M.R.SHAH, J. - (1.) BY way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the departmental inquiry conducted against him by the Disciplinary Authority (hereinafter referred to as the "High Court") on its administrative side as well as impugned order dated 5.9.2006 passed by the High Court dismissing the petitioner from service as well as consequential order dated 5.10.2006 passed by the Government of Gujarat.
(2.) THE facts leading to the present petition in nutshell are as under: 2.1. That initially the petitioner was appointed as Civil Judge (J.D.) and Judicial Magistrate First Class in the year 1981 and thereafter he was promoted in the year 1991. That at the relevant time the petitioner was working as Chief Judicial Magistrate, Jamnagar. That the petitioner was served with the chargesheet dated 7.1.1997 for the misconduct alleged to have been committed by him, as a Judicial Officer while working as Chief Judicial Magistrate, Jamnagar. That the departmental inquiry was initiated against the petitioner on the following charges: 2.2. Two Criminal Cases No.1059 of 1992 and 2103 of 1987, for the offences punishable under Section 135 of the Customs Act, 1962 were pending against the accused viz. (1) Yusuf Haji Abdulla Bhaya; (2) Hasan Abdulla Bhaya; (3) Abdul Jakub Sanghar; (4) Adam Kasam Sanghar; (5) Hasan Sidiq Moha (Bhadela); (6) Abdul Hasan Arab; (7) Gani Hasan Bhadela (Dahej) and (1) Haji Ismail Sumbhania; (2) Natha Khima Varu; (3) Dadu Karsan Chavda; (4) Ala Malde Ahir; (4A) Jesha Natha Ahri (5) Taiyab Mamad Sandhi (6) Gogan Sava Koli (7) Devsi Gogan (8) Dosa Gogan Koli (9) Deva Dohya Kagadia; (10) Bhimsi Laxman; (11) Hamir Sajan Karangia (Aher) (12) Hamir Jeva Mer; (13) Arjan Mulu Modhwadia (14) Sajan Harbhan; (15) Devsi Bhima Mer; (16) Nagan Mulu, respectively, in the Court of Chief Judicial Magistrate, Jamnagar out of the said two cases complaint in the Criminal Case No.1059 of 1992, was filed on 13.3.1992 by Customs Department and no progress was made in the matter till 17.11.1992. 2.3. That one Mr. A.R. Aggrawal, who was working in the office of Pavan Travels in Jamnagar Branch, was known to Mr. N.R. Patel, as he was travelling between Kalavad and Jamnagar, in the bus of Paval Travels and the accused no.1 of Criminal Case No.1059 of 1992 viz. Yusuf Patel, was also known to Mr. A.R. Aggrawal, as he used to travel in the bus of Pavan Travels, for going to Bombay. 2.4. W hile the said case was pending, about 8 months prior to 14.6.1993, Yusuf Patel, went to the office of Pavan Travels and enquired from Mr. Ajay R. Aggrawal, regarding his relations with Magistrate, Shri N.R. Patel, whereupon Mr. Aggrawal replied that he had relations with Mr. N.R. Patel, therefore, Mr. Yusuf Patel, told Mr. Aggrawal that his two cases were pending in the Court of Mr. N.R. Patel and he wanted Mr. Aggrawal to have a talk with Mr. Patel, for settlement of the cases. Mr. Aggrawal, asked Mr. Yusuf Patel to come after two to four days. On the next day, Mr. Aggrawal asked the Magistrate Mr. N.R. Patel, to show favour to the accused Yusuf Patel in the two cases and Mr. N.R. Patel, demanded bribe of Rs. 5 lacs from Yusuf Patel, through said Mr. Aggrawal. 2.5. After, two days Yusuf Patel, went to Mr. Aggrawal, who told him that Mr. N.R. Patel, had demanded Rs. 5 lacs to settle both the cases. But the said Yusuf Patel, agreed to pay Rs. 2 lcas, to Mr. N.R. Patel and agreed to pay Rs. 1 lac, initially for the case regarding smuggling of Silver Bars i.e. in Criminal Case No.1059 of 1992 and told the other case be kept pending. 2.6. Mr. Aggrawal, told Mr. Yusuf Patel, to come after two days and after Mr. Yusuf Patel left Mr. Aggrawal informed Mr. N.R. Patel, accordingly, and Mr. N.R. Patel, agreed to the proposal made by the accused, Yusuf Patel and told Mr. Aggrawal to inform him on telephone after collecting Rs. One lac from the accused. 2.7. After about two days, Yusuf Patel went of the office of Mr. Aggrawal, who told him that Mr. N.R. Patel Saheb has given his consent therefore, Mr. Yusuf Patel told Mr. Aggrawal that he will hand over the money to Mr. Aggrawal, thereafter three to four days accused Yusuf Patel went to the office of Mr. Aggrawal, in Maruit Car No. GCJ255, and handed over Rs. One lac to Mr. Aggrawal, for delivering the same and to Mr. N.R. Patel. Immediately thereafter, Mr. N.R. Patel, was informed on telephone at this residence by Mr. Aggrawal, that he had received Rs. One lac, on his behalf and Mr. N.R. Patel told him that after the Court hours, he will collect the amount from him and accordingly, in between 7.30 p.m. And 8.00 p.m, Mr. N.R. Patel went to the office of Mr. Aggrawal and collected the said amount of Rs. One lac from Mr. Aggrawal and left the office of Mr. Aggrawal. Thereafter though the case of the yeas from 1981 to 1991 were pending in his Court, even against the under trial prisoners, suddenly, the matter was taken up for which Mr. N.R. Patel had accepted the said bribe amount and in pre charge proceedings, Mr. N.R. Patel examined nine witnesses. The arguments were heard on charge on date 1.2.1993 and on 2.2.1994 and then on 6.2.1993 Mr. N.R. Patel pronounced an order discharging the said principal accused no.1, Yusuf Haji Abdulla Bhaya and Yusuf Patel. This fact was narrated by Mr. Aggrawal to his friend Mr. Haribhai Soni, resident of Jamnagar, in a casual manner. 