Shaik Shafi Vs. State of Karnataka - Court Judgment

Excerpt:
- section 3 & notaries rules, 1956, rule 13(12)(b): [ashok b. hinchigeri, j] power to appoint notaries - petitioner a notary - during course of notarisation on an affidavit signature of deponent not put on it government removed petitioner from post of notary- held, however, as noticed the petitioner has honestly owned up his mistakes. the confession is made at the earliest point of time. there has been no charges of allegations of corruption, fabrication of documents or of moral turpitude on the part of the petitioner. considering all these aspects of the matter, the court finds that the punishment of his removal from the post of notary is disproportionately high. impugned order was set aside and government was asked to pass a fresh and minor punishment order within an outer limit of one month.orderashok b. hinchigeri, j.1. although the matter is listed for preliminary hearing in 'b' group, the matter is taken up for final disposal with the consent of both the learned advocates.2. the facts of the case in brief are that the petitioner is appointed as a notary on 18-10-2001. on 24-11-2008, he attested and notarised the affidavit of one smt. sandya, an applicant for the issuance of the passport. to his surprise, the passport officer found that the said affidavit did not contain the signature of the deponent, smt. sandya. on 25-11-2008, the regional passport officer brought it to the notice of the law secretary. in turn, the law department vide its letter dated 11-12-2008 put the petitioner on show-cause notice giving him 15 days time to offer his explanation. the petitioner submitted his reply dated 22-12-2008. its sum and substance is that the said smt. sandya was known to him, that he had explained the contents of the affidavit to her and thereafter asked her to sign the affidavit in his presence; meanwhile the said lady appears to have got an urgent mobile phone call and she took the papers out. the things slipped out of his mind; he forgot that she was required to sign the affidavit. she submitted the affidavit in the incomplete form. smt. sandya also submitted the letter dated 19-12-2008 to the passport officer stating that the mistake is unintentional and bona fide. she has owned up the mistake by taking everything on herself.3. these developments have ultimately culminated in the removal of the petitioner from the post of notary vide government order dated 6-2-2009 (annexure-g). it is this order which is challenged in this petition.4. sri sadiq n. goodwale, the learned counsel for the petitioner submits that the enquiry has not preceded the removal order. he submits that the holding of the enquiry is mandatory as per rule 13 of the notaries rules, 1956. he therefore prays for the quashing of the impugned order.5. sri r.k. hatti, the learned government pleader for the respondent submits that the petitioner has admitted his guilt. in view of his clear and unequivocal admission of his negligence, there is no need to hold the enquiry. sri hatti further submits that if the petitioner were to deny the charges against him, the enquiry would not have been dispensed with.6. the submissions of the learned counsel have received my anxious consideration. few things which cannot be ignored are that there are no allegations of corruption or fabrications of documents against the petitioner. the petitioner has not denied the allegations for the sake of denying. he fairly and honestly confesses his mistake. he has also undertaken not to repeat the same in future by becoming alert and careful. he, at the earliest point of time sought the pardon of the authorities for the mistake and negligence.7. the version of the lady in question is also supportive of what the petitioner has pleaded before the authorities.8. in view of the admissions of his mistake and negligence, the question of holding the enquiry would not arise at all. it is trite that in respect of admitted misconduct, no enquiry need be held. i therefore, do not propose to interfere in the matter on the ground of the enquiry not being held.9. however, as noticed by this court, the petitioner has honestly owned up his mistakes. the confession is made at the earliest point of time. there has been no charges or allegations of corruption, fabrication of documents or of moral turpitude on the part of the petitioner. the version of the petitioner is fully supported and corroborated by the version of the disinterested party, namely, smt. sandya. considering all these aspects of the matter, the court finds that the punishment of his removal from the post of notary is disproportionately high.10. rule 13(12)(b) of the notaries rules, 1956 provides for three kinds of punishment depending upon the nature and gravity of the misconduct. it reads as follows.:if after considering the report of the competent authority, the appropriate government is of the opinion that action should be taken against the notary the appropriate government may make an order.:(i) cancelling the certificate of practice and perpetually debarring the notary from practice; or(ii) suspending him from practice for a specified period; or(iii) letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved.11. it is also desirable that the past, conduct of the petitioner be taken into account. the counter filed on behalf of the respondent does not state that the petitioner committed any aberration, violation or misconduct in the past. taking the aforesaid factors into meaningful consideration, this court has no hesitation in holding that the punishment of removal is on the higher side. therefore the impugned order is liable to be quashed and accordingly it is quashed. this court reserves the liberty to the respondent to impose any punishment on the petitioner but less than the punishment of removal. whether he is to be let off with the warning or whether his notaryship to be suspended for a couple of months, etc., is something which, falls within the province of the government. i direct the government to take appropriate decision in the matter by imposing any punishment but other than the removal.12. at this juncture, sri sadiq n. goodwale, the learned counsel for the petitioner submits that the removal order is passed about four months ago. not permitting him to do the notary work for the last four months is itself the punishment. though it appears to be a reasonable submission but ultimately it is for the government to take a decision in the matter.13. the respondent shall pass the fresh and minor punishment order within an outer limit of one month from the date of issuance of the certified copy of today's order. it is made clear that if no fresh orders are passed within the said time frame, it has to be taken that the government is not passing the order. that is, the petitioner may resume his notaryship after the expiry of the said time frame and the non-passing of the fresh order by the government thereof.14. accordingly this petition is allowed. no order as to costs.

