(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged notification dated 14.7.2009, issued by the Legal Department of the Government of Gujarat, by which, on the basis of the recommendation of the High Court Gujarat, the petitioner was dismissed from judicial service with immediate effect. The petition arises in following factual background:
2. The petitioner was selected as Civil Judge (J.D.) and Judicial Magistrate First Class in the year 1981 and was posted in the judicial service with effect from 15.6.1982. The petitioner was promoted to the post of Civil Judge (S.D.) in the year 1996. A departmental inquiry was instituted against the petitioner, being Inquiry No.15 of 2000, by issuance of a charge-sheet dated 31.8.2001. The charge against the petitioner was that while he was working as Chief Judicial Magistrate at Bhuj for the period from 6.5.1996 to 15.6.1998, Criminal Case No.675 of 1994 was conducted by him, which involved the offence punishable under Section 135 of the Customs Act, 1962, besides other provisions of the Imports and Exports (Control) Act, 1947 and the Indian Penal Code. The case involved, in all, 14 accused, who were allegedly involved in smuggling 275 silver slabs, worth Rs.5,86,50,620/-. Accused Nos. 8 and 9 were absconding. Their trial was separated from rest of the accused. The delinquent delivered his judgment on 11.3.1997 with respect to the remaining 12 accused, holding them guilty of the charges. The delinquent imposed following punishments on such accused:-
It was alleged that the delinquent, being a senior judicial officer, was aware about the basic provisions of Section 135 of the Customs Act and requirement of awarding minimum sentence, as also various judgments of this Court, wherein it was held that in case involving huge quantity of contraband articles, Court should not take liberal view while awarding sentence. It was alleged that the petitioner intentionally and only with a view to favouring the accused persons ignored the special provisions of law as well as the judicial pronouncements and without assigning any special or adequate reasons, awarded the sentences to various accused which were less than the minimum prescribed under the law. It was further alleged that accused Nos. 1 to 6 were caught red handed, while the delinquent awarded sentence of 4 years' rigorous imprisonment to accused Nos.3 to 6 and to remaining accused, he with oblique motive awarded sentence of only 2 years, which was less than the minimum prescribed. It was further alleged that though the offence was clearly established against accused Nos.11 and 14, the delinquent with oblique motive, without any special and adequate reasons, awarded the sentence of only 5 months and 3 months respectively. It was further alleged that – “Though, it was a case of a huge quantity of contraband articles i.e. 275 Silver Slabs worth Rs.5,86,50,620/-, you awarded the sentence to each of the accused, keeping in mind, the period undergone by each of the accused as under trial prisoner and granted benefit of set off so that none of the accused had to remain in custody for any further period.”
It was further alleged that earlier, in Criminal Case No.1293 of 1995, which was decided by the petitioner, he had in his judgment dated 22.1.1997, awarded punishment to the accused after holding them guilty in such a way that after giving benefit of set-off, the accused would not have to remain in jail for any further period.
In the charge-sheet, it was therefore, alleged that:-
“Thus, the manner and mode in which you awarded the sentence in Cri. Case Nos.675/94 & 1293/95, clearly show that the accused had managed with you for showing favour in awarding sentence and accordingly, you awarded the punishment fixing the term of sentence in such a way that the accused need not have to remain in custody for any longer period and thereby:
(a) You are guilty of indulging in Corrupt-practice.
(b) You are guilty of dereliction in discharging your judicial functions.
(c) You acted in a manner unbecoming of a Judicial Officer.
These acts of yours, would amount to acts of grave misconduct and tantamount to conduct unbecoming of a Judicial Officer, violating the provisions contained in Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971.”
2.1. Along with the charge-sheet, the delinquent was served with statement of Imputations. The delinquent made detailed representation dated 7.9.2001, denying all the charges. Inquiry Officer was appointed. During the course of inquiry, Inquiry Officer examined one Shri Ratnakar Jadhavray Dholakia, as departmental witness No.1 at Exh.57. He was working as Special Government Prosecutor at Bhuj at the relevant time. He had conducted both the criminal cases for which the delinquent was issued the charge-sheet. The Inquiry Officer also examined one Dilip Shamjibhai Dhruv as departmental witness No.2 at Exh.61. He was Superintendent of Customs, posted at Bhuj at the relevant time. He stated that he had carried out the investigation in Criminal Case No.675 of 1994. According to him, the sentence awarded was insufficient. It was a case where minimum sentence of 6 to 7 years should have been awarded. His counsel had advised that since the sentence is inadequate, appeal should be preferred before the High Court. One Kirtikumar Shankarlal Joshi, Departmental Witness No.3, at Exh.63, was, in the year 1998, posted as Superintendent of Customs at Bhuj. He, however, had no details to give with respect to the charges against the delinquent.
2.2. The Inquiry officer upon completion of the oral inquiry, submitted his report on 28.1.2004. His conclusion was that no independent evidence was produced by the department to prima facie show that the delinquent had indulged in corrupt practice. He was of the opinion that the charges of dereliction of duties and that of behaving in a manner unbecoming of a Judicial Officer, were not established. He was further of the opinion that against the judgment of the delinquent, appeal was preferred and the department, which was aggrieved, having preferred appeal for redressal of the grievance, no grievance would survive and even if there was an error committed by the delinquent, the same was rectified in appeal preferred by the department.
2.3. The report submitted by the Inquiry Officer was placed before the Committee of two learned Judges of this Court (R.P. Dholakia and A.M. Kapadia, JJ). The Disciplinary Committee examined the Inquiry Officer’s report and in their final decision dated 27.10.2004, though did not agree with the reasons recorded by the Inquiry Officer, was of the opinion that the delinquent should be exonerated. The Committee observed that excuse of the delinquent cannot be accepted because huge quantity of contraband articles was involved and the delinquent ought not to have taken lenient view which was contrary to the settled principle of law in the matter of imposition of penalty. It was also observed that though there was no sufficient evidence to prove oblique motive or allegation of corruption, the manner and mode in which the delinquent awarded punishment to each accused, keeping in mind the period of custody as under-trial prisoners, create doubt to some extent. While proposing to exonerate the delinquent of all charges, the Committee opined that the acts of the delinquent cannot be stated to be totally bonafide. It was, therefore, proposed that such factors should be considered at the time when the delinquent is considered for next promotion in future.
2.4. When such decision of the Disciplinary Committee was placed before Chamber in its meeting dated 26.9.2005, it was resolved that the matter be remanded to the said Disciplinary Committee for reconsideration.
3. The same Disciplinary Committee, thereupon, took a fresh decision on 4.4.2006, in which it was recorded that since there was no evidence about corruption, the Inquiry Officer rightly came to the conclusion that the department failed to prove the charges. They also reiterated the stand about the case to be considered by the Selection Committee while considering the delinquent for future promotion. They, therefore, recorded that, ‘under the above circumstances, we do not find any reason for change in our earlier decision dated 27.10.2004’.
3.1. Such fresh decision of the Disciplinary Committee was placed before the Chamber in the meeting held on 5.3.2007, wherein it was resolved as under:-
“Resolved that the Departmental Inquiry No.15/2000, against Mr. R.R. Parekh, the then Chief Judicial Magistrate, Bhuj, be assigned to the Disciplinary Committee consisting of the Honourable Messrs Justice D.A. Mehta and Jayant Patel, to re-look into the matter and to issue show-cause notice to the delinquent.”
