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CASE NO.:

Special Reference Case 1 of 2004

PETITIONER:

U/A 317(1) of the Constitution of India

RESPONDENT:

IN R/O: SMT. SAYALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION

DATE OF JUDGMENT: 17/05/2007

BENCH:

B.P. SINGH, TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

REFERENCE NO. 1 OF 2004

P.K. BALASUBRAMANYAN, J.

1. This reference is made by the Hon'ble President

of India under Article 317 of the Constitution of India in

relation to the conduct of the respondent, a member of the

Maharashtra Public Service Commission. The question is

whether respondent No. 3 is liable to be removed from

office on the ground of misbehaviour.

2. The said respondent joined the Maharashtra

Public Service Commission as a member on 8.5.2001.

She was arrested on 8.6.2003 in a crime registered in

connection with a complaint lodged by the Public Service

Commission relating to mal-practices in respect of an

examination conducted in the year 1999. Twenty one

others were also arrested. The respondent was lodged in

jail. This led to His Excellency the Governor of

Maharashtra to request His Excellency the President of

India to initiate action under Article 317 of the

Constitution of India for her removal. He also suspended

her from office until an order had been passed by the

President under clause (1) of Article 317 of the

Constitution. It is seen that the respondent was

subsequently released on bail though at least on three

earlier occasions, her prayers for bail were rejected. Since

a request was made to the President of India to act in

terms of Article 317(1) of the Constitution, the placing of

the respondent under suspension under Article 317(2) of

the Constitution was proper. Considering the nature of

the scam that emerged and the constitutional position

enjoyed by the Public Service Commission, the reference

to this Court under Article 317(1) of the Constitution is

seen to be the proper step to be taken.

3. The Governor made the request to the President

by letter dated 5.8.2003 to initiate action under Article

317 of the Constitution. His Excellency made the

reference by letter dated 13.12.2003.

4. Article 317 of the Constitution reads as under:

"317. Removal and suspension of a

member of a Public Service

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Commission\027(1) Subject to the provisions

of clause (3), the Chairman or any other

member of a Public Service Commission

shall only be removed from his office by

order of the President on the ground of

misbehaviour after the Supreme Court, on

reference being made to it by the President,

has, on enquiry held in accordance with the

procedure prescribed in that behalf under

article 145, reported that the Chairman or

such other member, as the case may be,

ought on any such ground to be removed.

(2) The President, in the case of the Union

Commission or a Joint Commission, and

the Governor in the case of a State

Commission, may suspend from office the

Chairman or any other member of the

Commission in respect of whom a reference

has been made to the Supreme Court under

clause (1) until the President has passed

orders on receipt of the report of the

Supreme Court on such reference.

(3) Notwithstanding anything in clause

(1), the President may by order remove from

office the Chairman or any other member of

a Public Service Commission if the

Chairman or such other members, as the

case may be,--

(a) as adjudged an insolvent; or

(b) engages during his term of office

in any paid employment outside

the duties of his office; or

(c) is, in the opinion of the President.

(4) If the Chairman or any other member

of a Public Service Commission is or

becomes in any way concerned or

interested in any contract or agreement

made by or on behalf of the Government of

India or the Government of a State or

participates in any way in the profit thereof

or in any benefit or emolument arising

therefrom otherwise than as a member and

in common with the other members of an

incorporated company, he shall, for the

purposes of clause (1), be deemed to be to

be guilty of misbehaviour."

5. The contours of enquiry when a reference is

made by the President of India under Article 317 (1) of the

Constitution of India has been clearly drawn by this Court

in Special Reference No. 1 of 1983 [(1983) 3 S.C.R. 639).

This Court therein has held that the President's prima

facie satisfaction based on available materials was enough

for making a reference to this Court under Article 317(1)

of the Constitution of India and that there was no need for

the President to obtain the opinion of any fact finding body

before making a reference. The enquiry which this Court

is required to hold is not into the limited question

whether, on the basis of facts found by the President, the

charge of misbehaviour is made out and whether the

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misbehaviour is of such a nature as to warrant the

removal of the person from his office. The inquiry

contemplated by the Article is into the facts themselves so

as to enable the Court to pronounce upon the question

whether the allegations made against the member are

proved. This Court also indicated the procedure that

could be conveniently followed when this Court is called

upon to answer a reference under Article 317(1) of the

Constitution of India.

6. In Special Reference No. 1 of 1985 [(1994) 2

S.C.R. 37], a Constitution Bench adopted the procedure

indicated in Special Reference No. 1 of 1983. In Reference

No.1 of 1985 the guidelines to be followed by the Court in

recording evidence at the enquiry so as to enable this

Court to answer the reference are also set down.

7. The present reference was made by the President

of India on 30.12.2003. This court issued notices to the

Attorney General for India, the Advocate General for the

State of Maharashtra, the Maharashtra Public Service

Commission and the concerned member. After the

preliminary steps were completed, on 13.12.2004, this

Court requested the Attorney General for India to

scrutinize the materials and file a statement setting out

the ground or grounds of misbehaviour along with the

statement of facts forming the basis thereof which is to be

inquired into within the meaning of Article 317(1) of the

Constitution of India. On 2.3.2005, the learned Attorney

General for India filed a statement containing charges

accompanied by the statement of facts, list of witnesses

and list of documents. On 1.4.2005, this Court directed

the Maharashtra State Government and the Maharashtra

Public Service Commission, to assist the learned Attorney

General for India by making available all the relevant

documents accompanied by translations so that the

learned Attorney General for India can form an opinion on

the question of reframing or supplementing the charges.

The Attorney General for India was also to take into

consideration the explanation furnished by the concerned

member of the Public Service Commission. Originally,

twenty two charges were proposed. Initially they were

reduced to six charges.

8. The learned Attorney General for India finally

suggested that out of the six charges proposed, charge

Nos. 3 and 6 may be dropped since they were not strictly

within the purview of the reference made by the President

since they related to conduct subsequent to the

misbehaviour complained of. The learned Attorney

General for India suggested that charge Nos. 1, 2, 4 and 5

may be framed against the member. This Court heard the

objections of the concerned member and the Public

Service Commission to the suggestion made by the

Attorney General for India and passed an order on

5.10.2005 directing that charge Nos. 1, 2, 4 and 5

contained in the note of the learned Attorney General for

India be framed against the concerned member. On

25.10.2005, this Court adopted the procedure and the

guidelines followed in the two instances referred to above

and directed the evidence to be taken by a City Civil Court

Judge of Bombay to be nominated by the Principal Judge,

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Civil Court, Bombay. The chief examination of the

witnesses was to be by way of affidavits filed in this Court

and the cross examination was to be done in the presence

of the nominated City Civil Court Judge to be recorded by

him. This Court directed that after recording the

evidence, the concerned Judge shall forthwith transmit

the records to the Registrar General of this Court for the

matter being placed before the Bench. Pursuant to this,

evidence was taken and the records transmitted to this

Court by the City Civil Court Judge. During arguments, it

was discovered that due to some confusion, the concerned

member against whom the charges are framed had not

been examined. The member also wanted her statement

recorded. This Court therefore passed an order on

17.1.2007 directing that the five affidavits filed by the

concerned member before this Court be treated as her

evidence in chief-examination and she may be cross

examined in the presence of a Registrar of this Court who

was subsequently named by order dated 22.1.2007.

Pursuant thereto, the concerned Registrar of this Court

recorded the evidence of the respondent and the matter

again came up before this Court for consideration. The

matter was heard in detail with reference to the relevant

materials on record.

9. The following are the charges framed by this

Court based on the suggestions of the learned Attorney

General for India on examination of the relevant materials.

"Charge -1

Whereas Ms. Sayalee Joshi has,

directly or indirectly, tried to protect the

interests of 24 candidates who appeared in

an examination conducted by the MPSC

and has also attempted to influence an

officer of the Commission to do such illegal

actions in the future in conjunction with

one Mr. Nitin Sathe.

Charge \026 2

Whereas the respondent No. 3, Ms.

Sayalee Joshi committed an act of

misbehaviour by interfering with an

internal inquiry being conducted by the

Secretary of MPSC regarding alleged

malpractices in the examination for

PSI/Asstt/STI conducted by the MPSC.

Charge \026 3 (renumbered; original Charge

NO.4 as suggested by the Attorney General)

Whereas Ms. Joshi deliberately and in

a mala fide manner omitted to disclose a

very vital fact to the Commission, namely

that her daughter was appearing for an

examination being conducted by MPSC,

which disclosure was mandatory as per

Office Order No. 4/1998 dated 05.05.1998

of the MPSC and hence sought to suppress

vital and material information from the

Commission, which affects her integrity and

complete devotion to duty in an impartial

manner, amounting to misbehaviour under

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Article 317(1) of the Constitution.

Charge - 4 (renumbered; original Charge

NO.- 5 as suggested by the Attorney

General)

Whereas Ms. Joshi, in collusion with

Mr. Nitin Sathe, attempted to sabotage

lodging of a complaint by a candidate as

regards malpractices in the examination

conducted by the MPSC for the posts of

PSI/Asstt/STI and hence abused her

official position and acted contrary to the

interests of the Commission and the

candidates, and is guilty of misbehaviour

under Article 317(1) of the Constitution."

10. During the enquiry exhibits 1 to 71 were marked

and 17 witnesses were examined. The respondent also got

herself examined. Elaborate submissions were thereafter

made on the charges framed.

11. Before we proceed to deal with the separate

charges which we have renumbered as 1 to 4 for

convenience certain facts may be noted. The various

complaints that arose were in connection with a

competitive examination announced by the Public Service

Commission on 14.7.1999 for recruitment of Police Sub-

inspectors/Sales Tax Inspectors and assistants. The

Preliminary Examinations were held on 18.6.2000 and the

results of the Preliminary Examinations were declared on

2.11.2000. There were complaints regarding the

Preliminary Examination and a decision is said to have

been taken by the Public Service Commission on

29.11.2000 to permit all the candidates whether they had

qualified in the Preliminary Examination or not, to appear

for the main examination. A Notification in that behalf

was issued on 6.12.2000. On 8.3.2001 the main written

examination was held at different centres in the State.

The scanning of the mark-sheets took place between

23.3.2001 to 16.5.2001.

12. At all these times the respondent was not a

member of the Public Service Commission. She joined

only on 8.5.2001.

13. Learned counsel for respondents No.3 argued as

if this reference was a criminal trial and the charge

against the respondent has to be proved beyond

reasonable doubt. Learned counsel for the Public Service

Commission submitted that these proceedings were

neither in the nature of a criminal trial nor in the nature

of the service dispute, but that it was a question of an

inquiry into the conduct of a member of the Public Service

Commission who was expected to maintain highest

standards of integrity. This Court in Re Reference under

Article 317(1) of the Constitution of India [(1990) 4

S.C.C. 262] while answering Special Reference No. 1 of

1983 had noticed:

"The case of a government servant is,

subject to the special provisions, governed

by the law of master and servant, but the

position in the case of a Member of the

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Commission is different. The latter holds a

constitutional post and is governed by the

special provisions dealing with different

aspects of his office as envisaged by Articles

315 to 323 of Chapter II of Part XIV of the

Constitution. In our view the decisions

dealing with service cases relied upon on

behalf of the respondent have no

application to the present matter and the

reference will have to be answered on the

merits of the case with reference to the

complaint and the respondent's defence."

14. While answering Reference Case No. 1 of 1995

[(1997) 3 S.C.C. 216], this Court held that the attempt to

influence the result of a candidate appearing in an

examination conducted by the Public Service Commission

would amount to misbehaviour on the part of a member of

the Commission. In Special Reference No. 1 of 1997

[(2000) 4 S.C.C. 309], this Court explained the position

held by the members of the Public Service Commission

thus:

"Keeping in line with the high expectations

of their office and need to observe absolute

integrity and impartiality in the exercise of

their powers and duties, the Chairman and

members of the Public Service Commission

are required to be selected on the basis of

their merit, ability and suitability and they

in turn are expected to be models

themselves in their functioning. The

character and conduct of the Chairman and

members of the Commission, like Caesar's

wife, must therefore be above board. They

occupy a unique place and position and

utmost objectivity in the performance of

their duties and integrity and detachment

are essential requirements expected from

the Chairman and members of the Public

Service Commissions."

This Court towards the end further stated:

The credibility of the institution of Public

Service Commission is founded upon faith

of the common man on its proper

functioning. The faith would be eroded and

confidence destroyed if it appears that the

Chairman or the Members of the

Commission act subjectively and not

objectively or that their actions are suspect.

Society expects honesty, integrity and

complete objectivity from the Chairman and

Members of the Commission. The

Commission must act fairly, without any

pressure or influence from any quarter,

unbiased and impartially, so that the

society does not loose confidence in the

Commission. The high constitutional

trustees, like the Chairman and Members

of the Public Service Commission must for

ever remain vigilant and conscious of these

necessary adjuncts.

The task of this Court therefore is to find out as a fact

whether the materials disclose a conduct on the part of

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the respondent (a constitutional functionary) which would

be misbehaviour within the meaning of Article 317(1) of

the Constitution of India. Our approach to the reference

in answering the charges framed has to be on this basis.

15. There is no doubt that the first respondent-

Public Service Commission has clearly fallen from grace

and the exalted status it enjoys under the Constitution.

That one scam after another should erupt in respect of

such a constitutional body is a very disturbing aspect. If

constitutional institutions fail in their duties or stray from

the straight and narrow path, it would be a great blow to

democracy a system of governance that we have given

unto ourselves and the great vision our constitutional

framers had about the future of this country. During the

course of our detailed enquiry, we also felt that it is

possible that an attempt is also made not to expose

everything in connection with the erupted scandal but to

brush at least some of the aspects under the carpet. This

is also an unhappy augury for the working of our

institutions.

16. We shall first summarise the evidence in the

light of the facts set out in support of the charges framed.

The evidence

17. As has been noticed, the Main written

examination for the post was conducted on 18.3.2001 and

the scanning of the Mark Sheets took place on 23.3.2001.

Respondent No.3 joined the Commission as a Member on

8.5.2001. The charge against respondent no.3 is that on

25.4.2002 the Controller of Examinations Mr. Sarode

(PW.15) visited respondent no.3 at her residence at her

behest. According to the facts in support of the charge,

Mr. Nitin Sathe was also present at that time at the

residence of respondent no.3. After introducing Mr. Nitin

Sathe to PW.15, respondent no.3 told PW.15 that a List of

24 candidates furnished by Nitin Sathe for favourable

treatment while evaluating the results, were her own

candidates and that PW.15 should do all that is possible

to help those candidates. The further charge is that she

also told PW.15 that he should work in conjunction with

Nitin Sathe in future also so that benefit could be had by

all by such association. Respondent No.3 while admitting

that she had met PW.15 at her residence, flatly denied

that Nitin Sathe was present on the occasion, that she had

introduced Nitin Sathe to PW.15 and had told him about a

list of 24 candidates or about the prospect of working

together in future. According to her version, PW.15 had

come to her residence to discuss the problem of his son

who was doing his course in Bachelor of Commerce and

she being a Commerce graduate, he wanted her help in

correcting the course of his son's carrier.

