The petitioner, a judicial officer is before this Court praying that, “(B) Your Lordships may be pleased to quash and set aside impugned order dated 6.5.2008 passed in departmental inquiry no. 6/1998 by the High Court of Gujarat on administrative side and as a consequence thereof be pleased to quash and set aside the notification dated 6.1.2010 passed by the State of Gujarat. (C) Your Lordships may be pleased to declare the impugned order dated 6.5.2008 passed by the High Court of Gujarat on administrative side in departmental inquiry no. 6/1998 as being illegal and arbitrary as a consequence thereof be pleased to quash and set aside the same and further direct the respondents to pay to the petitioner all retrial benefits which the petitioner is entitled for forthwith.”
2. The facts giving rise to the present petition are set out by the petitioner in para 2 of the petition which read as under:
“2. The petitioner by way of this petition challenges the order of High Court of Gujarat on its administrative side in departmental inquiry no. 6/1998 dated 25.4.2008, signed on 6.5.2008 whereby the petitioner has been held guilty of the charges leveled against him as a result of which punishment of withholding of pension and retrial benefits has been imposed. The petitioner further challenges the consequential impugned notification dated 6.1.2010 issued by the legal department, Government of Gujarat, whereby on recommendation of the High Court of Gujarat, in exercise of powers conferred by rule 24(1) of the Gujarat Civil Services (Pension Rules) 2002, State Government issued punishment of withholding of pension permanently of the present petitioner with immediate effect. The petitioner respectfully submits that impugned order passed by the High Court on its administrative side is illegal and arbitrary inasmuch as in spite of the inquiry officer having found the petitioner not guilty of any of the charges leveled against the petition and in spite of the fact that the presenting officer did not produce any evidence whatsoever in support of the charge of having indulged in corrupt practice, yet, the disciplinary authority i.e. High Court had disagreed with the findings of the inquiry officer and after providing an opportunity to the petitioner has on basis of assumption and presumption and after traveling beyond the scope of charges leveled come to a conclusion that the petitioner was guilty of the charges leveled against him including the charge of indulging in corrupt practice.”
The other relevant facts which will have bearing on the matter are set out in para 3.1 onwards, which are reproduced hereunder:
“3.1 The petitioner states that he had joined the subordinate judiciary as a Civil Judge (JD) and JMFC and later on in the year 1988, the petitioner was promoted as Civil Judge(SD) and JMFC.
3.2 The petitioner states that while he was posted as 2nd Civil Judge (SD) and JMFC, Nadiad, he had been served with a charge-sheet no. LOB/B.C.106/96-DI no.6/1998 dated 26.2.1999. Charge against the petitioner reads as thus :
“That while you were working as Civil Judge(SD) JMFC, Anjar District Kutch from 25.11.1985 to 9.6.1996,
I) In Criminal Case No. 1878/1994 to 1889/1994 instituted for offences under section 63 read with Section 92 “of the Factories Act, 1948” while the cases were pending for recording plea of the accused Mr. Ashok Punj, occupier of PSL holding private limited, Gandhidham since July 1995 in the Court of JMFC Gandhidham, District Kutch, you had on 4.3.1996 even as a senior Judge held the charge of the said Court being very well aware that provisions of Section 206 and 253 of the Code of Criminal Procedure, 1973 were not applicable at all in the said matters and though there was no urgency to record the plea in absence of the accused, you, with an oblique motive recorded plea of advocate Mr. D.S. Shah on behalf of the accused Ashok Punj and disposed of all the said pending cases by imposing a meager fine of Rs. 800/- in each case, though the punishment provided for the said offence is imprisonment of two years or fine of Rs. 1,00,000/- or both.
The manner and method in which plea was recorded and the case is disposed of by you as in- charge JMFC, Gandhidham shows that you passed orders in the said matters for a consideration other than judicial one and thereby,
a) you are guilty of indulging in corrupt practice;
b) you are guilty of the aforesaid acts of misconduct;
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 Service (Conduct Rules), 1971.”