2.8. About six months prior to 14.6.1993, Mr. Haribhai Soni went to the office of Mr. Aggrawal and told him that one Hamirbhai Ahir is also facing the similar case as of Mr. Yusuf Patel, pending in the Court of Mr. N.R. Patel and that is also to be settled with Mr. N.R. Patel Saheb. At the instance of Mr. Haribhai Soni to show favour to the accused viz. Mr. Hamir Ahir in Criminal Case No.2103 of 1987, pending in the Court of Mr. N.R. Patel for offences punishable under Section 135 of the Customs Act, 1962 said Mr. A.R. Agrawal telephoned Mr. N.R. Patel and Mr. N.R. Patel demanded bribe of Rs.75000/for showing favour to the accused, Hamirbhai Ahir through Mr. A.R. Aggrawal. Mr. Aggrawal, informed Mr. Haribhai accordingly. 2.9. After about 15 days, Mr. Aggrawal went to the house of Mr. Haribhai to collect the Video game at that time Mr. Haribhai paid Rs.50,000/to Mr. Aggrawal, for paying the said amount to Mr. N.R. Patel and Mr. N.R. Patel, was informed at this residence on phone by Mr. Aggrawal that he had received the amount on behalf of Mr. N.R. Patel. Thereupon, Mr. N.R. Patel told Mr. Aggrawal that his brother Mr. Jayesh would collect the money from M. Aggrawal and on the same day, in the evening Mr. N.R. Patel's younger brother Jayesh went to the office of Mr. Aggrawal and collected the said amount. After about 15 to 20 days at about 11.00 a.m. Mr. Haribhai Soni, gave the balance of the amount of Rs.25000/to Mr. Aggrawal for paying it to Mr. N.R. Patel and on receiving message from Mr. Aggrawal about receipt of the amount, Mr. N.R. Patel collected the said amount through his brother Mr. Jayesh. 2.10. Thereafter, as Mr. N.R. Patel received the bribe amount, the matter was taken up by Mr. N.R. Patel hastily and during the precharge proceedings the recorded the evidence of 22 witnesses, though the case for the years 1981 to 1991 were pending in his Court, including the cases against the under trial prisoners. The Jamnagar Police raided the house of the said accused Hamir Ahir and in the search of the house carried out by the police a note book containing the accounts maintained by the said accused was recovered wherein two payments are shown to have been made to Mr. N.R. Patel, one on 29.12.1992 of Rs.50,000/and another on 16.1.1993 of Rs.25000/. 2.11. That two to three days after 8.6.1993, Mr. N.R. Patel had enquired from Mr. Jeblia, Dy.S.P, on telephone as to whether Mr. Hami, was arrested and also requested Mr. Jeblia, Dy.Sp to take care of him, if anything is found against him and after the news regarding seizure of note book from the house of Mr. Hamir was broken, Mr. N.R. Patel had again made a telephone call to Mr. Jeblia Dy.Sp and enquired as to whether his name appeared in the note book and whether he could see that note book but Mr. Jeblia, Dy. Sp replied that note book has been taken by the D.I.G, Ahmedabad. On 14.6.1993, Mr. N.R. Patel, had telephonic talk with Mrs. Prafula, wife of Mr. Aggrawal and Mr. N.R. Patel, told her "officers from the High Court have come and tell Vikki he should not involve me by making any statement before them". 2.12. That Mr. N.R. Patel, had sent two persons to the house of Mr. Aggrawal, who told Mr. Aggrawal to telephone Mr. N.R. Patel from outside. But Mr. Aggrawal, was apprehending danger to his life, so he refused to go out for telephoning to Mr. N.R. Patel. 2.13. On 20.6.1993, at night time Mr. N.R. Patel, alongwith his brother had gone to the house of Mr. Aggrawal, with a writing wherein it was written that D.S.P Mr. Jha and Dy. Sp Mr. Jeblia had threatened Mr. Aggrawal that they will file a false case of keeping AK56 Rifle and would arrest Mr. Aggrawal under TADA. Therefore, under that fear, Mr. Aggrawal had filed the Affidavit against Mr. N.R. Patel;, but Mr. Aggrawal did not sign the same as his previous Affidavit filed against Mr. N.R. Patel was made without any fear or pressure and at his free will. 2.14. On 27.6.1993, Mr. N.R. Patel 's brother, Mr Jayesh at the instance of Mr. N.R. Patel, telephoned Mr. Aggrawal to hand over the copy of the Affidavit filed against Mr. N.R. Patel, but the same was not supplied as he had not copy of the same and thereby; (a). Mr. N.R. Patel indulged in corrupt pratice; (b). Mr. N.R. Patel, was guilty of dereliction of discharging his judicial functions and; (c). Mr. N.R. Patel, acted in a manner unbecoming of a Judicial Officer. 2.15. The above acts of Mr. N.R. Patel, tantamount to act unbecoming of a Judicial Officer, and are acts of grave misconduct which are violative of the provisions contained in Rule 3 of the Gujarat Civil Services (conduct) Rules, 1971. 