Bombay High Court
Vasant Narayan Damle vs Honourable Chief Justice, High Court Of ... on 16 September, 2002
Equivalent citations: [2003(96)FLR553], (2003)ILLJ1055BOM
Author: V.G. Palshikar
Bench: V.G. Palshikar, P.V. Kakade
JUDGMENT V.G. Palshikar, J.
1. By this petition, the petitioner who was a District & Sessions Judge in the State of Maharashtra has challenged the order passed by the High Court of Judicature at Bombay, dismissing him from service on the ground that the misconduct alleged against him was duly proved before the Disciplinary Authority and the Enquiry Officer and therefore this punishment was meted out. Facts giving rise to this petition are that the petitioner while working as a District and Sessions Judge, Nagpur granted anticipatory bail to certain accused, some of them were advocates of that Court, which according to the department was a misconduct and therefore a charge-sheet was issued to him. The incident as alleged by the department is that in the evening of March 30, 1994 certain lawyers approached the petitioner and requested him to take up for urgent orders an application for anticipatory bail, as it pertains to certain advocates. Taking into consideration the fact that the advocates who mentioned the matter were seniors, the petitioner assented to the request and gave them a hearing at 10.30 p.m. at his residence. The lawyers presented an application for bail and sought anticipatory bail. The circumstances leading to that prayer were that there was a maid servant in the family of Dewani and on March 28, 1994 she was found dead in the porch of the house of Dewani. An offence to that effect was therefore registered by Jaripatka Police Station, Nagpur and the applicant in whose house the body was found apprehending his involvement in the crime and arrest, moved an application for grant of anticipatory bail.
2. After hearing the counsel appearing for the applicant, the petitioner granted ad-interim anticipatory bail and placed the matter for hearing in the Court on March 31, 1994 at 11.00 a.m. On March 31, the matter was heard from 3.00 p.m. to 5.00 p.m. and closed for orders. April, 1 was a holiday and therefore the matter was posted for orders on April 2, 1994. The petitioner dictated the order to his stenographer on April 1, 1994 and the matter was ready for pronouncement on April 2, 1994. By the order pronounced on that day, the application for anticipatory bail as filed by the applicant was rejected by the petitioner.
3. The incident in which the death of Smt. Manorama Kamble had occurred on March 28, 1994 took a curious political turn as she was belonging to scheduled caste and sensing the possibility of getting political mileage out of this, several wild allegations and complaints were made. Speculations were making rounds of the city as to the manner in which the death occurred. We are not concerned with the conclusion of the trial of Dewani but all these speculations and allegations were made against certain judicial officer and that they had attended certain parties prior to that date at the residence of Dewani and consumed alcohol and non vegetarian food etc. It was also speculated that Dewani family was not a family of high reputation and that Advocate Shyam Dewani developed contacts with the local judicial officers and he used to host parties to such Judges. The allegation was also that the petitioner was one of the Judges, who attended such party. Taking into consideration the wild allegations made, the serious charge levelled against the Judge, High Court thought it fit to commence a departmental enquiry into the allegations of involvement of the petitioner and one Additional District Judge, Shri Wagh in the entire episode. Accordingly Mr. B.B. Varale, who was then the Director of Judicial Officer's Training Institute, Nagpur was asked to make preliminary enquiry. Thereafter in March 1996 the petitioner was suspended from service and enquiry was started against him. The copy of the charge-sheet was duly served alongwith the statement of imputations. Thus the petitioner was charged of misconduct in relation to the incident of March 1994 of granting anticipatory bail for about two days after two years and the charges read as under:
1. That Shri V.N. Damle, delinquent No. 1 was posted at Nagpur as District and Sessions Judge during the period from December, 1990 to July, 1994 and during his tenure at Nagpur was attending wet parties hosted by Advocate Shyam Dewani (Accused in Crime No. 97/1994 of Police Station Jaripatka) at his house and at other places, which amounts to conduct unbecoming of a Judicial Officer.
