Gujarat High Court
Mr. Mayur Jayantilal Parikh vs State Of Gujarat on 29 January, 2020
Author: Vikram Nath
Bench: Vikram Nath, A.J. Shastri
C/SCA/14992/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14992 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH Sd/-
and
HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MR. MAYUR JAYANTILAL PARIKH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BHASKAR P TANNA, SENIOR ADVOCATE with MR NIKHIL S KARIEL
(2315) for the Petitioner
LAW OFFICER BRANCH (420) for the Respondent No.2
MR HEMANG M. SHAH (5399) for the Respondent No.2
MR CHINTAN DAVE, AGP for the Respondent No.1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 29/01/2020
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. Present petition under Article 226 of the Constitution of India is filed for seeking following reliefs:-
"(a) THIS HONOURABLE COURT may be pleased to allow this Petition;Page 1 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT
(b) THIS HONOURABLE COURT may be pleased to quash and set aside the impugned order dated 27.6.2018 as well as the entire disciplinary proceedings No.6/12 against the petitioner;
(c) Pending hearing and final disposal of the present Petition, by way of an interim Orders, THIS HONOURABLE COURT may be pleased to stay the operation, implementation and execution of the impugned order dated 27.6.2018 as well as the entire disciplinary proceedings No.6/12 against the petitioner;
(d) .........."
2. The facts of the case are that the present petitioner was the Principal District Judge at Junagadh and while he worked there from 2011-2012, the petitioner was attributed with as many as 5 charges. On 24.12.2012, the petitioner was served with the memorandum with Annexure-I in the form of charge-sheet under the provisions of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. In brief, the said charges are reproduced herein-below:-
"While you were discharging your duties as Principal District Judge, Junagadh during the period between 19th of Februiary2011 and 25th of July 2012, it is reported that:
I You were closely associated with Mr. H.V. Upadhya, Public Relation Officer (PRO) and therefore, you ignored the complaint of sexual harassment made by Ms. Rita A. Nanavati, Superintendent, working in the Court of 4th Additional Senior Civil Judge, Junagadh, against Mr. H.V. Upadhyay and extended undue favour to Mr. H.V. Upadhyay .
This act of yours, if proved, amount to dereliction in discharge of duties as Head of the Department, as also a misconduct within the meaning of Rule 3(B)(2) of the Gujarat Civil Services (Conduct) Rules, 1971.
II It was repeatedly reported to you that, Mr. H.V. Upadhyay Page 2 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT was misusing and exploiting his relation with you with oblique motive and was threatening and getting several employees transferred, but, you ignored all sorts of complaints against Mr. H.V. Upadhyay and always accepted his proposals for transfer of the employees. Though, it was alleged that Mr. H.V. Upadhyay was charging money for such transfers, you issued 27 transfer orders for 612 employees of the Court within a short span of 17 months under the influence of Mr. H.V. Upadhyay. Thus, you abetted and encouraged Mr. H.V. Upadhyay in exploiting and misusing his relations and close association with you and failed to discharge your duties as Head of the Department.
This act if proved is an act, not befitting a government servant as also an act of unbecoming of a government servant and a misconduct.
III Since you had a grudge against Ms. Hema Srikant Sukla on various occasions as mentioned in detail in Statement of Imputation, you misused your office in getting her service terminated as Member Judge of the Consumer Protection Forum.
This act if proved is an act, not befitting a government servant as also an act unbecoming of a government servant and a misconduct.
IV As a Judicial Officer, you were expected to write/ dictate judgments/ orders/ awards etc., after considering relevant facts, pleadings and evidences. However, it is reported that you blindly signed judgments/ orders/ awards etc., as were drafted by your stenographers without applying your mind. Thus, you failed to discharge your duties as a Judicial Officer.
Your aforesaid act, if proved, would amount to misconduct and an act unbecoming of a Judicial Officer as also dereliction to duties within the meaning of Rule 3 of the Gujarat Civil Service (Conduct) Rules, 1971.
V As mentioned in detail in the Statement of Imputation, you, on several occasions, misused your official car for Page 3 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT personal purposes.
This act of yours if proved is an act of grave misconduct.
The Statement of Imputation, the Statement of Witnesses and the documents supplied to Mr. M.J. Parikh shall be deemed to be part of this Article of Charge."
3. These charges were for a period commencing from 19.2.2011 to 25.7.2012. According to the petitioner, these charges have been leveled on the basis of the anonymous and pseudonymous complaints, which otherwise could not have been processed. However, an inquiry was conducted by the Inquiry Officer, who happened to be the Principal District Judge, Junagadh, the report for which was submitted on 4.8.2016. The inquiry was numbered as Departmental Inquiry No.6 of 2012. The findings of the inquiry report indicate that charge No.1 is held to be fully proved, charge Nos.2,4 and 5 are held to be partially proved and charge No.3 is held to be not proved. This inquiry report was placed before the Standing Committee of the High Court. After considering the said inquiry report and the material, the Standing Committee prima facie while agreeing with the findings regarding Charge Nos.1, 2 and 3 of the Inquiry Officer, was of the tentative opinion that the findings recorded in respect of charge Nos.4 and 5 cannot be accepted. As a result of this, on 9.12.2016, a show cause notice was given to the petitioner, being delinquent, calling upon him to explain as to why action should not be finalized. The said inquiry notice reflecting on page 50 was served along with the inquiry report, in which the petitioner was called upon in this manner :-
"You are, therefore, called upon to Show Cause, within a period of 15 days from the receipt of notice, why the charge no.4 and 5 be not held to be fully proved on the basis of tentative reasons mentioned above and further why the report of the inquiry officer with this modification not be accepted and why any of the major penalties prescribed under the Service rules be not imposed on you. You may also state whether you wish to be heard in person before a final Page 4 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT decision is taken.
If you fail to show cause within the time allowed to you, it will be presumed that, you do not wish to say anything and the matter will be proceeded with in accordance with law."
4. The record indicates that the show cause notice was responded to by the petitioner - delinquent on 30.3.2017. He explained at length the charges leveled against him, more specifically charge Nos.4 and 5. It further appears that pursuant to the said explanation, a decision was taken regarding the appointment of a Committee, compromising of two Hon'ble Judges of the High Court. The said Committee has extended personal hearing to the delinquent judicial officer, represented by his lawyer. After evaluating the submissions and the material, the Committee came to a conclusion, the operative part of which is reproduce hereinafter:-
"The sum and substance of the aforesaid discussion would be that the Inquiry Officer has erred in holding the charge No.1 proved and charge No.2 partially proved. For the reasons stated above, the Committee is of the opinion that charge Nos.1 and 2 be held not proved. In view of the above and for the reasons stated above, Committee is of the opinion that report submitted by the Inquiry Officer holding charge No.4 partially proved be not accepted and the charge No.4 be held to be fully proved. In view of the above and for the reasons stated above, the finding recorded by the Inquiry Officer with regard to charge No.5 holding the charge No.5 partially proved be accepted but lenient view may be taken.