In reply to the charge sheet the petitioner replied vide communication dated 28th October 1999, wherein he set out his defence, the relevant part of which reads as under:
“3.4 .. .. at the relevant point of time he was posted as Civil Judge(SD) and JMFC, Anjar and Gandhidham, that he was required to work at Gandhidham for 15 days and for 15 days at Anjar in the same capacity. That District Judge Kutch had directed the petitioner to hold additional charge of the post of the Civil Judge(JD) and JMFC, Gandhidham in place of Civil Judge K.G. Patel and also hold additional charge on the post of Joint Civil Judge(JD) and JMFC in place of Civil Judge R.M. Mirza both of whom were on long leave and suspension respectively. The petitioner had further pointed out that the complaints bearing no. 1878/1994 to 1889/1994 were filed by Factory Inspector N.S. Patel for breach of provisions of Section 63 of the Factories Act on 18.5.1992 and accordingly, summons were issued in the said complaint to accused Ashok Punj occupier of PSL holding ltd. who had appeared through his advocate D.S. Shah on 23.7.1994. That presence of the accused was dispensed with from the very beginning in the said complaints by predecessor of the petitioner namely, Shri P.P. Shah and Shri K.G. Patel. That above matters were fixed for recording of plea on 13.3.1996 by predecessor of the petitioner Shri K.G. Patel and on that date the petitioner was holding charge of JMFC, Gandhidham at Anjar. That on the said date advocate for the accused in the above case had pleaded guilty by way of pursis, complainant factory inspector had made endorsement on the said applications and as plea of guilty was submitted, the matter was heard and was fixed for next date i.e. 14.3.1996. That when the pursis had been submitted by learned advocate D.S. Shah on behalf of accused, complaint factory inspector Shri N.S. Patel as well as Shri V. Gohil representative of PSL holding private ltd. were also present and had stated about the compliance made by occupier of the factory. That though the practice prevalent in the Court of JMFC, Gandhidham was of imposing fine of Rs. 500/-, yet, the petitioner imposed fine of Rs. 800/- in each case which was within the frame work of law, considering various factors like nature of offence, whether offence was for the first time and whether compliance has been done etc. The petitioner had further inter-alia stated that provisions of Section 206 and 253 of the Code of Criminal Procedure were not attracted in the matter as same were applicable only to petty offences and the petitioner had stated that since cases were summons case and accordingly summary proceedings were followed and plea was recorded under Section 251 of the Code and punishment was awarded under Section 252 of the Code and therefore, no illegality had taken place. The petitioner had further emphasized that Section 92 of the Factories Act does not stipulate any minimum fine or sentence and therefore, judicial discretion was used for awarding sentence looking to the gravity of the offence which was of purely technical nature since complainant had also consented for imposition of fine only.”
It is the case of the petitioner that the learned Inquiry Officer had after detailed analysis held that the charges levelled against the petitioner were not proved. Copy of the Inquiry Report dated October 2001 was served to the petitioner along with 2nd Show Cause Notice which contained tentative decision of the High Court on its Administrative Side, whereby the disciplinary authority has sought to disagree with the findings of the Inquiry Officer. The disciplinary authority, inter alia, on the ground that the judgements relied upon by the learned Inquiry Officer stating that presence of accused was not required for recording plea in the matter was misplaced because those judgements pertained to recording of statement of accused under section 313 of the Code of Criminal Procedure, that the disciplinary authority specifically relied upon a judgment which was allegedly circulated to all the learned Judges of the State by the High Court and which issue was pointed out by the then Law Officer, Shri Shah that the said judgement had also been sent to all the Judges of Kutch-Bhuj, where the present delinquent was posted as Civil Judge (SD) and JMFC, Anjar and since judgment clearly held that only in petty cases as defined in section 206 of the Code of Criminal Procedure, advocate for the accused can plead guilty on behalf of the accused and in other cases presence of accused is necessary, in spite of that judgment the present petitioner ignoring the same deliberately and with ulterior motive and with consideration other than judicial one and which aspect had been unfortunately ignored by the learned inquiry officer, the disciplinary authority further placed heavy reliance upon the anonymous letter purportedly sent by advocate, Gandhidham Bar and further holding that since meager fine had been imposed, therefore, for all these reasons, the misconduct alleged to have been committed by the petitioner is held to be proved by the High Court on Administrative Side acting as disciplinary authority.
Said disagreement along with inquiry report was sent to the petitioner with 2nd show cause notice dated 18.7.2002 calling upon the petitioner to submit his reply.
