Yoginath Damodhar Bagde Vs The State of Maharashtra and Another

S.M. Jhunjhunuwala, J.@mdashBy this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks to quash and set aside the order dated 8th November, 1993 by which the petitioner has been dismissed from service. The petitioner also seeks to quash and set aside the Charge-sheet dated 22nd May, 1992 and dissenting findings of the Disciplinary Committee of this Court. The petitioner also seeks reinstatement in service with full back wages and continuity of service and other ancillary benefits such as seniority, permission, increments, etc.

2. The petitioner was working as Additional District & Sessions Judge, Amravati when he was served with an order of dismissal from service on 8th November, 1993. The said order was passed as a result of Departmental Inquiry held against the petitioner on the charges that while working as IInd Additional Sessions Judge at Wardha, the petitioner demanded Rs. 10,000/- from one Deepak Trimbakrao Deshmukh, accused in Session Trial No. 28 of 1982 and 37 of 1987 then pending before the petitioner, as a consideration for his acquittal and that the petitioner indulged in corrupt malpractice amounting to gross misconduct which were held by the Disciplinary Authority as proved against the petitioner.

3. By its order dated 22nd April, 1992, the Disciplinary Authority had placed the petitioner under suspension which order was duly served upon the petitioner on 27th May, 1992. Alongwith the letter dated 22nd May, 1992 addressed by the then Registrar of this Court, copies of (i) Charge-sheet, (ii) Statement of Imputations, (iii) List of Witnesses and (iv) List of Documents as also copies of documents and statements of witnesses were forwarded to the petitioner with a direction to submit his Written Statement of Defence within two weeks from the date of service thereof upon the petitioner. The petitioner was working as IInd Additional District and Sessions Judge, Wardha prior to his transfer as Additional District and Sessions Judge, Amravati. The Disciplinary Authority had framed the following two charges against the petitioner :---

"1. That while you were working as 2nd Additional Sessions Judge, Wardha, Sessions Trial No. 28 of 1982 and 37 of 1987 were pending before you in which Deepak Trimbakrao Deshmukh was an accused. You had a meeting with said accused at the residence of Dr. Naranje, Rashtrabhasha Prachar Samiti Road, Wardha on 23-11-1990 when you assured him of acquittal on payment of Rs. 10,000/- in each case and that you thereby indulged in corrupt practice amounting to gross misconduct.

2. That on 18-12-1990 at about 8.00 p.m. at the residence of Dr. Naranje, Rashtrabhasha Prachar Samiti Road, Wardha, you made a demand of Rs. 10,000/- from Shri Deepak Trimbakrao Deshmukh, resident of Wardha, Taluka Arvi, District Wardha, as consideration for his acquittal in Sessions Trial No. 37 of 1987 u/s 302 etc. I.P.C. and that you thereby indulged in corrupt practice amounting to gross misconduct."

Whilst serving the copy of the charge-sheet upon the petitioner, the petitioner was called upon to state as to whether the petitioner desired to be heard in person and also whether the petitioner desired to examine any witness in his defence. The petitioner was also called upon to furnish the names and addresses of his witnesses. The petitioner was informed that if the Disciplinary Authority proposed to impose a punishment upon the petitioner after consideration of all the material on record of the Enquiry Proceedings as well as of the Enquiry Report, the petitioner would be given an opportunity to show cause there against.

4. On 18th June, 1992, the petitioner filed his Written Statement of Defence denying the charges contained in the charge-sheet served upon him. According to the petitioner the said Deepak Deshmukh had made false complaint against the petitioner so that his cases might not be tried by the petitioner and he could escape from conviction. The Disciplinary Authority not being satisfied with the Written Statement of Defence submitted by the petitioner, held that a prima facie case existed for holding Departmental Inquiry against the petitioner and by its Order dated 3rd August, 1992 appointed one G.B. Asma, the then Joint District Judge, Akola, as the Enquiry Officer. The Enquiry Officer thereupon directed the petitioner to appear before him on 23rd September, 1992. Accordingly, the petitioner appeared before the Enquiry Officer and the inquiry was held at Akola from 23rd September, 1992 to 3rd November, 1992. The Enquiry Officer recorded the depositions of the complainant and his wife, Sudha Deshmukh, one Sau. Madhuri Krishnarao Pradhan, (Sales Tax Officer), Vasant Narayan Damle, The District and Sessions Judge, Nagpur, and Anand Digambar Deshmukh, Dy. S.P., A.C.B., Buldhana as witnesses on behalf of the prosecution. The Enquiry Officer also recorded depositions of one Sunil Gopalrao Bapat, Advocate, Wardha, Arjun P. Patil, Advocate, Dr. Sopan Changdeo, Naranje and Manik Tamgadge as witnesses on behalf of the defence. The petitioner himself gave evidence before the Enquiry Officer. The Enquiry Officer submitted his report dated 21st December, 1992 to the Disciplinary Authority exonerating the petitioner from both the charges levelled against him and recommended reinstatement of the petitioner. The said report was received by the Disciplinary Authority on 22nd December, 1992.

