B.U. Wahane, J.
1. The petitioner-Udaysingh s/o. Ganpatrao Naik Nimbalkar who was a member of the Maharashtra Judiciary working as a Civil Judge, Senior Division, questioned the order of dismissal from service dated 31st July, 1993 (Annexure XX) issued under the signature of the respondent No. 2, in the name of the respondent No. 1. The Government of Maharashtra, as also the enquiry proceedings and south directions to the respondents to reinstate him in service with full back wages and other consequential benefits.
2. The facts giving rise to the institution of enquiry proceedings resulting in dismissal from the service of the petitioner, in brief, are as follows :
The petitioner was selected by the Maharashtra Public Service Commission for the post of Judicial Magistrate, First Class and Civil Judge, Junior Division and he came to be appointed on the said post on 21-7-1980. At the relevant time, the petitioner was posted as Civil Judge, Junior Division and J.M.F.C. at Nasik. He was there since June, 1987. While working at Nasik the petitioner was promoted to the post of Civil Judge, Senior Division and functioned as such from 1-1-1990. The petitioner had completed the tenure of 3 years. He was then transferred from Nasik to Akola as per notification dated 26-4-1990. While the petitioner was working at Akola as IVth Joint Civil Judge, Senior Division came to be suspended on 22-4-1992 contemplating the department enquiry against him. On 28-6-1992, a memorandum of charge sheet was served upon him (Annexure II). The Charge levelled was as follows :
'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 from Smt. Kundan Kishor Somayya (Thakkar), resident of house No. 4518, Sardar Chowki opposite Panchavati Police Chowki, Nasik defendant in Regular Civil Suit No. 581 of 1981, for deciding the said suit in her favour and that you thereby indulged in corrupt practice amounting to gross misconduct'. The statement of imputation, list of documents and list of witnesses were also supplied to the petitioner along with the memorandum of charge sheet. In the statement of imputation, the above charge was detailed as :
'You were working as 2nd Joint C.J. (J.D.) and J.M.F.C. Nasik from 8-6-1987 to 21-12-1989. Regular Civil Suit No. 581 of 1981 between Govardhan and Smt. Kundan Kishor Somayya @ Thakkar was heard by you and decided on 23-10-1989. Then suit was, in fact, fixed for judgment on Saturday the 21-10-1989'.
'On that day, i.e., 21-10-1989, defendant Smt. Kundanben had come to the Court. At about 3.00 p.m., you called her in your Chamber and told her that she should immediately go home and she will get Judgment on Monday. When Smt. Kundanben returned home, the shop-keeper in the Building where she resides informed her that two persons were searching for her'.
'On the next day i.e., Sunday the 22nd October, 1989, two unknown persons went to her house and informed her that her case was fixed for judgment on 23-10-1989 and that the landlord was trying to settle the matter with the petitioner and that is she wanted the Judgment in her favour, she should pay Rs. 10,000/-. They further told her that the landlord was prepared to pay Rs. 10,000/- but the first chance was being given to her. When Smt. Kundanben told them that she would consult her lawyer and asked them to wait for a day, on this the unknown persons replied that they have no time. Smt. Kundanben offered them the cold drink by saying that she would go downstairs and bring the cold drink for them. But, both the strangers did not accept her proposal and left her premises and went away on scooter. It was a scooter of the petitioner. Smt. Kundanben had noted the number of the scooter in her diary. One of the persons attempted to cover the number of the scooter. Smt. Kundanben narrated the above incident to Shri. Parakh, Additional Public Prosecutor. On the next day i.e., on Monday morning at about 8 am. She also informed this incident to her counsel Shri Sathe. On Monday, at about 11.45 a.m. the petitioner called the landlord and Smt. Kundanben in his chamber and told Smt. Kundanben that she would have to vacate the premises by December'.
'Shri Parakh had informed these details to the District Government Pleader Shri Gite and advised her to complain to the District Judge. It appears that Smt. Kundanben had also complained to the District Judge Shri Chitre. Shri Gite had also written to the District Judge about the incident and had further requested him that he should not assign any suit to the petitioner in which the Government was a party'.
3. It appears that Shri. N.A. Gite, the District Government Pleader, Nasik had sent a secret letter dated 4-5-1990 to the District and Sessions Judge, Nasik. The said letter dated 4-5-1990 is placed on record at Annexure III (Page 44-45) This letter refers the talk which took place in the month of November of 1989 to the effect that;
'two persons had been to the house of Mrs. Thakkar - the defendant in one suit pending before the petitioner. They used the scooter owned by the petitioner. They had given the message to Mrs. Thakkar that the petitioner demanded Rs. 10,000/- for deciding the matter in her favour and Mrs. Thakkar narrated the incident to her Advocate M.R. Sathe and also made complaint with Mr. Parakh, Additional Public Prosecutor, Nasik who conveyed the same to him (Shri Gite) and thereafter the same was conveyed to you (District and Sessions Judge, Nasik).
In the same letter, Shri Gite further stated that;
'Some other incidents were also narrated by him (Shri Gite) and one of them is regarding the Civil Suit No. 945 of 1987'.
Shri Gite, further stated in the letter that;
'In the aforesaid background all the sites in which the Governments is party, should be withdrawn from the file of the petitioner and further requested to the District and Sessions Judge, Nasik to move the High Court for transfer of the petitioner'.
4. The petitioner was directed to file written statement in defence within the period of two weeks. As documents relied upon not being supplied to the petitioner, the petitioner in his written statement of defence dated 29-6-1992 requested the respondent No. 2 to supply the copies of the documents and further be permitted to file additional written statement after receipt of the documents.
In reply dated 29-6-1992, the petitioner categorically denied the charges levelled against him. He specifically stated that he decided the regular Civil Suit No. 581 of 1981, Goverdhan v. Smt. Kundanben, on 23-10-1989 while he was working as joint Civil Judge, Junior Division, Nasik. He denied the allegations that Smt. Kundanben was called in the Chamber on 21-10-1989 at about 3.00 p.m. The matter was adjourned on 21-10-1989 because he was busy in other matters. The clerk of the Court informed the parties as regards the next date.
According to the petitioner, during the tenure of his services he discharged his duties to the best of his abilities and he has given no scope for complaints either by the litigants or Advocates. His entire service record was absolutely clear and without any blot. The petitioner states that mere perusal of the record of the Regular Civil Suit No. 581 of 1981 would clearly show that the suit was to be decreed on the sole ground of default in payment of rent for the period of more than 6 months and to the effect there was clear admission on Smt. Kundanben. Inspite of the receipt of notice issued by the landlord the payment of arrears of rent was not made to the landlord. Therefore according to the petitioner, the matter was rightly decided.
