- (1.) THIS matter has been placed before me, as per the orders of the Hon?ble the then Chief Justice, as there is a difference of opinion between the verdicts rendered by two Honourable Judges of this Court, dated 29.4.1999.
(2.) THE necessary facts, in brief, for the disposal of the case are that Petitioner K.Velusamy, joined the Judicial Service as District Munsif on 1.12.1971, and promoted as Subordinate Judge on 10.11.1980. While he was serving as Principal Subordinate Judge, Erode, during the years 1986-89, on certain allegations, three charges were framed on 23.9.1991. THE said charges were later on re-framed and on consideration, enquiry was conducted by two Hon?ble Judges of this Court, recalling the enquiry before the District Judge, Erode. P.Ws.1 to 8 were examined and on the defence side two witnesses were examined. After considering the written explanation the Second Enquiry Committee, which was newly constituted, as the first Enquiry Committee did not record any finding, and after affording an opportunity of hearing, as per the direction given by the Full Court, submitted the finding that charges 1 and 2 were held not proved and charge No.3 was held to have been proved. THE relevant charge pertains to, ?demanding of a bribe of Rs.50,000 and acceptance of a bride of Rs.15,000 from Thiru K.Murugesan one of the defendants in O.S.No.442 of 1987 on the file of Sub Court, Erode, for passing a favourable judgment. Aggrieved, the petitioner filed W.P. No.8036 of 1995, challenging the provisional conclusion taken on 26.4.1995. Meanwhile, the order of dismissal was passed on 30.6.1995 and challenging that order petitioner filed. In the Division Bench, by elaborate judgment, considering various contentions raised by counsel on either side and the case law, one, Hon?ble Judge dismissed the writ petition, whereas the other Hon?ble Judge came to the conclusion finding that there is delay beyond three years, that even if the petitioner is found guilty, the punishment of dismissal is not justified and allowed the writ petition as prayed for. Under such circumstances, as stated the matter is placed before me. Learned counsel for the petitioner submitted various points which were agitated before the Division Bench, but before me, he has mainly emphasized that as a matter of fact, there is no evidence on record to prove charge No.3, which is the only charge held to have been proved. It is also submitted that the Judicial Officer in question was not considered to be fit to continue in service beyond 58 years, vide order dated 12.6.1995 which fact was not considered before the imposition of dismissal on 30.6.1995. He submits that in the facts of the given case, the findings of dismissal from service can be reduced into one of compulsory retirement, as the punishment imposed is disproportionate to the charge proved. It is argued by the learned counsel that after framing of the charge on 20.10.1991, the Judicial Officer was promoted as District Judge on 8.11.1991 and as such, after his promotion, the charge has been washed out. Pointing out that the Judicial Officer was dismissed from service on the last date of his retirement on superannuation, learned counsel submitted that the punishment imposed can be reduced to one of compulsory retirement. In that case also, he has to forego 1/3rd of retirement benefits and there will be no possibility of further appointment. It is further argued that the so called charge No.3 which is held to be proved reveals that the suit was decreed, against which appeal has been filed and it is pending in A.S.No.304 of 1989. No such ground has been made in the said appeal. Under the circumstances, learned counsel submitted that charge No.3 cannot be held to be proved. The Judicial Officer cannot be punished on that basis. Learned counsel further submits that charge No.3 consists of evidence of P.Ws. 5 to 8 and documents Exs.P.10 to P.14, that the enquiry committee rejected the testimony of P.Ws. 7 and 8, that P.W.7 was treated as a hostile witness, that P.W.6 merely speaks of the presence of the Judicial Officer in the Company of P.W.5, that P.W.5 is a party interested and made allegations against the Officer, as he lost the case. Under the circumstances, it is submitted that Hon?ble Mr.Justice S.M. Abdul Wahab, has rightly disbelieved the evidence of P.W.7. Even with regard to actual payment of money, it has been observed by Justice Abdul Wahab as hear-say. It is also submitted that A.S.No.304 of 1989; preferred against the judgment in O.S.442 of 1987 is pending before this Court, and in the event