Judicial Magistrate in 1981 in the judicial service of the State of Gujarat.
He was promoted as a Civil Judge (Senior Division) in 1996. The charges
which emanated against him from a chargesheet dated 31 August 2001
related to his work as a judicial officer when he was posted as Chief
Judicial Magistrate at Bhuj from 6 May 1996 to 15 June 1998. Two
criminal cases involving offences punishable under Section 135 of the
Customs Act 1962 and the Imports & Exports (Control) Act 1947 were tried
by him.
4 In Criminal Case 1293 of 1995, the Appellant delivered a judgment
on 22 January 1997 convicting the accused, but awarded a sentence of
imprisonment less than the minimum prescribed by Section 135.
Moreover, the sentence of imprisonment was so structured that after
allowing the benefit of a set-off, the accused was not required to remain in
jail for a further period. In the second criminal case, Criminal Case 675 of
1994, the trial involved offences inter alia under Section 135 of the
Customs Act 1962. Fourteen accused were alleged to be involved in the
smuggling of 275 silver slabs of a value of ₹ 5,86,50,620/-. The trial of
two of the accused who are absconding was separated from the rest. By a
judgment dated 11 March 1997 the Appellant held the twelve accused who
were brought to trial to be guilty of the charges. However, save and
except for five of the accused persons, the Appellant awarded less than the
minimum punishment prescribed under Section 135. All the accused were
granted a set-off.
It is not in dispute that the cases in question related to goods to
which Section 123 applied and the market price whereof exceeded rupees
one lakh. The offences were punishable with imprisonment for a term
which may extend to seven years and with fine. The proviso spells out
that in the absence of special and adequate reasons to the contrary to be
recorded in the judgment of the Court, such imprisonment shall not be for
less than three years. Sub-section 3 of Section 123 provides what would
not be considered as special and adequate reasons for awarding a sentence
of imprisonment for a term of less than one year. The Appellant was
evaluating, in Criminal Case 675 of 1994, a situation involving the
smuggling of 275 silver slabs worth ₹.5,86,50,620/-. The explanation of
the Appellant that he was recently promoted to the cadre of CJM and was
not aware of the provisions of Section 135 was not accepted by the
Disciplinary Committee (or by the Full Court). As a judicial officer who
was in service for over fourteen years, the Appellant could not have been
unmindful of and was duty bound to have read the governing provisions
of the statute under which the offence was sought to be established. It is
inconceivable that a judicial officer would do so in two successive trials
without apprising himself of the law or the punishment provided by the
legislature. The Appellant awarded sentences ranging from three months
to five years of imprisonment to different accused. No reasons appear
from the record of the judgment, for awarding less than the minimum
sentence prescribed.
18 We have duly perused the judgments rendered by the Appellant and
find merit in the finding of the High Court that the Appellant paid no heed
whatsoever to the provisions of Section 135 under which the sentence of
imprisonment shall not be less than three years, in the absence of special
and adequate reasons to the contrary to be recorded in the judgment of the
Court. Most significant is the fact that the Appellant imposed a sentence
in the case of each accused in such a manner that after the order was
passed no accused would remain in jail any longer. Two of the accused
were handed down sentences of five months and three months in such a
manner that after taking account of the set-off of the period during which
they had remained as under-trial prisoners, they would be released from
jail. The Appellant had absolutely no convincing explanation for this
course of conduct.
19 A disciplinary inquiry, it is well settled, is not governed by the strict
rules of evidence which govern a criminal trial. A charge of misconduct
in a disciplinary proceeding has to be established on a preponderance of
probabilities. The High Court while exercising its power of judicial
review under Article 226 has to determine as to whether the charge of
misconduct stands established with reference to some legally acceptable
evidence. The High Court would not interfere unless the findings are
found to be perverse. Unless it is a case of no evidence, the High Court
would not exercise its jurisdiction under Article 226. If there is some
legal evidence to hold that a charge of misconduct is proved, the
sufficiency of the evidence would not fall for re-appreciation or
re-evaluation before the High Court. Applying these tests, it is not
possible to fault the decision of the Division Bench of the Gujarat High
Court on the charge of misconduct. The charge of misconduct was
established in disciplinary Inquiry 15 of 2000.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos 6116-6117 OF 2016
[Arising out of SLP (C) Nos.34674-34675 of 2012]
R R PAREKH V HIGH COURT OF GUJARAT & ANR.