The petitioner specifically stated that Shri Gite has not assigned any reason or explained the circumstance, which compelled him or forced him to write the letter to the District and Sessions Judge, Nasik on 4-5-1990 i.e., after about 7 to 8 months of the alleged incident. No explanation put forth by Shri Gite for not approaching and taking action of the alleged incident immediately. In the last week of April 1990, the petitioner was transferred from Nasik to Akola and as such there was no reason for Shri Gite to request the District Judge, Nasik not to assign any suit to the petitioner in which the Government is the party. Similarly, no reason or circumstance has been indicated either in alleged transfer, complaint or in evidence which moved him to request for petitioner's transfer from Nasik.
5. The copies of the statements of Mr. M.R. Sathe, Advocate, Shri Parakh, Assistant Government Pleader recorded on 16-8-1991 and the statement of Smt. Kundanben recorded on 13-8-1991 were supplied to the petitioner. Consequently, the petitioner submitted his additional written statement in defence. There being no immediate complaint either by the aggrieved party. i.e., Smt. Kundanben or the Advocates named above, the belated letter dated 4-5-1990 and the statements which came to be recorded in the month of August, 1991, it was a well calculated plan to spoil his record and there by to mar his further prospects of promotions and to defame him.
The petitioner submitted that he was called for an interview for the post of Additional District and Sessions Judge on four occasions between 1988 to 1991.
6. Shri P.L. Joshi, the Joint District Judge, Nasik was appointed as Enquiry Officer on 27-8-1992. The name of the then District and Sessions Judge, Nashik (now Honourable Mr. Justice J.G. Chitre) being appeared in the list of witnesses at Serial No. 6, the petitioner requested the respondent No. 3 to supply the copy of the statement and of the report of the District and Sessions Judge, Nashik. In reply, the respondent No. 2 on 18-9-1992 apprised the petitioner that the enquiry proceedings against him being originated from the administrative matter, no report was made by the District and Sessions Judge, Nasik.
7. According to the petitioner, the District and Session Judge, Nasik had communicated adverse remarks to the petitioner to the effect that there were complaints against him. The representation was made to the respondent No. 3 to expunge adverse remarks being without any basis. On receipt of the representation, the Reviewing Authority directed the Competent Authority entitled to write the confidential remarks to substantiate the allegations recorded by him in his confidential report. Upon receipt of directives from the respondent No. 3, the District and Sessions Judge, Nasik recorded the statements of Smt. Kundanben, Advocate Sathe and Shri Parakh, Assistant Government Pleader. It is apparent that before issuance of adverse report, there was no complaint or material before the District Judge to write the adverse remarks in the confidential record of the petitioner. Probably, he District Judge, Nasik might have harboured and nurtured the grudge against him and, therefore, the adverse report was written and communicated to him. It smacks malice in law and official bias of the Honourable District Judge, Nasik.
8. The Enquiry Officer held enquiry on 17-10-1992 and 31-10-1992. The statements of Shri Sathe, Advocate, Smt. Kundanben, Shri Parakh, Shri Namdeo Gite and Ramesh Bhore and of the petitioner were recorded.
9. A show cause notice dated 2-4-1993 was communicated by the respondent No. 3 to the petitioner apprising him that the Disciplinary Committee disagreed with the findings of the Enquiry Officer and found that the charges levelled against the petitioner have been proved and tentatively decided to impose the penalty of dismissal from service. The show cause notice was served upon the petitioner along with the copy of the enquiry report dated 3-11-1992.
10. The Enquiry Authority, in its report, who had an opportunity to observe the demeanour of witnesses held that;
'the testimony of Smt. Kundanben is unbelievable. Smt. Kundanben had been clever to improve her statement and deploy innovative nature'.
The Enquiry Officer further observed that;
'Smt. Kundanben was capable to improve any version to suit the demand of the situation'.
The Enquiry Officer after scrutinising the evidence before him had arrived at the conclusion that;
'Smt. Kundanben could be corroborated only by Ramesh Bhore or the shop-keeper or any person who had noticed the said two persons on the scooter. In absence of any such evidence of the witnesses to the incident itself, the corroboration of the version of Smt. Kundanben cannot be said to be sufficient to hold the said linking fact proved. Thus, the uncorroborated statement of Smt. Kundanben to have seen the scooter of the petitioner brought by the said two persons was not believable'.
The Enquiry Officer not given any weight to the testimonies of Shri Gite and other witnesses, their statement not being corroborative piece of evidence to the testimony of Smt. Kundanben.
11. The Disciplinary Committee, in its statement of reasons, discharged with the findings recorded by the Enquiry Officer and believed the testimony of Smt. Kundanben alleged to have been corroborated by Shri Parakh, Shri Sathe, Advocate and Shri Gite, ignoring the omissions which are vital and fatal contradictions, considering those omissions and contradictions as minor omissions and contradictions as those bound to be due to considerable gap of after about 3 years. Such omissions and contradictions bound to be due to lapse of memory. In the statement of reasons, the Disciplinary Committee has observed as follows :
'At the outset, it must be noted that the deposition in a Departmental Inquiry is not to be weighed in accordance with the principles applicable in a criminal trial where each and every allegation has to be proved beyond reasonable doubt. It is enough if preponderance of probabilities point to the culpability of the delinquent in the matter of demand of illegal gratification or the facts on record are sufficient to cast a cloud on the integrity of the delinquent'.
Consequently, the Disciplinary Committee passed the order as follows :
'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'.
The Disciplinary Committee in the statement of reasons observed that :
'The fact that the strangers had come to inform the complainant Kundanben regarding the demand cannot by itself be a clinching evidence to show that it was in fact on behalf of the delinquent. It is the defence of the delinquent that some strangers may have played mischief on him with some ulterior motive. But the said defence cannot be accepted for the reason that these two persons were not only conversant with the suit which was pending for judgment but also knew the judgment that was to be delivered. It is also important to keep in mind that the strangers first appeared at her residence on Saturday 21st on which day the delinquent had asked her to go home directly. Furthermore, there is evidence to show that Smt. Kundanben saw these two stranger having come to her house on a yellow coloured scooter belonging to the delinquent. She had duly identified the vehicle because according to her she had seen the delinquent regularly using the said vehicle and parking it every time near his Chamber in the Court. This aspect assumes importance because even though the strangers' names are not disclosed, the fact that they were using the delinquent's scooter and speaking on his behalf would show that they were his agents. In any case, they did not ask money to be paid to them, but asked her to pay it directly to the Judge concerned. This aspect clearly shows the link between the delinquent and the two strangers. Shri Ramesh Bhore (P.W.5) has not supported the version of the complainant.
12. Shri Solat, the learned counsel for the petitioner vehemently argued that the institution of the Department Enquiry against the petitioner itself was bad and illegal. There was no evidence at all against the petitioner. In fact, it was a case of no evidence at all, even considering the testimony of Smt. Kundanben. The evidence of Smt. Kundanben does not lead or establish the nexus of the petitioner with the alleged two unknown persons who had been to her house and demanded money to decide the civil suit in her favour. There is no corroborative evidence whatsoever to corroborate the testimony of Smt. Kundanben. Smt. Kundanben stated that as soon as the unknown persons left her residence, She narrated the incident to one Shri Ramesh Bhore but Shri Ramesh Bhore (P.W.5) does not corroborate her testimony.
