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High Court of Judicature at Bombay v. Udaysingh

Supreme Court of India · 9 April 1997 · [1997] 3 S.C.R. 803

Court
Supreme Court of India
Decided
9 April 1997
Case no.
C.A. No. 9506 of 1996
Reported as
[1997] 3 S.C.R. 803
Result
Appeal(s) allowed
Bench
K. Ramaswamy, D.P. Wadhwa
Length
9 pages
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PETITIONER:
HIGH COURT OF JUDICATURE AT BOMBAYTHROUGH ITS REGISTRAR
Vs.
RESPONDENT:
SHRI UDAYSINGH S/O GANPATRAO NAIKNIMBALKAR & ORS.
DATE OF JUDGMENT: 09/04/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA

ACT

HEADNOTE

JUDGMENT

ORDER

This appeal by certificate arises from the judgment of the Division Bench of the High Court of Bombay, Nagpur Bench, made on April 26, 1996 in Writ Petition No.2210 of 1993.

While the respondent was working as Civil Judge, Jr. Division at Nasik, an allegation was made against him that on October 21, 1989, he had sent a word through a messenger to one Smt. Kundanben, defendant in a civil suit for eviction, demanding a sum of Rs.10,000/- as illegal gratification to deliver judgment in her favour. On receipt of the information, she appears to have complained to Mr. Sathe, her advocate; who in turn appears to have complained to one Mr. Parakh, Assistant Government Pleader; who in turn alleged to have complained to one Shri N.A. Gite, the District Government Pleader. The District Government Pleader informed the District Judge of the demand of illegal gratification made by the respondent. On the bases thereof, the District Judge made adverse remarks against the respondent in his Confidential Report for 1989-90. On coming to know of the same, the respondent made an appeal to the High Court to expunge the said remarks. The High Court to expunge the said remarks. The High Court, thereon, has directed the District Judge to substantiate the adverse remarks after recording the evidence of the aforesaid advocates. Subsequently, their statements came to be recorded. It is relevant to note, at this stage, that the respondent by then was transferred from Nasik by notification dated April 26, 1990, but has not been relieved by the date when a letter was sent by Mr. Gite, District Government Pleader to the District Judge on May 4, 1990. On the basis of the statements recorded from the aforesaid three persons and also Smt. Kundanben, the complainant, the High Court initiated disciplinary enquiry against the respondent. The Enquiry Officer after giving reasonable opportunity to the respondent conducted enquiry and submitted his report. The charge framed against the respondent is as under:

"That on Sunday, the 22nd October,

1989, at about 10.00 a.m. you made

a demand of illegal gratification

of Rs.10,000/- through your

messengers, for Smt. Kundan Kishor

Somayya (Thakkar), resident of

house No.4518, Sardar Chowki,

opposite Panchavati Police Chowki,

Nasik, defendant in regular Civil

Suit No.581/81, for deciding the

said suit in her favour and that

you thereby indulged in corrupt

practice amounting to gross

misconduct."

The High Court after receipt of the enquiry report and consideration thereof, disagreed with the conclusion reached by the Enquiry Officer and recorded its prima facie conclusions indicating as to how it differed from the finding reached by the Enquiry Officer and stated as under:

"Taking the cumulative view of

these statements recorded by the

Enquiry Officer, Nasik, we are of

the view that the same are adequate

enough to hold the delinquent’s

culpability in the matter of demand

of illegal gratification for

delivering a favourable judgment.

The integrity is, therefore, thrown

in doubt and penal action is

required to be taken to maintain

judicial discipline.

For the reasons stated hereinabove,

we disagree with the finding of the

Enquiry Officer who has not

analysed the appreciated the

evidence and material on record in

right perspective."