Dr D Y CHANDRACHUD, J
DATED:JULY 12, 2016
2 These proceedings arise from a judgment of the High Court of
Gujarat dated 23 February 2012 in an application filed by the Appellant
challenging the punishment of dismissal imposed upon him upon a
disciplinary inquiry. The Division Bench of the Gujarat High Court found
that the charges against the Appellant have been established in one (but
not the second) of two disciplinary inquiries in respect of his conduct as a
judicial officer in the district judiciary. In view of its findings, the High
Court declined to interfere with the punishment of dismissal. That has
given rise to these proceedings.
3 The Appellant was recruited as a Civil Judge (Junior Division) and
Judicial Magistrate in 1981 in the judicial service of the State of Gujarat.
He was promoted as a Civil Judge (Senior Division) in 1996. The charges
which emanated against him from a chargesheet dated 31 August 2001
related to his work as a judicial officer when he was posted as Chief
Judicial Magistrate at Bhuj from 6 May 1996 to 15 June 1998. Two
criminal cases involving offences punishable under Section 135 of the
Customs Act 1962 and the Imports & Exports (Control) Act 1947 were tried
by him.
4 In Criminal Case 1293 of 1995, the Appellant delivered a judgment
on 22 January 1997 convicting the accused, but awarded a sentence of
imprisonment less than the minimum prescribed by Section 135.
Moreover, the sentence of imprisonment was so structured that after
allowing the benefit of a set-off, the accused was not required to remain in
jail for a further period. In the second criminal case, Criminal Case 675 of
1994, the trial involved offences inter alia under Section 135 of the
Customs Act 1962. Fourteen accused were alleged to be involved in the
smuggling of 275 silver slabs of a value of ₹ 5,86,50,620/-. The trial of
two of the accused who are absconding was separated from the rest. By a
judgment dated 11 March 1997 the Appellant held the twelve accused who
were brought to trial to be guilty of the charges. However, save and
except for five of the accused persons, the Appellant awarded less than the
minimum punishment prescribed under Section 135. All the accused were
granted a set-off. Details of the sentences awarded are contained in the
following table:
Sl.
No.
Accused
No.
Name of the accused Period
of
sentence
Amount
of fine
In default of
fine, further
sentence
Set off is
allowed
1 1 Surendra
Gurudeepsinh
2 Years 10,000/- 1 Year Yes
2 2 Bhupendra Pyarelal 2 Years 10,000/- 1 Year Yes
3 4 Natha Samat 2 Years 10,000/- 1 Year Yes
4 5 Jivan Devdan 2 Years 10,000/- 1 Year Yes
5 13 Kana Mahadeva 2 Years 10,000/- 1 Year Yes
6 3 Gulam Chisti 4 Years 15,000/- 1 Year Yes
7 6 Iqbal Husain 4 Years 15,000/- 1 Year Yes
8 7 Jakab Bava 4 Years 15,000/- 1 Year Yes
9 10 Ismail Sale 3 Years 10,000/- 1 Year Yes
10 11 Nurmamd Yakub 5
Months
10,000/- 1 Month Yes
11 14 Jivan Madeva 3
Months
10,000/- 1 Month Yes
12 12 Osman Amar 5 Years 25,000/- 1 Year He has not
remitted
fine
5 This formed the subject matter of departmental Inquiry 15 of 2000
in which a chargesheet was issued on 31 August 2001. It was alleged that
the Appellant who was a senior judicial officer was aware of the provisions
of Section 135 which prescribe the award of at least a minimum sentence.
The case involved smuggling of a huge quantity of contraband articles. The
Appellant, it was alleged, was aware of judicial decisions mandating that a
liberal view should not be taken in the award of sentences in such cases.
Yet, with the intention of favouring the accused, the Appellant was alleged
to have awarded less than the minimum sentence without recording special
or adequate reasons. Moreover, it was alleged that:
“Though, it was a case of a huge quantity of
contraband articles i.e. 275 Silver Slabs worth
Rs. 5,86,50,620/-, you awarded the sentence to
each of the accused, keeping in mind, the
period undergone by each of the accused as
under trial prisoner and granted benefit of set
off so that none of the accused had to remain
in custody for any further period.”
Consequently, the allegations against the Appellant were that:
“Thus, the manner and mode in which you
awarded the sentence in Crl. Case Nos.
