@JUDGMENTTAG-ORDER
Rajendra Menon, J.@mdashThe petitioner who was a judicial officer has filed this writ petition challenging the order Annexure P-1, dated 29-08-2000, by which he has been punished after a departmental inquiry and his services have been terminated. Challenge is also made to the order Annexure P-14 dated 19-03-2002, by which the appeal filed by the petitioner has been dismissed by the appellate authority, namely, the Governor. The petitioner had joined the State Judicial service as a Class-II Civil Judge after he was appointed on 26-10-1975 vide order Annexure P-2. He was promoted to the higher judicial service on 15-09-1989 vide Annexure P-3. According to the petitioner, right from the date of his appointment in the year 1975 till the impugned action was taken in the year 2000, he had a unblemished service career of more than 25 years. It is his case that during this long period of 25 years, no action was taken against him, he was never warned, reprimanded, nor any charge sheet issued to him or any adverse remark communicated, accordingly, it is his case that he had a unblemished service record.
2. In the year 1995, the petitioner was posted as Additional District & Sessions Judge, Bhind, one Shri A.K. Jain was also posted in the same capacity in District Bhind. It is seen from the record that Shri A.K. Jain made a complaint to the effect that one Anil Kumar Sharma with an ulterior motive has conspired with the present petitioner to cause injuries to him, so that Shri A.K. Jain is unable to perform his duties between 13-06-1995 to 16-06-1995. It is stated by Shri A.K. Jain in his complaint that in pursuance to the aforesaid conspiracy, Shri Anil Kumar Sharma came with his Scooter from behind on 13-06-1995 when Shri A.K. Jain was coming to the court in the early morning, dashed against the Scooter in which Shri A.K. Jain, was going to the court, as a result he sustained certain injuries. It is stated in the complaint that father of Anil Kumar Sharma, one Shri Rishab Dev Sharma was implicated in Crime No. 374/94, a criminal case was registered against him for offence u/s 307 of IPC, by Police Station Dehat Bhind, Shri Rishab Dev Sharma was absconding and to facilitate grant of bail to Shri Rishab Dev Sharma, the entire conspiracy has hatched to enable the petitioner to hear the bail application in the absence of the complainant Shri A.K. Jain.
3. On the basis of the complaint of Shri A.K. Jain, it is seen that a preliminary inquiry was ordered by the High Court. District Judge (Vigilance), was directed to conduct an inquiry into the matter. Finding a prima facie case made out on the basis of the preliminary inquiry conducted by the District Judge(Vigilance), a charge sheet dated 30-12-1997 was issued to the petitioner. The petitioner submitted his reply to the charge sheet vide Annexure P-5 dated 04-05-1998. It is stated that before submitting the reply, vide Annexure P-6 dated 09-01-1998, the petitioner sought for supplying various documents and report of the preliminary inquiry. This was refused by the High Court on 28-03-1998 vide Annexure P-7 and therefore without the documents being made available, petitioner submitted his reply to the charge sheet vide Annexure P-5. Finding the reply to the charge sheet to be unsatisfactory, departmental inquiry was ordered. One Shri S.K.Sharma, District Judge(Vigilance) Gwalior Zone was appointed as Inquiry Officer. In the inquiry, statements of 8 witnesses were examined on behalf of the prosecution, they are Annexures P-9(A) to P-9(H). On the basis of the material that came on record, the Inquiry Officer submitted his report on 18-02-1999. The report of the Inquiry Officer was served on the petitioner alongwith a show cause notice Annexure P-11 dated 07-04-1999. The petitioner submitted his reply to the same vide Annexure P-12 and on the basis of the resolution, which was passed by the Full Court on 08-07-2000 (Annexure R-5), the impugned action was taken. The appeal filed by the petitioner vide Annexure P-13 having been rejected by the Governor vide Annexure P-14 the petitioner has filed the present writ petition.
