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PETITIONER:

YOGINATH D. BAGDE

Vs.

RESPONDENT:

STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 16/09/1999

BENCH:

S.Saghir Ahmad, K.Vankataswami

JUDGMENT:

S. SAGHIR AHMAD, J.

The appellant has approached this Court against the

judgment and order dated 21.6.1996 passed by the Bombay High

Court which had dismissed the Writ Petition by which the

appellant had challenged the order dated 8.11.1993

(20.11.1993) dismissing him from service after the

disciplinary proceedings in which it was found that the

appellant was guilty of the charges framed against him.

The appellant was appointed as Civil Judge, Jr.

Division, on 18.2.1974 and was thereafter promoted as Civil

Judge, Senior Division in August, 1983. He was further

promoted as Addl. District & Sessions Judge in September,

1987.

In June, 1990, while the appellant was posted at

Amravati, two Sessions Trials No. 28 of 1982 and 37 of

1987, in which one Deepak Trimbakrao Deshmukh, on whose

complaint appellant was ultimately dismissed from service,

was involved as an accused. Both the cases related to a

murder in which the appellant had refused long adjournments

on the ground that the matters were old. In July, 1990, the

accused Deepak Trimbakrao Deshmukh filed a transfer petition

before the Nagpur Bench of the Bombay High Court for the

transfer of the case from the appellant's court to some

other court on the ground that one Shri Patil, Advocate, who

was opposed to Deepak Trimbakrao Deshmukh, was very close to

the appellant and, therefore, Deepak Trimbakrao Deshmukh

apprehended that he would not get justice from the

appellant's court. This was registered as Transfer Petition

No. 701 of 1990. On 10th of August, 1990, the accused

Deepak Trimbakrao Deshmukh filed another Transfer Petition

(No. 812 of 1990) on the allegation that his Advocate (Shri

Bapat) had assured him of his acquittal in the case,

provided he would pay Rs.20,000/- to him as his fee. An

interim order was passed in this case by which the

proceedings in the Sessions Trial were stayed. On 18th

September, 1990, however, Deepak Trimbakrao Deshmukh

withdrew both the Transfer Petitions.

Thereafter, Deepak Trimbakrao Deshmukh made a

complaint against the appellant to the High Court as a

result of which the appellant was placed under suspension by

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order dated 22nd April, 1992 which was served upon the

appellant on 27th April, 1992. Thereafter, through letter

dated 22nd May, 1992, a chargesheet along with the statement

of imputations, list of witnesses and list of documents,

proposed to be relied upon against the appellant, were

issued to the appellant. The following two charges were

mentioned in the chargesheet:-

"1. That while you were working as 2nd Additional

Sessions Judge, Wardha, Sessions trial No.28/82 and 37/87

were pending before you in which Deepak Trymbakrao Deshmukh

was an accused. You had a meeting with said accused at the

residence of Dr. Naranje Rashtrabhasha Prachar Samiti Road,

Wardha on 23.11.90 when you assured him of acquittal on

payment of Rs.10,000/- in each case and that you thereby

indulged in corrupt practice amounting to gross misconduct.

2. That on 18.12.1990 at about 8.00 P.M. at the

residence of Dr. Naranje, Rashtrabhasha Prachar Samiti

Road, Wardha, you made a demand of Rs.10,000/- from Shri

Deepak Trymbakrao Deshmukh, resident of Wardha, Taluka Arvi,

District Wardha, as consideration for his acquittal in

Sessions Trial No.37/87 under Section 302 etc. I.P.C. and

that you thereby indulged in corrupt practice amounting to

gross misconduct."

The appellant filed his reply on 18th June, 1992 in

which the charges were denied and it was stated by the

appellant that Deepak Trimbakrao Deshmukh had made a false

complaint against him so that his cases may not be tried by

the appellant. On a consideration of the reply submitted by

the appellant, the Disciplinary Authority, not being

satisfied by the reply, decided to hold a departmental

enquiry against the appellant and, therefore, by its order

dated 3rd August, 1992 appointed Mr. G.B. Asma, Joint

District Judge, Akola, as the Enquiry Officer.

After completion of enquiry, the Enquiry Officer

submitted his report dated 21st December, 1992 to the

Disciplinary Authority. It was held by the Enquiry Officer

that the charges against the appellant were not established

and, therefore, he recommended the reinstatement of the

appellant. The Disciplinary Committee of the High Court

considered the report of the Enquiry Officer and disagreeing

with the findings of the Enquiry Officer held that the

charges against the appellant were proved. The Disciplinary

Committee, therefore, tentatively decided to impose the

penalty of dismissal from service upon the appellant.

Accordingly, the appellant was called upon by a notice to

show cause why the proposed penalty be not imposed upon him.

A copy of the reasons recorded by the Disciplinary Committee

for not agreeing with the findings submitted by the Enquiry

Officer as also a copy of the Enquiry Officer's report were

sent to the appellant who filed his reply to the show-cause

notice. This reply was considered by the Disciplinary

Authority, namely, the High Court which decided to impose

the major penalty of dismissal from service and accordingly

recommended to the Government of Maharashtra that the

appellant be dismissed from service. Acting upon this

recommendation, the Government of Maharashtra, by order

dated 08.11.1993, dismissed the appellant from service.

The order of dismissal was challenged by the appellant

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by means of a Writ Petition, filed under Article 226 of the

Constitution, which was opposed by the High Court on whose

behalf Nilkanth Vishwanath Dabholkar, I/C, Additional

Registrar, High Cout, (Legal) Appellate Side, filed an

affidavit dated 07.06.1996 in opposition. The High Court,

by the impugned judgment dated 21st of June, 1996, dismissed

the Writ Petition and it is in these circumstances that the

present appeal has been filed in this Court by Special

Leave.

Learned counsel appearing on behalf of the appellant

has raised several contentions including that there was no

evidence in support of the charges that the appellant had

demanded Rs.10,000/- in each of the two Sessions Trials

pending in his court from the accused, namely, Deepak

Trimbakrao Deshmukh, for his acquittal and that the Enquiry

Officer was justified in recording the finding that the

charges were not established. It was also contended that

the reasons on the basis of which the Disciplinary Committee

of the High Court disagreed with the findings recorded by

the Enquiry Officer are wholly erroneous and conjectural.