675/94 & 1293/95, clearly show that the
accused had managed with you for showing
favour in awarding sentence and accordingly,
you awarded the punishment fixing the term of
sentence in such a way that the accused need
not have to remain in custody for any longer
period and thereby:
(a)You are guilty of indulging in Corrupt-practice.
(b)You are guilty of dereliction in discharging your
judicial functions.
(c) You acted in a manner unbecoming of a Judicial
Officer.
These acts of yours, would amount to acts of
grave misconduct and tantamount to conduct
unbecoming of a Judicial Officer, violating the
provisions contained in Rule 3 of the Gujarat
Civil Services (Conduct) Rules, 1971.”
6 The Appellant denied the charges in his reply to the chargesheet.
An Inquiry Officer was appointed. During the course of the inquiry,
witnesses were examined in support of the charges, among them being the
Special government prosecutor and Superintendent of Customs. The
Inquiry Officer in his report dated 28 January 2004 came to the conclusion
that there was no independent evidence to establish that the Appellant had
engaged in a corrupt practice. The charges were held not to have been
established. The report of the Inquiry Officer was placed before a
Disciplinary Committee of the High Court consisting of two judges. The
Disciplinary Committee did not agree with the reasons adduced by the
Inquiry Officer but nonetheless was of the view that the Appellant should
be exonerated. In the view of the Committee, a huge quantity of contraband
was involved and the Appellant ought not to have taken a lenient view,
contrary to settled principles of law. The Disciplinary Committee held that
though there was an absence of sufficient evidence to establish an oblique
motive or an allegation of corruption, an element of doubt existed from the
manner in which the Appellant had sentenced each of the accused, bearing
in mind the period of custody as under-trial prisoners. The Committee was
of the view that the acts of the Appellant were not totally bona fide and
proposed that this should be considered when the case of the Appellant for
promotion arose in future.
7 The report of the Disciplinary Committee was considered at a
Chamber meeting of the Full Court on 26 September 2005 when it was
resolved to remand the matter to the same Disciplinary Committee for
reconsideration. The Disciplinary Committee considered the matter again.
The Disciplinary Committee took a fresh decision on 4 April 2006 to the
effect that there being no evidence about corruption, the finding of the
inquiry officer was correct. The Committee, however, reiterated that the
conduct of the Appellant should be borne in mind when his case for
promotion came up for consideration. When the report of the Disciplinary
Committee came up before the Full Court at a Chamber meeting held on 5
March 2007, a reconstituted Disciplinary Committee was called upon to
look into the matter again and to issue a notice to show cause to the
Appellant. Upon the resolution of the Full Court, the Disciplinary
Committee recorded tentative reasons to disagree with the report of the
Inquiry Officer and called upon the Appellant to show cause why he should
not be held guilty of the charges levelled and be dismissed from the service.
The Appellant responded to the notice to show cause and was granted a
personal hearing. The Disciplinary Committee arrived at a decision on 1
July 2009 holding the Appellant guilty of the charges of misconduct. The
Committee held that as a seasoned judicial officer who was in service since
1981, the Appellant would be aware about the basic principles of
sentencing. The Committee rejected the explanation of the Appellant that
even if an error was committed by him in awarding less than the prescribed
sentence, this was of a bona fide nature. In the view of the Committee, the
Appellant ought to have seen the provisions of the Customs Act 1962, and
having held the accused guilty, he ought to have considered the provisions
for punishment laid down in the statute. The Committee found it difficult to
accept that as a judicial officer, the Appellant had passed an order of
conviction and sentence without looking at the provisions. The Committee
held that an inference could be drawn on the basis of material with regard
to the existence of an oblique motive since neither a sufficient nor
reasonable explanation was provided by the Appellant. Alternatively, the
Committee held that even assuming that there was no oblique motive, the
established facts reflected gross negligence and a dereliction of duty on the
part of the Appellant. The Committee found the charge of misconduct was
established and came to the conclusion that the Appellant should be
dismissed from service under Rule 6 of the Gujarat Civil Services
(Discipline and Appeal) Rules 1971. The report of the Disciplinary
Committee was adopted by the Full Court. The State Government by a
notification dated 14 July 2009 dismissed the Appellant from service.