18. In support of the second charge, it is alleged that

an internal enquiry was conducted into the complaints

received and during the enquiry respondent No.3

summoned Sarode and directed him not to disclose the

name of Nitin Sathe in the ongoing enquiry. This, on her

part was an interference with the enquiry which amounted

to misbehaviour. On her part therespondent had denied

that she issued such a direction to Sathe.

19. In support of the third charge it was alleged that

Poorva Joshi, the daughter of respondent No.3 applied for

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appearing in an examination conducted by the

Commission from two centres and that she failed to

disclose that fact to the Commission. Though the

respondent admitted this fact she pleaded that she had no

such obligation since such an obligation to disclose rested

only on employees and officers of the Commission and not

on its members. She also took up the stand that her

daughter had actually not appeared in the examination.

20. In support of the fourth charge it was set out

that the respondent had got Nitin Sathe to threaten PW 9

Aparna Dubey and compelled her to withdraw her original

complaint and to make a second representation to the

Commission handed over to the respondent which she

received and handed over to the acting Chairman Wani.

On search of her residence the representation wherein the

seal of the Commission was recovered. The documents

were not once handed over to her officially.

21. PW.15 in his chief examination by way of

affidavit in this Court, had sworn to the fact that he had

made a free and voluntary confession on 28.11.2002

before the Metropolitan Magistrate, 23rd Court, Esplanade,

Mumbai regarding the irregularities and illegalities in the

working of the Maharashtra Public Service Commission

and its concerned Members and Officers which came to be

known as M.P.S.C. Scam. He had made the confession

while he was in judicial custody. During the relevant

period, he was working as the Controller of Examinations.

He had given the details in his confession which was a free

and voluntary one. He has further sworn : "I say that,

sometime in the month of April-2002, Smt. Sayalee

Sanjeev Joshi, member of the Maharashtra Public Service

Commission, asked me to meet her at her official

residence. During this period the process of declaration of

results of the Police Sub-Inspector & Sales Tax

Inspector/Assistants Exams-1999, was in its final stages.

That, when I visited the official residence of Smt. Sayalee

Sanjeev Joshi on 25.4.2002 she introduced me to one Mr.

Nitin Sathe, who was already present there. I say that,

while entering the official residence of Smt. Sayalee

Sanjeev Joshi, I made an entry of my visit in the visitors

book kept at her official residence. During this meeting at

her official residence, Smt. Sayalee Sanjeev Joshi told me

that the 24 candidates supplied by Mr. Nitin Sathe were

her own candidates and the interests of these candidates

were to be protected and these candidates were to be

selected for the above said Police Sub Inspector/Sales Tax

Inspector/Assistant Exam-1999. I say that, these

candidates had qualified in the Main Examination of

Police Sub-Inspector & Sales Tax Inspector/Assistants

Exam-1999. That, during the said meeting Smt. Sayalee

Sanjeev Joshi also put forward a proposal to me that I

should work with Mr. Nitin Sathe in the future for mutual

benefits. Smt. Sayalee Joshi had called me to her

residence on 1st May 2002 also and she again told me that

I should not disclose the name of Shri Nitin Sathe to

anyone during the enquiry. I have made an entry of this

visit in the visitor's book kept at the residence of Smt.

Sayalee Joshi." The confession referred to was marked in

evidence as Ext.53.

22. The visit of PW.15 to respondent no.3 at her

residence on 25.4.2002 is corroborated by the visitors'

register kept at the building in which respondent no.3 was

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residing. That visit is also not denied by respondent no.3.

In his confessional statement PW.15 had stated : "the

work of the result of the examination was in last stage,

somewhere in the month of April-May 2002, Smt. Joshi,

Member of the Commission asked me to meet her at her

house. Meantime, Smt. Dhamdhere had started inquiry

on the basis of anonymous complaints.

When I went to the house of Smt. Joshi that

time, one Nitin Sathe was present there. Smt. Joshi told

me that 24 candidates supplied by Nitin Sathe were of her

own. Hence she instructed me not to disclose the name of

Nitin Sathe in the inquiry. In the same meeting, she also

put forward a proposal before me to do the same work in

future with the help of Nitin Sathe.

At the same time, an advertisement was

published for the recruitment of the Gazetted officers in

the State Service. Smt. Joshi told me that her daughter

was one of the candidates. She also suggested to me that

we had to pass her in the examination. I told her that it

was not possible."

23. In his cross-examination on behalf of respondent

no.3, it was brought out that PW.15 was associated with

the Commission from the year 1972 onwards. He joined

as an Assistant and rose to the position of Controller of

Examinations. It was suggested to him that Dr. Karnik

who became the Chairman of the Commission was

responsible for his elevation to the position of Controller of

Examinations. It was also brought out that at the time he

was appointed as the Controller of Examinations, Mr.

Edwankar was senior to him amongst the Deputy

Secretaries. PW.15 asserted that he got the post on the

basis of seniority and accepted it, though he was

reluctant. It was a post that carried a huge responsibility.

He agreed with the suggestion that two reasons combine

insofar as what came to be called the Scam of 1999. They

were, one of letting every candidate appear for the Main

Examination and secondly the decision to re-scan the

answer sheets. He also admitted that some persons had

collected money from the candidates promising that they

would be allowed to take the Main Examination. Those

candidates were the unsuccessful ones in the Preliminary

Examination. It was also brought out that based on a

conspiracy, the candidates who had failed were induced to

hold a demonstration in front of the office of the

Commission so that the Commission could take a fresh

decision based on their alleged grievance. It was also

brought out that the meeting with regard to the 1999 re-

examination took place on 29.11.2000, at a time when

respondent no.3 had not joined the Commission. To a

question, he answered that answer sheets of those from

whom money had been taken, were to be changed, but it

became impossible because of him, because he refused to

be a part of the game. He stated that there were lot of

complaints and Public Interest Litigations in the High

Court and as a result of those complaints, the charge of

Controller of Examinations came to be taken away from

him pursuant to the order of 8.4.2002 passed by Mr Wani

who was then the Acting Chairman of the Commission.

He also admitted that in May 2002, the Secretary to the

Commission Mrs. Seema Dhamdhere had commenced her

enquiry. He also admitted that he was the first person to

be arrested in connection with the M.P.S.C. Scam. He was

arrested on 29.6.2002. He also stated in paragraph 24

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that : "Till I gave my confessional statement I did not write

any letter or written intimation either to the court or to the

police about the involvement of the respondent Mrs.

Joshi." He asserted that loss of face had led to his

repentance and that had induced him to make the

confession before the Metropolitan Magistrate. It was

suggested to him that a complaint file came to be opened

against him containing personal allegations and the

allegations were about his misbehaviour with lady

employees. It was suggested to him that he had a special

relationship with Dr. Karnik and Dr. Karnik had

deliberately shut his eyes to the existence of the personal

file of complaints against him while promoting him as the

Controller of Examinations. He admitted that he was

called up and a written intimation was also sent to him

from the Commission with regard to the affidavit in chief

examination that he had filed in this reference. He knew

that he was swearing to the affidavit as a witness. He was

aware that he would be a witness against one of the

accused in favour of the prosecution. Then he stated : "It

is not true that I gave the confessional statement falsely to

save myself. It is not true that I swore to the affidavit in

this reference falsely to save myself. It is not true that a

promise was held out that if I made a confessional

statement and swore the affidavit I would be made

approver and I would get free from the botheration of the

prosecution. It is not true that I never felt any repentance.

It is not true that this stand is adopted by me to save my

skin." (paragraph 31). Regarding the meeting with

respondent no.3 this was what was brought out "I cannot

mention the date but it was in April 2002 that according

to me the respondent called me. It was either in the

second or third week of April 2002. I did not tell this fact

to anybody that the respondent had called me as just

mentioned. She had called me to her chamber in the

office and told me to meet her at her residence. The date

was not fixed on which I should see her at her residence.

I had mentioned in my confessional statement that this

event took place sometime in April-May 2002. It is true

that in the confessional statement the date 25.4.2002 was

not specifically mentioned by me. In my confessional

statement I did not mention that I met the respondent on

1.5.2002. In fact there is no mention of my second visit at

all in my confessional statement. I did not disclose to

anybody in the office of the Commission the fact of my

visit to the residence of the respondent either on

25.4.2002 or 1.5.2002. I had not mentioned in my

confession that I made entry in the visitors book when I

visited the residence of the respondent. I had not given

the list of the 24 candidates either in my confessional

statement or in my affidavit in this reference (see page

no.3 of the affidavit)." (paragraph 32). He admitted that :

"it is true that the fact that the respondent told me in

connection with the 24 candidates that the interest of

those candidates were to be protected is not mentioned in

my confessional statement. Volunteers: Whatever I could

recollect was mentioned in the confessional statement. It

is true that it is not mentioned in my confessional

statement that those candidates had qualified in the main

examination of Police Sub Inspector and Sales Tax

Inspector/Assistants exams 1999. The facts just referred

to in relation to my confessional statement and the

affidavit were not mentioned by me to anybody in the

interregnum. As far as the question as to whether I

agreed with what according to me the respondent

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proposed, I say that by then the finalisation of the result

was in progress and nothing was in my hand." (paragraph

33). He denied the suggestion that the respondent had

never called him on 25.4.2002. He also denied the

suggestion that he visited the respondent on that day on

the pretext that his son was not getting through his

B.Com and since the respondent belonged to that faculty

she could give necessary guidance. He denied the

suggestion that the real reason for his visit to the

respondent was that he wanted to create a soft corner

with the respondent because his name had appeared in

the anonymous complaint. He denied the suggestion that

he saw the respondent in her chamber with a request to

see to it that no prosecution was started against him and

he offered that he was prepared to submit his resignation

when it became clear that the matter would escalate. He

denied the further suggestion that the respondent had

spurned his request. He admitted that he could have

refused to swear to the affidavit in this reference. He had

not talked to anyone in the Commission before he swore to

the affidavit in chief examination. He denied that the

recitals in his affidavit about Nitin Sathe having met him

in the manner mentioned therein were incorrect. He

denied the suggestion that the respondent never sought

his help in any manner for helping her daughter Purva as

stated in his affidavit. He denied the suggestion that the

affidavit filed by him was prepared as instructed by Mrs.

Seema Dhamdhere. He denied the suggestion that his

entire evidence was false and was being given under the

threat of the police and as an exercise in self preservation.

24. The confessional statement marked Ext.53 was

also proved through the Metropolitan Magistrate who

recorded it examined as PW.14. In his chief examination

PW.14 submitted that he was working as Metropolitan

Magistrate, 23rd Court, Esplanade, Mumbai. Then Sorode

(PW.15) was produced before him as per the directions of

the Sessions Court, Mumbai. Sarode was produced from

custody in the Central Jail. He stated that when PW.15

was produced before him he asked all police personnel

and other persons to vacate this Court. He confirmed

from the witness that no body connected with this case

was present in the Court and allowed only two constables

on duty in the Court for his safety to be present. When

PW.15 wanted to make the statement voluntarily he had

put certain questions and recorded the answers. The

witness had stated that he wanted to make a confessional

statement. He had on the first day sent PW.15 back to

custody with a direction that he be produced again on

25.11.2002. On 25.11.2002 he again asked PW.15

whether he wanted to make a confession and he stated

that he wanted to make a confession voluntarily. He also

ascertained that PW.15 had not been ill-treated while in

custody. PW.15 had told him that he was repenting for

the act done by him and that had induced him to make a

confessional statement and to reveal the truth and to help

the law. PW.14 had given PW.15 further 24 hours to

rethink on his wanting to make a confession and had

directed that he be produced before him on 26.11.2002

but PW.15 was produced before him on 28.11.2002 due to

some administrative reason. After ascertaining that the

confession was being made freely and on his own volition

by PW.15, he recorded the confessional statement. He

recorded it after ensuring that no one interested in the

case was present in court. After the completion of the

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recording of the confessional statement, he obtained the

signature of PW.15 in the recorded statement. He also

countersigned it. He, thereafter, endorsed that the

statement was recorded in his presence and it was a full

and true account of what PW.15 had stated. Before he

made the confession he had issued a warning to PW.15

that he was not bound to make any confession but if he

made one, the same would be used as evidence against

him. He also certified the grounds on which he believed

that the confession was genuine and recorded the

precautions taken by him while recording the confessional

statement. He put the confessional statement in a sealed

cover and submitted the same on 28.11.2002 to the

Registrar, City Sessions Court, Greater Mumbai in

compliance with the order of the Sessions Judge, Greater

Mumbai. In his cross-examination, at the instance of

respondent no.3, he reiterated that PW.15 was brought

before him on two or three occasions before he recorded

the confession. He had recorded the entire confession in

the open Court. The doors were all kept open. PW.15 was

making the statement in the form of narrative and the

confessional statement was dictated by PW.14 to the

Typist. He interrupted PW.15 only when he found that

PW.15 was mentioning something that was unnecessary

or was getting unnecessarily verbose or irrelevant. There

was no mention of these interjections in the confessional

statement recorded by him. The basis for deciding that a

particular statement was irrelevant was whether he

travelled beyond the scope of MPSC case. The facts of the

MPSC case were mentioned in the letter that was given to

him by the prosecution. That letter was handed over to

him about four days before the recording of the

confessional statement. He had asked the questions in

Marathi and not in English. He had translated the

statement into English. He was also a Maharashtrian and

his mother tongue was Marathi. PW.15 was fluently

talking in Marathi. He was conversant with the provisions

of Criminal Manual. It was true that there was a provision

in the Manual that as far as possible such statement

should be recorded in the language of the accused and if it

was not practical then in the language of the Court in

English. He became aware of the contents of the

confessional statement since he had dictated it and read it

over to PW.15. There were two parts in the confession,

namely, relating to some of the accused in the first part

and relating to the respondent in the second part. In the

first part there was a reference to the main conspiracy and

also a reference to his own participation in the said

conspiracy. Going through the second part that pertains

to the respondent he could say that PW.15 did not

mention that he agreed with the proposal of the

respondent. It appears that as far as the respondent was

concerned according to PW.15, either he declined the

proposal of the respondent or he was just a listener

thereof. He agreed that it would have been better to have

recorded the confessional statement in Marathi. He came

to know through a police officer, sometime in January

2006, that he had to file an affidavit before this Court.

The officer concerned was ACP Poojari. He did not sign

the affidavit on the same day that the ACP visited him.

First of all he addressed a communication to the Chief

Metropolitan Magistrate informing him that he had been

asked to submit the affidavit he had submitted in this

Court as per a letter of the Secretary of the Commission.

The Chief Metropolitan Magistrate had written to the

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Secretary of the Commission that being a judicial officer,

PW.14 was not supposed to file such an affidavit. But he

was informed that filing of the affidavit was necessitated

as per the directions of this Court. It was only thereafter

he signed the affidavit in chief examination. He had told

the officer concerned that he had only recorded the

confessional statement of PW.15 and that his affidavit

should remain restricted only to the statement of those

facts. He had indicated what should be the contents of

the affidavit and thereafter it was drafted and shown to

him. The officer had brought it to him, he had read it and

signed it. He had told the officer that he had nothing to

do with the respondent and his affidavit should be

restricted only to the recording of the confessional

statement of PW.15.