The learned counsel for the petitioner submitted that the alleged incident took place on 22-10-1989 and immediately, she narrated the incident to Shri Ramesh Bhore (P.W.5) and subsequently to Shri Vishvas Parakh (P.W.3) - Additional Public Prosecutor, Shri Sathe, Advocate (P.W.1) her counsel and through Shri Parakh to Shri Gite, District Government Pleader (P.W.4) on 23-10-1989. None of the responsible member of the society thought it necessary either to lodge report with Police and even to arrange for trap reporting to Anti-corruption Bureau or inform the Presiding Officer (Petitioner), as also to the District and Sessions Judge, Nasik or to approach the High Court at Bombay for immediate action. As per the statement of Shri Parakh, Additional Public Prosecutor (P.W.3) he specifically directed Smt. Kundanben to approach and lodge complaint with the District and Sessions judge, Nasik. Smt. Kundanben has not assigned any explanation what prevented her from lodging written complaint either to the District Judge, Nasik or the High Court at Bombay.
For the first time, Shri Gite, District Government Pleader, Nasik (P.W.4) sent a secret letter dated 4-5-1990 to the District and Sessions Judge, Nasik where he made a reference of the incident without giving date and month of the incident. Thus, ambiguous and misleading statment was made in the letter referred. Shri Gite (P.W.4) Shri Parakh (P.W.3) and Shri Sathe (P.W.1) practicing advocate, first two were Government Pleaders and Shri Sathe was the counsel of the petitioner, did not assign any reason and thereby explained why they have not taken any immediate prompt steps or action against the petitioner, at least approaching the District and Sessions Judge, Nasik for transfer of the case of Smt. Kundanben, thereby preventing the petitioner from delivering the Judgment. Shri Sathe, being the counsel of Smt. Kundanben was expected under the normal course of events susceptible to human behaviour to approach the Presiding Officer or the District Judge apprising them of the alleged incident and thereby pray for the transfer of the matter from the file of the petitioner. On the contrary, Shri Sathe advised Smt. Kundanben to ignore such things which indicates that he did not give any weight to her version. Shri Sathe who appeared and conducted civil cases before the petitioner, if had any suspicion about the integrity of the petitioner, he would have raised hue and cry by disclosing the alleged incident to the members of the Bar and would not have spared an opportunity to trap such officer not only to safeguard the interest of his client, but to curb corruption from the institution known as 'Temple of Justice'. But inaction on the part of Shri Sathe, a circumstance itself, is eloquence as regards the integrity of the petitioner as a Judge.
13. For the first time, the statement of Smt. Kundanben, Shri Sathe, Shri Parakh and Shri Ramesh Bhore were recorded by the District and Sessions Judge, Nasik on 13-8-1991 and 16-8-1991. Statements came to be recorded after about 20-22 months from the alleged incident and that too upon directives issued by the Honourable High Court to substantiate the adverse remarks recorded by the District and Sessions Judge, Nasik for the year 1989-90. The Honourable High Court, Bombay had issued the above communication to the District and Sessions Judge, Nasik, as objection being taken to adverse remarks recorded against petitioner and prayed for its expunction from his service record. After the receipt of communication from the Honourable High Court, Shri Gite, Shri Parakh, Shri Sathe, Shri Bhore and Smt. Kundanben were summoned for recording their statements by the District and Sessions Judge, Nasik, it, thus, demonstrates that while recording the adverse remarks, no data or material was before the District and Sessions Judge, Nasik. This action and attitude clearly smacks hostility and bias. Possibility of procuring the statements to suit the purpose or to substantiate the adverse remarks can not be ruled out. On the basis of the statements, the administrative proceedings came to be initiated and the charge sheet was served on the petitioner.
The Disciplinary Committee has given much weight to the evidence of Smt. Kundanben (P.W.2) who alleged that two unknown persons had been to her house, went on a scooter of yellow colour and this scooter was of the petitioner. She has stated in her statement that she had recorded the number of the scooter in her diary but expressed inability to produce the same on the ground that the diary is lost. Consequently she did not disclose the number of the scooter. Smt. Kundanben admitted in her cross-examination that;
'there are many scooter with yellowish colour at Nasik'.
Not disclosed any identifying marks to identify the scooter of the petitioner. Such evidence is conspicuously absent in the statement recorded by the District Judge or in the statement recorded by the Enquiry Officer. Thus, evidence adduced was perfunctory. According to the learned counsel for the petitioner, in fact, it is a case of no evidence. The findings of the Disciplinary Committee are based on conjectures and surmises and as such did not at all bring home the guilt of the delinquent. Under similar situation. Their Lordships of the Supreme Court in a case of Sawai Singh v. State of Rajasthan 1986 2 CLR 1 observed in para 6 as :
'A reply to the said charge-sheet was submitted by the appellant. He denied the charges levelled against him. By an order dated 4th November, 1965, the Government appointed the Additional Commissioner for departmental enquiry, Rajasthan, Jaipur as an Enquiry Officer to hold the enquiry against the appellant. The Enquiry Officer submitted his report on 27th March, 1967. Perusal of the enquiry report makes perfunctory reading-comparing the evidence of Chaturbhuj and the appellant it is difficult to accept on what basis the enquiry Officer accepted Chaturbhuj's version. The Enquiry Officer did not discuss the inherent improbabilities of the statement of Chaturbhuj which will be noted later'.
The Disciplinary Committee observed that;
'In a case of Department Enquiry the evidence has to be weighed on the basis of preponderance of probabilities and not on the principles applicable in the criminal trials that the charges or allegations be provided beyond reasonable doubt'.
This aspect as also what could be the approach while dealing with the cases involving adverse or penal consequence, has been considered by Their Lordships of the Supreme Court in para 16 of the case cited supra. It is observed as;
'It has been observed by this Court in Surath Chandra Chakravarty v. State of West Bengal : (1971)ILLJ293SC , that charges involving consequences of termination of service must be specific, though a department enquiry is not like a criminal trail as was noted by this Court in the case of State of Andhra Pradesh v. S. Sree Rama Rao, : (1964)IILLJ150SC , and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigation to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation'.
The disciplinary committee in another para admitted that there are omissions and contradictions but those have been brushed aside merely by saying that those are minors. Perusal of Annexure A-the report of the Disciplinary Committee aptly indicate that the Disciplinary Committee has not as signed its own reasons as to why it disagreed with the reasons and findings of the Enquiry Officer. Similarly, the impugned order dated 31-7-1993 issued under the signature of the respondent No. 2, is also silent being devoid of own reasonings to disturb or to disagree with the reasonings of the Enquiry Officer. Similarly neither the Disciplinary Committee nor the dismissing authority discussed the inherent improbabilities in the statements, abnormal conduct of Smt. Kundanben and three legal practitioners, which have been noted above. In that view to the matter, the findings of Disciplinary Committee as also the impugned order cannot be sustained.