4. Shri Manoj Sharma, learned counsel for the petitioner took us through the allegations levelled against the petitioner in the charge sheet and argued that the solitary charge against the petitioner in the charge sheet was that he had hatched a conspiracy with Anil Kumar Sharma, caused injuries to Shri A.K. Jain the complainant with an ulterior motive to ensure that Shri Jain did not perform court work from 13-06-1995 till 16-05-1995, which was the summer vacation period in the court and as only two Additional District Judges were available for the vacation. If Shri A.K. Jain who was to discharge vacation duties was on leave, the bail application of Shri Rishab Dev Sharma would come for hearing before the petitioner and bail would be granted. Shri Manoj Sharma, learned counsel for the petitioner argued that to substantiate the aforesaid allegation, 8 witnesses have been examined and after taking us through the statements of these witnesses, the complaint of Shri A.K. Jain and the findings recorded by the Inquiry Officer, learned counsel emphasized that the allegations levelled against the petitioner are not at all proved. The circumstances that have come on record in the inquiry do not substantiate the allegation in the charge levelled against the petitioner and the Inquiry Officer and the Disciplinary Authority on the basis of presumption and assumption have taken action against the petitioner. Contending that without there being sufficient evidence to implicate the petitioner with the offence or the act in question, in a arbitrary and illegal manner, the impugned action is taken. Emphasizing that the finding recorded by the Inquiry Officer is wholly perverse, contrary to the evidence available on record, the appreciation of evidence done by the Inquiry Officer is wholly illegal. Shri Manoj Sharma submitted that on the following grounds the action taken against the petitioner is unsustainable. The grounds canvassed by Shri Manoj Sharma can be categorized as under:
(i) It was submitted by learned counsel for the petitioner that when the charge sheet was issued, the petitioner sought for various documents vide his application Annexure P-6 dated 09-01-1998, the documents included the statements of witnesses recorded in the preliminary inquiry, inquiry report, these documents were never supplied to the petitioner instead the High Court vide order dated 28-03-1998 (Annexure P-7) rejected the request of the petitioner. It is stated that the petitioner was handicapped due to non supply of these vital documents and was compelled to submit his reply to the charge sheet without these material documents, accordingly the first ground canvassed is that the entire proceedings stands vitiated on the aforesaid ground.
(ii) The second ground canvassed was that the witnesses who were examined in the preliminary inquiry were also examined in the departmental inquiry and the statements of all these witnesses recorded in the preliminary inquiry were supplied to the petitioner only on 16-09-1998 i.e. on the day when the witnesses were being examined. Accordingly, it is stated that as the statements were not supplied in advance, the petitioner was handicapped in effectively cross examining the witnesses, accordingly it is emphasized that the same amounts to breach of the principle of natural justice and therefore, the entire inquiry is vitiated.
(iii) The third ground canvassed was that the findings of the Inquiry Officer are perverse and the Inquiry Officer has not given any reason for disbelieving the statements of some of the witnesses recorded in the inquiry particularly the statements of PW-6 Ramvir Singh Yadav and PW-8 Udaivir Singh. It was stated that these witnesses were declared hostile in the inquiry and by referring to certain affidavits given by them to the petition which formed part of the complaint, the petitioner is held guilty and in doing so, no cogent or justifiable reason is given as to why the statements recorded in the inquiry is being discarded in comparison to the statements recorded in the preliminary inquiry or the affidavit submitted. That apart taking us through the entire evidence of all the 8 prosecution witnesses, the finding and reason given by the Inquiry Officer and the appreciation of evidence done, Shri Manoj Sharma, learned counsel for the petitioner argued that the findings are perverse. The allegations levelled against the petitioner are not proved and the circumstances brought on record in the inquiry is not such on the basis of which the guilt of the petitioner can be said to be conclusively proved.
(iv) the next contention urged was that after the inquiry was concluded i.e. after statements of prosecution witnesses were recorded and after defence witnesses of the petitioner were also examined, general examination of the petitioner by the Inquiry Officer as contemplated under Rule 14(18) of M.P. Civil Services (Classification Control & Appeal) Rules, 1966 was not undertaken and as this mandatory provision is not followed, it is stated that the entire inquiry stands vitiated.
(v) finally the last submission made by Shri Manoj Sharma was to the effect that even if the allegations levelled against the petitioner are held to be proved, it was submitted by him that the punishment imposed is too harsh and disproportionate and therefore, the same cannot be upheld.
5. In support of the aforesaid contentions, Shri Manoj Sharma invited our attention to the following judgments:
6. Shri V.S.Shroti, learned Senior counsel, assisted by Shri Ashish Shroti, learned counsel for respondent No. 2 and Shri Kumaresh Pathak, learned Deputy Advocate General, for respondent No. 1 refuted the aforesaid contentions and argued that as far as procedural irregularity pointed out by the petitioner is concerned, the same is not correct. It was emphasized that all the necessary documents were given to the petitioner alongwith the charge sheet and the statements of the witnesses recorded in the preliminary inquiry were also given to the petitioner at the time of departmental enquiry and on the basis of the same, the petitioner having elaborately cross examined each of the witnesses, it is stated that no prejudice has been caused to the petitioner and therefore, on the ground of procedural irregularity, no case for interference is made out, particularly when the petitioner is unable to demonstrate before this court the prejudice caused to him due to non supply of the documents.