25. Going by the procedure set down by this Court

in the decisions referred to earlier, the admissibility and

relevance of a piece of evidence has to be decided by this

Court. In that context an argument was raised by learned

counsel for the third respondent that Ext.53, the

confessional statement was not admissible in evidence. It

was alleged to be that of a co-conspirator and it did not

relate to and under Section 10 of the Evidence Act it could

not be admitted as evidence since it was a statement made

by one conspirator in the absence of the other with

reference to past acts done in the actual course of carrying

out the conspiracy after it had been completed. Relying

on the decision in Mirza Akbar vs. King Emperor (AIR

1940 PC 176) counsel submitted that things said, done or

written while the conspiracy was on foot are relevant as

evidence of the common intention, once reasonable

ground has been shown to believe in its existence. But it

would be a very different matter to hold that any narrative

or statement or confession made to a third party after the

common intention or conspiracy was no longer operating

and had ceased to exist as admissible against the other

party. There is then no common intention of the

conspirators to which the statement can have reference.

26. He also referred to the decision of this Court in

Jayendra Saraswathi Swamigal vs. State of Tamil Nadu

(2005 (2) SCC 13) wherein it was held that only if prima

facie evidence of existence of conspiracy is given and

accepted, evidence of acts and statement made by one of

the conspirators in furtherance of the common object

would be admissible. He pointed out that in that case

statement of alleged co-conspirators was sought to be

used to implicate the appellant-accused and it was held

that having been recorded long after the event when the

conspiracy had culminated, that was not admissible.

27. We do not think that it is necessary for us to

rule finally on this question since that would be a matter

for consideration by the appropriate criminal court

wherein respondent No.3 has also been prosecuted. In the

proceedings before us we have the evidence of PW 15 who

allegedly made the confession Ext.53 and the evidence of

PW15 before us is sought to be corroborated with

reference to a prior statement or confessional statement

made by him before PW 14. The recording of the

statement has been proved before us by examining PW 14.

It is really a case of appreciating the evidence of PW 15

before us in the light of all the circumstances disclosed,

including the making of a previous statement by him

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which according to the Commission corroborates or

supports his present evidence. Though Ext.53 may or

may not be used as evidence of conspiracy in terms of

Section 10 of the Evidence Act, we think that the same

can be used as a corroborative piece of evidence being a

previous statement made by PW 15. We are, therefore, of

the view that Ext.53 cannot be totally discarded while

considering whether respondent No.3 has been guilty of

misbehaviour in this inquiry under Article 317 of the

Constitution. For the purpose of deciding the question

whether respondent No.3 is guilty of misbehaviour, it may

not be necessary to establish the existence of a conspiracy

when we consider the charges that have been framed and

charge No.1 which is the subject matter of this discussion.

We are more concerned with the acceptability of the

evidence of PW 15, as to whether respondent No.3 did in

fact introduce him to Nitin Sathe, whether she told him

that the list of 24 given by Nitin Sathe included her own

people and that PW 15 should help them through the

examination, that he must work in coordination with Nitin

Sathe for their mutual benefit and that he should help her

daughter Poorva to qualify.

28. PW 10 Jyoti Shidojirao Desai deposed in her

chief examination that she was a candidate for the MPSC

Examination which was held in 2000. She had passed

the preliminary examination and she had failed in the

main examination. She had given a detailed statement to

the Investigating Officer and the Anti Corruption Bureau,

Mumbai supported by the relevant documents. She had

also made an application before the Chief Justice of the

High Court of Bombay regarding the mal-practices and

corruption in the MPSC examination committed by Nitin

Sathe and respondent No.3. She has stated that Nitin

Sathe had approached her and told her that he could get

her selected in the interview and final selection if she paid

Rs.1 lakh to Rs.3 lakhs as per the preference for the

particular post. He had told her that he had the

necessary contacts. But she did not accept the proposal.

He had come again after two days to her residence and

repeated the offer. He had told her that if she did not

believe him then he would take her to the residence of

respondent No.3, who was staying in Pune and who

looked after all the money matters for the interview and

selection of candidates. He also told her that she could

personally talk to respondent No.3. But according to PW

10 she again refused his proposal. She was disqualified in

the examination due to malpractices/corruption carried

out in the said examination by Nitin Sathe and respondent

No.3 as she refused to pay the amount demanded by Nitin

Sathe on behalf of respondent No.3. After reading the

newspapers reporting the MPSC scam she personally

approached the High Court and filed an application

addressed to Hon'ble the Chief Justice praying for an

enquiry into the scandal. She had also approached the

Anti Corruption Bureau, Mumbai where her statement

was recorded. In her cross examination she reiterated

that she failed in the main examination. She had

thereafter moved the Commission for reassessment. There

was no change in the result. Thereafter as far as that

examination was concerned she had no concern with the

Commission. Then in the year 2000 she offered her

candidature for the post of Class I and Class 2 State

Government Officers. It was called State Civil Services

Examination. She explained that the examination was

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held in three stages, a preliminary, main and the

interview. Qualifying marks for the main examination was

460. She had secured 471 marks. Her marks sheet was

marked as Ext.36. The maximum marks in the interview

were 100. She had secured 471 out of 800, in the written

examination and 33 out of 100 in the interview. She had

received a total of 504 marks. The qualifying marks for

group A were 537 and in group B 516. She was short by

33 marks in the case of group A and by 12 marks in the

case of group B. She stated:

"According to me in June 2001 the results were

out for the main examination of Civil Services. It

was declared in the first week of June 2001. It

is my case that on that very day Nitin Sathe saw

me at the address where I was residing at. It is

my case that 2-3 days thereafter Nitin Sathe met

me again at the same place."

It was brought out that the address she gave

and where she met Nitin Sathe was the address of her

father in Hindustan Antibiotics Colony, Pimpri, Pune. She

could not even approximately state when she started

residing at that address. She got married on 15.5.2002.

Her husband serves at Pune Race Course. She was

residing with him after marriage. It was not true that after

marriage she and her husband were residing at the Pimpri

Address. But in her complaint to the Chief Justice of

Bombay High Court she had given the Pimpri address.

She denied the suggestion that Nitin Sathe never met her

and that is why she is creating a confusion with regard to

the address. The respondent was not in the panel of the

interviewers in the Civil Services examination before which

she appeared. She admitted that she got her final result

at her Rajendera Nagar address on 18.8.2001. She

further stated:

"It is not true that the allegations pertaining to

the Nitin Sathe are the product of the meeting of

myself, Aparna Dubey, Kalpandey and Poojari.

It is not true that Nitin Sathe had never met me

and my case in that behalf is incorrect. It is true

that I had given out the address of Rajendra

Nagar in the 1999 examination also. I now say

that I do not remember if I had given that

address then."

29. PW 12 Valmiki Shivram Ohwal swore in chief

examination that he was working in the Maharashtra

Public Service Commission since 1980 as a peon and in

the year 1996 he was promoted as 'Naik'. He has spoken

about the 1999 Competitive Examination for the

recruitment of Police Sub-Inspector and Sales Tax

Inspector/Asstts. Conducted by MPSC in three stages,

preliminary examination, main examination and physical

test/interview. He continues as a peon/Naik and in the

year 2002 he was attached to respondent No.3, a Member

of the Commission and used to go along with her outside

Mumbai for interviews. At the time of interviews of the

examination 1999 he was at the Circuit House, Pune

along with respondent No.3 and at that time Nitin Sathe

and one Kailas Jadhav used to come at the interview place

i.e. the Circuit House, Pune. In the year 2002 he had

received a call at the office of respondent No.3 from Nitin

Sathe. He told Nitin Sathe that respondent No.3 was busy

in a meeting. Nitin Sathe told him to convey the

information of his phone call to respondent No.3 as and

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when she became free from the meeting. In his cross

examination he stated that he continued in the service of

the Commission even now. He was attached to the

establishment section of the Commission. This statement

was recorded by ACP only once and that was in the year

2004. It was taken on 19.1.2004. His statement was

recorded after the present reference was made to this

Court. He could not speak in English. He gave his

statement in Marathi and it was recorded in English. He

asserted "it did so happen that I received a telephone call

to the fact that I should inform Madam that the caller had

called up. I cannot remember the date, day, time and the

year but the said telephone call was received." Every

member of the Commission had a cabin. He would open

the cabin in the morning and close it in the evening. The

dusting and sweeping was done at about 8.30 am by

Hamals and for that purpose they would take the key from

the security guards. He would report for work between

9.15 am and 9.30 am. The members of the Commission

report for work at about 10.30 am and they remain there

till 4.00/4.30 pm. Family of the respondent was based at

Pune. She would visit Pune during week end and

holidays. The respondent would leave for Pune in the

evening preceding non-working Saturdays and would

return on the morning of Monday. Whenever she came

back from Pune, she would report for work at about

11.00/11.30 am. His affidavit filed in court was prepared

by a clerk in the Commission and it was not prepared as

per the dictate of ACP Pujari.

30 PW 17 Poojari in his chief examination stated

that on the complaint of Seema Dhamdere, Secretary,

Maharashtra Public Service Commission, Mumbai he

registered an FIR on 20.6.2002 vide ACBCR No.33/2002

under Sections 409, 418, 420, 465, 466, 467, 468, 471,

477(a), 380, 381, 457 read with 120(B) of Indian Penal

Code read with 13(1)(d) of Prevention of Corruption Act,

1988 and commenced investigation. He first arrested

Sarode, the Controller of Examinations and subsequently

arrested the others. Till date, 29 persons were arrested.

The investigation is continuing with the permission of the

Special Court, Mumbai. According to him during the

course of the investigation the stages of conspiracy in the

conduct of PSI/STI/Asstt., 1999 examination of MPSC

was revealed as under:

"I. Collecting huge amounts from the

prospective candidates with an assurance of

success in the said MPSC examination

immediately after the advertisement for the said

post (April 2000 onwards).

II. Ensuring by manipulation that all the

students (even those who had failed the

Preliminary examination) appeared for the main

written exam and later qualify through the

interview to be held for recommendation to the

posts (August 2000 onwards).

III. Procuring original blank answer sheets

for the purpose of forging answer sheets to be

subsequently filed in with the correct answers

(29.3.2001 onwards)

IV Offering huge amounts to the employees of

MPSC with the intention to subvert their

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integrity and to include them in the said

conspiracy (On or about May 2001).

V. Obtaining illegally, the keys of the

cupboard where in the answer sheets are kept

(on or about July 2001).

VI. Entering the MPSC Office using

duplicates of the original keys, for the main and

rear doors which were kept at Mantralaya and

then substituting the original answers sheets

with the forged marked answer sheets. (On or

about 21/22 July 2001).

VII. Tampering with the MPSC computers

contining scanned data with original answer

sheets for the said examination which will

facilitate the re-scanning of forged answer sheets

which were to be later replaced with the original.

(On or about 25th July, 2001).

VIII. Ordering a re-scan to be conducted

after a gap of few days from the data of

tampering of computers and replacing the forged

answer sheets. (On or about 27th July, 2001).

IX. Selecting the unmerited candidates on

the basis of increased marks assessed after re-

scanning. Selecting the unmerited candidates

by flouting all rules, under the pretext of

rechecking and calling answer sheets out of

Headquarters i.e. Mumbai Office to Pune (2nd

August, 2001 onwards).

X. Managing Physical test and interview

for final selection (15.10.2001 to 16.3.2002)."

31. He deposed that during the course of the

investigation, at the final stage the statement of

respondent No.3 was recorded in the capacity of a witness.

However, later on, on getting evidence of respondent No.3

having joined the conspiracy, she came to be arrested in

this case on 8.6.2003. He stated that sanction for

prosecution has been accorded. Respondent No.3 was

arrayed as accused No.22. Prior to her arrest, her

residence at Nilambri, Church Gate, Mumbai, was

searched. The search resulted in recovery of confidential

MPSC documents including certain papers relating to a

candidate Kumari Aparna Saheblal Dubey who was also a

witness in this enquiry. A Panchnama had been prepared.

According to him during the course of investigation it was

revealed that respondent No.3 was in regular contact with

the accused persons vide CR No.33/2002 like Nitin Sathe

who was earlier arrested in CR No.27/1996 relating to the

Maharashtra Public Service Commission paper leakage

case. It was also revealed during investigation that

respondent No.3 was in contact with accused persons like

Kalash Pandurang Jadhav, who was conducting classes at

Barshi, Solapur for competitive examinations conducted

by the Maharashtra Public Service Commission.

Respondent No.3 was also found to be in contact with

Kailash Jadhav from her telephone No.2670541 between

27-2-2002 and 22-3-2002. Kailash Pandurang Jadhav

was arrested in the present case on 29.11.2005 and was

presently in judicial custody. He also stated that it was

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noted during investigation of respondent No.3 that she

was in regular contact with Mohammed Chand Mulani,

father of a candidate, Riyaz Mulani. Mohammed Chand

Mulani was an accused in the famous Telgi Stamp Paper

Scam. She was also in contact with candidate Riyaz

Mulani. He has given evidence regarding the confession

made by Sarode and about the fact that the respondent

had met Sarode and had put him in contact with Nitin

Sathe. He stated that the confessional statement of

Sarode was corroborated by the entry made in the visitors

book maintained at the residece of respondent No.3 at

Nilambri Building, Church Gate, Mumbai. The telephone

print out received from service providers had revealed that

respondent No.3 had contacted accused Nitin Sathe from

her office on telephone No.22670541 to his mobile

No.9822484228 eight times between 28.3.2002 and

25.9.2002. She was in contact with Nitin Sathe from her

residential office telephone 2820760 to his same mobile

twenty times between 30.3.2002 to 20.5.2002.

Respondent No.3 was using mobile No.9869066882 and

from it she had contacted Nitin Sathe four times between

18.5.2002 to 27.5.2002 on his mobile number and the

land line No.4362099 at Pune. The statement of Aparna

Dubey who was allegedly threatened by Nitin Sathe at the

instance of respondent No.3 and who later on retracted

the statement by making a fresh application which was

personally accepted by respondent No.3 from her. The

statement of Jyoti Desai who was contacted by accused

Nitin Sathe and was offered success was recorded. The

statement of other candidates recorded during the course

of investigation indicated that Nitin Sathe had collected

huge amounts promising them success. The statement of

Dr. B.S. Solunke, Member, MPSC, the statement of the

peon of respondent No.3, the statement of the husband of

the respondent, Mr. Sanjeev Joshi and the statement of

the sister-in-law Neha Joshi were recorded. He also

deposed that the special court had also taken cognizance

of the offence committed by respondent No.3.