It is contended that on the basis of the evidence on record,

no person could reasonably have come to the conclusion that

the payment of Rs.10,000/-, in each of the two Sessions

Trials to the appellant by Deepak Trimbakrao Deshmukh, was

established. It is also contended that before recording its

reasons for disagreeing with the findings of the Enquiry

Officer and issuing a show-cause notice in which the

punishment of dismissal was proposed, the appellant should

have been given an opportunity of hearing and since this was

not done, the principles of natural justice were violated

with the result that the decision of the Disciplinary

Committee of the High Court stood vitiated and on the basis

of that decision, no recommendation could have been made to

the State Government for dismissing the appellant from

service nor could the State Government, acting on that

recommendation, legally pass the order of dismissal. The

learned counsel also contended that the decision of the

Disciplinary Committee of the High Court was wholly contrary

to the provisions contained in Article 235 of the

Constitution under which the control and supervision over

the subordinate officers of the subordinate judiciary vests

in the High Court. It is contended that though the decision

to hold the disciplinary enquiry could have been taken by

the Disciplinary Committee constituted by the High Court in

pursuance of a Resolution of the Full Court, the decision to

impose the punishment of dismissal could not have been taken

by that Committee as the jurisdiction in that regard vested

in the High Court which means the Full Court comprising of

all the sitting Judges and they alone could have deliberated

upon the matter and taken a decision whether or not the

appellant was liable to be dismissed from service.

It is contended that since the Enquiry Report was

considered only by the Disciplinary Committee which

disagreed with the findings of the Enquiry Officer and came

to its own conclusion that the charges against the appellant

were established and, therefore, he was liable to be

dismissed from service and since the decision of the

Government was based on the recommendation of the

Disciplinary Committee, the order of dismissal ultimately

passed by the State Government on that recommendation cannot

be sustained.

We will first deal with the jurisdiction of the

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Disciplinary Committee, consituted by the High Court, to

consider the report of the Enquiry Officer and take a

decision to impose the punishment of dismissal from service

upon the appellant.

This question has been disposed of by the High Court,

before which it was raised, in the following words:-

"Equally there is no merit in the submission made by

the Petitioner that the decision of the Disciplinary

Committee to impose major penalty of dismissal from service

upon the Petitioner on the charges levelled against the

Petitioner being held proved was required to be rectified by

the Full Court, i.e., all the Judges of this Court. The

challenge of the Petitioner on this ground is no longer res

integra. By the judgment delivered on 23rd June, 1992 by

the Division Bench of this Court in Writ Petition No.5847 of

1991 as also by the judgment delivered on 15th March, 1996

by another Division Bench of this Court in Writ Petition

No.649 of 1996 (R.W.Khan v. State of Maharashtra), similar

challenge as made in the present petition has been

negatived. While examining the question whether the

decision taken is that of the High Court or not in view of

Article 235 of the Constitution of India, the Division Bench

found that there is in the field Resolution dated 2nd May,

1981 passed by the Full Court which lay down the manner and

regulates the procedure for administrative decisions on

several subjects and matters enumerated therein. Based upon

this Resolution of Full Court, the practice evolved in this

court is that from time to time a Disciplinary Committee is

appointed by the Chief Justice which normally consists of

Senior Judges and the decisions and recommendations made by

such Disciplinary Committee are considered as decisions and

recommendations of Full Court, i.e., all the Judges of this

Court. Accordingly, the decision taken by the Disciplinary

Committee of this Court to dismiss the Petitioner from

service is nothing but the decision of the High Court

itself. Hence, it was not necessary to place the said

decision for approval or rectification before the meeting of

all the Judges or Full Court."

The above extract shows that the High Court was of the

opinion that if in a meeting of the Full Court a Resolution

was adopted authorising the Chief Justice to constitute a

Disciplinary Committee and the Committee was authorised to

take a decision with regard to the punishment which would be

inflicted upon a delinquent officer of the subordinate

judiciary, the decision of that Committee would be treated

to be a decision of the Full Court and, therefore, there was

no need to circulate the findings of the Disciplinary

Committee to all the Judges of the High Court or to place

the whole matter before the Full Court.

We may consider the respective contentions on merits.

Article 235 of the Constitution provides as under:

"235. Control over subordinate courts.- The control

over district courts and courts subordinate thereto

including the posting and promotion of, and the grant of

leave to, persons belonging to the judicial service of a

State and holding any post inferior to the post of district

judge shall be vested in the High Court, but nothing in this

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article shall be construed as taking away from any such

person any right of appeal which he may under the law

regulating the conditions of his service or as authorising

the High Court to deal with him otherwise than in accordance

with the conditions of his service prescribed under such

law."

This Article contemplates control of the High Court

over the subordinate courts. Read with Articles 233 and

234, the word "control" used in Article 235 would indicate

that although the Appointing Authority of the District Judge

and officers other than District Judges is the Governor of

the State, the words "control over district courts and

courts subordinate thereto", which are words of wide

connotation, vest in the High Court other facets of service

of those officers, namely, their confirmation on completion

of the period of probation, their postings, transfers and

disciplinary matters including power to recommend major

punishments. Thus, the "control" vested in the High Court

is complete control subject only to the powers of the

Governor in the matter of appointment, initial posting and

promotion to the posts of District Judges. For imposing

major punishment, including the punishment of dismissal,

removal or reduction in rank, the High Court can, in

exercise of its powers under Article 235 of the

Constitution, hold disciplinary proceedings and recommend

the punishment to be imposed on the delinquent to the

Governor who alone would be competent to impose such

punishment having regard to the provisions of Articles 233

and 234.

A controversy had erupted at one time whether the word

"High Court" used in Article 235 would mean all the Judges

sitting together in a Full Court meeting or merely a

Committee of Judges appointed by the Chief Justice; in

other words, whether the Full Court comprising of all the

sitting Judges of the Court can act through a Committee of

Judges for purposes of recommending the major punishment. A

Full Bench of the Allahabad High Court in Batuk Deo Pati

Tripathi vs. State of U.P. & Ors. (Civil Misc. Writ No.

3561 decided on 18.4.1977) took the view that the word "High

Court" used in Article 235 meant the Full Court and not

merely a Committee of Judges appointed by the Chief Justice.

This decision was reversed by a Constitution Bench of this

Court in State of Uttar Pradesh vs. Batuk Deo Pati Tripathi

& Anr. (1978) 2 SCC 102. This Court observed as under :

"Having given our close and anxious consideration to

that question, we regret that we are unable to share the

view of the majority of the High Court Full Bench that by

leaving the decision of the question of the respondent's

compulsory retirement to the Administrative Committee, the

Court had abdicated its constitutional function. According

to the view of the majority, the act of the Court in

allowing the Administrative Committee to decide that

question under Rule 1 of Chapter III of 1952 Rules is an act

of "self- abnegation" and therefore void. This approach

betrays, with respect, a misunderstanding of the object of

Article 235. The ideal which inspired the provision that

the control over District Courts and courts subordinate

thereto shall vest in the High Courts is that those wings of

the judiciary should be independent of the executive.

