arises is as regards the power of the Disciplinary Authority in the instant case
being the Hon'ble the Chief Justice, the Hon'ble Judges of this Court to
institute the disciplinary proceedings against the Petitioner. There can be no
dispute about the fact that the Maharashtra Civil Services Rules are applicable.
A useful reference could be made to Rule 8(1) and (2) of the said Rules which
are relevant for the purpose of the present Petition:
8. Procedure for imposing major penalties:(
1)
No order imposing any of the major penalties
shall be made except after an inquiry held, as far
as may be, in the manner provided in this rule
and Rule 9, or where such inquiry is held under
the Public Servants (Inquiries) Act, 1850 (37 of
1850) in the manner provided in that Act.
(2) Whenever the disciplinary authority is of the
opinion that there are grounds for inquiring into
the truth of any imputation of misconduct or
misbehaviour against a Government servant, it
may itself inquire into, or appoint under this rule
or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an
authority to inquire into the truth thereof.
Provided that, where there is a complaint of
sexual harassment within the meaning of Rule 22A
of Maharashtra Civil Services (Conduct) Rules
1979, the Complaints Committee established in
each Department or Office for inquiring into such
complaints, shall be deemed to be the inquiring
authority appointed by the disciplinary authority
for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has
not been prescribed for the Complaints
Committee for holding the inquiry into the
complaints for sexual harassments, the inquiry as
for as practicable in accordance with the
procedure laid down in these rules.
ExplanationWhere
a disciplinary authority
itself holds an inquiry under this rule, any
reference to an inquiring authority in this rule
shall, unless the context otherwise requires, be
construed as reference to the disciplinary
authority.
A reading of the said Rule 8(2) therefore discloses that the
discretion is of the Disciplinary Authority if it is of the opinion that there are
grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a Government servant. Hence the said Rule (2) can be
said to confer a wide discretion in the Disciplinary Authority in the matter of
inquiring into the truth of any misconduct or misbehaviour against the
Government servant.
12 Now coming to the guide lines which have been formulated by the
Hon'ble The Chief Justice of India which are comprised in the letter dated 3102014
they read thus:A.
The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanies
by a duly sworn Affidavit and verifiable material
to substantiate the allegations made therein.
B. If action on such complaint meeting the
above requirement is deemed necessary,
authenticity of complaint should be duly
ascertained and further steps thereon should be
taken only after satisfaction of the competent
authority designated by the Chief Justice of the
High Court.
C. If the above requirements are not complied
with, the complaint should be filed/lodged
without taking any steps thereon.
The said guidelines were modified and communicated vide letter
dated 1632017
issued by the Hon'ble The Chief Justice Of India. The
modification carried out which is relevant for the purposes of the present
Petition is in clause (A). The modified clause (A) reads thus:
A. The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanied
by a duly sworn Affidavit and/or verifiable
material to substantiate the allegations made
therein.
(emphasis supplied)
13 Hence by modification the requirement is that a complaint should
be accompanied by duly sworn affidavit and/or verifiable material to
substantiate the allegations made therein. Hence a complaint can be
entertained in two contingencies one is when a complaint is accompanied by a
duly sworn affidavit and second is when the complaint contains verifiable
material. It is in the light of the said modification that the instant case would
have to be considered. The said modification being in the matter of the
procedure which is required to be followed prior to holding a Departmental
Enquiry, the same would obviously relate back to the date of issuance of the
show cause notice, even if the notice is prior to the issuance of the
modification.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.643 OF 2017
Asif Badremunir Tahasildar Vs. State of Maharashtra
CORAM :R. M. SAVANT, &
SARANG V KOTWAL, JJ
PRONOUNCED ON : 4th MAY, 2018
Citation: 2018(6) MHLJ 850
JUDGMENT (PER R.M.SAVANT J.)
1 By the above Writ Petition No.643 of 2017 the Petitioner is
challenging the order dated 1572016,
(Exhibit N) by which order the
Learned Registrar General of this Court has informed the Petitioner that the
Disciplinary Authority in exercise of the powers conferred by Subrule
5(c) of
Rule 8 of the Maharashtra Civil Services (Disciplinary and Appeal) Rules 1979,
has decided to hold a Departmental Enquiry against the Petitioner. By the
orders passed on the same date, the Enquiry Officer was also appointed to
enquire into the charges.
In so far as the Writ Petition No.692 of 2017 is concerned, the said
Writ Petition also challenges the order dated 1572016,
(Exhibit D) which
order is to the same effect as the order impugned in the above Writ Petition
No.643 of 2017. By a separate order passed on the said date an Enquiry
Officer has also been appointed to looked into the charges which are the
subject matter of the second Departmental Enquiry.
