Supreme Court of India
NIRMALA J. JHALAversusSTATE OF GUJARAT & ANR.
- Citation
- 2013 INSC 170
- Decided
- 18 March 2013
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
The compulsory retirement order was set aside because the department failed to prove the charge and violated natural justice, thereby exonerating the appellant.
Summary
The appellant, a Chief Judicial Magistrate, was accused by a litigant of demanding a Rs.20,000 bribe to influence a case. A preliminary inquiry was followed by a regular departmental enquiry, which found her guilty of the first charge and partially guilty of a second. The High Court, on the administrative side, recommended compulsory retirement, which was implemented by the State. The appellant challenged the punishment, arguing lack of evidence and violation of natural justice. The Supreme Court held that departmental inquiries are quasi‑judicial and require proof on a pre‑ponderance of probabilities, with the burden of proof on the department, not the officer. It ruled that evidence from the preliminary inquiry, recorded without the officer’s presence, could not be used in the regular enquiry, and that the High Court had wrongly shifted the onus onto the appellant. Consequently, the order of compulsory retirement was set aside and the appellant was exonerated, with the State ordered to pay Rs.5 lakhs costs.
Issues considered
- The standard of proof applicable in departmental disciplinary proceedings
- Whether evidence recorded in a preliminary inquiry can be relied upon in a regular departmental enquiry
- Whether the burden of proof lies on the department or the delinquent officer
- Whether the High Court erred in shifting the onus of proving negative circumstances onto the appellant
- Whether the principle of natural justice was violated in the disciplinary process
Legislation cited
- Constitution of Indias. Article 311
- Gujarat Civil Services (Discipline & Appeal) Rules, 1971s. Rule 6
- Indian Penal Code, 1860s. 406, s. 467, s. 471
Subjects
departmental inquirycompulsory retirementnatural justiceburden of proofpre‑ponderance of probabilitiesjudicial reviewsubordinate judiciarycorruption allegationdisciplinary proceedings
Judgment
[2013) 5 S.C.R. 200
A NIRMALA J. JHALA
V.
STATE OF GUJARAT & ANR.
(Civil Appeal No. 2668 of 2005)
B MARCH 18, 2013
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Judicial service - Complaint against judicial officer - By the
accused whose case she was trying -Alleging demand of illegal
C gratification - Enquiry Officer finding her guilty- High Court on
administrative side recommended imposition of punishment of
compulsory retirement to the State Government-Accordingly the
delinquent officer given compulsory retirement - Challenged -
Division Bench of High Court rejected the challenge - On appeal,
D held: Imposition of punishment of compulsory retirement on the
delinquent officer is not correct - Complainant was disbelieved
by the Enquiry Officer as well as the High Court on various issues
- The court wrongly put the burden to prove those negative
circumstances on the delinquent officer, while the onus was on
E the department to prove the charges - In the facts of the case it
eould be said that the complainant had ill-wilr'and motive to make
allegations against the delinquent officer - Hence the order of
punishment is set aside and the delinquent officer is honourably
exonerated of all the charges - Cost imposed on the State to the
F tune of Rs.5 lakhs to be paid to the delinquent officer- Evidence
- Burden to prove.
Judiciary - Duty of higher judiciary to protect subordinate
judiciary - Held: For functioning of democracy, and for an
independent judiciary to dispense justice without fear and favour,
G High Court need to protect the honest judicial officers.
Service Law:
Departmental Inquiry - Quasi Criminal/Quasi judicial in
nature - Standard of proof- Held in such cases though doctrine
of proof beyond reasonable doubt does not apply, but principle
H 200
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 201
of probabilities would apply. A
Departmental Inquiry - Evidence !material relied on in
preliminary inquiry - Also relied on in regular inquiry - Held: In
absence of information in the charge-sheet that evidence/
material in preliminary inquiry would be relied on, it was not
permissible to rely on the same in regular inquiry - Reliance B
thereon is violative ofprinciples of naturaljustice- Natural Justice.
Natural Justice - Applicability of - Held: Natural justice is
an inbuilt and inseparable ingredient of fairness and
reasonableness - It should be strictly adheared to whenever as
a result of an order, civil consequences follow- In certain factual C
circumstances, even non-observance of the rule would itself result
in prejudice.
Judicial Review - Scope of - Held: It is circumscribed and
confined to correct errors of law or procedural error, resulting in
manifest misca!Tiage ofjustice or violation of principles of natural D
justice - However, the Court should exercise its discretion with
great caution keeping in mind the larger public interest.
The appellant-delinquent officer, while working as Chief
Judicial Magistrate, when was trying CBI case of an accused E
for the offence of misappropriation and embezzlement of
public money. The accused filed complaint with CBI against
the appellant alleging that she had demanded a sum of
Rs.20,000/- on 17.8.1993 as illegal gratification through his
advocate 'G', to pass order in his favour. The complaint was
F
referred to High Court. Pursuant thereto, preliminary enquiry
was conducted wherein the statements of the-complainant
and his advocate 'G' were recorded. The appellant was
suspended and regular enquiry was directed. Charge-sheet
contained 12 charges against the appellant, the main charge
being the demand of illegal, gratification. Enquiry Officer G
found the appellant guilty of first charge and partially guilty
of the second charge. The Enquiry Report was examined by
. High Court on administrative side, and by a resolution
recommended to the State, imposition of punishment of
Compulsory retirement on the appellant. The State H
202 SUPREME COURT REPORTS [2013] 5 S.C.R.
A accordingly issued Notification giving compulsory
Retirement to the appellant. The appellant challenged the
order, and the same was rejected by the Division Bench of
High Court. Hence the present appeal.
Allowing the appeal, the Court
B HELD: 1. 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
C 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. [Para
6 IG] [216-A-C]
D M. V. Bijlani vs. Union of India and Ors. AIR 2006 SC 3475:
2006 (3) SCR 896; Narinder Mohan Arya vs. United India
Insurance Co. Ltd. and Ors. AIR 2006 SC 1748: 2006 (3)
SCR 932; Noor Aga vs. State of Punjab and Anr. AIR 2009 SC
(Supp) 852: 2008 (10) SCR 379; Roop Singh Negi vs. Punjab
E National Bank and Ors. AIR 2008 SC (Supp) 921: 2008 (17)
SCR 1476; Krushnakant B. Pannar vs. Union of India and Anr.
(2012) 3 SCC 178: 2012 (3) SCR484; Union of India and Ors.
· vs. Naman Singh Sekhawat (2008) 4 SCC 1: 2008 (5) SCR 137;
Vijay Singh vs. State of UP. asnd Ors. AIR 2012 SC 2840: 2012
F (2) SCR 875; M. S. Bindra vs. Union of India and Ors. AIR 1998
SC 3058: 1998 (1) Suppl. SCR 232; High Coµrt of Judicature
at Bombay through its Registrar vs. Udaysingh and Ors. AIR 1997
SC 2286: 1997 (3) SCR 803 - relied on.