2. That Shri V.N. Damle, delinquent No. 1, the then District and Sessions Judge, Nagpur, for considerations other than judicial, passed an order of anticipatory bail in favour of Advocate Shyam Dewani and 5 others at his house on March 30, 1994 at 10.45 p.m. although, it was mentioned in the bail application itself that the accused were involved in the commission of offence punishable under Sections 302, 376 and 201 of the Indian Penal Code read with Section 3 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, without giving an opportunity to the public prosecutor investigating officer, of being heard and with the knowledge that anticipatory bail cannot be granted in cases registered under the provisions of S.C. & S.T. (Prevention of Atrocities) Act. Hence Shri Damle, delinquent No. 1 thereby, indulged in corrupt practices which amounts to grave misconduct.
4. During the enquiry which was conducted by a Judge in the City Civil Court, Bombay, evidence was recorded of witnesses at the behest of the Disciplinary Authority Opportunity was given to the delinquent petitioner to lead evidence in defense and after the enquiry was concluded, report was submitted by the Enquiry Officer. On the basis of this enquiry and the report the Disciplinary Authority issued show cause notice asking to show cause why petitioner should not be dismissed from service. The petitioner gave an elaborate reply to this notice and considering the submissions made by the petitioner and the department, the Disciplinary Authority came to the conclusion that the explanation not being found satisfactory, the petitioner was liable to be dismissed from service. He was accordingly dismissed from service, which dismissal is the subject matter of challenge in this writ petition.
5. We have heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the High Court. We have scrutinised the entire record of the proceedings. The learned counsel appearing on behalf of the petitioner assailed the order of punishment dismissing the petitioner from service on several grounds. The basic challenge is to the fundamental error committed by the High Court in recording the order of conviction and punishment without there being any evidence on record to warrant such finding. The learned counsel appearing on behalf of the High Court submitted that though the order of punishment given by the High Court as disciplinary authority is justicable, its judicial review is possible. The scope of such judicial review is very restricted and scrutiny of the evidence on record would show that there was adequate evidence to support the conclusions reached by the disciplinary authority and there was therefore no case for interference by this Court. The submission of the learned counsel was that reappreciation of evidence by this Court is not possible and permissible under the statute of law and hence merely because this Court can come to a different conclusion on appreciation of evidence on record, it cannot be interfered with the findings recorded by the disciplinary authority and therefore the petition is liable to be dismissed.
6. The position of law on the point is very clear and settled. The Supreme Court of India has in the case of High Court of Judicature at Bombay v. Shashikant S. Patil and Anr., 2001 SCC 416, pointed out the area of the limits within which judicial review is permissible in the matter of departmental proceedings, which reads thus:
"The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But it cannot be overlooked that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry 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."
7. From the above dicta of the Supreme Court of India, it will be clear that the only case in which interference by this Court in its writ jurisdiction is possible and permissible is where the disciplinary authority has drawn certain conclusions which were obviously arbitrary and could not have been drawn by any judicial authority. Reliance was placed on certain other decisions of the Supreme Court in support of this very proposition. Mr. Dharmadhikari, the learned counsel appearing on behalf of the petitioner submitted that there can be no dispute about the proposition submitted by the High-Court, but his case is that there is no evidence on record whatsoever to come to the conclusion that the charges framed against the petitioner are proved. According to him it is a case of no evidence and yet order of punishment is passed and therefore interference by this Court is possible. He also relied on several decisions of the Supreme Court in support of this proposition. Again there is no doubt that where the disciplinary authority has found a delinquent guilty, without there being any evidence whatsoever on record to support such finding of guilt, a judicial review is permissible and interference by this Court under Article 226 is possible.
8. Therefore we have to see whether present is a case of punishment inflicted without there being any evidence whatsoever on record to support the finding of guilt. Or there is some legal evidence on record as envisaged by the Supreme Court in the judgments cited above to support the finding of guilt and therefore no interference is necessary. As aforesaid, with this clear position of law in our mind, we have scrutinised the entire record of the case, appreciation of which for the purposes of understanding the contention of the learned counsel for the petitioner that it is a case of no evidence in support of finding of guilt in its proper perspective.