32. In his cross-examination he admitted that in the

first charge-sheet, in the first supplementary charge-sheet

and in the second supplementary charge-sheet, the

respondent was shown as a witness. In the third

supplementary charge-sheet also she was shown as a

witness. But in the charge-sheet filed on 3.9.2003 the

respondent as shown as an accused. Her statement was

recorded on various dates. It was brought out that Nitin

Sathe was arrested on 12.11.2002 and that Sarode was

the first to be arrested on 29.6.2002. He had contacted

Sarode on 25.6.2002 and had again interrogated him on

26.6.2002. Between 26.6.2002 and 29.6.2002 on which

day Sarode was arrested no other statements were

recorded. After Sarode was remanded to judicial custody,

PW.17 had, with the permission of the Court, met Sarode

in Jail. That was on 4.10.2002 and that was regarding

the missing answer sheets of 5 candidates. He was shown

Ext.53, confessional statement and asked whether he was

present at the time the said statement was opened before

the Sessions Judge on 13.12.2002. He stated that he

could not remember whether he was present on that day.

He had questioned the driver of the respondent, but he did

not remember whether had had questioned the maid

servant. He had also made enquiries with the security

guards of the building which contained the respondent's

official residence. He had not shown to any of them the

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photographs of Nitin Sathe or Sarode. He had made

enquiries with regard to the payment of money by the

candidates. He had recorded the statements of more than

2000 candidates in this behalf. He stated that according

to the respondent in her statement of 4.12.2002, Sarode

had seen her at her residence in the last week of April in

connection with the problem concerning his son's

education. It was also her version that she owned a plot

of land at Pune and she wanted to sell it and that she was

trying to sell it through Nitin Sathe, who according to her,

was an estate agent. It was put to him that in an affidavit

filed by the respondent before this Court, there was a

reference to a public interest litigation allegedly at his

instance and also to a private complaint under MCOCA

filed by an accused Avinash Sanas against the witness.

He stated that the allegations were looked into and

rejected as being without substance. He had been serving

the police department for the last 23 years. He denied

that in a private complaint the Special Judge found a

prima facie case against him. He had taken a certified

copy of the order dismissing the complaint. He admitted

that Dr. Kadam had made a complaint against him

alleging harassment. He denied the suggestion that when

Dr. Kadam made a complaint he implicated the wife of Dr.

Kadam also and she is also an accused. He stated that,

however, it was true that the wife of Dr. Kadam was also

an accused. He had made enquiries with regard to the

assets of Dr. Kadam. He admitted that a complaint was

made against him and other police officers by one Mrs.

Manisha Nichad who asserted that the same was also

rejected. In paragraph 4 of his affidavit in chief

examination he had mentioned the stages of the

conspiracy and the period thereof. It was true that

originally there were 22 charges against the respondent

before this Court and that only 4 charges were framed

ultimately. Though the charge with regard to contact of

the respondent with Kailash Jadhav and Mohammed

Chand Mullani had been dropped, they were referred to in

his affidavit to explain the contact of the respondent with

Jadhav and Sathe. According to him charge no.5 covered

the charge pertaining to Poorva, the daughter of the

respondent. He denied the suggestion that these

references were made by him in his affidavit merely to

cause prejudice. He stated that there was sanction both

by the Governor and the President. He denied the

suggestion that he had indulged in arm twisting tactics as

far as the respondent was concerned. He denied the

suggestion that he had falsely implicated her. It was not

true that there was no evidence against the respondent. It

was not true that he had been after the respondent for her

to tender her resignation from the membership of the

Commission. He denied the suggestion that the

confession of Mr. Sarode was inspired by him during his

meeting with him when he would be brought before the

Court and on the pretext of recording his statement on

4.10.2002. He admitted that he had been to the Central

Jail to meet Sarode on 4.10.2002. He denied the

suggestion that he had brain washed Sarode on the

assurance that Sarode would be made an approver. He

denied the suggestion that Sarode made the confessional

statement at his instance. He denied the suggestion that

the various affidavits filed in this case were drafted by

him. There was also a disproportionate assets case

against Sarode, the investigation into which was in

progress. He denied the suggestion that the said case was

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being kept as a sword hanging over the said of Sarode to

ensure that he fell in line.

33. PW.9 Aparna Saheblal Dubey stated in her chief

examination that she had given the statements before the

Anti Corruption Bureau, Mumbai regarding the

malpractices and corruption in the working of MPSC and

concerned Members and Officers which is, commonly

known as MPSC Scam Case. In the year 1999-2000 she

applied for and passed in the District Sport Officers'

Screening Test as also in the Examination for recruitment

of PSI/STI/Assistant. In October, 2000 Nitin Sathe

approached her at her residence and after introducing

himself he enquired about her candidature for the post of

Tahsil Sports Officer. He told her that she had obtained

less marks in the interview and therefore would be

disqualified for the said post. But he offered that he could

get her qualified for the said post if she paid him a sum of

Rs.1 lakh. He also told her that he had got very close

contacts with Controller of Examinations Mr. Sarode and

one of the Members, respondent no.3. The witness had

refused his offer. She was declared to be disqualified in

the examination when the results were announced. At

that time, she recollected the offer of Nitin Sathe which

gave her the idea that there must be some sort of

malpractice/corruption in the MPSC Examinations. On

the basis of that, on 20.4.2002, she and her friend Sandip

Shinde who was also one of the candidates, made a joint

application addressed to the Chairman of MPSC

complaining that some kind of unfair practice had taken

place in the process of the Main Examinations conducted

by MPSC for recruitment Exam 1999. Pursuant to that

complaint, the Secretary to the Commission Mrs. Seema

Dhamdhere by letter dated 22.4.2002 had requested her

to attend the office of the Commission on 7.5.2002 with

the evidence available with her. After she had submitted

the complaint with the MPSC Office on 20.4.2002, Nitin

Sathe came to her and threatened her for making the

application. She and Sandip Shinde also received

threatening calls frequently. Due to this she became

scared and did not go to meet Mrs. Seema Dhamdhere due

to fear. After some days Nitin Sathe again came to her

and asked her to retract the application made by her and

Sandip Shinde on 20.4.2002 to the MPSC. On the threats

and instructions of Nitin Sathe she and Sandip Shinde

again prepared an application to the effect that the

previous complaint made by them dated 20.4.2002 was

false and as directed by Nitin Sathe they made allegations

against Mrs. Seema Dhamdhere, the Secretary to the

Commission in the second application. Thereafter, as per

instructions of Nitin Sathe she and Sandip Shinde met

respondent no.3 on or about 12.6.2002 in her Mumbai

Office and handed over the set of six copies of the said

application which the respondent accepted. The

respondent retained all the copies with her and told them

that she will send those copies to the concerned Members.

After getting messages from Anti-Corruption Bureau, she

had gone to the ACB Office. Her statement was recorded

with reference to the offence committed, her application

dated 20.4.2002 and her second application which was

handed over to the respondent on 12.6.2002 retracting

her earlier application dated 20.4.2002. The second

application for retraction was made at the instance of

Nitin Sathe. After the arrest of the respondent, she was

called to the ACB Office for recording her statement,

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where she identified respondent no.3 as the same person

to whom she had given six copies of her second

application retracting her earlier application dated

20.4.2002. The second application was made as per the

threats and instructions of Nitin Sathe and handed over to

the respondent as directed by Nitin Sathe. It was

personally accepted by the respondent who stated that she

will send those to all Members of the Commission. During

the course of her statement she was shown the papers

relating to the post of Superintendent in which she was a

candidate. The papers were pertaining to her and were

found to be recovered by the police from the residence of

the respondent after the respondent's arrest. This was the

same examination in which Nitin Sathe had demanded

Rs.2,50,000/- from her for getting her qualified for the

said post. At that time Nitin Sathe had offered to take her

to the residence of the respondent. In her cross-

examination she said that while coming from Pune to give

evidence she was put up in the Visawa Government rest

house. The arrangements for the residence of herself,

Jyoti Desai and Kalpandey who also came to Mumbai,

were made by the Commission. They had not gone to the

office of the Commission the previous day. She had

known Jyoti Desai from the year 1996 and Mr. Kalpandey

from 1998. They were all candidates in the 1999

Examinations. She had not gotten through in the

Preliminary Examinations at that time. Jyoti Desai had

got through. Most probably Kalpandey also did not get

through. Ultimately, they were all allowed to take the

Main Examination. In the Main Examination Jyoti Desai

got through though she was not sure if Jyoti got through

or not. She and Kalpandey did not succeed. Her father

was a doctor, agriculturist as well as Civil contractor. She

was originally from Mahur, District Nanded. Mahur was

about 550 to 600 Kilo Meters from Pune. When her

attention was drawn to paragraph 3 of her affidavit in

chief examination and to the allegation that she had

applied for the post of District Sports Officer and had

passed in the Screening Test she said that the contents

were incorrect. The consequential statement in paragraph

5 was also not correct. Her affidavit was prepared by the

Law Officer of the Commission. She did not know his

name. According to her, Nitin Sathe came to her in

October 2000 and that was in Pune and at that time she

was staying in Sadashi Peth hostel. He had come in the

evening, when he met her first, she had no previous

acquaintance with him. He had come to that hostel all

alone. Since men were not permitted inside the girls

hostel, Nitin Sathe met her at the place of the landlord in

a guest room. Nitin Sathe was there for about 30 minutes

or so. When she asked him who he was, he told her that

he was the brother of the respondent. It was suggested to

her that she had not disclosed that aspect in the

statement made by her before the police. In answer she

asserted that it should be there. It was true that her

interview had already been taken place in September 2000

before Nitin Sathe met her. The members who were there

at the time of her interview were Mr. Wani and others.

The respondent was not in that panel. She could not get

to know the marks scored by her in the interview because

they were not communicated to the candidates. It was put

to her that the certificate produced by her was incomplete.

She answered that the certificates produced by some

others also were incomplete but the respondent allowed

other candidates who did not mention the dates but only

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in her case it was not accepted. She could name those

candidates. Great injustice had been done to her. It was

suggested to her that she had produced an incorrect

certificate showing her income. She stated that it was

true that She and Sandip Shinde gave a joint application

to the Commission on 20.4.2002. That application was

referred to in paragraph 5 of her affidavit in chief

examination. It was not true that copies thereof were sent

to high dignitaries, though their names were mentioned in

the application. They had made the complaint application

only to the Chairman of the Commission. Mr. Wani was

the acting Chairman then. It was true that in response to

her complaint a communication was received from the

Secretary of the Commission Mrs. Seema Dhamdhere.

That communication asked her to come to the office of the

Commission at 4.00 p.m. along with the evidence. She

had informed the Commission telephonically that on

account of illness she would not be able to visit their office

on 7.5.2002. It was true that she had made an

application to the Commission in June, 2002 retracting

the complaint of 20.4.2002. The two documents were got

marked Exts.30 and 31. It was suggested to her that in

the subsequent application Ext.31 there was no retraction

of the earlier application, i.e., Ext.30. She denied the

suggestion that her statement that she submitted Ext.31

at the instance of Nitin Sathe was incorrect. She denied

the suggestion that it was not true that Nitin Sathe had

ever met her and offered that he would get her qualified if

she paid him Rs.1 lakh. It was not true that after the

complaint Ext.30 Nitin Sathe never came to her and held

out no threat to her. It was not true that her statement in

Ext.31 was not at the instance of Nitin Sathe. She denied

the suggestion that Nitin Sathe never demanded

Rs.2,50,000/- from her and never promised to take her to

the respondent's residence. It was put to her that there

was no question of Nitin Sathe either meeting her or

calling her on telephone as deposed to by her. In answer

she stated that in January, 2003 Sathe might not have

been in jail. It was not true that he was in Jail from

October 2002 till 2005. The fact of demand of

Rs.2,50,000/- by Nitin Sathe was not mentioned in her

first statement to ACB. It was not true that she was

deposing incorrectly to wreck vengeance against the

respondent. It was not true that her entire deposition was

incorrect and false. It was not true that she did not fall

within the category of non-creamy layer.

34. P.W. 13, Nayana S. Bhide deposed in her chief-

examination that she had in her reply to the letter of the

Anti-Corruption Bureau revealed to the Investigating

Officer that the documents shown to her as detailed in the

Bureau's letter dated 12.6.2003 had not been sent to

Respondent No. 3 by the M.P.S.C. officially and that those

letters could not have been kept in the official residence of

the respondent. Those documents were seized by the

Investigating Officer on the day of arrest of the

respondent. In her cross-examination, she admitted that

she was assisting Mrs. Seema Dhamdhere in her inquiries

initiated at the instance of the Commission into these

affairs. Her statement came to be recorded seven or eight

times during the investigation by the Anti Corruption

Bureau. There was no reference to the respondent in her

statement in the preliminary inquiry by Mrs. Dhamdhere,

who had recorded her statement in the preliminary

inquiry. She could not remember whether the letter

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referred to in the chief-examination by her was sent after

the last of her seven or eight statements came to be

recorded by the ACB. The statements in the chief-

examination related to the documents found in the cabin

and the official residence of the respondent. She admitted

that the gist of her chief-examination was that the

respondent ought not to have kept the official documents

at her residence. She admitted that in respect of the

family members of the members of the Commission who

wanted to compete in the examinations held by the

Commission, a file used to be kept. It was true that the

file pertained to the son of Mr. Solunke the member and

the daughter of the respondent. The roll numbers of both

of them came to be mentioned therein. Both of them were

candidates for the preliminary examination for State Civil

Services for the year 2002. The daughter of the

respondent Purva remained absent from the examination.

The complaint made by Mrs. Dhamdhere, based on which

the investigation was set afoot pertained to the 1999

examinations. She stated that without reference to the

concerned document, she could not say whether the

Circular relating to relatives participating in the

examination was brought to the notice of the respondent.

It was true that there was a file pertaining to the

misbehaviour by Mr. Sarode. She had only heard that it

pertained to a period before the events that gave rise to

the present investigation. A public interest litigation was

filed in the High Court of Bombay seeking the relief that

Mrs. Dhamdhere should not be transferred out of the

Commission. That was one relief sought along with other

reliefs. She admitted that she used to accompany Mrs.

Dhamdhere to the court in connection with that public

interest litigation. She and Mrs. Edwankar were the

observers for scanning of answer-sheets. It did come out

as a result of the preliminary inquiry that there was no

virus and no defect in the computers. But the computers

could not start functioning. She admitted that the main

allegation in the preliminary inquiry was that the answer-

sheets that were placed in the cupboard were removed

and replaced. She denied the suggestion that she was

also a part of the conspiracy. She denied the suggestion

that she was making false allegations for self preservation

and under the threat of Mr. Poojari and Mrs. Dhamdhere.

35. P.W. 3 Vaishali V. Sankhe, in her chief-

examination, deposed that she had acted as a Pancha in

the house search of the respondent in the Nilambari

building. She was in service of the Sales Tax department

since 1979. The search was conducted in the presence of

the respondent and other members of her family. At that

time, the documents, files relating to M.P.S.C. and

M.P.S.C. examinations were found in the house of the

respondent. The same were seized and a panchanama

was drawn in her presence and it was signed by her and

Smt. Nayana Maruti Manyar. She was in a position to

identify the seized documents. In her cross-examination,

she reiterated that she had gone to the place of residence

of the respondent at the time of the search; that there was

no occasion for her to go there again. After signing the

panchnama, she went back home via the office of Mr.