3.2. Composition of the above Committee underwent some modifications before final order could be passed. We are, however, not concerned with such changes. Suffice it to note that new Disciplinary Committee, comprising of Justice D.H. Waghela and K.A. Puj, recorded tentative decision to disagree with the Inquiry Officer’s report. They also indicated their tentative reasons for doing so. It was noted that Special Prosecutor had contended before the learned Judge that most of the accused persons were facing trial for other serious offences and one of them Usmangani Amar Bava was convicted twice previously and sentenced in other cases. Despite this, the evidence regarding the other cases of conviction was not led or not allowed to be led by the delinquent and without adverting to the provisions for minimum punishment, imposed punishment approximating the same with imprisonment, already undergone by the accused. The Committee was also of the opinion that the delinquent disregarded the provisions contained under Sub-section (3) of Section 135 of the Customs Act while awarding sentence of less than one year. That fact of accused having been convicted for the first time or that he is not principal offender or is acting merely as a carrier could not be considered as adequate reasons for awarding lesser sentence. It was observed that the delinquent could not have been unaware of such express legal provisions. It was recorded that actions do not appear to be legal or bonafide and act of disregarding the express provisions of the procedure and substantial law is not befitting a Judicial Officer. The delinquent was given notice indicating that it was proposed to differ from the opinion of the Inquiry Officer. He was called upon to show cause why he should not be held guilty of the charges leveled against him and should not be dismissed from service, if found guilty of above misconduct.
3.3. The delinquent replied to the notice under his representation dated 16.1.2009. He contended that there is gross delay in initiation and completion of the inquiry. With respect to Criminal Case No.1293 of 1995, he contended that he imposed sentence of 35 months, which was merely one month less than the minimum prescribed. It pertained to an old lady who pleaded guilty. However, with respect to Criminal Case No.675 of 1994, for which large number of accused were awarded sentence of less than 3 years, he did not elaborate, except for stating that even if errors and mistakes were committed by him, same were bonafide errors and that, therefore, he cannot be said to have committed misconduct.
3.4. His representation against the tentative decision of the Disciplinary Committee was considered. He was granted personal hearing by the Committee. The departmental representative was also heard. The Committee rendered its final decision on 1.7.2009. The Committee recorded as under:-
“46. In the facts of the present case, it is not in dispute that the delinquent as a seasoned judicial officer, who has been appointed since 1981, would be very much aware about the basic principles about the trial and sentencing. Even if it is accepted for the sake of argument that he was not aware about the provisions of the Customs Act, still, it is expected of a judicial officer that when he conducts a trial under a special statute, he should be aware about the procedure and also offence under the provisions of special statute like the Customs Act. It cannot be readily accepted that he conducted the entire trial for the offence under the Customs Act without considering the provisions of the Customs Act at all. Further, thereafter while imposing the sentence, as a judicial officer the delinquent was required to consider the provisions of the statute under which the offence is established and the sentence is provided for such offence which was required to be awarded. Therefore, the delinquent ought to have seen the provisions of the Customs Act once he found the accused persons guilty or recorded the plea of guilty as to what are the provisions for the punishment for the alleged offences. It would have clearly suggested that the minimum sentence has been provided. This would imply that he has not bothered to look at the provisions of the special law or the statute for which he had conducted the trial and had imposed the sentence upon the accused. It is difficult to digest that a judicial officer would pass an order of conviction and sentence without looking at the provisions of law or a special statute. It is required to be mentioned that particularly when on his own he has sated that he was not familiar with the special law like the Customs Act it was incumbent upon and necessary for him to have a look at such provision.
47. Further, even if these arguments are accepted at the face value, it reflects gross negligence and dereliction of duty reflecting about the manner and method in which he has performed as a judicial officer which may ultimately have a reflection on the functioning of the judicial system in the society. If it was not so and he was aware about the provisions of sentencing and also the provisions of the Customs Act providing for minimum sentence, then, he could not have imposed less than minimum sentence as provided by the statute. In fact, as a judicial officer, he was bound by judicial precedents in the form of pronouncements of the Hon'ble Supreme Court as well as the High Courts which have clearly laid down as guideline that less than minimum sentence cannot be awarded once the statute has provided for the minimum sentence. In other words, if no discretion is provided while imposing the sentence by the statute, the minimum sentence as provided in the statute has to be awarded irrespective of the personal views or sympathy. The judicial officer has to perform his function within the four corners of law as provided and also has to conduct the trial or the proceedings and also while passing sentence he is bound by the norms which have been well-defined and laid down as guidelines.
48. Therefore, it is such an attitude which would certainly raise a doubt or a reasonable doubt about the conduct though there may not be any direct evidence with regard to corruption or oblique motive. It is required to be mentioned that an inference can be drawn on the basis of material with regard to such oblique motive when there is no sufficient and reasonable explanation is provided by the delinquent. If the explanation given is not convincing, then necessary inference has got to be drawn. Again, as rightly emphasized, it is for such reasons that the standard of proof in a departmental inquiry are different than the standard of proof provided in a criminal trial. The rules of evidence also, therefore, are not strictly made applicable and on the ground of preponderance of probabilities and on overall appreciation of evidence and material if the conclusion can be drawn reasonably about the charges levelled against the delinquent, it cannot be said that it is illegal or bad. It is required to be mentioned that even in a criminal trial what is expected is proof beyond reasonable doubt (emphasis supplied) and the Hon'ble Apex Court has emphasized that it is not every doubt but only a reasonable doubt which can be entertained.
49. ...
50. ...
51. In the departmental inquiry when the issue which is required to be focused is with regard to conduct of a judicial officer and his manner and method of functioning or conducting the trial and passing an order like the order for punishment is required to be assessed and judged, then it has to be considered in the background of the relevant material and if there is no convincing explanation, an inference about the oblique motive has to be drawn. Assuming that there is no oblique motive and an inference may not be drawn, even then the established facts, on his own say by the delinquent, reflects about his sheer negligence and attitude towards work and the manner and method of functioning as a judicial officer, which will reflect on the functioning of the judicial system in the society. Therefore, the observations in the report both by the Inquiry Officer as well as by the Disciplinary Committee that there is no direct evidence and therefore he is exonerated cannot be accepted.
52. Therefore, having considered the material and the submissions made on the basis thereof, the Committee is of the opinion that the charges (a), (b) & (c) are held to be proved and the penalty as proposed in the show-cause notice as per Rule-6 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 deserves to be imposed. The delinquent, accordingly, deserves to be dismissed from service.”
This decision of the Disciplinary Committee was tabled before the High Court and after 48 hours, as per the procedure, stood adopted by the High Court and it became the decision of the High Court.
4. Yet, another Inquiry No.6 of 2001 was instituted against the petitioner under a charge-sheet dated 5.11.2001. There were two principal charges against the delinquent. It was alleged that he was transferred vide order dated 23.4.1993 after which, he with oblique motive, requested the Chief Judicial Magistrate, Mehsana, to transfer only 26 out of several part-heard cases pending before him selectively. He got these cases transferred, which included Criminal Case Nos.594 of 1989, 147 of 1992, 148 of 1992, 2034 of 1992, 2035 of 1992 and 2 of 1993. Such cases pertained to the offences punishable under the provisions of the Food Adulteration Act. Such cases were indicated as part-heard, though he was fully aware that no material evidence was recorded in the said cases.
4.1. Second charge against the delinquent was that in as many as 68 cases of offences punishable under the Factories Act, he imposed negligeable punishment of fine, ranging from Rs.100/- to Rs.500/-. It was alleged that such lenient punishment was contrary to several decisions of the Gujarat High Court mentioned in the charge- sheet. It was therefore, alleged that the delinquent indulged in corrupt practice. He was guilty of dereliction of duty and he has acted in a manner unbecoming of a Judicial Officer.