9. In this case the department i.e. the High Court has examined as many as 11 witnesses, and the petitioner has examined two witnesses. Of the 11 witnesses examined by the department, only four witnesses are material to the case of the petitioner. They are: (1) Smt. Usha Gajbhiye, (2) Ramesh Gharde, (3) Wasudeo Ganar and (4) Baby Purushottam Patil. The enquiry officer has relied on the testimony of these four witnesses and has found the petitioner guilty of misconduct. It is the case of the petitioner that there is no basis for finding the petitioner guilty in the evidence of any of the four witnesses and therefore it is a case of punishment without evidence.
10. The charges levelled against the petitioner are two, the first charge is that he has participated in certain parties hosted by Dewani in which alcohol preparations were served alongwith non-vegetarian food and (2) as a result of this relationship, he granted anticipatory bail for four days to the members of Dewani family though there was nothing before him to warrant such grant of anticipatory bail. We will consider both the charges in light of the evidence as recorded by the enquiry officer. In the nutshell the finding of the enquiry officer is that there were parties hosted by Dewani in which alcohol was served and that the petitioner did participate in such party. For that he hastily granted anticipatory bail to the members of Dewani family around 10.30 p.m. on March 30, 1994. The death of Manorama Kamble took place on March 28, 1994. Parties are alleged to have taken place prior to that date and the general evidence of these four witnesses stated above, is to the effect that such parties were hosted by Dewani, were attended by certain Judicial Officers and therefore the enquiry officer has found the petitioner guilty. We have to examine the contention of the petitioner that it is a case of no evidence in relation to the testimony given by these four witnesses.
11. Smt. Usha Gajbhiye has deposed twice, once in the preliminary enquiry before Mr. B. B. Varale and then before Mr. Vachha the enquiry officer. Her statement before both is generally the same. She has stated that she worked in the house of Dewani for about four months during which she used to come for work at 8.00 a.m. and leave at 3.00 p.m. and again come back at 5.00 p.m. and go home at about 8.00 p.m. Her work was to cook food as told to her by her employer. She has stated that on occasions she has cooked food for parties. She has stated that she was not the only servant in the family and there were many more. She has then deposed that in one of such parties, she overheard names of certain Judges being mentioned and she heard the name of Mr. Wagh and Mr. Damle amongst other names mentioned. She has identified Mr. Wagh and she has stated that it was Mr. Wagh who scolded her for listening to their conversation. It is on the basis of this hearing she claims that the name of the petitioner was also mentioned in the party and therefore he was present in the party. She has been cross examined at length and her cross examination reveals several discrepancies which are incompatible with the narration that she has made before the enquiry officer, she was unable to give a general description of the house of Dewani and she did not remember the name of her principal employer i.e. the lady of Dewani's house who used to order her in relation to preparation of food every day. She did not remember of any of the lady members in Dewani family. She did; not remember any names of her co-workers in the family. The only reason given by her, therefore, stating that petitioner, Mr. Damle was present in one of the. parties, is that she heard the name of Mr. Damle being mentioned. The maximum that can be said from the evidence of this witness is-(1) that there were parties at the residence of Dewani, (2) such parties were attended by lawyers and certain judicial officers, (3) that Mr. Wagh was one of the Judicial Officers whom she has seen, and (4) that the name of the petitioner Mr. Damle was mentioned by someone in one of the parties, that were hosted.
12. Even if the entire evidence of this witness is accepted as true the only conclusions that are possible and permissible in law are those mentioned above. All that can be said at the best is that the name of the petitioner was mentioned in one of the four parties which according to this witness were hosted in the Dewani's family during the tenure of her service of four months. Throughout the cross examination the witness refers to Mr. Wagh and one Mr. Jahagirdar as advocate. She has admitted that she does not know the difference between advocates and Judges and claims that she heard the reference of these names as Saheb. For instance Damle Saheb, Jahagirdar Saheb. She therefore is a witness who does not know the area of the house in which she was serving for four months, the names of the persons to whom she was serving, the names of the persons to whom she was working with in the family. But she could remember the names of persons mentioned in one of the parties and that included the name of the petitioner. So accepting the entire testimony of this witness, what has been proved is the name of the petitioner Mr. Damle was mentioned in one of the parties.