14. Late Shri Oka, the learned counsel appearing for the respondent No. 3 - The High Court of Judicature at Bombay, while repelling the submissions made on behalf of the petitioner, submitted that the object of enquiry is plain. It is to enable the Government to hold investigation into the charges framed against the delinquent - the public servant, so that the Government can, in due course, consider the evidence adduced and decide whether the said charges are proved or not The interposition of the enquiry which is held by the duly appointed Enquiry Officer does not alter the true legal position that the charges are framed by the Government and it is the Government which is empowered to impose the punishment on the delinquent public servant. Therefore, it can never be said that the findings recorded by the Enquiry Officer bind the Government which appointed the Enquiry Officer and directs enquiry and as such the Government must act on the basis of the said findings which are final and thereby cannot be reopened. Shri Oak further submitted that the scope of the High Court under Article 226 of the Constitution of India is limited and cannot disturb the findings of facts based on the evidence. The High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all, so also the conclusion is perverse and, therefore suffers from such an obvious and patent error on the face of record. The learned counsel placed reliance on a case Union of India v. H.C. Goel, : (1964)ILLJ38SC .
15. As regards the jurisdiction of this Court under Article 226 of the Constitution of India has been dealt by Their Lordships of the Supreme Court in case of Nagendra Nath Bora & Anr. v. Commissioner of Hills Division and Appeals, : [1958]1SCR1240 , particularly paras 24, 25, 26, 27 and 28 of the Judgment. The observations of Their Lordships of the Supreme Court in para 28 needs to be reproduced :
'The jurisdiction under Article 226 of the Constitution is limited to seeing that the judicial or quasi-judicial Tribunals or administrative bodies exercising quasi-judicial powers, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them. The Act has created its own hierarchy of officers and Appellate authorities, as indicated above, to administer the law. So long as those Authorities function within the letter and spirit of the law, the High Court has no concern with the manner in which those powers have been exercised'.
In a case of The State of Orissa & Anr. v. Murlidhar Jena AIR 1963 S.C. 404, Their Lordships of the Supreme Court has described the role and jurisdiction of the High Court under Article 226 of the Constitution of India while considering the findings of the Tribunal and observed (Gajendragadkar, J.) that;
'It is common ground that in proceedings under Articles 226 and 227, the High Court cannot sit in appeal over the findings recorded by a competent Tribunal in a department enquiry so that if we are satisfied that in the present case the High Court has purported to reappreciate the evidence for itself that would be outside its jurisdiction. It is also common ground that if it is shown that the impugned findings recorded by the Administrative Tribunal are not supported by any evidence, the High Court would be justified in setting aside the said findings.
In a case of State of Andhra Pradesh & Ors. v. S. Sree Rama Rao : (1964)IILLJ150SC , Their Lordships observed :
'In considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, does not apply and even if that rule is not applied, the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, It is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence'.
In a case of Union of India v. H.C. Goel : (1964)ILLJ38SC , Their Lordships observed :
'In dealing with a writ petition filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests, is not supported by any evidence at all. Although the order of dismissal which may be passed against a Government servant found guilty of misconduct can be described as an administrative order, nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence'.
In a case of The State of Madras v. G. Sundaram, : AIR1965SC1103 , Their Lordships expressed views as follows :
'A High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. It cannot consider adequacy of that evidence to sustain the charge'.
In a case of Zora Singh v. Shri J.M. Tandon & Ors. : AIR1971SC1537 , Their Lordship observed :
'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 exercise only a supervisory jurisdiction, and, therefore, does not enter into the question of sufficiency of evidence'.
In a case of State of West Bengal v. Atul Krishna Shaw & Anr. : AIR1990SC2205 while dealing with the jurisdiction and power under Article 136 and 226 of the Constitution, Their Lordships in para 7 observed that;
'If the quasi-judicial Tribunal had appreciated the evidence on record and recorded the finding of fact, those findings are binding on Supreme Court or the High Court. By process of judicial review they cannot appreciate the evidence and record their own findings of fact.'
In a case of State Bank of India & Ors. v. Samarendra Kishore Endow & Anr. 1994 1 CLR 663, Their Lordships described the powers of the High Court, under Article 226 as;
'The power under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment, reaches on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the Court'.
In para 10, Their Lordship further considering earlier precedents quoted as follow :
'In other words, the power of judicial review is meant' to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment, reaches on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the Court. Per Lord Marylebone in Chief Constable v. Evans.
Their Lordships of the Supreme Court have considered the scope of the Departmental Enquiry and Administrative Tribunal and observed; in a case of the Government of Tamil Nadu & Anr. v. A. Rajappandian 1995 1 CLR 167 as;
'The Administrative Tribunal fell into patent error in reappreciating and going into the sufficiency of evidence. It has been authoritatively settled by string of authorities of the Supreme Court that the Administrative Tribunal cannot sit as a Court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by reappreciating the evidence and reaching a finding different than that of the inquiring authority. In such a case, it is not necessary for the Supreme Court to go into the merits of appreciation of evidence by the two authorities as the Administrative Tribunal had no jurisdiction to sit as an appellate authority over the findings of the inquiring authority. Hence, the order of the Administrative Tribunal is set aside and the order dismissing the respondent is upheld'.
16. Late Shri Oka, the learned counsel for the respondent No. 3 further submitted that the finding of affect recorded by Enquiry Officer entrusted with the work of holding the department enquiry into the misconduct of a Government Servant are not binding on the Government. The Government is competent to take a different view on evidence adduced against the Government a servant and proceed on the basis that the conclusions of fact recorded by the enquiry officer were unsound and erroneous. Consequently where the enquiry officer has made a report in favour of the Government servant but the Government taking a contrary view issues a second notice which subsequently results in the dismissal of the Government servant, the action of the Government cannot be said to be in contravention of the constitutional safeguards afforded by Article 311(1) and (2) of the Constitution of India.
To substantiate the above contention, a reliance has been placed on a case of Union of India v. H.C. Goel, : (1964)ILLJ38SC .
This aspect is also dealt with by Their Lordships of the Supreme Court in a case of Railway Board, New Delhi & Anr. v. Niranjan Singh, : (1969)IILLJ743SC , Their Lordships observed as;
'The enquiry committee felt that their evidence cannot be accepted as its fact value as they were not able to name any other person in the group. But the General Manager did not agree with the enquiry accepted their evidence. It was open to the General Manager to do so. He was not bound by the conclusions reached by the enquiry committee. This is not a case where it can be said that the findings of the Disciplinary Authority is not supported by any evidence nor it can be said that no reasonable person could have reached such a finding. Hence, the conclusion reached by the Disciplinary Authority should prevail and the High Court in the exercise of its certiorari jurisdiction could not have interfered with its conclusion'.