2.16. That the petitioner denied the charges levelled against him and submitted his defence statement on 18.3.1997. That on receipt of such defence statement of the petitioner, the High Court was of the opinion that further inquiry in the matter was required and therefore, one Shri C.S. Oza, Judge, City Civil Court, Ahmedabad was appointed as Inquiry Officer on 23.9.1997. That the Inquiry Officer came to the conclusion that the charges levelled against the petitioner are not proved and accordingly recorded his finding to that effect and submitted his inquiry report to the High Court on 29.7.1998. 2.17. That the High Court did not agree with the said inquiry report submitted by the Inquiry Officer and exercise powers under Section 10 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 remanded the matter to the Inquiry Officer and the matter was entrusted to another person Shri A.J. Bhatt, Judge, City Civil Court, Ahmedabad by order dated 24.12.1998. That by passing order dated 24.12.1998 the High Court specifically pointed out that report submitted by Inquiry Officer cannot be accepted and the case deserve remand, so as to give opportunity to the department to prove its case. That after the remand the petitioner was placed under suspension vide order dated 30.4.1999. That the petitioner participated in the inquiry on remand and as such did not challenge the further inquiry / inquiry on remand pursuant to the order dated 24.12.1998 passed by the High Court on its administrative side and / or at the relevant time did not make any grievance with respect to the order dated 24.12.1998 not accepting the report of the earlier inquiry officer and passing an order of remand and entrusting the inquiry to another officer or appointing another inquiry officer. 2.18. Thereafter on conclusion of the inquiry and considering the entire material on record and on appreciation of entire evidence on record, inquiry officer came to the conclusion that charges levelled against the petitioner are proved and accordingly submitted its report dated 29.6.2001. It is to be noted that even before the inquiry officer the petitioner did submit the written representation in April 2000. 2.19. Thereafter copy of the inquiry report was forwarded to the petitioner along with show cause notice dated 7.6.2002 whereby the petitioner was called upon to show cause as to why the petitioner should not be dismissed from service. That the petitioner submitted his reply to the said show cause notice on 5.7.2002. That a personal hearing was also given to the petitioner. That thereafter, after considering the report submitted by the inquiry officer; reply given by the petitioner to the show cause notice and submission made by the petitioner during the personal hearing, by order dated 5.9.2006, disciplinary authority (High Court) has passed the impugned order of punishment dismissing the petitioner from service by holding that petitioner has indulged into corrupt practice. That thereafter, consequential order has been passed by the State Government by order dated 5.10.2006. Being aggrieved and dissatisfied with the impugned orders passed by the High Court dated 5.9.2006 and consequential order dated 5.10.2006 passed by the Government of Gujarat, the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India. 2.20. It is to be noted that in the present petition the petitioner has also challenged the departmental inquiry conducted against the petitioner by the High Court on its administrative side, despite the fact that he had participated in the departmental inquiry and at no point of time earlier he challenged the departmental inquiry.
(3.) SHRI K.M. Patel, learned Senior Advocate appearing on behalf of the petitioner has vehemently submitted that at the time when the disciplinary authority (High Court) exercised the powers under Section 10 of the Rules and disagreed with the inquiry report which was in favour of the petitioner, no opportunity was given to the petitioner. It is submitted not only that but even the inquiry officer came to be changed and on remand the inquiry was handed over to another officer. It is submitted not only that even the copy of the order sending the matter to the another inquiry officer was also not given to the petitioner at the relevant time and the same was given subsequently. It is submitted that therefore, entire departmental inquiry initiated on remand is vitiated and against the principles of natural justice which deserves to be quashed and set aside. In support of his above submission, Shri K.M. Patel, learned Senior Advocate appearing on behalf of the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Mathura Prasad vs. Union of India and Others, 2007 AIR(SC) 381. 