Prahlad Saran Gupta vs. Bar Council of India and Anr. AIR
G 1997 SC 1338: 1997 (2) SCR 499- distinguished.
Harish Chandra Tiwari v. Baiju AIR 2002 SC 548: 2002 (1)
SCR 83 - referred to.
2. A subordinate judicial officer works mostly in a
H charged atmosphere. He is under a psychological pressure
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 203
- contestants and lawyers breathing down his neck. If the fact A
that he renders a decision which is resented by a litigant or
his lawyer were to expose him to such risk, it will sound the
death knell of the institution. "Judge bashing" has become
a favourite pastime of some people. There is growing
tendency of maligning the reputation of judicial officers by B
disgruntled elements who fail to secure an order which they
desire. For functioning of democracy, an independent
judiciary, to ·dispense justice without fear and favour is
paramount. Judiciary should not be reduced to the position
of flies in the hands of wanton boys. In case the High Court c
does not protect the honest judicial officers, the survivor of
the judicial system would itself be in danger. [Paras 6 ll(c) and
(d)] [217-B-D, E]
/shwar Chand Jain vs. High Court of Punjab and Haryana
and Anr. AIR 1988 SC 1395: 1988 (1) Suppl. SCR 396; D
Yoginath D. Bagde vs. State of Maharashtra and Anr. AIR 1999
SC 3734: 1999 (2) Suppl. SCR 490; L.D. Jaikwal vs. State of
U.PAIR1984SC1374: 1984(3) SCR 833;K.P. Tiwarivs. State
of Madhya Pradesh AIR 1994 SC 1031: 1993 (3) Suppl. SCR
497; Haridas Das vs. Smt. Usha Rani Banik and Ors. etc. AIR E
2007 SC 2688: 2007 (8) SCR 365: In Re: Ajay Kumar Pandey
AIR 1998 SC 3299: 1998 (2) Suppl. SCR 87 - relied on.
3.1. 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 F
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 G
proceedings. [Para 6 Ill (i)] [217-G-H; 218-A]
3.2. An administrative order can be set-aside if it is based
on extraneous grounds, or when there are no grounds at all
for passing it or when the grounds are such that, no one can
reasonably arrive at the opinion. The Court does not sit as a H
204 SUPREME COURT REPORTS [2013] 5 S.C.R.
A Court of Appeal but, it merely reviews the manner in which
the decision was made. The Court will not normally exercise
its power of judicial review unless it is found that formation
of belief by the statutory authority suffers from malafides,
dishonest/corrupt practice. The authority must act in good
B faith. Neither the question as to whether there was sufficient
evidence before the authority can be raised/examined, nor
the question of re-appreciating the evidence to examine the
correctness of the order under challenge. If there are
sufficient grounds for passing an order, then even if one of
c them is found to be correct, and on its basis the order
impugned can be passed, there is no occasion for the Court
to interfere. The jurisdiction is circumscribed and confined
to correct errors of law or procedural error, if any, resulting
in manifest miscarriage of justice or violation of principles of
natural justice. This apart, even when some defect is found
0
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
E interference, the Court should intervene. [Para 6 Ill (iii)] [218-
G-H; 219-A-D]
State of T.N. and Anr vs. S. Subramaniam AIR 1996 SC
1232: 1996 SCR 968; R.S. Saini vs. State of Punjab (1999) 8
SCC 90; Government of Andhra Pradesh and Ors. vs. Mohd.
Nasru//ah Khan AIR 2006 SC 1214: 2006 (1) SCR 911; Zora
F Singh vs. J.M. Tandon and Ors. AIR 1971SC1537 - relied on.
4.1. The evidence recorded fn preliminary inquiry cannot
be used in regular inquiry as the delinquent is not associated
with it, and opportunity to cross-examine the persons
G examined in such inquiry is not given. Using such evidence
would be violative of the principles of natural justice. 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
H regular enquiry. [Paras 23 and 25] [229-E-F; H; 230-A]
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 205
Amlendu Ghosh vs. District Traffic Superintendent, North- A
Eastern Railway, Katiyar AIR 1960 SC 992; Chiman Lal Shah
vs. Union of India AIR 1964 SC 1854: 1964 SCR 190 -
followed.
Government of India, Ministry of Home Affairs and Ors. vs.
Tarak Nath Ghosh AIR 1971 SC 823: 1971 (3) SCR 715; Naryan B
Dattatraya Ramteerathakhar vs. State of Maharashtra and Ors.
AIR 1997 SC 2148: 1996 (8) Suppl. SCR 939; Ayaaubkhan
Noorkhan Pathan vs. State of Maharashtra and Ors. AIR 201 3
SC 58: 2012 (10) SCR 994- relied on.
4.2. "A prima facie case, does not mean a case proved C
to the hilt, but a case which can be said to be established, if
the evidence which is led in support of the case were to be
believed. While determining whether a prima facie case had
been made out or not, the relevant consideration is whether
on the evidence le~, it was possible to arrive at the D
conclusion in question and not whether that was the only
conclusion which could be arrived at on that evidence".
[Para 26] (230-8-C]
Martin Bum Ltd. VS. R.N. Banerjee AIR 1958 SC 79: 1958
SCR 514; The Management of the Bangalore Woollen Cotton E
and Siik Mills Co. Ltd. vs. 8. Oasappa, M. T. AIR 1960 SC 1352;
State (Delhi Admn.) vs. VS.C. Shukla and Anr. AIR 1980 SC
1382: 1980 .SCR 500; Dalpat Kumar and Anr. vs. Prahlad Singh
and Ors. AIR 1993 SC 276: 1991 (3) Suppl. SCR 472; Cho/an
Roadways Ltd. vs. G. Thirugnanasambandam AIR 2005 SC 570: F
2004 (6) Suppl. SCR 1123 - relied on.
4.3. 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 Advocate 'G', the
complainant and that of Advocate 'P', in the preliminary G
inquiry before the Vigilance Officer. A grave error was
committed in placing reliance on the statement of the
complainant as well as of Advocate 'G', recorded in a
preliminary enquiry as the preliminary enquiry and its report
loses significance/importance, once the regular enquiry is H
206 SUPREME COURT REPORTS [2013] 5 S.C.R.
A initiated by issuing chargesheet to the delinquent. Thus, the
proceedings were in violation of the principles of natural
justice. [Paras 19 and 29(ii)] [228-B-C; 231-G-H]
4.4. There is nothing on record to show that either the
preliminary enquiry report or the statements recorded
B therein, particularly, by the complainant/accused or advocate
'G', had been exhibited in regular: inquiry. In absence of
information 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
C upon the same. Natural justice is an inbuilt and inseparable
ingredient of fairness and reiisohableness. 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-
D observance of the rule will itself result in prejudice. Thus, this
principle is of supreme importance. [Para 28] [231-A-D]
S.L. Kapoor vs. Jagmohan AIR 1981 SC 136: 1981 (1)
SCR 746; D.K. Yadav vs. JMA Industries Ltd. (1983) 3 SCC 259;
Mohd. YunusKhan Vs. State of UP. and Ors. (2010) 10 SCC 539:
E 2010 (12) SCR 448 - relied on. ·
5. 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. :rhe case of accused-complainant which was
F 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 finding that the complainant had
no ill-will or motive to mal(e any allegation against the
appellant. [Para 29(i)] [231-E-F] -~-- -
G 6.1. The High Court has rightly disbelieved the statement
of the complainant-accused that he could hear the
conversation between the appellant and advocate 'G'. The
said evidence was also discarded by the Enquiry Officer.
