount, it was the duty of the appellant to explain the said circumstance, and that instead of giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar, she had completely disowned and denied any such occurrence. The onus was always on the department to prove the said circumstance. The court should have also taken note of the fact, that the matter was adjourned for 28.8.1993, and being a 4th Saturday, it was a holiday. The court further committed an error by holding, that the failure to challenge the most crucial element of the evidence, regarding the incident of 17.8.1993, in respect of a demand of bribe of Rs.20,000/- fully justified the findings of the Enquiry Officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant.18. The appellant had not married at that point of time, as per her statement. Even this fact has been admitted by Shri C.B. Gajjar, Advocate. Given the above set of facts, the complainant is seen talking abouthusband for collecting money on her behalf. The High Court had failed to notice the above fact and had been making attempts to keep aside all such relevant factors in a case, where there was no directis evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of naturalThe High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a finding that the complainant had no ill-will or motive to make any allegation against the appellant.ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice.iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry.iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993.v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved.vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about thehusband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried.viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for