Tracing the history of that concept, Hidayatullah, J. in

State of West Bengal v. Nripendra Nath Baghchi has

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highlighted the meaning and purpose of Article 235, as

construed by this Court in various decisions, requires that

all matters relating to the subordinate judiciary including

compulsory retirement and disciplinary proceedings but

excluding the imposition of punishments falling within the

scope of Article 311 and the first appointments and

promtions should be dealt with and decided upon by the High

Courts in the exercise of the control vested in them. A

proper understanding and appreciation of this position will

be conducive to a correct assessment of the situation under

examination in the instant case. For, knowing that the

object of Article 235 is to ensure that independence of an

important wing of the judiciary, the inquiry which assumes

relevance is whether the procedure sanctified by the Rules

of the High Court is in any manner calculated to interfere

with or undermine that indpendence. Does that procedure

involve "self-abnegation", by conceding the right of control

to any outside authority? It is pertinent, while we are on

this question, to know the context in which the expression

"self-abnegation" was used by this Court. In Shamsher Singh

v. State of Punjab (supra) the action of the High Court in

asking the state Government to depute the Director of

Vigilance to hold an inquiry against a judicial officer was

deprecated by this Court as an act of self-abnegation. The

High Court abdicated its control over the subordinate

judiciary, which includes the power to hold a disciplinary

inquiry against a defaulting Judge, by surrendering that

power to the executive. That, truly, was an act of

self-abnegation. There is no parallel between what the High

Court did in Shamsher Singh and what has been done in the

instant case. Here, the decision to compulsorily retire the

respondent was taken by the Judges of the High Court itself,

though not by all. If some but not all Judges of the High

Court participate in a decision relating to a matter which

falls within the High Courts' controlling jurisdiction over

subrodinate courts, the High Court does not efface itself by

surrendering its power to an extraneous authority. The

procedure adopted by the High Court under its Rules is

not subversive of the independence of the subordinate

judiciary, which is what Article 235 recognises and seeks to

achieve. The true question then for decision is not the one

by which the majority of the Full Bench felt oppressed but

simply, whether the procedure prescribed by the High Court

Rules is in any other manner inconsistent with the terms of

Article 235 of the Constitution."

It was also argued in that case that since the word

"High Court" meant the entire body of Judges appointed to

the Court, the control over the subordinate judiciary which

was vested by Article 235 in the High Court had to be

exercised by the whole body of Judges and that the High

Court cannot delegate that power or functions to a Judge or

a smaller body of Judges of the Court. This argument was

rejected by the Constitution Bench and it was held that

there was no delegation involved in the process adopted by

the High Court for appointing an Administrative Committee

under the Rules made by the High Court in exercise of its

power under Article 225 of the Constitution and that the

Administrative Committee could recommend imposition of major

penalty which could not be questioned on the ground that

such recommendation was made not by the High Court but by

the Committee of Judges to whom the power could not be

delegated. It was further held that if a "power" was given

to the High Court by the Constitution, the manner in which

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that power would be exercised, could also be laid down by

the High Court.

The Constitution Bench decision still holds the field.

In another decision, namely, Registrar, High Court of

Madras vs. R.Rajiah AIR 1988 SC 1388, the view of the

Constitution Bench was reiterated and it was held that

recommendation for compulsorily retiring a member of the

subordinate judicial service comes within the purview of the

power of control of the High Court under Article 235 of the

Constitution. In this connection, the Court also relied

upon the decisions of this Court in High Court of Punjab &

Haryana vs. State of Haryana (1975) 3 SCR 365; Shamsher

Singh vs. State of Punjab (1975) 1 SCR 814; State of

Haryana vs. Inder Prakash Anand AIR 1976 SC 1841; and

B.Mishra vs. Orissa High Court (1976) 3 SCC 327. The

Court, however, while considering the facts of the case,

observed as under :

"22. In Rajiah's case, a Review Committee consisting

of the three judges was appointed by a resolution of the

High Court. In the meeting of the Review Committee held on

June 25, 1979 to consider the case of the respondent Rajiah,

only two Judges of the High Court were present. The two

Judges came to the conclusion that the respondent, Rajiah

should be compulsorily retired with effect from April 2,

1980. The Division Bench found that the third Judge had no

notice of the meeting held on June 25, 1979, but he agreed

with the view expressed by the two Judges with a slight

modification that the respondent would retire with effect

from March 3, 1980 under rule 56(d) of the Fundamental

Rules. The Division Bench of the High Court took the view

that as all the three Judges had not sat together and

considered the question of compulsory retirement of

respondent Rajiah, and that further, the third Judge having

also modified the decision of the two Judges, namely, that

the respondent would be compulsorily retired with effect

from March 3, 1980, the impugned order of compulsory

retirement of the respondent Rajiah was vitiated. It is

true that the members of the Review Committee should sit

together and consider the question of compulsory retirement,

but simply because one of them did not participate in the

meeting and subsequently agreed with the view expressed by

the other two Judges, it would not vitiate the decision of

the Committee to compulsorily retire the respondent. The

third Judge might be justified in correcting the date with

effect from which the respondent would compulsorily retire,

but that is a very minor issue and would not, in our

opinion, make the decision invalid.

23. In regard to the case of the other respondent,

namely, K. Rajeswaran, the High Court took the view that

the constitution of the Review Committee by the Chief

Justice and not by the Full Court was illegal. We are

unable to accept the view of the High Court. We fail to

understand why the Chief Justice cannot appoint a Review

Committee or an Administrative Committee. But in one

respect the High Court is, in our opinion, correct, namely,

that the decision of the Review Committee should have been

placed before a meeting of the Judges. In the case of the

respondent, Rajeswaran, the decision and recommendation of

the Review Committee was not placed before the Full Court

meeting. Nor is there any material to show that the same

was circulated to the Judges. In that sense, the

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recommendation of the Review Committee was not strictly

legal."

( Emphasis supplied )

Relying upon the extracts underlined above, learned

counsel for the appellant contended that since in the

instant case the matter was not circulated to all the

individual Judges of the High Court nor was their opinion

sought whether the appellant was liable to be dismissed from

service, the recommendation of the High Court as also the

ultimate order of the Governor of Maharashtra are bad in law

and are liable to be quashed. This contention, though

apparently supported by the observations of this Court in

Rajiah's cases (supra), cannot be accpeted as in a latter

decision in High Court of Judicature at Bombay vs.

Shirishkumar Rangarao Patil & Anr. (1997) 6 SCC 339, a

similar plea was rejected as it was found on a consideration

of various resolutions adopted by the Bombay High Court that

the Full Court having itself authorised the Chief Justice to

constitute a Committee of Judges for disciplinary matters,

whatever decision was taken by the Committee was treated to

be a decision of the Full Court. This Court in paragraphs

10 and 11 of the report observed as under :

"10. It would thus be settled law that the control of

the subordinate judiciary under Article 235 is vested in the

High Court. After the appointment of the judicial officers

by the Governor, the power to transfer, maintain discipline

and keep control over them vests in the High Court. The

Chief Justice of the High Court is first among the Judges of

the High Court. The action taken is by the High Court and

not by the Chief Justice in his individual capacity, nor by

the Committee of Judges. For the convenient transaction of

administrative business in the Court, the Full Court of the

Judges of the High Court generally passes a resolution

authorising the Chief Justice to constitute various

committees including the committee to deal with disciplinary

matters pertaining to the subordinate judiciary or the

ministerial staff working therein. Article 235, therefore,

relates to the power of taking a decision by the High Court

against a member of the subordinate judiciary. Such a

decision either to hold an enquiry into the conduct of a

judicial officer, subordinate or higher judiciary, or to

have the enquiry conducted through a District or Additional

District Judge etc. and to consider the report of the

enquiry officer and to take follow-up action and to make

appropriate recommendation to the Disciplinary Committee or

to the Governor, is entirely of the High Court which acts

through the Committee of the Judges authorised by the Full

Court. Once a resolution is passed by the Full Court of the

High Court, there is no further necessity to refer the

matter again to the Full Court while taking such procedural

steps relating to control of the subordinate judiciary.

