Gujarat High Court
J P Kakkad vs State Of Gujarat & on 1 July, 2014
Bench: Jayant Patel, Z.K.Saiyed
C/SCA/144/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 144 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
==============================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the
Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil
judge ?
==============================================================
J P KAKKAD....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==============================================================
Appearance:
MR BB NAIK, SENIOR ADVOCATE WITH MR. RADHESH Y VYAS,
ADVOCATE for the Petitioner(s) No. 1
MR RAHUL DAVE, AGP for the Respondent(s) No. 1
LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 2
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M SHAH,
ADVOCATE for the Respondent(s) No. 2
==============================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 0102/07/2014
Page 1 of 52
C/SCA/144/2012 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The petitioner by this petition has prayed for quashing and setting aside the notification dated 05.10.2011 dismissing the petitioner from service and the petitioner has prayed that he be reinstated in service with all consequential benefits including backwages with interest.
2. The short facts of the case appear to be that the petitioner was appointed as Civil Judge (Junior Division) and Judicial Magistrate, First Class on 10.06.1991. He was promoted to the post of Civil Judge (Senior Division) on 30.03.2002 and he was thereafter further promoted as Assistant Judge on 30.04.2004. On account of the merger of cadre, he was again placed as Civil Judge (SD). When he was working as Civil Judge (Senior Division), at Veraval, a Chargesheet dated 10.10.2008 was served upon him alleging various charges. The petitioner submitted statement of defence denying charges levelled against him. Thereafter, inquiry was held. The inquiry officer submitted report dated 11.02.2011 holding charge nos. 1,3, 4 and 5 proved and charge nos.2 and 6 as not proved. After inquiry report was received by respondent no.2, the copy of the inquiry report was supplied to the petitioner with a notice to show cause as to why he should not be dismissed from service. The petitioner submitted reply. Thereafter, decision was taken by respondent no.2 Page 2 of 52 C/SCA/144/2012 JUDGMENT for dismissal of the petitioner and notification to that effect was published on 05.10.2011. It is under these circumstances, the petitioner has approached this Court by the present petition.
3. We have heard Mr.Naik, appearing with Mr.Radhesh Vyas for the petitioner and Mr.Shalin Mehta appearing with Mr. Hemang Shah for respondent no.2. Mr.Rahul Dave, learned AGP for respondent no.1 has adopted all submissions made on behalf of respondent no.2 by Mr.Mehta.
4. In order to have ready reference of the charges which are found to be proved, the same can be reproduced as under:
Charge I When Mr.Kakkad has took over the charge as a Principal Senior Civil Judge, Veraval on 01.06.2005, old matters were pending in this Court. Out of which 838 Land Reference Cases of pre 2001 were also ready and pending for disposal. However, the data of his disposal shows that during the period of one year he has disposed off only 5 Special Suits (OM), 3 Special Suits (Money), 9 Regular Suits (OM), 3 Regular Suits (Money) by judgment. As against the disposal of these Civil Suits, he has disposed of 230 Land Reference Cases and 64 interlocutory applications by judgment during this period.
It is also found from the daily listing board Page 3 of 52 C/SCA/144/2012 JUDGMENT that during the period from 1.09.2005 to 27.04.2006, 19 Land Reference Cases were pending for arguments in Mr. Kakkad's court, but these reference cases were not disposed off by him, till his transfer. The Land Reference Cases No. 1130/99 and 1131/99, 1153/99, 304/99 to 336/99 were pending in his Court since 04.01.2006 and the arguments were also heard by him but these cases were not disposed off by him till his transfer.
As against the above referred facts, it is found that, though he was due for transfer in the month of April, 2006, he had disposed of 64 fresh Land Reference Cases by preponding the date of hearing on 25.04.2006. He has disposed off the following fresh Land References Cases, out of which in Land Reference Case No. 12/05 to 24/05, Mr. G.M.Radadia had appeared as an Advocate on behalf of the applicants and in rest of the matters Mr.P.M.Bhandari was an Advocate for the applicants.
Sr. Land Reference Case No. Group of No. matters.
1 12/2005 to 24/2005 13 2. 25/2005 to 39/2005 15 3. 40/2005 to 60/2005 21 4. 61/2005 to 63/2005 03 5. 64/2005 01 6. 66/2005 to 70/2005 05 7 71/2005 to 76/2005 06It is also found that out of the above referred matters, almost 29 matters were filed between the month of July, 2005 to September 2005 and written Page 4 of 52 C/SCA/144/2012 JUDGMENT statements were filed on behalf of the Government on 15.12.2005. Though all these matters were kept for hearing on 30.01.2006, he had taken up all these matters on board on 28.12.2005 at the instance of applicant's advocate and draft issues were received and accordingly framed. It is also found that all these matters, after recording the evidence of the applicants, were kept on 27.04.2006 for crossexamination of the applicant, but prior to the next date of hearing the said cases were taken up on board and the evidence was completed on 15.04.2006. After completion of evidence one typed judgment of Land Reference Case No. 64/05 was given by him to Mr.R.K.Solanki, Gujarati Stenographer on 16.04.2005 i.e. on the very next day after completion of evidence, he instructed Mr.R.K.Solanki to get it typed and fill up the gaps in the format judgment of Land Reference Case No. 64/05 for the other Land Reference Cases.
Thus, he has by giving an award on higher side, given the financial benefit to the applicants with an oblique motive and for a consideration other than the judicial one. He has not followed the settled Principal of Law as well as different provisions of the Act for determining the market value of the acquired land and he has only relied upon the previous judgment of Land Reference Cases No. 13/03 to 27/03 delivered by him in Page 5 of 52 C/SCA/144/2012 JUDGMENT which also he has considered and relied upon his own judgment delivered in Land Reference Cases No. 1692/99 to 1701/99 in which high market value was determined considering the sale deed of non agricultural land. Thus for deciding high market price in the above referred cases, he has relied on his own previous judgments and thereby, he has created chain of judgments, which is against, the principles of law settled by the Apex Court. Thus, conduct of Mr.Kakkad shows that he passed the award in the said Reference Cases on higher side, with an oblique motive and to give financial benefit to the applicants for which they were not entitled according to law, and thereby, he has committed grave misconduct.