8 The conduct of the Appellant as a judicial officer formed the subject
matter of another disciplinary inquiry (Inquiry 6 of 2001) in which a
chargesheet was issued on 5 November 2001. The charges against the
Appellant were that despite his transfer on 23 April 1993, the Appellant had
with an oblique motive requested the Chief Judicial Magistrate, Mehsana to
transfer 26 out of several part-heard cases selectively, pertaining to
offences under the Prevention of Food Adulteration Act. The allegation
was that these cases were indicated as being part-heard though no material
evidence had been recorded. The second charge was that in 68 cases
involving offences punishable under the Factories Act 1948 the Appellant
had imposed negligible punishments of fine ranging from ₹ 100 to ₹ 500,
contrary to the decisions of the High Court and had indulged in a corrupt
practice. The Appellant was charged with a dereliction of duty and of acting
in a manner unbecoming of a judicial officer. The Inquiry Officer
exonerated the Appellant.
9 The Disciplinary Committee of the High Court came to the
conclusion that there was insufficient evidence to hold the Appellant guilty
of an oblique motive or corrupt practice. At its Chamber meeting on 26
September 2005, the Full Court remanded the proceedings to the
Disciplinary Committee. The Disciplinary Committee took a fresh decision
and reiterated its earlier view. When a Full Court considered the view of
the Disciplinary Committee on 5 March 2007 a fresh Disciplinary
Committee was assigned to relook into the matter and to issue a show cause
notice to the Appellant. The Disciplinary Committee recorded its tentative
disagreement with the report of the Inquiry Officer and issue a notice to the
show cause to the Appellant. Upon considering the reply submitted by the
Appellant the Disciplinary Committee in its decision rendered on 1 July
2009 held the charges to be proved and took the view that the Appellant
was liable to be dismissed from service. The Full Court of the High Court
resolved that the charges against the Appellant were proved and decided to
dismiss the Appellant from service. The State Government acting on the
decision of the High Court issue an order of dismissal on 14 July 2009.
10 The Appellant initiated proceedings under Article 226 of the
Constitution in order to assail the findings which were arrived at in the
disciplinary proceedings and the punishment of dismissal. By its judgment
and order dated 23 February 2012 the Division Bench held that the charge
of misconduct in Disciplinary Inquiry 6 of 2001 was not established. The
High Court, after adverting to the report of the Disciplinary Committee
noted that there was no evidence in regard to which cases under the
Prevention of Food Adulteration Act were part-heard before the Appellant.
This conclusion of the Disciplinary Committee was held to belie the charge
that the Appellant was being selective about retaining part-heard cases. On
the second charge, the Division Bench observed that the Disciplinary
Committee had expressly concluded that there was insufficient evidence to
hold the Appellant guilty of an oblique motive or corrupt practice in the
award of punishments in the cases under the Factories Act 1948. Yet, the
final conclusion of the Committee was that all the charges including the
charge of corrupt practice stood proved. The High Court noted that this
was a clear error. The Disciplinary Committee having come to the
conclusion of the absence of an oblique motive or corrupt practice, the
High Court held that it was not open to convert the charge into one of gross
negligence. For these reasons, the findings and conclusion of the
Disciplinary Committee in Inquiry 6 of 2001 were held not to be
sustainable.
11 The High Court, however, held that the charge of misconduct in
Disciplinary Inquiry 15 of 2000 was based on evidence and it could not be
held that the conclusions of the Disciplinary Committee, which were
adopted by the Full Court, were based on no evidence. The High Court
noted that the Appellant was a judicial officer since 1982, and had worked
for nearly fourteen years as a Judge. While dealing with offences under the
Customs Act 1962, he was expected to refer to the penal provisions under
which punishment was being handed down after recording a conviction.
The High Court noted that the stand of the Appellant appeared to be that he
awarded the sentence without being aware of the statutory provisions. The
High Court observed that the criminal case with which the Appellant was
dealing was not the first case involving an offence under Section 135. The
High Court noted that despite the minimum punishment prescribed under
Section 135, the Appellant awarded less than the minimum in the case of
several accused. No reasons appeared from the judgment for the grant of
differential treatment to some of the accused. More significantly, the
punishments awarded to all the accused were structured in such a manner
that none of the accused would have to serve any further sentence, after
accounting for the set-off for the period spent in jail as under- trial prisoner.