3. The petitioner submitted his reply to 2nd Show Cause Notice, wherein the disciplinary authority sought to disagree with the findings of the inquiry officer vide his communication dated 12th September 2002. The petitioner submitted that a wrong interpretation of law could not be a ground for holding an inquiry on the ground of misconduct, more particularly, since the department itself did not prove any oblique motive, that the anonymous letter which formed the basis of the departmental proceedings was ill-motivated and as such the same did not allege any specific oblique motive on the part of the petitioner, that with regard to the criminal cases the petitioner had submitted that his posting was not at Anjar only but at Anjar and Gandhidham and that since both other judicial officers, one being on long sick leave and another being under suspension, the petitioner had been assigned additional charge of the said court. The petitioner also submitted that summons were issued by his predecessors and accused was exempted from personal appearance by his predecessor. The petitioner also submitted that on the said date 7 of the 12 complaints were on board and since 5 complaints of the same group were not listed, the petitioner with the consent of the parties, required for being taken up for hearing as the learned advocate for the accused wanted to plead guilty by filing purshis, at that time, the complainant was present in person, who did not raise any objection, the cases were disposed of. The petitioner also pointed out that the offence alleged in these complaints was under section 63 of the Factories Act, perusal of which will reveal that the offence alleged was technical in nature and besides that it was for the first time such offence was committed for which accused had given sufficient explanation to the effect that work of Kandla- Bhatinda pipeline was going on and the pipes had to be coated, for which workers were asked to do overtime for which they were paid overtime wages also, hence same was not considered to be a serious offence. Unlike the practice in Gandhidham court, where normally fine ranging from Rs.100/- to Rs.150/- was imposed for such offence, the petitioner had imposed fine of Rs.800/- per case though the complainant had submitted that he has no objection if fine of Rs.400/- to Rs.500/- is imposed as compliance is already made. The petitioner also pointed out that a glaring fact of the case in question is that the complainant was present in person, who did not object at the time of passing of order or even later or even till today. The petitioner also pointed out that thus, order was passed to which the complainant had consented to and therefore, there was no question of oblique motive on the part of the petitioner. The petitioner also pointed out that sufficiency of punishment can never be a ground of departmental inquiry. The petitioner also pointed out that as the petitioner was holding charge of the Court not for a day or two but for fifteen days on regular basis, he was not required to take up only urgent matters, but was to conduct the Court like a regular incumbent of the office. The petitioner also pointed out that a request was made by the learned advocate for the accused stating that he wanted to leave active practice and join politics, the request was acceded to by the petitioner. Last, but not the least, the petitioner also pointed out that the judgment which is sought to be relied upon by the disciplinary authority for its disagreement was not placed in charge sheet. In the alternative the petitioner submitted that the ratio of the judgment is not applicable to the facts of the case on hand.
4. It is pointed out in para 3.9 that till the time of filing of reply to the Show Cause Notice dated 12th September 2002, the petitioner was serving as Senior Judge (SD) and was placed under suspension only by order dated 3rd November 2002. The petitioner has also pointed out in para 3.10 of the petition that after he was placed under suspension in November 2002, departmental proceedings went into the state of suspended animation. In this regard it will be appropriate to reproduce the contents of para 3.10, the relevant part of which reads as under:
“ .. .. It is submitted that the petitioner was given a notice for personal hearing on 30.3.2005, but before the said date vide letter of the High Court dated 15.4.2005, he had been informed about the postponement of the hearing and that he would be intimated of the next date. That thereafter, for the first time the petitioner was given personal hearing by an administrative Bench consisting of Hon’ble Mr. Justice P.B. Majmudar and Hon’ble Mr. Justice D.H. Waghela) on 23.11.2006. That at that time, the hearing had been adjourned since Hon’ble Justice Shri P.B. Majmudar had passed an order of Not before me whereafter the matter was listed before the administrative Bench of Hon’ble Mr. Justice D.H. Waghela and Hon’ble Mr. Justice K.A. Puj where hearing had taken place on 13.1.2008 and 25.1.2008. The petitioner states that during the interregnum the petitioner had submitted an application dated 9.10.2007, for permission to retire voluntarily which application had not been accepted by the Hon’ble High Court vide order dated 26.11.2008. At this stage, it is stated by the petitioner that while personal hearing of the petitioner had been 25.1.2008, the petitioner had retired from service under suspension on 31.12.2007.”