13. The next Witness on which reliance has been placed by the enquiry officer is Ramesh Gharde. At this stage we may also note the procedure followed by the enquiry officer Mr. Vachha during the course of the enquiry. What he did was to handover the statement recorded by Mr. B.B. Varale to the witness and asked him whether it was correct, and on his admitting it to be correct the examination-in-chief was completed, and the witness was offered for cross examination. This witness has stated before the enquiry officer and Mr. Varale that he is the resident of the locality where Dewanis were staying and he heard from the people of the locality in the neighbourhood of Dewani about the parties that were hosted by him and about the participation of advocates and certain sahebs in that party. He heard that the participants included judicial officers and the petitioner Mr. Damle and Mr. Wagh were amongst them. It is on the basis of the testimony of this witness that the enquiry officer has come to the conclusion that the evidence of this witness and that of Wasudeo Ganar establishes that they heard about Mr. Wagh and Mr. Damle attending wet parties at the residence of Dewanis. All that has been stated in the examination-in-chief by this witness is that certain alcoholic parties were hosted by Dewani and he heard participation of the petitioner in one of such parties. He does not state from whom he heard that the petitioner attended the party. It is not the case of the witness hearing about the petitioner's name being mentioned by the person who attended the party or the petitioner's name being mentioned by the person who heard it from someone who attended the party or that the witness mentioned the name of the petitioner because he heard someone saying it he was in the party. By applying this interpretation on appreciation of evidence it is not even hearsay evidence. It establishes nothing that the witness states that he heard from people in the locality that such parties were going on and such persons were attending. None from the locality who told about this to this witness is named by him nor any other person from the locality where such parties took place often is examined by the department to show any involvement of the petitioner.
14. Mr. Wasudeo Ganar is the next witness on whom reliance is placed by the enquiry officer. He claims to be a social worker belonging to Republican Party of India. He admits that he holds several liquor vending licences and is socially and financially very well off. He claims himself to be contender and therefore, he had made complaint to the Honourable the Chief Justice of the High Court. In his complaint he has nowhere mentioned that the judicial officers were involved in attending the parties at the residence of Dewanis. He has only complained about the granting of bail by the petitioner to the members of Dewani family on their application for anticipatory bail and he desired an enquiry by my Lord the Chief Justice into the entire episode. Before the enquiry officer also he stated that his statement as recorded by Mr. Varle is correct wherein he has stated that he heard people say about the parties being hosted by Dewanis and those parties being attended by Judicial Officers. He has candidly admitted that he never saw such parties and that he never heard about these parties prior to the death of Manorama Kamble and that he has not heard anything about the parties by anybody, and who attended the parties. He has not heard anything about the parties from anybody who heard anything about the parties. He has stated that he made inquiries from the people residing in the neighbourhood of Dewani and came to know about the party. He however does not remember the names of persons to whom he made enquiries. In the complaint made by this witness there is no mention of the name of the petitioner as one of the participants in the parties. He has admitted that he has not seen anything that he has not heard anything from the neighbourhood who has seen anything and consequently his evidence is not even a hearsay evidence.
15. It is on the basis of such evidence that the learned enquiry officer came to the conclusion of guilt. In our opinion, it is obviously a finding only unsupported by any evidence on record. In our opinion, even if the entire testimony of these three witnesses is accepted as proved, that there were parties at the residence of Dewanis and that the names of certain judicial officers, including the name of the petitioner were mentioned in the parties. Beyond that there is no evidence whatsoever on the participation of the petitioner, except the solitary statement by Smt. Usha Gajbhiye. There is no mention about the name of either of the petitioner Mr. Damle or Mr. Wagh by any other witnesses.
16. The testimony of Baby Purushottam Patil is also to the same effect and all the assistance that we have to offer in relation to the three witnesses, is applicable to this witness. We see no reason to repeat everything stated by this witness and to comment thereon in this case. She has categorically stated that she came to know the names of petitioner from the conversation of people in Jaripatka. So her evidence is not even hearsay and therefore held impermissible. It will thus be seen that the evidence of all the four witnesses is not even hearsay. Having deposed on what people staying in the locality in relation to the parties that went on in a particular house in that locality, none of them has seen the petitioner Mr. Damle or any other person attending the party. None of them attended the party, none of them were told by anybody who attended the parry. Even Smt. Usha Gajbhiye does not speak of anybody attending the party were seen by her except Mr. Wagh. It is therefore a case of total absence of any legal evidence and accordingly the dicta of the Supreme Court decision mentioned above, is a fit case for interference by a writ Bench. We therefore find that the first charge was not proved at all. There was no legal evidence before the enquiry officer and consequently no finding of guilt on that count could be reached, when it is a finding without any evidence and 3 therefore liable to be set aside.