7. Further taking us through the statement of the witnesses and the reasons given by the Inquiry Officer in his report Annexure P-12 Shri Shroti argued that a reasonable finding has been recorded by the Inquiry Officer after due appreciating the evidence and material that came on record and this court cannot now go into the question of sufficiency of evidence or otherwise and exonerate the petitioner. Inviting our attention to certain principles laid down by the Division Bench of this court in W.P.No. 5400/2000 (SB. Bhargave Vs. State of Madhya Pradesh and another) decided on 23-08-2011 Shri Shroti contends that the scope of judicial review available under Article 226 of the Constitution of India does not permit this court to re-appreciate the entire evidence as canvassed by Shri Manoj Sharma and come to a conclusion different from the one recorded by the Inquiry Officer. It was emphasized that the evidence on record do indicate that the petitioner has committed the misconduct, the conspiracy and the guilt of the petitioner and therefore, this court cannot now sit over the finding of the Inquiry Officer by exercising further appellate jurisdiction, accordingly, Shri Shroti argued that a reasonable finding recorded by the Inquiry Officer on due appreciation of evidence and material that came on record does not warrant any further consideration or interference now in these proceedings under Article 226 of the Constitution of India.. Finally with regard to non compliance of provisions of Rule 14(18)of M.P. Civil Services (Classification Control & Appeal)Rules., Shri Shroti argued that after the prosecution witnesses were examined the petitioner was given opportunity to examine his defence witnesses. The petitioner examined two witnesses and thereafter the petitioner was given an opportunity to record his defence statement, the petitioner refused to give his own defence statement and having done so, he cannot now complain about breach of rule 14(18). Finally Shri Shroti argued that the punishment imposed being in accordance to law this court cannot interfere with the quantum of punishment in these proceedings under Article 226 of the Constitution of India. Apart from placing reliance on the judgment in the case of S.B. Bhargave (supra), in support of his contention Shri Shroti placed reliance on the following judgments:
8. Having heard the learned counsel for the parties and after going through the record, we are of the considered with that the following questions arise for consideration in this writ petition:
(i) Whether non supply of the documents of the preliminary inquiry as claimed for by the petitioner vitiates the entire proceedings ?
(ii) Whether in the facts and circumstances of the case and the material adduced in the departmental inquiry, the allegation against the petitioner can be said to have been conclusively proved or is the evidence enough to make out a case of conspiracy warranting action to be taken against the petitioner ?
(iii) Whether the proceedings stand vitiated due to non compliance with the provisions of Rule 14(18) of M.P. Civil Services (Classification Control & Appeal) Rules, 1966 ?
(iv) Whether the punishment imposed is too harsh and disproportionate to the allegations levelled against the petitioner ?
9. Before adverting to consider the rival contentions for determining the aforesaid questions, it is thought appropriate to take note of the factual aspect of the matter. From the allegations levelled against the petitioner in the charge sheet it is seen that in district Bhind at the relevant time i.e. in June 1995 the summer vacation of the courts were in progress, as such regular court working was not going on and Shri A.J.Jain, Additional District & Sessions Judge was dealing with the bail matters and urgent criminal cases during the vacation period as three of the judges were on summer vacation and petitioner Shri G.S.Thakur even though was available in the headquarters was under orders of transfer and was to be relieved on 16-06-1995. Shri Anil Kumar who is said to have caused the accident by dashing into the scooter of complainant A.K. Jain is son of one Shri Rishab Dev Sharma against whom an offence u/s 307 of the IPC was registered and it is the case of complainant A.K. Jain that the bail application of Shri Rishab Dev Sharma who was absconding was to come up for hearing before him on 13-06-1995. It is stated by Shri A.K. Jain that Shri Anil Kumar Sharma went to the house of Shri G.S.Thakur, (petitioner), and the delinquent employee on 13-06-1995 and the petitioner is said to have informed Shri Anil Kumar Sharma that the bail application will come before Shri A.K. Jain and if Shri A.K. Jain some how takes leave on 13-06-1995 and does not come to the court, the bail application will be heard by the petitioner, in which event bail can be granted to the father of Shri Anil Sharma. It is the case of the complainant that the petitioner had advised Shri Anil Kumar Sharma to cause the accident so that Shri A.K. Jain gets injured and does not come to the court. Shri A.K. Jain in his complaint has stated that the aforesaid information was received by him through some reliable sources and subsequently after a period of more than 15 days, he submitted a written complaint to the High Court alongwith affidavits of two persons namely PW-6 Ramvir Singh Yadav and PW-8 Udaivir Singh. It was stated in this written complaint by Shri A.K. Jain that Ramvir Singh Yadav and Udaivir Singh were passing through a road, near the house of the petitioner when they saw Anil Sharma talking to an old person about the entire conspiracy, accordingly Shri A.K. Jain, the complainant had implicated the petitioner in his complaint by contending that in the affidavits of Ramvir Singh Yadav and Udaivir Singh have implicated the petitioner as the person who is behind the entire episode. To prove this allegation in the charge sheet, 8 witnesses were examined in the departmental inquiry, they are A.K. Jain, the complainant himself (PW-1), Gangaram Solanki, a peon as (PW-2), another peon Ram Bahadur Singh (PW-3), Stenographer of petitioner G.S.Thakur Ramesh Kumar Shrivastava (PW-4), PW-5 Anil Kumar Singh Tomar, PW-6 Ramvir Singh Yadav, PW-7 Inder Singh Chouhan, Court Moharrir in the court of Shri A.K. Jain, PW-8 Udaivir Singh. On behalf of the petitioner, two defence witneses DW-1 and DW-2 namely Man Bahadur Singh Bhadoria and Vishwa Bandhu Sharma have been examined. Certain documents were brought on record they are mainly affidavits submitted by Udaivir and Raghuvir, the complaint of Shri A.K. Jain and the court documents showing filing of the bail application on behalf of Rishabh Dev Sharma and the orders passed in the same.