Further allegation that the appellant had threatened the said
H complainant-accused to withdraw the complaint was also
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 207
found to be false. The entry of advocate 'G' into the chamber A
of the appellant on 17.8.1993, was not corroborated by any
other evidence. Advocate 'G' himself had also denied the
same. However, the High Court has reached the conclusion
by shifting the burden of proof of negative circumstances
upon the appellant. The High Court has erred by holding that B
in respect of the incident dated 17.8.1993 i.e. demand of
amount, it was the duty of the appellant to explain the said
circumstance, and that instead of giving any satisfactory
explanation in respect of entry of advocate 'G', she had
completely disowned and denied any such occurrence. The c
onus was always on the department to prove the said
circumstance. The court should have also taken note of the
fact, that the matter was adjourned for 28.8.1993, and being
a 4th Saturday, it was a holiday. The court further committed
an error by holding,· that the failure to challenge the most
0
crucial element of the evidence, regarding the incident of
17.8.1993, in respect of a demand of bribe of Rs.20,000/- fully
justified the findings of the Enquiry Officer. [Para 17] [227-C-
G]
6.2. The High Court erred in shifting the onus of proving E
various negative circumstances as referred to hereinabove,
upon the appellant who was delinquent in the enquiry. The
onus lies on the department to prove the charge and it failed
to examine any of the employee of the court, i.e.,
Stenographer, Bench Secretary or Peon attached to the
F
office of the appellant for proving the entry of Advocate 'G'
in her chamber on 17.8.1993. [Paras 29 (iii) and (iv)]'[232-A-
B]
7. There is nothing on record to show that the appellant
whose defence has been disbelieved in toto, had ever been G
given any adverse entry in her ACRs, or punished earlier in
any enqu_iry. W.hile she has been punished solely on
uncorroborated statement of an accused facing trial for
misappropriation. The complainant has been disbelieved by
the Enquiry Officer as well as the High Court qn various
H
208 SUPREME COURT REPORTS [2013) 5 s:c.R.
A issues, particularly on the point of his personal hearing, the
conversation between the appellant and Advocate 'G' on
17.8.1993, when they met in the chamber. Similarly, the
allegation of the· complainant, that appellant had threatened
him through his wife, forcing him to withdraw the complaint
B against her, has been disbelieved. The complainant as well
as Advocate 'G' had been talking about the appellant's
husband having collecting the amount on behalf of the
appellant, for deciding the cases, though at that point of time,
she was unmarried. [Paras 29 (v, vi, vii and viii)] [232-C-F]
C 8. The order of punishment imposed by the High Court
in compulsorily retiring the appellant is set aside. However,
as the appellant has already reached the age of
superannuation long ago, it is not desirable under the facts
and circumstances of the case, to grant her any substantive
o relief, except to exonerate her honourably of all the charges,
and allow the appeal with costs, which is quantified. to the
tune of Rs.5 lacs. The State of Gujarat is directed to pay the
said cost. [Para 30] [232-F-H]
Municipal Committee, Bahadurgarh vs. Krishnan Bihari and
E Ors. AIR 1996 SC 1249: 1996 (2) SCR 827; Divisional
Controller N.E.K. R. T. C. vs. H. Amaresh AIR 2006 SC 2730: 2006
(3) Suppl. SCR 585; U.P.S.R. T.C. vs. Vinod Kumar (2008) 1
SCC 115: 2007 (12) SCR 1018; U.P. State Road Transport Corp.
vs. Suresh Chand Sharma (2010) 6 SCC 555: 2010 (7)
F SCR 239 - referred to.
Case Law Reference:
2006 (3) SCR 896 relied on Para 6-1 (A)
2006 (3) SCR 932 relied on Para 6-1 (A)
G 2008 (17) SCR 1476 relied on Para 6-1 (A)
2012 (3) SCR 484 relied on Para 6-1 (A) .
1997 (2) SCR 499 distinguished Para 6 B
2002 (1) SCR 83 referred to · Para 6
H 2008 (10) SCR 379 relied on Para 6
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 209
2008 (17) SCR 1476 relied on Para 6 A
2008 (5) SCR 137 relied on Para 6
2012 (2) SCR 875 relied on Para 6
1998 (1) Suppl. SCR 232 relied on Para 6
1997 (3) SCR 803 relied on Para 6
B
1988 (1) Suppl. SCR 396 relied on Para 6-ll(a)
1999 (2) Suppl. SCR 490 relied on Para 6-11 (b)
1984 (3) SCR 833 relied on Para· 6-ll(c)
1993 (3) Suppl. SCR 497 relied on Para 6-ll(c)
2007 (8) SCR 365 relied on Para 6-ll(c) c
1998 (2) Suppl. SCR 87 relied on Para 6~11(c)
1996 SCR 968 relied on Para 6-lll(i)
(1999) 8 sec 90 relied on Para 6-lll(i)
2006 (1) SCR 911 relied on Para 6-lll(i) .
D
AIR 1971 SC 1537 relied on Para 6-lll(ii)
1996 (2). SCR 827 ·referred to Para 6(1V)
2006 (3) .Su_ppl. SCR 585 referred to Para 6(1V)
2007 (12) SCR 1018 referred to Para 6(1V)
2010 (7) SCR 239 referred to Para 6(1V) E
AIR 1960 SC 992 followed Para 20
1964 SCR 190 followed Para 21
1971 (3) SCR 71.5 relied on Para 22
1996 (8) Suppl. SCR 939 relied on Para 23
F
2012 (10) SCR 994 relied on Para 24
1958 SCR 514 relied o'n Para 26
AIR 1960 SC 1352 relied on Para 26
1980 SCR 500 relied on Para 26
1991 (3) Suppl. SCR 472 relied on Para 26 G
2004 (6) Suppl. SCR 1123 relied on Para 26
1981 (1) SCR 746 relied on Para 28
(1983) 3 sec 259 relied on Para 28
2010 (12) SCR 448 relied on Para 28
H
210 SUPREME COURT REPORTS [2013] 5 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2668
of 2005.
From the Judgment & Order dated 25.08.2004 of the High
Court of Gujarat at Ahmadabad in Special Civil Application No.
