Nirmala J Jhala vs State of Gujarat and Anr on 18th
March 2013 in Supreme Court
Duty of Higher Judiciary to protect Subordinate Judicial Officers, burden of proof lay on Department and High Court erred in shifting onus upon appellant who was delinquent in enquiry,
- Growing tendency of maligning reputation of
judicial officers by disgruntled litigants who fail to secure order in their
favour, strongly deprecated
- Besides Judge bashing, various other problems
faced by subordinate judiciary at hands of unscrupulous litigants and lawyers,
highlighted
- For proper functioning of democracy, independent
judiciary to dispense justice without fear and favour, is paramount
- Duty of High Court to protect honest Subordinate
Judicial Officers, emphasised,
Departmental Enquiry
Natural
Justice - Preliminary enquiry
- Reliance on
- Extent to which permissible
- Held, evidence recorded in preliminary enquiry
cannot be used in regular enquiry as delinquent is not associated with it, and
opportunity to cross-examine persons examined in preliminary enquiry is not
given
- Thus, using such evidence violates principles of
natural justice since cross-examination is an integral part of natural justice
- Preliminary enquiry may be useful only to take
prima facie view, as to whether there is some substance in allegations made
against employee which may warrant further enquiry
- Besides, preliminary enquiry and its report loses
significance/importance once regular enquiry is initiated by issuing
charge-sheet to delinquent
- On facts held, in absence of anything to show that
either preliminary enquiry report or statements recorded therein had been
exhibited in regular inquiry, such report/statements could not be relied on against
appellant
- Enquiry officer as well as High Court on its
administrative and judicial side erred in relying upon it for fastening guilt
upon appellant and compulsorily retiring appellant
- Punishment of compulsory retirement, set aside,
Departmental
Enquiry
Prima facie
case- What amounts to
- Held, prima facie case does not mean a case proved
to the hilt but a case which can be said to be established if the evidence
which is led in support of the case were to be believed
- While determining whether a prima facie case has
been made out relevant consideration is whether on evidence led it was possible
to arrive at the conclusion in question and not whether that was the only
conclusion which could be arrived at on that evidence,
Departmental Enquiry
Quasi-judicial and quasi
-criminal proceedings
- Principle of preponderance of probabilities is
applicable, and not doctrine of proof beyond reasonable doubt
- Finding of court that delinquent has committed
misconduct should be based on evidence
- Such conclusion must be reached on basis of what a
prudent man would have done
- In instant case, complainant (alleging misconduct
in performance of judicial duties by appellant) was disbelieved by enquiry
officer as well as High Court on various issues, particularly on point of
complainant personally having heard conversation when alleged demand of Rs 20, 000
was made by appellant judicial officer to complainant's counsel for passing
order in complainant's favour
- Further, allegation that appellant had threatened complainant
to withdraw complaint was also found false
- Allegation that appellant's husband was collecting
bribe amounts on her behalf was also baseless since at that point of time, she
was unmarried
- Furthermore, there was nothing on record to show
that appellant, whose defence was disbelieved in toto, had ever been given any
adverse entry in her ACRs, or punished earlier in any enquiry
- Hence, order of punishment imposed by High Court
in compulsorily retiring appellant, set aside - However, as appellant had already
reached age of superannuation, besides being exonerated honourably, granted
costs quantified at Rs 5 lakhs,
Departmental Enquiry
Scope
- Reiterated - Judicial review is not akin to
adjudication on merits by re-appreciating evidence as an appellate authority
- Adequacy or reliability of evidence cannot be
permitted to be canvassed before court in writ proceedings
- Only consideration court/tribunal has in judicial
review is to consider whether conclusions of appellate authority are based on
evidence on record and supports findings
- Judicial review jurisdiction is circumscribed and
confined to correct errors of law or procedural error, if any, resulting in
manifest miscarriage of justice or violation of principles of natural justice
- Besides, even when some defect is found in
decision-making process, court must exercise its discretionary power with great
caution keeping in mind larger public interest and only when it comes to
conclusion that overwhelming public interest requires interference, should
court intervene,
Service Law
Departmental Enquiry
Penalty/ Punishment
Proportionality
High Court wrongly placing onus on appellant
delinquent to explain alleged incident of demand of illegal gratification, and
holding that by simply disowning and denying such occurrence she had not
discharged it
- Held, burden of proof lay on Department and High
Court erred in shifting onus upon appellant who was delinquent in enquiry,
- Offence of
corruption
- Punishment of dismissal, reiterated, is appropriate,
___________________________________________________________
The Laws:
The Constitution of India 1949: Article 311, Article
311(2) in
The Indian Penal Code: Section 406, Section 467,
Section 471
Cases
Roop Singh Negi vs Punjab National Bank & Ors on
19 December, 2008 -- Supreme Court of India
Cholan Roadways Limited vs G. Thirugnanasambandam on
17 December, 2004 - Supreme Court of India
Divisional Controller, vs H. Amaresh on 17 July,
2006 -- Supreme Court of India
Union of India and Others vs Naman Singh Sekhawat on
14 March, 2008 -- Supreme Court of India
Prahlad Saran Gupta vs Bar Council Of India And
Another on 26 February, 1997 -- Supreme Court of India S. L. Kapoor vs Jagmohan
& Ors on 18 September, 1980 -- Supreme Court of India
Krushnakant B. Parmar vs Union of India & Anr on
15 February, 2012 -- Supreme Court of India
Govt. Of A.P. & Ors vs Mohd. Narsullah Khan on
31 January, 2006 -- Supreme Court of India
Zora Singh vs Shri J.M. Tandon and Ors on 9 September,
1970 -- Supreme Court of India
Haridas Das vs Smt. Usha Rani Banik & Ors on 16
July, 2007 -- Supreme Court of India
Ayaaubkhan Noorkhan Pathan vs State of Maharashtra
& Ors on 8 November, 2012 -- Supreme Court of India
K.P. Tiwari vs State Of M.P on 29 October, 1993 -- Supreme
Court of India
Harish Chandra Tiwari vs Baiju on 8 January, 2002 --
Supreme Court of India
M.S. Bindra vs Union of India and Ors on 1
September, 1998 -- Supreme Court of India
Kirit Kumar Chaman Lal Kundaliya vs Union of India (Uoi)
and Ors. on 30 January, 1981 -- Supreme Court of India
M/S Ram Singh Vijay Pal Singh & Ors vs State of
U.P. & Ors on 1 May, 2007 -- Supreme Court of India
Noor Aga vs State of Punjab & Anr on 9 July,
2008 -- Supreme Court of India
State of Tamil Nadu & Anr vs S. Subramaniam on
24 January, 1996 -- Supreme Court of India
Gajanan Narayan Patil and Others ... vs State Of
Maharashtra And Others on 20 February, 1990 -- Supreme Court of India
U.P.
