TaxTMI 
TaxTMI 
2013 (3) TMI 616
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.... on 17.8.1993 as illegal gratification, to pass order in his favour, through one C.B. Gajjar, Advocate. As it was not possible for the complainant to pay the said amount, the appellant had agreed to accept the same in installments, and in order to facilitate the said complainant's efforts to arrange the said amount in part, she had even granted adjournment. B. The said complaint filed with the CBI was referred to the High Court and in pursuance thereof, a preliminary enquiry was conducted against the appellant in which statements of various persons including C.B. Gajjar and G.G. Jani were recorded. The Court then suspended the appellant vide order dated 21.1.1994, and directed a regular enquiry appointing Shri M.C. Patel, Additional Civil Judge, City Civil Court, Ahmedabad as the Enquiry Officer. C. A chargesheet dated 6.8.1994, containing 12 charges was served upon the appellant. One of the main charges was, the demand of illegal gratification to the tune of Rs. 20,000/- from G.G. Jani through C.B. Gajjar, Advocate in lieu of favouring the complainant/accused. Another relevant charge was that a person known as "Mama" amongst the litigants, would come to her residence, accompany ....
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.... wanted to conclude the trial, thus, she granted short adjournments. The accused/complainant was being represented by Shri Pankaj Pancholi, Advocate. He had been granted adjournments one or two times, but later on, the appellant refused to accommodate him. She hence, began examining witnesses even in the absence of the complainant's advocate. The complainant was directed/ instructed to keep his advocate present, and in the event that Shri Pankaj Pancholi was not available, to make alternative arrangement. Shri Pankaj Pancholi introduced the accused-complainant to Shri C.B. Gajjar, Advocate practicing therein. Shri Pankaj Pancholi told Shri Gajjar that as the accused-complainant was his relative, he was not in a position to ask the accused to pay fees. Thus, Shri Gajjar should ask the accused-complainant to pay a sum of Rs. 20,000/- to be paid to the appellant, in order to get a favourable order. The appellant did not meet Shri Gajjar in her chamber, nor did she put up any demand. The complaint, however, was motivated as the appellant was a very strict officer. This theory of demand/bribe and further, the readiness to accept the same in installments, was a cooked up story. The findi....
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.... conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures." (Emphasis added) (See also : Narinder Mohan Arya v. United India Insurance Co. Ltd. & Ors, AIR 2006 SC 1748; Roop Singh Negi v. Punjab National Bank and Ors, AIR 2008 SC (Supp) 921; and Krushnakant B. Parmar v. Union of India & Anr ,(2012) 3 SCC 178) B. In Prahlad Saran Gupta v. Bar Council of India & Anr, AIR 1997 SC 1338, this court observed that when the matter relates to a charge of professional mis-conduct which is quasi-criminal in nature, it requires proof beyond reasonable doubt. In that case the finding against the delinquent advocate was that he retained a sum of Rs. 15,000/- without sufficient justification from 4-4-1978 till 2-5- 1978 and he deposited the amount in the Court on the latter date, without disbursing the same to his client. The said conduct was found by this Court as "not in c....
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....f probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label 'doubtful integrity'." F. In High Court of Judicature at Bombay through its Registrar v. Udaysingh & Ors, AIR 1997 SC 2286, this Court held : "The doctrine of `proof beyond doubt' has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct." G. In view of the above, the law on the issue can be summarised to the effect that the disciplinary proceedings are not a criminal trial, and in spite of the fact that the same are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the principle of preponderance of probabilities would apply. The court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have done. The ratio of the judgment in Prahlad Saran Gupta (supra) does not apply in this case as the sai....
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.... 3299) (d) The subordinate judiciary works in the supervision of the High Court and it faces problems at the hands of unscrupulous litigants and lawyers, and for them "Judge bashing" becomes a favourable pastime. In case the High Court does not protect the honest judicial officers, the survivor of the judicial system would itself be in danger. III. Scope of Judicial Review : (i) It is settled legal proposition that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. (Vide: State of T.N. & Anr v. S. Subramaniam, AIR 1996 SC 1232; R.S. Saini v. State of Punjab, (1999) 8 SCC 90; and Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, AIR 2006 SC 1214) (ii) In Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537, this Court while dealing with the issue of scope of judici....
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....al error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision-making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene. IV. Punishment in corruption cases: In Municipal Committee, Bahadurgarh v. Krishnan Bihari & Ors., AIR 1996 SC 1249, this Court held as under: "In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant." In Divisional Controller N.E.K.R.T.C. v. H. Amaresh, AIR 2006 SC 2730, this court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal. Similar view has been reiterated in U.P.S.R.T.C. v. Vinod Kumar, (2008) 1 SCC 1....
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....outside the door of the chamber. Shri Gajjar discussed his case with the appellant in a slow voice. Shri C.B. Gajjar came out and told the complainant that the amount was reasonable and he had to pay the same on 19.8.1993. The witness requested Shri Gajjar to fix the payment in instalments. Thus, it was agreed to make payment of the first instalment of Rs. 5,000/- on 20.8.1993. However, the arrangement of money could not be made. The accused - complainant went to the office of the CBI on 19.8.1993 and filed a complaint. After receiving the complaint from the complainant, the CBI tried to collect some evidence in the matter, and Shri C.B. Gajjar was invited to Yamuna Hotel, where the panchas and the CBI people went alongwith the complainant. Shri C.B. Gajjar came there, however, he got some doubt, therefore, he asked the complainant about the identification of the persons present there and left the place immediately. The complainant also deposed about some threat given to his wife at the behest of the appellant to withdraw the complaint. In his cross-examination, the complainant admitted that there was a room adjacent to the chamber of the appellant for the use of Stenographer, and....