11. It is true that a resolution came to be passed

authorising the Committee of five Judges to deal with

imposition of punishment on judicial officers. The

question, therefore, is whether it requires the Chief

Justice and the Committee to initiate disciplinary

proceedings. The "delegation of the function of the High

Court in respect of punishment of judicial officers" is an

exception of width and of wide amplitude to cover within its

ambit the power to take a decision by the Committee from the

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stage of initiation of disciplinary procedings, if

necessary, till its logical end, viz. recommendation to the

Government to impose a penalty proposed by the Committee.

The recommendation is by the High Court, the controlling

authority under Article 235 of the Constitution. Therefore,

it is difficult to accept the contention of Shri Batra that

the delegation is only for imposition of punishment on

judicial officers. In fact, the High Court has no power to

impose any punishment by itself. The appointing authority,

viz., the Governor is the competent authority under the

Constitution to impose punishment in accordance with the

rules framed for the purpose. Therefore, the entire gamut

of procedural steps of disciplinary action is by the High

Court which is the controlling authority through the

Committee constituted in that behalf by the Chief Justice of

the High Court."

The case before us is also that of an officer

belonging to the subordinate judicial service of Maharashtra

under the control of the Bombay High Court, and is,

therefore, squarely covered by the above decisions. We need

not look into this question any further. We, therefore,

hold that the recommendation to dismiss the appellant made

by the Bombay High Court to the Governor would not be open

to challenge on the ground that such recommendation was made

by the Disciplinary Committee and not by the Full Court

comprising of all the sitting Judges.

Before leaving this question, we may, however, observe

that constitution of a small committee of few senior Judges,

as, for example, in the instant case in which the

Disciplinary Committee consists of five seniormost Judges,

excludes permanently other Judges. This exclusion militates

against the concept of "wider consultation" which is

inherent in the words "High Court". Many of the Judges,

specially those elevated from judicial service who usually

have a short tenure, would superannuate without even

reaching the "Collegium" of five seniormost Judges. Bound

as we are by the decision of the Constitution Bench, we

leave the matter here as it is with the hope that this

Judge-made law would be reconsidered one day and if found to

be retrograde and against the developing concepts would

undergo an evolutionary change or the Bombay High Court

itself, we may suggest, without intending to encroach upon

the exclusive Constitutional rights of the Chief Justice to

run the High Court, would adopt a new Resolution which would

permit other Judges also to participate in the

decision-making process concerning, at least, the imposition

of major penalties like dismissal or removal, on members of

the subordinate judiciary, as these punishments finally

close their service chapter.

It was next contended by learned counsel for the

appellant that the Disciplinary Committee, which had

disagreed with the findings recorded by the Enquiry Officer

and had held that the charges against the appellant were

proved, had acted in violation of the `principles of natural

justice' inasmuch as it did not give an opportunity of

hearing at the stage when it developed the inclination that

the findings recorded by the Enquiry Officer were not

acceptable and were liable to be reversed. It was further

contended that the findings of the Enquiry Officer, which

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were based essentially on an appreciation of the evidence

recorded by him were considered by the Disciplinary

Committee in the absence of the appellant without any notice

to him and the Disciplinary Authority on a re-appraisal of

the evidence came to the conclusion that the charges against

the appellant were established. The Disciplinary Committee

thus having taken a decision, proceeded thereafter to issue

a notice to the appellant to show cause why he should not be

dismissed from service and a recommendation to that effect

be not made to the Governor. It was also contended that

Disciplinary Committee had already made up its mind and it

was only in respect of the proposed punishment that a notice

was issued to the appellant. Consequently, the appellant,

it is contended, was denied an adequate opportunity of

hearing which should have been afforded to him before taking

a decision that he was guilty of the charges levelled

against him.

Before entering into the merits of this question, we

may point out that the action against the appellant was

taken under the provisions of Maharashtra Civil Services

(Discipline & Appeal Rules), 1979. Part III of the Rules

deals with "penalties and disciplinary authorities".

Penalties are mentioned in Rule 5. Dismissal from service

is one of the major penalties mentioned in Rule 5(1)(ix).

The Disciplinary Authorities are indicated in Rule 6. The

Authority which can institute disciplinary proceedings is

indicated in Rule 7.

Part IV of the Rules deals with procedure for imposing

penalties. Rule 8 prescribes the procedure for imposing

major penalties. The Inquiring Authority, after completing

the inquiry, is required to prepare a report as provided by

Clause 25 of Rule 8 which provides as under :

"(25) After the conclusion of the inquiry, a report

shall be prepared by the inquiring authority. Such report

shall contain ---

(a) the articles of the charge and the statement of

the imputation of misconduct or misbehaviour;

(b) the defence of the Government servant in respect

of each article of charge;

(c) an assessment of the evidence in respect of each

article of charge;

(d) the findings on each article of charge and the

reasons therefor;

(e) recommendation regarding the quantum of

punishment."

The Inquiring Authority is thereafter required to

forward the report as also all other relevant records,

including the report prepared by it under sub-rule (25);

the written statement of defence, if any, submitted by the

Government servant; the oral and documentary evidence

produced in the course of the inquiry; written briefs, if

any, filed by the Presenting Officer or the Government

servant or both during the course of the inquiry and the

orders, if any, made by the Disciplinary Authority and the

Inquiring Authority in regard to the inquiry, to the

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Disciplinary Authority.

What action would be taken on this report and in what

manner will this report be dealt with is indicated in Rule

9. Relevant portions of this Rule are quoted below :

"9. Action on the inquiry report -- (1) The

disciplinary authority, if it is not itself the inquiring

authority may, for reasons to be recorded by it in writing,

remit the case to the inquiring authority for further

inquiry and report, and the inquiring authority shall

thereupon proceed to hold the further inquiry according to

the provisions of rule 8 of these rules as far as may be.

(2) The disciplinary authority shall if it is not the

inquiring authority, consider the record of the inquiry and

record its findings on each charge. If it disagrees with

the findings of the inquiring authority on any article of

charge, it shall record its reasons for such disagreement.

(3) ................................