Poojari. She had got written intimation for preparation of

the affidavit in chief-examination. She produced the same

in court and the same was marked as Exhibit 9. The

affidavit was drafted by an officer of the M.P.S.C. She had

signed the same before a Notary and not in the office of

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the Commission. She had no acquaintance with the

Notary. It was true that Sales Tax people regularly go to

the ACB persons for investigation purposes. She denied

the suggestion that she was deposing falsely on account of

her being cordial with ACB people.

36. PW 2 was examined to speak of the search of the

residence of the respondent and the recovery of certain

papers from therein. He was a Panch witness.

PW 4 was another Panch witness to the search

conducted in the office of the respondent. He proved that

Panchnama.

37. P.W. 6 Ashok Shankar Jadhav was also serving

with the Sales Tax department, gave evidence that he had

also signed the panchanama. He spoke about the search

conducted in the office room of the respondent in the

M.P.S.C. office, about the seizure of documents and the

preparation of the panchanama.

38. P.W. 5 Dhanaji Shivaji Nalawade deposed that

he was a member of the Special Cell led by I.O. A.C.P S.B.

Pujari of the Anti Corruption Bureau, Mumbai and during

the course of the investigation, telephone print outs were

obtained from the Maharashtra Pubic Service Commission

and the Service Providers. The print out regarding the

telephone of the respondent was obtained from the Service

Providers and not from the Maharashtra Public Service

Commission. He had scrutinised the print outs. In the

chief-examination, he has given the details about the

number of calls the respondent had made to Nitin Sathe,

to another accused Kailash Jadhav, to Riyaz Mohammed

Mulani. He had stated that he scrutinised the said print

outs received from the Service Providers and on

scrutinising the same he prepared a chart dated

27.6.2003 in which he had mentioned that the respondent

had contacted accused Nitin Sathe from her office

telephone number 2670541 to his mobile 9822404228

eight times between the period 28.3.2002 to 20.5.2002.

Respondent had contacted another accused Kailash

Jadhav from her MPSC office number 2670541 to his

Barshi number 02184-26774 four times between

27.2.2002 to 22.3.2002. The scrutiny also revealed that

the respondent had contacted a candidate Riyaz

Mohammed Mulani on his mobile 9822196408 from her

MPSC telephone six times during the period 28.6.2001 to

5.3.2002. She had also contacted the candidate's father

Mohammed Mulani on his mobile 9823057035 fifty one

times between the period 19.5.2001 to 5.10.2002 from her

MPSC telephone number 2670541. He is a suspect in this

case and also in custody on being arrested in the Telagi

Scam case. He said that the respondent was in contact

with accused Nitin Sathe from her residence telephone

number 2820760 to his mobile number 9822404228

twenty times between the period 30.3.2002 to 20.5.2002.

Respondent was also in contact with accused/suspect

Mohammed Chand Mulani on his mobile 9822057035 and

9822196408 forty nine times between the period

13.12.2001 to 21.12.2001. He said that on 30.6.2003, he

again scrutinised the mobile print out of the respondent

bearing number 9869066882 and found that she had

contacted accused Nitin Sathe four times between the

period 18.5.2002 to 27.5.2002 on mobile number

9822404228 and landline number 4362099 at Pune. She

was also in contact on this mobile with the accused

Mohammed Mulani on his mobile 9822057035 and

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9822196408 between the period 18.2.2002 to 17.10.2002

for twenty two times. He also stated that accused

Mohammed Chand Mulani was named as a suspect in the

present case and he was an accused arrested in the

Telagi's Stamp Scam Case presently being investigated.

He further stated that the telephone contact of the

respondent with the accused and suspects revealed in the

investigation is in respect of the period of conspiracy and

the period of internal enquiry conducted by MPSC. In his

cross-examination, he stated that the statement came to

be recorded during the investigation by the ACP, Poojari

and that statement related to the landline and mobile

telephone numbers of both the residence and the office of

the accused in the ACB case. That was the only subject

covered therein. He was attached to ACB from June 2001

to June 2005. He admitted that he was a member of the

Special Cell headed by Poojari. The investigation into this

matter was conducted by the said Cell. He admitted that

in the original charge-sheet and three supplementary

chargesheets thereafter the respondent was shown as a

witness and not as an accused. It was in the fifth charge-

sheet submitted on 3.9.2003 the respondent came to be

shown as an accused. It was true that his chief-

examination covers two points; one pertained to the

telephone contact between the respondent on the one side

and accused persons Kailash Jadhav, Mulani and Nitin

Sathe on the other. He was not aware whether the

charges against the respondent vis-`-vis Kailash Jadhav

and Mulani had been dropped by this Court. He knew

that before she joined the Commission, the respondent

was serving the Indian Institute of Education at Pune. He

did not know whether she was a joint director there. He

did not know whether there was a labour problem there.

He did not know if at that time Mulani was the ACP

incharge of the police station within which that institution

fell. Nitin Sathe was an estate agent and an owner of a

video parlour at Pune. He did carry out investigation in

respect of Nitin Sathe. He perused his affidavit and stated

that as per the print out, the first telephone contact

between the respondent and Sathe was on 28.3.2003.

39. P.W. 16, Seema Pradeep Dhamdhere, in her

chief-examination stated that she was the Secretary of the

M.P.S.C. from 1.2.2002 till date. She had conducted the

preliminary enquiry regarding the irregularities and

illegalities in the examination 1999 on the basis of the two

applications received in the office of the Commission in

the month of April 2002. In view of an order in that behalf

from the then Chairman Wani, she had started an enquiry

into the complaints alleging malpractices in the

recruitment examination. The two applications were sent

by "Avedh Marg Satya Shodhan Samithi" She had found

in the enquiry about the change of the answer-sheets.

Since the members agreed with her finding, they asked

her to complete the enquiry and put up a formal report.

She prepared a report with her recommendations which

was put up before the Commission on 27.5.2002.

Thereafter, the complaint was lodged. It was not true that

it was the respondent who first pointed out the difference

in the answer-sheets. The respondent only confirmed her

findings in the informal meeting held on 21.5.2002. It

was not true that the respondent had first taken the

decision of debarring 398 candidates. Actually, it was her

recommendation to debar them. Her decision was

confirmed by the Commission. It was the routine office

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procedure to send the file concerned to the Junior Member

of the Commission first and lastly the file goes to the

Chairman. That would not mean that the Junior Member

took the decision first. As a matter of fact, the decision

was taken by the Commission collectively. She had read

the confessional statement of Mr. Sarode and from that

she came to know that Sarode had visited the residence of

the respondent and Nitin Sathe was present at that time.

The respondent had never informed her or the office,

orally or in writing till date, that Sarode, the then

Controller of Examinations had at any time visited her

residence at Nilambari. She had also not informed her or

the office that Sarode had at any time told her that the

case/enquiry into the malpractice in the examination

should not be given to the police for investigation and it

should be conducted as a Departmental action for which

he is ready to resign. If the respondent had informed her

of that fact, she would have undertaken disciplinary

enquiry/action against Sarode. The respondent did not tell

her or the office that her daughter Poorva was going to

appear for the examination conducted by the Commission

in the year 2002. After the respondent as arrested, the

Anti-Corruption Bureau informed the then Acting

Chairman C.D. Singh about the arrest and then the Acting

Chairman recommended to the Governor for taking action

under Article 317 of the Constitution of India. In her

cross-examination, she stated that she used to visit the

Supreme Court after the present proceedings commenced.

Initially, there were 22 charges proposed and a list of 32

witnesses proposed. She was asked questions about the

attempt to replace the answer-sheets and the taking of

keys of the cupboard by Mr.Sarode. She stated that it was

true that as far as non-members were concerned, Sarode

was the only one to have been proceeded against and

prosecuted. No departmental enquiry came to be initiated

against any staff member of the Commission except

Sarode. The present one was the first ever F.I.R. filed by

her. It was true that Sarode made a confessional

statement in November, 2002. She had read it sometime

in December 2002 and the said statement was called for

by the Commission as per the orders of the Acting

Chairman Mr. Varma. She did not remember Sarode

having mentioned in the confessional statement that he

tried to enlisting her support for the conspiracy, but she

would like to peruse the same to confirm as to what

precisely he said. The question of enlist her support for

the conspiracy did not arise. He had not tried to enlist her

support in regard to the replacement of the answer-sheets

and the other aspects relating to the scam. She did not

make any report in writing against Sarode with regard to

the fact of the five answer-sheets. She admitted that

daughter of the respondent Poorva did not actually appear

in the examination of the Commission. She stated that it

was stated in Varma's statement dated 15.2.2003 to the

ACB that Sarode had told the respondent that no further

steps be taken against him and that he was ready to

resign and that this fact was conveyed to him by the

respondent. A communication from Joint Commissioner,

ACB was received by the Commission and the report was

made by Mr. Dhere Joint Commissioner in response to a

Government query with regard to the status of the case

against the respondent. It was there in his report that

Nitin Sathe had denied his presence at the official

residence of the respondent on 25.4.2002 when Sarode

visited the respondent at her residence. She had filed an

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affidavit before this Court on 30.7.2004. She had

mentioned therein 10 stages of this scam and had briefly

mentioned as to what precisely had happened in each of

those stages. She had also indicated there, the beginning

and the culmination thereof. That period was from April

2000 to 16.3.2002. Those details were mentioned in her

affidavit on the basis of the papers of the ACB that were

called by the Commission. That was after the reference

had reached this Court. There was a move to transfer her

out of the Commission and against that a public interest

litigation was filed. Some of the statements in the

preliminary enquiry were recorded by her after the

resolution of 27.5.2002 authorising her to file the F.I.R.

and certain others after the registration of the F.I.R. The

respondent was on leave from 27.5.2002 to 1.6.2002

suffixing and prefixing the 25th and 26th of May and 2nd

June. It was true that the respondent attended the

meeting of 27.5.2002 cutting short her leave. According to

her, this was since the Chairman told her to do so.

40. The evidence of P.W. 1 Ranjana C. Pathak

related to the attempt to rescan the answer sheets. She

stated that the back up was available and she had

submitted an office note that result of the examination

would not be affected because of that. Sarode had then

made a note stating that back-up data might be unreliable

and sought approval for rescanning of the answer-sheets.

The Secretary, Kulkarni had approved the suggestion and

the Chairman S.D. Karnik had approved the

recommendation for rescanning. The respondent and

Wani were on tour and Karnik said that he would inform

them. It was also ordered that the computer should be

kept in the custody of the Secretary. It was seen from the

file that after the respondent returned from her tour, she

did not put any remarks in this record on the file. In her

cross-examination, she admitted that the respondent was

the junior-most member of the Commission. One G.C.

Varma was also a member of the Commission. Mr. Varma

and the respondent were the members of the

Departmental Promotional Committee. The examination

for the post under reference were covered by parts 2 and 3

of the concerned notification. The Chairman Karnik and

Wani were the members of that Committee. It was

specifically provided that the work pertaining to those

examinations should not be given to any other member.

The decision for rescanning came to be taken and it was

signed by the Chairman Dr. Karnik and members

Solunke, Wani and C.D. Singh. The concerned note did

not bear the signature of the respondent. There was

nothing to show that the said report even came to be

marked to the respondent by either the Chairman or any

other functionary of the Commission. She did not know if

the respondent and Mr. Wani were at Aurangabad and Mr.

Singh was at Pune when the rescanning decision was

taken. It was true that Wani and Singh endorsed her note

after they had returned from wherever they had gone in

connection with the Commision work. It was for the office

to take the further follow up action upon her note

regarding rescanning. She had also put her initials just

as the others who had dealt therewith. It was true that

Aparna Dubey had appeared for the examination in the

year 2002 and she was interviewed in 2003. Her certificate

was out-dated. She denied the suggestion that she was

herself a party to the conspiracy and so had managed to

put up the note in such a manner as to save her skin and

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at the same time create occasion for rescanning. She had

not report to the higher ups that Sarode had taken away

from her the keys as just mentioned.

41. P.W. 11, D. Kalpande in the chief-examination

stated that he had given a statement before the Anti-

Corruption Bureau regarding the malpractices in the

concerned examination. He had met Nitin Sathe and

Sathe told him that to pass in Preliminary Examination he

had to spend Rs.50,000/- and for passing the Main

Examination and final selection, he will have to spend Rs.

3 lakhs. Sathe also told him that he knew officers

working in M.P.S.C. and other big persons who can get the

job done. In the cross-examination, it was brought out

that he had failed in the Preliminary examination. He got

to meet NItin Sathe through one Sanjay Shirke. He had

never made any payment actually to Sathe. It was true

that he could not get through the final examination 1999.

In spite of his request, the Commission did not give him

opportunity of perusing the marks obtained as a result of

the rechecking. He denied the suggestion that he had

never met Nitin Sathe. He also denied the suggestion that

he was giving evidence at the instance of Poojari.

42. P.W. 7, Chander Dev Singh, a retired Acting

Chairman of M.P.S.C. deposed in chief-examination that

he was a member of the Commission between the period

21.9.1999 to 28.9.2003 and was working as the Acting

Chairman from 7.6.2003 till 29.9.2003. He spoke of the

holding of the competitive examination 1999, the internal

enquiry headed by the Secretary of the Commission and

the lodging of a complaint to the Anti-Corruption Bureau

and to the arrest of Dr. Karnik, Wani and Sarode. His

statement also came to be recorded by the Investigating

Officer during the investigation. The Commission was

informed by the Anti-Corruption Bureau on 8.6.2003 by

letter that the respondent was arrested and produced

before the Special Judge on 9.6.2003 and was remanded

to Police custody till 16.6.2003. On being informed of the

arrest of the respondent and of her being held in custody

for more than 48 hours, he in his capacity as the Acting

Chairman of the Commission wrote a letter to the

Governor of Maharashtra recommending action under

Article 317 of the Constitution of India, as it would not

have been in public interest for the respondent to continue

as the Member of the Commission after she was arrested

and remanded to police custody under a strong suspicion

of being involved in a criminal conspiracy relating to the

offence. As per office order dated 5.5.1998, it was

mandatory to inform the Commission if the children of any

officer or staff working in the Commission are appearing

for any examination conducted by the Commission. He

was not aware whether the respondent informed the

Commission about her daughter Poorva having applied for

the State Service 2002 Examination. The Secretary of the

Commission who conducted the enquiry had confirmed

that there were malpractices in the Examination 1999 as

alleged. The Commission had thereupon directed her to

lodge the F.I.R. with the Anti Corruption Bureau. It was

not correct to say that the respondent was the first to

detect the malpractices/change in answer-sheet etc. of the

aforesaid examination. In his cross-examination, it was

brought out that he had accorded sanction to prosecute

Sarode after he gone through the relevant papers and

come to the conclusion that there was sufficient material

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to accord sanction to prosecute Sarode. Sarode was at

that time acting as Controller of Examinations and Deputy

Secretary of the Commission. Each member had an

independent cabin and the members often visited one

another's cabin in the office of the Commission. In the

course of his visit, to the cabin of the respondent he had

used her telephone. It was true that there were two parts

of the conspiracy in question. The first was regarding

permitting all those who failed in the preliminary

examination to take the main examination. The second

was, in spite of the back up being available, the allowing

of rescanning. He was present in the meeting held on

29.11.2000 when the decision to permit those who failed

the preliminary examination to take the main examination

was taken. The other members were the Chairman, Dr.