17. In view of the principles laid down by Their Lordships of the Supreme Court in the cases cited supra, the High Court under the provisions of Article 226 and 227 of the Constitution of India, not being the Appellate Authority, has no jurisdiction and power to interfere with the findings recorded by the Disciplinary Authority. In order words, can not reappreciate the evidence considered by the Enquiry Officer/Tribunal and/or by the Disciplinary Authority. However, Their Lordships of the Supreme Court further laid down the principles as and when the High Court could invoke the jurisdiction under Articles 226 and 227 of the Constitution of India and is competent of interfere with the findings recorded by the Tribunal in the enquiry proceedings or the Disciplinary Authority/Government in appeal, in the following cases :
(i) If it is shown that the impugned findings recorded by the Administrative Tribunal are not supported by any evidence, the High Court would be justifying in setting aside the said findings, as held in a case of The State of Orissa & Anr. v. Murlidhar Jena AIR 1963 SC 404.
(ii) In a case of State of Andhra Pradesh & Ors. v. S. Sree Rama Rao, : (1964)IILLJ150SC , it is observed that :
'The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion or on similar grounds'. (iii) In a case of Union of India v. H.C. Goel : (1964)ILLJ38SC , Their Lordships observed;
'There can be little doubt that a writ of certiorari, for instance can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence'.
'It is not necessary that in order to attack the order on the ground that it is based on no evidence, mala fide exercise of power by the Government should be alleged. The two infirmities are separate and distinct though conceivably, in some cases both may be present. If it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will issue without further proof of mala fides'.
(iv) In a case of Bhagat Ram v. State of Himachal Pradesh & Ors. : (1983)IILLJ1SC , Their Lordships in para 10 observed that;
'Let us make it abundantly clear that we are not sitting in appeal over the findings of the Enquiry Officer. In a petition under Article 226, the High Court does not function as a Court of appeal over the findings of Disciplinary Authority. But where the finding is utterly perverse, the Court can always interfere with the same'. Their Lordships referred the case of Union of India v. H.C. Goel : (1964)ILLJ38SC (Gajendragadkar, J.) speaking for the Court observed as under :
'It still remains to be considered whether the respondent is not right when the contends that in the circumstances of this case, the conclusion of the Government is bases on no evidence whatever. It is conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2) the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found quality of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasijudicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings which is the basis of his dismissal is based on no evidence'. (iv) In a case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram : [1986]3SCR866 , Their Lordships observed :
'It is well settled that the High Court can set aside or ignore the findings of fact of an appropriate Court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Courts below have come or in other words a finding which was perverse in law. Their Lordships in case of D.N. Banerji v. P.R. Mukherjee, : [1953]4SCR302 laid down that;
'Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention it was not for the High Court under Articles 226 and 227 of the Constitution to interfere'. Further Their Lordships observed;
'It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. (vi) In a case of the State of West Bengal v. Atul Krishna Shaw : AIR1990SC2205 (Per K. Ramaswamy, J.) it is observed that : 'The findings recorded in quasi-judicial proceedings/Tribunal, could be reviewed if the findings are based on no evidence or passed on conjectures or surmises and no reasonable man would on given facts and circumstances come to the conclusion reached by the quasi-judicial authority on the basis of the evidence on record. Certainly the High Court would oversee whether the findings recorded by the authority is based on no evidence or be set with surmises or conjectures.
18. To appreciate the rival submissions made on behalf of the parties, with the assistance of the learned counsel of the parties, we have gone through the Enquiry Report of Enquiry Officer and the order of Disciplinary Committee together with the statements recorded by the District and Sessions Judge, Nasik on 13-8-1991 and 16-8-1991, and the statements recorded by the Enquiry Officer during the enquiry proceedings on 17-10-1992 and the statement of the petitioner recorded on 31-10-1992. Shri Solat, the learned counsel for the petitioner submitted that the findings recorded by the Enquiry Officer are just and proper as the learned Enquiry Officer has discussed the evidence of all the witnesses at length and appreciating the evidence the Enquiry Officer has rightly observed that there was no evidence to connect the petitioner with the visit of two unknown persons and the alleged demand of Rs. 10,000/- made by them. The learned Enquiry Officer marked demeanour of the witness, as also considered the abnormal conduct not only of Smt. Kundanben but Shri Parakh (P.W.3). Shri Gite (P.W.4) both the Government Pleaders and Shri Sathe (P.W.1) the counsel of the complainant Smt. Kundanben, not approaching immediately before the District and Sessions Judge, Nasik for any action or at least to apprise the petitioner about the incident which alleged to have been taken place on 22-10-1989. The learned Enquiry Officer also considered inordinate/unreasonable unexplained delay of disclose of the incident by Shri. Gite who lodged the complaint on 4-5-1990 by sending secret letter to the District and Sessions Judge, Nasik. The District Judge, Nasik recorded the statements of the aforesaid witnesses in the month of August, 1991.
19. The Disciplinary Committee has not considered the omissions and contradictions treating to be minors. Shri Gite (P.W.4) the District Government Pleader, who for the first time sent a secret letter on 4-5-1990 to the District and Sessions Judge, Nasik in his letter, he has referred other incidents and particularised a Regular Civil Suit No. 945 of 1987 and requested for transfer of all the Civil suits where the Government is party from the file of the petitioner. There is no reference of civil suit in which Smt. Kundanben was party. Shri Gite (P.W.4) specifically stated before the Enquiry Officer that;
'He (District Judge) asked me whether I would be giving in writing the information about the complaint, Kundanben had expressed before me and I had replied him in the affirmative. Accordingly, I sent him a confidential letter'.
It is pertinent to note that there is no whisper in the statement of Smt. Kundanben recorded by the District Judge, Nasik on 13-8-1991, as also the statement made before the Enquiry Officer that she has either alone or together with Shri Parakh the Assistant Government Pleader had gone to the Office or Chamber of Shri Gite the Government Pleader, Nasik and narrated the alleged incident. In the secret communication dated 4.5.1991, there is no reference as to the visit of Smt. Kundanben to the office/chamber of Shri. Gite at any time after the alleged incident dated 22-10-1989, till the said confidential letter was sent or thereafter too. The letter dated 4-5-1990 refers the incident occurred in the month of November, 1989.
As there is no evidence of Smt. Kundanben that she had been to the Chamber of Shri Gite (P.W.4) Government Pleader and narrated him the incident, the evidence of Shri Gite cannot be said to be corroborative piece of evidence to the testimony of Smt. Kundanben. In view of the evidence of Smt. Kundanben (P.W.2) and Shri Parakh (P.W.3) Additional Public Prosecutor, the Enquiry Officer has rightly placed no reliance on the evidence of Shri Gite (P.W.4) The District Government Pleader who has loudly stated that Smt. Kundanben had been to his chamber and narrated the incident to him.