Mr Kakkad also disposed off the following Land Reference Cases. The details of the statement are given as under: STATEMENT SHOWING REMARKABLE ADDITIONAL AMOUNT AWARDED IN THE FOLLOWING LAND REFERENCE CASES:-
Sr. LRC No. Total LAQ Award by LAO Add.Amt. Date of Remark No No. Awarded by disposal s . the Judge
1. 12/05 13 13/96 1,19,720/- 6,37,528/- 25/4/200 to 5 24/05
2. 25/05 15 26/98 5,44,589/- 33,28,784/- -do-
to Matter
39/05 decided
by
3. 40/05 21 11/98 16,20,489/- 76,85,457/- -do- prepondi
to ng
60/05 the date
Page 6 of 52
C/SCA/144/2012 JUDGMENT
4. 61/05 03 24/98 1,98,468/- 11,83,032/- -do-
to
63/05
5. 64/05 01 10/08 9,899/- 1,28,246/- -do-
6. 66/05 05 25/98 1,15,478/- 6,27,248/- -do-
to
70/05
7. 71/05 06 18/98 1,87,557/- 17,85,244/- -do-
To
76/05
Total 64 27,96,200/- 1,53,75,539/
-
8. 59/99 8
to
66/99
68/99 11 20/79 23,74,238/- 4,59,84,751/- 24/03/06
to
78/99
80/99 6
to
85/99
87/99 2
&
88/99
90/99 8
to
97/99
9. 1167/99 30 24/88 1,47,387/- 10,75,524/- 03/01/06
to
1196/99
10. 13/03 15 40/96 12,80,919/- 61,10,942/- -do-
to
27/03
11. 34/03 16 6/99 26,69,925/- 2,08,02,665/- 12/01/06
to
49/03
12. 903/99 06 2/88 25,530/- 3,48,096/- 29/12/05 F.A.No.
to 1737/07
908/99 To
1747/07
13. 1615/99 03 11/92 1,99,060.50/- 14,23,246/- 30/11/05 F.A. No.
to 1745/07
1617/99 To
1747/07
14. 1603/99 06 31/98 1,54,165/- 9,83,946/- 26/10/05
to
1606/99
15. 26/04 06 31/98 9,78,375/- 35,93,209/- 09/08/05 Decided
to within 15
31/04 days
after
framing
issues.
16. 1138/99
to
1152/99
, 19 54/87 10,90,314/- 90,44,574/- 23/08/05
1154/99
,
1155/99
Page 7 of 52
C/SCA/144/2012 JUDGMENT
1007/99
1487/99
Total 1,21,16,113/5 10,47,42,492
0 /-
Mr.Kakkad has also disposed of 32 Land Reference Cases bearing Nos. 59/99 to 66/99, 68/99 to 78/99, 80/99 to 85/99, 87/99, 88/99 and 90/99 to 97/99. The said references were initiated by the original owner of the acquired land of Village Amrapur, Taluka: MaliyaHatina against the Award No. 20/79 in which notification under section 4 was published on 10.09.1981. The said references were originally decided by Mr.M.R.Gohil, the then Civil Judge, Senior Division, Veraval on 15.03.2000 after considering the evidence on record. The market value of the said acquired land was fixed at Rs. 313/ per Are for irrigated land and Rs. 219 per Are for non irrigated land.
The said judgment was challenged by the Government by way of First Appeal No. 1872/05 to 1910/05 before the High Court. The original claimants had not filed any appeals nor they challenged the said judgment by way of filing the cross objection and thereby, they had accepted the award passed by Mr.Gohil but the advocates for the applicants during the hearing agreed to remand the said matters for retrial in his Court. The said remanded matters came up for hearing on 03.08.2005 in his Court and he has determined high market price at the rate of 734 per Are for irrigated land and Rs. 550 per Are for non irrigated land and in that way he has awarded the Page 8 of 52 C/SCA/144/2012 JUDGMENT amount of compensation on higher side. The way in which the consent for remand the matters was given, though it was not challenged by them, and thereafter the way in which all these matters were disposed off by awarding huge amount shows his oblique motive.
Mr.Kakkad has also disposed off Land Reference Cases No. 1167/99 to 1196/99 which were initiated by the original owners of the acquired land of Village Dhusiya, Taluka: Talala. By over looking the evidence on record and also misinterpreting the documentary evidence produced by the parties. He has awarded compensation on higher side so as to give financial benefit to the applicants for which they were in fact not entitled according to law. He has also given the hand written judgment to Mr.R.R.Belim, Gujarati Stenographer on 78 9/12/2005 to get it typed. However, the Rojnama dated 12.12.2005 speaks that additional argument on behalf of the Government was heard on 12.12.2005. Thus, it also creates doubt about his integrity and the way in which he has disposed of the said references cases shows that with an oblique motive and to give financial benefit to the applicants he has passed awards on higher side.
Mr.Kakkad as a Principal Senior Civil Judge have also decided the following Land References Cases;
Page 9 of 52 C/SCA/144/2012 JUDGMENT
Sr. No. Land References Cases Nos. Amount Awarded
1. 903/99 to 908/99 Rs.300 Per Are
2. 1615/99 to 1617/99 Rs.875 Per Are
as an additional
compensation
3. 26/2004 to 31/2004 Rs.1875 Per Are
4. 1138/99 to 1152/99 Rs.2438.50 paisa
1154/99 and 1155/99 per Are.
1007/99 , 1487/99
5. 1721/99 Rs.1600 per Are.
In the above referred matters without scrutinizing the evidence on record and before relying on the previous judgment of either adjoining Village or of the same Village, Mr.Kakkad has not compared the evidence in reference to the development of both the Villages and straight way fixed the amount of compensation on higher side with an oblique motive and to give financial benefits to the applicants and thereby he has overlooked the principals of law, other factors and also the appropriate method for the valuation of the land and thereby he has committed misconduct and dereliction in his judicial duties.
Thus, in all the above referred Land Reference Cases for fixing the market value of the land, Mr.Kakkad has under the pretext of previous judgment relied upon his own judgment, determined the market value of acquired land on higher side so as to give financial benefit to the applicants. In all these cases his favourite advocates Mr.P.M.Bhandari and Mr.B.B.Parmar, Mr.G.M.Radadia and Mr. P.D.Gadhvi had appeared on Page 10 of 52 C/SCA/144/2012 JUDGMENT behalf of the applicants. He with an oblique motive have tried to give special benefit to them by awarding compensation on higher side though other matters were pending for argument. He has disposed off all the above referred fresh Land Reference Cases hurriedly and awarded additional amount of compensation which comes to more than Rs.10 Crores and thereby he with an oblique motive have tried to give financial benefit to the applicants and thereby he has adopted corrupt practice and failed to maintain absolute integrity.
The proceedings and product in the form of the impugned judgement delivered by him in all the above groups appears more like a collective and collusive enterprise rather than and adversarial proceedings between the parties and impartial and dishonest adjudication.
Thus, Mr.Kakkad without any materials and evidence intentionally and purposely ignoring the date of notifications u/s4 of the Act, comparable evidence, settled provisions of law, in all the above LRC awarded huge amount and thereby his conduct shows that the said judgments were given by him with an oblique motive and for a consideration other than judicial one.
Charge III It is found that the advocates Mr.Sikotra, Page 11 of 52 C/SCA/144/2012 JUDGMENT Mr.Sheth and Mr.Vaidya were Mr.Kakkad's favourite advocates and they used to sit daily in his chamber and they were taking tea and refreshment with him and the expenditure was borne by them. The details of the calls statement, of all the three lawyers shows that he was in touch with them and he was talking on his mobile with them often and he has also keep thick relations with other advocates Mr.Hirani, Mr.Dhangodra, Mr.Bhadarka, Mr.Baloch and Mr.Chandnani.