(4) (i) If the disciplinary authority, having regard

to its findings on all or any of the articles of charge, is

of the opinion that any of the major penalties should be

imposed on the Government servant, it shall--

(a) furnish to the Government servant, a copy of the

report of the inquiry held by it and its findings on each

article of charge, or, where the inquiry has been held by an

inquiring authority appointed by it, a copy of the report of

such authority and a statement of its findings on each

article of charge expressly stating whether or not it agrees

with the findings of the inquiry authority, together with

brief reasons for its disagreement, if any, with the

findings of the inquiring authority; and

(b) give to the Government servant a notice stating

the penalty proposed to be imposed on him and calling upon

him to submit within fifteen days of receipt of the notice

or such further time not exceeding fifteen days, as may be

allowed, such representation as he may wish to make on the

proposed penalty on the basis of the evidence adduced during

the inquiry held under rule 8 of these rules.

(ii) (a) ................................. (b)

.................................

(iii) Where it is not necessary to consult the

Commission, the disciplinary authority shall consider the

representation, if any, made by the Government servant in

pursuance of the notice given to him under clause (i)(b) of

this sub-rule and determine what penalty, if any, should be

imposed on him on the basis of the evidence adduced during

the inquiry held under rule 8 and make such order as it may

deem fit."

In view of the provisions contained in the statutory

Rule extracted above, it is open to the Disciplinary

Authority either to agree with the findings recorded by the

Inquiring Authority or disagree with those findings. If it

does not agree with the findings of the Inquiring Authority,

it may record its own findings. Where the Inquiring

Authority has found the delinquent officer guilty of the

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charges framed against him and the Disciplinary Authority

agrees with those findings, there would arise no difficulty.

So also, if the Inquiring Authority has held the charges

proved, but the Disciplinary Authority disagrees and records

a finding that the charges were not established, there would

arise no difficulty. Difficulties have arisen in all those

cases in which the Inquiring Authority has recorded a

positive finding that the charges were not established and

the delinquent officer was recommended to be exonerated, but

the Disciplinary Authority disagreed with those findings and

recorded its own findings that the charges were established

and the delinquent officer was liable to be punished. This

difficulty relates to the question of giving an opportunity

of hearing to the delinquent officer at that stage. Such an

opportunity may either be provided specifically by the Rules

made under Article 309 of the Constitution or the

Disciplinary Authority may, of its own, provide such an

opportunity. Where the Rules are in this regard silent and

the Disciplinary Authority also does not give an opportunity

of hearing to the delinquent officer and records findings,

different from those of the Inquiring Authority that the

charges were established, "an opportunity of hearing" may

have to be read into the Rule by which the procedure for

dealing with the Inquiring Authority's report is provided

principally because it would be contrary to the principles

of natural justice if a delinquent officer, who has already

been held to be `not guilty' by the Inquiring Authority, is

found `guilty' without being afforded an opportunity of

hearing on the basis of the same evidence and material on

which a finding of "not guilty" has already been recorded.

We have already extracted Rule 9(2) of the Maharashtra

Civil Services (Discipline & Appeal) Rules, 1979 which

enables the Disciplinary Authority to disagree with the

findings of the Inquiring Authority on any article of

charge. The only requirement is that it shall record its

reasoning for such disagreement. The Rule does not

specifically provide that before recording its own findings,

the Disciplinary Authority will give an opportunity of

hearing to a delinquent officer. But the requirement of

"hearing" in consonance with the principles of natural

justice even at that stage has to be read into Rule 9(2) and

it has to be held that before Disciplinary Authority finally

disagrees with the findings of the Inquiring Authority, it

would give an opportunity of hearing to the delinquent

officer so that he may have the opportunity to indicate that

the findings recorded by the Inquiring Authority do not

suffer from any error and that there was no occasion to take

a different view. The Disciplinary Authority, at the same

time, has to communicate to the delinquent officer the

"TENTATIVE" reasons for disagreeing with the findings of the

Inquiring Authority so that the delinquent officer may

further indicate that the reasons on the basis of which the

Disciplinary Authority proposes to disagree with the

findings recorded by the Inquiring Authority are not germane

and the finding of "not guilty" already recorded by the

Inquiring Authority was not liable to be interfered with.

Recently, a three-Judge Bench of this Court in Punjab

National Bank & Ors. vs. Kunj Behari Mishra (1998) 7 SCC

84 = AIR 1998 SC 2713, relying upon the earlier decisions of

this Court in State of Assam vs. Bimal Kumar Pandit (1964)

2 SCR 1 = AIR 1963 SC 1612; Institute of Chartered

Acountants of India vs. L.K. Ratna & Ors. (1986) 4 SCC

537 as also the Constitution Bench decision in Managing

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Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors.

(1993) 4 SCC 727 and the decision in Ram Kishan vs. Union

of India (1995) 6 SCC 157, has held that :

"It will not stand to reason that when the finding in

favour of the delinquent officers is proposed to be

overturned by the disciplinary authority then no opportunity

should be granted. The first stage of the enquiry is not

completed till the disciplinary authority has recorded its

findings. The principles of natural justice would demand

that the authority which proposes to decide against the

delinquent officer must give him a hearing. When the

enquiring officer holds the charges to be proved, then that

report has to be given to the delinquent officer who can

make a representation before the disciplinary authority

takes further action which may be prejudicial to the

delinquent officer. When, like in the present case, the

enquiry report is in favour of the delinquent officer but

the disciplinary authority proposes to differ with such

conclusions, then that authority which is deciding against

the delinquent officer must give him an opportunity of being

heard for otherwise he would be condemned unheard. In

departmental proceedings, what is of ultimate importance is

the finding of the disciplinary authority."

The Court further observed as under :

"When the enquiry is conducted by the enquiry officer,

his report is not final or conclusive and the disciplinary

proceedings do not stand concluded. The disciplinary

proceedings stand concluded with the decision of the

disciplinary authority. It is the disciplinary authority

which can impose the penalty and not the enquiry officer.

Where the disciplinary authority itself holds an enquiry, an

opportunity of hearing has to be granted by him. When the

disciplinary authority differs with the view of the enquiry

officer and proposes to come to a different conclusion,

there is no reason as to why an opportunity of hearing

should not be granted. It will be most unfair and

inequitous that where the charged officers succeed before

the enquiry officer, they are deprived of representing to

the disciplinary authority before that authority differs

with the enquiry officer's report and, while recording a

finding of guilt, imposes punishment on the officer. In our

opinion, in any such situation, the charged officer must

have an opportunity to represent before the disciplinary

authority before final findings on the charges are recorded

and punishment imposed."

The Court further held that the contrary view

expressed by this Court in State Bank of India vs. S.S.

Koshal 1994 Supp.(2) SCC 468 and State of Rajasthan vs.

M.C. Saxena (1998) 3 SCC 385 was not correct.