5759 of 1999.
B
Mahalakshmi Pavani, G. Balaji Mukesh Kumar Singh,
Mahalakshmi Balaji & Co. for the Appellant.
K. Enatoli Serna, Amit Kumar Singh, Hemantika Wahi for the
Respondents.
c The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the impugned judgment and order dated 25,8.2004, passed
in Special Civil Application No.5759 of 1999, by way of which the
challenge to punishment order of compulsory retirement of the
D appellant has been turned down.
2. Facts an_d circumstances giving rise to this appeal are:
A. That the appellant had joined the Gujarat State Judicial
Service in 1978, and was promoted subsequently as Civil Judge
E (Senior Division) in 1992. She was posted as Chief Judicial
Magistrate (Rural) in Ahmadabad. In December 1991, she was
trying one Gautam Ghanshyam Jani in CBI Case No.5of1991 for
the offence of misappropriation and embezzlement of public money.
The accused filed a complaint with the CBI on 19.8.1993, against
the appellant alleging that she had demanded a sum of Rs.20,000/
F - 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. .
8. 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,
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR 211
[DR. 8. S. CHAUHAN, J.]
and directed a regular enquiry appointing Shri M.C. Patel, Additional A
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 B
complainanVaccused. Another relevant charge was that a person
known as "Mama" amongst the litigants, would come to her
residence, accompany her to court, and collect money from litigants
on her behalf and thus, she had indulged in corrupt practices.
D. During the course of the enquiry, G.G. Jani, C.B. Gajjar, P.K. C
Pancholi and certain other witnesses were examined by the
department and in her defence, the appellant examined herself
denying all the allegations made against her. The Enquiry Officer
submitted his report on 24.10.1997, holding the appellant guilty of
the first charge and partially guilty of the second charge, i.e. to the D
extent that one person named "Mama" used to visit her quite
frequently. However, it could not be proved that he had ever misused
his assodation with the appellant in any respect. All other charges
were found unsubstantiated.
E. In pursuance of the report submitted by the Enquiry.Officer, E
the matter was examined on the administrative side by the High
Court, and after meeting various legal requirements i.e. issuing
show cause notice to the appellant and considering her reply, the
Court vide resolution dated 12.10.1998, made a recommendation
to the State that the appellant was guilty of the first charge, and thus, F
punishment of compulsory retirement be imposed on her. The
Government accepted the same and issued a notification giving
compulsory retirement to the appellant on 11.12.1998.
F. Aggrieved, the appellant challenged the said order of
punishment, by filing a Special Civil Application No.5759 of 1999 G
before the High Court on the ground that the findings of the Enquiry
Officer were perverse and based on no evidence. However, the .
said civil application was dismissed by the High Court, vid,e'
impugned judgment and order dated 25.8.2004. .·
H
212 SUPREME COURT REPORTS [2013] 5 S.C.R.
/
A Hence, this appeal.
3. Ms. Mahalakshmi Pavani, learned counsel appearing for the
·appellant, has submitted that one Gautam Ghanshyam Bhai Jani,
an officer of Oriental Insurance Company at Mehasana had been
involved in a CBI case for the offence punishable under Sections
B 406, 467 and 471 of Indian Penal Code, 1860. After investigation,
a chargesheet had been filed against him in the court of the Chief
Judicial Magistrate, Mirzapur in case no.5 of 1991. Shri Bhatt, the
then CJM had liberally granted long adjournments to the accused
complainant. The case had started in 1991, but no progress was
c made till 1993, as the accused-complainant had only been seeking
adjournments. The appellant had joined in the said Court as CJM
in 1993, and 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 .
0 adjournments one or two times, but later on, the appellant refused
to accommodate him. She hence, oegan 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 introd.uced the
E 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 Gafiar should ask the accused-
complainant to pay a sum of Rs.20,000/- to be paid to the appellant,
F 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 findings
G of fact recorded by the Enquiry Officer are perverse, as Shri Gajjar,
Advocate has denied meeting the appellant in her chamber. The
High Court did not appreciate the evidence in correct perspective
and failed to protect a honest judicial officer, which was its obligation.
The punishment imposed is too severe and disproportionate to the
H
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 213
[DR. B. S. CHAUHAN, J.]
'
delinquency. Therefore, the appeal deserves to be allowed. A
4. Per contra, Ms. Enatoli K. Serna, learned counsel for the
respondents has opposed the appeal contending that the case of
demand of bribe, and an agreement to accept the same in
installments, stands fully proved. Rule 6 of the Gujarat Civil Services
(Discipline & Appeal) Rules, 1971, provides for major penalties in B
the event that a charge is proved against the delinquent, which
include reduction to. a lower stage in the timescale of pay for a
specified period; reduction to a lower time scale of pay; compulsory
retirement; removal from service and dismissal from service. The
High Court was lenient and only imposed a punishment of C
compulsory retirement, otherwise it was a fit case where the
appellant ought to have been dismissed from service. There is ample
evidence on record to establish the charge of corruption against
her, which has been properly appreciated by the Enquiry Officer,
as well as by the High Court. Standard of proof required in a case D
of Departmental Enquiry is not that of "beyond reasonable doubt",
as required in a criminal trial. Moreover, the scope of judicial review
is limited in such a case. Thus, no interference is called for.
5. We have considered the rival submissions made by learned
c;ounsel for the parties and perused therecor.d. E
It may be pertinent to deal with the legal issues involved herein,
before dealing with the case on merits.
6. LEGAL ISSUES:
I. Standard of proof in a Departmental Enquiry F
which is Quasi Criminal/Quasi Judicial in nature:
A. In M. V. Bijlani v. Union of India and Ors., AIR 2006
SC 3475, this Court held :
" ... Disciplinary proceedings, however, being quasi-criminal
in nature, there should be some evidences to prove the G
charge. Although the charges in a departmental proceedings
are not required to be proved like a criminal trial, i.e., beyond
all reasonable doubts, we cannot lose sight of the fact that
the Enquiry Officer performs a quasi-judicial function, who
upon analysing the documents must arrive at a conclusion H
214 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B ·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
C 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
D 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
E found by this Court as "not in consonance with the standards of
professional ethics expected from a senior member of the
profession". On the said fact-situation, this court imposed a
punishment of reprimanding the advocate concerned.
C. In Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, this
F court made a distinction from the above judgment stating the facts
in the aforesaid decisions would speak for themselves and the
distinction from the facts of this case was so glaring that the
misconduct of the appellant in the present case was of a far graver
dimension. Hence, the said decision was not of any help to the
G appellant for mitigation of the quantum of punishment.