Karnik, Wani and Varma. It was a unanimous decision.

The Chairman had brought to their notice that there were

certain mistakes in the question papers of the preliminary

examination and also indicated the precedent of 1991

when re-examination was held for all the candidates. He

had not raised any objection regarding the unsigned note

that was circulated regarding the 1991 re-examination.

He had also not asked for the papers recording that

decision for perusal. There were 27 mistakes in the

preliminary examination paper. He could not say if there

were in all 150 questions in that paper. But from the

minutes, it would appear that there would be 150

questions. This was the only occasion in his tenure of

four years as a member that even those candidates who

failed in the preliminary examination were permitted to

take the main examination. This statement was recorded

by the Anti-Corruption Bureau during investigation on

three occasions. He was asked about the demonstration,

the public interest litigation and the order of preliminary

enquiry in his cross-examination. Mrs. Damdhere had

submitted a preliminary report of her inquiry on

21.5.2002 and submitted her final report on 27.5.2002.

He was not aware of whether in the year 2000, there was

an attempt to tamper with the computer of the

Commission and to remove the hard disk and whether

about this incident, Mr. Sarode, the Deputy Secretary of

that Section, had ever submitted a report. The matter was

incharge of the examination committee and may be, it

never came up before him again. The Chairman and

normally the senior most member, constituted the

examination committee. The genuine answer-sheets and

the so called bogus answer-sheets were produced by

Damdhere, the Secretary, before the members of the

Commission. Both type of answer-sheets were perused by

the members. The respondent gave her views as the other

members did. He could not say if the views of the

respondent were restricted to the quality of papers of these

answer-sheets. It was possible that the respondent had

made an endorsement on the file relating to 398

candidates that the answer-sheets of not only those who

had passed out but even those who had failed should be

checked. He was the Acting Chairman when the

respondent was arrested. He had written to the Governor

for considering action under Article 317 of the

Constitution of India. While he sent his communication to

the Governor, he annexed two letters received from the

Anti-Corruption Bureau which disclosed the arrest and

detention of the respondent for more than 48 hours in

police custody under C.R. 33/2002. That fact was not

mentioned in his letter itself, but it was there in the

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annexure. According to him a member of the Commission

also was a Government servant because the whole time of

the member is for the Commission and they get pay and

perks from the Commission. It was true that in none of

his three statements to the Anti-Corruption Bureau, he

had mentioned anything about Poorva, the daughter of the

respondent. He had never verified whether Poorva did or

did not appear ever in the examination of the Commission.

It was not true that he had made a reference to Poorva in

his affidavit only at the instance of ACP of the Anti-

Corruption Bureau. He was not involved in the decision

making process regarding rescanning. He agreed with the

passage in his statement earlier recorded by the Anti-

Corruption Bureau on 17.7.2002. He was admitted in the

hospital in December 2002, but he could not remember

the date. He admitted that he did not know the result of

the enquiry held by Sarode with regard to the tampering of

the computer. He denied the suggestion that the Anti-

Corruption Bureau threatened him that unless he toed

their line he would himself be implicated as an accused

and therefore he agreed to become a witness. He denied

the suggestion that he wrote to the governor on 16.3.2003

without any resolution of the Commission and without

any material because he was himself involved in the scam.

43. P.W. 8 Solunke, who also joined the Commission

as a member on the same day as the respondent joined it,

in his chief-examination, stated about the internal enquiry

conducted by Seema Dhamdhere, the registration of the

First Information Report, the arrest of the respondent and

her remand to judicial custody and his view that it would

not have been in public interest for the respondent to be

continued as a member of the Commission. He stated

that he was residing in the same building Nilambari and

he was residing in the third floor. He stated that the

respondent had not informed him about the visit of Sarode

to her flat. There was a visitors book maintained in the

building by the Security Guard, but it was not made

mandatory for everyone to make an entry therein.

Sometimes, even the visitors entered the building along

with the residents. The Investigating Officer during the

course of investigation had called for the telephone details

of Dr. Karnik, the Chairman, Wani and of himself and of

the respondent. The information relating to himself, Dr.

Karnik, Wani and Sarode was sent to the Investigating

Officer by the then Acting Chairman G.C. Varma. But the

information relating to the respondent was withheld. It

was later revealed that the telephone printout relating to

the respondent was not sent as that would have revealed

her contact with the arrested accused Nitin Sathe and

Kailash Jadhav. His son had appeared in an examination

conducted by the Commission and he had informed the

Commission that his son was appearing. The respondent

never informed the Commission that her daughter Poorva

had applied for appearing in the Examination 2002. It

was mandatory to inform such a fact to the Commission.

The respondent had never informed him that Aparna

Dube had met her in her office in the Commission and

had given her an application retracting her earlier

application complaining about the malpractices committed

in the examination. While he was functioning as a

member of the Commission, the respondent never

informed him or the Commission that she was intending

to sell a property in Pune and hence, she was in contact

with Nitin Sathe who was an arrested accused in the case

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and who was also an accused in an earlier case relating to

the Public Service Commission Examination of 1996. In

his cross-examination, the attempt was to show that if a

reference was to be made against the respondent under

Article 317 (1) of the Constitution of India in respect of her

alleged misbehaviour, there existed an equally strong case

against the witness who was also a member, for making a

reference under Article 317 of the Constitution of India. It

was brought out that he had no personal knowledge about

the conduct of the respondent. It was also brought out

that he had joined the Public Service Commission before

the respondent even without resigning his position as

Principal of an Institution and he had faxed his

resignation and his resignation was accepted

telephonically. It was also brought out that he was a

party to the decision for rescanning the answer-sheets. It

was also brought out that one Prabhakar Jaywant More,

who was the friend of his son had appeared in an

examination conducted by the Commission and in his

application, he had given the residential address of the

witness. The witness stated that he was not aware of that

fact; that he admitted that it was seen that More had given

his address. He agreed that the Circular of 1998

regarding disclosure pertained to the staff and officers of

the Commission, though he asserted that the fact that

Poorva was appearing for the examination should have

been intimated to the Commission by the respondent. He

was not aware whether Poorva actually appeared in the

examination or not. It was then brought out more

disturbingly that one Vezre who was also an accused in

the scam and arrested, had been sent to him by Dr.

Karnik after Karnik had gone to the U.P.S.C. as a member.

He had met with Vezre when Vezre came to call on him at

Nilambari. There was no entry regarding the Vezre visit in

the register because Vezre did not come up to his flat. He

had come down to meet Vezre. That was because he did

not know the background of Vezre. Dr. Karnik had not

told him anything about Vezre's background. He had not

informed to the respondent about his meeting with Vezre

or that Vezre had come to see him. He did not know who

Vezre was, but later came to know that he was an

employee of the Mantralaya. He came to know later that

Vezre was involved in such matters of the Commission.

He admitted that Vezre was an accused in the scam in

question and he was arrested. Vezre had told him that he

had in fact come to help the witness. He told the witness

that he had a message from Karnik that P.W. 8 should

accompany Vezre to a Minister and that Minister would

get P.W. 8 appointed as a Chairman of the Commission.

The witness claimed that he was not interested in the offer

and chided Vezre for his action. It was true that at

present he was next to the Chairman in seniority. His

term would expire on 7.5.2007, but if he got appointed as

the Chairman, he would get another six years. He was not

keen for the post but in case he got it, he would accept it.

He would be happy to do it. He had not informed the

Commission that Vezre had come to him as described by

him above and of the other persons he had seen as being

sent by Dr. Karnik. Vezre had called him back again the

same day two hours after meeting him. He wanted to

know whether he had a change of mind and what he

should report to Karnik. The witness informed him that

his views had not undergone any change; that the witness

himself would inform Karnik accordingly. He accordingly

called up Karnik to inform him. It was true that at the

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time this incident occurred, the Commission was headed

by the Acting Chairman Wani. The reason why he still

called up Karnik was that he did not like such an

incident. He came to know that a similar scam had taken

place in the Commission in 1996 in which four persons,

namely, Patil, Sanas, Kelkar and Vezre were accused. It

was true that in his first statement to the Anti Corruption

Bureau, the Vezre episode was not disclosed by him. He

had been asked by ACP Poojari whether he knew Vezre

and he had told Poojari that he knew Dr. Karnik, Wani

and Sarode and he did not know any other accused. But

before that day, Vezre had already been arrested. It was

true that Poojari had showed the photographs of Vezre to

the witness and asked him if the witness knew him. It

was true that after Poojari confronted the witness with the

photographs, the witness identified Vezre and related the

above incident. It was true that when the bogus answer-

sheets and genuine answer-sheets were brought before the

members, the respondent opined about the quality of the

paper being different from the genuine ones. He did not

know whether Aparna Dubey actually met the respondent

or not. He had not mentioned Aparna Dubey in any of the

four statements made by him during the investigation. He

was never an estate agent. He was not an expert in

property matters. People did not consult him about such

matters. Before he made his last statement to the Anti-

Corruption Bureau, he was given for reading the

confessional statement of Sarode. Then questions were

put him about 398 candidates against whom action was

taken. It was put to him that he was himself a part of the

conspiracy and that he had signed the rescanning file. He

denied it. He denied that it was in that connection that

Dr. Karnik had sent Vezre with the proposal put forward

by Vezre. He denied that he was in regular contact with

Vezre. He denied that he was all along worried that the

respondent might become the Chairperson.

44. The respondent, in her evidence, made a

strenuous attempt to say that her frequent contacting of

Nitin Sathe over the telephone was in connection with the

sale of her property in Pune and on the footing that Nitin

Sathe was a broker dealing in real estate. Her evidence

that she had gone to the Talathi (Lowest Revenue Office)

in Pune a number of times after the death of her mother

for getting the records changed to her name and someone

there suggested the name of Sathe as the person who

would help her to sell the property, reads rather thin in

the circumstances of the case and on a reading of her

evidence as a whole in the light of her pleadings. It is a

case that she was trying to sell a property in Pune over

which there were some restrictions regarding

construction. According to her own showing she had

never met Nitin Sathe earlier, according to her. No one

had introduced Nitin Sathe to her. She could not

remember, who at the Talathi suggested the name of Nitin

Sathe to her. She wants the court to believe that merely

on the suggestion of someone at Talathi who had given her

the phone number of Nitin Sathe, she contacted him and

told him that she had a piece of land to sell. She had

never visited the office of Nitin Sathe, according to her,

and she did not know his office. She could not recollect

the name of any prospective buyer suggested by Nitin

Sathe. She had not entered into any written agreement

with regard to the brokerage payable with Nitin Sathe.

She had only enquired about a buyer and the expected

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price. When she was asked whether she had made any

enquiry about the antecedents of Nitin Sathe, his

credibility, experience and reputation, her answer was

that she was much interested in his position as an Estate

Agent in that area. When the question was persisted in

whether she had discussed with anyone about the

credibility, reliability, etc. of Nitin Sathe, her rather

evasive answer was it was only at the initial stage. When

the question was persisted in, she answered that since

there was no finalisation of any deal, there was hardly any

chance for having assessment of the credibility, reliability

and reputation of Nitin Sathe. It was put to her that her

story that Nitin Sathe was suggested by someone at the

Talathi to her was not stated in any of her affidavits. She

denied the same and stated that whatever she felt was

necessary, she had incorporated in the affidavits.

When it was suggested to her that someone at the Talathi

office naming Mr. Sathe as a person who could help her

was being disclosed by her for the first time in her cross-

examination, she answered that that was because she

was being asked the question for the first time in the

court. She stated that she did not know the names of any

of the candidates out of the 24 candidates referred to in

page number 21 of her affidavit dated 4.10.2004 marked

as Exhibit R-2(a). Out of the 11 candidates mentioned

therein, she had interviewed only 6 and out of the 6

interviewed by her, she had given below average marks to

5 candidates. It was brought out in her cross-examination

that she was acquainted with one Mohan Chand Moolani

who, according to her, was the Inspector of Police within

the jurisdiction of which her prior employer, the Indian

Institute of Education was situated. Therefore, around

1995-96, she came to know him as Inspector of Police of

that police station. There was a charge against Moolani

also but the said charge was dropped by this Court. It

was brought out that Moolani was also involved in the

Telgi scam as an accused. No one from her family had

contacted Nitin Sathe with regard to any property. But

her sister-in-law Neha Joshi, whenever she came to the

house of the respondent at Bombay, used to contact Nitin

Sathe over her telephone. She had not shown the location

of her plot to Nitin Sathe. She had not enquired of any

transaction put through earlier by Nitin Sathe. She had

only asked Nitin Sathe. He did not tell her anything about

any specific transaction. He generally told her that some

properties in that area were sold through him. She had

not made any further enquiry regarding that. She did not

know anything about the name under which Nitin Sathe

carried on his business. She had sold the property on her

own after her being enlarged on bail. When she sold the

property, Nitin Sathe was in jail. The property was sold by

her directly without the assistance of any broker. She had

not informed the Nitin Sathe about the sale of the

property. Since he was in jail, there was no question of

telling him anything. Nitin Sathe used to convey the

information to her over the telephone. She used to read

the daily newspaper 'Sakal'. She did not recollect whether

she had read anything in the newspaper about the 1996

examination scandal relating to M.P.S.C., before she

joined the Commission. It was put to her that in

connection with exam paper leakage scandal of the year

1996 concerning the M.P.S.C., it was published in all

newspapers including Sakal, that Nitin Sathe was the

prime culprit. Her answer was she did not come across

any such news. She was always on tour during that

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period. She did not know whether Nitin Sathe was visiting

the Circuit House, Pune, when the interviews for 1999

examination were going on. She denied the suggestion

that Nitin Sathe used to visit the Circuit House, Pune,

when the interviews were going on. She denied the

suggestion that she knew Nitin Sathe and his criminal

antecedents much before she joined the Commission.