Charge IV It is further found that Mr.Kakkad keeping close relations with one Mr.Haresh Kakkad, Congress Leader, who was supplying girls to him. He was used to sit in his chamber, for a long time and both of them were taking tea and refreshment in the chamber. He used to call Ms.Nita Gohil a lady employee in his chamber, who was working under the establishment of Taluka Legal Service Committee with whom he had close personal relations. She also used to sit in his chamber for a long time.
Charge V One Mr.N.B.Kalaswa, Police Inspector, Veraval City Police Station had lodged a compliant against Mr. Dipaksinh Arjunsinh Dodia, Executive Engineer of GEB vide Veraval City C.R.No.III/5019/04 under the provisions of section 66B, 65AE, 116(2)KH of the Bombay Prohibition Act. The said case was registered as Page 12 of 52 C/SCA/144/2012 JUDGMENT Criminal Case No. 431/04. Mr.P.M.Sikotra had appeared on behalf of the accused. The plea was recorded on 06.02.2006. In the said case, trial was concluded in the month of February, 2006. After conclusion of trial though the accused remained absent twice, his warrant was cancelled and his further statement was recorded on 28.03.2006 and, accused was acquitted after taking bribe of Rs.50,000/ by Mr.Kakkad.
In R.C.S. No. 469/05 filed by one Mr.L.N.Jadeja, through his advocate Mr.P.D.Gadhvi, an application for claiming interim relief to restrain the authorities from taking possession of the quarter and to recover the market rent from his salary was given. It is found from the record that Mr.Kakkad with an oblique motive has intentionally ignored the circular and documents produced at Mark 16 and granted injunction as prayed for, restraining the authority from dispossessing the plaintiff and also from recovering the market rent.
In Special Civil Suit No. 14/05 filed on 25/01/2005, the plaintiff had claimed interim relief to restrain the defendants from interfering with the possession of land bearing R.S.No. 481 which was the subject matter of R.C.S. No. 93/94, in which the decree in terms of compromise was passed earlier and also the execution proceedings was pending between the Page 13 of 52 C/SCA/144/2012 JUDGMENT parties. Till 1/08/2005, no interim relief was granted in favour of the plaintiff. The plaintiff filed an application Exh. 42, to withdraw the said suit, with permission to file a fresh suit, which was strongly objected by the defendants stating reasons, even though without passing any speaking order, Mr.Kakkad allowed the plaintiff and granted permission as prayed for. On the very same day i.e. on 01/08/2005, one another Civil Suits bearing Regular Civil Suit No. 60/05 was filed by the same plaintiff, against the same defendant, on the same subject matter and claiming the same interim relief. Though the defendants of these suits were residing at Una, 90 k.m. away from Veraval, he fixed the returnable date on third day i.e. on 03.08.2005 for service of notice which was personally served only to 3 defendants out of 14 defendants. He without ascertaining the proper service ordered to proceed exparte against defendant no.2 and 4. He also without hearing the defendants passed an order below exh.14 and granted injunction.
Regular Civil Suit No.2/06 was filed on 01.01.2006 for declaration and permanent injunction and also for the relief in mandatory form and the subject matter involved was worth more than 22 lacs. The State had issued notice of recovery of stamps worth Rs.3,34,780/. The AGP raised the dispute in the written statement at Page 14 of 52 C/SCA/144/2012 JUDGMENT para 27 that the plaintiff had not affixed the adequate court fees stamp on the plaint. However, within 7 days he has granted the application Exh.5.
The manner and mode in which Mr.Kakkad has conducted all the above referred matters shows his oblique motive.
5. The aforesaid charges are found to have been proved by the inquiry officer and the conclusion recorded by the inquiry officer for the aforesaid charges reads as under:
Charge No.1 I, therefore, decide that Charge No.1 has been proved against the delinquent.
Charge No.3 I, therefore, decide that Presenting Officer has proved Charge No.3 against delinquent Mr.J.P.Kakkad.
Charge No.4 - Hence, in my considered opinion the Presenting Officer, in all preponderance of probabilities, has proved Charge No.4 against the delinquent.
Charge No.5 Hence, in all preponderance of probabilities, I decide that the Presenting Officer has proved Charge No.5 against the delinquent.
6. As observed earlier, charge No.2 and charge No.6 are not proved and no reasons for disagreement Page 15 of 52 C/SCA/144/2012 JUDGMENT were recorded by respondent no.2. We find that neither reproduction nor discussion may be required on the said aspect. Our judicial scrutiny therefore would be limited to the decision taken by the High Court on administrative side for dismissal of the petitioner on the premise that charge nos.1,3, 4 and 5 are found to have been proved before the inquiry officer and the High Court on administrative side was satisfied for the disciplinary action of dismissal from service.
7. Before we advert to the factual aspects, we may refer to the case law for the scope of judicial review under Article 226 of the Constitution in a matter where disciplinary authority has taken decision for dismissal of service against a judicial officer.
8. We find that we need not burden the judgment with various case laws, but the reference to the recent case laws wherein earlier case laws have been considered, may be sufficient.
9. The Division Bench of this Court (S.J. Mukopadhyaya, C.J. (as he then was) & K.M. Thaker, J) in the case of Amrish Rameshchandra Trivedi v. State of Gujarat, Through Secretary, Legal Department & Anr. reported in 2012 (1) GLR 547, while undertaking judicial review of a case of dismissal of service of a Labour Court Judge, observed at paras 19 to 21 as under:
Page 16 of 52C/SCA/144/2012 JUDGMENT "19. In the process of judicial review the Court will not sit in appeal over the conclusions of the inquiry officer and/or the decision of disciplinary authority and would not reappreciate the evidence or interfere with the findings unless the findings are based on no evidence and are clearly perverse. As held by the Apex Court the taste of perversity is whether the authority concerned could have reasonably arrived at the conclusion on the basis of material on record. We posed the same question with reference to the findings of the inquiry officer and the decision of the disciplinary authority and are not able to hold that the findings can be said to be perverse or could not have been reasonably arrived at.
20. With regard to the scope of interference by the High Court in jurisdiction under Article 226 of the Constitution the Hon'ble Apex Court, in case between State of U.P. & Another vs. Rajkishore Yadav & Another reported in (2006) 5 SCC 673 has observed, that:
" ...It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed..." (emphasis supplied) In the facts of the case reference may also be made to the judgment of the Apex Court in case between Chairman & MD V.S.P. vs. Goparaju Shri Prabhakara Hari Babu reported in 2008(5) SCC 569 wherein the Apex Court has observed that:Page 17 of 52
C/SCA/144/2012 JUDGMENT "17. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (emphasis supplied) 17.1 The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order."
