Bombay High Court
Jagdish Baliram Totade vs M.N. Bhagat And Ors. on 2 July, 1990
Equivalent citations: 1990(3)BOMCR504, 1991(62)ELT104(BOM)
JUDGMENT H.H. Kantharia, J.
1. The petitioner who holds a Bachelor's degree in Arts faculty was employed by the Maharashtra Public Service Commission (2nd respondent) as Assistant on April 23, 1966. He was promoted as Class II Gazetted Officer and thereafter as class I Gazette officer to the post of Under Secretary from August 1, 1983. His service were governed by the provisions contained in the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979.
2. It is the case of the petitioner that on September 16, 1985 the Dy. Secretary and Controller of Examinations of the 2nd Respondent lodged a complaint with the Director of Anti-Coruption Bureaur, Maharashtra State against him and two other members of the staff viz., Shri V.A. Jadhav Superintendent and Shri P.V. Kumavat, Clerk, alleging that they had committed offence of stealing and forging certain records of the 2nd respondent. Pursuant to the said complaint, the officers of the Anti Corruption Bureau visited the residential premises of the petitioner and carried out a search in which an old diary, containing certain roll numbers, was attached. On the next day a search was taken of the cupboards and tables of the petitioner at the office but nothing incriminating was recovered or seized. However, he was arrested on September 17, 1985, by the officers of the Anti Corruption Bureau and was produced before a Magistrate who remanded him to custody till he was released on bail on October 3, 1985. His statement was recorded while in custody. In the meanwhile he was suspended by an order dated September 23, 1985. On completion of the investigation, the officers of the Anti Corruption Bureau came to the conclusion that there was no material to proceed against the petitioner and therefore they filed an Application before the Metropolitan Magistrate, 23rd Court Esplanade, for discharge of the petitioner which was granted by the learned Magistrate on April 11, 1986.
3. After he was discharged by the learned Magistrate, the petitioner approached the 2nd respondent with a request that he be reinstated but without any results. He therefore filed Writ Petition No. 2004 of 1986 in this Court challenging his continued suspension. During the hearing of the said writ petition a statement was made on behalf of the 2nd respondent that departmental enquiry was intended against the petitioner and therefore, it was necessary to continue the suspension of the petitioner. In view of such a stand taken by the 2nd respondent, this Court directed that charge sheet be issued to the petitioner and the enquiry if started should be completed by the end of December 1986. In view of such direction of the Court, the petitioner withdrew his writ petition.
4. The petitioner then received a charge sheet dated September 26, 1986 in which the following charges were levelled against him :
(1) Shri Totade entered into a secret agreement with the Superintendent of the section dealing with clerical examination for replacement of answer scripts.
(2) Shri Totade failed to take any preventive action against a clerk in the clerical examination section in spite of being informed by another clerk in that section of the suspicious behaviour of the former;
(3) Shri Totade failed to have necessary supervision over members of the staff connected with the work of checking answer scripts of the clerical examination.
(4) Shri Totade maintained in a diary at his residence a record of the roll numbers of some candidates for various departmental examinations held by the Maharashtra Public Service Commission in 1983, 1984 and 1985 with ulterior motive.