State Road Transport ... vs Vinod Kumar on 6 December, 2007 - Supreme Court of
India
Municipal Committee, vs Krishnan Behari And Ors on
19 February, 1996 -- Supreme Court of India
R.S. Saini vs State of Punjab & Ors on 9
September, 1999 -- Supreme Court of India
Ishwar Chand Jain vs High Court of Punjab &
Haryana And ... on 26 May, 1988 -- Supreme Court of India
Amalendu Ghosh vs North Eastern Railway (By The ...
on 15 January, 1960 -- Supreme Court of India
Yoginath D. Bagde vs State of Maharashtra & Anr
on 16 September, 1999 -- Supreme Court of India
M.V. Bijlani vs Union of India & Ors on 5 April,
2006 -- Supreme Court of India
High Court of Judicature At ... vs Shri Udaysingh
S/O Ganpatrao ... on 9 April, 1997 -- Supreme Court of India
Narinder Mohan Arya vs United India Insurance
Co.Ltd. & ... on 5 April, 2006 -- Supreme Court of India
L.D. Jaikwal vs State of U.P on 17 May, 1984 -- Supreme
Court of India
Dalpat Kumar and Anr. Vs Prahlad Singh and Ors on 16
December, 1991 -- Supreme Court of India
Mohd.Yunus Khan Vs State Of U.P. & Ors on 28
September, 2010 -- Supreme Court of India
Martin Burn Ltd vs R.N Banerjee on 20 September,
1957 -- Supreme Court of India
The Management of the Bangalore ... vs B. Dasappa,
M. T. Represented By ... on 3 February, 1960 --Supreme Court of India
U.P. State Road Transport Corp vs Suresh Chand
Sharma on 26 May, 2010 -- Supreme Court of India
________________________________________________________
Reportable
IN THE SUPREME COURT OF
INDIA
CIVIL APPELLATE
JURISDICTION
CIVIL APPEAL NO. 2668
of 2005
Nirmala J. Jhala
…Appellant
Versus
State of Gujarat & Anr. …Respondents
J U D G M E N T
Bench:
B.S. Chauhan, Fakkir Mohamed Kalifulla
Dr. B.S.
Chauhan, J:
1. This
appeal has been preferred against the impugned judgment and order dated
25.8.2004, passed in Special Civil Application No.5759 of 1999, by way of which
the challenge to punishment order of compulsory retirement of the appellant has
been turned down.
2. Facts
and circumstances giving rise to this appeal are:
A. That
the appellant had joined the Gujarat State Judicial Service in 1978, and was
promoted subsequently as Civil Judge (Senior Division) in 1992. She was posted
as Chief Judicial Magistrate (Rural) in Ahmedabad. In December 1991, she was
trying one Gautam Ghanshyam Jani in CBI Case No.5 of 1991 for the offence of
misappropriation and embezzlement of public money. The accused filed a
complaint with the CBI on 19.8.1993, against the appellant alleging that she
had demanded a sum of Rs.20, 000/- on 17.8.1993 as illegal gratification, to
pass order in his favour, through one C.B. Gajjar, Advocate. As it was not
possible for the complainant to pay the said amount, the appellant had agreed
to accept the same in installments, and in order to facilitate the said
complainant’s efforts to arrange the said amount in part, she had even granted
adjournment.
B. The
said complaint filed with the CBI was referred to the High Court and in
pursuance thereof, a preliminary enquiry was conducted against the appellant in
which statements of various persons including C.B. Gajjar and G.G. Jani were
recorded. The Court then suspended the appellant vide order dated 21.1.1994,
and directed a regular enquiry appointing Shri M.C. Patel, Additional Civil
Judge, City Civil Court, Ahmedabad as the Enquiry Officer.
C. A
chargesheet dated 6.8.1994, containing 12 charges was served upon the
appellant. One of the main charges was, the demand of illegal gratification to
the tune of Rs.20, 000/- from G.G. Jani through C.B. Gajjar, Advocate in lieu
of favouring the complainant/accused. Another relevant charge was that a person
known as “Mama” amongst the litigants, would come to her residence, accompany
her to court, and collect money from litigants on her behalf and thus, she had
indulged in corrupt practices.
D. During
the course of the enquiry, G.G. Jani, C.B. Gajjar, P.K. Pancholi and certain
other witnesses were examined by the department and in her defence, the
appellant examined herself denying all the allegations made against her. The
Enquiry Officer submitted his report on 24.10.1997, holding the appellant
guilty of the first charge and partially guilty of the second charge, i.e. to
the extent that one person named “Mama” used to visit her quite frequently.
However, it could not be proved that he had ever misused his association with
the appellant in any respect. All other charges were found unsubstantiated.
E. In
pursuance of the report submitted by the Enquiry Officer, the matter was
examined on the administrative side by the High Court, and after meeting
various legal requirements i.e. issuing show cause notice to the appellant and
considering her reply, the Court vide resolution dated 12.10.1998, made a
recommendation to the State that the appellant was guilty of the first charge,
and thus, punishment of compulsory retirement be imposed on her. The Government
accepted the same and issued a notification giving compulsory retirement to the
appellant on 11.12.1998.
F.
Aggrieved, the appellant challenged the said order of punishment, by filing a
Special Civil Application No.5759 of 1999 before the High Court on the ground
that the findings of the Enquiry Officer were perverse and based on no
evidence. However, the said civil application was dismissed by the High Court,
vide impugned judgment and order dated 25.8.2004.
Hence,
this appeal.
