R.S.GARG, RAVI R.TRIPATHI - (1.) This is a petition filed by a Judicial Officer. The matter was filed in the year 1998 and it was placed before the learned Single Judge, who was pleased to issue Rule on 17.11.1998. However, thereafter, on a request being made by the learned advocate appearing for the Judicial Officers, the Hon'ble the Chief Justice, by order dated 18.3.2004 directed the Registry to place the matters before a Division Bench. The learned counsel for the petitioner has consented to the hearing of the matter by the Division Bench.
(2.) The petitioner, a Judicial Officer Civil Judge (Junior Division) & Judicial Magistrate First Class, was served with a charge sheet dated 28th March, 1989, containing the following charges :- "[i] That while working as Judicial Magistrate, F.C. (Railways), Surat, from 15.6.1988 to 23.11.88, you contacted one Makanbhai Jijalbhai an accused in Criminal Case No. 6510 of 1985 and to favour him in that case by accepting illegal gratification, you accepted from him two saris as illegal gratification. [ii] While working as such you further demanded from him and insisted that he should give you one Video Cassette Recorded by way of illegal gratification for showing him favour in the case. A departmental inquiry was held wherein, the Inquiry Officer held the charges proved in his report dated 13.5.1991. The High Court being the Disciplinary Authority agreed with the findings of the Inquiry Officer and issued a show cause notice dated 8.8.1991, calling upon the petitioner to show cause as to why he should not be dismissed from service. The petitioner filed his reply dated 10.2.1992 to the show cause notice. The matter was considered by the available Committee of the High Court, the petitioner submitted his written arguments, the petitioner was also given an opportunity of personal hearing, duly assisted by his advocate. The Disciplinary Committee made its report, which according to the procedure, recommended by a Sub Committee by its report dated 5.12.1988 and accepted with modifications by the Full Court in Resolution No. 1, dated 26.12.1988, becomes the decision of the High Court on expiry of 48 hours after it is laid on the table, if the same is not objected to by any of the learned Judges. There being an objection, the matter was placed before the Full Court where it was decided that the matter be considered by the Standing Committee. The petitioner was informed of this by letter dated 6.12.1994. The Standing Committee heard the petitioner on 13.12.1994. Before the Standing Committee could record its conclusions, reshuffle took place on account of transfer of two of the Hon'ble Judges and the elevation of the Hon'ble the Chief Justice as the Judge of the Hon'ble the Apex Court. The matter was then considered by the new Standing Committee. The petitioner was informed about this by letter dated 18.11.1995. He was accorded hearing by the new Committee on 5.12.1995. The Committee recorded its conclusions on the basis of which, the High Court decided to dismiss the petitioner as in the opinion of the High Court, charges levelled against the delinquent were grave. The order to dismiss the petitioner from service was forwarded to the Government of Gujarat, which, in turn, passed a resolution, dated 22nd March, 1996, bringing an end of the service of the petitioner.
(3.) The petitioner being aggrieved by the said order, is before this Court by way of this petition, challenging the same on the following amongst other grounds, which we shall take one by one:- 3.1 Mr. Supehia, learned counsel appearing for the petitioner vehemently submitted that once the petitioner was heard by the Disciplinary Committee consisting of the two Hon'ble Judges which to the knowledge of the petitioner, had come to a conclusion that the petitioner be exonerated of all the charges, there was no reason why the petitioner should have been heard by the Standing Committee on two different occasions i.e., on 13.12.1994 and 5.12.1995. 3.2 It is not in dispute that the petitioner is governed by the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. Sub-rule (2) of Rule 10 provides as under:- "10(2). The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose." 3.3 It is also not in dispute that for the petitioner, `Disciplinary Authority' is the High Court. It is under resolution Nos. 1 and 3 dated 26.12.1988 of the Full Court for the proper, efficient management of Courts subordinate to the High Court as well as personnel constituting such courts and the ministerial staff employed therein, the High Court has decided its own Business Rules. Under the said Rules, the matters which are listed in Annexure:A are to be dealt with and decided by the High Court as a whole. Item-5 of Annexure:A pertains to Saction to be taken against a Judicial Officer in exercise of disciplinary power and control of the High Court. Under Resolution No.3 of even date, it is also resolved that; Sin supersession of all the previous resolution/s, on the subject, that in disciplinary matters relating to the Officers belonging to the Judicial Service of the State, the following procedure shall be followed. Clause-5 is relevant for the purpose, which reads as under" "After receipt of the report of the Inquiry Officer, his report and the record of the proceedings before him shall be placed before a Committee of two Judges known as the Disciplinary Committee which shall be appointed at the commencement of each calender year by the Chamber Meeting for the purpose of aiding and assisting the High Court in exercising its disciplinary jurisdiction over officers of the Judicial Service of the State. The members of the said Committee shall be nominated by rotation on the principle of seniority and shall hold office for the calender year." 3.4 Learned advocate Mr. J.B. Pardiwala, appearing for the respondent no. 2 made available complete record of the Disciplinary as well as Standing Committee/s. According to the procedure, as prescribed in Clause-9, SThe Committee shall then prepare report containing its reasoned conclusions regarding punishment, if any, to be imposed