4.2. Vide representation dated 18.12.2001, the petitioner denied the charges. An inquiry was conducted. Inquiry Officer recorded statements of witnesses. Upon completion of the oral inquiry, the Inquiry officer submitted his report on 29.10.2004. In the report, the Inquiry Officer held that the delinquent got some of the cases transferred as part-heard only with a view to see that the assessment of the work (in terms of the disposal) would not go below average. With respect to the leniency in punishment for the Factories Act offences, the Inquiry Officer held that there was no proof of oblique motive. Orders were passed on merits and aggrieved party would have preferred appeal, which would be available before higher forum. In short, he concluded that the charges were not established. He exonerated the delinquent of all the charges.
4.3. This report of the Inquiry Officer was placed before the Disciplinary Committee, comprising of two Judges of the High Court (Hon'ble R.P. Dholakia and A.M. Kapadia, JJ). The Disciplinary Committee in its decision dated 27.10.2004, held that the acts of the petitioner were not totally bonafide. However, since there was insufficient evidence to hold delinquent guilty of oblique motive or corrupt practice, he was not liable to be punished under Rule 6 of the Gujarat Civil Services (Discipline & Appeal) Rules. The Committee, therefore, was of the opinion that the delinquent should be exonerated. The Committee, however, provided that these materials be considered when the delinquent is due for promotion in future.
4.4. Such decision of the Disciplinary Committee was placed before Chamber. In its meeting held on 26.9.2005, the Chamber resolved that the matter be remanded to the same Committee for reconsideration.
4.5. The Disciplinary Committee in its fresh decision dated 24.4.2006 reconsidered the matter but found no reason to change its earlier opinion.
4.6. Such fresh decision of the Committee was placed before the Chamber once again in the meeting held on 5.3.2007. It was resolved, as under:-
“Resolved that the Departmental Inquiry No.6/2001, against Mr. R.R. Parekh, the then Civil Judge (Junior Division) and Judicial Magistrate, First Class, Kalol, District Gandhinagar, be assigned to the Disciplinary Committee consisting of the Honourable Messrs Justice D.A. Mehta and Jayant Patel, to re-look into the matter and to issue show-cause notice to the delinquent.”
Pursuant to such resolution of the Full Court, the Disciplinary Committee recorded its tentative disagreement with the view expressed by the Inquiry Officer. It was observed that the delinquent retained the cases under Food Adulteration Act under guise of cases being part-heard and subsequently they were disposed of by him. It was observed that in cases under the Factories Act, meagre fine was imposed ignoring the binding decisions of the Gujarat High Court. Such actions do not appear to be legal or bonafide. It was not befitting a Judicial Officer and amounted to dereliction of duty and acting in a manner unbecoming of a Judicial Officer. Such tentative decision was conveyed to the delinquent calling upon him to show cause why he should not be held guilty of the charges leveled against him and should not be dismissed from service if finally found guilty.
4.7. The delinquent replied to such notice under his representation dated 16.1.2009. Besides, denying the charges, he also cast aspersions against the then acting Chief Justice and another sitting judge of the High Court, at whose instance, according to him, notice was issued. He alleged that such judges were biased against him.
4.8. The Disciplinary Committee comprising of two Judges considered the tentative decision, representation of the petitioner, argument made on his behalf during the oral hearing and also the contentions of the representative of the department. The Committee rendered the decision on 1.7.2009, holding that :
“43. Therefore, on a closer scrutiny of the evidence, two or three aspects are required to be considered. On the first aspect with regard to transfer of 26 cases as part-heard, there is evidence of the Department Witness No. 2, Shri Hiralal Chauhan, Exh. 82, which requires a close scrutiny and it is evident that this witness has clearly stated that when he had informed the delinquent that he would make an application under sec. 410 of Cr.P.C. to send such cases back, the delinquent is said to have stated that it has been sent as per the order of the Sessions Court and, therefore, he has not given any application which also takes care of the argument about why such an application was not made by the Public Prosecutor. He has explained that since the delinquent as a judicial officer has made a statement that it has been transferred at the instance of the Sessions Court, he did not give such an application, whereas it is borne out from the record that such cases were transferred pursuant to the application given by the delinquent himself.
44. It is also required to be mentioned at this stage that the department has also not specifically made any endeavour to ascertain, on physical verification, as regards the cases which can be said to be part-heard when the delinquent was transferred. Had it been done, it would have lent support to the case of the Department about the delinquent being selective about the cases. At the same time, as stated by the witness, Hiralal Chauhan, Department Witness No. 2 in his testimony, if there was sufficient workload in the court and he had asked to return the cases for which he was prepared to make an application, there was no need for a judicial officer like the delinquent to say that it has been transferred by the Sessions Court, suggesting that he did not want it to be transfered back. If it was transferred by the order of the Sessions Court, the delinquent could have placed on record the order or at least some endorsement of the concerned authority or the Principal Sessions Judge for assigning such cases to the delinquent as part-heard cases.
45. Further, if this aspect is considered in light of the way in which it has been disposed of with meagre fine despite the judgments of the High Court on such issue, it would again stare in the face as to how a judicial officer could have disposed of the cases contrary to the guidelines laid down by the High Court/judicial pronouncements.
46. The defence which has been raised has been considered while disagreeing with the report of the Inquiry Officer by the earlier Disciplinary Committee also. It was observed, “As regards Charge No. 2, it is not in dispute that he awarded meagre fine in the cases under Factories Act. The only defence is that the said cases were for the first offence. But at the same time it cannot be ignored that all the judgments which were cited in the charge sheet are not only for the second, third or repeated offence, but applies to the first offence also.”
This would imply that either the delinquent has deliberately misread, or even if it is accepted that he had no such oblique motive and he committed an error or mistake, then also it reflects on his functioning as a judicial officer after such long experience and it would reflect on the competence that he could not understand and construe the judgments of the higher court in proper perspective.
47. Thus, on close scrutiny of the material, it cannot be said that the acts of the delinquent were totally bona fide mistakes and it leads to an inference about total lack of either bona fide or lack of sincerity and competence. As discussed above, even if it is accepted, for the sake of argument, that there was no oblique motive or corrupt practice, even then it would reflect on his functioning as a judicial officer after so much of experience and it would be sheer negligence or recklessness in discharge of his duties which would lead to an inference about the proof of charges regarding dereliction of duty and also having acted in a manner unbecoming of a judicial officer (Charge (b) & (c)).
48. The functioning of a judicial officer will have a bearing on the image and reputation of the entire judicial system in the society. Therefore, the Committee is of the considered opinion that though there is no sufficient evidence to hold him guilty of any oblique motive or corrupt practice, the alleged acts and omissions of the delinquent cannot be said to be totally bona fide. In fact, as discussed above, the selection of certain cases under the Food Adulteration Act and awarding of punishment of meagre fine for offences under the Factories Act, which is a social benevolent legislation, would reflect on his functioning and, therefore, the charges for dereliction of duty (Charge-(b)) and having acted in a manner unbecoming of a judicial officer (charge (c)) would stand established, which would make the delinquent liable for penalty as provided in Rule-6 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 for which he has also been served with the show-cause notice.
49. Having considered the material and the submissions made on the basis thereof, the Committee is of the opinion that the charges (a), (b) & (c) are held to be proved and the penalty as proposed in the show-cause notice as per Rule-6 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 deserves to be imposed. The delinquent, accordingly, deserves to be dismissed from service.”