2 Since the Petitions involve a common question as to whether the
Departmental Enquiry could be commenced against the Petitioner in the
absence of a written complaint supported by an affidavit, both the Petitions are
heard together and are being disposed of together.
3 The facts giving rise to the above Petitions can in brief be stated
thus:
WRIT PETITION NO.643 OF 2017
The Petitioner was appointed as a Civil Judge Junior Division.
The Petitioner at the relevant time in the context of the Departmental Enquiry
was working as a Civil Judge Junior Division in Bhokardan District Jalna. A
complaint was received from one Mr. Teple against the Petitioner concerning
his tenure as Civil Judge Junior Division, Bhokardan District Jalna. By the said
complaint disciplinary action was sought against the Petitioner. The then
Learned Principal District Judge, Jalna forwarded the said complaint to the
Registrar General of this Court. The complaint was placed before the
Disciplinary Committee. The Disciplinary Committee comprising of the
Hon'ble Judges of this Court directed the Learned Principal District Judge
Jalna to conduct a fact finding enquiry. The report of the fact finding enquiry
was thereafter placed before the Disciplinary Committee who decided to
initiate a Disciplinary Enquiry against the Petitioner. The Petitioner was
accordingly issued a show cause notice along with the memo of charges and
statement of imputations. The Petitioner submitted his reply to the said show
cause notice. The matter was placed before the Disciplinary Committee who
considered the entire material including the reply submitted by the Petitioner,
as the said reply was found not satisfactory, the Disciplinary Committee
decided to hold a regular Departmental Enquiry against the Petitioner. It is by
the impugned communication dated 1572016
that the Petitioner was
communicated the said decision which as indicated above is the subject matter
of the above Writ Petition.
WRIT PETITION NO.692 OF 2017
4 Information was received by the Learned Principal District Judge,
Kolhapur as regards the incident which had taken place on 1672015
involving the Petitioner. In the said incident the Petitioner had allegedly
assaulted the bus driver of the school bus of his daughter and thereafter
threatened the driver and the owner of the bus that he would involve them in
a case under Section 307 of the Indian Penal Code, 1860 and put them behind
bars for a period of 4 days. Pursuant to the said information which the
Learned Principal District Judge Kolhapur had received, he directed the
Learned District Judge3,
Kolhapur to conduct a discreet enquiry in respect of
the said incident. The Learned District Judge3
proceeded to Ajara, District
Kolhapur which was the place of posting of the Petitioner and conducted a
discreet enquiry in respect of the said incident which had allegedly taken place
on 1672015.
In the course of the said discreet enquiry, the Learned District
Judge3
recorded the statements of the driver, owner of the school bus and
some other persons and accordingly submitted his report to the Learned
Principal District Judge. The Learned Principal District Judge upon receipt of
the said report in turn submitted his report to the Learned Registrar General of
this Court. The matter was thereafter placed before the Disciplinary
Committee of this Court. Thereafter on 512016
the Disciplinary Committee
considered the said report and decided to initiate disciplinary action against
the Petitioner. The Petitioner was served with a show cause notice with the
articles of charges and statement of imputations. The Petitioner has filed his
reply to the said show cause notice on 1752016.
The matter was placed
before the Disciplinary Committee along with the Petitioner's reply and the
report of the Learned Principal District Judge. As the Petitioner's reply was not
found to be satisfactory, the Disciplinary Committee decided to initiate regular
Departmental Enquiry against the Petitioner which decision was
communicated to the Petitioner by the impugned order dated 1572016.
As
indicated above by an order passed on the same day the Enquiry Officer was
also appointed to looked into the charges alleged against the Petitioner.
5 At this stage it would be relevant to refer to the charges which are
alleged against the Petitioner. The said charges are reproduced hereinunder:
WRIT PETITION NO.643 O F 2017
(First Departmental Enquiry)
Charge1
That during your tenure at Bhokardhan you were
staying in rented house owned by Shri Bismilla
Khan Mahetab Khan r/o Bhokardhan. In your
letter dated 08.04.2010 addressed to Executive
Engineer, P. W. D., Jalna you had informed the
Executive Engineer that as no Government
accommodation was available for you at
Bhokardhan, the Principal District Judge, Jalna
had granted permission to you to stay in private
accommodation on rental basis. Accordingly you
had acquired house of Shri Bismilla Khan
Mahetab Khan at Bhokardhan on rent of
Rs.6,000/and
requested him to issue Certificate
in that regard. The copy of said letter was also
addressed to the SubDivisional
Officer, P. W. D.,
Jalna. After the dispatch of the said letter
addressed to the Executive Engineer, P.W.D. Jalna,
you had carried out correction in your own
handwriting by rewriting
the figure Rs.5,000/as
Rs.6,000/and
in words Rupees Five thousand
as Rupees Six thousand. As per your oral
direction the SubDivisional
Officer, P. W. D., Jalna
also made correction in copy of your letter
addressed to him. However, in the office copy
maintained by the office, no such corrections
have been carried out and the amount of rent is
written as Rs.5000/per
month in figures as well
as in words. Thus by misusing your official
position you had made corrections in forwarding
letter later on for your personal benefit.