The Enquiry Officer has rightly observed that had Shri Gite the District Government Pleader who is a responsible person, been informed by Smt. Kundanben about the demanded by two unknown persons for deciding the case in her favour, he would have definitely taken steps either by taking Smt. Kundanben to the District Judge, Nasik or to the petitioner requesting him not to decide the matter in view of the incident dated 22-10-1989. At least it is expected from such a responsible person to assist the complainant Smt. Kundanben and to maintain the dignity and honour of the post. The petitioner was not the newly transferee to Nasik Court but he was completing three years at Nasik. Shri Gite (P.W.4) has specifically stated before the Enquiry Officer that he appeared before the petitioner in some suits while the petitioner was Civil Judge, Junior Division. At this stage, it needs mention that the petitioner who was working as Civil Judge, Junior Division, till October 1989 was promoted as Civil Judge, Senior Division, and assumed charge in January 1990. Further it needs mention that the petitioner by notification dated 26-4-1990 Gite (P.W.4) the District Government Pleader, vigilant advocate, in the justice delivery process, instead of taking any steps stated that;
'I did not feel it necessary to take the said Kundanben with me to the District Judge. I did not talk to Shri Naik Nimbalkar over the subject matter. As I did not feel it necessary to do anything on my own record, I did not take any step'.
Shri Parakh (P.W.3) Additional Public Prosecutor stated that he advised Smt. Kundanben to lodge complaint before the District Judge. However, it is evident that Shri Parakh whose sister was the friend of Smt. Kundanben has neither taken any independent voluntary step nor extended any assistance to Smt. Kundanben to lodge report with the Police or complaint to District Judge, Nasik. According to Shri Parakh (P.W.3) on 23-10-1989 at about 2.30 p.m. he went to the office of Shri Gite, the District Government Pleader and told him what he had learnt from Kundanben. Some time later, he was called by the District Judge and on enquiry he narrated the incident told by Smt. Kundanben. According to Shri Parakh, the District Judge asked him to give him in writing and he had given him in writing what he knew. No such document is placed on record. Similarly, no evidence has been laid as to what immediate steps or action taken by the District Judge. It is, thus, apparent that there is no evidence to substantiate that either Shri Gite or Shri Parakh had been to District Judge, Nasik to apprise him of the alleged incident. Examination of District Judge by the High Court or Government would have been appropriate to now the reality. In view of the events, no reasonable person can believe their evidence. In case the District Judge had some complaint, he would not have summoned the witness and recorded their statements. Statements came to be recorded after the receipt of the communication from the High Court directing to substantiate the basis for adverse remarks. It is difficult to understand the propriety of recording such statements and under what provisions of law, the statements were recorded by the District Judge. The learned Counsel for the High Court and Government for the State, could not lay their finger on any provision of law to substantiate the action of District and Sessions Judge, Nasik. It means, the learned District and Sessions Judge acted beyond the scope of his jurisdiction. Thus, the action smacks bias. Admittedly, the petitioner was transferred in the month of April-May, 1990. While the District and Sessions Judge, Nasik, was functioning at Nasik, Shri Gite stated that he sent confidential letter as directed by District Judge. Though it is clear from the evidence on record that Shri Gite had no concern, Whatsoever, he danced on the tunes of the District Judge. Taking overall picture of the facts and circumstances of the case, we find considerable force in the saying 'RAJA BOLE, DADHI HALE' [Subordinates always dance on the tunes of higher authorities].
20. The Enquiry Officer has considered the evidence of Smt. Kundanben in detail and considering various circumstances found her intelligent and innovative woven and thereby clever enough to make improvements to suit the situation. Though Smt. Kundanben loudly stated that she noted the number of the scooter of yellow colour in the diary, the same was not produced before the Enquiry Officer. According to Smt. Kundanben, she immediately disclosed the incident to Shri Bhore (P.W.5) and others. According to her, on earlier day i.e., 21-10-1989, two persons had been to her as told by the shop-keepers. Therefore shop-keepers were the material witnesses to substantiate the visit of two unknown persons particularly to corroborates as regards the colour and number of the scooter. However, the said shop-keepers were not examined. Smt. Kundanben has not given other description of the scooter and identifying feature of the unknown persons. According to her, near to her house, there is a police outpost Panchavati in Sardar Chowk and the persons had parked their scooter near the police outpost. She further stated in her statement that one of the two unknown persons was trying to cover the number. Still, according to her, she had seen the number of the scooter. Shri Bhore (P.W.5) has given the distance between the house of Smt. Kundanben and the Police Outpost as 100 to 150 feet, before the Enquiry Officer, Under the circumstances, it is difficult to note the number of the scooter.
Shri Sathe (P.W.1) the counsel defending Smt. Kundanben after hearing about the incident from Smt. Kundanben told her not to pay any attention to such things and attend the Court. Shri Sathe stated before the Enquiry Officer that the petitioner was posted at Nasik for a period of three and half years mostly as Civil Judge, Junior Division, and in later part as Civil Judge, Senior Division. As a Junior Division, he had much work in the Court of petitioner. Similarly, when the petitioner tool over as the Civil Judge, Senior Division, he had also occasions to conduct suits. He conducted suits of landlord and tenants in the Court of petitioner. He worked in the Court of the petitioner, till he was transferred. During this period of three to three and half years, he had no occasion of complain against the petitioner.
If Shri Sathe the Senior Lawyer had even slightest doubt about the honesty and integrity of the petitioner, he would have definitely filed an application for transfer of the case or would have taken other necessary steps. However, he advised Smt. Kundanben not to pay any attention to such things, is a clear indication that he had never suspected the integrity of the petitioner.
21. We feel to record that the future of our Democratic Republic, to a great extent, depends upon our maintenance of justice pure and unsullied. Lawyers are the members of flourished and Honourable Profession. The administrative of justice, according to law, is high duty of the Bench and Bar. It is, therefore, said that 'justice is always the joint venture of the Bench and the Bar and they are both alike trying to find and render justice. This realisation will not only secure justice to their clients but would also facilitate easy flow of justice for all through the system and add credit to their profession. The Bar is, therefore, under the Constitutional obligation, to promote social justice by and through its acts and actions at all levels and in all cases. It must be remembered that : 'We, the people of India, which includes advocates as well, have promised to secure justice to all our clients and to operate the system of administration of justice in such a manner as it does not deny justice to anyone. We must be true to the National Pledge and try to redeem it in our day to day behaviour. If not, it would be only 'teasing illusion and promise of unreality'.
22. A Public Prosecutor for the State is not only the mouthpiece for his client-the State. As an Advocate for the State, he may be ranked as a Minister of Justice equally with the Judge. Thus, he owes allegiance to the higher cause. What could be the object to become a lawyer is nicely depicted by the President John Adams who was a great lawyer in his own time. He advised one to practice law for the purpose of administering justice and making a living afterwards
In the instant case, all the three lawyers, one was representing the case of Smt. Kundanben and other two were the Government Pleaders, said in loud voice that Smt. Kundanben reported the visit of two unknown person demanding Rs. 10,000/- to decide the case in her favour. A demand of gratification by Judge himself or through other agency is a serious and grievous offence. It is social wrong and as such flesh and bold cannot endure. The wrongs do not leave off there where they being and, therefore, immediate action. Some action by way of definite steps would have been appreciable, as it being a step towards eradication of such evils. By bearing wrong, we provoke new one. All the three learned advocates acted contrary to normal behaviour and utterly failed in their legal duties. All the three lawyers have also not enquired into the veracity or truthfulness of the allegation by directing Smt. Kundanben to report the matter of extending their assistance to Smt. Kundanben for lodging report to the Police and thereby to book the culprits. The behaviour of such officers at all time must be transparent, honest and above board. The callous and cold attitude on their part is rally distressing feature. From the evidence of Shri Gite, it is clear that the danced on the tunes of the district Judge, Nasik and sent complaint dated 4-5-1990 and, thus, the wrong was his as he wrongly complained. Their conduct is against the normal behaviour. What is expected from a normal prudent man is depicted below :
'A man does what he must - inspite of personal consequences, in spite of obstacles and dangers and pressures and that is the basis of all human morality.