17. The Administrative Committee of the High Court generally accepted the finding and inflicted the punishment, probably because the -fact that the entire evidence was inadmissible and therefore no legal evidence was never brought to the notice of the High Court. Therefore, it passed the order of punishment.
18. That takes us to the second charge of hastily passing the order of anticipatory bail in favour of Dewani. In relation to this charge there is absolutely no evidence legal or otherwise on record. The first charge as demonstrated by us above has failed. There is, therefore, no nexus between the parties or the attendance thereto by the petitioner Mr. Damle and grant of bail. The bail was granted on March 30, in the night. March 31, the hearing was completed. April 1 was a holiday. On April 2, the bail petition was rejected and the ad-interim granted earlier stood vacated. There is no evidence whatsoever legal or otherwise that there was ever any attempt of any of the Dewanis to destroy any evidence. Investigation is completed and the trial is pending. Nobody has stated before the enquiry officer that the reason for grant of bail was to enable Mr. Dewani to destroy the evidence. From the perusal of the second charge it will be seen that it solely pertains to grant of bail for three days. If we scrutinise the order of enquiry officer it will be found that it is based merely on surmises drawn from the evidence of these four witnesses and then he came to the conclusion that such party did take place and the petitioner did attend one of them and that he found the grant of bail suspicious.
19. The maximum that is established by the evidence on record is that the petitioner wrongly granted bail, in a case, where it could not be granted. The maximum that can be said about it that the petitioner erred in exercising his discretion in the matter of bail. There is absolutely no evidence that this error of discretion was committed for consideration other than legal. There is nothing on record to show that the error of discretion was the result of any mem rea connected to either the party or illegal gratification and consequently the finding of the enquiry officer is vitiated as being passed without based on evidence and therefore, it cannot be sustained. The error of discretion is liable to be corrected. The bail granted is an ad-interim, relief, and was cancelled by the petitioner himself within four days of the grant, two of which were holidays. Adequate reasons have been given in the order that the bail was granted and why it is being refused. For such error of discretion, punishment of termination is, in our opinion, improbable in law. A Judge can do wrong and the petitioner was a Judge, and we will assume that he had gone wrong in granting bail and that does not mean that he has proved to be the corrupt officer. Apart from the fact that there is no strict proof or even semblance of proof. There is no legal evidence whatsoever to support any of the two charges levelled against the petitioner. Therefore we will, within our jurisdiction, interfere within this case and set aside the order of punishment as passed by the High Court. The petition is, therefore, liable to be allowed.
20. That takes us to the question of relief. However, during the course of argument it was submitted on behalf of the petitioner that he is not interested in physical reinstatement and would be happy if reinstatement with all consequential benefits and is retired one having attained the age of 58 years during the pendency of the petition.
21. In the. result, therefore, the petition succeeds and is allowed. That recommendations of the High Court dated June 15, 1998 as also the order of punishment by the State of Maharashtra dated August 13, 1998 are quashed and set aside. The petitioner is directed to be reinstated as District and Sessions Judge in the service of the State of Maharashtra. It is also directed, that he shall be to all the consequential benefits, drawing out such reinstatement and be declared that he has retired as honourably as District Judge on completion of the age of 58. He is also entitled for the back-wages for the period from the date of his suspension till the date of his retirement on completion of 58 years. He shall be entitled to all the pensionary benefits as per law. A statement is made on behalf of the petitioner by Mr. Dharap that the petitioner shall not claim any further continuation after 58 years as he has voluntarily decided to accept retirement on completion of 58 years.
22. In the circumstances there shall be no order as to costs.
23. Parties to act on the authenticated copy of this order.