5. The petitioner quoted the findings recorded by the High Court and communicated to the petitioner vide order dated 6th May 2008.
“That there is no direct evidence of the delinquent indulging in corrupt practice by making orders as aforesaid for a consideration other than judicial one. Therefore, the issue is as to whether the petitioner had acted in manner unbecoming of a judicial officer and failed to maintain devotion to duty and whether all the circumstances indicated sufficient grounds to doubt his integrity.” The High Court on administrative side had come to the conclusion that after almost 18 years of service as a judicial officer, delinquent could be safely presumed to at-least know the procedure to be followed in proceeding with a criminal case with regard to the conviction on plea of guilty for offences of accused. That the Hon'ble Court on administrative side was of the opinion that plea of guilty could be recorded in absence of accused only under Section 253 of the Code of Criminal Procedure only where summons are issued under section 206 of the Code of Criminal Procedure, that the criminal case in question were not triable in a summary way and since the petitioner had tried them summarily therefore, it was ex-facie illegal and in violation of the provisions of code to follow the procedure prescribed in Section 253 of the Code. That according to the High Court on administrative side, the other circumstance of delinquent even calling the case which were not listed for hearing and disposing the case with an order imposing meager fine by a cryptic order being in temporary charge clearly indicated an oblique motive behind such extraordinary and illegal exercise, that the facts speak for themselves were proof enough of misconduct of showing lack of absolute integrity and devotion to duty and therefore, such exercise of power not vested in judicial officer conscious defiance of law by judicial officer has to be taken very seriously since according to Hon’ble High Court on administrative side nothing can be more destructive of rule of law than an experienced judicial officer consciously acting in violation of law and putting stringent provisions of a welfare legislation to ridicule. Based upon these findings the High Court on administrative side held the petitioner guilty of the charge of misconduct and imposed punishment of withholding of pension and retrial benefits of the petitioner. The petitioner states that the High Court of Gujarat on its administrative side vide order dated 6.5.2008 had inter-alia come to a conclusion that the petitioner is found and held to be guilty of serious misconduct as mentioned in the charge-sheet deserving severe punishment and therefore, though the petitioner retired on 31.12.207, punishment of not being entitled to pension or any other retrial benefits, except those to which he may be entitled even if he were discharged from service by way of punishment on the date of retirement was imposed upon the petitioner. Annexed hereto and marked as Annexure-G to this petition is copy of order dated 6.5.2008.”
6. Learned advocate Mr.Nikhil S. Kariel submitted that this is a case wherein (i) departmental proceedings were initiated on an anonymous letter, and (ii) what is alleged against the petitioner is that while he was in temporary charge of the Court at Gandhidham he decided cases wherein certain irregularities, as per the say of the disciplinary authority, were committed which point out that the same was done for an oblique motive, viz.,
(i) twelve cases were decided of which five cases were not on Board,
(ii) plea of guilt was recorded in absence of the accused,
(iii) This was done in defiance of the guidelines/ directions issued by the High Court in judgement which is referred to,
(iv) the cases were disposed of by imposing meagre fine, and
(v) there were large number of cases pending – about 4000 and there was no urgency to dispose of these 12 cases.
7. The learned advocate for the petitioner submitted that it is alleged that, 'it was on 13th and 14th March 1996 that the aforesaid cases came up for consideration and the petitioner passed the order'. The learned advocate for the petitioner submitted that the petitioner had put in about 18 years of service as on 1996, the year in which the aforesaid incident is alleged to have taken place. The learned advocate for the petitioner submitted that thereafter the petitioner came to be suspended in 2002 and in the year 2007, he reached the age of superannuation. The learned advocate for the petitioner further submitted that the petitioner was served with tentative decision of the High Court vide communication dated 22.05.2002, to which the petitioner had replied on 12.09.2002. It was only thereafter that the petitioner was suspended by order dated 03.11.2002. It was in the year 2008 the hearing took place and order was passed on 06.05.2008 pursuant to which notification was issued by the Legal Department of Government of Gujarat. Before the petitioner reach the age of superannuation on 31.12.2007, he submitted an application seeking voluntary retirement on 09.10.2007, but the same was not acceded to. The learned advocate for the petitioner submitted that if all the factors which are taken into consideration for coming to conclusion that the petitioner had acted with oblique motive and for extraneous consideration are viewed little differently with an objective approach it will be clear that all these factors even if taken together do not establish either presence of any 'oblique motive' on the part of the petitioner or that the petitioner had acted for 'extraneous considerations'.