D. In NoorAga v. State of Punjab &Anr., AIR2009 SC (Supp)
852 , it was held that the departmental proceeding being a quasi
judicial one, the principles of natural justice are required to be
complied with. The Court exercising power of judicial review are
H entitled to consider as to whether while inferring commission of
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 215
[DR. B. S. CHAUHAN, J.]
misconduct on the part of a delinquent officer relevant piece of A
evidence has been taken into consideration and irrelevant facts
have been excluded there from. Inference on facts must be based
on evidence which meet the requirements of legal principles. (See
also: Roop Singh Negi v. Punjab National Bank & Ors, AIR 2008
SC (Supp) 921; Union of India & Ors. v. Naman Singh Sekhawat B
(2008) 4 SCC 1; and Vijay Singh v. State of U.P. & Ors. AIR 2012
SC 2840)
E. In M.S. Bindra v. Union oflndia & Ors., AIR 1998 SC 3058,
it was held:
"While evaluating the materials the authority should not C
a/together ignore the reputation in which the officer was held
till recently. The maxim "Nemo Firut Repente Turpissimus"
(no one becomes dishonest all on a sudden) is not
unexceptional but still it is salutary guideline to judge human
conduct, particularly in the field of Administrative Law. The D
authorities should not keep the eyes totally closed towards
the overall estimation in which the delinquent officer was held
in the recent past by those who were supervising him earlier.
To dunk an officer into the puddle of "doubtful integrity" it is
not enough that the doubt fringes on a mere hunch. That E
doubt should be of such a nature as would reasonably and
consciously be entertainable by a reasonable man on the
given material. Mere possibility is hardly sufficient to assume
that it would have happened. There must be preponderance
of probability for the reasonable man to entertain doubt F
regarding that possibility. Only then there is justification to
ram an officer with the label 'doubtful integrity'.
II
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. G
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
H
216 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B whether there is evidence on record to reach th~ conclusion that
the delinquent had committed a misconduct. However, the said
conclusion should be reached on the basis oftestofwhata prudent
person would have done. The ratio of the judgment in Prahlad
Saran Gupta (supra) does not apply in this case as the said case
c was of professional misconduct, and not of a delinquency by the
employee.
II. Duty of Higher Judiciary to protect subordinate
judicial officers:
(a) In lshwar Chand Jain v. High Court of Punjab and
D Haryana & Anr., AIR 1988 SC 1395, it was held:
"14. Under the Constitution the High Court has control over
the subordinate judiciary. While exercising that control it is
under a, constitutional obligation to guide and protect, judicial
officers. An honest strict judicial officer is likely to have
E adversaries in the mofussil courts. If complaints are
entertained on trifling matters relating to judicial orders ..... .
no judicialofficer would feel protected and it would be difficult
for him to discharge his duties in an honest and independent
manner. An independent and honest judiciary is a sine qua
F non for Rule of law. . . .. ... It is therefore imperative that the
High Court should also take steps to protect.its honest officers
by ignoring ill-conceived or motivated complaints made by
the unscrupulous lawyers and litigants. "
(b) In Yoginath D. Bagde v. State of Maharashtra &Anr., AIR
G 1999 SC 3734, it was held:
'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
H
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 217
[DR. 8. S. CHAUHAN, J.]
are not expected to be overawed by such litigants or fall to A
their evil designs. "
(c) A subordinate judicial officer works mostly in a charged
atmosphere. He is under a psychological pressure -
contestants and lawyers breathing down his neck. If the
fact that he renders a decision which is resented by a B
litigant or his lawyer were to expose him to such risk, it
will sound the death knell of the institution. "Judge
bashing" has become a favourite pastime of some
people. There is growing tendency of maligning the
reputation of judicial officers by disgruntled elements C
who fail to secure an order which they desire. For
functioning of democracy, an independent judiciary, to
dispense justice without fear and favour is paramount.
Judiciary should not be reduced to the position offlies
in the hands of wanton boys. (Vide : LO. Jaikwal v. D
State of U.P, AIR 1984 SC 1374; K.P. Tiwari v. State
of Madhya Pradesh, AIR 1994 SC 1031; Haridas Das
v. Smt. Usha Rani Banik & Ors., etc. AIR 2007 SC
2688; and In Re : Ajay Kumar Pandey, AIR 1998 SC
3299) E
(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, F
the survivor of the judicial system would itself be in
danger. ·
Ill. 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 G
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 H
218 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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)
B (ii) In Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537,
this Court while dealing with the issue of scope of judicial
review, held as under:
"The principle that if some of the reasons relied on by a
Tribunal for its conclusion turn out to be extraneous or
c otherwise unsustainable, its decision would be vitiated,
applies to cases in which the conclusion is arrived at not on
assessment of objective facts or evidence, but on subjective
satisfaction. The reason is that whereas in cases where the
decision is based on subjective satisfaction if some of the
D reasons tum out to be irrelevant or invalid, it would be
impossible for a superior Court to find out which of the
reasons, relevant or irrelevant, valid or invalid, had brought
about such satisfaction. But in a case where the conclusion
is based on objective facts and evidence, such a difficulty
E would not arise. If it is found that there was legal evideQce
before the Tribunal, even if some ofit was irrelevant, a superior
Court would not interfere if the finding can be sustained on
the rest of the evidence. The reason is that in a writ petition
for certiorari the superior Court does not sit in appeal, but
F exercises only supervisory jurisdiction, and therefore, does
not enter into the question of sufficiency of evidence. "
(Emphasis added)
(iii) The decisions referred to hereinabove highlights .clearly,
the parameter of the Court's power of judicial review of
G administrative action or decision. An order can be set-aside if it is
based on extraneous grounds, or when there are no grounds at all
for passing it or when the grounds are such that, no one can
reasonably arrive at the opinion. The Court does not sit as a Court
of Appeal but, it merely reviews the manner in which the decision
H was made. The Court will not normally exercise its power of judicial
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 219
[DR. B. S. CHAUHAN, J.]
review unless it is found that formation of belief by the statutory A
authority suffers from malafides, dishonesVcorrupt practice. In other
words, the authority must act in good faith. Neither the question as
to whether there was sufficient evidence before the authority can
be raised/examined, nor the question of re-appreciating the
evidence to examine the correctness of the order under challenge. B
If there are sufficient grounds for passing an order, then even if one
of them is found to be correct, and on its basis the order impugned
can be passed, there is no occasion for the Court to interfere. The
jurisdiction is circumscribed and confined to correct errors of law
or procedural error, if any, resulting in manifest miscarriage ofjustice c
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,
D
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 E
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. " F
In Divisional ControllerN.E.K.R. TC. I(. 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. TC. v. Vinod G
Kumar, (2008) 1 SCC 115; and U.P. State Road Transport Corp.
v. Suresh Chand Sharma, (2010) 6 SCC 555.
7. The case at hand is required to be considered in light of the
aforesaid settled legal propositions. H
220 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 8. In the instant case, after the preliminary enquiry, when the
regular enquiry was conducted, three star witnesses were
examined by the department.