Charge2
That you had submitted medical bill of
Rs.20,513/regarding
treatment of your wife,
Smt. Najnin Tahasildar for reimbursement. In
order to get medical reimbursement bill you
produced false documents i.e. “Mata Balak
Saurakshan Card (ANC Card) purporting to be
signed by the Medical Officer, Rural Health
Centre, Bhokhardhan, and that by producing such
false documents you obtained the amount of
Rs.20,513/on
22.11.2010, you thus not only
produced false document but used the said false
document (ANC Card) for encashing medical bill
knowing that it was a false document and thereby
caused wrongful gain to yourself and wrongful
loss to the state exchequer and thereby
committed gross misconduct.
Charge3
That from 08.02.02010 till 03042010
you
were stationed at Jalna for training, as per the
letter dated 17.10.2012 of the District Court,
Jalna (tk-dz-@vkLFkk 6266@2012) you had sought
permission to leave headquarters for going to
Bhokardhan only on 14.03.2010 and 24.03.2010.
That during the crossexamination
in the
departmental enquiry NO.03/2011 initiated
against Shri K. E. Teple, Junior Clerk, Civil Court,
Bhokardhan you deposed “gs Eg.kus [kjs ukgh dh] eh
ekb&;k iRuhyk xzkeh.k #X.kky; Hkksdjnu ;sFks fn-09-02-2010 o
06-03-2010 jksth ?ksmu xsyks ukgh” Thus you either made
false statement in the crossexamination
in the
abovesaid departmental enquiry or on
09.02.2010 and 06.03.2010 you went to P. H.C.,
Bhokardhan, without seeking permission from
the principal District Judge, Jalna to leave the
headquarter on the abovesaid dates. You, thereby
failed to maintain absolute integrity and devotion
to duty by indulging in most inappropriate
behaviour.
WRIT PETITION NO.692 OF 2017
(Second Departmental Enquiry)
Charge1
That on 16.07.2015 at 8.15 a.m. one Shri
Ashok Laxman Lohar, Driver of school van
reached your bungalow to pickup your daughter
Ms. Layba for school. After waiting there for five
minutes, the driver Shri Ashok started the van.
Thereafter you immediately came out of your
house and started abusing and beating the said
driver. When he tried to run away, your servant
caught him and presented him before you then
you again beat him by kick and fist blows. Your
abovesaid misbehaviour shows that you failed to
maintain judicial discipline or propriety and you
conducted yourself in a manner unbecoming of a
Judicial Officer and brought great disrepute to
the institution as a whole.
Charge2
After the said incident you called Shri Vijay
Jyotiba Kesarkar and Shri Stephen, owners of the
vehicle and Shri Ashok Lohar, Driver, during
office hours i.e. 11.00 a.m. in the court, talked
rudely with them and threatened them that you
will detain them for four days. When they
apologized, you threatened them that you would
file complaint against them by calling the officer
of Education Department. You further threatened
them that you will file complaint against them
under section 307 of I.P.C. to the effect that they
were in the van and they purposely tried to run
over him. Your abovesaid misbehaviour shows
that you failed to maintain judicial discipline or
propriety and you conducted yourself in a
manner unbecoming of a Judicial Officer and
brought great disrepute to the institution as a
whole.
Charge3
That you misused your position to make
Shri Vijay J. Kesarkar and Ashok Lohar to take
back the statements given by them during the
preliminary enquiry and accordingly both of them
filed application to withdraw their statements
recorded during the enquiry. You thus failed to
maintain absolute integrity by indulging in most
inappropriate behaviour.
Hence the allegations against the Petitioner in the Second
Departmental Enquiry are two fold, one is the alleged assault of the driver of
the school bus by the Petitioner and the second is the threat given by the
Petitioner.
6 In so far as the processing of complaint received against the
members of subordinate
judiciary is concerned, the Hon'ble The Chief Justice
of India had issued guide lines which are comprised in his letter dated 3102014
addressed to the Hon'ble Chief Justices of the High Courts. The said
guidelines were issued so that a uniform procedure is followed by all the High
Courts dealing with such complaints. The background to the issuance of the
said guidelines is contained in the said letter dated 3102014.
The said guide
lines came to be modified by the Hon'ble The Chief Justice of India, which
modification was communicated by letter dated 1632017.
The modification
carried out was in respect of clause (A) of the said guidelines. A reference
would be made to the text of the said guidelines a bit later in this judgment.
