Rajasthan High Court - Jaipur
Sukhraj Singh vs The High Court Of Judicature For ... on 20 February, 1988
Equivalent citations: 1988(2)WLN203
Author: Narendra Mohan Kasliwal
Bench: Narendra Mohan Kasliwal
JUDGMENT
1. This petition arises under extraordinary circumstances and is based on allegations of deep intricacies suspected rivalries, intolerance of disloyalty on jejure affairs, at the highest elter of judicial functionaries in the State. It contains allegations as to how the Registrar of High Court appointed by one Chief Justice becomes an eye sore of other judges with whom he does not toe in line or does not fulfil their wishes.
2. The case of the petitioner is that he was a practising lawyer at Jodhpur when he was offered an appointment to the Rajasthan Higher Judicial Service and he joined on November 21, 1977 as Additional District & Sessions Judge, Udaipur. He was confirmed in the month of November, 1979 after the completion of probation period. He was appointed as Registrar of Rajasthan High Court in the month of November, 1983 by the then Chief Justice Shri P.K. Benerjee. Shri P.K. Banerjee retired on September 30, 1985 and the petitioner remained posted as Registrar until October 10, 1985.
3. The petitioner has further alleged that from a perusal of his Annual Confidential Reports it would be revealed that he was an officer of outstanding ability and unquestionable integrity. How ever, to his surprise he was served with a communication dated August 16, 1986 whereby certain adverse remarks for the year 1985 were communicated to him. Against this communication dated August 16, 1986 the petitioner submitted a representation dated September 1, 1986 vide Ex. 1. While the said representation was, pending the petitioner was served with a memorandum dated January 27, 1987, issued under the signatures of Shri G.M. Lodha, as the disciplinary authority proposing an inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (here in after referred to as 'the Disciplinary Rules') on the charges of allegations enclosed therewith. A copy of the memorandum dated January 27, 1987, along with the statement of charges and statement of allegations has been submitted & marked as Ex.2 along with enclosures 1 and 2. The petitioner thereupon submitted an application dated February 6, 1987 (Ex. 3) seeking permission to inspect certain records. The petitioner inspected the record on March 24, 1987, and thereafter submitted an application dated April 3, 1987 (Ex. 4) before the Disciplinary authority mentioning therein that the records asked for inspection by the petitioner had not been made available in original and as such the original documents may be made available for inspection and photostat copies of such documents may be given to the petitioner. Despite this the original documents were not made available for inspection and the petitioner moved another application on April 22, 1987 (Ex. 5) requesting therein that it may be recorded that the charges fail and inquiry be dropped. Along with this application (Ex. 5) the petitioner had also enclosed the photostat copy of the complaint which had been filed against him and which contained the following order passed by the then Chief Justice Shri P.K. Benerjee on November 23, 1984:
The complaints are all false and preposterous. The Registrar Bajwa is very honest and his integrity is unquestionable. No inquiry need be made. Reply in these lines may be sent so the Government.
Sd/- P.K. Banerjee 23-11-1984
4. The petitioner further alleged that a photostat copy of office note dated April 8, 1985 on which the post facto permission to sell the house had been granted to the petitioner by the then Chief Justice Shri P.K. Banerjee was also enclosed with the application dated April 22, 1987. The office note dated April 8, 1985 along with the order passed there on by the Chief Justice P.K. Banerjee has been reproduced as under:
Before my entering into service, my wife Mrs. Barinder Kaur Bajwa owned a house, "BAJWA BHAWAN" located at 12 Jalam Vilas Scheme, B Road, Paota, Jodhpur. We decided to sell this house to Shri Muni Lal Garg Advocate Jodhpur. In consonance with conduct Rules I informed, in writing to the then Hon'ble Chief Justice Shri C. Honniah about our decision to sell the house. It was done in the month of August, 1978. His lordship permitted me to go ahead with the sale transaction. The permission was accorded at Udaipur during his Lordship's visit there at. His Lordship had passed on the papers to His Private Secretary. To my dismay, the concerned papers are not available in the concerned file. Lest I should be put to some trouble lateron, it is requested that once again permission (post facto) to sell the above mentioned house be given. It is made clear that I have had no official dealings with Mr. Muni Lal Garg, Advocate. Submitted.
Sd/- S.R. Bajwa 8-4-1985 Hon'ble C.J.
Post facto permission granted.
Sd/- Pradyut Banerjee 8-4-1985 It was further alleged that as a corroborative fact while filing the annual property statement for the year 1978 the petitioner had specifically mentioned the fact of obtaining prior permission from the High Court regarding the sale of the house in question.
5 It was further alleged that on April 22, 1987, the presenting officer on behalf of the High Court had stated before the Disciplinary Authority that both the above documents were not traceable in the records of the High Court and as such the same cannot be made available for inspection. The petitioner in these circumstances, requested the disciplinary authority to record a finding with regard to the failure of the charges and to drop the inquiry. The Disciplinary Authority, however, desired the petitioner to file the reply to the charges and to raise such legal objections in the reply. The petitioner then filed a reply to the charges along with preliminary objections on April 5 1987 vide Ex 6. The Disciplinary Authority did not consider and did not pass any order on the preliminary objections taken by the petitioner in the reply and on the contrary an order was passed for proceeding with the inquiry and case was posted for recording the plea of the petitioner on April 13 1987. Thereafter the plea of denial of the petitioner was recorded on May, 13, 1987 and the proceedings were posted to June 29, 1987 for admission denial of documents and further proceedings. The petitioner in para 7 of the petition has reproduced the orders of the disciplinary authority dated May 5, 1987 and May 13, 1987 in extenso.
6 It is alleged by the petitioner that the presenting officer on behalf of the High Court took an absolutely unfair and unreasonable stand that the two documents purporting to be the orders of the then Chief Justice were not available in Registry and required the petitioner to be called upon to prove them Not only that the Presenting Officer further expressed his inability to accept the genuineness of the two documents filed by the petitioner unless the original were made available and proved. Under these circumstances, when the Disciplinary Authority also in his order dated May 5, 1987 took the view that after consideration of reply read with charges and material on record further proceedings were warranted, the petitioner was left with no option but to file the affidavit of Shri P.K. Banerjee to prove the genuineness of the two orders passed by him. The petitioner has filed an affidavit of Shri P.K. Banerjee along with two enclosures.
7. It has been further alleged that during the course of inspection of record the petitioner found that the statement of Shri Muni Lal Garg was recorded with regard to charge No. 1 and two witnesses namely Gunwant Lal and Mishri Lal Gupta were recorded Copies of the statements of the above witnesses have been filed and marked as Exs. 8, 9, and 10 respectively. According to the petitioner the perusal of these statements would show that Shri Munni Lal Garg did not utter a single word against the petitioner in support of charge No. 1 and he only narrated the factum of purchase. Thus, there was no evidence to sustain the charge of selling the house without prior permission. As regards the other witnesses with regard to charge No. 2 it has been submitted by the petitioner that besides inherent contradictions, improbabilities and the unnatural conduct, all that has been said by them is hear-say evidence. Thus except hear-say evidence there was no direct, indirect or even circumstantial evidence to support charge No. 2 against the petitioner.
8. In paras Nos. 9, 10 and 11 the petitioner has alleged certain facts against Justice D.P. Gupta and Justice S K. Mal Lodha to prove malice for initiating the present disciplinary proceedings. The allegations of malice and ill will have been denied by D.P. Gupta and S.K. Mal Lodha, JJ. by filing their counter affidavits. We do not consider it proper nor necessary to record any finding with regard to the allegations of malice or ill will alleged by the petitioner as in our view the case can be disposed of on other grounds which we shall deal presently.