9. Shri G.G. Jani, complainant-accused in his exarriination-in-
chief has deposed that he had been an employee of the Oriental
B Insurance Co. at Mehasana, and at the relevant time, was fadng a
criminal case for mis-appropriation of money, and for pr9ducing up
false documents. His case was initially tried by Shri Bhatt, the then
Chief Judicial Magistrate in 1991 and he happened to give him long
adjournments. Later when the appellant was hearing the case, only
c short adjournments were granted. Pankaj Pancholi, who· was
practicing as an advocate in the High Court, was engaged by him.
Initially he had got the case adjourned twice, but he could not attend
on the subsequent dates. As a result the appellant started
examining the witnesses even in his advocate's absence. The
o appellant had instructed the complainant-accused to keep his
advocate present, or to make an alternative arrangement. The case
was fixed for 13.8.1993, and on that date, on the instructions of Shri
Pancholi, Shri C.B. Gajjar, advocate came to the court. He got the
complainant-accused to sign his vakalatnama. Shri C.B. Gallar had
E told him not to worry as he was having very good relations with the
app~llant, and he would be able to get adjoumni'ents. He sought
adjournment and the appellant fixed the case for 20.8.1993. Shri
C.B. Gallar called the complainant on 17.8.1993 near the chamber
of the appellant in court compound at about 4 to 4.30 p.m. On
F reaching there he had met Shri C.B. Gallar, whohad told him that
he would talk to Madam to decide the case in his favour and went
to her chamber at about 5.00 p.m. The complainant remained
standing outside in the lobby. The appellant was in her chamber.
Shri C.B. Ganar had then came out, after 15 minutes and told the
complainant that appellant had demanded Rs.20,000/- to dejiver
G the judgment in his favour. The complainant told him that it was a
very high amount and requested Shri C.B. Gallarto negotiate for a
reasonable amount. Thereafter, Shri C.B. Gajjar again went to her
chamber. At that time, the complainant was standing outside the
door of the chamber. Shri Gajjar discussed his case with the
H
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 221
[DR. B.S.CHAUHAN,JJ
appellant in a slow voice. Shri C.B. Gajjar came out and told the A
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 - B
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 C
went alongwith the complainant. Shri C.B. Gajjar came there,
however, he got some doubt, therefore, he asked the complainant
about the identitication 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 D
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 also admitted that he did not hear the
conversation ma~e between the appellant and Shri C.B. Gaflar, E
advocate. What he has deposed was based on as what Shri Gajjar
had told him. He replied to suggestion made to him as under:
"Question: I saythatin the case of C.8.1. against you, as your
advocate being your close relative, he was not able to take the
fee from you and for that reason, Advocate Shri Gajjar Was also F
· not able to take fee from you. Therefore, with a view to obtain
his fee from you, whether Shri Gajjar had demanded the same
using the name of the magistrate?
Answer: I do not want to say anything in this regard."
G
10. Shri C.B. Gajjar, advocate, deposed that Shri P.K.
Pancholi, advocate had fold him that the complainant-accused was
brother of his brother-in-law, so he could not ask him to pay any fee.
Thus, it was agreed that he should ask the complainant-accused
to pay Rs.20,000/-, as the amount was to be given to the appellant H
222 SUPREME COURT REPORTS [2013) 5 S.C.R.
A as a bribe to get a favourable order. Thus, in view thereof, he had
told the complainant-accused that he had to pay Rs.20,000/- to the
appellant to get a favourable order. In his cross-examination, he
deposed as under:
"I went to Miss Jhala's court on 13.8.1993 in morning in
B Gautambhai Jani's case and after that never went there. I did
not go into the Chamber of Miss Jhala on 17.8.1993. No talk
has taken place with her for money at any time ........ Miss Jhala
has not made any such demand."
Shri C.B. Gajjar further admitted that the appellant was
C unmarried. Further, he admitted that he was called by the Vigilance
Officer and he made the statement before him. He admitted his
signature on the said statement and stated that it was correct.
11. Shri Pankaj K. Pancholi, advocate, did not support the case
of the department, and his evidence is of no use for determination
0 of the issue as to whether the appellant had demanded a bribe for
deciding the case in favour of the complainant-accused.
12. The appellant examined herself in defence and deposed
that her court was of the size of 50ft. x 30 ft. and chamber
E admeasured 22ft. x 14ft., and adjacent thereto, there was a chamber
for Stenographer measuring 1Oft. x 1Oft. A person from ot.ltside
could enter her chamber only through the said stenographer's ~oom.
Therefore, nobody outside the room could hear any conversation
which could be had in the Magistrate chamber. Shri C.B. Gajjar,
had appeared in her court in the case of the complainant-accused
F 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
G 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
H parties to keep their witnesses ready.
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 223
[DR. B. S. CHAUHAN, J.]
13. There was another witness examined by the department, A
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. B
14. On the basis of the aforesaid evidence, the Enquiry Officer
prepared a report Ext. 121. So far as the charge 1 is concerned,
he appreciated the evidence as under:
"Now I turn to Shri Jani's statement before the Vigilance
Officer which was recorded on 20.9.1993. In that statement C
he repeated the allegations made in his complaint dated
19.8.1993 to the CBI. He added that when Shri Ganar went
again into the chamber of Miss Jhala on 17.8.1993 to make a
request for instalment, he stood in front of the door near the
chamber so as to able to get an idea of the talk in the chamber. D
According to him, when Shri Gajjar talked about
instalment Miss Jhala initially refused but when Shri
Gajjar made a request, she agreed to give instalment of
Rs.5,000/-. Shri Jani then gave the following account of what
happened in Yamuna Restaurant on 28.8.1993. E
However, the gravest and clinching circumstance against Miss
Jhala is the fact that Shri Gajjar called Shri Jani to meet him
outsid.e her chamber at 4.45 p.m. on 17.8.1993 and
demanded Rs.20,000/- after a meeting with her in her chamber
no doubt both Miss Jhala and Shri Gajjar had denied this F
allegati.on. However, the tenor of Shri Gajjar's statement
before the Vigilance Officer shows that the meeting in the
Yamuna Hotel on 20.8.1993 was in pursuance of the previous
talk between Shri Jani and Shri Gajjar. On 13.8.1993, Shri
Gajjar had left the court after getting the case adjourned and G
there was no talk about any payment at that time. The meeting,
therefore, took place after 13.8.1993 and before 19.8.1993
when Shri Jani sent to the CBI Officer and made the complaint.
In the circumstances, there is no reason to disbelieve Shri
Jani's account of what happened on 17 .8.1993 given in his H
224 SUPREME COURT REPORTS [2013] 5 S.C.R.
A complaint dated 19.8.1993.