7 As indicated above, the order dated 1562017
passed by the
Learned Registrar of this Court informing the Petitioner of holding of the
disciplinary proceedings against him in respect of two sets of charges which
are subject matter of the two disciplinary proceedings, is the subject matter of
the above Petitions.
8 Heard, the Learned Counsel for the parties.
9 The principal contention of the Learned Counsel appearing for the
Petitioner Mr. Shaikh was that the commencement of the Departmental
Enquiry against the Petitioner was in breach of the guidelines issued by the
Hon'ble The Chief Justice of India as the Departmental Enquiry sought to be
commenced against the Petitioner without there being a written complaint and
an affidavit in support thereof as mandated by the said guidelines. The
Learned Counsel would contend that in cases of the absence of a written
complaint and an affidavit in support thereof the Departmental Enquiry
commenced against the judicial officers have been quashed and set aside. The
Learned Counsel sought to place reliance on the unreported judgment of the
Division Bench of the Gujarat High Court in the matter of Girishkumar
Rameshchandra Soni Vs. State of Gujarat & Ors. dated 1592017
and the
judgment of the Apex Court in the matter of R. C. Sood Vs. High Court of
Judicature at Rajasthan & Ors.1 The Learned Counsel would contend that
though in respect of the second Departmental Enquiry the Petitioner had
pursuant to the show cause notice issued to him represented against the said
show cause notice and pointed out as to how it was unnecessary to hold a
Departmental Enquiry against him. The reply of the Petitioner has not been
taken into consideration and neither has the Petitioner been afforded a
personal hearing though the Petitioner had requested for the same. It was
next contended by the Learned Counsel that in so far as the first Departmental
1 (1998)5 Supreme Court Cases 493
Enquiry is concerned i.e. the incidents which have taken place whilst the
Petitioner was posted at Bhokardan District Jalna. The complaint made by one
Mr. Teple was motivated in view of the fact that the Petitioner was an Enquiry
Officer in the preliminary inquiry which was held against the said Mr. Teple.
The Learned Counsel would next contend that in so far as the second
Departmental Enquiry is concerned, which is in respect of the alleged incident
which took place at Ajara, District Kolhapur, whilst the Petitioner was posted
there. There is a reference to Advocate Mr. Shailesh Deshpande in the report
of the Learned District Judge who carried out discreet enquiry, the said
Advocate was not recommended by the Petitioner for appointment to the post
of AGP. It was sought to be contended by the Learned Counsel that why the
reference to the Advocate Mr. Shailesh Deshpande appears in the report of the
Learned District Judge 3
who carried out the discreet enquiry, is unknown.
10 Per contra the Learned Counsel appearing for the Respondent
No.2, Mr. Nerlekar would submit that power to hold the Departmental Enquiry
against the judicial officer belonging to the subordinate
judiciary is conferred
by Rule 8(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules
1979. The said Rule confers a wide power on the Disciplinary Authority in so
far as holding of the Departmental Enquiry is concerned and the said Rule
leaves it to the subjective satisfaction of the Disciplinary Authority whether
such an enquiry is required to be held. The Learned Counsel would contend
that in so far as the guide lines are concerned, they have been modified by the
subsequent communication dated 1632017
and the words “and/or verifiable
material” has been included in the guide lines meaning thereby that a
Departmental Enquiry can be commenced either when there is a complaint
accompanied by an Affidavit and/or there is verifiable material. In the instant
case, the report of the discreet enquiry which report has been forwarded to
this Court by the Learned Principal District Judge, comprised the verifiable
material on the basis of which the Departmental Enquiry has been commenced
against the Petitioner. The Learned Counsel would next contend that in the
instant case the Learned Principal District Judge of Kolhapur has submitted a
report to this Court for taking appropriate action in the matter of holding of a
Departmental Enquiry against the Petitioner. The Learned Counsel would
contend that the contention of the Petitioner that at the stage of considering
his explanation to the show cause notice the Petitioner is required to be heard,
is misconceived . The Disciplinary Authority on the basis of the material which
has come on record till that stage which includes the reply, has to only come to
a prima facie conclusion that there is material to proceed against the
delinquent. The Learned Counsel would next contend that reliance placed on
the judgments of the Division Bench of the Gujarat High Court as well as the
judgment of the Apex Curt in R. S. Sood, is misplaced as the said judgments
were rendered in the fact situation as prevailing in the said cases. The
Learned Counsel would contend that the Petitioner would obviously have
adequate opportunity to controvert the charges which are levied against him in
the Departmental Enquiry that would be held against him. However, on one
ground or the other the said Departmental Enquiries have been unduly
delayed by the Petitioner. The Learned Counsel would lastly contend that
since the Writ Jurisdiction of this Court is invoked against the communication
informing the Petitioner of holding of a Departmental Enquiry against him, this
court would not exercise its extra ordinary jurisdiction under Article 226 of the
Constitution of India. In support of which contention reliance was placed on
the following judgments of the Apex Court.