The Hon'ble Apex Court, with regard to the factual findings of the inquiry officer and disciplinary authority has, in case between Y.P. Sarabhai vs. Union Bank of India & another reported in 2006(5) SCC 377, held that: "This Court has repeatedly held that the factual finding of the disciplinary authority after holding a detailed enquiry and after going through elaborate evidence is not assailable in the courts unless the breach of principles of natural justice or the violation of any rules or any material irregularity on the face of record is alleged and shown. However, in this case the High Court in the jurisdiction under Article 226 of the Constitution of India has again gone into all aspects of the enquiry in detail and has come to the same factual finding as the disciplinary authority and the Appellate Authority. Such concurrent Page 18 of 52 C/SCA/144/2012 JUDGMENT findings by three different authorities including the High Court should not be disturbed by this Court under Article 136 of the Constitution of India. We, therefore, have no other option except to dismiss this appeal. Accordingly, the appeal stands dismissed."
We are not sitting in appeal over the findings and the decision of the inquiry officer and it is not within the purview of judicial review to examine the sufficiency of evidence except lack or absence of evidence or to decide about the propriety of inquiry officer's decision to believe one piece of evidence over another.
The Apex Court again emphasized the restrain to be exercised in the exercise of power of judicial review, particularly in the matters related to Departmental Proceedings and imposition of punishment. In 2009, in the decision the case between Chairmancum Managing Director, Coal India Limited and another vs. Mukulkumar Chaudhary and others [2009 (15) SCC 620] the Apex Court observed in para 13 of the decision that: "13. It has been time and again said that it is not open to the High Court to examine the findings recorded by the inquiry officer as a Court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision - making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the inquiry officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the department enquiry, it has to be held that the charges Page 19 of 52 C/SCA/144/2012 JUDGMENT against the delinquent stood proved and warranted no inferences."
21. At this stage, we consider it appropriate to refer to the law declared by the Hon'ble Apex Court, on this point, in the judgment between High Court of Judicature, Bombay v/s Shashikant S. Patil (AIR 2000 SC 22) wherein the Hon'ble Apex Court has observed in para 16 that: "16 ......But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.""
(Emphasis supplied)
10. A useful reference can also be made to the decision of the Apex Court in the case of Nirmala J. Jhala v. State of Gujarat and Anr. reported at (2013) 4 SCC 301 for the scope of judicial review. In the said decision, at paras 22, 23 and 24 the Apex Court observed thus III. Scope of Judicial Review :
22. It is settled legal proposition that judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the Page 20 of 52 C/SCA/144/2012 JUDGMENT conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. (Vide State of T.N. & Anr v. S. Subramaniam, R.S. Saini v. State of Punjab, and Government of A.P. & Ors. v. Mohd.
Nasrullah Khan, AIR 2006 SC 1214)
23. In Zora Singh v. J.M. Tandon & Ors., this Court while dealing with the issue of scope of judicial review, held as under:
"10...The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence.
(Emphasis added)
Page 21 of 52
C/SCA/144/2012 JUDGMENT
24. The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be setaside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a Court of Appeal but, it merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from malafides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."
(Emphasis supplied) The aforesaid shows that the order can be set aside if it is based on extraneous ground or when there are no grounds at all for passing such Page 22 of 52 C/SCA/144/2012 JUDGMENT order or the grounds are such that no one can reasonably arrive at the opinion. The Court would not sit in appeal, but would merely review the manner in which the decision was made. The Court will not normally exercise its power for judicial review unless it is found that the formation of belief by the statutory authority suffers from malafides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of reappreciation of the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, even if one of them is found to be correct, and on its basis the order impugned is passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct the errors of law or procedural error, if any, resulting into manifest miscarriage of justice or violation of principles of natural justice. While exercising power, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, then only the Court should intervene.
In the very decision, for the standard of proof in a departmental inquiry, after considering the Page 23 of 52 C/SCA/144/2012 JUDGMENT various earlier decisions of the Apex Court, it was summarised at paragraph 17 as under:
"In view of the above, the law on the issue can be summarised to the effect that the disciplinary proceedings are not a criminal trial, and in spite of the fact that the same are quasijudicial and quasi criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the principle of preponderance of probabilities would apply. The court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have done. The ratio of the judgment in Prahlad Saran Gupta (supra) does not apply in this case as the said case was of professional misconduct, and not of a delinquency by the employee."
(Emphasis supplied)
11. The aforesaid shows that in a disciplinary proceeding, the doctrine of proof beyond reasonable doubt has no applicability but the principles of preponderance of probabilities would apply. The court would see as to whether there is evidence on record to reach conclusion that the delinquent had committed misconduct. But the said conclusion should be reached on the basis of test of what a prudent person would have done.
12. It is in light of the aforesaid legal position, we may now consider the contentions raised by the learned counsel appearing for both the sides taking into consideration the factual aspects.
Page 24 of 52C/SCA/144/2012 JUDGMENT
13. Mr.Naik, learned counsel appearing for the petitioner raised the first contention that all the charges which are found to be proved are without their being any sufficient evidence and as per him, it was a case of no evidence. He alternatively submitted that no reasonable man with prudence on the basis of the evidence would find that the charges are proved. In furtherance to his submission, he contended that the first charge relates to taking up land reference cases wherein certain advocates were appearing and the allegation was that they were in close contact with the delinquent. He submitted that the delinquent in capacity as Chairman of Taluka Legal Aid Committee had to call Mr.Sikotra who was Vice President of the bar and with other advocates. He submitted that unless there was cooperation by the advocates, the legal aid work cannot be effectively undertaken. It was contended that if lawyers are called in chamber of judicial officer for the purpose of participation in the legal aid activity or for extending of cooperation in legal aid work, it cannot be said that they were having close relation with the judicial officer and that if the learned Judge has decided their matters, it was by way of favouritism or with any extraneous consideration. Mr.Naik further submitted that against the decision on judicial side by the delinquent, the appeals were preferred by the State but those appeals are dismissed and only Page 25 of 52 C/SCA/144/2012 JUDGMENT three appeals are pending, out of which as per his information, two appeals are now decided and only one appeal is pending. He submitted that if judicial orders are not interfered with by the High Court on judicial side, the inquiry officer could not sit in appeal over the said decision of the High Court and take view that the decisions were given by the delinquent contrary to the other Supreme Court decisions. He submitted that in a case where any judicial officer has exercised power on judicial side and the allegation is made that power is exercised by way of favouritism or with extraneous consideration, much higher degree of proof is required, which is lacking in the present case and therefore, he submitted that the findings recorded by the inquiry officer or that the disciplinary authority concurring with the said finding would not meet with the test of reasonable prudence. He also submitted that the advocates who were connected with the case forming part of allegation have not been examined and the evidence of witnesses are only hearsay on the basis of gossips which cannot be said to be a substitute of a legal proof. He submitted that only four advocates were examined who were not appearing as advocate in any of the proceedings. Further, out of those four advocates, two were relatives of one another. None of the advocates were office bearers of the bar association and one was not even in practice. As per him, no Page 26 of 52 C/SCA/144/2012 JUDGMENT advocate of the Government who was appearing in the matters were examined. He submitted that even lady staff who was stated to have been harassed was not examined nor any complaint was made by any lady staff against the delinquent. In his submission, the relevant evidences have been ignored by the inquiry officer and therefore, the finding recorded by him is perverse to the evidence on record. Mr. Naik, learned counsel also submitted that rojkam and other court proceedings which have been considered by the inquiry officer were not supplied to the delinquent nor they were produced during the course of the inquiry and therefore, there is breach of principles of natural justice in respect of all charges.