The High Court through its Disciplinary Committee considered the report of the Enquiry Officer and all the material and evidence on record and disagreed with the findings of the Enquiry Officer. The Disciplinary Committee held the charges against the petitioner as proved and tentatively decided to impose the penalty of dismissal from the service upon the petitioner. While doing so, the Disciplinary Committee recorded its reasons and at the same time, directed that notice to show cause along with the copy of the reasons and the copy of the Enquiry Officer''s report be served upon the petitioner and the petitioner be called upon to show cause why the proposed penalty be not imposed upon him.

5. The petitioner filed his reply to the said show cause notice served upon him. After considering the said Reply, the High Court, as the Disciplinary Authority, rejected the same and decided to impose the major penalty of dismissal from service on the petitioner. Accordingly, the High Court recommended to the Government of Maharashtra that the petitioner should be dismissed from service. By the Order dated 8th November, 1993, the Government of Maharashtra dismissed the petitioner from service from the date of receipt thereof by the petitioner. The said order of dismissal from service has been challenged by the petitioner in this petition.

6. On behalf of the 2nd respondent one Nilkanth Vishwanath Dabholkar, I/C, Additional Registrar, High Court, (Legal) Appellate Side, Bombay, has filed his affidavit dated 7th June, 1996 to oppose the petition. In addition to the oral submissions made, the petitioner has also filed written notes of arguments which have been taken on record.

7. The petitioner has submitted that there was no evidence on record of the Enquiry Officer against the petitioner so as to hold that petitioner guilty of charges levelled against him and as such the order dismissing the petitioner from service is illegal, without application of mind and is liable to be quashed and set aside. The petitioner has further submitted that the petitioner was not furnished with a copy of the report of the Enquiry Officer immediately on the same being made available to the Disciplinary Authority and the belated service of a copy of the said report upon the petitioner after it was considered by the Disciplinary Authority was in violation of the principles of natural justice and denial of reasonable opportunity to the petitioner and as such, vitiates subsequent proceedings including the impugned order dismissing the petitioner from service. The petitioner has also submitted that since the petitioner was not given opportunity to remain present before the Disciplinary Committee, the proceedings of the Disciplinary Committee resulting into decision of dismissing the petitioner from service being behind the back of the petitioner is bad in law and liable to be quashed and set aside. The petitioner has further submitted that since there was no evidence against the petitioner, the Order of dismissal from service being based on no evidence, judicial review of findings and conclusions arrived at by the Disciplinary Committee is permissible under Articles 226 and 227 of the Constitution of India and as such, the reliefs sought by the petitioner in the writ petition be granted to the petitioner. Lastly, the petitioner has submitted that though the Disciplinary Committee of this Court was empowered to impose major penalty of dismissal of the petitioner from service, the decision of the Disciplinary Committee was required to be rectified by the Full Court i.e., all Judges of this Court, and this having not been done, the order dismissing the petitioner from service is liable to be quashed and set aside by this Court.

8. As rightly pointed out by the learned Advocate General, this Court, in the present proceedings, is not a Court of Appeal and as such, it is not possible for this Court to reappreciate or reappraise the evidence on record though strenuous effort has been made by the petitioner to take us through the evidence on record. The evidence on record has been appreciated and appraised both by the Enquiry Officer and the Disciplinary Committee of this Court. As held by the Supreme Court in the case of State of Tamil Nadu and another v. S. Subramaniam, reported in J.D. 1996(2) S.C. 114, it is the exclusive domain of the Disciplinary Authority to consider the evidence on record and to record the findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence has no application to the disciplinary proceedings and the authority is to consider the material on record and in judicial review, 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 come to its own conclusion on the proof of the charge. 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 conclusion is based on no evidence. In view of the dictum of the Supreme Court and the settled law, though strenuous effort has been made by the petitioner to persuade this Court to reappreciate and reappraise the evidence on record to find out as to whether the charges against the petitioner have been proved or not, we have declined to do so. In our view, there is evidence on record which has been appreciated and appraised both by the Enquiry Officer and the Disciplinary Committee.