In view of the above, a delinquent employee has the

right of hearing not only during the enquiry proceedings

conducted by the Enquiry Officer into the charges levelled

against him but also at the stage at which those findings

are considered by the Disciplinary Authority and the latter,

namely, the Disciplinary Authority forms a tenative opinion

that it does not agree with the findings recorded by the

Enquiry Officer. If the findings recorded by the Enquiry

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Officer are in favour of the delinquent and it has been held

that the charges are not proved, it is all the more

necessary to give an opportunity of hearing to the

delinquent employee before reversing those findings. The

formation of opinion should be tentative and not final. It

is at this stage that the delinquent employee should be

given an opportunity of hearing after he is informed of the

reasons on the basis of which the Disciplinary Authority has

proposed to disagree with the findings of the Enquiry

Officer. This is in consonance with the requirement of

Article 311(2) of the Constitution as it provides that a

person shall not be dismissed or removed or reduced in rank

except after an enquiry in which he has been informed of the

charges against him and given a reasonable opportunity of

being heard in respect of those charges. So long as a final

decision is not taken in the matter, the enquiry shall be

deemed to be pending. Mere submission of findings to the

Disciplinary Authority does not bring about the closure of

the enquiry proceedings. The enquiry proceedings would come

to an end only when the findings have been considered by the

Disciplinary Authority and the charges are either held to be

not proved or found to be proved and in that event

punishment is inflicted upon the delinquent. That being so,

the "right to be heard" would be available to the delinquent

up to the final stage. This right being a constitutional

right of the employee cannot be taken away by any

legislative enactment or Service Rule including Rules made

under Article 309 of the Constitution.

Applying the above principles to the facts of this

case, it would be noticed that in the instant case the

District Judge (Enquiry Officer) had recorded the findings

that the charges were not proved. These findings were

submitted to the Disciplinary Committee which disagreed with

those findings and issued a notice to the appellant

requiring him to show-cause why he should not be dismissed

from service. It is true that along with the show-cause

notice, the reasons on the basis of which the Disciplinary

Committee had disagreed with the findings of the District

Judge were communicated to the appellant but the

Disciplinary Committee instead of forming a tentative

opinion had come to a final conclusion that the charges

against the appellant were established. The Disciplinary

Committee, in fact, had acted in accordance with the

statutory provisions contained in Rule 9(4)(i)(a)&(b). He

was called upon to show-cause against the proposed

punishment of dismissal as will be evident from the minutes

of the Disciplinary Committee dated 21st June, 1993 which

provide as under:-

"Decision : Discussed. For the reasons recorded in

Annexure "A" hereto, the Committee disagrees with the

finding of the Enquiry Officer and finds that the charges

levelled against the delinquent Judicial Officer have been

proved. It was, therefore, tentatively decided to impose

upon the Judicial Officer penalty of dismissal from service.

Let notice, therefore, issue to the delinquent Judicial

Officer calling upon him to show cause why penalty of

dismissal from service as prescribed in Rule 5(1)(ix) of the

Maharashtra Civil Services (Discipline and Appeal) Rules,

1979 should not be imposed upon him.

Show cause notice will be accompanied by a copy of the

Report of the Inquiring Authority and the reasons recorded

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by this Committee."

These minutes were recorded after the Disciplinary

Committee had considered the Enquiry Report and differed

with the findings and recorded its final opinion in para 10

of its reasons as under:-

"10. The Disciplinary Committee is of the opinion

that the findings recorded by the Enquiry Officer on both

the charges cannot be sustained. The Committee, after going

through the oral and documentary evidence on record, is of

the opinion that both the charges against the delinquent are

proved. The delinquent is a Judicial Officer who has failed

to maintain the absolute integrity in discharge of his

judicial duties."

Pursuant to the above minutes, a notice dated 24.6.93

was issued to the appellant which after reproducing the

minutes of the Meeting of the Disciplinary Committee

proceeded to say as under:-

"As required by the Disciplinary Committee I issue

this notice calling upon you to show-cause why the penalty

of dismissal from service should not be imposed upon you in

view of the charges held established. Time of 15 days, from

the date of receipt of this notice, is given to you for

submitting your reply, failing which it shall be presumed

that you do not wish to make any representation regarding

the penalty.

A copy of the report of the Enquiry Officer dated

21.12.92 and a copy of Annexure `A' are enclosed herewith

for ready reference.

Yours faithfully, Sd/- Registrar"

Along with the show-cause notice, a copy of the

findings recorded by the Enquiry Officer as also the reasons

recorded by the Disciplinary Committee for disagreeing with

those findings were communicated to the appellant but it was

immaterial as he was required to show-cause only against the

punishment proposed by the Disciplinary Committee which had

already taken a final decision that the charges against the

appellant were proved. It was not indicated to him that the

Disciplinary Committee had come only to a "tentative"

decision and that he could show cause against that too. It

was for this reason that the reply submitted by the

appellant failed to find favour with the Disciplinary

Committee.

Since the Disciplinary Committee did not give any

opportunity of hearing to the appellant before taking a

final decision in the matter relating to findings on the two

charges framed against him, the principles of natural

justice, as laid down by a Three-Judge Bench of this Court

in Punjab National Bank & Ors. vs. Kunj Behari Mishra,

(1998) 7 SCC 84 = AIR 1998 SC 2713, referred to above, were

violated.

Mr. Harish N. Salve, learned Senior Counsel

appearing on behalf of the respondent, has contended that

the disciplinary proceedings come to an end either when the

delinquent is exonerated of the charges or when punishment

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is inflicted upon him on charges being proved. Since in the

instant case, the Disciplinary Committee had given an

opportunity of hearing to the appellant before finally

recommending to the State Government to dismiss him from

service, the principles of natural justice were fully

complied with and that too at a stage earlier than the stage

when the curtain was finally brought down on the

proceedings. He contended that not only the findings

recorded by the Enquiry Officer but the reasons for which

the Disciplinary Committee had not agreed with those

findings, were communicated to the appellant to whom a

notice was also issued to show-cause why he be not dismissed

from service. He further contended that the appellant

submitted a reply in which he attacked the reasons for which

the Disciplinary Committee had decided to disagree with the

findings of the Enquiry Officer and, therefore, in the given

circumstances of this case, it cannot be said that there was

failure or denial of opportunity at any stage.

The contention apparently appears to be sound but a

little attention would reveal that it sounds like the

reverberations from an empty vessel. What is ignored by the

learned counsel is that a final decision with regard to the

charges levelled against the appellant had already been

taken by the Disciplinary Committee without providing any

opportunity of hearing to him. After having taken that

decision, the members of the Disciplinary Committee merely

issued a notice to the appellant to show-cause against the

major punishment of dismissal mentioned in Rule 5 of the

Maharashtra Civil Services (Discipline and Appeal) Rules,

1979. This procedure was contrary to the law laid down by

this Court in the case of Punjab National Bank (supra) in

which it had been categorically provided, following earlier

decisions, that if the Disciplinary Authority does not agree

with the findings of the Enquiry Officer that the charges

are not proved, it has to provide, at that stage, an

opportunity of hearing to the delinquent so that there may

still be some room left for convincing the Disciplinary

Authority that the findings already recorded by the Enquiry

Officer were just and proper. Post-decisional opportunity

of hearing, though available in certain cases, will be of no

avail, at least, in the circumstances of the present case.