1. Union of India & Anr. Vs. Kunisetty Satyanarayana (2006) 12 SCC 28
2. Special Director & Anr. Vs Mohd. Ghulam Ghouse & Anr (2004) 3 SCC 440
3. Executive Engineer, Bihar State Housing Board. Vs. Ramesh Kumar Singh &
Ors. (1996) 1 SCC 327
4. State of Uttar Pradesh Vs. Brahm Datt Sharma & Anr (1987) 2 SCC 179.
11 Having heard the Learned Counsel for the parties we have
bestowed our anxious consideration to the rival contentions.
In the context of the challenge raised in the above Petitions, the issue that
arises is as regards the power of the Disciplinary Authority in the instant case
being the Hon'ble the Chief Justice, the Hon'ble Judges of this Court to
institute the disciplinary proceedings against the Petitioner. There can be no
dispute about the fact that the Maharashtra Civil Services Rules are applicable.
A useful reference could be made to Rule 8(1) and (2) of the said Rules which
are relevant for the purpose of the present Petition:
8. Procedure for imposing major penalties:(
1)
No order imposing any of the major penalties
shall be made except after an inquiry held, as far
as may be, in the manner provided in this rule
and Rule 9, or where such inquiry is held under
the Public Servants (Inquiries) Act, 1850 (37 of
1850) in the manner provided in that Act.
(2) Whenever the disciplinary authority is of the
opinion that there are grounds for inquiring into
the truth of any imputation of misconduct or
misbehaviour against a Government servant, it
may itself inquire into, or appoint under this rule
or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an
authority to inquire into the truth thereof.
Provided that, where there is a complaint of
sexual harassment within the meaning of Rule 22A
of Maharashtra Civil Services (Conduct) Rules
1979, the Complaints Committee established in
each Department or Office for inquiring into such
complaints, shall be deemed to be the inquiring
authority appointed by the disciplinary authority
for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has
not been prescribed for the Complaints
Committee for holding the inquiry into the
complaints for sexual harassments, the inquiry as
for as practicable in accordance with the
procedure laid down in these rules.
ExplanationWhere
a disciplinary authority
itself holds an inquiry under this rule, any
reference to an inquiring authority in this rule
shall, unless the context otherwise requires, be
construed as reference to the disciplinary
authority.
A reading of the said Rule 8(2) therefore discloses that the
discretion is of the Disciplinary Authority if it is of the opinion that there are
grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a Government servant. Hence the said Rule (2) can be
said to confer a wide discretion in the Disciplinary Authority in the matter of
inquiring into the truth of any misconduct or misbehaviour against the
Government servant.
12 Now coming to the guide lines which have been formulated by the
Hon'ble The Chief Justice of India which are comprised in the letter dated 3102014
they read thus:A.
The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanies
by a duly sworn Affidavit and verifiable material
to substantiate the allegations made therein.
B. If action on such complaint meeting the
above requirement is deemed necessary,
authenticity of complaint should be duly
ascertained and further steps thereon should be
taken only after satisfaction of the competent
authority designated by the Chief Justice of the
High Court.
C. If the above requirements are not complied
with, the complaint should be filed/lodged
without taking any steps thereon.
The said guidelines were modified and communicated vide letter
dated 1632017
issued by the Hon'ble The Chief Justice Of India. The
modification carried out which is relevant for the purposes of the present
Petition is in clause (A). The modified clause (A) reads thus:
A. The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanied
by a duly sworn Affidavit and/or verifiable
material to substantiate the allegations made
therein.
(emphasis supplied)
13 Hence by modification the requirement is that a complaint should
be accompanied by duly sworn affidavit and/or verifiable material to
substantiate the allegations made therein. Hence a complaint can be
entertained in two contingencies one is when a complaint is accompanied by a
duly sworn affidavit and second is when the complaint contains verifiable
material. It is in the light of the said modification that the instant case would
have to be considered. The said modification being in the matter of the
procedure which is required to be followed prior to holding a Departmental
Enquiry, the same would obviously relate back to the date of issuance of the
show cause notice, even if the notice is prior to the issuance of the
modification.