3. Ms.
Mahalakshmi Pavani, learned counsel appearing for the appellant, has submitted
that one Gautam Ghanshyam Bhai Jani, an officer of Oriental Insurance Company
at Mehasana had been involved in a CBI case for the offence punishable
under Sections 406, 467 and 471 of Indian Penal Code,
1860. After investigation, a chargesheet had been filed against him in the
court of the Chief Judicial Magistrate, Mirzapur in case no.5 of 1991. Shri
Bhatt, the then CJM had liberally granted long adjournments to the accused
complainant. The case had started in 1991, but no progress was made till 1993,
as the accused- complainant had only been seeking adjournments. The appellant
had joined in the said Court as CJM in 1993, and wanted to conclude the trial,
thus, she granted short adjournments. The accused/complainant was being
represented by Shri Pankaj Pancholi, Advocate. He had been granted adjournments
one or two times, but later on, the appellant refused to accommodate him. She
hence, began examining witnesses even in the absence of the complainant’s
advocate. The complainant was directed/ instructed to keep his advocate
present, and in the event that Shri Pankaj Pancholi was not available, to make
alternative arrangement. Shri Pankaj Pancholi introduced the
accused-complainant to Shri C.B. Gajjar, Advocate practicing therein. Shri Pankaj
Pancholi told Shri Gajjar that as the accused-complainant was his relative, he
was not in a position to ask the accused to pay fees. Thus, Shri Gajjar should
ask the accused-complainant to pay a sum of Rs.20, 000/- to be paid to the
appellant, in order to get a favourable order. The appellant did not meet Shri
Gajjar in her chamber, nor did she put up any demand. The complaint, however,
was motivated as the appellant was a very strict officer. This theory of
demand/bribe and further, the readiness to accept the same in installments, was
a cooked up story. The findings of fact recorded by the Enquiry Officer are
perverse, as Shri Gajjar, Advocate has denied meeting the appellant in her
chamber. The High Court did not appreciate the evidence in correct perspective
and failed to protect a honest judicial officer, which was its obligation. The
punishment imposed is too severe and disproportionate to the delinquency.
Therefore, the appeal deserves to be allowed.
4. Per
contra, Ms. Enatoli K. Sema, learned counsel for the respondents has opposed
the appeal contending that the case of demand of bribe, and an agreement to
accept the same in installments, stands fully proved. Rule 6 of the Gujarat
Civil Services (Discipline & Appeal) Rules, 1971, provides for major penalties
in the event that a charge is proved against the delinquent, which include
reduction to a lower stage in the timescale of pay for a specified period;
reduction to a lower time scale of pay; compulsory retirement; removal from
service and dismissal from service. The High Court was lenient and only imposed
a punishment of compulsory retirement, otherwise it was a fit case where the
appellant ought to have been dismissed from service. There is ample evidence on
record to establish the charge of corruption against her, which has been
properly appreciated by the Enquiry Officer, as well as by the High Court.
Standard of proof required in a case of Departmental Enquiry is not that of
“beyond reasonable doubt”, as required in a criminal trial. Moreover, the scope
of judicial review is limited in such a case. Thus, no interference is called
for.
5. We have
considered the rival submissions made by learned counsel for the parties and
perused the record.
It may be
pertinent to deal with the legal issues involved herein, before dealing with
the case on merits.
6. LEGAL
ISSUES:
I.
Standard of proof in a Departmental Enquiry which is Quasi Criminal/ Quasi
Judicial in nature:
A. In M.
V. Bijlani v. Union of India and Ors., AIR 2006 SC 3475, this Court held:
“ … Disciplinary
proceedings, however, being quasi-criminal in nature, there should be some
evidences to prove the charge.
Although
the charges in a departmental proceedings are not required to be proved like a
criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the
fact that the Enquiry Officer performs a quasi-judicial function, who upon
analysing the documents must arrive at a conclusion that there had been a
preponderance of probability to prove the charges on the basis of materials on
record. While doing so, he cannot take into consideration any irrelevant fact.
He cannot refuse to consider the relevant facts. He cannot shift the burden of
proof. He cannot reject the relevant testimony of the witnesses only on the
basis of surmises and conjectures.” (Emphasis added) (See also : Narinder
Mohan Arya v. United India Insurance Co. Ltd. & Ors, AIR 2006 SC
1748; Roop Singh Negi v. Punjab National Bank and Ors, AIR 2008 SC (Supp)
921; and Krushnakant B. Parmar v. Union of India & Anr ,(2012) 3 SCC
178) B. In Prahlad Saran Gupta v. Bar Council of India & Anr, AIR 1997
SC 1338, this court observed that when the matter relates to a charge of
professional mis-conduct which is quasi-criminal in nature, it requires proof
beyond reasonable doubt. In that case the finding against the delinquent
advocate was that he retained a sum of Rs. 15,000/- without sufficient
justification from 4-4-1978 till 2-5-1978 and he deposited the amount in the
Court on the latter date, without disbursing the same to his client. The said
conduct was found by this Court as "not in consonance with the standards
of professional ethics expected from a senior member of the profession".
On the said fact- situation, this court imposed a punishment of reprimanding
the advocate concerned.
C. In Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, this court made a
distinction from the above judgment stating the facts in the aforesaid
decisions would speak for themselves and the distinction from the facts of this
case was so glaring that the misconduct of the appellant in the present case
was of a far graver dimension. Hence, the said decision was not of any help to
the appellant for mitigation of the quantum of punishment.
D. In Noor
Aga v. State of Punjab & Anr, AIR 2009 SC (Supp) 852 , it was held that the
departmental proceeding being a quasi-judicial one, the principles of natural
justice are required to be complied with. The Court exercising power of
judicial review are entitled to consider as to whether while inferring
commission of misconduct on the part of a delinquent officer relevant piece of
evidence has been taken into consideration and irrelevant facts have been
excluded there from. Inference on facts must be based on evidence which meet
the requirements of legal principles. (See also: Roop Singh Negi v. Punjab
National Bank & Ors, AIR 2008 SC (Supp) 921; Union of India & Ors. v.
Naman Singh Sekhawat. (2008) 4 SCC 1; and Vijay Singh v. State of U.P.
& Ors. AIR 2012 SC 2840) E. In M. S. Bindra v. Union of India &
Ors, AIR 1998 SC 3058, it was held:
“While
evaluating the materials the authority should not altogether ignore the
reputation in which the officer was held till recently. The maxim "Nemo
Firut Repente Turpissimus" (no one becomes dishonest all on a sudden) is
not unexceptional but still it is salutary guideline to judge human conduct,
particularly in the field of Administrative Law. The authorities should not
keep the eyes totally closed towards the overall estimation in which the
delinquent officer was held in the recent past by those who were supervising
him earlier. To dunk an officer into the puddle of "doubtful
integrity" it is not enough that the doubt fringes on a mere hunch. That doubt
should be of such a nature as would reasonably and consciously be entertainable
by a reasonable man on the given material. Mere possibility is hardly
sufficient to assume that it would have happened. There must be preponderance
of probability for the reasonable man to entertain doubt regarding that
possibility.