Such decision was placed before the High Court and after passage of 48 hours, it was adopted as the decision of the Court.
5. On the basis of the above decisions in two departmental inquiries, the High Court recommended to the State Government that the petitioner-delinquent be dismissed from service. Legal Department, thereupon, issued impugned modification dated 14.7.2009, by which the petitioner came to be dismissed from judicial service.
6. Learned counsel Mr. J.T. Trivedi appearing for the petitioner strenuously urged before us that in both the cases, there was lack of evidence to hold the charges against the petitioner as proved.
6.1. With respect to Inquiry Case No.15 of 2000, he submitted that there was no evidence of any corrupt practice or oblique motive on the part of the petitioner in awarding different punishments to accused who were found guilty. He submitted that in the judgment itself, the delinquent had given detailed reasons for awarding different sentences to the accused.
6.2. With respect to Inquiry Case No.6 of 2001, learned counsel submitted that there was no evidence that the cases under Food Adulteration Act were not part-heard. With respect to the cases arising out of the offences under the Factories Act, the delinquent imposed punishment which even if was not entirely adequate, in absence of oblique motive or corrupt practice for such judicial orders, no inquiry could be conducted against a Judicial Officer.
7. Learned counsel submitted that there was gross delay in initiation and completion of the inquiries, which resulted into miscarriage of justice. The delinquent was handicapped in his defence and on this ground also, the impugned order should be quashed.
8. Learned counsel submitted that remanding the proceedings before the same or different Disciplinary Committees again and again was wholly impermissible. He submitted that once a Disciplinary Committee had rendered its decision, the same ought to have been accepted by the High Court. In the present case, in both inquiries, Chamber placed the matter back before the Disciplinary Committees more than once. He, therefore, submitted that the decisions of the Court suffered from legal malafides.
9. Learned counsel submitted that even if the charges were proved, in absence of corrupt practice, punishment awarded was grossly disproportionate. He submitted that for passing judicial orders, even if erroneous, the punishment of dismissal could not have been awarded.
10. Learned counsel relied on the following decisions in support of his contentions:
(1) In the case of Shankar Dass Vs. Union of India and another reported in AIR 1985 SC 772, wherein the Apex Court was pleased to hold that penalty of dismissal from service imposed on a judicial officer was whimsical looking to the charges proved. It was observed that the right to impose a penalty carries with it the duty to act justly.
(2) Reliance was placed on the decision in the case of Kamleshbhai B. Mehta Vs. Registrar, High Court of Gujarat and others reported in 2004(3) GLR 2290, wherein the Division Bench of this Court finding that, there was not even iota of evidence to show that delinquent was actuated by any oblique motive, set aside the punishment of compulsory retirement imposed on him, holding that, inference that by implication the delinquent was guilty of corrupt practice was not warranted.
(3) Reliance was placed on the decision of the Division Bench of this Court in the case of A.U. Kureshi Vs. High Court of Gujarat and another, dated 26.8.2011, wherein in the facts of the case, the Division Bench was pleased to set aside the punishment of dismissal imposed on a judicial officer. He was directed to be reinstated in service with 50% of back wages.
(4) Reliance was also placed on another decision of the Division Bench of this Court, in the case of S.J. Pathak Ex. Addl. Sessions Judge Vs. State of Gujarat and Anr. dated 6.11.2009, wherein the Division Bench was pleased to set aside the punishment imposed on delinquent- Judicial officer, which was awarded on the ground that he had granted bail orders in various cases of serious offences for consideration other than judicial one. Learned counsel particularly relied on the following observations made in the said judgment, “34. Chamber Meeting in which all the Judges of the High Court are expected to participate is a serious meeting, where important decisions touching the administration of the entire judiciary is taken. Larger the Committee, lesser the application of mind, which is a hard reality, but members of quorum are free to express their views, but at times too much of views and opinions takes the House from the real issue and leads to unchartered areas just like the present case. If serious thought was bestowed on the issue in the Chamber meeting held on 6.5.2003, then the High Court would not have entrusted the enquiry to the Committee which had already pre-judged the issue, which we have already found was a serious legal infirmity. We are sure that the Chamber would be more watchful and circumspect when such issue comes up for deliberations before it in future and would not be carried away by personal views or predilection.
35. We are therefore, of the considered view that the order passed by the High Court in accepting the report submitted by the Committee headed by Justice B.J. Shethna was illegal and also the consequent decision taken to dismiss the delinquent officer from service and also the Notification issued by the Government dated 13.4.2006 imposing punishment of dismissal on the delinquent officer. We therefore set aside all those orders and direct the respondents to reinstate the delinquent officer forthwith, who will be entitled for all service benefits, but only 50% of the salary and other benefits, since he was not functioning as judicial officer for last 10 years. We also award costs of Rs. 15,000/- towards legal expenses to the petitioner to be paid by the High Court.”
(5) Reliance was also placed on the decision in the case of Yogesh M. Vyas Vs. Registrar, High Court of Gujarat and Another reported in 2009(1) GLR 14, wherein the Division Bench found from the service record of the delinquent- Judicial officer that integrity and honesty were never doubted. In that view of the matter, the Bench held that the punishment of compulsory retirement on the ground that Judicial Officer had granted bail wherein he had no jurisdiction was shockingly disproportionate. In that case, the Bench instead of remanding the matter for fresh consideration of alternate penalty, converted the punishment from that of compulsory retirement to premature retirement with all retiral benefits.
(6) Reliance was also placed on the decision in the case of Zunjarrao Bhikaji Nagarkar Vs. Union of India and others reported in AIR 1999 SC 2881, wherein also such principles were reiterated.
(7) Reliance was also placed on the decision in the case of Ramesh Chander Singh Vs. High Court of Allahabad and Another reported in (2007)4 SCC 247, wherein the Bench referring to the decision in case of Zunjarrao Bhikaji Nagarkar Vs. Union (supra) reiterated that wrong exercise of jurisdiction by a quasi- judicial authority or mistake of law or wrong interpretation of law, cannot be the basis for initiating disciplinary proceeding.
(8) Reliance was also placed on the decision in the case of K.P. Tiwari Vs. State of Madhya Pradesh reported in AIR 1994 SC 1031, wherein the Apex Court was pleased to expunge remarks contained in the judgment of the High Court against the member of lower judiciary, observing that, it must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. On the basis of the above observation and other decisions of the Apex Court, learned counsel urged that the departmental inquiries ought not to have been instituted against the petitioner on the basis of anonymous complaints.
11. On the other hand, learned counsel Shri Shalin Mehta opposed the petition, contending that there was sufficient evidence on record to hold all charges against the delinquent proved. After detailed inquiry, the Disciplinary Committee had come to such decision which was accepted by the Full Court.
11.1. Learned counsel submitted that the petitioner was senior Judicial Officer. It was not possible to accept that he was unaware about the punishment prescribed under Section 135 of the Customs Act. He can also not claim ignorance of various decisions of this Court, time and again, deprecating awarding lenient punishment under the Factories Act.
11.2. Learned counsel submitted that Chamber acts through Disciplinary Committees. Opinion of the Disciplinary Committee was therefore, not binding on the Full Court. It was, therefore, open for the Court to either place the matter before the same Committee for reconsideration or even constitute a fresh Committee for considering the materials on record.
11.3. Learned counsel further submitted that there was no delay in either initiation or conducting of the inquiry. In absence of any prejudice to the delinquent, delay, if any, would not be fatal.