8. The learned advocate for the petitioner submitted that an impression is sought to be created as if the petitioner was in-charge of the court for a day or two and during that period, in a hot haste he called for 12 cases and decided them with an oblique motive and/ or for extraneous consideration, but the fact is otherwise. The fact is that while the petitioner was regularly posted at Anjar, he came to be posted for 15 days at Gandhidham on account of non availability of two judicial officers at Gandhidham. Thus, he was discharging duties at two places; one at Gandhidham (for 15 days) and another at Anjar (for 15 days). Therefore, the colour sought to be given must necessarily change once this fact comes on record that he was regularly holding the post of Judge at Gandhidham for 15 days in addition to his posting at Anjar under the orders of the authority.
The learned advocate for the petitioner submitted that, (i) so far as deciding 12 cases is concerned, 7 cases were already on Board and only 5 cases were called for. Now those cases which were called for were arising from the same incident, (ii) they pertain to the same parties – the complainant and the accused, (iii) there was a request made by the learned advocate appearing for the accused, (iv) the complainant himself was present in the Court when those cases were taken up for consideration, (v) the complainant neither at the time of taking up those cases nor at any later point of time objected to the hearing of those cases and decided them.
The learned advocate for the petitioner submitted that the next factor which is pressed into service to establish that there was oblique motive on the part of the petitioner, is that the petitioner recorded the plea of guilt in absence of the accused. If the facts as they appear on the record are that the accused was granted exemption from attending the court much prior to matters came up for consideration by predecessor of the petitioner, and petitioner has nothing to do with that order of exemption.
Besides, there was a request made by the learned advocate appearing for the accused on the ground that he proposes to go out of active practice, and therefore, remaining 5 cases arising from the same incident between the same parties may be called for so that the same can be heard and decided. As said hereinabove the petitioner acceded to that request as nothing objectionable was felt.
The learned advocate for the petitioner submitted that judicial notice can be taken of the fact that later on this learned advocate appearing for the accused did enter active politics and did reach to the position of Speaker of the Legislative Assembly of the State of Gujarat.
The learned advocate for the petitioner further submitted coupled with this one cannot lose sight of the fact that the complainant was present in the Court and he had neither objected nor refused to cooperate.
The learned advocate for the petitioner next submitted that it is seriously alleged that the learned Judge in defiance of the guidelines/ directions issued by this Court in the judgment, disposed of the cases in question. In this regard the learned advocate invited attention to para 3, which reads as under:
“Thereafter, the High Court, on its administrative side, by order dated 22.5.2002, tentatively held that the charges levelled against the delinquent were found to be established, after recording reasons as under:
“In Criminal case nos.1879/ 94 to 1889/94, the accused was charged for the offences punishable under section 63 r/w section 92 of the Factories Act, 1948 for which maximum punishment provided is imprisonment for 2 years of fine of Rs.1,00,000/- or both. Therefore, it is crystal clear that the aforesaid cases do not follow within the scope of section 2065 of the Criminal Procedure Code and admittedly, the summons to the accused in the aforesaid cases were issued under section 205 of the Criminal Procedure Code.