Only then
there is justification to ram an officer with the label ‘doubtful integrity’.”
F. In High
Court of Judicature at Bombay through its Registrar v. Udaysingh &
Ors, AIR 1997 SC 2286, this Court held:
“The doctrine of `proof beyond doubt’ has no application.
Preponderance
of probabilities and some material on record would be necessary to reach a
conclusion whether or not the delinquent has committed misconduct.” G. In view
of the above, the law on the issue can be summarised to the effect that the
disciplinary proceedings are not a criminal trial, and in spite of the fact
that the same are quasi-judicial and quasi- criminal, doctrine of proof beyond
reasonable doubt, does not apply in such cases, but the principle of
preponderance of probabilities would apply. The court has to see whether there
is evidence on record to reach the conclusion that the delinquent had committed
a misconduct. However, the said conclusion should be reached on the basis of test
of what a prudent person would have done. The ratio of the judgment in Prahlad
Saran Gupta (supra) does not apply in this case as the said case was of
professional misconduct, and not of a delinquency by the employee.
II. Duty
of Higher Judiciary to protect subordinate judicial officers:
(a) In
Ishwar Chand Jain v. High Court of Punjab and Haryana & Anr, AIR 1988
SC 1395, it was held:
“14. Under
the Constitution the High Court has control over the subordinate judiciary.
While exercising that control it is under a, constitutional obligation to guide
and protect, judicial officers. An honest strict judicial officer is likely to
have adversaries in the mofussil courts. If complaints are entertained on
trifling matters relating to judicial orders …… no judicial officer would feel
protected and it would be difficult for him to discharge his duties in an
honest and independent manner. An independent and honest judiciary is a sine
qua non for Rule of law…….. It is therefore imperative that the High Court
should also take steps to protect its honest officers by ignoring ill-conceived
or motivated complaints made by the unscrupulous lawyers and litigants.”
(b) In
Yoginath D. Bagde v. State of Maharashtra & Anr, AIR 1999 SC 3734, it was
held:
“The Presiding Officers of the Court cannot act as fugitives.
They have
also to face sometimes quarrelsome, unscrupulous and cantankerous litigants but
they have to face them boldly without deviating from the right path. They are
not expected to be overawed by such litigants or fall to their evil designs.”
(c) A
subordinate judicial officer works mostly in a charged atmosphere. He is under
a psychological pressure - contestants and lawyers breathing down his neck. If
the fact that he renders a decision which is resented by a litigant or his
lawyer were to expose him to such risk, it will sound the death knell of the
institution.
“Judge
bashing" has become a favourite pastime of some people. There is growing
tendency of maligning the reputation of judicial officers by disgruntled elements
who fail to secure an order which they desire. For functioning of democracy, an
independent judiciary, to dispense justice without fear and favour is
paramount. Judiciary should not be reduced to the position of flies in the
hands of wanton boys. (Vide: L.D. Jaikwal v. State of U.P, AIR 1984 SC
1374; K.P. Tiwari v. State of Madhya Pradesh, AIR 1994 SC
1031; Haridas Das v. Smt. Usha Rani Banik & Ors., etc. AIR 2007 SC
2688; and In Re: Ajay Kumar Pandey, AIR 1998 SC 3299)
(d) The
subordinate judiciary works in the supervision of the High Court and it faces
problems at the hands of unscrupulous litigants and lawyers, and for them
“Judge bashing” becomes a favourable pastime. In case the High Court does not
protect the honest judicial officers, the survivor of the judicial system would
itself be in danger.
III. Scope
of Judicial Review:
(i) It is
settled legal proposition that judicial review is not akin to adjudication on
merit by re-appreciating the evidence as an Appellate Authority. The only
consideration the Court/Tribunal has in its judicial review, is to consider
whether the conclusion is based on evidence on record and supports the finding
or whether the conclusion is based on no evidence. The adequacy or reliability
of the evidence is not a matter which can be permitted to be canvassed before
the Court in writ proceedings. (Vide: State of T.N. & Anr v. S.
Subramaniam, AIR 1996 SC 1232; R.S. Saini v. State of Punjab, (1999) 8 SCC
90; and Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan,
AIR 2006 SC 1214)
(ii) In
Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537, this Court while
dealing with the issue of scope of judicial review, held as under:
“The
principle that if some of the reasons relied on by a Tribunal for its
conclusion turn out to be extraneous or otherwise unsustainable, its decision
would be vitiated, applies to cases in which the conclusion is arrived at not
on assessment of objective facts or evidence, but on subjective satisfaction.
The reason
is that whereas in cases where the decision is based on subjective satisfaction
if some of the reasons turn out to be irrelevant or invalid, it would be
impossible for a superior Court to find out which of the reasons, relevant or
irrelevant, valid or invalid, had brought about such satisfaction. But in a
case where the conclusion is based on objective facts and evidence, such a
difficulty would not arise. If it is found that there was legal evidence before
the Tribunal, even if some of it was irrelevant, a superior Court would not
interfere if the finding can be sustained on the rest of the evidence. The
reason is that in a writ petition for certiorari the superior Court does not
sit in appeal, but exercises only supervisory jurisdiction, and therefore, does
not enter into the question of sufficiency of evidence.” (Emphasis added)
(iii) The
decisions referred to hereinabove highlights clearly, the parameter of the
Court’s power of judicial review of administrative action or decision. An order
can be set-aside if it is based on extraneous grounds, or when there are no
grounds at all for passing it or when the grounds are such that, no one can
reasonably arrive at the opinion. The Court does not sit as a Court of Appeal
but, it merely reviews the manner in which the decision was made. The Court
will not normally exercise its power of judicial review unless it is found that
formation of belief by the statutory authority suffers from malafides,
dishonest/corrupt practice. In other words, the authority must act in good
faith. Neither the question as to whether there was sufficient evidence before
the authority can be raised/examined, nor the question of re-appreciating the
evidence to examine the correctness of the order under challenge. If there are
sufficient grounds for passing an order, then even if one of them is found to
be correct, and on its basis the order impugned can be passed, there is no
occasion for the Court to interfere. The jurisdiction is circumscribed and
confined to correct errors of law or procedural error, if any, resulting in
manifest miscarriage of justice or violation of principles of natural justice.