She denied the suggestion that Nitin Sathe was not a real

estate broker and that he was only a person deputed by

her for contacting the candidates and for collecting money

from them for her benefit for doing favours in the

examination. She pointed out that Nalwade P.W. 5, a

Police Officer had also admitted that Nitin Sathe was a

real estate agent. She denied the suggestion that the story

of sale of land through Nitin Sathe put forward by her was

concocted a story put forward as an after thought for the

purpose of giving an explanation to the communications

which had taken place at length between her and Nitin

Sathe. She denied the suggestion that Nitin Sathe was on

visiting terms with her at her residence as well as in the

Circuit House whenever she resided there. She did not

remember the date on which she made the last phone call

to Nitin Sathe. It was put to her that when the sealed

computers of the Commission were opened for

examination, she ceased to have communication with

Nitin Sathe. She answered that she will have to see the

records to answer that question. Nitin Sathe never visited

her residence at any time. She saw Nitin Sathe for the

first time in the court after her arrest. She denied the

suggestion that it was because Nitin Sathe used to

accompany her to her residence, that his name was not

entered in the visitors' book at Nilambari. She did not

know who introduced Nitin Sathe to her sister-in-law

Neha Joshi. She did not know the name of the person

who had given the phone numbers of Nitin Sathe to Neha

Joshi. To a question whether she asked Neha Joshi about

the name of the person who had given her the telephone

number of Nitin Sathe, she answered that it was the

personal matter of Neha Joshi. She did not know the

phone number in which Neha Joshi used to contact Nitin

Sathe. But she knew that whenever Neha Joshi came to

her residence, she used to contact Nitin Sathe through her

telephone. She denied the suggestion that she used to

dial the number of Nitin Sathe and handover the same to

Neha Joshi to speak to Nitin Sathe. She denied the

suggestion that it was she who had introduced Nitin Sathe

to her sister-in-law Neha Joshi and that she supplied the

phone number of Nitin Sathe to Neha Joshi. She denied

the suggestion that there was a meeting at her residence

of herself, Nitin Sathe and Sarode and that at that time,

she had told Sarode that the names of 24 candidates

supplied by Nitin Sathe were her candidates and that

Sarode had to do something to get them passed. She also

denied the suggestion that at the meeting on 25.4.2002,

she had told Sarode to work for Nitin Sathe in future for

mutual benefit. She denied the suggestion that she had

again called Sarode to her house on 1.5.2002 and told

Sarode that Sarode should not divulge the name of Nitin

Sathe in the enquiry. She denied the suggestion that she

had invited Sarode to her house only to introduce Nitin

Sathe and discussed the modality of the conspiracy. She

denied the suggestion that at her instance Nitin Sathe

visited Aparna Dubey and Sandeep Shinde and threatened

and pressurised them to withdraw the complaint they had

made. She denied the suggestion that it was on her

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instructions that Nitin Sathe persuaded Aparna Dubey

and Sandeep Shinde to make allegations against the

Secretary of the Commission. She denied the suggestion

that Nitin Sathe had demanded illegal gratification of

Rs.2,50,000/- from Aparna Dubey on the instructions of

the respondent. She did not know whether her husband

Joshi knew Nitin Sathe or not. She admitted that she

knew Mohd. Moolani and his son Riaz Chand Moolani.

She denied the suggestion that Mohd. Moolani had helped

her for the sale of her plot at Pune. The Chairman of the

Indian Institute of Education had called Mohd. Moolani to

help the Institution and to that extent assisted her in

some legal matters relating to the institution. She could

not remember the number of times Mohd. Moolani visited

her office. It was correct that Riaz Chand Moolani was a

candidate in the examination conducted by the

Commission. However, he never passed in any of the

examinations. She denied that she had any conversation

with Riaz Chand Moolani, but she admitted that she was

having conversation with Mohd. Moolani even prior to her

joining as a member of the Commission. She admitted

that she came to know from the newspapers that Mohd.

Moolani was arrested in connection with the Telgi Stamp

Paper scam. She admitted that P.W. 12 Ohwal was her

peon and that the peon used to stand outside the

interview room. To her knowledge, there was no visitor to

see her during the time of the interviews. She had no

occasion to notice any misbehaviour on the part of the

P.W. 12 Ohwal. It was true that P.W. 12 had accompanied

her to Pune for the interview. It was brought out that she

knew Dr. Karnik earlier even before she joined the

Commission. When she joined the Indian Institute of

Education in the year 1988, Dr. Karnik was a trustee of

that institute. Karnik was thereafter Vice-Chancellor of

Bombay University for five years. Thereafter he joined as

Chairman of the Commission. She denied the suggestion

that it was only after Dr. Karnik took over as Chairman,

the process for appointing her as the member of the

Commission was started. She stated that she was

proposed by Dr. Banu Coyaji, who was a trustee of the

Indian Institute of Education and who was the winner of

Megassesey Award. She stated that no confidential

documents were seized from her house. She pointed out

that the charge in that regard had been dropped by this

Court. She admitted that the Xerox copy of the paper of

Aparna Dubey was seized from her residence. She had

declined to conduct the interview of Aparna Dubey as

Aparna had cheated the Commission. She had informed

the Commission about that. She had kept the Xerox copy

for her protection. She did not remember the approximate

date when Aparna Dubey was interviewed. She pleaded

ignorance that it was her son Ajinkya who had brought

the keys of the cupboard of her office to the police who

wanted to open the cupboard during the search of her

office. She stated that she was asked to sit in one room,

so she did not know what happened in her room. In

answer to the question that it was her son Ajinkya who

had brought the keys to open the cupboard and it was

with those keys that the cupboard was opened, her

answer was that she did not remember. She admitted

that her daughter poorva had applied from two places for

the civil services examination conducted in the year 2002.

There was no bar from applying from two centres.

However, Poorva had not appeared in the examination.

She denied that it was misconduct on her part for not

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having reported to the Commission that her daughter was

to be a candidate for the examination 2002. She took up

the position that the circular issued in that behalf was not

applicable to the members of the Commission, but it was

only applicable to the officers and staff. She denied the

suggestion that Poorva did not appear in the examination

only because Sarode expressed his inability to help her

daughter. She asserted that she had never discussed any

such matter with Sarode. She stated that everyone in the

Commission knew that Sarode was a womanizer. She also

knew it. When she was asked, whether she stopped

Sarode from entering into her house when she was aware

of the character and bad reputation of Sarode, her answer

was she did not invite Sarode to her house. He came to

her house on his own. At that time, she was taking a

bath. Her sweeper opened the door for Sarode. She

admitted that she had not stated in any of her affidavits

that the door was opened by her servant and not by her.

Sarode was there in her house for approximately 10 to 15

minutes. He had visited her residence only once. That

was on 25.4.2002. When the Anti-Corruption Bureau

showed her the visitors book, she found that the entry

with regard to the visit of Sarode was there in the visitors

book. She denied the suggestion that Sarode had visited

her at her house on 1.5.2002. He had visited her only

once at her house on 25.4.2002 and when Sarode visited

her house nobody other than Sarode and herself were

there in the house. She stated that in the last week of

May 2002, Sarode met her in her office and requested her

not to lodge a complaint with the police. Sarode further

stated that Sarode was prepared to resign. She replied to

Sarode that action would be taken against Sarode as per

law. To a question, in what context Sarode had told her

as she had stated just then, her answer was, "He just

came to my chamber and told me like that. Complaints

were being filed again and again by different persons

showing the involvement of Mr. Sarode at that time. The

preliminary enquiry was also ordered before that time (A)."

She stated that she did not know what was in the mind of

Mr. Sarode when Sarode had admitted his guilt. It was

put to her that Sarode had admitted his guilt when he had

requested her not to report the matter to the police. She

could not member the approximate date in the month of

May 2002 on which Sarode visited her office. She had

asked Sarode why he had made the request but she had

directly told Sarode that action would be taken in

accordance with law. To a question whether she informed

the head of the Commission about the request of Sarode,

her answer was that Mr. Varma was heading the

preliminary enquiry, being an ex-Director General of

Police. Therefore she informed Varma orally about the

request of Sarode. She agreed that it was Seema

Dhamdhare who was conducting the preliminary enquiry,

but she stated that Varma was guiding the preliminary

enquiry as per the request of the Chairman. She denied

the suggestion that it was untrue to say that Varma was

guiding the enquiry on the request of the Chairman. To

her knowledge, the case was registered by the Anti-

Corruption Bureau as per the First Information Report

against unknown persons. If Seema Dhamdhere had

made a proper enquiry, the case would have been

registered against some specific persons. Since she had

informed Varma about the request of Sarode, she thought

that that was sufficient and she did not pass on that

information to anybodyelse. She denied the suggestion

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that she had never informed about the visit of Sarode to

her office either to Varma or to any other person. She

asserted that Vezre who was the main culprit in the scam

used to visit P.W. 8 Solunke, as admitted by Solunke in

his cross-examination. But Solunke did not inform any

body of that visit. Sarode had approached Seema

Dhamdhere also, but Seema had also not informed

anybody about it. She denied the suggestion that she had

not passed on the information regarding the suggestion of

Sarode, because she was also a conspirator along with

Sarode, Varma, Nitin Sathe, Dr. Karnik and Wani. She

denied the suggestion that on 12.6.2002 or so, Aparna

Dubey had submitted six copies of one retracted

complaint to her. She asserted that Aparna Dubey never

met her. One copy of the complaint was on her table.

Immediately, she signed it and forwarded the same to the

Chairman. She came to know of the complaints filed by

Aparna Dubey and Sandeep Shinde on 24.2.2002 only

from the charge-sheet. She denied the suggestion that

Aparna Dubey did not accede to her request to pay money

and hence she kept her papers with her. She tried to

assert that other people could also use her telephone kept

in her cabin in the Commission Office and tried to suggest

that they might have contacted Sthe, Moolani, Jadhav etc.

45. It is in the light of above evidence that the

answers to the charges framed have to be found.

46. Charge No. 1

There is evidence to show that on 25.4.2002,

P.W. 15 Sarode visited the respondent at her flat. The

visit is recorded in the visitors' book kept at Nilambari, the

building in which the flat is situate. The respondent has

also admitted this visit. It is the charge that at this

meeting, Nitin Sathe, a person who was involved in the

1996 examination scam and who was also arrested in

connection with the 1999 examination scam was also

present. The presence of Nitin Sathe is sought to be

proved by the evidence of P.W. 15 Sarode, supported by

his previous statement, Exhibit 53, the confession made

before P.W. 14 and also by way of inference from the

number of telephone calls the respondent had made to

Nitin Sathe from her residential telephone, office telephone

and her mobile phone. The respondent has admitted that

she had contacted Nitin Sathe on a few occasions, but she

has pretended ignorance of the fact that Nitin Sathe was

an accused in the 1996 examination scam of M.P.S.C. and

that the said fact was carried by various newspapers.

Though the respondent admitted that she read a

newspaper regularly, she took the stand that she did not

remember having read about Nitin Sathe and his

involvement in the 1996 scam. The number of phone calls

made by her to Nitin Sathe during the relevant time is

sought to be justified by the respondent by stating that

Nitin Sathe was a land broker; that she and her mother

jointly purchased a plot in Pune, which she wanted to sell

after the death of her mother and that she had contacted

Nitin Sathe for the purpose of helping her to sell that plot

of land. According to her, nobody introduced Nitin Sathe

to her, but someone at the Talathi, to which she was

regularly going after the death of her mother for getting

the land records changed, had told her about Nitin Sathe

and given her his phone number. She could not

remember the person who suggested Nitin Sathe to her.

The respondent is an educated person. She had held a

responsible position in the Indian Institute of Education

from where she had come to the Public Service

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Commission as a Member. It is difficult to believe her

story that she had no occasion to verify the antecedents of

Nitin Sathe before getting in touch with him for the

purpose of the sale of her plot of land, and that she had

simply contacted him on the basis of some unknown at

the Talathi telling her about him and giving her his

telephone number. Going through her evidence which we

have summarised earlier, it is not possible to believe her

story that she was not aware of the antecedents of Nitin

Sathe and that she was trying to get her plot of land sold

through him without even having met him once and even

without having gone to his office at any time or even

without giving him at least the copies of the documents of

title or sketch of the property to be sold. After all, in the

normal course, a person takes care to ensure that the

person she seeks the help of for selling an item of property

is a reliable person and has a good record as a broker

before entrusting such a person with the task of finding

out a purchaser for his or her own property. It is difficult

to imagine that the respondent did not act as a prudent

person in this matter. She relied upon the evidence of

P.W. 5 to show that Nitin Sathe was an estate broker.

P.W. 5 has stated in cross-examination that Nitin Sathe

was an estate agent. From that alone we cannot infer that

his activities were confined only to land broking. The

evidence indicates that he was involved in other activities,

particularly relating to the qualifying examination

conducted by M.P.S.C. On the basis of the evidence read

as a whole and in the circumstances, we have no

hesitation in discountenancing the version of the

respondent that she was not aware of the antecedents of

Nitin Sathe and that she had never met him even though

she had entrusted him with the task of finding out a

purchaser for her property in Pune. The fact that she was

also contacting dubious characters who were subject to

prosecution like Moolani (a large number of times) and

Jadhav who was running a coaching institute for M.P.S.C.

Examinations also suggests that her innocent version

about contacting Nitin Sathe cannot be accepted. It is

also difficult to imagine that as a woman of the world, who

had held a responsible position, she was not aware of the

antecedents of Nitin Sathe and his involvement in the

1996 examination scam especially after she had become a

member of the Commission in the year 2001.

47. There is also the evidence of P.W. 9 Aparna

Dubey that she was approached by Nitin Sathe who

claimed that he was close to the respondent, that he had

threatened and coerced her to retract a complaint she had

made regarding the conduct of the 1999 examination and

the threat had been held out to her and her friend by Nitin

Sathe presumably at the instance of the respondent. The

attempt in the cross-examination was to show that Aparna

Dubey was an unreliable person by suggesting that she

had produced an inaccurate creamy layer certificate

which was also outdated and, that she had also produced

an experience certificate which was obtained from her

father and it was a false one. Some attempt was also

made to show the confusion about the address at which

she was residing. All the same, the fact remains that

Aparna Dubey originally made a complaint and then gave

a second statement to the Commission, in essence

withdrawing her earlier complaint which was one of the

items that triggered an internal enquiry conducted by the

Secretary to the Commission, Seema Dhamdhere and a

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copy of the second representation with the seal of the

Commission was found in the residential premises of the

respondent and it was recovered from her residence on a

search.

48. There is also the evidence of P.W. 10 Jyoti Desai

that Nitin Sathe had asked for money to get her selected

in the examination and Nitin Sathe had claimed that he

had the necessary contacts in the Commission. She has

deposed that Nitin Sathe had approached her and told her

that he could get her selected in the interview and final

selection if she paid Rs.1,00,000/- to Rs.3,00,000/- as per

the preference for the particular post. He had told her

that he had a necessary contacts and that if she did not

believe him he would take her to the residence of

respondent No. 3 who was at that time staying in Pune

and who according to him looked after the money matters

for the interview and selection of candidates. He also told

her that she could personally talk to respondent No. 3. Of

course, it is the evidence of P.W. 10 that she refused the

proposal since she refused to pay the amount demanded

by Nitin Sathe on behalf of the respondent. On reading

about the scam in the newspaper she had approached the

High Court with an application addressed to the Chief

Justice of the High court, she had also approached the

Anti-Corruption Bureau where her statement was

recorded. In her cross-examination, it had brought out

that she had not secured the qualifying marks in the

examination. The difference in her address was

emphasized and it was suggested that she could not have

met Nitin Sathe. She denied that she was in link with

Aparna Dubey and one Kalpande and the Investigating

Officer Poojari, P.W.17 in trying to incriminate respondent

No. 3.