3.1. It is further submitted by Shri K.M. Patel, learned Senior Advocate appearing on behalf of the petitioner that even otherwise upon remand of the matter for further inquiry, Disciplinary Authority ought not to have changed the Inquiry Officer, more particularly when the first inquiry officer was very much in service at the relevant time and continued in judicial service till September 2004. It is submitted that consistency and fair play required that the inquiry ought to have been remanded to the same inquiry officer for further inquiry and the inquiry officer ought not to have been changed. In support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of K.R. Deb vs. The Collector, Central Excise, Shillong, 1971 AIR(SC) 1447 (page 13 to 15). 3.2. It is further submitted by Shri K.M. Patel, learned Senior Advocate appearing on behalf of the petitioner that as such the disciplinary authority by not exercising the option of recording descanting finding against the finding of exoneration recorded by the Inquiry Officer in the first stage of inquiry as per Rule 10(2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 by directing further inquiry, by all inherent and necessary implications, accepted the position that on the basis of the evidence of two witnesses examined in the first stage of inquiry, including that of Shri B.S. Jebaliya, Deputy Superintendent of Police, the charges levelled against the petitioner are not proved. It is submitted that as such in the further inquiry three more witnesses were examined, whose evidence has not supported the case of the department. It is submitted that thus, even after the further inquiry, solely on the basis of Shri Jebaliya's evidence the allegations and charges are held proved both by Inquiry Officer and the Disciplinary Authority, which was already there and the Inquiry Officer submitted the report in the first stage of inquiry. It is submitted that it was not open for the disciplinary authority to take different view of allegations and charges being proved solely on the basis of Shri Jebaliya's evidence, when by all necessary implications the order directing further inquiry only be construed as acceptance of the report of First Inquiry Officer that on the basis of Shri Jebaliya's evidence allegations and charges do not stand proved. It is submitted that Inquiry Officer and Disciplinary Authority ought to have confined themselves as to whether the allegations and charges are proved on the basis of evidence that has come in further inquiry. It is submitted that since the evidence recorded in further inquiry does not establish and proved allegations and charges against the petitioner ought to have been exonerated. In support of his above submission, learned advocate for the petitioner has heavily relied upon unreported judgment of the Hon'ble Supreme Court dated 9.10.2007 in Civil Appeal No. 29 of 2004 in the case of Gujarat State Financial Corporation vs. Dilip Ratilal Patel. 3.3. It is further submitted by Shri K.M. Patel, learned Senior Advocate appearing on behalf of the petitioner that even otherwise the findings recorded by the Inquiry Officer and the Disciplinary Authority are not based on legal excepted evidence but they are based on assumptions and presumptions. 3.4. It is submitted that in the whole of the examination in chief or even in his cross examination Shri Jehaliya has nowhere stated that he could recognize the voice of the delinquent on telephone and that he had not done any inquiry to ascertain as to whether or not the alleged telephones were made by the delinquent. It is submitted that the evidence only shows that someone had telephoned saying that the celler was N.R. Patel (delinquent) and therefore, it emerges that he had presumed that the delinquent had telephoned. It is submitted that therefore, even the allegations that the delinquent had made alleged two telephones to said Shri Jeabliya itself is not established and if considered in the light of possible grudges against the delinquent by the police there, Shri Jebaliya evidence is not maintainable at all. It is submitted that alleged xerox copy of a page of allege seized note book/ diary from the house of Hamir Sajan is also not proved at all. 3.5. It is submitted that even the alleged author of diary / note book Shri Hamir Sajan is also examined by the Department, who has in no uncertain terms said that no search was carried out in his house in his presence and no such alleged diary /note book was seized and he has not kept any such alleged account and hand writings of the chit are also denied and the said chit is not proved by any other evidence whatsoever and requires to be absolutely ignored as it is no evidence. 3.6. It is further submitted by Shri Patel, learned Senior Advocate for the petitioner that the inquiry officer has recorded the finding against the petitioner solely relying upon the deposition of Shri Jebaliya relied upon his bare words and no support or corroboration is coming forth from any independent source. It is submitted that neither the inquiry officer or the disciplinary authority has appreciated the fact that from the very beginning as the police had grudge against the delinquent. It is submitted that there is sufficient material and evidence on record including evidence of Bench clerk Shri Chavda to believe that the police department was displeased and must be having grudge against the delinquent. 