John F. Kennedy'.
23. Smt. Kundanben stated in her statement that two known persons told her that the opposite party is ready to pay the same amount to the Judge. However, the Judge has given first preference to her. If one party volunteers to pay the amount, normally a corrupt officer except for same special cause, reason or better deal would not refuse and pursue opposite party. No reason or circumstance put forth for adopting such queer mode. Thus, difficult to believe. The reason for levelling such wild allegation is apparent to defame and tarnish the image and honour of the Judicial Officer. In other words, it could be said that it was the pressurising and brow-beating tactics. Thus, it is difficult to accept the version of Smt. Kundanben. No acceptable reasons have been given by the Disciplinary Committee to disagree with the findings recorded by the Enquiry Officer.
24. Considering the totality of the evidence and the sequences of events, the Enquiry Officer rightly opined that Smt. Kundanben is capable to add or improve in her version to suit the demand of the situation. The Enquiry Officer further observed the she is intelligent and innovative woman and, therefore, not accepted her version.
25. The learned counsel for the petitioner has rightly stated that the findings recorded by the Disciplinary Committee are based on either no acceptable evidence, or surmises and conjectures. Not assigned its own reasons been given by the Disciplinary Committee differing from the findings recorded by the Enquiry Officer. The duty to give reasons is a safeguard against arbitrariness and compulsion of disclosure of reasons guarantees consideration by the authority and minimises chances of unconscious infiltration of personal bias or unfairness in the conclusion. Giving reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the Tribunal itself. Therefore, statement of reasons is one of the essentials of justice as observed by Their Lordships in a case of State of West Bengal v. Atul Krishna & Anr. : AIR1990SC2205 in para 7. Their Lordships in para 10 again observed that;
'The appellate authority being final authority on facts is enjoined and incumbent upon it to appreciate the evidence; consider the reasoning of primary authority and assign its own reasons as to why he disagrees with the reasons and findings of the primary authority. Unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasonings or findings recorded by the primary authority'.
While concluding, Their Lordship in para 11 observed as :
'The Assistant Settlement Officer extensively considered the evidence and has given cogent reasons which were neither discussed nor found the be untenable by the appellate authority. Thus, we have no hesitation in coming to the conclusion that the Appellate Tribunal disregarded the material evidence on record, kept it aside, indulged in fishing expedition and crashed under the weight of conjectures and surmises. The appellate order is, therefore, vitiated by manifest and patent error of law apparent on the face of the record'.
26. In a case of Bhagat Raja v. Union of India & Ors. : [1967]3SCR302 while construing the purpose of giving reasons either upholding or rejecting the findings of the Subordinate Authority, Their Lordships observed as :
'The decisions of Tribunals in India are subject to the supervisory powers of the High Court under Article 227 of the Constitution and of appellate powers of Supreme Court under Article 136. It goes without saying that both the High Court and the Supreme Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected', or 'dismissed'. Ordinarily, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of others, adopts the reasoning of the State Government, Supreme Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, Supreme Court in appeal may have to examine the case of novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are goods and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are sufficient to uphold the order of the State Government, Supreme Court in appeal may find it difficult to ascertain which are the grounds which weighted with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a speaking order is called for'.
Their Lordships of the Supreme Court in a case of M/s. Mahabir Prasad Santosh Kumar v. State of U.P. & Ors : [1971]1SCR201 , considering the case of Bhagat Raja v. Union of India, : [1967]3SCR302 cited supra approved the ratio laid down.
Their Lordships of the Supreme Court in the case of Bhagat Raja v. Union of India, and M/s. Mahabir Prasad Santosh Kumar v. State of U.P. cited supra held that even though a statutory provision may not in terms require recording of reasons and communication thereof, it is mandatory for very quasi-judicial authority to record reasons and communicate the same to the affected party. The same view had been reiterated by a Constitution Bench of the Supreme Court in S.N. Mukherjee v. Union of India 1992 (4) SCC 584. In para 39 of the decision, the Honourable Supreme Court has culled out the principle underlying the object of recording of reasons and communication thereof, which has been followed and reproduced in a case of Sukhtej Singh Sidhu v. State of Punjab and Anr. 1994 (6) SLR 730, it is observed that;
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording or reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be defined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi judicial functions irrespective of the effect whether the decision is subject to appeal, revision or judicial review. It may however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extend and nature of the reasons would depend on particular fact and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge'.
In a case of Testeels Ltd., v. N.M. Desai : AIR1970Guj1 (Full Bench presided over by P.N. Bhagwati, J.) it is observed that;
'The administrative authorities having a duty to act judicially cannot, therefore, decide on considerations of policy or expediency. They must decide the matter solely on the facts of the particular case, solely on the material before them and apart from any extraneous considerations by applying pre-existing legal norms of factual situations. Now, the necessity of giving reasons is an important safeguard to ensure observance of the duty to act judicially. It introduces clarity, checks the introduction of extraneous or irrelevant considerations and excludes or at any rate, minimises arbitrariness in the decision making process'.
27. In the instant case, the Enquiry Officer scrutinised and appreciated the evidence in true and correct perspective, held that there is no evidence against the delinquent and thereby delinquent was exonerated of the charge levelled against him. The Disciplinary Committee/Authority has disagreed with the findings and held that the culpability is proved in the matter of demanded of illegal gratification for delivering a favorable judgment. We have discussed the relevant evidence in the proceeding paras. It is clear that the Disciplinary Committee has not considered the material evidence and the explanation submitted by the petitioner delinquent. In fact, favourable material to petitioner had been ignored. The Disciplinary Authority has ignored the fact of unreasonable inadequate unexplained delay on the part of the Shri Gite, Shri Parakh, Shri Sathe and Smt. Kundanben. The findings, therefore, are based on no evidence whatsoever but upon the conjectures and surmises. The learned counsel for the petitioner has rightly submitted that as the petitioner was exonerated by the enquiry officer, before passing the order of disagreement and punishment by the Disciplinary Authority, the petitioner ought to have been accorded an opportunity of hearing. Thus the principles of natural justice has been violated consequently, the impugned order is liable to be declared as void. Somewhat an identical case was before the Punjab and Haryana High Court viz., Jagdish Kumar v. State of Punjab & Anr. (1994 (8) SLR 791. In para 4, it is observed that;
'Even in absence of rules, it is an obligation on the quasi-judicial authority to comply with the minimum requirement of principle of natural justice. Therefore, before the Disciplinary Authority could rely on its disagreement with the report of inquiry Officer and pass an order adverse to the petitioner, it was necessary for it to hear the petitioner. Only an effective and real opportunity of hearing could have enabled the petitioner to convince the disciplinary authority, who made the order of punishment that the finding recorded by the Inquiry Officer was correct. Thus, in passing the order of punishment without giving a personal hearing to the petitioner, the disciplinary authority will be deemed to have violated the principles of natural justice and on that ground its order is liable to be declared as void'.