However, Shri Mehta, Inquiry Officer in his report has held that as the summons were issued under section 205 of the Criminal Procedure Code presence of the accused was not required for recording plea in the matter. Shri Mehta in his report relied on certain decisions for his such conclusion. But it appears that the judgment reported in 1988 (1) Cr.L.J. 511 and AIR 1993 SC 2090 are in respect of recording further statement of accused under section 313 of the Criminal Procedure Code and the same are not at all applicable to the present matter. (emphasis supplied) In the case of V.K. Bhatt, PF Inspector vs. M/s Aryodaya Ginning mills Ltd., Ahmedabad reported in 1996(2) GLR 38, this Court has specifically held that only in “petty cases” as defined in section 206 of the Criminal Procedure Code, advocate for the accused can plead guilty on behalf of the accused and in other cases, presence of accused before the court at the time of recording plea of guilty is a must. This decision was though circulated to all the Judge of the State by the High Court vide letter dated 11.9.95, still the delinquent deliberately and with an ulterior motive ignored it and recorded the plea of the advocate on behalf of the accused in the aforesaid cases. (emphasis supplied) At this juncture, we may state that in case of Shri V.K. Bhatt (supra), the learned single Judge of this Court (Coram: K.J. Vaidya, J.) has in no uncertain terms held that while recording plea of the accused if the Magistrate commits several illegalities or irregularities, then it is “judicial misconduct”. It is brought to our notice by Law Officer, Shri Shah that the judgment of learned single Judge of this Court in case of V.K. Bhatt (supra) was circulated to all the District Judges including the District Judge of Kutch-Bhuj where the present delinquent was posted as Civil Judge (SD) & JMFC, Anjar, by letter dated 11.9.95 addressed by the then Registrar of this Court. In spite of it deliberately and with ulterior motive and for considerations other than judicial consideration the delinquent passed such orders. Therefore, it is a clear case of gross misconduct. Unfortunately, the learned Inquiry Officer has totally ignored this most important aspect of the case.” (emphasis supplied)
9. To appreciate this, provisions of sections 205 and 206 of the Code of Criminal Procedure are required to be examined. Section 205 of the Code provides for Magistrate dispensing with the personal attendance of the accused. Whereas section 206 of the Code deals with special summons in cases of petty offence. What is sought to be projected is, 'only in cases wherein summons are issued under section 206 of the Code a plea can be recorded in absence of the accused and not otherwise'. In this regard the Court called upon the learned senior advocate Mr.Shalin N. Mehta appearing for the High Court to point out any provision of the Code of Criminal Procedure which forbids recording of plea of guilt in absence of accused. The learned senior advocate could not point out any such provision which prohibits Magistrate to record 'plea of guilt' in absence of the accused in any case other than the case wherein summons are issued under section 206 of the Code. The Court then examined the judgment of this Court in the matter of V.K. Bhatt, Provident Fund Inspector M/s Aryodaya Ginning Mills Limited, Ahmedabad, reported in 1996 (2) GLR 38. The Court is of the opinion that there is total misreading of the said judgement by the Presenting Officer, Mr.Shah. The relevant part of said judgement on the point of 'recording of plea of guilt' is as under:
“9. This takes us now to those five grounds which the learned Advocate Mr. P. N. Patel, while pleading guilty on behalf of the accused, also prayed for the mercy in the matter of imposing the sentence. However, before considering these grounds for mercy, first of all this Court is required to clear one more point going to the root of the proceedings, viz., Whether the learned Advocate appearing for the accused, in absence of accused before the Court, on their behalf can be permitted to plead guilty and for that purpose the Court can accept the same and act upon it Whether the learned Advocate for the accused in absence of the accused-persons can be permitted to file purshis and on their behalf plead guilty The straight answer to this questions is "NO". .. ..:
If only this portion of judgement is read, then what is submitted and what is projected will appear to be right, but judicial prudence does not permit the Court to do that. When the latter part of the same para is read things become clear. The latter part of para 9 indicates that the aforesaid observations are made by the Court in light of the facts of that case and the same cannot be applied to the facts of the case on hand. The latter part of para 9 reads as under:
“ .. Of course, it is quite true that by virtue of Sec. 206 (Special Summons in cases of petty offences) in the Criminal Procedure Code, 1973, some provisions have been made by virtue of which even when the accused is not present before the Court, in petty cases, he can plead guilty by submitting the purshis through his learned Advocate. In some petty cases, this may be permissible but in serious offences, as the one under the P. F. Act, more particularly when the statute has prescribed the minimum sentence and further when the less than the said statutory minimum sentence could be imposed, if the accused makes out adequate and special reasons, this is not permissible simply because while recording the plea of guilty, the learned Magistrate is supposed to read over the charge and explain the same to the accused in the Court room. If the accused persons are not personally present in the Court room, there is no question in the first place, of reading over and explaining the charge and in the second place, having regard to the statutory minimum sentence prescribed, making the accused understand that even if he pleaded guilty, there was no scope for imposing less than the minimum sentence unless of course some adequate and special grounds are made out by him for the said purpose and in the third place, the satisfaction of the learned Magistrate that he has explained the aforesaid things to the accused and that they having understood the same, voluntarily pleaded guilty. ..”