Judgment:
ORDER

Ashok B. Hinchigeri, J.

1. Although the matter is listed for preliminary hearing in 'B' group, the matter is taken up for final disposal with the consent of both the learned Advocates.

2. The facts of the case in brief are that the petitioner is appointed as a Notary on 18-10-2001. On 24-11-2008, he attested and notarised the affidavit of one Smt. Sandya, an applicant for the issuance of the passport. To his surprise, the Passport Officer found that the said affidavit did not contain the signature of the deponent, Smt. Sandya. On 25-11-2008, the Regional Passport Officer brought it to the notice of the Law Secretary. In turn, the Law Department vide its letter dated 11-12-2008 put the petitioner on show-cause notice giving him 15 days time to offer his explanation. The petitioner submitted his reply dated 22-12-2008. Its sum and substance is that the said Smt. Sandya was known to him, that he had explained the contents of the affidavit to her and thereafter asked her to sign the affidavit in his presence; meanwhile the said lady appears to have got an urgent mobile phone call and she took the papers out. The things slipped out of his mind; he forgot that she was required to sign the affidavit. She submitted the affidavit in the incomplete form. Smt. Sandya also submitted the letter dated 19-12-2008 to the Passport Officer stating that the mistake is unintentional and bona fide. She has owned up the mistake by taking everything on herself.

3. These developments have ultimately culminated in the removal of the petitioner from the post of notary vide government order dated 6-2-2009 (Annexure-G). It is this order which is challenged in this petition.

4. Sri Sadiq N. Goodwale, the learned Counsel for the petitioner submits that the enquiry has not preceded the removal order. He submits that the holding of the enquiry is mandatory as per Rule 13 of the Notaries Rules, 1956. He therefore prays for the quashing of the impugned order.

5. Sri R.K. Hatti, the learned Government Pleader for the respondent submits that the petitioner has admitted his guilt. In view of his clear and unequivocal admission of his negligence, there is no need to hold the enquiry. Sri Hatti further submits that if the petitioner were to deny the charges against him, the enquiry would not have been dispensed with.

6. The submissions of the learned Counsel have received my anxious consideration. Few things which cannot be ignored are that there are no allegations of corruption or fabrications of documents against the petitioner. The petitioner has not denied the allegations for the sake of denying. He fairly and honestly confesses his mistake. He has also undertaken not to repeat the same in future by becoming alert and careful. He, at the earliest point of time sought the pardon of the authorities for the mistake and negligence.

7. The version of the lady in question is also supportive of what the petitioner has pleaded before the authorities.

8. In view of the admissions of his mistake and negligence, the question of holding the enquiry would not arise at all. It is trite that in respect of admitted misconduct, no enquiry need be held. I therefore, do not propose to interfere in the matter on the ground of the enquiry not being held.

9. However, as noticed by this Court, the petitioner has honestly owned up his mistakes. The confession is made at the earliest point of time. There has been no charges or allegations of corruption, fabrication of documents or of moral turpitude on the part of the petitioner. The version of the petitioner is fully supported and corroborated by the version of the disinterested party, namely, Smt. Sandya. Considering all these aspects of the matter, the Court finds that the punishment of his removal from the post of notary is disproportionately high.

10. Rule 13(12)(b) of the Notaries Rules, 1956 provides for three kinds of punishment depending upon the nature and gravity of the misconduct. It reads as follows.:

If after considering the report of the Competent Authority, the appropriate Government is of the opinion that action should be taken against the notary the appropriate Government may make an order.:

(i) cancelling the certificate of practice and perpetually debarring the notary from practice; or

(ii) suspending him from practice for a specified period; or

(iii) letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved.

11. It is also desirable that the past, conduct of the petitioner be taken into account. The counter filed on behalf of the respondent does not state that the petitioner committed any aberration, violation or misconduct in the past. Taking the aforesaid factors into meaningful consideration, this Court has no hesitation in holding that the punishment of removal is on the higher side. Therefore the impugned order is liable to be quashed and accordingly it is quashed. This Court reserves the liberty to the respondent to impose any punishment on the petitioner but less than the punishment of removal. Whether he is to be let off with the warning or whether his notaryship to be suspended for a couple of months, etc., is something which, falls within the province of the Government. I direct the Government to take appropriate decision in the matter by imposing any punishment but other than the removal.

12. At this juncture, Sri Sadiq N. Goodwale, the learned Counsel for the petitioner submits that the removal order is passed about four months ago. Not permitting him to do the notary work for the last four months is itself the punishment. Though it appears to be a reasonable submission but ultimately it is for the Government to take a decision in the matter.

13. The respondent shall pass the fresh and minor punishment order within an outer limit of one month from the date of issuance of the certified copy of today's order. It is made clear that if no fresh orders are passed within the said time frame, it has to be taken that the Government is not passing the order. That is, the petitioner may resume his notaryship after the expiry of the said time frame and the non-passing of the fresh order by the Government thereof.

14. Accordingly this petition is allowed. No order as to costs.