28. We see considerable force in the submissions made on behalf of the petitioner.
28-A. In the case before us, admittedly there is unreasonable inordinate delay in lodging the complaint by Shri Gite the District Government Pleader who sent a secret letter on 4-5-1990 to the District and Sessions Judge, Nasik though the incident alleged to have been taken place on 22-10-1989. He has not taken any immediate action or steps though the demand of gratification by a Judge is a grievious offence. Though the scooter was parked near the police outpost, Smt. Kundanben did not report the matter to the Police. If she would have reported the matter to the Police at the outpost, both the unknown persons who alleged to have been to her, would have been chased and apprehended and the reality could have been brought to the limelight. Similarly, though Shri Parakh the Assistant Government Pleader and Additional Public Prosecutor, Nasik advised Smt. Kundanben to report the matter to the District Judge, she did not report the matter to the District Judge, Nasik. Shri Parakh - the Additional Public Prosecutor (P.W.3) took it lightly and, therefore, he too did not take any steps. Shri Gite (P.W.4) the District Government Pleader who sent the secret letter dated 4-5-1990 to the District and Sessions Judge, Nasik did not assign any reason or pointed the attending circumstances, which compelled him to write the letter and narrate altogether a different story which is already been discussed in the preceding paras.
The Disciplinary Committee as also punishing authority have lost sight that the Universal phenomenon is that the man is recognised, believed and regarded by his action or reaction in support of his words. Man's behaviour also plays vital and important role in life. Therefore, it is rightly said that don't judge a man by appearance, but by his actions more. In other words, 'no need of words, trust, deeds'. Thus spoke, 'done and said'. Actions speak louder than words. Reminded a proverb :
'A man of words and not of deeds is like a garden full of weeds'.
Longfellow said :
'Deeds are better things than words are, Actions mightier than boasting'.
No doubt, there is no universal yardstick as regards the behaviour of man. But what the man does, not what he feels, thinks or behaves, is a universal yardstick of the behaviour. Actions are more precious than words.
In the instant case, two strangers demanded gratification for the Judge. It was a social wrong and as such offence against society. A man of flesh and blood cannot endure. Some action definitely expected rather than silent spectators, from two Government Pleaders and one Senior Advocate who represented the party. The conduct keeping silent is not compatible to usual natural behaviour. As such keeping silence, taking no prompt action by the Advocates and Kundanben deserves condemnation.
The Enquiry officer has rightly observed that even if the fact of visiting of two unknown persons is accepted, there being no evidence whatsoever to connect the demand with the petitioner, failed to establish the charges. It is a known fact that the Court premises are flooded with the touts, well wishers of the litigants, village barristers and the persons interested to earn easy money by adopting different ways and means. If such persons pay visit to any of the litigant and demand money representing the Presiding Officer, without establishing any nexus or relations whatsoever with the Judicial Officer, such rumour or evidence if believed, life and honour of the Judicial Officer would not be safe.
The Courts have, be and large, enjoyed high prestige and command great respect of the people. Judicial Officers must be protected from unscrupulous litigants and advocates, who used to indulge or disturb the proper performance of their functions.
The gravity of the incident dictates spontaneous disclosure and to register the report with the Police so as to apprehend or arrest the culprits who alleged to have been visited the house of Smt. Kundanben, as also to report to the District and Sessions Judge, Nasik, or to file transfer application with stay of the proceedings. These actions could be said essential propitious steps. The delayed disclosure needs supportable and acceptable evidence. The allegations wild and unfounded, incidentally, belated. In absence of any evidence to connect the petitioner with the alleged culprits, if given weight would prove disastrous and attract dangerous consequences, seriously jeopardising honour and career if each and every judicial Officer who have high esteem of the human civilisation.
29. The disturbing facts in the instant case is that the petitioner became the victim of enquiry followed by dismissal and consequently suffered causing mental and physical torture due to his protest launched against the adverse remarks communicated to him by the District and Sessions Judge, Nasik. From the facts and circumstances, it is crystal clear that if he would not have raised protest against adverse remarks, there would not have been either recording of the statement by the District Judge after the communication by the respondent No. 3 - High Court to substantiate adverse remarks followed by disciplinary proceedings. It means the action of this petitioner could be said that 'he has invited trouble himself'. 'AA BAIL MUJHE MAAR'. If raising objection to the adverse remarks results in the dismissal of the service, fishing evidence against the Judicial Officer/Officers, no Judicial Officer would dare to raise protest in future.
30. We have given our anxious consideration to the respective contentions and considered the evidence on record once again, reproduced above. Thus, we have no hesitation in coming to the conclusion that the Disciplinary Committee disregarded the material evidence on record, kept it aside, indulged in fishing expedition and crashed under the weight of conjectures and surmise. The findings of the Disciplinary Committee and the consequent order of dismissal is, therefore, vitiated by manifest and patent error of law apparent on the face of the record.
31. In this case, what is challenged before us is the decision taken by the High Court-Respondent No. 2 on its administrative side and sitting in the Bench as we are, we are called upon to adjudicate over the correctness of it, having regards to the constitutional provisions and various legal aspects. Needless to say, such task cannot but unfortunately tickle us for some moments. However, there cannot by any matter of doubt that the judicial has to be performed giving no scope to any one or any score that the matter has not been fairly and properly considered. In the situation as we are placed, we are not unaware that the operational fields for administrative actions and judicial decisions are entirely different having different contents and required to be dealt with accordingly. The constitutional duty casts upon us having regard to all the facts and circumstances of the case and legal position; leaves no scope for us but to conclude that the impugned order cannot be sustained.
In terms of the findings on facts based on evidence, we do not feel it necessary to discus other submissions.
32. In the result, the instant petition is allowed. Impugned order of dismissal dated 31-7-1993 is quashed and set aside. The respondents are direct to treat the petitioner as continuing in service and is entitled to all the privileges, pay and allowances which were permissible and payable to him under the law. Rule made absolute. No order as to costs.
L.O.
Mr. Thakur appearing for respondent No. 3 orally prayed for leave to appeal to the Supreme Court. We do not see any reason to refuse the same. Leave is granted. On the oral request of Mr. Thakur appearing for respondent No. 3, the operation of the order is deferred for a period of six weeks.
33. Petition allowed.