On holding charge No.4 fully proved the Committee is of the opinion that this is a fit case for major punishment. The delinquent is a senior Judicial Officer. As a Judicial Officer he is required to dictate judgment and orders to the stenographers. The Judicial Officer is responsible for dictating judgment or order and the judgment and order is required to contain reasons. A Judicial Officer is required to apply his own mind and give his own reasons independently while dictating the judgment and order. Not giving dictation to the stenographers and to instruct the stenographers to prepare the judgments and order and thereafter show to him can be said to be dereliction of duties by a Judicial Officer. It can be said to be negligence Page 5 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT towards discharging his duty. Considering the material on record it appears that hundreds of judgments and orders are though delivered by the delinquent Judicial Officer but only with respect to 3 to 4 judgments it is established and proved that he has given dictation and for rest, the judgments and orders are prepared by the stenographers. Being a senior Judicial Officer the delinquent ought to have known the seriousness of dictating judgments and orders by himself. Therefore, the Committee is of the opinion that on holding the charge No.4 fully proved against the delinquent, punishment of reduction of two stages in time scale of pay for a period of two years or till his superannuation, whichever is earlier, with a further direction that during such period he will not earn any increment even if otherwise due and on the expiry of the period of punishment, the reduction will have future effect, is recommended."
5. The aforesaid report dated 28.11.2017 was placed before the Standing Committee in the meeting held on 13.12.2017. It was resolved that the report dated 28.11.2017 of the Committee, recommending the punishment to be placed in the chamber meeting in view of the resolution No.3(viii) of Administration of Sub- ordinate Judiciary (substituted as per the decision taken at Chamber Meeting held on 11.11.2014 and lastly amended on 19.4.2017). After the said resolution, the report was placed before the chamber meeting on 19.1.2018 and a decision was taken to impose punishment as recommended in the report. Pursuant to this decision, on 6.2.2018, the Registrar General of the High Court of Gujarat forwarded a recommendation to impose punishment on the petitioner. On 27.6.2018, at page 180 of the petition compilation, it was decided by the Government, vide notification issued by the Legal Department, to accept the recommendation of the High Court and imposed punishment accordingly. By way of a further modification, on 5.7.2018, the 5th line was corrected, which is reflected on page 181. It is this decision which has led the petitioner to challenge through afore-mentioned writ petition under Article 226 of the Constitution of India.
Page 6 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT6. We have heard Shri Bhaskar Tanna, learned senior advocate, assisted by learned advocate Mr. Nikhil S. Kariel on behalf of the petitioner and Shri Hemang M. Shah, learned advocate appearing for the High Court- respondent No.2 and perused the pleadings and material on record.
7. Shri Bhaskar Tanna, learned senior advocate, assisted by learned advocate Mr. Nikhil S. Kariel on behalf of the petitioner, has raised the following contentions:-
"(B) The Petitioner respectfully submits that only and merely on the ground that departmental proceedings were initiated on the basis of anonymous/ pseudonymous complaints, the entire inquiry proceedings were required to be dropped. It is submitted that time and again the Hon'ble Supreme Court has made it clear that no credence should be given to anonymous/ pseudonymous complaints concerning Judicial Officers of the subordinate judiciary, yet all the said dictums of the Hon'ble Supreme Court were ignored. It is submitted that permitting the punishment to operate, which punishment is based on anonymous/ pseudonymous complaints would be laying down a dangerous precedent which would have disastrous consequences. It has also required to be noted that such punishment will affect the morale of the entire subordinate judiciary inasmuch as the petitioner who is in the cadre of Principal District Judge i.e. senior most position in the subordinate judiciary, could be targeted by anonymous complaints then no Judge in the subordinate judiciary would feel safe. Thus, in the respectful submission of the present petitioner merely on the ground that the disciplinary proceedings emanating from anonymous/ pseudonymous complaints, same deserves to be quashed and set aside.
(C) The Petitioner submits that to the best of the knowledge of the Petitioner, even the Policy followed by the High Court on administrative side with regard to anonymous/ pseudonymous complaints had not been complied with. It is submitted in this regard that the Policy of the High Court on administrative side being that a complaint making allegation against members of subordinate judiciary should not be entertained and no action should be taken thereon unless it is accompanied by a duly sworn Affidavit and/ or verifiable material to substantiate the allegation Page 7 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT made therein. It is submitted that none of the complaints had been supported by a duly sworn Affidavit and prima-
facie there did not appear to be any verifiable material except vague allegations yet the complaints had been entertained. It would be further pertinent to mention that additionally while entertaining the complaints if action had been taken as mentioned by this Hon'ble Court vide Circular No.A.2604/18 i.e. of holding inquiry to find out the source of anonymous/ pseudonymous complaints, then the Petitioner would not have been required to face the present ignomy. It is submitted that a perusal of the complaints clearly revealed that the complaints had emanated from disgruntled elements working in the Court itself, more particularly since issues mentioned in the complaints would not be normally known by non-staff person. It would be pertinent to mention here that the inquiry would also have revealed that most of the complaints may have emanated from Mr. Nilesh A. Nanavati, who had axe to grind against present Petitioner since it was his sister Ms. Rita Nanavati, who had allegedly gone to the Petitioner to lodge a complaint of sexual harassment by another employee. It is submitted by the Petitioner that while he had never denied that Ms. Rita Nanavati had come to meet on the said date, but the reason according to the Petitioner was totally different inasmuch as she wanted the Petitioner to intervene with another employee with whom Ms. Rita Nanavati was to get married but who had later refused on account of horoscope not matching. The Petitioner at that relevant point of time advised Ms. Nanavati that he i.e. the Petitioner would not intervene in inter-personal issues and if she had any complaint against any one she would file a written complaint so that the Petitioner could take appropriate decision thereupon. It is submitted that this stand taken by the Petitioner was not to the liking of Mr. Nilesh A. Nanavati, who was the Private Secretary of the Petitioner at that relevant point of time and misusing the position knowing various confidential issues, such pseudonymous / anonymous application has been made. To further buttress that argument, it is submitted that in complaint by Mr. D.L. Kansara who claimed to be an Advocate, which complaint is a pseudonymous complaint, the complainant states that the Petitioner does not dictate to his Stenographer and that the Steno-diary may be perused to know the truth. It is submitted that more or less maintaining of Steno-diary would be known by very few people and the fact of the Petitioner not having signed in the Steno-diary would be known only to the person who maintains the same i.e. the Stenographer concerned Mr. Nilesh A. Nanavati. Again it is submitted that with regard to serious complaints of Petitioner not having taken any action on complaints of sexual harassment, it is revealed Page 8 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT from inquiry papers that the fact of Ms. Rita Nanavati having met the Petitioner on that particular day was only known to three persons namely the Petitioner, Ms. Rita Nanavati and her brother Mr. Nilesh A. Nanavati. Under such circumstances, the question which ought to have been asked at the stage of inquiry was as to who could have sent the pseudonymous application and the most natural conclusion would be that it had been sent by Mr. Nilesh A. Nanavati himself. It is submitted that had inquiry as envisaged in Circular No.A.2604/18 being conducted at that relevant point of time, which inquiry would be perfectly in tune with the dictates of the Hon'ble Supreme Court in case of Ishwarchand Jain (Supra) then the Petitioner, a Senior Officer of the subordinate judiciary, might not have had to face such humiliating experience.