This apart, even when some defect is found in the decision- making process, the
Court must exercise its discretionary power with great caution keeping in mind
the larger public interest and only when it comes to the conclusion that
overwhelming public interest requires interference, the Court should intervene.
IV.
Punishment in corruption cases:
In
Municipal Committee, Bahadurgarh v. Krishnan Bihari & Ors., AIR 1996 SC
1249, this Court held as under:
“In a case
of such nature - indeed, in cases involving corruption - there cannot be any
other punishment than dismissal. Any sympathy shown in such cases is totally
uncalled for and opposed to public interest. The amount misappropriated may be
small or large; it is the act of misappropriation that is relevant.”
In
Divisional Controller N.E.K.R.T.C. v. H. Amaresh, AIR 2006 SC 2730, this court
held that the punishment should always be proportionate to the gravity of the
misconduct. However, in a case of corruption, the only punishment is dismissal.
Similar
view has been reiterated in U.P.S.R.T.C. v. Vinod Kumar, (2008) 1 SCC 115;
and U.P. State Road Transport Corp. v. Suresh Chand Sharma, (2010) 6 SCC
555.
7. The
case at hand is required to be considered in light of the aforesaid settled
legal propositions.
8. In the
instant case, after the preliminary enquiry, when the regular enquiry was
conducted, three star witnesses were examined by the department.
9. Shri
G.G. Jani, complainant-accused in his examination-in-chief has deposed that he
had been an employee of the Oriental Insurance Co. at Mehasana, and at the
relevant time, was facing a criminal case for mis-appropriation of money, and
for producing up false documents. His case was initially tried by Shri Bhatt,
the then Chief Judicial Magistrate in 1991 and he happened to give him long
adjournments. Later when the appellant was hearing the case, only short
adjournments were granted. Pankaj Pancholi, who was practicing as an advocate
in the High Court, was engaged by him. Initially he had got the case adjourned
twice, but he could not attend on the subsequent dates. As a result the
appellant started examining the witnesses even in his advocate’s absence. The
appellant had instructed the complainant-accused to keep his advocate present,
or to make an alternative arrangement. The case was fixed for 13.8.1993, and on
that date, on the instructions of Shri Pancholi, Shri C.B. Gajjar, advocate came
to the court. He got the complainant-accused to sign his vakalatnama. Shri C.B.
Gajjar had told him not to worry as he was having very good relations with the
appellant, and he would be able to get adjournments. He sought adjournment and
the appellant fixed the case for 20.8.1993. Shri C.B. Gajjar called the
complainant on 17.8.1993 near the chamber of the appellant in court compound at
about 4 to 4.30 p.m. On reaching there he had met Shri C.B. Gajjar, who had
told him that he would talk to Madam to decide the case in his favour and went
to her chamber at about 5.00 p.m. The complainant remained standing outside in
the lobby. The appellant was in her chamber. Shri C.B. Gajjar had then came
out, after 15 minutes and told the complainant that appellant had demanded
Rs.20,000/- to deliver the judgment in his favour. The complainant told him
that it was a very high amount and requested Shri C.B. Gajjar to negotiate for
a reasonable amount. Thereafter, Shri C.B. Gajjar again went to her chamber. At
that time, the complainant was standing outside the door of the chamber. Shri
Gajjar discussed his case with the appellant in a slow voice. Shri C.B. Gajjar
came out and told the complainant that the amount was reasonable and he had to
pay the same on 19.8.1993. The witness requested Shri Gajjar to fix the payment
in instalments. Thus, it was agreed to make payment of the first instalment of
Rs.5, 000/- on 20.8.1993. However, the arrangement of money could not be made.
The accused – complainant went to the office of the CBI on 19.8.1993 and filed
a complaint.
After
receiving the complaint from the complainant, the CBI tried to collect some
evidence in the matter, and Shri C.B. Gajjar was invited to Yamuna Hotel, where
the panchas and the CBI people went alongwith the complainant. Shri C.B. Gajjar
came there, however, he got some doubt, therefore, he asked the complainant
about the identification of the persons present there and left the place
immediately. The complainant also deposed about some threat given to his wife at
the behest of the appellant to withdraw the complaint.
In his
cross-examination, the complainant admitted that there was a room adjacent to
the chamber of the appellant for the use of Stenographer, and also admitted
that he did not hear the conversation made between the appellant and Shri C.B.
Gajjar, advocate. What he has deposed was based on as what Shri Gajjar had told
him. He replied to suggestion made to him as under:
“Question:
I say that in the case of C.B.I. against you, as your advocate being your close
relative, he was not able to take the fee from you and for that reason,
Advocate Shri Gajjar was also not able to take fee from you. Therefore, with a
view to obtain his fee from you, whether Shri Gajjar had demanded the same
using the name of the magistrate?
Answer: I
do not want to say anything in this regard.”
10. Shri
C.B. Gajjar, advocate, deposed that Shri P.K. Pancholi, advocate had told him
that the complainant-accused was brother of his brother-in-law, so he could not
ask him to pay any fee. Thus, it was agreed that he should ask the
complainant-accused to pay Rs.20, 000/-, as the amount was to be given to the
appellant as a bribe to get a favourable order. Thus, in view thereof, he had
told the complainant- accused that he had to pay Rs.20, 000/- to the appellant
to get a favourable order. In his cross-examination, he deposed as under:
“I went to
Miss Jhala’s court on 13.8.1993 in morning in Gautambhai Jani’s case and after
that never went there. I did not go into the Chamber of Miss Jhala on
17.8.1993. No talk has taken place with her for money at any time. …….Miss
Jhala has not made any such demand.” Shri C.B. Gajjar further admitted that the
appellant was unmarried. Further, he admitted that he was called by the
Vigilance Officer and he made the statement before him. He admitted his
signature on the said statement and stated that it was correct.
11. Shri
Pankaj K. Pancholi, advocate, did not support the case of the department, and
his evidence is of no use for determination of the issue as to whether the
appellant had demanded a bribe for deciding the case in favour of the
complainant-accused.