9. The case of the petitioner is that it is a matter of record that the complaint which has been made the bedrock for initiation of this inquiry had been considered by the then Chief Justice Shri P.K. Banerjee and he had passed specific orders that the complaint was false and preposterous and no inquiry was needed. When such order had already been passed by the Chief Justice Shri P.K. Banerjee it was not open for the successor Chief Justice Shri D.P. Gupta to ignore the order passed by his predecessor or to sit in judgment over the order passed by his predecessor. Similarly, when post facto sanction had already been accorded by the then Chief Justice, Shri P.K. Banerjee the successor Chief Justice had no jurisdiction to initiate the inquiry again. It has been further alleged that requisite permission had already been taken as back as in August, 1978 at the time of the then Chief Justice Shri C. Honniah on his visit to Udaipur by moving an application in writing before him. This fact stood corroborated by the office note dated April 8, 1985 which was submitted by the petitioner before the then Chief Justice Shri P.K. Banerjee. The sale was effected through two sale-deeds executed and registered on October 8, 1982 and the third sale deed executed on November 8, 1982 and registered on January 7, 1983. All these dates were subsequent to August, 1978 and in any case Shri P.K. Banerjee the then Chief Justice had granted post facto permission on April 8, 1985. It has thus been alleged that there was no material or justification to take any further proceedings with regard to Charge No. 1. The only witness examined during the course of preliminary inquiry in support of this charge was Shri M.L. Garg, Advocate, who did not say a single word about not taking the prior permission by the petitioner. As regard second charge it has been alleged that it related to an allegation that accused Heera Lal and Ganpat Lal were acquitted in consideration of an illegal gratification of Rule 1,00,000/- taken by the petitioner. Further allegation is that the revision petition filed by the complainant for handing over gold to him was also disposed on account of illegal gratification taken by the petitioner. It has been submitted by the petitioner that above allegations are total tissue of lies. The gold was of course a subject matter of criminal charges in the case but at the time of decision of the revision as well as the appeal the gold was under the custody and control of the Central Customs Authority and the petitioner was not in a position to pass any orders with regard to handing over of the gold to either of the parties and hence the allegation that acquittal and handing over of the gold to accused appellants Heera Lal and Ganpat Lal by taking illegal gratification was totally false and untrue. The acquittal as well as the dismissal of the revision petition was ordered on merits in exercise of and due discharge of powers and duties of the petitioner as Sessions Judge and both these matters are sub-judice before the Hon'ble High Court. It has been further alleged in this regard by the petitioner that the allegations of this charge are based on a pseudonymous complaint which bears certain scribbling simulating signatures. The identity and where abouts of not a single signatory can be made out. The author of this complaint has been shown public 'member of bar, Jaipur, Kota and Jodhpur'. Such complaint can be managed and filed against any judicial Officer In para 1 of the complaint it has been alleged that the petitioner had taken the few lacs and that the intermediary in the transaction was Mr. C.D. Deval a very defamed RAS Officer. The petitioner during the course of inspection of records found that none of the two witnesses, who have been examined for this charge have said a single word about the alleged intermediary Shri C.D. Deval and instead of few lacs, the allegation is for one lac. A perusal of the statements of Mishri Lal and Gunwant Lal examined in preliminary inquiry would show that their version is not only unnatural but wholly unbelievable and is not at all compatible with the conduct of a normal person They have vaguely stated that some lawyers used to come from Jodhpur. What ever depositions have been made by these persons are not based on their own knowledge and is based on merely hearsay. Thus, even from the perusal of the statements of these two witnesses no case at all is made out for holding any inquiry for charge No. 2. It has thus been alleged by the petitioner that it was a case of no evidence at all and whatever material has been brought on record stands controverted by the two documents and the orders passed by the then Chief Justice Shri P.K. Banerjee. It has been further alleged that the petitioner had raised preliminary objections before the Disciplinary Authority along with the reply and it was the duty of the learned Disciplinary Authority to consider and decide the preliminary objections on merits before giving a direction to proceed with the inquiry on merits. Reliance in this regard has been placed on Rule 16(4) of the Disciplinary Rules. It has been submitted that the only mention by the learned Disciplinary Authority in his order dated May 5, 1987 that "the consideration of the reply read with the charges and material on record warrant further consideration" is no consideration of the preliminary objections raised by the petitioner It has been further alleged that the genuineness of the 2 documents placed on record by the petitioner was beyond doubt and there was no lawful justification for not acting upon the photostat copies produced by the petitioner especially when the Registry was relying on an unsigned typed copy of the complaint, the source and origin of which was not known.
10. The High Court and the State of Rajasthan have filed a reply to the writ petition In the reply it has been submitted that so far as the representation against adverse entry in the Annual confidential Report is concerned, the representation of the petitioner is under consideration before the competent authority and it has nothing to do with the initiation of inquiry under Rule 16 of the Disciplinary Rules. It has been further submitted that by an order of the present Chief Justice Mr. J.S. Verma dated October 21, 1986 disciplinary inquiry has been held and Hon'ble G.M. Lodha, J. has been appointed as the disciplinary authority. As regards inspection of the original complaint alleged to have been sent by the law Department of the State of Rajasthan vide No. 3964 dated July 16, 1984, it has been submitted that no such complaint appears to have been received in the High Court. The original complaint against the petitioner was sent by Shri Ahmed Bux Sindhi, the then Law Minister of Rajasthan to Chief Justice Shri P.K. Banerjee vide D.O. letter No. F. 19(ii) Judl. 77 dated August 28, 1984, the copy of which was retained with respondent No. 2 and the same has been enclosed with the reply and market as Ex. R 1-2/1. As no reply to this letter was received from the High Court, another letter No. F. 19(11) Judl. 77, dated January 1, 1986, was sent by Deputy Secretary Judicial to Shri S. Rai, the then Registrar, Rajasthan High Court requesting the High Court to make complete inquiry into the matter and inform the Govt. about action taken early, as the Prime Minister Secretariat was pressing hard about the same. The Deputy Secretary (Judicial) sent another letter dated January 7, 1986 to the Registrar, Rajasthan High Court along with the copy of the complaint against Shri Bajwa addressed to Mrs. Indra Gandhi, the Prime Minister of India. Copies of letters dt. 1-1-1986 (along with copy of complaint) have been enclosed and marked as Exs. R 2/2 and 3 respectively. It has been further submitted that the usual practice on receipt of the complaint against a judicial officer is that it is marked to the Registrar or to the Registrar (Vigilance) by Hon'ble the Chief Justice. If complaint is marked to the Registrar, then it is sent to the confidential section where an entry is made about its receipt and then the same is delivered to the Vigilance cell where also it is entered in the receipt register. If the complaint is marked to the Registrar (Vigilance) then also it is entered in the receipt register maintained in the Vigilance cell. Letter dated August 28 1984 sent by the law Minister along with the complaint has neither been entered in the receipt register maintained in the confidential section and the Vigilance cell nor it has been dealt within the office. Thus, when the original complaint was not available in the record of the High Court, it was not possible tollmake it available for inspection to the petitioner. Similarly, the usual practice for obtaining permission is that such an application is dealt within the office and orders passed thereon are communicated to the applicant. The respondents in reply in support of the above practice have cited few instances of seeking permission by the petitioner and have enclosed documents R1-2/4 to R1-2/11. It has been further alleged that office note dated April8, 1985 is not on record of the High Court and record of the High Court does not show that the orders about the expost facto permission to sell house were communicated to the petitioner through any letter. Hence no such note was available in the record of the High Court the same could not have been made available to the petitioner for inspection. The note dated April 8, 1985, is not an office note but a note prepared by the petitioner himself. It has been further alleged that in case any order was passed by Hon'ble the Chief Justice P.K. Benerjee on November 23, 1984, on the complaint then in the usual course the reply to the letter of the Law Minister have been sent in compliance of the order of Chief Justice Banerjee. The record of the respondents does not show that in compliance of the order alleged to have been passed by Chief Justice Banerjee and reply was sent by the High Court to the Law Minister. It is for the petitioner to disclose the source as to from where he got the photostat copies. Certain anomalies have been alleged even in the affidavit of ex-Chief Justice P.K. Banerjee filed by the petitioner and it is stated that the said affidavit does not represent the correct facts. It has been further alleged that the contention of the petitioner that the Disciplinary authority did not consider the reply and did not pass order on preliminary objections is