14 Now coming to the facts of the instant case in so far as the first
enquiry is concerned, the same is on the basis of the complaint made by Shri
Teple, which was processed by the Learned Principal District Judge Jalna and
then a report was submitted to the Learned Registrar General of this Court
which was thereafter placed before the Disciplinary Committee which directed
the issuance of the show cause notice to the Petitioner pursuant to which the
Petitioner replied to the said show cause notice and the reply having been
found not to be satisfactory, the Disciplinary Committee of this Court decided
to hold the Departmental Enquiry against the Petitioner. In so far as the
second Departmental Enquiry is concerned, the Learned Principal District
Judge having received information of the incident which took place on 1672015
had directed the Learned District Judge3
to conduct a discreet enquiry
in respect of the said incident which the Learned Judge conducted and
reported to the Learned Principal District Judge. The Learned Principal
District Judge on receipt of the said report forwarded the same to the Learned
Registrar General of this Court with his recommendation. The Petitioner was
thereafter issued a show cause notice as to why a Departmental Enquiry
should not be held against him. The Petitioner submitted his reply. Having
found the reply of the Petitioner to be unsatisfatory, the Disciplinary Authority
decided to hold a Departmental Enquiry against the Petitioner. Hence in
respect of both the Departmental Enquiries there is a report of the Learned
Principal District Judge which was forwarded along with the verifiable
material which was in the form of the report of the discreet enquiry conducted
by the Learned Principal District Judge3.
In respect of the second
Departmental Enquiry and the complaint made by Mr. Teple who is an
employee of the Court, the same was also forwarded by the Learned Principal
District Judge along with his report. Hence in so far as the Departmental
Enquiries against the Petitioner are concerned, they would be covered by the
second part of clause (A) namely that they are based on verifiable material to
substantiate the allegations made. It is therefore not possible to accept the
contention of the Learned Counsel for the Petitioner that in the absence of
there being written complaint accompanied by a duly sworn affidavit, no
Departmental Enquiry can be initiated against the Petitioner. It is also not
possible to accept the contention of the Learned Counsel for the Petitioner that
the complaint and the duly sworn affidavit have to be read together with the
verifiable material so as to mean that the material cannot be independently
brought forward but has to be by way of a complaint which is accompanied by
a sworn affidavit. It is probably on account of the difficulties faced in
proceeding and initiating the disciplinary proceedings wherein information is
received by the Learned Principal District Judge or any other authority of the
Court that the amendment in the guide lines was made vide letter dated 1632017
by the Hon'ble The Chief Justice of India. Construing the guidelines in
the manner sought by the the Learned Counsel for the Petitioner would fetter
the powers of the Disciplinary Authority in initiating departmental proceedings
against the erring judicial officers and thereby negating the power vested in
the Disciplinary Authority for enquiring into the truth of the allegations
against a judicial officer.
15 In so far as the submission of the Learned Counsel for the
Petitioner that the reply of the Petitioner has not been considered and that the
Petitioner has also not been given a hearing in so far as the second
Departmental Enquiry is concerned, in our view the said submission is
misconceived. The Disciplinary Authority is under no obligation at the stage of
the show cause notice to afford any opportunity of hearing to a delinquent.
The Disciplinary Authority has only to consider whether there are grounds for
proceeding with so as to enquire into the truth of any allegations against the
judicial officer. In our view therefore, the said submission cannot be accepted
and there is no violation of the principles of natural justice merely because no
hearing was afforded prior to the Disciplinary Authority coming to a conclusion
to proceed departmentally against the Petitioner.
16 Now coming to the judgments on which reliance was placed by the
Learned Counsel for the Petitioner is concerned, the cause for allowing the
Special Civil Application filed by the Petitioner therein are two fold namely that
since the allegation made against the Petitioner was as regards sexual
harassment in respect of which a complaint was required to be in writing in
terms of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 and prior thereto under the Rules which
were framed pursuant to the judgment in Vishakha’s case and since in the said
case there was no written complaint but action was sought to be taken on the
basis of the oral complaint made by three Advocates. The Division Bench was
of the view that the disciplinary proceedings could not be initiated on the said
basis. The second ground was that though the incident was of the year 2012
the decision to hold a Departmental Enquiry against the Petitioner therein
culminated in the charge sheet dated 2112017
issued to the Petitioner and
therefore there being a time lag of 5 years between the date of the incident
and the date of the order, the Division Bench was of the view that a
Departmental Enquiry could not be initiated against the Petitioner. The
Division Bench of the Gujarat High Court has also referred to the circular
issued by that Court on 2542017
which can be said to be paramateria to the
first circular issued by the Hon’ble Chief Justice of India. The Division Bench
thereafter referred to the Judgment of the Apex Court in R. C. Sood’s case
(Supra), in which case the Apex Court had set aside the Disciplinary
proceedings which were initiated against the Petitioner R. C. Sood as the
complaint was not supported by an affidavit. The Division Bench therefore
opined that in the absence of any written complaint, initiating the
departmental proceedings pursuant to the oral representation, will run counter
to the ratio laid down in the judgment of the Apex Court in R. C. Sood
and Ishwarchand Jain Vs. State of Punjab.