11.4. Learned counsel further submitted that once the charges are proved, choice of punishment lies with the Disciplinary Authority. Unless punishment awarded is so disproportionate to the proved charge as to shock the conscience of the Court, it would not be open to the Court to interfere with the same.
12. Learned counsel pointed out that in following decisions, various Benches of this Court have criticized and deprecated in strong words, imposition of lenient punishment in offences under the Factories Act.
(1) In the case of Swarnasinh Laxmansinh Vs. Bombay Garage (Ahmedabad) Ltd., Ahmedabad and another, reported in AIR 1962 Gujarat 33
(2) In the case of State of Gujarat Vs. K. Madhavan reported in 1979 GLR 633
(3) in the case of State of Gujarat Vs. Krishna Engineering Works, reported in 1991 (2) GLR 744
(4) in the case of State of Gujarat Vs. Lallubhai Thakorebhai Desai reported in 1994(1) GCD 365 (Guj)
(5) in the case of State of Gujarat Vs. Y.V. Khadilkar reported in 1994(1) GCD 667 (Guj)
(6) in the case of State of Gujarat Vs. Ishwarbhai Harkhabhai Patel, reported in 1994(2) GLR 1047
13. Having heard the learned counsel for the parties and having perused the documents on record, we would prefer first to advert to the Departmental Inquiry Case No.6 of 2001.
14. We may recall that in the said case, there were two principal charges against the petitioner. First was that he had out of many part-heard cases, when he was transferred, been selective. The list of part-heard cases provided by him included cases under the Food Adulteration Act. They were shown along with the Indian Penal Code cases and it was alleged that in such cases, no evidence was recorded. Meaning thereby, such cases were not part-heard. Second allegation against the petitioner was that there were as many as 68 cases of Factories Act in which he imposed lenient punishments of only fine, ranging from Rs.100/- to Rs.500/-. This was contrary to various decisions of this Court deprecating such practice.
15. With respect to the first charge, while recording its tentative decision to disagree with the report of the Inquiry Officer, the Disciplinary Committee observed that burden was on delinquent to give his explanation in his written statement. It was observed that there were no cases under the Food Adulteration Act actually part- heard. However, in the final decision, the Committee, after considering the representation of the petitioner and personal hearing, concluded that the department had not made any endevour to ascertain through physical verification as regards the cases which can be stated to be part-heard when the delinquent was transferred. It was observed that had this been done, it would have given support to the department about the delinquent being selective about the cases. Thus, the Disciplinary Committee clearly concluded that there was no evidence regarding which cases were part-heard and which were not. By this very conclusion, in our opinion that the charge of delinquent officer being selective about retaining part-heard cases must fail.
16. With respect to the second charge, the Disciplinary Committee held that the way in which the delinquent disposed of cases with meagre fine, would show how he could have disposed of such cases contrary to the guidelines laid down by the High Court. It was concluded that this would imply that he was either acting deliberately or even if it is accepted that he had no such oblique motive and he committed an error, then also, it would reflect on his functioning as a Judicial Officer after such long experience and would reflect on the competence that he could not understand or construe the judgments of the High Court in proper perspective. The Committee concluded that there was insufficient evidence to hold the petitioner guilty of oblique motive or corrupt practice. Having said so, the Committee strangely also observed that the act and omission of the petitioner cannot be said to be totally bonafide. Be that as it may, the Committee having held that for want of sufficient evidence, the delinquent could not be held guilty of any oblique motive or corrupt practice, held that award of meagre punishment under the Factories Act would reflect on the functioning of a Judicial Officer and therefore, charges of dereliction of duties and having acted in a manner unbecoming of a Judicial Officer would stand established. In the conclusion, the Committee held that all charges under Clause (a), (b) and (c), which included charge of corrupt practice also, were proved against the delinquent. Such final conclusion we are prepared to accept as a mere error inasmuch as in the decision itself, the Committee had in unequivocal terms held that there was insufficient evidence to hold that the delinquent was guilty of any oblique motive or corrupt practice. In essence, the Committee opined that even if there was lack of evidence to establish oblique motive or corrupt practice, the manner in which lenient punishment was imposed in large number of cases, under the Factories Act, it would establish that the delinquent was guilty of dereliction of duty and had acted in the manner unbecoming of a Judicial Officer.
17. To our mind, such findings are not based on the allegations levelled against the delinquent. It was not even the case of the department in the charge-sheet, which was served on the delinquent, that he had acted either with oblique motive or in the alternative, in gross negligence. Frontal charge against the delinquent was that in awarding lenient punishment in large number of offences under the Factories , Act he had disregarded the guidelines issued by the High Court in number of decisions with oblique motive. It was not the case of the department that the delinquent being not aware about such guidelines had acted grossly negligently or had thereby committed dereliction of his judicial duties.
18. The Disciplinary Committee having come to clear conclusion that the charge of oblique motive or corrupt practice was not established, could not thereafter convert the charge into one of gross negligence and proceed to hold that on that basis, the delinquent had been guilty of dereliction of duties or acted in a manner unbecoming of a Judicial Officer.
19. Under the circumstances, insofar as the Departmental Inquiry No.6 of 2001 is concerned, we are of the opinion that the final conclusions of the Disciplinary Committee which were accepted by the High Court are not sustainable on the basis of the material on record.
20. Coming to Departmental Inquiry No.15 of 2000, we may recall that the charge against the delinquent was that in two cases, involving offences under Section 135 of the Customs Act, 1962, he awarded punishments less than prescribed under the law without recording adequate and special reasons. The delinquent had decided Criminal Case No.1293 of 1995 by judgment dated 22.1.1997, in which he had awarded punishment less than 3 years, which was minimum prescribed under Section 135 of the Customs Act and the punishment awarded was such that the accused would not have to serve any further sentence after giving benefit of set-off for the period spent as under-trial prisoners. Shortly thereafter, the delinquent decided yet another case, being Criminal Case No.675 of 1994 by his judgment dated 11.3.1997. The case involved offence of smuggling of silver worth Rs.5 crore 86 lacs. There were in all 14 accused, two of them were absconding. Their cases were separated. The delinquent decided the case of remaining accused by his judgment. While convicting all of them, the delinquent awarded sentences which were below the minimum in several cases. Here also, sentence awarded matched the period served by the accused as under-trial prisoners.
21. With respect to this charge, the Disciplinary Committee while recording its tentative decision disagreeing with the conclusions of the Inquiry Officer, found that the sentences were awarded without considering the involvement of the accused in other cases, or previous convictions. It was observed that the Special Prosecutor had pointed out that one of the accused was previously convicted twice. The sentences are awarded on the same day of conviction without gathering full details about the involvement of the accused in other cases or their previous convictions. More importantly, it was observed that the sentences awarded by the delinquent were such that the accused would not have to serve any further term. It was observed that the delinquent could not be unaware of the express provisions of the statute.
22. The Disciplinary Committee after considering the representation of the delinquent and also considering the submissions made on his behalf, during oral hearing, in its final decision dated 1.7.2009, held that all charges levelled in Clause (a), (b) and (c) of the charge-sheet were proved. We have already reproduced the relevant portion of the decision of the Disciplinary Committee, which eventually became decision of the High Court. The Disciplinary Committee recorded that the delinquent was discharging his duties as Judicial Officer since 1981, therefore, he would be aware about the basic principles of trial and sentencing. Even if he was not aware about such principles, he was expected to familiarise himself when he was trying offences under the special statute. It cannot be expected that he conducted entire trial without considering the provisions of the Customs Act. The Committee found it difficult to accept that he was passing an order of conviction and sentence without looking to the provisions of law or special statute.
