Nirmala J. Jhala vs State Of Gujarat & Anr

B. The said complaint filed with the CBI was referred to the High Court and in pursuance thereof, a preliminary enquiry was conducted against the appellant in which statements of various persons including C.B. Gajjar and G.G. Jani were recorded. The Court then suspended the appellant vide order dated 21.1.1994, and directed a regular enquiry appointing Shri M.C. Patel, Additional Civil Judge, City Civil Court, Ahmedabad as the Enquiry Officer.

D. During the course of the enquiry, G.G. Jani, C.B. Gajjar, P.K. Pancholi and certain other witnesses were examined by the department and in her defence, the appellant examined herself denying all the allegations made against her. The Enquiry Officer submitted his report on 24.10.1997, holding the appellant guilty of the first charge and partially guilty of the second charge, i.e. to the extent that one person named “Mama” used to visit her quite frequently. However, it could not be proved that he had ever misused his association with the appellant in any respect. All other charges were found unsubstantiated.

F. Aggrieved, the appellant challenged the said order of punishment, by filing a Special Civil Application No.5759 of 1999 before the High Court on the ground that the findings of the Enquiry Officer were perverse and based on no evidence. However, the said civil application was dismissed by the High Court, vide impugned judgment and order dated 25.8.2004.

3. Ms. Mahalakshmi Pavani, learned counsel appearing for the appellant, has submitted that one Gautam Ghanshyam Bhai Jani, an officer of Oriental Insurance Company at Mehasana had been involved in a CBI case for the offence punishable under Sections 406, 467 and 471 of Indian Penal Code, 1860. After investigation, a chargesheet had been filed against him in the court of the Chief Judicial Magistrate, Mirzapur in case no.5 of 1991. Shri Bhatt, the then CJM had liberally granted long adjournments to the accused complainant. The case had started in 1991, but no progress was made till 1993, as the accused- complainant had only been seeking adjournments. The appellant had joined in the said Court as CJM in 1993, and wanted to conclude the trial, thus, she granted short adjournments. The accused/complainant was being represented by Shri Pankaj Pancholi, Advocate. He had been granted adjournments one or two times, but later on, the appellant refused to accommodate him. She hence, began examining witnesses even in the absence of the complainant’s advocate. The complainant was directed/ instructed to keep his advocate present, and in the event that Shri Pankaj Pancholi was not available, to make alternative arrangement. Shri Pankaj Pancholi introduced the accused-complainant to Shri C.B. Gajjar, Advocate practicing therein. Shri Pankaj Pancholi told Shri Gajjar that as the accused-complainant was his relative, he was not in a position to ask the accused to pay fees. Thus, Shri Gajjar should ask the accused-complainant to pay a sum of Rs.20,000/- to be paid to the appellant, in order to get a favourable order. The appellant did not meet Shri Gajjar in her chamber, nor did she put up any demand. The complaint, however, was motivated as the appellant was a very strict officer. This theory of demand/bribe and further, the readiness to accept the same in installments, was a cooked up story. The findings of fact recorded by the Enquiry Officer are perverse, as Shri Gajjar, Advocate has denied meeting the appellant in her chamber. The High Court did not appreciate the evidence in correct perspective and failed to protect a honest judicial officer, which was its obligation. The punishment imposed is too severe and disproportionate to the delinquency. Therefore, the appeal deserves to be allowed.

…….

(Emphasis added)

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 about appellant’s husband 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 direct evidence.

23. In view of above, it is 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 natural justice.

29. In view of the above, we reach the following inescapable conclusions:-

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.

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, we have no option except to allow the appeal. The appeal succeeds and is accordingly allowed. The order of punishment imposed by the High Court in compulsorily retiring the appellant is set aside. However, as the appellant has already reached the age of superannuation long ago, it is not desirable under the facts and circumstances of the case, to grant her any substantive relief, except to exonerate her honourably of all the charges, and allow the appeal with costs, which is quantified to the tune of Rs.5 lacs. The State of Gujarat is directed to pay the said cost to the appellant within a period of 3 months from today.