Delhi High Court
High Court Of Bombay vs Uday Singh on 9 April, 1997
Equivalent citations: 1997RLR558
JUDGMENT
(1) Respondent was a Civil Judge at Nasik. It was alleged that on 21.10.89, he conveyed message to Kundanben, Deft. in eviction suit demanding P.s. 1,000.00 for deciding in her favour. She told her lawyer of this who told. Asstt. Govt. Advocate. Latter conveyed this to the Govt. Advocate who in turn complained to Distt. Judge. Latter recorded adverse remarks against respondent in confidential file. Civil Judge asked High Court to expunge remarks. High Court asked Distt. Judge to enquire and after receipt of same ordered Disciplinary enquiry. On receipt of report. High Court took the view that integrity of respondent was doubtful and called for penal action. After taking explanation of the Judge, High Court ordered his dismissal. Respondent challenged his dismissal by filing W.P. in High Court. It was allowed and the state appealed to to Supreme Court. After detailing above facts, judgment is :
(2) Shri Harish Salve, learned senior counsel appearing for the appellant contends that the view taken by the Division Bench is not correct in law. Under judicial review court cannot re-appreciate the evidence of witnesses and reach its own conclusion. The Court could have seen on the basis of evidence on record whether a reasonable man would reach the conclusion that the respondent was actuated with the corrupt motive in making demand for illegal gratification tor discharge of official duty (he High Court, therefore has over-stepped its limits of judicial review and the conclusion reached cannot be supported either by principle of law or any of the law laid down by this Court. Shri Lambai, learned counsel appearing for the respondent on the other hand contends that on the basis of evidence on record no reasonable man would reach the conclusion that the respondent has committed any act of misconduct i.e. demand of illegal gratification. The subsequent statements of the advocates and of the complainant show that it is only face saving attempt made by the District Judge to substantiate the adverse remarks made by the District Judge when the respondent brought these facts on record. The Disciplinary Committee did not consider the same from this perspective. So they cannot form as foundation for taking disciplinary action against the respondent.
(3) Having regard to the respective contentions, the question that arises for considerations is whether the view taken by the Division bench is sustainable in law ? As regards the nature of the judicial review, it is not necessary to trace the entire case law. A bench of three Judges of this Court has considered its scope in recent judgment in B.C. Chaturvedi Vs. Union of India & Qrs. in which the entire case law was summed up in paragraphs 12,14 and 15 thus : "Judicial review is not appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are compelled with. Whether the findings or conclusions are based on some evidence the authority entrusted with the power to hold inquiry has jurisdiction power and authority to reach a finding 10 fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein apply to disciplinary proceeding. When the authority accepts the evidence and conclusion receives support there from the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge." "14. In Union of India Vs. S.L. Abbas [(1993) 4 Cc 357] when the order of transfer was interfered with by the Tribunal this Court held that the Tribunal was not an appellate authority which could substitutes own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances interfere with orders of transfer of a government servant. In Administrator of Dadra & Nagar Haveli Vs. H.P. Vora [1993 Supp. (1) Scc 551] it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant. Recently in State Bank of India Vs. Samarahdra Kishore Endow a Bench of this Court in which two of us (B.P. in Jeevan Reddy and B.L. Hansaria JJ) were members considered the order of the Tribunal which quashed the charges as based on no evidence, went in detail into the questions as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would there force be clear that Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority." "15. It is therefore difficult to go into the question whether the appellant was in possession of property disproportionate to the known sources of his income. The findings of the disciplinary authority and that of the Enquiry Officer are based on evidence collected during the inquiry. They reached the findings that the appellant was in possession of Rs. 30,000.00 in excess of his satisfactorily accounted for assets from his known source of income. The alleged gifts to his wife as Stridhana and to his children on their birthday were disbelieved. It is within the exclusive domain of the disciplinary authority to reach that conclusion. There is evidence in that behalf."
(4) Law on the nature of the imposition of the penalties has been summed up in paragraph 18 thus: "A review of the above legal position would establish that the disciplinary authority and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority shocks conscience of High Court, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
(5) Accordingly, the order of the Tribunal in reversing of the penalty was set aside. In another judgment in State of Tamil Nadu Vs. S. Subaramaniam [(1996) 7 Scc 509], this court has considered the scope of the power of judicial review via-a-vis re-appreciation of evidence and concluded as under: "The Tribunal appreciated the evidence of the complaint and according to it the evidence of the complaint was discrepant and held that the appellant had not satisfactorily proved that the respondent had demanded and accepted illegal gratification. The Tribunal trenched upon appreciation of evidence of the complainant, did not rely on it to prove the above charges. On that basis, it set aside the order of removal. Thus this appeal by special leave." "The only question is: whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The tribunal is not a court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by Central Administrative Tribunal Act. It is the exclusive doman of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence. Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the power of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi Vs. Union of India . State of Tamil Nadu Vs. T.V. Venugapalan Union of India Vs. Upendra Singh) . Government of Tamil Nadu Vs. A. Rajapandian and B.C. Chaturvedi Vs. Union of India (at pp. 759-60). In view of the settled legal position the Tribunal has committed serious error of law in appreciation of the evidence and in coming to its own conclusion that the charge had not been proved. Thus we hold that the view of the Tribunal is exfacie illegal. The order is accordingly set aide. OA/TP/WP stands dismissed."
(6) These two judgments squarely cover the controversy in this case.
(7) It is seen that the evidence came to be recorded pursuant to the complaint made by Smt. Kundanben, defendant in the suit for eviction. It is true that due to time lag between the date of the complaint and the date of recording of evidence in 1992 by the enquiry Officer, there is bound to be some discrepancies in evidence. But the Disciplinary proceeding are not a criminal trial therefore the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "prove beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man in the circumstances, would be justified in reaching that conclusion. The question, therefore, is: whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favorable to a party has been proved ? In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her party, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District judge to substantiate the adverse remarks made by the district Judge on the basis of statements to be recorded from the advocates and the complainant. At that stage, the respondent was not working at that station since he had already been transfered. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form. an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises: whether their evidence is acceptable or not ? In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the district Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When that evidence was available before the disciplinary authority, namely the High Court, it cannot be said that it is riot a case of no evidence, nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified.
(8) Under these circumstances, the question arises: whether the view taken by the High Court could be supported by the evidence on record or whether it is based on no evidence at all ? From the narration of the above facts, it would be difficult to reach a conclusion that the finding reached by the High Court is based on no evidence at all. The necessary conclusion is that the misconduct alleged against the respondent stands proved. The question then is: what would be the nature of punishment to be imposed in the circumstances ? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant intereference.
(9) The appeal is accordingly allowed. The judgment of the Division Bench of the High Court stands set aside and that of the High Court dismissing the respondent from service stands upheld. No costs.