Accordingly, opportunity was given to the delinquent officer, the respondent, to submit his explanation. The respondent submitted his explanation and on consideration thereof, the Disciplinary Committee of the High Court by its proceedings dated July 31, 1993 recommended for dismissed and the Government on consideration of the record and the recommendation of the High Court reached the following conclusion:

"And Whereas, the Chief Justice and

the Judges of the High Court of

Judicature at Bombay, being the

Disciplinary Authority, on

considering the said report of the

Enquiry Officer and evidence on

record, decided not to agree with

the finding of the Enquiry Officer;

And Whereas, thereupon, the Chief

Justice and the Judges of the High

Court of Judicature at Bombay,

being the Disciplinary Authority,

has served a show cause notice on

the said Shri Naiknimbalkar,

calling upon him to show cause why

the punishment of dismissal from

service should not be imposed upon

him;

And Whereas, after considering the

cause shown by the said Shri

Naiknimbalkar, the Disciplinary

Authority have recommended to

Government to inflict the

punishment of dismissal from

service on the said Shri

Naiknimbalkar;

And Whereas, on considering the

report and the finding of the

Enquiry Officer, the cause shown by

the said Shri Naiknimbalkar and the

recommendation of the Chief Justice

and the Judges of the High Court of

Judicature at Bombay, the

Government of Maharashtra has

decided to accept the said

recommendation of the Chief Justice

and the Judges of the High Court of

Judicature at Bombay, to inflict

the punishment of dismissal from

service on the said Shri

Naiknimbalkar;"

Calling in question this order of dismissal from service, the respondent filed a writ petition in the High Court. The Division Bench after noticing various decisions of this Court came to the conclusion that the District Judge was biased against the respondent; and he recorded the evidence of three witnesses, advocates and the complainant. That formed the foundation for laying the action against the respondent. The circumstance available on record do indicate that no reasonable man would reach the conclusion that the respondent was actuated with a corrupt motive to demand illegal gratification to deliver favourable judgment. The decision of the High Court dismissing the respondent is, therefore, vitiated by manifest error of law warranting interference. Accordingly, the order of dismissal came to be set aside. Thus, this appeal by certificate.

Shri Harish Salve, learned senior counsel appearing for the appellant contends that the view taken by the Division Bench is not correct in law. Under judicial review court cannot reappreciate the evidence of witnesses and reach its own conclusion. The Court could have seen on the basis of evidence on record whether a reasonable man would reach the conclusion that the respondent was actuated with the corrupt motive in making demand for illegal gratification for discharge of official duty; the High Court, therefore, has over-stepped its limits of judicial review and the conclusion reached cannot be supported either by principle of law or any of the law laid down by this Court. Shri Lambat, learned counsel appearing for the respondent, on the other hand, contends that on the basis of evidence on record, no reasonable man would reach the conclusion that the respondent has committed any act of misconduct, i.e., demand of illegal gratification. The subsequent statements of the advocates and of the complainant show that it is only face saving attempt made by the District Judge to substantiate the adverse remarks made by the District Judge; when the respondent brought these facts on record, the Disciplinary Committee did not consider the same from this perspective. So they cannot form as foundation for taking disciplinary action against the respondent.

Having regard to the respective contentions, the question that arises for consideration is: whether the view taken by the Division Bench is sustainable in law? As regards the nature of the judicial review, it is not necessary to trace the entire case law. A Bench of three Judge of this Court has considered its scope in recent judgment in B.C. Chaturvedi vs. Union of India & ors. [(1995) 6 SCC 749] in which the entire case law was summed up in paragraphs 12, 14 and 15 thus:

"12. Judicial review is not an

appeal from a decision but a review

of the manner in which the decision

is made. Power of judicial review

is meant to ensure that the

individual receives fair treatment

and not to ensure that the

conclusion which the authority

reaches is necessarily correct in

the eye of the court. When an

inquiry is conducted on charges of

misconduct by a public servant, the

Court/Tribunal is concerned to

determine whether the inquiry was

held by a competent office or

whether rules of natural justice

are complied with. Whether the

findings or conclusions are based

on some evidence, the authority

entrusted with the power to hold

inquiry has jurisdiction, power and

authority to reach a finding to

fact or conclusion. But that

finding must be based on some

evidence. Neither the technical

rules of Evidence Act nor of proof

of fact or evidence as defined

therein, apply to disciplinary

therein, apply to disciplinary

proceeding. When the authority

accepts that evidence and

conclusion receives support

therefrom, the disciplinary

authority is entitled to hold that

the delinquent officer is guilty of

the charge. The Court/Tribunal in

its power of judicial review does

not act as appellate authority to

reappreciate the evidence and to

arrive at its own independent

findings on the evidence. The

Court/Tribunal may interfere where

the authority held the proceeding

against the delinquent officer in a

manner inconsistent with the rules

of natural justice or in violation

of statutory rules prescribing the

mode of inquiry or where the

conclusion or finding reached by

the disciplinary authority is based

on no evidence. If the conclusion

or finding be such as no reasonable

person would have ever reached, the

Court/Tribunal may interfere with

the conclusion or the findings and

mould the relief so as to make it

appropriate to the facts of each

case.

14. In Union of India vs. S.L.

Abbas [(1993) 4 SCC 357] when the

order of transfer was interfered

with by the Tribunal, this Court

held that the Tribunal was not an

appellate authority which could

substitute its own judgment to that

bona fide order of transfer. The

Tribunal could not, in such

circumstances, interfere with

orders of transfer of a government

servant. In Administrator of Dadra

& Nagar Haveli vs. H.P. Vora [1993

Supp. (1) SCC 551] it was held that

the Administrative Tribunal was not

an appellate authority and it could

not substitute the role of

authorities to clear the efficiency

bare of a public servant. Recently

in State Bank of India vs.

Samarandra Kishore Endow [(1994) 2

SCC 537] a Bench of this Court

which two us (B.P. Jeevan Reddy and

B.L. Hansaria, JJ.) were members,

considered the order of the

Tribunal which quashed the charges

as based on no evidence, went in

detail into the question as to

whether the Tribunal had power to

appreciate the evidence while

exercising power of judicial review

and held that a tribunal could not

appreciate the evidence and

substitute its own conclusion to

that of the disciplinary authority.

It would, therefore, be clear that

the Tribunal cannot embark upon

appreciation of evidence to

substitute its own findings of fact

to that of a disciplinary/appellate

authority.

15. It is, therefore, difficult to

go into the question whether the

appellant was in possession of

property disproportionate to the

known sources of his income. The

findings of the disciplinary

authority and that of the Enquiry

Officer are based on evidence

collected during the inquiry. They

reached the findings that the

appellant was in possession of Rs.

30,000/- in excess of his

satisfactorily accounted for assets

from his known source of income.

The alleged gifts to his wife as

Stridhana and to his children on

their birthdays were disbelieved.

It is within the exclusive domain

of the disciplinary authority to

reach that conclusion. There is

evidence in that behalf."

Law on the nature of the imposition of the penalties, it has been summed up on paragraph 18 thus:

"A review of the above legal

position would established that the

disciplinary authority, and on

appeal the appellate authority,

being fact-finding authorities have

exclusive power to consider the

evidence with a view to maintain

discipline. They are invested with

the discretion to impose

appropriate punishment keeping in

view the magnitude or gravity of

the misconduct. The High

Court/Tribunal, while exercising

the power of judicial review cannot

normally substitute its own

conclusion on penalty and impose

some other penalty. If the

punishment imposed by the

disciplinary authority or the

appellate authority shocks the

conscience of the High

Court/Tribunal, it would

appropriately mould the relief,

either directing the

disciplinary/appellate authority to

reconsider the penalty imposed, or

to shorten the litigation, it may

itself, in exceptional and rate

cases, impose appropriate

punishment with cogent reasons in

support thereof."