10. It may also be taken note of that on 13-06-1995 Shri A.K. Jain did not attend the court because of the accident, the bail application of Shri Rishabh Dev Sharma came up for hearing before petitioner G.S.Thakur and in the said case the petitioner called for the case diary and adjourned the matter for 14-06-1995, on which date the application came up for hearing before Shri A.K. Jain and it was adjourned for 16-06-1995 and on 16-06-1995 it was withdrawn.
11. Before referring to the statements of witnesses and the material adduced in the inquiry and before analyzing the report of the Inquiry Officer with regard to the main contention of Shri Manoj Sharma with regard to the allegations not being proved, it is thought appropriate to consider the first ground urged by Shri Manoj Sharma with regard to procedural irregularity in the inquiry.
12. The procedural irregularity pointed out by Shri Manoj Sharma is to the effect that at the time of filing reply to the charge sheet and thereafter during the course of inquiry, report of the preliminary inquiry and the statements of the witnesses recorded in the preliminary inquiry were not supplied to the petitioner in time to enable him to submit his reply to the charge sheet or well before commencement of inquiry, even though the High Court vide Annexure P-7 dated 26-03-1998 rejected the prayer of the petitioner for supplying the documents at the time of filing reply to the charge sheet. Records indicate that the statements of all the witnesses recorded in the inquiry were supplied to the petitioner on 16-09-1998 i.e. at the time of examination of the witnesses in the departmental inquiry. A perusal of the proceedings of the inquiry indicate that all the witnesses produced in the inquiry were effectively cross examined by the petitioner and except for contending that the documents were not supplied to him in time. The petitioner has not indicated as to what is the prejudice caused to the petitioner due to non supply of the documents. If the record of the inquiry is taken note of, it is clear that the petitioner has elaborately cross examined the witnesses and at the time of hearing of this petitioner he is unable to demonstrate the prejudice caused to him and is also unable to say so as to how and in what manner the finding of the Inquiry Officer would be materially affected due to non grant of opportunity. Under such circumstances in the absence of prejudice being caused to the petitioner and keeping in view the law laid down by the Supreme Court in the case of State Bank of Patiala and others Vs. S.K. Sharma, AIR 1996 SC 1669, we do not see any ground to hold the inquiry to be vitiated merely because the statements of some of the witnesses were not given to the petitioner before commencement of the inquiry. The petitioner having effectively cross examined the witnesses and having failed to demonstrate the prejudice caused before us and in the absence of any statutory provisions being shown to be violated in this regard, the aforesaid ground with regard to procedural irregularity in the matter is found to be unsustainable and is accordingly rejected. Having held so it is now proper to consider the second question with regard to misconduct being proved in the inquiry and perversity if any in the findings.
13. We are conscious of the limitation imposed under law and the fact that we are not to sit over the finding of the Inquiry Officer or the disciplinary authority as if we are exercising the powers of a appellate authority. The judgment relied upon by Shri V.S.Shroti in the case of S.B.Bhargava(supra), which is a judgment rendered by this Bench has to be taken note of the settled principle of law and keeping in view the afore said principle the question of interference into the finding of the Inquiry Officer is to be considered. In the case of Sher Bahadur (supra) relied upon by Shri Manoj Sharma in para-7, the Hon''ble Supreme Court has laid down the principle with regard to meaning of the expression "sufficiency of evidence". Similar principle with regard to interference into the matter of judicial review are laid down in the case of Narendra Mohan Arya (supra) relied upon by Shri Manoj Sharma it has been held that despite limited jurisdiction available, this court is entitled to interfere into the matter if the report of the Inquiry Officer is based on no evidence or if it amounts to recording a finding so perverse in nature that no prudent man would arrive at such conclusion. It is in the backdrop of the aforesaid settled principles that we are proceedings to analyze the inquiry record to find out as to whether the second ground canvassed by Shri Manoj Sharma can be said to be sufficient enough warranting interference. In this regard we may also take note of the principles laid down by the Supreme Court in the case of
It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In
6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.