The Disciplinary Committee consisted of five

Seniormost Judges of the High Court which also included the

Chief Justice. The Disciplinary Committee took a final

decision that the charges against the appellant were

established and recorded that decision in writing and then

issued a notice requiring him to show cause against the

proposed punishment of dismissal. The findings were final;

what was tentative was the proposal to inflict upon the

appellant the punishment of dismissal from service.

We may now examine the reasons on the basis of which

the Disciplinary Committee has disagreed with the findings

of exoneration recorded by the Enquiry Officer.

There were two charges against the appellant which

related to the demand of bribe for the acquittal of

complainant, Deepak Trimbakrao Deshmukh, in two Sessions

Trials in which the complainant was the accused facing

charge, inter alia, under Section 302 IPC. The appellant

had allegedly demanded a sum of Rs.10,000/- in each case at

the residence of Dr. Naranje, at Rashtra Bhasha Prachar

Samiti Road, Wardha on 23.1.1990, in the first case and

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again on 18.12.1990 at about 8.00 P.M. at Dr. Naranje's

residence in the second case. These charges were sought to

be proved by producing the complainant Deepak Trimbakrao

Deshmukh, his wife Mrs. Sudha Deepak Deshmukh, Mrs.

Madhuri Krishnarao Pradhan (Panch witness of the trap) and

Shri Anand Digambar Deshmukh, Deputy Superintendent of

Police, A.C.B. Nagpur. The appellant in his defence

examined himself and produced Shri Sunil Gopalrao Bapat,

Advocate, Wardha; Shri Arjun Pancham Patil, Advocate,

Wardha; Dr.Sopan Chahadeo Naranje, Medical Practitioner,

Wardha and Shri Manik Tulsiram Tamgadge, Bailiff, Arvi,

District Wardha.

The complainant had also approached the Anti-

Corruption Bureau and informed them of the demand made by

the appellant whereupon the Anti-Corruption Bureau, acting

through Shri Anand Digambar Deshmukh, Deputy Superintendent

of Police, A.C.B. Nagpur, laid a trap against the appellant

but the trap was unsuccessful and failed. The Enquiry

Officer held that this was a false trap laid by Shri Anand

Digambar Deshmukh, Deputy Superintendent of Police, A.C.B.

Nagpur in connivance with the accused without obtaining the

prior permission of the Chief Justice. Although the

complaint made by Deepak Trimbakrao Deshmukh to the Anti-

Corruption Bureau and the laying of trap against the

appellant by them was not part of the charge nor involved as

an issue before the Enquiry Officer, the Department led

evidence in that regard and produced Shri Anand Digambar

Deshmukh, Deputy Superintendent of Police, A.C.B. Nagpur

and the Panch witness Mrs. Madhuri Krishnarao Pradhan,

besides complainant's wife, Mrs. Sudha Deepak Deshmukh who

allegedly wanted to offer the money to the appellant.

The story of demand of Rs.10,000/- in each Session

Trial was denied by the appellant who, as pointed out

earlier, examined himself as also Dr. Naranje at whose

house the demand was allegedly made on both the occasions as

also Mr. Bapat, advocate who allegedly acted as the

go-between. These witnesses denied the whole story. The

trap laid by the Anti-Corruption Bureau had also failed.

Deepak Trimbakrao Deshmukh had specifically alleged

that the demand of Rs.10,000/- in each of the two Sessions

Trials was made by the appellant at the residence of Dr.

Naranje. This was also set out in the Transfer Petition

No.88 of 1991, filed in the High Court, in which it was

stated that the Meeting of 23rd November, 1990 in which the

amount in question was demanded, had taken place in the

house of Dr. Naranje. But in his complaint to the High

Court on 27th November, 1990, the complainant himself stated

that this Meeting took place at the house of the appellant.

This was enough to falsify the whole story and the Enquiry

Officer was justified in rejecting the story of demand in

the background of other facts set out above. Complainant's

wife Mrs. Sudha Deepak Deshmukh who was allegedly present

at the house of Dr. Naranje was found by the Enquiry

Officer to be unsuccessful in describing the position of the

main entrance of Dr. Naranje's house apart from other

discrepancies but the Disciplinary Committee rejected the

infirmity found by the Enquiry Officer on the ground that

the Enquiry Officer had applied the standard of proof of a

criminal case to the disciplinary proceedings.

We fail to appreciate the approach of the Disciplinary

Committee which has gone by surmises and conjectures rather

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than by the evidence on record. The statement of Dr.

Naranje and that of Mr. Bapat, advocate have not been taken

into consideration by the Disciplinary Committee and it has

relied upon the statement of complainant alone to come to

the conclusion that Mr. Bapat, advocate had assured

acquittal provided the complainant withdrew his Transfer

Petitions.

The High Court has overlooked another important aspect

of the case which is to the effect that Sessions Trial Nos.

28 of 1982 and 37 of 1987 were pending in the court of

Sessions Judge, Wardha (Mr. S.S.Nikhree), from where these

were transferred to the court of Addl. Distt. & Sessions

Judge (Mr. S.T. Kharche) who attempted to proceed

substantially with those trials, but Deepak Trimbakrao

Deshmukh created all sorts of hinderances and obstacles and

ultimately filed a Transfer Petition (No. 387 of 1988)

under Section 409 of the Criminal Procedure Code in the

Sessions Court, Wardha, in which various allegations were

made against the Presiding Officer, namely, Mr.S.T.

Kharche, but the Transfer Application was rejected on

5.11.1988 by the Sessions Judge. Thereafter, when those

cases were taken up by Mr. Kharche, Deepak Trimbakrao

Deshmukh filed an Application on 8.5.1990 for adjournment to

enable him to file Vakalatnama of his counsel. On this

Application, an elaborate order was passed by Mr.S.T.

Kharche who, however, having regard to the quarrelsome

nature of the accused, requested the Sessions Judge, Wardha,

to transfer those cases to some other court and consequently

both the Sessions Trials were transferred to the court of

Second Addl. Distt. & Sessions Judge, Wardha, presided

over by the appellant. In that court also, the accused

(Deepak Trimbakrao Deshmukh) adopted dilatory tactics to

prolong the trial and ultimately gave an application in

which he stated that he was certain that "no clean and

impartial justice" was going to be done to him in both the

Sessions Trials. This was treated as a contumacious conduct

and the appellant passed an order taking cognizance under

Section 345 of the Criminal Procedure Code read with Section

228 of the IPC and detained the accused in custody. He was

also issued a notice requiring him to show cause why he

should not be punished under Section 345 of the Criminal

Procedure Code. The accused did not submit any reply and he

was consequently convicted and sentenced to pay a fine of

Rs.200/- or in default to suffer simple imprisonment for 15

days. The accused, however, deposited the fine in the court

on the same day.