12. The
appellant examined herself in defence and deposed that her court was of the
size of 50ft. x 30 ft. and chamber admeasured 22ft. x 14ft., and adjacent
thereto, there was a chamber for Stenographer measuring 10ft. x 10ft. A person
from outside could enter her chamber only through the said stenographer’s room.
Therefore, nobody outside the room could hear any conversation which could be
had in the Magistrate chamber. Shri C.B. Gajjar, had appeared in her court in
the case of the complainant-accused on 13.8.1993 only and sought adjournment.
As the witness brought by CBI was present, she had given a short adjournment,
and fixed the matter for 20.8.1993. She had not discussed anything with Shri
Gajjar, advocate in her chamber for CBI case No. 5/1991, or any other case.
There could be no talk about the demand of money for this case or any other
case. Shri C.B. Gajjar had come only into the court. She had not seen Shri
Gajjar on any other day, or on 17.8.1993. She had never met him other than on
that date in court either in chamber or any other place. She was unmarried. She
was not granting long adjournments in any case, and instead asking the parties
to keep their witnesses ready.
13. There
was another witness examined by the department, namely, Jethagir, Inspector
working in the Income-Tax department in the Vigilance. He deposed that he had
gone out at the request of the department and met complainant-accused. He was
introduced to the complainant, and was taken to the court of the appellant on
20.8.1993, but the appellant did not come to the court.
14. On the
basis of the aforesaid evidence, the Enquiry Officer prepared a report Ext.
121. So far as the charge 1 is concerned, he appreciated the evidence as under:
“Now I
turn to Shri Jani’s statement before the Vigilance Officer which was recorded
on 20.9.1993. In that statement he repeated the allegations made in his
complaint dated 19.8.1993 to the CBI. He added that when Shri Gajjar went again
into the chamber of Miss Jhala on 17.8.1993 to make a request for instalment,
he stood in front of the door near the chamber so as to able to get an idea of
the talk in the chamber. According to him, when Shri Gajjar talked about
instalment Miss Jhala initially refused but when Shri Gajjar made a request,
she agreed to give instalment of Rs.5,000/-. Shri Jani then gave the following
account of what happened in Yamuna Restaurant on 28.8.1993.
However,
the gravest and clinching circumstance against Miss Jhala is the fact that Shri
Gajjar called Shri Jani to meet him outside her chamber at 4.45 p.m. on
17.8.1993 and demanded Rs.20,000/- after a meeting with her in her chamber no
doubt both Miss Jhala and Shri Gajjar had denied this allegation. However, the
tenor of Shri Gajjar’s statement before the Vigilance Officer shows that the
meeting in the Yamuna Hotel on 20.8.1993 was in pursuance of the previous talk
between Shri Jani and Shri Gajjar. On 13.8.1993, Shri Gajjar had left the court
after getting the case adjourned and there was no talk about any payment at
that time. The meeting, therefore, took place after 13.8.1993 and before
19.8.1993 when Shri Jani sent to the CBI Officer and made the complaint. In the
circumstances, there is no reason to disbelieve Shri Jani’s account of what
happened on 17.8.1993 given in his complaint dated 19.8.1993.
In the
circumstances, the assertion of Miss Jhala and Shri Gajjar that there was no
meeting between them cannot be accepted as true….It may be that Shri Jani’s
claim to have been standing near the chamber so as to be able to hear the talk
is a subsequent improvement but the fact that there was a meeting between Miss
Jhala and Shri Gajjar cannot be doubted and in the absence of any explanation
of the reason for the meeting, the only inference that can be drawn in that
Miss Jhala demand illegal gratification and Shri Gajjar conveyed the demand to
Shri Jani. This inference is strengthened by the fact that on this own say Shri
Gajjar gave an assurance to Shri Jani and Shri Gajjar in the Yamuna Hotel that
the work would be done and there would be no cheating. Both Shri Jani and Shri
Gajjar said in their statements before the Vigilance Officer that Shri Gajjar
could accompany him to the residence of Miss Jhala though she would not accept
payment in person. According to Shri Jani, Shri Gajjar said that the dealing is
made by her husband. It is said that Miss Jhala is unmarried and hence there
was no question of her husband being present. But it is possible that the
payment was to be accepted by some other person when Shri Gajjar loosely
described as Miss Jhala’s husband. ….It may be that Shri Gajjar was to retain
part of the amount but there is no doubt that Miss Jhala agreed to accept illegal
gratification for doing in favour to Shri Jani and Shri Gajjar’s demand was in
pursuance of the meeting with Miss Jhala in her chamber on 17.8.1993.”
(Emphasis added) And thus, he reached the conclusion as under:
“As a
result of the above discussion, I come to the conclusion that Miss Jhala
demanded or agreed to accept illegal gratification through advocate Shri C.B.
Gajjar for doing favour to Shri Jani at her meeting with Shri Gajjar in her
chamber on 17.8.1993. The charge no.1 is answered accordingly.”
15. The
said report was accepted by the High Court and recommendation for imposing the
punishment of compulsory retirement was made which was accepted by the State.
The appellant was given compulsory retirement. The High Court on Administrative
side appreciated the same evidence, and came to the conclusion as under:
“The fact
that Shri Jani and Shri Gajjar had a meeting outside the chamber of the
petitioner on 17.8.1993 at about 5 o’clock in the evening and that Shri Gajjar
had gone inside the chamber of the petitioner twice and demanded money on her
behalf from Shri Jani to decide the case in his favour has been believed by the
Enquiry Officer as well as by the High Court in its recommendations. There are
number of reasons why the said conclusions appear to be eminently just. At no
point of time, the petitioner has alleged any animosity or ill-will between her
and Shri Jani. Neither in the cross-examination of Shri Jani, nor in her
deposition before the Enquiry Officer, the petitioner has even remotely
suggested any ill-will between them so as to falsely implicate the petitioner.
We have
also recorded earlier that Shri Gajjar and Shri Jani had assembled outside the
chamber of the petitioner on 17.8.1993 and Shri Gajjar had entered the chamber
of the petitioner twice when the petitioner was in her chamber demanded an
amount of Rs.20, 000/- on behalf of the petitioner, there is absolutely no
cross-examination of Shri Jani by the petitioner. Lack of challenge to this
most crucial element of the evidence fully justified the findings of the
competent authority
….
…….
…….