49. P.W. 12 Ohwal, a Peon in the office of the

Commission who was promoted as a Naik was admittedly

attached to the respondent as a Peon. He had

accompanied her to Pune and to other centres where she

held the interview. He has given evidence that at the time

of interviews of the 1999 examination when he was at the

circuit house at Pune along with respondent No. 3, Nitin

Sathe and one Kailash Jadhav used to come to the

interview centre. In the year 2002, he had received a call

at the office of respondent No. 3 from Nitin Sathe who

wanted to get in touch with the respondent and he had

told Nitin Sathe that respondent No. 3 was busy in the

meeting. Nitin Sathe had then told him to convey the

information of his phone called to respondent No. 3. In

his cross-examination, it was brought out that he

continued in his position in the service of the Commission.

He was attached to the establishment section. His

statement was recorded by ACP and his statement was

recorded for the purpose of this reference. He re-asserted

that he did receive a telephone call asking him to inform

respondent No. 3 that the caller had called. He could not

remember the date, day, time and the year but he was

sure that such a telephone call was received.

50. P.W. 17 was the investigating officer into the

crime connected with the scandal. The different stages of

the conspiracy were unfolded by him. He admitted that

originally, the respondent was shown as a witness in the

charge sheet and the supplemental charge sheets.

However, later on, getting evidence of the respondent

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having been a part of the conspiracy, she came to be

arrested. Sanction for prosecution had been accorded

both by the Governor and by the President. The

respondent was arrayed as accused No. 22. Her

residential flat was searched prior to her arrest. The

search had resulted in recovery of confidential M.P.S.C.

documents including certain papers relating to a

candidate Aparna Dubey. During the investigation, it was

revealed that respondent No. 3 was in regular contact with

accused persons like Nitin Sathe, who had also been

earlier arrested in connection with the crime relating to

the 1996 scandal. It was also revealed that respondent

No. 3 was in contact with other accused persons like

Kailash Pandurang Jadhav who was conducting classes at

Barshi, Solapur for competitive examinations conducted

by the Commission. It was found that she had contacted

Jadhav from her telephone. Jadhav had been arrested in

connection with the crime. It was also found that the

respondent was in regular contact with Mohd. Chand

Moolani. He was also the father of a candidate Riaz

Moolani. Mohd. Chand Moolani was an accused in the

notorious Telgi Stamp Paper scam. The respondent was

also in contact with the candidate Riaz Moolani. He also

gave evidence about the confession made by Sarode P.W.

15 and spoke about the confessional statement regarding

the involvement of respondent No. 3 being corroborated by

the entry made in the visitors' book maintained at the

residence of respondent No. 3 at Nilambari building. He

also gave evidence that the telephone printout received

from service providers had revealed that respondent No. 3

had contacted Nitin Sathe 8 times between 28.3.2002 to

25.9.2002 from her office phone and 20 times through her

residential phone between 30.3.2002 to 20.5.2002. From

her mobile, she had contacted Nitin Sathe four times

between 18.5.2002 to 27.5.2002. He also spoke about the

recording of the statement of Jyoti Desai and Aparna

Dubey. He had also recorded the statement of others like

that of Solunke P.W. 8 and Ohwal P.W. 12. In his cross-

examination, it was brought out that the respondent was

originally shown as a witness and only later on shown as

an accused. It was suggested to him that he had not

made a proper enquiry with the driver and the

maidservant of the respondent. It was brought out that he

had recorded the statements of more than 2000

candidates in respect of this crime. It was brought out

that there were charges against him on various counts,

but he asserted that no substance was found in any of

them. Though originally, there were 22 charges proposed

to this Court, only four charges had been framed

ultimately. It was attempted to be suggested that his

evidence in this Court was motivated. He denied the

suggestion that the confession Exhibit 53 made by Sarode

was inspired by him. He also denied that the confessional

statement was made by P.W. 15 Sarode at his instance.

The Panch witnesses proved the recovery and some of the

papers from the residence of the respondent and from her

cabin in the Commission office.

51. In respect of the first charge, the question is

whether it has been established that respondent No. 3 had

told P.W. 15 Sarode, the then controller of Examinations

that a list of 24 names supplied by Nitin Sathe were her

own candidates and that Sarode should help them get

selected and further that Sarode should work with Nitin

Sathe in future for the benefit of all concerned. This part

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of the charge really depends upon believing or disbelieving

the evidence P.W. 15 given before us in the light of his

prior statement in the form of a confession recorded by

P.W. 14 and the versions of Jyoti Desai, Aparna Dubey

and Ohwal. As indicated earlier, it is clear that the

respondent was being in constant touch with Nitin Sathe

over the telephone and we have already commented on the

acceptability or otherwise of her version regarding her

coming into the telephonic contact with Nitin Sathe. That

P.W 15 visited the respondent on 24.5.2002 is admitted.

This is also corroborated by the visitors' register kept at

Nilambari. Obviously, what transpired in her flat is

something that is known only to her and P.W. 15 Sarode

and if Nitin Sathe was present there, also to Nitin Sathe.

The evidence of Nitin Sathe is not before us but it is clear

that he has been arrested in connection with the scam

and he was also involved in the previous scam of the year

1996.

52. It is contended on behalf of the respondent that

the prior statement of P.W. 15 Sarode Exhibit 53 is not a

spontaneous one and that the later part in which he seeks

to rope in the respondent was unnatural and does not

appear to be a part of the main confession that was made

by him about the conspiracy as a whole including the

permitting of all failed students in the preliminary

examination to participate in the final examination, the

rescanning, the attempt to replace the answer-sheets and

so on. Obviously, the respondent joined the Commission

only on 8.5.2001 and even before that, the conspiracy

relating to permitting all students to take the final

examination had been enacted. The alleged role of the

respondent started only from the decision to rescan the

answer-sheets on the pretext that the computer had

become corrupted and the subsequent attempt of

replacing the answer-sheets. It is after narrating all these

facts that P.W. 15 has stated in his prior statement that

the respondent had called him to her residential flat and

had introduced Nitin Sathe to him and had told him that

the list sponsored by Nitin Sathe containing 24 names

were her own candidates and further that in future he

should work in conjunction with Nitin Sathe for the

mutual benefit of all concerned. Though it may be part of

a different phase, the fact remains that P.W. 15 has also

stated that he has been called to the office of the

respondent subsequently and had been told not to reveal

the name of Nitin Sathe at the internal enquiry that was

ordered by the Acting Chairman of the Commission and

that was being carried on by the Secretary Seema

Dhamdhere. It is not possible to accept the argument of

learned counsel for respondent No. 3 that the prior

statement should be thrown out lock, stock and barrel for

the purpose of this enquiry. As we have indicated in the

beginning, what we are concerned with is the appreciation

of the evidence of P.W. 15 examined before us in the light

of his cross-examination, the other evidence and in the

light of his prior statement contained in Exhibit 53. So

viewed, it is really a question of believing or disbelieving

the evidence of P.W. 15 given before us. We are not

dealing with a prosecution and in that context the

alleged confession of a co-accused. We are on a fact

finding enquiry based on the evidence before us and the

probabilities of the case.

53. In that context, we must take note of the fact

that PW 15 is himself an accused in the case registered in

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connection with the scam and he is also a self confessed

participant in the goings on in the Commission. In that

situation, it will be appropriate for us to look for some

corroboration of his version before we could enter a

finding that the respondent has, in fact, said that 24

persons mentioned by Nitin Sathe were her own

candidates and that PW 15 should help them to qualify in

the examination. This part of the case is not supported by

the papers allegedly recovered either from her flat or from

her office. There is also no clear evidence of a list of 24

persons. There is no adequate material to show that Nitin

Sathe was in fact present when PW 15 met the respondent

at her flat on 24.5.2002. In this situation we think that

the benefit of doubt must go to the respondent, especially,

when our enquiry is to find out whether she is guilty of

misbehaviour within the meaning of Article 317 of the

Constitution. So in the absence of any other evidence to

corroborate the evidence of PW 15 and his prior statement

Ext.53 we are not inclined to find that charge No.1 is

proved against the respondent.

54. Charge No.2.

This charge is essentially on the footing that the

respondent did not disclose the information to the

Secretary of the Commission, Seema Dhamdhare who was

conducting the internal enquiry about the request of

Sarode to not to make a criminal complaint and in that

event, he was prepared to resign from his post and that

the respondent influenced Aparna Dubey and her friend to

withdraw their complaint made to the Commission and to

file a fresh complaint implicating Seema Dhamdhare in

the racket. The respondent did not disclose to the

Commission that Sarode had made such an offer to her.

She spoke about this in her evidence. She also does not

deny that she did not inform the Chairman or the

Commission as a body about the offer of Sarode. But her

case is that she informed Varma, another member, who

was an ex-Director General of Police.

The Chairman of the Commission had requested Varma to

oversee the enquiry conducted by Seema Dhamdhare.

According to her, she thought that that was sufficient.

There is nothing further to show that Varma was conveyed

this information by the respondent. Therefore, to that

extent, the respondent had not cooperated with the

enquiry. Aparna Dubey has given evidence that Nitin

Sathe had threatened her and compelled her to withdraw

the first complaint made and to make a second complaint

involving Seema Dhamdhare who was making the internal

enquiry. Aparna Dubey further stated that according to

Nitin Sathe, it was at the instance of respondent No.3 that

he had approached her to retract her original complaint.

Nitin Sathe had followed up this request with threats over

the telephone. It is true that other than the statement of

Aparna Dubey there is nothing to show that Nitin Sathe

claimed that he was acting at the behest of the respondent

or that he was acting on her behalf. Of course, her

repeated contacting him over the telephone, does create a

suspicion, a suspicion, that Nitin Sathe might have been

acting on her behalf also. But, we feel that based on

suspicion alone it would not be appropriate to enter a

finding on that aspect. But the fact remains that at least

a copy of the second complaint/statement said to have

been made by Aparna Dubey which she claimed to have

handed over to the respondent in person, was found in the

possession of the respondent. The evidence indicates that

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it was not a document that was communicated to her by

the Commission officially, and consequently, her custody

or possession of that paper should be considered

unauthorised. But all said and done, the only fact that

can be found as causing impediment in the internal

enquiry could be said to be her failure to disclose the

statement of PW 15 Sarode to the enquiry officer and the

suggestion of a complaint being got made against the

investigating officer herself so as to impede the internal

enquiry. On these materials alone we would not like to

enter a finding that the respondent had committed an act

of misbehaviour by interfering with the internal enquiry.

55. Charge No.3

It is admitted that the daughter of the

respondent had applied from two places for appearing in

the examination conducted by the Commission in the year

2002. It is the case of the respondent that her daughter

had not, as a matter of fact, appeared in the examination.

But the question is whether the respondent had an

obligation to inform the Commission that her daughter

was a participant in the examination conducted by the

Commission in her capacity as a Member of the

Commission. The respondent did not deny that she had

not informed the Commission about the candidature of

Poorva, her daughter. She also does not deny that there

was a circular to the effect that all employees and officers

of the Commission should disclose if any of their near

relations were candidates in any examination conducted

by the Commission. Her stand is that since she was

neither an employee nor an officer, but was a member of

the Commission, the circular did not apply to her and she

had no legal obligation to inform the Commission of her

daughter appearing in an examination conducted by the

Commission.

56. The respondent was holding the position of a

member of a constitutional body having a higher status.

It is not possible to appreciate the stand of the respondent

that even while the employees and officers of the

Commission had an obligation to inform the Commission

about the appearance of their near relations in any

examination conducted by the Commission, no such

obligation was attached to a member of the Commission.

May be, a member of the Commission would not qualify as

an employee or as an officer of the Commission, but that

cannot absolve a member from the obligation of disclosing

to the Commission that her daughter was to appear in the

examination conducted by the Commission. Obviously,

the object was to ensure that she did not participate in

that particular selection process lest charges are raised of

partiality in the process of selection. Normally, in such a

situation the member or members are to be kept out of the

particular process. Since, admittedly the daughter of the

respondent had applied for appearing in the examination

2002 from two places and the respondent had failed to

inform the Commission about the participation of her

daughter in such an examination, it has to be held that

she has misconducted herself by not making a disclosure

to the Commission in that regard. The fact that the

daughter later on did not actually appear in the

examination would make no difference.

57. Learned counsel for the respondent argued that

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this charge did not relate to the 1999 examination about

which the reference was being made and hence this

charge cannot survive, especially, in view of the fact that

charge No.3 and 6 originally proposed had been dropped.

Even while dropping those charges this Court had

retained charge No.3 after a consideration of the relevant

aspects on the basis that the charge had relevance to her

conduct as a member of the Commission especially in the

light of what had transpired regarding the 1999

examination. No doubt, it was clarified that this aspect

could be argued at the time the court was to take a final

decision but having considered the circumstances and the

nature of the charges against the respondent we are not

inclined to agree with the learned counsel that this charge

should be kept out of consideration in the present

enquiry. In fact, on an application of mind to all the

relevant aspects it appears that one or two other charges

should also have been framed against the respondent on

the materials available. But then, the Attorney General

had not suggested those charges and we had also not

framed those charges. Therefore, for the moment we do

not say anything more about those charges. Suffice it to

say that this charge has to be found against the

respondent and it has also to be held that her conduct

in not informing the Commission about the making of

applications by her daughter for appearing in the

examination 2002 conducted by the Public Service

Commission amounts to misconduct.

58. Charge No.4

Even while considering charge No.2, the

evidence of Aparna Dubey to the effect that she was made

to withdraw her complaint by Nitin Sathe by holding out

threats to her and that she had to file a second complaint

by handing over the same to the respondent implicating

Seema Dhamdhare, the Secretary to the Commission has

been referred to. An attempt was made to show that

Aparna Dubey was not an honest person and that she and

her friend were acting in concert to defame the

respondent. Aparna Dubey had produced an incorrect

experience certificate and she had not produced an

accurate creamy layer certificate and she was unreliable.

Of course, we have noticed that there is not enough

evidence to show that Nitin Sathe had acted at the behest

of the respondent while he is alleged to have threatened

Aparna Dubey and her friend to withdraw their first

complaint and compelling her to make a second

complaint. But the fact remains that one of the copies of

the complaint was found in the residence of the

respondent when it was searched and according to the

evidence the respondent was not authorised to keep such

a copy of the alleged complaint since it had not been

communicated to her officially. The explanation of the

respondent is that she had found a copy of the complaint

lying on her desk in her office and she had immediately

affixed a seal on it and forwarded it. But that part of the

storey is belied by the fact that at least one copy was

found in her premises when the search was made.

59. It is true that the respondent was in constant

touch with Nitin Sathe. We have already discountenanced

the story that she was contacting Nitin Sathe only in

connection with the sale of her plot in Pune. But even

then, it cannot be said that there is adequate evidence to

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show any collusion with Nitin Sathe as reflected by this

charge. Therefore, though some suspicions are raised

regarding the conduct of the respondent in this court in

the light of her own evidence, it is not possible to say that

the charge, as such, has been made out so as to enable us

to hold that this charge is proved against the respondent.

60. Thus, based on our finding on charge No.3 and

our observations on charge No.2, we are of the view that

the respondent has not behaved in a manner befitting a

member of a constitutional body like the Public Service

Commission and under the circumstances we answer the

reference made by Hon'ble the President of India to us in

the affirmative only as regards charge No.3.

61. The reference is answered as above. The answer

will be duly forwarded to the Hon'ble the President of

India.