This order was challenged by the accused (Deepak

Trimbakrao Deshmukh) in Criminal Appeal No. 108 of 1991

before the Nagpur Bench of the Bombay High Court, but the

appeal was dismissed on 9.3.1992 and the order convicting

the accused under Section 345 Cr.P.C. was upheld. The

accused continued, even thereafter, to make frivolous

applications for adjournments and ultimately approached the

High Court for transfer of both the cases to some other

court. The High Court stayed the proceedings and called for

the explanation of the appellant. The explanation was

submitted by the appellant, but thereafter the accused

withdrew both the Transfer Applications. When the

appellant, as Presiding Officer of that court, proceeded to

dispose of those cases, the accused made the allegations in

question against him and reported the matter to the Chief

Justice of the Bombay High Court, and as stated earlier,

disciplinary proceedings were started against the appellant

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which ultimately resulted in his dismissal.

These facts will indicate that the accused (Deepak

Trimbakrao Deshmukh) had taken the court, where the two

Sessions Trials were pending against him, for a ride. He

had adopted similar tactics in the court of Sessions Judge,

Wardha, and again in the court of Ist Addl. Distt. &

Sessions Judge, Wardha, where these two cases were

transferred, and yet again in the court of the appellant

where these Sessions Trials came to be ultimately

transferred.

After withdrawal of Transfer Applications, when the

appellant proceeded with the two Sessions Trials, the

Disciplinary Committee inferred that the appellant was still

pursuing his earlier demand of bribe as otherwise he himself

would have written that he would not do these cases. This,

we feel, is wholly fallacious. After the Transfer Petitions

were withdrawn and the stay order passed therein was

vacated, the appellant, as Presiding Officer of the court,

had to proceed with those cases as he had, so long as those

cases were on his file, no other choice. If the appellant

had written to the Sessions Judge to transfer those cases to

some other court, the accused (Deepak Trimbakrao Deshmukh)

would have succeeded in his designs in avoiding the court of

the appellant. The Presiding Officers of the Court cannot

act as fugitives. They have also to face sometimes

quarrelsome, unscrupulous and cantankerous litigants but

they have to face them boldly without deviating from the

right path. They are not expected to be overawed by such

litigants or fall to their evil designs.

Under Article 235 of the Constitution, the High Court

has a duty to protect the officers of the subordinate

judiciary from unscrupulous litigants and lawyers. In

Ishwar Chand Jain vs. High Court of Punjab & Haryana & Anr.

AIR 1988 SC 1395, it was, inter alia, observed that the High

Court while exercising its power of control over the

subordinate judiciary is under a Constitutional obligation

to guide and protect judicial officers. It was further

observed that an honest and strict judicial officer is

likely to have adversaries in the mofussil courts; if

trifling complaints relating to judicial orders which may

have been upheld by the High Court on the judicial side are

entertained, no Judicial Officer would feel protected; and

it would be difficult for him to discharge his duties

honestly and independently. It is, therefore, imperative

for the High Court to protect its honest judicial officers

by ignoring ill-conceived or motivated complaints made by

the unscrupulous lawyers and litigants.

Having regard to the circumstances of this case, we

are of the view that the Disciplinary Committee was wholly

in error in disagreeing with the findings recorded by the

Enquiry Officer and the charges levied against the appellant

were not established.

It was lastly contended by Mr. Harish N. Salve that

this Court cannot reappraise the evidence which has already

been scrutinised by the Enquiry Officer as also by the

Disciplinary Committee. It is contended that the High Court

or this Court cannot, in exercise of its jurisdiction under

Article 226 or 32 of the Constitution, act as the Appellate

Authority in the domestic enquiry or trial and it is not

open to this Court to reappraise the evidence. The

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proposition as put forward by Mr. Salve is in very broad

terms and cannot be accepted. The law is well-settled that

if the findings are perverse and are not supported by

evidence on record or the findings recorded at the domestic

trial are such to which no reasonable person would have

reached, it would be open to the High Court as also to this

Court to interfere in the matter. In Kuldeep Singh vs. The

Commissioner of Police & Ors., JT 1998(8) SC 603 = (1999) 2

SCC 10, this Court, relying upon the earlier decisions in

Nand Kishore vs. State of Bihar AIR 1978 SC 1277 = (1978) 3

SCC 366 = (1978) 3 SCR 708; State of Andhra Pradesh vs.

Sree Rama Rao AIR 1963 SC 1723 = (1964) 3 SCR 25; Central

Bank of India vs. Prakash Chand Jain AIR 1969 SC 983;

Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors. AIR

1976 SC 98 = (1976) 2 SCR 280 = (1976) 1 SCC 518 as also

Rajinder Kumar Kindra vs. Delhi Administration through

Secretary (Labour) & Ors. AIR 1984 SC 1805 = (1985) 1 SCR

866 = (1984) 4 SCC 635, laid down that although the court

cannot sit in appeal over the findings recorded by the

Disciplinary Authority or the Enquiry Officer in a

departmental enquiry, it does not mean that in no

circumstance can the court interfere. It was observed that

the power of judicial review available to a High Court as

also to this Court under the Constitution takes in its

stride the domestic enquiry as well and the Courts can

interfere with the conclusions reached therein if there was

no evidence to support the findings or the findings recorded

were such as could not have been reached by an ordinary

prudent man or the findings were perverse.

In the instant case, we have scrutinised the reasons

of the Disciplinary Committee and have found that it had

taken its final decision without giving an opportunity of

hearing to the appellant at the stage at which it proposed

to differ with the findings of the Enquiry Officer. We have

also found that the complainant's story with regard to the

place at which the demand was allegedly made by the

appellant was inconsistent. We have also noticed that the

trap laid by the A.C.B., Nagpur against the appellant had

failed and was held by the Enquiry Officer to be a farce and

not having been laid with the permission of the Chief

Justice. We have also noticed that there was absolute non-

consideration of the statements of defence witnesses,

namely, Dr. Naranje and Mr. Bapat, advocate, by the

Disciplinary Committee. This factor in itself was

sufficient to vitiate the findings recorded by that

Committee contrary to the findings of the Enquiry Officer.

For the reasons stated above, we allow the appeal and

set aside the judgment dated 21.6.1996 passed by the Bombay

High Court by which the appellant's Writ Petition was

dismissed. We hereby allow the Writ Petition and quash the

order of dismissal dated 08.11.1993 passed by the State

Government with the direction that the appellant shall be

reinstated in service forthwith with all consequential

benefits, including all arrears of pay which shall be paid

to him within three months. There will be no order as to

costs.