14. Whereas, Mr.Shalin Mehta, learned counsel appearing for respondent no.2 contended that four advocates who had shown courage to expose the misconduct of a sitting judge can be considered as whistle blowers though the bar may have number of lawyers. But everybody may not come forward for giving evidence. In his submission, the test is whether by cogent and reliable material the accusation or the charge is proved or not. The evidence of the advocates is not based on any gossip or hearsay, but on the contrary, they have deposed before the inquiry officer that they had seen the aforesaid advocates and one Mr.Haresh Kakkad frequently used to sit in the chamber of the delinquent and they were sitting for long Page 27 of 52 C/SCA/144/2012 JUDGMENT time taking breakfast and cigarettes that too during court hours resulting the lawyers wait in the court or outside the chamber if they were desirous to see the judicial officer for court work. He submitted that the evidence has also come on record that those three advocates used to pay for the breakfast and cigarettes of the delinquent. Not only that, but for the lady clerk, the evidence is direct inasmuch as Mr. Pandya and other advocates who were examined have seen the lady clerk sitting in the chamber of the learned Judge for a long time and sharing breakfast and the door used to be closed. He submitted that as per the evidence of Mr.Ritesh Prabhulal Pandya, advocate, he had seen that when the lady clerk was sitting on the dais, the judicial officer would use to tease her leg. In the submission of Mr.Mehta, no contradiction has come out in the cross examination nor the said part is contradicted by way of denial by the delinquent officer. He submitted that if the test is to apply of reasonable prudence, it can be said that any reasonable man would come to the conclusion that the decision in land reference cases and other cases are to favour those advocates by extraneous consideration. He submitted that it is possible that the party or the Government for various reasons might not have preferred appeal against the decision. But such would not be the test. He further submitted that the appeals which are stated to have been Page 28 of 52 C/SCA/144/2012 JUDGMENT dismissed, are in majority of the cases on account of the fact that the amount involved in the appeal was less than Rs.1 Lakh. But thereby, it cannot be said that the High Court has confirmed the order passed by the delinquent on judicial side. In the submission of Mr.Mehta, one has also to apply the doctrine of preponderance of probabilities since the allegation and accusation were like that and it was not a case where a trap was conducted and the judicial officer was found taking money on the spot. In his submission, the evidence on record was sufficient to draw the conclusion that the charge was proved.
15. On the aspect of breach of principles of natural justice, Mr.Mehta submitted that after the chargesheet was served, since there was reference to the court proceeding and the accusation was that the matters were taken up out of turn to favour certain advocates, the delinquent had taken detailed inspection of complete record of all matters. Not only that but he insisted to supply copies of the documents, which were also supplied to him after taking inspection and he had all materials available with him and therefore, it cannot be said that there was any breach of principles of natural justice. Mr.Mehta submitted that sufficiency of the material would not be looked into by this Court while undertaking the judicial review of an action in a departmental proceeding.
Page 29 of 52C/SCA/144/2012 JUDGMENT In his submission, there was sufficient material and the inquiry officer has, based on the same, recorded the conclusion. The High Court on administrative side has further considered the inquiry officer's report and found the case for dismissal. In his submission, the decision by the High court on administrative side would not call for any interference while undertaking the judicial review since in the present case, all tests are fully satisfied for taking decision of dismissal from service.
16. We may first deal with the contention of alleged breach of principles of natural justice. It is true that in the list of documents supplied to the delinquent, the copies of the judgment and orders passed are only referred to and not rojkam or any proceedings of those cases. However, after the chargesheet was served, the delinquent has taken inspection of all the record and not only that, but after inspection, he demanded for the copy of certain documents which he found it appropriate for submitting the statement of defence. Such were supplied as desired by the delinquent. Mr.Mehta, learned counsel appearing for respondent no.2 during the course of the hearing has tendered authenticated record showing the inspection taken and the documents supplied to the delinquent officer. The said aspect has not been disputed on behalf of the petitioner that the inspection was not taken or that the desired documents as demanded by the delinquent Page 30 of 52 C/SCA/144/2012 JUDGMENT officer were not supplied. Therefore, if the inspection of compete record of all those cases which were part of the charge was permitted to the delinquent officer coupled with the aspect that after the inspection, whatever the documents were demanded by the delinquent officer were also supplied to him and thereafter, he submitted the statement of defence. Hence, it cannot be said that there was any breach of principles of natural justice as sought to be canvassed. On the contention that such rojkam of the respective cases or the proceedings were not forming part of the evidence led before the inquiry officer, we find that the charge contained the allegation of taking up of the land references cases out of turn and when inspection of complete record was permitted and the relevant documents were also supplied to the delinquent officer, those matters cannot be said to be extraneous or beyond the scope of departmental inquiry nor it can be said that his defence was prejudiced since opportunity was available to the delinquent officer to contradict the witnesses who deposed before the inquiry officer that certain land reference cases forming part of the charge and other cases were decided with extraneous consideration. Apart from the above, when a complaint is brought before the Court for the alleged breach of principles of natural justice, court may not entertain such complaint if prejudice is satisfactorily not demonstrated before the Court Page 31 of 52 C/SCA/144/2012 JUDGMENT by the complaining party. If the Court is satisfied that no prejudice is caused to the complaining party, Court may decline to entertain the complaint for alleged breach of principles of natural justice. Under the circumstances, we find that the contention for alleged breach of principles of natural justice cannot be accepted. Hence, the said contention fails.
17. An attempt was made by Mr. Naik, learned Counsel for the petitioner to rely upon certain observations of the Apex Court in the case Ms. Nirmala Jhala, and more particularly discussion under the head of "punishment" in corruption cases and he contended that if the same yardstick is applied, it was a case of no evidence.
18. In our view, the said contention is illfounded inasmuch as in Para - 51 of the said decision, the Apex Court did record that either the preliminary inquiry report or the statement recorded therein by the complainant, accused or Shri G.B. Gajjar, Advocate, were not exhibited in the regular inquiry and, therefore, the Court observed that in absence of information in the chargesheet that the statement would be relied upon against the appellant therein, it was not permissible for the Inquiry officer or the High Court to rely upon the same and the Apex Court found that there was breach of principle of natural justice. Such are not the fact situation in the present case, inasmuch as, the statements Page 32 of 52 C/SCA/144/2012 JUDGMENT were part of inquiry, the statements recorded in the preliminary inquiry were relied upon during the inquiry and the witnesses whose statements were recorded in the preliminary inquiry admitted the contents of the statements and such statements were exhibited during the course of inquiry and the delinquent was given full opportunity to crossexamine the witnesses who deposed in the examination in chief as well as whose statements were recorded, but in the cross examination if the statement made in the examination in chief and/or the statement recorded in the preliminary inquiry were not contradicted. Under the circumstances, if the evidence is considered by the Inquiry officer while considering the material in support of the charge, it cannot be said that there is any breach of principles of natural justice nor can it be said that such statements could not have been considered in the inquiry. Hence, the contention cannot be accepted.