(Emphasis supplied)
14. There is no direct evidence to implicate the petitioner with the accident which was executed by Anil Kumar Sharma. A perusal of the report of the Inquiry Officer indicates that the Inquiry Officer after taking note of statements of various witnesses in para 37 has discussed the evidence of PW-6 Shri Ranvir Singh Yadav and Shri Udayvir Singh, PW-8 and has held that even though these two persons who are alleged to have heard Anil Kumar Sharma disclosing the conspiracy to his grand father have retracted from their statement in the departmental inquiry but after giving due credence to their affidavits Ex. PI 0 and P-12 available in the inquiry record a finding of guilt is recorded. The Inquiry Officer has held the petitioner guilt of the charge, mainly on the basis of circumstances and the affidavits of these two witnesses given to the complaint and the oral statement of Shri A.K. Jain, the complainant. In the statement A.K. Jain, PW-1, complainant has narrated the fact about vacation in the court, orders passed by the District Judge authorizing him to hear the bail application and the manner in which the accident took place. In para 8 of his examination in chief he comes out with a case that he had learned from the reliable sources that the entire accident took place because of the conspiracy hatched between Anil Kumar Sharma and G.S.Thakur. In para-8 of his evidence he says that he has promised to keep the name of the person who disclosed these facts confidential, accordingly he has not disclosing the name of the person through whom he got all these informations, he thereafter says that it was this person who told him about PW-6 and P-8 Ramvir Singh Yadav and Udaivir Singh over hearing the conversion between Anil Kumar and his grand father. Even in his complaint to the High Court Ex.P-7(22-07-1995) available in the record of inquiry Shri A.K. Jain does not disclose the source from which he acquired the knowledge about the conspiracy, it is an admitted position, he did not acquire the information from his personal knowledge. His statement is based totally on some information received by him from a un known person as is made out from his examination in chief. However, in his cross examination in para-29 for the first time on 16-09-1998 i.e. after more than 4 years of the incident he came out with the name of one Shri Radhe Shyam Agrawal, Professor (Geography) in M.G.S.College, Bhind as the person who disclosed the details of the conspiracy hatched by Anil Kumar Sharma and the petitioner. From para 29 onwards it is stated by him that two students who were studying in M.G.S.College informed Radhe Shyam Agrawal about Ramvir Singh Yadav and Udaivir Singh over hearing the conversation between Anil Kumar Sharma and his grand father and the students told Shri Radhe Shyam Agrawal about this who in turn informed the petitioner. But even though the story is unfolded in this manner, exact date when Radhe Shyam Agrawal informed about the conspiracy to the petitioner and further the exact date and time when the two students informed Radhe Shyam Agrawal are not available on record. Even the particulars and names of the two students are not available and it is not known as to how these two students came to know Ramvir Singh Yadav and Udaivir Singh and as to what was the circumstances under which PW-6 and PW-8 narrated the facts to the two students and when a question is put to complainant Shri A.K. Jain, as to why he did not disclose about all these facts to the High Court in his complaint, he simply says that he has promised Shri Radhe Shyam Agrawal that his name will not be disclosed. Therefore, the story that is now unfolded from the cross examination of PW-1 A.K. Jain is to the effect that one Shri Radhe Shyam Agrawal who is professor in a local college in Bhind was informed by two of his students that Ramvir Singh Yadav and Udaivir Singh have told them(two students) about hatching of conspiracy which was being disclosed in a open road and therefore, the same was conveyed to the petitioner. The story is lacking in material particulars as indicated hereinabove and seems to be total unconvincing and unbelievable.