This latter part of the same para makes it clear that the so called directions/ guidelines issued by the learned Single Judge were to apply only in 'two' specific types of cases, namely, (i) cases where minimum sentence is prescribed, and (ii) cases where it is possible for the learned Magistrate to award less than the statutory minimum sentence for adequate and special reasons.
For recording less than the minimum sentence prescribed by Statute, adequate and special reasons are required to be recorded and for doing that the learned Magistrate has to explain to the accused that, 'even if the accused pleads guilty the Court may award minimum sentence prescribed by Statute unless the accused is able to make out 'adequate and special reasons' for awarding less than the minimum sentence prescribed by the Statute.
It is in view of the aforesaid circumstances in the judgement referred to High Court (learned Single Judge) held that the plea of guilt should be recorded only in presence of the accused, but as discussed above there is no provision under the Code of Criminal Procedure which prohibits recording of plea in absence of accused.
10. Thus, the aforesaid discussion shows that the allegation of having defied the directions/ guidelines issued by this Court has no substance and it shatters away.
11. Coming to the next allegation that, 'for a serious offence meagre punishment is awarded' the following facts are required to be considered. If it is so, it is one of the important factors to come to the conclusion that the learned Judge must have acted for oblique motive and extraneous consideration. But then the allegation is not found to be borne out from the record of the case. The petitioner had mentioned in his reply the precedents of similar offence under section 63 of the Factories Act, wherein fine awarded was in the range of Rs.100/- to Rs.150/-. As against that the petitioner awarded fine of Rs.800/- per case. Therefore, even that allegation is found to be devoid of any merit. Last, but not the least it is also submitted that though there were about 4000 cases pending the petitioner- the learned Judge was in hurry to dispose of these 12 cases only. Taking into consideration the circumstances in their totality, which have come on record and which are discussed hereinabove this allegation is also found to be not true. One can understand if the learned Judge, who happens to have (i) in-charge of the Court for a day or two, (ii) in absence of the complainant, on a request made by the learned advocate for the accused, (iii) calls for selected cases, and (iv) passes an order contrary to the precedents of the Court in such cases, then one can hold that there was 'oblique motive' and/ or extraneous consideration on the part of the Judge. But as discussed hereinabove none of these elements are found in the present case and therefore, finding of guilt recorded in this case is required to be quashed and set aside.
12. Learned senior advocate Mr.Shalin N. Mehta vehemently argued that, (i) normally in the matters of this type there can never be a direct evidence. The learned senior advocate submitted that in this type of cases it is only the circumstantial evidence which is required to be appreciated by the Inquiry Officer and the Disciplinary Committee and finally by the Court when the matter comes up for its consideration. The learned senior advocate submitted that in the present case all the circumstances be taken together and an inference is to be drawn that the petitioner-the judicial officer acted in a manner which is sufficient to render him guilty of 'unbecoming of a judicial officer' and therefore, the order passed by the High Court be upheld and the petition be dismissed.
The learned senior advocate for the High Court next submitted that the orders passed by the petitioner were taken in suo motu revision by the learned District Judge wherein the orders passed by the petitioner were quashed and set aside. The learned senior advocate submitted that, that being so, a decision of this Court in the matter of S.J. Pathak, Ex. Addl Sessions Judge Vs. State of Gujarat & another, reported in 2010 (1) GLR 153 will be of no help to the petitioner. Learned senior advocate submitted that it was a case wherein order granting bail by the concerned judicial officer were the subject matter of proceedings in higher forum and the strong argument in favour of the judicial officer was that none of those bail orders were reversed.