19. We may now advert to some of the important evidence led during the inquiry in support of the respective charges.
A) Concerning to charge no.1, Mr.Ritesh Prabhulal Pandya, advocate, in his evidence, has categorically stated that advocate Shri PD Gadhvi, Shri Bhanderi, Shri Rohan Vaidhya, Shri PM Dangodara and Shri PM Sikotra had thick relation with the Page 33 of 52 C/SCA/144/2012 JUDGMENT delinquent and he has also deposed that the contents of the statement recorded by the vigilance officer are true and correct and his statement has been exhibited, being part of the evidence at Exh.39. In the statement given before the vigilance officer, he had stated that the delinquent had personal relation with one Shri Haresh Kakkad who was a congress leader and said Mr.Kakkad used to sit in the chamber for a long time which was known to all lawyers and the Court staff. He further stated that lady staff was called in the chamber and was kept for a long time in closed door and same was also known to all lawyers and staff. He stated that the lady was asked to sit on dais after recess and at that time, it was visible that her leg was being teased. He stated that advocate Shri PD Gadhvi, Shri Bhandari and Shri BB Parmar used to come from Junagadh for conducting cases and their cases were immediately disposed of and several lawyers knew that in land reference cases, percentages were fixed for passing order. He also submitted that in the chamber of the delinquent, for the whole day, three lawyers Shri Sikotra, Sheth and Vaidya used to sit and the matters were being managed and it was known to everybody. He also stated that the delinquent had the habit of using costly branded cigarettes and everyday he used to Page 34 of 52 C/SCA/144/2012 JUDGMENT complete 3 packets and he used to make use of the cars of certain favorite lawyers and he was not using his own car. In his deposition, he further stated that when Shri Haresh Kakkad was sitting in the chamber of the delinquent for two hours, Court could not be started and all lawyers had to wait in the court room. He had stated that though number of old land reference cases were pending, the delinquent used to conduct the cases of only certain advocates for which the bribe was given. Their were large number of other allegations for passing orders by the delinquent on extraneous circumstances. He deposed before the inquiry officer that the delinquent used to compel lady staff to sit in the chamber for hours and door was being closed from inside and he had seen the improper behavior with the lady staff and it was known to other lawyers also. In the cross examination, he has maintained that he has seen Shri Haresh Kakkad visiting during court hours to the delinquent. The delinquent officer was never coming on dais at about 11.00, but he used to work from 12 to 1.30. In the crossexamination, he had admitted that he had heard that in land references cases corruption was going on. In the cross examination, he stated that in the case of Shri Dipaksinh Dodiya, the Page 35 of 52 C/SCA/144/2012 JUDGMENT case was conducted by the delinquent in his chamber and he had knowledge about it and the lawyer of accused Shri Sikotra was also present. The pertinent aspect is that there was no contradiction to the illtreatment given to the lady staff. He maintained that in his statement, which was recorded, it was stated by him that the lady staff was being illtreated and teased.
B) Jayesh Pandya, who was examined at Exh.45 has also stated that in the chamber of the delinquent, three advocates Shri Sheth, Vaidya and Sikotra used to sit for a long time and he also submitted the evidence against one lady clerk Nitaben Gohil. He also admitted that the contents of the statement recorded was correct and same was exhibited at Exh.46. In the said statement, it was recorded that the delinquent was not passing any order without taking money. It was also stated in the said statement that he was knowing Haresh Kakkad who was congress State President and who used to sit in the chamber of the delinquent for long time and everybody was knowing about it. For land reference cases, he stated that after taking percentage, the orders were being passed.
C) Kanaiyalal Girdharilal Joshi, another lawyer at Exh.70 deposed that he had received Page 36 of 52 C/SCA/144/2012 JUDGMENT complaint from the lawyers that the delinquent used to favour certain lawyers. He deposed that he was given threat by the delinquent officer with advocate Hamirbhai Vala that the complaint filed by Ritesh Pandya be withdrawn otherwise he would be put into difficulty. He has confessed the statement given before the vigilance officer and the said statement was exhibited at Exh.71. In the said statement, he has stated that he was Secretary of Bar Association for about 16 years and two times he was President of Bar Association and he had stated that so many complaints were being received against the delinquent from the lawyers and the complaint contained that after getting desired amount, the cases were being decided by the delinquent officer.
D) Another advocate Shri Rajendra Surendrarai Acharya who was a practicing advocate in the Court at Veraval was examined at Exh.72 and he had deposed that he had seen Shri Haresh Kakkad going to the chamber of the delinquent officer so many times and he also referred to advocate Shri Sheth, Shri Sikotra and another advocates going to the chamber of the delinquent as stated in the statement. He has admitted that his statement was recorded by the vigilance officer and the said statement was taken in evidence at Exh.73. In his statement, he Page 37 of 52 C/SCA/144/2012 JUDGMENT has stated that the general impression of the delinquent was that without taking money, he was not passing any order. Even for lady clerk Nita Gohil, he has stated that she was asked to sit in the chamber in closed door by the delinquent for a long time and there was hue and cry that the order was passed by the delinquent in favour of gamblers den by taking money. He maintained that three lawyers, Shri Sikotra, Shri Sheth and Shri Vaidya were sitting in the chamber of the delinquent officer for a long time and same was known to everybody. In the crossexamination of the said witness, except that in two cases, the decision was given against him, no other contradiction has come out.
E) The evidence of the aforesaid lawyers for sitting with Harish Kakkad for long time in his chamber and for sitting with the aforesaid lawyers for a long time in the chamber and also for sharing breakfast, offering cigarettes and payment of the amount by the lawyer is supported by the evidence of Court staff Shri Ashish Kalaiya Peon, Exh.89, Mohd. Siddiq, Peon, Exh.91, Mr.MK D'Souza, Exh.93. The aspect of calling lady Clerk Nita Gohil in the chamber for long time repeatedly and that lady clerk was asked to sit in the chamber for long time and door remained closed during that period Page 38 of 52 C/SCA/144/2012 JUDGMENT is also supported by the evidence of the aforesaid court staffs. The evidence of Gujarati Stenographers Shri MK Mehta, Exh.95, Shri RK Solanki, Exh.97, Shri BM Meghanathi, Exh.99 and Shri RR Belim, Exh.101 shows that the delinquent officer so many times, used to prepare the judgment in his own handwriting and was giving the stenographer for typing and so many times, the judgments were being prepared by filling up of the gaps in handwriting of the delinquent officer and they were being given for typing to the stenographer.