15. Apart from the fact that neither Radhe Shyam Agrawal is examined in the departmental inquiry nor his statement is recoded. Even the so called two witnesses i.e. the students who have informed the fact to Radhe Shyam are not available and the entire link about the conspiracy is very weak and is not reasonable established by the prosecution. That apart the incident is said to have taken place on 13-06-1995, according to the complainant he immediately got information with regard to the conspiracy in question involving the petitioner on the very next day I.e. 14-06-1995. Even then till 16-09-1998 i.e. for 4 years he did not disclose the manner in which the conspiracy came to his notice, it was for the first time as indicated hereinabove on 16-09-98 that the story of Radhe Shyam Agrawal informing the petitioner about all these facts as indicated. In his complaint to the Registrar of High Court made on 22-07-1995 i.e. one month after the incident which is available in the original inquiry filed as Annexure P-7 the complainant does not say anything about the incident being narrated to him by Radhe Shyam Agrawal, he only says that from reliable sources it has been informed to him. Thereafter alongwith this complaint dated 22-07-1995 the petitioner has submitted two affidavits Ex.P-12 of Udaivir Singh and PW-8 and Ex.P-10 of Ramvir Singh Yadav PW-6. The affidavits Ex.P-10 is dated 21-07-1995 i.e. the day before the complaint was made to the High Court vide Annexure P-7 and the affidavit of Ex.P-12 of Udaivir Singh Yadav is dated 06-07-1995. In these affidavits also Udaivir Singh Yadav and Ramvir Singh did not say anything about their disclosing the conspiracy to the two students as narrated by the petitioner. It is surprising that the incident took place on 13-06-1995, all the persons who came to know about the conspiracy like Udavir Singh and Ramvir Singh and Radhe Shyam Agrawal were aware of the incident on 13-06-1995 but they chose to remain quite and it is only after more than one month that these facts came to be put on record in writing by the petitioner. That apart the conduct of complainant A.K. Jain in directly obtaining the affidavits from Udaivir Singh Yadav and Ramvir Singh on 06-07-98 and 21-07-1998 castes a cloud of suspicion over the entire incident. If Shri A.K. Jain came to know about the conspiracy he should have taken the two witnesses PW-6 Ramvir Singh and PW-8 Udaivir Singh to the District Judge or Registrar of the High Court and it was for these authorities concerned to take steps in the matter. The manner in which the affidavits are obtained by the complainant and sent to the High Court after more than one month of the incident and the conduct of the complainant in not disclosing the fact about Shri Radhe Shyam Agrawal telling him about the conspiracy and not making any written complaint on 14-06-1995 makes the entire incident of conspiracy suspicious. If the statement of PW-1 complainant PW-1 Shri A.K. Jain and the facts stated by him in the cross examination are scrutinized, he does not give any explanation as to why in the complaint Annexure P-7 even to the High Court he did not disclose the name of Radhe Shyam Agrawal is the person, who informed him about the incident. In para-33 of the cross examination the complainant discloses some relationship between him and Radhshyam. That apart in the cross examination certain questions are put to the complainant about the relation ship between the petitioner and professor Radhe Shyam Agrawal, which the complainant admits, the petitioner does not explain as to why he kept quite from 13-06-1995 upto 21-07-95 and obtained affidavits only on 06-07-1995 and 21-07-1995 respectively. In para 34 of his cross examination Shri A.K. Jain admits that immediately on the next day of the incident i.e. 14-05-1995, he came to know about the conspiracy and the story narrated by Ramvir Singh and Udaivir Singh, still he does not give any satisfactory explanation as to why on 14-05-1995 itself all these facts were not reported to the High Court or the District Judge and why he had to wait for more than one month to obtain affidavits and file a written complaint. Even in the FIR fled by the complainant no such story is narrated. He only explains the delay by stating that he had promised Radhe Shyam Agrawal that everything would be kept a secret. That apart from the cross examination of this witness Shri A.K. Jain, it transpires that PW-8 Udaivir Singh is related to a Accountant working in the court of Shri A.K. Jain and certain suggestions have been put to him as to why these affidavits have been obtained accordingly. If the entire evidence of Shri A.K. Jain is scanned, there are many crucial questions, which remained unexplained, particularly his conduct in not disclosing the entire facts in its totality with particulars of the persons who told him about the conspiracy either to the District Judge or to the High Court immediately on 14-05-1995 or within a reasonable time.
16. In the defence of the petitioner certain material has come on record to indicate that in the District Court at Bhind there was some difference amongst the judicial officers, two groups were functioning, there was infighting. Due to this groupism if the conduct of complainant Shri A.K. Jain is examined in the backdrop of these facts, the story put forth by the complainant become suspicious and the benefit of this suspicion has to go to the petitioner. That apart in the finding recorded by the Inquiry Officer all these vital aspects have been ignored and is given a go by. The Inquiry Officer has accepted the statement of Shri A.K. Jain in its totality and has treated it to be a gospel truth without carrying to take note of certain vital aspect of the evidence as is analysed by us hereinabove. If the entire inquiry report is scanned it would be seen that the Inquiry Officer has held the petitioner guilty of the charge only on the basis of the statement of Shri A.K. Jain PW-1 complainant and the two affidavits Ex.P-10 and Ex.P-12 submitted by Shri Ramvir Singh Yadav and Udayvir Singh before the High Court alongwith the complaint of A.K. Jain Ex.P-7.