3.7. It is further submitted that statement of Shri Jebaliya before the Inquiry Officer does not implicate the delinquent as regards the imputations are concerned, except that a story of two alleged telephones and alleged chit stated to have been seized from the house of Hamir Sajan is told. It is submitted that both the said aspects are absolutely unbelievable. It is submitted that the evidence of Shri Jebaliya is vague and evasive as far as he does not give details as to when the search was conducted and who were the panchas and as to when the telephones were received and about the failure to ascertain whether delinquent had telephoned and failure to record the same in any reports or diary. It is further submitted by Shri Patel, learned Senior Advocate for the petitioner that neither Shri Agrawal nor Shri Haribhai Soni, who allegedly paid the amount to Shri Agrawal have been examined in the inquiry. 3.8. It is further submitted that the xerox copy of the page of diary allegedly recovered from Hamir Ahri has no evidentiary value. It is submitted that Hamir Sajan has not supported the case of the department. 3.9. It is further submitted by Shri Patel, learned Senior Advocate for the petitioner that as such allegations and charges are held proved by the Inquiry Officer and Disciplinary Authority on the basis of Shri Jebaliya's. It is submitted that evidence of Shri Jebaliya cannot be relied upon in view of the following facts. (i). In first stage of Inquiry, evidence of Shri Jebaliya was not considered sufficient or reliable to support finding of guilt. There was no corroboration to his evidence in the further inquiry. (ii). His evidence does not inspire confidence because there was no prior communication on telephone between petitioner and Shri Jehaliya nor Shri Jabaliya made any attempt to verify whether alleged telephone was from the petitioner or any one else. He did not make any note of the phone call in the station diary or personal diary. (iii). Thus, as per the evidence of Shri Jehaliya he was not familiar with the voice of the petitioner. However, since the caller identified himself to be N.R. Patel, Magistrate, he had readily accepted that the caller was the petitioner and none else, without verification of any kind. (iv). Further, there is absolutely no evidence that any such phone call was made to him. The evidence in this regard would have been easily available from the telephone department. However, no such evidence is produced on record, as no such phone call was in fact made by the petitioner. (v). Not only that there is no scientific verification of voice to reach the conclusion that the voice of the speaker was none other than that of the petitioner. (vi). He did not produced the original note book, not even the original chit either before the Vigilance Officer or before the Inquiry Officer. Not only that, he did not even certify the alleged chit to be a true copy of the original at the time of his producing the same before the Vigilance Officer. It is the case of the petitioner that the alleged chit was not certified by Shri Jebaliyas as he was aware that it was not a true copy, as the original did not exist. (vii). The police had reason to harbour grudge against the petitioner, as the petitioner was very strict with police officers and had dealt with them sternly by issuing contempt notices, strictures etc. against them, which is a matter of record. Moreover, the petitioner had passed strictures/ observations in Bab Sheth's Murder Case, the investigation of which was supervised by Shri Jabaliya. 3.10. It is submitted that therefore, the petitioner was framed in the case in question by the police department through Shri Jabaliya. It is submitted that therefore, the petitioner ought to have been appropriately protected. In support of his above submission, learned advocate for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Yoginath D. Bagde vs. State of Maharashtra , 1999 AIR(SC) 3734 (para 51). 3.11. It is further submitted that during the course of further inquiry before the second Inquiry Officer, three more witnesses were examined, however no further material, incriminating or adverse to the petitioner, came on record, which would have warranted reconsideration of the ultimate conclusion recorded by the First Inquiry Officer. It is submitted that under these circumstances the second officer ought not to have come to the conclusion that the charges leveled against the petitioner are proved that too on the basis of the same material on which the First Inquiry Officer came to the conclusion that the charges are not proved. It is submitted that thus, the Second Inquiry Officer has exceeded his jurisdiction, and by not stopping there, further acted in absolute arbitrary manner by not referring to the reasoning / finding recorded by the First Inquiry Officer, much less dealing with the same. It is submitted that thus the Second Inquiry Officer has in fact held a Fresh Inquiry against the petitioner in the guise of further inquiry, which is not permissible in the eyes of law. It is submitted that thus the change of Inquiry Officer has seriously prejudice the case of the petitioner. It is submitted that had the First Inquiry Officer not been replaced in that case, upon no further material, incriminating or adverse to the petitioner coming on record of the case, the same Inquiry Officer (First Inquiry Officer) would not have reversed his earlier findings. 