(5) Shri Totade maintained in a diary at his residence a record of roll numbers of some candidates for competitive examinations held by the Maharashtra Public Service Commission in 1984 and 1985;
The petitioner promptly replied to the above allegations by a reply dated October 10, 1986. He contended therein that the material on which the allegations were made against him were not supplied to him. Subsequently he received extracts of some of the statements of the witnesses and was informed that the 2nd respondent had decided to hold a departmental enquiry against him, Respondent No. 1 was appointed an Enquiry Officer before whom the petitioner appeared on November 20, 1986 and took inspection of the documents and after some formalities were completed the enquiry proceeded from time to time in which witnesses viz., Jadhav and one Thakur were examined on behalf of the 2nd respondent. The petitioner actively participated in the departmental enquiry. On appreciation of the evidence adduced before him the Enquiry Officer came to the conclusion that charge No. 1 was partially proved and charge Nos. 2, 3, 4 and 5 were totally proved. He accordingly submitted his report on July 30, 1987, recommending that the petitioner to reverted for two years affecting his further promotion. Thereafter, the petitioner received a show cause notice from the 2nd respondent on October 9, 1987 as to why he should not be dismissed from the service. The petitioner was also given, along with the said notice, the report of the Enquiry Officer. Thereafter the petitioner replied to the said show cause notice by his letters dated November 9, 1987 and November 18, 1987. He sought for an opportunity of personal hearing by a letter dated February 24, 1988 but without offering him an opportunity of being heard, the 2nd respondent by his letter dated April 11, 1988, passed an order removing the petitioner from service. The petitioner preferred an appeal to the Hon'ble Governor on May 9, 1988 which was also rejected.
5. Being aggrieved, the petitioner invoked the writ jurisdiction of this Court under Article 226 of the Constitution by filing the present writ petition.
6. Shri Gawnekar in support of this writ petition urged that there was no evidence before the Enquiry Officer to hold the petitioner guilty of the allegations made against him and therefore his report was perverse. The submission of the learned Counsel is that in the facts and circumstances of the case and the material brought on the record the removal of the petitioner from service was not warranted. Controverting this submission, Shri Dixit, the learned Government Counsel, submitted that the statements of the petitioner, Jadhav and Thakur when read together leaves no manner of doubt that the petitioner was involved in the illegal activity of replacing of answer books of the candidates who had appeared fro examinations held by the Maharashtra Public Service Commission and therefore he does not deserve to be in the employment of the 2nd respondent and was therefore correctly removed from service. The submission of the learned Counsel is that the report of the Enquiry Officer and the subsequent order of removal of the petitioner therefore cannot be faulted.
7. A perusal of the report dated July 30, 1987 submitted by the 1st respondent , Enquiry Officer, to the 2nd respondent, Maharashtra Public Service Commission, shows that the Enquiry Officer had not fully applied his mind to the evidence adduced before him and somehow or the other draw inference and came to the conclusion that charge No. 1 was partially proved and charges Nos. 2 to 5 were totally proved. As a natter if fact while dealing with charge Nos. 4 and 5 he made an averment in his report that though there was no evidence to hold the petitioner guilty on charge Nos. 4 and 5, he was of the opinion that the said charges were proved, In view of such vulnerable report that the 1st respondent submitted. I though it fit to go through the entire record to satisfy my judicial conscious whether the Enquiry Officer has done his job I am quite conscious that while exercising discretionary writ jurisdiction under Article 226 of the Constitution, this Court has its limitations and cannot sit over the judgment of the Enquiry Officer but I am also aware and conscious of the legal duty of this Court while exercising its discretionary powers under Article 226 of the Constitution that if the Conclusion reached by the Enquiry Officer was perverse and suffers from obvious and patent errors apparent on the face of the record, this Court would be justified in quashing such findings of the Enquiry Officer while dealing with the writ petition filed public servant under Article 226 of the Constitution. In my judgment in a situation like the one obtaining before us, the High Court can and as a matter of fact must inquire whether there was evidence at all in support of the impugned conclusion as reached by the 1st respondent in the instant case. In other words, the impugned conclusions reached by the 1st respondent in this case must be based on legal evidence and if it is based no evidence or otherwise than on the evidence on the record, the same should be termed perverse and be quashed and set aside
8. Therefore, let us see what is the evidence on record and wheather the same proves the misdemeanour against the delinquent public servant, i.e. the petitioner.