17. After the statements of PW-6 Ramvir Singh and P-8 Udaivir Singh were recorded in the inquiry is taken note of, they have not supported the case of the prosecution. They have stated that the affidavits were obtained by them illegally, they were made to sign in blank paper by police personnel and the court officials and they did not know anything about the incident. Inspite of this the Inquiry Officer has chosen to ignore their statements given in the inquiry, declared them as hostile and recorded a finding that they are not stating the correct facts before the Inquiry Officer and placed reliance on their affidavits Ex.P-10 and Ex.P-12 and held the petitioner guilty of charge leveled against him. It is therefore a case where the petitioner is held guilty on the basis of two affidavits Ex.P10 and Ex.P-12 and the solitary statement of Shri A.K. Jain, PW-1, the statements of other witnesses do not throw any light on the conspiracy theory, PW-2 Gangaram Solanki a peon says he does not know anything about the incident, he only says that nobody came to the house of the petitioner on the date of accident and he heard about the accident from Shri A.K. Jain. Similar is the statement of PW-3 Ram Bahadur Singh, who is also a peon and even though this witness is declared hostile, his evidence does not support the conspiracy theory. PW-4 Ramesh Kumar Shrivastava is Stenographer to the petitioner and he only says that after the order of transfer was received, the petitioner had not discharged any judicial function and did not pass any order. 5th witness is Anil Kumar Singh Tomar, who is a clerk in the court and his evidence is also not connected with the conspiracy theory. 6th witness is PW-6 Ramvir Singh Yadav, 7th witness is constable Indel Singh Chouhan who is an eye witness to the accident Accordingly in its totality the conspiracy theory between the petitioner and Anil Sharma is held to be proved by the Inquiry Officer on the basis of statements of Shri A.K. Jain. PW-1, the affidavits of PW-6 Ramvir Singh and P-8 Udaivir Singh and if the affidavits and the statement of Shri A.K. Jain are scrutinized in the backdrop of the reasons given by us in the preceding paragraphs, we are of the considered view that it is not valid piece of legal evidence to hold the conspiracy theory as established, it is very suspicious and weak piece of evidence, lacking in material particular and various vital links are missing. Accordingly on the basis of such a loose and weak nature of evidence the petitioner cannot be held guilty of the charge leveled against him. If the evidence as indicated hereinabove is scrutinized in the backdrop of the principles laid down in the case of Sher Bahadur (supra) Narendra Mohan Arya (supra) and further in the case of Anil Kumar(supra), we are of the considered view that the same is not enough to prove the charge or the misconduct alleged, hence the benefit of this has to go to the petitioner.
18. Even though we have undertaken a detailed analysis of the material as indicated hereinabove, we have only indicated the correct facts as they are available on record and the same will not fall in the category of judicial review amounting to re-appreciation of the entire evidence, we are of the considered view that if the entire fact is taken on its face value, a prudent man will think hundred times before he records a finding to the effect that the petitioner is guilty of conspiracy as alleged by complainant Shri A.K. Jain. It is not a case where the evidence on the face of it suggests that the conspiracy as put forth by Shri A.K. Jain is established. On the contrary, the evidence led in the matter is weak and doubtful in nature, the same is not sufficient enough to establish the guilt of the petitioner. Even though it is settled principle of law that in the departmental inquiry preponderance of evidence is sufficient to bring home the guilt on delinquent employee. In the case of Anil Kumar (Supra), it has been held that if the evidence on record has no co-relation with the incident and does not establish the guilt of the accused person, it is a perverse finding. That apart if the findings of the Inquiry Officer in the present case are scrutinized in the backdrop of principles laid down in the case of Anil Kumar (Supra) it would be seen that the Inquiry Officer has not given any cogent reason as to why the evidence adduced before him in the departmental inquiry is being rejected, particularly the statements of PW-6 Ramvir Singh and PW-8 Udaivir Singh and why he has chosen to place reliance of their affidavits given to the complainant. No reason is given for discarding the evidence which came in the departmental inquiry in preference to the evidence that was collected by the complainant himself. It is therefore, a case which shows total non application of mind by the Inquiry Officer. The Inquiry Officer was discharging quasi judicial function and no justification is given by the Inquiry Officer for accepting the evidence which was collected by the complainant in the form of affidavits and rejecting the statements of PW-6 Ramvir Singh Yadav and PW-8 Udaivir Singh in the inquiry. In fact the Inquiry Officer has not given any cogent reason for doing so. It is a case where if a prudent man approach is applied, or if the conclusion arrived at by the Inquiry Officer and the finding recorded is scrutinized on the basis of a reasonable approach theory the same can only be termed as perverse.