wholly incorrect. The order of the disciplinary authority dated May 5, 1987 clearly shows that the petitioner was heard in respect of his preliminary objections as well as the reply submitted by him. After hearing him and after considering the objections, the reply and other material on record, the disciplinary authority held that further proceedings were warranted. Thereafter, May 13, 1987 was fixed for recording the plea of the petitioner and then the inquiry was adjourned to June 22, 1987 for admission/denial of the documents and further proceedings. The Presenting Officer had rightly contended that original documents were not available and the burden lay upon the petitioner to prove that the orders as alleged by the petitioner on the complaint and note dated April 8, 1985, were passed by Hon'ble the Chief Justice. It was further submitted in the reply that ascertain of the petitioner that he was granted permission to sell the house by Hon'ble the Chief Justice Shri C. Honniah in the month of August, 1978 is not established from any documentary evidence. No such order is there in the record of the respondents. The petitioner's contention that he obtained permission to sell the house in August 1978 is not correct. A government servant while seeking permission to sell immovable property is required to disclose the name of the purchaser and the price for which the property was being sold. How the petitioner in the year 1978 could know that in the Year 1982 to whom the property will be sold and for what price. The annual property statement for the Year 1978 was filed by the petitioner in the Year 1980, the copy of which has been enclosed and marked as Ex. R-12/16. There is no mention in this statement that permission to sell the house was obtained in August, 1978.
11. It has been further submitted in the reply that so far as the ascertaining of the petitioner on merit of the statements of Munni Lal Garg Ex. 8; Gunwantlal Ex. 9; & Mishri Gupta Ex. 10; are concerned, no comments need be made by the answering respondents at this stage. These statements recorded during the course of preliminary inquiry have been considered by the disciplinary authority. The disciplinary authority had taken into consideration all the objections a submitted by the petitioner along with his reply and has after due application of mind ordered that further proceedings were warranted in the matter of charges levelled against the petitioner. The allegations of malice or ill-will made by the petitioner in paragraphs 9 to 11 have been denied as vague, incorrect and baseless.
12. It has been further alleged that the inquiry has been initiated against the petitioner by the order of the Chief Justice after considering the report of preliminary inquiry. The Disciplinary authority has given full opportunity of defence to the petitioner, and he will be, entitled to this opportunity during further inquiry. At this stage of the inquiry the prayer of the petitioner for quashing of the inquiry proceedings is clearly pre-mature and misconceived. There is no warrant for the petitioner's prayer that the Hon'ble Court should go into the merits of the charges at this stage and substitute its own opinion for the opinion formed Hon'ble by the Chief Justice for initiation of inquiry.
13. The petitioner filed a rejoinder to the reply filed on behalf of respondents Nos. 1 and 2. It has been alleged that in normal course as soon as the letter dated January 1, 1986 (Annexure R 12/2) was received by the High Court, the respondents Nos. 1 & 3 should have enquired about the D.O. Letter dated August 28, 1984, and the original complaint of which reference was made in this document Annexure R 12/2. It is further alleged that it appeared that no such effort was made and within a week's time thereafter another letter dt. January 7, 1986, was sent by the Judicial Department and along with this letter a copy of the complaint, which is said to have been retained by the respondent No. 2 was sent. circumstances clearly indicated that letters dated 1-1-1986 & 7-1-1986 were managed to be sent from the Judicial officer under the control of the respondents Nos. 1 and 3, so that the matter could be initiated against the petitioner. the petitioner had strong reasons to believe that the original complaint which had been duly received by the Chief Justice along with D.O. Letter dated August28, 1984 on which the then Chief Justice Shri P.K. Benerjee had passed the order on November 23,1984 was done away with and therefore, instead of asking about original complaint and the letter dated August 28, 1984, the letter dated January 1, 1986 & January 7, 1986 were managed and in this manner a copy of the complaint was procured with a motive to initiate the inquiry against the petitioner. In these two letters dated January 1, 1986 and January 7, 1986 it has been mentioned that Prime Minister's Sachivalaya was pressing hard but no material what so ever has been placed on record to show as to how and in what manner the matter was being pressed by the Prime Minister;s Secretariat. Even otherwise it per se looked improbable that the Prime Minister's Secretariat did not press this matter for a period of about 16-17 months and suddenly the pressure came at the end of the Year 1985 when the petitioner had already been made to relinquish the office of Rajasthan by the respondent No. 3 on October 10, 1985 immediately after his taking over as Acting Chief Justice. It has been further alleged in the rejoinder that according to the reply of the respondents Nos. 1 and 2, the respondent No. 5, who is now the disciplinary authority had himself passed the order No. 21-8-1986 that the inquiry under Rule 16 be conducted against the petitioner when by this time the announcement with regard to the appointment of present Chief Justice (J.S. Verma) had already been made. It does not stand to reason that if this order was not to be implemented, why it was passed and if this order had been passed on 21-8-1986, and the new Chief Justice had taken over on 1-9-1986 and for what purpose the papers were with held till September 26, 1986. It has been alleged that the probabilities cannot be ruled out that in the absence of the order dated August 21,1986, the now Chief Justice may not have passed the order dated October 21, 1986 to hold any inquiry against the petitioner and to appoint respondent No. 5 as the disciplinary authority. It has been further alleged that the petitioner had quoted No. 3946 dt. July 16, 1984, written on the top of the original complaint itself. Thus the allegation that no such complaint had been received in the High Court was absolutely wrong. It is now clear that the original complaint had been sent along with secretariat D.O. Letter, which was addressed to Shri P.K. Banerjee by name. The allegation that no reply was received form the High court and therefore, another letter dated January 1, 1986 was sent also appeared to be wrong. It was a matter of direct exchange of communication between the Law minister and the Chief Justice and therefore, the Chief Justice may not have thought it proper to send the same in the Registry more particularly when he had decided to dispose of the same by passing the order dt. November 23, 1984. So far as the question of no reply to this letter being received from the High Court is concerned, it has been submitted that in normal course the reply as directed by the Chief Justice Must have been sent. This assertion that the reply must have been sent also find support from the fact that after november 1984 it was on January 3, 1985 that Shri Ahmad Bux Sindhi, the same Law Minister had recommended the petitioner's name for appointment as High Court Judge vide his Confidential D.O. Letter Number 37/PS/LM/84 dated January 3, 1985. Had he not received the reply of letter dated August 28, 1984 on the lines directed by the shri P.K. Banerjee in his order dated November 23, 1984 exonerating the petitioner and certifying that the petitioner was very honest and his integrity was un-questionable, the same law Minister would not have re-commended the petitioner for appointment as High Court Judge. The very fact that not a single letter/reminder was sent by the Prime Minister's Secretariat or the Law Minister in the whole of the Year 1985 also indicate that the reply in terms of the order dated November 23, 1984, of Chief Justice Banerjee must have been received by them soon after November 23, 1984. The cumulative effect of all these circumstances clearly indicated that reply in pursuance of the order dated November 23, 1984 passed by Shri Banerjee must have been received by the Law Minister between November 23, 1984 and January 3, 1985. It is a different matter altogether that the record with regard to such highly confidential letters may or may not have been maintained because it was a case of exchange of communication in personal names between two high functionaries. A photostat copy of the letter dated January 3, 1985 has also been filed and marked as Ex. 11. It has been further alleged that following of any practice depends upon the attitude and approach of Chief Justice who deals with such matters. In the instant case when the Chief Justice Banerjee did not consider it necessary to hold any inquiry and dispose of the matter finally, it was no more necessary for him to mark the same to Vigilance or establishment section and he considered sufficient to inform the Registrar (Vigilance) about such order as is evident from the averments made in para 4 of the affidavit dated September 9, 1987 of Shri Amar Singh Godara, the then Registrar (Vigilance). The affidavit of Shri Godara in support of the above contention has been annexed as Ex.12. The petitioner further alleged that though it was not at all relevant to disclose as to from what source the petitioner got the photostat copy of original complaint and office note and the respondents should be satisfied with the fact that they are the photostat copies of original. How ever, in order to quell the curiosity of respondents, the petitioner has submitted that when the expost facto sanction was granted to the petitioner on April 8, 1985, and Shri P.K. Banerjee had gone through the office note submitted by the petitioner and the following part of this office note:
To any dismay, the concerned papers are not available in concerned file. Lest I should be put to some trouble later on, once again permission (post facto) to sell the above mentioned house be given.