of appeal being dismissed, the entire edifice of the case would be lost. Under the circumstances, the learned counsel further submitted that the ends of justice would be served, if the punishment imposed is reduced to one of compulsory retirement. Counsel further submitted that the incident is of the year 1987, that the petitioner had suffered a lot, because of the conduct of the enquiry for so many years, that by a single resolution passed, he was dismissed from service on the last date of his retirement and as such, he has been punished twice. Reliance is placed by the learned counsel on the decision in Management of Pattukottai Azhagiri Transport Corporation Ltd. v. S.Prakasam Management of Pattukottai Azhagiri Transport Corporation Ltd. v. S.Prakasam Management of Pattukottai Azhagiri Transport Corporation Ltd. v. S.Prakasam , (1999)1 MLJ. 416 and A.M.Sankaran wherein it was held that there can be no enquiry and that there can be no misconduct with reference to Judicial Act. Under such circumstances, it is prayed that at least the punishment imposed can be reduced to one of the compulsory retirement, without agitating other contentions. On the other hand, learned Government Pleader submitted that the Hon?ble Mr.Justice S.S.Subramani, while considering the point of reducing the punishment has discussed at para 56 at page 116. The discretion so exercised cannot be interfered with when the petitioner had not challenged and argued the other contentions. I have heard the learned counsel appearing on both sides and perused the materials available on record and the elaborate judgments of two Honourable Judges and the case law. No doubt this Court while exercising judicial review, shall not normally interfere with the punishment imposed. It can only interfere, if the punishment imposed is without following the rules of natural justice or arrived at on no evidence or perverse. Likewise, this Court cannot re-appreciate the evidence, as this Court is not a Court of Appeal. It is also settled that discretion so exercised cannot be interfered with unless the same is arbitrary. But in the instant case, on the basis of the arguments advanced before me, the points to be considered are mooted out as follows: ? (1) Appreciation of evidence and the legality of the constitution of Enquiry Committees. ? (2) Legality of the findings. ? (3) Whether the punishment imposed is disproportionate to the charges levelled. The first two points mentioned above, had been elaborately considered in para.8 of the judgment and discussed by the Hon?ble Mr.Justice S.S.Subramani, which are based on material facts. Learned counsel for the petitioner has not been able to point out that the finding is based on ?no evidence? or perverse. So, I have no reason to take a different view from that, I am in full agreement with Hon?ble Mr.Justice S.S.Subramani, on those two aspects.
(3.) REGARDING the third point, Subramani, J., has discussed and held that as one charge, which is serious in nature, is held proved, there is no justification for imposing the punishment of compulsory retirement, which is a very lenient one. On the other hand Abdul Wahab, J. taking note of the delay of three years, observed that even if the charge is found to be proved, the punishment of dismissal is not justified. Considering the opinions of the Hon?ble Judges, the contentions advanced by the learned counsel appearing on both sides, the fact that the petitioner had already undergone mental agony from the year 1989 for the incident which took place in 1987, the fact that the services of the Judicial Officer in question were not extended beyond the age of 58 years, the fact that he was dismissed from service on the last date of his retirement, also the fact that in the event of imposition of the punishment of compulsory retirement, he will lose monetary benefits to some extent, as per the Rules and also he will be deprived of future appointment and the fact that no complaint has been filed and the circumstances of the case in hand, the discretion so exercised in favour of the petitioner while appreciating evidence regarding reduction of punishment, it is a fit case, in my humble opinion, the ends of justice will be served if the punishment of dismissal of reduced to one of compulsory retirement. On overall consideration and for the reasons stated above, I am of the view that the punishment imposed is disproportionate to the proved charge and accordingly reduce the punishment to one of compulsory retirement. The writ petition is ordered accordingly. There will be no order as to costs.;