F) The contents of the charges are to be examined in light of the aforesaid evidence that the land reference cases and the cases of only certain lawyers who used to regularly sit in the chamber of the learned Judge for long time and who used to come and visit the chamber of the learned judge frequently, were taken up and the orders were passed by the delinquent officer in their favour by awarding compensation. One of the allegation was that large number of other matters were pending of land reference cases including old matters, but only the matters of those advocates were taken up that too by preponing of the dates fixed and was decided just prior to the period of regular transfer during which he was due for transfer.
Page 39 of 52C/SCA/144/2012 JUDGMENT In view of the aforesaid evidence, it cannot be said that charge No.1 was found to be proved by the Inquiry Officer erroneously without there being any material on record. Be it recorded that, sufficiency of the material is outside the judicial review, but this Court may be required to see as to whether the conclusion recorded by the Inquiry Officer was based on material and legal evidence or not.
The attempt made by the learned counsel for the petitioner to contend that the advocates who were appearing in the matter were not examined or any Government Advocate was not examined, in our view cannot be countenanced for the simple reason that the advocate who has been favoured is not going to come forward for giving evidence. So far as the Government Advocate is concerned, the Government may have various reasons to accept the decision or the Government Advocate may not come forward to give the evidence. We are not impressed by the submission that merely because the Government Advocate was not examined during the course of the inquiry, the other legal evidence of other Advocate duly corroborated by the evidence of court staff should not have been relied upon by the Inquiry Officer.
Page 40 of 52C/SCA/144/2012 JUDGMENT Attempt made by the learned Counsel for the petitioner to contend that majority of the Appeals against the said judgments have been dismissed by this Court and, therefore, Inquiry Officer could not have sat in Appeal or could not have recorded the findings contrary to the decision of this Court, also cannot be countenanced for two reasons, viz. one is that in majority of the Appeals, such Appeals are dismissed on account of smallness of the amount and the decisions of this Court are not on merits. It is true that in two cases, Appeals are decided also on merit, but thereby it cannot be said that the misconduct already committed by the delinquent would automatically get nullified. It is true that the aggrieved party may make a complaint if any favourtism is shown by any Judicial Officer or the judicial powers are exercised with extraneous consideration, but the same can be one of the sources for getting the complaint for misconduct. If in a given circumstance the complaint is not filed by the party to the proceeding, but is filed by any other party who had knowledge about the misconduct committed by the Judicial Officer and the substance is found in such allegation, the same would not get nullified merely because the party to the proceeding has not complained against the Judicial Page 41 of 52 C/SCA/144/2012 JUDGMENT Officer or on judicial side before the higher forum the order is not interfered with. In any case, if one has to apply reasonable prudence, in the circumstance that a Judicial Officer continuously maintains close relations with certain Advocates, that too, to the extent of sitting in Chamber during the courts hours for a long time and shares the breakfast and cigarettes with the Advocates and the payment is being made by those Advocates and when he functions on judicial side the matters of those Advocates are taken up out of turn and huge awards are passed, would show that the decisions are with extraneous consideration other than the judicial one. If the oblique motive and the consideration is other than judicial one for giving the judgment or the award in case by any judicial officer, it can be said that he has committed grave misconduct in discharge of his judicial duty.
G) In respect of charge No.3, same situation would arise as that of charge No.1 inasmuch as, the matters were decided of Shri P.D. Gadhvi and Shri M.P. Sheth and the injunction was granted by exercising judicial power on consideration other than judicial one. There is sufficient material for proof of charge No.3, inasmuch as, the aforesaid Advocates Shri Sikotra, Shri Sheth Page 42 of 52 C/SCA/144/2012 JUDGMENT and Shri Vaidya, used to sit daily in the chamber of the delinquent officer and they were taking tea and refreshment. It has also come through the evidence of Court staff that the expenses were borne by the Advocates. The Court staff who were examined as witnesses have supported the evidence of the Advocates who were examined as witnesses.
Mr. Naik, learned Counsel appearing for the petitioner, made an attempt to contend that mobile data were not produced and, therefore, the charge could not be said to be proved which, in our view, cannot be countenanced for the simple reason that when direct evidence of the Advocates who have seen the aforesaid three Advocates Shri Sikotra, Shri Sheth and Shri Vaidya frequently sitting in the chamber of the delinquent officer, have deposed before the Inquiry officer and in the cross examination, the said aspect is not materially contradicted and further the Court staff who are examined as witnesses have supported the said accusation, merely because the mobile data were not produced it cannot be said that the charge No.3 was found to be proved without there being any sufficient material before the Inquiry officer. The fact that frequently the expenses for breakfast and the cigarettes Page 43 of 52 C/SCA/144/2012 JUDGMENT were being borne by the aforesaid three Advocates would show that while maintaining the relations the delinquent officer also accepted monetary favours from the Advocate for payment of breakfast and cigarettes, that too, during the court hours while on duty.
H) In respect of the evidence of charge No.4, it has been proved by the evidence of the witnesses that one Shri Haresh Kakkad, Congress leader was in close relation with the delinquent. There is sufficient evidence to show that said Shri Haresh Kakkad used to sit in the chamber of the delinquent for a long time and they were taking tea and the refreshment in the chamber. The evidence of the Advocate further shows that on account of the same, the Advocates had to wait in the Court for availability of the delinquent as Presiding Officer and they had also to wait outside the chamber for any judicial work. There is sufficient evidence to show that the delinquent used to call Ms. Nita Gohil, a lady employee, in his chamber and the allegation is that he had close personal relation and she used to sit in the chamber for a long time. Such aspect has been proved by the evidence of aforesaid Advocates who were examined as witnesses and corroborated by the evidence of court staff. The relevant aspect is that as per the evidence of Page 44 of 52 C/SCA/144/2012 JUDGMENT witnesses that the door remained closed when Ms. Nita Gohil was inside the chamber of the delinquent and one of the advocates has deposed to the extent that the lock was being applied to the chamber. The advocate Mr. Pandya has, in his evidence stated that when the said lady was sitting on dais, he had seen the delinquent teasing her leg with his leg. The aforesaid evidence has not been contradicted in the cross examination of the said witness. The fact of Ms. Nita Gohil being called in the chamber frequently and sitting for a long time and sharing break fast is also corroborated by the evidence of court staff who were examined as witnesses. In our view, if the Inquiry Officer has come to a conclusion that the charge No.4 is proved, such could not be said as without any evidence. It has not come on record that Shri Kakkad was supplying the girls to the delinquent, but in our view the said aspect, at the most, can be considered as lacking proof to that extent. But thereby, it cannot be said that other accusations made in charge No.4 were found to be proved without any sufficient material. In our view, even if such aspect of supplying the girl is excluded, the substance of accusation under charge No.4 was relating to unbecoming of a judicial Officer which was found as proved by the inquiry officer. It cannot be said Page 45 of 52 C/SCA/144/2012 JUDGMENT that such conclusion was without material.
