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.