In particular Shri Banerjee informed the petitioner that a complaint addressed to the Prime Minister against the petitioner had also been received by him and he had passed the orders thereon. The petitioner requested him that the photo-stat copy of the complaint with the orders passed there on and a photostat copy of the office note with post facto permission may kindly be made available to them. Thereupon he was kind enough to make the photostat copies available to the petitioner. An averment, that the affidavit of Shri P.K. Banerjee does not represent the correct fact, has no basis.
14. The respondents Nos. 1 and 2 then filed a reply to the rejoinder filed by the petitioner. It was submitted in the reply inter alia that the petitioner's statement regarding the D.O. Letter dt. 28-8-1984 was not correct. When the letter dated January 1, 1986 was received it was reported that D.O. Letter dated August 28, 1984, had not been received in the office and thereafter the respondent No. 2 entrusted the matter for preliminary inquiry to respondent No. 4. It was absolutely incorrect that letters dt. 1-1-1986 & 7-1-1986; were managed to be sent from the Judicial Department. Merely because Annexures R1-2/1 and R1-2/3 have been signed by the Judicial Officer working in the Secretariat, it can hardly be said that these letters were sent for the purpose of initiation of inquiry against the petitioner. The petitioner's plea that the D.O. Letter dated 28-81984 was done away with, is absolutely baseless. Equally baseless is the assertion that the letters dated January 1, 1986 and January 7, 1986 were managed and a copy of the complaint was procured with motive to initiate inquiry against the petitioner. The complaint addressed to the Prime Minister Smt. Indra Gandhi was received by the Govt. and after it was processed it was forwarded to the Chief Justice for inquiry. Two letters dt. 1-1-1986 and 7-1-1986 were issued by the Law Department when it was found that no inquiry has been made in the matter of complaint addressed to the Prime Minister. There is nothing improbable that the Prime Minister's Secretariat, did not press for the matter for 16-17 months. It was after more than 2/1-2 months of petitioner's relinquishing the charge of the Registrar and after 3 months of taking over by the respondent No. 3 as Acting Chief Justice that letter dated January 1,1986 was sent by the Law Department. Therefore it has nothing to do with relinquishing of the charge by the petitioner or taking over charge by respondent No. 3, as Acting Chief Justice. Hon'ble the Chief Justice (J.S.Verma) has passed the order after perusing the preliminary inquiry report. Merely because respondent No. 5 handed over papers to the present Chief Justice on September 26, 1986, nothing turns out of it.
15. It has been further submitted in the reply that it is a matter of unfounded imagination of the petitioner that in the normal course the reply must have been sent as directed by the Chief Justice Banerjee. There is no material to show that any reply was sent. The petitioner be put to strict proof such a reply having been sent by Shri P.K. Banerjee. The petitioner has been able to get photo stat copies of various documents from Shri P.K. Banerjee. If he got photo stat copies of these documents certainly it was possible for them to get a photo stat copy of the reply sent on the lines indicated in the alleged order of Shri P.K. Banerjee dated November 23,1984. The petitioner has not disclosed the source from where he got a copy of document marked as Ex.11. More over, the State Law Minister was not competent to make any such recommendation for appointment of the High Court Judges. It is strange assertion that the record with regard to such highly confidential matters may or may not have been maintained. If the record is not maintained, then how photostat copies have been made available to the petitioner. It is strange belief of the petitioner that the Chief Justice did not consider it necessary to hold any inquiry and dispose of the matter finally without marking the papers to the office of the High Court. There is nothing on record to show that Shri P.K. Banerjee in his affidavit has not stated a word about his having shown the order dated November 23, 1984 to Shri Amar Singh Godara.
16. We would first deal with the preliminary objection raised by Mr. Singhvi, learned Counsel for the respondents. It was argued by Mr. Singhvi that this writ petition was pre-mature in the sense that no final order in the disciplinary proceedings has been passed against the petitioner so far. It has been submitted that the disciplinary authority has considered the preliminary objections raised by the petitioner along with his reply and has thereafter passed an order that further proceedings were warranted in the case. It has been argued that this Court has no jurisdiction to interfere in the disciplinary proceeding at this stage and this Court cannot go into the merits of the charges levelled against the petitioner. Reliance is placed on the following observations made in Chanan Singh v. Registrar Co-operative Societies Punjab and Ors. .
Where the disciplinary proceedings against an employee dropped by an enquiry officer who was not competent to impose the punishment were revived by the competent officer by issuing a fresh show-cause notice against dismissal, a writ petition challenging the revival of proceedings is premature as no punitive action has as yet been taken and there is no present grievance which can be ventilated in Court.
17. Mr. Singhvi also placed reliance on the following observations in Chief of the Army Staff and Ors. v. Major Dharam Pal Kukrety .
Where the threat of prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court's protection. If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to premature.
18. On the other hand, it was argued by Mr. Calla, that though it was correct that sufficiency of evidence may not be gone into at this stage but if there was no material on record worth the name to hold even prima facie case against the petitioner then this Hon'ble Court must quash the proceedings. It is submitted that the disciplinary authority should act with an open mind even with regard to the charges are levelled against a public servant until the said charges are proved. It is submitted that an application under Article 226 against the issue of a charge sheet is maintainable if the charges are groundless or such chargesheet has been issued on baseless grounds and there has been total non-application of mind of the disciplinary authority. It is further argued that there is no sense in asking the petitioner to suffer the agony of the departmental proceedings when there is no iota of evidence against him and the disciplinary authority without any rhyme and reason failed to ignore the orders passed by Shri P.K. Banerjee, the then Chief Justice. Mr. Calla in support of his contention placed reliance on Dayanand v. The Union of India and Ors. 1977 Lab. & IC 1194 and A.K. Dutta v. Union of India and Ors. 1978(2) SLR 207.