23. Having come to such conclusions, the Committee, thereafter, proceeded to consider alternative situation and observed that even if such stand of the delinquent is accepted, it would reflect gross negligence and dereliction of duty. It was once again reiterated that the attitude of the delinquent officer would raise reasonable doubt about his conduct and if there was no sufficient or reasonable explanation provided by him, inference of oblique motive could be drawn. The Committee, therefore, concluded that in absence of any convincing explanation, looking to the background and material on record, inference about oblique motive on his part, has to be drawn. Alternatively, the Committee also held that in absence of any oblique motive from established facts and on the say of the delinquent himself, it would reflect his sheer negligence and attitude towards his work and the manner and method of functioning as a Judicial Officer. The Committee formed an opinion that charge under Clause (a) of acting with oblique motive was established; that in the alternative, charge of delinquent officer having derelicted his duties would be established, resultantly, charge of having acted in the manner unbecoming of a Judicial Officer also stood established.
24. Through series of decisions of various Courts, it is well established that the standard of proof required to establish a charge in a departmental inquiry, cannot be equated with that of a criminal trial. It is also well established proposition that Courts while examining the validity of the conclusion of the Disciplinary Authority, arrived at during validly constituted domestic inquiry, would not interfere with the findings of facts unless such findings are found to be perverse. If there is some legal evidence to hold the charge proved, sufficiency of such evidence or that another view was possible, would not be the grounds on which Court would interfere with such findings.
In the case of Nirmala J. Jhala Vs. State of Gujarat, reported in 2004(3) GLR 2142, Division Bench of this Court, culled out the following principles from previous decisions:
“49. From the above decisions, following legal principles can be culled out:
(i) A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt.
(ii) The High Court cannot sit in appeal over the decision of the domestic tribunal. Therefore, where there are some relevant materials, which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 of the Constitution of India to review the materials and to arrive at an independent finding on the materials.
(iii) If the inquiry is properly held, the question of adequacy or reliability of evidence cannot be gone into by the High Court. High Court cannot interfere with the penalty if the conclusion of the competent authority is based on evidence, even if some of it is found to be irrelevant or extraneous to the matter.
(iv) In case of disciplinary inquiry, technical rules of evidence have no application.
(v) The only consideration that court has in its judicial review is to consider whether the conclusion is based on evidence and supports the findings or whether the conclusion is based on no evidence. To put it differently, the High Court can interfere if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonably prudent person would have ever reached.”
25. Bearing in mind the above principles, if we examine the material on record, it emerges that the delinquent was discharging his duties as Judicial Officer since 1982. In the year 1997, when he disposed of two cases of the offences under the Customs Act, he had already worked for nearly 14 years as a Judge. It may be that he was newly promoted in the cadre of Chief Judicial Magistrate. Nevertheless, he had a long tenure in the judicial service. He was thus, a seasoned Judicial Officer. Even if he was dealing with offence under the Customs Act for the first time, he was expected to refer to penal provisions, under which after recording conviction of the accused, he was handing down punishment. His stand appears to be that he awarded the sentence without being aware of the statutory provisions contained under Section 135 of the Customs Act, under which, by his judgment, he was convicting accused and awarding sentences of various terms. Criminal Case No.675 of 1994, in which he convicted as many as 12 accused, was not the first case which he was handling for the offence under Section 135 of the Customs Act. Shortly, before judgment in the said case, he had decided yet another case of similar nature, being Criminal Case No.1293 of 1995. This was, therefore, at least second trial for offence under Section 135 of the Customs Act.
26. He awarded sentences ranging from 3 months to 5 years of imprisonment to different accused. Accused Nos.1 to 6, as it emerges from the record, were arrested from the spot. Accused Nos. 3 and 6 were sentenced to undergo rigorous imprisonment for 4 years and were also directed to pay fine. In case of accused Nos.1,2,4 and 5, however, sentences imposed were uniformly of only 2 years and fine imposed was also lesser. No reasons appear from the record for such different treatment to different accused though broadly similarly situated. Equally, strikingly, accused Nos.11 and 14 were awarded sentence of 5 months and 3 months respectively. More significantly, the punishments were awarded to all accused in such a manner that none of the accused would have to serve any further sentence considering set off for the period spent in jail as under- trial prisoners.
27. Relevant provisions of Section 135 of the Customs Act, as stood at the relevant time, read as under:-
Section 135-
“(1) Without prejudice to any action that may be taken under this Act, if any person-
(a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or
(b) acquires possession of or is in any way concerned in carrying, removing dipositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reasons to believe are liable to confiscation under Section 111, he shall be punishable, -
(i) in the case of an offence relating to any of the goods to which Section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for term which may extend to seven years and with fine :
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than three years ;
(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.
(2) *********** (3)For the purpose of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely, -
(i) the fact that the accused has been convicted for the first time for an offence under this Act ;
(ii) the fact that in any proceedings under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject-matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence ;
(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission to the offence ;
(iv) the age of the accused.”
28. Provisions of Section 135 of the Customs Act were sufficiently clear. It provided for punishment for certain offences under the Customs Act. In case where the offence was one, involving goods, to which Section 123 applied and market price of such goods exceeded Rs. 1 lac, punishment prescribed was one which may extend to 7 years and fine. Proviso to sub-section (1) of Section 135 provided that in absence of special and adequate reasons to the contrary to be recorded in the judgment, such imprisonment shall not be less than 3 years. Sub-section (3) of Section 135 of the Customs Act provided that certain reasons mentioned therein shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year. Such factors included the fact that the accused has been convicted for the first time for any offence under the Customs Act, that besides, the prosecution in question, the accused has been ordered to pay penalty for goods which are subjected to confiscation, fact that accused was not principal offender and was acting merely as carrier of the goods or otherwise, was a secondary party to the commission of offence and also the age of the accused.
29. From Section 135 of the Customs Act, it would thus emerge that in case of offence relating to goods, to which Section 123 applied and where value of the goods exceeded Rs. 1 lacs, sentence prescribed was upto maximum of 7 years of imprisonment and fine. In absence of adequate and special reasons recorded in the judgment, such sentence cannot be less than three years. However, the reasons, that the accused was being convicted for the first time, etc. mentioned in sub-section (3) of Section 135, would not be sufficient to impose sentence for a term less than one year.
30. Legislative mandate was thus clear that in offence punishable under section 135 of the Customs Act, where value of the goods exceeded one lakh of rupees, in absence of special and adequate reasons, sentence, which had to be awarded, was upto a maximum of 7 years, but not less than 3 years. Particularly, factors such as accused was first time offender, or was of a young age or that he was not principal offender and was acting merely as carrier would not be sufficient to award sentence below one year.
31. The delinquent in his judgment dated 22.1.1997 in Criminal Case No.1293 of 1995 awarded sentence less than 3 years. He did during the inquiry highlight that punishment awarded was short by only one month and the accused was an old lady. He however did not point out that there was another accused besides this lady and sentence imposed was such that they did not have to serve any further term of imprisonment. In other words, sentence awarded was one already undergone, of-course without saying so.
32. Shortly thereafter, in his judgment dated 11.3.1997, in Criminal Case No.675 of 1994, the delinquent imposed sentences of 2 years of imprisonment on several accused and in case of accused Nos.11 and 14, he imposed sentences of 5 months and 3 months respectively. He recorded no special or adequate reasons for awarding such sentences. The sentences were thus below 3 years, which was ordinary minimum to be imposed under sub-section (3) of Section 135 of the Customs Act. In two cases, it was even below one year.