Mr. Naik, learned Counsel appearing for the petitioner, attempted to contend that the said lady employee Ms. Nita Gohil was not examined nor any complaint was received for the conduct of the delinquent and, therefore, the accusation in charge No.4 cannot be said as proved. In our view, such attempt cannot be countenanced for the simple reason that the charge was not that Ms. Nita Gohil had made any complaint, but the charge was that the delinquent had close personal relation with the said lady and she used to sit in the chamber of the delinquent for a long time. The attempt was also made by Mr. Naik to contend that other lady officer could have been examined before the Inquiry officer for showing the conduct of the delinquent and as she is not examined, it cannot be said that the charge No.4 was proved. Again the said attempt is misconceived, inasmuch as the said attempt cannot be countenanced because the charge was not that the delinquent used to harass the lady employee, but the charge was that the delinquent while on duty was allowing the lady officer to sit in the chamber for a long time and thereby was maintaining close personal relation coupled with the aspect as it has come in evidence that during the period when Ms. Nita Gohil was inside the Page 46 of 52 C/SCA/144/2012 JUDGMENT chamber the door used to remain closed and also locked as stated by one of the advocates who was examined as witness. Further, as recorded by us herein above, when said lady was sitting on dais the delinquent used to tease his leg with the leg of Ms. Nita Gohil. Under the circumstances, it cannot be said that the Inquiry officer has found charge No.4 proved without there being any sufficient material.
I) On the aspect of sufficient material for conclusion of charge No.5 found to be proved, more or less, the same material which was considered for charge No.1 would be required to be considered since in one of the matters, the advocate Mr. P.M. Sikotra and in other matter Ms. P.D. Gadhvi, who also used to frequently sit in the chamber of the delinquent were appearing as advocate for the respective parties.
J) In the matter of Shri Dodiya, evidence has come on record that the evidence was recorded by the delinquent in his chamber when the Advocate Shri Sikotra was present, but the accused was not present and he acquitted Shri Dodiya, who was accused in the case.
K) We may not repeat the evidence considered by the Inquiry Officer, but suffice it to Page 47 of 52 C/SCA/144/2012 JUDGMENT observe that it cannot be said that the conclusion recorded by the Inquiry officer for charge No.5 could not be said to be without there being any material evidence.
L) Be it recorded that as observed by the Apex Court in the case of NIRMALA J. JHALA (supra), reproduced by us herein above, while considering the standard of proof in a departmental inquiry, the principles of preponderance of probability would apply and the Court has to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct or not, but such conclusion has to meet with the test of a prudent person applying prudence for reaching to the said conclusion.
20. In our view, following aspects would lead the inquiry officer and the disciplinary authority to reach the conclusion that grave misconducts have been committed by the delinquent in the capacity as judicial officer
(i) Allowing and entertaining three lawyers in chamber for a long time and during the said period the judicial work is sacrificed and the lawyers and the litigants sitting in the Court are made to wait;
(ii) Sharing of tea and the breakfast and cigarettes with certain advocates in the chamber Page 48 of 52 C/SCA/144/2012 JUDGMENT frequently by the Judicial officer for which the expenses are borne by the said lawyers;
(iii) No explanation submitted for the aforesaid conduct except that of the work of Taluka Legal Aid, but no material is produced by the delinquent for any contribution made by any of the said advocates, who were frequently sitting in the chamber for a long time;
(iv) Taking up of the cases of those Advocates out of turn and rendering decisions by preponing of the dates, that too, just prior to due period of transfer;
(v) Close relation with the lady staff, sharing breakfast and spending time frequently in the chamber during the court hours with the lady staff and compelling the lawyers and the litigants sitting in the court to wait during the said period.
(vi) Sharing breakfast with the lady staff in the chamber, allowing the door to remain closed and also applying the lock for some time.
(vii) Teasing the leg of a lady staff when she is sitting on dais;
21. In our view, the aforesaid circumstances would, by applying reasonable prudence, go to show that the conduct of the delinquent could be said as not only unbecoming of a Judicial officer, but it Page 49 of 52 C/SCA/144/2012 JUDGMENT can also be said that the decision rendered in a judicial matter by the Officer in favour of certain Advocates were for the consideration other than judicial and can be termed as for extraneous consideration.
22. As observed by the Apex Court in the case of Ms. Nirmala Jhala (supra), which has been reproduced herein above, the Court must exercise the discretion with great caution keeping in mind the larger public interest and unless there is overwhelming public interest which requires interference, the Court may not interfere. In our view, if the aforesaid charges of serious misconduct are proved and if the disciplinary authority has exercised powers for imposing of punishment of dismissal from service to the said delinquent, who was Judicial Officer, it could not be a case for exercise of a discretion to interfere with such decision of the High Court on administrative side. It is true that higher judiciary owes a duty to protect the subordinate judicial officer, but at the same time, it is equally true to maintain purity in the system of administration of justice to impose appropriate punishment if the misconduct is found to be proved. Favourtism shown by any judicial officer to any party to the proceeding, may be, at the instance of a lawyer or otherwise for the consideration other than judicial, by no means can be termed as bonafide conduct of a judicial Page 50 of 52 C/SCA/144/2012 JUDGMENT officer. It is the basic requirement of any judicial officer to discharge the duty in an impartial manner and if the impartiality is lost, it would adversely affect the system of administration of justice at the root level. In the present case, the degree of a close relations and entertaining the lawyer in the chamber has resulted to the extent that public image is created of the officer that only certain advocates would get favour for passing judicial orders and such has been so materialized when the judicial orders are passed by taking up their matters out of turn in a very unusual manner. Under the circumstances, keeping in view the larger public interest, if the respondent No.2, on administrative side, has taken the decision for dismissal of service, we do not find that the punishment can be said as disproportionate to the charges proved or the misconduct proved.
23. Mr. Naik, learned counsel appearing for the petitioner, also made an attempt to contend that the past record of the delinquent prior to the present inquiry was clean, inasmuch as, there were no adverse remarks for integrity of the said delinquent officer. He submitted that taking into consideration the said aspect, punishment could be said as disproportionate to the charges proved and, therefore, this Court may interfere on the quantum of punishment and may substitute the punishment by imposing the punishment other than Page 51 of 52 C/SCA/144/2012 JUDGMENT that of dismissal from service.
24. On the aspect of interference with the quantum of punishment the law is wellsettled, inasmuch as, unless the punishment is disproportionate to the charges proved, while undertaking judicial review the Court would not interfere. If the charges of serious misconduct are proved and then the punishment is imposed for dismissal of service, we do not find that such punishment would call for interference on a mere ground that in past, no adverse remarks were recorded for his integrity. Hence, the said contention cannot be accepted.
25. In view of the aforesaid, we find that no interference is called for with the impugned decision as prayed by the petitioner. The petition is dismissed. Rule is discharged. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) bjoy/sas Page 52 of 52