19. Mr. Calla also placed reliance on an unreported decision of S.C. Agarwal, J., in K.N. Sachdeva v. State of Rajasthan and Ors. SB Civil Writ Petition No. 1793/1982 decided on February 3, 1987. Dr. K.N. Sachdeva in the above case had challenged the memo (Annexure-13) dated December 12, 1980 whereby he was served with a charge sheet as well as statement of allegations for initiating disciplinary proceedings against him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. Agarwal, J., in the above case held that the petitioner had offered a detailed explanation for his conduct in withdrawing the earlier marks list and issuing the correct mark-sheet on May 6, 1978. It was held that if the said explanation had been considered by the disciplinary authority may have decided to drop the disciplinary proceedings initiated against the petitioner. It was further held that the effect of the order dated July 13, 1982, appointing the Inquiry Officer is that the petitioner will be required to undergo the harassment and hardship of a full scale inquiry, which may take considerable time, although the petitioner has retired from service in 1982, and ultimately it may be found that there is no substance in the charge that has been levelled against the petitioner Agarwal J., in these circumstances allowed the writ petition and quashed the charge sheet served on the petitioner.
20. It was also argued by Mr. Calla that it was the duty of the High Court to place the original of the two documents on which orders were passed by the Chief Justice, Banerjee and if the originals were not produced then it was not the fault of the petitioner and the proceedings against the petitioner ought to have been dropped on this ground alone. In any case, the petitioner himself filed the photo stat copies of the two documents, and there was no valid justification on the part of the Additional Registrar (Vigilance) to take the stand that the genuineness of the two orders required any proof because of the absence of the original in the Registry of the High Court. Learned Disciplinary Authority in his order dated May 5, 1987 gave no reason as to why in the above circumstances when the original of these two documents were not produced by the Additional Registrar (Vigilance) adverse inference was not drawn against him and why the photo stat copies submitted by the petitioner were not accepted as genuine. Thus, the order dated May 5, 1987 shows that the same was passed without any application of mind and if the photo stat copies of the two orders produced by the petitioner would have been taken into consideration, there was no scope, basis or justification for proceeding with the inquiry.
21. In our view, it cannot be laid down as a rule of law that the High Court has no jurisdiction under Article 226 of the Constitution of India to entertain a writ petition against the issuing of charge-sheet. The High Court can entertain a petition under Article 226 against the issue of a charge-sheet, if the charges are found to be groundless or void ab initio or when such charge-sheet has been issued without jurisdiction or is capricious or mala fide use of power or on baseless grounds and there has been total non-application of mind. It is no doubt correct that the High Court will not substitute its own judgment or sit in appeal unless a finality is reached by exhausting all the remedies available to the public servant under the relevant service Rules. But where the charges are found to be groundless or void ab initio or on baseless grounds or there is no iota of evidence to frame such charges or there is non-application of mind of the disciplinary authority to the admitted facts, this court can certainly pass suitable orders in exercise of its extra ordinary jurisdiction under Articles 226 of the Constitution.
22. In the two cases of the Supreme Court relied on by Mr. Singhvi the position was entirely different. In Chanan Singh's case (supra) the disciplinary proceedings against an employee had been dropped by an Inquiry Officer who was not competent to impose the punishment. Thereafter the proceedings were revived by the competent officer by issuing a fresh show cause notice. A writ petition was filed challenging the revival of proceedings and in that connection it was observed that a writ petition challenging the revival of proceedings was pre-mature as no punitive action has yet been taken and there was no personal grievance which could be ventilated in the Court. Apart from the above circumstances the Supreme Court in the above case further held that the counsel for the Co-operative Bank had not been able to show any power to suspend an employee pending an inquiry. Thus so far as the order of suspension of the appellant is concerned, that was held to be plainly without the pale of law and a direction was given that he would be entitled to his salary during the period till final orders were passed. Thus the above case renders no assistance in support of the preliminary objection raised by Mr. Singhvi.
23. In Major Dharampal Kukerty's case (supra), another case relied upon by Mr. Singhvi, the contention was raised with respect to the jurisdiction of the Chief of the Army Staff to issue a notice to Major Dharampal Kukrety. While dealing with the question of jurisdiction to him before seeking the court's protection. If on the other hand, the Chief of the Army Staff had the power in law to issue the said notice it would not be open to the respondent to approach the Court under Article 226 at the stage of notice only. The above observations do not mean that there is no category of case in which the petitioner can approach the Court under Article 226 of the Constitution at the stage of notice only. The above observations do not mean that if an authority has jurisdiction to issue a notice to the public servant, he cannot approach the High Court under Article 226, even if the charges levelled in such notices are totally groundless or baseless or such notice has been issued mala fide or is violative of principles of natural justice. Thus, we are clearly of the view that no hard and fast rule can be laid down and it would depend on the facts and circumstances of each case and if the case falls within the categories mentioned above, the writ petition cannot be dismissed merely on the ground of being pre-mature.
24. Now, the admitted facts of this case are that the petitioner Bajwa while practising as an Advocate in the Rajasthan High Court Jodhpur was offered an appointment to the Rajasthan Higher Judicial Service in November, 1977. Appointment in the Rajasthan Higher Judicial Service from the Bar is made after inviting applications and interview by the Judges of the High Court. How ever, in case of Shri Bajwa, he was offered an appointment to the Rajasthan Higher Judicial Service in November 21, 1977 by the Court it self. The petitioner joined the service on November 21, 1977 and his first posting was as the Additional District & Sessions Judge, Udaipur. It was an appointment on probation for a period of two years and the petitioner on expiration of probationary period was fully confirmed in the month of November 1979. Under Rule 27 of the Rajasthan Higher Judicial Service Rules 1969, a probationer is confirmed only after consultation and satisfaction of the Court that such person is fit for confirmation. Shri P.K. Banerjee, a puisne Judge of the Calcutta High Court took over as the Chief Justice of Rajasthan High Court in Oct. 1983 and the petitioner was appointed as the Registrar High Court in the month of December, 1983. Shri P.K. Banerjee retired on September 30, 1985 and the petitioner continued to work as Registrar since the posting, in the month of Dec. 1983 till the full period of Shri P.K. Banerjee as Chief Justice. It is undeniable that right from the entry of the petitioner in service in Nov., 1977, till Shri Banerjee retired on 30-9 85, there was no adverse entry in the annual confidential reports of the petitioner. After retirement of Shri P.K. Banerjee. Shri D.P. Gupta took charge as Acting C.J. and subsequently confirmed as C.J, before retirement. We have already observed that though the petitioner has levelled several charges of malafide but we would not go into such allegations and would decide this petition on the basis of evidence as borne out from the record. The petitioner after retirement of Shri P.K. Banerjee on September 30, 1985, continued as Registrar until October 10, 1985 only. The petitioner was also served with communication whereby certain adverse remarks for the Year 1985 written by Shri D.P. Gupta were communicated to the petitioner. Against this communication the petitioner has submitted a representation dated September 1, 1986 and we don't like to make any comment as the said representation is still pending consideration by the Court. There-after, the petitioner was served with a memorandum dated January 27, 1987 issued under the signatures of Shri G.M. Lodha, J., as the disciplinary authority proposing an Inquiry under Rule 16 against the petitioner on the charges and allegations enclosed there with. Ex.2, the memorandum of charges makes a mention that a preliminary inquiry report was submitted by Shri S.K. Mal Lodha, J., on 9-9-86 and the preliminary inquiry was conducted on the directions dt. 24-2-1986 of Shri DP. Gupta, the then Chief Justice. In Anx.-1 (Ex. 2) contains statement of charges and enclosure 2, statement of allegations against the petitioner. Charge No. 1 against the petitioner is that he had a house situated in Paota Area No. 12 B of Jalam Scheme at Jodhpur. This house was sold by Shri Bajwa petitioner to Shri Munni Lal Garg. Advocate and Shri Bawja did not obtain prior permission under Rule 21(2) of the Rajasthan Civil Services (Conduct) Rules, 1971. Appeal) Rules, 1071 for the sale of the house which was in the name of shri Bajwa's wife. The sale was done through three sale-deeds, thus shri Bajwa acted in contravention of Sub-rule (2) of Rule 21 of the Rajasthan Civil Services (Conduct) Rules, 1971.