In the circumstances, the assertion of Miss Jhala and Shri Ga]ar
that there was no meeting between them cannot be accepted
as true .... lt may be that Shri Jani's claim to have been
standing near the chamber so as to be able to hear the
B talk is a subsequent improvement but the fact that there
was a meeting between Miss Jhala and Shri Gajjar cannot
be doubted and in the absence of any explanation of the
reason for the meeting, the only inference that can be
drawn in that Miss Jhala demand illegal gratification and
c Shri Gajjar conveyed the demand to Shri Jani. This
inference is strengthened by the fact that on this own say Shri
Gajjar gave an assurance to Shri Jani and Shri Gallar in the
Yamuna Hotel that the work would be done and there would
be no cheating. Both Shri Jani and Shri Gallar said in their
D statements before the Vigilance Officer that Shri Gallar could
accompany him to the residence of Miss Jhala though she
would not accept payment in person. According to Shri Jani,
Shri Gallar said that the dealing is made by her husband.
It is said that Miss Jhala is unmarried and hence there was
E no question of her husband being present. But it is possible
that the payment was to be' accepted by some other
person when Shri Gallar loosely described as Miss Jhala's
husband .... .It may be that Shri Gallarwas 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
F
Gallar's demand was in pursuance of the meeting with Miss
Jhala in her chamber on 17.8.1993." (Emp,hasis added)
And thus, he reached the conclusion as under:
"As a result of the above discussion, I come to the conclusion
G that Miss Jhaia demanded or agreed to accept illegal
gratification through advocate Shri C.B. Ga]arfordoing favour
to Shri Jani at her meeting with Shri Ga]ar in her chamber on
17.8.1993. The charge no.1 is answered accordingly."
15. The said report was accepted by the High Court and
H
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 225
[DR. B. S. CHAUHAN, J.]
recommendation for imposing the punishment of compulsory A
retirement was made which was accepted by the State. The
appellant was given compulsory retirement. The High Court on
Administrative side appreciated the same evidence, and came to
the conclusion as under:
''The fact that Shri Jani and Shri Gaflar had a meeting outside B
the chamber of the petitioner on 17.8.1993 at about 5 o'clock
in the evening and that Shri Gajjar had gone inside the chamber
of the petitioner twice and demanded money on her behalf
from Shri Jani to decide the case in his favour has been
believed by the Enquiry Officer as well as by the High Court in C
its recommendations. There are number of reasons why the
said conclusions appear to be eminently just. At no point of
time, the petitioner has alleged any animosity or ill-will
between her and Shri Jani. Neither in the cross-examination
of Shri Jani, nor in her deposition before the Enquiry Officer, D
.the petitioner has even remotely suggested any ill-will
between them so as to falsely implicate the petitioner.
We have also recorded earlier that Shri Gaflar and Shri
Jani had assembled outside the chamber of the petitioner on
17.8.1993 and Shri G?jjar had entered the chamber of the E
petitioner twice when the petitioner was in her chamber
demanded an amount of Rs.20,000/- on behalf of the petitioner,
there is absolutely no cross-examination of Shri Jani by the
petitioner. Lack of challenge to this most crucial element of the
evidence fully justified the findings of the competent authority. ... F
....... When this is so, it was the duty of the petitioner to explain
the said circumstance. The petitioner instead of satisfactorily
explaining Shri Gajjar entering her chamber twice on
17.8.1993 has completely disowned and denied any such G
occurrence ..... nor has the petitioner examined any witness
to show that she was not in the chamber on the said day at 5
o'clock. Being court premises, surely there would have been
number of witnesses readily available such as, her-· Bench
Clerk, her Stenographer, etc. who would be sitting outside her H
226 SUPREME COURT REPORTS (2013] 5 ,S.C.R.
'.
A chamber, her Peon and number of advocates who could watch
for the fact that the petitioner was not inside her chamber at
5.00 p.m. on 17.8.1993. No such attempt was made by the
petitioner to examine any witness ....... the petitioner's total
denial of the incident and her unwillingness or inability to
B explain Shri Gajjar enterir:ig 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
c 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.
D (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
E the say of Shri JanLwhen 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 threatened Shri Jani.
F This, however, by itself would not be sufficient for us to hold
that the findings of the Enquiry Officer and that of the High Court
in its recommendations were based on no evidence .
... . ...there was ample justification for coming to the conclusion
that the charge of having demanded illegal gratification was
G proved against the petitioner.
Shri Jani in his statement at one place had stated that
his case before the petitioner was fixed on 13.8.1993 and
thereafter adjourned to 20.8.1993 and on 20.8.1993, it was
again adjourned to 28.8.1993. We, therefore, to verify the
H dates, called for the calendar of the year 1993. The calendar
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 227
[DR. B. S. CHAUHAN, J.]
of 1993 showed that August 28 was a 4th Saturday, and A
therefore a non-working day for the court .
.. . . .. ..We also find that the size of the paper on which the
rozkam for the dates prior to 13.8.1993 was different from the
size of preceding and succeeding papers. Discolouration of
this page also seen different from other pages and therefore B
raise suspicion."
17. The High Court has rightly disbelieved the statement of the
complainant-accused that he could hear the conversation between
the appellant and Shri Gajjar. The said evidence was also discarded
by the Enquiry Officer. Further allegation that the appellant had C
threatened the said complainant-accused to withdraw the complaint
was also found to be false. The entry of Shri C.B. Gajjar into the
chamber of the appellant on 17.8.1993, was not corroborated by
any other evidence. Shri C.B. Gajjar himself had also denied the
same. D -
More so, the High Court has reached the conclusion by shifting
the burden of proof of negative circumstances upon the appellant.
The High Court has erred by holding that in respect of the incident
dated 17.8.1993 i.e. demand of amount, it was the duty of the
appellant to explain the said circumstance, and that instead of giving E
any satisfactory explanation in respect of entry of Shri C.B. Gajjar,
she had completely disowned and denied any such occurrence. The
onus was always on the department to prove the said circumstance.
The court should have also taken note of the fact, that the matter
was adjourned for 28.8.1993, and being a 4th Saturday, it was a F
holiday. The court further committed an error by holding, that the
failure to challenge the most crucial element of the evidence,
regarding the incident of 17.8.1993, in respect of a demand of 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 G
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,
Ad\locate. Given the above set of facts, the complainant is seen
talking about appellant's husbawi for collecting money on her behalf. H
228 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 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,
B 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.
Gaflar, 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
C permissible for either of them to take into considerati<?n their
statements recorded in the preliminary inquiry, which had been held
behind the back of the appellant, and for which she had no
opportunity to cross-examine either of them.
20. A Constitution Bench of this Court in Amlendu Ghosh v.
D District Traffic Superintendent, North-Eastern Railway, Katiyar, AIR
1960 SC 992, held that the purpose of holding a preliminary inquiry
in respect of a particular alleged misconduct is only for the purpose
of finding a particular fact and prima facie, to know as to whether
the alleged misconduct has been committed and on the basis of
E the findings r~corded in preliminary inquiry, no order of pun,ishment
can be passed. It may be used only to take a view as to whether a
regular disciplinary proceeding against the delinquent is required
to be held. ·
21. Similarly in Chiman Lal Shah v. Union of India, AIR 1964
F SC 1854, a Constitution Bench of this Court while taking a similar
view held that preliminary inquiry should not be confused with regular
inquiry. The preliminary inquiry is not governed by the provisions of
Article 311 (2) of the Constitution of India. Preliminary inquiry may
be held ex-parte, for it is merely for the satisfaction of the
G government though usually for the sake of fairness, an explanation
may be sought from the government servant even at such an inquiry.