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....Gajjar, had appeared in her court in the case of the complainant-accused on 13.8.1993 only and sought adjournment. As the witness brought by CBI was present, she had given a short adjournment, and fixed the matter for 20.8.1993. She had not discussed anything with Shri Gajjar, advocate in her chamber for CBI case No. 5/1991, or any other case. There could be no talk about the demand of money for this case or any other case. Shri C.B. Gajjar had come only into the court. She had not seen Shri Gajjar on any other day, or on 17.8.1993. She had never met him other than on that date in court either in chamber or any other place. She was unmarried. She was not granting long adjournments in any case, and instead asking the parties to keep their witnesses ready. 13. There was another witness examined by the department, namely, Jethagir, Inspector working in the Income-Tax department in the Vigilance. He deposed that he had gone out at the request of the department and met complainant-accused. He was introduced to the complainant, and was taken to the court of the appellant on 20.8.1993, but the appellant did not come to the court. 14. On the basis of the aforesaid evidence, the Enquiry O....
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....ajjar in the Yamuna Hotel that the work would be done and there would be no cheating. Both Shri Jani and Shri Gajjar said in their statements before the Vigilance Officer that Shri Gajjar could accompany him to the residence of Miss Jhala though she would not accept payment in person. According to Shri Jani, Shri Gajjar said that the dealing is made by her husband. It is said that Miss Jhala is unmarried and hence there was no question of her husband being present. But it is possible that the payment was to be accepted by some other person when Shri Gajjar loosely described as Miss Jhala's husband. ....It may be that Shri Gajjar was to retain part of the amount but there is no doubt that Miss Jhala agreed to accept illegal gratification for doing in favour to Shri Jani and Shri Gajjar's demand was in pursuance of the meeting with Miss Jhala in her chamber on 17.8.1993." (Emphasis added) And thus, he reached the conclusion as under: "As a result of the above discussion, I come to the conclusion that Miss Jhala demanded or agreed to accept illegal gratification through advocate Shri C.B. Gajjar for doing favour to Shri Jani at her meeting with Shri Gajjar in her chamber on 1....
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..... ......the petitioner's total denial of the incident and her unwillingness or inability to explain Shri Gajjar entering her chamber on two occasions and spending considerable time inside her chamber would, in our view, be extremely damaging. Shri Gajjar's entry in her chamber on 17.8.1993 on two occasions would assume further significance in view of the fact that Shri Jani's case was earlier fixed on 13.8.1993 and thereafter adjourned to 20.8.1993 and that there was no other case of Shri Gajjar on the board before the petitioner and that, therefore, Shri Gajjar had absolutely no occasion to meet the petitioner twice inside her chamber on 17.8.1993. (Emphasis added) 16. The Division Bench of the High Court accepted the finding arrived at by the Enquiry Officer, though admitting that there were certain discrepancies in the evidence. The court held as under: "We have noted that the Enquiry Officer has not believed the say of Shri Jani when he suggested that he could hear the conversation between the petitioner and Shri Gajjar when he was standing outside the chamber of the petitioner on 17.8.1993. The Enquiry Officer has also discarded the possibility of the petitioner having thr....
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....bribe of Rs. 20,000/- fully justified the findings of the Enquiry Officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant. 18. The appellant had not married at that point of time, as per her statement. Even this fact has been admitted by Shri C.B. Gajjar, Advocate. Given the above set of facts, the complainant is seen talking about appellant's husband for collecting money on her behalf. The High Court had failed to notice the above fact and had been making attempts to keep aside all such relevant factors in a case, where there was no direct evidence. 19. In the aforesaid backdrop, we have to consider the most relevant issue involved in this case. Admittedly, the Enquiry Officer, the High Court on Administrative side as well on Judicial side, had placed a very heavy reliance on the statement made by Shri C.B. Gajjar, Advocate, Mr. G.G. Jani, complainant and that of Shri P.K. Pancholi, Advocate, in the preliminary inquiry before the Vigilance Officer. Therefore, the question does arise as to whether it was permissible for either of them to take into consideration their statements recorded in the preliminary inquiry, which had been held beh....
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....uiry was held strictly in accordance with law or by observing principles of natural justice of nor, remains of no consequence. (Emphasis added) 23. In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. 24. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., AIR 2013 SC 58, this Court while placing reliance upon a large number of earlier judgments held that cross-examination is an integral part of the principles of natural justice, and a statement recorded behind back of a person wherein the delinquent had no opportunity to cross-examine such persons, the same cannot be relied upon. 25. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 26. "A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence w....
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....tion in the chargesheet that such report/statements would be relied upon against the appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v. Jagmohan, AIR 1981 SC 136; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539) 29. In view of the above, we reach the following inescapable conclusions:- i) The High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a find....