V J BRAHMBHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner is aggrieved by the order dated 20-11-2001 of the High Court on its administrative side and the consequent order dated 15-12-2001 dismissing him from his service as Civil Judge (J. D.) and Judicial Magistrate. The petitioner was charged with misconducts of dereliction in discharging his judicial functions and corrupt practice by implication. Detailed statement of imputation along with the charge sheet dated 7-9-1994 was served upon him. By letter dated 4-10-1994, he demanded copies of several documents, which included the application dated 10-12-1992 of one Shri Bhupatrai Thakkar, and copy of that document was not supplied at that time after stating in letter dated 28-10-1994 that it was a confidential document and it was not relied upon by the department. That Bhupatrai was, however, examined during the course of departmental enquiry and he was extensively cross-examined on behalf of the petitioner. At the end of the enquiry held into the charges against the petitioner, the enquiry officer recorded on 31st December, 1997 his opinion that the charge against the delinquent was not proved beyond reasonable doubt.

(2.) LEARNED advocate, Mr. P. V. Hathi, appearing for the petitioner vehemently argued that when the High Court disagreed with finding of the enquiry officer, notice giving opportunity to the petitioner was issued only in respect of the proposed penalty. It was submitted that decision of the High Court in respect of proof of alleged misconduct was final and the petitioner was deprived of an opportunity to make a representation against it. He relied upon judgment of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra and another (AIR 1999 SC 3734 ). He also submitted that the important document demanded by the petitioner, i. e. copy of complaint of Shri Bhupatrai, was denied to him and the same document was subsequently taken on record without the petitioner having an opportunity to further cross-examine that witness. He also submitted that there was difference of opinion even among the departmental committees of the High Court about the charge held to have been proved against the petitioner. After reference to evidence on record, learned counsel also submitted that serious charge of demanding illegal gratification was not proved and, in any case, the penalty of dismissal from service was excessive and disproportionate. Learned counsel relied upon the provision as under of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971.

(3.) LEARNED counsel, Mr. J. B. Pardiwala, appearing for the respondent submitted that the enquiry against the petitioner was conducted in a fair and impartial manner and the enquiry officer had recorded the finding that the charge was not proved beyond reasonable doubt, which is not the standard of proof required in a departmental action. Therefore, the High Court had re-examined the evidence on record and come to a tentative finding that charge of demanding illegal gratification from Mr. Bhupatrai was proved. That was expressly a tentative decision and after supplying it along with report of the enquiry officer to the petitioner, he was allowed to canvass his contentions on all the available grounds, in respect of the tentative finding as well as proposed punishment. The discussion of the contentions canvassed by the petitioner is reflected in the final order. As for opportunity to further cross-examine the witness, it was submitted that copy of the complaint demanded by the petitioner was subsequently supplied to him at his instance, but, despite best efforts presence of the witness could not be secured for the purpose of cross-examination on limited point of his complaint. The fact, however, remains that the same witness was cross-examined at length when his oral statement was recorded during the course of departmental enquiry; and no prejudice was caused due to the copy of his complaint being supplied afterwards and his unavailability for cross-examination. He submitted that final decision being in the nature of a corporate decision of the High Court on its administrative side, it could not be reviewed or set aside on the ground of alleged insufficiency of evidence. And once the delinquent, a judicial officer, was found to be guilty of demanding illegal gratification, punishment of dismissal could by no stretch be treated as excessive. He relied upon judgment of the Apex Court in Chandrama Tewari v. Union of India (AIR 1988 SC 117 ).