The High Court noted that since the value of the goods in the case
exceeded rupees one lakh, Section 135 provided for imprisonment for a
term which may extend to seven years and with fine. Moreover, in the
absence of special and adequate reasons to the contrary to be recorded in
the judgment of the Court, the imprisonment was not to be for less than
three years. Section 135 (3) also specifies what shall not be considered as
special and adequate reasons. The High Court upheld the view of the
Disciplinary Committee (which were accepted by the Full Court) that an
inference of oblique motive would have to be drawn from the record,
having due regard to the fact that (i) the Appellant had recorded no special
or adequate reasons for awarding less than the minimum sentence; and (ii)
the sentences which were awarded to the accused were such that none of
them would have to undergo any further term of imprisonment after taking
into account the period undergone as an under-trial. In the view of the
High Court, the conclusions of the Committee which were accepted by the
Full Court cannot be held to have been based on no evidence; there were
strong circumstances indicating that the Appellant imposed punishments in
serious offences under the Customs Act 1962 contrary to statutory mandate;
his explanation that he was not aware of the statutory provision (having
been recently promoted as CJM) was not acceptable; there were glaring
discrepancies in the award of punishments to various accused; and, most
significantly, the sentence imposed on each accused was such that none of
them would remain in jail any longer. The High Court held that the
punishment of dismissal was not disproportionate to the charge of
misconduct which has been found to be established.
12 The first submission which has been urged on behalf of the
Appellant is that there was no warrant for the Full Court to require a
reconsideration of the decision initially taken by the Disciplinary
Committee on 27 October 2004. The submission is that once the
Disciplinary Committee concluded that the Appellant should be exonerated
by accepting the report of the Inquiry Officer, the Full Court in the
Chamber meeting had no jurisdiction to revisit that decision.
13 The submission suffers from a fundamental fallacy. Under Article
235 of the Constitution, the High Court exercises control over the district
judiciary. The exercise of disciplinary control is a manifestation of that
power. Exercise of disciplinary control over the district judiciary is vested
in the High Court in pursuance of the provisions of Article 235. The High
Court, in order to streamline the process governing the exercise of its
disciplinary jurisdiction, may make - as High Courts in fact do make –
procedural provisions regulating its exercise. The High Court of Gujarat in
a meeting of a Full Court held on 2 March 2004 resolved that matters listed
in annexure ‘A’ to the resolution should be dealt with and decided by the
High Court as a whole. Action to be taken against judicial officers in the
exercise of disciplinary jurisdiction was one of those matters. However,
having due regard to the multitude of administrative matters over which the
Full Court exercises jurisdiction, the High Court assigns and distributes its
administrative functions to constituent committees. This is imperative for
the efficient exercise of the control of the High Court over the district
judiciary under Article 235. Distribution of work to a Committee of the
High Court does not efface the jurisdiction that vests in the High Court. By
a resolution that was passed in a Chamber meeting of the High Court held
on 26 December 1998 a detailed procedure was enunciated for the conduct
of disciplinary inquiries against judicial officers of the district judiciary.
The procedure envisages that after an Inquiry Officer submits a report, the
report together with underlying material on the record would be examined
by a Disciplinary Committee consisting of two judges. The Disciplinary
Committee would submit its provisional conclusions in a report which
would laid before the High Court and this would become a decision of the
Court after a stipulated period. The second stage for the Disciplinary
Committee to prepare and submit its report would be after issuing a notice
to show cause to the officer and granting him a personal hearing after
which the Disciplinary Committee would prepare a report containing its
reasoned conclusions regarding the punishment. Once again the report
would be tabled before High Court and would become a decision of the
Court after passage of a stipulated period. The recommendation which is
submitted by the Disciplinary Committee on whether or not to accept the
Report of an Inquiry Officer is not binding on the High Court. The Full
Court has an obligation to apply its mind to a report which has been
submitted by the Disciplinary Committee and to determine whether it
should or should not be accepted. Hence, there is no merit in the
submission that the Full Court was bound by the decision of its
Disciplinary Committee.
14 The second submission relates to the merits of the charges against
the Appellant which have been found to be established. The submission of
the Appellant is that his judgment at the conclusion of the trial involving
offences inter alia under Section 135 of the Customs Act 1962 was a
judicial decision. The basis of the decision is contained in the reasons
adduced by the Appellant. Even if the Appellant had erred in the matter of
awarding the sentence under Section 135, that - it was urged - cannot form
the subject of a disciplinary inquiry. Moreover, on the basis of the decision
rendered by the Appellant in the two criminal cases, it was sought to be
urged that the Appellant had indicated reasons for arriving at a finding of
the guilt and on the award of the sentence.