9. The report of the Enquiry Officer was in favour of the petitioner and hence it was not incumbent upon the Disciplinary Authority to serve a copy thereof immediately on receipt thereof by it. It was for the Disciplinary Authority to consider the report and the Disciplinary Authority viz., the High Court through its Disciplinary Committee considered the said report and all the materials and the evidence on record of the inquiry. Whilst disagreeing with the findings of the Enquiry Officer, the Disciplinary Authority held the charges against the petitioner were proved and tentatively decided to impose on the petitioner the penalty of dismissal from the service. The Disciplinary Committee recorded its reasons for its decision and directed that notice to show cause with a copy of the reasons and a copy of the Enquiry Officer''s report be served upon the petitioner and the petitioner be called upon to show cause why the proposed penalty should not be imposed upon him. At this stage, alongwith the notice served upon the petitioner to show cause, a copy of the report of the Enquiry Officer was also served upon the petitioner. When the Enquiry Officer''s report did not hold the petitioner guilty of any of the charges levelled against him, it was not obligatory on the Disciplinary Authority to furnish a copy thereof to the petitioner immediately on receipt thereof by the Disciplinary Authority and before the Disciplinary Authority considering the same. In the case of Kailash Chander Asthana Vs. State of U.P. and Others, , on which reliance has been placed by the petitioner, the Supreme Court held that the scope of writ petitions in the Supreme Court as well as before the High Court is limited. The Supreme Court declined to reassess the evidence on record. On the question of entitlement of the petitioner of a copy of the report of the Enquiry Officer the Supreme Court in that case held ---

"..... The question of service of copy of the report arose on account of a right of a second show cause notice to the Government servant before the 42nd Amendment and since present disciplinary proceeding was held later, the petitioner cannot legitimately demand a second opportunity. That being the position, non-service of a copy of the report is immaterial."

In the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , a Bench of five learned Judges has clarified the judgment of a Bench of the three learned Judges in the case of K.C. Asthana, (supra) and observed that the contention before the Supreme Court in the case of K.C. Asthana was that the copy of the report of the inquiring authority was necessary to show cause at the second stage, i.e., against the penalty proposed and that is how the Supreme Court understood the contention. The Supreme Court further observed that it was not and at least it was not understood to mean by the Supreme Court, that a copy of the report was necessary before the disciplinary authority arrived at its conclusion with regard to the guilt or otherwise on the basis of such report. The Supreme Court further observed that the Court read nothing in that decision which has taken a view contrary to the view expressed in Union of India v. E. Bashyan''s, case (reported in AIR 1988 S.C. 1000) by a Bench of two learned Judges or to the view taken by three learned Judges in Union of India and others Vs. Mohd. Ramzan Khan, . Hence, the Supreme Court has held that when the report of the Enquiry Officer is not against the delinquent, it is not obligatory on the Disciplinary Authority to serve a copy thereof upon the delinquent before the same is considered by the disciplinary authority. Suffice it to say that the petitioner was supplied with a copy of the Enquiry Officer''s report as also reasons recorded by the Disciplinary Authority for disagreeing therewith at the appropriate time and before taking any final decision thereon and as such, no breach or violation of any principle of natural justice has been committed by the Disciplinary Authority nor there is any denial of reasonable opportunity to the petitioner to represent.