(D) The Petitioner respectfully submits that the impugned order of punishment also deserves to be set aside by this Hon'ble Court on the ground that entire disciplinary proceedings is based on an preliminary inquiry where all the normal procedures had been done away with and the procedure adopted had left much to be desired. It is submitted at this stage that the preliminary inquiry conducted by the Registrar (Vigilance), Gujarat High Court had recorded statement of persons named in the anonymous/ pseudonymous complaints at the office of a private Advocate, who had a dubious record and who had an imaginary grudge against the present petitioner. It is submitted that statements were recorded at the premises of one Ms. Hema Shukla, Advocate, who was for some period of time working as Member Judge with the Consumer Disputes Redressal Forum, Junagadh and whose service had been terminated by the State Government on account of the said Advocate simultaneously continuing as private practice while employed as the Member of the Consumer Disputes Redressal Forum. Be that as it may, the said Advocate had not been even obliquely referred to in any of the anonymous letters, yet, unfortunately her office was used for the purpose of recording statement and in that bargain her statement also came to be recorded where she had ventilated her imaginary grievance against the petitioner which resulted in Charge No.3 being issued to the petitioner, which had been held not to be proved by the Inquiry Officer and the said conclusion had been accepted by the Hon'ble High Court even prior to issuance of 2nd show cause notice. It is submitted that all these issues go to show that at the relevant point of time the preliminary inquiry had not been conducted and supervised with due seriousness for which reason also this Hon'ble Court may be pleased to set aside the disciplinary proceedings as well as the punishment.
Page 9 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT(E) The petitioner submits that as regards Charge No. 4 which is the only charge to be proved, the Committee, ought not to have given any credence to the statement of Mr. Nilesh A. Nanavati, more particularly since the disciplinary committee had held that Charge No. 1, which is proved by the Investigating Officer as not proved. It is submitted that Charge No.1 pertains to alleged negligence of the petitioner with regard to alleged complaint of sexual harassment by female employee against another employee. It is submitted by the petitioner that the charge being that employee Rita Nanavati had been asked for a party upon her promotion by another employee Mr. H.V.Upadhyaya and under the guise of party he had demanded a one night stand with him. That the allegations against the present petitioner being that Ms. Rita Nanavati had met the petitioner in his Chamber and complaint about such sexual harassment and whereas the petitioner is alleged to have not taken any action in that regard. It is submitted that from day one the petitioner had not denied about Ms. Rita Nanavati having met him on 12.7.2012 but according to the petitioner she had come to the petitioner asking for his intervention since the said other employee Mr. H.V.Upadhyaya with whom she was having an affair was refusing to marry her as their horoscope did not match. It has been the assertion of the petitioner that he had informed the said Ms. Rita Nanavati that since the issue was purely inter-personal issue, he would not intervene and whereas if she had any other complaint she should submit the same in writing upon which the petitioner would take appropriate action. It is submitted that no written complaint had been given by the said Ms. Rita Nanavati and therefore no action had been taken against anybody. It is stated that non-intervention of the petitioner was not to the liking of Mr. Nilesh A. Nanavati, brother of Ms. Rita Nanavati, who was also the Private Secretary to the Principal District Judge. The petitioner had contended that anonymous complaints against the petitioner have emanated at the behest of Shri Nilesh A. Nanavati who had an axe to grind against the petitioner since he felt that the petitioner did not intervene in the dispute between his sister and Mr. H.V.Upadhyaya. It is submitted that the prime witness for holding Charge No.4 as proved was Mr. Nilesh A. Nanavati. Again it is submitted that the fact of the petitioner having not signed in the Steno Diary would only have been know by Mr. Nilesh A, Nanavati and since the diary had been displayed at the stage of Preliminary Inquiry therefore it becomes clear that the anonymous / pseudonymous complaints would have emanated from someone who knew about the same and therefore also the statement of Mr. Nanavati ought not to have been given any credence. In the respectful submission of the present petitioner, evidence Page 10 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT of Mr. Nilesh Nanavati ought not to have been accepted by the committee since he had a direct interest in the entire issue. The Inquiry Officer as well as the Committee having not appreciated the same, gross prejudice has been caused to the petitioner and, therefore, also intervention of this Hon'ble Court is most respectfully warranted.
(F) The petitioner respectfully submits that even otherwise, the Inquiry Officer had gravely erred while holding Charge No.4 as being partially proved since he had primarily relied upon statement of Mr. Nilesh A. Nanavati. That there is another statement with regard to the said charge of one Mr. S.S.Bhatt, Stenographer, which in the respectful submission of present petitioner, no serious support could be derived. Apart from the statement of Mr. Nilesh Nanavati and Mr. Bhatt, the Inquiry Officer had held the charge to be proved on the basis of Column-5 of Stenographer register maintained by Stenographers as per instruction of Hon'ble High Court remaining blank. It is stated that Column-5 pertains to date of dictation and in the Register produced by Mr. Nilesh Nanavati after March, 2011 onwards the Column-5 in Stenographer Register is blank whereas there is signature of the petitioner in the Stenographer Diary every month showing that the same was checked by him. It is submitted that merely on the basis of adverse inference the said charge is sought to be proved whereas on the other hand the petitioner had submitted even before the disciplinary committee that merely on the basis of adverse inference such charge ought not to have been proved. It is submitted that the Inquiry Officer ought not to have taken the deposition of Mr. Nilesh Nanavati into consideration since he was an interested witness and whereas merely on the basis of adverse inference also conclusion ought not to have been drawn that petitioner was not given actual dictation.
(G) As a matter of fact, the disciplinary Committee had also committed the same error by relying upon the testimony- deposition of Ms. Nilesh A. Nanavati and also by drawing adverse inference on the basis of Stenographer's Diary. It is submitted by the petitioner that before the committee it was the contention of the petitioner that there was only one way to have found out that the petitioner had actually given dictation or not i.e. by comparing judgements which have been actually dictated by the petitioner with the judgment which had been allegedly typed out by the Stenographer. It is submitted that comparison would have clearly revealed difference between the dictation of a trained judicial mind, sitting at a senior position and one by a Stenographer. It is submitted that while it would be too difficult and cumbersome to have gone through 300- 400 judgments to try and decipher whether the same had Page 11 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT been dictated by the petitioner and typed out by the stenographer yet despite this, in the interest of justice, as a test case judgment dictated by the petitioner ought to have been compared with judgment alleged to have been typed by Stenographer themselves on random basis which would have clearly proved the picture as to whether the said Mr. Nilesh A. Nanavati and Mr. Bhatt were true or not. Furthermore, it is submitted that none of the judgments alleged to have been typed out by the Stenographers, had ever been challenged before this Hon'ble Court on judicial side, which would have been definitely the case if such a large number of judgments i.e. 300-400 in number were typed by the Stenographer themselves.