15 The issue of whether a judicial officer has been actuated by an
oblique motive or corrupt practice has to be determined upon a careful
appraisal of the material on the record. Direct evidence of corruption may
not always be forthcoming in every case involving a misconduct of this
nature. A wanton breach of the governing principles of law or procedure
may well be indicative in a given case of a motivated, if not reckless
disregard of legal principle. In the absence of a cogent explanation to the
contrary, it is for the disciplinary authority to determine whether a pattern
has emerged on the basis of which an inference that the judicial officer was
actuated by extraneous considerations can be drawn. Cases involving
misdemeanours of a judicial officer have to be dealt with sensitivity and
care. A robust common sense must guide the disciplinary authority. At one
end of the spectrum are those cases where direct evidence of a
misdemeanour is available. Evidence in regard to the existence of an
incriminating trail must be carefully scrutinized to determine whether an
act of misconduct is established on the basis of legally acceptable evidence.
Yet in other cases, direct evidence of a decision being actuated by a corrupt
motive may not be available. The issue which arises in such cases is
whether there are circumstances from which an inference that extraneous
considerations have actuated a judicial officer can legitimately be drawn.
Such an inference cannot obviously be drawn merely from a hypothesis
that a decision is erroneous. A wrong decision can yet be a bona fide error
of judgment. Inadvertence is consistent with an honest error of judgment. A
charge of misconduct against a judicial officer must be distinguished from a
purely erroneous decision whether on law or on fact. The legality of a
judicial determination is subject to such remedies as are provided in law for
testing the correctness of the determination. It is not the correctness of the
verdict but the conduct of the officer which is in question. The disciplinary
authority has to determine whether there has emerged from the record one
or more circumstances that indicate that the decision which forms the basis
of the charge of misconduct was not an honest exercise of judicial power.
The circumstances let into evidence to establish misconduct have to be
sifted and evaluated with caution. The threat of disciplinary proceedings
must not demotivate the honest and independent officer. Yet on the other
hand, there is a vital element of accountability to society involved in
dealing with cases of misconduct. There is on the one hand a genuine
public interest in protecting fearless and honest officers of the district
judiciary from motivated criticism and attack. Equally there is a genuine
public interest in holding a person who is guilty of wrong doing responsible
for his or his actions. Neither aspect of public interest can be ignored. Both
are vital to the preservation of the integrity of the administration of justice.
16 In the present case, it must be emphasised that the charges against
the Appellant involved rendering of decisions actuated by corrupt practice
or by oblique motives. The two criminal cases which were tried by the
Appellant involved offences under Section 135 of the Customs Act, 1962.
Section 135 is as follows:
“Section 135-
(1) Without prejudice to any action that may be taken
under this Act, if any persona)
is in relation to any goods in any way knowingly
concerned in any fraudulent evasion or attempt at
evasion of any duty chargeable thereon or of any
prohibition for the time being imposed under this Act or
any other law for the time being in force with respect to
such goods, or
b) acquires possession of or is in any way concerned in
carrying, removing depositing, harbouring, keeping,
concealing, selling or purchasing or in any other
manner dealing with any goods which he knows or has
reasons to believe are liable to confiscation under
Section 111, he shall be punishable, -
c) in the case of an offence relating to any of the goods to
which Section 123 applies and the market price whereof
exceeds one lakh of rupees, with imprisonment for term
which may extend to seven years and with fine :
Provided that in the absence of special and adequate
reasons to the contrary to be recorded in the judgment
of the court, such imprisonment shall not be for less
than three years;
(ii) in any other case, with imprisonment for a
term which may extend to three years, or with
fine, or with both.
(2) **********
(3) For the purpose of sub-sections (1) and (2), the
following shall not be considered as special and
adequate reasons for awarding a sentence of
imprisonment for a term of less than one year, namely,
-
(i) the fact that the accused has been convicted for
the first time for an offence under this Act;
(ii) the fact that in any proceedings under this Act,
other than a prosecution, the accused has been
ordered to pay a penalty or the goods which are
the subject-matter of such proceedings have been
ordered to be confiscated or any other action has
been taken against him for the same act which
constitutes the offence;
(iii) the fact that the accused was not the principal
offender and was acting merely as a carrier of
goods or otherwise was a secondary party to the
commission to the offence;
(iv) the age of the accused.”