10. There is no merit in the submission made by the petitioner that he had no opportunity to defend himself inasmuch as the report of the Enquiry Officer was considered by the Disciplinary Authority behind his back and dissented from without offering any opportunity to him. As per the Rules applicable to the said inquiry, the report of the Enquiry Officer was required to be considered by the Disciplinary Authority and the Disciplinary Authority on such consideration decided to issue show cause notice to the petitioner in order to afford him opportunity to show cause as to why the major penalty of dismissal from service be not imposed upon the petitioner. After receipt of the show cause notice, the petitioner had made representation raising grounds against the reasons recorded by the Disciplinary Authority which was given due consideration before deciding to impose the penalty upon the petitioner. Though the petitioner has put reliance on the judgment of the Supreme Court in the case of Narayan Misra v. State of Orissa, reported in 1969(3) S.L.R. 657, wherein the departmental enquiry was held against the delinquent official on several charges. The delinquent official was acquitted of some of charges and found guilty of other charges. The Conservator of Forest, an appropriate authority differed from the finding of Enquiry Officer and held the official guilty of charges from which he was acquitted by the Enquiry Officer. No notice or opportunity was given to delinquent official about the attitude of Conservator of Forest. It was in these circumstances, the Supreme Court held that using of charges against the delinquent official of which he was acquitted by the Enquiry Officer without warning him that he was going to use them, was against all principles of fair play and natural justice. It was a case of second enquiry by the Conservator of Forest. In the instant case, when the Disciplinary Committee considered the report of the Enquiry Officer, it was not a second enquiry. In the case of State Bank of India v. S. S. Koshal , on the question whether fresh notice was required to be given to the delinquent when the Appellate Authority disagreed with the findings of the Enquiry Officer on some of the charges, the Supreme Court held that it may be remembered that the Enquiry Officer''s report is not binding upon the disciplinary authority and that it is open to the disciplinary authority to come to its own conclusion on the charges. It is not in the nature of appeal from the Enquiry Officer to the disciplinary authority. It is one and the same proceeding. It is open to a Disciplinary Authority to hold the inquiry himself. It is equally open to him to appoint an Enquiry Officer to conduct the inquiry and place the entire record before him with or without his findings. But in either case, the final decision is to be taken by him on the basis of the material adduced. On the facts of the instant case, the principle laid down in the case of Narayan Misra has no applicability.

11. It is not the case where there was no evidence on record against the petitioner to hold that the charges levelled against him were proved. The findings and conclusions arrived by the Disciplinary Authority are not based merely on suspicion or suppositions or ignoring the evidence favourable to the petitioner. Neither there is non-consideration of evidence favourable to the petitioner nor admission of inadmissible evidence by the Disciplinary Authority. The allegation of non-application of mind to the material aspects of the case by the Disciplinary Authority is false and baseless. In the facts of the case, the ratio of the judgment of the Supreme Court in the case of Sri Kalandi Charan Mallic v. Union of India and others, reported in 1981(1) S.L.R. 863, has no applicability. In that case, on facts, the Supreme Court held that the Departmental Authorities had arrived at the findings of guilt upon their own suspicions or mere suppositions ignoring the evidence favourable to the petitioner therein. It was further held that non-consideration of evidence favourable to the petitioner therein, admission of in admissible evidence and non-application of mind to the material aspects of the case had resulted in manifest injustice and hence a fit case in which the Court instead of substituting its own findings should send back the case to the Appellate Authority for fresh disposal. In the case of State of Andhra Pradesh and others v. Chitra Venkata Rao, reported in 1976(1) S.L.R. 653, the Supreme Court has held that in exercise of jurisdiction under Article 226 of the Constitution of India, an error of law and not findings of fact by an inferior Court or Tribunal as a result of appreciation of evidence can be corrected by a writ. It is further held that the adequacy or sufficiency of evidence led on a point and the inferences of fact to be drawn from the finding are within the exclusive jurisdiction of the Tribunal.

12. Equally there is no merit in the submission made by the petitioner that the decision of the Disciplinary Committee to impose major penalty of dismissal from service upon the petitioner on the charges levelled against the petitioner being held proved was required to be rectified by the Full Court, i.e., all the Judges of this Court. The challenge of the petitioner on this ground is no longer res integra. By the judgment delivered on 23rd June, 1992 by the Division Bench of this Court in Writ Petition No. 5847 of 1991 as also by the judgment delivered on 15th March, 1996 by another Division Bench of this Court in Writ Petition No. 649 of 1996, R.W. Khan v. State of Maharashtra, similar challenge as made in the present petition has been negatived. While examining the question whether the decision taken is that of the High Court or not in view of Article 235 of the Constitution of India, the Division Bench found that there is in the field Resolution dated 2nd May, 1981 passed by the Full Court which lays down the manner and regulates the procedure for administrative decisions on several subjects and matters enumerated therein. Based upon this Resolution of Full Court, the practice evolved in this Court is that from time to time a Disciplinary Committee is appointed by the Chief Justice which normally consists of Senior Judges and the decisions and recommendations made by such Disciplinary Committee are considered as decision and recommendations of Full Court, i.e., all the Judges of this Court. Accordingly, the decision taken by the Disciplinary Committee of this Court to dismiss the petitioner from service is nothing but the decision of the High Court itself. Hence, it was not necessary to place the said decision for approval or rectification before the meeting of all the Judges or Full Court.

13. In the result the writ petition is dismissed. Rule is discharged. There shall, however, be no order as to costs.

14. Issuance of certified copy hereof on the application being made is expedited.