(H) It is further submitted by the petitioner that purely going by the finding of the Inquiry officer & of the Committee, it does not appear that the petitioner has committed any misconduct. It is submitted in this regard that the only cogent material against the petitioner was the non - signing by the petitioner on the steno register. It is submitted at the at cost of repetition that while adverse inference could not and ought not to have been drawn, even otherwise, the only mistake that could be alleged and proved was the non signing. It is submitted that for such a minor inadvertent mistake, which would not even fall in the definition of misconduct, such a harsh major penalty ought not to have been imposed.
In any case it had never been the charge that the petitioner did not sign in the steno diary, therefore even if it was held to be proved, the petitioner could not be imposed the punishment impugned herein.
Again the Inquiry Officer & the Committee ought to have considered that the petitioner as a Principal District Judge would also be engaged in numerous administrative work apart from the normal Judicial work done by him. It is submitted that the non - signing by the petitioner in the steno diary also ought to be viewed from the said angle thus leading to a clear conclusion that the same was nothing but a minor infraction which should have been viewed lightly.
Moreover the Inquiry Officer and the Committee also ought to have considered that it was the responsibility of the stenographer to have ensured that the petitioner signed in the steno diary upon giving of dictation. In the instant case the star witness was also an interested witness and hence it ought to have lead to a reasonable inference that it was but a deliberate act on part of the interested witness to entrap the petitioner.
Page 12 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT(I) It is submitted that the petitioner had also contended that he was following direction of the Hon'ble High Court by effectively using the draft model of judgment with the "Learning Write" circulated by Hon'ble High Court for speedy disposal of MACP Cases. The petitioner had noticed that when he had taken charge at Junagadh, cases prior to the year 2000 were pending and whereas the Petitioner had given priority to the disposal of such cases. It is submitted that as per the draft formula, the material and findings were dictated by the petitioner and whereas the remaining contents were to be inserted by the Stenographer, which contents would include the details regarding the legal heirs of the deceased, whether the accident was fatal or not, the date of journey, the details with regard to vehicles including the fact whether the vehicle was driven in rash and negligent manner etc. It is submitted that after insertion of the required particulars by the Stenographer, the petitioner would minutely perused the said judgment before signing on them. It would be required to noted here that most of the 300 - 400 cases as alleged were orders under Section 140 of the Motor Vehicle Act. It is submitted that following the direction/ recommendations of the Hon'ble High Court for speedy disposal of old cases by the petitioner had been misused by disgruntled elements and who had resorted to sending of anonymous/ pseudonymous complaints against the petitioner, which complaints, unfortunately had been entertained resulting in grave prejudice to the present petitioner.
(J) It is submitted that since the disciplinary committee had held Charge No.1 as being not proved more particularly after holding that solely on the basis of deposition of Ms. Rita Nanavati it is not safe to hold Charge No.1 proved against the delinquent officer. Having held Charge No.1 as not proved on the basis of testimony of Ms. Rita Nanavati, the disciplinary committee ought not to have held Charge No.4 as being proved on the basis of testimony of her brother Mr. Nilesh A. Nanavati.
(K) Thus, in the humble submission of the present petitioner, this Hon'ble Court may be pleased to quash and set aside the impugned order of punishment as well as the disciplinary proceedings itself so as to ensure that complete justice is done to the petitioner.
(L) The petitioner further respectfully submits that the penalty imposed upon the petitioner also needs to be viewed from a different angle, i.e. the petitioner who has an outstanding service record finds himself in an awkward position on account of, merely not signing in the steno diary. It is submitted that a perusal of the assessment of Page 13 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT performance of the petitioner by the Hon'ble High Court would make it abundantly clear that a bright career is being over-shadowed on account of a inadvertent & trifling act on part of the petitioner.
(M) The petitioner further respectfully submits that the punishment imposed upon the petitioner would lead to drastic & disastrous consequence as the career prospects of the petitioner for further promotion get completely diminished on account of adverse inference drawn with regard to the non-signing of the steno register. It is further submitted by the petitioner that for the same and said reason this Hon'ble Court may be pleased to decide this petition at admission stage itself, in favour of the petitioner by quashing & setting aside the impugned order of punishment."
8. In addition to this, the learned senior advocate has relied upon the following decisions, in support of his submissions:-
(1) In the case of Union of India and others Vs. J. Ahmed reported in (1979)2 SCC 286;
(2) In the case of High Court of Punjab & Haryana, Through R.G. Vs. Ishwar Chand Jain and Another, reported in (1999)4 SCC 579;
(3) In the case of Ravi Yashwant Bhoir Vs. District Collector,Raigad and others reported in (2012)4 SCC 407.
9. Additionally, as per the request of the learned senior advocate, which was not resisted by the counsel for the respondents, we have called for the original proceedings of inquiry. This is to peruse the statements and relevant depositions of the witnesses as well as the circulars which are sought to be relied upon to support the contentions raised on behalf of the respective parties. The learned senior advocate has taken us through the relevant statements of Mr. S.S. Bhatt and Mr. Nanavati, since they are the main material witnesses. Further, the performance and track record of the petitioner from the year 1999 to 2018 has been brought to our notice. We have also been taken through the relevant circulars Page 14 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT with regard to the subject in question. After drawing our attention to all these relevant materials, a request has been made to grant the relief prayed for in the petition.
10. Additionally, learned senior advocate Mr. Bhaskar Tanna has submitted that this punishment has seriously prejudiced the petitioner. The petitioner was expected to be in the zone of consideration for a higher position and this punishment has practically destroyed the promising career of the petitioner. As a result of this, a request is made to set aside the impugned decision initiated against the petitioner.
11. To meet with the stand by learned counsel for the petitioner, Mr. Hemang M. Shah, learned advocate appearing for the High Court has vehemently opposed the petition. He has contended that punishment has been appropriately awarded, in fact, a lenient view has been taken looking at the gravity of the charges. Mr. Shah has submitted that during the course of inquiry, all adequate opportunities have been given to the petitioner. The petitioner was also provided a personal hearing through a lawyer upon his insistence and as such, departmental proceedings have been initiated in close conformity with the principles of natural justice. Simply because the outcome is not digestible to the petitioner, it cannot be assailed or be permitted to be assailed. Mr. Shah has further submitted that the petitioner being a judicial officer, his indulgence in such an activity is not just an example of serious dereliction of duty but, also unbecoming of a judicial officer. Hence, the punishment inflicted upon the petitioner is just and proper. It has been further submitted that a stand has been taken that most of these cases were MACP and group cases. However, that would not absolve the judicial officer, into entrusting preparation of judgments in the hands of stenographers. The charge Nos.4 and 5 have been Page 15 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT well examined by the Committee which has also examined the pros and cons of the charges leveled against the petitioner. The Committee has clearly found that the charges established must visit with appropriate punishment and made recommendations, which have been accepted by the State authority. This being the position, no fault can be found of any nature with regard to the punishment. Resultantly, no interference is deserved in the present proceedings.