25. The petitioner with regard to this charge had submitted an explanation in his application dated April 3, 1987, Ex 4 before the disciplinary authority. The petitioner clearly mentioned in this application that on the day of inspection of records on March 24, 1987, he was told that there was no document by which the permission was granted by the Chief Justice to sell the house in question. The Petitioner, in these circumstances, Submitted that a note had been submitted by him on April 8, 1985 before Shri P.K. Banerjee recording therein that Shri C. Honniah Ex-Chief Justice had accorded the permission to sell the house in question and Shri Honniah had passed on the papers to his Private Secretary whereas these papers are not available in the concerned file, the post facto permission may now be granted. Upon this note the than Chief Justice Shri P.K. Banerjee passed an order on April 8, 1985 itself to the following effect:
Post facto permission granted.
The petitioner in the application dated April 3, 1987 had made a prayer to the disciplinary authority that the original document may be made available to him for inspection and photo-stat copies thereof may also be made available to him. The petitioner then again moved an application on April 22, 1987, (Ex.5) mentioning that the original record does not contain the above document and in these circumstances he was submitting the photo-stat copy retained by him and in view of this order passed by the Chief Justice Shri P.K. Banerjee, the above charge failed and any inquiry in this matter would be an exercise in futility and would only mean an undue harrassment, suffering and agony to the petitioner and a criminal wastage of time and energy as no inquiry can be proceeded with or be held in absence of the original documents which went to the root of the matter. The Presenting Officer on behalf of the High Court also stated before the Disciplinary Authority that the documents was not traceable in the record of the High Court. The Disciplinary Authority, however, desired the petitioner to file the reply to the charge and to raise such legal objections while filing the reply. The petitioner, in these circumstances, filed a reply dated May 5, 1987 (Ex. 6) and also raised preliminary objections in the said reply. The Disciplinary Authority then passed the order dated May 5, 1987 which has already been extracted above.
27. In our view, the disciplinary authority did not consider at all the order of post facto permission granted by the Chief Justice Shri P.K. Banerjee on 8-4-1985. There is no charge of any malafides against the petitioner with regard to the transaction of sale of the house to Shri Munni Lal Garg, Advocate. It was only a charge of technical violation of the Rules that before such transaction the permission of the Court was necessary. In the present case the explanation of the petitioner was that he had taken the per- mission from ex-Chief Justice Honniah and thereafter a post facto permission had been obtained from the Chief Justice Banerjee on 8-4-1985. It is strange that the original of this document was not available in the record of the High Court & without going on the question as to who is responsible for this, there was no occasion or justification for the Additional Registrar (Vigilance) to dispute the correctness of the photo stat copy furnished by the petitioner in this regard. The provisions of the Evidence Act are not strictly applicable in disciplinary proceeding against a public servant and the photo stat copy submitted by the petitioner in the present case was an admissible document and ought to have been considered as a genuine document. Merely because the Additional Registrar (Vigilance) raised an objection in this regard, there was no valid reason not to consider the photo stat copy, so far as the disciplinary authority is concerned. The petitioner had worked on a responsible post of Registrar and at present is also working as member of the Rajasthan Higher Judicial service and there was no justification not to rely on a photo stat copy produced by him which contained signatures of the then Chief Justice Shri P.K. Banerjee. It may be mentioned that along with the present writ petition the petitioner has annexed an affidavit of P.K. Banerjee him self in which he has deposed as under:
I have also seen and gone through the photo stat copy of the office note dated April 8, 1985, which was submitted before me by Shri S.R. Bajwa on April 8, 1985, and having satisfied myself about the correctness of the contents of this note the post facto permission was granted by me and the same was duly recorded by me on this note in my hand in the following words which bears my signature dated April 8, 1985:
Post facto permission granted.
This affidavit of Shri P.K. Banerjee dispels all imaginary doubts regarding the genuineness of the photo stat copy submitted by the petitioner before the disciplinary authority. We are constrained to observe that the additional Registrar (Vigilance) was not justified in taking the stand before the Disciplinary Authority that since the original of the two documents purporting to be the orders of the then Chief Justice Banerjee were not available in the registry the delinquent officer should be called upon to prove them. The Additional Registrar was not justified in pointing out that the genuineness of these two orders require proof because of the absence of the original in the Registry of the High Court. It is further important to note that when the petitioner Shri Bajwa submitted before the Disciplinary Authority that even from the photo stat copy signatures or the handwriting of the then Chief Justice Shri Banerjee can be accepted as genuine, the Additional Registrar (Vigilance) in reply expressed his inability to do so unless the original was made available or proved. We are unable to apprehend such sort of logic and stand taken by the Addl. Registrar (Vigilance). The originals, which should have been in the record of the High Court, were not traceable and instead of the same being not available, the Additional Registrar (Vigilance) took the stand that he was unable to accept the photo copy which contained the signatures and the handwriting of the then Chief Justice Shri Banerjee unless the originals were made available or proved. Learned Disciplinary Authority though recorded all the above statements made by the petitioner as well as the Additional Registrar (Vigilance) but gave no reason at all as to why the photo stat copies submitted by the petitioner could not be looked into. It would have been altogether a different matter if the disciplinary authority even after considering the orders passed by the Chief Justice Shri Banerjee would have considered on merits that further inquiry was still necessary but failing to do so, in our view, is clearly non-application of mind of the disciplinary authority on the explanation submitted by the petitioner. Thus, the first charge levelled against the petitioner becomes totally groundless and baseless, after the post facto sanction given by the Chief Justice Banerjee.
28. Second charge levelled against the petitioner is that the petitioner acquitted Hira Lal and Ganpat Lal ordered for return of gold to them by judgment dated August 1978 in appeal. The Assistant Sessions Judge, Udaipur, by judgment dated January 11, 1975. had convicted Hira Lal and Ganpat Lal for offence under Section 406 I.P.C. Against the judgment the petitioner accepted the appeal while working Additional Sessions Judge, Udaipur The petitioner also dismissed Revision Petition No. 2/77 filed by Ganpat Lal against the accused and State of Rajasthan by his judgment dated August 7, 1978 where in Gunwant Lal had prayed for given possession of the gold. For this acquittal and return of gold the petitioner took Rs. 1,00,000/-as bribe.