When this
is so, it was the duty of the petitioner to explain the said circumstance. The
petitioner instead of satisfactorily explaining Shri Gajjar entering her
chamber twice on 17.8.1993 has completely disowned and denied any such
occurrence
….. nor
has the petitioner examined any witness to show that she was not in the chamber
on the said day at 5 o’clock. Being court premises, surely there would have
been number of witnesses readily available such as, her Bench Clerk, her
Stenographer, etc. who would be sitting outside her chamber, her Peon and
number of advocates who could watch for the fact that the petitioner was not
inside her chamber at 5.00 p.m. on 17.8.1993. No such attempt was made by the
petitioner to examine any witness.
……the
petitioner’s total denial of the incident and her unwillingness or inability to
explain Shri Gajjar entering her chamber on two occasions and spending
considerable time inside her chamber would, in our view, be extremely damaging.
Shri Gajjar’s entry in her chamber on 17.8.1993 on two occasions would assume
further significance in view of the fact that Shri Jani’s case was earlier
fixed on 13.8.1993 and thereafter adjourned to 20.8.1993 and that there was no
other case of Shri Gajjar on the board before the petitioner and that,
therefore, Shri Gajjar had absolutely no occasion to meet the petitioner twice
inside her chamber on 17.8.1993.
(Emphasis
added)
16. The
Division Bench of the High Court accepted the finding arrived at by the Enquiry
Officer, though admitting that there were certain discrepancies in the
evidence. The court held as under:
“We have
noted that the Enquiry Officer has not believed the say of Shri Jani when he
suggested that he could hear the conversation between the petitioner and Shri
Gajjar when he was standing outside the chamber of the petitioner on 17.8.1993.
The Enquiry Officer has also discarded the possibility of the petitioner having
threatened Shri Jani. This, however, by itself would not be sufficient for us
to hold that the findings of the Enquiry Officer and that of the High Court in
its recommendations were based on no evidence. …….there was ample justification
for coming to the conclusion that the charge of having demanded illegal
gratification was proved against the petitioner.
Shri Jani
in his statement at one place had stated that his case before the petitioner
was fixed on 13.8.1993 and thereafter adjourned to 20.8.1993 and on 20.8.1993,
it was again adjourned to 28.8.1993. We, therefore, to verify the dates, called
for the calendar of the year 1993. The calendar of 1993 showed that August 28
was a 4th Saturday, and therefore a non- working day for the court.
……..We
also find that the size of the paper on which the rozkam for the dates prior to
13.8.1993 was different from the size of preceding and succeeding papers.
Discolouration of this page also seen different from other pages and therefore
raise suspicion.”
17. The
High Court has rightly disbelieved the statement of the complainant-accused
that he could hear the conversation between the appellant and Shri Gajjar. The
said evidence was also discarded by the Enquiry Officer. Further allegation
that the appellant had threatened the said complainant-accused to withdraw the
complaint was also found to be false. The entry of Shri C.B. Gajjar into the
chamber of the appellant on 17.8.1993, was not corroborated by any other
evidence. Shri C.B. Gajjar himself had also denied the same.
More so,
the High Court has reached the conclusion by shifting the burden of proof of
negative circumstances upon the appellant. The High Court has erred by holding
that in respect of the incident dated 17.8.1993 i.e. demand of amount, it was
the duty of the appellant to explain the said circumstance, and that instead of
giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar,
she had completely disowned and denied any such occurrence. The onus was always
on the department to prove the said circumstance. The court should have also taken
note of the fact, that the matter was adjourned for 28.8.1993, and being a 4th
Saturday, it was a holiday. The court further committed an error by holding,
that the failure to challenge the most crucial element of the evidence,
regarding the incident of 17.8.1993, in respect of a demand of bribe of
Rs.20,000/- fully justified the findings of the Enquiry Officer. Again, the
High Court shifted the onus to prove a negative circumstance on the appellant.
18. The
appellant had not married at that point of time, as per her statement. Even
this fact has been admitted by Shri C.B. Gajjar, Advocate. Given the above set
of facts, the complainant is seen talking about appellant’s husband for
collecting money on her behalf. The High Court had failed to notice the above
fact and had been making attempts to keep aside all such relevant factors in a
case, where there was no direct evidence.
19. In the
aforesaid backdrop, we have to consider the most relevant issue involved in
this case. Admittedly, the Enquiry Officer, the High Court on Administrative
side as well on Judicial side, had placed a very heavy reliance on the
statement made by Shri C.B. Gajjar, Advocate, Mr. G.G. Jani, complainant and
that of Shri P.K. Pancholi, Advocate, in the preliminary inquiry before the
Vigilance Officer. Therefore, the question does arise as to whether it was
permissible for either of them to take into consideration their statements
recorded in the preliminary inquiry, which had been held behind the back of the
appellant, and for which she had no opportunity to cross- examine either of
them.
20. A
Constitution Bench of this Court in Amlendu Ghosh v. District Traffic
Superintendent, North-Eastern Railway, Katiyar, AIR 1960 SC 992, held that the
purpose of holding a preliminary inquiry in respect of a particular alleged
misconduct is only for the purpose of finding a particular fact and prima facie,
to know as to whether the alleged misconduct has been committed and on the
basis of the findings recorded in preliminary inquiry, no order of punishment
can be passed. It may be used only to take a view as to whether a regular
disciplinary proceeding against the delinquent is required to be held.
21.
Similarly in Chiman Lal Shah v. Union of India, AIR 1964 SC 1854, a
Constitution Bench of this Court while taking a similar view held that
preliminary inquiry should not be confused with regular inquiry. The
preliminary inquiry is not governed by the provisions of Article
311(2) of the Constitution of India. Preliminary inquiry may be held
ex-parte, for it is merely for the satisfaction of the government though
usually for the sake of fairness, an explanation may be sought from the
government servant even at such an inquiry. But at that stage, he has no right
to be heard as the inquiry is merely for the satisfaction of the government as
to whether a regular inquiry must be held. The Court further held as under:
“…..There
must, therefore, be no confusion between the two inquiries and it is only when
the Government proceeds to hold a departmental enquiry for the purpose of
inflicting on the government servant one of the three major punishment
indicated in Article 311 that the government servant is entitled to the
protection of that Article, nor prior to that.” (Emphasis added) (See also:
Government of India, Ministry of Home Affairs & Ors. v. Tarak Nath Ghosh,
AIR 1971 SC 823).