First of all we shall deal with the evidence of one of the accomplice of the petitioner, viz., V.A. Jadhav who I am told at the bar was prosecuted by the Anti Corruption Bureau, tired by the learned Special Judge of Greater Bombay and was convicted and sentenced. An extract of his statement made before the police on September 16, 1985 (page 68 of the Writ Petition) reads as under:
"At the time of Shri Totade's transfer to my section as Under Secretary he asked me in Marathi "E the kai Houshakata ka?" I told him that we could only do the replacement of answer sheets. I also told him further that I am doing this type of replacement of answer papers when Shri Totade replied that he would take 50% share. I gave him an affirmative answer."
It is important to note here that this statement was made by Jadhav to the police when he was in the police custody and therefore his statement will have to be taken with a pinch of salt. Thereafter his evidence before the Enquiry Officer shows that his attention was drawn to statement recorded by the Anti Corruption Bureau in September 19, 1985 and October 25, 1985, which statement, according to him, he had made before the police but there were some mistakes in them. After he went through the said statement he deposed before the Enquiry Officers that the petitioner had told him to change the papers but he replied that he could not do such an illegal thing and it was not right to do such a thing. He also alleged that the petitioner had asked one Kumavat (who was also prosecuted, tried and convicted in this case) to do some work which Kumavat had told to Jadhav. Thereafter, he deposed that the petitioner had in for told him to change the answer sheets and about money he could not say anything and in the same breath he deposed that it was most true that the petitioner had not told him to change the answer sheets. The moot question in the whole case was whether this witness had changed the answer sheets at the instance of the petitioner about which he gave two contradictory statements before the Enquiry Officer. Therefore, it cannot be said that the 2nd respondent adduced sufficient and satisfactory evidence of Jadhav bringing home the guilt to the petitioner. Jadav's evidence, therefore, does not prove the allegations made against the petitioner.
Then Rajan Waman Thakur made a statement before the Anti Corruption Bureau as under:
"Then I contacted Shri Totade, the Under Secretary of Desk 9 sitting outside of the said store room in the hall. I told him that Shri Kumavat is acting in the said store room in suspicious manner. Though I narrated the same incident to Shri Totade no sooner I came out of the store room after seeking (seeing) the suspicious movements of Shri Kumavat, neither Shri Totade called him out nor he went there to see that what Shri Kumavat was doing there at that time."
9. Mr. Gawnekar urged that when initial statement of Rajan was recorded by the Anti Corruption Bureau he had not involved the practitioner at all but involved him later after six months when his above quoted statement was recorded on April 7, 1986. Mr. Gawnekar is right in his submission that at the most what can be said against the petitioner from the above statement of Rajan Thakur is that the petitioner was not quite attentive or conscious to his duty but that does not mean that he was an abetter or conspirator of Kumavat in the matter of mishandling the answer books in the store room. Thereafter the evidence of Thakur before the Enquiry Officer shows that his attention was drawn to his statement dated April 7, 1986 recorded by the Anti Corruption Bureau which he had given without any pressure from the police. He could not say why his statement was recorded after six month. According to him he suspected the movements of Kumavat because he was going and coming out of the store rooms many times and that it was one of his duties to go into the store room. He also deposed that before September 9, 1985 the behaviour of the said Kumavat was not suspicious in my opinion , this evidence deduced by the 2nd Respondent before the Enquiry Officer cannot also establish the guilt of the petitioner of indulging in change of answer books and not much reliance can be placed on the statement of Kumavat who also stood convicted in this case, specially when his statement was recorded by the police after six months of the incident when he involved the petitioner.
10. The petitioner's statement was recorded by the Anti Corruption Bureau at his residence on September 16, 1985 which was also on the record of the Enquiry Officer . The said statement reads as under:
"This is a diary found at my residence this diary is for 1981 and it is known as Crystal Table diary 1981. It is a fact that some pages are already torn for my personal use. I was using this diary for keeping the record of my friends relatives as well as to co-operate my acquaintances by giving the guidelines about the examination and interviews in general if anybody of them appearing for the examination conducted by the Maharashtra Public Service Commission. Similarly, to convey them the results early because the letters dispatched by the office of M.P.S.C. are received late and it becomes difficult for them to appear for the vice-voca,though I was communicating after the declaration of the results. After going through the reference as in the diary it is very difficult for me to opine now as to who had referred the names as well as the numbers as well as the examination the person had appeared for. I had kept the same for reference but I had not obliged anybody beyond my official capacity, I am trying to recollect my memory and in what particular reference it was written. The said diary includes the names and addresses of my relative and friends."