12. Learned advocate Mr. Shah has further submitted that, on the contrary, a combined effect of all the charges leveled is itself a ground to not interfere with the penalty imposed upon the petitioner. Being a head of the District Judiciary, it was incumbent on the part of the petitioner to remain the protector of the employees working under him at the subordinate Courts. It has been submitted that while examining the charges substantially, relating to Charge Nos.4 and 5, a threadbare examination has been made. Upon careful consideration of the explanation of the petitioner and the relevant circulars, a view has been taken that there was negligence on the part of the petitioner. It has been submitted that the stenographer's diary was also well examined by the Committee and the same has been compared with the testimony of the two material witnesses. It was categorically found that the charges leveled are fully proved, i.e. charge No.4 and so far as charge No.5 is concerned, a sympathetic view has been taken. When such is the mode adopted in dealing with the petitioner, there is hardly any substance or merit in the petition. Accordingly, the petition deserves to be dismissed.
13. With a view to emphasize the stand, learned counsel for the respondent has submitted the translated typed version of the depositions of the material witnesses, i.e. of Mr. Nileshbhai Ajitbhai Page 16 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT Nanavati at Exh.18 and Mr. Sharadchandra Shankarlal Bhatt at Exh.25. He has further relied upon decisions delivered by the Apex Court and the High Court, which are referred to hereinafter:-
(1) In the case of Union of India and others Vs. K.G. Soni, vide judgment dated 17.8.2006 in Civil Appeal No.3528 of 2016;
(2) In the case of Union of India (UoI) Vs. P. Gun-
asekaran, vide judgment dated 19.11.2014 in Civil Ap- peal No.10386 of 2014.
(3) In the case of C.H. Upadhyay Vs. State of Gujarat and others reported in 2015(2) GLR 1279.
(4) In the case of Manoj Shrivastava Vs. High Court of M.P. and others vide judgment dated 28.7.2016 in W.P. No.2047 of 1998.
(5) In the case of High Court of Gujarat Vs. Hitendra Vrajlal Ashara, vide judgment dated 24.11.2014 in Civil Appeal No.10304 of 2014.
14. Additionally, by referring to the stenographer's diary, it has been vehemently contended that the most material and relevant Column No.5 of the said diary, which indicated the date on which the judgment is dictated is practically blank. This clearly establishes the imputations made in charge No.4. Therefore, the decision and the process undertaken against the petitioner is absolutely just, proper and in consonance with the provisions contained under the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. The charge of dereliction of duty and negligence as such is proved which would not permit the petitioner to assail by way of invoking the extraordinary jurisdiction of this Court. Mr. Shah has further submitted that the punishment is left to the discretion of the Disciplinary Authority and therefore, the extraordinary jurisdiction may not be exercised for the purpose of substituting even the quantum of penalty. Since the inquiry proceedings have been Page 17 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT conducted in a lawful manner, there is hardly any point available to the petitioner for insisting reliefs prayed for in the petition. Accordingly, the petition, being merit-less, the same deserves to be dismissed.
15. Having heard learned counsel appearing for the respective parties, gone through the overall material placed before us and having gone through the record minutely, few circumstances are eye-catching which may not go unnoticed by us:-
15.1. First of all, out of five charges, the controversy circumscribed is for examining only to the effect of charge Nos.4 and 5. In fact, even charge No.5 has been taken leniently by the Committee.
Concentration is relevant only with regard to charge No.4 significantly. A perusal of the record indicates that undisputedly, here is a case in which the process undergone against the petitioner is on the basis of anonymous letters / complaints received against the petitioner. We cannot leave unnoticed the relevant circular issued by the High Court itself in the year 2015 as well as those reiterated in 2017 with regard to dealing with such anonymous complaints/ letters. The gist of the Circular No.19/2015 dated 19.1.2015 and circular No.25.4.2017, reflecting on page 203 and 204 of the petition compilation, is that a complaint making allegations against the members of the subordinate judiciary should not be entertained and no action should be taken unless it is accompanied by a duly sworn affidavit and verifiable material. Para A, B and C of the said circular in substance read as under:-
"A. The complaint making allegations against members of the Subordinate Judiciary in the States should not be entertained and no action should be taken thereon, unless it is accompanied by a duly sworn Affidavit and verifiable material to substantiate the allegations made therein.
B. If action on such complaint meeting the above Page 18 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT requirement is deemed necessary, authenticity of the complaint should be duly ascertained and further steps thereon should be taken only after satisfaction of the competent authority designated by the Chief Justice of the High Court.
C. If the above requirements are not complied with, the complaint should be filed / lodged without taking any steps thereon."
15.2. Further, we may also notice a past instruction from the year 1991-92, with regard to checking entries made in the diary of stenographers by judicial officer. In the year 1991 as well as in 1997, all judicial officers of the District Judiciary appear to have been instructed by the High Court to vigilantly check the entries made in the diaries of stenographers. A reading of the same clearly indicates that such instructions are to avoid undue delay in typing. It is further to see that if stenographer does not have sufficient work, he may be assigned the copying work pending in the Courts as per the instructions issued by the High Court, vide circular dated 11.12.1984. A bare reading of this circular clearly indicates that the object is to see that the stenographer may not cause undue delay in typing the judgments and to see that appropriate workload be assigned in case it is low. Here, on the contrary, speedy disposal of cases appears to have come in the way of the present petitioner as stenographers have typed out and prepared a higher number of judgments around 300 - 400. Further, we may also not lose sight of the service track record of the present petitioner, whose assessment has remained upto the mark for the entire period commencing from 1999 to 2018, except for the year 2013-14. Probably, the same may be on account of this chapter in which the petitioner has been dealt with. However, to arrive at an appropriate decision, we would like to reproduce the chart indicating the assessment of the petitioner for the above period:-
Page 19 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENTASSESSMENT BY THE HON'BLE HIGH COURT OF GUJARAT SINCE 1999 TO 2018 Sr. Name of Year Assessment by the High Court for the No. the Officer Quarters Ending.
March June Septemb December
er
1 Mr.M.J. 1999 - - - Not
Parikh Assessed
2000 Good Very Good Very Good
Good
2001 Very Good Adequate Very Good
Good
2002 Very Good Adequate Very Adequate
Good
2003 Very Good Poor Poor Inadequate
2004 Very Good Adequate Good Good
2005 Very Good Good Good Very Good
2006 Very Good Very Very Very Good
Good Good
2007 Very Good Very Very Very Good
Good Good
2008 Very Good Very Very Very Good
Good Good
2009 Very
Good
2010
2011 Very Good Excellent Very Excellent
Good
2012 Excellent Excellent
2013 Poor Poor Poor
2014 Poor Poor Excellent Outstanding
2015 Excellent Outstandi Out- Outstanding
ng standing
2016 Outstanding Out-
standing
2017
2018
15.3. We must also observe that even after the incident that has taken place, in the said block period, the assessment of this petitioner has remained 'Excellent' and 'Outstanding', figures that Page 20 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT are very much reflecting for the year 2015-16. So, as a whole, we have noticed that the present petitioner has remained as an efficient judicial officer constantly.