But at that stage, he has no right to be heard as the inquiry is merely
for the satisfaction of the government as to whether a regular inquiry
must be held. The Court further held as under:
H "..... There must, therefore, be no confusion between the two
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 229
[DR. B. S. CHAUHAN, J.]
inquiries and it is only when the Government proceeds to hold A
a departmental enquiry for the purpose of inflicting on the
government servant one of the three major punishment
indicated in Article 311 that the government servant is
entitled to the protection of that Article, nor prior to that. "
(Emphasis added) B
(See also: Government of India, Ministry of Home Affairs & Ors.
v. Tarak Nath Ghosh, AIR 1971 SC 823).
22. In Naryan Dattatraya Ramteerathakhar v. State of
Maharashtra & Ors., AIR 1997 SC 2148, this Court dealt with the
issue and held as under: C
"..... a preliminary inquiry has nothing to do with the enquiry
conducted after issue of charge-sheet. The preliminary
enquiry is only to find out whether disciplinary enquiry should
be initiated against the delinquent. Once regular enquiry is
held under the Rules, the preliminary enquiry loses its
0
importance and, whether preliminary enquiry was held strictly
in accordance with law or by observing principles of natural
justice of nor, remains of no consequence.
(Emphasis added) E
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. F
24. In Ayaaubkhf3n 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 G
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 H
230 SUPREME COURT REPORTS (2013) 5 S.C.R.
A 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
which is led in support of the case were to be believed. While
determining whether a prima facie case had been made out or not,
B the relevant consideration is whether on the evidence led, it was
possible to arrive atthe conclusion in question and not whether that
was the only conclusion which could be arrived at on that evidence".
(Vide: Martin Bum Ltd. v. R.N. Banerjee, AIR 1958 SC 79) ·
(See also: The Management of the Bangalore Woollen Cotton
C and Silk Mills Co. Ltd. v. B. Dasappa, M. T represented by the Binny
Mills Labour Association, AIR 1960 SC 1352; State (Delhi Admn.)
v. V.C. Shukla & Anr., AIR 1980 SC 1382; Dalpat Kumar & Anr.
v. Prahlad Singh & Ors., AIR 1993 SC 276; and Cho/an Roadways
Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570).
D 27. The issue, as to whether in the instant case the material
collected in preliminary enquiry could be used against the appellant,
has to be considered by taking into account the facts and
circumstances of the case. In the preliminary enquiry, the department
placed reliance upon the statements made by the accused/
E complainant and Shri C.B. Ganar, advocate. Shri C.B. Gajjar in his
statement has given the same version as he has deposed in regular
enquiry. Shri Ganar did not utter a single word about the meeting
with the appellant on 17.8.1993, as he had stated that he had asked
the accused/complainant to pay Rs. 20,000/- as was agreed with
F by Shri P.K. Pancholi, advocate. Of course, Shri C.8. Gajjar,
complainant, ,has d~finitely reiterated the stand he had taken in his
complaint. The chargesheet served upon the appellant contained
12 charges. Only first charge related to the incident dated 17.8.1993
was in respect of the case of the complainant. The other charges
G related to various other civil and criminal cases. The same were
for not deciding the application for interim reliefs etc.
28. The chargesheet was accompanied by the statement of
imputation, list of witnesses and the list of documents. However, it
did not say that so far as Charge No. 1 was concerned, the
H preliminary enquiry report or the evidence collected therein, would
NIRMALA J. JHALA v. STATE OF GUJARAT & ANR. 231
[DR. B. S. CHAUHAN, J.]
be used/relied upon against the appellant. A
There is nothing on record to show that either the preliminary
enquiry report or the statements recorded therein, particularly, by
the complainant/accused or Shri C.B. Gajjar, advocate, had been
exhibited in regular inquiry. In absence of information in the
chargesheet that such report/statements would be relied upon B
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 C
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 1981SC136; D.K. Yadav v. JMA Industries Ltd.,
(1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., D
c201 o) 1o sec 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 E
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 finding that the
complainant had no ill-will or motive to make any allegation against F
the appellant.
(ii) The Enquiry Officer, the High Court on administrative side
as well as on judicial side, committed a grave error in placing
reliance on the statement of the complainant as well as of Shri C.B.
GaDar, Advocate, recorded in a preliminary enquiry. The preliminary G
enquiry and its report loses significance/importance, once the
regular enquiry is initiated by issuing chargesheet to the delinquent.
Thus, it was all in violation of the principles of natural justice.
iii) The High Court erred in shifting the onus of proving various
negative circumstances as referred to hereinabove, upon the H
232 SUPREME COURT REPORTS [2013] 5 S.C.R.
A appellant who was delinquent in the enquiry.
iv) The onus lies on the department to prove the charge and it
failed to examine any of the employee of the court, i.e.,
Stenographer, Bench Secretary or Peon attached to the office of
the appellant for proving the entry of Shri Ganar, Advocate in her
B chamber on 17.8.1993.
v) The complainant has been disbelieved by the Enquiry
Officer as well as the High Court on various issues, particularly on
the point of his personal hearing, the conversation between the
appellant and Shri C.B. Ganar, Advocate on 17.8.1993, when they
C met in the chamber.
vi) Similarly, the allegation of the complainant, that appellant
had threatened him through his wife, forcing him to withdraw the
complaint against her, has been disbelieved.
0 vii) The complainant as well as Shri C. B. Ganar, Advocate had
been talking about the appellant's husband having collecting the
amount on behalf of the appellant, for deciding the cases, though
at that point of time, she was unmarried.
viii) There is nothing on record to show that the appellant whose
E defence has been disbelieved in toto, had ever been given any
adverse entry in her AC Rs, orpunisned earlier in any enquiry. While
she has been punished solely on uncorroborated statement of an
accused facing trial for misappropriation.
30. In view of the above, we have no option except to allow the
F appeal. The appeal succeeds and is accordingly allowed. The order
of punis.hment imposed by the High Court in compu!sorily retiring
the appellant is set aside. However, as the appellant has already
reached the age of superannuation long ago, it is not desirable under
the facts and circumstances of the case, to grant her any substantive
G relief, except to exonerate her honourably of all the charges, and
allow the appeal with costs, which is quantified to the tune of Rs.5
lacs. The State of Gujarat is directed to pay the said cost to the
appellant within a period of 3 months from today.
·'
K.K.T. Appeal allowed.
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