33. We have also perused the reasons recorded by the learned Judge in his judgment dated 11.3.1997 in Criminal Case No.675 of 1994, for awarding different punishments. For example, for awarding imprisonment of 3 months to accused No.14, the learned Judge recorded that he was a young man, aged 21 years, he was falsely involved by the Customs authorities. If the learned Judge had recorded conviction against this accused, we fail to see how he was influenced by contention of the accused that he was falsely involved in the case. On such grounds, he awarded sentence as meagre as 3 months of imprisonment which period the said accused had already served as under-trial prisoner.
34. The Disciplinary Committee found from the circumstances appearing from the record, that it was a case of oblique motive. The Committee was of the opinion that, from the material on record, such inference had to be drawn particularly when there was neither sufficient nor reasonable explanation provided by the delinquent for his actions.
35. We do not find that the conclusions of the Committee which were adopted by the Full Court, can be said to be based on no evidence. There were strong circumstances indicating that the delinquent imposed punishment in serious offences of Customs Act contrary to the statutory mandate. His explanation that he was recently promoted in the cadre of Chief Judicial Magistrate and therefore, was not aware about such provisions was not found acceptable. Apart from glaring discrepancies in awarding the punishments to various accused, most significantly, the delinquent imposed sentence in case of each accused in such a manner that after the order was passed, no accused would remain in jail any longer. In two cases, the accused were handed down sentences of imprisonment of 5 months and 3 months, in such a way that after affording the set-off for the period during which they remained as under-trial prisoners, they would be released from jail.
36. Observations of the Committee, that assuming that there is no oblique motive, even then established facts and say of the delinquent himself reflect sheer negligence and attitude towards his work, must be appreciated in connection with the previous findings of the Committee, namely there was clear case of oblique motive. It was only by way of alternative situation that the Committee opined that if the contention of the delinquent that there was no oblique motive on his part, was for sake of argument believed, the same would establish gross negligence. We may record that Criminal Case No.675 of 1994 was not the first case of offence under the Customs Act that the delinquent was conducting. Shortly before the said case, he had disposed of Criminal Case No. 1293 of 1995, by judgment dated 22.1.1997. It would be shocking to accept that senior Judicial Officer, who was conducting trial of criminal offence and was handing down punishment under the penal statute provided under the special act, in two successive trials, would do so without reading the provision and without even apprising himself of the punishment prescribed under the law or the circumstances under which such punishment should be or could be awarded.
37. This is, therefore, not a case where contrary to what is argued before us that the delinquent is held to be negligent in discharge of his duty and for such act, visited with punishment of dismissal from service. This is a case where charge of acting with oblique motive and in corrupt practice was proved. It was only as an alternative situation that the Committee opined that if the decision of the delinquent was not actuated by oblique motive, he was deemed to have acted with sheer negligence. It was in this respect that the Committee concluded that both the elements of charge, i.e. being guilty of corrupt practice and of dereliction in discharge of his duty, stood proved.
38. We, now, deal with the contentions of the learned counsel for the petitioner. With respect to the contention that the charges were wrongly held to be proved, because there was no evidence on record of oblique-motive; that the delinquent was recently promoted and posted at Bhuj and that therefore, error committed was bonafide, we have already referred to considerable material on record which was appreciated by the Disciplinary Committee in final report which was accepted by the Full Court. We do not intend to repeat our conclusions. Suffice it to state that there was sufficient evidence on record to permit the Disciplinary Authority to draw such conclusions. The delinquent Officer may have been recently promoted to the cadre of Chief Judicial Magistrate, however, as a Judge, he was not a novice. He had already put in more than 14 years of service as a Judicial Officer. He cannot contend that he tried two cases under the Customs Act and not only convicted the accused but handed down the punishments without even reading the penal provisions.
39. Contention that the reference to the Disciplinary Committees on two occasions was not permissible or was vitiated on the ground of legal malafide also cannot be accepted. We may record that though during the course of departmental inquiry, the delinquent had made certain direct allegations against some of the learned Judges of the High Court, contending that they were prejudiced against him, before us, his learned counsel only argued the elements of legal malafide and not factual malafide.
40. We may record that the Disciplinary Committee initially consisted of Hon'ble Justice Shri R.P. Dholakia and Shri A.M. Kapadia. They rendered their first decision on 27.10.2004. In the said report, though the Committee did not fully accept the report of the Inquiry Officer and concluded that the alleged acts of the delinquent cannot be stated to be totally bonafide and circumstances create some doubt, opined that there was no case for awarding any punishment to the delinquent but such factors should be considered at the time he is due for next promotion. This decision when was placed before Chamber, Chamber did not accept it and resolved to remand the matter before the same Committee for reconsideration. Upon reconsideration, the Committee came to the same conclusions. Its report dated 4.4.2006 when placed before Chamber, on 5.3.2007, Chamber resolved to assign the task of re-looking into the matter and issuing show cause notice to the delinquent, to a new Committee. Eventually, the Disciplinary Committee after conveying tentative decision to the delinquent and granting him personal hearing, rendered final report dated 1.7.2009. In the meantime, composition of the said Committee underwent some changes.
41. At the relevant time, the procedure for conducting inquiry against judicial officer was regulated under Resolution No.3 of the Chamber meeting held on 26.12.1998. Besides providing for manner of dealing with complaints against Judicial Officers, resolution provided that after receipt of the report of the Inquiry Officer, report and record of the proceedings shall be placed before a Committee of two judges, to be known as Disciplinary Committee. The Committee shall consider the report of the Inquiry Officer and record of the proceedings as well as the representation, if any, of the delinquent. The Committee shall then prepare a report incorporating its provisional conclusions in the matter and propose punishment. Report of the Committee would be laid on the table before the High Court and it would become a decision of the High Court after it has been kept on the table for 48 hours. If, according to such decision, punishment is proposed to be imposed on the delinquent, notice shall be issued to the delinquent, requiring him to show cause in writing. If delinquent wishes to be heard in person, such hearing may also be granted by the Committee. The Resolution further provided that the Committee shall then prepare a report containing its reasoned conclusions regarding the punishment, if any. Such report together with the entire record of the inquiry shall be laid on the table before the High Court and it will become decision of the High Court after it has been kept on the table for 48 hours.
42. By virtue of Article 235 of the Constitution of India, High Court enjoys complete control over the District Courts and sub- ordinate Courts' judges, including in the matter of posting, promotion etc. This aspect was elaborated by the Apex Court in the matter of Rajendra Singh Verma (Dead) Through LRs. and others Vs. Lieutenant Governor (NCT of Delhi) and others reported in (2011)10 SCC 1. One of the aspects of such control over subordinate judiciary of the High Court is its power to take disciplinary action against the erring judicial officers. Such powers are enjoyed and exercised by the High Court for smooth functioning of judicial system. For regulating the departmental inquiries and to afford the delinquent judicial officer full opportunity of defending himself, High Court had adopted a procedure, through Resolution No.3, in the Chamber meeting held on 26.12.1998. From detailed provisions made for conducting of the disciplinary inquiries against judicial officers of the subordinate courts, it emerges that after Inquiry Officer completes his oral inquiry and submits his report, such report along with other material on record would be examined by a Committee of two Judges, called 'Disciplinary Committee'. The Disciplinary Committee would consider the report of the Inquiry Officer and the record of the proceedings and then prepare a report incorporating its provisional conclusions. Such report of the Committee would be laid before the table of the High Court and would become decision of the Court only after passage of 48 hours. Similarly, second stage for Disciplinary Committee to prepare and submit its report would be after issuing show cause notice on the delinquent and granting him personal hearing, if so desired, and then to prepare report, containing its reasoned conclusions regarding the punishment. Once again, such report would be tabled before the High Court and would become decision of the High Court only after passage of 48 hours.