16. With the aforesaid background of the record of the petitioner, we may now analyse the findings of the Inquiry Officer and the Committee which have been approved. As said earlier, during the course of inquiry, the Inquiry officer has concluded and arrived at following conclusions:-
"36. In the result, the net effect of the conclusion with regard to all charges, is stated below:
CHARGE NO.1 : Fully proved
CHARGE NO.2 : Partially proved
CHARGE NO.3 : Not proved
CHARGE NO.4 : Partially proved
CHARGE NO.5 : Partially proved.
JUNAGADH (D.T.SONI)
Dt.04.08.2016 Principal District Judge & Inquiry Officer,
Junagadh."
17. Since the substantial challenge is with regard to the findings related to charge Nos.4 and 5, we have noticed that the Inquiry Officer was himself the Principal District Judge of Junagadh. He has perused the testimony of Mr. Nilesh Nanavati, English Stenographer Grade-I and Mr. Sharadchandra S. Bhatt. It appears from the record that these two persons have remained material witnesses to this entire process against the petitioner and as such, their version is significant for consideration. The Inquiry officer and the Principal District Judge have analyzed the statements of Mr. Nilesh Nanavati, who happens to be the brother of one of the employees Ms. Rita Nanavati, who had some inimical terms with one another employee Page 21 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT Mr. Himanshu. On account of this, it appears that the problem has erupted with the petitioner as he has not intervened. This witness as such was obviously not happy with the present petitioner who did not think that it fit with the problems projected before him unless something in writing was given. Hence, Mr. Nanavati's version may not be independent and unbiased. The Inquiry Officer unfortunately has arrived at the conclusion as if the petitioner was not at all giving any indication and hence inferences drawn against the present petitioner in respect of charge No.4. One relevant circular which cannot be lost sight of is that undisputedly, majority of cases were related to MACP and group cases and for which instructions and the directions were given to type out the judgments. Now, MACP cases are to be dealt with as fast as possible. For this, even draft model of the judgment, "Learning Write" was circulated by the High Court for speedy disposal of the MACP cases. Since majority cases were related to Section 140 of the Motor Vehicles Act, under the principle of no-fault liability, what is to be seen are brief particulars which are undisputedly directed and instructed to be incorporated in the judgments, which has resulted into disposal of 300- 400 judgments. When the petitioner took charge at Junagadh, cases prior to the year 2000 were pending. The petitioner had given priority to the disposal of such cases and by giving dictation of the material findings, a draft format appears to have been instructed. On the basis of this draft format, the stenographers were to type out the judgments and those judgments were perused, corrected and seen and only thereafter, the signature was put by the petitioner. It is not the case against the petitioner that he has not given any instruction, has not seen those judgments and just blindly put his signature. The charge in substance is that he has not personally dictated the judgments to the stenographers. This petitioner has activated and participated in the movement of speedy disposal of old cases through a draft model Page 22 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT of the judgment circulated by the High Court. The petitioner is sought to be punished for such act. Detailed explanation given by the petitioner with regard to this charge contained in para 6 appears to have been cogent one, which may not be possible for us to leave unnoticed. The explanation contained in para 6 at length from page 137 to 144 appears to have been sufficient enough to indicate that charge No.4 was not to be held as fully proved. It appears from the findings that with regard to the said charge, the detailed explanation has not been considered in its true perspective and the statements of the witnesses have not been properly appreciated.
18. In light of the aforesaid circumstances and the explanation contained in para 6, as indicated above, a close perusal of the deposition of Mr. Nilesh Nanavati, at Exh.18, deserves to be examined and perused as a whole. It is not possible to refer to only the isolated sentences for its overall analysis. In chief examination of this witness Mr. Nanavati at Exh.18, at various places, it is conveyed in substance that whatever orders were prepared were on the basis of the instructions and it is categorically asserted that, "I prepared the judgments and orders as per the instructions by Sir". A perusal of this testimony further indicates that the petitioner Mr. Parikh has dictated two judgments and issued necessary instructions to write and copy from the reasonings to be seen from the stenographer book. It further appears from examination-in-chief that the defense advocate on behalf of the petitioner has raised an objection on the move of the Presenting Officer during the course of inquiry. However, regarding the said objection, no decision appears to have been taken, which reflected on para 3 of the said testimony. It further appears as far as the episode with regard to the sister of the aforesaid witness Mr. Nanavati is concerned, the petitioner denied intervention but, has insisted for some writing so as to see Page 23 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT that appropriate steps can be taken. Be that as it may, overall reading of deposition of this witness Mr. Nanavati is not as effective and significant to be placed for sole reliance. On the contrary, in para-12 of the said testimony, this very witness Mr. Nanavati has indicated that some of the judgments have been dictated, a part of which ought not to have been ignored. We are constrained to make reference of the said part of the testimony, which reads as under:-
".........It is true that in the August 2011 part of the register at Sr. 17, 18 and 23 to 29 the dates on which the judgment was dictated these dates are recorded. It is true that in this register in my handwritings dates on which Mr. Parikh had given dictation are recorded. It is true that similarly in the month of September at Sr. Nos. 1, 2, 21 and 22 case on which date judgment dictation was given is recorded in my handwritings. It is true that in January 2012 part at Sr.21 and 26 case in column No.5 on which date was the judgment dictation given this date is recorded......"
19. From further perusal of this testimony on the basis of the cross-examination, we also observe the following assertions which ought to be conjointly read to consider the deposition of this witness Mr. Nanavati, in totality:
"13. I am shown steno register for the period from August 2007 to June 2011. On perusal of the same I state that in the column No.5 the date on which dictation was given I am making mention of the same. In month of February Sr.1 on 2/2/11 there is mention of dictation given by Sir. Similarly at Sr.6 to 9 the dates on which Sir had given dictation are mentioned. This register is given Exh. 22. I am not aware of the fact that for MACP there is one format given by High Court and the use of the same has to be made in the MACP group cases and other cases. It is not true that, certain amount was determined for considering the income of the applicants in MACP cases such as heavy vehicle driver, light vehicle driver, skilled labour worker, unskilled labour worker, labour worker etc. It is true that in these cases how much amount was to be awarded under different heads such as quantum, multiplier, income, disability, in this regard Sir gave me instructions. It is true that, I had prepared 300 to 400 different cases with Mr. Parikh, amongst these majority of Page 24 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT the cases were motor accident cases. It is true that, within two to three days from the date of orders judgments prepared by me I gave to Sir for checking. Also, as per the instructions by Sir I corrected the same. And thereafter Sir pronounced those judgments. It is true that, in the judgments prepared by me judgments under the section 140 no fault liability under the M.V. Act were prepared by me as per instructions by Sir. It is true that, in the MACP group cases in certain cases after the judgment is pronounced then in the remaining cases several Judges instruct to prepare judgments accordingly. It is true that in the group cases the facts of the incident are same therefore below which head how much amount to be awarded such instructions are issued by several Judges, and accordingly I prepare the judgments. It is true that, several cases of MACP were group cases. That they were arising from the same accident."