on the delinquent and such report together with the entire record of the Inquiry (including the written submission of the delinquent in response to the show cause notice for the proposed punishment) shall be laid on the table before the High Court and it will become the decision of the High Court after it has been kept on the table for 48 hours. In the case of the petitioner before the report of the Disciplinary Committee consisting two Hon'ble Judges could become the decision of the High Court, one of the learned Judges expressed his disagreement with the decision of the Disciplinary Committee and hence the matter was placed before the Full Court. Thereafter it was decided that the matter be considered by the Standing Committee consisting of the Hon'ble the Chief Justice and four other Hon'ble Judges. The petitioner was intimated about the hearing fixed on 13.12.1994. The Standing Committee undertook the exercise but before it could be completed two Hon'ble member Judges were transferred to other High Courts and the Hon'ble the Chief Justice was elevated to the Hon'ble the Supreme Court. Hence the case of the petitioner was required to be considered by the new Standing Committee. 3.5 That being so, the petitioner was intimated by letter dated 18.11.95 that his matter will be considered by the Standing Committee on 5.12.1995. The Committee, after according an opportunity of hearing to the petitioner recorded its decision of being in agreement with the report of the Inquiry Officer which was acted upon, as reflected in narration of facts hereinabove. In view of the discussion aforesaid, the submission of Mr. Supehia, learned counsel for the petitioner is not found worth accepting and hence, the same is rejected. 3.6 The learned counsel for the petitioner next contended that the petitioner was not allowed the assistance of an advocate when his case was considered by the Standing Committee, though the same was allowed when he was heard by the Disciplinary Committee. 3.7 The learned counsel after having raised this contention fairly conceded that the petitioner had never requested the Standing Committee either on 13.12.94 or 5.12.1995 to permit him to avail of the assistance of an advocate. Not only that, he also conceded that even after the hearing the petitioner did not make any complaint about denial of assistance of an advocate and, therefore, the submission of the learned advocate does not find favour with the Court and the same is rejected. 3.8 The learned counsel for the petitioner next contended that the petitioner was not supplied a copy of the report of the Disciplinary Committee, though the petitioner had requested for the same. 3.9 The contention raised by the learned advocate is devoid of any merit because the report of the Disciplinary Committee, never assumed the status of `decision of High Court' and the same was not acted upon. Hence, there was no question of supplying the said report/findings to the petitioner. The learned counsel for the petitioner could not point out any rule under which a copy of such report is required to be supplied to the petitioner. Rules provide for the supply of a copy of the report of the Inquiry Officer and in compliance of the Rules, copy of the report of the Inquiry Officer was supplied to the petitioner. In view of the above discussion, this submission of the learned advocate cannot be accepted by the Court. 3.10 The learned counsel for the petitioner next submitted about non-dealing with the submissions made by the petitioner in writing in reply to the show cause. The learned counsel submitted that in the impugned order, no reference is found regarding the material which was placed for consideration by way of written submissions. 3.11 The Court having examined the original record, has found that all the material placed on the record of the case is considered. It is not necessary that entire material be dealt in minute details. On perusal of the record, this Court is of the opinion that the High Court has considered the material submissions and the substance of the arguments. Hence, this submission of the learned advocate does not warrant an acceptance. 3.12 Learned counsel next contended that the petitioner, even though repeatedly requested, was not supplied re-recorded form of two audio cassettes and thereby, the petitioner could not present his case successfully. 3.13 It is not in dispute that the contents of the two audio cassettes were transcribed and were supplied to the petitioner. It is also not in dispute that the two audio cassettes were played in the presence of the petitioner, firstly by the Inquiry Officer and later on by the Committee while considering the same. Besides learned advocate is not able to point out as to whether at any time, the petitioner had objected to the correctness of the contents of the transcriptions given to him. In fact, the record goes to show that with a view to verify the correctness of the contents of the audio cassettes the same were played in the presence of the petitioner and the correctness of the same was verified and recorded. In that view of the matter, the contention raised by the learned advocate is devoid of any merit and, therefore, it cannot be accepted. 3.14 Learned advocate next contended that no reliance could have been placed upon the transcription made by Stenographer Rasiwala, who stated that he had transcribed the conversation after hearing both the cassettes. Learned advocate submitted that the evidence of Mr. Bhutwala could not have been given any weightage as he was an accomplice and, therefore, this is the case of `no evidence' against the petitioner. It is on record that before the Inquiry Officer, the petitioner did not appear as a witness and did not controvert the evidence either in part or full led before the Inquiry Officer, therefore, the Inquiry Officer had to appreciate the only evidence which was led before him. In so appreciating, the Inquiry Officer found the evidence led before him worth accepting and on acceptance of the same, he recorded his findings. The petitioner, for the reasons best known to him, did not avail of the opportunity of appearing before the Inquiry Officer and getting himself examined as a witness. That being so, he has to take the consequences of his own wrong. In light of this discussion, the contention raised by the learned advocate cannot be accepted. 