17 Now coming to the judgment of the Apex Court in R. C. Sood, the
said judgment was rendered by the Apex Court when neither of the circulars
i.e. circular dated 3102014
and 1632017
were in the field. The said
judgment was also rendered in the peculiar facts of the said case. In the said
case the Petitioner R. C. Sood whilst acting as a Registrar of the Rajashtan High
Court was proceeded departmentally on account of the wrong mentioning of
the cut of date for determining the age in the advertisement issued for filling
up the vacancies in the Rajasthan Higher Judicial Service by way of direct
recruitment. A committee of two Judges was appointed to go into the matter
as regards the mentioning of the cut of date in the advertisement issued calling
for applications. The committee of two Judges suggested that fresh
applications be called for and the matter should be placed before the Hon’ble
Chief Justice for taking suitable action against the officer who was responsible
for issuing the incorrect notification. The matter was placed before the Full
Court of the High Court. The Full Court constituted a committee of two other
Judges to look into the record leading to the issuance of the notification. The
said committee observed that it was their tentative view that the Petitioner was
responsible for the “forgery committed in the record” and it recommended a
regular enquiry to be made in accordance with rules. The report of the two
Judges committee was placed before the Full Court and the Full Court resolved
that the Departmental Enquiry be initiated against the Petitioner and he should
be placed under suspension. The Petitioner challenged the said action by way
of a Writ Petition in the Apex Court. By judgment dated 22111994
the Apex
Court quashed the proposed disciplinary proceedings as well as the order
placing the Petitioner under suspension. The Apex Court observed that it was
difficult to appreciate how the two Judges committee could come to the
conclusion that there was a forgery in the record and/or any person had
benefited from the said error or that the Petitioner was responsible for the
same.
18 The Hon’ble Chief Justice of the Rajasthan High Court had issued
a office note dated 1251994
providing that if a complainant does not file the
requisite affidavit, no action should be taken on that complaint. Though
initially the first disciplinary proceeding was quashed by the Apex Court, the
problem of the Petitioner R. C. Sood did not end there. As observed by the
Apex Court by letter dated 27101994
one of the Judges of the Rajasthan High
Court forwarded a PIL Petition received by him to the Hon’ble Chief Justice by
his letter addressed to the Hon’ble Chief Justice mentioning therein that as
allegations are serious they deserved to be investigated thoroughly. The said
letter was the same letter which had been dealt with by the earlier Hon'ble
Chief Justice vide letter dated 3111994
and the issue was closed. However,
the matter was placed before the Full Court and the Full Court resolved that
the order passed by the Hon’ble Chief Justice on the report of the preliminary
enquiry against R. C. Sood conducted by the Additional Registrar be hereby
revoked. The Full Court thereafter resolved to constitute a committee of three
Hon’ble Judges of the Rajasthan High Court to enquire into the various
complaints forwarded to them by the Hon’ble Judge against the Petitioner R.C.
Sood. The Apex Court in the facts of the said case observed that there was no
valid reason in law for the Full Court to revoke the decision of the then Chief
Justice which was taken on 3111994.
The Apex Court also adversely
commented upon the manner in which the enquiry was sought to be conducted
by the three Judges of the Rajashtan High Court. The Apex Court observed
that the witnesses were also of the choice of one of the members of the
committee and were persons who were inimical to the Petitioner R.C.Sood.
The Apex Court observed that the complainant Vijay Singh was a imposter and
who was that person who was examined by the committee, remained
unexplained. The Apex Court therefore in the facts of the said case held that
the complaint could not have been entertained without there being an
affidavit. Paragraphs 23 and 25 of the said judgment are eloquent and reflect
the reasons why the Apex Court interfered in the said matter. The same is
therefore reproduced hereinunder for the sake for convenience:
23. Apart from the nonjudicious
manner in
which the Three Judge Committee conducted the
enquiry the sequence of events, which bears
repetition, shows that being piqued with this
Court's judgment quashing the first departmental
enquiry the High Court, with a few functionaries
playing an active role, left no stone unturned
with a view to victimise the petitioner. On 21st
October, 1994 the High Court suspended the
petitioner and decided to hold the first
departmental enquiry. On 24th October, 1994 this
suspension was challenged by way of a writ
petition in this Court in which this Court on 7th
November, 1994 issued show cause notice to the
High Court. Suddenly we find on the High Court
record Justice Kokje's letter dated 27th October,
1994 forwarding to the then Chief Justice the old
complaint of Vijay Singh. The Chief Justice makes
an endorsement on this letter on the same date thereby
showing the sense of urgency. First office
note is written only on 9th November, 1994, after
issuance of notice by this Court in the writ
petition filed by the petitioner. The fact that it is
only on 30th November, 1994, after the decision
of this Court on 22nd November, 1994, that the
Full Court fixed up the matter lends credence to
the petitioner's submission that the dates which
appear on record may not be real. This is more so
when we find that none of the documents in the
form of complaints allegedly received by the
Judges bear any endorsement as to the date of
receipt of the same. To crown it all the second
round started on a complaint of Vijay Singh
stated to have been received by Justice Kokje on
or before 27th October, 1994. This complaint had
been circulated in September, 1993 amongst all
the then Judges of the High Court and in respect
of which order was passed by the then Chief
Justice and the matter was closed on 31st
January, 1994. Respondents' counsel could give
no explanation as to how Justice Kokje got this
complaint against the petitioner some time before
27th October 1994 when he was transferred to
the Rajasthan High Court only on 28th April,
1994. At that time the petitioner had ceased to be
the Registrar of the High Court with effect from
1st February, 1994. It is obvious that a copy of
this complaint was handed over to Justice Kokje
by some one who was interested in harming the
petitioner and thereupon the second round of
action against the petitioner commenced with
Justice Kokje being made one of the members of
the Three Judge Committee.