29. It may be mentioned that this charge relates to some judgment given by the petitioner on August 7, 1978. Admittedly, the petitioner joined service on November21, 1977 and he remained on probation for a period of two years. Thus, the above judgment was given during the period of probation of the petitioner and he was confirmed thereafter by the full Court in the month of November, 1979 Under Rule 27 of the Rajasthan Higher Judicial Service Rules, 1969, a probationer is only confirmed if the Government after consultation with the Court is satisfied that such person is fit for confirmation. this clearly goes to show that no finger was raised nor any complaint of any kind what so ever was made against the petitioner by Ganwant Lal or by any other person against the aforesaid judgment given by the petitioner on August 7, 1978. It is important to note that in the name of Members of Bar of Jaipur, Kota Jodhpur, some complaint was lodged against the petitioner to Mrs. India Gandhi Prime Minister of India vide Annexure 1. A photo stat copy of annexure 2 has been placed on record by the petitioner along with affidavit of Shri Banerjee as stand has been taken on behalf of the High Court that the original of such complaint is not traceable. The photo stat copy of annexure 1 contains the receipt No. 3946 dated July 16, 1984 of the Law Department, Government of Rajasthan. In the left hand margin it contains the marking to several officials like Law Secretary, Deputy Secretary (J), S.O. (J) and a nothing by hand of Shri P.K. Banerjee the then Chief Justice dated November 23, 1984. Shri Banerjee considered this complaint and passed the following order on it:
The complaints are all false and preposterous. The Registrar Bajwa is very honest and his integrity is unquestionable. No inquiry need be made. Reply in this line may be sent to the Government.
A perusal of Annexure-1 also shows that no names of any members of the Bar of Jaipur Kota and Jodhpur have been mentioned and some signatures put on it are clearly decipherable and identity of the signature cannot be known. Admittedly, no member of the Bar ever come forward during the course of preliminary inquiry in support of the above complaint. Thus, this sort of complaint filed after six years of the above mentioned judgment given by the petitioner, was no more than anonymous complaint and the Chief Justice Shri P.K. Banerjee having known the honesty and integrity of the petitioner, had passed the clear order that no inquiry was needed on such complaint. It is also an admitted position that no adverse remark regarding the ability or integrity of the petitioner was ever written or conveyed to the petitioner till the communication dated August16, 1986. After the above order of Shri P.K. Banerjee dated November 23, 1984, no further action was taken on above complaint. Shri P.K. Bannerji retired on September 30, 1985, and Shri D.P.Gupta took over charge as an acting Chief Justice of the Rajasthan High Court. The petitioner remained posted as Registrar until October 10, 1985 only thereafter he was transferred to another post. The contention of the respondents is that the above mentioned complaint addressed to Mrs. Indra Ghandhi along with letter dated january 7.1986 from the Deputy Secretary, Judicial Department was received by the Shri D.P. Gupta and on that he authorised the Administrative Judge Shri S.K. Mal Lodha to hold a preliminary inquiry in the matter. On receipt of the report of the preliminary inquiry, the than Acting Chief Justice Shri G.M. Lodha wrote order dated August 21, 1986 that inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 be conducted against the petitioner. The respondents by taking the above stand want to show as if the original complaint on which Shri P.K. Banerjee had passed the order on November 23, 1984 was not made known to Shri D.P. Gupta and he acted on the basis of the letter dated January 7, 1986 from the Deputy Secretary Judicial Department. The contention of Mr. Calla, learned Counsel for the petitioner, is that this letter dated January 7, 1986 was not manipulated and there is no basis or justification to accept the contention of the respondent that the original complaint having the order of P.K. Banerjee dated November 23, 1984 was not available in the record of the High Court. The above contention of Mr. Calla has been seriously contested and refuted by Mr. Singhvi, learned Counsel for the respondents. We do not want to go into this controversy, but one fact is now certain that Annexure-1 filed along with the affidavit of Shri P.K. Banerjee is the same complaint on which Shri Banerjee passed the order on November 23, 1984 and action was initiated also by Shri D.P. Gupta. The respondents have filed Annexure-R1 2/3 along with their reply and which is verbatim typed copy of Annexure-1 filed by the petitioner. As already mentioned by us while dealing with charge. No. 1 that no burden can be placed on the petitioner to produce the original of Annexure-1 and in any case, when the photo stat copy of Annexure-1 had been filed by the petitioner, there was no basis or justification for doubt in the genuineness of this document. In any case, Shri P.K. Banerjee has himself now, given an affidavit dated June 10, deposing the correctness of Annexure-1 and the order passed by him on November 23, 1984. Disciplinary Authority ought to have considered photo stat copy and the order of Shri P.K. Banerjee passed on it, before proceeding further in the inquiry and should not have given any weight to the objection raised by word of mouth by the Additional Registrar (Vigilance) that the genuineness of the two documents required proof. Even if for arguments sake Disciplinary Authority was not satisfied with the photo stat copy, he should have granted an opportunity to the petitioner to file the affidavit of Shri P.K. Banerjee before him. This clearly goes to show that the Disciplinary Authority did not apply its mind to the order passed by Shri P.K. Banerjee dated November 23, 1984.
30. Though, it was not necessary for us to go into the merits of charge No. 2 but in the background of the circumstance under which the inquiry was dropped by one Chief justice taking the view that the petitioner was honest and his integrity was unquestionable and the complaints were all false and preposterous and the inquiry being initiated by another Chief Justice and that also a period of more than 7 years with regard to a judgment by the petitioner who is a senior judicial officer, we think it our duty to consider the merits of the Charge No. 2. We also consider it necessary because Mr. Calla, learned Counsel for the petitioner vehemently submitted that the Charge No. 2 was groundless and even if the two statements of the witnesses recorded during the preliminary inquiry are considered at its face value, even then no prima facie case is made out to continue with the inquiry Mr. Calla also submitted before us that the petitioner was having a lucrative practice at the bar and he was never willing to join the service but he was offered a post in the Higher Judicial Service by the court itself. Mr. Calla also argued that the petitioner himself is not willing to continue in service, but the petitioner has been made a scape goat of the rivalries between high echelons of judiciary and for a person like the petitioner, who always maintained high standards of integrity in his judicial career and had unblemished record, even continuation of such baseless and groundless inquiry is lowering the prestige and reputation of the petitioner in the public eye. Mr. Singhvi, learned Counsel for the respondents, candidly accepted that he had nothing to say regarding the integrity of the petitioner, but he only took shelter of the umbrella that this Court at this stage cannot go in the merits of the charges. In the above circumstances we considered it our duty to go into the merits of charge No. 2 also and heard learned Counsel for both the parties.