11. Therefore, the explanation of the petitioner soon after the incident was that who had maintained a diary in which he was keeping records of some of his friends, relatives, associates and acquaintances and had also written down some number of the person who had appeared for various examinations held by the Maharashtra Public Service Commission to let them know their results little earlier. From this diary it cannot be inferred that the petitioner was indulging in nefarious activities of changing and/or replacing the answer books of the candidates. The Enquiry Officer pointed out in his report that the petitioner had submitted a list of names of candidates mentioned in the diary but had not examination any witness in support of his claim that the roll number were written in the diary with an intention to help his relatives. In view of the fact that no witnesses were examined on behalf of the Maharashtra Public Service Commission in support of charge Nos. 4 and 5, I am of the opinion that it would have been just, fair and proper and in fact prudence required that when the petitioner gave the names off the persons whose roll numbers were found in his diary, the Enquiry Officer should have made further enquiries whether the petitioner was in receipt of some monetary consideration from those persons and then only it could have been established that he had indulged in the acts of corruption, because the petitioner could not have been removed from service merely for writing some roll numbers in his diary. The prosecuting agency should have further proved that those were the roll numbers of candidates with whom the petitioner had shaddy dealings.
12. In the above premises I am of the opinion that the findings of the Enquiry Officer holding the petitioner guilty of one charge partially and four charges fully, were not based on credit worthy evidence. I am further of the opinion that such findings arrived at by the Enquiry Officer were perverse inasmuch as they were based contrary to the evidence on record because on the evidence, as discussed above, the Enquiry Officer could not have held that the charges were proved against the petitioner. Realising shortcomings of his findings, the Enquiry Officer recommended reversion of the petitioner for two years effecting the future promotion but the Chairman of the Maharashtra Public Service Commission without recording reasons came to the conclusion that the petitioner was not a fit person to continue in the office of Maharashtra Public Service Commission and that he should be removed from service. In the facts and circumstances of the case, in my judgment, the Chairman of the Maharashtra Public Service Commission could not have arrived at such a conclusion. Fully appreciate the anxiety on the part of the Chairman of the Maharashtra Public Service Commission to root out corruption from his office but one should bear in mind that in carrying out such purpose a mere suspicion should not be allowed to take the place of proof even in the domestic enquiries I say so because on account of finding of a diary from the house of the petitioner in which certain roll numbers of the candidates who had appeared for various examination held by the Maharashtra Public Service Commission a suspicion can be raised against him but that would not be enough to remove him from service it is true that the technical rule governing criminal trials in Criminal Court will not necessarily apply to the disciplinary proceedings, but nonetheless while punishing the guilty, scrupulous care should be taken to see that an innocent person is not punished even while holding domestic enquiries under the Statutory Rules.
13. In this view of the matter the writ petition succeeds and the same is allowed. The impugned order of removal dated April 11, 1988 passed by the Chairman of the 2nd Respondent is ordered and directed to reinstate the petitioner with full back wages and continuity of service with all consequential benefits forthwith. The 2nd Respondent, Maharashtra Public Service Commission, is quashed and set aside. The 2nd Respondent is further directed to work out the arrears of loss of wages of the petitioner on account of his illegal removal from service and pay up the same to him on or before 1st August, 1990 along with the salary for the month of July, 1990 falling which the 2nd Respondent shall be liable to pay interest at the rate of 15% on such amounts due to the petitioner effective from August 1, 1990.
Rule is made absolute in the terms aforesaid with no order as to costs.