3.15 Learned advocate for the petitioner also contended that on 2.11.1988, complainant and his wife Urvashiben were not present and the case was adjourned on the basis of the report submitted by the learned APP. Despite that in the second audio cassette, some conversation has been ascribed to Urvashiben. The learned advocate submitted that it is doubtful whether the cassette was really recorded on 2.11.1988. This contention is also part of challenge to the evidence in the form of two audio cassettes. As discussed above, the contents of both the audio cassettes duly transcribed were made available to the petitioner and the petitioner has waived his right to challenge the same. Besides it is on record that the High Court verified the correctness and authenticity of the same and taken note of the same. Hence this contention fails. 3.16 Learned advocate next contended that the departmental inquiry is vitiated on account of non- supply of the copy of the Stenographer book of Mr. Rasiwala. The learned advocate submitted that the supply of the copy of the Stenographer book was necessary as in the two transcriptions of the cassettes, first one in long hand and other in shorthand and there were discrepancies. If the petitioner was supplied the Stenographer book he could have got the same transcribed in long hand and could have compared the same with the contents supplied to him. 3.17 This contention is required to be appreciated in light of the fact that the Committee, which heard the petitioner on 5.12.1995 as is available on record, heard both the cassettes in the presence of the petitioner and the petitioner admitted before the Committee that transcription given to him was absolutely correct. In view of that this contention cannot be accepted. 3.18 Learned counsel for the petitioner next contended that the case of the department must fail on account of non-examination of the star witness. According to the learned advocate, in the present case, accused Makanbhai Bijalbhai was the star witness. In support of this contention, he relied upon a decision of the Hon'ble the Apex Court in the matter of Hardwari Lal Vs. State of U.P. & others, reported in 1999 AIR SCW 4387, wherein according to the learned advocate for the petitioner, it is held that in absence of the examination of the star witness, principles of natural justice stood violated. The decision of the Hon'ble Apex Court has no application to the facts of the case on hand. As in this case, the petitioner did not appear before the Inquiry Officer and did not get himself examined whereas the department examined certain witnesses, relying on whose evidence, the Inquiry Officer, came to a conclusion that the charges alleged against the petitioner are proved. 3.19 If at all the petitioner wanted to dislodge the conclusions, he could have done so only by uprooting the evidence of the department. Besides, it is trite law that what matters is the `quality' of evidence and not the `quantity'. If the evidence laid before the Inquiry Officer is found to be sufficient to record the factum of guilt, department has not committed any irregularity in not examining the so-called star witness. 3.20 Learned advocate for the petitioner next contended that the charges levelled against the petitioner are vague. The contention is devoid of any merit. A copy of the chargesheet issued to the petitioner is produced at Annexure:A on page-17 of the petition memo. The charges levelled against the petitioner are set out in the earlier part of the communication, after that it is stated that; SPlease note that the details as to the above charge are given in the statement of imputation which shall be read as a part of the charge. (emphasis supplied). The petitioner has chosen not to produce the Statement of Imputations, he has kept back the same for the reasons best known to him. In the absence of Statement of Imputations to allege that the charges set out in the communication are vague is not worth accepting. Statement of Imputations, though available with the petitioner, he has chosen not to produce the same for perusal of the Court. In absence of Statement of Imputations, the contention raised by the petitioner cannot be accepted and the same is rejected. 3.21 Learned advocate next contended that it is a case of `no evidence' against the petitioner. It is submitted by the learned advocate for the petitioner that the department has examined only two witnesses at the departmental inquiry and according to the learned advocate for the petitioner, one of those witnesses Mr.Rasiwala does not support the case against the petitioner, while other witness is an interested witness being an accomplice. The learned advocate submitted that therefore, no reliance can be placed on his evidence. In fact, this contention is reiteration and repetition of the earlier contention and therefore for the same reasons it is required to be rejected. It is already noted and mentioned hereinabove that the petitioner did not examine himself before the Inquiry Officer and, therefore, as stated hereinabove, it was for the Inquiry Officer to appreciate the evidence led before him and in his wisdom, on the basis of the quality of evidence led before him, held the charges proved against the petitioner. Hence the contention that the case of the petitioner is a case of `no evidence' is without any substance and the same is rejected. 4. Mr. Pardiwala, learned advocate, appearing for the respondent no. 2 supported the decision and in support of his submissions relied upon the following decisions:- [a] Decision of a Division Bench in Special Civil Application No. 5691 of 2002 (Coram: G.S. Singhvi & Anant S. Dave, JJ), dated 10.5.2005. [b] Yoginath D. Bagde Vs. State of Maharashtra, reported in 1999 [7] SCC 739. [c] Nirmala J. Jhala Vs. State of Gujarat, reported in 2004 (3) G.L.H. 708.;