Taking into consideration the rival submissions made by the respective counsels for the parties and as discussed hereinabove none of the circumstance is found to be sufficient to satisfy the conscience of the court to hold that the petitioner has acted in a manner which will render him 'unbecoming of a judicial officer'. This Court on careful consideration is satisfied that the petitioner, as a judicial officer, was discharging his duties in a manner which is expected from him and therefore, only on the ground that the orders passed by the petitioner as a judicial officer were quashed and set aside by higher forum are of no consequence. Besides, it may be noted here that the prosecution-prosecuting agency has failed to bring on record as to what happened in those matters after the orders of the petitioner were quashed and set aside. The learned senior advocate appearing for the High Court to substantiate his submissions on the point that the petitioner awarded meagre punishment for a serious offence relied upon two decisions, viz. (i) in the matter of State of Gujarat Vs. Y.V.
Khadilkar, reported in 1994 (1) GCD 667, and (ii) in the matter of State of Gujarat Vs. Lallubhai Thakorebhai Desai, reported in 1994 (1) GLR 144. It is noticed on perusal that those were the cases wherein for a similar offence, viz. violation of section 63 of the Factories Act, fine imposed by the 1st court was Rs.20/- (Rupees twenty only) which was found to be meagre or insufficient by the Hon'ble High Court and raised to Rs.1020/-. In another case, the fine imposed was Rs.75/-, which was raised to Rs.1500/- by this Court. In absence of any specific yardstick by which judicial officer is supposed to measure the guilt and impose fine, it cannot conclusively be held that one is guilty. More so, when in this case, there were 12 cases and fine imposed was Rs.800/- per case. This Court is of the opinion that by no standard this fine can be said to be a fine of meager amount, coupled with the fact that as said by the petitioner, which is not controverted by the prosecuting agency that past precedents in such cases are of imposing fine are between Rs.100/- to Rs.150/-.
There are certain matters wherein no specific guidelines are issued or can be issued by higher courts, which can be applied mechanically by subordinate courts. One such grey area is where one judicial officer for non payment of fine of Rs.500/- awards 15 days imprisonment, whereas other judicial officer for non payment of fine of Rs.500/- awards 6 months imprisonment. Merely on such ground a judicial officer cannot be adjudged to be an officer passing order with oblique motive or for extraneous consideration. If that is done, then it will be hazardous and destructive.
13. It is true that one has to be careful while examining such type of cases, more particularly, when evidence available could be 'circumstantial' evidence. In the present case, as discussed hereinabove at length and as examined, every circumstance which is pressed into service to point out the guilt of the petitioner, this Court finds no substance in any of the circumstances set out to support the allegation that the petitioner was found to be acting with an oblique motive and for extraneous consideration.
It is unfortunate that we cannot put the clock back. We cannot grant any relief for the agony an officer has undergone during the last five years of service. He was suspended in 2002 and reached the age of superannuation in 2007. For these five years not only the petitioner but every member of his family must have undergone agony which even if required to be and desired to be, cannot be compensated in terms of money. Not only that, the agony is aggravated when after superannuation he is permanently denied retiral benefits. As a result, for five years the petitioner is without a penny, which too must have worked very hard on the family of the petitioner. The only way to redeem the said agony is while allowing this petition, the respondents be directed to pay him all retiral dues at the earliest and to start paying pension. In the event the respondents are likely to take time in fixing regular pension, the provisional pension be paid so that he can support his family in these hard days.
14. In the result, the petition is allowed. Order dated 6th May 2008 passed in Departmental Inquiry No.6 of 1998 by the High Court of Gujarat at Ahmedabad (on its Administrative Side) is quashed and set aside. Consequently, Notification dated 6th January 2010 is quashed and set aside. The respondents are directed to pay all the retiral dues with all consequences to the petitioner forthwith with interest at the rate of 12% per annum from the date the amount became payable to the petitioner, as early as possible, but not later than 9th November 2012. This direction is issued keeping in mind the ensuing Diwali festival.
15. The respondents are directed to fix regular pension at the earliest, but in case it is likely to take time, then they must fix provisional pension of the petitioner and must start paying him for the month of October 2012, payable in the month of November 2012. The arrears of pension may follow, but not later than three months. Rule is made absolute in the above terms. The respondents are directed to pay a quantified cost of Rs.25,000/- (Rupees twenty five thousand only).
(RAVI R. TRIPATHI, J.) karim (N.V. ANJARIA, J.)