22. In
Naryan Dattatraya Ramteerathakhar v. State of Maharashtra & Ors., AIR 1997
SC 2148, this Court dealt with the issue and held as under:
“…..a
preliminary inquiry has nothing to do with the enquiry conducted after issue of
charge-sheet. The preliminary enquiry is only to find out whether disciplinary
enquiry should be initiated against the delinquent. Once regular enquiry is
held under the Rules, the preliminary enquiry loses its importance and, whether
preliminary enquiry was held strictly in accordance with law or by observing principles
of natural justice of nor, remains of no consequence.
(Emphasis
added)
23. In
view of above, it is evident that the evidence recorded in preliminary inquiry
cannot be used in regular inquiry as the delinquent is not associated with it,
and opportunity to cross-examine the persons examined in such inquiry is not
given. Using such evidence would be violative of the principles of natural
justice.
24. In
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., AIR 2013 SC 58,
this Court while placing reliance upon a large number of earlier judgments held
that cross-examination is an integral part of the principles of natural
justice, and a statement recorded behind back of a person wherein the
delinquent had no opportunity to cross- examine such persons, the same cannot
be relied upon.
25. The
preliminary enquiry may be useful only to take a prima facie view, as to
whether there can be some substance in the allegation made against an employee
which may warrant a regular enquiry.
26. “A
prima facie case, does not mean a case proved to the hilt, but a case which can
be said to be established, if the evidence which is led in support of the case
were to be believed. While determining whether a prima facie case had been made
out or not, the relevant consideration is whether on the evidence led, it was
possible to arrive at the conclusion in question and not whether that was the
only conclusion which could be arrived at on that evidence”. (Vide: Martin
Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79) (See also: The Management of
the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T.
represented by the Binny Mills Labour Association, AIR 1960 SC 1352; State
(Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 SC 1382; Dalpat Kumar &
Anr. v. Prahlad Singh & Ors., AIR 1993 SC 276; and Cholan Roadways
Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570).
27. The
issue, as to whether in the instant case the material collected in preliminary
enquiry could be used against the appellant, has to be considered by taking
into account the facts and circumstances of the case. In the preliminary
enquiry, the department placed reliance upon the statements made by the
accused/complainant and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his
statement has given the same version as he has deposed in regular enquiry. Shri
Gajjar did not utter a single word about the meeting with the appellant on
17.8.1993, as he had stated that he had asked the accused/complainant to pay
Rs. 20, 000/- as was agreed with by Shri P.K. Pancholi, advocate. Of course,
Shri C.B. Gajjar , complainant, has definitely reiterated the stand he had
taken in his complaint. The chargesheet served upon the appellant contained 12
charges. Only first charge related to the incident dated 17.8.1993 was in respect
of the case of the complainant. The other charges related to various other
civil and criminal cases. The same were for not deciding the application for
interim reliefs etc.
28. The
chargesheet was accompanied by the statement of imputation, list of witnesses
and the list of documents. However, it did not say that so far as Charge No. 1
was concerned, the preliminary enquiry report or the evidence collected
therein, would be used/relied upon against the appellant.
There is
nothing on record to show that either the preliminary enquiry report or the
statements recorded therein, particularly, by the complainant/accused or Shri
C.B. Gajjar, advocate, had been exhibited in regular inquiry. In absence of
information in the chargesheet that such report/statements would be relied upon
against the appellant, it was not permissible for the Enquiry Officer or the
High Court to rely upon the same. Natural justice is an inbuilt and inseparable
ingredient of fairness and reasonableness. Strict adherence to the principle is
required, whenever civil consequences follow up, as a result of the order
passed. Natural justice is a universal justice. In certain factual
circumstances even non- observance of the rule will itself result in prejudice.
Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v.
Jagmohan, AIR 1981 SC 136; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259;
and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539)
29. In
view of the above, we reach the following inescapable conclusions:-
i) The
High Court failed to appreciate that the appellant had not granted long
adjournments to the accused-complainant as the appellant wanted to conclude the
trial at the earliest. The case of accused- complainant which was taking its
time, had suddenly gathered pace, thus, he would have naturally felt aggrieved
by failing to notice it. The High Court erred in recording a finding that the
complainant had no ill-will or motive to make any allegation against the
appellant.
ii) The
Enquiry Officer, the High Court on administrative side as well as on judicial
side, committed a grave error in placing reliance on the statement of the
complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary
enquiry. The preliminary enquiry and its report loses significance/importance,
once the regular enquiry is initiated by issuing chargesheet to the delinquent.
Thus, it was all in violation of the principles of natural justice.
iii) The
High Court erred in shifting the onus of proving various negative circumstances
as referred to hereinabove, upon the appellant who was delinquent in the
enquiry.
iv) The
onus lies on the department to prove the charge and it failed to examine any of
the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached
to the office of the appellant for proving the entry of Shri Gajjar, Advocate
in her chamber on 17.8.1993.
v) The
complainant has been disbelieved by the Enquiry Officer as well as the High
Court on various issues, particularly on the point of his personal hearing, the
conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993,
when they met in the chamber.
vi)
Similarly, the allegation of the complainant, that appellant had threatened him
through his wife, forcing him to withdraw the complaint against her, has been
disbelieved.
vii) The
complainant as well as Shri C.B. Gajjar, Advocate had been talking about the
appellant’s husband having collecting the amount on behalf of the appellant,
for deciding the cases, though at that point of time, she was unmarried.
viii)
There is nothing on record to show that the appellant whose defence has been
disbelieved in toto, had ever been given any adverse entry in her ACRs, or
punished earlier in any enquiry. While she has been punished solely on
uncorroborated statement of an accused facing trial for misappropriation.
30. In
view of the above, we have no option except to allow the appeal. The appeal
succeeds and is accordingly allowed. The order of punishment imposed by the
High Court in compulsorily retiring the appellant is set aside. However, as the
appellant has already reached the age of superannuation long ago, it is not
desirable under the facts and circumstances of the case, to grant her any
substantive relief, except to exonerate her honourably of all the charges, and
allow the appeal with costs, which is quantified to the tune of Rs.5 lacs. The
State of Gujarat is directed to pay the said cost to the appellant within a
period of 3 months from today.
…………………………….………….......................J.
(Dr. B. S.
CHAUHAN)
………………….……………..................................
J.
(FAKKIR
MOHAMED IBRAHIM KALIFULLA)
New Delhi,
March 18,
2013.
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