25. Normally enquiry committees are set up in
order to ascertain correct facts. Here, however,
we have a situation where a committee consisting
of a local judge and two transferred judges was
set up with the local judge sitting alone and
collecting a menagerie of witnesses who had a
grudge against the petitioner and were thus sure
to depose against him. Some of these witnesses
were those who had not sent any complaint
against the petitioner prior to 30th November,
1994 and it is only the local judge who, wanting
to gather statements against the petitioner, could
have known whom to approach and call for
evidence. Of the two transferred judges who were
members of the committee, one never took part
in any proceeding when evidence was recorded
between 20th February (Sic 20111994)
and 2nd
January, 1995. Yet he signs the report dated 4th
January, 1995. The other transferee judge is the
person who set the ball rolling with his conjuring
up Vijay Singh's complaint which had originally
been circulated long before the judge's transfer to
Rajasthan. The respondent's counsel was unable
to explain as to how this complaint was
conveniently placed in this judge's hand. It is
evident that there was a deliberate design to
bring to a premature end the judicial career of
the petitioner, whose name, at that time, was
being actively considered for elevation as High
Court Judge. This is apparent from the fact that
in the resolutions dated 30th November, 1994
and 5th January, 1995 it was resolved by the Full
Court that the President of India and the Chief
Justice of India should be informed about the
holding of the departmental enquiry against the
petitioner. Acting on the basis of the Committee's
biased report the Full Court, we are sad to note,
continued in similar vein and proceeded to nail
the petitioner by taking a decision which lacked
objectivity. Apparently stung by the judgment
dated 22nd November, 1994 of this Court it
retaliated by launching a fresh set of charges
against the petitioner clearly with a view to ruin
his judicial career. We have no doubt that the
action taken by the court was not bona fide and
amounts to victimisation. This is certainly not
expected from a judicial forum, least of all the
High Court, which is expected to discharge its
administrative duties as fairly and objectively as
it is required to discharge its judicial functions.
19 In our view, the judgments of the Gujarat High Court in
Girishkumar Soni’s case and the Apex Court in R. C. Sood’s case having been
rendered in the peculiar facts and circumstances as were prevailing in the said
cases would not aid the Petitioner in so far as the instant case is concerned. In
the instant case the factual basis has changed in as much as the original
circular issued by the Chief Justice of India has been amended by the
subsequent circular providing for a written complaint accompanied by an
affidavit and/or verifiable material. In our view, in respect of both the
Departmental Enquiries there being verifiable material on record, the same
would be covered by the amended circular dated 1632017.
20 The question that also arises is whether in the facts of the present
case we should exercise our writ jurisdiction. As indicated above the Petitioner
has invoked the Writ Jurisdiction of this court against the order dated 1572016
informing him that a Departmental Enquiry is to be commenced against
him. The Petitioner can obviously participate in the enquiry and refute or
dispel the charges which are leveled against him. In our view, the
commencement of the said two disciplinary proceedings against the Petitioner
cannot be said to be without jurisdiction as is sought to be contended by the
Learned Counsel for the Petitioner as being in violation of the circulars issued
by the Hon’ble The Chief Justice of India. In our view the reliance placed by
the Learned Counsel for the Respondent No.2 on the judgments (Supra) of the
Apex Court, seems to be apposite. The Apex Court has in terms observed that
exercise of writ jurisdiction at the initial stage of commencement of the
disciplinary proceedings would only be in exceptional cases more especially in
cases where the disciplinary proceedings are commenced without jurisdiction.
Such is not the case in the instant matter. We therefore do not deem it
appropriate to exercise our Writ Jurisdiction.
21 We however, leave the contentions of the Petitioner in respect of
the charges levelled against him in the Departmental Enquiries open. Subject
to the aforesaid, the above Writ Petitions are dismissed. Rule to stand
discharged in both the Petitions with no order as to costs.
[SARANG V KOTWAL, J] [R.M.SAVANT, J]
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