20. From further assertion, the overall reading appears to be substantially concentrated on the issue of Ms. Rita Nanavati, who happened to be the sister of this witness and how Mr. Parikh did not intervene in the situation. The issue of Mr. Himanshu, one of the employees and of this witness appears to be personal and internal. Hence, in absence of provision of any written material to Mr Parikh, he rightly might not have processed it any further. Be that as it may, an overall view of Mr. Nanavati's testimony is not one that reflects that Mr. Parikh- petitioner has not done anything with regard to preparation of the judgments. The petitioner did pass on the instructions and he did dictate certain cases, on the basis of which, some 300- 400 cases have been disposed of which were substantially related to Section 140 of the Motor Vehicles Act and group cases. On one hand, Mr. Parikh has made a move disposing of cases but, on the other hand, he is faced with a situation where this disposal has turned out to be a negligence on his part. The testimony of Mr. Nanavati is not possible to be given any credence for mainly two reasons substantially, viz. that he happens to be an interested witness, not possessing an unbiased mind against the petitioner and further it is not one which indicates that the petitioner Page 25 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT has not dictated anything at all and only judgments were prepared by stenographers. To punish such a judicial officer, having a meritorious and excellent career throughout his service on the basis of such a weak deposition is absolutely arbitrary. We are afraid that no judicial officer would venture to make a move of disposal of cases as per the draft orders circulated by the High Court itself.
21. Same is the case with another witness, i.e. Mr. Sharadchandra S. Bhatt at Exh.25. A perusal of his examination-in-chief indicates that he serves as Gujarati Stenographer from July 2012 in the Court of Principal District Judge, Junagadh and has been produced as witness against the petitioner. In the cross-examination, this witness in terms has stated in para 2 as to how and in what manner, he was summoned to deliver statement in the chamber of the Joint District Judge. He has further asserted regarding the contents of the circular dated 29.1.1991 issued by the High Court and has voluntarily stated that there is a judgment prepared in his register as per D.J., i.e. as per the instruction of the District Judge. This material witness has also stated that in addition to him, another Gujarati Stenographer used to be called and this witness has also candidly confessed that majority cases were claim cases and group cases, which paragraph we deem it proper to refer to hereinafter:-
"5. I am shown the entry at serial no.198, which is of the date 25.4.2011, in which, date is written in column no.5, the name of Parikh Sir, as Judge who dictated the judgment, is also mentioned. Similarly in the entry no.198 to 214 also, the name of Parikh Sir is written, and the date on which the Judgment is typed and the date on which the judgment is delivered, is also noted. It is true that Sir used to return back the judgment to me for correcting any errors in the same. I was told by Registrar Vigilance to bring current steno diary, therefore, I went with my current steno diary. It is true that most of the judgments prepared by me are with regard to claim cases, in which, most of the cases were group cases. It is true that Sir used to give me notes with regard to most of the reasoning points and used to inform me about the amount to be given in each of the Heads."Page 26 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT
22. In our opinion, a perusal of the aforesaid deposition is not much damaging to the case of the petitioner. Rather it corroborates the explanation given by the petitioner.
23. In view of the aforesaid observations and an analysis of the deposition of these two material witnesses, which have been heavily relied upon, a perusal of the Committee report is also encircled around this very deposition. While coming to the conclusion that charge No.4 is fully proved, there appears to be a substantial reliance placed upon the aforesaid material witness's depositions and column No.5 of the stenographer's diary. Detailed explanation given with regard to this charge, appears to have not been considered, as to under what circumstances, the said cases were disposed of. Substantially, these were group cases and related to No Fault Liability under Section 140 of the M.V. Act. The explanation about the draft model judgment "Learning Write", circulated by the High Court for speedy disposal of MACP cases appears to have not been dealt with. Further, it was not noticed, as is reflected from the conclusion, that at the time of taking over charge, a large number of cases were pending, which the petitioner has given priority to, as demanded and required and the most material aspect that these judgments have not been assailed is also not considered and dealt with. Admission of the material witnesses that these judgments were prepared based on the instructions of the petitioner has also not been considered. So, it appears that in substance, for not signing the column No.5 of stenographer's register, the charge has been leveled against the petitioner. It is also not the case that these judgments lacked any material facts or findings. It does not appear on the record that these cases have been compared or even randomly examined. Be that as it may, charge No.4 is held to be fully proved, based upon these material witnesses. However, in our Page 27 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT considered opinion, the above two witnesses hardly prove the charges. So, in our considered opinion, to hold the petitioner guilty in respect of charge No.4, does not appear to be substantiated by any corroborating material and testimony, which otherwise have been found to be arbitrary, biased and suffering from vice of vagueness.
24. In respect of charge No.5, we observe that even the Committee has not found it to be serious enough and has suggested for a lenient view to be taken. Without examining the said charge much, we may observe that the penalty order passed against the petitioner appears to be arbitrary due to lack of evidence, wholly disproportionate and not well corroborated on the record. That being the position, we are of the view that the punishment inflicted upon the petitioner deserves to be quashed and set aside.
25. In light of the aforesaid observations, we also notice that there is a decision by the High Court Administration to not process any complaint not supported by a duly sworn affidavit or verifiable material to substantiate the allegation. The decision is taken to the effect, that the moment such a complaint in anonymous form is received, if not supported as per the requirement, the same should be filed without taking any step thereupon. In the instant case, the learned counsel appearing on behalf of the High Court has not been in a position to point out that any of the letters or complaints are based on such requirement as decided by our Court. Instead of filing the same, without taking any further step, a punishment is inflicted upon and action that appears to be arbitrary, de hors the policy itself. Hence, that ought to have been noticed and considered before taking any penal action against the petitioner.
26. Further, we may also notice that the requirement of signature Page 28 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT on stenographer' diary is emphasized only with the view of seeing that the stenographers work actually and efficiently and in case of low workload, can be utilized for other copying work pending in the Courts in view of the High Court's circular. A bare reading of the instructions passed way back in the year 1991-92, indicates that the sole object of the same was to ensure sufficient and efficient work by the stenographers. Here, instead of less work, the petitioner as well as the stenographers have joined the movement of fast disposal of MACP cases and have rather followed the draft guiding instructions to them. So, the stand taken by the respondent authority in the affidavit-in-reply placing reliance on such instructions, loses its significance. Hence, we are of the considered opinion that the action of this nature against the petitioner is arbitrary and wholly unsustainable.
27. While coming to this conclusion, we are also of the view that if such an action is allowed to be implemented, it will have a demoralizing effect on the judicial officers, especially those working efficiently in the system. We may also observe that right from the year 2000 onwards, this petitioner has substantially worked on a very good side. Just before the year 2011-12, he has been awarded with an assessment of 'Excellent' and 'Very Good'. Even after this chapter, in the year 2015-16, this petitioner has remained 'Excellent' and 'Outstanding' in the assessment. Hence, we are of the opinion that on the basis of such a weak piece of version of substantially two material witnesses, to allow such punishment upon the petitioner would be an act of arbitrariness and discrimination. We are of the opinion that substantially, irreversible damage has already been done to this petitioner and hence the order of penalty is not possible to be sustained by us.