3.12. It is further submitted by Shri Patel, learned Senior Advocate for the petitioner that as such Shri Hamir Sajan has not supported the case of the department. It is submitted that his statement has been relied upon on the ground that there is nothing on record to show that it was during custody. It is submitted that aforesaid is factually incorrect. It is submitted that it is undisputed position that his statement was recorded on 29.6.1993 while he was in police custody from 8.6.1993 to 1.7.1993 in TADA Case. He was deposed that he was beaten by the Police and his signature was obtained on blank papers while in custody of the police. It is submitted that this complaint was made by him at the first point of time when he was produced before the learned Magistrate. It is submitted that even otherwise the said Hamir Sajan was having no reason to support the petitioner, more particularly, when no favourable order was passed in his favour and when the petitioner was placed under suspension and was transferred from Jamnagar long back before he deposed before the Inquiry Officer. It is submitted that Hamir Sajan has as such denied that any note is recovered from him and it contained accounts in his handwriting. It is submitted that therefore, the xerox chit cannot be relied or taken into consideration in absence of its original and in view of specific deposition of Hamir Sajan that he is not author of the same. 3.13. In support of his above submission, Shri Patel, learned Senior Advocate for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of M/s. Bareilly Electricity Supply Co. Ltd vs. The Workmen and others, 1971 2 SCC 617 (para14) and unreported decision of this Court dated 23.7.2001 passed in LPA No. 64 of 2001 and other allied matters in the case of Gujarat State Road Transport Corporation vs. Subhashbhai Keshabhai (para 19). 3.14. It is further submitted that even affidavit and statement of Shri Agrawal is referred to and is taken into consideration while passing the impugned punishment order, however said witness is neither examined nor is made subject to cross examination. It is submitted that therefore, his affidavit and statement could not have been taken into consideration. In support of his above submission, he has relied upon the decision of the Hon'be Supreme Court in the case of Prahlad Saran Gupta vs. Bar Council of India and another, 1997 AIR(SC) 1338 (para 10). 3.15. It is further submitted by Shri Patel, learned Senior Advocate for the petitioner that there has been inordinate and unexplained delay in initiating and concluding the departmental inquiry. It is submitted that incident is of June 1993 for which the charge sheet was issued on 7.1.1997 and punishment order is passed on 5.9.2006. It is submitted that the delay has operated against the petitioner and the same has prejudiced the defence of the petitioner. It is submitted that due to inordinate delay PW Agrawal could not be produced before the Inquiry Ofifcer for the purpose of deposition, who could have thrown light on the facts of the case as to how the petitioner came to be framed by the Police. 3.16. It is further submitted by Shri Patel, learned Senior Advocate for the petitioner that statement of Shri Haribhai Soni and Shri Yusuf Patel was recorded during the preliminary inquiry, but the same are not supplied to the petitioner, in spite of his demand. It is submitted that the copies of two complaints, one from a Junior Advocate and second from Anti Corruption Bureau forwarding an anonymous complaint received by the said department as well as the communication of the Principal Secretary, Home Department dated 11.6.1993, thought referred to in the punishment order are not supplied to petitioner. It is submitted that this has resulted into breach of principles of natural justice. It is further submitted that the inquiry officer as well as disciplinary authority has failed to taken into consideration the relevant material and have taken into consideration irrelevant material or such material which legally could not have been taken into consideration. 