19. Thus the finding to the contrary recorded by the Inquiry Officer on the basis of the evidence available on record is nothing but a perverse finding and the action taken on the basis of such a finding cannot be permitted to form the basis for taking disciplinary action and dismissing a Senior Judicial Officer with 25 years of unblemished service and visiting him with a punishment of removal from service. The evidence to prove such a misconduct and for imposing such a punishment should be of such nature that it is convincing enough and a prudent man approach, if adopted would lead only to one conclusion i.e., the guilt of the delinquent employee. Otherwise, the benefit of doubt has to be given to the delinquent employee, as the evidence in such cases would fall in the category of insufficient evidence and the findings based thereon a perverse finding. Accordingly after detailed analysis of the evidence we are convinced that the that the conspiracy theory putforth by Shri A.K. Jain for implicating the petitioner is nothing but a very weak and unconvincing story which cannot be accepted.
20. The Inquiry Officer accepting the version of Shri A.K. Jain has held that the petitioner visited A.K. Jain in the evening on 13-05-1995 and advised him not to go to the court upto 16-05-97, on the basis of this advise, presumption is drawn that it was part of the conspiracy to ensure that Shri A.K. Jain does not go to the court upto 16-05-1997 so that the bail application can be heard by the petitioner. There is no basis for drawing such a presumption and in the backdrop of the reasons given by us hereinabove, we are of the considered view that such approach cannot be adopted. In the facts and circumstance of the present case, we are of the considered view that even under the limited jurisdiction, if the material in its totality is found to be not convincing enough to hold the delinquent guilty the same can always be classified as a weak and insufficient piece of evidence, not enough to record a finding of guilt and the finding recoded otherwise by the Inquiry Officer, a perverse finding. Accordingly, the second ground canvassed by Shri Manoj Sharma is found to be substantiated from the material available on record and we have no hesitation in accepting the same.
21. As far as the ground with regard to non compliance with the provisions of Rule 14(18) is concerned, on going through the original inquiry file we find that this assertion of Shri Manoj Sharma cannot be accepted. In the original inquiry file it is seen that after the defence witnesses were examined, the Inquiry Officer has undertaken the procedure for generally examining the petitioner.DW-1 defence witness Man Bahadur Singh Bhadoria is examined on 03-12-1998 and DW-2 Vishwa Bandhu Sharma is also examined on 03-12-1998 from pages 78 onwards upto page 88 the statement of the petitioner is recorded on 25-01-1998, wherein the Inquiry Officer has put 42 questions to the complainant, they are the questions, general in nature with regard to the circumstances appearing against the petitioner and this is nothing but compliance with the provision of Rule 14(18) therefore, Shri Manoj Sharma is incorrect in contending that the statutory requirement of Rule 14(18) has not been complied with. To that effect contention advanced has to be rejected. Finally in view of the finding recorded by us to the effect that the charges levelled against the petitioner are not proved and the finding of the Inquiry Officer is noting but a perverse and illegal finding. It is not necessary now by us to go into the question of propriety of the punishment imposed. Once it is found that the finding recorded by the Inquiry Officer are perverse and the allegations levelled in the charge sheet and the misconduct are not proved then the charge has to be quashed.
22. We have also taken note of the fact that apart from the incident as is made out against the petitioner in the charge sheet, nothing is brought to the notice of this court with regard to the conduct, integrity etc. of the petitioner during his judicial career of more than 25 years to suggest that the petitioner is a judicial officer with any adverse remarks conduct or material in his service record. It seems to be a case where the petitioner, a judicial officer having put more than 25 years of unblemished service is proceeded against on the basis of so called conspiracy and the extreme punishment of dismissal from service imposed upon him, in the opinion of this court the same is wholly unsustainable and cannot be permitted to stand.
23. In view of the above, this petition is allowed. Order impugned Annexure P-1 dated 29-08-2000 and the appellate order are quashed. The petitioner has already attained the age of superannuation and therefore, the reinstatement of the petitioner may not be possible, However, in view of the quashment of the punishment order, it is directed that the petitioner be deemed to have been in service from the date of termination till the date of his attaining the age of superannuation and treating him to have retired on attaining the age of superannuation all benefits of service including arrears of salary, pay fixation, revision of pay etc. be granted to the petitioner and after the date of superannuation all consequential benefits on pension and post retrial benefits be granted to the petitioner. The entire monetary benefits accruing to the petitioner by virtue of this order be extended to him within a period of 3 months from the date of receipt of the certified copy of this order. With the aforesaid, the petition stands allowed and disposed of.