31. We have already mentioned in detail the allegations levelled against the petitioner in Charge No. 2. The charge relates to some judgment given by the petitioner back as on 7-8-1978 while working as Additional Sessions Judge, Udaipur, & having accepted one lac rupees as bribe for acquittal and return of gold. The party effected is alleged to be one Gunwant Lal. Till so called complaint dated July 16, 1984 (Annexure 1) no finger was raised nor any complaint was filed by Gunwant or any other person. The complaint has not been filed by known person nor the so called signatories of such complaint ever came forward during the preliminary inquiry held by. Justice S.K. Mal Lodha. The gold was no doubt a subject matter of criminal charges in the case against accused Heera Lal and Ganpat Lal but at the time of decision of the revision filed by Gunwant Lal as well as the appeal filed by the accused persons, the gold was under the custody and control of the Central Customs Authorities and the petitioner was not in a position to pass any order with regard to the handing over of the gold to either of the parties. So far as the order of acquittal in the appeal filed by the accused persons and the revision filed by Gunwant Lal are concerned, the petitioner had passed the orders on merits in exercise of and in due discharge of duties by the petitioner as Additional Sessions Judge. Those orders of the petitioner are under challenge before the High Court and the matter being sub-judice it is not proper for us to make any comment. As regards the alleged taking of bribe of Rs. 1,00,000/- by the petitioner for giving above judgments only statements of PW 2 Gunwant Lal and PW 3 Mishri Gupta themselves have been during the preliminary inquiry Gunwant Lal PW 2 in this regard admitted that he had submitted an application for return of gold before Shri Ranvir Sahai Verma, Assistant Sessions Judge, Udaipur but his application was dismissed by Shri Verma. Shri Verma had convicted Ganpat Lal and Hira Lal for offence under Section 406 I.P.C. and had given a sentence of three years rigorous imprisonment and a fine of Rs. 50,000/- to the a accused Hira Lal and Ganpat Lal. Ganpat Lal and Hira Lal had filed appeal against their conviction and he had filed a revision for return of gold. Both the above cases were transferred to the Court of the petitioner Shri Bajwa. The petitioner allowed the appeal filed by Ganpat Lal and Hira Lal and acquitted them and dismissed the revision filed by him (Gunwant Lal). His counsel was Shri Mahendra Singh Chohan and he used to send Mishri Lal Gupta Nimbaheda to look after his interest at Udaipur. After acquittal of the accused persons he had asked Mishri Lal that when their gold had been embezzled they had lodged a report and had also owned in the lower Court even then why an order was not passed for return of gold to them and how Jan order was passed in appeal for return of gold to the accused persons. On this Mishri Lal Gupta told that the Presiding Officer Sardarji Judge Saheb has taken one lac of rupees. Mishri Lal Gupta further told that one counsel used to come from Jodhpur without any work. No Vakalatnama of such counsel of Jodhpur was produced in any case. Mishri Lal Gupta informed him that through counsel of Jodhpur this transaction was settled. Gunwant Lal clearly admitted that he had no personal knowledge about this. This is the entire statement of Gunwant Lal with regard to so called allegation of Rs. 1,00,000/- taken as bribe by the petitioner.
32. Mishri Lal Gupta PW 3 has stated that he used to go to Udaipur during the trial of the above cases. Samrath Malji Mehta was the counsel of the accused Heera Lal and Ganpat Lal. A fat sort of vakil used to come from Jodhpur He had not filed any power. He used to have talks with Samarth Mal In canteen of tea, in side, Samrath Mal Mehta and the counsel from Jodhpur were talking for some transaction with regard to these cases. He was sitting at a distance. He was keeping an attention to the talks made between Samrath Mal and the counsel of Jodhpur. Sardar Bajwa had come to Udaipur as Additional District Judge and thereafter to above talk was held between the above mentioned two counsel. In that talk between the two counsel he had over-heard that the fat sort of vakil who had come from Jodhpur had told that he had given one lac of rupees to Sardar Bajwa Saheb. Both the accused persons Hira Lal and Ganpat Lal would be acquitted and would get gold back Samarath Mal had told that when this would be done then they would take some more money. Thereafter he came from the spot. After one or 1-1/4 months of the above talk Sardar Bajwa gave the judgment of acquittal of Hira Lal and Ganpat Lal and also gave an order of giving gold to them. He had seen the fat Vakil of Jodhpur going two or three times in the chamber of Bajwa He had subsequently informed regarding the above talk to Ganpat Lal Ganpat Lal told that when one lac of rupees had been taken then what remain's Now so far as the evidence of above two witnesses is concerned, Gunwant Lal has admitted that he has no personal knowledge about the matter and what ever information he has in this regard was conveyed to him by Mishri Lal. The other witness is Mishri Lal and as mentioned above he had heard some conversation from a distance sitting in a canteen of tea between Samarath Mal and some lawyer of Jodhpur. He states that he was sitting at a distance and he was paying attention to the talks in between Samrath Mal and the Advocate of Jodhpur. In the conversation he had heard that the fat sort of lawyer of Jodhpur had told Samrath Mal that he had paid one lac of rupees to Sardar Bajwa Sahib. Neither the statement of Samarth Mal has been recorded nor the identity of the fat sort of lawyer of Jodhpur has been tried to be established in the preliminary inquiry. No time or date of such conversation has been stated by Mishri Lal. Mishri Lal is admittedly a person of Gunwant Lal and there is every reason for him to build such imaginary and false story because the petitioner had dismissed the revision filed by Gunwant Lal. Admittedly, no complaint what so ever was made by Mishri Lal or Gunwant Lal to the Chief Justice or to any authority if the above talk or conversation between Samarth Mal and the lawyer of Jodhpur had any resemblance of truth or basis at all. According to Mishri Lal the petitioner had given the judgment after one or 1-1/4 months after the above conversation. The judgment was given on August 7, 1978 and according to above statement such conversation must have taken place some where in the month of July or in the end of June, 1978. There is no material what so ever either oral or documentary prior to the present anonymous sort of complaint Annexure-1 received on July 16, 1984 to show that any complaint what so ever was made by Gunwant Lal, during all this long period of six years. Even this complaint has not been filed by Gunwant Lal or Mishri Lal and contains imaginary names and signatures of some members of the Bar of Jaipur, Kota and Jodhpur Thus if this alleged conversation between Samrath Mal and Advocate of Jodhpur had any semblance of truth and had been heard by Mishri Lal, we find no reason as to why they did not make any grievance in this regard to the authorities immediately or even thereafter during this long period of six years Apart from that the very nature of such allegation is very easy to make against a judicial officer, who has a duty to impart justice to the parties and in this manner any judicial officer can be maligned and harassed. Though Mr. Calla tried to Submit that all such evidence is hearsay and inadmissible in evidence, we agree with the contention of Mr. Singhvi to this extent that in disciplinary proceedings, rules of Evidence Act are not strictly applicable. Mr. Singhvi has cited State of Haryana and Anr. v. Rattan Singh 1977 (1) SLR 750. Their Lordships of the Supreme Court in the above case held as under:
It is well settled that in domestic inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All material which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such materials and should not swallow what is strictly speaking not relevant under the Indian Evidence Act.
Keeping in view the above observations of the Supreme Court we have considered the evidence of the above two witnesses Gunwant Lal and Mishri Lal but we are clearly of the view that the above sort of evidence has no logically probative value and inspires no credibility to hold any ground or justification what so ever for establishing the charge No. 2 against the petitioner. Thus, to our mind, it is a case of no evidence at all against the petitioner for Charge No. 2 and it would be not only harassment to the petitioner, who is a senior Judicial Officer but would also be sheer wastage of the precious time of the disciplinary authority as well as wastage of money of the public exchequer. Thus, in the facts and circumstances of this case, we are fully convinced that there is no basis, ground or justification for holding any disciplinary inquiry against the petitioner on the basis of the charges levelled against the petitioner.
33. In the result, this writ petition is allowed, charge-sheet Annx. 1 and statement of allegations Annexure 2 served along with memorandum Ex. 2 dated January 27, 1987, are hereby quashed. All proceedings taken against the petitioner in the above disciplinary proceedings are also quashed. In the facts and circumstances of the case parties shall bear their own costs.