3.17. It is further submitted that the Inquiry Officer as well as Disciplinary Authority have on conjectures and surmises, held the petitioner guilty of the misconduct which the petitioner has not committed, which is illegal as per the settled position of law, which provides that the serious charges of corruption are required to be proved beyond reasonable doubt. In support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Union of India and others vs. Gyan Chand Chattar, 2009 12 SCC 78(Head Note C). It is further submitted that on the facts and circumstances of the case and evidence on record, petitioner cannot be held guilty of the charges leveled against him even on the basis of preponderance of probability. Making above submissions and relying upon the above decisions, it is requested to allow present Special Civil Application and quash and set aside the impugned orders passed by the disciplinary authority as well as State Government dismissing the petitioner from service. Present petition is opposed by Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority (High Court) as well as Ms. Thakore, learned Assistant Government Pleader appearing on behalf of the respondent no.2 State. 4.1. Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority (High Court) has vehemently submitted that once having participated in the departmental inquiry on remand by the disciplinary authority and having not challenged the earlier decision of the disciplinary authority in remanding the matter the change of Inquiry Officer at appropriate stage and time and thereafter having fully participated in the departmental inquiry and thereafter when the decision has gone against the petitioner, thereafter it is not open for the petitioner now to challenge the order passed by the Disciplinary Authority remanding the matter so as to enable the department to prove the case against the delinquent and change of inquiry officer. 4.2. It is further submitted by Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority that as such while passing the earlier order dated 24.12.1998 and while remitting the case to the Inquiry Officer, the Disciplinary Authority as such considered the inquiry report submitted by the earlier Inquiry Officer and the reasons recorded by the Inquiry Officer exonerating the delinquent and the Disciplinary Authority specifically observed that in the High Court views those reasons recorded by the Inquiry Officer are not followed at all and creates an impression that the inquiry has been conducted in slip shod mannertherefore, as such Disciplinary Authority did not accept the reasons recorded by the Inquiry Officer as sought to be contended on behalf of the petitioner. It is submitted that as such the High Court on administrative side while considering the report submitted by the inquiry officer dated 29.7.1998 holding that the charges made against the delinquent are not proved, specifically disagreed with the reasons and the findings by observing that even sufficient opportunity was not given to the petitioner to prove the case and no sincere efforts were made by the inquiry officer to secure presence of important witnesses in the case. It is submitted that as such High Court on administrative side (Disciplinary Authority) did not accept the reasons given by the inquiry officer on appreciation of the deposition of Shri Jebaliya. It is submitted that as such disciplinary authority remanding the case to the Inquiry Officer as a whole and therefore, it was open for the subsequent inquiry officer to appreciate the entire evidence on record afresh and given his own finding. Therefore, it is submitted by Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority that no illegality has been committed by the subsequent inquiry officer in appreciating the entire evidence on record afresh more particularly the evidence of Shri Jebaliya and given his own finding holding the delinquent guilty. 4.3. It is further submitted by Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority that the Inquiry Officer has specifically held on appreciation of entire evidence on record that it is proved that delinquent has indulged in corrupt practice and that the delinquent is guilty of dereliction of discharging of his judicial function and acted in a manner unbecoming to a judicial officer and has violated the provision contained in Rule 3 of the Gujarat Civil Service Conduct Rules 1971 and considering the report submitted by the Inquiry Officer and thereafter giving opportunity to the delinquent to make submission against the inquiry report and after considering the submission made by the petitioner, Disciplinary Authority has rightly passed an order dismissing the petitioner from service. 4.4. It is submitted by Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority that as held by the Hon'ble Supreme Court in the case reported in 1964 AIR(SC) 364 in exercising of its jurisdiction under Article 226 of the Constitution of India, the High Court cannot consider the question about the sufficiency or adequacy of evidence in respect of a particular conclusion. 4.5. It is further submitted by Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority that the charges levelled against the petitioner are of grave nature, more so considering the position held by the petitioner at the relevant time i.e. Judicial Magistrate, Jamnagar. Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority has submitted that there is ample evidence to demonstrate that he charges have been rightly held as proved and that the decision of terminating the petitioner from service is also justified. It is submitted that though the settled legal position with regard to the charges against the employee and the degree of proof in a departmental inquiry is only of "preponderance of probability" and not of "proof beyond doubt" in present case there are statements of witnesses and also other material available on record which conclusively demonstrate that the charges leveled against petitioner are rightly held as proved and the findings of the inquiry officer are not incorrect or perverse or unjustified. 4.6. It is further submitted by Shri Shalin Mehta, learned Senior Advocate for the Disciplinary Authority that conscious decision taken by the Full Bench of the High Court considering the report submitted by the Inquiry Officer and the nature of charges levelled against the delinquent which are serious in nature. It is submitted that whenever a decision is taken by the Full Bench of the High Court, a possibility of arbitrariness is altogether ruled out cause each judge has the freedom to express opinion not only on the procedural aspect of the inquiry and the evaluation of evidence made by the inquiry officer but also on the quantum of punishment. It is submitted that decision to dismiss the petitioner from service was taken by the High Court after dully considering nature of his duties and functions as Judicial Officer, the graveman of the charges levelled against him, his accountability to the public at large and his abysmal failure to perform the judicial functions such adversely affected the image of the judicial system in the eyes of public and caused grave injury to the litigating public. 4.7. Now, so far as contention on behalf of the petitioner in initiating the departmental proceedings belatedly is concerned, it is submitted that except the bare statement that it has caused prejudice to the delinquent, nothing has been pointed out. It is submitted that prejudice is not only to be pleaded but it has to be demonstrated by instances made, the delay has caused any prejudice. It is submitted that as such there is no inordinate delay and deliberate delay in initiating departmental inquiry. It is submitted that as such chamber meeting held on 16.9.1993 a decision was already taken to initiate departmental inquiry against the petitioner. It is submitted that as such on receiving the complaint against the petitioner it was decided to direct the Special Officer (Vigilance) to conduct preliminary inquiry in the matter and thereafter on the strength of the report of the Special Officer (Vigilance) dated 2.9.1993 it was decided at the Chamber Meeting held on 16.9.1993 to initiate Departmental Inquiry against the petitioner. It is submitted that on the basis of the report dated 2.9.1993 and after calling for the necessary records from the Principal District Judge, Jamnagar, charges were framed against the delinquent. It is submitted that the petitioner has made unnecessary allegations against Special Officer (Vigilance) with respect to bias and even against Shri Jebaliya. It is further submitted by Shri Mehta, learned Senior Advocate for the Disciplinary Authority that the evidence of Jebaliya who is an independent witness is absolute reliable and credible and there is no basis in the allegation of the petitioner with respect to bias made against Shri Jebaliya. 4.8. It is further submitted by Shri Mehta, learned Senior Advocate for the Disciplinary Authority that as such there is no violation of principles of natural justice as alleged. It is submitted that statement of Shri Yusuf Patel which was recorded by the Special Officer (Vigilance) while conducting preliminary inquiry in the matter has not been relied upon as he has not been examined during the course of regular departmental inquiry. 4.9. It is further submitted by Shri Mehta, learned Senior Advocate for the Disciplinary Authority that the genuineness of the diary seized by Shri Jebaliya, cannot be doubted since the averment on oath made by Shri Jebaliya, the then Dy.Sp, Jamnagar(Rural) that the original diary was handed over to the DIG is supported by the communication received from the Principal Secretary, Home Department, wherein it is stated that original diary is in custody of the Director General of Police. It is further submitted that as such there is no cogent, overwhelming and convincing evidence on record to hold the delinquent guilty of the charges. It is submitted that various links in the chain of evidence led by the department have been satisfactorily proved. It is submitted that the said circumstances point to the guilt of the accused with reasonable definiteness. It is submitted that the facts which are established can be said to be consistent only with the hypothesis of the guilt of the delinquent. ;