17 It is not in dispute that the cases in question related to goods to
which Section 123 applied and the market price whereof exceeded rupees
one lakh. The offences were punishable with imprisonment for a term
which may extend to seven years and with fine. The proviso spells out
that in the absence of special and adequate reasons to the contrary to be
recorded in the judgment of the Court, such imprisonment shall not be for
less than three years. Sub-section 3 of Section 123 provides what would
not be considered as special and adequate reasons for awarding a sentence
of imprisonment for a term of less than one year. The Appellant was
evaluating, in Criminal Case 675 of 1994, a situation involving the
smuggling of 275 silver slabs worth ₹.5,86,50,620/-. The explanation of
the Appellant that he was recently promoted to the cadre of CJM and was
not aware of the provisions of Section 135 was not accepted by the
Disciplinary Committee (or by the Full Court). As a judicial officer who
was in service for over fourteen years, the Appellant could not have been
unmindful of and was duty bound to have read the governing provisions
of the statute under which the offence was sought to be established. It is
inconceivable that a judicial officer would do so in two successive trials
without apprising himself of the law or the punishment provided by the
legislature. The Appellant awarded sentences ranging from three months
to five years of imprisonment to different accused. No reasons appear
from the record of the judgment, for awarding less than the minimum
sentence prescribed.
18 We have duly perused the judgments rendered by the Appellant and
find merit in the finding of the High Court that the Appellant paid no heed
whatsoever to the provisions of Section 135 under which the sentence of
imprisonment shall not be less than three years, in the absence of special
and adequate reasons to the contrary to be recorded in the judgment of the
Court. Most significant is the fact that the Appellant imposed a sentence
in the case of each accused in such a manner that after the order was
passed no accused would remain in jail any longer. Two of the accused
were handed down sentences of five months and three months in such a
manner that after taking account of the set-off of the period during which
they had remained as under-trial prisoners, they would be released from
jail. The Appellant had absolutely no convincing explanation for this
course of conduct.
19 A disciplinary inquiry, it is well settled, is not governed by the strict
rules of evidence which govern a criminal trial. A charge of misconduct
in a disciplinary proceeding has to be established on a preponderance of
probabilities. The High Court while exercising its power of judicial
review under Article 226 has to determine as to whether the charge of
misconduct stands established with reference to some legally acceptable
evidence. The High Court would not interfere unless the findings are
found to be perverse. Unless it is a case of no evidence, the High Court
would not exercise its jurisdiction under Article 226. If there is some
legal evidence to hold that a charge of misconduct is proved, the
sufficiency of the evidence would not fall for re-appreciation or
re-evaluation before the High Court. Applying these tests, it is not
possible to fault the decision of the Division Bench of the Gujarat High
Court on the charge of misconduct. The charge of misconduct was
established in disciplinary Inquiry 15 of 2000.
20 That leads us to the issue of the punishment which has been
imposed on the Appellant. The Appellant has been dismissed from service.
The submission of the Appellant is that having regard to the fact that he
has an unblemished record of service, the imposition of the punishment of
dismissal would be disproportionate to the misconduct which has been
found to be established. Rule 6 of the Gujarat Civil Services (Discipline
and Appeals) Rules 1971 enunciates disciplinary penalties. Among them
is (i) compulsory retirement; (ii) removal from service which shall not be
a disqualification for future employment under Government; (iii)
dismissal from service which shall ordinarily be a disqualification for
future employment under Government. The punishment must be
proportionate to the misconduct established. Having due regard to the
nature of the misconduct which has been found to be established and the
totality of circumstances we are of the view that the punishment of
dismissal should stand substituted by an order of compulsory retirement.
The Appellant has attained the age of superannuation and would be
entitled to his retirement benefits on that basis.
21 We accordingly allow the Appeals in part. We confirm the
judgment of the High Court in so far as it rejects the challenge by the
Appellant to the finding of misconduct. However, for the reasons which
we have indicated above we direct that the order of dismissal from service
shall stand substituted with an order of compulsory retirement which shall
take effect from 14 July 2009, the date on which the final order of penalty
was imposed upon the Appellant.
22 The Civil Appeals are disposed of accordingly. No costs.
.......................................CJI
[T S THAKUR]
..............................................J
[Dr D Y CHANDRACHUD]
New Delhi
JULY 12, 2016
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