43. It would thus emerge that the Disciplinary Committee in exercise of such functions would be acting for and on behalf of the Full Court. The recommendations of the Committee, either at the stage of accepting or not accepting the report of the Inquiry Officer or at the stage of proposing to impose or not to impose any punishment on the delinquent, would not be binding on the High Court. Such recommendations would become decision of the Court only after the same are tabled before the High Court and within 48 hours from tabling, no objection is received with respect to the same.
44. It would thus emerge that if the recommendation of the Disciplinary Committee is not acceptable to the Full Court, it would be very much open for the Court to call for reconsideration of the entire issue or even to constitute a new Committee to do so. It is ultimate decision of the Full Court and not the tentative opinion of the Committee, which would prevail. Surely, view of the Committee cannot prevail even if majority of Judges in the Full Court present in the meeting reject the same. The Disciplinary Committee only acts for and on behalf of the Full Court and has a recommendatory role. Any contrary view would amount to taking away the power of the Full Court to take final decision on the question of imposing penalty on a judicial officer of the subordinate Court. In essence, it is the High Court which enjoys such power and exercises such power by conducting inquiry with the aid of Inquiry Officer, who would upon completion of the oral inquiry, submit his report and thereafter, with the aid of the Disciplinary Committee, which would consider such report and recommend whether the report of the Inquiry Officer to be accepted or not. To suggest that once the Committee makes its recommendation, it would not be open for the High Court either to request for reconsideration thereof or to constitute a new Committee to consider the material on record, would lead to an incongruent situation. As we have held, the recommendation of the Disciplinary Committee would not be binding on the High Court, therefore, if in Full Court meeting, majority of the judges present were to disagree on the recommendation of the Disciplinary Committee, would it then mean that no further option or choice is available to the High Court but to accept such recommendation and act solely on the basis thereof ? Answer has to be clearly in negative. It would, therefore, be in a given situation that a need may arise that the Disciplinary Committee may have to be requested for considering its recommendations or to constitute a new Committee for considering the entire issue afresh. It was precisely in this background, the Full Court in its decision dated 5.3.2007, resolved to constitute another Committee to, 're-look into the matter and to issue show cause notice to the delinquent'.
45. Contention that there was gross delay in initiation and completion of the departmental inquiry and that, therefore, the entire inquiry should be held to be vitiated, also cannot be accepted. Effect of delay in initiation or completion of the departmental inquiries, it is well settled, cannot be seen in isolation. Unless prejudice is demonstrated by the delinquent on account of such delay ordinarily, Courts have shunned from quashing the departmental proceedings merely on the ground of delay. Reference in this respect can be made to a decision of the Apex Court in the state of State of A.P. Vs.
N. Radhakishan, reported in (1998)4 SCC 154. It was observed in para 19 as under:-
“19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.”
Division Bench of this Court also in the case of Kamlesh Mehta (supra) examined the aspect of delay, particularly bearing in mind the departmental proceedings against a Judicial Officer. It was observed in the said judgment that, “delay without anything more will not however warrant a stay of proceedings as an abuse of process at common law. Quashing proceedings for mere passage of time would tantamount to a judicially created limitation period”. In the context of the Administrative Law, there must be proof of significant prejudice which results from an unacceptable delay. A question may indeed arise whether delay could amount to denial of natural justice even when respondent's ability to have a fair hearing has not been compromised”.
It was further observed as under:-
“5.9 The High Court, by the very nature of its powers, has besides its main judicial work, a control jurisdiction over the entire subordinate judiciary. It is not just a full time job of conducting departmental proceedings. Time consumed in initiating and deciding the departmental proceedings by the High Court cannot be viewed on the scale of number of days or months, because, that is not the only work to be done. It is only one type of ancillary work of judicial administration to be done by Judges who devote most of their time to doing judicial work in order to cope up with the mounting arrears. Therefore, delay in initiating and deciding the departmental proceedings has to be viewed in this background so far as the judicial institutions are concerned.”
46. In the present case, except for pleading that the delay has vitiated the entire proceedings, delinquent has not demonstrated in what manner, delay prejudiced him in his defence in the departmental inquiry. The entire case depended on documentary material. Majority of facts were more or less undisputed or un- disputable. Merely because there was some lapse of time, between his alleged misconduct and final decision, would not be sufficient for us to quash the penalty holding that the entire proceedings were vitiated.
47. It was argued that the departmental proceeding was initiated on an anonymous complaint. Reliance was made to decisions of the Apex Court, which advocated that judicial officer should be protected from needless and frivolous complaints. We are conscious that there is a tendency on the part of some disgruntled litigants to make frequent and often times frivolous anonymous complaints. The desire of the High Court of-course would be to guard its judicial officers from such frivolous vilification. However, it is not the same thing as to suggest that if, through anonymous source, a misconduct committed by judicial officer comes to light, proceedings should either be dropped or if instituted, cannot ever result in punishment in terms of Disciplinary Rules, even if the charges on the basis of legal evidence on record are sustainable.
48. Coming to the conclusion of proportionality of punishment, we may record that since the days of decision of the Apex Court in the case of B.C. Chaturvedi Vs. Union of India and others reported in AIR 1996 SCC 484, Courts have while applying the test of punishment, being so disproportionate to the proved charge, as to shock the conscience of the Court, to interfere with the choice of punishment of employer in departmental proceedings. The Apex Court in the said case had held as under:-
“18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/ Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/ Tribunal, it would appropriately mould the relief, either directing the disciplinary / appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”
49. Some recent decisions, however, suggest ever so slight and subtle shift from the theory of shockingly disproportionate punishment to that of proportionality in appropriate cases. In the case of Chairman & Managing Director, V.S.P. And others Vs. Goparaju Sri Prabhakara Hari Babu reported in (2008)5 SCC 569, the Apex Court observed that, Court ordinarily ought not to disturb penalty where procedural requirements have been complied by departmental authority except that, principle of proportionality can be invoked in appropriate cases.
50. However, in the present case, it cannot be said that punishment is so disproportionate to the proved misconduct as to shock the conscience. Even applying the theory of proportionality, the punishment cannot be said to be excessive. The delinquent was a judicial officer and charge of acting with oblique motive while conducting criminal cases stood established against him. The punishment of dismissal from service, therefore, cannot be stated to be excessive.
51. In case of Rajendrasinh Verma (supra), the Apex Court observed that, judicial service is not a service in the sense of employment as is commonly understood. Judges discharge their functions while exercising sovereign judicial power of State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. There is no manner of doubt that nature of judicial service is such that it cannot afford to suffer continuance in service of person of doubtful integrity or who have lost their utility. Of-course, these observations were made in the background of the powers of the High Court to order premature retirement of a Judicial Officer who upon completion of certain number of years of services or crossing certain age, could be ordered to be retired if found dead wood. However, observations would apply in disciplinary action also against judicial officer facing charge of doubtful integrity.
52. Under the circumstances, we do not find any reason to interfere with the ultimate punishment imposed on the petitioner. The petition, therefore, fails and is dismissed. Rule is discharged.
Sd/-
(AKIL KURESHI, J.) omkar Sd/-
(C.L. SONI, J.)