Accordingly, the order of the Tribunal in reversing the imposition of the penalty was set aside. In another judgment in State of Tamil Nadu vs. S. Subaramaniam [(1996) 7 SCC 509], this Court has considered the scope of the power of judicial review vis-a-vis re-appreciation of evidence and concluded as under:

"The Tribunal appreciated the

evidence of the complainant and

according to it the evidence of the

complainant was discrepant and held

that the appellant had not

satisfactorily proved that the

respondent has demanded and

accepted illegal gratification. The

Tribunal trenched upon appreciation

of evidence of the complainant, did

not rely on it to prove the above

charges. On that basis, it set

aside the order of removal. Thus

this appeal by special leave.

The only question is: whether the

Tribunal was right in its

conclusion to appreciate the

evidence and to reach its own

finding that the charge has not

been proved. The Tribunal is not a

court of appeal. The power of

judicial review of the High Court

under Article 226 of the

Constitution of India was taken

away by the power under Article

323-A and invested the same in the

Tribunal by Central Administrative

Tribunal Act. It is settled law

that the Tribunal has only power of

judicial review of the

administrative action of the

appellate on complaints relating to

service conditions of employees. It

is the exclusive domain of the

disciplinary authority to consider

the evidence on record and to

record findings whether the charge

has been proved or not. It is

equally settled law that technical

rules of evidence have no

application for the disciplinary

proceedings and the authority is to

consider the material on record. In

judicial review, it is settled law

that the Court or the Tribunal has

no power to trench on the

jurisdiction to appreciate the

evidence and to arrive at its own

conclusion. Judicial review is not

an appeal from a decision but a

review of the manner in which the

decision is made. It is meant to

ensure that the delinquent receives

fair treatment and not to ensure

that the conclusion which the

authority reaches is necessarily

correct in the view of the Court or

Tribunal. When the conclusion

reached by the authority is based

on evidence, Tribunal is devoid of

power to reappreciate the evidence

and would (sic) come to its own

conclusion on the proof of the

charge. 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. This is the consistent

view of this Court vide B.C.

Chaturvedi vs. Union of India

[(1995) 6 SCC 749], State of Tamil

Nadu vs. T.V. Venugopalan [(1994) 6

SCC 302] (SCC para 7), Union of

India vs. Upendra Singh [(1994) 3

SCC 357] (SCC para 6), Government

of Tamil Nadu vs. A. Rajapandian

[(1995) 1 SCC 216] (SCC para 4) and

B.C. Chaturvedi vs. Union of India

(at pp. 759-60). In view of the

settled legal position, the

Tribunal has committed serious

error of law in appreciation of the

evidence and in coming to its own

conclusion that the charge has not

been proved. Thus we hold that the

view of the Tribunal is ex facie

illegal. The order is accordingly

set aside. OA/TP/WP stands

dismissed."

These two judgments squarely cover the controversy in this case.

It is seen that the evidence came to be recorded pursuant to the complaint made by Smt. Kundanben, defendant in the suit for eviction. It is true that due to time lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there is bound to be some discrepancies in evidence. But the Disciplinary proceeding are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. 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. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstance, would be justified in reaching that conclusion. The question, therefore, is: whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgement favourable to a party has been proved? In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statements to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he has already been transferred. But one important factor to be take note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik has no hostility against the respondent. Under these circumstance, contemporaneously when Gite has written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; co of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises: whether their evidence is acceptable or not? In view of the admitted position that the respondent himself did admit that Gite has no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When that evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it b said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified.

Under these circumstance, the question arises: whether the view taken by the High Court could be supported by the evidence on record or whether it is based on no evidence at all ? From the narration of the above facts, it would be difficult to reach a conclusion that the finding reached by the High Court is based on no evidence at all. The necessary conclusion is that the misconduct alleged against the respondent stands proved. The question then is: what would be the nature of punishment to be imposed in the circumstances? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference.

The appeal is accordingly allowed. The judgment of the Division Bench of the High Court stands set aside and that of the High Court dismissing the respondent from service stand upheld. No costs.

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