28. In light of the aforesaid discussion and observations, we may Page 29 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT now deal with and discuss the proposition of law laid down by a catena of decisions, more particularly which are relied upon by the other side.
(1) First of all, learned advocate Mr. Hemang Shah appearing on behalf of the respondent authority has strenuously relied upon the decisions. But, before dealing with those decisions, we observe that it is settled that while applying the principle of precedent, if there is a change of circumstance or even one additional circumstance, which may make a world of difference in applying the ratio, and as such, keeping such proposition of law in mind, the first decision relied upon by the learned advocate is a decision delivered on 17.8.2006 by the Apex Court in Civil Appeal No.3528 of 2006. The said decision is ex-facie not possible to be relied upon in a straitjacket formula. In the said case, a Store Attendant- employee had got married with a lady named in it in the year 1973. While filling the attestation form on 16.4.1974, he did not show her name as his wife. It was further alleged that he got married for the second time in October 1974 with one Ushabai and that was the ground of non-disclosure before the authority. On the basis of such proved material, the Hon'ble Court has propounded that the High Court should not have acted as Appellate Authority and could not have interfered with the quantum of penalty looking to the scope for interference. Whereas, in the instant case, the facts are altogether different and penalty order itself appears to be unsustainable. We may not be able to apply this decision of altogether different circumstance and factual background. The principle has not been emphasized by learned advocate for the respondent.
(2) Another decision, which has been relied upon, i.e. the decision delivered by Madhya Pradesh High Court dated 28.7.2016 in Page 30 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT W.P. No.2047 of 1998, may not have binding effect. However, since the same has been pressed into service, we may examine the applicability thereof. It is true that the yardstick of evidence is altogether different in criminal cases and departmental inquiries. There is no quarrel about the same and further a Writ Court cannot re-appreciate the findings and act as an appellate authority. But to this general proposition, one has to look for comparability of facts. The evidence as a whole, and not for the purpose of re-examination or re- appreciation, but whether there is any non-consideration of relevant evidence which has an impact upon the decision- making process and whether such non-consideration would shock the conscience of the Court in respect of imposition of penalty. Since the case is altogether different, in which a serious charge of making false entries in the official record exists, here no such manipulation has taken place nor alleged at all. On the contrary, mere negligence of not signing or verifying the column No.5 and non-dictation of judgments as alleged. This is not well supported or corroborated by the testimony of the material witnesses, as such, the said judgment is of no avail to the authority. On the contrary, here no cogent and sufficient evidence lies at all.
(3) Yet, another decision which has been relied upon is the decision delivered by the Division Bench of this Court in Special Civil Application No.9079 of 2009 decided on 26.9.2014. Here also, one of the judicial officers while working as Civil Judge, Junior Division and JMFC, Upleta has acted rudely and used to pass orders for cancellation of warrants, etc., illegally with malafide intention. There was a serious charge about demand of money for favourable orders and asking lawyers to follow such practice. The tendency generated by the said judicial officer was of demanding Page 31 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT particular sum of monies, which has been reflected in this case. This has resulted in the passing of such a decision by the Division Bench. Here the facts are not gross or comparable enough to lead us to believe that this decision be applied as a straitjacket formula. The proposition of law is of- course vogue about the power of the High Court and judicial review in case of disciplinary action. Such judicial review, in our considered opinion, is not circumscribed enough to not be exercised even if action is found to be shocking the conscience of the Court. In conformity with the said proposition of law laid down by the Division Bench, we may not apply the same as the said principle is altogether in a different background and factual details. Hence, we are unable to accept the submission of learned advocate on this count.
(4) Yet another decision delivered by the Apex Court in Civil Appeal No.10386 of 2014 decided on 19.11.2014 is brought, wherein it has been propounded that the High Court is not supposed to go into proportionality of punishment, as long as the punishment did not shock the conscience of the Court. In that case, the respondent employee lacked integrity and compulsorily retired from services. In that context, the scope of Article 226 of the Constitution of India is discussed by the Court and propounded. A close reading also indicated that such is not a blanket proposition of law. Having perused the relevant records of this case and upon analyzing the same, we have come to the conclusion that the action is not sustainable in law on various counts and we may not apply this judgment against the petitioner. On the contrary, this very judgment indicated that the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of-
Page 32 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENTcourse fair-play is the basis and if perversity or independence of judgment vitiate the conclusions reached, such finding even though of a domestic Tribunal, cannot be held good. In substance, the cases are on both the lines, but we may observe that in the background of different contextual circumstance, this judgment is of no assistance to the respondent counsel.
(5) Finally, one another decision relied upon is a case dealt with by the Apex Court in Civil Appeal No.10304 of 2014 decided on 24.11.2014. Here also, the Apex Court was confronted with a situation wherein a judicial officer working under the Administrative control of the High Court, passed some ex- parte award in favour of the workman in Reference (LCB) No.490 of 1990. The termination was set aside with a direction to grant consequential benefits. This order resulted to a challenge in Special Civil Application Nos.446 and 520 of 1998 and the High Court dismissed the same. The respondent employee in charge of a Judge of the Labour Court, Bhavnagar allowed the employer's Misc. Civil Application No.37 of 1997 on 8.5.1998. The workman filed a complaint before the President of the Industrial Tribunal. With this background at the center of the controversy, a decision was taken in the proceedings. It is not the case that the large number of disposed cases was a subject matter of any challenge or further controversy. Therefore, since the charge is altogether different in the present background, we are unable to apply this judgment as a straitjacket formula. The law laid down in the said judgment has respectfully been considered by us but we are unable to apply the same to dislodge our ultimate conclusion. Hence, learned counsel appearing on behalf of the respondent authority has failed to establish the case against the petitioner. Resultantly, the order of penalty deserves to be Page 33 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020 C/SCA/14992/2018 CAV JUDGMENT set aside in our considered opinion.
29. Additionally, since an objection is raised by the respondent about exercise of judicial review, we are constrained to take assistance in view of the fact that ultimate analysis and the report of the Committee has observed on page 173 that the alleged charge against the petitioner can be said to be a dereliction of duty by the judicial officer. It can also be said to be negligence towards his duty. No-doubt, the observations regarding emphasis on dictating the judgments and orders by the judicial officer personally are significant but the background of these facts and the nature of cases and disposal has led us to take a different view.
30. In view of the aforesaid proposition of law and the background of facts peculiar in nature, we are of the considered opinion that the order of penalty is unsustainable and the same is hereby set aside. The petition is allowed with consequential observation that since the petitioner has by-now been superannuated, due benefits be passed on to him as if the order of penalty never existed. Accordingly, the petition stands allowed. Rule is made absolute accordingly.
Sd/-
(VIKRAM NATH, CJ) Sd/-
(A.J. SHASTRI, J) OMKAR Page 34 of 34 Downloaded on : Thu Jan 30 04:14:09 IST 2020